LeMoyne-Owen College

LEMOYNE-OWEN COLLEGE 345 NLRB No. 93 1123 LeMoyne-Owen College and Faculty Organization, Lemoyne-Owen College, Charging Party. Case 26–CA–20953 September 30, 2005 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER This case is on remand from the United States Court of Appeals for the District of Columbia Circuit. LeMoyne- Owen College v. NLRB, 357 F.3d 55 (D.C. Cir. 2004). The issue for this supplemental decision is whether the faculty at LeMoyne-Owen College (the College) are managerial employees under NLRB v. Yeshiva Univer- sity, 444 U.S. 672 (1980), and subsequent Board prece- dent applying Yeshiva. After carefully considering the record and the position statements filed by the parties, we find that the faculty are managerial employees. We therefore dismiss the complaint and the petition, and we vacate the Union’s certification. I. PROCEDURAL HISTORY On August 6, 2002, the Regional Director for Region 25 issued a Decision and Direction of Election in Case 25–RC–10120, in which he found that the petitioned-for unit of 50–60 full-time faculty members at the College are not managerial employees and constitute an appropri- ate unit for bargaining. The Regional Director found that the dean of the faculty, Barbara Frankle, and the assistant dean of academic affairs (Assistant Dean), Cary Booker, are managerial employees and excluded them from the unit.1 Thereafter, the College filed a timely request for re- view, contending that the faculty are managerial employ- ees under Yeshiva, supra, and related Board precedent.2 The Union filed an opposition. On September 4, 2002, the Board denied the College’s request for review.3 Fol- lowing the election held on September 4, 2002, the Un- ion was certified on September 17, 2002, as the exclusive collective-bargaining representative. On January 17, 2003, the Board issued a Decision and Order finding that the College violated Section 8(a)(1) and (5) of the Act by failing and refusing to recognize the employees’ certified representative and ordered the College to recognize and bargain with the Union.4 1 The Regional Director also found that the Union is a labor organi- zation within the meaning of Sec. 2(5) of the Act. 2 The College also sought review of the Regional Director’s finding that the Union is a labor organization. 3 Chairman Battista and Member Schaumber did not participate in the underlying representation proceeding. 4 338 NLRB No. 92 (2003) (not reported in Board volumes). On February 10, 2004, the United States Court of Ap- peals for the District of Columbia Circuit granted the College’s petition for review, denied the Board’s cross- application for enforcement, and remanded this case to the Board for further proceedings. LeMoyne-Owen Col- lege v. NLRB, supra. In the remand, the court found that the Board failed to address “how its disposition is consis- tent with its contrary holdings in the post-Yeshiva cases that appear to have presented similar facts.” 357 F.3d at 60. The court emphasized that the Regional Director “did not discuss or even mention a single one of the precedents on which the College relied.” Id. at 60.5 The court also singled out the testimony of the College presi- dent that he had never, in 6 years as president, failed to approve a faculty recommendation on degree require- ments or other matters related to the courses taught at the College. In addition, the court emphasized testimony that the president had forwarded all faculty assembly recommendations on curricular changes to the board of trustees, without exception, and that the trustees had never rejected any of these recommendations. Id. at 58. The court concluded by stating that the “NLRB may have an adequate explanation for the result. . . . We can- not, however, assume that such an explanation exists unless we see it.” Id. at 61. On May 4, 2004, the Board advised the parties that it had accepted the remand from the D.C. Circuit and in- vited them to file statements of position with regard to the issues raised by the remand. The General Counsel, the College, and the Union filed position statements. II. FACTS A. Overview of the College LeMoyne-Owen College is a relatively small, private 4-year liberal arts college located in Memphis, Tennes- see. The College traces its roots to 1862 and is a “his- torically black college.” The College is overseen by a board of trustees. The chief executive officer is the president. George Johnson Jr. has been president of the College since 1996. Barbara Frankle, a 31-year faculty member at the College, has been the dean of the faculty since 2000. Cary Booker has been the assistant dean of academic affairs (assistant dean) since 1999. The College offers three degrees: Bachelors of Arts, Science, and Business Administration. Enrollment aver- ages about 1000 students. Nearly one-third of the stu- dent body is enrolled in or has taken courses in the school’s division of education, one of five divisions at 5 I.e., American International College, 282 NLRB 189 (1986); Liv- ingstone College, 286 NLRB 1308 (1987); Lewis & Clark College, 300 NLRB 155 (1990); and Elmira College, 309 NLRB 842 (1992). Id. at 57–58, 60. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1124 the College. The other divisions are: arts and humani- ties; business and economic development; natural sci- ence, math, and computer science; and social and behav- ioral science. Each division is further subdivided into academic areas. Each division is chaired by a faculty member, and each academic area is headed by a faculty member serving as an area coordinator. The division chairpersons and the area coordinators are included in the petitioned-for unit. The College is accredited by the Southern Association of Colleges and Schools (SACS). B. Faculty Governance The faculty handbook (handbook) sets forth the poli- cies and procedures that govern the faculty. The faculty are required to follow handbook policies. The handbook states that faculty governance occurs through three enti- ties: the faculty assembly, standing faculty committees, and an academic council. The faculty assembly is a meeting of the entire full- time faculty which all are expected to attend. Dean Frankle presides over the meeting and determines its agenda. In addition to the full-time faculty, Dean Fran- kle and Assistant Dean Booker are permitted to vote in the assembly. From five to nine standing faculty com- mittees operate at the College. Notable committees dis- cussed in the record are the curriculum committee and the academic standards, honors, and selection committee (academic standards committee). For those current standing committees for which there is evidence of com- position, virtually all members are faculty.6 The presi- dent and the dean of the faculty are ex officio members of the standing committees but have no vote. Dean Frankle and Professor Cheryl Golden work together to assign faculty to the standing faculty committees, al- though Frankle has the ultimate authority over the as- signments. The academic council is primarily comprised of faculty members, Frankle and Booker. A number of special or ad hoc-type committees have operated, or continue to operate, at the College. The most significant ad hoc committee, which is discussed further below, is the special committee to review the core curriculum.7 In addition, at the time of the hearing, the 6 The Regional Director described the composition of the curriculum committee according to the faculty handbook. The College also intro- duced a list describing the membership of the current curriculum com- mittee and other standing faculty committees. Under either description, the curriculum committee is overwhelmingly comprised of faculty members included in the unit. The current academic standards commit- tee also is comprised exclusively of faculty, except for Assistant Dean Booker. 7 Other ad hoc committees include: the scholarship committee; committee on donors; teacher education committee; enrollment task force; calendar committee; catalogue committee; judiciary council; faculty handbook revision committee; faculty, secretarial, and presiden- school was in the midst of a “self-study” to prepare for an accreditation review by SACS. Nearly two dozen committees were involved in this process. The handbook states that “the faculty has the primary responsibility of recommending academic policy,” which is “carried out through the Faculty Assembly . . . and Academic Council.” It states further that the faculty as- sembly “conducts the academic business of the Faculty” and “deliberates and makes recommendations on areas of faculty responsibility.”8 The handbook delineates some areas of faculty “responsibility,” including admission standards, curriculum, education requirements, gradua- tion requirements, standards for grading, candidates for graduation, and academic retention standards. The hand- book also assigns academic functions to certain faculty standing committees, such as the curriculum committee and academic standards committee. C. Curriculum and Related Decisions According to the handbook, the curriculum committee possesses broad authority to “consider questions of the appropriateness of the College curriculum.” The specific functions of the committee cited in the handbook in- clude: approval of changes in education requirements; adoption of new majors/minors; creation or deletion of courses; approval of changes in course credit hours; ap- proval of major reorganization of a curriculum area; ap- proval of educational programs or innovations; and ap- proval of any cross-divisional interdisciplinary or cross- area program. Consistent with the handbook, the record demonstrates that proposals for new courses and programs of study are considered by the curriculum committee. Depending on the nature of the change, the committee can either ap- prove the change or recommend the change to the faculty assembly. For example, if a faculty member recom- mends adding a new course or dropping a course, the curriculum committee can and has approved these deter- minations without further approval, except that Dean Frankle will ensure that the action does not have adverse financial implications. But if a faculty proposal involves a substantial change in the direction of the school, such as a change in the core curriculum,9 or a change in a ma- tial search committees; task force on faculty evaluations; tenure review committee; and benefits committee. Some ad hoc committees are fac- ulty dominated, some are administration dominated, and the composi- tion of others is unclear. For most of these committees, the method of selecting members is not clear from the record. 