University Of Dubuque

UNIVERSITY OF DUBUQUE University of Dubuque, Petitioner and Faculty Asso- ciation of the College of Liberal Arts. Case 33- UC-98 June 27, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On a petition filed by the Employer, a hearing was held before Hearing Officer Robert W. Ches- ter. At the hearing, the Union moved that the peti- tion be dismissed. The hearing officer referred this motion to the Board for disposition, and the Re- gional Director transferred this proceeding to the National Labor Relations Board for decision pursu- ant to Section 102.67 of the Board's Rules and Regulations. Both the Union and the Employer have filed briefs in support of their respective posi- tions. i 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 no prejudicial error was committed. The rulings are affirmed. On the entire record in this case, the Board makes the following findings. 1. The Employer is a private university affiliated with the Presbyterian Church, USA and is located in Dubuque, Iowa. The University consists of the College of Liberal Arts and the Theological Semi- nary. Only the College of Liberal Arts is involved in this proceeding.2 The parties stipulated that the Employer is engaged in commerce and that "[d]uring the past calendar year, a representative period, gross annual revenue exceeded $1,000,000, of which more than $50,000 was received from di- rectly outside the State of Iowa." On these facts, we find that the Employer is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act and that, as stipulated by the parties, the Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Since 1973 the Employer has recognized the Union as the collective- bargaining representative of certain employees of the College of Liberal Arts. During that time, the parties have entered into a series of collective-bargaining agreements.3 1 The Union's motion to file a substitute brief page and the hearing officer's unopposed motion to correct the transcript are granted 2 The College of Liberal Arts requires no particular religious affiliation or allegiance from its faculty members or students 3 The Employer recognized the Union pursuant to a recognition agree- ment entered into with the Union The Board has not certified the Union as the collective-bargaining representative of the Employer's employees 349 The latest relevant agreement was effective from August 15, 1981, through August 15, 1984, and provided, inter alia, that negotiation for a new agreement would begin about February 15, 1984. The parties stipulated that the unit, as set forth in the collective-bargaining agreement, consists of: All full-time faculty and those part-time facul- ty teaching six or more academic hours per se- mester in the College of Liberal Arts, includ- ing department chairpersons. The unit shall also include the Director of the Learning As- sistance Center. Those excluded from the unit are non-academic employees, division chair- persons, faculty of the seminary, administrative and clerical employees, guards and supervisors as defined in the National Labor Relations Act, as amended. On November 9, 1983, the Employer filed the in- stant petition seeking to clarify the unit to exclude, in addition to those already excluded, "all manage- rial and supervisory full-time faculty (including de- partment chairpersons) and part-time faculty teach- ing six or more academic hours per semester in the College of Liberal Arts, and the Director of the Learning Assistance Center." As noted above, the Regional Director transferred these proceedings, including the Union's motion to dismiss the peti- tion, to the Board for disposition. The Union argues that the petition should be dis- missed because (a) there are no grounds for clarify- ing the unit in the absence of evidence that the duties of the faculty have changed; and (b) the Board's policy is not to entertain unit clarifications during the term of a collective-bargaining agree- ment, which contains a clear recognition clause. Thus, the Union argues that this petition should not now be entertained because it was filed more than 300 days before the agreement's expiration.4 The Union contends that the entertainment of the peti- tion at this time would disrupt a stable bargaining relationship and that, therefore, processing the peti- tion is contrary to Board policy. We have carefully considered the Union's argu- ments. We, however, find it appropriate to enter- tain the petition for the following reasons. First, in light of the Supreme Court's decision in NLRB v. Yeshiva University, 444 U.S. 672 (1980), it is appropriate to clarify a unit composed of faculty to exclude those who are managerial and, there- fore, not "employees" within the meaning of the Act. Lewis University, 265 NLRB 1239 (1982), revd. on other grounds 765 F.2d 616 (7th Cir. 1985). 