Livingstone College

1308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Livingstone College and Livingstone College Federa- tion of Teachers and Librarians, AFT, AFL- CIO, Local 4110, Petitioner. Case 11-RC-4957 30 November 1987 DECISION ON REVIEW AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN, BABSON, STEPHENS, AND CRACRAFT On 26 February 1981 the Acting Regional Direc- tor for Region 11 issued a Decision and Direction of Election in the above-entitled proceeding in which he asserted jurisdiction over Livingstone College and found appropriate the petitioned-for unit of all full-time teaching faculty, including de- partment and division chairpersons and professional librarians but excluding the Hood Theological Seminary faculty and two associate librarians. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, the Employer filed a timely request for review of the Acting Regional Director's deci- sion. The Employer asserted that the Acting Re- gional Director should have dismissed the petition, arguing that the Board lacked jurisdiction over the College because it is a church-controlled and domi- nated institution within the meaning of the Su- preme Court's decision in NLRB v. Catholic Bishop of Chicago,' and that the College faculty is mana- gerial as that term is defined by the Supreme Court in NLRB v. Yeshiva University.2 The Employer also contended that the Acting Regional Director erred in not excluding the department and division chair- persons as statutory supervisors. The Employer also posited that in the event an election was con- sidered to be appropriate by the Board, the Acting Regional Director erred in excluding the two asso- ciate librarians and the seminary faculty from the bargaining unit. The election was conducted on 26 March 1981 and the ballots were impounded. In an Order dated 10 December 1986 the Board granted the Employer's request for review. No party filed a brief on review. The Board has considered the entire record in this case and finds that the assertion of jurisdiction over Livingstone College would not create the same significant risk of entanglement between church and state as that envisioned by the Court in Catholic Bishop. The Board further finds, however, that the College faculty members are managerial employees as defined by Yeshiva University and therefore the petition must be dismissed. In view of 1 440 U S 490 (1979). 2 444 U.S 672 (1980) this decision, it is unnecessary to reach the other issues raised in the Employer's request for review. Jurisdiction Livingstone College (the College) is a 4-year lib- eral arts college in Salisbury, North Carolina. It was founded in 1879 under the auspices of the Af- rican Methodist Episcopal (AME) Zion Church (the Church). The College is divided into the arts and sciences college and the Hood Theological Seminary. The Church remains the sponsoring body of the College. The Church contributes ap- proximately $845,000 annually to Livingstone: Hood Theological Seminary receives approximate- ly $145,000 out of an overall budget of $250,000 and the arts and sciences college receives about $700,000 out of an overall budget of approximately $5 million. Livingstone College also receives ap- proximately 30 to 40 percent of its budget from the Federal Government. The College is headed by a 24-member board of trustees. The Church names 12 bishops of the Church to be members of the board. The remaining members are nominated by the board's nominating committee and confirmed by the general confer- ence, the legislative body of the Church. These 12 board members need not be members of the Church; two of them are elected from the Col- lege's alumni association. Traditionally, the senior bishop of the Church serves as chairman of the board of trustees. There is also an elected faculty member who acts as faculty staff representative to the board of trustees. All bylaws and all amendments to the bylaws of the College must be approved by the general con- ference. Under the bylaws, the board of trustees has the authority to operate the seminary and the arts and sciences college. The board of trustees elects the president of the College who may be, but is not required to be, a member of the board. The board of trustees holds title to the property of the College. To encumber or lease the property re- quires approval by two-thirds of the board of trust- ees, and to sell any property requires the approval of the general conference. The board has the au- thority to approve the appointment of faculty members, to remove faculty members, and, on the president's recommendation, to authorize an overall budget amount for faculty salaries. The board of trustees approves academic and honorary degrees. The board of trustees also is authorized to promul- gate rules and regulations to ensure academic free- dom. The president is delegated the responsibility for the administration of educational, fiscal, and physical aspects of the College and generally makes final decisions in these areas. 