Fordham University

National Labor Relations Board - Board Decisions

Nov 15, 1974

214 N.L.R.B. 971 (N.L.R.B. 1974)

FORDHAM UNIVERSITY
Fordham University and American Association of Uni-
versity Professors, Fordham University Chapter,
Petitioner . Case 2-RC-16383
November 15, 1974
DECISION AND DIRECTION OF ELECTION
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Mary W.
Taylor. Pursuant to Section 102.67 of the National
Labor Relations Board Rules and Regulations, Series
8, as amended, and by direction of the Regional Di-
rector for Region 2, this case was transferred to the
National Labor Relations Board for decision. There-
after, the Employer' and the Petitioner filed briefs in
support of their respective positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. Fordham University is a corporation chartered
by the legislature of the State of New York in 1846 as
a private nonprofit institution of higher education
with offices and educational facilities at two campus-
es (Rose Hill in the Bronx and Lincoln Center in
Manhattan) located in New York City, New York.
We find that the Employer is engaged in commerce
within the meaning of the Act, and that it will effec-
tuate the policies of the Act to assert jurisdiction
herein.'
2. The labor organization involved claims to rep-
resent certain employees of the Employer.'
3. A question affecting commerce exists concern-
ing the representation of employees ^ of the Employ-
1 The requests for oral argument made by the Employer are hereby de-
nied , as the record , including the briefs, adequately presents the issues and
positions of the parties
2 Although the Employer refused to stipulate that Fordham meets the
jurisdictional standard for colleges and universities set forth in Sec 103 I of
the Board ' s Rules and Regulations , it did so stipulate in Fordham University,
193 NLRB 134 (1971), involving the same employer, and does not now offer
evidence that conditions have changed In that case , the Board found that
Fordham's annual revenues from tuition fees and donations exceed $1 mil-
lion, of which more than $50,000 are received from outside the State of New
York
3 As in Fordham University, supra at fn 4, we find no merit in the
Employer' s contention that the Petitioner is not a " labor organization"
within the meaning of Sec 2(5) of the Act
4 We reject the Employer's contention that any faculty bargaining unit
971
er within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act.
4. The Petitioner seeks a unit of all full-time teach-
ing faculty,' including department chairmen and as-
sistant chairmen and professional nonsupervisory li-
brarians at Fordham University, but excluding the
School of Law and excluding all part-time faculty
and ancillary support personnel, except the director
of the language laboratory at Lincoln Center. If any
unit is found appropriate, the Employer would ex-
clude, in addition to the exclusions listed by the Peti-
tioner, all department chairmen, the director of
teacher certification and field instruction in the
School of Education, the director of field instruction
and director of admissions in the School of Social
Service, all professional librarians, and all temporary
and probationary faculty members with terminal
contracts as well as faculty members who will retire
or have tendered resignations effective at the end of
the school year.
The department chairmen: The Rose Hill Lincoln
Center campuses have approximately 450 full-time
and 327 part-time or adjunct faculty members of
which 37 are department, division, or sequence chair-
men .6 For the administration of academic affairs at
Fordham, the ultimate authority rests with an inde-
pendent and self-perpetuating board of trustees
which appoints the president, the University's chief
executive officer. Each department in each school is
responsible to the dean of that particular school, who
in turn is responsible to the vice president for aca-
demic affairs for the entire University.
Pursuant to the Fordham University statutes, as
amended July 1, 1973, which set forth faculty policies
and procedures, the chairman of a department is no-
minated by the faculty of that department which
transmits the names to the dean of the school, who in
turn forwards the names with his own comments to
the vice president of academic affairs. A departmen-
tal nominee will be appointed except in exceptional
circumstances. This procedure is more formal than
that in effect at the time of the previous Fordham
University decision, when the dean merely consulted
with the faculty of the department and noted its rec-
would have a conflict of interest because some faculty members sit on
policymakmg committees The Employer has offered neither additional
evidence nor additional arguments to warrant a reversal of our finding in
Fordham University, supra at 134-136, that faculty members are not supervi-
sors or managerial employees , but are professional employees within the
meaning of Sec 2(12) of the Act, and are entitled to all the benefits of
collective bargaining if they so desire Also see C W Post Center of Long
Island University, 189 NLRB 904 (1971), New York University, 205 NLRB 4
(1973)
5 The parties have, by joint stipulation, agreed that members of the full-
time faculty who are also members of the Society of Jesus should be includ-
ed in the bargaining unit together with the full -time faculty
6 Different schools within the University use different terms (department,
division, or sequence) to identify the units of various academic disciplines
For the purpose of simplicity, only "department" will hereinafter be used
214 NLRB No. 137
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ommendations. The chairman is appointed for a
term of 3 years and may be reappointed to one addi-
tional 3-year term followed by subsequent year-to-
year reappointments . He receives a special stipend of
$500 to $1,000 and normally will carry a reduced
teaching load.
