Stephens Institute v. N.L.R.B., O

• Decision Date: 05 May 1980
• Docket Number: No. O,79-7215,Nos. 79-7132,O,s. 79-7132
• Citation: 620 F.2d 720
• Parties: 104 L.R.R.M. (BNA) 2524, 88 Lab.Cas. P 12,051 STEPHENS INSTITUTE, a corporation d/b/a Academy of Art College, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and California Federation of Art Teachers, Localne, Intervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 720

620 F.2d 720

104 L.R.R.M. (BNA) 2524, 88 Lab.Cas. P 12,051

STEPHENS INSTITUTE, a corporation d/b/a Academy of Art

College, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and California Federation of Art Teachers, Local No. One, Intervenor.

Nos. 79-7132, 79-7215.

United States Court of Appeals, Ninth Circuit.

May 5, 1980.

Rehearing Denied June 25, 1980.

Benjamin H. Parkinson, Jr., Ackerman, Johnston, Norberg & Parkinson, San Francisco, Cal., David J. Salniker, Berkeley, Cal., for petitioner.

Andrew Tranovich, Washington, D. C., argued for respondent; Elliott Moore, Ruth E. Peters, N. L. R. B., Washington, D. C., on brief.

On Petition for Review and Cross-Applications for Enforcement of an Order of the National Labor Relations Board.

Before KILKENNY and SCHROEDER, Circuit Judges, and CAMPBELL, Senior District Judge. ^*

CAMPBELL, Senior District Judge:

In two separate petitions, the Board found that the Stephens Institute (the Academy) had engaged in unfair labor practices in violation of Sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 151, et seq. The Board seeks enforcement of its orders issued pursuant to those findings. The Academy challenges the Board's exercise of jurisdiction in both proceedings, and appeals the substantive finding of unfair labor practices in the second proceeding (Case No. 79-7215). We conclude that the Board properly exercised jurisdiction in both proceedings, and grant enforcement of both orders.

The history of this case is one of a long and bitter dispute between the Academy and its instructors. The Academy is a corporation. The principal stockholder and President is Richard A. Stephens. Stephens is also the principal administrative officer, and is responsible for the ultimate decision making. Stephens' principal assistants are Donald Haight, Vice President and Registrar, Jan Schroeder and Michael Ryan. The school employs approximately 58 instructors teaching in various art departments. Most departments have a department chairman, although the responsibilities of department chairmen have never been very clearly defined. Instructors are paid on the basis of the number of classes per week they teach, and only department chairmen receive an annual salary.

In the fall of 1976 approximately 1,100 students were enrolled in the school, about 400 to 450 of which were full time. In mid-November of 1976, a group of students drafted a petition seeking better wages and benefits for faculty members. Upon learning of this petition, Stephens invited Joseph Doyle, co-chairman of the Fine Arts Department, into his office to discuss the demands. Subsequently, a meeting was held which Stephens, Doyle, Paul Pratchenko, the other co-chairman of the Fine Arts Department, Schroeder and several other persons attended. Subsequent meetings were also held in December, during which the demands for better salary were discussed. During these meetings, Stephens threatened Doyle and Pratchenko with dismissal and on one occasion stated that they "will never teach again" at the Academy. On December 22, 1976, Stephens informed Doyle that he was being offered only one class for the following semester. The reason given was that Doyle's three advanced classes had not filled. At that meeting Doyle blamed the problem of unfilled advanced classes on the registration procedures, and accused Stephens of trying to punish him for union activity. At the time, Doyle was being paid $700 per month for teaching four classes. Shortly thereafter, Doyle called to accept the offer to teach one class, at which time he was informed that the offer had been withdrawn, because he was "hostile towards the Administration."

While these meetings with Stephens were ongoing, Doyle and Pratchenko also met with faculty members to discuss the possibility of organizing a union. In early January of 1977, thirteen faculty members organized the California Federation of Art Teachers, Local No. 1 (the Union). Shortly thereafter, the Union contacted Stephens requesting a meeting. A meeting was held on January 13, 1977 in Stephens' office. Those present included Ernest Posey, business representative for the Union, Joe Rees, a sculpture teacher, and also a member of the Union Negotiating Committee, Elizabeth Sher, also a member of that committee, and David Sokol, the Union's attorney. The Academy was represented by Stephens, Haight, Ryan and two attorneys. At that meeting the Union representatives stated that they were preparing a proposed contract to submit to Stephens for consideration. The proposed contract was submitted on January 17, 1977.

