University of Great Falls

83 325 NLRB No. 3 UNIVERSITY OF GREAT FALLS 1 42 U.S.C. § 2000(bb). 2 The Board also granted review with respect to whether asserting jurisdiction violated the Religious Freedom Restoration Act. Subse- quently, however, in City of Boerne v. Flores, 117 S.Ct. 2157 (June 25, 1997), the Supreme Court concluded that RFRA was unconstitu- tional as it contradicted principles necessary to maintain the separa- tion of powers and exceeded Congress’ enforcement powers granted to it by Section Five of the Fourteenth Amendment. Consequently, we find that the issue of whether the Board’s assertion of jurisdic- tion over the Employer violates RFRA is moot. 3 The Association of Southern Baptist Colleges and Universities filed an amicus curiae brief in support of the Employer, and Loma Linda University, Loma Linda University Medical Center, Pacific Union Conference of Seventh-Day Adventists, and Adventist health also filed an amicus curiae brief on behalf of the Employer. 4 263 NLRB 1248 (1982). 5 298 NLRB 280 (1990). 6 See also Loretto Heights College, 264 NLRB 1107 (1982), enfd. 742 F.2d 1245 (10th Cir. 1984). 7 309 NLRB 842 (1992). 8 Although not relied upon by the Employer, we also find Lewis & Clark College, 300 NLRB 155 (1990), to be distinguishable. There, the Board found that faculty effectively controlled academic matters, as nearly all its recommendations were routinely approved, and some academic matters were approved without making rec- ommendations to higher management. Faculty made academic deci- sions or effective recommendations in the following academic areas: teaching methods, grades, retention standards, scholastic standards, matriculation standards, admission standards, curriculum and course content, degree and degree requirement, teaching assignments, grad- uation requirements, academic calendars, departments of instruction, honors programs, scholarship, and financial aid. For example, the faculty approved a new core curriculum, approved new minors, and Continued University of Great Falls and Montana Federation of Teachers, AFT, AFL–CIO, Petitioner. Case 19–RC–13114 November 8, 1997 DECISION ON REVIEW AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS On February 20, 1996, the Regional Director for Re- gion 19 issued a Decision and Direction of Election in which he concluded that asserting jurisdiction over the Employer was warranted under NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979); that asserting jurisdiction would not violate the Religious Freedom Restoration Act (RFRA);1 and that the University’s faculty members were not managerial employees as de- fined in NLRB v. Yeshiva University, 444 U.S. 672 (1980). Thereafter, in accordance with Section 102.67 of the National Labor Relations Board’s Rules and Regulations, the Employer filed a timely request for review of the Regional Director’s Decision and Direc- tion of Election. By Order dated April 2, 1996, the Board denied review of the Regional Director’s con- clusion that asserting jurisdiction was warranted under Catholic Bishop but granted review with respect to the managerial status of the faculty.2 Having carefully considered the entire matter, in- cluding the briefs on review,3 the Board, for the rea- sons set forth in the Regional Director’s Decision (rel- evant portions of which are attached as an appendix) has decided to affirm the Regional Director’s conclu- sion that the faculty members are not managerial em- ployees as defined in Yeshiva and instead are employ- ees subject to the Act. In affirming the Regional Direc- tor, the Board notes that the facts in the instant case are similar to those in Florida Memorial College,4 and St. Thomas University,5 in which the Board found that the faculty members were not managerial employees. In Florida Memorial College, the curriculum was not within the faculty’s absolute control, and all curricular proposals had to be approved by the administration. In addition, faculty members had no effective control over admissions policy, graduation requirements, or matters relating to the retention, suspension, probation, or expulsion of students. In St. Thomas, faculty members did not have abso- lute control over the curriculum, as all curricular rec- ommendations and every proposal regarding academic policy needed to be approved by the division chairs. Division chairs certified students for graduation, con- sulted with faculty on syllabus preparation and selec- tion of textbooks, and reviewed proposed class sched- ules. Further, the administration unilaterally established a law school; eliminated entire degree programs; pro- posed, drafted, and adopted the vast majority of aca- demic policy and curriculum changes; and played the predominant role in determining curriculum, grading methods, faculty hiring, and tenure. The Board found that the evidence in St. Thomas, similar to the evidence here, did not establish that the faculty, through com- mittees, had effectively recommended or had been the moving force behind the formulation and adoption of policies, and concluded that the faculty members did not exercise managerial authority as set forth in Ye- shiva.6 Further, Elmira College,7 relied on by the Employer, is distinguishable. There, excluded division chairs sug- gested class schedules, set the number of sections which a faculty member could teach, made rec- ommendations regarding salaries to the administration, and planned the academic calendar. Unlike here, how- ever, it was the faculty members who had final author- ity for establishing standards for developing and ap- proving new courses, approving changes in course lev- els and changes in majors and minors, adding courses, setting credit hours, course content, size of classes, curriculum, grading of students, degree requirements, admission and graduation standards, major and minor requirements, and approving applications for waiving academic requirements. Further, unlike here, there was clear evidence that faculty recommendations were gen- erally followed.8 VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00083 Fmt 0610 Sfmt 0610 D:\NLRB\325.007 APPS10 PsN: APPS10 84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD conversion of the music school to a department, and changed foreign language, math, and writing policy requirements. 9 While the above case was pending before the Board, the Em- ployer filed a motion to reopen the record with respect to the Board’s decision to assert jurisdiction under NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). The Petitioner filed a re- sponse. We deny the Employer’s motion to reopen, as the evidence the Employer seeks to add to the record would not warrant a dif- ferent result in this case. 1 The parties’ briefs were considered. 12 The dean of outreach studies is not teaching this year but will teach next year. Five deans teach full loads and two teach a three- quarters load. 13 Hereafter, the term ‘‘program director’’ shall be used to encom- pass the computer laboratory manager as well as those whose title is program director. 14 Since the conversion to university status, the positions held by Kottel are those of dean of the college of professional studies and dean of the school of human services. Accordingly, the Regional Director’s finding that the petitioned-for faculty members are not managerial, as defined in NLRB v. Yeshiva University, is affirmed and the case remanded to the Regional Director for further appropriate action consistent with this decision.9 APPENDIX DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the Na- tional Labor Relations Act, as amended, a hearing was held before a hearing officer of the National Labor Relations Board (the Board). Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its authority in this proceeding to me. Upon the entire record in this proceeding,1 I find: 1. The hearing officer’s rulings made at the hearing are free from prejudicial error and are hereby affirmed. 2. 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. 3. The labor organization involved claims to represent cer- tain employees of the Employer. 4. A question affecting commerce exists concerning 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. 5. The following employees of the Employer constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All full-time faculty including professors, associate pro- fessors, assistant professors, instructors and associate faculty and all part-time associate faculty employed by University of Great Falls in Great Falls, Montana, but excluding part-time adjunct faculty, deans, nonprofes- sional employees, guards and supervisors as defined in the Act. The University of Great Falls (UGF) is a liberal arts uni- versity in Great Falls, Montana, which awards both bach- elor’s and master’s degrees. A college founded in 1932 by the religious order of the Sisters of Providence, St. Ignatius Province (the Order), the institution attained university status in 1995. It is an open admissions institution. As amended at the hearing, the Petitioner seeks a unit of all full-time faculty including professors, associate profes- sors, assistant professors, instructors and associate faculty, and all part-time associate faculty, but excluding part-time adjunct faculty, deans, nonprofessional employees, guards, and supervisors as defined in the Act. The parties stipulated the exclusion of adjunct faculty on the grounds they share no community of interest with the faculty sought. The parties also stipulated the inclusion of part-time associate faculty on the grounds they share a com- munity of interest with full-time faculty. The parties stipu- lated the provost/academic vice president and president are managerial employees who should be excluded from the unit. B. Lee Cooper is the provost/academic vice president and Frederick Gilliard is the UGF president. Managerial Status of Faculty Deans Reporting to the president are the provost/vice president of academic affairs (provost), the vice president for develop- ment, the vice president for finance and the vice president for student services. The registrar reports to the provost. Deans perform administrative functions related to the oper- ation of the academic schools or colleges. They are full-time members of the faculty, with full faculty rights and privi- leges. All but one dean teach.12 Deans report to the provost/vice president of academic affairs (provost). The only other faculty who report directly to the provost are the pro- gram directors and the computer laboratory manager.13 Deans are appointed by and serve at the pleasure of the provost. The faculty handbook requires that the provost ob- tain a consultative written vote from the full-time faculty when selecting a dean and specifies that appointment nor- mally should be in conformity with the faculty’s judgments. Whether this in fact has been the case was not given. There is no predetermined term of office. It appears that the assign- ment as dean tends to be fairly long term. For example, Dean Deborah Kottel has served as dean (a position formerly enti- tled ‘‘division head’’) for 9 years.14 Should a dean be re- moved from that position, the individual continues employ- ment as a teaching faculty member. Four of the deans are tenured; the others are tenure-track faculty. Deans are treated as are other faculty as far as consideration for promotion and tenure. Seven of the deans are on 9-month contracts, as are nondean faculty. One dean has a 12-month contract. Deans teaching full loads receive a stipend in addition to their fac- ulty salary. The average stipend is 9.15 percent of their con- tract salary, and can be as much as 17.2 percent of salary. The college and graduate school deans and the dean of out- reach studies receive summer stipends of $5000. Undergradu- ate school deans receive stipends of $2520. Deans oversee the college and/or schools for which they are responsible. Deans and program directors are the only faculty whose performance is evaluated by the provost. Pro- gram directors are evaluated by the provost only with respect VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00084 Fmt 0610 Sfmt 0610 D:\NLRB\325.007 