Northeastern University

National Labor Relations Board - Board Decisions

Jun 5, 1975

218 N.L.R.B. 247 (N.L.R.B. 1975)

NORTHEASTERN UNIVERSITY 247
Northeastern University and Northeastern University
Faculty Organization, affiliated with National
Education Association, Petitioner . Case 1-RC-
,13190
June 5, 1975
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
-Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Joseph L.
Kane.' Pursuant to Section 102.67 of the National
Labor Relations Board Rules and Regulations, Series
8, as amended, and by direction of the Regional
Director for Region 1, this case was transferred to
the National Labor Relations Board for decision.
Thereafter, the Employer and the Petitioner filed
briefs in support of their respective positions.2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officers 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. Northeastern University is a nonprofit educa-
tional institution-chartered by the Commonwealth of
Massachusetts. Although Northeastern University
operates facilities at a number of locations, the main
campus of the University is located on Huntington
Avenue in Boston, Massachusetts, where it occupies
some 40-50 acres. There is also a suburban campus
located in Burlington, Massachusetts, and a facility
in Nashua, New Hampshire. The Employer receives
1 The hearing commenced on March 18 , 1974, and extended through a
total of 26 hearing days. It was held intermittently, being scheduled and
rescheduled by -agreement of counsel and the Hearing Officer, and
concluded on July 23, 1974. Attorney Richard D. Zaiger was the Hearing
Officer on July 22 and 23, 1974.
2 Subsequent to the transfer of this case to-the Board, the local chapter of
the American Association- of University Professors filed a motion in the
Regional Office to intervene and appear on the ballot in any election
directed. A single authorization card , predating the close of the hearing, was
simultaneously filed. The responsible local official was instructed to file this
motion ' directly with the Board in accordance with Sec. 102 .65(a) of the
Board's Rules and Regulations by the Regional Office. The motion, having
been duly filed with the Board , will be granted and American Association of
University Professors will be placed on the ballot.
3 The Employer contends that there is no statutory jurisdiction herein in
that the Employer's teaching aspect and support services are not part of
commerce and the Employer has no effect upon interstate commerce. The
Employer further contends that the Board should reconsider the Cornell
decision(Cornell University, 183 NLRB 329 (1970)), in its entirety in that the
commerce definition does not and should not apply to colleges and
universities . We have considered these contentions advanced by the
218 NLRB No. 40
gross annual revenues in excess of $1 million,
exclusive of contributions, which, because of limita-
tions by the grantor, are not available for use for
operating expenses. The University also purchases
materials valued in excess of $50,000 directly from
points outside the Commonwealth of Massachusetts.
Therefore, Northeastern University meets the juris-
dictional standard for colleges and universities set
forth in Section 103.1 of the Board's Rules and
Regulations. Accordingly, we find that the Employer
is engaged in commerce within the meaning of the
Act and it will effectuate the policies of the Act to
assert jurisdiction herein.3
2. The labor organization involved claims to
represent certain employees of the Employer .4
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act.
The Employer contends that the Faculty Senate is
a labor organization, the faculty handbook is the
collective-bargaining agreement, and a contract bar
to the filing and processing of -the instant petition
exists. We find no merit in the Employer's conten-
tions.
The Faculty Senate has been in existence since
1961. It is the representative of the University
faculty, which is defined as essentially all full-time
academic administrative officers and teaching per-
sonnel. It is composed of 30 faculty members elected
from the basic college faculties and 10 administrative
members chosen by the president. Only full-time
professors, associate professors, and assistant profes-
sors from the college faculties are eligible for election
to the Faculty Senate and to vote in the election.
Members elected to the Faculty Senate serve 2-year
terms, each year of which runs from September 1 of
one academic year to August 31 of the following
academic year.
Employer and find them lacking in merit. The Employer has offered no
evidence nor advanced any arguments to warrant reversal of our
jurisdictional standard for colleges and universities nor of our Cornell
decision.
4 The Employer contends that the Petitioner should not be accorded the
status of a labor organization because the Petitioner's objective is
principally that of reallocating the Employer's financial resources and thus
the Petitioner is attempting to become involved in this managerial area.
However, the president of the petitioning Union testified the purpose of the
Petitioner is to negotiate a contract with the Employer with regard to
salaries, fringe benefits, and working conditions . It is abundantly clear upon
this record, and we find, that the Petitioner meets the definition of "labor
organization" set forth in Sec. 2(5) of the Act.
The Employer also contends that the rejection by the Hearing Officer of
published statements of the Petitioner's leadership concerning its objectives,
and his refusal to permit cross-examination of Scharf, president of the
Petitioner, on the subject, constituted a denial of due process . We find no
merit in this contention. As noted above, we are satisfied that the Petitioner
is a labor organization within the meaning of the Act and that its objective
is to negotiate a contract with the Employer if it is successful in the election
and certified as the bargaining representative,
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The functions of the Faculty Senate are defined as
follows:
1. To act as a co-ordinating body to establish
mutually satisfactory academic goals, and stand-
ards among the various Colleges and Divisions.
2. To be consulted either as a whole body or
in appropriate committee on all policies, propos-
als, and problems of faculty concern, including
such matters as the creation of new colleges, new
campuses, and new departments.
3. To initiate consideration and recommenda-
tion on any matter of faculty concern.
4. To undertake such legislative and advisory
functions in connection with the work of the
University as may be referred to it, by the
President and the Board of Trustees.
5. To provide communication between the
Administration and University Faculty.
The bulk of work and responsibility of the Faculty
Senate is vested in certain standing committees. The
agenda committee is charged with the responsibility
for arranging the agenda for all senate meetings,
submitting assignments to standing committees, and
establishing ad hoc committees and is to "provide a
regular channel for consultation and communication
between the faculty and administration in matters of
new, programs, planning, and University policy by
meeting regularly with the President of the Universi-
ty." Only faculty members may serve on the agenda
committee and on the important committee of
faculty development; administrative personnel are
specifically excluded. Even though administrative
members may serve on the committee on academic
policy and on ad hoc committees, such committees
are so structured that a majority and the chairman
must be faculty members. We fmd that the Faculty
Senate functions as advisory committees and makes
recommendations (which are totally different from
bargaining demands that a union would make upon
an employer during contract negotiations) to the
president. Accordingly, we fmd that the Faculty
Senate does not function as a labor organization
within the meaning of the Act.
