St. Thomas University, Inc.

National Labor Relations Board - Board DecisionsApr 25, 1990

298 N.L.R.B. 280 (N.L.R.B. 1990)

280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD St. Thomas University , Incorporated and St. Thomas University Faculty Association , a Chapter of the United Faculty of Florida/NEA, Petitioner. Case 12-RC-6955 April 25, 1990 DECISION ON REVIEW, ORDER, AND DIRECTION OF ELECTION BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND OVIATT On September 15, 1988, the Regional Director for Region 12 issued a Decision and Order, dismiss- ing a petition in which the Petitioner sought to rep- resent a unit of the Employer's faculty. The Re- gional Director found the unit sought by the Peti- tioner was composed of managerial employees, who are excluded from the coverage of the Act under NLRB v. Yeshiva University, 444 U.S. 672 (1980). The Petitioner filed a timely request for review of the Regional Director's decision in ac- cordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, ar- guing that the faculty did not exercise effective control over University policy and was therefore not managerial under Yeshiva. By Order dated June 7, 1989, the Board granted the Petitioner's request for review.' The Employer and the Petitioner filed briefs and reply briefs in this matter.2 The Board, by a three-member panel, has consid- ered the entire record in this case. For the reasons set forth below, the Board finds that the Regional Director erred in finding the faculty of the Em- ployer to be managerial employees. The Employer is a private, nonprofit liberal arts university founded in 1961. It offers undergraduate degrees in 32 majors, master degrees in 10 areas, and a law degree. The University has 2500 to 2600 students. St. Thomas annually derives gross reve- nues in excess of $1 million and purchases and re- ceives at its Miami, Florida facility goods, materi- als, and supplies in excess of $50,000 directly from suppliers located outside the State of Florida. We find that the Employer meets an appropriate juris- dictional standard of the Board. University of Miami, 213 NLRB 634 (1974). On February 8, 1988, the Petitioner filed a repre- sentation petition seeking certification as bargaining representative of the Employer's faculty. The issue in this case is whether the faculty members are ' The Employer also timely filed a request for review, arguing that the Regional Director erred in asserting jurisdiction over the Employer under NLRB v. Catholic Bishop of Chicago, 440 U S 490 (1979). The Board's June 7, 1989 Order denied the Employer's request for review. 2 The Employer has requested oral argument The request is denied as the record and briefs adequately present the issue and the positions of the parties managerial employees excluded from the coverage of the Act. We summarize below the facts that we regard as determinative of the issue. The University is composed of five divisions, and each division is headed by a division chairper- son.3 The chain of command, in ascending order, consists of faculty, division chairpersons, the dean of faculty, the vice president of academic affairs, the University president, and the board of trustees. The parties agreed that all levels above faculty should be excluded from the bargaining unit. During the fall of 1986, the board of trustees hired a consulting firm, the Wavertree Group, Ltd., to act as the Employer's chief operating offi- cer in response to a financial crisis at the Universi- ty.4 Wavertree restructured the University to over- come the University's financial difficulties. The board of trustees adopted Wavertree's reorganiza- tion plan to reduce the number of the University's divisions from nine to four and then to create a new division for a total of five new divisions.5 The reduction of divisions required the release of the nine division chairpersons. The University previ- ously had a separate graduate school with its own deans and coordinators, but under Wavertree the graduate coordinators and graduate faculty were integrated with the undergraduate faculty under the five new divisions. The dean positions of the graduate school and adult education were eliminat- ed. No evidence exists that the faculty's vote or ap- proval of the Wavertree reorganization plan was sought or given. However, there is evidence that the faculty opposed the changes effected by the plan. 6 The Faculty Forum The principal vehicle for faculty participation in University decisionmaking is the Faculty Forum (Forum), composed of all full-time teaching facul- ty, professional librarians, and the Forum Execu- tive Committee.? According to the faculty hand- book, the Forum is an advisory body that is au- thorized to make recommendations on University a The five divisions are Humanities and Religious Studies, Physical Sci- ences and Mathematics; Social Sciences and Education; Business Eco- nomics, Sports, and Tourism; and Supplemental Education 4 Wavertree ended its services with the University on July 1, 1987, but it continued to visit the University once a month for a year thereafter in accordance with a bank loan. 5Seefn.3 6 By the time the dean of faculty distributed the Wavertree reogamza- hon plan to the faculty for review and comment, the plan had already been announced and adopted by the board of trustees 7 By the time the dean of faculty distributed the Wavertree reorganiza- tion plan to the faculty for review and comment, the plan had already been announced and adopted by the board of trustees. 