Universidad Central De Bayamon

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 1110 (N.L.R.B. 1984)

1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Universidad Central de Bayamon and Union de Pro-
fesores Universitarios WPM. Cases 24-CA-
4348, 24-CA-4349, 24-CA-4363, 24-CA-4383,
and 24-CA-4508
14 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 30 March 1984 Administrative Law Judge
Benjamin Schlesinger issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
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 brief and has
decided to affirm the judge's rulings, findings, 1 and
conclusions as modified and to adopt the recom-
mended Order.
Respondent University is a private, nonprofit in-
stitution established in 1961 with the approval of
the Order of the Dominican Fathers of Puerto
Rico, Inc. The University contends that it is a reli-
gious institution exempt from the coverage of the
National Labor Relations Act under NLRB v.
Catholic Bishop of Chicago, 440 U.S. 490 (1979). In
rejecting this contention we agree with with the
judge's fmdings that the University is not owned,
financed, or controlled by the Dominican Order2
or by the Roman Catholic Church, and that the
University's academic mission is secular.
We find, however, that based on the religious
training conducted at the University's Center for
Dominican Studies in the Caribbean (CEDOC),3
the University is not obligated to bargain with the
Union concerning any terms and conditions of em-
ployment relating to the CEDOC program.
CEDOC began operation in 1980. It was originally
envisaged as a 4-year, postgraduate program which
would provide seminarians the academic training
required for ordination to the priesthood in the
Roman Catholic Church. Dominican Order priests
designed the program, prepared the curriculum and
instructed the courses.
1 In adopting the judge's finding that the Respondent's faculty coordi-
nators are not supervisors within the meaning of the Act, Member
Hunter places no reliance on Adelphi University, 195 NLRB 639 (1972).
2 Because the Order of the Dominican Fathers of Puerto Rico does not
control the University, we shall not exclude members of the Order from
the bargaining unit on the basis that they have a special relationship with
their employer. See D'Youville College, 225 NLRB 792 (1976). Cf. Mercy
Hospital, 266 NLRB 944 (1983), enfd. 730 F.2d 1175 (2d Cir. 1984).
3 This is an acronym for the Spanish "Centro de Estudios Dominicos
del Caribe."
The University was unable, however, to obtain
accreditation of the original program. As a result,
in 1982 the University restructured the program to
provide 2 years of study leading to a Master of Di-
vinity in Theology degree. The program is open to
both lay persons and seminarians. Furthermore, the
University's application for accreditation of the
program4 explicitly states that one of the program's
objectives is the teaching of lay persons who wish
to acquire a thorough knowledge of the science of
theology.
The program's primary objective, however, re-
mains the training of priests for the ministry even
though it concededly does not provide the entire
prescribed academic training for entry into the
priesthood. 3 The program is also intended to in-
struct those who desire to teach in Roman Catholic
educational institutions. The CEDOC curriculum
remains primarily religious in content. Approxi-
mately two-thirds of the required courses are in the
areas of sacred scripture, systematic theology,
moral theology, and Ecclesiastical History. Fur-
thermore, all curricula must be taught "within the
limits of the Roman Catholic tradition."
In light of the primary purposes of CEDOC and
its regulation of program curriculum pursuant to
the tenets of the Catholic religion we will not
impose an obligation on the University to bargain
collectively concerning the instructors' terms and
conditions of employment within CEDOC. 7 This
exclusion of CEDOC from the University's bar-
gaining obligation does not affect our finding that
the University's refusal to bargain with the Union
as the certified bargaining representative violated
Section 8(a)(5) of the Act. The CEDOC program
was not referred to in the representation proceed-
ing, and has not involved more than a few universi-
ty instructors. Furthermore, the Union's general
bargaining request did not refer to CEDOC and
the University's refusal to bargain was not based on
any stated concerns specifically regarding
CEDOC. We therefore find that the University
was not justified in its refusal to bargain.
4 The Middle States Association of Colleges and Secondary Schools
accredited the program on 27 December 1982 based on the University's
application.
5 Francisco Domingo, director of the University's humanities depart-
ment, testified that a minimum of 4 years of graduate-level study is re-
quired prior to being ordained as a Roman Catholic priest.
6 In regard to the student makeup of the program, of the 24 students
enrolled during the 1982-83 academic year only 5 were laypersons. It
should also be noted that the program is financially assisted by the Do-
minican Order of Puerto Rico which has made $25,000 in scholarships
available to students who attend CEDOC.
7 The record indicates that most university instructors who have as-
signments relating to CEDOC also have duties unrelated to CEDOC.
With respect to these individuals, the University's bargaining obligation
shall not include any aspect to their assignments relating to CEDOC.
273 NLRB No. 138
UNIVERSIDAD CENTRAL DE BAYAMON
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Universidad
Central de Bayamon, Puerto Rico, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
DECISION
PRELIMINARY STATEMENT
BENJAMIN SCHLESINGER, Administrative Law Judge.
Respondent Universidad Central de Bayamon (Respond-
ent or University) is and has been at all time material
herein a nonprofit corporation, duly organized under and
existing by virtue of the laws of the Commonwealth of
Puerto Rico, and has engaged in the operation of a post-
secondary educational institution in Bayamon, Puerto
Rico. At representation hearings held in November 1979
in Case 24-RC-6383, Respondent contended that it was
not subject to the Board's jurisdiction for two reasons:
(1) that under the decision of the Court of Appeals for
the Second Circuit in NLRB v. Yeshiva University, 582
F.2d 686 (1978), its employees, being managerial or su-
pervisory or both, were excluded from the coverage of
the National Labor Relations Act (the Act); and (2) that
under NLRB v. Catholic Bishop of Chicago, 440 U.S. 490
(1979), it was a religious institution exempt from the
Act's coverage. The Regional Director for Region 24
rendered his Decision and Direction of Election on De-
cember 21, 1979, rejecting both of Respondent's de-
fenses. Pursuant to Section 102.67 of the Board's Rules
and Regulations, Respondent requested review of that
decision. On January 29, 1980, the Board denied Re-
spondent's request "as it raises no substantial issues war-
ranting review." The Charging Party Union de Profes-
sores Universitarios (UPU) (Union) was, after an elec-
tion, duly certified as the collective-bargaining represent-
ative on February 7, 1980, for the following unit held ap-
propriate for collective bargaining:
All full-time teaching personnel employed by Re-
spondent at its Bayamon, Puerto Rico campus, in-
cluding lecturers, instructors, temporary faculty,
auxiliary professors, associate professors, professors
and athletic instructors/coaches; but, excluding all
other employees, all part-time teaching personnel,
maintenance personnel, director, [sic] all administra-
tive, office clerical employees, guards and supervi-
sors as defined in the Act.
Thereafter, Respondent failed and refused to bargain
with the Union on the principal ground that it had no
obligation to do so. Indeed, the Supreme Court decided
NLRB v. Yeshiva University, 444 U.S. 672 (1980), only 13
days after the issuance of the Certification of Representa-
tive; and Respondent has steadfastly relied on this deci-
sion (hereafter Yeshiva University and Catholic Bishop to
support its refusal to bargain. That is what gives rise to
this unfair labor practice proceeding,' which involves
not only Respondent's obligations under Section 8(a)(5)
of the Act but also its responsibilities to certain of its
professors, whom it terminated allegedly because of Re-
spondent's unilaterally imposed terms and conditions of
employment or whom it refused to reinstate after the
Union had sought to end its unfair labor practice strike
against Respondent and offered on behalf of certain pro-
fessors to return to work.
I. THE BOARD'S JURISDICTION
As stated above, Respondent's defense to the com-
plaint is grounded primarily on the following conten-
tions: (1) Respondent is exempt from the provisions of
the Act under Catholic Bishop; (2) the professors are
managerial employees within the meaning of Yeshiva
University, and (3) certain of the professors, primarily
those designated as coordinators of departments, are su-
pervisors. I deal with these contentions seriatum.
A. Jurisdiction over Respondent Under Catholic
Bishop
The Regional Director's Decision and Direction of
Election in Case 24-RC-6383, at footnote 3, dealt direct-
ly with Respondent's claim that, as a religious institution,
it was exempt from the jurisdiction of the Act, as fol-
lows:
The Employer (herein at times called the Univer-
sity), a non-profit corporation duly organized and
existing by virtue of the laws of the Commonwealth
of Puerto Rico is .engaged in the operation of a
postsecondary educational institution in Bayamon,
Puerto Rico. During the past calendar year, which
period is representative of its annual operations gen-
erally, the Employer purchased and caused to be
transported and delivered to its educational institu-
tion goods and materials valued in excess of $50,000
of which goods and materials valued in excess of
$50,000 were transported and delivered to its educa-
tional institution directly from points and places lo-
cated outside the Commonwealth of Puerto Rico.
During the same period, the Employer derived
gross revenues from the operation of its educational
institution in excess of $1 million exclusive of con-
tributions.
The Employer, contrary to Petitioner, contends
that the United States Supreme Court decision of
The Union filed unfair labor practice charges in Cases 24-CA-4348
and 24-CA-4349 on July 14, 1980; in Case 24-CA-4363 on August 8,
1980; in Case 24-CA-4382 on September 12, 1980; and in Case 24-CA-
4508 on May 12, 1981. The proceedings were consolidated and a com-
plaint issued on August 14, 1981. A complaint against the Union in Case
24-CB-1112 was also consolidated in the instant proceeding, but the
matter was settled and severed at the hearing, which was held in Hato
Rey, Puerto Rico, on March 15-19 and 22-23, 1982, and on March 9 and
10, 1983.
Finally, based on the Regional Director's Decision and Direction of
Election, in Case 24-RC-6383, quoted in part infra and which I adopt, I
conclude that Respondent is an employer within the meaning of Sec.
2(2), (6), and (7) of the Act and that the Union is a labor organization
within the meaning of Sec. 2(5) of the Act.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Catholic Bishop of Chicago, 440 U.S. 490 (1979) pre-
cludes the assertion of jurisdiction herein as the Em-
ployer is "controlled" by the Order of the Domini-
can Fathers of Puerto Rico, Inc , and the Catholic
Church, and thus, the assertion of jurisdiction
would constitute an impermissible entanglement be-
tween Government and religion.
When it addressed this same issue in Barber-Scotia
College, 245 NLRB 406, the Board limited the scope
of Catholic Bishop, supra, to "parochial elementary
and secondary schools" and, therein, asserted juris-
diction over a church-related institution of higher
learning. Citing Tilton v. Richardson, 403 U.S. 672
(1972), the Board recognized that, "there are gener-
ally significant differences between the religious as-
pects of church-related institutions of higher learn-
ing and parochial elementary and secondary
schools." Id. at 685. This observation was based on
the Court's findings that college students are less
impressionable and less susceptible to religious in-
doctrination, that the internal discipline inherent in
college courses minimizes the possibility of sectarian
influence, and that a high degree of academic free-
dom often exists at church-related colleges and uni-
versities. Id at 686. The Court further stated that,
"Since religious indoctrination is not a substantial
purpose or activity of these church-related colleges
and universities, there is less likelihood than in pri-
mary and secondary schools that religion will per-
meate the area of secular education." Id. at 687.
The undisputed record evidence reflects that, as
in Barber-Scotia College, supra, the Employer herein,
"closely resembles the institutions on which the Su-
preme Court based its general distinction between
church-related colleges and parochial schools." As
noted above, the Employer is a private, non-profit
college located in Bayamon, Puerto Rico, and was
established in 1961 by Father Mariano Neauwenhiu-
zen Casanova with the approval of the Order of the
Dominican Fathers of Puerto Rico, Inc. (hereafter
the Order). Thereafter, in 1964, the college was in-
corporated by three members of the Order and
transferred to the Order's Seminary in Bayamon,
Reparto Flamingo, Puerto Rico Although financed
during this period with funds from the Order, it is
undisputed that since 1970, the Employer has oper-
ated as a self-sufficient institution, receiving no fi-
nancial assistance from the Order, and independent
of the Catholic Church Moreover, the Roman
Catholic Archdiocese of San Juan in which the col-
lege is located: neither exercises administrative nor
secular control over the institution; does not own
any of the land on which the institution is located
or other property used by the institution; nor does it
contribute any funds to it. Indeed, the highest rank-
ing official in the Catholic Church in San Juan testi-
fied, without contradiction, that as the Employer
does not comply with any of the requisites set forth
by the Catholic Church, the Employer is not a
Catholic university and that it has repeatedly re-
fused to submit to any direction or control by the
Catholic Church.
