American International College

AMERICAN INTERNATIONAL COLLEGE 189 American International College and The American International College Chapter of the, American Association of University Professors, Petitioner. Case 1-RC-16265 20 November 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON Upon a petition filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Hearing Officer Thomas P. Kennedy. Pur- suant to Section 102.67 of the National Labor Rela- tions Board Rules and Regulations, and by direc- tion of the Regional Director for Region 1, this case was transferred to the National Labor Rela- tions Board for decision. Thereafter, the Employer and the Petitioner filed briefs in support of their re- spective positions. Subsequently, the United States Supreme Court issued its opinion in NLR14 v. Yeshiva University,) which held that the full-time faculty members at Yeshiva University were managerial employees ex- cluded from coverage of the Act. Inasmuch as the ,issue addressed by the Court in Yeshiva was also raised in the instant proceeding, the Board decided to afford the parties an opportunity to submit state- ments of position on this issue in light of the Su- preme Court's opinion in Yeshiva. Both the Em- ployer and the Petitioner filed such statements of position. Thereafter, the Board remanded the in- stant proceeding to the Regional Director for Region 1 for the purpose of conducting a supple- mental hearing before a designated hearing officer in order to' receive evidence to resolve the issue raised, by the Supreme Couirt's opinion in NLRB v. Yeshiva University; namely, whether the full-time faculty members of the Employer are managerial employees and thus excluded from the coverage of the Act. Pursuant to the Board's remand, a supplemental hearing was held before Hearing Officer Kennedy, and the instant proceeding was subsequently trans- ferred back to the Board for decision. Thereafter, the Employer and the Petitioner filed supplemental briefs in support of their respective positions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has reviewed, the rulings of the hear- ing officer made at the hearing and finds that they are free from prejudicial error., They are affirmed. 1 444 U.S. 672 ( 1980). On the entire record in this case, the Board finds: 1. American, International College, also referred to as the Employer or the College, is a nonprofit Massachusetts corporation engaged in the oper- ation of a private undergraduate educational insti- tution in Springfield, Massachusetts. It has gross annual revenues for unrestricted use in excess of $1 million and annually receives goods and materials valued in excess of $50,000 at its, Springfield loca- tion directly from points located outside Massachu- setts. Based on the foregoing, we find that the Em- ployer is engaged in commerce within the meaning of the Act, and it will effectuate the policies of the Act to assert jurisdiction herein. 2. The Petitioner claims to represent certain em- ployees of the Employer.2 3. No question affecting commerce exists con- cerning the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The Petitioner seeks to represent a unit includ- ing all full-time faculty members, including the de- partment chairmen, and excluding the director of the Center for Human Relations and Community Affairs, the director of financial aid, and the head librarian, whom the Petitioner contends are admin- istrators rather than faculty members, and exclud- ing all part-time faculty members, all administrative and staff personnel, and all coach-instructors. The Employer initially takes'the position that all full-time faculty members are managerial or super- visory personnel and are therefore not employees within the meaning of the Act. In the alternative, the Employer seeks a unit of all full-time faculty, all part-time faculty who teach degree requirement courses, all full-time coach-instructors, the director of the Center for Human Relations and Community Affairs, the director ' of financial, aid, the head li- brarian, the director of student affairs, the director of student activities, the director and the assistant director of admissions, the director of the Afro- American Center, and the registrar. _ The parties stipulated that the deans of the Em- ployer's three schools-the School of Arts and Sci- ences, the School of Business Administration, and the School of Psychology and Education-as well as the director of the Division of Nursing, are all supervisors within the meaning of Section 2(11) of the Act, and therefore not includable in an appro- priate bargaining unit. 2 In view of our decision here to dismiss the petition because the full- time faculty are managerial employees, we find it unnecessary to pass on the Employer's contention that the Petitioner is not a labor organization. 282 NLRB No. 16 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The question to be resolved is whether the peti- tioned-for unit is inappropriate because the Em- ployer's faculty are managerial employees within the scope of the Supreme Court's decision in NLRB v. Yeshiva University, supra. For the reasons set forth below, we find that the full-time faculty are managerial employees and we shall dismiss the petition. The Organizational Structure of the College American International College is a private insti- tution of higher education. It is governed by a 34- member board of trustees. The president of the College is directly responsible to the board of trust- ees for the general administration of the College. The College is composed of the School of Arts and Sciences,3 the School of Business Administration, the School of Psychology and Education, the Divi- sion of Nursing, the Division of Continuing Educa- tion, and several specialized education centers. Each of the schools is led by a dean (or a director, in the case of the Division of Nursing) who has general superintendent and coordination responsi- bilities with respect to the departments and facul- ties of each school. The deans report directly to the vice president for academic affairs, who in turn reports directly to the president of the College. Each of the separate schools within the College is composed of academic departments. The College's 1978-1980 catalog lists 27 separate departments, 16 of which are shown as having department chair- men.4 The largest of these departments is the de- partment of education with 18 faculty members. The smallest is the department of physics, with one faculty member, the department chairman himself. The college faculty includes approximately 90 to 92 full-time and 40 to 43 regular part-time teaching personnel. The College has an enrollment of ap- proximately 1300 students in its day school under- graduate programs. Additionally, the College offers graduate degree programs and evening summer school programs at both the graduate and under- graduate levels. 8 The School of Arts and Sciences is further subdivided into three groups- (1) Humanities, (2) Social Studies, and (3) Mathematics and Sci- ence 4 Of the remaining I1 departments , the departments of art (one faculty member), data processing (two), music (one), public administration (two), statistics (three), and theater arts (one), are shown as having no depart- ment chairmen The department of criminal justice is headed by a pro- gram director and staffed with I full-time and 11 part-time faculty mem- bers. The department of education is headed by the dean of the School of Psychology and Education The department of human relations and nurs- ing are each headed by a director, and each is staffed with two faculty members The faculty handbook describes how the faculty is organized.5 The general functions of the faculty are stated as follows: Subject to the reserve power of control of the Board of Trustees and the approval of the President, the Faculty shall prescribe require- ments for admission, courses of study, condi- tions of graduation, the nature of degrees to be conferred, regulations for the conduct of the educational work of the College, and shall provide directly or indirectly the necessary or- ganization for the conduct of student life and activities. They shall recommend to the Board of Trustees candidates for degrees in course.6 According to the faculty handbook, the faculty meetings are called and presided over by the presi- dent of the College or, if the president so desig- nates, 'the dean of faculty, who in this case is also the vice president for academic' affairs. Faculty meetings are ordinarily held monthly.' Special meetings may be called by the president or the dean of faculty upon written request of six faculty members. Special faculty meetings may also be called at the discretion of the administration.8 There are approximately 75 full-time faculty members with faculty meeting voting privileges. Additionally, approximately 10 administrative offi- cers, including the president, the vice president, the academic and administrative deans, and the regis- trar, have faculty meeting voting privileges. None- theless, Dean Mitchell testified that as a matter of custom and practice neither the president nor the s Although entitled "Faculty Handbook," the document in fact has the endorsement of both the faculty steering committee , discussed infra, and the College's board of trustees. Thus, the faculty handbook is a joint pub- lication of the faculty and the administration of the College. 6 The president of the College, Harry J. Commutes, explained that the introductory phrase, "Subject to the reserve power of control of the Board of Trustees and the approval' of the President ," means that he and the board of trustees have "the right to react negatively should the case require it " President Courniotes also stated that in such cases it would be important for him or the board to make clear to the faculty its, "rationale for denial" of a faculty proposal. John F. Mitchell, vice president for aca- demic affairs and dean of the faculty, testified-that not only the board of trustees and the president, but also the vice president for academic affairs and the deans of the respective schools, have the authority to veto ac- tions taken by the faculty, although according to Dean Mitchell "that function is very seldomly exercised . in actual fact the faculty does perform these functions " 7 Shortly before the initial hearing in this matter , the faculty voted to reduce the frequency of their meetings from monthly to two meetings in the fall semester and three meetings in the spring semester. 