American International College

National Labor Relations Board - Board Decisions

Nov 20, 1986

282 N.L.R.B. 189 (N.L.R.B. 1986)

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