Rensselaer Polytechnic Institute

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1435 (N.L.R.B. 1975)

RENSSELAER POLYTECHNIC INSTITUTE 1435
Rensselaer Polytechnic Institute and Rensselaer
Polytechnic Institute Chapter of the American
Association of University Professors, Inc., Petition-
er. Case 3-RC-6221
June 30, 1975
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 Jon B.
Mackle. 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 3, 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.
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
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. Rensselaer Polytechnic Institute, also referred
to herein as RPI, the Employer, or the University, is
a private, nonprofit educational institution chartered
under the laws of the State of New York. While its
main campus is located in Troy, New York, the
University also maintains a graduate center in
Hartford, Connecticut, and Fresh Water Institute in
Lake George, New York. The Employer receives
gross annual revenues in excess of $1 million, of
which more than $50,000 are received from points
outside the State of New York. Therefore, Rensselaer
Polytechnic Institute meets the jurisdictional stand-
ard for colleges and universities set forth in Section
103.1 of the Board's Rules and Regulations. Based
on the foregoing stipulated facts, we find that the
Employer is engaged in commerce within the
meaning of the Act and that it will effectuate the
policies of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
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.
4. The American Association of University Pro-
fessors, herein referred to as the Petitioner or AAUP,
seeks to represent a unit of all full-time academic
faculty members in the Schools of Architecture,
Management, Engineering, Humanities, Social Sci-
ences , Science, and in the Department of Physical
Education and Athletics, appointed or holding
positions as professor, associate professor, assistant
professor, or instructor, including those faculty
members appointed or holding positions as named
professor, and those designated as department
chairman; all associate librarians, assistant librari-
ans, and assistant library directors, and full-time
research assistants and research associates perform-
ing research in connection with academic programs,
excluding all others.
The Employer takes the position that the Board
should exclude from any unit found appropriate
herein department chairmen, center directors and
program chairman, the assistant library director, the
library department heads, and the coordinator of the
Physical Education Department, by reason of their
supervisory status. In addition, the University urges
the exclusion of faculty who are on terminal
contracts.' The University has also requested the
Board to give careful consideration to the propriety
of including in the unit herein "charged-out" faculty,
and particularly those who serve as principal investi-
gators on sponsored research projects. In addition to
the above requests, RPI seeks a determination,
without taking a position, as to whether the librari-
ans, members of the Physical Education Department,
the academic counseling associate and assistant
deans in the Office of the Dean of Students, adjunct
faculty, emeritus faculty who return to render part-
time service to the University, and research assistants
and associates share a sufficient community of
interest with the full- time faculty to warrant their
inclusion in the unit.
The parties stipulated to the exclusion from the
bargaining unit of employees at RPI's Hartford
Graduate Center, the faculty of the Reserve Officers
Training Corps, the Director of Librarians, visiting
faculty, graduate students, postdoctoral associates,
and, with the exceptions noted above, all deans,
associate deans, and assistant deans . The parties
I In urging the exclusion of the terminal contract faculty, the University
recognizes that the Board has , in the past, uniformly included them in
218 NLRB No. 220
faculty bargaining units. However , reconsideration of that view is being
requested.
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further stipulated to the inclusion of both present
emeritus faculty members 2 and three acting depart-
ment chairmen.
Unit Composition
Department chairmen: 3 The record shows that the
deans of the academic schools have the responsibility
for identifying and designating department chair-
men. While it is true that a search committee is often
used by a dean to identify the department's prefer-
ence for chairman, the decision as to whether to use
such a committee is solely within the dean's
discretion. Even when a search committee is utilized,
the recommendations made by it are treated as
expressions of preference only and are in no way
binding on the dean. The record also shows that
appointments are not always made from within the
department, and that, on occasion, chairmen are
hired from outside the University. A chairman
generally serves a term of from 3 to 5 years. In some
schools, however, a chairman's term is of indefinite
duration. Department chairmen, as such, do not
enjoy tenure , and may be removed from office when
and if they fail to properly carry out their responsibil-
ities.
