CORNELL UNIVERSITY 329 Cornell University and Association of Cornell Em- ployers—Libraries Cornell University, Petitioner and Staff Association of the Metropolitan District Office, School of In- dustrial and Labor Relations, Cornell University Cornell University, Petitioner and Association of Cornell Employers—Libraries Cornell University, Petitioner and Civil Service Em- ployees Association, Inc. Syracuse University, Petitioner and Service Em- ployees International Union, Local 200, AFL-CIO. Cases 3-RC-4768, 3-RM-440, 34RM-441, 3-RM-442, and 3-RM-433 June 12, 1970 DECISION, ORDER, AND DIRECTION OF ELECTION By MeMBers FANNING, MCCULLOCH, BROWN, AND JENKINS Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, as amended, a consolidated hearing was held before Hearing Of- ficer John W. Irving of the National Labor Rela- tions Board. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedures, Series 8, as amended, by direction of the Regional Director for Region 3, these cases Were transferred to the Board for decision. Briefs were filed by the Employers, the Association of Comell Employees—Libraries, Civil Service Em- ployees Association, Inc., and Service Employees International Union, AFL-CIO, in behalf of Service Employees International Union, Local 200, AFL-CIO." The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed, On the entire record in this case, the Board finds: 1. Cornell University and Syracuse University, the Employers herein, have filed representation Petitions seeking elections to determine the bar- "With the Board's content the following partes submitted amici curse Teoria ie oar aneron of recto: AFL-C1, Boon sivenity, Colgate. University, Dowling Coleg, Fordham Universit Haniton Clee, Lsel Just College, Maria Regina Colege, New York Usivenity, Rochester Institute of Technology, St. John Fier College [eit of Rochester, Wheaton College, Yate Unversity, NAACP Leg ve and Educational Fund, ne 183 NLRB No. 41 gaining representatives of certain of their nonacademic employees. Association of Cornell Employees—Libraries (herein called ACE) has also filed a petition seeking to represent a group of library employees. The threshold question is whether the Board has or should assert jurisdiction over nonprofit colleges and universities in view of the 1951 decision in the Columbia University case In that case, the Board decided that it would not effectuate the policies of the Act “‘to assert its jurisdiction over a nonprofit, ‘educational institution where the activities involved are noncommercial in nature and intimately con- nected with charitable and educational activities of the institution. Al the petitioners urge the Board to overrule the Columbia University case. Syracuse and Cornell argue that the operations and activities of educa- tional institutions as a class, and of Cornell and Syracuse in particular, have an overwhelming im- pact and effect on interstate commerce, that the ‘Operations of universities and colleges have increas- ingly become matters of Federal interest, and that this interest coupled with the failure of the States adequately to recognize and legislate for labor rela- tions affecting these institutions and their em- ployees now justifies the Board in asserting jurisdic- tion. In support of their contention as to the impact of the operations of Syracuse and Cornell, as well as of educational institutions as a class, upon in- terstate commerce, the Employers have presented extensive documentation of financial activities which are set forth hereinafter. ‘Syracuse University Syracuse University is the largest employer in the city of Syracuse, New York. It has about 3,500 ‘academic and nonacademic employees. The cur- rent student population is 21,000, of whom 4,000 to 5,000 are from out-of-State, and 900 from out- of-country. In addition to facilities in New York State, Syracuse has facilities in South America, Holland, Italy, and France. "The purchasing department of the University makes annual purchases approximating $8 million of which more than $5 million originate outside the State of New York. In addition, the University “Technology, Cafornia State Colleges, Federation of Independent inci Fem ork Sats Labor Relations Board, Oregon Independent Cole NStclaiom. Southern Methodut University, Texas Christian Conc: Naren of Miami and Univers ofthe Poife. Alo the Nc eaeaton af Sate Later Relations Agencies psd ressation a ree aes requesting the Board o contin Ks exemption fr private igs and universes ecto Cohiba Unveraty 97 NLR sata?