The university statutes set forth, in pertinent part,
"The faculty of a Department or Division has a col-
lective responsibility for the academic program and
curricula of the Department or Division . For this
reason, the faculty of the Department [emphasis sup-
plied] has a primary responsibility in matters of fa-
culty appointment, reappointment, tenure and pro-
motion in accordance with the relevant sections of
these statutes ." These same statutes direct the depart-
ment chairmen to provide leadership in the depart-
ment and to administer the department in a manner
consistent with the relevant university statutes and in
accordance with the policies and procedures estab-
lished by the school and the department itself. In
order to hire full-time faculty members, each depart-
ment uses a selection committee composed of several
members of the department's faculty. The chairman
may initially receive requests for employment and go
to conventions to solicit applications , but it is the
committee that establishes the hiring criteria or qual-
ifications and conducts the interviews . Although the
chairman participates in the interview and submits a
recommendation on a form prepared by the Univer-
sity for the specific use of department chairmen, at
least three other faculty members participating in the
interview are also required to submit recommenda-
tions to the dean. Any other faculty member is free
to submit a recommendation also. The dean will
rarely make an appointment over the opposition of
the department , and he will weigh all the arguments
in instances where the chairman and the faculty com-
mittee disagree.
The university statutes set forth no procedure for
the hiring of adjunct professors or the negotiating of
salaries with them , but the record indicates that the
chairmen have more individual discretion in this area
than in the hiring and retention of full-time faculty
members. There is conflicting testimony in the record
as to the actual procedure used in hiring adjuncts in
that several department chairmen testified that their
recommendations to the dean regarding adjuncts are
based on prior consultation with the department, a
procedure which was undisputed in the previous
case, whereas several deans testified that they acted
without consultation . The recommendations are re-
viewable by both the dean and academic vice presi-
dent, and, although they are usually accepted, there
have been instances where the chairman's recom-
mendation was denied at a higher level.
Each school or department has a promotion com-
mittee consisting of the department chairman , all fa-
culty members holding ranks which are the same as
or higher than the candidate for promotion, and sev-
eral representatives of other departments. On the ba-
sis of the recommendations of the department's pro-
motion committee and his own evaluation , the dean
submits his recommendation to the academic vice
president . The university statutes indicate that the
greatest weight is given to the evaluations of a candi-
date by his faculty colleagues.
The tenured faculty of a school or department be-
comes the tenure committee which meets to evaluate
a candidate for tenure ; each member votes by secret
ballot , the results of which the department chairman
forwards to the dean; the chairman and the other
tenured faculty members each submit explanations
of their vote to the dean; and a recommendation for
tenure will not be made unless a majority of the ten-
ured faculty votes in favor of awarding tenure since,
as mandated by the university statutes, the recom-
mendations of the tenured faculty of the department
or school are given the greatest weight in the final
decision, which is made by the university administra-
tion. The reappointment of probationary faculty
members follows essentially the same procedure, and
the recommendations of the department ordinarily
are determinative of the ultimate decision to reap-
point.
The department chairmen have no authority to
dismiss or suspend faculty members. Instead, such
matters come before the faculty hearing committee,
whose decision is forwarded to the board of trustees.
Although a faculty member may discuss a salary-re-
lated grievance with his chairman , dean , or the aca-
demic vice president, he is free to invoke a more for-
mal procedure by petitioning the faculty grievance
committee. Finally, grievances relating to tenure and
reappointment are processed by the faculty tenure
and reappQintment review committee.
The record contains contradictory evidence as to
who has the authority to draw up the budgets for
each department. The Employer argues that the de-
partment chairmen have the authority to submit and
supervise the budget for adjunct faculty salaries,
graduate assistant salaries, their own administrative
stipends , clerical salaries, postage and office supplies,
and travel expenditures . The Petitioner ' s witnesses
testified that the chairmen draw up the budget re-
quests with the advice and consent of other faculty
members, while following the guidelines set up by the
university budget committee which includes faculty,
students, and administrators. The budget requests
are received by the deans, the academic vice presi-
dent, the budget committee, and the board of trus-
FORDHAM UNIVERSITY
tees , and changes can be made at each stage.