286 NLRB No. 124 LIVINGSTONE COLLEGE 1309 According to the faculty handbook, which was approved by the board of trustees in 1979, the Col- lege aims primarily to foster higher education in an atmosphere supportive of Christian values contrib- uting to moral integrity and human dignity. Ac- cording to its own definition of its goals, the Col- lege seeks to: broaden the students' knowledge and understanding; foster critical and constructive thinking; encourage an unfettered search for truth; develop the students' communication skills; engen- der self-awareness, acceptance, and self-reliance; prepare students for graduate study; and foster a sense of responsibility and creative participation in society. Each student who attends Livingstone College is required to take 4 credits (i.e., 2 courses) of reli- gious studies out of the approximately 124 credits needed to graduate. Applicants for admission to the College need not be members of the Church. In fact, the students enrolled at Livingstone are pre- dominantly Baptist. Although the College cele- brates a religious week during the month of Janu- ary, attendance is not compulsory. Furthermore, the College hires faculty members who are not members of the AME Zion Church. F. George Shipman, president of the College, testified that neither the College nor the seminary sets require- ments for the religious orientation of prospective faculty members. There is also no requirement that any of the faculty remit partof their compensation to the Church. In Catholic Bishop, the Supreme Court found that assertion of jurisdiction over teachers in church-op- erated schools3 posed a serious risk of impermissi- bly infringing on rights guaranteed by the religion clauses of the first amendment and concluded, therefore, that the Board improperly asserted juris- diction over lay faculty at several Roman Catholic high schools. Thereafter, the Board expressly inter- preted the holding in Catholic Bishop as applying only to parochial elementary and secondary schools and not to institutions of higher learning.4 More recently, however, the Board held in St. Jo- seph's College, supra at footnote 4, that the Court's holding in Catholic Bishop is not limited to parochi- al elementary and secondary schools, but rather ap- plies to all schools regardless of the level of educa- tion provided. The Board noted that it would con- 3 The Board recently clarified the Court's use of the term "church- operated school" by finding that the Court supply used this phrase to de- scribe schools whose purpose and function in substantial part are to prop- agate a religious faith, and did not intend to require that the school be owned or affiliated with a religious organization . See Jewish Day School of Greater Washington, 283 NLRB 757 (1987). 4 See, e g, Barber-Scotia College, 245 NLRB 406 (1979), College of Notre Dame, 245 NLRB 386 (1979); Thiel College, 261 NLRB 580 (1982), and Lewis University, 265 NLRB 1239 (1982), which were all overruled on that issue by St. Joseph's College, 282 NLRB 65 (1986) Sider on a case-by-case basis whether the exercise of the Board's jurisdiction presents a significant risk of infringing on first amendment rights. In St. Joseph's College, the Board found that the college exhibited many characteristics that raised a significant possibility of infringing on the first amendment. St. Joseph's College was financially dependent on the Sisters of Mercy of Maine (the Order). Further, all members of the board of trust- ees were required to be members of the Order and consequently the Order exercised administrative control over the college. The bylaws required the board of governors to establish policies consistent with the Roman Catholic religion and the college handbook prohibited the faculty from knowingly inculcating ideas contrary to the official position of the church on matters of faith and morals. In addi- tion, the Bishop of Portland had the authority to remove faculty members for conduct contrary to Catholic beliefs and to determine the books used in the classroom. The Board particularly noted the college's requirement that faculty members con- form to Catholic doctrine and sign a letter agreeing to promote the objectives and goals of the Order. Citing Catholic Bishop, the Board concluded that its assertion of jurisdiction in these circumstances would necessarily involve it in an "inquiry into the good faith of a position asserted by clergy-adminis- trators" in the resolution of unfair labor practice al- legations involving discipline or discharge, which presented a substantial likelihood of infringing on first amendment rights. Accordingly, the Board de- clined to assert jurisdiction. In contrast, we find that here, unlike St. Joseph's, the AME Zion Church is not involved with the College in a manner that creates a significant risk of constitutional infringement. Livingstone College is not financially dependent on the Church. Only one-half of the board of trustees are required to be bishops of the Church; the remaining members of the board need not even belong to the Church. Further, the College does not have a religious mission as did St. Joseph's College. The stated pur- pose of the College is to foster higher education; promote critical and constructive thinking; develop communication skills; and engender self-awareness, acceptance, and self-reliance. Of more significance is the fact that faculty members are not required to conform to AME doctrine or promote the ideals and objectives of the AME Church, nor are they prohibited from knowingly inculcating ideas that are contrary to the position of the AME Church on matters of faith and morals. In fact, the bylaws of the College authorize the board of trustees to promulgate rules promoting academic freedom. In addition, there is no evidence that the Church 