8 Dean Frankle presides at the assembly meetings, and she deter- mines its agenda, which includes reports of standing faculty commit- tees. 9 Shortly after President Johnson arrived at the College in 1996, he proposed a committee of faculty, staff, students, trustees, several alumni, and a faculty member from a local college to examine the Col- LEMOYNE-OWEN COLLEGE 1125 jor or degree requirements, the change must also be ap- proved by the faculty assembly. If the faculty assembly approves the proposal, the proposal then goes to Dean Frankle, who already has been consulted because of pos- sible financial implications involved with substantial changes. President Johnson and then ultimately the board of trustees also must approve these major changes. President Johnson testified that he never failed to ap- prove faculty recommendations regarding degree re- quirements or any matters regarding courses that are taught. More specifically, he testified that when a pro- posal to change a program is made, the curriculum com- mittee usually would make a recommendation to the fac- ulty assembly, which in turn would make a recommenda- tion to Dean Frankle, to him, and ultimately, to the board of trustees. Johnson testified he never failed to send any of these recommendations to the board of trustees. Fur- ther, he asserted that none of the curriculum recommen- dations voted on and approved by the faculty assembly had ever been rejected by the board of trustees. In support of Johnson’s testimony, the record contains specific examples of faculty recommendations that were followed by the College’s administration. In 1999, the former provost of the College proposed “collapsing” the number of academic divisions from five to three. The recommendation was taken to the board of trustees to implement the change. However, the faculty objected to the restructuring plan without faculty input. The plan was suspended, and the faculty undertook a review. The faculty later recommended that the divisions remain the same, and the number of divisions has remained the same. Johnson testified that the administration “acceded to the recommendation of the faculty.” Further, the full faculty approved the elimination of a graduate program in the education division, changes in the accelerated degree program in the business division, a new childhood education major in May 2000, and an expanded curriculum for the W.E.B. Dubois Honors Pro- lege’s core curriculum offerings and to make some proposals. The precise composition of the committee is not in the record. However, Dr. Cheryl Golden, the president of the Union, may have been the chair of this committee. The committee was considered a “special” commit- tee because it included other “constituencies” from the College in addi- tion to the faculty. Although the curriculum committee was not directly involved in what was also called the “core project,” the faculty were aware of the special committee’s deliberations through faculty repre- sentation on the committee. Moreover, the curriculum committee did not cease considering curriculum matters during the functioning of this committee. The only evidence of any change emanating from the ad hoc committee is the ad hoc committee’s recommendation to increase the number of credit hours that students must devote to core curriculum courses. There is no evidence that this recommendation was imple- mented without first being considered and approved by the faculty assembly, which must approve core curriculum changes. gram in spring 2000. The administration implemented these changes. D. Course Content, Teaching Methods, and Grading The faculty members have virtually complete discre- tion over the content of the courses they teach. In addi- tion, the administration does not direct faculty members how to teach, other than references in the handbook en- couraging teachers to use their “most effective teaching method” and to apprise the chairperson of the division and the dean when “any departure from standard prac- tices is planned.” Grading of students in the classroom is within the sole discretion of the faculty, including the discretion to reduce grades for unexcused absences and late work. Although the handbook sets forth some crite- ria concerning an attendance policy affecting grades, the policy is not strictly enforced but left to the faculty’s discretion. The handbook also contains a specific grad- ing system with a specific scale (i.e., A-100-90, B-89-80, etc.), but there is no evidence as to how the grading scale was established. The handbook requires that an evalua- tion of a student’s “English usage” comprise at least 10 percent of the student’s grade. The faculty resolves stu- dent objections to grades. An objection is first consid- ered by the individual faculty member, then by the divi- sion chair, and, if necessary, by a faculty committee. Dr. Ahmad, a 38-year faculty member and former division chair, testified that he had never heard of an instructor’s grade being altered by the administration. E. Honors, Academic Retention, Graduates The academic standards committee, a standing faculty committee, oversees the awarding of academic honors. Dr. Golden is the current chair of this committee.10 Indi- vidual faculty members recommend to the committee the names of students for a national honors program. The committee ensures that candidates for honors meet the appropriate criteria and then recommends their names to the faculty assembly. The faculty assembly votes on the recommendations, and no further approval of the honors is necessary. In addition, a three-member subcommittee of the aca- demic standards committee, composed of Professor Golden, a fellow faculty member, and Assistant Dean Booker, developed procedures for the selection of stu- dents for certain honors on campus. The document me- morializing these procedures lists seven honors at the school and describes when and where nominations are to be submitted. Most of the honors programs require sub- 10 Although the minutes of some committee meetings in prior aca- demic years show the attendance and participation of nonfaculty, the current academic standards committee is comprised entirely of faculty, except for Assistant Dean Booker. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1126 mission of nominations to the academic standards com- mittee, which in turn submits the nominations to the fac- ulty assembly. The academic standards committee and the faculty assembly approved these procedures. The academic standards committee also addresses ap- peals of academic dismissals or suspensions. The com- mittee reviews the student’s written appeal, meets with the student, and recommends a course of action. All de- cisions of the committee are subject to ratification by the faculty assembly. After the committee makes a decision, a student may appeal to the dean. If the student does not appeal to the dean, the faculty assembly ratifies the committee’s decision, and there is no further review. The academic standards committee also reviews a list of graduating seniors, and the full faculty approves that list. The board of trustees then ratifies the list. There is no evidence that the faculty’s approval of any list has ever been changed by the board of trustees. F. Syllabus and Textbooks Although the handbook requires distribution of a syl- labus that contains categories of information about a course, each individual faculty member prepares the syl- labus. The syllabus is filed with the division chair, a fellow faculty member in the bargaining unit. President Johnson testified he was not aware of any syllabus revi- sions being required by the administration. The handbook also states that every faculty member has the privilege of selecting textbooks to be used in courses “with the approval of the Division Chair and the [Dean of the Faculty].” There is no evidence of a faculty member’s textbook selection being reviewed by the ad- ministration. G. Admission Standards Admission standards are created by the faculty and recommended to the board of trustees. For example, faculty from the “teacher education committee,” which is comprised of faculty members from the division of edu- cation, determine the standards for admission to the teacher education program. Waivers from the College’s requirements (but not the state’s teacher requirements) can and have been granted by the division’s faculty and the division chair.11 H. Accreditation At the time of the hearing, the faculty was undertaking a self-study of the College in preparation for an accredi- tation review by the SACS. An accreditation review occurs every 10 years. Nearly two dozen committees and subcommittees were involved in this process. The 11 Although the waivers are also sent to Dean Frankle, the record does not indicate what Frankle does with the waivers, if anything. committees included faculty, staff, students, trustees, and alumni. President Johnson characterized the study as “largely faculty-driven,” emphasizing that the director of the self-study was a faculty member, which the SACS guidelines require. The president chose the director from a list of five names recommended by the faculty. Most of the self-study committees were comprised of a major- ity of faculty members, including the “Organization, Administration, Corporate Entities, and Finance and Physical Resources Committees,” which are responsible for reviewing the management of the school. I. Scholarships Recommendations for scholarships are considered by a scholarship committee, an ad hoc committee that is com- prised of faculty and nonfaculty. The precise composi- tion of the committee is not indicated in the record. No further approval of the committee’s recommendation is necessary. J. Student Discipline In addition to academic discipline, a mixed panel of faculty, administrators, and students from a larger “judi- ciary council” presides over hearings regarding infrac- tions of the student handbook. The precise composition of the panel is unclear. Sanctions for violations may include probation, asking the student to leave for the re- mainder of the semester, or expulsion. The student gen- erally is told of the decision the same day as the hearing and can appeal to the dean of students. If the dean up- holds the council, the student may appeal to the presi- dent. An appeal board may also consider the issue, al- though the composition of that board is not clear from the record. K. Other Academic Areas The faculty serve on the library and research standing committee, which acts as a liaison between the library staff and academic community at the College. The committee is comprised entirely of faculty members. The committee promotes the proper use of the library materials, suggests programs for the library, informs fac- ulty about funds available for the library, determines student opinions about the library, and invites scholars and other speakers. Further, a faculty committee is revis- ing the handbook. The administration has discussed the revisions with the committee. The trustees must ratify any revisions before they are final. L. Nonacademic Decisions Tenure: Within the last few years, a committee com- prised exclusively of faculty members worked with President Johnson, Dean Frankle, and the board of trus- tees, to develop formal procedures governing tenure de- LEMOYNE-OWEN COLLEGE 1127 terminations. The faculty assembly and the board of trustees approved new procedures governing faculty who have been employed 5 years or more in 2001.12 In the 2001–2002 academic year, the faculty committee applied these criteria and recommended to Dean Frankle and President Johnson that seven faculty members be granted tenure. Neither Frankle nor Johnson made any changes to the recommendations, and the board of trustees granted tenure to all seven candidates. Evaluations: In 1998 or 1999, a faculty committee se- lected by the former provost drafted a revision of the handbook section governing evaluation of faculty mem- bers. The faculty adopted the draft revisions and rec- ommended them to the board of trustees. The board ap- proved the revisions, and the faculty implemented the procedures in November 1999. Hiring: Faculty committees are established to fill fac- ulty positions and secretarial positions. President John- son testified generally that he has never rejected the rec- ommendation of a search committee for a faculty mem- ber.13 In 2000, a committee of the division chairs was formed to select two secretaries for division work. The committee interviewed four candidates and found one satisfactory candidate. That candidate eventually was hired. The faculty also has participated in the interview of administrators. At the time of the hearing, two fac- ulty members sat on the search committee for a new president. Discipline, Termination, and Layoffs: The faculty do not have any significant role in discipline or termination decisions, although the handbook provides for an appeal to a committee of faculty, with the results to be transmit- ted to the president for final action. In the spring of 2000, nonfaculty layoffs occurred, but the faculty had no input into these decisions. Financial Matters: In 2002, two faculty members par- ticipated on a seven-person benefits committee, chaired by the director of human resources. The committee cre- ated an employee survey asking about improvements employees would like regarding health, life, and disabil- ity insurance, retirement, vacation, and sick leave. The committee analyzed the survey results and recommended that the current provider of health, dental, medical, and vision insurance be changed. After the benefits commit- tee decided to change carriers, the committee presented 12 The faculty is currently working on procedures governing faculty who have been employed for less than 5 years. 13 The record contains only one example of a faculty search commit- tee. The committee recommended a faculty candidate be hired as a visiting professor. The individual was hired but as a regular tenure track faculty member. the recommendation to the president’s cabinet,14 which approved the recommendation, and then to the chief fi- nancial officer, who signed off on the proposal. The board of trustees’ human resource committee discussed the proposal, and ultimately, the officers of the college approved the decision to change carriers. Tuition is determined by the board of trustees based on a recommendation of the administration. III. THE YESHIVA DECISION In Yeshiva, the Supreme Court found that faculty members at Yeshiva University were managerial em- ployees who were excluded from coverage under the Act. The Court defined managerial employees as those who “formulate and effectuate management policies by ex- pressing and making operative the decisions of their em- ployer.” 444 U.S. 672, 682 (1980) (citations omitted). The Court held that managerial employees “must exer- cise discretion within, or even independently of, estab- lished employer policy and must be aligned with man- agement,” and that they must represent “management interests by taking or recommending discretionary ac- tions that effectively control or implement employer pol- icy.” Id. at 683 (citations omitted). The Court emphasized: The controlling consideration in this case is that the faculty of Yeshiva University exercise authority which in any other context unquestionably would be manage- rial. Their authority in academic matters is absolute. They decide what courses will be offered, when they will be scheduled, and to whom they will be taught. They debate and determine teaching methods, grading policies, and matriculation standards. They effectively decide which students will be admitted, retained, and graduated. On occasion their views have determined the size of the student body, the tuition to be charged, and the location of a school. When one considers the function of a university, it is difficult to imagine deci- sions more managerial than these. [444 U.S. at 686.] The Court also commented on the occasional vetoes of faculty action, noting that the “administrative concerns with scarce resources and University-wide balance have led to occasional vetoes of faculty action. But such in- frequent reversals in no way detract from the institution’s primary concern with the academic responsibilities en- trusted to the faculty.” 444 U.S. at 688 fn. 27. Although the faculty played a “predominant role in faculty hiring, tenure, sabbaticals, termination, and pro- motion,” the Court noted that these decisions have both managerial and supervisory characteristics. Because the 14 The cabinet is largely comprised of nonfaculty administrators. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1128 Court did not reach the question of supervisory status, it did not rely primarily on these features of faculty author- ity but on their authority over academic affairs. Id. at 686 fn. 23. In its rationale, the Court emphasized: The problem of divided loyalty is particularly acute for a university like Yeshiva, which depends on the profes- sional judgment of its faculty to formulate and apply crucial polices constrained only by necessarily general institutional goals. The university requires faculty par- ticipation in governance because professional expertise is indispensable to the formulation and implementation of academic policy. [444 U.S. at 689 (footnote omit- ted).] The Court explained that its decision “is a starting point only” for the analysis of whether professionals are managerial, and “that other factors not present here may enter into the analysis in other contexts.” Id. at 690 fn. 31. The Court continued that “[i]t is plain, for example, that professors may not be excluded merely because they determine the content of their own courses, evaluate their own students, and supervise their own research.” Id. In subsequent Board decisions, the Board has empha- sized that the party seeking to exclude faculty as manage- rial has the burden of coming forward with evidence nec- essary to establish such an exclusion. See e.g., Monte- fiore Hospital & Medical Center, 261 NLRB 569, 572 fn. 17 (1982). The Board has also emphasized the im- portance of faculty control or effective control over aca- demic areas, as opposed to nonacademic areas. See Liv- ingstone College, 286 NLRB 1308, 1314 (1987). “Abso- lute” control need not be demonstrated. See Lewis & Clark College, 300 NLRB 155, 163 fn. 41 (1990). Fur- ther, the Board has rejected a mechanical application of Yeshiva, i.e., counting and comparing the number of ar- eas in which faculty have input with the number of such areas in Yeshiva. See University of Dubuque, 289 NLRB 349, 353 (1988). The Board emphasized in University of Dubuque, that such an approach fails to measure the “ex- tent of [the] . . . influence . . . that render[s] each aca- demic body unique.” Id. Board cases generally have examined the faculty’s role in decisionmaking “whether individually, by department consensus, through . . . committees, or in meetings of the whole[.]” Lewis & Clark College, 300 NLRB at 161; see American International College, 282 NLRB 189, 202 (1986). However, “[d]ecisions or recommendations made by committees only a minority of whose members consist of faculty representatives cannot be said to be faculty decisions or recommendations.” University of Great Falls, 325 NLRB 83, 95 (1997), affd. 331 NLRB 1663 (2000), reversed on other grounds 278 F.3d 1335 (D.C. Cir. 2002). Finally, the Board has also found that faculty can be managerial even though a college’s administration is responsible for financial and budgetary decisions, and the faculty does not participate in such decisions. See Lewis & Clark College, 300 NLRB at 162; American Interna- tional College, 282 NLRB at 192; Livingstone College, 286 NLRB at 1314. Further, the mere existence of an administrative hierarchy that reviews faculty decisions does not negate managerial status of the faculty. Lewis & Clark College, 300 NLRB at 163. IV. THE REGIONAL DIRECTOR’S DECISION Applying the Supreme Court’s decision in Yeshiva, supra, the Regional Director in the Decision and Direc- tion of Election found that the petitioned-for faculty are not managerial employees. The Regional Director found that the faculty do not possess absolute control over any facet of the school’s operations, and that they do not ef- fectively recommend changes to existing policy. The Regional Director cited several reasons for this conclusion. First, the Regional Director found that the faculty standing committees and the faculty assembly are not necessarily comprised only of faculty. Therefore, the Regional Director concluded that recommendations by these faculty committees are not solely the recommenda- tions of the faculty and cannot be “effective.” Second, the Regional Director emphasized that rec- ommendations made by committees on which faculty serve “are subject to multiple levels of review, and sub- ject to change by higher levels of authority.” Further, “[a]s recommendations ascend though the hierarchy of the review process, the potential for effective faculty influence undergoes a corresponding decline . . . [and] the more levels of authority a recommendation must pass . . . the less likely the recommendation will be ‘effective’ because there is a lessened likelihood it will arrive at the top of the hierarchy in substantially unchanged form.” Finally, as further evidence of the faculty’s lack of in- dependence, the Regional Director cited evidence that the president of the College had “circumvented” standing committees by appointing individuals to special commit- tees to study topics, such as the core curriculum require- ments, that normally would fall within the purview of faculty standing committees. The Regional Director also cited limitations on faculty authority contained in the faculty handbook. V. ANALYSIS Applying Yeshiva and its progeny to the facts in this case, we find that the faculty at LeMoyne-Owen College are managerial employees. Whether acting as individual LEMOYNE-OWEN COLLEGE 1129 faculty members, through committees, or in the faculty assembly,15 we find that the faculty make or effectively recommend decisions in the majority of critical areas identified in Yeshiva and subsequent decisions interpret- ing and applying it. See, e.g., Elmira College, 309 NLRB 842 (1992); Lewis & Clark College, 300 NLRB 155 (1990); American International College, 282 NLRB 189 (1986); University of Dubuque, 289 NLRB 349 (1988); and Livingstone College, 286 NLRB 1308 (1987). The faculty governing document, the faculty hand- book, states that the faculty have the primary responsibil- ity of “recommending academic policy.” It provides that this grant of authority shall be carried out through the faculty assembly, a body comprised entirely of faculty members, except for Dean Frankle and Assistant Dean Booker.16 The handbook also designates faculty standing committees to address various academic policies, and these committees are comprised almost entirely of fac- ulty. The record evidence of actual decisionmaking by the faculty supports the grant of authority contained in the handbook. With regard to the curriculum, the faculty effectively controls curriculum decisions, including courses of study, adding and dropping courses, degrees and degree requirements, majors and minors, academic programs, and academic divisions. The record demon- strates that these curriculum decisions are made by the curriculum committee, approved by the faculty assembly if they involve major changes, and sent to President Johnson and the board of trustees.17 The testimony of President Johnson indicates that the recommendations of the curriculum committee and the faculty assembly have been routinely approved by Johnson and the board of trustees. Evidence of specific recommendations for cur- riculum changes that the College’s administrators fol- lowed were: the faculty prevented the reorganization of the College’s academic divisions from five to three; the faculty approved the discontinuation of the College’s 15 We agree with the Regional Director that the evidence does not demonstrate that the academic council makes or effectuates any mana- gerial decisions. 16 Contrary to our dissenting colleague’s assertion, that Dean Frankle presides at these meetings does not undermine the faculty’s control. The assembly’s agenda is fairly well established, as are the kinds of decisions that Dean Frankle is compelled to cede to the assembly. 17 Although Dean Frankle is consulted regarding major curriculum changes because of the possible financial implications, the record does not demonstrate that any faculty recommendations have been altered or rejected by Frankle’s involvement. See American International Col- lege, 282 NLRB 189, 192 (1986); and Livingstone College, 286 NLRB 1308, 1312 (1987). graduate program18 and ratified the modifications of a degree program in the division of business; the faculty approved a childhood education major as part of the school curriculum;19 and the faculty approved an ex- panded curriculum for the W.E.B. Dubois Honors Pro- gram. In American International College, 282 NLRB 189, 192 and fn. 13 (1986), the Board held that the faculty’s role in curriculum decisions was effective as the board of trustees never had countermanded faculty decisions re- garding a program of courses such as a major or minor, and the dean “could not recall any occasion on which the . . . [board] . . . had failed to approve a new program submitted by any of the schools after having been ap- proved by the curriculum committee and the faculty.” Similarly, in Elmira College, 309 NLRB 842 (1992), the Board found that curricular affairs committee recom- mendations were effective where, once approved by fac- ulty, they were passed on to the college president for final approval, and during a 4-year period, all recom- mendations were approved. We find the above-cited record facts and this Board law support our conclusion that the College’s faculty effectively recommend curricu- lum decisions. Contrary to the Regional Director, we do not find that President Johnson’s creation of the ad hoc, special com- mittee to study the core curriculum circumvented or un- dermined the faculty’s effective authority over curricu- lum decisions. We emphasize the evidence of the fac- ulty’s representation on this ad hoc committee and, thus, their full participation in its deliberations. However, and in any event, the record demonstrates that any changes to the core curriculum must go to the faculty assembly for approval. Thus, there is no evidence that the ad hoc committee’s actions foreclosed the faculty’s participa- tion. Further, there is no evidence that any substantive changes were recommended by this ad hoc committee other than a change in the number of hours required for the core curriculum.20 As for other academic areas, it is undisputed that the individual faculty members have virtually complete dis- 18 The General Counsel’s focus on the genesis of the idea to discon- tinue the graduate program misses the point that the decision did not become operative until the faculty considered and approved it. 19 Thus, we disagree with the General Counsel that the record does not support a finding that the faculty effectively recommends changes to majors. Dean Frankle specifically testified about the faculty’s role in the development and approval of the early childhood education major. In addition, the curriculum committee meeting minutes demonstrate that committee’s involvement in many decisions impacting majors. 