Upon receiving the proposed contract, Stephens began contacting the individual faculty members who had participated in the formation of the Union and offered each of them a separate contract. When faculty members such as Rees indicated a reluctance to sign the contract while negotiations with the Union were ongoing, Stephens responded that he would "just as soon put a lock on the door than accept the Union contract." When instructors declined to sign Stephens' contract, they were handed their letter of resignation to sign. Several Union members signed the Academy's contract, and those that did not sign were dismissed.

As a response to Stephens' actions during January of 1977, the Union members voted unanimously to go on strike. On January 20, 1977, the strike began, and a picket line was formed at the Academy. At about that time Posey went to see Stephens with a letter listing the Union's proposed changes to Stephens' contract, at which point Stephens told Posey that he would fight the Union all the way and close half the school if necessary. Stephens also threatened Posey with physical violence during that meeting.

While the strike was in progress, Stephens approached several of the strikers and offered to pay them higher salaries if they would leave the Union and return to work. No member of the Union accepted Stephens' offer. In Late January of 1977 Stephens fired all of the striking instructors. On February 16, 1977, the strikers submitted an unconditional offer to return to work, which was refused.

Apparently in an effort to avoid further labor unrest, Stephens and several of the non-union members organized a "Faculty Senate" in February of 1977. The Administration and the "Faculty Senate" met and established a commitment providing for faculty wages and benefits, faculty review, faculty leave, hiring and termination of members, grievance procedures, class size and other working conditions.

After members' repeated offers to return to work were declined, the Union filed a complaint with the Board's Regional Office. The complaint charged the Academy with violation of the National Labor Relations Act, Section 8(a)(1), Interference with Union Activity, Section 8(a)(3), Discriminatory Discharge, and 8(a)(5), Refusal to Bargain. The Refusal to Bargain charge was subsequently deleted. The Academy answered the charges by denying any wrongdoing and contending that it lacked the requisite annual gross revenues to become subject to the Board's jurisdiction.

At a hearing commenced before Administrative Law Judge Stevens in August of 1977, counsel for the Board's General Counsel announced that certain issues would be eliminated from the proceeding pursuant to a settlement agreement. The General Counsel added the caveat that the deletion of charges was subject to fulfillment of the terms of the settlement, and without prejudice to reinstate those charges in the event Stephens failed to reinstate the strikers. The settlement was approved, and the hearing then proceeded on the remaining issues, which involved reinstatement and back pay as to six instructors which the Academy considered supervisors.

The settlement agreement provided that sixteen of the strikers would be reinstated with back pay; that the remaining six strikers, whose status was still at issue, would be temporarily reinstated subject to the A.L.J.'s ultimate ruling; that the Union would withdraw its request for a bargaining order; that a recognition election would be held in the Fall of 1977; and that the parties would enter into stipulations of facts as to service of the charges; the Union's status as a labor organization; the status of certain Academy officials as agents; and the Board's jurisdiction over the Academy.

The stipulation of facts was contained in a separate document from the settlement. While the settlement agreement was approved by the Board's Regional Director, the Board was not a party to the stipulation.

When the settlement agreement was reached in August 1977, the striking instructors were offered an opportunity to return to teach classes in the fall semester. On September 2, 1977, the Friday before all classes were to commence, Registrar Haight checked registration figures for classes which had not filled up to minimum size. While several of the courses with below minimum enrollment were retained, 34 of the classes were cancelled. This resulted in 10 strikers and 1 non-striker losing all of their classes for failure to meet minimum enrollment standards. Evidence was later introduced to show that the Academy filled certain classes taught by non-union instructors by taking students from overly-enrolled classes and placing them in the under-enrolled sections. Evidence was introduced to show that under-enrolled classes taught by Union instructors were not given the full benefit of the late registration period in order to meet minimum enrollment requirements. Also, there was evidence which tended to show that non-union instructors whose classes did not fill were retained and reassigned, while the Union instructors were simply terminated.

As a result of these events, the Union filed new unfair labor practice charges, and the Regional Director withdrew approval of the settlement. Thereupon, the General Counsel for the Board moved to reopen the record, to amend the complaint, and...