Elmira College

National Labor Relations Board - Board Decisions

Dec 11, 1992

309 N.L.R.B. 842 (N.L.R.B. 1992)

842
309 NLRB No. 137
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The only issue raised in the request for review is whether the Re-
gional Director erred in finding the faculty at the College to be man-
agerial and, therefore, in dismissing the petition.
Elmira College and Elmira College Faculty Guild
affiliated with NEA/NY and NEA, Petitioner.
Case 3–RC–9805
December 11, 1992
ORDER DENYING REVIEW
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The National Labor Relations has delegated its au-
thority in this proceeding to a three-member panel,
which has considered the Petitioner’s request for re-
view of the Regional Director’s Decision and Order
(pertinent portion is attached). The request for review
is denied as it raises no substantial issues warranting
review.1
APPENDIX
BACKGROUND
The College was founded in 1855 as a private coeduca-
tional liberal arts college located on a single campus in El-
mira, New York. The College presently has 960 full-time
students, and approximately 990 part-time students. The Col-
lege offers Bachelor of Arts, Bachelor of Science and Asso-
ciates degrees, as well as a Masters of Science in Education.
There is also an extensive continuing education program
which offers to part-time students evening courses leading to
the award of the above-mentioned degrees. The College of-
fers approximately 700 courses per year and 34 major fields
of study. There are approximately 67 full-time faculty and
professional librarians at the College. There are approxi-
mately 85 part-time faculty members, the majority of whom
teach in the continuing education program. Each faculty
member is a member of one or more of the College’s six
faculty divisions. These divisions are: creative arts, business
and economics, humanities, math and natural science, profes-
sional programs, and social and behavioral sciences.
The chief governing entity of the College is its Board of
Trustees, which is comprised of 22 members, including the
president of the College, who is the only administrator on the
Board; no faculty members serve on the Board. The aca-
demic vice president and dean of faculty attends Board meet-
ings but does not sit on the Board. The Board of Trustees
is organized into the following committees: executive, aca-
demic affairs, budget, development membership, student life
and steering. The Board and its committees meet semiannu-
ally. The Board of Trustees is charged with the long-term
governance and financial stability of the College. The Board
of Trustees appoints the president of the College, who is its
chief executive officer.
The president is responsible for supervising and directing
the affairs of the Elmira College Corporation. The president
is specifically charged with the following duties: promote the
College to all its constituencies; represent the College at na-
tional, regional and local functions, and with alumni, com-
munity groups, parents, and trustees; enlarge the institution’s
financial resources; exercise prudent stewardship of existing
resources; support the growth of academic quality and fac-
ulty excellence; and respond to the corporate and individual
needs and concerns of administrators, faculty, staff, and stu-
dents.
There are five vice presidents who constitute the presi-
dent’s cabinet: vice president for public relations; academic
vice president and dean of faculty; vice president and treas-
urer; vice president of development; and vice president and
dean of student life. Other principal administrators include
the registrar, the dean of the Gannett-Tripp Library, the dean
of continuing education, and administrators in the areas of
business office, college store and purchasing, physical plant,
dining services, administrative data processing, admissions
and financial aid, athletics, development, student affairs, and
public relations.
The academic vice president and dean of faculty is ap-
pointed by the president, with the advice of and in consulta-
tion with the faculty, as discussed below. The dean is the
chief academic administrator of the College and is directly
responsible to the president for the College’s academic pro-
gram. The position has been occupied by Bryan Reddick for
the past 6 years. The faculty report directly to the dean of
faculty for academic and nonacademic matters.
The College’s faculty handbook describes the academic
ranks and titles of the faculty. The ranked faculty is defined
as including professors, associate professors, assistant profes-
sors and instructors. The unranked faculty is defined as in-
cluding affiliate, visiting and adjunct professors, and lectur-
ers. The faculty handbook states that unranked faculty mem-
bers are usually part-time employees of the College. The
College’s bylaws, as quoted in the faculty handbook, summa-
rize the faculty’s responsibilities as follows:
The faculty shall devise, subject to the approval of
the Board of Trustees or Executive Committee, require-
ments for admission, conditions of graduation, the na-
ture of degrees conferred, rules and methods for the
conduct of the educational work of the College, and
shall recommend to the Board candidates for such de-
grees as shall be granted upon successful completion of
prescribed courses of study.
These responsibilities are implemented by the faculty through
meetings of the faculty as a whole, the divisional structure
and the various faculty committees described below.
Each of the six above-mentioned faculty divisions is head-
ed by a division chairperson, who is responsible for coordi-
nating the activities of the division. The chairperson is a
teaching member of the faculty and receives a stipend of
about $2000 for work as a division chairperson. The division
chairperson holds a division meeting on a monthly basis.
Each division has its own budget or several budgets dedi-
cated to programs within the division. The chairperson is re-
sponsible for ascertaining the budgetary needs of the division
and apprising the faculty dean of the division’s financial
needs. The division chairperson acts as a moderator in divi-
sion meetings, suggests class schedules, the number of sec-
tions of a course to offer, and which faculty members should
teach them. Division chairs also play a role in tenure, em-
843ELMIRA COLLEGE
ployment contract renewal, promotion, and hiring decisions,
as discussed below.
The six division chairs and the dean of faculty comprise
the council of chairs. The council of chairs receives financial
information from the College, discusses with the dean the
faculty’s budgetary needs and makes recommendations to the
dean concerning faculty budget priorities within the Col-
lege’s operational budget. The council also makes rec-
ommendations to the administration concerning the method
of distribution of faculty salary increases, as discussed
below. The council of chairs also works with the dean in
planning the academic calendar, i.e., when breaks and final
examinations will occur, the beginning and end of the aca-
demic year, and commencement.
