Detroit College Of Business

318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Detroit College of Business and Detroit College of Business Faculty Association, MEA/NEA. Case 7-RC-18323 August 25, 1989 DECISION ON REVIEW AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On May 6, 1987, the Regional Director for Region 7 issued a Decision and Direction of Elec- tion in the above-entitled proceeding finding appro- priate a campuswide unit of full-time department coordinators sought by the Petitioner at the Em- ployer's Dearborn, Flint, and Madison Heights, Michigan campuses, and ordering an election to de- termine whether they wished to be represented by the Petitioner in an already existent unit of full- time instructional and noninstructional professional employees at the Dearborn campus. The Regional Director rejected the Employer 's contention that the department coordinators should be excluded as supervisors within the meaning of Section 2(11) of the Act. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, the Employer filed a timely request for review, contending that the Regional Director erred in finding the coordinators to be employees and in finding appropriate a unit consist- ing of the Employer's three campuses. The Peti- tioner filed a brief in opposition to the Employer's request for review. By telegraphic order dated June 4, 1987, the Em- ployer's request for review was granted with re- spect to the supervisory status of the department coordinators.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the entire record in this case with respect to the issue under review and makes the following findings: The Employer is a private, nonprofit educational institution with a main campus located in Dear- born, Michigan, and two smaller branch campuses located in Flint and Madison Heights, Michigan. Since approximately 1971 the Petitioner has repre- sented a unit composed of full-time instructional and noninstructional professional employees at the Dearborn campus. The Petitioner seeks to include the full-time department coordinators and instruc- tors2 employed at the Flint and Madison Heights campus in the Dearborn unit. The Employer's overall business policies and academic direction for the three campuses are for- mulated by an elected board of trustees. At each of the branch campuses a dean and an associate dean administer the policies and academic program es- tablished by the board of trustees, including grad- uation standards, tuition levels, student body size, and budget. On the recommendation of the associ- ate dean at Flint and Madison Heights, coordina- tors are appointed by the respective deans to run the various academic departments . At Flint there are five full-time coordinators while at Madison Heights there are two.3 Except for the coordinators and the one full-time instructor at Madison Heights, the faculty at the branch locations consist entirely of nonunit part- time instructors. There are 46 such instructors at Madison Heights and 49 at Flint. The record reveals that the coordinators spend a majority of their work time each week teaching classes and performing other activities related to their instructional duties . In addition, they have a role in the evaluation process for part -time faculty. The normal teaching load for the coordinators is three classes per quarter, but during one of the three quarters that constitute the school year, they carry a reduced load of two classes to allow time for them to visit the classroom of each part-time faculty member within his or her department and prepare a written evaluation of his performance. The coordinators also have a role in faculty hiring. At Flint, they participate, along with the associate dean, in the interview of prospective candidates and in the hiring decision . At Madison Heights the coordinators alone are responsible for interviewing and determining which candidates to hire. The Employer contends that the coordinators' authority pertaining to the hiring and evaluation of faculty, as well as their role in scheduling courses and assigning faculty to classes, requires their ex- clusion from the unit as statutory supervisors. The Regional Director, however, disagreed . He found that the preparation of evaluations did not support a finding of supervisory status because the evalua- tion forms used by the coordinators carried no rec- ommendations for specific personnel action. As for the remaining areas of alleged supervision, the Re- gional Director found that the coordinators played only a recommendatory role and that higher man- 2 By stipulation the parties agreed to include in the unit the one full- time instructor at the Madison Heights campus There are no full-time in- structors at the Flint campus ' The election was conducted June 4, 1987, and the ballots were im- 3 In addition there are two part-time coordinators at Flint whom the pounded pending disposition of the request for review parties agreed should be excluded from the unit 296 NLRB No. 40 DETROIT COLLEGE OF BUSINESS agement made all final