New York University

4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD New York University and New York University Chap- ter, America Association of University Professors, Petitioner New York University and NYU Faculty of Law Associ- ation, Petitioner. Cases 2-RC-15719 and 2-RC- 15757 July 20, 1973 DECISION AND DIRECTION OF ELECTIONS Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Bertram T. Kupsinel. After the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regu- lations, Series 8, as amended, and by direction of the Regional Director for Region 2, this proceeding was transferred to the Board for decision. Thereafter, the Employer, Petitioners, and Intervenor I filed briefs in support of their respective positions. On April 18, 1973, the National Labor Relations Board, having determined that this and related pro- ceedings presented an issue of importance in the ad- ministration of the National Labor Relations Act, directed a hearing before the Board on April 30, 1973, for the purpose of oral argument on the inclusion of part-time faculty, as a class, in the same bargaining unit with full-time faculty. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding, the Board finds: 1. New York University is a private nonprofit insti- tution of higher education founded in 1831 with offi- cers and educational facilities in New York, Puerto Rico, France, and Spain. During the fiscal year pre- ceding the hearing it purchased materials valued in excess of $1 million from firms located outside the State of New York, and its budget for the current fiscal year is in excess of $200 million. The University concedes that it is subject to the jurisdiction of the Board and we find that it is an employer engaged in commerce or in an industry affecting commerce with- in the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction in this proceeding. i The Employer's motion to deny United Federation of College Teachers, Local 1460, AFT, AFL-CIO, permission to intervene on the ground that it has not made a sufficient showing of interest in the unit it seeks is hereby denied We have long held that a showing of interest is an administrative matter not subject to direct or collateral attack , e g, Standard Oil Company (Indiana), 80 NLRB 1275 Further, we are satisfied that the interest of the Intervenor is sufficient to permit it to contest the agreement among the Employer and the Petitioners excluding part-time faculty members The unit it seeks does not differ in substance from that sought by the Petitioners Manhattan College, 195 NLRB 65 2. The labor organizations involved claim to repre- sent certain employees of the Employer. 3. A question affecting commerce exists con- cerning the representation of employees of the Em- ployer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The Petitioner in Case 2-RC-15719, New York University Chapter, American Association of University Professors, seeks a unit comprising all full-time faculty of New York University and half- time faculty in the school of dentistry, including professional librarians, but excluding all other em- ployees, subject to the stipulations entered into by the parties. Intervenor, United Federation of Col- lege Teachers, Local 1460, AFT, AFL-CIO, seeks essentially the same unit as the AAUP but would include regular part-time faculty as well. The Peti- tioner in Case 2-RC-15757, NYU Faculty of Law Association, seeks a unit of all full-time faculty members of the law school, excluding the dean, associate deans, assistants to the dean, law librari- an, guards and supervisors as defined in the Act and all other employees. The Faculty of Law Asso- ciation would not include part-time faculty and has disclaimed any interest in a unit broader than the law school.2 The Employer contends initially that its faculty is outside the Act's jurisdiction. In its view, faculty members are not employees but rather, either col- lectively or individually, are independent agents or supervisors. The Employer alternatively urges that, should the Board find contrary to its principal con- tention, then the appropriate unit should exclude part-time faculty, those on terminal contracts, li- brarians, department chairmen, certain directors, and faculty who are principal investigators for con- tract research, subject to the various stipulations. Additionally, the Employer argues that any appro- priate unit must include the law school in an overall unit. As we have had occasion to note before, "the contentions [that the faculty are supervisors] . . . amount to nothing less than a request to the Board to reconsider its decision in C. W. Post [189 NLRB 9041, and Fordham University [193 NLRB 134]."' Though the Employer, as it claims without opposi- tion, may be a "mature university" in contrast to "a teaching institution," we are unable to detect any critical distinctions between the faculty role here and that in other cases where we have rejected such 2 Counsel for the Faculty of Law Association was not present at all times during the hearing and was absent when certain stipulations were made However, counsel later joined in the majority of those stipulations made in his absence and has not objected to any The stipulations are hereby accept- ed 3 Manhattan College, 195 NLRB 65 205 NLRB No. 16 NEW YORK UNIVERSITY arguments. The role of the faculty in the university senate, and faculty council, and with respect to hir- ing, promotion, salary increases, and the granting of tenure, does not vary markedly from what it was in those cases. The faculty is not in the position of management relative to these personnel decisions, and it is not the final authority. The Employer's brief cites Adelphi University, 195 NLRB 639 (Member Kennedy concurring in rele- vant part), though suggesting it was wrongly decid- ed, and contends that here the faculty has actual authority and is not limited to providing advice to a board of trustees. The last overstates the case to the extent it implies that the Adelphi faculty lacked effective authority. The Board found to the con- trary: the action of the personnel committee there appears to have been definitive as a practical mat- ter. However, there, as here, ultimate authority did not reside with the faculty. Further, contrary to the Employer's contention , Adelphi does not imply that the exercise of true collegial authority would divest a faculty of coverage by the Act, and the opposite conclusion could more readily be drawn from the language employed. That Decision merely noted that certain difficulties might be attendant upon applying the Act to a true collegial system. We are not