Syracuse University

National Labor Relations Board - Board Decisions

Jun 29, 1973

204 N.L.R.B. 641 (N.L.R.B. 1973)

SYRACUSE UNIVERSITY 641
Syracuse University and The Syracuse University
Chapter, American Association of University Profes-
sors, Petitioner . Case 3-RC-5511
June 29, 1973
DECISION AND DIRECTION OF ELECTIONS
administration, guards, watchmen and supervisors as
defined in the Act. The Employer does not dispute the
appropriateness of this unit but contends that depart-
ment chairmen are supervisors under the Act and
should be excluded. The LFA contends that the Law
School faculty constitutes a separate appropriate unit.
All parties agree that part-time faculty would be ex-
cluded from any unit or units found appropriate.
On July 17, 1972, the Syracuse University Chapter,
American Association of University Professors (here-
in called AAUP) filed a petition seeking to represent
certain employees of Syracuse University.' Pursuant
to the direction of the Regional Director of Region 3,
hearings were held on August 31, September 1, 19, 20,
25, and 26, 1972, before Hearing Officer Gary H.
Feinberg. By order of the Regional Director, dated
October 3, 1972, this proceeding was transferred to
the National Labor Relations Board for decision pur-
suant to Section 102.67 of the Board's Rules and Re-
gulations, Series 8, as amended. Thereafter, the
Employer, Petitioner, and Intervenor filed briefs. In
addition, the Association of American Law Schools
filed an amicus curiae brief and the Employer and
Intervenor filed letter reply briefs.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby af-
firmed.
Upon the entire record in this case, including the
briefs, the Board finds:
1. Syracuse University is an independent, nonpro-
fit university operating under a charter from the State
of New York. Its main campus is located at Syracuse,
New York. The University's gross annual revenue an-
nually exceeds the sum of $1 million, of which, at least
$50,000 is received directly from points outside the
State of New York. Accordingly, we find, and the
parties have stipulated, that the Employer is engaged
in commerce within the meaning of the Act, and that
it will effectuate the purposes of the Act to assert
jurisdiction herein.
2. We find that the Petitioner and Intervenor are
labor organizations seeking to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The AAUP seeks a unit of all full-time members
of the faculty including department chairmen em-
ployed at the Employer's Syracuse, New York, cam-
pus excluding all other employees, officers of
1 The Syracuse University College of Law Faculty Association (herein
called LFA) intervened on the basis of a showing of interest
Scope of Unit
As noted above, the AAUP seeks a universitywide
unit of all full-time faculty members, including the
department chairmen and the Law School. In support
of its position, it contends that the department chair-
men have no supervisory authority over faculty in
their departments and that there is no showing that
the faculty employed by the Law School constitutes a
separate appropriate unit apart from the regular fac-
ulty. The AAUP and the Employer also contend in
support of their position that the university adminis-
tration, including its relationship with the Law
School, is centralized in one governing body with vari-
ous subauthorities emanating therefrom which carry
out the basic administrative policies of the University,
that among the faculty, terms and conditions of em-
ployment are identical, fringe benefits are identical,
and the skills and functions of all of the faculty mem-
bers used in the course of their employment are indis-
tinguishable other than on an academic basis, thus
precluding the establishment of a separate law school
unit. The Employer also contends that the creation of
a separate law school bargaining unit would have a
disruptive influence on the University and place an
added burden upon it. On the other hand, the LFA
contends that the Law School has a community of
interest separate and apart from the rest of the Uni-
versity, that the professional responsibilities of the
faculty are incompatible with placement in a larger
bargaining unit, and that historically, the Law School
has in fact been treated as a separate entity in many
ways.
Supervisory Status of Department Chairmen
The record shows that the various colleges of the
University are subdivided into departments with each
department under the direction of a department
chairman or program director. The Employer con-
tends that approximately 53 of the department chair-
men and program directors are supervisors. The
record shows that department chairmen are appoint-
ed by the dean of the college for indeterminate terms,
some of which having already exceeded several years.