The Employer relies on its Articles of Incorpora-
tion and By-Laws to support its contention that it is
controlled and operated by the Order. In this
regard, Chapter XIII, Article 54 of the By-Laws
provide that, "ultimate control of the property re-
sides in the Board of Trustees," and Article 57 pro-
vides that, in the event that the university is dis-
solved, its assets will be distributed by said Board to
the Archdiocese of San Juan. In establishing the
Board of Trustees, while the By-Laws and the Arti-
cles of Incorporation are at variance as to the re-
quirement that a particular number of the trustees
be members of the Order, it is undisputed that pres-
ently 6 of the 10 trustees are, in fact, members of
the Order. Further, the record reflects that the
Board of Trustees is empowered, under Chapter V,
Article 13 with, inter alia, the authority "to ratify
appointments for the rank of Professor, submitted
by the University President;" "to approve the
Salary Scales for the University employees;" and
"to review and approve the annual budget submit-
ted by the University President." However, the
University's President testified that in exercising its
broad authority over University matters, including
the hiring, retention or tenure of academic person-
nel, the Board of Directors is not obliged, and
indeed does not consult with or report to the Order.
Finally, the only financial or other assistance ren-
dered by the Order to the University consists of an
interest-free mortgage on certain University proper-
ty.
As set forth in its Articles of Incorporation, the
aim of the Employer is entirely secular; namely, to
provide "a humanistic education at an academic
level," a purpose common to both public or private,
nonsectarian institutions of learning. The Employer
is open to the general public and records for the
fiscal year 1977-78 reveal that it receives direct fed-
eral grants and participates in various federal stu-
dent scholarship and loan programs. Although the
University offers an optional, specialized program
leading to a Bachelor of Arts or a Master's Degree
in religion, the study of the Catholic religion is nei-
ther required nor stressed in its curriculum. While
students are required to take a standard, three credit
hour course in religion, said course is primarily de-
voted to a comparison of various religions, stressing
their common areas of belief. While Mass is said
daily in its chapel, student attendance is not manda-
tory. All decisions concerning the admission of stu-
dents, as well as the hiring of teaching personnel,
are made without the involvement of either the
Catholic Church or the Order; rather, decisions re-
lating to student admissions or the hiring of person-
nel are made solely upon the basis of ability and ex-
perience.
In view of the above, as an independent board of
trustees, and not the Catholic Church or the Order
independently formulate and administer all matters
UNIVERSIDAD CENTRAL DE BAYAMON

1113
relating to either the curriculum and labor relations
coceming [sicj the Employer's faculty, I find that
the Employer is not a "church-operated school,"
College of Notre Dame, 245 NLRB 386, but, rather,
a college of the kind "concerned with providing a
secular education rather than with inculcating par-
ticular religious values." Barber-Scotia College, Inc.,
supra.
Respondent's contentions regarding Catholic Bishop
concern allege facts that occurred after the close of the
representation hearing. The prime allegations are that: (1)
on August 5, 1980, pursuant to a certificate of Catholic
religiosity, Respondent was recognized by and affiliated
with the Sacred Congregation of Catholic Education in
Rome as a Catholic institution and, as such, is subject to
the supervision of the Holy See; (2) that Respondent
now operates the Center for Theological Studies
(CEDOC), 2 which prepares students for the Catholic
priesthood and offers a master's degree in theology; and
(3) that Respondent owns the elementary school La Mi-
lagrosa and the elementary and secondary school Santa
Rita (referred to collectively as the Schools), acquired in
1978 and 1979, respectively, as Catholic schools and as
Christian teaching laboratories for Respondent's students.
In support of all contentions, Respondent alleges an iden-
tity of purpose or close interrelationship between the
University, the Schools, and CEDOC, on the one hand,
and the Catholic Church, on the other hand, because Re-
spondent's president, Father Vincent Van Rooij, is the
highest officer of the Dominican Order of Respondent
(which allegedly includes CEDOC) and of the Schools.
CEDOC began operating in 1980 but, as late as the
last hearing, it really had not taken final shape. Original-
ly, it was intended to be a 4-year program to permit stu-
dents to be ordained; and the program and its curriculum
was devised by priests of the Dominican Order of Puerto
Rico. Then, because the program was not acceptable for
accreditation by the Middle States Association of Col-
leges and Secondary Schools (Middle States), a master's
degree, 2-year program has been developed; but it had
been accredited only on December 27, 1982, and had not
commenced as such. In any event, only 3 students par-
ticipated in CEDOC classes during the 1980-81 school
year; 14 in the 1981-1982; and 24 in 1982-83, out of ap-
proximately 1700-1800 students enrolled at the Universi-
ty. The program is not listed in the University's 1982-84
catalogue.
It is true, however, that its classes are taught on the
university campus, but is is not wholly and structurally
integrated with Respondent. Rather, it has its own board
of directors consisting of seven members of the Domini-
can Order. Five are members of Respondent's larger
board of trustees. With possibly one exception, it hires
and pays for its own professors, 3 although 18 of its pro-
2 This is an acronym for the Spanish "Centro de Estudios Dominicos
del Caribe."
3 Father Teodoro Veerkiunp, a trustee of and professor at both institu-
tions, was granted the status of full-time professor at Respondent, even
though he taught only 9 credits at the University, rather than 15 credits
required by Respondent's faculty contract. I infer that he had the extra
time to teach the CEDOC program and thus was not paid directly by
fessors also teach at the University. 4 Only four of them,
however, were teaching at the University at the tie of
the representation election. CEDOC has its own direc-
tor, Father Felix Struik, who was chosen by CEDOC's
directors and who interviews candidates for admission.
Some of CEDOC's courses parallel those taught in Re-
spondent's undergraduate program designed for seminar-
ians which grants, through Respondent's department of
humanities, a bachelor's degree in philosophy.
The Schools have the same board of trustees and
president as Respondent and have their own director,
who is Respondent's vice president and who is the imme-
diate supervisor of the two principals of the Schools.
Contracts of the Schools' teachers are approved by both
the principal and the director and grant the teachers the
same rights as those enjoyed by the University's profes-
sors. The fmance department of the University adminis-
ters the finances of the Schools and the Schools' checks
must be signed by the principal and an officer of the
University. The director of the physical plant of the Uni-
versity and the director of the Schools oversee the main-
tenance and upkeep of the Schools' grounds and build-
ings, and all construction orders must be approved by
the Schools' director and the University's board of trust-
ees. The Schools' students are entitled to use the Univer-
sity's library and athletic facilities. Two spiritual counsel-
ors at the Schools are part-time professors at the Univer-
sity, three teachers of religion at the Schools are students
at the University (but at least two became students after
they taught at the Schools), the spiritual counselors su-
pervise the three students, and Respondent's director of
humanities supervises both the spiritual counselors and
the student-teachers.
However, each School has its own principal and
budget. Teachers are hired by the respective principal,
with the approval of the director, and are paid by the
Schools. Where academic disciplines of Respondent's de-
partment of education and social work program require
that students engage in practice teaching, some of the
students teach at the Schools, as well as at other institu-
tions. The Schools require their teachers to "keep those
norms of moral behavior which are dictated by the
School and the Catholic Church"; whereas the Universi-
ty imposes no such requirements. Further, although the
University's aim, inter alia, is to provide "a humanistic
education at an academic level," the School's regulations
CEDOC because he was already being paid full salary for a partial
schedule at the University.
4 This finding stems from a stipulation between the parties and I feel
bound by it. I would be remiss, however, if I did not indicate some in-
kling of disbelief. One of the "professors" stipulated as teaching at both
institutions is the president. I was unaware that he taught at the Universi-
ty. Of greater curiosity is an individual, whose work performed at both
institutions is listed of R. Exh. 256 as "Maintenance-Carpentry." The
work of two others is listed as "Vocational Counselling" and "Principal-
Elementary Academy LaMilagrosa." Furthermore, in R. Exhs. 265, 266,
which are primarily memoranda from Francis° Domingo, the Universi-
ty's humanities department director, to Father Felix Struik, CEDOC's di-
rector, setting forth the tentative teaching schedules of faculty members
in the department of humanities so as to avoid a conflict with their re-
sponsibilities in the CEDOC program, Domingo sets forth the schedules
of only four professors. And in an attached untranslated memoranda from
Struik to Domingo setting forth the CEDOC schedule for the spring se-
mester, 1983, only six professors are listed.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
state that admission is open to students who must
Icionfirm and strengthen with their family and matrimo-
nial life the testimony of Christian life that the child
needs for the emotional security that guarantees him the
interest and spiritual and academic progress in the
Catholic School." The operations of the Schools, includ-
ing publication of a manual for parochial schools relating
to curriculum, Catholic doctrine, hiring of faculty and
academic calendar, are supervised by the superintendent
for Catholic studies of the Archdioscese of San Juan, to
whom the Schools' budgets must be submitted. The Uni-
versity's operations are not supervised in this manner
There is no dispute that Respondent has been recog-
nized as a Catholic university, but this recognition has
had no effect on the manner that the University has been
administered or on its curriculum offerings. The recogni-
tion agreement vests on the Bishop of San Juan only the
authority to oversee those aspects of university life and
functions dealing with pastoral or religious matters and is
specific in adding: "This right to oversee is understood
not to extend to matters which usually fall within the
university administration competency." Although the
agreement grants the Bishop the right to attend meetings
of the board of trustees where pastoral matters are going
to be discussed, no such meetings have been held and the
Bishop has not attended any meetings, nor has he been
invited to them or solicited an invitation. Respondent has
continued to receive substantial Federal aid to its pro-
grams and for the benefit of its students.6
I conclude that not one fact has arisen which dictates
that the Regional Director's Decision and Direction of
Election be overturned. CEDOC and the schools are
functionally and administratively independent of Re-
spondent. While it might be argued that the assertion of
jurisdiction over CEDOC and the Schools would consti-
tute an impermissible entanglement between government
and religion, no such entanglement is present in the rela-
tionship of Respondent's professors and the University.
The grant of Catholic affiliation with Respondent has
changed not one aspect of the administration of Re-
spondent, which continues to provide a secular education
to students of all religions.
The Board has continued to hold that the scope of
Catholic Bishop is limited to parochial elementary and
secondary schools. Barber-Scotia College, 245 NLRB 406
(1979); College of Notre Dame, 245 NLRB 386 (1979);
Thiel College, 261 NLRB 580 (1982); Duquesne University
of the Holy Ghost, 261 NLRB 587 (1982); Lewis Universi-
ty, 265 NLRB 1239 (1982). Furthermore, although Re-
spondent is now affiliated with the Catholic Church, that
affiliation is at best minimal and has no application to the
purpose of the University, which is primarily secular.
The University remains an open college, with admission
restricted only by the requirement that applicants have
graduated from high school and have taken college
board examinations.
5 From August 5, 1980, to the date of the last hearing, the University
received $3.75 million in Federal grants, 75 percent of which is student
aid and $425,000 in direct institutional assistance and aid to develop cur-
riculum, provide funds for research, et cetera From October 1, 1977, to
September 30, 1978, Respondent received various Federal grants totaling
$5,042,298
The Catholic Church contributes nothing to the Uni-
versity's budget. There is no requirement that students
take religious courses or engage in worship. In addition,
neither students nor teachers need be Catholic, nor of
the Dominican Order, and the teachers do not have to
commit themselves in writing to support the mission of
the Church. The day-to-day administration of the Uni-
versity has not been interfered with by the Church's rep-
resentatives and, except for CEDOC, the Church ap-
pears to have no interest in the University. Even regard-
ing CEDOC, it may well be that Respondent's profes-
sors, who also teach courses at CEDOC, may be ex-
cluded from the bargaining unit, which specifically ex-
cludes part-time employees.
Furthermore, to permit the status of CEDOC to con-
trol the Board's jurisdiction would constitute Board ap-
proval of the principle that the "tail wags the dog." A
minor portion of students are enrolled in CEDOC's pro-
grams, and the most substantial portion of Respondent's
operation is devoted to nonsecular purposes. Finally, Re-
spondent's posture regarding its religious affiliation is
hardly consistent with its demonstrated, repeated at-
tempts, often successful, to receive Federal grants for its
programs.