decisions, which were not necessarily consistent with the coordinators' rec- ommendations. Relying on Adelphi University, 195 NLRB 639 (1972), the Regional Director found that even if the coordinators' duties were consid- ered supervisory, the fact that they exercised those duties less than 50 percent of the time with respect to nonunit faculty employees precluded a finding that they were supervisors. Contrary to the Re- gional Director, we conclude that the coordinators are supervisors within the meaning of the Act. We find that the coordinators exercise Section 2(11) authority with respect to the hiring of part- time instructors. At Flint, the hiring process was described as a joint effort between management and a coordinator. Geraldine Boyd, the associate dean at Flint, testified that when a teaching posi- tion opens, an applicant is selected for an interview in which both she and the respective department coordinator participate. At the conclusion of the interview a recommendation is offered by the coor- dinator on whether the applicant should be hired. When questioned regarding who actually makes the final decision to hire, Boyd stated it is a "joint decision." She identified more than a dozen indi- viduals who were hired in this manner . Although she admitted that every instructor hired must meet her approval, she further stated that no instructor has ever been hired without the consent of a coor- dinator. Furthermore, with the exception of two in- dividuals, all the coordinators' hiring recommenda- tions have been followed.4 The Petitioner's witnesses, Coordinators John Chalmers and Ann Kah, corroborated Boyd's testi- mony regarding the hiring process . Chalmers listed four applicants that he interviewed who were hired in his department pursuant to his recommendation. Similarly, shortly after her appointment as the Eng- lish-speech coordinator in 1986, Ann Kah submit- ted a memo to the dean recommending a plan to staff the "Learning Lab" position in her depart- ment with one instructor to teach three classes. The dean approved and thereafter Kah invited Sue Arnold for an interview, who was hired on Kah's recommendation. The hiring authority of the Madison Heights co- ordinators is even broader than at Flint . As cor- rectly noted by the Regional Director, the Madison Heights coordinators "actually perform the hiring function, in that they interview and determine which applicants to hire to fill vacancies in the part-time faculty." Associate Dean Mary Cross, who until 3 months before the hearing in this case was the general education department coordinator, 4 Boyd rejected the recommendations to hire Brian Larsen and Jim Sanders because they were recent graduates of the college 319 testified that in that capacity she "was responsible for hiring instructors all the way from placing ads to sorting the resumes to setting up the interviews to evaluating them and to final hire." Arnold Shaver, coordinator of the marketing department, testified that when the need occurs in his depart- ment, he selects from a collection of resumes on file a potential candidate to be interviewed and then decides whether to hire that individual. He identified two instructors that he alone hired with- out any input from higher school officials . Further, Janet Guggenheim, dean at Madison Heights, named five instructors that were hired by Coordi- nator Walter Flack. The foregoing evidence amply demonstrates that the coordinators at both campuses have the author- ity to hire or make effective recommendations to hire instructors. At Madison Heights the Regional Director found, and the Petitioner concedes on brief, that the coordinators are the only ones who perform the hiring function . At Flint the evidence establishes that the coordinators effectively recom- mend the hiring of instructors . See Cardinal Timo- thy Manning, 223 NLRB 1218, 1222 (1976) (depart- ment chairpersons whose hiring recommendations were "generally followed" were supervisors). Further, we find that the department coordina- tors exercise Section 2(11) authority with regard to their evaluations of the part-time instructors. The coordinators at both campuses carry a reduced teaching load during one quarter of each school year to allow them time to visit and prepare an annual evaluation of each faculty member in their department. The Regional Director acknowledged that the evaluations "may have been utilized as part of an informal procedure, involving the associ- ate dean and the coordinator , to determine the future employment possibilities of part-time instruc- tors," but nevertheless declined to view this re- sponsibility as supervisory, apparently because the evaluation forms that are used "do not call for any disciplinary or employment recommendations." To the contrary, the forms provide space for an "Eval- uator's Summary Comments." Although most of the evaluations in evidence contain favorable re- marks of teacher performance , the evaluation by one coordinator of an instructor at Madison Heights described his performance as "totally unac- ceptable" and