To effectuate the disbursement of funds allocated
for faculty merit pay increases for the year 1973-74,
the department chairmen and their respective deans
submitted reports to the academic vice president of
the University describing the procedure and method
they used in determining their recommendations as
to who should and should not get a discretionary
merit increase. The department chairmen also sub-
mitted to the deans separate reports evaluating each
member of their department regarding entitlement to
a merit increase . The procedure by which the recom-
mendations were determined varied from depart-
ment to department and school to school as no uni-
form universitywide procedure existed.' In most in-
stances , the written recommendations of the
department chairmen were reviewed by the deans
during meetings with each chairman,' after which the
recommendations were subjected to a further review
by the academic vice president before the actual dis-
bursement was determined.' It appears from the rec-
ord that in a significant number of circumstances the
review by the deans resulted in modifications of the
suggestions by the department chairmen.10 On the
' Several department chairmen , such as the head of the physics depart-
ment, indicated that they wrote their recommendations themselves without
consultation with other faculty In the political science department, junior
faculty personnel were evaluated by the tenured faculty committee, and the
chairman 's personal recommendations were used only for senior faculty
members . The chairman of the mathematics department was even more
collegial in his approach , as he drafted his recommendations based on dis-
cussions with his faculty appointments committee , student representatives,
the associate chairman of the department , and some nontenured members
of the department . Consultations with students and colleagues were also the
basis of the recommendations in the department of communications Final-
ly, the dean of the Graduate School of Social Service made the recommen
dations himself based on one-page memorandums submitted by each facul-
ty member relating to his or her activity during the preceding year, it ap-
pears from the record that the seven department chairmen in the said
graduate school had no input whatsoever in the recommendations submit-
ted by the dean to that school
8
This procedure obviously was not followed in the Graduate School of
Social Service where, as indicated above , the dean made the recommenda-
tions himself and forwarded them to the academic vice president Many of
the department chairmen met with the dean of the liberal arts faculty, the
dean of Fordham College , and the dean of Thomas Moore College
9 There is evidence that the merit increase for a member of the Russian
studies department recommended by the department chairman and adopted
by the deans was nevertheless modified at a subsequent review at a higher
level
10 In 1973-74, there were many more instances where department
chairmen 's recommendations were not followed than our dissenting col-
league would lead us to believe In the political science department, the
chairman recommended equal increments for employees David and Mills
and employees Fergus and Chaney, but all four actually received different
amounts He rated three other faculty members equally , yet one received
$100, another received $200, and the third one was given no increment. The
chairman made no recommendation regarding himself but was nevertheless
given $500 Thus out of 13 individuals listed by the chairman , only 6 re-
ceived increments in line with his recommendation In the history depart-
ment, increments were given to five individuals for whom the chairman had
not recommended increases , and were denied two faculty members for
whom he had recommended a merit award The chairman of the mathemat-
ics department indicated that, after his discussion with the deans regarding
merit increases , there were questions still unresolved concerning priority
973
surface, the several levels of review of these recom-
mendations, as well as the incidence of modifica-
tions, raise serious questions as to the effectiveness
of the department chairmen's recommendations.
Therefore, although the record herein is more com-
plete than in the prior Fordham case where the Board
was unable to find that chairmen have power effec-
tively to recommend salary increases, we disagree
with our dissenting colleague's conclusion that the
record establishes beyond doubt that the department
chairmen effectively recommend increases. To the
contrary, the record raises such strong doubts as to
the effectiveness of the recommendations that, as in
the prior case, we are still unable to find that depart-
ment chairmen have sufficient authority to establish
supervisory status.
Pursuant to the university statutes, the entire de-
partment has the responsibility for the academic pro-
gram. Course assignments and meeting times are ar-
ranged, if possible, by a consensus of the faculty, and
the department chairman will make a binding assign-
ment only in the event of an irreconcilable conflict.
Assignments to the summer school program are
made in the same manner after the course offerings
are determined. Although the department chairman
has a concern for the quality of education rendered
in his department, that collegial concern is shared by
the entire faculty of the department. The entire de-
partment may review a faculty member's syllabus
and bibliography. Department chairmen do not visit
classes to observe faculty members, and evaluations
regarding the quality of specific faculty members are
made by the tenure and promotion committees. The
individual faculty member still retains a great degree
of freedom in the conduct of his courses."
The relationship between the department chair-
man and the secretary in each department regarding
hiring, termination, and direction of work has not
and equity of disbursements for certain faculty members In noting that the
final determinations which he received resolved the differences , the chair-
man implies that he had no effective input into the final decisions The
deans were not willing to accept all of the proposals of the chairman of the
department of modern languages Most notable was the denial of a positive
recommendation regarding an individual whom the chairman believed de-
served a merit increase in spite of his problem in meeting deadlines, which
caused the administration and the registrar considerable grief In regard to
the other departments, the record is unclear as to the extent of modifications
in the recommendations of department chairmen , although several chair-
men indicated initial differences which were ultimately resolved at the meet-
ings with the deans
1 For this reason we do not find persuasive our dissenting colleague's use
of faculty-to-supervisor ratios to support his position that department chair-
men are supervisors We are not here dealing with a production assembly
line in an industrial environment where "first-line supervisors " are either
needed or required As noted above, each faculty member because of the
nature of the work must, of necessity , retain not only a great deal of free-
dom in the conduct of courses , but also in the pursuit of academic objec-
tives . The ratio of supervisors to employees is not a rule of law , but merely
a guide to help the Board in determining together with other factors set out
in Sec 2(11) of the Act whether an individual has supervisory status. In our
opinion in a university faculty setting such ratios have little relevancy
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
changed since the previous Fordham decision where
we found that the mere fact that professional em-
ployees may have secretaries does not necessarily
constitute them supervisors. Also unchanged is the
privilege of a department chairman to serve as a fa-
culty representative on the faculty senate, the faculty
grievance committees, and the university budget
committee. Catalogues published by the various
schools still list department chairmen among mem-
bers of the faculty rather than members of the ad-
ministration.