The Employer contends that the faculty handbook,
coupled with existing practices in the academic
setting of Northeastern University, is the equivalent
of a collective-bargaining agreement. The Employer
argues this constitutes a contract bar under the
Board's Rules and that the petition should therefore
be dismissed . We find that the faculty handbook,
coupled with existing practices in the academic
setting at Northeastern, University, is not a collective-
bargaining agreement within the meaning of the Act.
Moreover, the faculty handbook does not contain a
termination date, which is a prerequisite for finding a
contract to be a bar to an election:. Therefore, we find
no merit in the Employer's contention that a contract
bar exists and that the petition should be dismissed.
Another contention of the Employer is that the
Petitioner's solicitation of interest process was, and
the resultant election will be, inevitably tainted by
the participation of the senior tenured faculty. It is
argued that the senior tenured faculty by soliciting
union support would, because of their involvement in
the departmental (personnel) committees, inherently
restrain or coerce junior untenured faculty members.
Further, the Employer asserts that the Board-con-
ceived doctrine of collective authority as precluding
supervisory status fails to vitiate the impact of
supervisory taint. Also, the Employer contends that
it was denied procedural due process by reason of the
refusals of the Hearing Officer and the Regional
Director to permit inquiry or engage in an investiga-
tion of supervisory taint.
The Employer was advised on several occasions to
refer these contentions of tainted cards to the
Regional Director along with its supporting evi-
dence. Had the contentions of tainted cards with
supporting evidence been referred to the Regional
Director a collateral investigation of the matter could
have been accomplished. The Board's showing-of
interest requirement is an administrative device to
avoid conducting frivolous elections. As there has
been no evidence submitted to the Regional Director
which would warrant a collateral investigation on the
supervisory taint issue, we deem the showing of
interest adequate. Further, we find that the Hearing
Officer did not commit error when he denied
motions by the Employer to (a) reveal the names of
the card signers and (b) grant a 60-day postponement
to allow the Employer to conduct its own investiga-
tion relative to the cards., We have held that
questions relating to showing of interest are not
litigable in representation proceedings. O. D. Jen-
nings & Company,, 68, NLRB 516 (1946). It is the
election, not the showing of interest, which decides
the substantive issue whether or not the petitioner or
another labor organization, if any, actually repre-
sents a majority of the employees, involved in a
representation case. Accordingly, we, deny the
Employer's motion to dismiss. the petition based
upon alleged supervisory participation in union
support.
The Employer also raises the issue found in
footnote 31 of the Adelphi decisions concerning the
question of "exclusivity," i.e', can the departmental
committees continue in existence if the -Petitioner is
5 Adelphi Umversity, 195 NLRB 639 (1972).
NORTHEASTERN UNIVERSITY
certified. In this regard, the Employer contends that
an election may not be ordered until the unit
employees know for certain the future of these
committees in the event of certification.
While acknowledging that the Adelphi faculty "are
not. quite either fish or fowl" and "do not quite fit the
mold of true collegiality," the Board also noted at
footnote 31 the following:
The delegation by the University to such
elected groups of a combination of functions,
some of which are, in the typical industrial
situation, normally more clearly separated as
managerial on the one hand and as representative
of employee interests on the other, could raise
questions both as to the validity and continued
viability of such structures under our Act,
particularly if an exclusive bargaining agent is
designated . We have not been asked to pass on
these lurking issues and, in any event, would not
do so in the context of a representation proceed-
ing. Our finding here is limited solely to the effect
of membership on these committees on unit
placement and voting eligibility .6
The Employer maintains these "elected groups"
are those which establish academic goals, guard
academic freedom, search for, select, and hire other
faculty , determine whether junior faculties' contracts
should be renewed, pass upon salary increases,
determine advancement through promotion, deter-
mine security through tenure, establish departmental
and college policies, academic standards, and degree
requirements, and otherwise finally ,make or signifi-
cantly affect decisions of grave implications for
faculty and the, employing institution. The Employer,
contrary to the Board's view, contends that "these
lurking issues", must be decided before an election,
not after. In connection with the foregoing conten-
tion of the Employer, on November 29, 1974, after
the hearing was closed, the Board received a letter
and enclosures from Professor Wesley W. Marple,
Jr., chairman (,pro tempore) of the Advocates for
Professional Faculty at Northeastern University, a
faculty group, which came into being as a result of
the petition for certification filed by the Petitioner.
The letter stressed the fact that members of the
organization have taken no position on the ultimate
desirability of collective bargaining for faculty, in
part because "we are in the dark as to the impact of
6 Adelphi University, supra at 648.
9 Attached to the letter to the Board was a letter addressed to
Northeastern University President Asa S. Knowles, regarding the same
concern as expressed above; i.e., the question of collegurlity and shared
authority and whether it will survive if a collective-barganung agent were
selected . "In other words , unless and until the Board's NI:RB position on
this issue is clarified and announced , it would seem to us that no informed
249
an affirmative vote upon our collegial system with its
shared governance arrangements." The letter further
stated that "we believe that the Board will do a grave
disservice to faculty members at our institution if it
orders an election without providing the needed
clarification. For examples, we must know the likely
effect on the role of our committees on promotion
and tenure and selection of administrators, on our
Faculty Senate and on other matters intimately
involved with relationships of faculty to the Universi-
ty and to each other." 7
We can appreciate the concern of the faculty
members faced with a representation election to
determine whether or not they wish to be represented
by a collective-bargaining agent regarding hours,
wages, and working conditions. However, we are not
in a position, nor is it our function, to give advisory
opinions as to what material should or should not be
covered during collective-bargaining negotiations,
except that collective bargaining should proceed in
good faith on both sides of the bargaining table.