After being appointed chairman, the appointee's
teaching load is typically reduced to one-half the
average load taught by regular full-time faculty
members. In addition, the chairman is usually
granted a salary increase ranging from $1,500 to
$3,000 per academic year.4
With respect to the hiring of new faculty members,
the record reveals that department chairmen have
more influence than anyone else within the university
community. One of the chairman's primary responsi-
bilities is to see to it that the department is
adequately staffed with qualified faculty members. In
carrying out this responsibility, a department chair-
man will sometimes utilize the services of a faculty
search committee . However, a chairman is not
required to use such a committee and the decision to
do so is entirely within his discretion. In addition to
recommending a new faculty member for hire,5 the
department chairman recommends the initial salary
level which must be approved first by the dean and
then by the provost of the University. With regard to
annual salary increases , the record shows that, within
2 At the time of the hearing, there were two emeritus professors
employed by RPI and both of those professors were engaged in full-time
teaching and research activities
3 The following discussion with respect to department chairman is
equally applicable to center directors and program chairman Thus,
whenever the term department chairman is used, it shall be deemed to
include both center directors and program chairman, unless there is a
specific indication to the contrary
4 The increase is not received immediately but is spread over a period of
time
S It appears from the record that the department chairman's recommen-
overall budgetary limitations, it is the responsibility
of the chairman to effectively decide what increases,
if any, should be given. In making these salary
decisions, the chairman must exercise the responsi-
bility of evaluating departmental faculty.
The record also demonstrates that the department
chairman has the responsibility of determining
supporting staff needs, and the authority to hire
support personnel for the department. Personnel for
clerical positions are referred to the department from
the personnel office, but the department chairman
must certify the acceptability of clerical employees
before they can be placed on the university payroll.
As with the faculty, the chairman is also charged
with the responsibility for making annual evaluations
of departmental supporting staff for the purpose of
determining appropriate ment pay increases.
With respect to terminations and discipline, de-
partment chairmen have the authority to suspend the
teaching activities of a tenured faculty member for
malfeasance pending proper review procedures. In
addition, chairmen can discipline and even terminate
any supporting staff member. Furthermore, it is clear
from the record that department chairmen make
effective recommendations with respect to the
reappointment of nontenured faculty members. In
fact, without a favorable recommendation from the
department chairman, the contract of a nontenured
faculty member is not renewed.
With regard to tenure, the department chairman's
role is a crucial one. The chairman must make a
recommendation separate from any departmental
committee recommendation, and the record discloses
that there are no known cases at RPI where a faculty
member received tenure without the favorable
recommendation of his department chairman.6
We further note evidence in the record which
discloses that the department chairmen initiate
budget proposals and that their proposals serve as
the basis from which the final budget is prepared.
Once the budget has been finalized, department
chairmen have the discretion to shift funds between
nonpersonnel budgetary lines . Furthermore, the
department chairman is the only departmental
employee authorized to commit funds for travel
expenditure and supply purposes. Most important,
however, is the undisputed authority of the depart-
dations with respect to the hiring of new faculty members are effective In
this regard, Dr. George Ansell, dean of the Engineering School , testified
that, while serving as chairman of the Materials Engineering Department,
his recommendations were always followed by the former dean of the
School of Engineering.
6 Dean Ansell testified that while he was a department chairman, there
was never a case where his negative recommendation regarding tenure was
overruled by the dean of the Engineering School . Similarly, Dr Miller,
chairman of the Geology Department, acknowledged that no one in his
department had ever received tenure without his affirmative recommenda-
tion
RENSSELAER POLYTECHNIC INSTITUTE 1437
ment chairman to allocate the total dollar amount for
merit increases among faculty members within his
department.
While there is no formally written grievance
procedure, there is testimony supporting RPI's
position that the department chairmen have the
authority to settle grievances on behalf of the
University.
The record also shows that department chairmen
exercise responsibility in the assignment of teaching
and academic counseling functions, in the develop-
ment of academic programs and priorities within
their departments, and in the recruitment of graduate
students to supplement the departmental staff.
Based on the foregoing, and the record as a whole,
we are satisfied that the department chairmen
exercise the authority to make effective recommen-
dations as to the hiring and change of status of
faculty members, and that they exercise substantial
control over the day-to-day operations of their
respective departments including assignments and
monetary benefits and allowances. We therefore find
them to be supervisors within the meaning of Section
2(11) of the Act, and we shall exclude them from the
unit.?