They are responsible for determining the need for new
204 NLRB No. 85
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
faculty members and their recruitment . Faculty re-
cruitment generally follows a fixed pattern including
in many instances group faculty interviews with appli-
cants . However, the department chairman discusses
salaries on an individual basis, and makes the final
recommendation to the dean and as one chairman
testified , he has made employment decisions without
prior discussion with department faculty . Evidence
was also submitted that in the past several years, ter-
minations of nontenured faculty are generally han-
dled by the department chairman after consultation
with college officials , with the chairman drafting and
signing the letter of termination . Letters of appoint-
ment are also sent out over the name and title of the
department chairman . Within the operation of their
departments , the chairman handle the assignment of
support personnel , allocate to faculty members their
respective shares of the department 's operating bud-
get, authorize temporary leaves of absence of from 2
to 4 weeks , and authorize and allow travel expenses.
In addition , department chairmen are not always ap-
pointed from the department , but have on occasion
been hired directly into the department as chairman
from outside the University.
Faculty members who were Petitioner 's witnesses
testified that it is their practice to engage in faculty
group reviews of applicants for faculty status . Howev-
er, these same witnesses also testified in effect that
when the chairman opposed the faculty majority as to
a recommended promotion , it was the chairman's rec-
ommendation that was followed . One witness testified
that if he did not think 'one of the faculty was carrying
his fair share of the load he would "give him a smaller
increment next year and tell him that this is the rea-
son." Other witnesses , including those of the Peti-
tioner, clearly establish that department chairman
serve in what appears to be permanent status, that
they receive substantial increments upon appoint-
ment , that some do no teaching at all, and that there
is a definite line of progression from department
chairman into college and university executive posi-
tions.
In our opinion , the above facts clearly show that the
department chairmen exercise the authority to make
effective recommendations as to the hiring and
change of status of faculty members and that they
exercise substantial control over the day-to-day oper-
ations of their respective departments including as-
signments and monetary benefits and allowances. We
therefore find them to be supervisors within the mean-
ing of Section 2(11) of the Act , and we shall exclude
them from the unit.2
2 C W Post Center of Long Island University, 189 NLRB 904
The Law School as a Separate Unit
As noted above , the LFA seeks the Law School as
a separate appropriate unit . In essence , its position is
founded on the contention that law schools are "pro-
fessional" schools that do not have a true community
of interest with the other campus colleges and schools.
In support of this contention evidence was presented
that the Law School is accredited by the American
Bar Association and the Association of the American
Law Schools , that it is directly regulated by rules of
the New York State Court of Appeals as to curricu-
lum and class attendance requirements , and that com-
pliance with the basic requirements of these organiza-
tions would be extremely difficult if the Law School's
needs were merged by a bargaining representative
with numerous other diverse interests . The LFA also
points out that the Law School is in effect a regional
law school drawing its students from various colleges
in the State , that the hiring and retaining of faculty is
in direct competition with "Wall Street" law firms,
that its student body, faculty, and alumni identify
themselves with the Law School and not the Universi-
ty, that they maintain their own fund raising drives,
and that in the operation of various legal clinics by the
faculty and students , and that in the operation of
various legal clinics by the faculty and students, the
confidential "attorney-client" relationship exists.
The Employer and the AAUP assert that the evi-
dence presented clearly established that the Law
School is an integral part of the University. In this
respect , the testimony shows that the Law School is
located on the main campus, and, although the White-
Grant building is now almost exclusively devoted to
the Law School , some of its facilities , particularly the
auditorium and the Congdon room , are currently
used for general university purposes , and in the past
several years other colleges have been assigned space
in the facility . In addition , the testimony shows that
the Law School 's professorial ranks are identical with
the faculty ranks of the University and include profes-
sors , associate professors , and assistant professors;
the Law School salaries are higher than the equivalent
ranks in other colleges but are by no means the high-
est; their scheduled teaching hours on the average are
lower than the scheduled teaching hours for the gener-
al faculty but again are neither the highest nor the
lowest when compared to those in other colleges or
schools ; tenure , promotion , grievance procedures,
and basic fringe benefits are universitywide with the
law faculty enjoying the same rights as other faculty
members ; vacations and exam schedules follow the
general university schedule ; there are joint degree
programs between the Law School and other colleges;
and some of the law faculty teaches courses in other
SYRACUSE UNIVERSITY
colleges during the regular and summer school ses-
sions.
