Rosary Hill College

National Labor Relations Board - Board Decisions

Apr 17, 1973

202 N.L.R.B. 1137 (N.L.R.B. 1973)

ROSARY HILL COLLEGE 1137
Rosary Hill College and Rosary Hill Faculty Associa-
tion, affiliated with the New York State Teachers
Association , Petitioner . Case 3-RC-5498
April 17, 1973
DECISION ON REVIEW
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On September 5, 1972, the Regional Director for
Region 3 issued a Decision and Direction of Election
in the above-entitled proceeding, finding appropriate
a unit of full-time and regular part-time faculty
members at the Employer's educational institution
located at Snyder, New York, including chairmen of
the various concentrations or departments into which
the faculty is subdivided, rejecting the Employer's
contention that the chairmen are supervisors as
defined in the Act. Thereafter, the Employer, in
accordance with the National Labor Relations Board
Rules and Regulations, Series 8, as amended, filed a
request for review of the Regional Director's decision
on the grounds: (1) that there is a significant absence
of officially reported Board precedent dealing with
the issue of the supervisory status of faculty
department chairmen at institutions of higher learn-
ing, (2) that the Regional Director departed from
existing precedent, and (3) that he made findings of
fact which are clearly erroneous.
On December 12, 1972, the National Labor
Relations Board by telegraphic order granted the
request for review and stayed the election pending
decision on review. Thereafter, the Employer filed a
brief on review.
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 considered the entire record in this
case with respect to the issues under review,
including the Employer's brief on review, and makes
the following findings.
At the outset, the Employer urges that, in resolving
issues as to the supervisory status of faculty depart-
ment heads at colleges and universities, the Board
should establish criteria which take into considera-
tion the present day operations of such institutions.
It points to the obvious contrasts between the
educational setting and the typical industrial setting,
and it argues that for this reason, as well as the
marked dissimilarities between the organizational
structures of faculties at different colleges and
universities, such criteria are vital to measure the
effect of the varying roles of faculty members and
students upon the department heads' supervisory
status.
Section 2(11) of the Act states:
The term "supervisor" means any individual
having authority, in the interest of the employer,
to hire,, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to
adjust their grievances, or effectively to recom-
mend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the
use of independent judgment.
The body of our case law applying Section 2(11) is
voluminous, and the determination of the issue in
each case turns on' the record facts. Having given
careful consideration to the Employer's arguments,
we are not persuaded, on the basis of our experience
to date with university cases in which their superviso-
ry status is in issue, that faculty department heads
generally have or exercise supervisory authority as it
is defined in the Act. And we see no reason at this
time for departing from our usual practice of
requiring an affirmative showing that the disputed
faculty department heads have been given one or
more of the indicia of supervisory authority set forth
in Section 2(11) or that their recommendations
affecting personnel status are relied on and generally
followed.
With respect to the instant case, the Employer
contends that its department chairmen are an
integral part of the college administration and that
they are the only line of supervision between
administrative officials and the faculty.
The Employer is a private 4-year nonprofit college
primarily for the education of women, located near
Buffalo, New York, operating under a charter from
the State of New York. The Employer is governed by
a board of trustees which appoints a president as its
chief executive. The president consults with an
administrator council and a faculty senate.
The council is made up of the president, the vice
president and academic dean, the treasurer, the
director of development, the dean of student affairs,
and such members of the college community as the
president deems advisable. The faculty senate at
present consists of 11 faculty members, some elected
by their divisions and others by the full faculty, and
its purposes are generally to promote the best interest
of the College, to serve as the representative agency
of the faculty, to serve as an advisory agency to the
president, and to further close liason and coopera-
tion among the various segments of the college
community. Faculty senate members serve 1-year
terms and are eligible for no more than two
consecutive terms.
