University of Detroit

566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD University of Detroit and The University of Detroit Chapter-American Association of University Pro- fessors, Petitioner. Case 7-RC-10492 October 6, 1971 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, hearings were held before Hearing Officers Theodore C. Niforos and William C. Schaub, Jr., of the National Labor Relations Board. Following the hearings, pursuant to Section 102.67 of National Labor Rela- tions Board Rules and Regulations and Statements of Procedure, Series 8, as amended, this case was transferred to the Board for decision. Thereafter, the Petitioner and the Employer filed supplementary briefs; the Employer also filed a copy of its brief to the Regional Director. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the Hearing Officers' rulings made at the hearings and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The Petitioner seeks to represent a unit limited to full-time faculty members at the University of Detroit. The University contends that the unit should include part-time faculty. The parties further disagree as to the supervisory status of department chairmen: the Petitioner would exclude, and the University include, them.' The University, a private, nonprofit institution of higher education offering undergraduate, graduate, and professional curricula at several Detroit, Michi- gan, locations, currently employs approximately 330 full-time and 230 part-time faculty members. The parties stipulated, and we find, that full-time ' The Petitioner indicated that it is willing to participate in an election in a larger unit which would include department chairmen and part-time faculty members The parties stipulated that deans, assistant deans, and nonacademic faculty members are professional employees within the meaning of Section 2(12) of the Act and are therefore entitled to all the benefits of collective bargaining if they so desire.2 Part-time faculty members: Full-time faculty mem- bers at the University are expected to teach approxi- mately 12 hours per week. In most of the University's schools each full-time faculty member teaches about four 3-credit-hour courses per semester. In the School of Law, however, where 2-credit-hour courses predo- minate, each full-time faculty member is expected to teach four courses or approximately 8 hours per week. The School of Dentistry is organized on a clock hours per semester basis and full-time dental school faculty members are expected to be at the school 64 days per semester. The University offers courses during two 16-week semesters; it also has a summer session of 16 weeks. The Evening College of Business and Administra- tion employed about 42 part-time and 2 full-time faculty members during the 1970-71 academic year. Most of that school's part-time instructors taught at least 3 hours per week each semester; a few taught a 3- credit-hour course for only one semester. All are scheduled to teach at least 3 hours per week during the fall 1971 semester. In the College of Arts and Sciences 12 of 19 part- time faculty members taught at least 3 hours per semester during 1970-71; 6 taught 3-credit-hour courses for only one semester and the remaining part- time faculty members taught a 2-credit-hour course one semester. During the 1971-72 school year, 17 of 23 part-time faculty members in that school are scheduled to teach at least one 3-credit-hour course per term; the other instructors will teach only one 3- credit-hour course during the year. In the School of Architecture, the five part-time instructors each taught at least 3 hours per week during the past year and they are scheduled to do likewise during the coming school year. The College of Engineering employed three part- time faculty members during 1970-71 all but one of whom taught 3 hours a week per semester; the same pattern exists for 1971-72. In the Day College of Business and Administration the two part-time instructors are each scheduled to teach 3 hours per term during 1971-72 although one taught only a 3-credit-hour course for one semester last year. The School of Law's 10 part-time faculty members taught between 2 and 8 hours per week during the deans are supervisors within the meaning of Section 2(11) of the Act and are thus to be excluded from the unit 2 C W Post Center of Long Island University, 189 NLRB No 109, Fordham University, 193 NLRB No 23. 193 NLRB No. 95 UNIVERSITY OF DETROIT 1970-71 academic year; the same course schedule exists for 1971-72. The School of Dentistry employs the largest number of part-time faculty members. Most of them are practicing dentists who work between 1 and 3 days per week in the school's dental clinic overseeing 3d and 4th year dental students as they perform various procedures on patients. About 100 of the dental school part-time employees taught at least 32 days during the year; the remaining 60 or so part-timers worked 16 days or less during the 160-day school year. Some of the part-time instructors meet laboratory or lecture classes; full-time professors teach the basic science courses and are at the school 4 days per week or 128 days per year or more. Part-time faculty members are involved in curricu- lum planning where appropriate and, in certain instances , represent their schools in the university senate. Most university fringe benefits are not