4 The petition actually was filed 280 days prior to the agreement's ex- piration 289 NLRB No. 34 350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Thus, clarification is appropriate here even absent evidence of any change in faculty duties since the unit's formation. Washington Post Co., 254 NLRB 168 (1981). Second, we find it appropriate to process this pe- tition even though it was filed during the term of the latest relevant agreement. Although the Board has dismissed clarification petitions filed midway through the term of an agreement, 5 the Board has entertained such petitions when they are filed shortly before the agreement's expiration as the parties are preparing for negotiations. See Shop Rite Foods, 247 NLRB 883 (1980), and cases cited therein. The petition here was filed on November 9, 1983, some 280 days prior to the agreement's ex- piration. As specified in the agreement, however, negotiations for a new agreement were to begin on February 15, 1984, just 98 days after the petition was filed. In these circumstances, as the petition was filed just about 3 months before negotiations were to begin, we find it appropriate to process the petition. Accordingly, we deny the Union's motion and we shall consider the merits of the petition. 3. As noted above, the Employer seeks to ex- clude from the unit all managerial and/or supervi- sory employees. The positions at issue are full-time and certain part-time faculty, including department chairpersons and the director of the Learning As- sistance Center at the College of Liberal Arts. This college is comprised of five academic divisions, each headed by a division chairperson. The divi- sions are further subdivided into a total of 19 de- partments. The chain of command at the college, in order of ascendance, consists of. faculty, depart- ment chairpersons, division chairpersons, dean, president, board of directors, and its executive committee. All levels above the department chair- persons previously have been excluded from the unit. The faculty as a whole and as members of vari- ous committees participates in the formulation and effectuation of the college's academic policy. For example, the collective-bargaining agreement pro- vides that the faculty has the exclusive right to set student grading and classroom conduct standards; set degree requirements; recommend earned degree recipients; "initially receive and consider" new degree programs; and develop, recommend, and approve curricular content and course offerings. The agreement also gives the faculty the right to recommend admission standards and departmental staffing needs. The president appoints three faculty members to sit on the nine-member Admissions and Retention Committee that sets admission policies 5 Wallace-Murray Corp, 192 NLRB 1090 (1971) and determines whether students on academic pro- bation will be dismissed or retained.6 Also, the president appoints three faculty members to sit on the seven-member Financial Aid Committee that establishes the policies concerning the distribution of financial aid to students. The faculty elects 5 faculty members to sit on the 16-member Educa- tional Policies Committee. This committee reviews recommendations of the various divisions regarding the addition or deletion of courses; studies academ- ic policies and standards; considers all matters af- fecting the curriculum and degree programs; and makes recommendations on these matters to the full faculty. The faculty also participates in formulating and effectuating policy in certain nonacademic areas. In this regard, the Institutional Development Commit- tee, comprised of six faculty members elected by the faculty, advises the administrators and the board of directors on major budgetary matters af- fecting employment; significant capital improve- ment programs; and proposals regarding financial exigency or substantial modifications or discontinu- ance of a program or department. Three of the six members also serve on the University Planning Cabinet along with board members, administration, and seminary faculty members. This committee re- views the total University budget prior to its sub- mission to the University Administrative Cabinet,7 and is responsible for long-range planning for the University. The faculty participates in the selection of the dean, the division chairpersons, and the department chairpersons. With respect to the selection of the dean, two faculty members elected by the faculty sit on the five-member Search Committee, which conducts the search, screens and interviews candi- dates, and seeks the concurrence of the faculty for its recommended nominee. On approval of at least four of the five committee members, the committee selects a nominee to be recommended to the board of directors for appointment. The faculty of each division and department recommends to the dean its choice for the individual to be appointed divi- sion chairperson and department chairperson. Al- though it is the dean who makes the appointment, 6 There are some 14 committees on which the faculty participates We have discussed here only some The other committees are Nominating