New York University

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 1104 (N.L.R.B. 1984)

1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New York University and United Staff Association
of NYU, Local 3882, New York State United
Teachers, AFT, AFL-CIO. Case 2-CA-17974
14 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 10 December 1982 Administrative Law
Judge James F. Morton issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed a brief
in support of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the University violated
Section 8(a)(5) and (1) of the National Labor Rela-
tions Act by granting merit wage increases to two
employees without bargaining with the union certi-
fied as the employees' collective-bargaining repre-
sentative. It is undisputed that the University grant-
ed wage increases to employees Jean MacNab and
David Fier without bargaining with the Union.
The University contends, however, that those in-
creases were authorized by the collective-bargain-
ing agreement. We find merit in that contention.
The 1980-1981 collective-bargaining agreement
did not establish a single rate of pay for office cler-
ical employees in job grades 4 though 10 and legal
secretaries III through I. Rather, it establishes
salary ranges, with minimum and maximum rates
for those job grades. The wage increases granted
MacNab and Fier came within the salary ranges
specified for their jobs in the 1980-1981 collective-
bargaining agreement.'
1 MacNab's increase (from $261 26 to $275) was within the $221 mini-
mum and $306 maximum listed for her grade 9 job in the 1980-1981 con-
tract Fier's increase (from $278 36 to $300) was within the $233 mini-
mum and $323 maximum listed in the 1980-1981 contract for his grade 10
job Although MacNab's Increase was granted in late August 1980, 2
months before the expiration of the 1979-1980 contract, and exceeded by
$2 the $273 maximum listed for her job in that contract, there appears to
have been a mid-term renegotiation and increase of the contractual wage
rates in early 1980 In any event, the General Counsel does not allege
that MacNab's increase exceeded the contractual maximum for her job
and does not attempt to predicate the alleged violation in this case on any
alleged deviation from the contractual wage scale By the time Fier was
granted his increase in January 1981 and the dispute over the wage in-
creases arose between the parties, the 1980-1981 contract was in effect
and, as noted, MacNab's and Fier's increases were well within the con-
tractual salary ranges listed in that contract
The University contends that it was authorized
under the agreement not only to hire employees at
any wage rate within the contractual salary ranges,
but also to grant employees wage increases within
those ranges. On its face, the agreement appears to
authorize the payment of any wage rate within the
contractual minimum and maximum rates for the
particular job grade. The General Counsel seeks to
explain the contractual salary ranges on the ground
that the University was paying employees in the
same job grade widely disparate wage rates when
the Union was certified in December 1978, so that
it would have required a major reorganization of
the clerical grade structure to make the wage rates
within each job grade uniform. Accepting that as
one of the reasons for having salary ranges in the
agreement, we nonetheless conclude that the Union
made a significant concession when it agreed, with-
out any restriction, that the University might pay
employees in the same job grade different rates of
pay within the contractual salary ranges.2
The General Counsel appears to contend that the
contractual salary ranges authorize the University
merely to maintain the wage disparities that existed
when the Union was certified and give the Univer-
sity no discretion to increase an employee's wages
within the salary range specified for the employee's
job. But the General Counsel concedes that the
management rights clause of the collective-bargain-
ing agreement authorizes the University to promote
employees unilaterally. Thus, had the University
raised the wages of employees MacNab and Fier
by promoting them to higher job grades, without
bargaining with the Union, it is conceded that
there would have been no violation of the Act.
The General Counsel urges that the collective-bar-
gaining agreement makes a distinction between
promotions, which the University is admittedly au-
thorized to make without bargaining with the
Union, and within-grade wage increases, as to
which bargaining is allegedly required before each
increase, even though the increase comes within
the salary range expressly authorized in the agree-
ment.
