Labor Relations and NLRB Decisions: 1996 - Present, YALE UNIVERSITY and GRADUATE EMPLOYEES AND STUDENTS ORGANIZATION (GESO) aw HOTEL EMPLOYEES AND RESTAURANT EMPLOYEES INTERNATIONAL UNION, AFL-CIO., National Labor Relations Board, (Nov 29, 1999)

From Text of Board's Decision

On August 6, 1997, Administrative Law Judge Michael O. Miller issued the attached decision granting the Respondent's motion to dismiss the complaint at the close of the General Counsel's case-in-chief. The General Counsel and the Charging Party filed exceptions with supporting briefs, the Respondent filed an answering brief, and the General Counsel and the Charging Party filed reply briefs.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's findings and conclusions that the General Counsel failed to prove the strike at issue in this case was protected under Section 7 of the Act, but, for the reasons set forth below, to remand this case to the judge for further hearing on whether certain statements violated Section 8(a)(1).

Factual Background

As presently developed, the record establishes the following facts. After many years of organizing in an attempt to obtain recognition from and bargain collectively with Yale University, the members of the Graduate Employees and Students Organization (GESO) voted on December 7, 1995, to conduct a “grade strike” at the end of the fall 1995 [1] semester. Approximately 200 graduate students who were either teaching their own classes or assisting faculty in teaching classes (teaching fellows or TFs) refused to submit their students' final grades for the semester to the University. [2] The striking TFs hoped that their action would cause the University to begin negotiations toward a labor agreement.

The record establishes that in the period between December 7 and the deadlines for grade submissions, [3] striking TFs were repeatedly told by faculty members and administrators that their future teaching, any requested letters of professional recommendation, and perhaps their careers beyond Yale would suffer if they did not submit final grades in a timely fashion. [4] The TFs ended the strike and submitted their grades on January 15, 1996.

Based on the University's response to the grade strike, the General Counsel alleged that the Respondent violated Section 8(a)(1) of the Act by issuing various oral and written threats of reprisals against a number of graduate students for engaging in protected concerted activity. The General Counsel also alleged that the Respondent discriminated against striking TFs in violation of Section 8(a)(3) by disciplining them, removing them from teaching assignments, demoting them, subjecting them to closer supervision, and/or eliminating their classes.

At the close of the General Counsel's case, the Respondent moved to dismiss the complaint, arguing that the General Counsel had failed to show that the grade strike was protected activity, which is an essential element of the General Counsel's case. The judge agreed with the Respondent. The judge found that the grade strike was unprotected because it was a partial strike and because the strikers had misappropriated University property. The judge also rejected the General Counsel's alternative theory that, even if the grade strike is found to be unprotected, certain statements by the University constituted “overbroad” threats because they could reasonably be understood as broadly directed against participation in protected concerted activity in general. Therefore, the judge granted the Respondent's motion to dismiss, and recommended that the Board dismiss the complaint. [5]

A majority of the Board [6] agrees with the judge's findings that the grade strike was a partial strike and that the strikers misappropriated University property. A different majority [7] finds that it is necessary to remand this proceeding to the judge for further hearing on whether certain statements violated Section 8(a)(1).

Standard of Review

In reviewing the Respondent's motion to dismiss the complaint for failure of proof as to an essential element of the General Counsel's case, we are guided by Fed.R.Civ.P. 52(c), which permits the trial judge to enter judgment against a party when the evidence shows that that party has not sustained its burden of proof. [8] Auto Workers, Local 122 (Chrysler Corp.) [ 1978-79 CCH NLRB ¶15,419] 239 NLRB 1108, 1112 (1978). In order to overcome a motion to dismiss at the close of his case-in-chief, the General Counsel must satisfy his duty to establish a prima facie case by presenting evidence sufficient to demonstrate the occurrence of an unfair labor practice. Id. at fn. 3.