APPS10 PsN: APPS10 85 UNIVERSITY OF GREAT FALLS 15 One of these two instances involved an adjunct professor. to their duties as directors. With respect to their duties as teaching faculty, they are evaluated by their deans. Deans, on the other hand, are evaluated solely by the provost. Deans perform annual written performance evaluations for the faculty of their schools or colleges. These are in part based upon deans’ classroom observation of faculty teaching and upon student evaluations which deans review. Deans meet with faculty members to discuss the evaluations. These evaluations become part of faculty members’ personnel records and are used in making promotion and tenure deci- sions. Deans make recommendations regarding tenure to the faculty status committee, and regarding faculty promotions to the promotions committee. The latter is composed of the members of the faculty status committee plus the dean of the faculty member being evaluated. Independently, deans may and do discipline faculty, both orally and in writing. Written reprimands are retained in fac- ulty members’ personnel files. Oral reprimands may be me- morialized in writing and similarly retained. Kottel rec- ommended the termination of three faculty members; all three recommendations were acted upon without independent investigation by higher management. In two instances, she advised professors to seek counseling, and her advice was followed.15 Deans are significantly involved in course scheduling. Fac- ulty submit course schedules to their deans. These are re- viewed by deans to ensure there are sufficient course offer- ings. Deans may determine that additional classes should be taught and arrange for full-time faculty or adjunct faculty to teach them. Deans also may and do require faculty to change their class times in order to avoid conflicts and ensure proper scheduling overall. Once the course schedule is printed, changes may be made only upon authorization of the dean. Deans independently determine whether to cancel classes based on enrollment, even over the objection of the faculty member offering the course. With the input of their faculty, deans draw up budget pro- posals for their schools for submission to the provost. Deans control and administer their schools’ budgets. Deans are ac- countable for their performance in handling their budgets and are specifically evaluated on this responsibility. Deans authorize expenditures for school needs, including part-time faculty and overload staffing expenditures. All pur- chase orders must be approved by deans. Deans determine whether to allow open accounts at the UGF bookstore for faculty purchases. Deans must approve faculty travel. While the vice president for finance also signs off on faculty travel requests, his approval is a pro forma adoption of the dean’s approval. Work orders for work of any kind, even such minor tasks as changing light bulbs, must be signed by the dean and approved by the vice president of finance. Deans determine whether adjunct faculty will be retained to teach classes. Their decisions as to whether certain classes should be taught by adjunct faculty, or offered at all, is influ- enced by their responsibility for administering their budgets. Deans recommend the hiring and retention of specific ad- junct faculty, and in virtually all cases, the deans’ rec- ommendations are accepted routinely by the provost. The UGF bookstore will not take a professor’s order for class textbooks unless the dean has approved the request. Kottel testified that while she generally accepts faculty mem- bers’ book order requests, there have been several occasions when she has not permitted the requested books be ordered. Student applications for individualized study must be ap- proved by the dean. Deans must approve home study courses and special student projects, summer session courses, and student course challenges and waivers of courses. While nondean faculty, either as a whole or in committee, do not pass on applicants for graduation, students must be approved for graduation by deans. Formal student grievances regarding faculty must be pre- sented to the school dean prior to submission to the griev- ance committee. Deans have authority to resolve student grievances. Kottel testified that 50 percent of formal student grievances are resolved at her level. Deans must file a report with the vice president of student affairs detailing their action and position on grievances; these reports become part of the grievance record. Deans also hear and adjust student com- plaints regarding faculty which are not brought as formal grievances. In resolving student grievances or informal com- plaints, deans independently may direct involved faculty members to change their classroom conduct, their manner of interacting with students, or their style of commenting on students’ work. It appears faculty comply with such direc- tives. The deans of the undergraduate colleges orient new faculty in day-long sessions which cover all aspects of faculty duties and responsibilities. Kottel prepared the orientation handbook which is given all faculty. While deans are required to give recommendations on fac- ulty promotions and tenure requests, it is unclear to what ex- tent their recommendations are effective. In all cases where the dean does not recommend promotion or tenure of an eli- gible faculty member, the provost must consult with the dean and the faculty member. Monthly, all deans convene in a group called the council of deans. Deans there discuss a variety of topics, including policy matters and broad faculty-related issues. It is unclear whether deans formulate, recommend, or determine the means to effectuate institutional policy through their discus- sions at these meetings. Program Directors Program directors have responsibility in particular program activities and are expected to ensure the tasks of their pro- grams are carried out. Cooper testified generally and without further explication that their responsibilities are comparable to those of deans, albeit within a narrower programming scope. Exactly what their duties and responsibilities entail was not described. Six of the program directors are not deans. These are the director of the English writing program; the two codirectors of the criminal justice program; the director of master in pro- fessional counseling program; the director of wellness and in- tramural programs; and the computer laboratory manager. A new director position has been established, that of director of the University research center, and will be filled by a nondean faculty member. Assignment as a program director is a continuing assignment. Program directors report to the provost vis-a-vis their pro- grams. Four of the nondean program directors have faculty reporting to them. While an Employer witness generally as- VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00085 Fmt 0610 Sfmt 0610 D:\NLRB\325.007 APPS10 PsN: APPS10 86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 The faculty handbook is the fundamental policy guide for fac- ulty and is made part of faculty contracts. 17 This year, the faculty status committee representative on the budget committee is a dean. 18 Faculty grievances in other areas are heard by individual griev- ance committees specially convened for specific grievances. Such committees are composed of the vice president for student services as chair, and four additional members appointed by the president, only one of whom is a faculty member. serted that these directors have authority to discipline report- ing faculty comparable to deans’ disciplinary authority, no example was provided in which a nondean program director independently disciplined a faculty member or effectively recommended such action. Faculty who report to nondean di- rectors are not evaluated by the directors but rather by their dean. Program directors carry full teaching loads and are evalu- ated with respect to their teaching duties by their deans. All but four of the program directors receive stipends of $2520 or $2700; the other four receive $1260 or $1680. Faculty Authority and Responsibilities Faculty participate in academic governance through facultywide votes on certain matters and through membership on various committees. Faculty committee members have one vote each. Inasmuch as deans and program directors are fac- ulty with full faculty rights, they may vote for faculty rep- resentatives to those committees on which faculty are se- lected through a faculty vote. Inasmuch as they are faculty, deans and program directors may hold faculty positions on committees either by faculty election or by administrative ap- pointment. There are four standing campus committees: faculty status, curriculum and academic affairs, admissions, scholarships and financial aid; and student rights and responsibilities. The president is an ex officio member of all committees except the faculty status committee. The faculty handbook16 speci- fies that the creation or dissolution of standing committees involving faculty requires a two-thirds vote of the faculty. In addition to standing committees, there are several ongoing ad hoc committees. Faculty Status Committee The faculty status committee is a seven-member commit- tee composed entirely of faculty. It convenes once monthly and at other times as needed. Committee members are elect- ed by the faculty for 3-year terms. Currently, the faculty sta- tus committee includes three deans. The present committee chair is not a dean. This committee acts in an advisory capacity to the provost on such matters as faculty leaves and sabbaticals, faculty promotions and tenure actions, and faculty terminations. It recommends to the provost regarding general and specific faculty policies. Annually, the committee selects one of its members to serve as the committee’s representative on the campus budget committee.17 The bylaws specify the commit- tee is to counsel with the vice president for student services on matters and policies pertaining to faculty-student relations. The committee hears and assists in resolving faculty griev- ances relating to promotion, tenure, and retention.18 According to the faculty handbook, dismissal of non- adjunct faculty is preceded by ‘‘informed inquiry’’ by the faculty status committee which may, failing to effect an ad- justment, determine whether in its opinion dismissal proceed- ings should be undertaken, without its opinion being binding upon the president. No evidence was presented as to whether the committee has in fact rendered such opinions and, if so, whether those opinions have been followed. The bylaws of the faculty status committee specify that the committee is to advise the academic vice president on all contemplated em- ployment terminations. Provost Cooper, who came to UGF in September 1993, has terminated two nontenured non- adjunct faculty. In neither case did he notify and consult with the faculty status committee. No tenured faculty member has been terminated since Cooper’s arrival. Recommendations of the faculty status committee are made in writing to the provost. In turn, the provost makes recommendations to the president, who recommends to the board of trustees. The board of trustees has ultimate deci- sion-making authority in matters recommended by this com- mittee. Cooper testified without contradiction that all rec- ommendations of the faculty status committee with respect to leaves and sabbaticals have been granted. Faculty submit re- quests for sabbaticals to their dean, who recommends action to the faculty status committee. The dean is responsible for ensuring the requesting faculty member can be replaced. Kottel testified that without the dean’s approval, a sabbatical request would not be granted. Sabbaticals granted may not exceed the amount budgeted for this purpose by the board of trustees. Since Cooper’s arrival at UGF, there have been four fac- ulty promotions. In three of these cases, the committee’s rec- ommendations were implemented. In the fourth instance, the faculty status committee felt the applicant did not have suffi- cient graduate credits to qualify for the promotion and rec- ommended