202 NLRB No. 165
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The vice president and academic dean, in his role
as dean, exercises general supervision over the
faculty; supervises curricula, courses, methods of
instruction, examinations, and grading practices;
recruits, interviews, and recommends to the president
"competent faculty replacements and additions
made by the chairmen of the concentration";
approves assignments and "schedules for service"
made by the chairmen of the concentrations; and
makes recommendations concerning the appoint-
ment, evaluation, promotion, and dismissal of the
teaching and certain administrative staff members.
He is assisted by an associate academic dean.
The faculty is comprised of some 103 full-time and
part-time members, in various grades, including 14
concentration chairmen. Of 30 part-time members,
only 2 were excluded from the unit by the Regional
Director.' The full-time teaching load is 12 semester
hours per week.
The chairman of a concentration is responsible to
the academic dean for the instructional program and
the professional staff of the concentration, for the
welfare of the students and faculty, for the budget,
and for dealings with the administrative officers and
other concentrations. He is appointed by the presi-
dent, generally for a 3-year term, upon recommenda-
tion of the academic dean after consultation with
each faculty member with 2 years of teaching in the
concentration concerned. Normally,. a full-time
member is eligible for appointment as chairman in
his concentration after 3 years of teaching at the
college. The appointments are not necessarily made
on the basis of the academic ranking of members
within the concentration. Because of their adminis-
trative duties, concentration chairmen have a re-
duced teaching load of 9 semester hours per week.
They have in the past received stipends in addition to
their regular salaries. However, for budgetary rea-
sons, the stipends were suspended for the current
academic year.
Appointments to the faculty are made by the
president, after consultation with the academic dean
and the chairman of the concentration involved. The
procedure followed by concentration chairmen in
considering new applicants for a faculty position is
set forth in the faculty handbook. The chairman,
after consultation with the faculty in his concentra-
tion, determines the need for new faculty members.
He then compiles a list of potential applicants and
screens from it those clearly lacking in qualifications
set for open positions. After consultation with faculty
members and students within his concentration he
extends invitations to the candidates to interview
with, and make an oral presentation to, the faculty
and students in the concentration. The chairman
then consults with a hiring committee which is
selected by all full-time faculty members in the
concentration subject to the approval of the faculty
senate; the committee can veto a hiring decision
made by the chairman. Notification of the hiring
decision, in writing and signed by each committee
member, is submitted by the chairman to the
academic dean, and the latter requests from the
president authorization to offer a contract to the
candidate selected.
The Regional Director found that, in the event of
termination proceedings, the chairman may choose
not to participate or not to become involved. The
Employer asserts that this finding is in conflict with
the policy statement in the faculty handbook as to
"procedure for Non-Renewal of Contract," to wit:
Normally the initiative for the non-renewal of a
faculty member's contract is the,responsibility of
the chairman of the concentration. When the
faculty member in question is a chairman or when
the chairman remains impervious to continual
complaints about one of his faculty members, or
when the administration has cause, non-renewal
proceedings will be initiated by the officers of the
Faculty Senate . . . .
The record contains testimony of a chairman that
when asked to select a faculty member for nonrenew-
al, for budgetary reasons, he usually selects the one
with the least seniority. We note that the portion of
the handbook cited by the Employer also states:
The faculty member has the right , if he so
desires, to appeal the action of the Chairman to
the Faculty Appeal and Review Board. This
Board shall consist of four elected full-time
faculty members and the President of the College
ex officio or his delegated representative. .. .
The final decision of the Appeal and Review
Board will be determined by a majority secret
ballot.
The handbook also states that termination of an
appointment at any time, for cause, will be consid-
ered by both a suitable faculty committee and the
administrative council, except in instances of gross
immorality or treason, when the facts are admitted.
