Rosary Hill College

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