In Fordham University,' we held on the basis of the
record developed therein that a bargaining unit limit-
ed to the law school faculty was appropriate . In reach-
ing our conclusion therein , we noted that the law
school had to comply with relatively stringent accred-
itation and professional standards established by the
American Bar Association , the Association of Ameri-
can Law Schools , and the New York State judicial
system . We also noted there that the law faculty, like
the law faculty in the instant case , while participating
in some nonlaw functions, nevertheless performed the
vast majority of their professional and administrative
responsibilities within the confines of the law school.
Here , as in Fordham, the teaching functions of the law
faculty are directed primarily toward the specialized
field of law and there is no showing that the law
faculty progresses into the administrative hierarchy of
the University , nor is there any showing that the stu-
dent body in the main has progressed from the
University 's undergraduate schools, In addition, the
record shows that while the school is located on the
campus , its day-to-day operations are virtually auto-
nomus , subject only to the University 's basic adminis-
trative rules and regulations.
Based on our traditional criteria , we would con-
clude that a separate law school unit is appropriate,
but that an overall unit would also be appropriate 4
We are not, however, entirely satisfied that the pur-
poses of the Act and the interests of the academic
community will best be served by paying lip service to
the distinctive nature of academic employment while
submerging its differences in a sea of precedent, se-
lected piecemeal to give a result plausible in the par-
ticular yet somehow disquieting as a whole.
Heretofore we have recognized that faculty, what-
ever the differences , are nonetheless employees and
that, as in the industrial model , they have a legitimate
interest under the Act in their terms and conditions of
employment . Yet, as we recognized in Adelphi,5 the
industrial model cannot be imposed blindly on the
academic world as though there were a one-to-one
relationship . The basic interests recognized by the Act
remain the same , but their interrelationship , the em-
ployer-employee relationship, and even the employee-
employee relationship , does not squarely fit the indus-
trial model . At its simplest , this may be attributable,
at least in part , to historic differences between "town
and gown"-the special allegiances the latter entails
have no exact industrial counterpart . Rarely , if ever,
a 193 NLRB 134.
Catholic University, 201 NLRB No. 145; Fordham University, 193 NLRB
134
5 Adelphi University, 195 NLRB 639.
643
does industry present a situation where employee in-
terests outside the economic sphere assume major im-
portance.
These allegiances are a new factor not typically
found in the industrial prototype and suggest a natu-
ral grouping not based on traditional employment
interest . Thus faculty may have an interest in, even a
paramount allegiance to, a particular discipline. This
allegiance may transcend shared interests in the eco-
nomic benefits and the conditions of employment. To
be sure , even this is not totally foreign to industry and
some rough analogy can be made to the historical
phenomenon of craft organization . There, however,
the divergence of interest is less marked than that
occasioned by the kind of dedication to a particular
discipline we find here.
The impact of this dedication and its force in the
economic sphere , indeed the transcendent impor-
tance that may attach to this intellectual allegiance, is
amply demonstrated by the economic benefits which
faculty frequently forego to pursue intellectual goals
and reap noneconomic rewards. That, of course, is no
excuse to justify denying them what economic bene-
fits may be available to them through collective bar-
gaining . It is , however, more than sufficient to require
special procedures designed to protect that allegiance.
For that reason we are forced to conclude that reli-
ance on industrial models alone is not appropriate
and cannot serve all the legitimate interests of em-
ployees in what , until recently, was terra incognita for
the Act and for this Board . Because of those special
interests , which have uncommon importance in this
context, we believe we must be especially watchful in
guarding the rights of minority groups whose intellec-
tual pursuits and interests differ in kind from the bulk
of the faculty. Granting a voice merely in determining
whether such a group shall be swallowed up by the
collective body or shall have separate representation
will not answer . Rather it requires yet another choice,
that of standing alone without representation regard-
less of the choice of the university body as a whole.
We conclude that the law faculty is such a group.