8 Faculty meetings are also conducted at the departmental level Pro- fessor MacLachlan, the chairman of the psychology department, testified that within the psychology department faculty meetings are usually con- ducted monthly to discuss a variety of topics such as textbooks, class schedules, changes in curriculum, input from teaching assistants, and whatever other issues arise within the department. However, the record reveals that departmental faculty meetings, particularly within the smaller departments, do not appear to be scheduled on a consistent basis and issues of concern are discussed informally among the departmental facul- ty members AMERICAN INTERNATIONAL COLLEGE 191 vice president for academic: ,affairs votes at faculty meetings. Administrators with faculty meeting voting privileges have no greater vote than an individual faculty member. Administrators vote on the selec- tion of faculty members, for each of the faculty standing committees, except for the president's ad- visory committee, whose members are selected by the faculty standing committees. The faculty is organized into standing commit- tees. Faculty members are generally elected to spe- cific committees on the basis of facultywide voting, following nomination by the steering committee. All general committee assignments of elected facul- ty,members are for a 3-year period on a staggered basis, unless otherwise specified. Committee assign- ments in an ex officio capacity are without voting privileges, unless the contrary is specifically stated. The principal committees are: (1) president's advi- sory, (2) steering, (3) academic standards and stu- dent advising, (4) curriculum (each school has its own curriculum committee), (5) admissions and stu- dent aid, and (6) tenure.9 The President's Advisory Committee The president's advisory committee consists of seven faculty members elected from the respective schools or from the faculty committees designated to elect a representative to the president's advisory committee. The stated functions of the committee, as set forth in the faculty handbook, are (1) to pro- vide liason with the board of trustees, and (2) to consult with the president on "policies and prob- lems." The primary function of this committee is to advise the president in matters that he submits to the committee for advice. There are no regularly scheduled meetings of this committee and it meets as circumstances require. Although the meetings are usually called by the president at his pleasure, the chairman of the committee is not precluded from calling a meeting. In recent years, however, this committee has not served as a liason with the board of trustees. 8 Other faculty committees described in the faculty handbook are the library committee and the committee on lectures . In addition, the board of trustees permits one faculty member to serve as a nonvoting member on each of the following board committees: educational policies; develop- ment, buildings and grounds ; and honorary degrees. Although not men- tioned in the faculty handbook , there is a committee on continuing educa- tion, dealing primarily with developing programs where work and expe- rience count for academic credit. There is also an admissions committee in public administration consisting of three faculty, members and two deans. Ad hoc committees have also been established on a number of oc- casions. The Steering Committee The steering committee is composed of seven faculty members elected by the faculty in a two- stage mail balloting procedure conducted by the presiding officer and the Secretary of the faculty. The stated functions of this' committee are: (1) to make nominations for the assignment of faculty members to positions on other faculty committees; (2) to reexamine and make recommendations to the faculty for improvement in the functioning of the committee organization; (3) to investigate and make recommendations on matters pertaining to the secu- rity of individual faculty members, such as pen- ,sions, leaves of absence, tenure, and salaries, (4) to conduct 'elections to fill vacancies in the various faculty committees, and (5) to revise and maintain the faculty handbook. The steering committee was instrumental in re- vising both the existing merit review system used to evaluate faculty performance and the tenure provisions set forth in the faculty handbook. Committee on Academic Standards and Student Advising This committee is composed of five faculty mem- bers, four administrators who serve ex officio, and two students. This committee maintains a continu- ous critical review of, and make recommendations for any necessary changes in, policies relating to the general academic standards of the College, as well as the more specific standards pertaining to such matters as class attendance, qualifications for degrees and honors, procedures for advising stu- dents, and methods of academic grading. Curriculum Committees The faculty handbook provides that each sepa- rate school shall have curricular autonomy, subject to the supervision and control of the vice president for academic affairs, the president, and the board of trustees. There are curriculum committees in each of the three Schools and in the Division of Nursing. The School of Arts and Sciences curriculum committee consists of four Arts and Sciences faculty members as well as one faculty member representative from each of the other curriculum committees. There are also six administrators serving ex officio, a pro- fessional member of the library staff (acting ex offi- cio but with vote), and two students. Similarly, the curriculum committees of the School of Business Administration, the School of Psychology and Education, and the Division of Nursing have re- spectively three, four, and four faculty members as well as faculty representatives from each of the 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other curriculum committees, six administrators serving in an ex officio capacity, a professional member of the library staff, and two students. These curriculum committees maintain a continu- ous critical review of each school's entire curricu- lum, including all programs of graduate studies, and make appropriate recommendations to, the fac- ulty and the administration. The Committee on Admissions and Student Aid This committee is composed of five faculty member representatives of all the schools and the faculty at large and two students. The dean of the faculty, the deans of the schools, and the director of financial aid all act in an ex officio capacity. This committee maintains a continuous critical review of admissions and student aid policies, makes appropriate recommendations to the faculty and the dean of admissions or director of financial aid, and assists the latter two officials with specific cases upon their request. The Tenure Committee This committee is composed of five tenured fac- ulty member representatives of each of the schools. Each member serves for a 5-year period on a stag- gered basis and no member may serve a second consecutive term. The tenure committee makes rec- ommendations to the president and the board of trustees concerning the granting of tenure to each member of the faculty who becomes eligible for tenure. Faculty Role Regarding Curriculum The faculty exerts influence in the curriculum area through participation in curriculum commit- tees, at faculty meetings by approving or disap- proving of proposals submitted by the curriculum committees, and at the departmental level. Vice President for Academic Affairs (and Dean of the Faculty) John F. Mitchell explained that "curricular autonomy" as described in the faculty handbook means, that internal curriculum commit- tees within each separate school formulate, recom- mend, approve, and implement their own respec- tive curricula. The curriculum committees are composed of faculty members elected at faculty meetings.10 Their function is to supervise and review the curriculum of a given school and make 10 Although administrators with voting privileges may vote at these faculty meetings, there are no administrators with voting privileges in any of the curriculum committees recommendations to the faculty for any modifica- tion to the curriculum.ll Dean Mitchell further testified that decisions whether to add or delete specific courses or modi- fications of existing courses are usually .undertaken by the faculty within a specific academic depart- ment, with the approval of the department chair- man "and his colleagues."12 Regarding the addi- tion of courses within a department, Milton Birn- baum, dean of the School of Arts and Sciences, tes- tified that, if the addition of a course requires addi- tional compensation for the faculty member teach- ing tlie'course, justification for offering the course addition must be' satisfactory to him, the chairman of the department, and Dean Mitchell. Issues concerning a program of courses require the consideration of the curriculum committee of the school, which reviews the proposals and pre- sents them to the faculty, of that school or to the entire faculty if the changes involve collegewide requirements. Issues for committee consideration may be presented by members of the committees, the department chairmen, or the dean after confer- ring with the faculty. Dean Birnbaum testified that the initiative for curriculum changes generally comes from the department chairmen acting in concert with his departmental faculty. Recommen- dations are then forwarded to the dean and from him to the school's curriculum committee. He noted that proposals could be presented to the cur- riculum committee without