faced with that problem here, nor do we imply what conclusions we might reach in those circum- stances. The Board's discussion of collegialty in Adelphi was premised on a theoretical distinction between industrial organizations, where authority is "delegated from the top of the organizational pyramid in bits and pieces to individual managers and supervisors who in turn direct the work of the larger number of employees at the base of the pyra- mid" and one where "authority [is] vested in one's peers, acting as a group...." The Employer elicited testimony from its own witness, Miguel de Capriles, vice president, general counsel, and secretary of the University, that, in broad terms, an organizational chart would show a "sort of hierarchical structure with a fairly clear line of command from the trustees down to the employ- ees of the institution. You have the trustees on the top. The president would be under that. The vari- ous units of the university would be under that. Administrators and faculty members would proba- bly be down at the bottom somewhere." Although de Capriles later qualified his answer with respect to the manner in which the University functioned in practice, it is clear that the situation here is not critically different from what it was in the earlier cases, that such authority as the faculty has is not vested, and that it is contingent upon the ultimate authority at a higher level of the hierarchy. Indeed, 5 the Employer's opposition to the labor organiza- tions in this proceeding might well be considered evidence of the absence of a true collegial system. In fact, representation by a labor organization in such circumstances would appear to be superflu- ous. We conclude that the faculty qua faculty are not outside the Act's jurisdiction merely because they exercised quasi-collegial authority and possess as a group certain attributes of supervisors 4 Additionally, the Employer argues that the facul- ty are independent contractors or agents and for that reason are not statutory employees. Although the Employer correctly urges that the central issue in determining independent contractor status is whether the recipient of services has the right to control the manner and means of performance as well as the result, the only significant factor sug- gesting a positive conclusion is the faculty's relative freedom in determining course content.5 Even there the individual faculty member is not totally free, since the general content of the course may be de- termined by a consensus of the school or depart- ment involved, and the University's rules of tenure provide that he "should not introduce into his teaching controversial matter that has no relation to his subject." Its weight is further diluted by the professional status of the faculty, which demands the exercise of discretion and judgment. Determi- nation of the details, and indeed the manner, of instruction would appear to be peculiarly within the province of a professional teacher and the absence of this latitude would cast serious, and probably fatal, doubts on his professional status. Other factors all point to the conclusion that the faculty are employees. Instruction is performed on the Employer's premises with its equipment; facul- ty may become tenured; and they receive sabbati- cal leave, a fixed annual salary, and Employer 4 E g., Fordham University, supra, Member Kennedy, dissenting in part, would have found that department chairmen were supervisors ; C W Post Center of Long Island University, supra, Adelphi University, supra That indi- vidual and otherwise unidentified members of the faculty may have a quasi- supervisory relationship with students whose employment is dependent upon and related to their student status , or may act as supervisors in the capacity of principal investigator over individuals who are not employees of that Employer, does not require a different result Fordham, supra In any event this is more properly to be considered as a question of individual inclusion or exclusion. 5 The Employer's contentions that citizenship (involvement in the affairs of the University community) and research are also to be considered, while arguable, appear wide of the mark The Employer apparently expects activity in these areas, but not universally, and no separate status is sought for full-time faculty who are not expected to engage in research The situation does not appear far distant from that of a commercial enterprise which expects employees who seek advancement to engage in independent research or involve themselves in the affairs of the local community Moreover, the expectation appears much too nebulous to be accorded significant weight in this context Not only does the Employer lack, so it alleges, control over the manner and means of performance , but over the result as well In these circumstances they are, at most, ancillary to the relationship 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contributions to a retirement fund. The faculty are not subject to the entrepreneurial risks and profits normally associated with independent contractors. We conclude that they are not independent con- tractors within the meaning of the Act. The parties, with the exception of the Faculty of Law Association, agree on the appropriateness of an overall unit including the school of law. The Faculty of Law Association seeks, and would only participate in, an election in a unit limited to the law school. The law school is located in Vanderbilt Hall at the University's Washington Square Center. The Hall is owned by the Law Center Foundation and occupied only by the law school, with the exception of the fourth floor, which is leased to the University and occupied by the central administration. The foundation is a separate not-for-profit corporation with assets of $15 million and is the administrator for application of the earnings of the C. F. Mueller Company to the law school. Legally, though not necessarily as a matter of practice, this relationship among the foundation, law school, and University appears to be unique and without exact parallel at the University. The University's vice chancellor testified that the law school had a "greater measure of identifiable proprietary right or interest in its building." The rank distribution, while more concentrated at the upper level than in the University as a whole, is comparable to that at certain other schools or insti- tutes of the University. The grant of tenure is de- termined in the same manner as it is at the rest of the University. Although the decision may, as a matter of practice, be arrived at more