Relatively small in number, oriented more closely to
their chosen field than to the academic or university
world , with intellectual interests more nearly aligned
with those of their brethren in practice than with
their academic colleagues of the faculty, it is apparent
that their special interests may suffer if not recog-
nized . The same is undoubtedly true of other disci-
plines , most particularly those requiring work at the
graduate level to prepare for specialized areas of en-
deavor-as opposed to purely scholarly or intellectual
pursuits . Such disciplines, more practical than intel-
lectual , identifiable-we anticipate-by the relation-
ship between their academic and practicing
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
colleagues, are, at once, part of the academic world
and foreign to it and to each other.
In view of the foregoing, including our conclusion
that either separate university and law school units or
an overall unit would be appropriate and that the
desires of the law faculty are critical on this issue, we
shall not make a final unit determination at this time,
but shall direct that elections be conducted in the
following voting groups at the Employer's campus:
(a) All full-time faculty members of the Law
School employed at the Employer's Syracuse,
New York, law school excluding all other full-
time faculty members employed by the Employer
and excluding all officers of administration,
guards, watchmen and supervisors as defined in
the Act.
(b) All full-time faculty members employed by
the Employer at its Syracuse, New York, campus,
but excluding the faculty members in voting
group (a) and all officers of administration,
guards, watchmen and department chairman and
supervisors as defined in the Act.
The employees in voting group (a) will be asked to
answer the following three questions on their ballots:
(1) Do you desire to be included with the remain-
der of the faculty in a universitywide unit for purposes
of collective bargaining?
(2) In the event the tally of the ballots as to ques-
tion (1) shows that a majority of the employees in
group (a) desire to be represented in a universitywide
unit do you wish to be represented for purposes of
collective bargaining by the AAUP?
(3) In the event the tally of the ballots as to ques-
tion (1) shows that a majority of the employees in
group (a) desire to remain in a separate unit do you
wish to be represented for purposes of collective bar-
gaining by the AAUP,6 the LFA, or neither?
If a majority of the group (a) employees vote "yes"
to question (1), the tally of the ballots as to question
(3) shall be disregarded and the tally of the ballots as
to question (2) shall be merged with the ballots of the
remainder of the university faculty, which in the cir-
cumstances, we find to be an appropriate unit, with all
ballots to be accorded their face value whether for
representation by the AAUP or for no representative.
If a majority of the group (a) employees vote "no" to
question (1), the tally of the ballots as to question (2)
shall be disregarded and the ballots as to question (3)
shall be tallied and the Regional Director shall issue
the appropriate certification.'
Our dissenting colleagues would prefer that we uti-
lize, instead, the traditional Globe election ballot and
procedures. We think the choices we are providing are
more suitable here. As our colleagues point out, the
procedure we adopted parallels those which we regu-
larly follow as to professional employees, pursuant to
the statutory command of Section 9(b)(1). We believe
that to be most appropriate here, since the profession
of the law is a profession quite separate and distinct
from that of teaching.
As we have pointed out above, it is the alignment
of the law faculty with the distinctive traditions and
interests of the legal profession that has influenced us
strongly to give recognition to the law faculty's prefer-
ences as to whether they wish to remain separate, as
lawyers, or to be conjoined with their fellows in their
other profession-teaching.
Congress commanded us to give professionals full
freedom to remain separate from nonprofessionals. It
seems to us consistent with that congressional purpose
for us similarly to provide like freedom for members
of two professions to remain separate, if they wish,
from their colleagues in their second profession.