After much deliberation of the delicate issue present-
ed to us, and acknowledging the great concern of
those eligible to vote in the election regarding these
"lurking issues ," we affirm our position stated in
Adelphi University, supra, that we will not pass on
these issues in the context of a representation
proceeding. Accordingly, we shall proceed with the
election process.
4. The Petitioner seeks to represent a unit of all
full-time members of the teaching and research
faculty, including professional librarians, profession-
al employees in the counseling and testing center,
research associates and department chairmen em-
ployed by the University, but excluding the presi-
dent, vice president, deans, associate and assistant
deans, assistant to the dean, directors, assistant and
associate directors, teaching and research assistants,
visiting faculty, athletic department employees,
center for continuing education employees, school of
law employees, management and development center
employees, military science employees, office of
registrar employees, Stearns research project employ-
ees, office of student affairs employees, administra-
tive assistants, all other administrative and support
personnel , guards, and supervisors as defined in the
Act. The parties agreed to include those department
of cooperative education employees who are classi-
fied as "Coordinators," as they are professional
employees and hold faculty rank. The Petitioner took
vote for or against NUFO [Petitioner ] or any other collective bargaining
agent could be cast by many members of the faculty . We must know in
advance whether a vote for NUFO signals the end of our patterns,
structures and arrangements involving shared authority and decentralized
governance . We must know what we are going to lose before we can vote for
something which some believe may provide some gain. To vote in ignorance
of these consequences would be sheer folly."
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no position regarding the inclusion of research
associates. It appears that the Petitioner is seeking a
unit composed of those employees employed by the
University who have special professional skills and
professional training and are performing the work for
which those skills and training have prepared them.
Therefore, the librarians are sought to be included in
the unit since a master's degree in library science is
required for each librarian, and the counseling
personnel are sought to be included since they are
required to have an advance degree in counseling or
psychology.
The Employer considers the appropriate unit to be
all full-time members of the faculty as defined by its
own faculty handbook, excluding the president, vice
presidents, deans, associate and assistant deans and
directors, all named on the record, teaching and
research assistants, research associates, school of law
employees, military science employees, visiting facul-
ty, Stearns research project employees, guards,
managerial employees, and supervisors as defined in
the Act. Section II, A and B,8 of the faculty
handbook includes academic administrative officers
and teaching and research personnel. The Employer
would have both groups included within its appropri-
ate unit. The Petitioner is not seeking those academic
administrators referred to in section II, B, of the
faculty handbook since they are engaged primarily in
administrative functions and are not required to
possess an advanced degree in a subject area in
which they are currently performing their functions.
The Employer initially contends that no faculty
bargaining unit can be appropriate because all
faculty members-by virtue of their group participa-
tion in faculty governance-are supervisory and
managerial individuals and are, thereby, not employ-
ees within the meaning of the Act. In making this
contention, the Employer requests that the Board
either reconsider its previous decisions on this issue9
or, in any event, reach a contrary result herein on the
ground that this particular faculty has authority
which is different from, and more extensive than, the
8 This section states as follows:
II. Faculty & Staff Classifications
The University Faculty members fall into a number of different
classifications depending upon their relationship to the Institution:
A. AcddemicAdmu,strative Officers-Individuals in this classifica-
tion are appointed by the President and Board of Trustees.
B. Teaching and Research Personnel-All teachers , and all co-
ordinators in the Department of Co-operative Education and Place-
ment who hold full-time appointments from the University for'39
weeks or more annually in the ranks of Instructor, Assistant Professor,
Associate Professor, or Professor and Commissioned Officers attached
to the Department of Military Science as teaching staff shall be
considered members of the Faculty with appropriate academic rank.
authority vested in the faculties which were subjects
of the earlier cases.
We find from our examination of the record,
however, that the role and authority of the faculty
herein with respect to hiring, promotion, salary
increases , the granting of tenure, and other areas of
governance are not significantly different from what
they were in the cited cases ,Y° wherein the' same
arguments were rejected. At Northeastern Universi-
ty, faculty participation in collegial decision-making
is on a . collective rather than individual basis, it is
exercised in the faculty's own interest rather than "in
the interest of the employer,"" and final authority
rests with the board of trustees. As in the earlier
decisions, we find that the faculty members are
professional employees under the Act who are
entitled to vote for or against collective-bargaining
representation.
Unit Composition
There remain for consideration both disputes and
agreements between the parties concerning the
inclusion or exclusion of the following specific
categories of employees:
Part-time faculty: The parties are in agreement that
the approximately 1,000 part-time teaching faculty
members should be excluded from the unit. For the
reasons set forth in our decisions in New York
University, supra, and University of'San Francisco, 207
NLRB 12 (1973), we agree with the parties' position
and shall exclude part-time faculty from the bargain-
ing unit found appropriate herein.12
Department chairmen: Department chairmen are
usually selected following the recommendations of a
faculty selection committee.
The committee makes its recommendations to the
president. In some instances, the selection commit-
tee's recommendations have not been acceptable to
the president and interim appointments were made.
It appears that both parties ' are in agreement that
department chairmen are not supervisors.
Occasionally, distinguished scholars who are expected to be concerned
primarily with research rather than teaching may be appointed as
Research Professors in one of the professorial ranks, and will be
members of the Faculty.
Permanent Faculty-those members of the teaching and
research staff who have been elected to, tenure and those
academic administrators who have been elected to Permanent
Faculty status by the Executive Council with the approval of
the President.
9 University ofMiami, 213 NLRB No. 64(1974); Adelphi University, supra;
Fordham University, 193 NLRB 134 (1971), and C. W. Post Center of Long
Island University, 189 NLRB 904 (1971).
is See fn. 9, supra See also New York University, 205 NLRB 4 (1973).
- n Sec. 2(11) of the Act.