Accordingly, I conclude that the Board is not preclud-
ed from taking jurisdiction herein. This accords not only
with Board law but also with decisions of the United
States courts of appeals which have dealt with similar
issues. St. Elizabeth Community Hospital v. NLRB, 708
F.2d 1436 (7th Cir. 1982); NLRB v. St. Louis Christian
Home, 663 F.2d 60 (8th Cir. 1981).6
II. THE MANAGERIAL STATUS OF THE FACULTY
A. The 1978 Changes
Since the University started operations as a self-suffi-
cient institution in 1970, the university senate, with mi-
nority faculty participation, played a substantial role in
recommending university policies. However, effective as
of July 20, 1978, the administration unilaterally amended
the faculty regulations, 7 which substantially altered the
functions of the faculty and increased the powers of the
president. For example, the power to appoint faculty
became vested in the president alone, deleting reference
to the requirement that appointments were to be made
on the recommendation of the academic dean and the
college of deans; no longer would probationary contracts
of 1 year be counted to compute requirements for tenure;
there was eliminated the requirement that, before an aca-
demic load would be assigned to a professor, the faculty
member would have to be consulted, and the new regu-
lations permitted the work load to be assigned at the dis-
cretion of the department director, with the approval of
the academic dean, the structure of faculty evaluations
6 To the extent that Respondent has objected to my rulings at the
hearing refusing to permit it to introduce evidence which was available
at or could have been presented in the representation proceeding and to
the extent that, in its briefs, Respondent makes arguments which also
could have been presented earlier, I have not considered such evidence
or contentions Noranda Aluminum, 268 NLRB No 223 (Feb. 29, 1984)
7 New regulations for the senate were also unilaterally issued on July
12, 1978
UNIVERSIDAD CENTRAL DE BAYAMON 1115
was changed to vest in the president all authority over
the approval of faculty evaluations, criteria, and meth-
ods, which previously had been established by the aca-
demic council and approved by the university senate, or
the president; disciplinary action was vested in an ad hoc
committee appointed by the president, authority which
was earlier that of the committee of faculty standards;
and faculty members were required for the first time to
sign daily attendance sheets and to pay special attention
to reporting hours devoted to "office work to attend to
[their] students." In addition, on December 14, 1978, the
board of trustees issued a clarification of the faculty reg-
ulations that no more than 10 percent of the full-time
faculty of a given department may be granted tenure.
B. The State of the Record; Credibility
Any discussion of the facts in this proceeding must in-
clude a reply to certain statements and arguments con-
tained in Respondent's brief, either because Respondent
misunderstands the nature of the rulings made at hearing
or because Respondent is attempting now to make objec-
tions which were not properly made at trial or to argue
facts which are not sustained by the record. For exam-
ple, I have not considered herein as proof any of Re-
spondent's proffered exhibits which were not admitted
into evidence. Although the receipt of many of Respond-
ent's exhibits in evidence was stipulated by the General
Counsel and the Union, the General Counsel withheld
her consent from a number of them on the grounds of
relevance and authencity. I sustained her objection solely
on the latter ground, preserving for argument the rel-
evance of the proposed exhibits. Respondent was offered
several opportunities to introduce proof of the authentic-
ity of the documents, but rejected the offers.
Respondent claimed that there were new facts which
arose after the representation proceeding and which it
wished to introduce herein, but was forbidden from so
doing. The record will reflect that Respondent was not
denied the right to introduce any new evidence relating
to the managerial status of members of the unit. To the
extent that Respondent relies on an affidavit which ac-
companied its Motion for Summary Judgment, made at
the beginning of the hearing, an affidavit is not a substi-
tute for oral testimony subject to cross-examination. I
have not considered the affidavit and never stated to the
parties that it was proof of anything.
Furthermore, among the more than 400 exhibits re-
ceived in evidence are numerous committee reports and
other documents indicating faculty participation actions,
and recommendations of numerous and various propos-
als. However, there was nothing to indicate that actions
and the recommendations amounted to anything more
than words on pieces of paper. Without proof that the
proposals or recommendations were effected or imple-
mented, I have disregarded the same as lacking any basis
for a finding of managerial status, or, at least, have dis-
cussed why I have not found the faculty functions
claimed by Respondent. Finally, insofar as the 1978 fac-
ulty regulations contain new rules, regulations, and pro-
cedures, I have, in general, not considered Respondent's
proof of various facts by exhibits which preceded Re-
spondent's new faculty regulations, which were put into
effect solely by Respondent's administration without the
advice, contribution, or consent of the faculty. Respond-
ent cannot rely on past practices which have effectively
been rescinded by new written regulations and directives
and new practices.
In reciting the functions of the faculty, I have given
great weight to Respondent's own unilaterally estab-
lished, written rules which provide the powers and
duties possessed by its board of trustees and each of its
component administrators compared with the alleged
managerial functions now claimed to be those of its fac-
ulty members. Even if there were substantial evidence
that its faculty engaged in many actions which would
constitute them as managerial employees—and the mas-
sive number of exhibits simply do not support Respond-
ent's position—where there is contrary documentary
proof, the oral testimony of its department directors or
academic dean should not be accorded the weight urged
by Respondent. For example, to credit Humanities De-
partment Director Domingo, all he was was a conduit
for the faculty's wishes and desires, and all decisions
were made collegially, despite the fact that it was his
duty and no one else's to make the recommendations and
decisions which he averred he did not make.
Further, the testimony of Nelida Melendez, director of
the education department, 8 was, at best, confused, hesi-
tant, unresponsive, and contradictory; oftimes, she stated
one proposition on direct examination, only to recant
completely On cross-examination. Some examples are her
descriptions of when oversubscribed classes may be di-
vided, how the planning committee was instituted, and
the method of placing students for the practice of teach-
ing.
I credit the testimony of neither witness when their
testimony attempts to impeach the written bylaws and
faculty regulations unilaterally imposed by the university
president, where their testimony is unsupported by docu-
mentary evidence, and where their testimony is contra-
dicted by witnesses for the General Counsel. Their at-
tempts to inflate the authority of the faculty and mini-
mize their own would, if credited, lead me to the conclu-
sion that department directors did nothing—they do not
teach—and that they served no useful purpose, other
than to transmit messages. I find that wholly improbable.
Rather, I credit the testimony of Sonia Flores, who,
when she was the director of the education department,
testified that her responsibilities included the selection,
supervision, and evaluation of professors, educational ori-
entation of students, preparation of course schedules, and
the planning of the future of the department.
C. The Structure of the University
The University is governed by a board of directors,
which is also known as the board of trustees. The board,
whose "executive official is the University President,
who shall manage it with the collaboration of a Universi-
ty Senate and other officials," is composed of 11 mem-
8 Domingo and Melendez were directors to two of the University's
four departments, the others being business administration and natural sci-
ences. The directors of the latter two departments did not testify.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bers, and the certificate of incorporation requires that 3
shall be the original 3 incorporators and at least 5 shall
be members of the First Dominican Order residing in
Puerto Rico.° Three "de jure" members, who serve as
trustees as long as they retain their offices of positions,
are the Regional Vicar of the Dominican Fathers of
Puerto Rico, Inc., the Prior of the Convent of Our Lady
of the Rosary in Bayamon, Puerto Rico, and the univer-
sity president; the eight others are elected by majority
vote of the trustees, serve for terms of 3 years, and may
not be reelected for more than three consecutive terms.
Among the duties of the board of trustees are to "be re-
sponsible for the framework, operation and future of the
University . . . designate the University President . . .
review and approve the annual budget submitted by the
University President . . . approve the Salary Scales for
the University employees . . . ratify appointments for
the rank of Professor, submitted by the University Presi-
dent . . . [and] authorize and give the final approval to
all the Regulations that shall be in effect at the Universi-
ty and to approve the Academic Programs."
The duties of the university president, "the Universi-
ty's Chief Executive," are to effectuate the policies
adopted by the board of trustees, "exercise leadership in
the University's internal development . . . preside over
meetings of the University Senate . . . attend and preside
over, with voice and vote, meetings of all the University
groups or organizations . . . appoint all the University
officials and employees . . . dismiss from office . . . of-
ficials or other University officers . . . establish, at his
option, all the committees which he deems necessary
• . . approve or, on the contrary, to invalidate through
his veto the decisions of the University Senate . . . adopt
all the University's curricula, standards, administrative
frameworks, policies and procedures . . . submit the
annual budget before the Board of Trustees . . . [and]
grant tenure as employees of the institution to those who
qualify for it pursuant to institutional standards and regu-
lations."
The university senate is described as "the representa-
tive Body of administration, of the professoriat and of
the student body." It is, however, controlled by the Uni-
versity's administration; for not only does the university
president preside over it as the president of the senate
but, according to the original bylaws, more than one-half
of its membership, excluding the president, are members
of the administration of directors of departments (ex-
cluded from the unit) or are appointed by the president.
The provost, vice president, academic dean, dean of stu-
dents, finance director, the four academic department di-
rectors, and the educational resources director automati-
cally serve as senate members. In addition, the adminis-
trative personnel elects one member and the president
appoints an additional member from the administrative
personnel. Thus, including the president, there are 13
members closely aligned with the president's views. The
remaining 10 members of the senate consist of 4 selected
O However, the bylaws provide that "The Board of Trustees shall
have an absolute majority or [sic] members belonging to the Dominican
Fathers of Puerto Rico, Inc' Six members, not five, would constitute
that absolute majority
by the faculty of each department, 4 elected by the stu-
dents of each department, and 1 elected by the entire
faculty. Yet another is designated by the president from
the faculty.1°
The senate has only the power to "create Senate Com-
mittees . . . to be designated by the University Presi-
dent." Other than that, it may only make recommenda-
tions regarding "requirements for admission, advance-
ment and graduation of students . . . the general ap-
proach to be adopted in the teaching and research pro-
grams pursuant to the University's objectives . . . proce-
dures to develop courses of study . . . [and] the Univer-
sity's curriculum . . . the organizational framework of
each Academic Department [and] . . general policy
pertaining to the appointment, promotion, and tenure,
rank and leave of the professoriat." The president, as
president of the senate, presided at its meetings, gave the
opening statements, set forth the agenda, and defined the
limits of the senate's jurisdiction. In the April 1980 meet-
ing, he explained that the senate was not an executive or
fiscal body, but was legislative, and that the board of
trustees had defined the senate's general areas as: (1) cri-
teria and requirements for admission, promotion, and
graduation of students and for the programs of study and
research according to the objectives of the University;
(2) procedures and requirements for the development of
courses of study and recommendations concerning the
curnculum of the University; (3) recommendations con-
cerning the "organic structure" of each department and
academic division; (4) general policy concerning appoint-
ments, promotions, tenure, ranks, and leaves for the
members of the faculty; (5) recommendations concerning
amendments to the University's bylaws and regulations
and recommendations concerning rules and procedures
in the senate; and (6) creation of permanent or ad hoc
committees. The president made clear, however, that de-
cisions are not final but need the endorsement of the
president and then "many times" of the board of trust-
ees.11
" The percentage of faculty representatives in the senate subsequently
declined An examination of the senate minutes shows that in March
1976, 7 of 19 members were faculty, 8 were administration staff, and 4
were students A change in the composition of the senate was presented
by the president and was approved Thereafter, in December 1976, 10 of
29 were members of the faculty, in November 1977, 10 of 29, in April
1980, 8 of 21 Because the attendance quorum Is two-thirds of the mem-
bers and because decisions require, as a minimum, one-half plus one votes
and, in some cases, two-thirds of those present, it is impossible for the
faculty alone to make a binding decision
" In December 1976, the president reported to the senate, in part, as
follows.
Composition of the Senate Pursuant to the new rules as to the com-
position of the University Senate, approved at the meeting of the 4th
of March 1976, the Senate represents the different areas and interests
of the Institution and of the university community of Universidad
Central de Bayamon, not exactly the interest of a single area or
group Therefore, the Senators should think above all of the good of
the whole Institution as such, also when they may be defending the
Interests of a specific area, which they represent
Functions and Responsibilities The University Senate has several
functions and responsibilities, the most important are the following
three
(1) The Legislative Aspect The University Senate has a legislative
aspect, in respect to the university policy and regulations, academic
Continued
UNIVERSIDAD CENTRAL DE BAYAMON 1117
The president's description, in application, does not
appear to be wholly accurate. The president appointed
all committees, and some of the witnesses testified that,
although they were appointed to committees, the com-
mittees did not meet or met once, to hear what they
were supposed to do, met again. The limitations on the
functions of the senate, leaving aside the veto power of
the president and the board of trustees, are also clearly
demonstrated. At the same April meeting, an administra-
tion representative proposed a definition of the functions
of the chancellor. The president stated that the motion
was unnecessary because it was incumbent on the board
of trustees to do so, and it and the president have al-
ready done so, and the chancellor had already instructed
his subordinates regarding their functions. Another
motion was made to permit the union representative of
unionized administration employees to be an ex officio
member of the senate. The president considered the
motion to be out of order because the senate did not
have jurisdiction over labor-management relations.
In May 1980 a motion was presented that members of
the senate should be aware of the financial structure of
the University and, therefore, should be given financial
statements. The president declared the motion to be out
of order, stating: "The finances, financial statements and
financial transactions are exclusively and directly incum-
bent upon the Board of Trustees and the financial offi-
cials of the University." Another motion was declared
out of order—about needs and ideas for improvement of
the physical plant for athletic activities. The president
held that these were unrelated to the functions and re-
sponsibilities of the senate and were under the direct
control of the executive officials and the board of trust-
ees.