We are not persuaded that we erroneously con-
cluded in Fordham University, supra, that department
chairmen are not supervisors. Nor do we find that
circumstances have so changed since 1971 as to war-
rant a different conclusion at this time. On the con-
trary, the university statutes clearly mandate that
many of the duties inherent in the functions of a uni-
versity department or school be executed in an atmo-
sphere of collegiality where decisions are made col-
lectively subject to review by high administration of-
ficials such as the deans or the academic vice
president.12 Decisions as to appointment, promotion,
and tenure are based on a faculty determination in
each department pursuant to procedures set forth in
the university statutes, rather than by the effective
recommendations of department chairmen.13 The
chairmen play but a small and informal role in the
grievance procedure. Proposed departmental budgets
are essentially the result of collective efforts, and the
criteria and review procedures are so complex that
little discretion remains with the department chair-
men. Although the chairmen need not consult their
colleagues regarding merit increase recommenda-
tions, such recommendations are subject to review
and are not always followed. Course assignments and
the monitoring of the quality of education in each
department is a collective effort, and department
chairmen clearly exercise no control over the day-to-
day work of each faculty member. The Employer has
offered no additional evidence to warrant a reversal
of our conclusion in the previous case that depart-
ment chairmen do not exercise statutory supervisory
authority over secretaries.14 Also, since part-time or
adjunct faculty are excluded from the unit, and since
there is no indication in the record that department
chairmen consume over 50 percent of their time di-
recting them,15 they are not supervisors with respect
to adjuncts.16
12 Contrary to the assertion of our dissenting colleague, we do not place
particular significance upon the formal enactment of the university statutes
since the hearing in the prior case Instead , we use the university statutes
merely to demonstrate with additional clarity the continuance of many of
the procedures upon which our earlier Decision was based
i3 Cf Fairleigh Dickinson University, 205 NLRB 673 (see discussion enti-
tled "Department Chairmen") (1973)
14 Fordham University, supra at 138-139
Accordingly , we find that the department chair-
men are neither supervisors nor managerial employ-
ees and shall include them in the unit.
The director of field instruction and teacher certifica-
tion in the School of Education holds a faculty rank,
teaches several courses although she has a reduced
course load , and has served on numerous faculty
committees . She administers the school 's program for
student teaching by coordinating the elementary
education and secondary education faculty teams
which observe and supervise students who are prac-
tice-teaching in the community. The teams, by con-
sensus, determine the assignment of faculty team
members to observe at participating schools. If the
teams cannot agree on assignments , then the director
makes a recommendation to the assistant dean which
is ordinarly accepted. We find that the director func-
tions as a representative of the fieldwork faculty and
is not a supervisor within the meaning of the Act.
Accordingly , we shall include her in the unit.
The director of field.instruction in the School of So-
cial Service, as well as the associate director, are mem-
bers of the tenured faculty , and both teach courses
although they have a reduced teaching load. The di-
rector and associate director, following consultation
with the field instruction committee , make recom-
mendations to the dean regarding the selection of
social service agencies in the community where the
students will put their classroom instruction into
practice , and they assign particular students to each
agency. The director recommends to the dean the
assignment of about 25 full-time faculty members to
oversee the students' educational experience at the
agencies, but her recommendations are based on a
consensus of the faculty and of the faculty field in-
struction committee , although she has the responsi-
bility to make the recommendations herself if a con-
sensus cannot be reached . It appears from the record
that the director and the associate director share a
collegial relationship , and there is no evidence that
they spend over 50 percent of their time supervising
the one clerical employee in the department . Unlike
the director of field work in Adelphi University, supra,
there is no evidence that the director here has the
authority to hire faculty . We find that the duties of
15 Westinghouse Electric Corporation, 163 NLRB 723, 726-727 (1967) We
deny the Employer 's request that we reconsider the propriety of the 50-
percent rule We have recently applied this standard in Adelpht University,
195 NLRB 639, 644 (1972) (Member Kennedy dissenting in part on other
grounds), and New York University, 205 NLRB 4 ( 1973) (where Member
Kennedy participated and filed no dissent) In each of these cases , we found
a professional employee not to be a supervisor within the meaning of the
Act where he only supervised nonunit employees and did so less than 50
percent of the time, we applied and discussed it at considerable length in
Amalgamated Clothing Workers of America, AFL-CIO, CLC, 210 NLRB 928
(1974) (Chairman Miller and Member Kennedy dissenting on the facts)
16 New York University, supra (see discussion of department chairmen)
FORDHAM UNIVERSITY
the director and the associate director are those of a
representative of the faculty and not of a supervisor,
and, accordingly, we shall include them in the unit.
The director of admissions of the School of Social
Service reviews applications for student admissions.
She is a tenured faculty member who teaches one
course each semester, has served on several faculty
committees, has been elected to the faculty senate,
and receives an additional stipend for her work dur-
ing the summer months. She has the authority to di-
rect the work of the two clericals in the admissions
office. The record contains conflicting testimony as
to whether she spends more or less than 50 percent of
her time supervising the clericals, and therefore we
shall permit her to vote subject to challenge.