| 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Book Store and Food Service annually make out- of-State purchases valued at more than $2 million. ‘The University operates a theatre which annually makes out-of State purchases valued at about $300,000. The University realizes $500,000 an- nally from the sale of tickets for football games, ‘and $250,000 from the sale of television and radio rights os hhas an annual operating budget of $66 nillion. It has an investment portfolio valued at $36 rillion, which includes stockholdings in industrial firms, banks, and utilities. It also is the sole stockholder in a country club whose employees are represented by a union certified by the Board. Further, it has real estate investments outside New York State valued at $750,000. Finally, Syracuse is a party to numerous spon- sored research contracts with such Federal agencies as the Department of Defense, National Aeronau- tics and Space Administration, Institute of Health, and Department of Labor and such private spon sors as the Ford and Camegie foundations. The an- ‘nual value of these research contracts is in excess of $13 million. Cornell University Cornell University is the largest employer i Tompkins County, New York. It has ae 8,000 employees in New York State, of whom 2,700 are academic and 5,700 nonacademic. Cor. nell presently has an enrolled student body exceed- ing 14,000. Fifty percent of these students are from guteide the State of New York. There ates in excess of 1,100 students from 87 foreign counts: ae at the Carrere tere e University has offices in i sachusets, llinos, Florida, and Pennsygia ‘operates an observatory in Puerto Rico, During 1968-69, the University’s publishing de- Partment purchased goods valued at $16-400¢0s, Of this sum, $10,750,000 represented purcharse of ‘ional ising, and local and re- retin $38,000 from national sd. tases, ‘haere pret 426-427, Cornell's annual expenditures amount to $142,300,000. Its current assets are valued at $282,500,000. Included is an investment portfolio of over $250 million which consists, inter alia, of in- vestments in industrial concerns, banks, insurance ‘companies, and public utilities. During 1968-69, Cornell had research contracts amounting to $26,600,000 sponsored by various agencies of the Federal Government, including Na- tional Science Foundation, Public Health Service, Atomic Energy Commission, Department of Defense, and National Aeronautics and Space Ad- ministration. In addition, the University received $6 million for research projects sponsored by such foundations as Ford, Carnegie, and Rockefeller. Discussion Section 2(2) of the Act defines an “employer” as follows: +++ any person acting as an agent of an em- ployer, directly or indirectly, but shall not in- clude the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivi sion thereof, or any corporation or association operating a hospital, if no part of the net earings inures to the benefit of any private shareholder or individual . . . . Although Section 2(2) specifically excludes non- Profit hospitals from the Act's coverage, it contains ‘no such exclusion of private, nonprofit educational institutions. In the Columbia University case, the reviewed the then recently enacted Taft- Hartley amendments to the National Labor Rela- tions Act and concluded that «+. the activities of Columbia University affect commerce sufficiently to satisfy the require- ments of the statute and the standards established by the Board for the normal exer- ‘cise of its jurisdiction... .* However, the Board, as a discretionary matter, ied to assert such jurisdiction because of state- ‘ments in the House Conference Report? which fiimed to indicate approval of what the report be- leved to have been the Board’s pre-1947 practice < — in the exercise of its discretion to assert lrisdiction over certain nonprofit organizations The Board concluded: e : . Under all the circumstances, we do not be- lieve that it would effectuate the policies of the Act for the Board to assert its jurisdiction ovet # nonprofit, educational institution where theCORNELL UNIVERSITY 331 activities involved are noncommercial in na- ture and intimately connected with the charita- ble purposes and educational activities of the institution. It should be noted that, although the House Con- ference Report referred to the Board's pre-1947 practice with respect to exercising jurisdiction over nonprofit employers, the 1947 amendments them- selves placed no curb on the Board’s discretionary jurisdiction except as to nonprofit hospitals. The re- Port did not say that, because the Board had de- Cided before 1947 it would not effectuate the poli- cies of the Act to assert jurisdiction over certain employers, it must continue to refuse to assert such jurisdiction indefinitely in the future despite change of circumstances. This hardly seems inadvertent. Congress was well aware that the