Other provisions of the collective-bargaining
agreement belie that contention. The 1980-1981
agreement provides that when a Code 106 (office
clerical) employee bumps a junior employee in a
job more than one grade below the employee's
2 Salary ranges were established in the initial collective-bargaining
agreement (1979-1980) and were retained in subsequent agreements
(1980-1981 and 1981-1982), with increased minimum and maximum rates
for the various job grades in each subsequent agreement As discussed,
infra, new job grades were established in the 1980-1981 agreement and
salary ranges, with minimum and maximum rates, were established for
those jobs, as well
273 NLRB No. 137
NEW YORK UNIVERSITY 1105
own, the employee shall be paid the rate of the
bumped employee or the employee's own rate,
whichever is less, or "at the discretion of the Em-
ployer, receive a rate not to exceed the maximum for
the grade" (art. XI, sec. 5, emphasis added). The
agreement also sets limits on the minimum rate that
may be paid a Code 104 (laboratory/technical) em-
ployee bumping into a lower rated job and then
provides, "At the discretion of the Employer, the em-
ployee may be paid a higher rate not to exceed the
maximum earned by any employee working in that
job title" (ibid., emphasis added). Similarly, the
agreement provides that, under certain conditions,
when employees are required to perform a higher
rated unit job on a temporary assignment of 20
work days or more, they "shall be paid no less than
the minimum rate for the higher rated job or an ad-
ditional $5.00 per week, whichever is greater" (art.
VII, sec. 3, emphasis added). Unless the words "no
less than" are mere surplusage, they recognize the
University's authority to pay a higher rate for the
job up to the contractual maximum.
Moreover, after the University in late 1980 uni-
laterally upgraded the secretaries in its legal coun-
sel's office, giving them new job titles and wage in-
creases, the parties agreed in the 1980-1981 agree-
ment not only to establish new job grades for
Legal Secretaries III-I, but also to establish new
salary ranges, with minimum and maximum rates
for each of the new grades. 3 Since those grades
had not existed before the Union's certification, the
new salary ranges cannot be explained as merely
preserving precertification wage disparities for em-
ployees in established job grades. In our view, the
evident explanation is that just as the agreement
admittedly authorizes the University unilaterally to
promote employees to higher job grades within the
contractual structure, so it authorizes the Universi-
ty to grant within-grade increases within the con-
tractually established salary ranges for each par-
ticular job grade. See Markle Mfg. Co., 239 NLRB
1353, 1363 (1979). Accordingly, we conclude that
the wage provisions of the collective-bargaining
agremeent, construed as a whole, clearly authorize
the University to pay higher wages for each job up
to the contractual maximum, without bargaining
with the Union during the term of the agreement.
Nor do we find persuasive the General Counsel's
reliance on the bargaining history of the parties to
support the alleged violation in this case. The Gen-
eral Counsel relies on a rejected wage proposal of
3 At the same time, It was agreed that if the University instituted a
new job grade, outside the contractual structure, -the job rate shall be
negotiated with the Association" (art VII, sec 2) In the absence of
agreement, the dispute was to be resolved under the contractual griev-
ance and arbitration procedure Ibid
the University for the 1980-1981 contract. That
proposal provided for a 7-percent increase in the
base rate for all employees and a 7-percent increase
in the minimum and maximum rates for all groups
effective 25 August 1980. In addition, the Universi-
ty's proposal provided:
The Employer will grant merit increases,
based on its sole discretion, to employees cov-
ered by this Agreement on October 6, 1980 in
an amount, to be agreed on, equal to a percent
of the base payroll for covered employees on
August 24, 1980.
Because the Union successfully resisted this pro-
posal and the parties instead agreed on a flat 10-
percent annual increase for all employees, the Gen-
eral Counsel argues that the parties recognized that
the University was not contractually authorized to
grant any within-grade wage increases without first
bargaining with the Union.4
But, as the University points out, prior to the
Union's certification, all wage increases were
within the University's sole discretion and there
were two kinds of merit increase. First, the Univer-
sity granted an annual wage increase, consisting of
a percentage increase for the employees of each ad-
ministrative unit of the University; that increase
was to be allocated by the administrative unit
among its employees on the basis of merit. Second,
the University granted additional individual merit
increases to about 20-25 employees during the
course of the year. 5 We find persuasive the Univer-
sity's argument that its unsuccessful wage proposals
concerned the annual wage increase rather than the
individual wage increases granted throughout the
year. Although the University sought unsuccessful-
4 In negotiations for the 1981-1982 contract, the University again pro-
posed that the annual wage increase should consist of a percentage in-
crease for all employees and an additional percentage increase to be dis-
tributed to unit employees in the form of merit increases as the Universi-
ty saw fit The Union again rejected the proposal to allocate part of the
annual increase to merit raises and the parties instead agreed on a 10-per-
cent across-the-board annual wage increase retroactive to 31 August
1981
5 The University's director of labor relations testified that the Universi-
ty continued to grant these individual increases after the Union's certifi-
cation But the Union's chief steward denied knowledge of any postcerti-
fication individual wage increases granted without a contemporaneous
promotion, except for the increases at issue here and a $10 increase grant-
ed to the Union's president, Jack Kraft The record shows that Kraft re-
ceived only a $5 Increase when he was promoted to a grade 7 mail sorter
in 1978 and that he received an additional $10 increase in 1980, in cir-
cumstances that need not be explored here Because we find that the col-
lective-bargaining agreement authorized wage increases within the con-
tractual salary ranges, we find It unnecessary to pass on whether the
Union could be deemed to have acquiesced in the University's practice of
granting individual wage increases absent the agreement We note, how-
ever, that the record does not support the judge's finding that the Uni-
versity's individual wage increases were limited to employees outside the
bargaining unit or that they were granted only on infrequent occasions
during the course of the year
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ly to retain some of the merit increase characteris-
tics of the annual wage increases, it did not agree
to cease the individual wage increases granted
during the year in addition to the annual increase.