The University's bylaws prescribe that the administra-
tion officials are all appointed by the president. The pro-
vost assists the president in university affairs. The vice
president is responsible for the University's financial and
administrative matters and has jurisdiction over and es-
tablishes the duties of all officials and employees hired
by the University. However, in February 1980, Respond-
ent changed its administrative structure by the appoint-
ment of a chancellor who was placed in charge of the
University's day-to-day academic matters previously dis-
charged by the vice president. The academic dean is the
chief administrator of academic affairs and is responsible
for planning the University's educational activities, for
programs, general promotional policy, standards for tenure, academ-
ic ranks, etc. But always subject to the subsequent approval of the
Board of Trustees.
(2) The Counseling Aspect: The University Senate has a counseling
aspect, to make recommendations to the executive branch, in respect
to candidates to the Presidency of the University, higher Officials,
deans, etc.
(3) The Fiscal Aspect: The University Senate also has, to a certain
point, a fiscal aspect, to maintain control over the application of the
laws approved; for example, ratification of promotions in rank, com-
pliance with requirements for graduation, etc.
Responsibility: It is the responsibility of each senator to seek the
good of the entire Institution as such; he should vote according to
his own judgment and conscience, and not be led by what others
may say or by indications from a group. He should have sufficient
independence in his judgment, always taking into account the good
of the Institution.
putting,the academic standards into practice, for advising
the president on academic policy, and for recommending
faculty appointments to the president. The academic
dean is empowered to authorize or deny the application
to hold any activity of an academic or cultural nature.
The dean of students, on the other hand, is the chief ad-
ministrator of student affairs. He is responsible for plan-
ning student activities and for putting into effect the
standards pertaining to students and is empowered to au-
thorize or deny the application to hold any type of stu-
dent activity.
On the academic side, the bylaws set forth the duties
and powers of the academic department directors, as fol-
lows:
He shall be responsible, under the Academic
Dean's authority, for the general functioning of his
Department.
They shall advise the Academic Dean in relation
with the teacher's recruitment, appointment, promo-
tion, salary increase, and fulfillment of contractual
obligations:
He shall preside over the meetings of his Depart-
ment's professoriat. He shall inform all the members
of the professoriat about his Department's stand-
ards, objectives and procedures.
He shall have authority to designate committees
from his Department's professoriat to study, plan
and recommend programs concerning the educa-
tional, student or teacher's aspect.
He shall submit to the Academic Dean the pro-
posal for the teachers' teaching hours.
He shall prepare an annual report on the func-
tioning, achievements and needs of his Department,
and shall submit it to the Academic Dean forward-
ing a copy to the President.
He shall recommend to the Academic Dean, after
asking for his Faculty's advice, the curriculum of
studies and shall indicate courses that are prerequi-
sites for majoring and those that shall constitute the
necessary sequence to achieve it.
After examining their contents, he shall recom-
mend to the Academic Dean the approval of the
textbooks and materials.
He shall see to it that students taking courses of-
fered by his Department have the opportunity to
seek advice and receive guidance and he shall pro-
vide an adequate program for students whose major
is related to his Department.
He shall send the minutes of the meetings to the
President and to the Academic Dean.
He shall evaluate annually his Department's
members and shall submit the pertinent report to
the Academic Dean.
The faculty consists of professors, associate professors,
assistant professors, and instructors. Appointment of fac-
ulty is made by the president after receiving recommen-
dations from the academic dean. The functions of the
faculty are described as including "teaching classes,
giving and grading examinations, handing in grades on
time, orienting the students, participating actively in the
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
university life, doing research work and seeking his pro-
fessional development, and any others assigned by the
academic dean." Furthermore, the faculty "shall teach its
classes adhering to the University standards and guide-
lines and shall cooperate with their Department Head in
all matters pertaining to its functioning. . . . The facul-
ty's rights, powers, and duties shall be established in their
contract and in the manuals or regulations that the au-
thorized university entities may publish."
On July 20, 1978, 3 days after the effective date of the
revised bylaws, the president issued new faculty regula-
tions, which had been approved by the board of trustees
8 days before, when it had also approved the revised cer-
tificate of incorporation and bylaws. Faculty functions
are listed, as follows:
To carry out the student's teaching process.
To coordinate said process in an interdisciplinary
manner.
To deliberate when summoned to do so by the
Academic Dean and to make recommendations on
the University's educational policy, its curriculum
and teaching methods.
To annually elect its Representatives before the
University Senate and bring its academic positions
and proposals to their consideration.
To exercise initiative in the teaching of their sub-
jects within the institutional standards.
To know, respect and uphold the University's
philosophy, its objectives, purposes and educational
policy.
To fully comply with their contract with the
University
To know and respect the By-laws, regulations
and administrative orders of the University.
To assume responsibility before their Depart-
ment's Head, the Academic Dean and the Universi-
ty President for the performance of their work.
To efficiently participate in the institutional com-
mittees to which they are appointed
In addition, the regulations require that the faculty
shall exercise the functions and obligations stipulated in
their contract and in the regulations and those assigned
to them by their superiors and that the following are
considered to be professional functions of each faculty
member:
To assume responsibility for teaching groups of
students differing in size.
To create and prepare the necessary materials for
the courses he teaches; also the syllabi of their
courses.
To be accessible to the students during office
hours, for guidance and advice.
To develop study projects and external experi-
ences that will contribute to the teaching process of
the students.
To participate in the meetings of the interdiscipli-
nary coordinator groups that his superiors desig-
nate.
To design and perform his students' evaluation
process.
To keep a record of his students' work that in-
cludes the evaluation of their work and other de-
scriptive notations which he deems proper.
To collaborate in the academic orientation of
new Faculty members.
To advise his students about their work and in-
ternal or external academic alternatives and recom-
mend professional help, if necessary.
To prepare and annually file, if he deems it
proper or it is required of him, a self-evaluation
report with the Academic Dean and a copy to the
President.
To annually review and evaluate the contents of
his courses and to eventually submit recommenda-
tions to the Academic Council on possible changes
to them.
To prepare a program for his own professional
betterment.
To devote some time, especially during periods
where there are no classes, to scientific research,
publications, and other intellectual and cultural ac-
tivities in accordance with his academic and intel-
lectual standing
The faculty contracts in use add little to the descrip-
tion of functions set forth above. All are entered into by
the university president with the member of the faculty
and state that the monthly salary was computed by
taking into account the salary scale approved by the
board of trustees and the merits of each case. The teach-
er undertakes to work full time or part time, teach class-
es, and carry out the extracurricular and administrative
schedules which may be assigned to him pursuant to the
faculty regulations.
In addition to the foregoing description of the titles
and duties of administration staff and faculty, there are a
number of other organizations which play some part in
the management of the University. Primitivo Martinez,
the director of the library and former director of the
learning resources center, ' 2 testified that he was a
member of the president's staff, along with the vice
president, director of finance, academic dean, dean of
students, and provost. They would meet with the presi-
dent and advise him on such matters as the planning of
the University, promotions in rank, discharges, and grant
of scholarships. There was also an academic board or
council, which consisted of the academic dean, the direc-
tors of the four departments and other administrative
personnel, but its specific functions were never de-
scribed.
D. Faculty Functions
The above broad institutional guidelines clearly limit
the authority and the limitations of the powers of the
professors. I turn now to findings of fact as to what Re-
spondent's faculty does and does not do, the latter being
particularly in response to Respondent's claims that the
faculty exercises managerial powers.
12 The learning resources center consists of two main divisions, library
services, and educational technology, such as studios and dark rooms
UNIVERSIDAD CENTRAL DE BAYAMON 1119
1. Hiring and firing
Some of the professors who appeared at the hearing
testified that they were interviewed, first by the depart-
ment director, then by the academic dean, and finally by
the president or by the vice president. Others testified
that they were interviewed by one, if not all, of the same
administration personnel, although not in the same order.
There was no participation by any faculty in the process
of hiring of those faculty members and no evidence to
demonstrate that faculty opinion was solicited. Nor does
the record reflect any faculty participation in decisions
to discharge, promote, or demote faculty members.
Indeed, Flores was appointed acting director of the edu-
cation department by the president, then was appointed
director of the department by the president, and then
was demoted to professor in May 1978 by the president.
The discriminatees herein were terminated or were not
reinstated solely by action of the administration.
There have been a few instances where there have
been recommendations made by faculty members, and
the persons recommended by a faculty member have
been hired. No causal connection, however, was shown;
and the record also indicates that faculty support was
sometimes not persuasive. In any event, there is nothing
in any document that demonstrates that faculty approval
is required or that faculty recommendations are sought
by those who ultimately hire personnel. The president
testified that he has the ultimate responsibility for the
hiring of all faculty and other employees. The new uni-
versity regulations, unilaterally issued by the president,
leave to him alone the power to hire, as contrasted with
the earlier regulations which authorized departmental
action. The president appoints all faculty members on
recommendation of the academic dean and department
directors. Terms of contracts for probationary, provision-
al, and permanent appointments are specified in the fac-
ulty regulations. Similarly, the faculty has no power to
hire or recommend for hiring any of the university offi-
cers and administrators, a power that the bylaws leave to
the president and vice president. '3
The evidence of faculty participation in the hiring of
personnel is minimal. Faculty have, in preparing new
programs in social work, set forth job descriptions of the
director of social work and the supervisor of student
practice of social work. Although there appears to be no
faculty action relating to who should be appointed to
these positions, the recommended job descriptions limit-
ed the applicants to those who were able to fulfill the re-
quirements. However, in the case of the director of
social work, that position was filled prior to the faculty's
completion of the social work program and the qualifica-
tions that were used were those of the council on social
work, which is an accrediting institution for social work
programs in the United States and is wholly unrelated to
the University. In June 1977, Sylvia Mulling, the coordi-
nator of the language laboratory, proposed to the direc-
tor of the personnel office, the academic dean, and the
director of the humanities department, the hiring of a
13 There is evidence that faculty participated in recommending the
hiring or firing of administrative personnel in 1972 and 1974. Whatever
powers they may have had then were abrogated in the new bylaws.
part-time employee as a full-time employee because
many students were unable to take full advantage of the
laboratory. That employee was hired.
In 1978, the tenure and rank committee, consisting of a
majority of administration representatives, agreed on the
procedure for the hiring of full-time professors. Howev-
er, those procedures did not include the participation of
any faculty in the process of recommending or hiring of
professors. In June 1981, a unit employee interviewed a
candidate for the position of social work director, and
her favorable recommendation was included in the favor-
able report of the director of the department of human-
ities to the academic dean. 14 The coordinator of the
English department interviewed a candidate for English
teacher in December 1981 and recommended her hire to
the director of the humanities department; but there is no
evidence that the candidate was hired.
Finally, without faculty participation, Chancellor Luis
Roberto Pinero unilaterally issued a memorandum on
May 20, 1980, to the academic dean requiring that no
faculty members would be hired unless they possessed at
least a master's degree. On July 11, 1980, Pinero issued
another memorandum again unilaterally and without fac-
ulty participation, requiring that faculty members,, to be
eligible for hiring, also possess 12 graduate credits in the
courses to be taught.
2. Salaries
In 1976, unit members were polled on whether they
preferred to have salaries fixed, with increases given for
all in the same amount, or whether they wished to have
a system of maximum and minimum salaries, or had no
preference. Another poll was taken in 1978, which cov-
ered not only salary increases, but opinions on numerous
other matters. It can almost be cast as a popularity poll.
Nonetheless, the faculty voted 40-6 to abandon the then
present system of basing salary increases on faculty eval-
uations and to substitute a system of fixed increases for
all based on criteria such as inflation and academic title,
rank, and length of employment of faculty members. The
record does not reflect what action, if any, was taken to
implement the faculty's wishes, but it appears that at
some time the board of trustees prepared salary scales
based on the professor's preparation and degrees held.
The record does not prove that the trustees' action was
the result of the faculty vote. The only other faculty
input into salaries occurred in 1976, when a faculty rep-
resentative moved that the university senate change the
method of payment of part-time teachers from one pay-
ment at the end of each semester to monthly payments.
That change was unanimously approved, with one ab-
stention, and was implemented by the University.
3. Rank and tenure
Respondent contends that rank and tenure decisions
are made or effectively recommended by unit employees,
' 4 Domingo testified that, in hinng the director, he relied on the inter-
view of the coordinator with the applicant. But he admitted that he also
interviewed the applicant twice and that, even if the coordinator had not
concurred, he might have appointed her.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but all except one of its supporting documents predate
the changes of the faculty regulations. Prior to July 20,
1978, the tenure committee was appointed by the presi-
dent and usually consisted of four members, two of
whom were faculty. Their recommendations and reports
almost always were referred to the university senate,
which would either approve or disapprove the report.