A faculty member who believes he meets the
qualifications for promotion to a higher rank or for
tenure,2 as set forth in the handbook, submits a
I Although the Petitioner sought to exclude all part -time members , the Director 's determination with respect to part - time employees is adopted pro
Regional Director included as regular part -time employees those who forma
carved teaching loads of at least 3 semester hours per week . As the 2 Tenure is a permanent appointment to the faculty Eligibility begins
Petitioner filed no request for review and indicated a willingness to proceed with a full-time faculty appointment to the rank of instructor or higher
to an election in a unit including part-time members , the Regional
J
ROSARY HILL COLLEGE 1139
written request therefor to his concentration chair-
man. By November 1 the chairman will submit the
request with his recommendations to the faculty
promotion and tenure committee, made up of four
full-time faculty members having at least 3 year's
residence, and the academic dean. By December 1,
the Committee considers objective evidence present-
ed by faculty, students, and administration in
appraising the credentials of the applicant and
prepares its report. It then meets with the trustee
committee on promotions and tenure to take joint
action on the report by December 15. The president
writes the letter of promotion or grant of tenure
which is sent to the chairman who has the honor of
presenting it to the faculty member before public
notice is released.
The chairman annually evaluates the performance
of the faculty members within his concentration, on a
printed form, for submission to the academic dean.
Students may submit to the academic dean inde-
pendent evaluations of faculty members in their
concentration. As indicated above, in connection
with applications for promotion, faculty members
may submit to the committee their independent
evaluations of the applicant.
The chairman is required to attend meetings of the
dean's advisory committee, which is composed of
various administrative personnel. With the coopera-
tion of faculty members in his concentration, the
chairman arranges the schedule of courses to be
offered in his concentration and maintains course
outlines. He calls and presides over monthly meet-
ings of a policy committee of the faculty within his
concentration. In recent years students have partici-
pated in this committee activity.
Upon the foregoing and the entire record in this
case, we do not believe the Employer has demon-
'
The record evidence, in our opinion , is insufficient to warrant a finding
that one or more of the chairmen in the larger concentrations should be
excluded from the unit by virtue of supervisory authority they allegedly
exercise with respect to the hire of a clerical employee assigned to assist
them in their administrative duties
4 In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
strated that the concentration chairmen, in its
interest, have or exercise any of the indicia of
supervisory authority as set forth in Section 2(11) of
the Act. We find, rather, that course assignments,
recommendations concerning appointments, promo-
tion, tenure, nonretention and termination, and
evaluation are made by the chairmen on a collegial
basis, in consultation with fellow faculty members in
the same concentration, or through special commit-
tees. Where a chairman submits his own recommen-
dation affecting the status of a faculty member to a
special committee, it is clear that the latter consider
that recommendation together with any received
from other faculty members, as well as from
students, within the concentration, and that the
committee's disposition becomes the basis for final
action taken by the president. We find, therefore,
that the concentration chairmen are not supervisors;
and as they are predominantly engaged in teaching
responsibilities similar to those of other faculty
members, we find that they are properly included in
the following unit, found appropriate by the Region-
al Director: 3
All full-time and regular part-time members of
the faculty of Rosary Hill College in Snyder, New
York, including concentration chairmen, but
excluding irregular part-time faculty members,
administrative personnel, all other nonprofession-
al personnel, watchmen, guards and supervisors
as defined in the Act.
Accordingly, the case is remanded to the Regional
Director in order that he may conduct an election
pursuant to his Decision and Direction of Election,
as modified herein, except that the payroll period for
determining eligibility to vote shall be that immedi-
ately preceding the issuance date.4
Underwear Inc, 156 NLRB 1236, N L.R B v Wyman-Gordon Co, 394 U S
759. Accordingly, it is hereby directed that a [corrected ] election eligibility
list, containing the names and addresses of all the eligible voters, must be
filed by the Employer with the Regional Director for Region 3 within 7 days
of the date of this Decision on Review . The Regional Director shall make
the list available to all parties to the election No extension of time to file
this list shall be granted by the Regional Director except in extraordinary
circumstances Failure to comply with this requirement shall be grounds for
setting aside the election whenever proper objections are filed