Committee, Campus Hearing Board, Athletics Committee, Teacher Edu- cation Committee, Continuing Education Committee, Off-Campus Semes- ter Committee, and Human Rights Committee ° The University Administrative Cabinet (UAC) is composed of the president, the two deans, the business manager, the development officer, and the Title III coordinator The UAC executes policies of the board of directors, sets budgetary guidelines, and authorizes all full-time positions at the University UNIVERSITY OF DUBUQUE Dean Stewart testified that he always has followed the faculty recommendations in this regard. The faculty also elects the five members who sit on the Promotions and Tenure Committee. This committee evaluates the qualifications of individual faculty members for promotions and/or tenure. The committee reports its findings and recommen- dations to the dean, who, along with the president, makes the decision. Faculty members who are denied promotions or tenure may appeal to the Ex- ecutive Committee of the board of directors, which makes the final decision. In the years 1981 through 1983, the president and dean followed all the rec- ommendations of the Promotion and Tenure Com- mittee except for one individual whom the Em- ployer contends was ineligible for the recommend- ed promotion because her contract had not been renewed." The faculty elects the three faculty members who comprise the Hearing Committee, which re- views certain adverse personnel actions such as dis- missals for cause and nonrenewals during the pro- bationary period. The committee collects evidence and makes a recommendation. It is the president who makes the final decision with respect to non- renewals. With respect to dismissals for cause, there is a right of appeal to the board of directors, which makes the final decision. The faculty also elects the four faculty members who comprise the Professional Development Committee, which re- views and makes recommendations to the dean concerning all matters regarding leave for profes- sional development, experience or advanced study, the distribution of funds for faculty development, and "exceptions for promotion eligibility." Faculty members who function as department chairpersons perform certain duties in addition to teaching. In this regard, they chair department fac- ulty meetings and prepare the department's list of course offerings and teaching assignments, which are subject to the dean's approval. Department chairpersons also prepare and administer a budget for their respective departments. The budget is re- viewed by the dean, who may revise it, and it is subject to final approval by the board of directors. The department chairpersons also participate in the hiring of faculty for their respective departments. Thus, after the University Administrative Cabinet authorizes the filling of a position, the department chairperson, along with the dean, reviews employ- ment applications and draws up a priority list of 6 In its motion to submit additional evidence, the Union contends that in February 1985 the Employer's president rejected four of the six rec- ommendations on tenure made by the Promotion and Tenure Committee Assuming this contention to be true, this would not affect our decision, as explained infra 351 candidates for interviews. The hiring decision nor- mally is jointly made based on recommendations of the dean, department chairperson, and the faculty. Dean Stewart testified that he has never vetoed any of the recommendations and has hired 27 people based on the recommendations of the facul- ty. Professor James Wright, however, testified that he is aware of "a couple of occasions" when the dean has hired individuals contrary to the recom- mendations of the faculty and department chairper- sons. The department chairperson and the division chairperson evaluate the performance of the non- tenured faculty and make recommendations wheth- er their contracts should be renewed. After review- ing their recommendations, the dean decides the matter. If the dean denies renewal contrary to the recommendation of the division or department chairperson, his decision may be appealed to the Faculty Hearing Committee, composed entirely of faculty, which then makes a recommendation to the president, who makes the final decision. The Union argues in essence that the faculty are not managerial employees within the meaning of Yeshiva, supra. Thus, the Union contends that the faculty has little input into the decision-making process at the University and that the faculty cannot make effective recommendations on policy because actual control lies not with the faculty, but with the University's administrators and manage- ment hierarchy. The Union contends that the Uni- versity's curriculum is exclusively controlled by the board of directors and notes that in 1972 and 1975 the board of directors eliminated certain aca- demic departments contrary to the faculty's recom- mendations. The Union also notes that the dean can overrule faculty