1310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD could require dismissal of faculty for engaging in conduct not in harmony with the teachings of the Church, or for advocating ideas contrary to Church beliefs. The absence of a religious mission, and the absence of a requirement that the faculty propagate or conform to a particular religious faith significantly diminishes any risk of impermissible constitutional infringement posed by asserting juris- diction over the College. The Church does not interfere with the day-to- day administration of the College. There is no evi- dence that the Church exercises any influence with respect to course content or the selection of books. There is no requirement that students belong to the AME Church. Neither faculty nor students are compelled to engage in worship. Participation in religion week in January is not compulsory. Stu- dents are required only to take 4 credits of reli- gious courses as a prerequisite to graduation; these constitute a small percentage of the approximately 124 credits required for graduation. Thus, although we recognize that the AME Zion Church owns the College's property, appoints one- half of the board of trustees, and provides financial support for the College, we find this insufficient to raise a serious constitutional question under Catho- lic Bishop. Consequently, we find that here, where the purpose of the College is primarily secular, where teachers are not required to submit to or support the bishops or the teachings of the Church, and where the Church is not involved in the day- to-day administration of the College, the assertion of jurisdiction does not pose a significant risk of in- fringement on the first amendment. 5 Managerial Status of Faculty Livingstone College is divided into four divi- sions: education and psychology, humanities, natu- ral sciences, and social sciences. Each division is headed by a division chairperson, who reports di- rectly to Olivia Spaulding, the dean of the liberal arts college. Within the 4 divisions are 11 depart- ments, each headed by a department chairperson. Three of the department chairpersons are also divi- sion heads. Department and division heads are rec- ommended by Dean Spaulding and approved by the president, and receive 9-1/2 months of compen- sation, unlike faculty members who receive 9 5 In reaching our decision in this case we note the First Circuit's deci- sion in Univers,dad Central de Bayamon Y. NLRB, 793 F.2d 383 (1st Cir 1986). Initially, by a 2-1 vote, the court enforced the Board's decision asserting jurisdiction and ordering the university to bargain with the union Subsequently, however, the full court vacated the panel's decision and reheard the case en banc Ultimately, an equally divided court, 3-3, denied enforcement Accordingly, the First Circuit's decision lacks prece- dential value and we find it unnecessary to discuss the applicability of the First Circuit's denial of enforcement of our decision to assert jurisdiction in Bayamon to the instant case. months of compensation. Faculty and staff attend monthly staff meetings chaired by the dean. Facul- ty members receive a faculty handbook, which President Shipman testified was binding on the fac- ulty and the administration. The newest faculty handbook was approved by the board of trustees in 1979, without a vote by faculty members. The faculty members participate in academic governance through membership on various stand- ing committees and by virtue of a facultywide vote on recommendations proposed by the various com- mittees. Committees are composed of varying num- bers of representatives from the administration, fac- ulty, and student body. Members of these commit- tees are selected by the committee on committees in collaboration with the dean, or are appointed by the president. The committee on committees is composed of five persons-three elected by the faculty and two appointed by the dean. The curriculum catalog committee formulates policies and procedures pertaining to academics and approves all of the College's instructional of- ferings and institutional policies. This committee is composed of the department chairpersons, the divi- sion heads, the registrar, the head librarian, and one or two faculty members and is responsible for all curriculum changes. The committee recom- mends the addition or deletion of courses, the addi- tion of new degrees, and changes in admissions policies. In addition, it is responsible for setting graduation requirements, such as the number of hours, degree requirements, and retention and ex- pulsion standards. Neither the dean nor the presi- dent is able to make curriculum changes unless the change is approved by this committee. The entire faculty votes on the recommendations proposed by the curriculum committee. The record revealed only two instances in which curriculum recommendations were implemented prior to a fac- ulty vote. Both occurred because of time con- straints. Generally, recommendations approved by the faculty are implemented without prior approval from the president or the board of trustees.e In the event the proposed change requires an inordinate amount of financial resources, prior approval must be obtained from the president and the board before implementation. However, Dean Spaulding recalled only one such instance, i.e., the recommen- dation to add a bachelor's degree in social welfare work. The "ad hoc honors" committee