The college faculty sits on a number of standing and ad
hoc committees, which participate in various general and
specific academic and nonacademic policy decisions affect-
ing the College. There are 11 standing committees: faculty
executive committee; faculty review committee; curricular af-
fairs committee; educational standards committee; arts and
lectures committee; graduate and advanced studies commit-
tee; faculty development committee; fringe-benefits commit-
tee; grievance committee; advising committee; and com-
mencement advisory committee. These committees are dis-
cussed seriatim below.
Faculty Executive Committee: The faculty executive com-
mittee is comprised of four faculty members, elected at large
by the faculty, and the dean of faculty. The committee is re-
sponsible for obtaining nominations to and conducting elec-
tions for positions on the other standing committees. The fac-
ulty executive committee is also responsible for appointing
faculty to fill unexpected vacancies on other committees, rec-
ommends to the college president the establishment of new
standing committees or changes in existing committees, pre-
pares the agenda for the monthly, faculty-wide meetings, and
publishes the minutes of such meetings.
Faculty Review Committee: The faculty review committee
consists of six faculty members elected at large by the fac-
ulty and one faculty member appointed by the president of
the College. The committee is responsible for establishing, in
cooperation with the dean of faculty, evaluative criteria for
faculty performance; administering the faculty evaluation
system; and making recommendations to the president con-
cerning retention of faculty members during and subsequent
to their probation period.
Curricular Affairs Committee: The curricular affairs com-
mittee is comprised of eight faculty members elected at large
by the faculty, the dean of faculty, the registrar, and one stu-
dent appointed by the student association. The committee is
responsible for establishing standards and procedures for the
development of new courses; approving new courses; ap-
proving changes in course levels; and for reviewing and
making recommendations to the faculty concerning changes
in academic programs, and in major and minor fields of
study.
Educational Standards Committee: The educational stand-
ards committee consists of five faculty members elected at
large by the faculty, the dean of faculty and the registrar.
The primary responsibility of the committee is to establish
and apply the standards for the admission of student appli-
cants to the College, including the College’s automatic ad-
mission standards, discussed below, which the committee re-
views annually. The committee also reviews student petitions
for waivers of academic requirements, is responsible for
placing deficient students on probation and for making rec-
ommendations to the college president concerning the dis-
missal of students for poor academic performance.
Arts and Lectures Committee: The arts and lectures com-
mittee is comprised of four faculty members elected at large
by the faculty and a number of other appointed faculty, ad-
ministration, and student members. The committee is respon-
sible for arranging and scheduling extra-curricular events on
campus.
Graduate and Advanced Studies Committee: The graduate
and advanced studies committee consists of five faculty
members elected at large by the faculty, and one faculty
member appointed by the college president. The dean of con-
tinuing education and the associate dean for graduate studies
also sit on the committee but do not have voting rights. The
committee is responsible for establishing admission and grad-
uation standards for the graduate program. Any course taught
in the graduate program must be approved by the committee.
The committee also has authority to rule on graduate student
petitions seeking waivers of academic requirements.
Faculty Development Committee: The faculty development
committee is comprised of five faculty members elected at
large by the faculty and the faculty dean. The dean’s voting
privileges on the committee are limited to issues involving
general policies and procedures. The committee is respon-
sible for facilitating the improvement of faculty teaching and
advising skills, which it accomplishes through faculty work-
shops.
Fringe-Benefits Committee: The fringe-benefits committee
is comprised of five faculty members elected at large by the
faculty. The committee works with college administrators to
develop recommendations to the faculty concerning em-
ployee fringe benefits, such as medical insurance and pen-
sions, and also makes recommendations concerning such
benefits to the College on behalf of the faculty.
Grievance Committee: The grievance committee consists
of five faculty members elected at large by the faculty. The
committee receives grievances from faculty members regard-
ing their employment and alleged violations of academic
freedom. The committee seeks settlement of grievances satis-
factory to the grievant and the College. In cases that are not
settled, the committee issues a report and findings to the af-
fected parties.
Advising Committee: The advising committee consists of
five faculty members elected at large by the faculty, the di-
rector of academic advising, the dean of student services, and
two students. The committee is responsible for establishing
policies and procedures concerning the academic advising of
students by the faculty. The committee also establishes a
schedule of advising activities for each class and advising
skill enhancement activities for the faculty.
Commencement Advisory Committee: The commencement
advisory committee consists of the senior member of the fac-
ulty, one faculty member elected at large by the faculty, and
one faculty member appointed by the college president. The
committee advises the president on commencement activities
and recommends to the faculty and president nominations for
honorary degrees.
Outside of the standing committee structure, faculty mem-
bers serve on the discipline committee, which consists of two
844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
faculty members elected at large by the faculty, two adminis-
trators, and two students. The committee hears allegations of
misconduct by students and makes recommendations to the
college president concerning sanctions for misconduct. A stu-
dent charged with misconduct may appeal the committee’s
decision to the president.
Faculty members also participate in the dean’s planning
group, which was established by Dean Reddick in 1987. The
planning group consists of the dean, the council of chairs,
and two members of the curricular affairs committee. The
planning group considers and makes recommendations to the
dean to fill faculty vacancies and to create new faculty posi-
tions.
There are a number of ad hoc committees in which faculty
participate. After the dean’s planning group makes a rec-
ommendation to fill a faculty vacancy or create a new posi-
tion, and the president accepts such recommendation, the fac-
ulty dean, in consultation with the division chairperson in
which the opening occurs, forms a faculty search committee
consisting of five faculty members to seek out, interview,
evaluate, and hire for the position. Other ad hoc committees
have included an admissions committee, which made rec-
ommendations to the faculty concerning student recruitment;
a committee on scholarship, which presented a report to the
faculty dean concerning criteria for faculty performance in
research and creative work; and various subcommittees of
standing committees.