recommendations on hiring and the selection of department and division chair- persons. The Union further argues that it is the board of directors that effectively controls termina- tions, sabbaticals, and budget matters. The Employer contends that the faculty are managerial employees within the meaning of Yeshi- va. The Employer notes that the faculty controls virtually all academic matters and makes effective recommendations concerning student admission policies, student retentions and dismissals, sabbati- cals, leaves, grants, and hiring, including the hiring of the dean. The Employer notes that by virtue of their numbers on the Search Committee, the facul- ty can effectively veto any candidate for the posi- tion of dean. The Employer also notes that the fac- ulty makes effective recommendations with respect to the promotion and tenure of faculty members and the renewal of contracts for probationary fac- ulty. Finally, the Employer notes that the faculty makes effective recommendations concerning the 352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD budget within the guidelines set by the University Administrative Cabinet. We agree with the Employer that the faculty members are managerial employees. As noted by the Court in Yeshiva, managerial employees are those who "formulate and effectuate management policies by expressing and making operative the de- cisions of their employer."9 The Court noted also that managerial employees "must exercise discre- tion within, or even independently of, established employer 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."10 Applying these principles to the facts of the in- stant case, we fmd that the faculty members here, as in Yeshiva, play a major and effective role in the formulation of academic policy. We note first that under the collective- bargaining agreement the fac- ulty as a whole has the exclusive right to set gener- al student grading and classroom conduct stand- ards, and degree requirements; recommend earned- degree recipients; "initially receive and consider" new degree programs; and develop, recommend, and ultimately approve curricular content and course offerings." Under the agreement and/or through their participation in the various commit- tees noted above, the faculty makes effective rec- ommendations concerning course schedules, admis- sion standards, student retention, the distribution of financial aid to students, and the modification of programs or departments. Although the board of directors may have eliminated certain academic de- partments some years ago contrary to the faculty's recommendation, this does not detract from the significant control exercised by the faculty over the academic policies in the remaining departments. Cf. American International College, 282 NLRB 189 (1986). Finally, as we emphasized in Livingstone College, 286 NLRB 1308 (1987), under Yeshiva it is the faculty members' participation in the formula- tion of academic policy that aligns their interest with that of management. Having found that the faculty members in the present case have substan- tial authority in formulating and effecting policies in academic areas, we conclude that they are mana- gerial employees. 9 444 U S at 682, quoting NLRB v Bell Aerospace Co, 416 U S. 267, 288 (1974) 10 Id at 683 11 Although there is some conflict in the record testimony as to the extent of the faculty's role in setting degree requirements , the collective- bargaining agreement explicitly grants the faculty the exclusive right to set degree requirements, and there is no evidence that anyone other than the faculty has exercised this right at any time See College of Osteopathic Medicine & Surgery, 265 NLRB 295 (1982) Although of less significance in ascertaining managerial status, we note that the faculty here also can effectively recommend discretionary ac- tions with respect to the implementation of Em- ployer policy in nonacademic areas. In this regard, the faculty makes recommendations concerning budget matters, capital improvements , department staffing needs, and the University's long-range planning. In addition, it makes recommendations regarding the promotion and tenure of faculty members, dismissals for cause and nonrenewals of contract for probationary employees, the granting of leave, and the distribution of funds for faculty development.12 The faculty recommends the indi- viduals to be appointed department and division chairpersons, and even participates in the selection of the dean. Faculty members who function as de- partment chairpersons prepare and administer their department budget and are directly involved in the hiring of department faculty. Although ultimate au- thority in certain of these areas may reside with the board of directors or upper levels of management, who occasionally may reject faculty recommenda- tions, it is clear that the faculty here plays a signifi- cant role in the operation of the University. Thiel College, 261 NLRB 580, 586 (1982); American Inter- national College, supra. Our dissenting colleague finds several deficien- cies in the Board's approach in this and other Ye- shiva cases. First, the dissent counts the number of areas in which faculty at various institutions have input and compares these figures to the number of such areas found in Yeshiva. Noting that the Yeshi- va faculty had absolute authority in academic mat- ters, the dissent finds "nothing significant" in the Dubuque faculty's less than absolute authority on such matter. The dissent acknowledges that the Dubuque faculty makes effective recommendations in other, nonacademic areas but finds that after "examining the entire picture," the Dubuque facul- ty does not exercise the degree of authority exer- cised by the Yeshiva faculty and thus is not mana- gerial within the meaning of Yeshiva. Finally, our dissenting colleague finds fault with the majority's mode of analysis and proposes that his analytical framework, based on but apparently not limited to the 18 criteria highlighted in Yeshiva, is the appro- priate one. Although it cannot be gainsaid that, as our dis- senting colleague states, the Yeshiva faculty exer- 12 The Union in its motion to submit additional evidence contends that the president has rejected a majority of the recommendations made by the Promotion and Tenure Committee in February 1985 Even assuming the truth of this contention, this would not affect our decision given the substantial mdicia of managerial status noted above Livingstone College, supra UNIVERSITY OF DUBUQUE cised a greater degree of authority than does the Dubuque faculty, in our view Dubuque is not suffi- ciently "unlike" Yeshiva to remove it from the range of institutions covered by the holding in that case. Indeed, it appears to us that our colleague's quarrel is essentially with the Court's opinion in Yeshiva itself inasmuch as that opinion virtually dic- tates the result we reach here. Our colleague ac- cuses us of applying Yeshiva "too restrictively." We think that, on the contrary, it is his interpretation that is too limited and thus misses the thrust of the Court's opinion entirely. In this regard, there is no indication in Yeshiva that the Court intended its holding to reach only institutions with faculties having as much or nearly as much input as the Yeshiva faculty. In fact, the implication is quite the opposite. Thus, the Court engaged in a lengthy discourse on the nature of in- stitutions of higher learning in general. The Court noted that: The "business" of a university is education, and its vitality ultimately must depend on the academic policies that largely are formulated and generally are implemented by faculty gov- ernance decisions. Yeshiva University, 444 U.S. at 688. In its discussion, the Court clearly focused on the faculty's role in academic matters although other factors were also considered. The Court made numerous statements about institutions of higher learning that, going beyond the facts of Yeshiva itself, were general in nature.13 significantly, although the Court found that the Yeshiva faculty's authority in academic matters was absolute, it expressly found absolute authority is not a prerequisite for managerial au- thority.14 Only at the conclusion of its discussion did the Court suggest that some institutions of higher learning might be excepted, in whole or in part, from its holding. At that juncture, the Court of- fered two illustrations of faculty "unlike" that in Yeshiva, neither of which is applicable here. Thus, the Court stated at footnote 31: We recognize that this is a starting point only, and that other factors not present here may enter into the analysis in other contexts. It is plain, for example, that professors may not be excluded merely because they determine the content of their own courses, evaluate their own students, and supervise their own re- 13 See, for example , 444 US at 689 in which the Court stated, "The university requires faculty participation because professional exper- tise is indispensable to the formulation and implementation of academic policy " (Citation omitted ) 14 See, e g , id at fns. 21 and 27 353 search. There thus may be institutions of higher learning unlike Yeshiva where the fac- ulty are entirely or predominantly nonmana- gerial . There also may be faculty members at Yeshiva and like universities who properly could be included in a bargaining unit. It may be that a rational line could be drawn between tenured and untenured faculty members de- pending upon how a faculty is structured and operates. The faculty at Dubuque clearly have input into academic decisions that have impact reaching beyond merely their own courses, students, and re- search. Nor does the record here support a finding that junior, untenured faculty should be treated dif- ferently from senior faculty under Yeshiva. Contrary to our colleague, we do not believe that the issue of managerial status can properly be decided simply by counting and comparing the number of areas in which faculty at a given institu- tion have input with the number of such areas found in Yeshiva. Although this approach may measure the scope of areas in which faculty mem- bers exercise influence, it fails to measure the extent of that influence and consequently fails to take into account the many different combinations and permutations of influence that render each aca- demic body unique. Such a mechanical formula may be analytically straightforward, but, in our view, it falls short of meeting the Court's concerns as expressed in Yeshiva. Further, our mode of analysis seems to differ from that of our dissenting colleague not so much as to the factors to be considered but as to the weight to be accorded them. As set forth above, we have examined all the factors in this case that are relevant to managerial authority as it was de- fined by the Court in Yeshiva. Admittedly, the list of such factors is not as extensive as the list in Ye- shiva. Nevertheless, what seems inarguable to us is that the faculty does have significant authority and makes effective recommendations in areas that the Court manifestly said in Yeshiva were managerial in nature. These areas are not insignificant. Whether any of us might be inclined under other circum- stances to find that these factors fall short of estab- lishing managerial status, in our view, Yeshiva leaves little choice as to the outcome. Accordingly, consistent with Yeshiva, we find that the faculty here are managerial employees.15 We, therefore, shall clarify the unit accordingly. 15 The Employer further contends that department chairpersons, the director of the Learning Assistance Center, the athletic director, and the director of Foreign Student Services are supervisors and for this reason Continued 354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER It is ordered that the collective-bargaining unit of all full-time faculty and those part-time faculty teaching six or more academic hours per semester in the College of Liberal Arts, University of Du- buque, including department chairpersons, and the director of the Learning Assistance Center, repre- sented by the Faculty Association of the College of Liberal Arts is clarified to exclude all faculty mem- bers, department chairpersons, and the director of the Learning Assistance Center. MEMBER JOHANSEN, dissenting. Contrary to my colleagues, I find that the facul- ty members at the University of Dubuque are not managerial employees, but are statutory employees. I find that they are properly included in the unit. Depriving a group of employees of protection under the National Labor Relations Act is a serious matter. My colleagues have applied the Supreme Court's decision in NLRB v. Yeshiva University, 444 U.S. 672 (1980), too restrictively and have wrong- fully deprived the Dubuque faculty of the protec- tion of the Act. In Yeshiva the Supreme Court discussed certain areas over which the Yeshiva faculty exercised au- thority. There were 18 such areas, 13 in the aca- demic sphere and 5 in the nonacademic sphere.' In the present case the majority finds that the Du- buque faculty possesses some degree of authority in five academic areas-grading, graduation require- ments, curriculum, admission standards, and stu- dent retention. The faculty also possesses some degree of authority in three nonacademic areas- promotion, tenure, and termination. The Dubuque faculty therefore possesses some degree of author- ity in 8 of the 18 Yeshiva criteria, less than half. The Yeshiva faculty exercised authority in all. In another faculty-unit case, University of New Haven, 267 NLRB 939 (1983), the Board determined that the faculty exercised authority in 12 of the 18 crite- must be excluded from the unit We note that the unit does not specifical- ly include the athletic director and the director of Foreign Student Serv- ices However, these two positions as well as the position of director of the Learning Assistance Center are held by faculty members Because we have concluded that the faculty, including department chairpersons, are managerial employees, we find it unnecessary to determine whether these individuals are also supervisors within the meaning of the Act i The General Counsel Memorandum, No 81-19 (April 10, 1981), Sub- ject Guidelines for cases ansmg under NLRB v Yeshiva University, 444 U S 672 (1980), lists the following areas (1) curriculum (course content and course schedules), (2) teaching methods, (3) grading policies, (4) ma- triculation standards, (5) admission policies, (6) retention policies, (7) graduation policies, (8) size of student body, (9) tuition, ( 10) location of a school, (11) teaching loads, (12) student absence policies, (13) enrollment levels, (14) faculty hiring, (15) tenure, (16) sabbaticals , (17) terminations, and (18) promotions ria.2 The New Haven faculty were found to be managerial. In Boston University, 281 NLRB 798 (1986), the Board determined that the faculty exer- cised authority in 12 of the 18 areas.3 These faculty members were also found to be managerial. A comparison of the Supreme Court's findings in Yeshiva with the Board's findings in the present case discloses a significant disparity in the authority of the two faculties. Dubuque is clearly a school "unlike Yeshiva." I further note that the Yeshiva faculty exercised a greater degree of authority than does the Dubuque faculty. The Supreme Court found that the Yeshiva faculty had absolute author- ity in academic matters and that they played a pre- dominant role in faculty hiring, tenure, sabbaticals, termination, and promotion. They also effectively decided which students would be admitted, re- tained, and graduated. The Dubuque faculty's authority in academic matters is not absolute. The five areas in which the faculty exercises authority are in the routine peda- gogical areas. In Yeshiva the Supreme Court noted that "[i]t is plain, for example, that professors may not be excluded merely because they determine the content of their own courses, evaluate their own students, and supervise their own research."4 I find nothing significant in the authority exercised by the professors in this case. In the nonacademic area, the faculty makes ef- fective recommendations in the areas of tenure, promotions, and terminations. The faculty thus ex- ercises authority in three of the five criteria, which is a significant and indicative amount. After examining the entire picture, the authority exercised in the academic sphere, the authority ex- ercised in the nonacademic sphere, and the amount and degree of authority, I conclude that the Du- buque faculty lacks the depth and breadth of au- thority possessed by the Yeshiva faculty. I do not find that the Dubuque faculty exercises the degree of authority exercised by the Yeshiva faculty. The majority disputes my figures, but offers none of their own, and misconstrues my analysis. The majority dismisses the attempt to formulate some meaningful framework for analysis and provide some measure of predictability in this area as "a mechanical formula." The faculties of mature uni- versities, however, display certain common charac- teristics that the Supreme Court recognized and 2 The areas were curriculum, admission, graduation requirements, teaching methods, teaching loads, size of student body, facilities planning, hiring, tenure, sabbaticals, terminations , and promotions. 3 The areas were curriculum, teaching methods, grading policies, ma- triculation, admission policies, retention, graduation requirements, size of student body, hiring, tenure, terminations , and promotions 4444 US at 690 fn 31 UNIVERSITY OF DUBUQUE 355 analyzed in Yeshiva. It is these characteristics which we should examine. I start with the areas of common authority exercised by faculty at mature universities, but I am not limited to them. Once these factors are identified and the degree of facul- ty authority gauged, additional areas of faculty au- thority, such as the awarding of scholarships, can be examined. Since the issuance of Yeshiva University on Feb- ruary 20, 1980, the Board has found faculty mem- bers to be managerial employees in eight cases.5 In all of these cases the Board's approach to the ques- tion whether the school's faculty members were managerial employees has been tentative. In these eight cases the Board has found determinative fac- ulty authority in certain areas in certain cases and in different areas in other cases. The majority de- fends their approach based on "the many different combinations and permutations of influence that render each academic body unique." But the bottom line is that the Board has failed to develop an integrated body of law. The Board has been criticized for its lack of a consistent approach to the faculty managerial issue.6 The 18 Yeshiva criteria provide a valid and valuable starting point for Board analysis. The Su- preme Court highlighted the 18 criteria for a reason, the reason being to examine the entire gamut of faculty authority. The Yeshiva faculty possesses authority over 100 percent of this range, while the Dubuque faculty possesses authority over 44 percent of this range. The Yeshiva faculty were managerial employees, the Dubuque faculty are not. Accordingly, I would dismiss the unit clarifi- cation petition as to the faculty members. 5 Ithaca College, 261 NLRB 577 (1982), Thiel College, 261 NLRB 580 (1982), Duquesne University, 261 NLRB 587 (1982), College of Osteopathic See generally Lee, Collective Bargaining and Employee Participation Medicine, 265 NLRB 295 (1982), University of New Haven, 267 NLRB 939 An Anomalous Interpretation of the National Labor Relations Act, 38 Lab. (1983), Boston University, 281 NLRB supra American International Col- L J 274 fn 79 (May 1987), and Lee and Begin, Criteria for Evaluating the lege, 282 NLRB 189 (1986), and Livingstone College, 286 NLRB 1308 Managerial Status of College Faculty. Applications of Yeshiva University by (1987) the NLRB 10 J Coll. & U. L 515 (1983-1984)