1. The partial strike and misappropriation of property issues

a. The partial strike issue

A majority of the Board [9] agrees with the judge's conclusion that the General Counsel failed to make a prima facie showing in his case-in-chief that the TFs engaged in a complete work stoppage that is protected by Section 7 of the Act. We agree with the judge that the TFs' strike was partial, and, thus, unprotected by the Act.

The judge found that the grade strike began on December 7, when the GESO membership voted to conduct the strike, or, at the latest, on December 13, when TFs began to refuse directives to turn in grades or materials necessary to compute grades. Between December 7, 1995, and January 2, 1996, most teaching fellows continued to perform job-related duties, including meeting discussion sessions, proctoring exams, and grading student materials. Even after the original January 2, 1996 grade-submission deadline, the date on which the General Counsel contends the strike began and TFs ceased working, some TFs “were prepared to write, and apparently wrote, letters of evaluations and recommendation for their students,” which the judge found to be a “regular, if not required, aspect of their work.” Clearly, as the judge concluded, from December 7 (or, at the latest, December 13) and continuing beyond January 2, 1996, the TFs were both working and striking. This, the judge found, constituted a classic partial strike, which lies outside the protection of Section 7 of the Act. See Valley City Furniture Co., [1954 CCH NLRB ¶3110.674] 110 NLRB 1589, 1594-1595 (1954), enfd. [ 29 LC ¶69,809] 230 F.2d 947 (6th Cir. 1956).

The judge also based his partial strike conclusion on the testimony of several TFs, as well as a stipulation by the General Counsel, that the intent of the grade strike was solely to withhold grades for the fall 1995 semester and was not to withhold teaching services for the spring 1996 semester. Based on this evidence, the judge concluded that had the grade strike continued into the spring semester, the TFs planned to teach, and probably would have taught, in that semester while still withholding grades for the fall semester. This, too, the judge found, was incompatible with a full strike, and thus constituted conduct outside of the protection of the Act.

We agree with the judge's analysis of the record and his legal conclusion derived therefrom. Based on our review, we believe the judge reasonably determined from the facts developed during the General Counsel's casein-chief that the grade strike commenced, at the latest, on December 13, when TFs began withholding papers and test materials. Further, the judge correctly found that after December 13 the TFs continued to perform other duties, such as meeting with students, grading materials, writing letters of evaluation, and preparing for the next term's classes. Thus, as the judge found, the TFs “sought to bring about a condition that would be neither strike nor work.” Valley City, 110 NLRB at 1595. We also agree with the judge that the TFs planned to continue withholding the fall 1995 grades even after the spring 1996 semester bagan. Since the TFs planned to otherwise perform work in the spring of 1996, they were planning to work and strike at the same time. [10] We, therefore, agree with the judge's finding that it was appropriate to grant the Respondent's motion to dismiss because the General Counsel failed to establish that the TFs action was protected by Section 7 of the Act.

Citing testimony of GESO leaders, our dissenting colleague argues that the record does not support the judge's finding that the strike began in December. We disagree. GESO's research director, Gordon Lafer, referred, on January 17, 1996, to the “five weeks of the grade strike,” thereby clearly indicating that it commenced in December. And GESO's co-chair, Michelle Stephens, testified that the grade strike “was … an action that kind of began from December 7.” Thus, even GESO officers recognized, as did the University, that the strike began on its announcement on December 7.

Our colleague says that the grade strike began on January 2, 1996, the date on which most grades were due. However, it is clear that, from and after December 7 (or at least from and after December 13), there were directives to submit the grades, and such directives were disobeyed. In addition, in some instances, the grades were due a “reasonable time” before January 2, 1996 (see fn. 3, above). These due dates were not met. Thus, it is clear that the grade strike began before January 2, 1996, and that other work was being performed during this period. Further, even after January 2, 1996 (the grade strike commencement date according to our colleague), TFs were performing other work.