Associate Dean Hicks
The LFA would include in its unit Associate Dean
Hicks on the ground that he is a faculty member, that
his administrative functions are on behalf of the facul-
ty, and that he is neither a supervisor nor member of
management. The Employer contends that he should
be excluded because of his supervisory and manage-
ment functions. In support of its contention, the Em-
ployer asserts that Dean Hicks prepares and submits
class scheduling to the faculty curriculum committee
making a final decision as to any conflicts remaining
unresolved by the committee, and that Dean Hicks
maintains a very close affiliation with the dean of the
Law School. The record shows that Dean Hicks is
responsible for establishing curriculum and schedul-
ing including courses and schedules for the Law
School's summer semesters. In addition, he consults
and advises with the dean on matters relating to per-
sonal or confidential information regarding faculty
members, particularly in matters that would not nor-
mally be submitted to faculty committees but would
pertain to or affect the status of faculty members. He
also substitutes for the dean during periods of his
absence, meets with university officials as a represen-
tative of the dean's office, and receives in the normal
6 If the AAUP does not desire to represent the law faculty in a separate ' In the event the group (a) employees vote "No" as to question ( 1), and
unit in the event those employees vote for such representation , the AAUP the AAUP remains on the ballot in question (3), and none of the choices in
shall notify the Regional Director to that effect within 10 days of the date question (3) receive a majority of the votes cast, the Regional Director shall
of this Decision and Direction of Elections , and its name will be removed hold a runoff election as soon thereafter as practical with the two choices in
from question (3) on the ballot question (3) receiving the highest number of votes each being on the ballot.
SYRACUSE UNIVERSITY 645
course of duties policy and administrative informa-
tion which he himself describes as of a "confidential
nature, in the sense, I was not at liberty to discuss it
with anyone but the Dean." In these circumstances,
we agree with the Employer that Associate Dean
Hicks is a supervisor within the meaning of Section
2(11) of the Act and shall exclude him from the unit.
[Direction of Elections 8 and Excelsior footnote
omitted from publication.]
MEMBERS FANNING AND PENELLO, dissenting part:
We agree with our colleagues in all respects except
their finding that the interests of the law faculty di-
verge so from the remainder of the faculty that they
require we fashion an extraordinary election proce-
dure permitting separate nonrepresentation. Were
their interests so distinct, the proper solution would be
to find that only separate units are appropriate. That,
of course, is not the case . Our colleagues freely admit
that there is an overall community of interests and
that the factor they rely on to justify their unique
treatment of the law faculty is not peculiar to that
faculty. The real distinction is not the allegiance of the
law faculty to "a special area of endeavor"; other
faculty are similarly pledged. The real distinction is
the identity of that profession.
We question the wisdom and desirability of bestow-
ing extraordinary status on the law faculty. The Board
enjoys great discretion in determining what unit or
units are appropriate for the purposes of collective
bargaining and will best effectuate the purposes of the
Act. However, the prime consideration in unit deter-
mination is identification of the unit which will permit
employees to enjoy to the fullest the benefits of collec-
tive bargaining. The Act was premised on the belief
that stability in labor relations required some equali-
zation of the bargaining power of employee and em-
ployer and that a guaranty of the right to organize was
essential.
Although an individual employee does not possess
effective economic strength, and consequently bar-
gaining power, groups of employees, united by shared
interests , do. Thus, a plantwide unit may be presumed
appropriate, not only because the employees share
common, if not necessarily identical, interests, but
also because such larger units tend to maximize the
economic strength of the employees as a count-
erweight to the superior economic strength of the em-
ployer. Concomitant with this we have recognized
that smaller groups of employees with identifiable
separate interests may also form appropriate units
B Although not specifically requested by the parties , inasmuch as our Di-
rection of Elections will issue during the summer session , we have left the
setting of the date for the election to the discretion of the Regional Director
to be worked out with the parties involved.
and we routinely direct elections in such units. Absent
a showing that such groups lack sufficient community
of interest to form an appropriate unit with their fel-
low employees, we have not excluded them from the
overall unit in the face of a request for their inclusion
when no labor organization seeks to represent them
separately. If separate representation is sought for
them and either unit is appropriate for collective bar-
gaining, we have applied our "Globe" doctrine and
permitted them to select such separate representa-
tion.9
The "Globe doctrine" was an early development in
the Board's history following recognition that in some
circumstances the identity of the appropriate unit or
units was fairly debatable.10 It was designed to permit
minority groups of employees with identifiable sepa-
rate interests, who nonetheless shared a sufficient
community of interest to be included in an overall
unit, to decide for themselves whether they should be
represented separately." However, the key word is
representation, which, after all, is the predicate of the
Act. Heretofore we have not directed such an election
for the purpose of carving out a segment of an appro-
priate unit for the purposes of nonrepresentation. In
fact, the "no union" choice has long been absent from
the craft severance ballot,12 nor do we permit decerti-
fication of less than an entire unit.13 Where the issue
is the creation or severance of a craft unit, the special
interests of the affected employees are balanced
against the desirability of representation in an overall
unit, but there is no such counterweight where the
choice lies between representation in an overall unit
or separate nonrepresentation.