quickly, there apparently is no minimum period of service neces- sary to qualify the members of any of the university faculties for tenure consideration. Fringe benefits are the same throughout the University, no salary imbalance is demonstrated in the record, the law faculty is proportionately represented in the univer- sity senate and the faculty council, and has access to universitywide grievance machinery. There is some faculty overlap with other schools, and the law school participates with other schools in certain institutes and programs. The law school is accredit- ed by the Association of American Law Schools and the American Bar Association; as one might expect, a unique distinction, if only in the identity of the accrediting bodies. Similarly, educational su- pervision is exercised by the Court of Appeals of the State of New York. Based on the foregoing we conclude that a sepa- rate law school unit would be appropriate, but that an overall unit would also be appropriate.' In such circumstances the desires of the law faculty are crit- ical, and, therefore, we shall not make a final unit determination at this time. Instead we shall direct an election among the law school faculty to de- termine whether they wish to be merged into a uni- versitywide unit. As in our recent decision in Syracuse' we find that the law faculty's special in- terests and allegiance differ in kind from those of the bulk of the faculty. Accordingly, the law faculty will choose between representation and nonrepre- sentation both as part of an overall unit and as a separate unit.' With the exception of the Intervenor, United Federation of College Teachers, which requests it, the parties oppose including regular part-time fa- culty (save for half-time faculty in the school of dentistry, whom the AAUP would include) in any unit found appropriate. This issue has been raised before and it has consistently been resolved in favor of inclusion. However, after careful reflection, we have reached the conclusion that part-time faculty do not share a community of interest with full-time faculty and, therefore, should not be included in the same bargaining unit. In Fordham University, 193 NLRB 134, the Board honored an agreement to exclude part-time faculty from the bargaining unit, citing University of New Haven, Inc., 190 NLRB 478, which held that regular part-time faculty must be included in the same unit as full-time faculty, ab- sent agreement of the parties to exclude them. We are now convinced that the differences between the full-time and part-time faculty are so substantial in most colleges and universities that we should not adhere to the principle announced in the New Ha- ven case' We shall exclude all adjunct professors and part-time faculty members who are not em- ployed in "tenure track" positions. The Board has long recognized "that mutuality of interest in wages, hours, and working conditions 6 Catholic University, 201 NLRB No 145, Fordham University, 193 NLRB 134 7 Syracuse University, 204 NLRB No 85 6 For the reasons set forth in their dissent in Syracuse, supra Members Fanning and Penello would direct a normal "Globe" election to allow the law faculty to vote on whether they desire separate representation . However, in their view , here, as in Syracuse, there is no reason to adopt a special voting precedure which would permit separate nonrepresentation 9 Justice Stewart in Boys Market Inc v Retail Clerks, 398 U S. 235 (1970), quoted with approval Justice Frankfurter's earlier observation that "Wisdom too often never comes , and so one ought not to reject it merely because it comes late " Our abandoment of the New Haven rule is the result of arguments and contentions advanced by the parties in this and other pending cases as to the function, nature, and character of part-time faculty members We have also been influenced by the Board's inability to formulate what we regard as a satisfactory standard for determining the eligibility of adjuncts in Board elections See Member Kennedy's dissent in C W. Post of Long Island Uni- versity, 198 NLRB No 79, supplementing 189 NLRB 904 NEW YORK UNIVERSITY is the prime determinant of whether a given group of employees constitutes an appropriate unit."10 The record in this case convinces us that there is no real mutuality of interest between the part-time and full-time faculty at New York University because of the difference with respect to (1) compensation, (2) participation in University government, (3) eli- gibility for tenure , and (4) working conditions. There is a marked difference in the compensation paid the part-time faculty and the full-time faculty. The record reveals that a substantial percentage of the part-time faculty receives a modest sum which corresponds to a respectable honorarium . General- ly an adjunct's primary work interest is elsewhere and his primary income is received from sources other than the University." Fringe benefits (includ- ing medical , hospital, and life insurance as well as retirement pension) are available to all full-time faculty. They are not available to part-time faculty members. The part-time faculty members do not partici- pate in the governance of the University. They are excluded from membership on both the university senate and the faculty council . They do not partici- pate in departmental decisions with respect to ap- pointment, promotion, or tenure status. Similarly, they are not consulted with respect to curriculum development, degree requirements, selection of de- partment chairmen, or admission requirements. In no real sense do the part-time faculty share the responsibilities of the full-time faculty in the devel- opment of the institutional policies of the Universi- ty. Only the full-time faculty members of the Uni- versity are eligible for tenure status. Part -time fa- culty members are hired on a single semester basis with no obligation of renewal of appointment. The relationship of the part-time faculty member to the University remains transient even though he may be employed for a number of years. No matter how long he remains a part-time faculty member with the University, the critical fact is he can never gain tenure, which is available only to members of the full-time faculty. In no real sense can it be said that the working conditions of the full-time faculty and the part-time faculty are the same. A part-time faculty member's obligation to the University is limited to teaching 2 or 3 credit hours per semester . He has no responsi- 10 See Continental Baking Company, 99 NLRB 777, citing 16 NLRB Ann Rep 86 (1951), 15 NLRB Ann Rep 39 (1950), 14 NLRB Ann Rep. 32 (1949), 13 NLRB Ann Rep 36 (1948), Chrysler Corporation, 76 NLRB 55 11 It appears that 560 of the University's 1,246 adjuncts and part-time faculty are employed in the School of Continuing Education The majority of these are "moonlighting" high school or junior college teachers. 