b. The misappropriation of property issue

We also agree with the judge's conclusion that the grade strike was unprotected because it involved the withholding of papers and test materials. The papers and test materials were University property that the Respondent needed to attempt continued operations in the absence of the striking TFs. As the judge determined, even if the TFs' strike was not an unprotected partial strike, their conduct was otherwise unprotected because it amounted to misappropriation of University property, analogizing to sit-down strike cases and others where strikers withhold the employer's goods or materials. See, e.g., NLRB v. Fansteel Metallurgical Corp., [ 1 LC ¶17,042] 306 U.S. 240, 256 (1939); and Beacon Upholstery Co., [ 1976-77 CCH NLRB ¶17,627] 226 NLRB 1360, 1366-1367 (1976).

We agree with this conclusion. In refusing to turn over student work that had already been performed during the semester, the striking TFs withheld from their employer essential materials that would have permitted the employer to reassign the struck work—final evaluations—to nonstriking employees. [11] Such conduct prevented the Respondent from effectively maintaining its business, and therefore lies outside of the protection of the Act. Beacon Upholstery, 226 NLRB at 1366-1367.

Our dissenting colleague says that only a few TFs refused to turn over papers and materials. Thus, it is argued that others should not be tainted by this misconduct. However, this misconduct was part and parcel of the grade strike. Indeed, the Union was the repository for some of these papers and materials. Thus, the grade strike, including all of its manifestations, was unprotected, and all who participated therein were unprotected. Our colleague argues that the Union was divided on the issue of whether the TFs should refuse to turn over papers and materials. The matter was not resolved, and the individual TFs were thus left free to decide for themselves whether to do so. Significantly, as noted above, the Union was the repository for those who chose to withhold papers and materials. [12]

c. Conclusion

Because the TFs' grade strike was unprotected, any discrimination that the TFs may have suffered as a result of their participation in the grade strike could not constitute a violation of the Act. Accordingly, we affirm the judge's dismissal of the 8(a)(3) allegations of the complaint.

2. The alleged 8(a)(1) conduct

A majority of the Board [13] disagrees with the judge's conclusion that the General Counsel failed to make a prima facie showing that a violation of Section 8(a)(1) occurred. The General Counsel alleges that the University directed five specific threats—two written and three oral statements made by faculty and administrators—at protected concerted activity that went beyond the scope of the grade strike itself, and that such “overbroad” threats that address otherwise protected activity violate Section 8(a)(1). The judge rejected this contention, finding that each one of the five alleged threats was derived from, and thus directed solely to, the TFs' conduct during the unprotected grade strike. Therefore, the judge found that none of the five statements constitutes a violation of the Act. The judge further found that even if any of the five statements was technically overbroad, i.e., directed to more generalized protected conduct, they were nevertheless de minimis, and therefore not violative of the Act. [14]

The General Counsel and the Charging Party except, arguing that Yale violated the Act by issuing broad warnings to the TFs about engaging in protected activity in general. [15] They also argue that the statements themselves were not de minimis, but were strategically timed, widely disseminated threats that warned about grievous consequences to all graduate students for engaging in protected conduct beyond the grade strike.

The five statements at issue are as follows:

1. Statements made in the December 12, 1995 letter from Deans Applequist and Brodhead to graduate students with teaching responsibilities, including the comment that the “failure to perform the tasks of evaluating student work and reporting grades in a timely fashion is a serious breach of academic responsibility [which] should be expected to bear on the evaluation of the graduate student instructor's performance as a teacher and on the assessment of his or her suitability for teaching appointments during the spring semester.”

2. Statements by members of the French Department faculty, on or about December 12, 1995, concerning the inappropriateness of the union model in the academic setting, and the loss of teaching appointments in the Spring semester.

3. Statements by French Department Director of Graduate Studies Edwin Duvall made at a December 14, 1995, meeting concerning the grade strike and the inappropriateness of unions in the academic setting.