12 Member Fannin g agrees to exclude regular part-time faculty members
solely on the ground of the parties' agreement. `
NORTHEASTERN UNIVERSITY
Dean Robert Shepard, dean of the college of liberal
arts, testified that the formal obligations of a
department chairman include , primarily, the assign-
ment of faculty to courses, the administration of the
departmental budget, reporting to administrative
offices concerning course offerings , reporting of
textbooks which are to be used by the faculty
members , and ordering of equipment and supplies
when needed by the faculty members. As a general
matter , Dean Shepard concluded that there is
"considerable shared authority" wherein the chair-
men of various departments share decisions with
faculty members of their departments . In these
circumstances , the role of a departmental chairman
is, as Dean Shepard testified , "one of more power
through persuasion than power through decree."
This role of a departmental chairman was verified by
the two chairmen who testified during the course of
the hearing.
The chairman of the economics department,
Professor Morris Horowitz, testified that every policy
decision in his department has been made by a
majority vote of the tenured faculty. These policy
decisions have included determining the curriculums
for the department, the allocation of the budget for
equipment or other needs of the department, the
screening of new applicants (which is done by both
tenured and nontenured faculty), the recommenda-
tion for hiring of the new faculty member (which is
done by the entire faculty ), requests to be made in
the budget, textbooks to be used in the courses
taught by the various faculty members, and, finally,
the form of the examinations to be administered by
the various faculty members.
Promotions within the economics department,
although recommended by a vote of the faculty of
the economics department, are still subject to review
at the superior level at the college of liberal arts and
on at least one occasion have not been followed at
that level. There is no doubt but the final authority
for the approval of the budget for the department
rests with the dean of the college of liberal arts. This
final authority includes the right of the dean to
require that the chairman of the department not
spend the approved money in certain fashions. As
Professor Horowitz described -, the chairman of the
department "negotiates" the size of the budget with
the, dean . He also "bargains" for the salary to be paid
for new positions. In essence , then, the recommenda-
tions of the economics department are made among
peers with the department chairman neither occupy-
ing a superior nor inferior position in relationship to
his fellow faculty members.
The chairman of the music department , Professor
Roland Nadeau, testified that the desires of individu-
al 'faculty members were almost always honored by
251
the chairman. If the chairman did not concur in the
desires of the faculty member, the matter was
brought to a vote of the entire departmental faculty
and the vote of the faculty was then controlling. The
faculty members in the music department , including
the chairman, view themselves and act as equals. For
example , all of the faculty members recommended in
what manner the budget , which had been allocated
for the music department , would be spent within
clear guidelines enunciated by the University. In
addition, the music faculty has recommended that
the salaries for all of the faculty members, including
the chairman, be allocated on an equal basis . In fact,
in recommendations , except - as to promotions and
tenure , all faculty members of the music department,
including nontenured members , are eligible to
participate. In 1 year two members of the faculty
requested , due to extreme hardship , additional
increases over and above that which had been
previously allocated for the department. The chair-
man, as the spokesman for the faculty members,
approached the dean and sought his approval for the
additional increase . After the chairman explained the
need to the dean , the dean agreed to allow an
additional increment for these two faculty members.
Moreover , in the music department , as in other
departments in the University , decisions concerning
promotion and hiring are subject to ultimate approv-
al at a superior level, either the dean of the respective
college or the administrative vice president of the
University. Before an individual is hired by the
University in the music department, appointments
with both Dean Shepard and Vice President Fitzger-
ald are necessary.
Both chairmen consider themselves part of the
teaching faculty. The chairman of the music depart-
ment considers himself "first and foremost a faculty
member" and a spokesman for each and every
individual faculty member in his department as well
as the department as a whole ; the chairman of the
economics department described himself as "just one
more senior member in the group." Indeed, the
University recognizes that the deans of the various
colleges are in fact "officers" for the purpose of
administering budgets for the several departments in
their respective colleges.
The Board has considered many factors in deciding
whether department chairmen shoulil be included in
a unit of faculty and one of the crucial factors is the
role of the chairman in faculty personnel decisions
such as hiring, firing ,, and other changes of status, i.e.,
whether the chairman can make effective recommen-
dations as to hiring , firing, or change of status. But in
arriving at a conclusion on this issue the Board has
given consideration to the principle of "collegiality."
In appropriate cases where the chairman 's powers
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been effectively diffused among the department
faculty pursuant to the principle of collegiality, the
Board has included the chairmen. The facts in the
present case show that the chairmen of the various
university departments fall within this qualification.
For example, concerning hiring, the chairman of
the economics department is just one more faculty
member in the recommendations of new faculty
members while the chairman of the music depart-
ment seeks a consensus of all faculty members
concerning a new faculty member. Indeed, the dean
of the college of liberal arts described the most
important factor in the hiring of a new faculty
member as "the collective opinion of the depart-
ment."
Attempting to identify and resolve the complex
threads of the relationship among the faculty,
administration, and department chairmen is not an
easy task, nor one usually susceptible to a completely
satisfactory conclusion. Though, as shown above,
department chairmen have a certain formal responsi-
bility with respect to decisions on appointment,
salary, promotion, and tenure of full-time faculty, it
appears that they act primarily as instruments of the
faculty in these matters. The department chairmen,
in these respects, therefore stand largely on the same
footing as the faculty, whence their authority flows.
All major decisions or recommendations, including
hiring, appear to be done on a collegial basis. In
addition, the department chairmen at Northeastern
do not receive any additional remuneration for
assuming the position of chairman.
Accordingly, we find that the department chairmen
are neither supervisors nor managerial employees
and shall include them in the unit.13
Counseling and testing center personnel: The Peti-
tioner seeks to include in the unit the counselors
employed at the University counseling and testing
center. The Employer contends that if the counselors
are to be included other employees should also be
included.