There are approximately 20 faculty members who, apart
from their academic responsibilities, serve as directors of a
number of college programs. These programs range from the
freshman writing program, theater program, greenhouse man-
ager, art department budget director, radiation officer, and
junior year abroad program. The program directors receive
either a salary supplement ranging from under $500 to
$9500, or are released from certain teaching responsibilities.
The College Library: The College’s library, the Gannett-
Tripp Library, is staffed by a director, three professional li-
brarians and a number of other nonprofessional employees.
The library director, James Gray, and the three librarians,
Elizabeth Wayle, Donna Wertheimer, and Mark Woodhouse,
are members of the college faculty and serve on a number
of the above-mentioned faculty committees. However, the li-
brarians do not receive academic rank. Petitioner seeks to in-
clude the three professional librarians in the petitioned-for
bargaining unit.
Elizabeth Wayle is responsible for the library’s technical
services, including acquisitions and maintaining the card
catalog. She directs the work of three nonprofessional librar-
ians. Donna Wertheimer is in charge of government docu-
ments (the library is a federal and state government docu-
ment depository) and oversees reference librarians and an
employee who is a government document specialist. Mark
Woodhouse is responsible for circulation, periodicals, and li-
brary equipment, such as copying machines. Woodhouse di-
rects the work of 2 paraprofessional staff members and ap-
proximately 35 work-study students. The three librarians
must consult the library director concerning any discipline
for work infractions by staff members. Employees seeking
time off from work must have the approval of the librarian
to whom they report and the director. The three librarians’
work performance is reviewed under a procedure set forth in
the faculty handbook, which procedure requires participation
in the individual librarian’s appraisal by the two other librar-
ians, as well as the library director and a member of the fac-
ulty review committee.
The library director is responsible for the general adminis-
tration of the library, including its budget. Specifically, the
director is responsible for making an annual library budget
request and for insuring that the library remains within its
budget. The budget request is made by the library director
to the council of chairs. Upon the approval of the library
budget by the council of chairs, the director and the three li-
brarians meet and decide on the allocation of the capital
budget to periodicals, reference books, and audiovisual mate-
rials. The portion of the budget allocated to books is then
further divided by subject field based on a formula applied
by the library. The subject field book allocations are then
submitted to the council of chairs for approval. After ap-
proval of the book allocations by the council of chairs, the
library notifies the faculty of the moneys available for books
in their field and encourages the faculty to order such books.
The council of chairs has never required the library to
change the amounts of money allocated for book purchases.
The library director and the three librarians engage in
long-range planning for the library, such as recommendations
for a new computer system. Such recommendations are made
within the budget process. If a vacancy in the library staff
arises, the director seeks approval to fill the vacancy and for
the position salary from the dean of faculty. The director and
the three librarians decide if any changes should be made to
the job description for the vacant position and typically func-
tion as a search committee for job applicants, which search
committee is headed by the librarian whose area of respon-
sibility the vacancy occurs. The librarian heading the search
committee has actual authority to hire an applicant and no
further administrative approval is required.
ACADEMIC GOVERNANCE
Admissions: Admission of students to the College is con-
trolled by the faculty through their participation on the edu-
cational standards committee. The committee sets the stand-
ards for automatic acceptance of applicants to the College
and reviews the standards annually. Presently, any applicant
with a score of 800 or better on the scholastic aptitude test,
a grade point average of 80 percent and a ranking in the top
40 percent of his or her high school class will be automati-
cally admitted to the College.
During the period 1987 to 1989, the educational standards
committee had final authority on the admission or rejection
of applicants not meeting the automatic admission standards.
Since 1990, pursuant to an agreement between the edu-
cational standards committee, the dean of faculty and dean
of admissions, which agreement was approved by the college
president, the committee no longer has final authority con-
cerning the admission of questionable applicants. Under the
present procedure, if an applicant does not meet the auto-
matic admission standards, the committee reviews the appli-
cant’s file and votes on the applicant’s admission. In the
event that the dean of admissions disagrees with the commit-
tee’s decision to reject an applicant, the dean may appeal the
decision to the college president. In 1990, the record shows
that of 220 questionable applicants, 138 were accepted and
82 were rejected by the committee. The dean of admissions
appealed 36 of the rejections to the president who sustained
845ELMIRA COLLEGE
the committee’s decision in 21 cases and overruled the com-
mittee in 15 cases.
Petitioner presented evidence that the change in the edu-
cational standards committee’s authority over questionable
applicants arose out of the administration’s unilateral accept-
ance for the fall term of 1990 of approximately 100 students
whose scholastic aptitude test scores fell below the then auto-
matic acceptance standard of 800. Apparently, only a small
percentage of these 100 students had been reviewed and ac-
cepted by the committee for admission.
The faculty has played an active role in the recruitment of
applicants and the setting of the College’s enrollment stand-
ard. Pursuant to a report of the faculty’s ad hoc admissions
committee, the College adopted the committee’s rec-
ommendation that the minimum student enrollment be 1000
students and that scholarships be used as a recruitment tool
for outstanding high school students who did not necessarily
qualify for financial assistance. Members of the faculty also
volunteer to assist in the admissions office and in the actual
recruiting process by interviewing applicants and attending
college fairs and high school events.
Transfers and Articulation Agreements: The registrar has
final authority to decide whether to accept for credit at the
College courses taken at other institutions by a student trans-
ferring to the College. If the registrar denies transfer credit,
the transfer student may submit additional supportive infor-
mation on the course. In that event, the registrar requests that
a faculty member in the discipline encompassing the course
in issue review the material and make a recommendation to
the registrar. The registrar always accepts the recommenda-
tion of the faculty member. The student’s faculty advisor has
sole and final authority over whether a certain transfer course
satisfies degree or major requirements.