4. Statements made in the December 15, 1995 memo from members of the French Department to graduate students with present or future teaching assignments, including the comment that the “[f]ailure to perform any aspect of a graduate teaching assignment—e.g. meeting all classes, grading and returning all papers, holding regular office hours, submitting final grades, etc.—would (1) be a de facto dereliction of professional duties to our students … and (2) constitute behavior unacceptable anywhere in the profession” that could negatively affect evaluations and jeopardize future teaching assignments.

5. Statements made by Professor Brad Westerfield during a December 18, 1995 meeting concerning the imprudence of a graduate student work stoppage and the negative consequences that could flow from it.

We agree with the judge that the first statement listed above was limited to the grade strike, and thus not violative of the Act. However, contrary to the judge, we conclude that the General Counsel has made a prima facie case on the record before us that the remaining four statements refer to protected conduct other than the grade strike.

By their very nature, statements 2, 3, 4, and 5 encompassed more than just the grade strike. Thus, both the second and third statements broadly declared that a union is not appropriate in academe. The fourth statement is not limited to the grade strike because it referred to the “[f]ailure to perform any aspect of a graduate teaching assignment” as providing grounds for negative evaluations and loss of teaching opportunities. (Emphasis added.) The final statement condemned strike activity by graduate students “under any circumstances.”

In finding that these statements were not unlawful threats, the judge distinguished the instant case from New Fairview Hall Convalescent Home, [ 1973 CCH NLRB ¶25,888] 206 NLRB 688 (1973), enfd. sub nom. Donovan v. NLRB, [ 77 LC ¶11,044] 520 F.2d 1316 (2d Cir. 1975), a case in which the employees engaged in a series of unprotected work stoppages during the course of an organizational campaign. The Board in New Fairview adopted the judge's findings that although the employer lawfully warned employees against participating in the unprotected activity, it violated Section 8(a)(1) when it broadly prohibited employees from engaging in “any strike, work stoppage, slow down, or withholding of any good or services.” 206 NLRB at 747.

The judge attempted to distinguish New Fairview on two grounds. First, he stated that in New Fairview there was an “otherwise protected” union campaign for recognition, while in this case GESO's “entire campaign” consisted of the unprotected grade strike. Second, the judge stated that, unlike in New Fairview, each statement alleged by the General Counsel to be “overbroad” in this case “referred to or was derived from the grade strike.”

We disagree with the judge that the instant case can fairly be distinguished from New Fairview. First, the record does not support the purported distinction that GESO's entire organizational campaign consisted of an unprotected grade strike. As the judge himself found, GESO has for many years been engaged in organizational activities among the teaching fellows that are unrelated to the grade strike. [16] Second, the facts of New Fairview show that the statement found to be overbroad in that case similarly “derived from” the employees' unprotected activity. 206 NLRB at 746-747. Thus, neither of the two grounds given by the judge for distinguishing New Fairview is persuasive.

We find that the General Counsel has satisfied his burden to establish a prima facie case that four of these statements enumerated above violated Section 8(a)(1). We shall therefore remand this case for the Respondent to present its defense. Further, we grant the General Counsel's motion to amend the complaint to specifically allege the alternative theory that, even though the grade strike itself is unprotected by the Act, at least some of the above statements are “overbroad threats” because they could reasonably be understood to be directed against participation in protected concerted activity in general. The Respondent is not prejudiced by our granting of the General Counsel's motion because it will have the opportunity at the reopened hearing to fully present its defense to the issues raised by the complaint amendment. See Section 102.17 of the Board's Rules.

In his supplemental decision, we direct that the judge provide the Board with findings of fact and conclusions of law on the issue of the employee status of the TFs under Section 2(3) of the Act, regardless of his ultimate findings on the issue of whether the Respondent violated Section 8(a)(1) of the Act.

In sum, we remand this case to the judge for further hearing consistent with this decision, and direct that the Respondent be given the opportunity to present evidence to refute the General Counsel's prima facie case.