On the contrary, as discussed above, we find that
the contractual salary ranges agreed to by the
Union authorized the University to continue to
grant individual wage increases up to the maximum
rates prescribed in the contract. Accordingly, we
find unpersuasive the Union's reliance on the histo-
ry of rejected bargaining proposals to vary the
terms of the contract.
In sum, we conclude that the University did not
violate Section 8(a)(5) and (1) of the Act by grant-
ing to employees Jean MacNab and David Fier the
wage increases alleged as violations in the com-
plaint because those increases were authorized by
the collective-bargaining agreement between the
University and the Union. 6 We shall therefore dis-
miss the complaint in its entirety.
ORDER
The complaint is dismissed.
MEMBER ZIMMERMAN, dissenting.
I find, for the reasons given by the administra-
tive law judge, that the Respondent unlawfully
granted merit increases to two employees repre-
sented by the Union without collectively bargain-
ing with the Union over such increases.
As the judge observed, the Board, historically,
has not lightly inferred a waiver by contract of a
labor organization's statutory right to be consulted
about changes in wage rates, hours of employment,
or other terms and conditions of employment for
unit employees. He correctly found that the facts
here do not support a finding that the Union
waived its bargaining rights concerning the grant-
ing of merit increases. Thus, in two successive con-
tracts the union successfully opposed the Respond-
ent's proposal that the Union permit it to grant
merit increases at the Respondent's sole discretion.
To construe the broad management rights clause of
the current contract as a waiver of the right to bar-
gain over merit increases is to improperly ignore a
bargaining history which addressed the specific
point at issue.
6 On the view we take of this case, it is unnecessary to reach the addi-
tional arguments raised by the University concerning the scope of the
management rights clause, the zipper clause, and the grievance and arbi-
tration clauses of the collective-bargaining agreement In addition, we
note that no issue is present concerning deferral to contractual grievance
and arbitration procedures, as no party has urged that the matter at issue
here could be resolved under those procedures
Nor do the salary ranges established by the con-
tract within each job grade prove a waiver of the
Union's bargaining rights concerning merit in-
creases. As the judge found, those ranges reflect
wage disparities that existed when the Union was
certified. The clause permits the Respondent to
maintain the disparity; it does not permit the Re-
spondent to increase unilaterally the wages of a
given employee within the salary range of his job
grade.'
I agree with Judge Morton, and find my col-
leagues' efforts to bolster the Respondent's case in
the face of adverse facts unpersuasive.
1 That other contract provisions give the Respondent discretion to
select a rate within the salary range for employees who bump to lower
grades is not evidence to the contrary Those provisions involve a
change in job grade and not merely an increase within the grade More-
over, it could well be argued that failure expressly to allow discretion in
the clause setting forth salary ranges, while so allowing discretion in
clause regarding bumping rights, is evidence that the parties did not
Intend to grant the Respondent the right to give merit Increases unilater-
ally
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. On
April 3, 1981, United Staff Association of NYU, Local
3882, New York State UNited Teachers, AFT, AFL-
CIO (Union) filed the unfair labor practice charge in this
case against New York University (Respondent). On No-
vember 24, 1981, the Regional Director of the New
York field office of the National Labor Relations Board
(Board), on behalf of the General Counsel of the Board,
issued a complaint against Respondent which alleged
that Respondent had violated Section 8(a)(1) and (5) of
the National Labor Relations Act as amended (the Act)
by having granted merit wage increases to employees
represented by the Union without having obtained the
consent of the Union. Respondent, in its answer to the
complaint, denied that allegation and has asserted that
the Union in fact had consented to the granting of those
merit increases.