a "poor reflection upon this col- lege." In separate discussions with Dean Guggen- heim following the evaluation , the coordinator was "very adamant" in his recommendation that the in- structor not be retained , and without any independ- ent review by Guggenheim or other management officials, the instructor's employment was discon- tinued. At each campus at least three other in- 320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD stances were described in which instructors were terminated or transferred based solely on the rec- ommendation of a coordinator. We find, therefore, that the coordinators , through their evaluation of each faculty member, effectively recommend the discharge, retention, or transfer of faculty mem- bers. See University of Vermont, 223 NLRB 423 (1976) (department chairmen whose recommenda- tions based on evaluations were "highly effective" in determining faculty promotions and reappoint- ments, etc. were supervisors). Notwithstanding these supervisory duties of the department chairmen, the Regional Director found controlling the Board's decision in Adelphi Universi- ty, 195 NLRB 639 (1972), and concluded that the "occasional exercise of supervisory authority over nonunit employees does not mandate that said em- ployees be found supervisory , especially where the individuals at issue are professionals devoting a ma- jority of their work time to professional pursuits." We find the Regional Director's reliance on Adel- phi to be misplaced. The specific issue presented in Adelphi was whether the director of admissions , a professional, should be excluded from a unit of faculty members solely because he had the authority to hire, fire, and direct his secretary. Because the director's pro- fessional duties were of the same character as those of other unit employees , the Board reasoned that it would be inequitable to exclude him solely because he happened to exercise sporadic supervisory au- thority over his nonunit personal secretary. The Board reasoned (195 NLRB at 644): The issue of supervisory status usually arises where authority is regularly exercised on the employer's behalf, over employees sought by the union, such as foremen in a production and maintenance unit . To include in such a unit persons who exercise statutory supervisory au- thority would clearly create the conflict of in- terest which Congress intended to avoid. This does not mean, however, that a similar conflict of interest is necessarily created whenever per- sons occasionally exercise some authority over other employees of the employer. We have held, for example, that employees in an em- ployer's personnel department who interview and actually hire, on behalf of the employer, applicants for nonskilled or semiskilled jobs are not supervisors within the meaning of the Act. On the other hand, where professionals regularly (more than 50 percent of their time) supervised nonunit employees, they were nev- ertheless excluded from a unit of professional employees since under such circumstances the principal interests of the excluded professionals were so allied with management as to establish a differentiation between them and other em- ployees in the unit. The underlying rationale of this body of precedent is that an employee whose principal duties are of the same character as that of other bargaining unit employees should not be isolated from them solely because of a sporad- ic exercise of supervisory authority over non- unit personnel. No danger of conflict of inter- est within the unit is presented , nor does the infrequent exercise of supervisory authority so ally such an employee with management as to create a more generalized conflict of interest of the type envisioned by Congress in adopt- ing Section 2(11) of the Act. The Board in New York University, 221 NLRB 1148, 1156 (1975), further expounded on the basis for its Adelphi decision, noting especially the rela- tive imprecision of the supervisory question in pro- fessional employee settings. Professional employees, the Board pointed out: [fJrequently require the ancillary services of nonprofessional employees in order to carry out their professional , not supervisory, respon- sibilities. But that does not change the nature of their work from professional to supervisory, nor their relation to management. They are not hired as supervisors but as professionals. The work of employees that may be "super- vised" by professionals in this category is merely adjunct to that of the professional and is not the primary work product. [Id. at 1156.] The Board emphasized that just because an em- ployer provides his professional employees with support personnel, it was not Congress' intention to exclude them from the Act "by the rote application of the statute without any reference to its purpose or the individual's place on the labor-management spectrum." Id. Although the focus in Adelphi and New York University was to determine whether the superviso- ry function being exercised vis-a-vis nonunit em- ployees "so allied the individuals with management