presents names of candidates to be considered for honorary de- For example, the faculty implemented a dual degree program in the engineering department without prior approval from the president or the board of trustees LIVINGSTONE COLLEGE 1311 grees. The entire faculty then votes on each candi- date and the names of those approved are submit- ted to the honorary degree committee of the board of trustees, which makes the ultimate decision. Dean Spaulding testified that each recipient of an honorary degree from Livingstone had been ap- proved by the faculty. The scholarship and honors committee makes recommendations regarding scholarships, awards, and academic honors and es- tablishes the criteria for each category. This com- mittee also administers the awards to ensure that they comport with the guidelines established by the award donor. The entire faculty then votes on each student nominated and the president ultimately names the recipients. The student life committee, composed of both faculty and student members, recommends policies concerning student social life and campus activities. This committee is responsible for such areas as stu- dent dress, social functions, fraternities, and sorori- ties. In one instance the student life committee de- termined that it would take no disciplinary action against a fraternity that had been involved in a campus disturbance.7 The faculty participate in determining which stu- dents graduate by voting to approve or disapprove awarding a degree to each candidate. The board of trustees also votes on each candidate; however, in no instance has a student been granted a degree without an affirmative vote by the faculty. Department heads are responsible for organizing and leading the department, holding meetings, en- suring that departmental courses meet the sequence for the majors, submitting reports, book orders, and requisitions, assigning student advisors, and identi- fying staffing and space needs. Department heads fill out a course form for each course to be taught in their respective department, showing the course number; course description;, approximate enroll- ment; and time, place, and faculty member to teach the course, which is then signed by their respective division head. Course content is the responsibility of the faculty member teaching the course in con- cert with the department chairperson, and faculty members prepare the syllabus for their own courses. The dean's office's role in course selection is limited to coordinating the course schedules to eliminate conflicts and issuing a final schedule.8 The dean's office also makes room assignments for classes. Each faculty member has the ability to determine his or her own grading schedule, although institu- tional policy requires that the grading schedule be included in the syllabus. Grades cannot be changed without the approval of the faculty member from whom the student received the grade. Attendance policies for freshman and sophomore students are set by the College. The College does not have an attendance policy for junior and senior students and consequently the effect of their lack of attend- ance is determined by individual faculty members. With respect to the role of the faculty in the stu- dent grievance procedure, a dissatisfied student meets first with a faculty member, then in succes- sion with the department head, division head, and the president. Faculty members play no role in the selection of students for admission. Admission policies are im- plemented by the admissions office and registrar's office. The department heads have significant input into decisions regarding the promotion, retention, and salary increases of faculty members. Department heads evaluate faculty members on a scale of 1-5 in such areas as teaching effectiveness, community in- volvement, and research. They then make a recom- mendation regarding retention, promotion, and salary increases at the end of the evaluation form. The faculty member reviews and signs the evalua- tion, adding comments or indicating areas where his or her view of the rating differs from that given by the department head. The evaluation is then for- warded to the dean's office. When promotions are recommended, the dean verifies whether the facul- ty member has taught at the College the requisite number of years, whether his or her file contains the necessary supportive documentation, and whether the department is able to absorb another promotion. A committee of division heads reviews the files of faculty members recommended for pro- motions. Dean Spaulding testified that she has never taken any action with respect to promotions contrary to a recommendation from the reviewing committee. Department chairpersons effectively recommend- ed 7 out of the last 10 promotions at the College.9 r According to the handbook, other standing committees include the conduct and standards committee, which ensures due process to students, the financial aid and admissions and retention committees , which deal ex- clusively with special cases, the religious life committee , which addresses improvement of the students' religious and moral life, the faculty welfare committee, which encourages moral and professional growth; and the ad- vancement committee There is no testimony, however, regarding the actual functioning of these committees of the actual extent of faculty par- ticipation 6 The record shows, however, that