Terminal contract faculty members: A terminal
contract faculty member is one who has been
notified 1 year prior to the expiration of his letter of
appointment that he will be terminated at the end of
the contract period. The University takes the position
that the inclusion of such faculty members in an
overall faculty bargaining unit is inappropriate. As
noted above, , the University does recognize that the
Board has uniformly included such employees in
faculty bargaining units since, while their employ-
ment continues, they have a substantial community
of interest with their colleagues.8 Nevertheless, the
University is now urging the Board to reconsider its
current position on this issue. After due considera-
tion, we have decided to adhere to our long-standing
position with regard to terminal contract employees.
Therefore, faculty members with terminal contracts
will be eligible to vote in the election herein provided
that they are still employed as faculty members on
the date of the election.
Principal investigators and other "charged-out"
faculty: Much of the scholarly research engaged in at
RPI is carried out pursuant to external contracts with
government agencies or private concerns. Typically,
a faculty member identifies an area warranting
research, contacts representatives from interested
agencies or private concerns, and then submits
7 See Syracuse University, 204 NLRB 641 (1973).
9 See Fordham University, 214 NLRB No. 137 (1974); New York
University, 205 NLRB 4 (1973), Manhattan College, 195 NLRB 65 (1972).
9 The record shows that no one can commit funds budgeted for a project
research proposals which are destined for the third
party agency or private concern. Faculty members
engaged in the foregoing process are referred to as
principal investigators. Upon execution of a spon-
sored research contract, the principal investigator
assumes the responsibility for administering and
performing the contract. Working under the direc-
tion of the principal investigator on the project are
generally numerous other university employees, such
as other RPI faculty, research associates and assist-
ants, graduate assistants , postdoctoral associates, and
other supporting staff. It is noted that all faculty
members who have a certain percentage of their
working time "charged out" to a sponsored research
contract are referred to and categorized as charged-
out faculty.
Out of a total of 330 full-time faculty at RPI,
approximately 116 of them have some portion of
their time charged out to these sponsored research
contracts. The record shows that almost 80 percent
of the charged-out faculty are serving as principal
investigators.
The University has requested the Board to decide
specifically whether the principal investigators are
supervisors within the meaning of the Act, and, more
generally, whether the duties and responsibilities of
charged-out faculty as such disrupt any community
of interest with remaining full-time faculty that might
otherwise exist. It was stipulated by the parties that
those individuals working under the direction of the
principal investigators are employed by the Universi-
ty rather than by the sponsoring agencies.
The principal investigator is responsible for the
hiring of research associates and assistants, clerical
employees, and other faculty members for work on
his project. With respect to the budget for a
particular sponsored research contract, the record
shows that the principal investigator has more
control than does a department chairman with
respect to his departmental budget .9 The record also
demonstrates that the principal investigators have the
authority to terminate the services of clerical employ-
ees, research associates and assistants, and even
faculty personnel working on sponsored research
contracts. Although they possess such authority, the
record shows that they generally prefer to let an
unsatisfactory individual go when their original
commitment to him expires.
To date, the Board has addressed the issue of the
supervisory status of charged-out faculty in two
cases.10 In both of those cases, the principal
investigators were found not to be supervisors in
without the approval of the principal investigator to charge.
10 New York University, supra, and Fordham University, 193 NLRB 134
(1971).
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their relationship to their employers, and were thus
included in broad faculty units. In Fordham and in
New York University, the principal investigators did
hire and then supervise employees on sponsored
research projects. However, in both cases, the
employees hired were not and did not become
employees of the university. In Fordham, the Board
stated: "Therefore, even if such faculty members are
supervisors with respect to these individuals, they are
not supervisors in their relationship to the Employ-
er."11
In the instant case, as noted above, the employees
supervised by the principal investigators are employ-
ees of the University. Thus, the principal investiga-
tors herein, unlike those in Fordham and New York
University, are supervisors in their relationship to
their Employer. Therefore, we find them to be
supervisors within the meaning of the Act and
exclude them from the unit found appropriate herein.