first submitting them to the dean. If the proposal involves a new major field of study within an existing degree program, it must first have faculty approval and then it must be submitted to the committee on educational policy of the board of trustees for its approval.13 11 Dean Mitchell testified that, as stated in the faculty handbook, the faculty has control of curriculum subject to the reserve authority of the academic vice president, the president, and the board of trustees Howev- er, according to Dean Mitchell the administration would be very reluc- tant to act contrary to the faculty on issues where the faculty is strongly in favor of or opposed to a particular course of action. '12 The chairman of the' history department, Frederick Palmer, testified that in his department the addition of a single course is done within the departmental framework after consultation among the members of the de- partment. Professor Root, the chairman of the math department , testified that in conjunction, with the members of his department he has imple- mented a series of curriculum changes, e g., expansion of computer offer- ings, without going to the curriculum committee According to Professor Root, because there are no schoolwide math requirements, changes in the math curriculum do not have to go through the curriculum committee of the school for approval. Nevertheless, he stated that if the changes in- volve lower level math courses, e.g., freshman precalculus, the math de- partment will' inform the curriculum committee and the other schools. 13 Dean Mitchell testified that the entire board of trustees is not called upon to approve or disapprove the institution or discontinuance of a pro- gram of courses such as a major or a minor since this is usually accom- plished at the faculty level Dean Mitchell further testified that the board of trustees has never countermanded these decisions Further, Dean Mitchell could not recall any occasion on which the committee on educa- tional policy had failed to approve a new program submitted by any of the schools after having been approved by the curriculum committee and the faculty AMERICAN INTERNATIONAL COLLEGE However, proposals for the creation of new degree programs are further referred by the Committee on Educational Policy to the board of trustees for final approval. In the School of Arts and Sciences the faculty approved the decision to join the natural science department with the biology department. The de- tails of the package proposal were prepared by the natural science department chairman, Professor Murnane, and Professor Ahlberg, a member of the biology department.14 The major changes in the package proposal were the addition and elimination of courses, changes in course descriptions, and modifications in the required freshman courses, as well and in the number of credits required for a major. All the details of the faculty's proposal were approved and implemented. Another successful proposal of the faculty of Arts and Sciences was granting students humanities credit for one semester of introductory foreign lan- guage courses. Moreover, as a result of suggestions from Professors Provost and Habermehl, the addi- tion of a new introductory philosophy course was approved by the curriculum committee and the fac- ulty.15 The faculty has also discontinued course prerequisites on its own accord, as well as the for- eign language prerequisite for graduation. The latter decision diminished enrollment in foreign lan- guage courses and resulted in the elimination of two faculty positions in the School of Arts and Sci- ences.16 The faculty of the School of Business Adminis- tration has been active and instrumental in develop- ing new programs. A major in business studies was developed as a result of suggestions presented by the faculty to the curriculum committee of the school. The program allows credit towards a major in business ''studies for courses taken in the School of Arts and Sciences. Further, a major in informa- tion 'systems management was established as a result of recommendations by the curriculum com- mittee and the faculty.17 This school also imple- 14 Professor Ahlberg testfied that the proposal was the biology's de- partment's idea and that the two other members of the department were consulted and had input into the proposed changes. Professor Longo tes- tified that she and Professor Benjamin , both former members of the natu- ral science department, had discussed and suggested to Dean Birnbaum, the dean of the School of Arts and Sciences , combining the natural sci- ence, and the biology departments. 18 Notwithstanding the above, Dean Birnbaum testified that in the past 3 years the faculty of the School of Arts and Sciences had not proposed any significant change in the school's curriculum He attributed this to the decline in enrollment in these academic areas as well as the lack of faculty initiative. to We note, however, that the administration had advised the faculty that the two faculty positions might have to be eliminated due to eco- nomic considerations 17 Initially, the educational policy committee of the board of trustees did not approve the program because details had not been fully set forth 193 mented a 1-year master in business administration program, which was subsequently expanded to a 2- year program. All the programs and modifications suggested by the faculty of this school have been approved and implemented. The psychology and education departments were merged to form the School of Psychology and Education. According to Professor MacLachlan, although discussions were held with members of the education faculty, the initiative for the change came from the psychology department, particularly from the department chairman at that time. In the 1970s the School of Psychology ad Education im- plemented both graduate and undergraduate pro- grams. At the undergraduate level, a criminal jus- tice program ,was developed, and at the graduate level programs in criminal justice, clinical psychol- ogy, and school psychology were implemented. The minutes of the curriculum committee of the School of Psychology and Education for 6 Febru- ary and 2 May 1979 reveal that the committee voted and approved the criminal justice program for undergraduates, the master of arts in clinical psychology, the master of arts in educational psy- chology, and a certificate of advanced graduate study. 18 There was faculty involvement in the develop- ment , of the Division of Nursing. According to Professor Root, the administration and the faculty had expressed concerns over declining enrollment, resulting in the faculty urging the administration to consider designating people to investigate new pro- grams. Professor Root testified that he and Dr. Bertrand, the vice president - for external affairs, worked together on an ad hoc committee responsi- ble for the development of new programs. Root testified that they were actively involved in devel- oping the curriculum that, generated the nursing degree. Professor Root's work consisted primarily of providing backup support and research, develop- ing and making connections with the 'faculty in order to get the program generated, and seeking the approval of the State Nursing Board of Regis- tration, the curriculum committees, and the board of trustees. Professor Root testified that while developing the program he and Dr. Bertrand had to work with However, once the requested information concerning the program was presented to the committee the proposal was approved and implemented. 16 Professor MacLachlan testified that prior to the development of the graduate clinical psychology program he had been involved in a number of discussions with members of the psychology department, particularly with the clinical psychologists' who were deeply involved in planning the program However, Austin Flint, an associate professor in psychology and the acting chairman of the psychology department at the time of the hearing, testified he had no role in the development of the graduate pro- grams 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the different departments to coordinate the profes- sional; institutional, and elective requirements and coordinate with the curriculum committees of the School of Arts and Sciences and the School of Psychology and Education to determine where within the College structure the program would be established.19 An ad hoc committee surveyed faculty opinion as to which new programs should be developed and established. Professors Cavanaugh and Duffy of the English department suggested that a pro- gram in journalism be developed. Professor Root investigated the ramifications of the proposal and presented the program to the curriculum commit- tee of the School of Arts and Sciences where it was approved by the committee and the school's faculty. The Curtis Blake Child Development Center was established as a result of a private donation given to the College and operates under the jurisdiction of the School of 'Psychology and Education. How- ever, the design and functioning of the center was primarily formulated by Professors Paul Quinlan and Brian Cleary, both of whom were actively in- volved in graduate and undergraduate programs for instructing teachers in handling disabled stu- dents. According to Dean Mitchell, the reputation of these two professors was instrumental in attract- ing the support of the donor, Curtis Blake. The size, shape, and functional design of the building and the development of the programs were almost exclusively the work of those two faculty mem- bers.20 At the departmental level, faculty members de- termine course offerings; scheduling, course con- tent, and 'course prerequisites in concert with their departmental chairman .21 The role of the depart- ment chairman in course, content is to assure there is uniformity in content in the various multisection courses. The department chairmen submit to their deans the- courses that will be offered by their' de- partments and the proposed hours.22 The deans 19 The expansion of the program led ultimately to the establishment of the Division of Nursing as an autonomous entity while the exact date is unclear, this occurred sometime during the late 1970s 20 The Center was also established during the decade of the seventies. 