7 bilities beyond teaching and grading. The full-time faculty member is expected, however, in addition to teaching and grading, to engage in research, writ- ing, or some other creative endeavor, to counsel students, and to participate in the affairs of his department and the University. A full-time faculty member is engaged in a wide variety of activities which demand, on the average, between 50 and 60 hours per week. Part-time faculty members have no comparable workload. Collective bargaining by university and college faculties in this country is in an early stage of devel- opment insofar as this Board is concerned. Admit- tedly, the Board has broad discretion under Section 9(b) of the Act in its determinations of appropriate bargaining units. The Board's observation in the Kalamazoo Paper Box Corporation case (136 NLRB 134, 137) is highly relevant to collective bargaining in the field of higher education. The Board there stated: In performing this function [unit determina- tion], the Board must maintain the two-fold ob- jective of insuring to employees their rights to self-organization and freedom of choice in col- lective bargaining and fostering industrial peace and stability through collective bargaining. In determining the appropriate unit, the Board deli- neates the grouping of employees within which freedom of choice may be given collective ex- pression. At the same time it creates the context within which the process of collective bargaining must function. Because the scope of the unit is basic to and permeates the whole of the collec- tive-bargaining relationship, each unit determi- nation, in order to further effective expression of the statutory purposes, must have a direct rele- vancy to the circumstances within which collec- tive bargaining is to take place. For, if the unit determination fails to relate to the factual situa- tion with which the parties must deal, efficient and stable collective bargaining is undermined rather than fostered. We must always be mindful that a unit determina- tion should be appropriate for bargaining purposes. We are persuaded that there exists such a dissimilarity of interest in the wages and working conditions of part-time and full-time faculty that we should not include them in a single unit. We should not endanger the potential contribution which collective bargaining may provide in coping with the serious problems con- fronting our colleges and universities by improper unit determinations. In our judgment, the grouping of the part-time and full-time faculty into a single bar- 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining structure will impede effective collective bar- gaining. For all of the reasons set forth above, we shall exclude all part-time faculty from the bargaining units found to be appropriate." Despite numerous stipulations as to the unit place- ment of various categories, many remain on which no agreement could be reached. The Employer would exclude, while the AAUP and the UFCT would in- clude, professional librarians. The Employer's posi- tion is based on its contention that librarians lack a community of interest with faculty and that they exer- cise sufficient supervisory authority to compel their exclusion. Professional librarians are titled curator, associate curator, assistant curator, or library associate in de- scending order of rank. Unlike faculty, the function of a librarian may change with title, and promotion may depend on the existence of a vacancy. Further distinguishing librarians from faculty are their regular workweek; retirement age; tenure requirements; sep- arate grievance procedure; lack of proportional repre- sentation in the university senate (though the dean of libraries, like other deans, is a member); and, perhaps more basically, the fact that they are not considered faculty. On the other hand, they are a professional group, charged with the responsibility for accumulat- ing appropriate materials and serving the other mem- bers of the university community in that respect, and most fringe benefits are available to them. We con- clude that they possess a sufficient community of in- terest to be included in the unit, as a closely allied professional group whose ultimate function, aiding and furthering the educational and scholarly goals of the University, converges with that of the faculty, though pursued through different means and in a dif- ferent manner." Their interest in the unit does not, however, put an end to the matter, as the Employer also argues for their exclusion, in whole or in part, as supervisors. Initially, we reject the Employer's contention that all professional librarians possess supervisory authority over nonunit employees to a degree requiring their exclusion. The Employer's brief concedes that eight librarians do not perform supervisory duties as part of their everyday work. Additionally, however, as we noted in Adelphi, supra, the supervisory exclusion is primarily aimed at situations where this authority is regularly exercised over employees whose inclusion in 12 University of New Haven, Inc, 190 NLRB 478, and similar cases are hereby overruled to the extent inconsistent with this decision Contrary to the observation of Chairman Miller, we express no opinion as to whether a unit of part-time faculty is appropriate We still address ourselves to that issue in any proceeding in which such issue is raised and litigated by the parties t 3 C W Post, supra, Fordham University, supra , cf Manhattan College, supra the unit is sought by the union. Where professional employees have spent less than 50 percent of their time supervising nonunit employees, they have been included in the unit. As we explained in Adelphi: . . . an employee whose principal duties are of the same character as that of other bargaining unit employees should not be isolated from them because of a sporadic exercise of supervisory au- thority over nonunit personnel. No danger of conflict of interest within the unit is presented, nor does the infrequent exercise of supervisory authority so ally such an employee with manage- ment as to create a more generalized conflict of interest of the type envisioned by Congress in adopting Section 2(11) of the Act. Moreover, we have made it clear that such an employee is con- sidered to be in the unit only to the extent that his