available to part-time faculty members; viz, life insurance, health insurance, retirement benefits, travel allowances, reduced tuition, etc. Tenure can never be attained by part-time faculty members and, if student demand for a course diminishes, the involved part-time instructor may be released. De- spite this apparent lack of job security, most part-time faculty members have taught at the University for several years. Part-time and full-time faculty mem- bers have the same educational background and in the classroom engage in exactly the same activity-teaching. The Petitioner contends that a unit of full-time and part-time faculty members is inappropriate because only full-time faculty members are involved in the formation and implementation of department, school, and university policies and, moreover, the University treats the two employee groups differently. The Petitioner further argues that if the Board finds appropriate a unit of full-time and part-time faculty members, the Board should determine who is eligible to vote as a regular part-time employee. The Petition- er suggests the following test for making such a determination: only those currently employed part- time faculty members who teach more than 3 credit hours a semester or, in the dental school, more than 1 day a week, and who have taught in at least one semester in each of the immediately preceding 2 academic years, exclusive of the summer session, should be eligible to vote as a regular part-time employee. The University asserts that a unit of full-time and regular part-time faculty members is appropriate. It contends that the Board's recent decision in University J The parties stipulated that approximately 47 supervisory adjunct professors in the psychology department who are experts tending to the student's personal needs are casual employees and not to be included in 567 of New Haven, Inc., 190 NLRB No. 102, is controlling. The University does not propose a test for determin- ing which of the part -time faculty members should be eligible to vote. In New Haven, the adjunct (part-time) faculty members taught 3 hours a week or more as compared to a 12-hour per week schedule for full-time faculty. The part-time faculty members were ineligible for tenure and fringe benefits; their average length of service was 6 years; and they participated in delibera- tions of the school's board of governors . The Board there applied the well-established principles concern- ing the unit placement of part-time employees with full-time personnel and included those part-time faculty members in the same unit with the full-time faculty. The instant case in most relevant aspects is identical . We do not find merit in the Petitioner's contention that a different result is warranted here. We find, therefore, from all the circumstances, that the University part-time faculty members are part- time professional employees having a substantial community of interest with full -time faculty members and we shall include them in the unit.3 However, we agree with the Petitioner that the circumstances herein require that the Board develop a test for this case to insure that only those part-tune faculty members having a substantial and continuing interest in the wages, hours, and working conditions of unit employees be eligible to vote.4 In New Haven, the Board concluded that part-time faculty members teaching 3 hours or more per week during the semester were regular part-time employees having a community of interest with full-time faculty members teaching 12 hours per week . We find no merit in the Petitioner's contention that a different standard should be applied here. Accordingly, we find that part-time faculty mem- bers teaching 3 hours or more per semester in all university schools except the Schools of Law and Dentistry are regular part-time employees eligible to vote in the election . In the School of Law, where the full-time faculty teaches approximately four 2 -credit- hour courses per term, we shall apply the same 4-to-1 full-time-to-part-time-hours-taught-ratio as in New Haven. Accordingly, we find that in the School of Law all part-time faculty members teaching 2 hours per week a semester or more are eligible regular part-time employees. Likewise, while the School of Dentistry is organized on a days-worked -per-year basis, the same test may be applied since full -time dental school faculty members are expected to work at least 128 days per school year. Accordingly, we find that in the the unit 4 Quality Markets, Inc, 160 NLRB 44, Farmers Insurance Group, 143 NLRB 240 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD School of Dentistry all part-time faculty members working 32 days or more per school year are regular part-time employees eligible to vote. Department chairmen : The department chairman is appointed to a maximum 4-year term by the dean of his school with the approval of the vice president and dean of faculties . The chairman receives a reduced course load but does not ordinarily receive additional compensation unless he renders outstanding service. Since the chairman need not be the department's ranking professor , he often is paid less than other members of his department . Unlike deans and administrators who sign "administrative" contracts with the University , the chairman retains his "faculty" agreement upon being appointed. Chairmen occupy