20 We therefore reject the dissent’s contention that effective decision making of the faculty is undercut by the creation of this committee. The dissent acknowledges that there is virtually no evidence regarding the results, if any, of the committee’s deliberations. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1130 cretion over the content of the courses they teach. In addition, the administration does not direct faculty mem- bers how to teach other than the handbook’s admonition to use their “most effective teaching method” and to ap- prise the chair of the division, a fellow faculty member, when any departure from undefined standard practices is planned. The faculty determine honors at the College. Nomina- tions are made by individual faculty members, approved by the academic standards committee, and then submit- ted to the faculty assembly for final approval. A sub- committee of the academic standards committee devel- oped selection procedures for honors, which the faculty assembly approved. The academic standards committee also makes determinations regarding academic reten- tion.21 Further, the academic standards committee re- views a list of graduating seniors, which the full faculty reviews and then submits to the board of trustees.22 Grading of students is within the discretion of the fac- ulty, including the discretion to reduce grades for unex- cused absences, and to resolve disputes over grading. The faculty also effectively control the syllabus and se- lection of textbooks. Although the handbook requires that certain categories of information be contained in a syllabus, it is the faculty members who prepare the sylla- bus and the information contained therein. Although the syllabus must be submitted to the division chair, a fellow faculty member, there is no evidence of syllabus revi- sions being required by the administration. Although textbooks must be approved by the division chair and the dean of the faculty, there is no evidence of any textbook being challenged by the administration.23 The division of education faculty effectively deter- mines that division’s admission standards and grants waivers from the College’s teaching requirements.24 The 21 Although these determinations are subject to an appeal by the stu- dent to Dean Frankle, the record does not demonstrate that Dean Frankel has reversed the determinations of the committee. 22 As with other actions by the academic standards committee and the full faculty, there is no evidence of the faculty’s approval being changed by the board of trustees. 23 The dissent argues that the faculty took no part in formulating these sections of the faculty handbook. However, faculty may be managerial if they take or recommend discretionary actions that control or “implement” employer policy. Yeshiva, 444 U.S. at 683. In apply- ing these handbook sections, the faculty take discretionary actions that implement employer policy. 24 As indicated, nearly one-third of the College’s student body is en- rolled in or takes courses in the education division. The dissent argues that we erroneously conclude that the faculty effectively determine admission standards because the board of trustees has final authority over admissions standards. However, the fact that ultimate decision- making authority lies with a board of trustees does not preclude a find- ing of managerial status where the faculty retain managerial authority, faculty also have an effective voice in the accreditation review.25 The faculty have also made effective decisions in sev- eral nonacademic areas. The strongest evidence is the faculty’s role in tenure decisions. The faculty partici- pated with the administration in developing formal pro- cedures governing tenure determinations for faculty em- ployed 5 years or more, which the faculty assembly and the board of trustees later approved. Based on those pro- cedures and criteria, the faculty recommended tenure for seven applicants to Dean Frankle and President Johnson. The board of trustees granted tenure to all seven. The faculty also effectively revised and then implemented the faculty handbook section governing the evaluation of faculty.26 To summarize, we find that through individual faculty members, the curriculum committee, the academic stan- dards committee, and the faculty assembly, the faculty make or effectively control decisions with regard to cur- riculum, courses of study and course content, degrees and degree requirements, majors and minors, academic programs, academic divisions, the addition and deletion of courses, course content, teaching methods, grading, academic retention, lists of graduates, selection of hon- ors, admission standards, syllabi, and textbooks. The faculty also will have an effective voice in the outcome of the accreditation review, which was incomplete at the time of the hearing. The faculty also makes effective decisions in some nonacademic areas, including tenure as here, through effective recommendations. See Yeshiva, 444 U.S. at 683 fn.17; American International College, 282 NLRB at 202. 25 Although incomplete at the time of the hearing, the completed ac- creditation review will bear the faculty’s effective imprint. President Johnson aptly characterized the review as “largely faculty-driven.” The director of the self-study is a faculty member who was selected by the president from one of five faculty members recommended by the fac- ulty. Moreover, most of the two dozen committees and subcommittees, including the committee charged with reviewing the management of the school, are comprised of a majority of faculty. The dissent contends that the incompleteness of the study makes the effectiveness of the faculty’s views pure speculation. We disagree because the faculty’s participation in the self-study is overwhelming, and the faculty’s effec- tive recommendation of academic policy already has been demon- strated. In these circumstances, it is not speculative to conclude that the study will bear the effective imprint of the faculty. 26 The faculty serve on other committees making managerial deci- sions, although the record does not demonstrate that the faculty com- prise a majority on these committees. The faculty serve on an ad hoc scholarship committee of faculty and administrators that makes deter- minations regarding the awarding of scholarships to students. The faculty also are members of judiciary council panels that preside over alleged infractions of the student handbook. In nonacademic areas, the faculty also serve on various search committees for faculty, administra- tors, staff, and a new president. The faculty participated on the benefits committee of faculty and administrators that recommended a change in the benefits carrier, which ultimately was approved by the administra- tion and the board of trustees. LEMOYNE-OWEN COLLEGE 1131 standards and selections, and faculty evaluation proce- dures. We disagree with the Regional Director’s analysis, which largely questions the independence and effective- ness of the faculty’s recommendations. The Regional Director disputed the independence of the faculty stand- ing committees and the faculty assembly because they included nonfaculty members. However, it is undisputed that the curriculum committee, academic standards committee, and the faculty assembly, which approve many academic decisions, are overwhelmingly com- prised of faculty members. Even though the dean and assistant dean have a vote in the faculty assembly, the Board does not require faculty committees to be com- prised solely of faculty members for the committee’s recommendations to be effective. See Elmira College, 309 NLRB 842 (1992) (faculty are managerial “as the faculty committees . . . which deal with [academic] mat- ters are comprised predominately, and in some cases, exclusively of faculty representatives”); Lewis & Clark College, 300 NLRB at 156 fn. 9 (emphasizing that policy is determined by a committee that consists of a “majority of voting faculty members”); cf. Cooper Union for Ad- vancement of Science & Art, 273 NLRB 1768, 1775 (1973), enfd. 783 F.2d 29 (2d Cir. 1986) (faculty are not managerial as they constitute a minority on most govern- ance committees and something less than a voting major- ity on about one-half of the committees). The Regional Director also disputed the effectiveness of faculty recommendations because of the “potential” for the decline in faculty influence as recommendations ascend through the “hierarchy of the review process.” However, there is no factual basis for the Regional Di- rector’s supposition that faculty recommendations are compromised as they proceed through the administrative hierarchy. To the contrary, the evidence demonstrates that the faculty’s recommendations have been routinely approved by the administration. Rather than demonstrat- ing a “decline in faculty influence,” the testimony of President Johnson and the specific examples of faculty recommendations illustrate effective faculty decisions on academic matters. For example, President Johnson testi- fied that he “acceded to the recommendation” of the fac- ulty regarding the proposed reduction in the number of academic divisions. Most notably, the record contains virtually no evidence of faculty recommendations that the administration modified, diluted, rejected, reversed, or ignored.27 27 Compare St. Thomas University, 298 NLRB 280, 286 fn. 48 (1990), in which the Board found that faculty were not managerial employees because of evidence that recommendations “often were ignored or reversed by the St. Thomas administration.” Puerto Rico Junior College, 265 NLRB 72 (1982), re- lied on by the Regional Director, is distinguishable. In that case, the Board found that the faculty’s recommen- dations were “immediately diluted” as they traveled up the administrative hierarchy through several committees. Each committee in the hierarchy that considered recom- mendations had increasingly diminished faculty repre- sentation. Of four committees, the faculty were in the majority on one (the originating committee), no more than an equal voice on the second, and in the minority on the remaining two. Moreover, the faculty’s recommen- dations were combined with other recommendations from nonfaculty to produce an overall recommendation. Here, the evidence does not demonstrate the kind of diminution of faculty influence or change in recommen- dation that existed in Puerto Rico Junior College.28 We reject the dissent’s assertion that we have used the court’s remand requesting a reasoned explanation for the Regional Director’s decision as an opportunity to “re- verse course” and find that the faculty are managerial employees. This remand provides the first opportunity for the Board to review the record in the underlying rep- resentation proceeding.29 Transcript pages and specific exhibits from the representation hearing are cited in the court’s opinion. 357 F.3d at 58–59, remanding the case to us. It is incumbent upon the Board on remand to ex- amine the Regional Director’s factual findings against the full record and relevant precedent, Yeshiva, and its progeny.30 We have done so, and disagree with the Re- gional Director’s findings and conclusions. 28 To the extent that the Regional Director’s rationale is that the mere existence of an administrative hierarchy is evidence that the faculty’s recommendations are ineffective, that reasoning is contrary to Board precedent. See Lewis & Clark College, 300 NLRB at 163, in which the Board held that “[t]he mere existence of an administrative hierarchy is insufficient to establish . . . [a] buffer” that would negate managerial status; see also Elmira College, 309 NLRB at 849 (faculty managerial even though college president had final review of faculty decisions); American International College, 282 NLRB at 202 (administrative review of faculty decisions not inconsistent with managerial status). 29 The Board denied the College’s request for review of the Regional Director’s Decision and Direction of Election because it concluded that no substantial issues requiring review were raised. The College also did not raise in the unfair labor practice proceeding any representation issue that was properly litigable. LeMoyne-Owen, 338 NLRB No. 92 (2003) (not reported in Board volumes). Chairman Battista and Mem- ber Schaumber did not participate in the underlying representation proceeding, but in granting the Motion for Summary Judgment in the unfair labor practice proceeding, they agreed that Respondent had not raised any new matters warranting a hearing. Id., slip. op. at 1 fn. 2. 30 The dissent cites to “numerous” decisions in which faculty have been found to be employees to support the view that the Board has narrowly applied Yeshiva, but the Board decisions finding faculty within the managerial exclusion are numerous as well. See Elmira College, 309 NLRB 842 (1992); Lewis & Clark College, 300 NLRB 155 (1990); University of Dubuque, 289 NLRB 349 (1988); Livingstone DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1132 The dissent acknowledges that the faculty handbook may imbue the faculty, including faculty committees and the faculty assembly, with authority over the College’s academic decisions, but the dissent concludes that the evidence is not sufficiently “clear” to prove that the fac- ulty actually exercises this authority. More specifically, the dissent asserts that there is no evidence in this record to support the conclusion that the faculty’s curriculum recommendations are “effective” because the testimony of President Johnson regarding faculty recommendations is, according to the dissent, generalized, conclusory, and vague. Furthermore, the dissent is concerned that the testimony of Johnson lacks a description of the review process followed by President Johnson or the board of trustees. We strongly disagree. Contrary to the dissent, President Johnson testified specifically about the approval process for faculty rec- ommendations with regard to major curriculum matters, including academic courses, degree requirements, and programs. President Johnson testified without rebuttal31 that none of the curriculum recommendations voted on and approved by the faculty assembly had ever been re- jected by the board of trustees. Moreover, the record includes specific evidence corroborating President John- son’s testimony. Faculty recommendations for the actual elimination and creation of programs, and the expansion of the curriculum, have been implemented by the ad- ministration. Again, these specific examples of the fac- ulty’s effective recommendations stand unrebutted. We disagree with the dissent that further evidence re- garding the extent of the review process is necessary to find the faculty’s recommendations effective. Johnson’s unrebutted testimony, corroborated by specific examples, is sufficient to support this finding. See Elmira College, supra, 309 NLRB 842. In Elmira, the Board found that the faculty were managerial employees based on evi- dence that all faculty recommendations concerning aca- demic matters that were passed on to the college presi- dent over a 4-year period were approved. 309 NLRB at 845. The Board found the recommendations were effec- tive without requiring additional evidence that inquired into the details of the president’s review process. College, 286 NLRB 1308 (1987); American International College, 282 NLRB 189 (1987); Boston University, 281 NLRB 798 (1986), affd. sub nom. Boston University Chapter, AAUP v. NLRB, 835 F.2d 399 (1st Cir. 1987); University of New Haven, 267 NLRB 939 (1983); College of Osteopathic Medicine, 265 NLRB 295 (1982); Duquesne University, 261 NLRB 587 (1982); Thiel College, 261 NLRB 580 (1982); and Ithaca College, 261 NLRB 577 (1982). Each case must be evaluated on its own facts. That is what we have done here. 31 The hearing took place over a 5-day period, and included 12 wit- nesses, some of whom were included in the petitioned-for unit. University of Great Falls, supra, 325 NLRB 83, relied on by the dissent, is distinguishable. In Great Falls, there was testimony that the faculty’s curriculum rec- ommendations were never rejected, but the Board found such evidence insufficient to establish that faculty rec- ommendations were generally followed. The testimony of the school’s provost/vice president was found to be too vague to permit a meaningful assessment of the fac- ulty’s actions. However, unlike this case, the testimony was not unrebutted; the record contained testimony that contradicted the provost/vice president’s testimony. 325 NLRB at 87–88, 96 fn. 42. The evidence here, however, is, as mentioned, unrebutted and corroborated by specific examples. Thus, contrary to the dissent, the evidence is sufficient to demonstrate that the faculty’s academic rec- ommendations are effective. The dissent stretches logic a bit when it portrays Dean Frankle and Assistant Dean of Academic Affairs Booker as developing the faculty’s recommendations before President Johnson reviews them, and concludes that this participation undercuts the finding that the faculty make effective recommendations. The dissent relies on Fran- kle’s responsibility to preside at assembly meetings, set its agenda, and together with Booker, vote on proposed recommendations. However, Frankle’s and Booker’s participation in the faculty assembly does not preclude a finding that the faculty are managerial employees. There is no evidence that in setting the agenda, a faculty mem- ber has ever been precluded from presenting issues to the assembly. Moreover, the assembly is overwhelmingly comprised of faculty members, and there is no evidence that Dean Frankle or Assistant Dean Booker has ever altered or rejected faculty recommendations. Thus, the fact that Dean Frankle and Assistant Dean Booker par- ticipate and have a vote in the faculty-dominated assem- bly does not undermine the finding that the faculty make effective academic recommendations.32 As detailed in this decision, the record demonstrates that the faculty exercise substantial authority in a major- ity of critical areas identified in Yeshiva and subsequent cases applying it.33 Based on this well-settled law, we 32 The dissent attempts to elevate the evidence that Dean Frankle is consulted regarding the financial implications of major curriculum changes to a conclusion that she has “substantive” input into faculty recommendations on the curriculum. However, by ignoring the finan- cial reasons for Dean Frankle’s input, the dissent ignores the Court’s recognition that a university’s administrative concerns with scarce resources, and occasional vetoes of faculty actions, do not in any way detract from the academic responsibilities entrusted to the faculty. Yeshiva University, 444 U.S. at 688 fn. 27. 