on one occasion , the dean, after issuing the final schedule, rescheduled Dr Munavalli's chemistry lab from Tuesday to Thursday without his knowledge. There is also testimo- ny in the record that a biology course was taught despite Dr Shannon's recommendation that no such course be taught that particular semester 9 Faculty members had no input into the other three promotions Two of these promotions involved faculty members who reported directly to Continued 1312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Approximately six or seven faculty members rec- ommended for promotions were not promoted be- cause of reasons unrelated to the areas covered by their evaluation, such as questionable credentials, incomplete files, missing transcripts, insufficient time at the recommended rank , and departmental inability to support another professor. Thus, ac- cording to the testimony of Dean Spaulding, al- though Dr. Shannon, chair of the division of natu- ral sciences, and Dr. Munavalli, chair of the chem- istry department, recommended that faculty member Dr. Boyd be promoted, he did not receive his promotion because the department could not accommodate another professor. With regard to the hiring of faculty members, the department chairperson initiates the search, so- licits applications, and participates in the interview process. When department chairpersons are un- available, the division heads may participate in the search and hiring process. After interviewing po- tential hires, the department chairpersons recom- mend candidates to the dean. Either the dean or the president then interviews the prospective candi- date. The president makes the ultimate hiring deci- sions. Faculty members are not consulted in the hiring or appointment of the College's administra- tors.10 Dean Spaulding testified that all of the 96 people hired since 1976 had been recommended by the ap- propriate division or department head. However, there are a number of instances set forth in the record in which potential candidates were not hired despite having been recommended by the de- partment or division chairperson. For example, Dr. Halfond, chair of the history and political science department and chair of the social sciences divi- sion, testified that although he effectively recom- mended five people for positions in the social sci- ences division, two candidates were not hired de- spite his recommendation. These candidates were rejected on the basis of Dean Spaulding's investiga- tion into why one candidate was then unemployed and why the other had been released from his former institution. As a result of the investigation, Dean Spaulding was advised that one candidate had been ineffective in class and the other had an alcohol problem. Other recommendations were only partially suc- cessful. Thus, Dr. Munavalli testified that although he recommended one candidate for a full-time posi- tion in the chemistry department, that person was the dean and therefore were not evaluated by the faculty, the third was promoted because of a contractual requirement agreed to by the prior ad- ministration. 10 Hence, the faculty played no role in the appointment of Dr. Robert Sheppard to the position of associate dean or in the appointment of Dean Spaulding to the position of dean of the arts and sciences college hired only for a part-time position. In addition, Dr. Munavalli testified that two candidates were hired without his knowledge. )1 With respect to the termination of faculty mem- bers,12 department chairpersons effectively recom- mended termination in all eight instances in which a faculty member's contract was not renewed. Moreover, in no instance has the dean terminated a faculty member contrary to the department head's recommendation that he or she be retained. One professor, however, was terminated in 1975 with- out the knowledge of his department head. Dr. Shannon testified that although she recommended terminating two faculty members, one was retained until the documentation necessary to terminate the faculty member was compiled, and the second was conditionally retained pending the faculty mem- ber's correction of deficiencies in necessary back- ground courses. The budget is determined by the administration. Faculty members exercise no role in the financial affairs of the College. Although department and di- vision heads submit budget sheets, there is no evi- dence that the business office or the administration relies on this input when formulating the budget for the College. Department chairpersons receive computer printouts delineating the budget for each department. Dr. Munavalli and Dr. Halfond testi- fied that the faculty members are not authorized to spend the funds allegedly allocated in the budget because it is merely a "paper budget." Department chairpersons submit requisitions for supplies and materials, travel funds, or funds for speakers, which must be approved by the administration. Faculty members also have no role in setting the tuition for the College. The College had not established clear guidelines regarding the award of tenure until the 1980 edi- tion of the faculty handbook. The record reveals evidence of only three tenured faculty members. Faculty members have no direct input into tenure decisions and, although the tenure process has un- dergone review, there is no evidence that faculty 11 Dr. Shannon also testified that three professors were hired without