298 NLRB No. 32 ST. THOMAS UNIVERSITY 281 policy to the president and chief academic officer." However, although the Forum is permitted to pro- vide recommendations and suggestions to the ad- ministration, the Forum's recommendations have not been effective. Of the more than 150 academic policies of the University set forth in the academic policy manual, only 2 originated in or were ap- proved by the Forum.9 With these two minor ex- ceptions, the University has not adopted or imple- mented any other Forum recommendations.' Â° In- stead, the administration has routinely rejected the Forum's recommendations-" The University also does not need Forum approval to implement aca- demic policy, and it has not sought the Forum's approval in the past.12 The Forum Committees The Forum has five standing committees, which perform most of the Forum's work.13 The Forum committees, like the Forum, are authorized to make academic policy and procedure recommenda- tions to the administration. There is, however, no evidence that these committees have in fact made recommendations that were implemented by the administration. The Committee on Academic Freedom and Tenure (AFT) is composed of tenured faculty. The AFT is authorized to hear appeals regarding aca- s The Executive Committee of the Forum is elected by the member- ship and consists of three officers, a chairperson, vice chairperson, secretary/treasurer, and member-at-large. The Forum considers policies affecting academic standards of the University, the University curricu- lum, faculty welfare, faculty preparation, and teaching effectiveness. The faculty handbook states that the Forum is to provide a representative body for faculty participation and is to "advise on matters of academic policies and procedures, and provide faculty recommendations and sug- gestions to the president . . . and chief academic officer in matters per- taining to the educational interest of the University." 9 The administration approved a policy on sabbaticals, which the Forum proposed in 1983. That same year the administration approved a policy for the selection of division chairpersons , which had also originat- ed in the Forum. 10 Dr. Donna Blaess, a faculty member, testified that she ceased at- tending Forum meetings when she realized no meaningful business was being conducted there. 11 For example , in 1979, the Forum voted to maintain the existing policy allowing new faculty to apply for tenure after 5 years. The Forum also strongly opposed a tenure-quota system. Three years after the Forum's resolution, the board of trustees voted to abolish tenure and ap- pointed a special committee to find alternatives to tenure. In 1985, the Forum voted its opposition to a University policy requiring the faculty to deliver deficiency notices personally to students . The University refused to rescind the policy. Also, since 1985, the Forum has asked the Universi- ty three times to provide a cafeteria benefits plan, but the University has refused . In 1986 and 1987, the Forum passed resolutions requesting facul- ty representation on the board of trustees and the president's executive committee. The administration denied both requests. 12 When questioned ' about what role the Forum has in the adoption of academic policy, Dean Wieser testified that the Forum does not approve policy, and that "[tlhe people who approve the policies are the Division Chairs, the Academic Policy Council, the President , but ultimately, the Board of Trustees." is In addition to the three Forum committees discussed below, there are the Social Activities and Sullivan Award Committees. The Sullivan Award is given to a faculty member for summer research. demic freedom, the nonrenewal of rolling con- tracts, contract termination, and the denial of tenure.14 The AFT may also make recommenda- tions to the University president. The AFT' has only met one time since its creation, and that meet- ing was to consider faculty member Joel Garcia's appeal of the University's decision to deny him tenure. The AFT recommended that Garcia be granted a 3-year rolling contract, but the Universi- ty president rejected the committee's recommenda- tion. The Educational Policy Committee (EPC) con- sists of one faculty member elected from each divi- sion and provides for an additional member-at- large . The EPC is authorized to make recommen- dations concerning all aspects of academic and edu- cational life, including standards, goals, instruction- al practices, and educational requirements. The EPC is also authorized to review current course offerings and educational programs. The record re- veals that the EPC has never made any recommen- dations on academic or educational matters that have been adopted by the University. The Rank, Compensation and Welfare Commit- tee (RCW) is composed of six faculty members, in- cluding a faculty member from each of the five di- visions and a member-at-large . The RCW is author- ized to address grievances regarding advancement in rank and matters concerning faculty well being. The RCW may evaluate faculty requests for sabba- ticals and make recommendations to the Forum. Although faculty members have been denied ad- vancement in rank, the Committee has never heard an appeal. The RCW has made five recommenda- tions that were adopted by the Forum and present- ed to the administration. The administration failed to adopt four of the, recommendations.' 5 The RCW's fifth recommendation was that adjunct fac- ulty be granted a small pay increase. The pay in- crease was partially funded by the administration. University Committees The Employer also has 15 University committees composed of faculty and administration representa- tives.16 Of these 15 committees, only the Division 14 The AFT does not currently hear appeals involving the denial of tenure, as tenure was abolished in 1982. 