The counseling and testing center is primarily
concerned with the administration of specific, in
some cases commercially prepared, tests which are
nationally known and nationally administered. The
special focus of counseling and testing is occupation-
al testing of individuals to determine occupational
aptitudes, as well as psychological testing of individ-
uals to determine particular qualities that the student
might possess. This would include tests that are
loosely referred to as IQ tests, and a variety of other
examinations that are administered in various parts
of the country. The counseling and testing people are
fully knowledgeable about the makeup of these tests
and how to interpret them; they are responsible in
large measure for administering, to students who
come for it, the specific test, and sitting with the
students for an hour, or sometimes considerably
more, in going over with the students an evaluation
of their responses. They counsel the students as to
whether or not their aptitudes seem to be in line with
the program of study in which the students are
engaged. Richard S. Seaman, one of the center's five
counselors, testified that two-thirds of the appoint-
ments made at the center are for career planning and
about one-half of this group just come for testing. It
is typical for a student to come in for an initial
interview, take a certain standardized test, and return
for a final interview to discuss the results. This is not
to say that counseling and testing personnel do
nothing but administer and interpret various psycho-
logical tests; they are involved with other student
problems. They may assist students with certain
emotional and adjustment problems. If necessary,
they arrange for more intense psychotherapy with
other professionals trained for that task. The counsel-
ors hold advanced degrees in clinical psychology or
in another psychological specialty, although they are
not psychiatrists.
The parties stipulated that the counselors at the
counseling and testing center are professional em-
ployees within the meaning of Section 2(12) of the
Act. In addition, they are engaged in supportive
activities clearly associated with the educational
process and appear to share a broad community of
interest with the faculty. Accordingly, we shall
include them in the broad professional unit sought
by the Petitioner.14
Librarians: The Petitioner contends that all staff
librarians should be included in the unit. The
Employer contends that most professional librarians
at the University are supervisors within the meaning
of the Act and therefore should be excluded from the
unit. Both the Petitioner and the Employer agree that
the librarians are professional employees within the
meaning of the Act.
A brief description of the hierarchy of the
professional librarians is necessary. Roland H.
Moody is director of libraries, and serving directly
under Moody is the associate director, Albert
Donley. Next there are six assistant librarians, each
in charge of one of the main areas of library
operations. The remaining professional librarians are
termed "staff librarians" and each serves under the
direction of one of the assistant librarians.15 Each
assistant has overall responsibility for the area in
13 Fordham University, 214 NLRB No. 137 (1974), University of Miami, University (Brooklyn Center), 189 NLRB 909 (1971).
supra New York University, supra. 15 The assistant librarians , the area they are in charge of, and the number
14 C. W. Post Center of Long Island University, supra Long Island of professional staff librarians working under them is as follows: Arline
NORTHEASTERN UNIVERSITY
which he functions. This includes the formulation of
objectives for the area, monitoring work, and
supervising and directing personnel. Assistant librari-
ans recommend the hiring of professional librarians.
They are responsible for screening the candidates,
and inform Moody of their choice. Although Moody
insists on a personal interview with the candidate
and must approve the assistant's selection, he stated
that there has not been one occasion when he turned
down a recommendation. The assistants also recom-
mend the size of merit raises to be given members of
their staff, Moody receiving such recommendations
at conferences with individual assistants. Also, the
assistants effectively supervise the work of other
professional librarians, assign work to them, direct
their work as necessary, and are recognized by the
staff librarians as their supervisors. They also possess
the power over both hiring and firing of nonprofes-
sional employees, subject to review by the associate
director.
Similarly, all but two of the staff librarians have
supervisory duties. They are responsible for estab-
lishing work schedules, assigning work, giving in-
structions, and reviewing work of the nonprofession-
al library staff and student employees. They perform
these functions on a daily basis, being available at all
times to assign work and give instructions. Even
applying the Board's recent 50-percent test to those
who supervise nonunit personnel, the staff librarians
must be deemed supervisory.
Accordingly, we find that all the assistant librari-
ans and all but two of the staff librarians-Ada
Watts and Claire Graham-are supervisors within
the meaning of the Act and are thereby excluded
from the unit.
Principal investigators and research associates: Al-
though the Petitioner originally sought to include
research associates in the unit, in its brief it took no
position regarding their unit placement, contending
it would prefer not to include them if, by their
inclusion, the principal investigators of the projects
would be deemed to be supervisors. The Employer
contends that the principal investigators pose a
special supervisory problem and this problem pres-
ents the advent of the "popcorn unit."
Principal investigators consist of those faculty
members who have originated proposals and have
received a grant or contract from an outside agency,
governmental, philanthropic, or private, to pursue
research in a particular area, and who are thereafter
responsible for the administration of that grant or
contract. All of the employees who work on grants
and contracts under the direction of a principal
Willar, public services (4); Joyce Lunde, reference (3), Thomas Gahalen,
acquisitions (4); Robert Murray, cataloguing (4); Maurice Rahilly,
253
investigator are employees of Northeastern Universi-
ty and not of the granting agency. For example,
research assistants who work on the project are paid
by the University and receive all of the fringe
benefits available to other employees. Northeastern
makes payroll deductions for grant employees similar
to the deductions made for its other employees.
Principal investigators exercise broad discretion over
the operation and administration of the grant. They
hire research associates, research assistants, techni-
cians, secretaries, and all other personnel employed
on the project. Within the basic salary ranges
established by university policy, the principal investi-
gator is able to set the salary of the personnel whom
he hires. These ranges are not absolute and it is not
uncommon for a principal investigator to arrange to
have a particularly attractive candidate for a position
on a grant paid a premium salary. Although approval
for this exception would be required from the office
of academic services, the necessary funds would
come out of the grant and approval would be
routine. Determination of raises for staff on research
grants which continue beyond the first year is also
within the discretion of the principal investigator.
Principal investigators possess the authority to fire a
research associate working on a grant, although they
prefer to let an unsatisfactory individual go when
their original commitment to him expires. The case
of a research technician who proved unsatisfactory
would be different; in such a case the principal
investigator would not feel the same obligation to
keep him on until his contract ran out. Principal
investigators assign work to employees on the grant
and direct them in carrying out their responsibilities.
Each year approximately 200 grants are approved
at Northeastern, involving from 50 to 75 principal
investigators. At the time of the hearing herein, there
were between 75 and 100 faculty members who were
principal investigators, only between 5 and 10 of
whom would be working alone and not supervising
others. The number and ''identity of supervisory
principal investigators change from year to year.