21 Department chairmen are appointed for 3-year periods according to the provisions of the faculty handbook . However, both the faculty hand- book and the record are silent as to the procedure by which a faculty member becomes department chairman and as to who makes the appoint- ment The faculty ; handbook does provide that "department chairmen shall have evident administrative abilities to meet the problems of depart- ment management." 22 According to Professor MacLachlan, as chairman of the psychology department he, with faculty input, plans and implements the schedule for his department's course offerings, ensuring that there are enough sections for each course and that the courses offered are adequately staffed with the people qualified to teach them, Professor Roland Aubm testified that as chairman of the management department his duties include course scheduling , course content, promo- review the course offerings in order to avoid possi- ble conflicts and to achieve the most desirable allo- cation of time slots. Subsequently, the deans submit the information to the registrar, who makes the final scheduling adjustments and prepares a master program. When outlines for new courses are sub- mitted, the deans may edit the course descriptions that will go in the catalogue to ensure no duplica- tions in course content.23 Faculty members are not penalized for missing a class and they are not required to seek permission in advance if they are going to be absent. Howev- er, there is an implied requirement that faculty members should inform the dean or the department chairman if they know 'they will be absent so that a substitute for the class can be arranged. There is an informal policy that faculty are ex- pected to allocate 5 hours per week to office hours for student consultations. Dean Birnbaum testified that, although he at one time had sent a memo which stated that faculty were expected to comply with this requirement, he now merely requests that the faculty give him a list of their office hours. Dean Birnbaum speculated that if professors failed to keep office hours this would negatively affect their, performance evaluations.24 Faculty Role in Library Expansion and Renovation The faculty, through the library committee, made effective recommendations regarding the 'ex- tions, raises, administrative duties related to the faculty , and advising stu- dents. According to Professor Aubin , -he discusses with members of his department what courses will be offered and subsequently the entire fac- ulty of the School of Business Administration discuss a final schedule. In terms of course content he engages in informal discussions with members of his department to determine the general outline and direction of the department However, individual faculty members select their textbooks and the specifics of the courses they will teach Regarding collegewide course scheduling , the record reveals that at the 12 February 1974 faculty meeting Dean Mitchell informed the faculty that the administration had vetoed in advance the introduction of a 4-day class schedule for the 1974-1975 academic year. He noted that at a meet- ing with the department chairmen the tatter had concurred with the ad- ministration. Dean Mitchell added that the faculty had acted hastily at their previous meeting and had not directed the proposal through the ap- propriate committee for consideration Nevertheless, he stated that the proposal was attractive and the issue was open for possible implementa- tion the next year particularly if the appropriate committee developed safeguards to ensure the faculty's presence during the "enrichment day." The faculty at the conclusion of the meeting voted unanimously to direct the 4-day class proposal to the curriculum committee for further evalua- tion. 2a Dean Birnbaum testified that on one occasion when he believed the course descriptions of two , courses were similar he contacted the chair- men of the respective departments to examine whether there was an actual duplication in the content of the courses He testified that he had never directed a change in the content of a course. 24 Despite the above testimony, according to faculty minutes of 20 September 1977, Dean Mitchell announced a "new practice" to be imple- mented immediately that would increase faculty members' office hours to 10 It, is unclear from the record whether this requirement was ever im- plemented. AMERICAN INTERNATIONAL COLLEGE 195 pansion and renovation of the, College's, library during 1978 and 1979. The record contains a series of letters from Professor Henry Barton, chairman of the library committee, . to College President Courniotes listing the recommendations of the li- brary committee on this issue. A document entitled "Recommendations of the Faculty Library Com- mittee to the President Regarding the Expansion of the Library" contains recommendations on issues such as seating capacity, stack size, staffing, refer- ence shelving area, installation of an information retrieval console, lounge areas, office and work areas, casual reading room areas, and noise reduc- tion measures. A subsequent memo stresses the 'im- portance of a security system to ensure the security of the library collection and the library commit- tee's endorsement of the librarian's selection of the checkpoint security system as the most appropriate to serve the' College's purposes. Dean Mitchell, who served in an ex, officio capacity on the library committee, testified that the committee solicitied the faculty's input and that the most frequent re- sponse from the faculty was concern over the secu- rity of the books at the library. According to Dean Mitchell, the internal struc- ture, functioning, and staffing of the expanded li- brary as well as the adoption of the security system have been the product of the recommendations made by the library committee. Further, Dean Mitchell testified that the committee had input in the external design of the library as well. He re- called that the committee effectively urged that plans for the specific architectural design library roof that had been eliminated from the original plans be included in the final model. This modifica- tion cost the College an additional $50,000. An- other external feature incorporated at the commit- tee's recommendation was the renovation of a former music room and its conversion into a balco- ny for the main reading room. The library commit- tee reported periodically to the faculty on the progress of the library expansion. Faculty Role in Academic Policies The College's academic policies are set out in a document entitled "Academic Regulations of American International College." These regulations govern the academic criteria applicable to students encompassing such areas as: matriculation stand- ards, credit systems, full-time and part-time stu- dents, residence requirements, academic progress, grading system, course changes, academic honors, final examinations, and general academic require- meats.25. Substantive amendments to these regula- tions and other revisions to the College's academic policies are proposed and presented through the committee on academic standards and student ad- vising. This committee maintains a constant review of the College's academic policies and presents its proposed modifications to the entire faculty for ap- proval. In its annual report for the 1979-1980 academic year, the committee reported that the following academic revisions were brought before the com- mittee, approved by the faculty, and implemented: (1) a requirement that faculty' inform students at the beginning of the semester of their policy re- garding class attendance, (2) administration of ,final exams at the end of each semester'26 (3) modifica- tions in the credit hour requirements to qualify for academic honors, (4) establishment of a 5. 0 mini- mum average requirement for fraternity-sorority pledging,27 (5) implementation of a pass/fail credit option for the students of the Curtis Blake Center, and (6) implementation of new grade designations for unofficial course withdrawals. Joseph Cebula, dean of the School of Psychology and Education, testified that decisions proposed and implemented by this committee and the faculty in the areas of class attendance, academic warnings, and grading systems had not been overridden by,the administra- tion. Other items proposed by this committee and agreed to by the faculty were standards for identi- fying students with academic problems,28 a system 25 Dean Mitchell testified that as dean of the faculty and vice president of academic affairs he implements these academic policies vis -a-vis the students He further testified that any student may appeal to the commit- tee on academic standards a decision of his regarding the implementation of such policies as The minutes of the faculty meeting of 17 September 1974 reveal that Dean Mitchell opposed having final examinations in the fall semester and directed that the faculty not give a comprehensive exam during the last week of fall classes. Nevertheless, the faculty approved the change to exams at the end of each semester and it was implemented. 27 Professor Ahlberg, chairman of this committee, testified that this modification was proposed to the committee by the administration. Ac- cording to Professor Ahlberg, " [I]f the administration wants an academic change they work through these committees " 28 Professor Root testified that he, in conjunction with other members of the academic standards and student advisory committee, conceived a statistical model for quantifying the review process of students' academic standings. Prior to the creation of these standards the faculty would yearly review all the student folders in the registrar's office to determine which students had academic difficulties According to Professor Root, the faculty found this task burdensome and decided they did not wish to review all the academically problematic cases. The statistical model con- ceived divides the students into three categories of academic perform- ance-good academic standing, students who clearly are in academic dif- ficulty, and the borderline cases. Under the present system the adminis- tration, rather than the faculty, reviews the folders, classifies the students into one of the above categories, and acts accordingly . However, in those borderline cases where there appear to be extenuating circumstances the administration refers the case to the faculty for their consideration 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of probation for students, and a resolution that fac- ulty members confer with those students who are having academic difficulties after the fifth week of classes. Admissions In the early 1970s the College liberalized its ad- missions policy, increasing its rate of student ac- ceptances to more than 90 percent. This affected the structure and method of operation of the ad- missions committee, reducing substantially the im- portance of its recommendations in the selection of applicants for admission.29 The role of the commit- tee on admissions and financial aid now includes the formulation of policies regarding admissions and minimal involvement of the committee in the rejection or acceptance of student applicants.30 However, in the past years the role of the Commit- tee has been in 'effect limited to general discussions of the College's admissions policies. Professor Provost 'testified that during his tenure as chairman of this committee during the years 1978-1980 the committee did not initiate, ratify, or implement any changes in'the College's admission standards.31 In 1980, however, the committee was involved in active informal discussions with the di- rector of admissions, requesting that a report be prepared on the costs and effects of increasing the required SAT admission scores for applicants. At the graduate school level the faculty partici- pates more actively in selecting candidates for ad- mission. For instance, in the School of, Business there is an admissions committee, composed of three faculty members and two deans, which se- lects the candidates for admission to the masters in public administration program. Tenure The genesis of the tenure system established in 1974 was the College's declining enrollment pat- terns in the 1970s. The faculty and administration realized that, if tenure continued to be awarded almost automatically to eligible faculty members, increasing budgetary limitations would require ter- 19 The modifications in the role of the admissions committee were pro- posed specifically by an ad hoc committee on committee reorganization, which had been created at the time to investigate and propose modifica- tions in the overall committee structure This ad hoc committee submit- ted its proposal to the faculty for approval as well as to the committee on educational policies of the board of trustees. so In cases where the admissions staff is unable to make a final decision in a particular case the committee would be consulted in order to offer its recommendations to the director of admissions. According to Professor Provost, during his chairmanship the committee never played a role in the selection of student applicants. 31 Professor Provost testified that the only substantial resolution passed by the committee during his tenure was to maintain confidential the median SAT scores of the incoming freshmen, as disclosure of it might have had a harmful impact on the College 's morale mination of tenured faculty. According to Dean Mitchell, the president, with the faculty's tacit ac- quiescence, suspended the tenure system for those yet to receive tenure and directed the faculty steer- ing committee to develop alternatives and modifi- cations to the tenure system.32 After, numerous dis- cussions, proposals and counterproposals between the steering committee and the committee on edu- cational policies of the board of trustees, the tenure provisions currently contained in the faculty hand- book were approved by the faculty and the board of trustees. The present tenure system essentially establishes a schedule under which annual determi- nations are made about the retention and subse- quent consideration of faculty members for tenure. 3 3 The president of the College submits to the faculty tenure committee a list of those candi- dates who are eligible for tenure that year.34 The tenure committee contacts the candidates and asks that they submit to the committee all the informa- tion pertaining to their achievements in the areas of teaching effectiveness, institutional participation, professional commitments and community serv- ice.3 5 Following its review of a faculty member's quali- fications for tenure, the tenure committee forwards its recommendations to the president, the appropri- ate deans, the department chairman, and the candi- date himself.36 The tenure committee's recommen- dation is based solely on the candidate's academic credentials and not on the availability of tenured positions.37 If the tenure committee unanimously recommends against granting tenure, the candidate has no right to request review of that recommenda- tion. However, if the tenure committee's negative recommendation is not unanimous, then the candi- date may appeal the decision to a review commit- 32 Professor Root, who was a member of the steering committee at the time, testified that it was the faculty's concern and initiative that brought about the changes in the tenure system. 33 The steering committee has no residual role in the ongoing oper- ation of the tenure system; the tenure committee of the faculty does. 34 The president has never exercised his discretion to prevent a faculty member who is eligible for consideration from being reviewed by the tenure committee as Within the teaching effectiveness criterion the subcategories of eval- uative techniques are (a) written comments by the department chairman, (b) written comments by the dean of the school , (c) student evaluations and comments, (d) written comments from other members of the candi- dates' department, and (e) tests, syllabi, evidence of innovative teaching techniques, etc, submitted by the candidate. 36 The tenure committee has never rejected a tenure candidate The only occasion when tenure was not recommended was due to the candi- date's initial failure to submit the required materials However, once the proper documentation was presented and reviewed by the committee, tenure was recommended 37 The candidate's academic qualifications are reviewed solely by the tenure committee, the committee does not provide the president with the candidate's supporting materials AMERICAN INTERNATIONAL COLLEGE 197 tee.38 The recommendation of the review commit- tee for or against the tenure committee's recom- mendation is final. Upon receipt of the tenure committee's recom- mendation, the president evaluates the economic feasibility of the committee's recommendation based on the availability of tenured positions and makes a final determination on the tenure award .39 If tenure is denied it does not result in the automat- ic termination of the faculty member; he or she may be rehired on a year-by-year contract basis .40 If tenure is, not granted initially, those favorably recommended may be awarded,tenure subsequently upon the availability of tenured positions.41 Budget The College's overall budget is determined by the administration. The faculty plays no role in the fiscal matters of the College and is never formally or regularly informed of the College's financial sit- uation. The faculty has limited budgetary input at the departmental level. Each year the department chairmen, after consulting with faculty members, submit their department's proposed budget to the clean of their school.42 This budget is limited to supplies and equipment although some departments are allocated moneys for hiring graduate students as teachers aides. Departments like biology, which require an assortment of laboratory supplies and equipment, have larger budgetary requests than other departments. For example the biology de- partment's budget usually approximates $25,000 3s If the candidate appeals, a five-member review committee is ap- pointed as follows: two members chosen by the tenure committee from among its members , one member chosen by the candidate; one member chosen by the chairman of the candidate's department (or by the appro- pnate scholastic dean if the candidate is himself a department chairman), and one member chosen by the steering committee as According to Professor Root, during discussions for the new tenure system the faculty specifically expressed the desire that the tenure com- mittee review solely the academic qualifications of the candidates , defer- ring to the administration the ultimate decision of whether tenure should be awarded Further, the faculty did not want the tenure committee to categorize or rank those candidates who were favorably recommended. 40 Under the previous system, if tenure was not awarded the faculty member was automatically terminated and could not be rehired 4 i The faculty handbook provides that the president will provide the tenure committee with a list of the number of the available tenure posi- tions in each department. Upon receipt of the list, the tenure committee may make nominations to the president for filling these positions . In these nominations the tenure committee will consider not only those faculty members recently recommended for tenure but those faculty members who are advancing to eligibility in the near future The tenure committee will nominate a number of available candidates , which exceeds by one the number 'of available tenured positions be42 Frederick Palmer, chairman of the history department, testified that submits, to the dean of the School of Arts and Sciences his requests and recommendations for the budget by a given date, at which time he may discuss briefly with the dean his proposed recommendations Ac- cordmg to Palmer, his budget proposal is not discussed further with him and he subsequently receives a statement setting forth the budget alloca- tion for his department. whereas in 1979 those of the history and philoso- phy departments were respectively $375 and $140. Budgetary, requests are usually approved without modification. Faculty Role in Hiring and Firing There are no written or formal procedures guid- ing faculty hiring. According to Dean Mitchell, the faculty participates in the interview process and provides assessments and opinions on potential hires. Dean Mitchell stated that usually the depart- ment chairmen and the dean of the school solicit applications, although the latter's role is primarily to provide secretarial assistance with the mailings. As applications are submitted they are 'reviewed and screened by the department chairmen with or without input from the dean and faculty. Good candidates are interviewed initially by the depart- ment chairmen, with or without the dean's pres- ence, and subsequently by other faculty members of the department. The final choice is selected by the department chairman and the departmental fac- ulty and the recommendation is submitted to the dean. If there are a number of,possible candidates who are agreeable to the faculty they are, ranked by order of preference and the list is submitted to the dean.43 The dean of the school submits the rec- ommendation to the dean of the faculty/vice presi- dent for academic affairs, who in turn makes a rec- ommendation to the president. The president has final authority as to the professional rank and salary offered to new hires. Nonetheless, according to Dean Mitchell, the decision about rank, and salary usually emerges from, a -discussion among the department chairman, the dean of the school, the president, and himself. There are a number of instances set forth in the record of faculty members being hired as a result of recommendations made by the faculty and/or the department chairmen. When Dr. Cohen was re- tiring as chairman of the biology department, he and Dean Birnbaum solicited applications and screened applicants.' The candidate finally selected, Dr. Alhberg, was interviewed by Dean Mitchell, Dean' Birnbaum, Dr. Cohen, and Dr. Murnane, a faculty member. According to Dean Birnbaum, all the full-time faculty of the biology department were consulted.44 43 According to Dean Mitchell, the deans defer to the academic knowledge and qualifications of the department head concerning the pro- fessional acceptability of the prospective candidates, and it would be highly unlikely that the dean would overrule the choice of the chairman and the faculty. 44 The biology department faculty hire all their student teacher aides (although their financial compensation is determined administratively) 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dean Birnbaum testified that in the chemistry department two instructors were hired at the de- partment chairman's request. In the math depart- ment two faculty members, Dr. Desmaris and Mrs. Davis, were hired at the department chairman's recommendation.45 Dean Cebula testified that in the psychology de- partment, faculty hiring is a faculty function. The chairman gathers the resumes and-the departmental faculty screens them and interviews applicants. The final selection is arrived at by faculty consensus. Professor MacLachlan, chairman of the psycholo- gy department, testified that when the need for fac- ulty hiring arises, he requests that the dean author- ize a full-time or a part-time hire. Professor MacLachlan recalled that in the middle of the 1979 spring semester he met with the department's facul- ty to discuss their available options, and it was de- cided that a substitute would cover the classes for the remainder of the semester and a new hire would be sought to work on a full-time basis for the upcoming , fall semester. The faculty inter- viewed prospective candidates and the candidate of their choice, Professor Shmutte, was hired. Ac- cording to Professor MacLachlan, although Dean Cebula met the prospective candidates, he had no input in the final decision. The faculty has been consulted in the hiring of administrators. Professor MacLachlan, at his re- quest, participated in the search, committee for the dean of students. The search committee, composed of faculty, administrators, and students, placed ad- vertisements in journals, requested applications from various sources, and interviewed candidates. The committee's selection and final recommenda- tion were accepted. President Courniotes and Dean Mitchell consult- ed the faculty of the Business School prior to the selection of the school's dean. Candidates were interviewed by the faculty. The faculty's rejection of candidates was agreed to by the administration. However, candidates interviewed by and agreeable to the faculty did not accept the College's offer, and a month prior, to commencement of the fall se- mester a dean had not yet been hired. The presi- dent presented the, faculty with the resume and cre- dentials of another candidate and asked the faculty if the person should be hired. Without interviewing the candidate, a majority of the faculty responded affirmatively and the individual was hired. The discharge of faculty members has been ulti- mately effectuated by the deans and the president. 45 Dean Birnbaum stated that the candidates were interviewed by the chairman , Dean Mitchell, and himself and "it was our collective and unanimous judgment that in both instances the recommendations made by the chairman should be acted upon favorably " However, department chairmen have effectively recommended firing of faculty members. In 1979, President Courniotes, due to restrictions in the history department's budget, removed Pro- fessor Belsky from the history department staff and named him assistant dean for continuing education. However, at the history department chairman's re- quest, Professor Belsky continued teaching one his- tory course per semester. The history department also suffered another faculty dismissal due to economic considerations. Dean Birnbaum testified that he informed Dr. Davis, the chairman at the time, that a member of the history department, would have to' be terminat- ed. Dean Birnbaum asked for the chairman's input as to who should be selected. Dr. Davis, after con- sultation with the previous department chairman, reluctantly recommended that termination of Pro- fessor Scanlon would be the least damaging to the department. Professor Scanlon was terminated. In 1980 Dean Birnbaum terminated Professor Provost, a member of the philosophy department. According to Professor Habermehl, the department chairman since 1978, Dean Birnbaum had ques- tioned him about the department's declining enroll- ment figures and the feasibility of maintaining a two-member department. Finally, in 1980, Dean Birnbaum informed Professor Habermehl that Pro- fessor Provost would not be rehired for the 1980- 1981 academic year. Professor Root, the mathematics department chairman, testified that he has fired members of his department. According to Professor Root, after nu- merous discussions between himself and Professor Davis concerning the latter's unsatisfactory per- formance in the classroom and in her relationships with students, he discharged her in 1979. Professor Roland F. Aubin, chairman of the management de- partment, testified that he has effectively recom- mended to his school dean, the academic dean, and the president, the nonrenewal of - a faculty mem- ber's contract. Also, Dean Birnbaum testified that in 1974 Pro- fessor Duffy, the chairman of the English depart- ment, recommended the termination of Professor Brodsky. According to Dean Birnbaum, the teach- er's performance was such as to warrant serious consideration of her retention on the faculty., Prior to making his recommendation, Professor Duffy undertook an extensive investigation of Professor Brodsky's performance including visits to classes, review of student evaluations, and consultations with other members of the department.46 Professor 46 Dean Birnbaum testified that, although he forwarded Professor Duffy's recommendation to the academic dean without an independent Continued AMERICAN INTERNATIONAL COLLEGE 199 Duffy ultimately concluded that the teacher's, ap- pointment should be terminated. He notified Dean Birnbaum of this conclusion. The dean did not dis- cuss the matter with the teacher in question; in- stead, he endorsed the department chairman's rec- ommendation and submitted it to the vice president for academic affairs/dean of the -faculty. Professor Brodsky's employment was terminated. Faculty Performance Evaluations, Raises, Promotions, and the Merit Evaluation System Faculty performance evaluations are done by the department chairmen following the guidelines of the merit evaluation system established by the fac- ulty. The system, which affects decisions regarding retention, salary increases, promotions, and tenure of faculty members orginated as a consequence of faculty objections to across-the-board salary in- creases which did not take into account individual merit as a relevant consideration.47 The faculty steering committee, aided particularly by Dr. Root's contributions, devised the present merit evaluation system described in the faculty hand- book and approved by the faculty and the board of trustees.48 The system is a mathematical model where by faculty members are rated annually on a numerical scale based on teaching effectiveness, in- stitutional usefulness, professional activity, and community service.49 This numerical assessment is based on a specific amount as an across-the-board increase and an additional amount based on indi- vidual merit. Salary increases are directly related to the merit rating, as they are calculated by multi- plying the faculty's member's rating by a specific increment. Consequently, the higher the merit rating the higher the salary raise. The initial rating or assessment originates with the department chairman after an evaluation of the evaluation of the circumstances , he usually does conduct an mdependent evaluation of the faculty member's performance. He explained that the deviation from his norm was due to his having worked with Professor Brodsky when he served as chairman of the English department and his being cognizant of her performance. 