her knowledge The record established, however, that these faculty mem- bers were hired after being interviewed and recommended by either the department head or the acting division head because Dr Shannon was on leave or unavailable for the summer. Thus, although these candidates may have been hired without Dr Shannon's knowledge, they neverthe- less were hired on the basis of recommendations from other faculty mem- bers Dr. Shannon also testified that she did not participate in the selec- tion of her replacement 12 The faculty handbook sets forth notice requirements regarding ter- mination of faculty. According to the handbook, a faculty member who has been at the College 1 year is entitled to be notified by March 15 re- garding retention for the coming year ; 2 years of faculty experience enti- tles the individual to notification by December 15, and 3 or more years of faculty experience at the College entitles the individual to 1 year's notifi- cation LIVINGSTONE COLLEGE 1313 members exercised any role in the development of guidelines for granting tenure. The College has no formal sabbatical policy. The department chairperson recommends that a faculty member be granted a leave of absence; however, the evidence establishes that these recommenda- tions are not necessarily followed. The dean and the president must approve all study leaves. Facul- ty members must seek prior permission to be out if they know in advance they will be absent and must submit teacher absence forms documenting these absences. In NLRB v. Yeshiva University, supra, the Su- preme Court acknowledged that managerial em- ployees are defined as those employees who "for- mulate and effectuate management policies by ex- pressing and making operative the decisions of their employer."13 The Court further noted that managerial employees "must exercise discretion within, or even independently of, established em- ployer policy and must be aligned with manage- ment" and normally must represent "management interests by taking or recommending discretionary actions that effectively control or implement em- ployer policy." 14 The Court found that through participation on faculty committees, the faculty at Yeshiva Univer sity effectively determined curriculum, grading sys- tems, admission, matriculation standards, academic calendars, and course schedules. In addition, facul- ty at some schools made decisions regarding expul- sion and graduation of students, teaching loads, stu- dent absence policies, tuition, and enrollment. The Court concluded that the faculty members were managerial employees and therefore excluded from the coverage of the Act. In Boston University, 1 s the Board adopted the ad- ministrative law judge's conclusion that the depart- ment chairpersons and full-time faculty were mana- gerial employees as defined in Yeshiva. The faculty at Boston University exercised effective control over matriculation requirements, curriculum, aca- demic calendars, and course schedules and had ab- solute authority over grading, teaching methods, graduation requirements, and student discipline. The Board also noted that the faculty played an ef- fective role in recommending faculty hiring, tenure, promotions, and reappointments. Similarly, in American International College, ) 6 the Board found the faculty to be managerial because the fac- ulty effectively controlled academic standards and 13 444 U S. at 682, quoting NLRB v. Bell Aerospace Co, 416 U.S. 267, 288 (1974) 14 Id at 683. 16 281 NLRB 798 (1986). 16 282 NLRB 189 (1986) curriculum through their participation in commit- tees and through their vote on recommendations and proposals made by the committees. The Board also relied on the faculty's influence in hiring, pro- motion, and tenure decisions. The faculty members at Livingstone College ef- fectively make decisions in a majority of the criti- cal areas relied on in Yeshiva, Boston University, and American International College. Like the faculty at the above institutions, the faculty here exercise almost plenary control over curriculum and aca- demic policy, particularly by virtue of the fa- cultywide vote over proposals and recommenda- tions made by the various standing committees. Significantly, all curriculum changes must be ap- proved by the curriculum catalog committee. Nei- ther the dean nor the president can make changes in academic policy without presenting the changes to this committee. Faculty proposals regarding the establishment of degree programs have been imple- mented. The faculty has established major fields of study, modified course requirements, added and de- leted course offerings, and set degree requirements, without opposition from the administration. At the departmental level, course content, course descrip- tions, and course scheduling are determined by the faculty and the department chairpersons, with the academic dean serving primarily to coordinate the schedules. The faculty effectively controls and sets standards for expulsion and retention, attendance for upperclassmen, matriculation, and graduation requirements. Furthermore, the faculty has signifi- cant input into the awarding of scholarships and honors. The majority of recommendations made by the committees and approved by the faculty are implemented without prior approval from the ad- ministration. Although implementation of a bache- lor's degree in social welfare work required prior approval from the administration because of the fi- nancial resources involved, there is no evidence that the administration has ever countermanded faculty decisions in the above-mentioned areas. As detailed above, the record shows that faculty members exercise substantial authority with respect to curriculum, degree requirements, course content and selection, graduation requirements, matricula- tion standards, and scholarship recipients. In view of this authority we find that the full-time faculty members sought by the Union are managerial em- ployees as we find that they play a major and ef- fective role in formulating and effectuating policies affecting primary areas identified by the Supreme 1314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Court as characteristic of managerial employees in Yeshiva. 