the promotion be denied. Based on his own re- view of the committee’s rationale and the applicant’s creden- tials, Cooper disagreed with the committee’s assessment and communicated his concerns to the committee. The committee adhered to its recommendation. Cooper then advised the president to grant the promotion despite the committee’s rec- ommendation. The president agreed with Cooper. Cooper’s and the president’s recommendations to promote the individ- ual went to the board of trustees, along with the committee’s recommendation that promotion be denied. The promotion was granted. There have been five grants of tenure since Cooper’s arriv- al at UGF. In one of these instances, the faculty status com- mittee recommended a delay in granting tenure. Cooper dis- agreed with the recommendation based on his own review of the committee’s rationale; the faculty member’s credentials, abilities, and contributions; and the credentials, abilities and contributions of others to whom tenure had been granted. The president and board of trustees were informed of the conflicting recommendations and implemented Cooper’s rec- ommendation that tenure be granted. The faculty status committee may and does establish var- ious subcommittees to address specific issues or projects. For example, prior to the recent conversion to university status, an all-faculty subcommittee of the faculty status committee worked on the governance process for academic operations. The effectiveness of its recommendations in this area was VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00086 Fmt 0610 Sfmt 0610 D:\NLRB\325.007 APPS10 PsN: APPS10 87 UNIVERSITY OF GREAT FALLS 19 Pursuant to art. X of the faculty handbook, the faculty may amend the handbook by a two-thirds vote of the faculty; amend- ments involving other than intrafaculty matters must be submitted by the president to the board of trustees for final approval. 20 The committee’s bylaws specify three student committee mem- bers, but witness testimony and an employer exhibit listing the com- mittees and membership indicate there are six students as the com- mittee currently is configured. 21 The exact testimony on this point is as follows: Asked by Petitioners counsel whether Cooper would agree that faculty involvement in curriculum is limited to reviewing, advising, and making recommendations, Cooper concurred, adding that ‘‘. . . in my experience at the institution, there has never been a faculty recommendation [on curriculum] that has been rejected by any of the places along the way.’’ not described. There is a governance subcommittee which has been working on proposals to restructure the system of faculty committees. The subcommittee’s proposal has been approved by the faculty status committee and will go to a full faculty vote in the spring of 1996. The proposal includes the creation of an executive committee, despite Cooper’s suggestion that there be no such committee in the new para- digm. Even should this proposal pass the full faculty, it must be approved by the administration. Another subcommittee has worked on rewriting the faculty handbook. The chair of the faculty status committee has chosen to table that project until other issues have been settled. Final proposals of subcommittees are submitted to the fac- ulty status committee for approval. Certain matters approved by the faculty status committee are passed to the full faculty for vote, as would be the case in the matter of governance changes or faculty handbook revisions.19 The faculty status committee serves as a nominating com- mittee for faculty vacancies on the other standing commit- tees. Additional nominations may be made from the floor. No information was given with respect to this committee’s actual activities related to its function of counseling with the vice president for student services on matters and policies pertaining to faculty-student relations. Curriculum and Academic Affairs Committee The curriculum and academic affairs committee (CAAC) is an advisory body which recommends academic policies re- lating to curriculum, degree requirements, research, academic regulations regarding such matters as examination and grad- ing policies, and other areas related to the educational proc- esses within those programs of study approved by the board of trustees. Final decisions on the CAAC’s recommendations rest with the board of trustees or, if so delegated by the board, with the president. The CAAC is composed of seven faculty members, elected by the faculty, and six students appointed by the student sen- ate.20 Faculty committee members have one vote each, while student members have one-half vote apiece. The provost, reg- istrar, and library director are ex officio nonvoting members. Faculty thus account for 70 percent of the committee’s vote. Elected members serve for 3-year terms. Meetings are held at least monthly. There are three categories of academic change, two of which (categories I and II) require action by the CAAC. Cat- egory I deals with academic changes affecting the total aca- demic program; Category II deals with academic changes af- fecting the requirements for majors, minors, or associate de- grees; and Category III includes all nonsubstantive academic changes such as changes in course titles, numbers, and de- scriptions. The establishment or discontinuance of degree programs or of majors and minors are board of trustee matters. Proposals in these Category I areas may be presented to the CAAC by its members; deans; any member of the faculty, staff or ad- ministration; and students. The CAAC examines the proposal and may invite persons to testify before it. If the CAAC agrees the proposal is acceptable it refers the proposal to the schools for their consideration and recommendations. After receiving decisions and recommendations from the schools, the CAAC either passes or denies the proposal. A proposal rejected by the CAAC on its second vote may not be resub- mitted for 12 months. If passed, the proposal is submitted to a full faculty vote. If approved by the faculty, the proposal is submitted to the provost who approves or disapproves. If the proposal is denied by the provost, it is resumed to the CAAC along with reasons for the denial. The CMC then re- turns the proposal to the originator, along with the reasons for denial and suggestions for improvement. If the provost approves the proposal, he forwards it to the president with his recommendation it be presented to the board of trustees. Should the president disapprove, the proposal returns to the provost and thence to the CAAC which in turn returns the proposal to the originator. Category I changes which affect distribution requirements, interschool degree programs, or substantive academic policy follow the procedures above outlined, except that the process ends with the provost. No specific examples of the faculty’s having effectively recommended such matters were provided. Category II changes are those involving changes in re- quirements of majors, minors, or associate degrees or involv- ing ‘‘minor, relatively nonsubstantive academic policy altemations.’’ This latter expression was not clarified. Pro- posals are submitted to the CAAC. After examination, the CAAC either passes or rejects the proposal. If rejected, the proposal is returned to the person introducing it, along with reasons for the denial. If passed by the CAAC, the proposal is forwarded to the provost who approves or disapproves. If disapproved, the proposal is returned to the CAAC with an explanation. Should the provost approve, the CAAC and con- cerned schools are notified. No information was provided re- garding the effectiveness of CAAC recommendations in Cat- egory II matters. The CAAC bylaws do not require that Category II propos- als be submitted to a full faculty vote. However, the CAAC may choose to put certain Category II proposals to such a vote, and it appears this does occur, although no specific de- tails of such instances were given. Category III nonsubstantive changes are not reviewed or approved by the CAAC or submitted to a full faculty vote. Rather, pursuant to the CAAC bylaws, such changes are ap- proved by the dean in consultation with the appropriate school members and submitted to the provost for approval. With respect to the effectiveness of faculty recommenda- tions on curriculum, Cooper broadly testified that since his arrival at UGF, all such recommendations have been ap- proved.21 As to the other academic matters which pass VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00087 Fmt 0610 Sfmt 0610 D:\NLRB\325.007 APPS10 PsN: APPS10 88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22 The UGF accrediting association. through the CAAC process, little information was provided regarding the effectiveness of faculty recommendations. Cooper has raised with the CAAC concerns over certain low enrollment programs, as these represent financial losses for UGF. He has acceded to faculty desires to retain such programs. No information was given as to whether CAAC recommendations on this issue were accepted without inde- pendent evaluation by the provost. Currently the CAAC is reviewing revisions of the core curriculum. Revision proposals have been formulated by the general education review committee, a faculty committee chaired by a nondean faculty member. Kottel testified that she recently asked the provost what would happen if a core were passed by the faculty that the provost did not like. Ac- cording to Kottel, the provost replied that he would tell the board of trustees not to approve it, and the proposal would die. Kottel testified, ‘‘So the message was fairly clear, at least to me, that we could pass what we wanted to pass, but it may not get approved; we could pass something in the pa- rameters of what is acceptable to the Administration, and it would get approved.’’ Cooper testified regarding this conversation as follows: The conversation with Professor Kottel was really a part of a conversation at the Dean’s Council meet- ing. . . . And what we were dealing with was a ques- tion of how the new core proposal would come to the faculty. . . . I had outlined at the beginning of the conversation on that the fact that I was deeply concerned that we had spent two years working on a core proposal, and that the committee that was in charge of that, the General Education Review Committee . . . a faculty committee chaired by a faculty member who is not a Dean—that that body had given a proposal to the Curriculum and Academic Affairs Committee, and that the committee had in fact removed so much of one portion of it that I felt they were in danger of not fulfilling the North- west Association’s22 mandates for us to revise and up- grade our core curriculum activity. This was part of a general conversation that was going on with all of the Deans. Professor Kottel then asked me what would hap- pen if the faculty were to vote either the shrunken pro- posal or to return to the original proposal, and I re- sponded to her that I would have to recommend to the Board of Trustees that it not be passed or approved simply because I felt that it certainly did not meet the mandates of the Northwest Association, but I also added that I didn’t feel that it measured up to the stand- ards that the President was looking for in the quality and integrity of the education program at a University. Another matter currently before the CAAC is a rec- ommendation from a CAAC subcommittee that six credits of interdisciplinary classes be required. A witness cited two instances in which Cooper took di- rectly to the full faculty for a vote matters which should have been presented first to the CAAC. One involved the question of whether students sitting on the CAAC should continue to be accorded the right to vote on matters before that body. Despite Cooper’s opinion that students should not have this right, the faculty voted to retain student voting rights on the CAAC. The other instance involved a change in curriculum re- quirements. What the curriculum requirements were, whether this was a matter of significant import, what the faculty’s recommendation was, and whether that recommendation rou- tinely was adopted by the administration were not given. Admissions, Scholarships, and Financial Aid Committee This committee carries out the policies and upholds the standards of UGF relating to admissions, scholarships, and financial aid as determined by the board of trustees. The reg- istrar, director of financial aid, and vice president for student services are members by virtue of their offices. Also on the committee are three faculty members, elected by the faculty for 3-year terms, and two students. One of the faculty com- mittee members is a dean. Each committee member has one vote. The committee’s functions, as specified in its bylaws, in- clude formulating and implementing policies and procedures governing the admission and readmission of students and the awarding and withdrawal of scholarships and financial aid. With respect to scholarships, the committee administers mon- eys budgeted by the board of trustees by awarding scholar- ships and grants. The committee announces and conducts competitive applications and/or examinations and awards the scholarship moneys in accordance with its criteria. It also formulates criteria for the retention of scholarships. Accord- ing to Cooper, with respect to matters involving scholarships, this is not merely an advisory body but rather is the decision- making body on campus. With respect to financial aid, the committee assists the di- rector of financial aid in the administration of Federal and other financial aid programs. With respect to admissions, the committee reaffirms ad- mission standards and registration policies. How this is done was not described. It may suggest modifications to such standards and policies, but the effectiveness of its sugges- tions was not given. The committee serves as an appeal com- mittee for individual applications for admission and readmis- sion. Student Rights and Responsibilities Committee This committee reviews matters of student concern and serves as the grievance body for students. Sitting on the committee are three faculty elected by the faculty, three stu- dents, and the vice president for student services. Each com- mittee member has one vote. The type of grievance typically heard by this committee involves disputes between professors and students regarding classroom conduct or academic grades. Professor Michael Low, a faculty member for 21 years, testified that in one 3- year period in the past, the committee heard only one case. As he is not now a member of this committee, he has no knowledge whether the number of cases heard by this com- mittee has increased. as such cases are not publicized due to student privacy concerns. Low testified regarding an instance 4 years ago when, fol- lowing a decision of the committee, the committee was dis- banded and reconstituted by the then-president. The case was reheard and an opposite conclusion reached. It appears, how- VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00088 Fmt 0610 Sfmt 0610 D:\NLRB\325.007 APPS10 PsN: APPS10 89 UNIVERSITY OF GREAT FALLS 23 The two staff members are the library director and the informa- tion resources director. 24 Currently, the faculty status committee appointee to the budget committee is a dean. ever, that upon review of the first hearing on appeal, the then-president determined the adjudicative process had not followed the proper procedures, prompting him to reconsti- tute the committee for rehearing. Graduate Council The graduate council, an advisory body to the dean of graduate studies, is composed of seven graduate school fac- ulty, appointed by the academic vice president on the rec- ommendation of the dean of graduate studies; the graduate dean as chair; and the registrar, who serves ex officio. Be- sides the graduate dean, there are two deans on the commit- tee. Members are appointed for indefinite terms. According to the faculty handbook, the council acts as the executive committee of the graduate faculty. The council advises and recommends on graduate pro- grams, curricula, and matriculation guidelines. The council makes recommendations to the dean of graduate studies re- garding applicants for graduate studies. Inasmuch as the body is advisory to the graduate dean, who is himself a voting member of the committee, it is unclear whether the faculty committee members serve merely in an advisory resource ca- pacity or whether their input actually constitutes effective recommendation. Definitive information pertaining to the ef- fectiveness of this body’s recommendations was not pro- vided. No description of the actual deliberative and advisory processes of this body was given. Teacher Education Committee The teacher education committee is composed of five fac- ulty appointed by the dean of the school of education; the registrar; the vice president of student services; and the dean of the school of education. The committee serves in an advi- sory capacity to the dean of the school of education. The only description of the work of this committee was given by Cooper who explained it ‘‘deals with student teach- ing policies, generally oversees the text of the teacher edu- cation handbook, would make decisions regarding individual student participation in the teacher education certification program.’’ No other information regarding this committee’s procedures, recommendations, and/or decisions was provided. Library Committee On this committee are five faculty elected by the faculty, two students, and two staff members.23 Each member has one vote. The committee is an advisory group to the library director with regard to library policies and acquisitions. No information was provided regarding specific matters rec- ommended by the committee nor the effectiveness of its rec- ommendations. Strategic Planning Committee This is a new committee chaired by the vice president for student services. There are five faculty, appointed by the president. All five are deans. There are an additional seven committee members: four staff personnel, two administrators, and one student. The committee is to recommend to the president on a 5-year plan dealing with the University’s fu- ture, including facility development, staff additions, and aca- demic programs. Faculty are members on some of this body’s subcommittees. According to Kottel, faculty were not involved in long- term planning under past administrations. She explained that while Gilliard has changed that, it is too soon to know the extent to which faculty will be instrumental in such planning. Once formulated, the strategic plan will be submitted to the president, and then to the board of trustees. Campus Master Plan Committee Currently inactive, this committee was composed of two faculty appointed by the president, the auxiliary services di- rector, the physical plant director, the library director, and three vice presidents, two of whom had one-half votes. The other committee members each had one vote. Of the two fac- ulty, one was a dean. The purpose of this committee was to project the long- range development of campus facilities and to make rec- ommendations to the president. The committee completed a report which the provost characterized as a ‘‘driving force in the budgeting and planning for the institution.’’ Computer Planning and Policy Committee This committee is composed of two faculty, neither of whom is a dean; four staff; and one student. It serves to rec- ommend to the president campus policy and long-range plans for computer use on campus. No evidence was presented re- garding the outcome of its recommendations. Safety Committee Committee members, appointed by the president, consist of two faculty, five staff, and the vice president of finance. The role of the committee is to assure campus facility safety and assist in implementing required safety procedures. No in- formation was provided regarding its deliberative processes or the effectiveness of its recommendations. Budget Committee The budget committee develops the annual budget rec- ommendation. The committee is composed of three faculty, three staff, four administrators, and one student. One of the three faculty members is appointed by the faculty status com- mittee. This faculty member presents to the budget commit- tee the faculty salary schedule drafted by the faculty status committee.24 The other two faculty are the two undergradu- ate college deans who sit on the committee by virtue of their office. The staff and administrators are appointed by the president and the student member is appointed by the student senate. The budget committee meets on an as-needed basis. With faculty input, deans develop specific program budg- ets for consideration by the budget committee. The faculty status committee makes specific recommendations with re- spect to faculty salaries. Other faculty groups may generate personnel requests for consideration by the budget commit- tee. Tuition standards are established through the budget committee process and reviewed annually. VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00089 Fmt 0610 Sfmt 0610 D:\NLRB\325.007 APPS10 PsN: APPS10 90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 25 The faculty status committee has the option, not currently exer- cised, to appoint an additional faculty member to this subcommittee. 26 Such was the case for the search committee constituted in the fall of 1995 for a faculty vacancy in physical education. Besides the According to Kottel, who has been a member of the com- mittee for 8 years, the president gives the committee param- eters within which to work. For example, the president may ask for a certain percentage of the budget to be in reserve, and a certain percentage per month to pay debt. The commit- tee holds open hearings where any interested person may speak. The committee reviews the various requests of dif- ferent campus constituencies and attempts to align them vis- a-vis the strategic plan of the university. The committee then presents its recommendations to the president. Kottel stated that in her 8 years on the committee, the president never has forwarded the budget to the board of trustees without first making changes to the committee’s recommendations. She testified that while those changes at times have been minor, there have been occasions when presidents unilaterally have made major changes to the proposed budget. Kottel presented examples in which she believed the budg- et committee’s recommendations had been overridden. One involved a unanimous recommendation of the committee that surplus revenue be used to raise the pay of adjunct faculty. Although there was a surplus in the budget year, Gilliard re- fused to follow the committee’s recommendation. Instead, the money was used for one-time expenses, based on the president’s rationale that this was surplus money which could not be relied upon to continue in future years, and that there- fore it should be used for one-time capital expenditures rath- er than for a budget item that would be continuing in nature, as pay raises would be. Another instance involved the committee’s allocation of $20,000 to the continuing education budget to perform con- tinuing education on campus. Thereafter, in mid-fiscal year, the administration unilaterally removed 75 percent of those funds from the continuing education budget without prior no- tification to the budget committee or to the dean overseeing the continuing education budget. The funds were reallocated by the administration in an attempt to balance funds. Vice President for Finance Washburn testified that the budget committee is responsible only for developing and rec- ommending an annual budget and plays no role in monitor- ing the budget once passed. He explained that this particular instance was caused by the institution’s need to reapportion allocations. Kottel stated that besides making changes to the commit- tee’s recommended budgets, the administration imposes its will on the committee by specifying in advance what will or will not be acceptable. She gave as an example the commit- tee’s wish to use a certain amount of endowment money to effect needed repairs on the campus infrastructure. Gilliard felt this amount was too high and instructed the committee to write in a lesser figure. However, Washburn, who also sits on the budget committee, testified that despite Gilliard’s op- position, the committee’s original recommendation regarding the amount of endowment money to be used for the infra- structure remained in the budget and was adopted by the board of trustees. As another example, Kottel testified the president often in- forms the committee of a specific upper limit for tuition in- creases. Beautification Committee One faculty member, three staff persons and one student comprise the beautification committee. All are appointed by the president for the purpose of making recommendations re- garding the esthetics of the campus’ physical plant. No other information regarding this committee was provided. Grievance Committee As noted above, grievance committees are appointed on a case-by-case basis to hear faculty grievances in matters other than those handled by the faculty status committee. Commit- tee members are appointed by the president. Of five mem- bers, one is a faculty member. Cooper testified that grievants usually accept the committee’s decisions, although they may appeal to the president whose determination is final. Academic and Faculty Affairs Committee This is a standing subcommittee of the board of trustees composed of nine members, one of whom is faculty.25 The faculty member is elected by the board of trustees. In addi- tion, there are four trustees, two students, one administrator, and the Great Falls school superintendent. All committee members have one vote. This committee makes recommenda- tions to the full board regarding academic policies and pro- grams; faculty status committee recommendations vis-a-vis faculty tenure, promotions, sabbaticals, and leaves; and stu- dents recommended for graduation. The committee meets three times yearly. Student Services Committee Another subcommittee of the board of trustees, the student services committee is composed of one faculty, two staff, one administrator, four students, and four trustees, all having one vote. The faculty member is appointed by the faculty status committee. The current faculty member is not a dean. This committee makes recommendations on student services policies directly to the board of trustees. It meets three times yearly. Faculty Meetings No information was provided regarding the frequency of facultywide meetings and/or facultywide votes. Nor was evi- dence provided describing faculty meeting procedures or the matters there discussed. It appears the provost chairs these meetings. According to Kottel, the majority of recommenda- tions which emanate from the various committees are not submitted to facultywide votes. Hiring The UGF president ultimately decides who will be hired as well as the number of positions which will be filled. Fac- ulty members are hired through a search committee process. The provost selects a dean to serve as chair of the search committee. The dean selects the other committee members, to include a faculty member from the school having the va- cancy, a faculty member not of that school, and a student majoring in the school with the vacancy. In some cases, ad- ditional persons may be appointed to the committee.26 The VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00090 Fmt 0610 Sfmt 0610 D:\NLRB\325.007 APPS10 PsN: APPS10 91 UNIVERSITY OF GREAT FALLS dean, as chair, two faculty members, and a student, there were an administrator and a staff person from student services. search committee screens applications and recommends the top three candidates for on-campus interviews. Candidates brought to the campus are interviewed by the search commit- tee and the provost. In addition, candidates meet with the president, graduate dean, and other interested faculty, stu- dents, administrators, and staff persons. A final search committee recommendation is submitted to the provost. Cooper described his role as being ‘‘independent from the search committee’’ and his responsibility as ‘‘to judge both the candidates and how I perceive they will im- pact the institution, just as significantly as the search com- mittee.’’ He explained that ‘‘in the vast majority of cases, I will be in concurrence with the committee. It would be the exception to the rule that I would object to it.’’ He stated that in instances where he himself is not ‘‘a hundred percent sure,’’ he follows the committee’s recommendation. He ad- heres to the philosophy that both the search committee and he must be satisfied the candidate recommended will be a strong contributor to the institution. Cooper testified that in his 2 years at UGF, there have been nine faculty searches, of which he has declined to fol- low the search committee’s recommendation in one instance. In that case, the provost hired a candidate who was one of the lower-ranked by the search committee. In another of these nine searches, Cooper approved the committee’s choice, although it was not his own first choice, after discussing the matter with the dean serving as search chair. In another instance, although one of the applicants who held a Ph.D. degree met all the criteria as far as credentials and background, the search committee felt the candidate would not be willing to spend enough time with students. Al- though UGF wished to upgrade the staff by retaining some- one with a Ph.D. in the area, Cooper accepted the commit- tee’s reservations regarding this applicant and a person with a lesser degree was retained. Faculty may sit on search committees for administrative personnel. With respect to the selection of the president, the faculty handbook specifies ‘‘[j]oint effort of a most critical kind must be taken when an institution chooses a new presi- dent. The selection of a chief administrative officer should follow upon cooperative search by the Board of Trustees and the faculty.’’ It appears that faculty were members of the search committee for the presidential vacancy filled by Gilliard. However, the exact proportion of faculty on that committee was not given, nor the number of those faculty who were deans/division heads. Nor was infommation pro- vided regarding whether the recommendation of that panel was accepted. As far as the selection of the provost/academic vice presi- dent, applications are submitted to a faculty screening com- mittee composed of seven members: two members of the fac- ulty status committee selected by that committee; two mem- bers of the CAAC selected by that committee; two members of the general faculty elected by that body; and one dean se- lected by the other deans. The screening committee which re- viewed candidates for the provost vacancy filled by Cooper had as members students and staff persons as well. Cooper believed 7 of 11 members of his search committee were fac- ulty; the number who were deans/division heads was not given. The provost search committee’s recommendation is submitted to the president. According to the faculty hand- book, ‘‘[t]he president will entertain the suggestions [of the search committee] but reserves the right both to review other candidates not on the faculty committee list and ultimately to choose one of the latter.’’ In the case of the vacancy filled by Cooper, the president interviewed all candidates. Cooper was the search committee’s recommended applicant. Last year, faculty sat on the search committee for a non- faculty student services position. The proportion of faculty to nonfaculty was not provided. The committee ranked four candidates, unanimously agreeing the fourth-ranked candidate was not appropriate for the position. The vice president of student services declined to follow the committee’s rec- ommendation and in fact hired its fourth-ranked candidate. New Faculty Structure The recent reorganization of the institution into colleges and schools headed by deans was approved as a pilot project by a vote of the faculty. According to Cooper, there was ‘‘immense’’ faculty involvement in the development of the new organizational design, but the exact nature of this in- volvement was not described. Teaching Loads Prior to 1992, faculty could meet the requirements of their faculty contracts by teaching from 24 to 26 credits per aca- demic year. In 1992, the faculty status committee rec- ommended to the board of trustees that this spread in teach- ing loads be modified such that the required teaching load be standardized at 24 credits. This recommendation was ac- cepted and implemented by the board. Any individual reduc- tion in a particular faculty member’s teaching load from the standard must be recommended to the provost by the faculty member and the school dean. The provost unilaterally devel- oped a policy whereby faculty may not teach in excess of the standard teaching load, even should particular faculty wish to teach extra classes. The provost has charged the deans with ensuring this policy is followed. While the faculty handbook permits a portion of a faculty member’s teaching load to be transferred to the summer ses- sion, Cooper, over the objections of two faculty status com- mittee members, supported a faculty members desire to trans- fer her full load to the summer session. Cooper’s comment in defense of his position was that the faculty handbook is a ‘‘stale’’ guide. It is unclear whether the faculty status com- mittee as a body officially objected and whether the transfer was effected. Admissions Policies As UGF is an open admissions institution there is thus no faculty involvement, as a historical matter, in establishing or changing general admissions policies. Specific programs at the graduate level may have certain admissions standards established through the graduate coun- cil process. Whether this in fact occurs and, if so, whether nondean faculty committee members effectively recommend such standards were not given. Elevated standards for partici- pation in student teaching are established through the teacher education committee process, though no description of this process was given. VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00091 Fmt 0610 Sfmt 0610 D:\NLRB\325.007 APPS10 PsN: APPS10 92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 27 Although Kottel testified that there recently have been new grades promulgated without faculty input, further testimony estab- lished that the designations to which she referred are not grades of academic performance but rather shorthand designations of reasons for which grades are not being reported at that time. Specifically, IP designates in progress coursework or research; NG, no grade: and RD, grade report delayed. Teaching Methods Faculty establish their own teaching methods. Size of Student Body and Class Size As UGF is an open enrollment institution, faculty have no input into enrollment levels. Faculty do not participate in de- termining the number of students who will be accepted in a major. With respect to class size, the school dean and individual faculty member together recommend to the CAAC. Kottel testified that the institution ‘‘has followed a practice of ac- ceding to faculty interests in terms of identified pedagogical needs for class size.’’ However, an instance was given in which a former provost unilaterally raised the class size of an English class despite faculty protest. Course Scheduling School deans work with individual faculty and the reg- istrar in developing course schedules as above described. Student Absences Faculty individually and unilaterally determine class poli- cies governing student absence. Academic Calendar The academic calendar is reviewed by the CAAC and put to a vote of the faculty. In Cooper’s experience at UGF, there have been no calendar alterations other than those pro- posed by faculty. Grades and Grading Policies The UGF grading system is set forth in its catalog. Changes in the system go through the CAAC process and must be approved by the provost and president.27 It is un- clear whether CAAC recommendations regarding grading policies generally and routinely are approved. Individual fac- ulty independently determine the application of the grading system to their students, subject to an appeal process. Faculty have individual discretion in determining their policies vis-a-vis student cheating, but are required to notify classes through their syllabi should their policies be harsher than the standard set forth in the student rights and respon- sibilities handbook. Changes to a student’s grade outside a certain timeframe require approval of the provost. Matriculation Standards; Graduation and Degree Standards and Requirements Individual faculty determine whether transferring students’ courses qualify for credit toward their work at UGF. It is the faculty member with the professional expertise in the subject area of the courses under consideration who makes this eval- uation. In reaching a decision on such matters, faculty rely on UGF standards required in the major, which standards are approved by the full faculty through its vote on curriculum design. Many of the issues pertaining to graduation and degree re- quirements and standards pass through the CAAC process. Depending upon the category within which the rules fall, the CAAC’s recommendation may go directly to the provost or may be passed to the full faculty for a vote prior to being transmitted to the provost, president, and board of trustees. As noted, it is the deans who approve applicants for gradua- tion. Through the CAAC process, faculty advise as to require- ments for the core curriculum and majors. Faculty unilater- ally cannot make changes to the standards and requirements approved by the administration. Kottel testified that Rules regarding whether Telecom home study classes count for residency credit, the number of independent studies a student may take, and the number of Telecom home studies classes a student may take unilaterally were set by the administration. Tuition Tuition is recommended to the board of trustees by the budget committee. Retention, Suspension, Probation, and Expulsion of Students Nondean faculty members do not participate in decisions involving student retention, suspension, probation, or expul- sion. Course Substitutions and Petitions for Special Consideration Students’ requests for course substitutions and petitions for special consideration are recommended to school deans by students’ academic advisors. Only faculty serve as advisors. There have been many instances in which academic advisors’ approvals of course substitutions and petitions for special consideration have been overruled by deans. Course Content/Course Offerings/Credit Hours Establishing course content historically has been within the realm of faculty. Faculty members’ course offerings are sub- ject to final approval by the provost. The number of credit hours assigned courses is dictated by standards promulgated by the Northwest Accreditation Association. New Facilities/Space Allocation The president is guided in the establishment of new facili- ties and in the allocation of space on the broad scale by the campus master plan approved by the board of trustees. School deans and individual faculty may make requests to the administration with respect to smaller-issue space alloca- tion matters, such as requests for conference rooms or advis- ing areas, or for adding accouterments to a classroom. The administration attempts to accommodate such requests where possible. VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00092 Fmt 0610 Sfmt 0610 D:\NLRB\325.007 APPS10 PsN: APPS10 93 UNIVERSITY OF GREAT FALLS 28 444 U.S. at 682, quoting NLRB v. Bell Aerospace Co., 416 U.S. 267, 288 (1974). 29 Id. at 683. 30 Ibid. 31 Id. at 688 fn. 27. See American International College, 282 NLRB 189, 202 (1986) (vetoes of faculty proposals did not preclude finding faculty members to be managerial employees, as incidents were not substantial or predominant, and did not show a pattern of unilateral action that undermined faculty authority); Boston Univer- sity, 281 NLRB 798 (1986), enfd. 835 F.2d 399 (1st Cir 1987) (that administration occasionally made and implemented policy decisions without faculty input did not detract from the faculty’s managerial authority). 32 University of Dubuque, 289 NLRB 349 (1988); Livingstone, supra. In Lewis & Clark, supra, faculty were found managerial be- cause nearly all their recommendations on academic matters were routinely approved. While some faculty recommendations were inde- pendently reviewed, this did not negate a managerial finding as such review occurred predominantly with nonacademic rather than aca- demic matters. 33 Lewis & Clark, supra at 161 fn. 30 and cases cited therein. Analysis and Conclusions In NLRB v. Yeshiva University, 444 U.S. 672 (1980), the Supreme Court found that faculty members at that institution were managerial employees excluded from the Act’s cov- erage. The Court defined managerial employees as those who ‘‘formulate and effectuate management policies by express- ing and making operative the decisions of their employer.’’28 It held that managerial employees ‘‘must exercise discretion within, or even independently of, established employer policy and must be aligned with management,’’29 and that they must represent ‘‘management interests by taking or rec- ommending discretionary actions that effectively control or implement employer policy.’’30 The Court found that through facultywide meetings and participation on faculty committees, the faculty at each of the Yeshiva University schools effectively determined curricu- lum, grading systems, admissions, matriculation standards, academic calendars, and course schedules. In addition, fac- ulty at some schools made decisions regarding admission, ex- pulsion, and graduation of individual students, and others had made decisions involving teaching loads, student absence policies, tuition, enrollment levels and, in one case, the loca- tion of a school. In nonacademic areas, the Court found that the faculty made recommendations regarding hiring, tenure, sabbaticals, terminations, and promotions, the majority of which had been implemented. Relying primarily on faculty’s extensive authority over academic affairs, but noting also its predominant authority in nonacademic areas, the Court ap- proved the Second Circuit’s conclusion that the faculty mem- bers were ‘‘in effect, substantially and pervasively operating the enterprise.’’ The Court concluded: 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 de- bate and determine teaching methods, grading policies, and matriculation standards. They effectively decide which students will be admitted, retained, and grad- uated. On occasion their views have determined the size of the student body, the tuition to be charged, and the location of a school. The Yeshiva faculty were found to be managerial despite occasional vetoes of faculty action caused by ‘‘administrative concerns with scarce Resources and University-wide bal- ance.’’31 In Lewis & Clark College, 300 NLRB 155, 162 (1990), the Board, considering this language in Yeshiva, con- cluded that there are ‘‘college policy questions (i.e., ‘finan- cial resources,’ ‘general institutional goals,’ or ‘University- wide balance’) that are broader than academic policy matters and from which the faculty members may be excluded yet they remain managerial employees.’’ In Yeshiva, the Court held that professors may not be ex- cluded merely because they determine the content of their own courses, evaluate their own students, and supervise their own research. Since Yeshiva, the Board has held that it is faculty mem- ber’s participation in the formulation of academic policy that aligns their interest with that of management.32 Faculty au- thority in nonacademic matters is accorded less weight in de- termining whether faculty are managerial employees.33 In cases where there is substantial indicia of faculty’s manage- rial status in academic areas, an administration’s frequent re- jection of faculty recommendations in nonacademic areas, such as faculty promotion and tenure, would not preclude a managerial finding. University of Dubuque, 289 NLRB 349 (1988). Nor does effective recommendation in such nonaca- demic matters as tenure or promotion require a managerial conclusion. Loretto Heights College, 264 NLRB 1107 (1982), enfd. 742 F.2d 1245 (10th Cir. 1984). It is not fac- ulty’s authority on paper which determines their status, but rather their authority in practice. Bradford College, 261 NLRB 565 (1982); St. Thomas University, 298 NLRB 280 (1990). In Thiel College, 261 NLRB 580, 586 at fn. 34 (1982), the Board held that faculty involvement or lack thereof in the following areas is not vitally significant in determining fac- ulty’s managerial status: academic calendars, student absence policies, enrollment levels, tuition, and the location of a school. Under Yeshiva, a faculty need only exercise effective rec- ommendation or control, rather than final authority, to be deemed managerial. In Lewis & Clark College, supra, the Board emphasized that ‘‘neither the Board nor the Court re- quires that a faculty possess absolute or plenary authority in order to be found to be managerial; the standard set forth in the Court’s decision is ‘effective recommendation or con- trol.’’’ (300 NLRB 163 at fn. 41). Effective recommendation authority is found where nearly all recommendations are rou- tinely approved by the administrative hierarchy, without independent review. Lewis & Clark, id. The party seeking to exclude either a whole class of em- ployees or particular individuals as managerial has the bur- den of presenting the evidence necessary to establish such exclusion. Montefiore Hospital & Medical Center, 261 NLRB 569 (1982) at fn. 17. In Livingstone, supra, the Board concluded that faculty were managerial employees based on its finding that the fac- ulty exercised ‘‘almost plenary control overcurriculum and academic policy.’’ The Board found significant the fact that all curriculum changes had to be approved by the faculty- dominated curriculum catalog committee and that the admin- istration could not make changes in academic policy without VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00093 Fmt 0610 Sfmt 0610 D:\NLRB\325.007 APPS10 PsN: APPS10 94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 34 Those areas were curriculum, degree requirements, course con- tent and selection, graduation requirements, matriculation standards, and scholarship recipients. 35 Id. at 350. 36 A review of the provost’s performance evaluations for three of the deans supports a conclusion that deans perform a large number of significant duties pertaining to the running of the institution which are in addition to those typically expected of a professor in the dis- charge of his professional responsibilities as a teacher. I note, more- over, that in Cooper’s evaluation of the dean of the school of edu- cation, he specifically commends her for her ‘‘academic manage- ment’’ and for creating and launching, in cooperation with the grad- uate studies dean, a new Master of Arts in Teaching degree without the hiring of additional staff. The dean of the school of business is lauded for her modification of the accounting curriculum, creation of the cooperative B.S. in respiratory therapy program, and resolution of ‘‘a very difficult 1994 Fall Semester staffing problem.’’ He urges her to ‘‘[k]eep up the good work in monitoring the Business School budget and in exercising control over part-time and overload staffing expenditures.’’ presenting the changes to this committee. The Board noted that in certain academic areas,34 the majority of the rec- ommendations made by various committees and approved by the faculty were implemented without prior approval from the administration and that there was no evidence the admin- istration ever had countermanded these faculty decisions. The Board placed only limited significance on the fact that the faculty lacked authority in nonacademic matters such as the budget process, tenure decisions, selection of administrators, and no authority in the hiring and firing of faculty. In University of Dubuque, supra, the Board found faculty to be managerial employees based on their substantial role in curriculum and academic policy decisions, their minority in- volvement on combined committees, and on an extant collec- tive-bargaining agreement which gave ‘‘the faculty . . . the exclusive right to set student grading and classroom conduct standards; set degree requirements; recommend earned de- gree recipients; initially receive and consider new degree programs; and develop, recommend, and ultimately approve curricular content and course offerings.’’35 In addition, while noting that it was of less significance, the Board found that faculty’s minority involvement on certain other committees allowed them effectively to recommend discretionary actions with respect to a number of nonacademic areas of govern- ance, including department staffing, budgeting, long-term planning, and personnel actions pertaining to faculty mem- bers such as hiring, promotion, and tenure decisions. In Boston University, supra, faculty were found to be man- agerial employees because they exercised effective control over matriculation requirements, curriculum, academic cal- endars, and course schedules and had absolute authority over grading, teaching methods, graduation requirements, and stu- dent discipline. The Board also noted the faculty played an effective role in recommending faculty hiring, tenure, pro- motions, and reappointments. Likewise, in American International College, supra, the Board found faculty to be managerial because the faculty ef- fectively controlled academic standards and curriculum through their participation in committees and through their vote on recommendations and proposals made by the com- mittees. The faculty’s influence in hiring, promotion, and tenure decisions also was noted. In Loretto Heights, supra, faculty participated in the gov- ernance of the college through various faculty-dominated committees. The administration routinely accepted the rec- ommendations of these committees in the areas of academic policy, new courses, grading criteria, faculty promotion, and tenure. However, in spite of the faculty’s power, the Board found faculty members to be nonmanagerial. In making that determination, the Board relied in part on the fact that most of the actions taken in which faculty members participated were in the form of recommendations and advice, and that no faculty member was authorized to take any action on the member’s own initiative that would be final and binding on the college. The Board also relied on the presence of a large administrative staff. The Board found that such a staff cre- ated an effective buffer between the top management and the lowest echelon, eliminating the need for the institution’s ad- ministration to rely on the faculty for advice, recommenda- tions, and the establishment and implementation of policies. It was the program directors who provided the buffer in that case. These individuals largely controlled the budget, served on key committees and task forces, and were administrators rather than instructors even though they carried teaching loads. In enforcing the Board’s decision, the court relied upon the infrequent or insignificant nature of committee work, the mixed membership of many committees, the fac- ulty’s limited decision-making authority, and the layers of administrative approval required for many decisions. Turning in the instant case to the status of the UGF deans, I find that deans take or recommend discretionary actions in both academic and nonacademic areas which effectively con- trol or implement UGF policies and thus are managerial em- ployees, as both parties urge. Deans are responsible for overseeing all facets of their schools. One way in which they accomplish this is through their administration of their schools’ budgets, for which re- sponsibility they are held accountable and on which they are evaluated by the provost.36 Deans are significantly involved in course scheduling. They may determine additional classes should be taught, make arrangements for faculty to teach them, and reschedule class times as they deem appropriate. Deans independently may cancel classes based on such con- siderations as enrollment levels, even over faculty objections. Deans determine whether adjunct faculty will be hired for specific classes, and which adjunct faculty to hire. Deans ap- prove students for graduation. A variety of actions cannot occur absent deans’ approval. For example, deans must authorize faculty travel; school work orders; changes in course schedules after the schedules have been printed; purchase orders, including textbook or- ders; student applications for individualized study and sum- mer session courses; student course challenges; and waivers of courses. Deans have denied textbook requisitions submit- ted by faculty. A faculty member’s request for sabbatical will not be granted absent the dean’s approval. Deans are the first step in the resolution of student griev- ances and have authority, which is exercised, to resolve those grievances. They also hear and adjust student complaints re- garding faculty which are not brought as formal grievances. Deans have other authority and duties which have both managerial and supervisory aspects. For example, deans per- form annual performance evaluations of the faculty of their schools, which are based in part upon deans’ observations of VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00094 Fmt 0610 Sfmt 0610 D:\NLRB\325.007 APPS10 PsN: APPS10 95 UNIVERSITY OF GREAT FALLS 37 As noted by the Supreme Court in Yeshiva, an individual’s role in decisions pertaining to faculty hiring, tenure, sabbaticals, termi- nation, and promotion has both managerial and supervisory charac- teristics. Yeshiva, supra at 686 fn. 23. As no party has asserted a position that deans are supervisors, l make no finding as to deans’ supervisory status. 38 In Cooper Union, supra at 1774, discussing College of Osteo- pathic Medicine & Surgery, 265 NLRB 295 (1982), wherein faculty were found managers, the Board noted as significant the fact that voting members of many committees were elected by the faculty. 39 The Tenth Circuit, in Loretto Heights College, 742 F.2d 1245, 1253 (10th Cir. 1984), enfg. 264 NLRB 1107 (1982), held that ef- fective control of academic policies cannot be imputed to faculty when faculty comprises a minority of the committee which develops and reviews these policies. However, in University of Dubuque, supra, the Board, in concluding faculty were managers, relied in part on faculty minority membership on committees. In that case, though, faculty were vested with the exclusive right to set student grading and classroom conduct standards; to set degree requirements; to rec- ommend earned degree recipients; initially to receive and consider new degree programs; and to develop, recommend and ultimately ap- prove curricular content and course offerings. Despite its partial reli- ance in Dubuque on faculty minority membership on committees, in other cases the Board has followed a rationale vis-a-vis faculty rep- resentation on committees similar to that expressed by the Tenth Cir- cuit in Loretto Heights. Thus, for example, in Cooper Union, supra, the Board at fn. 21 noted that in finding the faculty of College of Osteopathic Medicine to be managerial, it had relied on ‘‘100 per- cent faculty composition of key committees and faculty initiation of a major change in the entire academic curriculum as indicative of faculty authority.’’ In finding the Cooper Union faculty nonmana- gerial, the Board relied in part on the fact that faculty constituted a minority on most governance committees and something less than a voting majority on about one-half of the committees; only one of 14 faculty committees was 100-percent faculty in composition. In Lewis University, 265 NLRB 1239 (1982), the Board noted that al- though the communications advisory board’s recommendations gen- erally were adopted, ‘‘it is apparent that, because only one member [of six or eight committee members] is a faculty member, this mem- ber could not effectively formulate and effectuate the Employer’s policies.’’ See also Lewis & Clark, supra at fn. 37. 40 As noted, on the graduate council and teacher education com- mittee, it is unclear to what extent the deans to whom these commit- tees are advisory and who themselves sit and vote on the committees guide or control the fommulation of the committee’s recommenda- tions. 41 To the extent deans may hold faculty seats on this and other committees by virtue of their election to the committees by the fac- ulty at large, I will not consider their presence on the committees as a diminishment of faculty authority, despite their managerial role, as they have been elected freely by nondean faculty to represent fac- ulty’s interests. faculty members’ teaching abilities. These evaluations be- come part of faculty members’ personnel records and are used in deciding promotion and tenure. Deans independently discipline faculty, both orally and in writing. Written rep- rimands become part of faculty members’ personnel files. Deans have effectively recommended faculty terminations. They effectively recommend the hiring and retention of spe- cific adjunct faculty. Based on the foregoing and the record evidence as a whole, I conclude that deans are aligned with management and I find they are managerial employees.37 The managerial status of nondean program directors and the computer laboratory manager is less clear. They are ex- pected to ensure the tasks of their programs are carried out, but their specific duties and responsibilities vis-a-vis this goal were not described. While there was testimony to the effect that program directors have authority to discipline fac- ulty who report to them comparable to the disciplinary au- thority of deans, no example was provided in which a nondean director independently disciplined a faculty member or effectively recommended such action. Moreover, only four of the nondean program directors have faculty reporting to them. Based on the record before me, I am unable to conclude that nondean program directors are managers by virtue solely of their duties and responsibilities as program directors. Turning now to the managerial status of nondean faculty, I note that faculty comprise a voting majority on only the CAAC, faculty status committee, graduate council, teacher education committee, and library committee. Of these com- mittees, faculty are elected to committee membership by the faculty at large only on the CAAC and the faculty status and library committees. On the graduate council and teacher edu- cation committee, faculty are appointed by deans.38 While there are several committees on which faculty com- prise a minority, it is with the influence of these faculty- dominated committees that I am primarily concerned in re- solving the issue of faculty’s managerial status. Decisions or recommendations made by committees only a minority of whose members consist of faculty representatives cannot be said to be faculty decisions or recommendations.39 In light of this rationale, and given that, in any event, the evidence is insufficient to warrant a conclusion that effective rec- ommendations in key academic areas emanate from UGF committees on which faculty are a minority, I shall not rely upon the roles of these committees in reaching a determina- tion on managerial status. No party contends that the committees on which faculty constitute a majority are other than advisory in nature, hav- ing the authority only to recommend. The controlling issue, then, is whether these committees ‘‘effectively’’ recommend policy or action. With respect to the library committee, grad- uate council, and teacher education committee, the record evidence is insufficient to support a conclusion that nondean faculty members on these committees effectively recommend or otherwise exercise managerial authority. Thus, while the record is replete with evidence that these committees make recommendations in critical academic areas, the record is vague or silent as to whether such recommendations gen- erally and routinely are approved by the administration or whether those recommendations are independently reviewed and evaluated by higher administrators.40 In the key area of academic policy and rules, the CAAC is the committee which recommends such matters as degree requirements, matriculation