faculty seats and represent their departments in the university senate, the highest advisory body to the university president, which is composed of faculty , students, and administrators. The chairman , through the dean's office, requests authority from the vice president to employ addition- al faculty members for his department . The depart- ment faculty members, the chairman , and the dean each separately reviews prospective candidates. The department's recommendation 5 is reviewed by the vice president and if he concurs a faculty agreement is executed by his office . While the new hire's actual salary is determined by the vice president, within a range the vice president has established, the chairman can discuss remuneration with the prospective faculty member prior to his being hired. When a department member is due for tenure or promotion , the chairman and faculty usually make separate recommendations to the dean although in some departments point recommendations are made. The dean adds his comments and all three recommen- dations are transmitted via the vice president's office to the university senate committee on rank and tenure. That committee , which is composed of faculty members and administrators , the latter holding ex officio positions, votes whether to grant tenure or a promotion . The vice president votes, too, even though he holds an ex officio seat on the committee. If a department chairman discovers that a faculty member is not performing satisfactorily , the chairman reports this to the dean without making a formal recommendation but usually after consulting the faculty. The chairman and dean discuss the problem. A nontenured faculty member may be terminated for any reason merely by not having his contract renewed; it is not clear from the record who makes this decision . A formal proceeding involving the university president and various universitywide coun- 5 The record is unclear whether the department makes a recommenda- tion jointly with the chairman or each makes separate recommendations 6 Cf Fordham University, supra, In 3 For the reasons stated in Member cils is required to dismiss a tenured faculty member. The chairman plays no decisive role in that procedure. A department chairman is responsible for the academic excellence of his department and the professional competence of the faculty. While the chairman may assign courses (in some departments this function is performed by a committee), he does not otherwise direct the classroom work of faculty members unless it is necessary to maintain the department's academic standards. The scheduling of courses is the chairman's responsibility although he does not do the actual work. The chairman evaluates the work of department clerical employees but the University sets their hours. The University contends that the department chairman is a faculty member lacking any indicia of statutory supervisory authority. The Petitioner con- tends that the chairman is a supervisor. It is clear that the department chairman does not effectively recommend the appointment, promotion, tenure, or discharge of faculty members. In every such instance the chairman's recommendation, if any, is just one of several made to the appropriate university official or body which has the authority to make a binding decision for the University. The record does not reveal whether the chairman's recommendations are accorded greater weight than those of the faculty or dean. The chairman may assign courses, but he does not ordinarily direct the classroom work of faculty members. Moreover, the University apparently regards the chairman as a faculty member, not an administrator. Thus, he does not sign an administrative agreement upon being appointed; he represents the faculty at university senate meetings; he usually receives no additional compensation for being chairman; and the chairman teaches courses albeit fewer than his fellow faculty members. Accordingly, we find from the above that depart- ment chairmen are not supervisors within the mean- ing of Section 2(11) of the Act and we shall include them in the unit.6 For the reasons stated above, we find that the following constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time members of the faculty at the University of Detroit, including department chairmen, but excluding deans, assist- ant deans, nonacademic deans, supervisory ad- junct professors in the psychology department, guards and supervisors as defined in the Act, and all other employees. Kennedy's dissent in Fordham University, he would find that department chairmen are supervisors within the meaning of the Act UNIVERSITY [Direction of Election 7 x omitted from publication.] I As the Petitioner's original showing of interest was for a unit smaller than the unit in which an election is being directed , the Direction of Election is subject to an administrative determination by the Regional Director for Region 7 of the Petitioner's interest in the unit found appropriate herein " In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, N L R B v Wyman - Gordon Co, 394 U S OF DETROIT 569 759 Accordingly , it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters , must be filed by the Employer with the Regional Director for Region 7 within 7 days of the date of this Decision and Direction of Election The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed