Stephens College

National Labor Relations Board - Board Decisions

Mar 18, 1982

260 N.L.R.B. 1049 (N.L.R.B. 1982)

STEPHENS COLLEGE
Stephens College and Stephens Federation of Teach-
ers, Local 3556 affiliated with American Feder-
ation of Teachers, AFL-CIO. Cases 17-CA-
9600, 17-CA-9607, and 17-CA-9658
March 18, 1982
DECISION AND ORDER REMANDING
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
Upon charges filed by Stephens Federation of
Teachers, Local 3556 affiliated with American
Federation of Teachers, AFL-CIO, herein called
the Union, and duly served on Stephens College,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 17, issued a consoli-
dated complaint on July 9, 1981, against Respond-
ent, alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5)
and (1) and Section 2(6) and (7) of the National
Labor Relations Act, as amended. Copies of the
charges and order consolidating cases, consolidated
complaint, and notice of hearing before an adminis-
trative law judge were duly served on the parties
to this proceeding.
With respect to the unfair labor practices, the
consolidated complaint alleges in substance that on
March 1, 1979, the Union was certified as the ex-
clusive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' that, on or about April 11, 1980, Respondent
withdrew its recognition of the Union and since
such date Respondent has failed and refused to rec-
ognize and bargain with the Union as the exclusive
collective-bargaining representative of its employ-
ees in the unit found appropriate; that, since on or
about May 5, 1980, Respondent has failed and re-
fused to furnish the Union with information re-
quested by it which is relevant to, and necessary
for, its performance of its function as the exclusive
collective-bargaining representative of the employ-
ees in the unit found appropriate; and that, on or
about April 16 and 18, 1980, Respondent bypassed
the Union and dealt directly with the employees in
the unit found appropriate regarding the allocation
of salary increases. On July 15, 1981, Respondent
filed its answer to the consolidated complaint ad-
' Official notice is taken of the record in the representation proceeding.
Case 17-RC-8467, as the term "record" is defined in Sees 102 68 and
102 69(g) of the Board's Rules and Regulations, Series 8, as amended See
LTV Elecrrosystems. Inc. 166 NLRB 938 (1967). enfd 388 F 2d 683 (4th
Cir. 1968); Golden Age Beverage Co. 167 NLRB 151 (1967), enfd 415
F.2d 26 (5th Cir 1969); Intertype Co. s. Penello, 269 FSupp. 573
(D.C.Va 1967), Follerl Corp. 164 NLRB 378 (1967), enfd 397 F2d 91
(7th Cir 1968): Sec 9(d) of the NLRA, as amended
260 NLRB No. 143
mitting in part, and denying in part, the allegations
in the consolidated complaint. Additionally, Re-
spondent asserts in defense that the Union's certifi-
cation is invalid because the collective-bargaining
unit is inappropriate.
On October 23, 1981, Respondent filed directly
with the Board a Motion for Summary Judgment.
Subsequently, on November 10, 1981, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why Respond-
ent's Motion for Summary Judgment should not be
granted. Thereafter, the General Counsel filed a re-
sponse to the Notice To Show Cause, the Union
filed a response to the Notice To Show Cause and
a Cross-Motion for Summary Judgment, and Re-
spondent filed a response to the Union's Cross-
Motion for Summary Judgment and to the Union's
and the General Counsel's responses to the Notice
To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motions for Summary Judgment
Respondent's Motion for Summary Judgment is
based upon its assertion that the Union's certifica-
tion is invalid since the Board's underlying unit de-
termination was based on a legal theory expressly
rejected by the Supreme Court in N.L.R.B. v. Ye-
shiva University, 444 U.S. 672 (1980), and that, since
its recognition of the Union was based on an inval-
id certification, its withdrawal of such recognition
was lawful. Contrarily, the Union's Motion for
Summary Judgment is based on its assertion that
Respondent is barred by the doctrine of resjudicata
from relitigating issues regarding the Board's un-
derlying unit determination notwithstanding the
fact that such determination was based on a legal
theory expressly rejected by the Supreme Court in
Yeshiva, supra.
In support of its Motion for Summary Judgment,
Respondent relies on the Board's denial of a
motion it filed in the underlying representation pro-
ceeding requesting that the Board remand that
matter to the Regional Director for Region 17 for
additional evidence regarding the alleged manageri-
al status of its full-time faculty; the motion to
remand was based on the then recently issued deci-
sion of the Second Circuit in N.L.R.B. v. Yeshiva
University, 582 F.2d 686 (2d Cir. 1978). In denying
Respondent's motion to remand, the Board de-
clined to follow the decision of the Second Circuit
1049
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Yeshiva, supra, and stated that since it appeared2
that the decisionmaking authority of the faculty ex-
isted on a collective and group basis, and that final
authority for all decisions rested with Respondent's
board of curators, the full-time faculty members
were not supervisors within the meaning of Section
2(2) of the Act.3
Although it is true that the Supreme Court has
rejected the Board's "collective authority" theory,
the absence of specific record testimony regarding
the ultimate decisionmaking authority of Respond-
ent's full-time faculty makes it virtually impossible
to analyze the instant matter in light of the stand-
ards set forth by the Supreme Court in Yeshiva,
supra.4 It is well settled that, in order for a matter
to be appropriate for summary judgment, it must
2 Prior to filinig its motion to remand Respondent had raised no ques-
tions regarding the status of its full-time faculty and, thus, there was little
record testimonl regarding their authority' what little testimony there
was related to Responident's argument that its department heads were not
supervisors as defined in the Act since the president of the college as-
signed equal weight to the recommendations of the faculty and the
department heads in exercising his decisionmaking authority
SItephens College, 240 NLRB 166, fn 2 (1979)
Indeed, Respondent concedes that in at least one significant respect
the recommendations of the faculty are merely advisory As Respoindenit
stated in its brief in support of its request for review of the Regional D)i-
rector's Decisioin aind Direction of Election in the underlying representa-
tion proceeding
affirmatively appear in the record (1) that there is
no genuine issue as to any material fact and (2) that
the moving party is entitled to a judgment as a
matter of law.5 Having reviewed the instant matter
in light of this standard, we conclude that there is a
genuine issue as to the managerial status of Re-
spondent's full-time faculty which cannot be re-
solved on the current record. Accordingly, we
deny the Motions for Summary Judgment.
With respect to all important working conditions
at the College, the recommendations of the various
department heads and department faculty are
simply advisory. The President of the College,
with the consent of the Board of Curators, after an
independent recommendation by the Dean of Fac-
ulty, personally makes every significant decision af-
fecting wages, hours, and other conditions of em-
ployment of faculty members.
ORDER
It is hereby ordered that the above-entitled pro-
ceeding be, and it hereby is, remanded to the Re-
gional Director for Region 17 for further appropri-
ate action.
'"Fed R Ci P1' 5h(c).
1050