Articulation agreements are agreements between the Col-
lege and other institutions by which they agree to grant re-
ciprocal academic credit for certain courses. Articulation
agreements are negotiated by a faculty member, who consults
with the division chairs and curricular affairs committee.
These agreements are then executed by the dean of faculty
or the college president.
Curriculum and Degree Requirements: Courses offered by
the College are developed by the faculty without the involve-
ment of the administration. Proposals for new courses origi-
nate from individual faculty members and divisions and final
authority to add a course to the curriculum and to set the
course credit hours rests with the curricular affairs commit-
tee. The committee also has final authority over changes in
course content, whether a particular course satisfies the Col-
lege’s general educational requirements, and the course level
and credits.
The curricular affairs committee also is responsible for re-
viewing and making recommendations to the faculty con-
cerning changes in academic programs, and in major and
minor fields of study. The recommendations of the faculty in
this regard are then passed on to the college president for his
final approval. During the 4-year tenure of the College’s cur-
rent president, all such recommendations were approved by
the president. However, during the 1982–1983 academic
year, according to the then chairperson of the curriculum af-
fairs committee, the College’s president announced the cre-
ation of a core curriculum for all students, which had not
been voted on by the committee or the faculty at large. The
proposal had been discussed by a faculty committee created
by the academic dean during a review of the College by the
Middle States Association Commission on Higher Education,
a nonprofit association serving educational institutions
through programs of evaluation and accreditation. Addition-
ally, in 1985, the then college president did not approve a
faculty recommendation eliminating field experience as a
general degree requirement.
The approval of degree candidates is based on the rec-
ommendations of the faculty at large to the college president.
The record evidence shows that the president has invariably
accepted the recommendations of the faculty in this regard
during the past 4 years.
Grading, Class Size and Scheduling: All student grading
decisions are left to the individual faculty members. How-
ever, a student may appeal an individual faculty member’s
grading decision to the education standards committee.
Course scheduling originates in the faculty, although the
faculty divisions, and is then communicated by the division
chairpersons to the registrar’s office where the schedules are
recorded and published.
Presently, the College has a general minimum enrollment
standard for a course to be taught of 10 students in an under-
graduate course and 7 students in a graduate course. The ori-
gin of the minimum enrollment standard is unclear. Restric-
tions on the maximum class size for an individual course are
decided by each division’s faculty, and the class size limita-
tions are then reported to the registrar’s office by the division
chairperson at the same time that class schedules are re-
ported. In 1988, the advising committee issued a memoran-
dum complaining to the dean of faculty that the registrar’s
office had set class size limitations without consulting with
the faculty. According to Dean Reddick, who acknowledged
the problem, procedures were subsequently put in place to
insure that the registrar’s office did not unilaterally establish
class sizes, and the problem has not reoccurred.
Student Retention and Discipline: Decisions concerning the
retention and dismissal of students at the College are made
by the educational standards committee. The committee re-
views the progress of each student towards fulfilling degree
requirements and has the final authority to place a student on
probation for poor academic performance. A student’s only
recourse concerning the committee’s decision is to appeal to
the committee for reconsideration.
Students may be dismissed from the College for poor aca-
demic performance pursuant to the recommendation of the
educational standards committee to the college president. In
1990–1991, the committee recommended that 18 students be
dismissed; the president sustained 17 of these recommenda-
tions.
Students may also be disciplined for misconduct by the
College disciplinary committee, which consists of two stu-
dents, the dean of faculty, the dean of student life, and two
faculty members elected at large by the faculty. A student
may appeal a decision of the committee to the college presi-
dent. The committee hears cases affecting approximately 50
students a year. In 1990, the college president modified the
discipline imposed by the committee on two students. No
other decision of the committee has been modified by the
president since at least 1986, when Dean Reddick joined the
committee.
846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Advising Programs: As noted above, faculty members
serve as directors of a number of College programs, includ-
ing such academic programs as the student advising program
and the freshman advising program. The advising programs
were developed by and are administered through the faculty-
dominated advising committee. All faculty participate in the
advising program. The director of the advising program, a
faculty member, is in charge of all aspects of the freshman
program. The director selects the advisors for the freshman
advising program, assigns students to each advisor and is in
charge of all program activities.
NONACADEMIC MATTERS
Faculty Hiring: The faculty participates in the hiring of
full-time faculty through the dean’s planning group and the
faculty search committees. After the dean’s planning group
makes a recommendation to fill a faculty vacancy or create
a new position, and the president accepts such recommenda-
tion, the faculty dean, in consultation with the division chair
of the division in which the opening occurs, forms a faculty
search committee, as required by the college faculty hand-
book. The search committee consists of five faculty mem-
bers; administrators do not sit on the search committee.
The search committee solicits applicants for the position
through advertisements in national academic journals. The
faculty dean composes and places the advertisement for can-
didates after consulting with the planning group, search com-
mittee, search committee chairperson, or division chair-
person. The job salary range is determined by the dean, after
consulting with the college president; the dean also may con-
sult faculty members in setting the advertised salary range.
The applications received are reviewed by the search com-
mittee, which ranks the top candidates. The dean schedules
interviews with the top candidates, who are then invited to
the campus where they are interviewed by the members of
the search committee, and by the dean and college president.
The search committee chairperson reports to the dean the
committee’s opinion of the candidate. After the top can-
didates have been interviewed, the committee makes a rec-
ommendation to the dean concerning which applicant should
be offered the position. The college president has the final
authority to decide whether to hire a candidate.