33 Although the faculty’s role in nonacademic decisions is not as substantial as their role in academic decisions, Yeshiva and subsequent Board cases emphasize the role of the faculty in academic decisions in determining the faculty’s managerial status. See Livingstone College, LEMOYNE-OWEN COLLEGE 1133 find the faculty play a major and effective role in the formulation and effectuation of management polices at the College. We therefore find the faculty members are managerial employees. Conclusion For the foregoing reasons, we find that the full-time faculty are managerial employees and are therefore ex- cluded from coverage under the Act. Accordingly, we shall dismiss the complaint in Case 26–CA–20953, re- open Case 25–RC–10120, vacate the certification, and dismiss the petition. ORDER It is ordered that the complaint in Case 26–CA–20953 is dismissed. IT IS FURTHER ORDERED that Case 25–RC–10120 is re- opened, the certification in Case 25–RC–10120 issued September 17, 2002, is vacated, and the petition is dis- missed. MEMBER LIEBMAN, dissenting. In remanding this case, the U.S. Court of Appeals for the District of Columbia Circuit has asked the Board to supply a reasoned explanation for why this case is differ- ent from previous decisions in which the Board con- cluded that faculty members were managerial employees. Apparently concluding that no such reasoned explanation exists, the majority has decided to reverse course and find that the faculty members here are not entitled to the protections of the Act. But the Regional Director’s con- trary finding is consistent with Board cases applying Ye- shiva University, 444 U.S. 672 (1980). The majority neglects the principle that statutory exclusions must be interpreted narrowly to avoid denying rights, which the Act is intended to protect. Instead, the majority (1) broadly interprets previous cases finding managerial status and concludes that those cases dictate a finding of managerial status here, and (2) relies on evidence con- cerning the effectiveness of the faculty’s recommenda- tions with regard to curriculum and other matters that is far too thin to support a finding of managerial status. Although I agree that the Court’s remand required some further explanation of Board precedent, I disagree that the College has met its burden of proof. Thus, I would reaffirm the Board’s prior Decision and Order finding that the College has violated Section 8(a)(5) and (1) of supra, 286 NLRB at 1314 (lack of authority in nonacademic areas is of limited significance in determining faculty are managerial); and Lewis & Clark College, 300 NLRB at 161 fn. 30 (Board accords less weight to nonacademic factors); accord: Elmira College, 309 NLRB at 848– 849 (1992) (without more, nature of faculty involvement in academic matters conclusively establishes status as managerial employees). the Act by refusing to recognize and bargain with the Union. I. The legal principles governing this case are well estab- lished. In Yeshiva University, supra, the Supreme Court emphasized that in applying the managerial exclusion to the Yeshiva faculty, it was “not suggesting an application of the managerial exclusion that would sweep all profes- sionals outside the Act in derogation of Congress’ ex- pressed intent to protect them.” 444 U.S. at 690. The Court made clear that the result in Yeshiva is a “starting point only” and that “[there] may be institutions of higher learning unlike Yeshiva where the faculty are en- tirely or predominately nonmanagerial.” Id. at 690 fn. 31. Adhering to the Court’s admonition, the Board has found numerous university and college faculties to be covered by the Act.1 This is entirely consistent with the well-established principle that exclusions from the Act’s protections are to be interpreted narrowly, in order to avoid denying rights which the Act was intended to pro- tect, including the right to choose whether or not to be represented for the purposes of collective bargaining. Rahco, Inc., 265 NLRB 235, 248 (1982); Westinghouse Electric Corp. v. NLRB, 424 F.2d 1151 (7th Cir. 1972), cert. denied 400 U.S. 831 (1970). Because the exclusion must be interpreted narrowly, the burden of proving that faculty are managerial em- ployees is on the party alleging such status. See Monte- fiore Hospital & Medical Center, 261 NLRB 569, 572 fn. 17 (1982) (“we do not believe the Court intended to preclude the Board from requiring the party seeking to exclude either a whole class of employees or particular individuals as managerial to come forward with evidence necessary to establish such exclusion”); University of Great Falls, 325 NLRB 83, 93 (1997) (same); cf. NLRB v. Kentucky River Community Care, 532 U.S. 706, 712 (2001) (burden of proving supervisory status is on the party alleging such status). As the majority recognizes, 1 See University of Great Falls, 325 NLRB 83 (1997), affd. 331 NLRB 1663 (2000), reversed on other grounds 278 F.3d 1335 (D.C. Cir. 2002); St. Thomas University, 298 NLRB 280 (1990); Marymount College, 280 NLRB 486 (1986); Kendall School of Design, 279 NLRB 281 (1986), enfd. 866 F.2d 157 (6th Cir. 1989); Cooper Union of Sci- ence & Art, 273 NLRB 1768 (1985), enfd. 783 F.2d 29 (2d Cir. 1986); University of San Francisco, 265 NLRB 1221 (1982); Lewis Univer- sity, 265 NLRB 1239 (1982), enf. denied 765 F.2d 616 (7th Cir. 1985); Puerto Rico Junior College, 265 NLRB 72 (1982); Loretto Heights College, 264 NLRB 1107 (1982), enfd.742 F.2d 1245 (10th Cir. 1984); Florida Memorial College, 263 NLRB 1248 (1982), enfd. 820 F.2d 1182 (11th Cir. 1987); New York Medical College, 263 NLRB 903 (1982); Montefiore Hospital, 261 NLRB 569 (1982); and Bradford College, 261 NLRB 565 (1982). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1134 the College’s burden in this case is to prove that the fac- ulty represent “management interests by taking or rec- ommending discretionary actions that effectively control or implement employer policy.” Yeshiva, supra at 683. It must present proof, therefore, that the faculty either make or effectively recommend decisions that control or implement the College’s academic policy. This evidence must consist of more than mere conclusory testimony that the faculty, through committees or otherwise, make recommendations that are ultimately followed by the College’s administration. In University of Great Falls, supra, 325 NLRB at 97, the Board affirmed the Regional Director’s decision, which found that “[e]ven though faculty, either though committees or as a whole, are empowered to make rec- ommendations in many areas, the evidence is insufficient to warrant a conclusion that these recommendations ef- fectively control or implement employer policy to . . . require exclusion of the nondean faculty from coverage under the Act.” In St. Thomas University, supra, the Board reversed the Regional Director’s finding that the faculty were managerial, even though the faculty served on committees authorized to make recommendations to the administration on a wide variety of policy matters, including academic decisions. The Board found that the evidence failed to demonstrate that through these com- mittees the faculty had effectively recommended or been the moving force behind the formulation and adoption of university policies. In short, evidence that faculty com- mittees make recommendations involving college policy is not enough; the College must prove that those faculty committees make recommendations which are effective to warrant a finding that they are managers. II. Applying these principles to the facts here demon- strates that the College has failed to carry its burden of proof. The faculty handbook in theory grants certain defined authority to the faculty, faculty committees, and the fac- ulty assembly. But as the cases applying Yeshiva illus- trate, the Board compares evidence of faculty authority contained in the faculty handbook to the faculty’s author- ity in practice. The Board seeks to determine whether the handbook authority actually is exercised. See Brad- ford College, 261 NLRB 565, 566 (1982); Thiel College, 261 NLRB 580, 586 (1982); St. Thomas University, 298 NLRB 280, 286 fn. 48 (1990). This handbook purports to grant the faculty authority over academic decisions, but there is insufficient evidence that faculty members actually exercise any such authority. While the curriculum committee and faculty assembly consider curriculum decisions, the critical inquiry is what happens to the recommendations after they are sent to College President George Johnson Jr. If they are rou- tinely approved, they are effective recommendations. But if they are independently reviewed by President Johnson and the board of trustees, then the College has not shown that they are effective recommendations within the mean- ing of Yeshiva.2 The majority relies on the testimony of College President Johnson to support their conclusion that the faculty’s recommendations are effective. He testified that he never failed to approve faculty curricu- lum recommendations, and that none of the curriculum recommendations voted on and approved by the faculty assembly had been rejected by the board of trustees. Missing from this generalized testimony, however, is any description of the extent of the review of faculty recom- mendations by him or the board of trustees. Johnson was not even asked whether he conducted an independent review. Thus, there is no evidence in this record to sup- port the conclusion that the faculty’s curriculum recom- mendations are in fact “effective.” The majority erroneously infers an absence of inde- pendent review from the absence of any clear evidence on this crucial process. At the center of this error is President Johnson’s conclusory testimony. When con- sidering statutory exclusions from the Act’s protection, the Board has refused to rely on “conclusory statements made by