41 President Courniotes testified that he met with the department chairmen and suggested that a formal merit system be adopted to accom- modate the desires of the faculty. 48 Although the faculty handbook does not set out the precise proce- dural steps followed at each step of the performance evaluation under the merit evaluation system, these steps are set ou t in a memo from the presi- dent of the College to the president of the steering committee 43 Student evaluations of faculty performance are an integral part of the merit evaluation system . Upon recommendations by the steering com- mittee, the faculty has approved revisions of the measuring instrument in terms of both the content of the form and the schedule of implementa- tion. These student evaluations are conducted every'semester for junior members of the faculty and for other faculty members one semester a year, alternating between spring and fail. The board of trustees has never exercised any veto power over faculty decisions relating to the student evaluation forms faculty member's, performance. 5 0 The department chairman 'discusse's the rating with the faculty member and then submits his recommendation to the dean- of his school.51 Final assessments are made in consultation with the deans of the schools, the dean of the faculty, and the president.52 A fac- ulty member who wishes to challenge his or her final evaluation under the_ merit system must initial- ly raise such a challenge with the department chairman. If not resolved at this level, the chal- lenge may then be addressed to, in sequence, the dean of the school, the vice president for academic affairs/dean of the faculty, and, finally, the presi- dent of the College. , Professor Root, as chairman of the mathematics department, has submitted 12 different merit eval- uations, all of which have been accepted without change. Similarly, Professor Aubin stated that as chairman of the management department he sub- mits his assessment to the school's dean and that on those occasions when he and the dean have dis- agreed on the amount of the increase his recom- mendation has usually prevailed. The promotion of faculty members within pro- fessorial ranks is related to evaluations received under, the merit evaluation system, although the re- lationship between performance evaluations and promotions is not as direct a relationship as exists between performance evaluations and salary in- creases.53 According to Dean Mitchell, the process by which faculty members are considered for pro- motion closely parallels the annual merit evaluation system described above. The procedures for grant- ing promotions are not set forth in any of the Col- lege's official documents. In practice, recommenda- tions for promotion are made by the department chairmen to the dean of the school, who in turn so Merit ratings for department heads are established directly by the deans of the schools. sa In the above-mentioned memo from President Courniotes to the steering committee, the president states that the role of the deans of the schools in reviewing these merit ratings is primarily to minimize overrat- ings 'by some departmental chairmen and unduly harsh evaluations by others. According to President Courniotes, the deans of the schools, being privy to evaluations of other, department heads, are in the best posi- tion to arrive at an evaluation of each faculty member in his school on a basis consistently applied by all department heads The deans of the three schools also meet to ensure consistent application of the ratings in all three schools 52 According to Professor MacLachlan, the final rating is the result of an implicit negotiation between the chairman and the deans He stated that as chairman of the psychology department he usually assigns a slightly higher rating knowing that the final rating will be reduced some- what by the administration. 53 The faculty handbook sets forth the qualifications, academic or oth- erwise, for eligibility to a particular academic rank . According to Dean Mitchell, these prerequisites were established by the faculty in the I950s and have remained relatively unchanged. The only modification adopted as a matter of academic practice was that qualification for promotion to the rank of associate professor in the event a faculty member did not pursue the doctorate degree would be 15 years instead of 10 years. 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD submits the recommendation to the dean of the fac- ulty and the president. According to Professor Aubin, chairman of the management department, he recommends promotions on the basis of the fac- ulty member's past performance, courses taught, and student evaluations. He stated that he submits his recommendations to the dean of the school and that these have always been accepted. The faculty has no input in evaluating the per- formance of administrators. At a faculty meeting in 1976, the faculty approved a resolution in favor of implementing a procedure for faculty evaluation of administrators. Dean Mitchell testified that the president declined to implement this resolution on the grounds that it would divide the College com- munity. Nonetheless, the, president submitted the resolution to the board of trustees, who in turn supported the president and rejected the faculty's resolution. According to Dean Cebula, who also testifed to these events, he did not recall any other instance where the board of trustees declined to accept a faculty resolution. Analysis and Conclusion In NLRB v Yeshiva University, 444 U.S. 672 (1980), the Supreme Court decided that the faculty at Yeshiva University - were managerial employees and hence excluded from coverage under the Act. The Court defined managerial employees as those employees who "formulate and effectuate manage- ment policies by expressing and making operative the decisions of their employer."54 The Court stated that the purpose 'of excluding managerial em- ployees, like the purpose of excluding supervisors from the Act's coverage, is to assure the employer of the undivided loyalty of its representatives. The Court found that the faculty at each of the Yeshiva University schools effectively determined curriculum, grading system, admission, matricula- tion standards, academic calendars, and course schedules. The Court found that in nonacademic areas the faculty made recommendations as to hiring, tenure, sabbaticals, terminations, and promo- tions, the majority of which had been implement- ed.55 In addition, the Court found that the faculty at some schools made decisions regarding admis- sion, expulsion, and graduation of individual stu- dents,' and that others had made decisions involving teaching loads, student absence policies, tuition, and enrollment levels and in one case the location of a school. In light of all these factors, the court concluded:56 Their authority in academic matters is abso- lute. They decide what courses will be offered, when they will be scheduled, and to whom they will be taught. They debate and deter- mine teaching methods, grading policies, and matriculation standards. They effectively decide which students will be admitted, re- tained, and graduated. On occasion their views have determined the size of the student body, the tuition to be charged, and the location of a school. When one considers the function of a university, it is difficult to imagine decisions more managerial than these. To the extent the industrial analogy applies, the faculty deter- mines within each school the product to be produced, the terms upon which it will be of- fered, and the customers who will be served. Moreover, the Court stated that "the fact that the administration holds a rarely exercised veto power does not diminish the faculty's effective power in policymaking and implementation . . . . the rele- vant consideration is effective recommendation or control rather than final authority."57 In University of New Haven, 267 NLRB 939 (1983), the Board adopted the administrative law judge's finding of the faculty's managerial status. The judge found that, the faculty had input into de- partmental budgets and effectively determined course and program offerings, course schedules, admission to graduate programs, academic stand- ards policy, graduation eligiblity, teaching methods and teaching loads, student body size at the gradu- ate school level, the use and construction of physi- cal facilities, and the status of academic disciplines. Also the judge found significant faculty input in hiring, promotions, and tenure of faculty mem- bers.58 In ' College of Osteopathic Medicine, 265 NLRB 295 (1982), the Board found the faculty to be man- agerial- based on their authority in formulating aca- demic standards and curriculum as well as their ef- fective role in recommending students for admis- sion. Further, the Board relied on the faculty's in- fluence in ' hiring and promotion of faculty mem- bers. The Board noted that, although the adminis- tration made final decisions on tenure awards, the tenure committee's recommendations were heavily 54 444 U S at 682 (quoting NLRB v. Bell Aerospace Co, 416 U.S. 267, 288 (1974)) ,55 The Court noted in fn 23 of its decision that since it was not reach- ing the issue of the supervisory status of the faculty and inasmuch as the above factors had managerial and supervisory characteristics it was not relying primarily on these factors for determining faculty authority. ss 444 U.S at 686 S7 444 U.S. at 683 fn. 17. 58 The Board noted that in the area of faculty hiring, although faculty recommendations were followed in almost every instance, there was a small percentage of the hiring, which was performed with little or no input from the faculty. 