17 We note, however, that the faculty has virtually no input into the budget process, tenure decisions, and setting of tuition and that only the division and department heads have authority in nonacademic matters such as hiring, firing, promotion, and salary increases. Nevertheless, we do not believe that lack of participation in these matters precludes a finding that the faculty are managerial employees. This case is distinguishable from recent cases where the Board has found the faculty not to be managerial as the faculty in those cases exercised substantially less control in academic areas . In Lor- etto Heights College v. NLRB,18 the court found that the infrequent or insignificant nature of com- mittee work, the mixed membership of many com- mittees, the faculty's limited decision-making au- thority, and the layers of administrative approval required for many decisions resulted in the facul- ty's participation in the academic area falling far short of the effective recommendation or control contemplated by Yeshiva.' a Further, as noted by the Supreme Court in Ye- shiva, an individual's role in hiring, firing, or similar decisions has both managerial and supervisory characteristics. See Yeshiva, supra at 686 fn. 23. Under Board precedent, moreover, it is an individ- ual's authority to hire, fire, or make effective rec- ommendations regarding these matters that general- ly operate as a determining factor in finding that an employee has supervisory status. By comparison, however, an individual need not possess this au- thority to be deemed a managerial employee, where the purpose of the Board's examination with respect to this issue is to determine the degree of the employee's alignment with management. See, e.g., Sutter Community Hospitals of Sacramento, 227 NLRB 181, 193 (1976). Finally, as noted above, the Supreme Court did not rely primarily on faculty authority in matters of hiring and firing and related areas in finding Ye- shiva faculty to be managerial employees. As stated by the Supreme Court in Yeshiva, "the `business' of a university is education" and the vitality of a uni- versity ultimately depends on its academic policies. Yeshiva, supra at 627. We have found that faculty 17 In Yeshiva, although the Court found that faculty members at the university played a predominant role in faculty hiring , tenure, sabbaticals, termination, and promotion, the Court did not rely primarily on these features of faculty authority as it did not reach the question of superviso- ry status Id at 686 fn 23 18 742 F 2d 1245 ( 10th Cir 1984) 19 See also Bradford College, 261 NLRB 565 (1982) In Bradford Col- lege, the Board found that the faculty were nonmanagerial because al- though the "faculty manual" indicated that the faculty had input in many areas of decision making, the administration often ignored or reversed faculty recommendations members at Livingstone College have substantial authority in formulating and effectuating policies in academic areas. Given that the business of a uni- versity is education, it is the faculty members' par- ticipation in formulating academic policy that aligns their interest with that of management and warrants our finding them to be managerial em- ployees. Thus, we accord lack of authority in non- academic matters limited significance in determin- ing that these faculty members are managerial em- ployees.20 Accordingly, we shall dismiss the in- stant petition. ORDER The petition is dismissed. MEMBER JOHANSEN, concurring in part and dis- senting in part. I concur with my colleagues that the Board cor- rectly asserted jurisdiction in this case. I also concur in the finding that the department and divi- sion chairpersons are not statutory employees as defined in Section 2(3) of the Act. I dissent from my colleagues' finding that the faculty members are managerial employees. I would affirm the Acting Regional Director's deter- mination that the faculty members are statutory employees. My colleagues have based their finding that the faculty members are managerial employees on the faculty's authority in academic areas. As noted in the decision, Livingstone's faculty has virtually no input into the budget process, tenure decisions, or the setting of tuition; and no authority in nonacade- mic matters such as hiring, firing, promotion, and salary increases. My colleagues accord only "limit- ed significance" to these nonacademic areas. I cannot agree with this contraction of the two-part analysis that the Board most recently used in Amer- ican International College, 282 NLRB 189 (1986). In American International the Board reached its finding of