As noted above, RPI has also requested the Board
to determine whether those faculty members who
have a substantial portion of their time charged out
to outside contracts share a sufficient community of
interest with other noncharged-out faculty members
to warrant their inclusion in the same unit. We have
considered this issue as framed by the University,
and have concluded that only those charged-out
faculty members who serve as principal investigators
should be excluded from the faculty bargaining unit
found appropriate herein.
Research associates and research assistants: The
Petitioner seeks to include research personnel hold-
ing the titles of research associate and research
assistant ,12 while the University takes no specific
position on this issue.
Research associates and assistants are generally
hired on the recommendation of the principal
investigator in charge of a sponsored research
contract. Both the associates and the assistants are
primarily engaged in assisting faculty members in
carrying out the research function.13 Like most
academic faculty, research associates and assistants
are required to possess advanced degrees and are
employed on an annual salary and contract. Some
have assisted in courses taught as part of RPI's
regular academic curriculum and others have taught
courses unassisted in precisely the same fashion as
any other faculty member. Like other faculty,
research associates and assistants serve on doctoral
thesis committees . While they are not formally
11 Fordham University, supra.
1z Currently, there are six associates and six assistants employed by the
University All of these researchers are full-time employees of the
University.
13 The work performed by the research assistant is similar to that
eligible for tenure, many of them have been em-
ployed by the University for long periods of time.
Based on the foregoing, we conclude that the
research associates and research assistants are
professional employees who have a close community
of interest with the faculty, and therefore we shall
include them in the AAUP's requested unit.14
Adjunct faculty: The Petitioner would exclude part-
time faculty members, while the Employer takes no
position with regard to whether they should be
included in the unit herein. For the reasons set forth
in our decision in New York University, supra, and
University of San Francisco, 207 NLRB 12 (1973), we
agree with the Petitioner's position and shall exclude
part-time faculty from the unit found appropriate
herein.
Emeritus faculty. As a form of retirement benefit,
emeritus faculty, that is, faculty members who have
reached 65 years of age and have retired, are entitled
to an office, secretarial support, and supplies,
whether or not they engage in any teaching or
research. To the extent that they are engaged in
teaching or research, it is Petitioner's position that
they should be treated in the same manner as other
faculty working at RPI. The University contends that
this issue warrants Board consideration but takes no
specific position as to the appropriateness of includ-
ing ementus faculty in the bargaining unit.
As noted above, it was stipulated that the two
emeritus professors currently engaged in full-time
teaching and research be included in the unit and we
shall include them.
Librarians: The Petitioner seeks to include profes-
sional librarians in the unit herein. While the
University takes no specific position on this issue, it
has requested the Board to consider the propriety of
including librarians in the requested unit. As we
concluded in New York University, supra, and in
cases cited therein, librarians "possess a sufficient
community of interest to be included in the unit, as a
closely allied professional group whose ultimate
function, aiding and furthering the educational and
scholarly goals of the University, converges with that
of the faculty, though pursued through different
means and in a different manner."
The University asserts that the assistant director of
libraries and the library department heads are
supervisors within the meaning of the Act. We agree.
The director of libraries, James C. Andrews, was
excluded from the unit by stipulation. Serving under
Andrews as assistant library director is Oryn La-
performed by the research associate However, RPI maintains that the
research assistants perform their work at a lower level of expertise and
experience
14 See University of Miami, 213 NLRB No. 64 (1974).
RENSSELAER POLYTECHNIC INSTITUTE 1439
Brake. The library is administratively divided into two
departments, reader services and technical services,
each of which is directed by a department head. At
the present time, LaBrake is also serving temporarily
as acting department head for reader services. Flora
Regnier is department head for technical services.
In the absence of the director, LaBrake, as assistant
director, is in charge of the library. In her capacity as
assistant director, the record shows that LaBrake
shares a joint responsibility with the director with
regard to the hiring of new staff, has the authority to
discipline librarians and other library staff, has
authority to grant time off to library employees,
prepares budget proposals, and participates in the
annual evaluation of library staff for merit pay
increases.
As department heads, LaBrake and Regnier are
involved with recruitment and they make effective
recommendations with regard to hiring of depart-
mental staff. In addition, they schedule work,
evaluate librarians for merit pay increases, and
discipline library staff. Furthermore, the department
heads represent the first management steps in
connection with the processing of employee gnev-
ances.