267 NLRB at 939, fn. 3 AMERICAN INTERNATIONAL COLLEGE relied on by the administration,. ..The Board ,eon- eluded that the faculty had almost plenary author- ity in academic matters and significant input into important nonacademic areas.59 Applying the above-stated considerations to the instant case, we find that the faculty at American International College is managerial, as it makes ef- fective decisions in the majority of the critical areas relied on by the Supreme Court in Yeshiva and by the Board in subsequent cases. Similar to the above-mentioned cases, the American Interna- tional College faculty exercises control over cur- riculum and academic policy through faculty par- ticipation in the various curriculum committees. Furthermore, as a faculty, it has decision-making power over proposals and recommendations of the various faculty standing committees. Faculty proposals regarding the establishment of degree programs at both graduate and undergradu- ate levels have been implemented. The faculty has established major fields of study, modified course requirements, and added and deleted course offer- ings-all of which have been approved by the ad- ministration. At the departmental level, course of- ferings, course content, course descriptions, and course scheduling are determined jointly by the faculty and the department chairmen, with the deans serving principally as coordinators between the different departments. Although in theory the deans have veto power over all faculty proposals, they have not in practice countermanded faculty decisions in the above-mentioned areas. The faculty also sets academic policy in the areas of matricula- tion, credit systems, discontinuance of, credit re- quirements for graduation, academic honors, class attendance, probationary standards for students, and, academic criteria in general, without opposi- tion by the administration. The faculty's influence extends beyond strictly academic matters. The faculty played an effective role in planning and designing new facilities and modifications to the existing physical plant. Effec- tive faculty recommendations led to the renovation and construction of both the new library and the Curtis Blake Center. Another area where the faculty exercises effec- tive authority is tenure. Not only was the faculty a prime ' developer of the present tenure system, but it is also the only body at the College that, through the tenure committee, is responsible for evaluating the academic qualifications of candidates eligible for tenure. Although the administration retains con- trol over the budgetary aspects of the tenure awards, this does not detract from the faculty's ex- ss See also Ithaca College, 261 NLRB 577 (1982), Thiel College, 261 NLRB 580 (1982); Duquesne University, 261 NLRB 587 (1982). 201 rae of authority in evaluating the academic cre- dentials of their colleagues. Faculty members also exercise considerable influ- ence in hiring. Faculty members, particularly de- partment chairmen, are actively involved in solicit- ing, screening, interviewing, and recommending potential candidates for hire. Faculty influence has extended to the selection of some academic deans. There is no evidence of a candidate for faculty or dean position being hired over faculty opposition. The faculty was instrumental in developing the merit evaluation system and the student evaluation forms used for evaluating faculty performance. The department chairmen implement the performance appraisals by evaluating faculty members and their recommendations are' followed, subject only to slight modifications by the administration. As noted previously, the merit rating assigned affects the salary and promotions of faculty members. Regarding student admissions at the undergradu- ate level, the faculty plays a very limited role in screening and selecting applicants. However, the applicant acceptance rate is, over 90 percent, thus substantially minimizing the 'importance of this aspect. Accordingly, we find that the faculty's role in undergraduate admissions is not probative of either managerial or nonmanagerial status. At the graduate level, however, the faculty has played a more active role in selecting particular candidates for admission. Although the faculty effectively participates in hiring decisions, it exercises only a limited role in terminations. While on occasion departmental chairmen have effectively recommended termina- tions and have been consulted regarding termina- tions within the departments, we cannot conclude that in this area the faculty exercise managerial au- thority. 6 ° Similarly, the faculty's participation in budget matters is limited since its role is to submit budgets for the respective departments and they have no input regarding the College's overall finan- cial situation. Despite limited authority of the faculty in these areas the preponderance of the cumulative evi- dence in the record establishes that the faculty plays a major and effective role in the formulation and effectuation of policies affecting the critical areas identified by the Supreme Court in Yeshiva.61 60 In Duquesne University, supra, although the faculty had no input in faculty terminations, the Board did not find this factor to be determina- tive. The Board found the faculty to be managerial since it exercised sig- nificant authority in academic matters such as curriculum, grading, ad- missions, and matriculation 61 Both the Employer and the Petitioner introduced into evidence min- utes of faculty meetings over a 5- to 6-year period The minutes them- selves reflect that there were substantial and meaningful faculty discus- ` Continued 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In support of its contention that the faculty is nonmanagerial, the Petitioner relies on instances in which the administration has vetoed some faculty proposals. For example, the Petitioner notes the ad- ministration's rejection of the proposal to have ad- ministrators evaluated by the faculty , the adminis- tration's request that portions of, the proposed tenure package be modified, and the administra- tion's control over tenure awards. We have consid- ered the incidents in question and find they are not substantial or predominant and do not show a pat- tern of unilateral action by the administration, which undermines the faculty's, overall authority in the College's affairs.62 Recent cases where the Board has found that a college administration's unilateral actions preclude a finding of managerial status are clearly distin- guishable ` from the instant case in that the faculty participation was substantially less effective. In Cooper Union of Science & Art, 273 NLRB 1768 (1985), enfd. 783 F.2d 29 (2d Cir. 1986), the Board found that although the faculty exercised some au- thority in curriculum and academic areas, such au- thority had been undermined by the administration in a variety of ways, e .g., the administration's cre- ation and elimination of entire degree programs without faculty input or over faculty opposition, exclusion from ' academic governance of a large proportion of the faculty for a number of years, the amendment of "governances" without a faculty vote, and the creation of a special admission pro- gram without faculty approval. Similarly, in Ken- dall School of Design , 279 NLRB 281 (1986), the Board adopted the Regional Director's finding that sioris, sometimes with input from the deans and the president , over the various programs and proposals. However, in many instances the minutes in and of themselves are inconclusive as to the final outcome of these proposals Nevertheless, the record as a whole establishes that the over- whelming majority of proposals approved by the faculty in the academic area were implemented 62 Even in Yeshiva faculty proposals were sometimes vetoed by the ad- ministration. The Supreme Court found in Yeshiva that "administrative concerns with scarce resources and University -wide balance have led to occasional vetoes of faculty action . But such infrequent administrative re- versals m no way detract from the institution's primary concern entrusted to the faculty." 444 U S at 688 fn. 27. the faculty were nonmanagerial . The Regional Di- rector found , that the faculty's lack of power was exemplified by the faculty members' inability to make independent decisions necessary to teaching their own classes, the administration's tight control over committee membership procedures , agendas, and final products ; and the lack of systematic mechanisms for ascertaining faculty 'views. The Petitioner further argues that faculty pro- posals and decisions have to be approved by the administration, thereby diminishing the faculty's authority. However, the fact that ultimate decision- making authority lies with the president and the board of trustees does not impede a finding that the faculty is managerial .63 This argument was raised by the union in College of Ostheopathic Medicine, supra, and in Boston University, 281 NLRB 798 (1986), and was rejected by the Board. The Board, relying on Yeshiva, stated that the administration's retention of final decision-making authority was not determinative of managerial status where the facul- ty retained managerial authority through its effec- tive recommendations. Id. In sum, the faculty of the American International College exercises effective control over the critical areas found in Yeshiva and in subsequent Board cases to be indicative of managerial status . The fac- ulty here, through their participation on faculty committees, as departmental chairpersons, and as members of the faculty as a whole, effectively de- termines the curriculum and academic policies and standards of the College and exerts significant in- fluence in decisions regarding hiring, tenure, and evaluation of their fellow faculty members . In view of the foregoing, we find that the full-time faculty of the American International College are manage- rial employees and thus excluded from coverage under the Act. Accordingly, we shall dismiss the instant petition. ORDER The petition is dismissed. 63 NLRB v. Yeshiva University, 444 U S. at 683 fn 17