interests as a nonsupervisory employee are involved. Applying this standard we shall exclude as supervisors only those professional librarians who supervise other employees in the unit or who spend more than 50 percent of their time supervising nonunit employees. Although testimony was adduced by the Employer and the AAUP on both the extent and exercise of the professional librarians' supervisory authority, there is a basic conflict which the record does not contain enough detail to resolve. Professional librarians whose supervisory status has not been stipulated to, or which cannot be resolved by agreement among the parties pursuant to the criteria we have found applica- ble, will be permitted to vote subject to challenge. Though the issue is not advanced by the parties in this precise context, faculty who exercise authority over student employees whose employment is depen- dent upon, and related to, their student status, where the relationship is basically that of student and teach- er, as appears to be the case with respect to those students whose exclusion has been stipulated, are not supervisors within the meaning of the Act and will be included in the unit. Fordham University, supra. Addi- tionally, the 50-percent rule for determining exclusion on the basis of a supervisory relationship with nonunit employees, as set forth above in connection with pro- fessional librarians, appears to be applicable and to yield the same result. As noted earlier, the Employer also contends that faculty who are principal investigators are supervi- sors. A principal investigator is a faculty member who has originated a proposal acceptable to an outside agency for contract research and is responsible for its conduct. In this capacity he may hire and supervise NEW YORK UNIVERSITY other persons, including faculty. As we held in Ford- ham, supra, since such employees are not employees of this Employer, the relationship does not make the principal investigator a supervisor for the purposes of this proceeding. The status of faculty on terminal contracts is also disputed. The Employer argues that they should be excluded from the unit as lacking a community of interest in the long-range responsibilities and relation- ships which unite the remainder of the faculty. How- ever, faculty may be on terminal contract for a period as long as a year, during which period they may par- ticipate fully in all university activities. It cannot be gainsaid that they continue to have a substantial inter- est in the employment relationship. As in Manhattan College, 195 NLRB 65, there is no evidence in the record that terminal-contract faculty were not hired as permanent employees subject to termination on the same basis as other employees in the unit. They will be included since, while their employment continues, they have a substantial community of interest with their colleagues. In virtually every case since we asserted jurisdiction over universities the status of department chairmen, or heads, has been in issue. That is true here as well. Attempting to identify and resolve the complex threads, and even the nuances, of the relationship among the faculty, administration, and department chairmen is not an easy task, nor one usually suscepti- ble to a completely satisfactory conclusion. Though chairmen have a certain formal responsibility with respect to decisions on the appointment, salary, pro- motion, and tenure of full-time faculty, it appears that they act primarily as instruments of the faculty in these matters. The chairmen, in these respects, there- fore stand on the same footing as the faculty, whence their authority flows. The University's vice chancellor testified that the central issue in all personnel matters is the judgment of one's peers and that chairmen are more nearly aligned with the faculty than with the administration. The Employer, the only party contest- ing the inclusion of chairmen in the unit, does not argue to the contrary. Instead it relies on the authority of chairmen with respect to part-time faculty. However, as we have already concluded that part- time faculty must be excluded from the unit, and since there is no indication in the record that their supervi- sory responsibilities with respect to part-time faculty even approach consuming 50 percent of their time, we conclude that chairmen are not supervisors for the purpose of this proceeding and shall include them in the unit." 14 Chairman Miller and Member Fanning, who would include part-time faculty, would exclude chairmen and directors on the ground they have authority to hire, reappoint, terminate, promote, and fix the salary of part- 9 The Intervenor and the Employer would treat di- rectors of graduate and undergraduate programs in the same manner as chairmen while the AAUP, which favors inclusion, would consider them on their own merits." Program directors are appointed in large de- partments which, because of their size, require a fur- ther breakdown. Directors have much the same duties and function as chairmen and frequently act in con- sultation with the department chairman. We have al- ready concluded that chairmen are not supervisors for the purpose of this proceeding; the argument for the exclusion of directors rests on the same basis. There- fore, and since the only party which would treat direc- tors on their own merits urges inclusion, we conclude that directors are not supervisors and shall include them in the unit. In view of our conclusion that a universitywide unit including the law school would be appropriate, as well as separate law school and university units, we shall, as indicated below, direct separate elections in the following groups of employees, as further defined by the stipulations of the parties, excluding from each group part-time faculty, guards, and supervisors as defined in the Act. Group 1. All full-time faculty, including profession- al librarians and faculty on terminal contracts, ex- cluding part-time and law school faculty. Group 2. All full-time faculty of the law school, excluding the law librarian and part-time faculty. The employees in voting group 2 will be asked to answer the following 3 questions on their ballots: (1) Do you desire to be included with the remain- der of the faculty in a universitywide unit, for the purposes of collective bargaining? (2) In the event that a majority of the law faculty wish to be included in a universitywide unit, do you desire to be represented for the purposes of collective bargaining by the AAUP, by the UFCT, or neither? (3) In the event that a majority of the law faculty do not wish to be included in a