In the past 4 academic years, 27 full-time faculty have
been hired, all on the recommendation of the search commit-
tees. The faculty search committees’ recommendations for
candidate selection have been rejected by the president on
only one occasion since 1987. In that instance, the candidate
ultimately selected by the president declined the offer. Also,
on another occasion, the dean of faculty unilaterally dis-
regarded the recommendation of the dean’s planning group
in deciding to fill a faculty vacancy. Specifically, in 1990,
the dean of faculty ignored the planning group’s rec-
ommendation to fill a vacant sociology position and instead
decided to fill a vacant director of education position.
The process of hiring part-time faculty differs from that of
hiring full-time faculty, and also differs for the type of part-
time appointment, i.e., to the general education undergradu-
ate or continuing education programs, specific smaller pro-
grams such as the freshman writing and education programs,
or the graduate degree program. There is no search commit-
tee procedure for the hiring of part-time faculty. In the con-
tinuing education program, hiring of part-time instructors is
accomplished in several ways. The dean of continuing edu-
cation screens applications for part-time instructors and
passes these on to the appropriate division faculty. The divi-
sion faculty may take the initiative and interview and extend
offers of employment to part-time instructors, the dean of
continuing education may extend offers of employment on
her own initiative, or the dean and the faculty may work in
conjunction in hiring for the program. Part-time faculty are
hired by the faculty approximately 25 percent of the time,
while the dean of continuing education, without faculty in-
volvement, hires about 1 to 2 percent of the time. The salary
range for part-time faculty is set by the administration. The
administration is responsible for the execution of the employ-
ment contract with the part-time instructor.
In the graduate program, hiring of part-time faculty is
done through the graduate and advanced studies committee.
The committee is responsible for interviewing applicants and
has final authority to hire for the program. In the past 4 aca-
demic years, the committee has hired 32 part-time faculty
members. As in the continuing education program, salaries
and the execution of the employment contract are under the
control of the administration.
A number of the faculty program directors have and exer-
cise the authority to effectively recommend the hiring of
part-time instructors for their programs. For instance, the rec-
ommendations of the director of the freshman writing pro-
gram concerning the hiring of part-time instructors have in-
variably been adopted by the dean of faculty. The directors
of the education program and nursing diploma program, and
the professional librarians also recruit and effectively rec-
ommend the hiring of part-time instructors and staff.
Tenure and Promotion: Faculty promotions, including pro-
motion to the rank of full, tenured professor, are governed
by traditional criteria. A review of faculty for tenure and re-
tention is accomplished through procedures set forth in the
faculty handbook. The faculty review committee, which con-
sists solely of faculty members, advises the college president
whether a faculty member should be retained as a college
employee and whether that individual should receive tenure.
The committee typically conducts a first year review of fac-
ulty members, a midtenure review, and a tenure review.
While the dean of faculty and the division chairperson pro-
vide the committee with written evaluations of the candidate,
no administrator, including the dean of faculty, participates
in the committee’s deliberative process or in its rec-
ommendation. The committee’s recommendation is sent to
the college president, who, with the approval of the Board
of Trustees, makes the final decision to grant tenure.
The president has accepted the committee’s recommenda-
tion concerning tenure and retention in 45 out of 46 reviews
in the past 4 academic years. There is evidence that in 1986,
in one instance, the president overruled the committee’s rec-
ommendation and granted tenure to a faculty member. Also,
there is evidence that the president did not adhere to the
committee’s tenure recommendation concerning another fac-
ulty member; however, the record does not identify when the
latter decision occurred.
The faculty plays a far less substantial role in the pro-
motion in rank of faculty members. The faculty review com-
mittee has no jurisdiction regarding promotions. Rather, the
college president, in making his final decision concerning a
nomination for promotion (candidates for promotion are self-
847ELMIRA COLLEGE
nominated), relies on the recommendations of the dean of
faculty, the division chairperson, and the tenure and retention
file compiled by the faculty review committee. In the past
4 academic years, 30 faculty members have been nominated
for promotion and 12 have been promoted. In this regard, the
record reveals that the recommendations of the dean have in-
variably been followed by the president.
Decisions denying promotion to a faculty member may be
grieved through the faculty grievance committee. As de-
scribed above, the committee issues a report to the affected
parties where no settlement is reached, but does not have au-
thority to issue a binding decision on a grievance. The griev-
ance committee heard and issued a report in 1990–1991, con-
cerning the grievance of a faculty member denied a pro-
motion to full professor. The grievance alleged that the fac-
ulty member had been denied a promotion because the ad-
ministration had unilaterally altered the criteria for pro-
motion, as set forth in the faculty handbook. The grievance
committee found that the administration had failed to follow
the criteria for evaluation for promotion in several regards
and made recommendations to the president concerning these
issues. The president rejected most of the committee’s rec-
ommendations and refused to reverse his denial of promotion
decision.
Faculty Salary and Benefits: The faculty generally has no
authority in determining salaries paid college employees.
However, the council of chairs makes recommendations to
the administration as to how salary increases authorized by
the administration should be distributed to the faculty. In this
regard, the dean of faculty has advocated that salary in-
creases be awarded to faculty based on merit, while the
council of chairs has opposed merit increases and rather has
sought across-the-board raises. The college president has
consistently approved the latter method of salary increases.
However, in 1988–1989, the faculty received a 4-percent
raise, which was distributed to individual faculty members
with some small variations based on years of service and
academic rank. While the dean consulted with the council of
chairs concerning the criteria for the adjustments, the dean
did not discuss with the council the specific variations in
raises each faculty member received.
The faculty has no authority in determining employee
fringe benefits. However, the faculty fringe-benefits commit-
tee, on behalf of the faculty, makes recommendations to the
administration concerning fringe benefits. The committee has
made a number of significant proposals concerning fringe
benefits that were either adopted by the administration or re-
sulted in the implementation of compromise plans. Thus, the
committee recommended and the College implemented a
plan allowing employees to cover medical insurance pre-
miums with pretax salary. The formula used to calculate em-
ployee medical insurance premiums was developed by the
committee and uses cost data furnished the committee by the
college treasurer. The committee has effectively rec-
ommended that the College hire a benefits consultant and the
particular consultant hired was suggested by the committee.