18 The four RCW recommendations addressed requests for faculty sick leave, long-term disability benefits , liability insurance, and a cafeteria ben- efits plan. 16 In addition to the committees discussed below, there are seven lesser committees, six of which include faculty members These six committees are continuing and adult education, computer use steering, facilities, food service, library, and premedical Most of the members of these commit- tees are faculty members. Another committee, the president's executive committee, excludes faculty members. 282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Chairpersons Committee (DCC) has substantial in- fluence on University policy. There are no faculty members on the Division Chairpersons Committee (DCC). The DCC is com- posed of the dean of the faculty and the five divi- sion chairpersons who, by stipulation, are excluded from the proposed bargaining unit. The duties of the DCC include advising the dean of faculty on the curriculum, recommending general education requirements, reviewing or initiating new academic programs (divisions or courses), and serving as the curriculum committee. The DCC is dean of faculty and meets every 2 weeks at a minimum, and daily when necessary. The faculty handbook establishes the Procedure for Implementing Academic Policy (PIAP). In ac- cordance with the PIAP, before implementing policy the chief academic officer must seek both the advice and consent of the Academic Policy Council (APC)17 but only the advice of the DCC. However, in fact the DCC considers, votes, and approves every curriculum change implemented by the University.18 The DCC has voted on and ap- proved all curriculum changes, including the aca- demic calendar, distribution of deficiency notices by faculty, new courses, student discipline policy, major requirements , contracts for adjunct faculty and overloads, participation in graduation, new major and minor courses of study, class size re- quirements, and final exam procedures. The record also demonstrates that virtually every academic policy and curriculum change of the University was proposed, drafted, and adopted by the DCC and other members of the administration.19 The members of the DCC all possess the professional expertise to independently evaluate and consider academic and curriculum proposals that come before it. All five division chairpersons are teach- ing faculty members and accomplished educa- tors.20 17 The APC is discussed in the following paragraph of the text. 11 Paul Wieser, the dean of faculty, testified that the PIAP, as applied by the University, required the DCC, APC, and the administration to ap- prove all changes in academic policy. The record reveals no instance in which the APC recommended any action without the consent of the DCC. 19 For example , Dean Wieser drafted and proposed the new policy re- quinng that level 100 and level 200 courses be taught only in English and that students attain a minimum score on the TOEFL exam (an English proficiency exam) before they could take upper division courses. Dean Wieser proposed and instituted the two-essay requirement for all courses in response to the high failure rate of students on the state-mandated CLAST exam Dean Wieser drafted and proposed the new grade point average of 3.55 for the Dean's list. Vice President for Academic Affairs Green drafted and proposed the new Liberal Studies major and the strict- er policy on student participation in the graduation ceremony. The DCC minutes show that almost all the new courses adopted during the past 2 years at the University were proposed by division chairs, deans, or vice presidents. 20 To be appointed a division chairperson, a faculty member must have earned a doctorate degree in a discipline in which the division offers a The Academic Policy Council is composed of the chief academic officer, dean, of faculty, execu- tive committee of the Forum, dean of the law school, and chairperson of the Forum Educational Policy Council. Members of the faculty make up a majority on the APC. The APC is authorized to decide on and implement academic policy that has University-wide implications. The APC, in contrast with the DCC, meets in- frequently.21 There is no evidence that the APC has ever formulated or made proposals regarding academic policy on its own; instead, it appears to "rubber stamp" proposals made by the DCC or the administration. Although the chief academic officer must obtain the advice and consent of the APC prior to implementing or changing academic policy in accordance with the Procedure for Implement- ing Academic Policy, the academic policy manual provides that the board of trustees has the power to mandate academic policy without following the PIAP. The administration has frequently exercised this authority to unilaterally implement academic policy without the advice or consent of the APC.22 The remaining University committees meet infre- quently, and any recommendations they may make to the administration are usually ignored. The Admissions Committee (AC) is authorized to consider applications of students who do not meet the minimum requirements. The AC may also recommend changes of admission standards or pro- cedures to the president. The AC is composed of the director of admissions and three or more facul- ty representatives.23 There is testimony that the recommendations of the AC are not followed.24 program of study. The faculty member must also demonstrate excellent performance in the four functional areas for which members of the Uni- versity's faculty are responsible (teaching, public service, research, and University service). 