Thus, many faculty' members hold a grant for a year
or two and they would be excluded from the unit for
this period. A faculty member who never had a grant
before may for the first time receive one, at which
time he would be excluded from the unit. This
process of faculty's popping in and out of the
bargaining unit as their grants issued or expired was
termed at the hearing as the creation'of a "popcorn
unit!,
We are aware of the problems that can be created
in this situation as well as the internal conflicts that
divisional libraries (1); Ralph Coffman, suburban campus library (2).
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
may be produced within the faculty between their
own interests and the interests of the University
when a decision must be made to accept or reject a
grant. However, since a number of the principal
investigators at Northeastern exercise supervisory
authority and have both faculty and research
associates working for them on their grants, and
since both faculty and research associates are
included in the unit, we find these principal investi-
gators to be supervisors within the meaning of the
Act and exclude them from the unit. As to those
principal investigators not exercising any supervisory
functions with regard to the faculty members and
research associates, we shall include them in the
unit.16
Research associates: Research associates are those
individuals who perform research on a special
project. They are professional employees17 who
enjoy all benefits which are enjoyed by other
employees of the University. A research associate is
hired as a result of the decision of the principal
investigator or by a joint decision if there is more
than one principal investigator on the project. Based
upon the recommendation the dean of the college
then forwards a letter of employment to the individu-
al. Since the research associates are employees of the
University and enjoy the same benefits as the other
members of the unit enjoy, we shall include them in
the unit.
Academic administrators and academic counselors:
The Petitioner seeks to exclude all academic adminis-
trators and academic counselors based upon its
position that the unit should only contain employees
who are professional employees as defined in the Act
and are not primarily engaged in administrative
functions. The Employer contends that the appropri-
ate unit should include the group of people generical-
ly referred to as "academic administrators" as these
persons have a sufficient community of interest to
warrant representation in the Faculty Senate and
because of their experience and responsibilities at the
University.
In support of its position, the University presented
a number of academic administrators, but it was
agreed that a limited number of persons from various
categories of academic administrators could testify as
representative of the entire category.
There is a group of academic administrators
informally referred to as "academic counselors" who
perform an identical or substantially similar function
throughout the University. Academic counselors
16 Member Fanning , for the reasons set forth in New York University,
supra, would include the principal investigators in the unit. He sees no
distinction between the principal investigators here and those in New York
University, except that here, apparently for accounting and administrative
purposes, the grant funds are funneled through the University which pays
the principal investigators ' assistants . As in New York University, the
may have one of several titles: assistant director,
assistant or associate dean, or other titles held by
personnel working in the various deans' offices. Vice
President Ryder defined academic counselors as that
group of members of the University faculty who are
on a regular and probably daily basis involved in
interacting with students in discussions involving the
academic program of the students, and in giving
academic advice in terms of the types of courses and
curriculums the students might follow. They are
involved in analysis, evaluation of academic work the
student has done to date, including evaluation of
work done at other institutions where .a student
brings records of prior learning. It involves a full
range of counseling on matters of academic sub-
stance. The functions of assistants to the deans,
directors, and assistant directors also include the
counseling of students.
In determining whether or not the academic
administrators share a community of interest with
the teaching faculty and are intimately involved in
the educational process of the University, we will
examine their duties and the frequency of their
contacts with teaching faculty and students.
Donald K. Tucker, the assistant dean of admis-
sions, testified that his duties included the evaluation
of records and transcripts of high school students
and transfer students desiring entrance to Northeast-
ern University. Based upon those evaluations of
records and transcripts and also on personal inter-
views conducted by him, he makes a determination
as to who is to be admitted to the University. The
highest degree attained by Mr. Tucker was a master's
degree in education and guidance counseling. Since
he had no specialized higher degree in a subject
which would otherwise qualify him for the work that
he is performing, he explained that his "life experi-
ence" qualified him to perform the job of admissions
counselor.
Thomas Hulbert, assistant dean of engineering,
obtained, as his highest degree, a bachelor of
management engineering. He continues to teach one-
quarter time in industrial engineering and serves on
that faculty. A major concern in relation to his duties
and responsibilities is to highlight particular issues
which are problems to the students and then funnel
the students to the proper university agent or body
for resolution. We further note -that, although Mr.
Hulbert testified that he is also engaged in "coun-
seling" students enrolled in the college of engineer-
ing, there are approximately 2,500 undergraduates
principal investigators are in full control of their grants and lire and
terminate their own assistants. Accordingly, Member Fanning dissents from
the finding that principal investigators be excluded from the unit.
17 Cf. C. W. Post Center of Long Island University, supra at 906-907;
Florida Southern College, 196 NLRB 888, 890 (1972).
NORTHEASTERN UNIVERSITY
for whom there are 2 individuals in the dean's office
assigned to perform this "counseling."
Patricia Toney, assistant to the dean of the college
of liberal arts , testified that her main function
concerns counseling and guiding students in the
handling of various situations in the college. She
acknowledged that her graduate degree in education
did not qualify her to perform her job but, rather, her
"day to day experience with students taught me
guidance ." Other assistants to the dean perform
substantially the same function as Miss Toney and
have master 's degrees in English and economics.
From our reading of the record we conclude that a
higher degree in a specialized field of knowledge is
not necessary to perform the function of an assistant
to the dean of the college of liberal arts.
Carlton Lehmkuhl , assistant to the dean of the
college of education, holds a Ph.D. in higher
education. However, much of his time as an assistant
to the dean is spent in arranging and scheduling the
various courses in the college of education. The
scheduling of the courses at the college of education
is not a simple task since it involves approximately
125-160 courses per year. Mr. Lehmkuhl testified
that his background, particularly being certified to
teach on the secondary level in public schools,
including certification as an administrator of public
schools , is of great aid in his functioning as an
assistant to the dean . Mr. Lehmkuhl also examines
the records of all. juniors 'and seniors to determine
whether or not they may be missing credits and have
fulfilled all requirements in a degree program.
Harley Anderson, assistant dean of the college of
business administration, holds , as his highest degree,
a degree in law. Also he holds a master 's degree in
business administration with a main area of concern
in management and taxation of business and
corporations . His main responsibility is for the
undergraduate business program and approximately
one-half of his time is spent discussing career choices
with students . As an example of the "counseling"
performed by Mr. Anderson, he, along with the
particular student , might peruse the catalogue for
courses that would be appropriate for the career
choice of the student while keeping in mind certain
requirements for a general degree program.