The College has implemented, pursuant to the recommenda-
tions of the committee, a plan allowing employees to contrib-
ute pre-tax salary to a fund to cover uninsured medical ex-
penses. The college president has accepted a committee pro-
posal concerning a change in the amount of pension fund
contributions made by the College for faculty members.
Also, the committee has raised concerns with the administra-
tion that the College was delaying in making monthly pen-
sion fund contribution deposits. The committee’s complaint
resulted in a pledge by the administration to deposit such
contributions by an earlier date each month.
Clearly, however, the administration’s control over salary
and fringe benefits has resulted in the rejection by it of a
number of faculty proposals. For instance, the faculty’s com-
plaint that a switch in paydays resulted in a loss of salary
to the faculty was not redressed by the administration. Other
proposals concerning the employee medical and pension
plans have been rejected by the administration.
Tuition and Budget: The faculty does not have authority
or input in setting tuition at the College. However, in 1986,
the educational standards committee and the faculty effec-
tively recommended to the administration that scholastically
successful students be allowed to take courses in excess of
a standard course load without paying tuition for such addi-
tional course credits. Previously, students who were per-
mitted to take additional courses were charged additional tui-
tion for such courses.
Through the council of chairs and the individual division
chairs, the faculty has some, albeit limited, control and input
concerning the college budget. As noted above, each division
chairperson is responsible for ascertaining the budgetary
needs of the division and apprising the faculty dean of the
division’s financial needs. each division has control over
spending within its own budget. However, the total of each
division’s budget is a small fraction of the College’s total
budget. Moreover, a large portion of each divisional budget
typically includes such nondiscretionary spending items as
copying supplies and postage.
The dean of faculty also requests that each division chair-
person rank the priorities of academic capital projects each
year. These projects include such items as the purchase of
faculty office equipment, an audiometer, and repairs to
science equipment. Those capital projects ranked highest by
the division chairs in 1988 were funded in that year’s capital
budget.
Faculty Governance—Other Issues: Petitioner relies on let-
ters from the Middle States Commission on Higher Edu-
cation, an accreditation body described above, to establish a
lack of faculty participation in the governance of the College.
A 1984 letter from the Commission requested a report from
the College concerning, inter alia, the degree of faculty par-
ticipation in governance. A letter from the Commission in
1987 appears to indicate, albeit unclearly, that some of the
concerns in the 1984 letter remain unaddressed. In any event,
a letter to the college president from the Commission dated
March 16, 1990, states that the Commission accepted the an-
nual report of the College and ‘‘commend[s] the College on
participatory processes now in place.’’
In evidence is a document prepared by the College for the
hearing which shows that, during the academic years 1987
through 1991, the faculty, at the monthly faculty meetings,
made by motion 89 recommendations to the college presi-
dent, of which 74 were accepted and 13 were rejected by the
president. The Petitioner asserts that many of the rec-
ommendations accepted by the president pertained to subjects
that were exclusively functions of the faculty, did not involve
any economic costs, or were minor procedural issues. An ex-
amination of these accepted recommendations, however,
848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
shows that they involve a wide variety of issues, including
such significant issues as changes to majors and minors or
the elimination of an associates degree program. Moreover,
the fact that many of the recommendations accepted by the
president involved matters within the academic purview of
the faculty establishes that the faculty has effective authority
concerning such academic matters. Concerning the 13 rec-
ommendations rejected by the president, half of these rec-
ommendations involved financial, rather than academic, mat-
ters.
Faculty members have participated in the hiring of nonfac-
ulty college administrators. The present registrar was hired
upon the recommendation of a faculty-dominated search
committee established by the dean of faculty. The council of
chairs was involved in search committees in 1988 and 1989
to hire a dean of continuing education. Five faculty members
also served on a committee to hire a director of nurse edu-
cation. A similar committee effectively recommended the hir-
ing of the dean of admissions. A faculty member served on
a steering committee with the college president, dean of fac-
ulty, and three trustees, which committee was formed to hire
the vice president of development; during the search for a
vice president, the council of chairs and the faculty executive
committee interviewed the job candidates. A faculty search
committee was involved in hiring Dean Reddick, who was
interviewed during his candidacy by a number of faculty
committees.
ANALYSIS AND CONCLUSIONS
In NLRB v. Yeshiva University, 444 U.S. 672 (1980), the
Supreme Court found that the faculty members were mana-
gerial employees excluded from coverage of the Act. It de-
fined managerial employees to be those who ‘‘formulate and
effectuate management policies by expressing and making
operative the decisions of their employer.’’ Id. at 682,
quoting from NLRB v. Bell Aerospace Co., 416 U.S. 267,
288 (1974). The Court held that managerial employees
‘‘must exercise discretion within, or even independently of,
established employer policy and must be aligned with man-
agement.’’ Id. at 683. Managerial employees represent
‘‘management interests by taxing or recommending discre-
tionary actions that effectively control or implement em-
ployer policy.’’ Ibid.
The Court found that the faculty of Yeshiva, through par-
ticipation in meetings and committees, determined each
school’s curriculum, academic calendar, course schedules,
admissions and matriculation standards, teaching methods
and grading policies, and sometimes determined tuition, the
size of the student body, and the location of a school. The
Court concluded that the faculty’s control of academic mat-
ters was absolute. In nonacademic areas, the Court found that
the faculty played a predominant role in decisions on faculty
hiring, tenure, sabbaticals, termination, and promotion. Al-
though the final decisions on these personnel matters were
made by the administration, the Court noted that, at least in
some of the schools, budget requests were made by the sen-
ior professor in each subject area and received the adminis-
tration’s ‘‘perfunctory’’ approval ‘‘99 percent’’ of the time.
444 U.S. at 675 fn. 3. The Court was not persuaded by the
fact that faculty decisions were subject to veto power in the
administration, which was rarely exercised. Id. at 683 fn. 17.
In concluding that the Yeshiva University faculty were man-
agerial employees, the Court relied primarily on their exten-
sive authority over academic affairs, but also noted their pre-
dominant authority in nonacademic matters.
Recent Board decisions have applied the Supreme Court’s
analysis in Yeshiva to determine whether college and univer-
sity faculty members are managerial employees in diverse
faculty settings. For example, in Livingstone College, 286
NLRB 1308 (1987), the Board found faculty members to be
managerial employees where they exercised substantial au-
thority over curriculum, degree requirements, course content
and selection, graduation requirements, matriculation stand-
ards, and scholarship recipients. The faculty members partici-
pated in academic governance through membership on var-
ious standing committees and by virtue of a faculty-wide
vote on recommendations proposed by these committees.
Generally, recommendations approved by the faculty were
implemented. The Board placed only limited significance on
the fact that the faculty had virtually no input into nonaca-
demic matters such as the budget process, tenure decisions,
selection of administrators, and no authority in the hiring and
firing of faculty. See also University of Dubuque, 289 NLRB
349 (1988).
In University of Dubuque, the Board found the faculty
members to be managerial employees based on their minority
involvement on combined committees, their substantial role
in curriculum and academic policy decisions, and based on
an extant collective-bargaining agreement which gave ‘‘the
faculty . . . the exclusive right to set student grading and
classroom conduct standards; set degree requirements; rec-
ommend earned degree recipients; initially receive and con-
sider’ new degree programs; and develop, recommend and
ultimately approve curricular content and course offerings.’’
Id. at 350. In addition, while noting that it was of ‘‘less sig-
nificance,’’ the Board found that the faculty’s minority in-
volvement on certain other committees allowed them effec-
tively to recommend discretionary actions with respect to a
number of nonacademic areas of governance, including de-
partment staffing, budgeting, long-term planning, and person-
nel actions pertaining to faculty members (hiring, promotion,
and tenure decisions).
In American International College, 282 NLRB 189 (1986),
the Board found the faculty to be managerial even though
they had no meaningful involvement in fashioning or imple-
menting admissions policies and no meaningful input into the
decision-making process with respect to certain nonacademic
matters. The Board emphasized that numerous members of
the faculty were extensively involved in making curriculum
and academic-policy decisions on an on-going basis. The
record evidence showed that the faculty participated in col-
lege-wide, and more narrowly composed, committees which,
on their own initiative, frequently took action with respect to
such issues as whether to modify course requirements, add
or delete course offerings, establish major fields of study, de-
termine course content, and schedule classes. These commit-
tees were extremely active and productive. It was clear,
therefore, that the faculty at American International func-
tioned as managers to a significant degree with respect to
matters that were central to the business in which the school
was engaged. In addition, the Board found that the faculty
effectively controlled or exercised considerable influence
over such nonacademic matters as hiring, evaluating, and
promoting faculty members.
849ELMIRA COLLEGE
In Boston University, 281 NLRB 798 (1986), the Board
held that the department chairpersons and full-time faculty
were managerial employees. The Board found that the Bos-
ton University faculty exercised effective control over ma-
triculation requirements, curriculum, academic calendars and
course schedules, and had absolute authority over grading,
teaching methods, graduation requirements, and student dis-
cipline. The Board also noted that the faculty played an ef-
fective role in recommending faculty hiring, tenure, pro-
motions, and reappointments, and that faculty decisions on
all policy matters were effectuated in the great majority of
instances.
By contrast, in Bradford College, 261 NLRB 565 (1982),
the Board held that the faculty members were nonmanagerial,
where governance documents indicated that they had sub-
stantial authority, but where in practice they had little. The
Board found that the faculty did not effectively determine
teaching loads, salaries, budget, the filling of administrative
positions, faculty evaluations, or certain faculty personnel ac-
tions. The Board also found that the administration had can-
celed an academic session without faculty approval, had
sometimes altered grades given by faculty members, and at
least in some cases, had failed to follow faculty rec-
ommendations for the hiring of new faculty members. In de-
termining that that faculty lacked effective authority, the
Board considered an accrediting agency’s report that re-
viewed the administration’s disregard for stated procedures
and for faculty participation in the administration of the col-
lege. The Board concluded:
In sum, while the faculty and division chairs have
the written right to make recommendations, the record
shows that such recommendations were often ignored
or reversed by the president, by the academic dean, or
by both with respect to curriculum, admission policies,-
graduation of students, course loads, course scheduling,
grading of students, faculty hiring or retention, tuition,
and faculty salaries. Id. at 566–567.
In Florida Memorial College, 263 NLRB 1248 (1982), the
Board found the college’s faculty members to be nonmana-
gerial employees. The Board noted that the various standing
committees had generally been granted little authority and
did not meet regularly. The curriculum was not within the
faculty’s absolute control, as all decisions involving course
offerings had to be approved by the academic council (al-
most one-half of the voting members of the academic council
were administrators), and the curricular proposals had to be
approved by the board of trustees or the dean of academic
affairs. The Board also noted that the faculty had no effec-
tive control over admissions policy, graduation requirements,
or matters relating to the retention, suspension, probation, or
expulsion of students.
The above-described Board decisions clearly establish that
the college faculty are managerial employees within the Su-
preme Court’s definition in Yeshiva. More particularly, the
faculty here exercise far greater prerogatives with respect to
academic matters than did the faculty in University of Du-
buque or Livingstone College, supra, as the faculty commit-
tees here which deal with these matters are comprised pre-
dominantly, and, in some cases, exclusively, of faculty rep-
resentatives.