universitywide unit, do you desire to be represented for the purposes of collective bargaining by the FLA? If a majority of the employees in group 2 vote against inclusion in the universitywide unit, we then find that a separate law school unit is appropriate and their votes with respect to the choice of the representa- tive in the universitywide unit will not be counted. In these circumstances, if a majority in voting group 1 selects representation by either the AAUP or the UFCT, we then find that group also is a separate appropriate unit. If the employees in voting group 2 vote to be included in the universitywide unit, then time faculty or effectively to recommend such actions 15 Contrary to the Employer's contention, the parties have not stipulated that all directors be treated like chairmen That stipulation referred to a group of eight directors listed in Joint Exh 3 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their votes with respect to representation in that unit will be pooled with those of voting group 1 in a single overall unit, which, in the circumstances, we find to be appropriate, and their votes with respect to repre- sentation in the separate unit will not be counted. The Regional Director is instructed to issue a certification or certifications as decided by the results of the elec- tion. All parties have joined in requesting that any elec- tion be directed during the University's fall or spring terms, but not during the 30-day period immediately following the beginning of the fall term or preceding the close of the spring term. We find this request has merit and shall direct the elections be held on a date to be determined by the Regional Director, consistent with these guidelines, among the employees in the voting groups who are employed during the payroll period immediately preceding the date the Notice of Elections is issued.16 [Direction of Elections and Excelsior footnote omitted from publication.] CHAIRMAN MILLER, dissenting: Like my brother Fanning, I would include the part- time faculty, but I cannot subscribe fully to his ratio- nale. Regular part-time faculty members are "employ- ees" under our Act, and thus have the right to choose, if they wish, to be represented by a labor organization for purposes of collective bargaining, in some unit which we would find appropriate. The majority, in excluding them from a unit of full-time faculty mem- bers, thus seems inevitably to be heading down the road to permitting them to be represented only in units limited to part-time faculty members. I am very pessimistic about the chances of bargaining being fruitful in two separate units of this character. The existing disparities in compensation, degree of participation in governance, eligibility for tenure, and working conditions strongly suggest that, particularly if part-time faculty members are to be separately rep- resented, they will seek to improve their lot by nar- rowing those differences. Meanwhile, full-time faculty members, also separately represented, will wish to maintain and enhance the economic benefits and job security which they now enjoy. The universi- ties, having no bottomless well of funds with which to 16 At the close of the hearing the Employer made 12 motions, several of which were joined in by both Petitioners Those not specifically ruled upon fall into the following general categories requesting ( 1) dismissal for want ofjunsdiction , (2) dismissal of either or both petitions because of an inappro- priate unit ; and (3) exclusion of part-time faculty The substance of these motions has been ruled upon in the body of this decision Those motions not specifically ruled upon supra are hereby denied as lacking merit provide everything that all groups ask, will be forced to seek accommodations as between these two groups, each of which will be competing for the same universi- ty dollars. But how can such an accommodation be reached if the two groups are to be separated and autonomous, and no one is to have the exclusive agen- cy to speak for both? To some degree, of course, we place similar obsta- cles in the path of fruitful collective bargaining any time we sanction units which are less than employer- wide in scope. Thus, as Member Fanning points out, the decision to permit the law school faculty to opt for a separate unit is also, in a small way, fragmenta- tion-or at least splintering. But that decision, in my view, was compelled by long-established unit determi- nation policies with respect to craft and professional groups. And it was consistent with the legislative his- tory of the Act, which demonstrates that Congress did not wish us to ignore traditional craft and professional interests, even though the result of recognizing those interests might provide less than optimum industrial relations stability. But nowhere in the legislative history of this Act, and nowhere in the over 200 volumes of this Board's decisions have I found any suggestion that part-time employees should be denied the right to vote for a union which seeks to represent them as part of an otherwise unquestionably appropriate unit. Craft or professional employees, like the law school faculty here, are invariably at least permitted the op- tion to be represented on such an overall basis when a union seeks to so represent them. But here the ma- jority slams the door on even the possibility that both part-time and full-time faculty wish to be commonly represented in a unit that offers the best possibility for long run labor relations stability. It thus seems to me that the majority errs in two ways-they disenfranchise part-time faculty mem- bers, and they disallow a unit which offers the opti- mum in bargaining stability. For these reasons, I dissent from that portion of the majority's findings herein. MEMBER FANNING, dissenting in part: Unlike the majority, I would include regular part- time and full-time faculty in the same bargaining unit. I cannot agree that such a unit would impede effective collective bargaining. I would find that, as in industry, regular part-time and full-time employees, who per- form essentially the same work, not only may, but must, be included in the same unit in the absence of a contrary agreement among the parties. In my view, the very factors the majority relies on require such a result. The central fact is that all the faculty, full- and part-time alike, are teachers. As such they are profes- NEW YORK UNIVERSITY sionals . They may, or may not, have additional and separate claims to professional status as doctors, at- torneys, scientists, or members of other of the learned professions . But that is a characteristic common to both full- and part-time faculty. As teachers, the essential duties of full- and part- time faculty are the same . Since our concern must properly be directed primarily towards the faculty's community of interest in the performance of this function , and not other functions , tangential matters only indirectly related to the faculty's role as teachers should not be allowed to obscure our judgment. The majority argues that part-time faculty lack a community of interest with their colleagues in four specific areas: compensation ; university governance; eligibility for tenure ; and working conditions. The majority also contends that part-time faculty (like most part-time employees) have other primary work interests. This last requires no lengthy rebuttal. The remaining factors, however, require more detailed analysis, not only with respect to the facts but also as to the majority's major premises and the conclusions their analysis has yielded. The pay of part-time faculty is described, and dis- missed, by the majority as a "modest sum" corres- ponding to a "respectable honorarium ." The record indicates a salary range of from $750 to $2,000, al- though at oral argument it was placed at $1,000 to $1,500 without contradiction . Almost in the same breath, however, the work performed by part-time faculty is described as limited to 2 or 3 credit hours per semester as compared to 50 or 60 hours per week for full-time faculty, suggesting the full-time faculty do 20 or 30 times as much work. The 50- or 60-hour figure was advanced by the University's vice chancellor, who included: reading at home to expand a particular area of knowledge; wor- rying about problems while lying awake at night; thinking on the subway, discussions with friends; and even some of the time when faculty members might say they were doing nothing, on the ground they were " ... also engaged in an effort to rid themselves of rigidities in their conception of scientific problems." Part-time faculty members, I should suppose, read, lie awake, talk to friends, ride subways, and even relax. Conveniently, the vice chancellor concluded that to the extent part-timers engaged in such activities the " . . . school would feel that it was unrelated to its involvement, or that it might rather be related to the primary area of employment of that individual." I am unwilling to adopt the University's "feeling" that such universal activities can be credited to full- time, and not part-time, faculty in order to distinguish the work of the two. Moreover, I note that , at most, the facts the majority relies on establish either a d1s- 11 proportionate allocation of work or of pay, but not both. In my view, the facts are insufficient to establish either, and instead suggest that both the work and pay of part-time faculty are sufficiently related to the work and pay of full-time faculty to support the inclu- sion of both in a single unit. However, as further justification for its position, the majority points to the fact that part-time faculty are not expected to engage in research and citizenship. We hold elsewhere in this decision that, whatever re- search and citizenship responsibilities the full-time fa- culty may have, these responsibilities are ancillary to the basic employment relationship because the result to be achieved through such activities is not con- trolled by the University. It seems clear that, for the purposes of the Act, the faculty are professional teachers and not professional researchers or profes- sional citizens. In fact, the parties have stipulated the exclusion of "research scientists" in all ranks. Nor, even should the majority accord greater weight to these activities than I deem proper, could they be considered controlling. For the record makes it clear that research activities are not uniformly required of all full-time faculty members who all parties have agreed belong in the unit. My analysis of the facts surrounding the part-time faculty's lack of a formal voice in university govern- ment, which the majority finds particularly signifi- cant, also compels me to conclude that a single unit is appropriate . The telling fact, which the majority has overlooked, is that not all full-time faculty members whom the parties have agreed to include are entitled to vote at faculty meetings or for representation on the faculty council and the university senate. But that is not all . As both the majority and I have found above, these groups lack ultimate authority; a factor which must be weighed in determining their impact on our unit determination . Moreover, the faculty is in a minority role in the university senate, where its rep- resentatives are outnumbered by those of the adminis- tration and the student body. This matter of university governance is complicat- ed further by the majority's seeming conclusion that curriculum development, degree requirements, selec- tion of department chairmen, and admission require- ments are mandatory bargaining requirements. At least, since the majority relies on the fact that the part-time faculty has no formal voice in these matters, I must presume that is the majority's view. For, if it is not, then these subjects are not necessary items for negotiation between the University and the faculty's collective-bargaining representative, and thus would have little bearing on community of interest within the bargaining unit . But, if they are mandatory bar- gaining subjects, then they are subjects for negotia- 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion between the University and the collective-bar- gaining representative of the faculty, whether or not part-time faculty are in the unit. In such circumstanc- es these factors weigh in favor of, not against, the inclusion of part-time faculty in the unit; since deci- sions in these areas affect their interests. This latter point presents head-on a question the majority ignores; if the regular part-time faculty is excluded here, what is the status of its members and what are their rights under the Act? If they are em- ployees, and there seems to be no basis to conclude that they are not, they have the right to organize and the consequent rights to be protected in their legiti- mate organizational activities and to bargain with their employer over their terms and conditions of em- ployment. In my view, requiring the University to bargain over the identical subject matter with the col- lective-bargaining representatives of different fac- tions of the same faculty will present the very impediments to effective collective bargaining the majority