Ronald E. Latham, associate dean of students, has
a master of arts degree in education and a certificate
of advanced graduate study in rehabilitation counsel-
ing. His primary concern is for the welfare of
minority students including their psychological,
vocational, educational, and physical adjustments to
Northeastern University. Mr. Latham's role is acting
as a representative of the minority student in dealing
with the teaching faculty. It appears that Mr.
Latham's main thrust of his formal academic
255
studying " was in rehabilitation, as he described,
"[taking] an individual where he was and bring him
back to that point . . . dealing with the socially
deprived. . . ."
Anthony Bajdek , assistant dean of students for
freshman affairs , has a bachelor's degree and
master's degree in history . Mr. Bajdek testified that
the element in his background which best qualified
him to perform the job which he is presently
performing is his prior experience on the job since
1967. Indeed , the witness admitted that his degrees
could have been obtained in any subject matter since
there is no subject matter which has any relationship
to the job which he is currently performing.
Ruth Karp, associate dean of the college of liberal
arts, also has both a bachelor 's degree and master's
degree in history . Her major concern is the academic
program in the college of liberal arts and advising
students generally . She agrees that a general liberal
arts background with some emphasis on subjects that
relate to dealing with people bears a relationship to
the job that she is currently performing . Ruth Karp
concluded that the kind of person that she is enables
her to perform the job in the manner in which she
does.
Roberta Kaagan, as admissions counselor for the
University, holds a bachelor of arts degree and a
master's degree in education in counseling. She is
involved with the students in the college of nursing
and college of pharmacy and allied health services.
Her primary duties are recruiting , interviewing, and
evaluating prospective students for acceptance by the
University . Roberta Kaagan concluded that her
degree in religion and master 's degree in counseling
did help prepare her for her job as admissions
counselor . However, it is a combination of the
degrees and experience dealing with students at other
universities and Northeastern along with her experi-
ence as a student that qualified her to perform the
job that she is currently performing . She came to the
job with a lack of knowledge as to the various criteria
necessary in evaluating prospective students to be
admitted to the University . Her "counseling" con-
sists of an imparting of knowledge of the content of
the curriculums in requirements for completing
degrees to students about to enter the University.
On the basis of the foregoing facts , we conclude
that the academic administrators and academic
counselors do not share a sufficient community of
interest with the classroom teachers to warrant their
inclusion in the ^ unit . We find that they are not
required to have knowledge of the advanced type,
and are not performing the intellectual ' and varied
tasks contemplated in Section 2(i 1)' of the Act. The
knowledge they are required to possess and the
duties they perform are not related to a discipline or
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
field of science, but require only a knowledge of the
University's curriculum and services. Accordingly,
we shall exclude academic administrators and
academic counselors from the unit.18
In accordance with the above, we fmd that the
following unit is 'appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All 'full-time members of the teaching and
research faculty, including professional staff
librarians, Ada Watts and Claire Graham, profes-
sional employees in the counseling and testing
center, the 13 full-time members of the University
faculty teaching and employed in the athletic
department, research associates, coordinators in
the department of cooperative education, and
department chairmen, employed by Northeastern
University, Boston, Massachusetts, but excluding
the president, vice, presidents, deans, associate
and assistant deans, assistants to the deans,
directors, assistant and associate directors, direc-
tor of libraries, associate director, assistant
librarians and staff librarians not named above,
principal investigators exercising supervisory au-
thority, teaching and research assistants, visiting
faculty, athletic department employees, center for
continuing education employees, school of law
employees, management and .development center
employees, ,military science employees, office of
registrar employees, Stearns research project
employees, office of student affairs employees,
administrative assistants, all other Administration
and support personnel, guards and supervisors as
defined in the Act.
[Direction of Election omitted from publication.]19
MEMBER KENNEDY, concurring in part and dissenting
in part:
With the exception of their finding that department
chairmen are employees, rather than supervisors, I
agree with the conclusions reached by my colleagues.
Since I am not in complete agreement with their
rationale, however, I have elected to set forth some of
my views separately.
is C. W. Post Center of Long Island University, supra, Tusculum College,
199 NLRB 28 (1972); Florida Southern College, 196 NLRB 888 (1972).
19 [Excelsior fn. omitted from publication.],
20 Since I agree . with my colleagues that the faculty handbook does not
constitute a contract bar, it is unnecessary for me to decide whether the
Northeastern University Faculty Senate qualifies as a "labor organization"
within the meaning of Sec. 2 (5) of the Act.
21 Medo Photo Supply Corporation v. N.L.R B, 321 U.S. 678,684 (1944);
N.L.R.B. v. Jones & Laughlin Steel Corporation , 301 U.S . 1, 44 (1937); see
Exclusivity
The Employer contends that in the absence of an
indication from this Board as to precisely what effect
selection of Petitioner as bargaining representative
would have upon the validity and continued viability
of existing structures of governance-e.g., Faculty
Senate,20 faculty committees, etc.-the faculty mem-
bers will be unable to make an informed choice on
the desirability of union representation. While I
agree that it is not our function "to give advisory
opinions as to what material should or should not be
covered during collective-bargaining negotiations," I
see no reason to deprive the parties of our view
regarding statutory implications which flow from the
selection of a bargaining representative.