The only analogous procedure is that under Section
9(b)(1) requiring that professionals be given the op-
portunity to reject inclusion in a unit which also in-
9 See Mallinckrodt Chemical Works, 162 NLRB 387, for a discussion of the
competing interests involved in determining whether a craft may appropri-
ately be represented separately Mr Fanning's dissent there was concerned
with the standards to be applied in determining the appropriateness of sepa-
rate craft representation
1° Globe Machine and Stamping Co, 3 NLRB 294
11 The mechanics are relatively simple In a typical "Globe" election em-
ployees vote in two groups, with the minority group of skilled employees
having the option of voting for representation in a separate unit. If separate
representation is not favored by the majority in the skilled unit, then their
votes are pooled with those of the other voting group to determine the
question of representation in the overall unit . Thus, a "Globe" election here
would separate the faculty into 2 voting groups One composed of the law
faculty, the other consisting of the remainder of the faculty. The law faculty
would vote whether it desired representation by the Law Faculty Association,
which seeks the separate unit, by the AAUP, or by neither. If a majority of
the law faculty did not select separate representation by the Law Faculty
Association , then their votes would be pooled with those of the other faculty
members to determine representation in the resulting overall unit In that
circumstance , the votes of the law faculty would be accorded their normal
weight, whether for or against representation , save those votes for the Law
Faculty Association, which would not be counted for or against representa-
tion in the overall unit
12 American Tobacco Co, 115 NLRB 218
11 Campbell Soup Co, I I I NLRB 234
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cludes nonprofessionals . That, however , is no warrant
for the action taken here , since both proposed units
are limited to professionals.
Other considerations also intrude . Faculty , for the
purposes of the Act, are not unique . They are employ-
ees. We have so held; we reaffirm it here . Will our
colleagues now direct such elections in industry?
Based on their rationale there appears to be no good
reason why they should not. Colleges and universities
are not unique in their employment of minority
groups which might be said to have special interests.
If the law faculty is more professional than the facul-
ties of the schools of engineering or economics, are a
corporation 's lawyers then not more professional than
its engineers or accountants ? Of course it cannot stop
there . If anything , craftsmen are more clearly distinct
from the unskilled bulk of an employer's work force
than are the law faculty here from their fellow faculty
members . This procedure, of course , would be equally
applicable where no labor organization seeks separate
representation, and, logically , could be invoked by
any interested party . Logic would similarly require
that the "no" vote be returned to the craft severance
ballot and that decertification elections be permitted
in any identifiable segment of an existing unit.
Nor do we believe that our colleagues ' reliance on
Congress 's directive in Section 9(b)(1) to rebut our
criticism of their decision is persuasive . We are per-
mitted no discretion in the application of that sec-
tion 14 and , thus, are unable to balance any conflicting
considerations . It is evident that Congress intended
the fact of professional status, and not the identity of
the profession , to be controlling . Congress must be
presumed to have known that employers frequently
employ more than one profession and that , unlike
here, it would be unusual for the members of such
different professions to have a second profession in
common . The absence of even one profession in com-
mon, seemingly , would present a much stronger case
for the application of this extraordinary procedure
than do the facts here . Congress did not do so. Fur-
ther , the majority's reliance on the fact that the law
faculty are members of a "second profession" ignores
a more basic fact-they are employed as teachers, not
lawyers . It is their terms and conditions of employ-
ment as teachers , not as lawyers , with which the par-
ties will deal in any collective-bargaining nego-
tiations.
We are not averse to permitting the law faculty an
opportunity to select separate representation, but we
find no warrant , and less reason , for carving out a unit
for the purposes of nonrepresentation. It makes no
sense and is contrary to the basic purpose and the
overriding spirit of the Act . Accordingly, we would
direct a normal "Globe" election.
14 Leedom v Kyne, 358 U S 184 (1954)