[Partial Dissent]

Member Liebman, dissenting in part: Contrary to my colleagues, I would find, for the reasons set forth below, that the General Counsel established a prima facie case that the teaching fellows (TFs) were engaged in a strike that was protected by Sections 7 and 13 of the National Labor Relations Act. [17] In my view, the strike did not lose the protections of the Act on either of the grounds asserted by the majority: the strike was not “partial,” and it did not involve the widespread withholding of University property. Accordingly, I must dissent from the majority's dismissal of the 8(a)(3) allegations of the complaint that the Respondent unlawfully discriminated against the TFs for engaging in protected strike activity.

With respect to the key issue of when the strike began, I believe the preponderance of the evidence on the record at the close of the General Counsel's case shows the following. The striking TFs established a time certain beyond which no TF work would be performed, i.e., the date on which grades were due (January 2, 1996, in the case of graduate instructors, or a reasonable time before January 2, 1996, in the case of graduate teaching assistants). Prior to the grade submission deadline, TFs, as a group, completed all other teaching functions, such as meeting classes and discussion sections, proctoring exams, and grading papers. When the strike began, the TFs refused to perform only the last remaining chore of their assigned tasks—that of evaluating student materials and submitting grades to the designated authority. Thus, the record demonstrates that the grade strike consisted of TFs withholding the final grades assigned to students enrolled in their courses when the grades were due to the registrar, and that TFs, as a group, did not continue to perform other work after that point. In other words, TFs were not working and striking simultaneously.

Testimony of GESO leaders and other TFs clearly supports this conclusion. The strike resolution passed at the December 7, 1995 meeting stated that the TFs are to “withhold [their] grades” until the University begins negotiating a labor agreement, thus indicating that TFs planned to work up until the grade submission deadline and then begin a total strike at that point. Robin Brown, GESO chairperson, testified that the scope of the strike was as stated in the resolution—TFs were to strike by withholding final grades from the University at the end of the term, essentially refusing to perform the labor associated with the last act of the teaching function. Brown testified that, in accordance with the strike resolution, her participation in the strike involved completing her teaching responsibilities and then striking at the time her grades were due by withholding them from the registrar. Brown underscored the timing of the actual cessation of work in her statement to the press, which affirmed that “grades are not due to the Registrar until January 2nd [1996, and, as a result, the] administration has almost a full month to begin negotiations before the grade strike will affect transcripts and we are confident that the issue can be resolved in a reasonable and cooperative fashion before this date.” Similarly, Andrew Rich and Michele Stephens, both graduate students and GESO representatives who spoke to the GESO membership on December 7, 1995, in support of the strike resolution, stated at that meeting that the grade strike entailed completion of the TFs' work for the semester followed by the withholding of final grades. Numerous other graduate students testified that their individual participation in the grade strike began by withholding their final grades, and did not involve withholding of other services prior to the grade submission deadline.

Contrary to the judge's finding, which the majority adopts, the December 7 GESO membership strike resolution did not constitute an “announce[ment]” that the grade strike was to begin that day. Rather, the strike resolution announced GESO's intent to strike at a future time certain—i. e., when grades were due—should their demands for recognition and bargaining not be met by the University. Like many strike resolutions, GESO gave advance notice of a strike deadline, thereby giving the University time to take action to avert a strike.

The majority adopts the judge's finding that “even after the [grade submission] deadline, the [TFs] were prepared to write, and apparently wrote, letters of evaluations and recommendation for their students they taught in the first semester.” I can find no testimony to support this finding. Only one student testified that she may have written recommendations after January 2, 1996. Even assuming writing letters of recommendation could convert the TFs' activity to a partial strike, such testimony is insufficient to demonstrate that TFs as a group wrote letters of recommendation while on strike.