Faculty with terminal contracts: The probationary
contract is for a defined period of 1, 2, or 3 years but
may be renewed, and a faculty member with a proba-
tionary contract may be eligible for tenure if the nec-
essary requirements are met. Temporary contracts
are for 1 year and expressly state, "This is a tempo-
rary appointment; renewal should not be expected."
Probationary or temporary faculty members whose
contract will not be extended are so notified 6
months, 1 year, and sometimes 2 years in advance of
the termination date. Although faculty members with
temporary contracts are not to expect reappoint-
ment, almost 25 percent are retained for a subse-
quent year. Occasionally, a probationary faculty
member who has been given notice of nonrenewal is
retained, nevertheless, for a subsequent year. The
Employer contends that the Board should develop a
rule peculiarly applicable to the academic setting
rather than adhere to the well established rule " that
employees otherwise eligible to vote do not become
ineligible because of an expected termination of em-
ployment after the election. We find no merit in this
argument.
Even if a probationary or temporary faculty mem-
ber has his expectation of future employment clearly
established by the terms of the written contract, nev-
ertheless, it is clear that he continues to share a com-
munity of interest with other faculty members before
his contract terminates. As indicated above, faculty
members are given from 6 months' to 2 years' notice
of their termination, during which period they con-
tinue to participate in all departmental processes and
are eligible to serve on the faculty senate and other
committees. It cannot be argued that these individu-
als have no interest in the terms and conditions of
employment during those periods.
The Employer contends that those faculty mem-
bers who have tendered resignations or will retire ef-
17 Whiting Corporation , 99 NLRB 117, 122 (1952)
975
fective at the end of the academic year should also be
excluded. Yet they, too, continue to have an interest
in the terms and conditions of employment prior to
their effective termination of employment.
Accordingly, faculty members with terminal con-
tracts are included in the unit since, while their em-
ployment continues, they have a substantial commu-
nity of interest with their colleagues."
Librarians: Although the librarians do not have fa-
culty status, they are professional employees 19 who
should be included in the unit,20 contrary to the
Employer's contention. The Board has recently, in
New York University, supra at 8, reaffirmed its posi-
tion that professional librarians possess a sufficient
community of interest to be included in a faculty unit
".. . as a closely allied professional group whose ul-
timate function, aiding and furthering the education-
al and scholarly goals of the University, converges
with that of the faculty, though pursued through dif-
ferent means and in a different manner."
The Employer contends that the following are su-
pervisors and should be excluded on that basis:
Mary Riley is the chief reference librarian at
Duane Library on the Rose Hill campus. She sched-
ules and directs the work of three members of the
library staff, two clericals, and three part-time stu-
dent employees; she conducts interviews for job
openings and makes effective recommendations; her
salary is 30 percent higher than that of the other li-
brarians in the reference department; and it is undis-
puted that she spends over 50 percent of her time
supervising employees in her department. We find
that Mary Riley is a supervisor and must be excluded
from the unit.
Thomas Bechtle, Herbert Knepper, and Steven
Pandolpho are librarians who work under Mary Ri-
ley in the reference department. Although each is in
charge of the department on a rotating basis when
Mary Riley is not on duty, there is no showing that
they spend over 50 percent of their time supervising
nonunit employees. Accordingly, we find them not to
be supervisors or managerial employees and include
them in the unit.
Michael Ujhelyi, as head of the catalogue depart-
ment, directs the work of two library staff members,
who were hired on his recommendations, and also
directs the work of seven clericals. As it is undisputed
that Ujhelyi spends well over 50 percent of his time
supervising clericals, we find that he is a supervisor
and must be excluded from the unit.
18 New York Univeristy, supra, Manhattan College, 195 NLRB 65, 66
(1972), Tusculum College, 199 NLRB 28 (1972)
19 We find no merit in the Employer's contention that librarians are not
professional employees within the meaning of Sec 2 (12) of the Act
20 C W Post Center of Long Island University, supra, Fordham University,
supra
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marta Ronaszegi, as serial librarian, directs the
work of one library staff member who is in the de-
partment on a half-time basis, and four full-time cler-
icals. We find that she is a supervisor and must be
excluded from the unit.
Barbara Sykes is the business reference specialist
and a member of the library staff. She spends only
half of her time in the circulation department, and
there is no contention that she spends over 50 per-
cent of her time supervising clericals in that depart-
ment. Accordingly, we find that she is neither a su-
pervisor nor a managerial employee and therefore in-
clude her in the unit.
From the record, we are unable to determine
whether the following librarians spend less than 50
percent of their time supervising nonunit employees,
a determining factor as to unit inclusion:21 Edmund
Maloney, head of the circulation department; Peter
Zilionis, head of the order department; Elizabeth
McKernan, in charge of the circulation department
at the Lincoln Center Library; and Anne Finnan,
chief reference librarian at the Lincoln Center Li-
brary. Accordingly, they may vote subject to chal-
lenge.