I heard the case in New York City on September 13,
1982.
On the entire record, including my observation of the
demeanor of the witnesses and on careful consideration
of the briefs filed by counsel for the General Counsel
and by counsel for Respondent, I make the following
FINDINGS
I. THE STATUS OF RESPONDENT AND THE UNION
Based on the pleadings, I find that Respondent is an
employer within the meaning of Section 2(2) of the Act
and that it is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that the Union is a
labor organization as defined in Section 2(5) of the Act.
NEW YORK UNIVERSITY 1107
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is a private university in New York City.
The Union is the certified exclusive collective-bargaining
representative of aproximately 1500 office clerical em-
ployees, laboratory/technical employees, and "special"
employees employed by Respondent.
In the years before the Union was so certified, Re-
spondent had conducted annual wage reviews of its em-
ployees and had been in the practice of granting them a
general wage increase once a year. In addition, it gave
some of its employees, about the same time of the annual
general increase, merit increases, over and above the
general wage increase. It appears that Respondent, on in-
frequent occasions, had also given other merit increases
to individuals at other times during the year.
After the Union was certified, the parties discussed the
matter of merit increases, as discussed in detail below.
The events giving rise to the instant case took place in
1980 and early 1981. The Union learned of them in early
1981.
B. The Merit Increases in this Case
In early 1981, the Union's representatives had heard
from various employees that a unit employee had been
given a $22 weekly increase even though his duties had
been unchanged. They broached this matter with Re-
spondent's director of personnel and when she confirmed
the report, the Union protested that Respondent had
given that employee a merit increase without bargaining
with It. The Union offered to settle the matter either by
Respondent's giving the unit employee a bona fide pro-
motion or by agreeing to a new salary grade for the job
then being done by that employee. Respondent's director
of personnel then informed the Union that Respondent
had, some 5 months previously, given another unit em-
ployee a raise (in that case, of $14 a week) and a new job
title, even though that employee's job duties were not
changed.
Respondent's director of personnel then informed the
Union that she had not thought I hat the Union would
object to the wage increases given those two employees
but that, as it did object, Respondent would have to re-
scind those wage increases. The Union's executive board
met about a week later to consider what it should do. It
decided to insist that Respondent rescind the two merit
increases and, on February 24, 1981, the Union wrote
Respondent to advise it that Respondent cannot grant a
salary increase without a corresponding promotion or
without reaching agreement with the Union on a new
salary group. On March 18, 1981, Respondent wrote the
Union to state that, after reviewing the matter, Respond-
ent was of the view that there was no violation of the
contract by its having granted merit increases to the two
unit employees involved in this case. At the hearing, the
General Counsel advised that the Union is not now seek-
ing to have those merit increases rescinded.
C. Other Wage Increases During the Term of the
Contract
In the summer of 1980, Respondent changed the job
title of the secretanes in its legal department to legal sec-
retary and gave them salary increases. It did this to
remain competitive. The Union objected to the change as
it was done without notice to it or its consent. That ob-
jection was resolved by the addition then of a new
clause to the contract that, if Respondent institutes a job
grade not listed in the contract, the job rate shall be ne-
gotiated with the Union and, if not agreed to, the job
rate shall be resolved by arbitration.
There was one time that Respondent increased a unit
employee's salary during the term of a contract and
without a contemporaneous change in duties.' In par-
ticular, the Union's president was promoted in October
1978 to mail sorter, grade 7, but was not given a prom-
ised wage increase then. He protested and finally wrote
to Respondent's director of labor relations in February
1980. He received the $10 increase on February 11, 1980.
D. Negotiations on the Issue of Merit Increases and
Relevant Contract Clauses
Respondent contends that the merit increases it grant-
ed to the two employees involved in this case were au-
thorized by the provisions of its collective-bargaining
agreement with the Union. The General Counsel asserts
that they were not.
As noted earlier, prior to the Union's certification, Re-
spondent conducted annual salary reviews of its employ-
ees and had been in the practice of granting some merit
increases each year in conjunction with a general wage
increase and, on infrequent occasions during the ensuing
year, it granted a few other ment increases.