Similarly, I reject the majority's reliance on the TFs' stated plans to teach in the spring semester to support the conclusion that the grade strike was unprotected conduct. Evidence regarding the TFs' unexecuted future plans cannot be relied on to determine whether actual, transpired conduct is protected. See, e.g., Hotel Holiday Inn de Isla Verde, 259 NLRB 496, 500-501 (1981) (employees' conduct protected despite union's plan to stage unprotected sit-down strike, because plan for unprotected activity was forestalled), enfd. sub nom. Isla Verde Hotel Corp., 702 F.2d 268 (1st Cir. 1983). We need not, on this record, address the issue whether withholding one semester's grades while teaching in the subsequent semester would be protected activity. [18] That scenario simply did not occur in this case, as the TFs ended the grade strike before any teaching began in the spring semester.

Nor does the action of a few individual graduate students who refused directives to return papers and test materials to the University in December support a finding that the strike commenced in December. While certain students' refusal to return papers and exams to the University may represent misconduct, I do not believe the actions were coordinated or so widespread as to negate the overwhelming documentary and testimonial evidence that the strike did not commence until grades were due. See, e. g., City Dodge Center, 289 NLRB 194 fn. 2 (1988) (misconduct of a few employees does not convert the group's protected concerted activity into unprotected action), enfd. sub nom. Roseville Dodge, Inc. v. NLRB, 882 F.2d 1355 (8th Cir. 1989).

My colleagues suggest that the misconduct of a few individuals was “part and parcel” of the grade strike, and that such misconduct was sanctioned by GESO, in whose office some of the withheld papers and test materials were stored. I disagree.

The record shows that the grade strike itself was planned over a period of at least several weeks, if not months, but that the guidelines for participating in it were loosely set by GESO's leaders. Robin Brown, GESO's chairperson, testified that GESO's coordinating committee discussed broad parameters of how the grade strike would unfold, but did not reach consensus on what striking TFs should do with the papers and exams on which the final course grades were based, and that they made no formal recommendation on this subject to the membership at the December 7 meeting. Two speakers at that meeting advised the strikers of two different courses of conduct. In her speech to the membership, Michelle Stephens, co-chair of GESO, advised against the withholding of tests and papers, arguing that she did not want to get into a “struggle” with the faculty over their physical custody, particularly because the strike would achieve a significant impact if the faculty performed the final grading themselves. Conversely, Andrew Rich, a GESO representative from the Political Science Department, advised students to retain the students' papers and test materials. Brown testified that, as a result, several students turned over tests and papers to the GESO office, but that GESO's policy was to return those materials to the faculty member if such a request was made.

In sum, the record does not show that, as an institution, GESO—which made policy by consensus decisionmaking—sanctioned the withholding of student tests and papers. GESO's coordinating committee and its co-chairs recommended against their withholding, and GESO's policy was to return them upon request. Only one GESO representative recommended the course of conduct on which my colleagues rely to find the grade strike unprotected. Considering the record as a whole, this one recommendation, on which there was no consensus among GESO's leaders, does not constitute substantial evidence supporting the majority's finding that the grade strike falls outside the protection of the Act.

Finally, I do not agree with my colleagues that the evidence showing that a few TFs withheld papers and test materials warrants a finding that the grade strike was unprotected. The majority adopts the judge's findings that the grade strike began in December, that the withholding of papers and test materials in December interfered with the work of the course instructors and University administrators (because Yale was unable to substitute others to perform the grading function), and that the withholding of these documents was a misappropriation of University property.

As stated above, I would find that the grade strike began only when final grades were due. Just as I rejected the majority's reliance on the withholding of papers and test materials by a handful of students as showing that the TFs as a group began striking in December, so, too, do I believe that such individual misconduct cannot, without more substantial evidence, be attributed to the strikers as a group and, therefore, cannot transform an otherwise lawful strike into unprotected conduct.

For the reasons set out above, I believe that my colleagues err in finding the grade strike to be unprotected. I, therefore, would remand this case to the judge for further hearing on the issue of whether the Respondent violated Section 8(a)(3) of the Act by discriminating against the TFs for engaging in protected concerted activity.