managerial status after utilizing the two- part analysis. Under the academic part of the anal- ysis, the Board found that the faculty exercised control over the college's curriculum and academic policies. Under the nonacademic part, the Board found that the faculty: (1) effectively recommended renovations and construction to the physical facili- ties; (2) exercised effective authority in the area of 20 Contrary to Member Johansen's dissent we do not read our decision in American International College, supra, as either prescribing a two-part test for determining if employees are managerial or as requiring that both parts of such a test be satisfied. Rather in that case , consistent with the Supreme Court's decision in Yeshiva and with Board precedent , we relied on the managerial and supervisory authority of faculty members in both academic and nonacademic matters, but we did not deem faculty partici- pation in any one of these areas controlling. LIVINGSTONE COLLEGE tenure; (3) exercised considerable influence in the area of hiring; (4) was instrumental in developing a merit evaluation system, but only exercised a limit- ed role in terminations and budget matters. With the complete picture in front of it, the Board decid- ed that the faculty played a "major and effective role in the formulation and effectuation of policies affecting the critical areas identified by the Su- preme Court in Yeshiva."' Here my colleagues are looking only at one-half of the total picture; and they are justifying their ac- tions by labeling the nonacademic sphere as being of "limited significance." After examining the total picture, I fmd that the fact that the faculty has vir- tually no input into hiring, firing, promotions, tenure, and salary increases persuasively reflects lack of managerial status. It may of course be said, as the majority does, quoting the Supreme Court, that "the `business' of a university is education." But that "business" also is the "profession" of the faculty. It does not follow, as the majority would have it, that the mere exercise by a faculty of its "profession" "aligns" that faculty's "interests" with management in a way that clashes with employee interests and somehow converts them to management. Under the facts of this case, I fmd that the facul- ty's lack of participation in nonacademic matters and its less than absolute control in academic mat- ters precludes a fmding of managerial status. CHAIRMAN DOTSON, dissenting. Applying the Supreme Court's holding in Catho- lic Bishop of Chicago' to the facts of this case, I would decline to assert jurisdiction. Livingstone College was founded under the aus- pices of the African Methodist Episcopal (AME) Zion Church (the Church). The College is divided into an arts and sciences college and Hood Theo- logical Seminary. Both schools operate under the same charter. The Church continues to be the Col- lege's sponsoring body. The College is dependent on the Church for about 7 percent of its total budget, which exceeds $6 million. The general conference of the Church must ap- prove all of the College's bylaws and amendments ' 282 NLRB 189. 1 440 U.S. 490 (1979). 1315 to the bylaws. Pursuant to the bylaws, the College has a 24-member board of trustees. Twelve of the trustees must be bishops of the Church. The Church names the bishops who will serve on the board. The remaining 12 trustees are selected by the Church's general conference from nominations made by a board committee . The senior bishop of the Church serves as chairman of the board. The board receives its authority from the general conference of the Church and is charged with op- erating the College. The board holds title to the property of the College. Two-thirds of the board must agree to encumber and lease property; thus, the bishops on the board have the potential to con- trol such votes. The general conference of the Church must approve the sale of any property. The board elects the College's president to whom it delegates the responsibility for the admin- istration of educational, fiscal, and physical aspects of the College. The arts and sciences school and Hood Theological Seminary each have a dean who reports to the president. The board has the power to appoint and remove faculty and to set salaries. It also awards degrees and is empowered to promul- gate rules regarding academic freedom. The aim of the College is to foster higher educa- tion in an atmosphere supportive of Christian values contributing to moral integrity and human dignity. Each year the College celebrates a reli- gious week. Further, to graduate from the school of arts and sciences, students are required to take two courses in religious studies. I find that the substantial administrative control that the Church maintains over the College through the board of trustees, combined with the fact that the College is church-sponsored , is annu- ally dependent on the Church for significant amounts of money, and encourages the develop- ment of Christian values among students through mandatory religious study and the overall general atmosphere, requires a finding that the College is church controlled. Accordingly, I would decline jurisdiction for the reasons discussed in St. Joseph's College, 2 and would dismiss the petition without reaching any additional issues raised by the parties. 2 282 NLRB 65 (1986); see also Universidad Central de Bayamon v. NLRB, 793 F 2d 383 (1st Cu 1986)