Board’s discre- tionary standards for asserting jurisdiction were not fixed, but had been changed from time to time. The very fact that Congress rejected the 1947 House proposals for the specific exemption from the Act of broad classes of charitable or nonprofit organiza- tions seems to indicate that Congress was content to leave to the Board’s informed discretion in the future as it had in the past, whether and when to as- Sert jurisdiction over nonprofit organizations whose operations had a substantial impact upon interstate commerce. We adhere to the view that the Board has statu- tory jurisdiction over nonprofit educational institu- tions whose operations affect commerce. But we shall no longer decline to assert jurisdiction over such institutions as a class. In the intervening two decades since Columbia University was decided, the Board has declined to assert jurisdiction over nonprofit universities if the activity involved was noncommercial and intimately Connected with the school’s educational purpose.’ However, an analysis of the cases reveals that the dividing line separating purely commercial from Roncommercial activity has not been easily defined.* Those who urge adherence to the Columbia University doctrine? contend that the legislative his- tory of the Taft-Hartley amendments establishes $e2-€6. Laon Sonord Senior Univers, 152 NLRB 704; Universi {Miami a6 NLRB 1448, Tre cours have wot decty passed onthe Julkity ofthe Board's interpretation of Sec. 2(2) and ite legislative history. Mowevr this gueston i reteed to i Offer Employees eration Hoel IP. NLRB. 353 US. 313, where he Sepeme Court {Rese the Boards refs io tert radicion over nonprt Mbot ‘rotas 4 ciam Although the Court ote language rom the 1947 Cov SEIS Betor with apparent approval, tseverbrlem sated that “the ‘Sew hs tevertecognted sci #Bnket of eacision overall 08+ employe It as destined juradiction on 2 ad he basset Sows educational, and eleemonyary employer” (ld. 318) See Hate Employes Lael 253 6. NERD. 38 US. 99, where the that Congress intended to exempt nonprofit educa- tional institutions from the coverage of the Act They further argue that Congress ratified its earlier position by amen menting on or altering the 1947 Conference Report relative to exclusion. It is true that the legislative history of the 1959 Landrum-Griffin Act is completely silent on the matter of nonprofit employers. We are not per- suaded, however, that congressional silence may be construed as indicating continued congressional ap- proval of either the 1947 legislative history or Board reliance on it. The fact remains that Section 2(2) contains no express exemption for nonprofit employers. More to the point is that in 1959 Con- gress enacted Section 14(c) which for the first time both authorized and set limits on the Board’s di cretionary refusal to exercise jurisdiction. Two years before the enactment of Section 14(c), the Supreme Court ruled in Guss v. Utah Labor Relations Board'® that the States were powerless to entertain cases which fell within the NLRB’s statutory jurisdiction, even though the Board had declined to assert such jurisdiction. Thus, a “no-man’s land” was created where em- ployers and employees were denied a Federal forum for the resolution of labor disputes and yet were unable to turn to the States for alternative relief!" Ample evidence in the legislative history reveals that Section 14(c) was the Congressional response designed to eliminate the “no-man’s land.""* Toward this end, Section 14(c)(1) states that the Board in its discretion may “decline to assert jurisdiction over any labor dispute involving any class or category of employers, where, in the opinion of the Board, the effect of such labor dis- pute on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction. . . .” Con- versely, it impliedly confirms the Board's authority to expand its jurisdiction to any class of employers whose operations substantially affect commerce. Section 14(c)Q) further attempts to narrow the “no-man’s land” gap by empowering the States to exercise jurisdiction when the Board declines to so assert. Supreme Court ruled that t was not permissible forthe Board to decline ju: fadicion over an industry which substantial affects commerce. " Compare Woods Hole Oceanogrephe Inston, 143 NLRB S68, Mas: suchas Insti of Technology (Lincoln Laboratory), 110 NURB 16 2d California Institue of Techrology, 102 NLRB 1802 (jusdition at! serted, with Armor Research Foundation of Hints Insite of Technolo. (5, 1OTNLRB 1082 Gursdiciondecined) i omit cna bls of Assocition of Independent California Co Sod Universities, and New York State Labor Relations Board W359 US. 1 (1957). ST Leg Mis 422 (1959). "ug at 1130, 1084, 1582,