The Union was certified on December 26, 1978. Since
November 1979 it has had successive contracts with Re-
spondent. In the summer of 1980 the parties met to dis-
cuss the salary scales of the unit employees. Respondent
offered at that time to increase the salaries of all unit em-
ployees by 7 percent and that the Union permit Re-
spondent to grant additional increases, on October 6,
1980, based on Respondent's sole discretion. According
to Respondent's proposal respecting those merit in-
creases, the total amount to be granted as merit increases
would be "an amount to be agreed on, equal to a percent
of the base payroll." The Union rejected that proposal
and Respondent then withdrew its entire offer. Negotia-
tions continued. The parties then agreed to a 10-percent
raise "across the board."
As related earlier, the Union learned in January 1981
that Respondent had given two employees merit in-
creases and that led to this very case.
In the negotiations for the 1981-1982 contract, Re-
spondent offered a general wage increase and it further
' Respondent's director of labor relations testified that each year from
1977 to 1981 (when Respondent discontinued giving merit increases upon
the filing of the unfair labor practice charge in this case), Respondent
granted about 25 merit Increases It appears that those increases were
given to employees who were not Included in the Union's bargaining unit
and were given without notice to, or the knowledge of, the Union.
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proposed that a sum equal to a 2-percent across-the-
board wage increase be distributed by it to unit employ-
ees in the form of merit increases as it saw fit. The
Union "very firmly" rejected the merit increase propos-
al. On December 8, 1981, the parties reached agrement
on the basis of a 10-percent general wage increase, retro-
active to August 31, 1981.
Respondent relies on various provisions of the contract
to support its contention that the Union had agreed that
Respondent could grant the merit increases involved in
this case.
The 1980-1981 and the 1981-1982 contracts both con-
tained the following clauses which had been put into
those contracts by Respondent's associate general coun-
sel who drafted the final documents. There was no evi-
dence offered to indicate that the parties discussed those
clauses during the negotiations. Both of those contracts
have been signed by the parties. The clauses read:
ARTICLE XXVIII—MANAGEMENT RIGHTS
The operation and mangement of the University
and the supervision and direction of the employees
are and shall continue to be solely and exclusively
the functions and prerogatives of the [Respondent].
All of the rights, functions and prerogatives of man-
agement which are not expressly and specifically re-
stricted or modified by one or more explicit provi-
sions of this Agreement are reserved and retained
exclusively by the [Respondent] and shall not be
deemed or construed to have been modified, dimin-
ished or impaired by any past practice or course of
conduct or otherwise than by express provision of
this Agreement. Without in any manner limiting or
affecting the generality of the foregoing, the right
and power to select and hire all employees, to sus-
pend, discipline, demote or discharge them for
cause, to promote them to supervisory or other po-
sitions, to assign, transfer, supervise, and direct all
working forces, to maintain discipline and efficiency
among them to determine the facilities, methods,
means, equipment, procedures, and personnel re-
quired to conduct activities, to promulgate rules and
regulations and to exercise the other customary
functions of the [Respondent] for the carrying on of
its business and operations, are recognized as vested
exclusively in the [Respondent].
ARTICLE XXIX—ENTIRE AGREEMENT
The [Respondent] and the [Union] agree that all
matters desired by either party have been presented,
discussed and incorporated herein or rejected. Ac-
cordingly, it is agreed that for the life of this Agree-
ment each party voluntarily and unqualifiedly
waives the nght and each agrees that the other shall
not be obligated to bargain collectively with respect
to any subject or matter, whether or not referred to
in this Agreement. This Agreement constitutes the
complete understanding of the parties with respect
to all issues between them, supersedes all oral or
written agreements heretofore made, and may only
be modified by a written agreement signed by the
parties.
There is one other section of the contract which is rel-
evant to the issue to be decided in this case. Section 1 of
article VII sets out a minimum salary and a maximum
salary for each grade. Thus, grade 4 has a $178 minimum
and a $224 maximum. The respective ranges were put
into the initial contract to take into account that, at the
time the Union was certified, all the employees in each
grade were not receiving the same wage rate. In fact,
there were considerable differences. Respondent's direc-
tor of labor relations testified that he also viewed the
ranges as a basis for Respondent to grant merit increases
up to the respective maximums. It appears clear from the
overall record that the Union had never expressly assent-
ed to that view.