For the reasons stated above, we find that the fol-
lowing unit constitutes a unit appropriate for the pur-
pose of collective bargaining within the meaning of
Section 9(b) of the Act:
All full-time faculty and nonsupervisory profes-
sional librarians including department, division,
and sequence chairmen, assistant chairmen, the
language laboratory director, the director of
field instruction and teacher certification in the
School of Education, and the director and asso-
ciate director of field instruction in the School of
Social Service; but excluding officers of admin-
istration such as the president, vice president,
deans, associate deans, and assistant deans,
part-time or adjunct faculty, ancillary support
staff except the language laboratory director, the
faculty and librarians of the School of Law, and
guards and supervisors as defined in the Act,
and all other employees.
[Direction of Election and Excelsior footnote omit-
ted from publication.]
MEMBER KENNEDY, dissenting:
In the initial Fordham case,22 I disagreed with the
conclusion of my colleagues that Fordham's "depart-
ment chairmen" 23 were not supervisors within the
21 Adelphi University, supra, New York University, supra
22 Fordham University, 193 NLRB 134 (1971)
23 This term also encompassed the division chairmen in the School of
Education and Liberal Arts College and the sequence chairmen in the
School of Social Service
meaning of Section 2(11) of the Act. In the dissent, I
listed several responsibilities imposed upon the chair-
men which, in my judgment, vested them with super-
visory authority. A review of the record in the instant
case reaffirms the accuracy of that judgment. Indeed,
certain post-1971 alterations in the responsibilities of
the department chairmen even further strengthen
their status as supervisors.
In the instant case , the majority concludes that
Fordham's department chairmen are not supervisors
because "the university statutes clearly mandate that
many of the duties inherent in the functions of a uni-
versity department or school be executed in an atmo-
sphere of collegiality. . . ." 24 While it appears that
there is faculty involvement in such matters as full-
time faculty appointments, reappointments, promo-
tions, and tenure, this of course does not end our
inquiry." There are other matters involved in the op-
eration of an academic department, many of which
the chairman may feel need not-or cannot-be re-
solved on a collegial basis. The instant record dis-
closes at least two such matters: (1) the awarding of
faculty merit increases, and (2) the utilization of ad-
junct faculty.
The university statutes provide that each year the
administration and the Faculty Salary and Benefits
Committee will negotiate an agreement regarding the
amount of money to be allocated to faculty salaries
and benefits.26 In addition, the agreement also estab-
lishes general guidelines for the determination of sal-
ary increments, adjustments, and benefits. Once an
agreement has been reached, "the Dean of each
School in consultation with the Chairmen of the De-
partments shall make recommendations as to salaries
for the faculty of his School. .. ." 27
For the 1973-74 academic year, the agreement ne-
gotiated by the Faculty Salary and Benefits Commit-
tee provided for five types of salary increments: (1)
"across-the-board" increments, (2) "equalization" in-
24 Unlike my colleagues, I place no particular significance upon the for-
mal enactment of the university statutes since the hearings in the prior case
The relevant portions of the statutes (i e, Part Ill-University Academic
and Administrative Structure , and Part IV-Faculty Policies and Proce-
dures) were introduced into evidence at that hearing in draft form Howev-
er, as the vice president for academic affairs , Dr Paul J Reiss , then testi-
fied, those sections of the statutes constitu ted nothing more than a codifica-
tion of existing practices
25 1 think the majority oversimplifies the problem somewhat by treating
all of the departments collectively In fulfilling the mandates imposed by the
university statutes , each of Fordham's 40-odd schools , departments, divi-
sions , and sequences has molded its procedures so as to accommodate its
own particular circumstances These procedures vary widely with regard to
both their formality and their reliance upon joint ( i e , "collegial") decision-
making The dean of the School of Social Service , for example , testified that
he conferred with the sequence chairmen-but never with the faculty-
before making initial faculty appointments I think it unwise to disguise
such differences behind a general "collegiality" label
26 University Statutes , sec IV, 12 1(a)
27 University Statutes , sec IV, 12 1(b)
FORDHAM UNIVERSITY
crements for selected individuals whose salaries were
below the average for their ranks, (3) "promotion"
increments, (4) increments for new faculty members
designed to raise their salaries to the minimum levels
established for their ranks, and (5) "discretionary"
increments to be awarded on the basis of merit, equi-
ty, or for competitive reasons. Nineteen percent of
the total funds budgeted for incremental increases
under the agreement was earmarked for "discretion-
ary" increases. As for the disbursement of such
funds, the agreement provided that "[d]iscretionary
funds shall be allocated among the colleges on a per-
capita basis, and the deans and/or the departmental
chairmen shall determine its distribution. " 28 (Emphasis
supplied.)
In the initial Fordham decision, the precise role of
the department chairmen in determining faculty sal-
ary increases was less than clear. In fact, the majority
noted that on one occasion the administration gener-
ated a protest from department chairmen by failing
to inform them of the salary increases granted to the
members of their departments.29 In the 2 academic
years since that decision (1972-73 and 1973-74), the
role of the department chairmen has been clarified
and formalized.