is trying to avoid. All these preceding factors aside, however, the ma- jority has one major argument left: only full-time fa- culty are eligible for tenure. The attainment of tenure is an important consideration in a faculty member's professional life and many of his activities may be shaped by it. Nonetheless, the significance of this fac- tor, too, is questionable. The simple truth is that not all full-time faculty, who the parties have agreed be- long in the unit, are on a tenure track. But even if all those included in the unit were eligible for tenure, it would not follow that those who were not had no comparable interest in the unit. Part-time faculty members may be appointed for a semester at a time, but over half teach in both semes- ters of the academic year, and the same proportion return the succeeding year. It was uncontested at oral argument that some part-time faculty members have taught at the University for more than 20 years. That should be sufficient to demonstrate a legitimate con- tinuing interest in any unit. Tenure itself is no more than a measure of continuity of interest, and an ex- treme one at that, not whether such interest exists. It insures a member of the faculty that in normal cir- cumstances his job is guaranteed; it does not insure that the employee himself will not sever the employ- ment relationship. I suspect that many tenured mem- bers of the faculty have come and gone while part-time members have stayed and maintained their relationship with the University. But we are not even concerned with tenure, only tenure eligibility, and that, as many faculty members can attest,17 is no guar- antee that it will be accorded. '7 E g , the terminal contract faculty included in the unit here In sum, I can find no valid reason among those set forth by the majority for its blanket exclusion of part- time faculty. The factors they rely on-compensation, working conditions, university governance, eligibility for tenure-provide no valid basis for drawing a via- ble distinction between the interests of full- and part- time faculty. To the contrary, those factors the majori- ty places the most weight upon demonstrate the unity of interest between both groups. Their basic func- tion-teaching-provides the necessary and overrid- ing unifying interest. As employees in a profession they are essentially no different from employees in any profession for the purposes of the Act. We have not found it necessary to exclude regular part-time employees in industry. Instead, we have found that they must be included in the appropriate unit in the absence of an agreement among the parties to exclude them. Not only have we previously held that we would apply the same rules in making unit determinations in university cases as we have historically in industry,18 but we have also specif- ically held that regular part-time faculty must be in- cluded in units with the full-time faculty unless, as in industry, the parties have agreed to exclude them.l9 In Syracuse University a majority of the Board re- lied on the close relationship and community of inter- est between members of the law faculty and their practicing colleagues in devising a special voting pro- cedure to insure the law faculty was not unwillingly included in an overall unit.20 Yet here regular part- time members of the law faculty, who epitomize that special relationship between theory and practice, which a majority found so compelling in Syracuse, are to be excluded from the unit on the ground they lack a community of interest with their full-time col- leagues. Surely part-time faculty have at least as great a community of interest with the full-time faculty as do librarians, yet both the majority and the American Association of University Professors would exclude the one while including the other. The majority, I think, does not take sufficient ac- count of the rights of the many hundreds of regular part-time faculty whom they would disenfranchise here. For practical purposes they have made the part- time faculty subject to the whims of an elite corps of the faculty unless they organize in a separate unit, which can only create those impediments to effective collective bargaining the majority would avoid. In- deed, the majority, to the extent its decision suggests that the full-time faculty unit would be bargaining over the terms of employment and working condi- 18 C W Post Center of Long Island University, 189 NLRB 904 19 University of New Haven, Inc, 190 NLRB 478. 20 204 NLRB No. 85, Members Fanning and Penello dissenting in relevant part NEW YORK UNIVERSITY tions of the part-time faculty, is violating the spirit of the Supreme Court's warning that: it would be clearly inconsistent with the majority rule principle of the Act to deny a mem- ber of the unit at the time of an election a voice in the selection of his bargaining representative. [Allied Chemical & Alkali Workers of America, Local Union No. I v. Pittsburgh Plate Glass Co., 404 U.S. 157, 175.] My conclusion that regular part-time faculty be- long in the same unit as their full -time colleagues is buttressed by purely practical considerations. The majority quotes with approval the Board's observa- tion in Kalamazoo Paper Box, 136 NLRB 134, that the unit determination creates the context in which col- lective bargaining will take place and that if the deter- mination does not relate to the factual situation with which the parties must deal it will undermine stable and effective collective bargaining . I agree. But it is precisely because I agree that I am most firmly con- 13 vinced that the majority's ultimate conclusion is un- sound. The Board has already found separate law school units appropriate. In Syracuse, supra, the Board inti- mated it would look favorably on petitions for sepa- rate representation in other professional schools. Indeed, the majority's reliance here on such matters as decisionmaking with respect to admissions and de- gree requirements, which vary from school to school, and the selection of department chairmen suggests that the determination of an overall unit here may be faulty by their standards. If the Board proceeds with this process of fragmen- tation-from university, to law school, to professional school, to school and departmental units-and then further breaks these units down in terms of full- and part-time faculty, it is difficult to see how any realistic, let alone stable and effective, collective bargaining can take place. Accordingly, I dissent from the majority's failure to include part-time faculty in the same unit with their full-time counterparts. I would include them.