But this method of operation had a checkered history.
For example, the senate disapproved tenure for Professor
Zulma Delgado de Raffo, despite the recommended ap-
proval by the committee. However, the president refused
to grant her tenure. The senate overruled the committee
on other occasions; and in 1974, the president granted
tenure to Mulling, without action by the senate.
In any event, on July 20, 1978, this procedure was
changed by the establishment of the new faculty regula-
tions. Under them, the president still designated the
members of the committee, and he designated the direc-
tor of the department in which the professor taught, two
other members of the administration, and one faculty
member." Their recommendations were given directly
to the academic dean, and her recommendation went di-
rectly to the president. Not only was the senate by-
passed, but at least once was the committee itself; for in
the case of the application for tenure of Professor Er-
nesto Valladares, while the committee was examining the
various recommendations, they found out that the presi-
dent had granted tenure some months before, without
having consulted with the committee. In addition, as
noted above, the president's staff also considered promo-
tions in rank. The application for tenure of Professor
Alejandro Apesteguia was given short shift. When his
application came before the staff, all favored the granting
of tenure, but the vice president noted that he was not
qualified and "he is out." And he was.
Finally, the trustees' requirement that not more than
10 percent of the faculty of a department may obtain
tenure effectively meant that the decision to grant tenure
on the basis of the professor's qualifications will rarely
be necessary. On the basis of the record, it cannot be
held that the proof sustains the general proposition that
the unit employees control or effectively recommend
promotions, rank, or tenure of faculty members.
4. Faculty evaluations
Prior to the 1978 regulations, faculty evaluation, • crite-
ria, and methods were to be established by the academic
council and approved by the university senate or the
president. The 1978 regulations changed that vesting in
the president all authority over the approval of faculty
evaluation, criteria, and methods. There is in the record
an evaluation form to be filled out by professors and
which was prepared by a committee of six persons, of
whom two were professors, but there is no evidence that
the forms served any purpose, either changing the status
or ensuring the continued employment of any professor.
Rather, Struik and Flores, both former department direc-
tors, testified that they were in charge of evaluating pro-
fessors. Martinez testified that the president's staff would
16 The faculty member on the committee ruling on granting tenure to
Professor Merril Bowman Waller was a member of the board of trustees.
review the evaluations made by the directors. Further-
more, the faculty appears to have opposed the entire
system of evaluations and specifically requested in Feb-
ruary 1978 that there be no evaluation of faculty by fac-
ulty or department colleagues. It is unclear whether this
request was honored or, if it was not, what effect is
given to the evaluations.
5. Student orientation
Faculty were required to participate in the registration
and orientation of students. Students would prepare their
proposed class schedules and professors would review
them to ensure that the student had taken the prerequi-
site courses, that they were qualified to undertake their
major concentration, and that the selected courses were
being given, and whether there were still openings in the
classes. If the documents from the registrar's office
showed that the class had been filled, the professor
would suggest a substitute course to the student. Faculty
members have also been required to participate and have
participated in a variety of orientation activities to inter-
est prospective students to apply to the University.
On one occasion, professors assigned themselves the
orientation of students who had previously been assigned
to another professor who had assumed another position.
There is also slim evidence that, on occasion, professors
assigned to themselves various students for orientation
and guidance, but it is not clear whether this was on the
direction of the department director.
6. Assignment to courses
Domingo testified that the assignment of professors to
teach specific courses is carried out in three ways. First,
a preliminary schedule is prepared and professors are
asked to indicate what courses they would prefer to
teach and what times and days that they are unavailable
to teach. Sometimes the preliminary schedule is prepared
without any consultation with professors; other times it
is necessary for the department director or coordinator
to discuss with certain professors their availability be-
cause certain ones of them specialize or are proficient in
particular courses. Second, the coordinator would pre-
pare the schedule based on his or her familiarity with the
professors' schedules of courses elsewhere—many profes-
sors were pursuing degree programs for their master's or
doctorate degree—and the areas of each professor's spe-
cialty. Third, the director would ask each professor what
he could teach and the director would prepare the
schedule. Academic Dean Delfina Fernandez testified in
the representation proceeding to yet a fourth method—
the coordinator would ask faculty members what they
desired to teach and what would be a convenient sched-
ule. The coordinator would then give a list to the depart-
ment director, who would assign the academic load and
then obtain approval from the academic dean. In any
event, Respondent contends that, as a result, the faculty
effectively proposes the distribution of teaching loads.
Under the above facts, its contention is not accurate,
because the university-prepared contracts with full-time
professors, the only ones included in the unit, dictate that
professors shall teach 15 credits. No one had any choice
UNIVERSIDAD CENTRAL DE BAYAMON 1121
to vary that term. It appears that assignment of courses
was made pursuant to the individual professor's expertise
and availability, and not faculty decision; that assignment
was ultimately, in any event, within the prerogative of
the department director," subject to the approval of the
academic dean."
Furthermore, although Melendez earlier testified that a
professor had a right, on his own, to divide a class into
sections once more than 50 students enrolled, I find that
such decision had to be made by the director, with the
consent of the office of the registrar. 18 Even if this were
not so, the division of one section into two, because class
size exceeded 50 students is, at best, a ministerial one and
requires neither managerial discretion nor managerial ex-
pertise." Otherwise, faculty members had no authority
to limit class size. The English faculty had recommended
that certain courses be limited in size, but its suggestions
were not followed.20
7. Curriculum
Faculty members prepare and revise courses and rec-
ommend new courses and revision of curriculum, which
have been approved and implemented. Some of these
functions go little beyond the faculty member's decision
of what will be the content of the course entrusted to the
teacher and the preparation of a course syllabus or out-
line. However, there is also interaction between profes-
sors about what they will teach. That is caused by a
number of factors: Certain courses have more than one
section and the sections are taught by more than one
professor. The tests for the basic English, Spanish, and
mathematics courses are jointly prepared by the respec-
16 Bowman testified that it was Respondent's practice that the dean of
the department would assign classes after conferring with each professor.
But he also stated that it was the coordinator who gave professors their
programs and, if the professor was dissatisfied, he would apply to the de-
partment director to change his assignment. Flores stated that one of her
functions as dean of the education department was to assign professors
course schedules which she prepared. However, Maria del Carmen
Curras, as coordinator of the Spanish department, testified at the repre-
sentation hearing that she prepared the schedule for each semester, based
on a course list given by the director and taking into consideration the
professor's preference for scheduling and academic load. She would then
recommend a schedule to the department director, who would decide
whether or not to adopt it. The director would resolve any conflict, if
one arose.
17 In considering whether to grant tenure to Professor Bowman, Do-
mingo, as part of his lengthy recommendation to refuse tenure, cited
Bowman's intemperate refusal to teach the classes to which he had been
assigned, Bowman stating that: "This is the worst distribution of courses
in the world." Domingo stated that he sent Bowman a memorandum ad-
vising that the "academic load that had been assigned to him . . . was his
responsibility." Domingo also testified that he and Struik cooperated in
the assignment of professors to courses of the humanities department and
those of CDEOC. Domingo's report on Bowman and his later testimony
are hardly consistent with Respondent's contention that professors chose
their own classes and schedules.
12 Del Carmen testified that directors determined how many sections
were required for a course.
12 No one testified as to how the rule was enacted pertammg to classes
of 50 students or more. It is clear, however, that the division of a class
added another section which would have to be taught and, if it required
a professor to teach more than 15 credits, additional wages would have
to be paid by Respondent to that professor.
22 The only time that a class was limited was the language laboratory,
which had only 32 cubicles and thus room for only 32 students. But after
some period, even the method of assigning students to the laboratory was
changed and apparently no limit was placed on the number of students.
tive faculty of those courses, although it is unclear who
prompted this decision. In any event, because of that de-
cision, professors desired to ensure that the same material
was being taught, because it would be unfair to the stu-
dents to be tested on material that was not covered. Fur-
thermore, if an introductory course in a subject does not
cover certain fundamentals, students will not be able to
understand other principles in a more advanced course.
Accordingly, professors have met to ensure that course
contents mesh and that the ultimate result of a depart-
ment's course contents are sufficient to satisfy a thorough
education in a major program.
Syllabi of courses have been prepared collegially, by
department; course contents have also been prepared and
revised collegially; catalogue descriptions have been
written; textbooks have been recommended and those
recommendations have been generally followed—all this
with the active participation of professors, but also in the
presence of coordinators and department directors.2'
The record is not precise in indicating the extent of the
department director's participation, 22 except that the syl-
labus is normally given by the professor to the depart-
ment director, who would then make recommendations
about it. In addition, it appears that curriculum changes
must be approved by the academic board, on which the
department directors serve.
There have been other areas where, Respondent con-
tends, faculty have been instrumental in making major
changes in curriculum. The administration in or about
1978 instituted a study concerning the effective method
of competing with other institutions of higher learning in
Puerto Rico. During the study, it was revealed that Re-
spondent required its students to successfully complete
more credits than other universities. The administration
determined to reduce the number of credits in all pro-
grams and fields of studies; and, based on that policy de-
cision, it was primarily the professors whose expertise
was sought in recommending which courses should be
dropped or how course studies should be consolidated to
effectuate the reduction of credits. Certain proposals,
however, were not fully adopted, such as in the social
work program and the elimination of a course on the his-
tory of Puerto Rico.
Other faculty recommendations have not been ap-
proved. For example, in 1979, changes in the contents of
various courses in the education department were ig-
nored. In 1977, Sonia Flores, then dean of the education
department, established a committee of professors which
recommended methods to improve the academic per-
formance of the department's students. The academic
board refused to adopt the recommendations. In 1977
and 1978, another committee was convened to make rec-
ommendations regarding admission into the department.
They selected students by academic score who should be
2i Felix Struik, who was formerly a member of the board of trustees,
the academic dean, and the director of the humanities department, testi-
fied that professors are not required to use the same textbook, even
though it had been recommended by the director; and that professors
may teach in different ways. I so find.
22 Domingo recommended, apparently without faculty participation,
the elimination of the baccalaureate program in history because there
were too few students enrolled.
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admitted. As to those whom they rejected, they recom-
mended assistance that could be offered in order to help
them to make successful reapplications. The academic
board refused to accept the recommendations; and the
rejected applicants were admitted into the department,
because the University traditionally maintained an "open
admissions" policy which would be violated by the im-
position of grade qualifications. Similarly, in the English
program, faculty recommendations of grade levels for re-
tention and graduation were not implemented.
The faculty played a major role in the development of
several programs. In 1975, the United States Congress
enacted the Education of the Handicapped Act, 20
U.S.C. Sec. 1401 et seq., requiring that disabled and
handicapped children be afforded their public schooling
with all other children. As a consequence, education fac-
ulty members recommended changes in curriculum to
ensure that students who were to enter the teaching pro-
fession be familiar with the problems of the handicapped
and disabled and have the necessary skills to deal with
them. A thorough proposal was prepared calling for the
institution of eight or more new courses. However, only
two were approved in the form suggested, and another
one was approved but modified. Although many new
programs had previously been submitted for approval to
the university senate, these were not, Melendez explain-
ing merely that "they were courses needed to be com-
pleted for the certification of teachers in the special edu-
cation area."
As far back as 1974, other kinds of faculty proposals
met with varying success. A proposal to differentiate be-
tween courses of English as a second language from
English as a native language was not accepted, 23 but a
proposal to revise the English curriculum to four levels
was implemented. Another recommendation was to
change assignments of students by the registrar's office
to the appropriate courses based on their college board
examinations to a requirement that students be given an
English placement test. The rationale for the recommen-
dation was that the professors were faced with new stu-
dents who had vast differences of comprehension and
knowledge of English. The placement test was proposed
so that they could be assigned four courses that would
be geared to their knowledge; but what was adopted by
the administration 3 years later was permission to place
the students into one of only two beginning courses:
either prebasic or basic English. The professors were dis-
heartened, because they felt that the test involved much
work with minimal results. The test was given only 1
year, and the faculty lost interest. Finally, the depart-
ment's suggestion of an alternate registration procedure
was not implemented.
About 1979, the English faculty, dissatisfied with the
curriculum of the basic English course the previous
school year, proposed a diagnostic test which was ad-
ministered in 1980. They also evaluated textbooks for the
23 Mulling worked on this project in close cooperation with Vincent
Norelli, the director of Respondent's office of planning and development
He had previously participated in establishing the same program at an-
other university
course and had authority to retain a consultant. Their
recommendations were ultimately not implemented.
There appears throughout to be an attempt by faculty
members to limit entry into programs to students who by
grade-average demonstrated that they could complete
adequately their work Due to the "open admissions"
policy, these grade-average recommendations for com-
mencing or continuing their major fields of study do not
appear to have been approved generally. However,
when they were, Mulling testified that they were avoid-
ed by the simple device of permitting students to repeat
courses with an easier marking professor or on an indi-
vidual study basis and take their better grades. 24 The
students were not required to attend class. Otherwise, at-
tendance of students was monitored by the registrar's
office. Similarly, the faculty recommended grade aver-
ages for graduation, but this recommendation was also
disregarded. However, faculty recommendations for pre-
requisites of courses were generally adopted, as were
recommendations of the courses needed to be completed
for graduation.
In addition, major actions have been taken by the ad-
ministration, not the faculty, which went to the very
heart of the curriculum of the University. Until 1976,
new students were admitted directly into one of the four
departments. The academic council, with the approval of
the president, changed the procedure; and students enter-
ing in the 1977-1978 school year were required to take
basic courses and, then, in their second year, would
apply to the department of their choice. Up to 1979, the
professors utilized the standard curve for grading stu-
dents (i.e., A =90-100). The administration, notwith-
standing faculty opposition, directed that professors
thereafter use a normal distribution curve, the effect
being that a greater percentage of students successfully
completed their courses.
8. Library policies
At least according to practice demonstrated to exist in
1975, it appears that unit members recommend that the
library purchase various books. No showing was made of
the amount of the yearly expenditures for purchase of
books and magazines or of the amount specifically rec-
ommended by the faculty or of the amount of the total
budget of Respondent. It is thus difficult to assess the
impact of the faculty's actions in this regard, assuming,
arguendo, that recommendations for the purchases of
books constitute an inch= of managerial status.25
9. Faculty meetings
Three documents dating from 1973, 1974, and 1975
were introduced by Respondent, which does not unfortu-
24 Mulling testified that this was not the result of faculty action, a
statement which was not rebutted and which I find is truthful I, there-
fore, infer that the device was specifically sanctioned by the administra-
tion, which appears to be the only other entity which could have effected
this technique Mulling testified that she believed that she spoke with the
dean of humanities to protest, but to no avail
25 None of the decisions cited by the parties and my research reveal an
instance where the Board or a court has relied on the recommendation
for the purchase of books to support a finding of managenal status
UNIVERSIDAD CENTRAL DE BAYAMON

1123
nately point out what I am to glean therefrom. Not only
are they relatively ancient but also the most that can be
said is that Respondent's president controlled and domi-
nated one meeting, instructing the faculty what he
wanted done. That faculty members have meetings is
almost a truism. That they adopt policies which are bind-
ing on Respondent, or effectively recommend the same,
is quite another matter. Respondent's submissions on this
matter prove nothing.
•
10. Faculty development and planning
In August 1981, members of the faculty formed an ad
hoc committee on the development of the faculty, met
twice, and issued a report. The record fails to reveal that
the report was adopted, in whole or in part, by Respond-
ent. Respondent contends that the faculty plans the de-
velopment of the University, but any argument that fac-
ulty participation was meaningful was put to rest by
Martinez, who, when discussing the planning committee,
testified: "The decision was made by the presidency. I
imagine it was the president and the vice president be-
cause they were the ones who made the important deci-
sions at all times."
11. Supervisory teachers and students
The curriculum of the department of education re-
quired that the students practice their skills at elementary
and high schools and, at least sometime after 1976, the
faculty indicated its difficulty in placing .the students in
the different schools in Bayamon and the advantage to
the University if it would have a school devoted to its
students for practice. Subsequently, as noted above, the
University purchased Colegio La Milagrosa and Colegio
Santa Rita. However, the record is barren of proof that
it was the department's recommendation that prompted
the University to purchase the schools or another reason.
In any event, in the placement of the students, it was
necessary to obtain assistant teachers to directly oversee
the practice teaching of education students. This was ac-
complished by the department director, who contacted
the superintendent of schools and then the principals of
the schools where the practice was to be conducted. The
principals then 'asked for volunteers. The assistant teach-
ers received originally $50 per semester,- an amount
which was later increased to $80 on the recommendation
of the education department, which found that it was
unable to persuade individuals to become assistant teach-
ers at the lesser amount. The increase was approved by
academic dean and paid by the University. 26 There is
26 I note, however, the ambiguous testimony of Melendez, who stated
that the assistant teachers were not employees of the education depart-
ment, but of the Puerto Rico Department of Education. I understand her
testimony to be that the assistant teacher's primary employment was as a
teacher in the public school system and paid a bonus of $50 or $80 as a
supplement for assisting Respondent's students in their teaching practice.
I reject her testimony that the faculty had the authority to increase the
amount of the bonus The record shows that the University was new, rel-
atively poor, and struggling, constantly seeking new programs to com-
pete with other mstitutions in Puerto Rico. I find it Improbable that the
faculty had any right to incur monetary obligations for Respondent with-
out the consent of the administration, particularly in light of the presi-
dent's position that he and the board of trustees had control of all fiscal
matters.
nothing to demonstrate that the faculty either hired the
assistant teachers or granted the increase. The recom-
mendation was the result not of managerial decision, but
of necessity.
Finally, some students were employed in the physical
education department to do various jobs, such as lending
equipment, cleaning the office, and delivering letters and
messages, for which they were paid. Various professors
certified that the students worked the hours that they
wrote on timecards. There is no evidence that the pro-
fessors hired the students or acted as their supervisors. I
infer that these jobs were given by the University to
needy students as part of a financial aid package, but
cannot infer anything else, particularly whether the fac-
ulty possessed managerial or supervisory functions.
12. Student discipline
The record reveals that faculty members are members
of a student disciplinary committee, along with repre-
sentatives of the administration and the student body.
Through 1977, three faculty members were elected by
the faculty, but the record is not wholly clear what pro-
portion of the total committee they represented or under
what authority they came to serve. In 1978, new student
regulations were issued unilaterally by the administra-
tion. All the committee members were appointed, except
for the president, who automatically served. Two profes-
sors were appointed by the academic dean, two adminis-
tration representatives were appointed by the president,
and one representative of the administration was appoint-
ed by the dean for student affairs. There were also va-
cancies of two representatives of the student council.
Thus, of eight members, only two were members of the
faculty. In addition, there is no evidence that the com-
mittee ever disciplined anyone or did anything other
than meet each year to hear the president explain its
duties.
13. Budget
The science faculty was asked for lists of materials and
equipment which they needed for teaching their courses,
but the record does not demonstrate that they did so.
The physical education coordinator requested various
equipment, such as balls, bats, and bows and arrows, and
Melendez testified that she routinely approved the re-
quest. On the other hand, her testimony was unclear as
to whether the request was made at the first instance by
the faculty, or whether the faculty was guided by the fi-
nance department's preliminary budget, which set forth
amounts recommended for each department. It was
nonetheless clear that, if Melendez determined that a re-
quest was unreasonable, she had the authority to disap-
prove it. Similarly, as stated above, the president openly
declared that all fiscal matters were within the complete
control of him and the board of trustees.
14. Tuitions
The faculty makes no decisions regarding the fees to
be charged to students. Respondent's documentary proof
shows only that in 1972, the president forwarded to the
university senate a proposed letter that he desired to
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
send to parents of students, explaining the need to in-
crease Respondent's fees for the 1972-1973 academic
year. No request for the faculty's approval of the in-
crease was sought, nor does the exhibit reveal that it was
given. All that was sought was the senate's views on the
contents of the letter and, once again, the record is
barren of any response. It cannot be found that unit
members have any input in Respondent's decisions to
raise its charges to students.
15. Faculty association
It is not clear when the faculty association was
formed; the earliest minutes in the record indicate that it
was in existence in early 1975. Nor is it clear who
formed the association, because in the first paragraph of
its regulations there is an indication that someone formed
it, but who is unidentified. 27 The objectives of the asso-
ciation are to "[p]rocure the improvement of the associ-
ates and defend their professional, teaching and cultural
interests [and] [p]romote and cooperate with the identifi-
cation, definition and realization of the philosophy and edu-
cational, cultural and social goals of [the University] and of
education in Puerto Rico," the italicized portion (empha-
sis supplied) partially, albeit ambiguously, supporting Re-
spondent's claim that it was managerial in concept.
Brugueras testified that the faculty association consist-
ed of both teaching and administrative personnel and
that it "tried to establish a type of regulations for the fac-
ulty as such." She recalled that "a series of norms were
recommended from within the faculty along the terms of
the contracts, general performance of the faculty as such,
and in that committee there were administrators, mem-
bers of the faculty, and it was then that the faculty
manual used in the institution was created." This manual
was the faculty regulations which, in the past, had been
prepared by the academic dean and was approved by the
senate and which the president and board of trustees uni-
laterally changed in 1978.
An examination of the record leads me to conclude
that the association was actually formed in the faculty's
self-interest, and that its actions, rather than recommen-
dations to the University, were pleas for relief. Thus, it
proposed and was granted (mostly at cost only to the
faculty, not Respondent) medical, life insurance, and re-
tirement plans. It was interested in obtaining, and was
granted, a faculty parking area. It made proposals for
payment of salaries and vacation pay and showed interest
in establishing a savings and credit cooperative. It was
asked to review the faculty evaluations and expressed
rather strong disagreement with the concept and asked
the academic board . "If the professors are evaluated by
their respective deans, we see no reason why the deans
should not be evaluated by their professors."
27 The first paragraph of the regulations reads
This being the YEAR OF THE FACULTY, as declared by the
President of Bayamon Central University and following the recom-
mendations of the Middle States Associations in relation to more
Faculty participation in the development and organization, funda-
mentally academic, of the University, I consider It appropriate to
form a Faculty Association to aid in the Improvement of the Institu-
tion in general and particularly of the Faculty
16. Additional alleged indicia of managerial status
There are a number of other faculty functions which,
Respondent alleges, evidence managerial status. I have
considered the following and find no basis for and no
need to comment further on Respondent's contentions
that they constitute managerial functions: that faculty
members choose their offices and the colleagues with
whom they wish to share the offices; that faculty mem-
bers' aid was enlisted in preparing and running Chnstmas
parties; 28 that a club organized by a faculty member
published a newspaper; 23 that faculty members, together
with the administration, published a faculty journal, with
articles by faculty members and others; 3 ° and that facul-
ty members participated in a television series which was
paid for by the University and which was directed by
Martinez.
17. Discussion
In Yeshiva University, 4.44 U.S at 686, the Court stated
that the "controlling consideration"
. . . is that the faculty. . . exercise authority which
in any other context unquestionably would be man-
agerial. Their authority in academic matters is abso-
lute. They decide what courses will be offered,
when they will be scheduled, and to whom they
will be taught. They debate and determine teaching
methods, grading, policies, and matriculation stand-
ards. They effectively decide which students will be
admitted, retained, and graduated. On occasion
their views have determined the size of the student
body, the tuition to be charged, and the location of
a school. When one considers the function of a uni-
versity, it is difficult to imagine decisions more
managerial than these. To the extent the industrial
analogy applies, the faculty determines within each
school the product to be produced, the terms upon
which it will be offered, and the customers to be
served. 23
23 The record shows that faculty members also play a pre-
dominant role in faculty hiring, tenure, sabbaticals, termination and
promotion These decisions clearly have both managerial and
supervisory characteristics. Since we do not reach the question of
supervisory status, we need not rely primarily on these features of
faculty authority
The closest that the facts in this proceeding approach
those of Yeshiva University is in the area of course offer-
ings. Unquestionably, the faculty plays a role in what
courses will be taught, but their authority is nowhere as
absolute as that exercised in Yeshiva University. For in-
stance, it was the administration which instructed profes-
28 Even with respect to such minor functions as running Christmas
parties, the president Issued directions as to how the party should be or-
ganized
29 All clubs were required to have constitutions approved by the dean
of students, otherwise, they were not permitted to function Before the
newspaper was distnbuted on campus, it also had to be approved by the
dean of students.
The magazine was directed by six administrators and five profes-
sors
UNIVERSIDAD CENTRAL DE BAYAMON 1125
sors to reduce the course requirements for degrees in
various programs, and it was primarily the administration
that devised the plans and policies for the institution of
new programs, the faculty merely filling in the details of
the programs, some with recommendations for budgets
and hiring of personnel.
An overview of the records reveals that many of the
actions taken by faculty members were the result of the
administration's response to recommendations or criti-
cisms of Middle States so that Respondent could retain
its accreditation. In addition, the development of new
programs, in particular, was the result of Respondent's
desires (1) to continue to attract new students which, of
course, is the basis of its business; and (2) to attract Fed-
eral support for its programs That Respondent's admin-
istration sets the ultimate policy does not necessarily
negate the possibility that the faculty is managerial and
require a holding that they are employees, who are, in
this instance, professional. However, in weighing the to-
tality of what Respondent's professors do, it is certainly
telling that much of their major contribution derives
from the implementation of policy set by the president
and board of trustees and from merely following orders.
Indeed, in one exhibit, a department director bemoaned
the fact that she could not retain any professor to pre-
pare a program, because the professors had sufficient
classroom work and she could not force them to do
other work.
In pursuing the policies of the administration, much of
the work of professors could be characterized as profes-
sional, rather than managerial. For example, the social
work program was based on the standards set forth by
the council on social work. The special education project
was implemented by the education depan ment because it
was required by the new Federal law. The English
courses were devised by the English professors because
they were the ones who understood English. This is not
intended to belittle what was probably the result of some
initiative on the part of the professors, but, hopefully,
puts into better perspective what they were doing.
In addition, I do not intend to detract from functions
of the senate, which was informed of almost everything
that occurred at the University and has discussed, voted
on, and approved major new academic programs leading
to bachelor's degrees and has contributed, through com-
mittees, to policies established by the administration. On
the other hand, before a new curriculum was proposed
to the senate, the president reviewed it; and one of the
exhibits reveals an objection made by a faculty member
that only those programs which were initiated by the ad-
ministration appeared to succeed, whereas faculty-initiat-
ed curriculum proposals appeared to universally fail. The
president did not deny the allegation, but stated that per-
haps the reason was that the proposals were not drafted
well. Furthermore, the implementation of the programs
was normally entrusted to the director of the affected
department, in close collaboration with the academic
dean
In sum, it cannot be fairly concluded that faculty con-
trol over curriculum was absolute. At best, it was partial
and the result of professional knowledge. Other than cur-
riculum, there is little to support Respondent's conten-
tion. Unlike Yeshiva University, professors do not decide
when courses will be scheduled. With the policy of open
admissions, and despite faculty recommendations that
more capable students be enrolled in their respective pro-
grams, it was the administration which decided who
shall be taught, and not the faculty. There is no evidence
that the faculty decided which students will be admitted,
retained, or graduated. The faculty's views have not de-
termined the size of the student body, the tuition to be
charged, the location of a school, or anything related to
the financial affairs of the University, those being the ex-
lusive domain of Respondent's administration. Unlike the
secondary features of faculty authonty noted in footnote
23 of Yeshiva University, quoted above, the faculty plays
no role in hiring, tenure, sabbaticals, termination, and
promotion Finally, even in those areas where the faculty
has contributed, recommendations have frequently been
disregarded.
The decisions of the Board have rested on a case-by-
case analysis of the facts, no two colleges being identical.
Bradford College, 261 NLRB 565 (1982), comes closest to
the facts in this proceeding. Here, like Bradford, govern-
ance of the Respondent was not democratic, but was a
government by the president and the board of trustees.
All major changes in curriculum had to be approved by
them. Faculty salaries are determined by them. Teaching
loads and requirements for teaching were decided by
them and the chancellor. Tenure and rank were subject
to the whim of the president and his staff. The method
of grading was altered over the opposition of faculty.
Faculty recommendations of curriculum were accepted
or rejected, as the president wished. Faculty regulations
were not submitted to, or approved by, the faculty. Fac-
ulty recommendations of requirements for admission into
departments were rejected Faculty participation in all
meaningful actions was a minority participation, with Re-
spondent's administration being firmly in control
Loretto Heights College, 264 NLRB 1107 (1982), is also
instructive. There, the faculty had more powers than are
evidenced here. Nonetheless, the Board found that the
professors were not managerial. Among the factors lead-
ing to that conclusion were that, as here, (1) the partici-
pation of faculty in committee work was merely inciden-
tal to or in addition to their primary functions of teach-
ing, research, and writing; (2) most of the actions taken
in which faculty members participated were recommen-
dations and advices; (3) no faculty member was author-
ized to take any action on his own initiative, which was
final and binding on Respondent; and (4) whereas in Ye-
shiva University, the administrative staff was small and
there was no effective buffer between the faculty and the
administration, here there is a chain of authority from
department directors, to academic dean, to president, and
to board of trustees. Somewhere in this chain are the
chancellor and the president's staff. The department di-
rectors are administrators, not instructors, and they
attend all department meetings and ultimately approve or
reject all faculty actions.
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By consequence, I conclude that the faculty of Re-
spondent is not managerial."
III. THE SUPERVISORY STATUS OF PROFESSORS
In the representation proceeding, the Regional Direc-
tor for Region 24 determined that none of the faculty
members were supervisors within the meaning of Section
2(1) of the Act. He wrote, at footnote 5:
The Employer, contrary to Petitioner, alterna-
tively contends that all faculty members of the Uni-
versity are managerial personnel or supervisory and
therefore not employees within the meaning of the
Act, or, if not found to be managerial employees,
that any unit found appropriate herein should ex-
clude, as supervisory, its coordinators.
In contending that no faculty bargaining unit can
be appropriate because all faculty members—by
virtue of their group participation in the Universi-
ty's Senate Committee—are managerial and/or su-
pervisory and are, thereby, not employees within
the meaning of the Act, the Employer relies upon
1V.L.R.B. v. Yeshiva University, 582 F.2d 686 (CA 2,
1978), wherein the Court of Appeals for the Second
Circuit reversed the Board Order therein (holding
that faculty members are professional employees
within the meaning of the Act), and found that all
the full-time faculty of Yeshiva University were
outside the Act's jurisdiction because they collec-
tively possess certain attributes of supervisors.
While noting that the decision in Yeshiva Universi-
ty is currently pending review in the U.S. Supreme
Court, the undersigned is bound by Board prece-
dent, absent a contrary determination by the U.S.
Supreme Court. Thus, as in Yeshiva University,
supra, the undisputed evidence reflects that "faculty
participation in collegial decision making is on a
collective rather than individual basis, is exercised
in the faculty's own interest rather than 'in the in-
terest of the employer,' and that final authority rests
with the board of trustees." Id at 1054. Further-
more, unlike Yeshiva University where the faculty
committees therein met on a regular and continuing
basis, the uncontradicted evidence established that
the Academic Senate Committee, the Rank and
Tenure Committee and the Plamfication Committee
rarely, if ever, meet as a group, with the last session
of the University Senate held in May 1978. In fact,
the Employer's witness could neither recall if these
latter two committees had met this year nor the
extent of faculty participation on said committees.
Moreover, the University's President testified, with-
out contradiction, that he had veto power over any
programs proposed by the Senate. In view thereof
and in accord with the Board's decision in Yeshiva
31 However, although Respondent has contended that the faculty as a
body is managerial, it has not based its opposition against any particular
professor or group of professors It was its burden to do so, if it desired
Montefiore Hospital & Medical Center, 261 NLRB 569, 572 fn 17 (1982) I
am constrained to call the parties' attention to the fact that Veerkamp is a
member of Respondent's board of trustees and, under the rationale of this
decision, could not be deemed anything but managerial
University, supra, I find that faculty members are
professional employees under the Act. See, North-
eastern University, 218 NLRB 247; University of
Miami, 213 NLRB 634.
Contrary to the Petitioner who would include
the coordinators in the petitioned-for unit, the Em-
ployer would exclude said group as supervisors
within the meaning of the Act. The record reveals
that the University employs 9 faculty coordinators,
4 in the Humanities Department, 4 in the Science
and 1 in the Education Departments, with each co-
ordinator assigned six professors from the full-time,
temporary or part-time faculty, to his or her team.
The coordinators, who are selected by the con-
cerned department chairman, hold meetings with
their team members to transmit information or in-
structions from the department chairman, gather the
students' course selections and submit them to the
chairman, help in the preparation for registration of
students and prepare class schedules for the profes-
sors on their team. In performing this latter duty,
which appears to be their most important function,
the coordinators prepare such schedules from both
a list of approved courses and the teaching schedule
drawn by the department director. More important-
ly, in the event of a scheduling conflict among pro-
fessors the coordinator refers the matter to the de-
partment director for resolution. The coordinators
have regular faculty appointments, carry the same
workload as other full-time or temporary faculty
members, do not receive any extra pay or stipend
because their performance is limited to under
twenty hours a semester. Unlike department chair-
men, whom the parties appear to agree are supervi-
sory personnel, It is undisputed that the coordina-
tors as such have nothing to do with personnel
action affecting the faculty members, do not evalu-
ate the performance of their members or, possess
any other indicia of supervisory authority as defined
in the Act. In these circumstances, I find the coor-
dinators are not supervisors within the meaning of
the Act, and, therefore, shall include them in the
unit. Adelphi University, 195 NLRB 639
The Board declined to grant review of that decision,
and Respondent seeks herein to relitigate that issue.
Board law requires that, unless special circumstances are
shown, or newly discovered evidence appears, not avail-
able at the time of the representation proceeding, there
may be no relitigation in a subsequent 8(a)(5) refusal-to-
bargain proceeding; but in light of the still unsettled
nature of Respondent's claim, 32 I permitted Respondent
to introduce whatever additional evidence it believed
supported its position.
On my review of the record, I conclude that there
were no facts introduced by Respondent which persuade
me that the Regional Director's decision was incorrect
and, on reconsideration, there is no special circumstance
which permits Respondent to renew its previously reject-
32 Yeshiva University did not reach the question of the supervisory
status of the university's professors 444 U S at 686 fn 23
UNIVERSIDAD CENTRAL DE BAYAMON 1127
ed contentions or to relitigate that which it could have
raised earlier. Noranda Aluminum, 268 NLRB No. 223
(Feb. 29, 1984). I thus find no merit in any of Respond-
ent's contentions and fmd that Respondent's professors
are not supervisors within the meaning of Section 2(11)
of the Act.
IV. THE UNFAIR LABOR PRACTICES
The unfair labor practices are clear, simple, and not
disputed, with the exception of one matter. After the
Union was certified, it made numerous requests of Re-
spondent to bargain. Its letters of February 19 and
March 26, 1980, went unanswered. Its letters of May 13,
June 6, and July 2, 1980, were replied to by Respondent,
which stated that it was either studying the matter or
could not determine whether or not to bargain with the
Union, in view of the Supreme Court's decisions in
Catholic Bishop and Yeshiva University. That Respondent
has refused to bargain is implicit in its failure to respond
to the Union's letters or its failure to agree to bargain
with the Union.
Furthermore, as noted above, without bargaining with
and without notice to the Union, Respondent issued a
memorandum on May 20, 1980, which provided that,
commencing with the summer term 1980 and the aca-
demic year 1980-1981, classes would be assigned only to
teachers having a master's degree. No such qualification
had previously existed. This resulted in the discharge of
the following professors, including some who previously
been hired to teach in the summer term: Marcos F.
Reyes Davila, Hector Aponte Luna, Jose Luis Perez,
Pedro Cebollero Perez, and Ramon Antonia Guzman
Rivera.
The only discharge which appears to be contested is
that of Merril Bowman Waller, who was discharged by
the president on June 26, 1980. Earlier that year, on Jan-
uary 31, Bowman was denied tenure by the president,
but the basis for his action was unexplained. However,
the tenure committee based its recommendation that
Bowman not be granted tenure on the following
grounds: (1) that Bowman had not obtained his master's
degree; (2) that Bowman had served a probationary
period of 7 years; (3) that Bowman was only an instruc-
tor and had not obtained the rank of assistant professor,
a requirement for tenure; (4) that the humanities depart-
ment and English major already had at least 10 percent
of its faculty on tenure; and (5) that the University
would not be served well by issuing Bowman tenure,
which would permit him to remain for 10 years. As
noted above, items (1) and (4) were unilaterally promul-
gated without bargaining after Respondent was required
to bargain. Item (2) was not a basis for the denial of
tenure, according to my understanding of the faculty
regulations, and the only possibly legitimate grounds
were items (3) and (5).
However, none of these grounds, even if they warrant-
ed denial of tenure, similarly required dismissal from the
University. Although the faculty regulations state that
"every member of the Faculty shall serve for a proba-
tionary period of not more than seven (7) consecutive
years," the president issued an administrative order on
December 31, 1978, clarifying that the quoted sentence
did "not establish either the choice of granting tenure or
dispensing with the services rendered by the professor"
but left open the option, inter alia, of denying tenure and
issuing another contract. Based on the discharge of other
professors solely because they did not have master's de-
grees in accordance with the unilaterally and illegally
imposed new term and condition of employment issued
by the president, I conclude that the General Counsel
has established a prima facie case that Bowman's dis-
charge was similarly illegally motivated."
The university president did not testify and there is no
basis, whatsoever, to conclude that Respondent had a
valid reason for discharging Bowman. As noted above,
the reasons for denial of tenure are not the equivalent of
the justification for discharge. Indeed, two other profes-
sors, Brugueras and Joseph Morris, were previously
denied tenure but received new contracts of employ-
ment. Accordingly, Respondent has not met its burden
of proof; and I conclude that Bowman was illegally dis-
charged by reason of Respondent's application of a uni-
laterally promulgated rule, in violation of Section 8(a)(5)
and (1) of the Act. Wright Line, 251 NLRB 1083 (1980),
enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982); NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
In addition, Respondent unilaterally issued a second
memorandum on July 11, 1980, that required of teachers
not only a master's degree but also 12 credits in the stud-
ies of any course to which they would be assigned. Jose
Maldonado Beltran and Severino Bermudez Varela were
advised by Respondent on August 25, 1980, that they
would not be teaching any courses during the academic
year because there were no courses available in their
areas of expertise, a decision which was based solely on
the newly promulgated directive. Both had previously
taught the same courses to which they were then being
denied assignment. The discharge of and failure to ap-
point these teachers were clearly the result of newly and
unilaterally initiated and imposed conditions of employ-
ment, in violation of Section 8(a)(5) and (1) of the Act.
Finally, the Union called a strike on September 3,
1980, because of Respondent's continuing refusal to bar-
gain—an unfair labor practice strike. On November 13,
1980, Respondent received the Union's unconditional
offer, dated November 12, 1980, for the strikers to return
to work. However, Respondent refused to reinstate any
of the following strikers, in violation of Section 8(a)(3)
and (1) of the Act: Brunilda Ferrer Silva, Efrain Ayala
Medina, Juan Garcia Marchand, Irma Brugueras La-
borde, Juanita Guzman Morales, Jose R. Colon Rodri-
guez, Maria Lopez Pagan, Ricardo Cruz Garcia, Sylvia
Mulling, Maria Curras Lorenzo, Hortencia Panetto
Ortiz," Marta Ramos Ortiz, Laura Rios Rodriguez,
33 This conclusion is not affected by the testimony of Bowman that he
did, in fact, possess a master's degree and that the university catalogue
listed him as having a master's degree from the University of Bridgeport.
Respondent's documents denying Bowman tenure find that there was no
evidence of such a degree.
34 Respondent contended that Panetto was sick during the strike but
also stipulated that Panetto was on the picket line on more than one oc-
casion. I conclude that she joined the strike.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Evelyn Robles Melendez, and Ernesto Valladares
Pombo.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent's activities set forth in section V, above,
occurring in connection with the operations of Respond-
ent described in section II, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
CONCLUSIONS OF LAW
1. Universidad Central de Bayamon is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Union de Profesores Universitarious (UPU) is a
labor organization within the meaning of Section 2(5) of
the Act.
3. At all times material herein the Union has been and
is the sole and exclusive collective-bargaining representa-
tive of all of Respondent's employees in the following
unit held appropriate for collective bargaining:
All full-time teaching personnel employed by Re-
spondent at its Bayamon, Puerto Rico campus, in-
cluding lecturers, instructors, temporary faculty,
auxillary professors, associate professors, professors
and athletic instructors/coaches; but, excluding all
other employees, all part-time teaching personnel,
maintenance personnel, directors, all administrative,
office clerical employees, guards and all supervisors
as defined in the Act.
5 By refusing since February 19, 1980, to bargain col-
lectively with the Union with regard to wages, hours,
and other terms and conditions of employment of the
employees in the appropriate unit described above, and
by unilaterally, and without bargaining to impasse with
the Union, imposing new requirements that teachers
have master's degrees and possess 12 credits in the stud-
ies of any course to which they would be assigned, Re-
spondent has failed and refused to bargain in good faith
in violation of Section 8(a)(5) and (1) of the Act.
5. By discharging Marcos F. Reyes Davila, Hector
Aponte Luna, Jose Luis Perez, Pedro Cebollero Perez,
Raymon Antonio Guzman Rivera, and Merril Bowman
Waller, Jose Maldonado Beltran, and Sevenneo Bermu-
dez Varela by reason of the application of the newly and
unilaterally instituted terms and conditions of employ-
ment, Respondent violated Section 8(a)(1) of the Act.
6. Commencing on September 3, 1980, the Union en-
gaged in an unfair labor practice strike against Respond-
ent.
7. On November 12, 1980, the Union unconditionally
offered that the strikers would return to work.
8. By refusing to reinstate Brumlda Ferrer Silva,
Efrain Ayala Medina, Juan Garcia Marchand, Irma Bru-
gueras Laborde, Juanita Guzman Morales, Jose R. Colon
Rodriguez, Maria Lopez Pagan, Ricardo Cruz Garcia,
Sylvia Mulling, Maria Curras Lorenzo, Hortencia Pan-
etto Ortiz, Marta Ramos Ortiz, Laura Rios Rodriguez,
Evelyn Robles Melendez, and Ernesto Valladares
Pombo, Respondent has violated Section 8(a)(3) and (1)
of the Act.
9 The above unfair labor practices are unfair labor
practices affecting commerce with the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1), (3), and (5) of the Act, I shall recom-
mend that it cease and desist therefrom, post an appro-
priate notice, and take certain affirmative action designed
to effectuate the purposes and policies of the Act, includ-
ing, on request, to bargain in good faith with the Union,
and to rescind the unilateral changes of terms and condi-
tions of employment set forth above.
In order to ensure that the employees in the appropri-
ate unit will be accorded the services of their selected
bargaining agent for the period provided by law, I shall
recommend that the initial period of certification begin
on the date that Respondent commences to bargain in
good faith with the Union as the recognized bargaining
representative in the appropriate unit. Mar-Jac Poultry
Co., 136 NLRB 785 (1962), Lamar Hotel, 140 NLRB 226,
229 (1962), enfd. 328 F 2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964), Burnett Construction Co., 149
NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir.
1965).
Additionally, because employees were discharged due
to the unilateral institution of new terms and conditions
of employment and because other employees engaged in
an unfair labor practice strike and were denied reemploy-
ment after they unconditionally offered to make them-
selves available for work, I shall recommend that Re-
spondent be ordered to offer Marcos F. Reyes Davila,
Hector Aponte Luna, Jose Luis Perez, Pedro Cebollero
Perez, Ramon Antonio Guzman Rivera, Merril Bowman
Waller, Jose Maldonado Beltran, Sevenno Bermudez
Varela, Brunilda Ferrer Silva, Efrain Ayala Medina,
Juan Garcia Marchand, Irma Brugueras Laborde, Juanita
Guzman Morales, Maria Curras Lorenzo, Hortencia Pan-
etto Ortiz, Mara Ramo Ortiz, Laura Rios Rodriguez,
Evelyn Robles Melendez, and Ernesto Valladares Pombo
immediate and full reinstatement to their former positions
or, if such positions no longer exists, to substantially
equivalent positions, without prejudice to their seniority
or other rights and privilges, dismissing, if necessary, re-
placement employees, and to make them whole for any
loss of earnings they may have suffered by reason of
their discharges, or refusals to reinstate, as the case may
be, by paying them sums of money equal to that which
they normally would have earned absent the discharges
and failure to reinstate, less earnings during such period,
with interest thereon to be computed in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
and Florida Steel Corp., 231 NLRB 651 (1977).35
3 5 See generally Isis Plumbing Co , 138 NLRB 716 (1962) Professors
are frequently offered the opportunity to teach courses over and above
Continued
UNIVERSIDAD CENTRAL DE BAYAMON 1129
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, Universidad Central de Bayamon,
Puerto Rico, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Union de
Profesores Universitarios (UPU) as the exclusive repre-
sentative of its employees in the following appropriate
unit:
All full-time teaching personnel employed by Re-
spondent at its Bayamon, Puerto Rico campus, in-
cluding lecturers, instructors, temporary faculty,
auxillary professors, associate professors, professors
and athletic instructors/coaches; but, excluding all
other employees, all part-time teaching personnel,
maintenance personnel, directors, all administrative,
office clerical employees, guards and all supervisors
as defined in the Act.
(b) Refusing to bargain in good faith with the Union
by unilaterally instituting changes in qualifications for
teaching positions and other changes of terms or condi-
tions of employment, without notifying, consulting, and
bargaining with the Union as exclusive representative of
its employees in the above appropriate unit.
(c) Failing promptly to reinstate employees on an un-
conditional offer to return to work in order to discour-
age them from engaging in concerted and protected ac-
tivities and in order to discourage their membership in
the Union.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) On request of the Union, bargain collectively with
it as the exclusive representative of all of Respondent's
employees in the above appropriate unit and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) On request of the Union, rescind the unilateral
changes of qualifications for teaching positions, to wit,
the requirement that teachers have a master's degree and
possess 12 credits in the studies of any course to which
they would be assigned.
(c) Offer Marcos F. Reyes Davila, Hector Aponte
Luna, Jose Luis Perez, Pedro Cebollero Perez, Ramon
Antonio Guzman Rivera, Merril Bowman Waller, Jose
the 15 credits required in their contract. The backpay liability recom-
mended herein specifically includes backpay for additional courses that
the employees may have been offered to teach.
38 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
Maldonado Beltran, Severino Bermudez Varela, Brunilda
Ferrei Silva, Efrain Ayala Medina, Juan Garcia Mar-
chand, Irma Brugueras Laborde, Juanita Guzman Mo-
rales, Jose R. Colon Rodriguez, Maria Lopez Pagan, Ri-
cardo Cruz Garcia, Sylvia Mulling, Maria Curras Lor-
enzo, Hortencia Panetto Ortiz, Marta Ramos Ortiz,
Laura Rios Rodriguez, Evelyn Robles Melendez, and
Ernesto Valladares Pombo immediate and full reinstate-
ment to their former positions, without prejudice to their
seniority and other rights and privileges, dismissing, if
necessary, replacement employees, and make them whole
for any loss of earnings suffered by reason of the dis-
crimination against them, with interest thereon, to be
computed as described in the remedy section of this deci-
sion.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its institution in Bayamon, Puerto Rico,
copies of the attached notice marked "Appendix."37
Copies of the notice, on forms provided by the Regional
Director for Region 24, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED for the purpose of determin-
ing the duration of the Union's certification as the repre-
sentative of Respondent's employees in the appropriate
unit, the certification period is extended to a date 1 year
from the date Respondent commences to bargain in good
faith with the Union.
37 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bargain with
Union de Profesores Universitarios (UPU) as the exclu-
sive representative of our employees in the following ap-
propriate unit:
All full-time teaching personnel employed by Re-
spondent at its Bayamon, Puerto Rico campus, in-
1130 DECISIONS OF NATI01°,1AI LABOR RELATIONS BOARD
eluding lecturers, instructors, temporary faculty,
auxillary professors, associate professors, professors
and athletic instructors/coaches; but, excluding all
other employees, all part-time teaching personnel,
maintenance personnel, directors, all administrative,
office clerical employees, guards and all supervisors
as defined in the Act.
WE WILL NOT refuse to bargain in good faith with the
Union by unilaterally instituting changes in qualifications
for teaching positions and other changes of terms or con-
ditions of employment, without notifying, consulting, and
bargaining with the Union as exclusive representative of
our employees in the above appropriate unit.
WE WILL NOT fail promptly to reinstate employees
upon an unconditional offer to return to work in order to
discourage them from engaging in concerted and pro-
tected activities and in order to discourage their mem-
bership in the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request of the Union, bargain collective-
ly with it as the exclusive representative of our employ-
ees in the above appropriate unit and, if an understanding
is reached, embody such understanding in a signed agree-
ment.
WE WILL, on request of the Union, rescind the unilat-
eral changes of qualifications for teaching positions, to
wit, the requirement that teachers have a master's degree
and possess 12 credits in the studies of any course to
which they would be assigned.
WE WILL offer Marcos F. Reyes Davila, Hector
Aponte Luna, Jose Luis Perez, Pedro Cebollero Perez,
Ramon Antonio Guzman Rivera, Merril Bowman
Waller, Jose Maldonado Beltran, Severino Bermudez
Varela, Brumlda Ferrer Silva, Efrain Ayala Medina,
Juan Garcia Marchand, Irma Brugueras Laborde, Juanita
Guzman Morales, Jose R. Colon Rodriguez, Maria
Lopez Pagan, Ricardo Cruz Garcia, Sylvia Mulling,
Maria Curras Lorenzo, Hortencia Panetto Ortiz, Marta
Ramos Ortiz, Laura Rios Rodriguez, Evelyn Robles Me-
lendez, and Ernesto Valladares Pombo immediate and
full reinstatement to their former positions, without prej-
udice to their seniority and other nghts and privileges,
dismissing, if necessary, replacement employees, and
make them whole for any loss of earnings suffered by
reason of the discrimination against them.
UNIVERSIDAD CENTRAL DE BAYAMON