Based on the foregoing, we find that LaBrake and
Regnier are supervisors within the meaning of the
Act. Accordingly, we shall exclude them from the
unit.
Members of the Physical Education Department: The
Petitioner seeks to include members of the Depart-
ment of Physical Education and Athletics in the unit
requested. The University takes no specific position,
but believes that the Board should resolve the serious
question of whether members of the department
share a sufficient community of interest with other
RPI faculty members.
It is a requirement for graduation that a student
successfully complete a 2-year noncredit physical
education program. The record indicates that every
member of the department does some teaching,
though not all coach.15
The record clearly demonstrates that members of
the department counsel students in physical skills,
attend and speak at conferences of professionals in
their field, are eligible for sabbatical leave, share
many of the same fringe benefits enjoyed by other
faculty members, and are eligible to serve on RPI's
faculty council.
The University asserts that department members
are not required to hold an academic degree as a
condition of employment. The record shows, howev-
15 RPI concedes that the members of the department spend one-half of
their time involved in actual teaching or preparation for classroom or
related instruction.
16 It does not appear from the record that the University has ever
er, that 9 of the 12 members of the department have
at least a master's degree, and that one of the three
members without a master's is currently enrolled in a
master's program.
With regard to tenure, the record shows that one-
half of the department members have been awarded
tenure by the University and have the academic rank
of professor or associate professor. Recently, the
University changed its position with regard to tenure,
and decided to remove nontenured department
members from the "tenure track." Instead of confer-
ring on departmental faculty titles such as professor
and associate professor, the University now confers
titles which are simply the "equivalent" thereto.is
In University of Miami, supra, where the Board
excluded athletic coaches from a unit of all full-time
faculty members, the facts were clearly distinguish-
able from those in the case at hand. There, the
coaches had no affiliation whatsoever with the
university's physical education department, whose
members were included within the proposed bargain-
ing unit; taught no courses of any kind; did not
participate in faculty governance; were subject to
ternunation at will by the president of the university;
and were not subject to any of the personnel review
procedures applicable to all other employees in the
unit.
Based on the foregoing, we believe that the
members of the Physical Education Department
qualify as professional employees under Section
2(12) of the Act. In these circumstances, we therefore
find that all full-time members of the department
should be included in the unit.17
The University contends that Richard Lyon,
coordinator of the Department of Physical Educa-
tion and Athletics, should be excluded from the unit.
The record indicates that Lyon functions in most
respects as a department chairman. Therefore, for
the reasons discussed above with respect to depart-
ment chairmen, we agree with RPI's position and
shall exclude Lyon from the unit as a supervisor
within the meaning of the Act.
Associate and assistant deans: While the Petitioner
seeks to exclude those associate and assistant deans
working in the Office of the Dean of Students, the
University takes the position that the Board should
determine whether they belong appropriately within
the unit.
The record indicates that these employees work
primarily with fraternities, dormitories, women stu-
dents, and minority students. The record further
conferred faculty "equivalent" status on any other administrative employee
at the University.
17 Manhattan College, supra
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indicates that these employees do not have faculty
status , do not teach, and are not eligible for tenure.
Accordingly, we shall exclude from the bargaining
unit the associate and assistant deans working in the
Office of the Dean of Students as they are essentially
administrative personnel and have no substantial
community of interest with the faculty.18
In accordance with the above, we find 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 academic faculty members in the
Schools of Architecture, Humanities and Social
Sciences , Management , Science, Engineering, and
the Department of Physical Education and
Athletics, associate librarians, assistant librarians,
and all full-time research associates and assistants
performing research in connection with academic
programs; but excluding employees at RPI's
Hartford Graduate Center, faculty of the Reserve
Officer's Training Corps, the Director and Assist-
ant Director of Libraries, the library department
heads, visiting faculty, graduate students, post-
doctoral associates, adjunct faculty, emeritus
faculty who return to render part-time service to
the University, all deans, associate deans, and
assistant deans, department chairmen, center
directors, program chairman, the Coordinator of
the Department of Physical Education and
Athletics, principal investigators, all other admin-
istration and support personnel, guards and
supervisors as defined in the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
18 University of Miami, supra.