as to establish a differentiation between them and other employees in the unit," the Adelphi decision has been cited in subsequent cases as establishing a rule that any individual who supervises nonunit employees less than 50 percent of his time is not a supervisor, regardless of the nature of the supervi- sory duties or any other factors that might indicate the nature of the individual's alliance with manage- ment. See Florida Memorial College, 263 NLRB 1248, 1253 (1982); A. Barton Hepburn Hospital, 238 DETROIT COLLEGE OF BUSINESS NLRB 95, 96 ( 1978); Mount Vernon College, 228 NLRB 1237 (1977); Clothing & Textile Workers, 210 NLRB 928, 930 (1974). We reject any such shorthand approach . Rather, to ascertain whether an individual's exercise of su- pervisory authority over employees outside the unit warrants his exclusion as a supervisor, we must make a complete examination of all the fac- tors present to determine the nature of the individ- ual's alliance with management. Relevant factors to be considered will include , but not be limited to, the business of the employer, the duties of the indi- viduals exercising supervisory authority and those of the bargaining unit employees , the particular su- pervisory functions being exercised, the degree of control being exercised over the nonunit employ- ees, and the relative amount of interest the individ- uals at issue have in furthering the policies of the employer as opposed to those of the bargaining unit in which they would be included. We will continue to view time spent in performance of su- pervisory duties relevant, but not controlling, to our analysis. Further, our consideration of this factor will no longer rely on a rule that draws the line for finding supervisory status at individuals whose supervisory duties require 50 percent or more of their time.5 The instant case illustrates the need for rejection of a rigid application of a 50-percent rule in favor of examining all the relevant circumstances . Apply- ing the 50-percent rule as the exclusive test, the Regional Director held that the coordinators, whom we have found to possess Section 2(11) au- thority, were not supervisors because that authority constituted only 25 percent of their duties . But the record plainly shows that their supervision of the part-time nonunit faculty is part and parcel of their "primary work product" rather than an ancillary 5 To the extent prior cases are inconsistent, they are overruled. Member Cracraft concurs with her colleagues' findings that the depart- ment coordinators are supervisors and that they should be excluded from the unit . She agrees that the holding Adelphi University, as interpreted in subsequent cases, should be clarified . In addition, however, she would adopt the dissenting opinions in Clothing & Textile Workers, 210 NLRB 928 (1974); and Automobile Club, 209 NLRB 614 (1974) Accordingly, she would apply the same analysis to supervisors regardless of the status of the employees they supervise 321 part of their duties. The mission of the Employer, as stated in its academic bulletins, "is to educate men and women for an enriched life and a success- ful career in any of a number of fields in business and related services." To help achieve that mission, the bulletins state that it is the college's belief "that its students are most effectively served by a [highly qualified] faculty with varied experience and back- ground." In furtherance of this goal of obtaining the most qualified instructors, the coordinators at Flint, in consultation with the associate dean, joint- ly conduct the faculty hiring function while at Madison Heights the coordinators alone hire the faculty. Once hired, their responsibility at both campuses is to annually evaluate faculty perform- ance and recommend, if necessary, nonretention of those who fail to live up to the superior qualifica- tions that the school seeks to maintain. Thus, the situation here differs markedly from Adelphi in which the admissions director's supervi- sion of his secretary was merely ancillary to his own professional duties and was not the primary work product. By contrast, the coordinators were hired both to perform professional teaching serv- ices and to hire and evaluate the faculty. Inasmuch as these major supervisory duties constitute regular and frequent portions of the coordinators' responsi- bilities, we conclude that they are "so allied with management as to establish a differentiation be- tween them and other employees in the unit,"6 even though such duties consume less than 50 per- cent of their worktime. Accordingly, we find the coordinators to be su- pervisors within the meaning of the Act and ex- clude them from the unit found appropriate by the Regional Director. With respect to the lone re- maining full-time instructor at Madison Heights, we remand the case to the Regional Director for fur- ther appropriate proceedings. ORDER It is ordered that the case is remanded to the Re- gional Director for further appropriate action con- sistent with this decision. 6 Adelpht, 195 NLRB at 644