Section 9(a) provides, inter atia, that a representa-
tive selected for purposes of collective bargaining by
a majority of the unit employees shall be the
"exclusive" bargaining representative of such em-
ployees with respect to "rates of pay, wages, hours of
employment, or other conditions of employment." It
has long been established that since an employer's
obligation to bargain with a selected representative is
"exclusive," it carries with it "the negative duty to
treat with no other." 21 As was clearly recognized by
Congress, the Act "carries the clear implication that
employers shall not interfere" with the right of
collective bargaining "by bargaining with individuals
or minority groups in their own behalf, after
representatives have been picked by the majority to
represent all." 22 Accordingly, ' an employer may not
disregard the bargaining representative by negotiat-
ing with individual employees, whether a majority or
a minority, with respect to wages, hours, and working
conditions 23 Conversely, employees may, not cir-
cumvent their chosen representative and bargain
directly with their employer over such topics.24
In my judgment this Board is statutorily required
to apply the exclusive representation principle to
those colleges and universities over which it asserts
jurisdiction. Undoubtedly, this will affect the ability
of faculty members to utilize existing governance
structures in dealing with the administration over
"rates of pay, wages, hours of employment, or other
conditions of employment." The precise impact
which selection of a bargaining representative will
have upon such existing structures', however, is
impossible to'predict at this time. The representative
Virginian Railway Co. v. System Federation No. 40, Railway Employees
Department of the American Federation of Labor, 300 U.S. 515, 548-549
(1937).
22 S. Rept. 573 , 74th Cong., 1st Sess., p. 13, H. Rept. 1I47, 74th Cong.,
1st Sess., p. 20.
23 J I. Case Company v. N.L.R.B., 321 U.S. 332,337-339 (1944).
24 Emporium Capwell Co. v. Western Addition Community Organization,
95 S.Ct. 977, 984-986 (February 18, 1975).
NORTHEASTERN UNIVERSITY 257
may insist upon its right to be consulted exclusively
with respect to all subjects of bargaining. On the
other hand, the union may be willing to leave certain
matters to existing forums. Presumably, such ques-
tions will be addressed at the bargaining table. In
any event, I think it unwise for this Board, through
continued silence on the exclusive representation
issue , to create the impression that selection of a
bargaining representative need not necessarily have
an impact on existing governance structures.
Managerial Status of Faculty Members
I agree with my colleagues that faculty members at
Northeastern University are not "managerial em-
ployees." As I view the decision-malting structure at
most major colleges and universities-including
Northeastern-faculty members do not formulate or
effectuate administration policies, nor are the senior
faculty members so closely aligned with the adminis-
tration that their inclusion in a unit with junior
faculty members would give rise to a conflict of
interest.
The record quite clearly establishes that faculty
members do individually and collectively participate
in many decisions relating to educational and
personnel matters. While the actual practice varies
widely between departments and colleges, decisions
relating to course content, course offerings, course
scheduling, faculty hiring and promotion, salaries,
awarding of tenure, departmental budgets, and so
forth are frequently made or influenced by individual
faculty members and faculty committees. The exist-
ence of such "shared authority" may well indicate
that faculty members are "professionals," but it does
not necessarily make them "managerial."
There is, in my judgment, a distinction to be drawn
between "bureaucratic" authority and "professional"
authority. An individual exercises "bureaucratic"
authority by virtue of his position in an institutional
hierarchy. Basic policy decisions (i.e., "managerial"
decisions) are generally made by those who exercise
bureaucratic authority. "Professional" authority, on
the other hand, is exercised by individuals who are
experts in a particular field. Such authority is derived
not from one's hierarchial position, but rather from
one's expertise. In contrast to bureaucratic authority,
professional authority tends to be advisory or
recommendatory in nature.
In my judgment, Northeastern and many other
major colleges and universities have parallel authori-
ty structures-bureaucratic authority exercised by
the administration and board of trustees, and
25 see Fmkm, "The NLRB in Higher Education," 5 Toledo L. Rev. No.
3 (October 1974).
26 It IS undoubtedly true that in many situations the professional
professional authority exercised by the faculty. While
deference is paid to faculty judgment in areas where
they are expert and in which they share a mutual
professional concern, overall responsibility for the
University's operation remains at all times with the
administration and ultimately with the ' board of
trustees.25
When viewed in this light, it becomes apparent that
the influence which the faculty exercises in many
areas of academic governance is insufficient to make
them "managerial" employees. Such influence is not
exercised "for management" or "in the interest of the
employer," but rather is exercised in their own
professional interest.26 The best evidence of this fact
is that faculty members are generally not held
accountable by or to the administration for their
faculty governance functions. Faculty criticism of
administration policies, for example, is viewed not as
a breach of loyalty, but as an exercise in academic
freedom. So, too, intervention by the university
administration in faculty deliberations would most
likely be considered an infringement upon academic
freedoms. Conversely, university administrations
rarely consider themselves bound by faculty recom-
mendations.
In the absence of faculty accountability, it may not
be said that their governance functions constitute the
formulation or effectuation of the employer's poli-
cies. Accordingly, such responsibilities may not be
relied upon as a basis for finding managerial status.
In addition, given the divergence between the
professional interests of the faculty on the one hand
and the institutional interests of the administration
and board of trustees on the other, I would not find
that senior faculty members are so closely aligned
with the administration that their inclusion in a
bargaining unit with junior faculty members would
give rise to a potential conflict of interest. In my
judgment, faculty members at Northeastern Univer-
sity are not managerial employees.
Department Chairmen
Contrary to my colleagues, I would find the
department chairmen to be supervisors. First, it
appears from the record that chairmen are author-
ized to resolve faculty grievances. Step 1 of the
current grievance procedure provides that if a faculty
member is unable to resolve a matter informally he
may enter a formal grievance with his department
chairman. If the grievant is not satisfied with the
chairman's disposition in step 1, step 2 authorizes an
appeal to the appropriate college dean.
interests of the faculty and the institutional interests of the University will
be synonymous. This need not always be the case, however, as for example
when financial limitations result in a curtailment of Academic programs.
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition to grievance resolution, there are other
indications that the department chairmen exercise
supervisory authority. The chairman of the econom-
ics department, for example, testified that his
position as chairman "involves administering and
managing a department of 21 full-time people and 4
half-time faculty members ... [including] the
assignment of faculty, the different courses, the
allocation of assignments for the different areas of
our program." Finally,'there is some indication in the
record that chairmen in many departments exercise
discretionary authority to award merit increases to
faculty members within their department.27
In view of the above, I would fmd the department
chairmen to be supervisors.
27 See my dissenting opinion in Fordham University, 214 NLRB No. 137
(1974).