and graduation standards, cur- riculum, and examination and grading policies. These matters lie at the very heart of the business of the institution. Seventy percent of the committee’s vote is held by fac- ulty.41 While Cooper generally testified that in his 2 years at UGF all faculty recommendations regarding curriculum have been approved, information was lacking as to the nature and number of such recommendations; which, if any, of these were recommendations of the full faculty versus of the CAAC only; and to what extent, if at all, higher administra- tors independently reviewed and evaluated such rec- VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00095 Fmt 0610 Sfmt 0610 D:\NLRB\325.007 APPS10 PsN: APPS10 96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 42 The exchange between Kottel and Cooper over the core curricu- lum revisions would tend to indicate that higher administrators re- view and evaluate faculty recommendations on curricular matters against the administration’s own opinions and standards and base their approval or disapproval on the degree to which faculty’s rec- ommendations are in harmony with the administration’s views. While I would not make a finding that faculty curricular rec- ommendations are not effective based solely on the exchange be- tween Kottel and Cooper, without further detailed testimony on spe- cific curricular recommendations, I conversely am unable to deter- mine whether faculty recommendations in this area in fact are effec- tive. 43 It is unclear whether faculty as a whole generally vote on cat- egory II changes. ommendations.42 Thus, Cooper’s general assertion that since his arrival at UGF, all ‘‘curriculum’’ matters passed by the faculty have been approved at every step is too vague to per- mit a meaningful assessment of the actual activities of the faculty as a whole and/or of the CAAC in this regard. I note, moreover, that while curriculum is a key academic matter, in no case have faculty been held managerial solely because of their participation in recommending curricular matters. In fact, in Loretto Heights, supra, faculty were found not to be managers even though faculty approval was required for major curricular changes, such as the introduction of new majors, minors, and degrees. As to key academic matters other than curriculum; the CAAC and full faculty clearly provide input.43 However, the Employer failed to establish that faculty recommendations on such matters, either directly from the CAAC or from the fac- ulty as a whole, constitute effective recommendations. More- over, there is evidence that the UGF administration, without faculty input, unilaterally has established certain academic rules such as the number of independent studies and Telecom home studies classes students may take and whether Telecom home study classes may be counted for residency credit. There have been instances, also, in which Cooper bypassed the CAAC to take directly to the full faculty matters which properly should have been presented first to the committee, in disregard of the procedures specified in the faculty hand- book. As to academic matters not passed through the committee structure, I note that it is deans, not nondean faculty, who determine course schedules, approve students for graduation, and approve student requests for course substitutions, peti- tions for special consideration, applications for individualized study, and summer session courses. Nor do nondean faculty participate in decisions regarding the retention, suspension, probation or expulsion of students. Based on the paucity of evidence regarding the frequency of facultywide votes, the specific matters thereby considered, and the effectiveness of the resultant faculty recommenda- tions, I am unable to conclude that faculty as a whole are managers by virtue of their participation in facultywide de- liberations. That faculty and deans together effectively recommend class size, and that faculty individually decide student grades within the parameters of the UGF grading system, determine class absence and cheating policies, and establish course con- tent and teaching methods used in their own classes does not compel a managerial finding, as faculty are not to be ex- cluded as managers based on decisions relating solely to their own classes and students. Yeshiva, supra. That individual fac- ulty are called upon to decide questions of accreditation of transfer courses within their area of professional expertise likewise does not require a managerial finding. That faculty approve the academic calendar is not dispositive of the issue. Thiel, supra at fn. 34. Although the board of trustees adopted a faculty status committee recommendation that the teaching load required to fulfill faculty’s contractual obligations be modified from a range of 24 to 26 credits to a single standard of 24 credits, that recommendation was made in 1992 and was more in the nature of achieving uniformity among faculty. It is unknown how many faculty actually carried loads in excess of 24 cred- its prior to the change. Since that time, Cooper unilaterally implemented a policy prohibiting faculty from teaching in excess of 24 credits, even if individual faculty members wish to do so. Moreover, there was no evidence that nondean fac- ulty assign teaching loads, assign classes, balance class size, or coordinate work among faculty of a school. While faculty voted its approval of the recent UGF reorga- nization into colleges and schools headed by deans, it is un- clear whether that vote was determinative in effectuating the change. Although Cooper testified there was ‘‘immense’’ faculty involvement in the development of the new organiza- tional design, the exact nature and weight of that involve- ment were not given. It therefore cannot be concluded, on this record, that faculty determined or effectively rec- ommended the new faculty structure. While there is evidence that faculty status committee rec- ommendations often are followed, these recommendations are in nonacademic areas, to which the Board accords less weight in determining whether faculty members are manage- rial employees. Moreover, many of the recommendations of this committee are not routinely accepted but rather are inde- pendently reviewed and evaluated, particularly by the pro- vost, as they travel up the administrative hierarchy. Where the provost strongly has opposed a faculty status committee recommendation, higher administrators have approved the provost’s recommendation over that of the committee. Addi- tionally, the provost has taken such action as terminating nonadjunct faculty without consulting with this committee, in apparent disregard of the established procedures. Sabbatical requests not first approved by the dean will not be granted. While the faculty status committee may and does establish subcommittees to develop proposals in a number of impor- tant areas, such as revisions to the faculty handbook and governance, no evidence was provided demonstrating that recommendations emanating from these subcommittees and accepted by the faculty status committee constitute effective recommendations. With respect to hiring, nondean faculty sit on search com- mittees for faculty positions, although they do not constitute a majority on such committees. Moreover, Cooper interviews and evaluates finalists as well. Cooper described his role as being independent of the search committee and equally sig- nificant in terms of judging the candidates. As nondean fac- ulty do not constitute a majority on the search committees and as Cooper clearly does not accept the recommendations of these committees without independent review and evalua- tion, I cannot conclude that nondean faculty effectively rec- ommend faculty hiring. VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00096 Fmt 0610 Sfmt 0610 D:\NLRB\325.007 APPS10 PsN: APPS10 97 UNIVERSITY OF GREAT FALLS 44 The Employer would point to the recent interim evaluation re- port done on UGF by the Northwest Association of School and Col- leges, UGF’s accrediting agency, as support for its assertion that fac- ulty’s role in curriculum and governance matters is managerial. However, I note that the comments contained in that report are far too general to constitute proof of the matter before me. Thus, for example, the comment that core curriculum proposals by various fac- ulty members are being studied is not dispositive of the faculty’s role in formulating or recommending that curriculum. Nor is the re- port’s language regarding faculty in governance any more helpful in analyzing the faculty’s role under the Board’s standards. There is no question that faculty play a role in the selec- tion of the president and academic vice president/provost. However, the record did not specify the number of nondean faculty on the most recent search committees for these posi- tions and so it cannot be determined whether their voice was determinative in reaching a recommendation. Moreover, the record did not establish whether the presidential search com- mittee recommended Gilliard, the person hired for the posi- tion. While the search committee for the provost/academic vice president position did recommend Cooper’s hire, the president accepted that recommendation only after independ- ently interviewing candidates for the position. While faculty sat on the.search committee for a nonfaculty student services position, the proportion of faculty was not given. Moreover, in that case, the vice president of student services rejected the search committee’s recommendation and hired the one applicant who the search committee unani- mously agreed was not suitable for the position. While faculty clearly participate in the hiring process, it cannot be concluded, based on this record, that nondean fac- ulty effectively recommend hiring. Nor does the record evi- dence support a conclusion that nondean faculty determine or effectively recommend budget, salaries, or tuition. I note that deans, whom I have found to be managers, teach courses in particular disciplines and possess the ‘‘pro- fessional expertise’’ indispensable to the formulation and im- plementation of academic policies. The provost also holds faculty rank, and while he does not teach, he clearly is relied upon by higher administration for his expertise in academic matters. There is thus a group apart from nondean faculty who possess the requisite professional expertise in academic areas and upon whom the administration may, and does, rely in formulating and implementing policy. Even though faculty members, either through committees or as a whole, are empowered to make recommendations in many areas, the evidence is insufficient to warrant a conclu- sion that these recommendations effectively control or imple- ment employer policy to an extent that would require exclud- ing nondean faculty from coverage under the Act as manage- rial employees.44 I cannot conclude, on the record before me, that faculty as a whole, or even those faculty who sit on committees, are aligned with management as contemplated under Yeshiva. Accordingly, as the Employer has failed to meet its burden of demonstrating that nondean faculty exercise managerial authority as contemplated under Yeshiva and subsequent Board cases, I find that nondean faculty are not managers. With respect to nondean program directors, including the computer laboratory manager, the record evidence is too vague and ambiguous to support a conclusion that they are managers by virtue solely of their responsibilities as program directors. As there has been no showing that nondean pro- gram directors otherwise should be treated differently from nondean faculty whom I have found nonmanagerial, I shall include nondean program directors and the computer labora- tory manager in the unit. As I have found deans to be managerial employees, it would be inappropriate to grant the Employer’s request that they be included in the unit of nondean faculty. Accordingly, I shall exclude deans from the unit. There are approximately 41 employees in the unit. VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00097 Fmt 0610 Sfmt 0610 D:\NLRB\325.007 APPS10 PsN: APPS10