The deans and department chairmen involved in
the distribution of discretionary increments now are
required to submit two written reports: (1) recom-
mendations as to how the discretionary increments
should be distributed, and (2) a report as to the man-
ner in which the discretionary increments were com-
puted. In a letter to the deans and department chair-
men, Dr. Reiss explained that the latter report should
provide such information as a description of the pro-
cedure utilized in arriving at the recommendations,
the factors which were used as criteria, the relative
weight assigned to the various criteria, and the form
in which the recommendations were expressed. As
further stated by Dr. Reiss, the reports "are not in-
tended to influence the determinations finally made
. . ." but rather to "provide information for later
discussion on the manner in which salary increments
are to be arrived at in future years."
In addition to these reports, the department chair-
men are required to submit in writing their recom-
mendations as to precisely how the discretionary in-
crements allocated to their departments should be
distributed among the faculty members. As was em-
phasized by Dr. Reiss in his letter, "[i]t is important
28 The fact that distribution may be made by the 'deans and/or the de-
partmental chairmen" does not detract from the authority vested in the
chairmen It is merely an acknowledgement that certain schools (Graduate
Institute of Religious Education, School of General Studies, and Graduate
School of Business Administration) are not departmentalized
29 193 NLRB 137-138
977
that the discretionary funds be allocated in a selec-
tive manner and not simply in an `across the board'
manner."
While the reports and recommendations submitted
by the department chairmen vary with respect to
length and detail, those contained in the instant rec-
ord reveal that all facets of a faculty member's job
performance-teaching ability, research, publica-
tions, scholarly activities, participation in departmen-
tal affairs, etc.-are evaluated by the department
chairmen. A few examples are illustrative:
1. From the chairman of the psychology depart-
ment:
Very active in research and publication, in-
cluding research grants in which students par-
ticipate. Directing large number of disserta-
tions. Constantly seeks ways of strengthening
clinical program; readily assumes heavy de-
partmental responsibilities; popular and effec-
tive teacher.
2. From the chairman of the modern languages
department:
Absolutely not. Received undeservedly large
increment last year; huge salary from TMC
this year, consistently missed Departmental
and Promotion meetings; complaints on
teaching.
3. From the chairman of the fine arts depart-
ment:
He has shown himself to be an outstanding
teacher whose popularity is due not to person-
ality alone, but even more to his ability to
make students understand the significance of
the material under consideration. His students
tell me they enjoy his courses because they
learn so much from him. Furthermore, he has
taken an active interest in advancing the well-
being of the Department. He cooperated
closely with me, as Chairman, in our attempt
to modify the unjust curriculum distribution
requirements so that our Department may
have access to students before the junior year.
He represented our Department intelligently
and honestly at the Undergraduate Council,
keeping all of us informed, and consulting our
opinions. He participated helpfully in our
Department's extracurricular University serv-
ices.
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. From the chairman of the English depart-
ment:
While he has not published, his work on dis-
sertations, committees, and other areas of de-
partmental function has been more than dis-
tinguished. He also took over a large Chaucer
section beyond his own this last term, when
Grennen went on leave.
He rates tops in every conceiveable way, is
amazingly dedicated and effective in every
area of consideration. He was recommend
[sic] for promotion this year.
I would rate him as generically servicable but
not distinguished.
While my colleagues acknowledge that the chair-
men need not consult their colleagues regarding mer-
it increase recommendations, they nevertheless dis-
count this authority because "such recommendations
are subject to review and not always followed." With
respect to their first objection, I have yet to experi-
ence a "recommendation" which was not "subject to
review"-recommendations are by definition adviso-
ry in nature.30
With regard to my colleagues' contention that the
merit recommendations of the chairmen are "not al-
ways followed," such of course has never been a pre-
requisite to a finding of supervisory status. It is suffi-
cient if the recommendations are deemed to be "ef-
fective." 31 The record establishes beyond a doubt
that the recommendations of the department chair-
men are "effective."
Of the approximately 450 full-time faculty mem-
bers employed during the 1973-74 academic year,
Petitioner refers in its brief to five instances in which
a department chairman's recommendations were not
followed: (1) two instances in which the department
chairman was too modest to recommend a merit in-
crease for himself, (2) one instance in which a dean
increased a recommended merit award on the basis
of a contribution made by a faculty member after the
chairman in question had left campus for the sum-
mer, (3) one instance in which a dean granted a merit
increase on the basis of a faculty member's work out-
side of the department, and (4) one instance in which
the recommendations of the chairman of the political
30 See Webster's Third New International Dictionary (1966) where the
verb "recommend " is defined as to "indicate as being one's choice for some-
thing or as otherwise having one 's approval or support- offer or suggest as
favored by oneself "
31 E g, C W Post Center of Long Island University, 189 NLRB 904, 906
(1971), Adelphi University, 195 NLRB 639, 642 (1972), Syracuse University,
204 NLRB 641 (1973)
science department regarding the order in which the
faculty members should be considered for merit in-
creases (no monetary amounts were recommended)
were modified slightly during a subsequent (but nev-
ertheless prescheduled) meeting with the dean.32
In my judgment, these few instances do not sup-
port a finding that the department chairmen's recom-
mendations are not "effective" within the meaning of
Section 2(11) of the Act. Indeed, it is unrealistic to
conclude that they are anything but effective. With
nearly 450 full-time and 327 part-time faculty mem-
bers employed by the University, do my colleagues
believe the deans of Fordham's 10 schools and col-
leges to be sufficiently familiar with the job perfor-
mance of each faculty member to make an informed
judgment as to merit increases?
It is likewise clear that department chairmen retain
considerable independent control over the utilization
of part-time or adjunct faculty members.33 Since the
university statutes do not encompass adjunct person-
nel, the appointment, reappointment, termination,
and establishment of working conditions for most
adjunct faculty members have been regularly accom-
plished by the department chairmen-without faculty
participation-subject only to the routine approval of
the deans and academic vice president .14
I do not understand my colleagues to dispute
either the existence or exercise of such authority.
Rather, they rely upon their so-called "50-percent
rule" in finding that department chairmen "are not
supervisors with respect to adjuncts." Since I reject
that rule as being contrary to the Act,35 I would not
utilize it to negate what is the clear existence of statu-
tory supervisory authority.
We are thus faced with a factual situation similar
to that presented in Adelphi University36 -a signifi-
cant amount of "collegial" type decisionmaking on
many departmental matters with the chairmen re-
taining independent authority over the allocation of
merit increases and the utilization of adjunct person-
32 My colleagues also rely upon the fact that during the 1973-74 academic
year the recommendations of the chairmen of the history and modern lan-
guages departments were not followed in their entirety The chairman of the
history department explained that at the time he made his recommendations
he was unaware of the amount of money available, and, had he been so
aware , his list of faculty members qualified for discretionary increases
would have been longer As for the department of modern languages, its
chairman noted in his report to the academic vice president that "lt]he great
majority of my recommendations were made (and accepted by the Deans) on
the basis of performance during the previous year, principally scholarship,
extraordinary service to the department, and teaching " (Emphasis sup-
plied )
73 This authority was not discussed in the initial Fordham Decision See
193 NLRB 137-139
74 Such independent authority also exists with regard to department cleri-
cals
35 See my separate opinions in Amalgamated Clothing Workers of America,
AFL-CIO, CLC, 210 NLRB 928 (1974), and Automobile Club of Missouri,
209 NLRB 614 (1974)
36 Adelphi University, supra, In 32 at 639
FORDHAM UNIVERSITY
nel. I did not sign the majority opinon in Adelphi, but
Chairman Miller and Member Fanning there con-
cluded that:
Since the record shows that chairmen have the
authority effectively to recommend the hire and
reappointment (or nonreappointment) of all
part-time faculty members, and to allocate merit
increases , without the approval of the
department's faculty, we find that they are su-
pervisors within the meaning of Section 2(11) of
the Act.37
It seems to me that a finding of supervisory status
here is the only one which accords with the realities
of academic life.
Academic departments are run on a relatively au-
tonomous basis under the leadership of a chairman.
Under Fordham's university statutes, the depart-
ments are "academic units which are responsible for
the organization and operation of the academic pro-
gram in a particular subject area." 38 The chairman is
"responsible for the administration of the affairs of
the Department" and must "provide leadership in
the development and maintenance of excellence in
the Department's program." sv
Such autonomy also means that the deans of the
various schools and colleges-those whom my col-
leagues now find to be firstline supervisors-are for
the most part not sufficiently involved in the daily
37 Adelphi University, supra, in 32 at 642
38 University Statutes, sec III, 8 I
39 University Statutes , sec III, 8 2
979
operation of the departments to provide them with
the knowledge necessary to render effective supervi-
sion. Academic deans are concerned more with the
educational objectives of the university and their
school or college's role in the advancement of those
objectives than they are with such details as class
size, course scheduling, and the quality of a faculty
member's most recent publication.
In a word, academic deans simply do not have the
time to be firstline supervisors. Consider the statis-
tics: In refusing to find that the department chair-
men are supervisors, my colleagues impose the fol-
lowing faculty-to-supervisor ratios on Fordham: in
the liberal arts department on the Rose Hill campus,
107 to 1; in the liberal arts college on the Lincoln
Center campus, 70 to 1; in the School of Education,
45 to 1; and in the School of Social Service, 28 to 1.
Given these figures, it is unrealistic to find that the
deans and assistant deans are the firstline supervi-
sors.
As noted earlier, I do not subscribe to the so-called
"50-percent rule." 40 I remain of the view that the
statutory definition of supervisor is absolute. It is not
qualified either in terms of time spent supervising or
in terms of persons supervised. Accordingly, since it
is conceded that both the director of field instruction
and the director of admissions in the School of Social
Service supervise clericals, I would exclude them
from the unit.
I would find the department chairmen and the di-
rector of field instruction and the director of admis-
sions in the School of Social Service to be supervisors
and exclude them from the unit.
40 See In 36, supra, and accompanying text