witnesses in their testimony without supporting evidence.” Sears, Roebuck & Co., 304 NLRB 193 (1991). See also United States Gypsum, 118 NLRB 20, 25 (1957) (conclusory statements with regard to indi- viduals’ authority to “effectively recommend” discipline not sufficient to establish supervisory status). In University of Great Falls, supra, 325 NLRB at 83, the Board found that faculty members were not manage- rial even though the school’s provost/vice president testi- fied that in his 2 years at the school all faculty recom- mendations regarding curriculum matters had been ap- proved. The Board, in affirming the Regional Director’s decision, emphasized the lack of “clear evidence that faculty recommendations were generally followed.” Id. at 83. The information lacking was the nature and num- 2 See University of Great Falls, 325 NLRB 83 (1997), affirmed 331 NLRB 1663 (2000), reversed on other grounds 278 F.3d 1335 (D.C. Cir. 2002) (“vague” testimony of university provost/vice president, lacking details on the nature and number of faculty recommendations, including to what extent, if any, higher administrators independently reviewed and evaluated recommendations, insufficient to establish that faculty made effective recommendations); Lewis & Clark College, 300 NLRB 155, 163 (1990); cf. Franklin Hospital Medical Center, 337 NLRB 826, 830 (2002) (in order to prove that an individual is a super- visor because he effectively recommends discipline, “the exercise of disciplinary authority must lead to personnel action, without independ- ent investigation or review of other management personnel”). LEMOYNE-OWEN COLLEGE 1135 ber of recommendations, including to what extent, if any, higher administrators independently reviewed and evalu- ated recommendations. The Board concluded that the testimony of the provost/vice president on this point was “too vague.” Id. at 96. Here, there is similarly vague testimony by President Johnson and a similar lack of information regarding recommendations and the extent of independent review. Thus, as in University of Great Falls, there is no clear evidence here that faculty recom- mendations were actually effective. The evidence also demonstrates that Dean Frankle, an administrator and manager, is involved in the process of formulating faculty recommendations even before they reach President Johnson. Dean Frankle testified that when a proposal for a new major goes through a division, curriculum committee, and then the full faculty for re- view, she “already has been in on the consultations . . . because financial implications are involved.”3 Dean Frankle also presides at the faculty assembly meetings, sets the assembly’s agenda, and together with Assistant Dean of Academic Affairs Booker, may vote on pro- posed recommendations. Thus, college administrators are involved in developing the faculty’s recommenda- tions even before Johnson reviews them, further under- cutting the majority’s finding that it is the faculty that makes the effective recommendations on the curriculum. The college president also created an ad hoc, special committee on the core curriculum, independent of the faculty curriculum committee. This committee included many “constituencies” outside of the college faculty. Although there is little record evidence as to the results of this committee’s deliberations, the fact remains that the administration established this committee, outside the faculty committee structure, to study and act on the core curriculum, an area critical to the management of the College. This clearly undercuts the conclusion that the faculty is making effective decisions on curriculum mat- ters and is the ultimate authority on the College’s cur- riculum. 3 The majority suggests that Dean Frankle’s participation in these consultations does not detract from the faculty’s alleged managerial status because Dean Frankle is only concerned with the financial impli- cations of the faculty’s recommendations. The majority relies on cases which state that faculty can be managerial even if the college’s admin- istrators are responsible for financial and budgetary decisions, and the faculty has no say in those decisions. See Lewis & Clark College, 300 NLRB at 162; Livingstone College, 286 NLRB at 1314; American International College, 282 NLRB at 192. The curriculum decisions which Dean Frankle participates in, however, are not financial and budgetary decisions; they are substantive decisions about the curricu- lum. Thus, regardless of the reason for Dean Frankle’s participation, the fact remains that she has substantive input into the faculty’s rec- ommendations, undercutting the argument that the faculty itself makes the effective recommendations on the curriculum. Turning to other academic matters, the record demon- strates only a few areas over which the faculty exercises control. Individual faculty members make recommenda- tions for honors to the academic standards committee, which then makes recommendations to the faculty as- sembly for a final determination. The faculty also has discretion over grading and the content of their courses, although the administration has even placed some limita- tions on these areas. However, as the Court emphasized in Yeshiva, faculty may not be excluded “merely because they determine the content of their courses” or “evaluate their own students.” 444 U.S. at 690 fn. 31. Thus, even assuming faculty members control or effectively control grading and the content of their courses, they cannot be excluded from the Act’s protection because they perform these academic functions. Although the handbook contains sections governing instructional policies, including the class syllabus, text- books, and other matters, there is no evidence that the faculty took part in formulating these sections. Further, given record evidence that the board of trustees has final authority over admission standards, the majority errone- ously concludes that the faculty effectively determines admission standards. As for the accreditation review, this process was incomplete at the time of the hearing, and it is pure speculation for the majority to suggest that the faculty’s views will be effective. With regard to nonacademic areas, while the faculty’s tenure recommendations have been followed, President Johnson testified that he does a “substantive evaluation” of the candidates to ensure that the tenure criteria are satisfied. Although the faculty revised a section of the handbook governing faculty evaluations, the record does not demonstrate that these evaluations have any clear impact on faculty advancement or other personnel deci- sions. The evidence regarding faculty hiring demon- strates that the recommendations of the faculty are not always followed. Decisions regarding benefits are made by the administration after an independent review and not by the benefits committee. It is undisputed that the faculty have virtually no demonstrated role in discipline, terminations, or layoffs. I would, therefore, find that, at most, the faculty make or effectively control academic decisions in grading, the content of courses, and honors. However, the Court in Yeshiva held that such authority is not sufficient to re- move faculty from the protection of the Act. III. The D.C. Circuit’s remand requires the Board to ad- dress cases cited by the College. Those cases are distin- guishable because they involved faculty with greater authority over academic areas than the faculty members DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1136 here. By relying on these cases to support their conclu- sion that the faculty in this case are managerial, the ma- jority disregards the insufficiency of the evidence that the faculty here make effective recommendations concerning core university policies. In American International College, 282 NLRB 189, 193–195 (1986), the record contained specific evidence of numerous effective faculty decisions over curriculum matters. In contrast, the College here has not met its burden of proving that the faculty makes effective rec- ommendations on the curriculum. A key difference between Livingstone College, 286 NLRB 1308 (1987), and this case is that in Livingstone, once the faculty approved a recommendation, the policy was implemented without prior approval from the presi- dent or board of trustees. Here, in contrast, recommen- dations must be approved by the president and board of trustees. In Lewis & Clark, supra, the Board found that the re- cord demonstrated that faculty recommendations regard- ing academic areas had not been overturned by higher administrative levels. 300 NLRB at 156. The Board reached a similar conclusion in Elmira College, 309 NLRB 842 (1992). Here, the only evidence of effective recommendations by the faculty is College President Johnson’s testimony, which lacks specifics and gives no details on whether or not the faculty’s recommendations are independently reviewed. As the Board emphasized in University of Great Falls, supra, such testimony is insufficient to establish that the recommendations were in fact effective. IV. The Board must ensure that faculty members who do not truly have the authority to effectively control the aca- demic decisions of their institution are not excluded from the protection of the Act. In this case, the College has not adduced sufficient evidence that the faculty’s rec- ommendations are actually effective. Accordingly, I would reaffirm the Board’s Decision and Order finding that the College has violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union.