Thus, college curriculum is established by the faculty. Pro-
posals for new courses originate with individual faculty
members, and final authority to add a course to the curricu-
lum and to set the course credit honors rests with the curricu-
lar affairs committee. The committee also has final authority
over changes in course content, the course level, whether a
particular course satisfies the College’s general educational
requirements, and over individual students’ petitions for
waiver of academic requirements. The faculty also effectively
controls changes in academic programs, and in major and
minor fields of study. The faculty, either through individual
faculty members, divisions, or committees comprised pre-
dominantly or exclusively of faculty members, exercises
broad prerogatives in the approval of degree candidates, stu-
dent grading, course scheduling, class size, number of course
sections, student advising, certain aspects of transfer course
accreditation, and student retention and discipline relating to
academic performance.
Moreover, academic programs such as educational instruc-
tion, speech and hearing clinic, theater, junior year abroad,
freshman writing, graduate reading, human services, nursing,
and medical technology, are supervised by directors who are
all faculty members. In this regard, Petitioner’s reliance on
Lorretto Heights College, 264 NLRB 1107 (1982), is mis-
placed. In Lorretto Heights College, the Board found faculty
members to be nonmanagerial, where program directors
largely controlled the budget, served in key positions on
committees, and were administrators rather than instructors.
However, here, the college faculty members are not directly
involved in decision making on the budget and, in academic
matters, the faculty’s expertise is relied on heavily, as re-
flected in the composition of the academic committees and
in academic decision-making.
Admission of students to the College is controlled by the
faculty through their participation on the educational stand-
ards committee. The committee sets the standards for auto-
matic acceptance of applicants to the College, by which
method the majority (86 percent in 1990) of applicants are
accepted, reviews all questionable applicants for admission,
and makes effective recommendations concerning the admis-
sion of a majority of these applicants. Cf. American Inter-
national College, 282 NLRB 189 (1986), in which the Board
found the faculty to be managerial despite their lack of con-
trol over setting or applying admissions standards. The fac-
ulty also effectively participates in determining the academic
status of transfer students and whether students will receive
credit for coursework at other institutions.
Without more, the nature of faculty involvement with re-
spect to academic matters conclusively establishes their sta-
tus as managerial employees under the foregoing case au-
thority. In addition, however, the faculty here exercise con-
siderable managerial authority concerning significant person-
nel matters affecting faculty members, with the exception of
salaries and nontenure promotions. The faculty effectively
determines the hiring of full-time faculty and, concerning the
hiring of part-time faculty, has a varying degree of authority
ranging from full, final authority in some programs to effec-
tive recommendations in other programs. The faculty effec-
tively determines which faculty members will receive tenure.
Indeed, the faculty also effectively participates in the hiring
of academic deans and other administrative officials.
Through the council of chairs, the faculty has determined the
850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
method by which the faculty will receive salary increases.
The faculty has been effective in recommending changes in
such significant benefit terms as medical insurance and pen-
sions. Each division has control over its own budget or budg-
ets, and the division chairpersons have been effective in es-
tablishing priorities in the funding of capital projects. More-
over, the council of chairs has control over the library’s cap-
ital budget. Thus, the facts establish that the college faculty
has a role in nonacademic matters similar to that of the fac-
ulty found to be managerial in American International Col-
lege, supra, and has a far greater role in nonacademic matters
than did the faculty found to be managerial in Livingstone
College, supra.
While there are facts on the record that indicate a lack of
managerial status, I do not find these considerations control-
ling. Most of these issues fall outside the crucial matters of
academic governance considered dispositive by the Supreme
Court in Yeshiva. The administration has bypassed the fac-
ulty in recent times in making a decision about, most promi-
nently, the automatic admission standards. While the admin-
istration, during the 1989–1990 academic year, unilaterally
may have lowered the scholastic aptitude test standard and
admitted questionable applicants without the approval of the
faculty, the result of the controversy was the acknowledge-
ment by the administration, by written agreement, that every
questionable applicant must by reviewed by the faculty edu-
cational standards committee. Moreover, the administration,
by such agreement, acknowledged the faculty’s authority to
set the automatic admission standards, by which most stu-
dents are admitted to the College. Concerning the creation of
a core curriculum in 1982–1983 without a vote by the fac-
ulty, and the refusal of a past college president in 1985 to
approve the faculty’s recommendation to eliminate field ex-
perience as a general degree requirement, I note that both
matters are remote in time, took place under different top ad-
ministrators and appear isolated in nature.
To be sure, the college faculty does not participate in pro-
motion decisions exclusive of tenure and, in a few instances,
has been overruled in hiring decisions. Also, the faculty has
only a limited voice in administrative decisions involving
salary or benefits or the budget process. However, as noted
by the Supreme Court, a lack of participation in such non-
academic matters, or the occasional veto of faculty action by
the administration, ‘‘in no way detract[s] from the institu-
tion’s primary concern with the academic responsibilities en-
trusted to the faculty.’’ Yeshiva, 444 U.S. at 688 fn. 27.
Finally, of great significance is the recent statement by an
outside party, the Middle States Commission on Higher Edu-
cation, commending the College on the ‘‘participatory proc-
esses now in place,’’ to insure faculty participation in gov-
ernance. Cf. Bradford College, supra at 566, in which the
Board, in finding the faculty to be nonmanagerial, relied, in
part, on a finding by an outside accreditation body of a lack
of participation by the faculty in academic decision-making.
In view of the foregoing, and the record as a whole, I find
that the unit sought by Petitioner is composed of managerial
employees. Accordingly, I shall dismiss the petition.