21 The APC met five tunes during the 1986-1987 school year and three times during the 1987-1988 school year. 22 In 1984 the University administration established a law school with 61 courses and 12 new faculty members without the advice or consent of the APC or the Forum. In 1987 the board of trustees adopted and imple- mented the Wavertree reorganization plan, also without the review or consent of the APC or the Forum. In 1987-1988, again acting without the advice or consent of the APC or the Forum, the DCC unilaterally implemented a number of academic programs , changes, and policies, in- cluding a requirement that all faculty assign two essays to every student in every class, the elimination of a requirement that undecided majors take Developmental 101, the implementation of an Articulation Agree- ment with Briarcliffe College under which the University agreed to accept Briarcliffe graduates as matriculating students, and the initiation of a new degree program in Liberal Studies. 22 There are currently three faculty members and two administrators on the AC. 24 Faculty member Dr. Helen Jacobstem testified that members of the AC were very upset because the Committee's recommendations not to admit certain students to the University were ignored by the Director of Admissions. ST. THOMAS UNIVERSITY 283 The Student Disciplinary Committee consists of five faculty members, two students, and one admin- istrator. This Committee functions as an appellate body and is authorized to hear student appeals. Its authority is limited to determining whether the di- rector of students followed the correct procedures in trying the student and whether the penalty im- posed is too severe. The Committee is prohibited from hearing any new evidence. There is no evi- dence that the Student Disciplinary Committee has ever made a recommendation that was implement- ed by the University. The Financial Aid Appeal Committee consists of four faculty members and the director of financial aid. The Committee is authorized to hear student appeals of the denial of financial aid. There is no evidence that the Committee has heard such an appeal, and according to the Committee's chair it has not met since he took over the chairmanship in 1985.25 The Grievance Committee is composed of the Forum's Executive Committee and is authorized to review grievances of the faculty and to ensure due process on any legitimate complaint against the University. The, Grievance Committee reviewed four grievances during the 1986-1987 academic year. However, it is unclear whether the adminis- tration upheld the Grievance Committee's recom- mendations.26 The Retention Committee has 12 members.27 The Committee is authorized to review retention activities and make recommendations on how to retain students. There is no evidence that the Re- tention Committee has ever made a recommenda- tion to the administration. Finally, the Rank and Tenure Committee (R & T) consists of four faculty members and the Dean of faculty. The Committee is authorized to evaluate faculty petitions for advancement in rank or tenure and to make recommendations concerning the ter- mination of tenure and rolling contracts. There is 25 There was a single instance when a student complained he had im- properly been denied financial aid; however, that appeal was resolved by the Academic and Student Life Management Council (a committee com- posed of four deans and three division chairs) and not the Financial Aid Appeal Committee. 26 The first grievance addressed a faculty member's summer pay. Dean Wieser testified that the Committee merely recommended that "some method of compensation . . be worked out" and that "it was resolved to [the professor's] satisfaction." The second grievance dealt with the im- proper termination of a faculty contract, and the Committee voted to uphold the nonrenewal decision that had already been made by the ad- ministration. The third grievance involved a complaint that a dean raised his voice to a faculty member, and the Committee resolved the dispute internally. The fourth grievance concerned a dean's suggestion that a fac- ulty member be impeached, and the Committee recommended the dean be reprimanded. However, the administration did not act on this recom- mendation'as the dean left the University shortly thereafter. 27 Eight of the 12 members of the Retention Committee are faculty members testimony that the R & T's recommendations have not always been followed.28 The University has occasionally established spe- cial ad hoc committees to consider various prob- lems, and the faculty participated in these commit- tees. The administration has generally not followed the recommendations of these committees.29 In addition to the committees outlined above, certain other facts are indicative of the relative au- thority of the Employer's faculty and its adminis- tration. With regard to the curriculum, the divi- sional faculty do not have absolute authority over their own curriculum; rather, as set forth in the PIAP, faculty recommendations for new courses and changes in the curriculum are subject to four layers of administrative review.30 With regard to teaching methods, every faculty member must, in consultation with the division chairperson and the Dean of faculty, prepare a syl- labus for every course taught.31 Faculty members must submit their proposed class schedule to a divi- sion chairperson who is responsible for preparing a division schedule. The administration requests the faculty to monitor the students' attendance and rec- ommends that no more than three unexcused ab- sences be permitted. Final exams are administered according to a' schedule prepared by the registrar and the Dean of faculty. Faculty members may change a permanent grade only with the approval of the Dean of faculty, and the administration pro- vides the faculty with suggested point equivalents for each letter grade.32 The faculty may select textbooks only after consulting with the division chairperson, and guest speakers must be approved by the division chairperson. 28 Dr. Helen Jacobstem , a faculty member who served on the R & T during the 1985-1986 academic year, testified that the Committee recom- mended that the president deny the application for advancement of Mer- cedes Iannone . Howeiver, the administration rejected the R & T' s recom- mendation and granted the application. 29 For example , the Tuesday Committee was an ad hoc committee es- tablished by Dean Wieser to make recommendations for curriculum changes in order to deal with the students' high failure rate on the state- mandated CLAST exam. Although the Committee met several times and considered the Dean;s proposal to have students write two essays in every undergraduate course, it disbanded without making any recommen- dations for changes in the academic program . Six months later, Dean Wieser met with the 1)CC, and the DCC unilaterally imposed the essay requirement that the Tuesday Committee had failed to recommend. 30 The proposed curriculum change must be approved by the chairper- son of the division affected by the change, the DCC, the chief academic officer, and the APC. The APC appears to perform a perfunctory review of these proposals, merely "rubber stamping" proposals approved by the DCC or the administration. New degree programs must also be approved by the board of trustees. 31 The syllabus sets forth the course objectives , the requirements, and a time schedule. 32 In order to halt grade inflation, Dean McCartney sent letters to the faculty warning them to stop giving students high grades. The Dean later reported that the grade inflation had abated considerably. 284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD When a student is ready to graduate, he submits a graduation application to the division chairperson who certifies that the student has met all require- ments. The division prepares a list of those eligible to graduate and submits it to the DCC for review. The list is then submitted to the Forum where it is adopted pro forma. In the nonacademic areas, the budget is prepared by the division chairperson and approved by the president. The University has no policy allowing for faculty involvement in the hiring of new facul- ty.33 Although Dean Wieser testified that there is faculty involvement in the hiring process, the Dean's testimony was contested by two other wit- nesses.34 The faculty has no input into decisions regarding tuition, location of schools, teaching loads, or en- rollment levels. The Legal Standard- Yeshiva and Its Progeny In NLRB v. Yeshiva University, supra, the Su- preme Court found that the faculty members were managerial employees excluded from coverage of the Act. It defined managerial employees to be those who "formulate and effectuate management policies by expressing and making operative the de- cisions of their employer."35 The Court held that managerial employees "must exercise discretion within, or even independently of, established em- ployer policy and must be aligned with manage ment."36 Managerial employees represent manage- ment "interests by taking or recommending discre- tionary actions that effectively control or imple- ment employer policy."37 The Court found that the faculty of Yeshiva, through participation in meetings and committees, determined each school's curriculum, academic cal- endar, course schedules, admissions and matricula- tion standards, teaching methods and grading poli- cies, and sometimes determined tuition, the size of 33 The only University policy addressing this issue is the division chairpersons' job description, which makes chairpersons responsible to search for and recommend new faculty. E4 Dean Wieser testified that when a new faculty member is to be hired, the appropriate divisional faculty and chairperson interview the candidate and forward a recommendation to the vice president of aca- demic affairs . The Dean also testified that the ultimate decision to hire faculty is made by the president. However, Dr. Jacobstem testified that when she was a division chair from 1981-1984 four full-time faculty members were hired in her division , and that the faculty played no role in their hire . Dr. Jacobstem also testified that during her entire 16 years at the University, her division faculty has never assembled a luring sub- committee or voted on the hiring of a faculty member. Graduate faculty member Dr. Blaess testified that there is no procedure for hiring graduate faculty and no hiring committee, and that the graduate faculty has never voted on a new hire. as 444 U S. at 682, quoting from NLRB v. Bell Aerospace Co., 416 U.S. 267, 288 (1974). 36 Id at 683 37 Id. the student body, and the location of a school. The Court found that the faculty's control of academic matters was absolute. In nonacademic areas, the Court found that the faculty played a predominant role in decisions on faculty hiring, tenure, sabbati- cals, termination, and promotion. Although the final decisions on these personnel matters were made by the administration, the Court noted that the faculty made recommendations in all cases and that the overwhelming majority of these faculty recommendations were implemented. The Court noted that, at least in some of the schools, budget requests were made by the senior professor in each subject area and received the Dean's "perfunctory" approval "99 percent" of the time.38 The Court was not persuaded by the fact that faculty deci- sions were subject to veto power in the administra- tion, which was rarely exercised.39 In concluding that the Yeshiva University faculty were manageri- al employees, the Court relied primarily on their extensive authority over academic affairs, but also noted their predominant authority in nonacademic matters. Since the Supreme Court decided Yeshiva, the Board has determined the managerial or nonmana- gerial status of college and university faculty mem- bers in a variety of faculty settings. For example, in Livingstone College, 286 NLRB 1308 (1987), the Board found faculty members to be managerial em- ployees where they exercised substantial authority with respect to curriculum, degree requirements, course content and selection, graduation require- ments, matriculation standards, and scholarship re- cipients. The faculty members participated in aca- demic governance through membership on various standing committees and by virtue of a facultywide vote on recommendations proposed by these com- mittees. Generally, recommendations approved by the faculty were implemented. The Board placed only limited significance on the fact that the fal- cuty had virtually no input into nonacademic mat- ters such as the budget process, tenure decisions, selection of administrators, and no authority in the hiring and firing of faculty. See also University of Dubuque, 289 NLRB 349 ( 1988).40 38 444 U.S at 675, fn 3 as Id. at 683, fn. 17 40 In Dubuque, the Board also found the faculty members to be mana- gerial employees The Board found that the Dubuque faculty played a major and effective role in the formulation of academic policy and could effectively recommend discretionary actions with respect to the imple- mentation of policy in nonacademic areas The Board noted that under the collective-bargaining agreement the faculty as a whole had the exclu- sive right to set student grading and classroom conduct standards, set degree requirements, and develop, recommend , and approve curriculum content and course offerings ST. THOMAS UNIVERSITY 285 In Boston University, 281 NLRB 798 (1986), enfd. 835 F.2d 399 (1st Cir. 1987), the Board held that the department chairpersons and full-time faculty were managerial employees. The Board found that the Boston University faculty exercised effective control over matriculation requirements, curricu- lum, academic calendars, and course schedules and had absolute authority over grading, teaching methods, graduation requirements, and student dis- cipline. The Board also noted that the faculty played an effective role in recommending faculty hiring, tenure, promotions, and reappointments, and that faculty decisions on all policy matters were ef- fectuated in the great majority of instances. By contrast, in Bradford College, 261 NLRB 565 (1982), the Board held that the faculty members were nonmanagerial where governance documents indicated that they had substantial authority, but where in practice they had little. The Board found that the faculty did not effectively determine teach- ing loads, salaries, budget, the, filling of administra- tive positions, faculty evaluations, or certain facul- ty personnel actions. The Board also found that the administration had canceled an academic session without faculty approval, had sometimes altered grades given by faculty members, and at least in some cases had failed to follow faculty recommen- dations for the hiring of new faculty members. In determining that the faculty lacked effective au- thority, the Board considered an accrediting agen- cy's report that reviewed the administration's disre- gard for stated procedures and for faculty partici- pation in the administration of the college. The Board concluded: In sum, while the faculty and division chairs have the written right to make recommenda- tions, the record shows that such recommen- dations were often ignored or reversed by the president, by the academic dean, or by both with respect to curriculum, admission policies, graduation of students, course loads, course scheduling, grading of students, faculty hiring or retention, tuition, and faculty salaries.41 In Florida Memorial College, 263 NLRB 1248 (1982), 278 NLRB No. 163 (Mar. 27, 1986) (not printed in bound volume), enfd. 820 F.2d 1182 (11th Cir. 1987), the Board found the college's fac- ulty members to be nonmanagerial employees. The Board noted that the various standing committees had generally been granted little authority and did not meet regularly. The curriculum was not within the faculty's absolute control, as all decisions in- volving course offerings had to be approved by the 41 Bradford College, 261 NLRB at 566-567. Academic Council,42 and other curricular propos- als had to be approved by the board of trustees or the dean of academic affairs. The Board also noted that the faculty had no effective control over ad- missions policy, graduation requirements, or mat- ters relating to the retention, suspension, probation, or expulsion of students. In Loretto Heights College, 264 NLRB 1107 (1982), enfd. 742 F.2d 1245 (10th Cir. 1984), the faculty members participated in the governance of the college through various faculty-dominated committees. The administration routinely accepted the recommendations of these committees in the areas of academic policy, new courses, grading cri- teria, faculty promotion, and tenure. In spite of the faculty's power, the Board found the faculty mem- bers to be nonmanagerial. In making that determi- nation, the Board relied in part on the fact that most of the actions taken in which faculty members participated were in the form of recommendations and advice, and that no faculty member was au- thorized to take any action on the member's own initiative that would be final and binding on the college. The Board also relied on the presence of a large administrative staff. The, Board found that such a staff created a very effective buffer between the top management and the lowest echelon,43 eliminating the need for the college's administration to 'rely on the faculty for advice, recommendations, and the establishment and implementation of poli- cies. Analysis In the instant case, the Regional Director con- cluded that under Yeshiva, supra, and subsequent Board decisions, the faculty members at St. Thomas University have sufficient authority to for- mulate and effectuate policy to require excluding them from the coverage of the Act as managerial employees. We disagree with the Regional Direc- tor's conclusions. We base our disagreement on several of his factual findings and his application of Yeshiva principles to the facts of this case. The Regional Director based his conclusion that the Employer's faculty members are managerial employees in large part on his findings (1) that the Forum and a variety of committees were author- ized to make recommendations to the administra- tion on a wide range of policy matters; (2) that the faculty members serve on all' but two of these com- 42 Almost one-half of the voting members of the Academic Council were administrators 43 The Board found that the program directors provided this buffer. The program directors largely controlled the budget, served on key com- mittees and task forces, and were administrators rather than instructors (although they carried teaching loads). 286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mittees (the Department Chairpersons Committee and president's executive committee) and are ma- jority on most of the committees; and (3) that the members of the faculty are thus managerial because they participate in the formulation of policy through these committees. We disagree with the Regional Director's third finding that the faculty members participate in the formulation of policy through these committees. The record fails to demonstrate that the faculty members, through these committees, have effec- tively recommended or been the moving force behind the formulation and adoption of University policies. Instead, these committees, with the excep- tion of the faculty-free DCC, have met infrequent- ly, and any recommendations they have made re- garding academic or nonacademic policy have usu- ally been ignored or reversed by the administra- tion. In Yeshiva, supra, the Supreme Court, in fording the faculty to be managerial, relied on the exten- sive authority of the faculty in both academic and nonacademic matters. The Court noted that the Yeshiva faculty had absolute authority in academic matters and that the faculty members "effectively determine its curriculum, grading system, admission and matriculation standards, academic calendars, and course schedules."44 The Yeshiva faculty also made "final decisions regarding the admission, ex- pulsion, and graduation of individual students."45 In this case, it is the St. Thomas administration and not the faculty that plays the predominant role in determining the University's curriculum, grading policies, admission and matriculation standards, teaching methods, faculty hiring, and tenure. The administration proposes, drafts, and adopts the vast majority of academic policy and curriculum changes. The faculty must apply a grading sched- ule provided by the administration and has been or- dered by the administration to grade within a cer- tain range. The faculty may change a final grade only with the approval of the dean of faculty. The administration ordered the faculty to write and de- liver deficiency notices to students despite the Forum having twice voted in disagreement with the policy. The admissions standards were set by a committee of four administrators and one faculty member and were not approved by the Academic Policy Council or the Forum. The division chair determines whether a student has met graduation requirements, and that determination is reviewed and approved by the DCC prior to a pro forma vote by the Forum. The faculty must prepare course syllabi and select textbooks in consultation 44 444 U S. at 676 45 Id at 677 with the division chair. The DCC ordered the fac- ulty to require students to write two essays in every course, despite the faculty committee's refus- al to adopt the requirement. The faculty is not in- volved in faculty hiring, and the administration abolished tenure over the protest of the Forum. Additional evidence of the faculty's nonmanager- ial status is the administration's unilaterally estab- lishing the law school and adopting the Wavertree reorganization plan. The Wavertree plan created and eliminated entire degree programs46 without the faculty's review or approval. Clearly, the St. Thomas University faculty' have considerably less effective authority in both the academic and nonacademic spheres than did the faculty in Yeshiva, supra, and the faculties in vari- ous Board decisions following Yeshiva in which the faculties have been held managerial.47 We note that the facts of the instant case are similar to those Board decisions in which the Board found the fac- ulties to be nonmanagerial.48 Accordingly, we dis- 46 In this respect, the present case is similar to Bradford College, supra, where the elimination of an academic program without faculty input was a factor relied on by the Board in finding the faculty nonmanagerial. 47 For example, in both Livingstone College and University of Dubuque, supra, a determining factor that led the Board to find the faculties mana- gerial was its finding that the faculties as a whole voted on all academic policies that were implemented by those universities. In Livingstone, the whole faculty voted on faculty committee recommendations for academic policies including curriculum changes, new degrees, and admissions poli- cies. Similarly, in Dubuque the collective-bargaining agreement gave the faculty the exclusive right to determine academic policies, and these poli- cies were submitted for review and approval to the whole faculty. In the present case, the faculty as a whole at St. Thomas does not vote on aca- demic or nonacademic matters and plays no role in the policy-making process at the University. Member Oviatt agrees that this case is distin- guishable from Livingstone and Dubuque and does not reach the merits of those decisions. In Boston University, supra, the Board found that the faculty almost always effectively controlled curriculum , matriculation requirements, and course schedules. The Board noted that the faculty also played an effec- tive and determinative role in recommending faculty hiring, tenure, and promotions, and that faculty decisions on all policy matters were effectu- ated in the majority of instances. In particular, the Board noted that the faculty had the authority to veto curriculum and personnel decisions. In this case, the St. Thomas University faculty does not play an effective and determinative role in recommending academic or nonacademic policy. Instead, most faculty recommendations have been ignored or re- versed by the administration. 48 For example, as in Bradford College, supra, the faculty here lacks ef- fective authority in determining academic policy. Although governance documents indicated the Bradford faculty and division chairs could make recommendations with respect to curriculum, admission policies, and grading of students, these faculty recommendations were often ignored or reversed by the administration. Similarly, in the present case, the faculty handbook indicates that the Forum and the University committees have considerable authority in determining academic policy through their rec- ommendations, while in practice these recommendations are also often ig- nored or reversed by the St. Thomas administration. In Florida Memorial College, supra, the curriculum was not within the faculty's absolute control because curricular proposals had to be ap- proved by the board of trustees or the dean. Similarly, in this case, St. Thomas faculty members also do not have absolute control over the cur- riculum as any curricular recommendations they make must,be approved by the chairperson of the division affected by the change, the DCC, the APC, and the chief academic officer. Continued ST. THOMAS UNIVERSITY 287 agree with the Regional Director's finding that the faculty are managerial. Moreover, we believe that applying the manage- rial exclusion in this case would not advance the underlying goal of ensuring that employees who align themselves with management will not divide their loyalty between employer and union. Divided loyalty in Yeshiva, supra, caused problems because the university relied on its faculty for professional expertise that is "indispensable to the formulation and implementation of academic policy."49 The ad- ministrative staff at Yeshiva was relatively small, and there was no effective buffer between the fac- ulty and top management. As a result, the universi- ty was forced to rely on the faculty for recommen- dations, advice, and implementation of policies. By necessity, the Yeshiva faculty, was "aligned with management."5 By contrast, St. Thomas University has an effec- tive buffer between the faculty and top manage- ment in the form of the DCC, which consists of Dean Wieser and the five division chairpersons. The division chairpersons perform administrative duties and are part of the administration. They also teach courses within their disciplines and function as faculty members. The record reveals that the University relies heavily on the expertise of the DCC. Every proposal regarding curriculum mat- ters or academic policy is subject to the DCC's review and approval. The very purpose of the DCC is to review all proposals and provide expert advice to the administration. The DCC possesses the professional expertise that the Court in Yeshiva found indispensable to the formulation and imple- mentation of academic policy. The DCC's expertise obviates the need of the University to rely on the faculty's professional judgment when implementing or formulating academic policy. See Loretto Heights College v. NLRB, 742 F.2d 1245, 1254 (10th Cir. 1984). Under these circumstances, the St. Thomas faculty need not be aligned with management as they were in Yeshiva, supra. This case presents no problem of divided loyalty. For the reasons stated above, we conclude that the Employer's faculty members are not managerial employees under Yeshiva, but are employees enti- tled to protection under the Act. We shall, there- fore, reinstate the instant petition and direct an election in the petitioned-for appropriate unit.tl In Loretto Heights College, supra, the Board found the faculty to be nonmanagerial even though faculty -dominated committees made recom- mendations in some areas that the administration routinely accepted. As noted above, the college was not forced to rely on the faculty for advice, recommendations, and the establishment and implementation of policies because a large administrative staff created a buffer between the top man- agement and the faculty. In the instant case, the DCC, which is com- posed only of members of the administration , creates a similar buffer be- tween St. Thomas' top management and the faculty . The administration relies on the ACC to provide academic advice and to review and ap- prove all academic policy proposals. 49 444 U.S. at 689. 50 Id. at 683. ORDER It is ordered that the petition in Case 12-RC- 6955 is reinstated. [Direction of Election omitted from publication.] si The unit consists of "[a]LL FULL-TIME FACULTY ( instructors, assistant-, associate-, full-visiting-, and emeritus -professors), designated in accordance with 1987-8 Saint Thomas Faculty Handbook, excluding (1) Law School Faculty, (2) Faculty on administrative leave; (3) division chairpersons ; (4) administrators with faculty rank, as designated in ac- cordance with the 1987-88 Saint Thomas Faculty Handbook "