E. Analysis
The General Counsel asserts that Respondent granted
two merit increases to unit employees without notice to
and bargaining with the Union. Respondent contends
that the Union, by having assented to the broad manage-
ment-rights clause set out in article XXVIII and other
clauses discussed above, had agreed that Respondent
could grant such increases. The Board has long held that
it will not lightly infer a waiver by contract of a labor
organization's statutory right to be consulted about
changes in wage rates, hours of employment, or other
terms or conditions of employment of the unit employ-
ees. 2 Where the history and nature of the parties' negoti-
ations demonstrate that a labor organization, in agreeing
to the terms of a broad management-rights clause, under-
stood that it granted an employer significantly expanded
authority to implement changes in employment terms,
the Board will find that, by those negotiations, a labor
organization will have understood that acceptance of the
management-rights clause "amounted to a broad waiver
of its right to be notified of and to bargain about such
changes." 3
The facts in the instant case do not support Respond-
ent's contention that the Union waived its bargaining
rights as to the granting of ment increases to unit em-
ployees. To hold otherwise would be tantamount to find-
ing that a party, by signing a contract drafted by the
other side which contained broad waiver language, had
thereby agreed to a proposal it had vigorously and suc-
cessfully opposed.4
Respondent urges that the zipper clause, i.e., article
XXIX, precludes the Union from seeking to reopen ne-
gotiations on the subject of merit increases. That argu-
ment overlooks the fact that the Union was but seeking
to give Respondent a way to redress the unilateral
change. To construe the zipper clause so as to exonerate
Respondent, I would first be required to find that Re-
spondent and the Union had agreed that Respondent
2 Southern Florida Hotel Assn., 245 NLRB 561, 567 (1979).
3 Ibid at 568
4 Cf Rockwell International Corp., 260 NLRB 1346 (1982), Pepsi-Cola
Distributing Co, 241 NLRB 869 (1979), Peerless Publications, 231 NLRB
244, 258 (1977)
NEW YORK UNIVERSITY 1109
could grant merit increases as it saw fit. That is simply
not so.
Respondent further points to the fact that the salaries
of the unit employees are set in a range from minimum
to maximum. It then suggests that it was free to pay the
unit employees any salary within their respective ranges
and that it could do this by granting merit increases.5
There is no evidence to support that view. Rather, the
evidence indicates that the respective ranges were set up
initially to reflect the status of the applicable salary scale
as of the time the Union was certified.
Based on the entire record in this case, I find that Re-
spondent unilaterally granted merit increases to two unit
employees without having bargained collectively with
the Union, and Respondent thereby violated Section
8(a)(1) and (5) of the Act.5
5 Markle Mfg. Co., 239 NLRB 1353, 1363 (1979), relied on by Re-
spondent, is factually distinguishable from the Instant case. More to the
point is the discussion at fn. 3 in GTE Automatic Electric, 261 NLRB
1491 (1982), and the discussion of Pepsi-Cola, supra.
6 The General Counsel's bnef notes that, if Respondent were to con-
tend that the Issue presented in this case can best be resolved via arbitra-
tion, Respondent would thereby be conceding that the Union did not
clearly and unequivocally waive its right to bargain as to ment increases.
Respondent's bnef raises no deferral claim. Respondent addresses its ar-
gument toward the basic issue in this case—whether the contractual lan-
guage in overall context establishes that the parties had agreed that Re-
spondent could at its discretion grant merit raises at various times during
the contract term. Respondent does assert that the Union is seeking via
this case to secure something that it could not obtain in contract negotia-
tions. That argument is fallacious as it assumes as a fact the very issue in
controversy, i.e., whether the parties had agreed that the Respondent
could grant merit increases unilaterally.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization as defined in Sec-
tion 2(5) of the Act.
3. The following unit of employees is appropriate for
purposes of collective bargaining:
All full-time and regular part-time office clerical
employees in Code 106, and all full-time and regular
part-time laboratory/technical employees in Code
104 employed by Respondent, including those em-
ployees receiving tuition remission, and all "special"
employees who have been employed for at least
twelve (12) consecutive weeks and have worked an
average of 20 hours or more per week, but exclud-
ing all employees in Codes other than 104 and 106,
Medical Center employees, full-time students, work-
study students, students receiving financial aid
through New York University, casual employees,
confidential employees, professional employees,
guards and supervisors as defmed in the National
Labor Relations Act.
4. The Union is the exclusive collective-bargaining
representative of the employees in the unit described in
paragraph 3.
5. Respondent violated Section 8(a)(1) and (5) of the
Act by having granted merit wage increases to unit em-
ployees without having bargained collectively thereon
with the Union •
[Recommended Order omitted from publication.]