Bradford College

National Labor Relations Board - Board Decisions

Apr 30, 1982

261 N.L.R.B. 565 (N.L.R.B. 1982)

BRADFORD COLLEGE
Bradford College and Milk Wagon Drivers and
Creamery Workers Union, Local 380, a/w In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Petitioner. Case l-RC-17300
April 30, 1982
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Joseph T. Griffin, a hear-
ing officer of the National Labor Relations Board.
After the hearing and pursuant to Section 102.67 of
the National Labor Relations Board Rules and
Regulations, Series 8, as amended, and by direction
of the Regional Director for Region 1, this pro-
ceeding was transferred to the Board for decision.
Thereafter, the Employer and the Petitioner filed
briefs in support of their respective positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority 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 hereby af-
firmed.
Upon the entire record in this proceeding, the
Board finds:
I. Bradford College, the Employer, is a Massa-
chusetts corporation engaged in the operation of a
college with gross annual revenues in excess of $1
million. During the fiscal year immediately preced-
ing the hearing, it purchased goods and materials
valued in excess of $5,000 directly from points lo-
cated outside the Commonwealth of Massachusetts.
The college concedes that it is subject to the juris-
diction of the Board, and we find that it is an em-
ployer engaged in commerce or in an industry af-
fecting commerce within the meaning of the Act,
and that it will effectuate the purposes of the Act
to assert jurisdiction in this proceeding.
2. Milk Wagon Drivers and Creamery Workers
Union, Local 380, a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, the Petitioner, has been at all
times material herein a labor organization within
the meaning of Section 2(5) of the Act.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1)
and 2(6) and (7) of the Act.
261 NLRB No. 81
4. The Petitioner seeks a unit of full-time and
part-time (three-quarters and one-half time) faculty,
including the division chairmen, the B.A. coordina-
tor, the English Language Institute director and
faculty, the College Learning Program director
and faculty, and the librarian and assistant librarian,
but excluding one-quarter time faculty, administra-
tors, managerial employees, guards, and supervisors
as defined in the Act.
The Employer contends initially that the unit is
inappropriate because its faculty are managerial
employees, under N.LR.B. v. Yeshiva University,
444 U.S. 672 (1980), and thus not subject to the
Act.
The Employer alternatively urges that, should
the Board find contrary to its principal contention,
then the appropriate unit should exclude the divi-
sion chairmen, the B.A. coordinator, the English
Language Institute director and faculty, the Col-
lege Learning Program director and faculty, the li-
brarian and assistant librarian, and one-half time
faculty. Both parties agree that the one-quarter
time faculty should be excluded.
The initial question to be resolved is whether the
petitioned-for unit is inappropriate because the Em-
ployer's faculty are managerial employees within
the U.S. Supreme Court's decision in N.LR.B. v.
Yeshiva University, supra. There, the Court defined
managerial employees as those employees who
"formulate and effectuate management policies by
expressing and making operative the decisions of
their employer" through "taking or recommending
discretionary actions that effectively control or im-
plement employer policy."' The Court noted, how-
ever, that it was not suggesting an "application of
the managerial exclusion that would sweep all pro-
fessionals outside the Act in derogation of Con-
gress' expressed intent to protect them."2 The
Court cited with approval Board coverage of pro-
fessional employees whose decisionmaking is limit-
ed to routine discharge of professional duties, such
as architects and engineers who, while acting as
team leaders, are deemed employees despite sub-
stantial planning responsibility and authority to
direct and evaluate team members. 3
The Court further noted:
[O]ther factors not present here may enter into
the analysis in other contexts. It is plain, for
example, that professors may not be excluded
merely because they determine the content of
their own courses, evaluate their own students,
444 U.S. at 682-683.
Id. at 690.
Id at 690, fn. 30, citing General Dynamics Corporation, Convair Aero-
space Division, San Diego Operations, 213 NLRB 851, 857-858 (1974).
565
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and supervise their own research. There thus
may be institutions of higher learning unlike
Yeshiva where the faculty are entirely or pre-
dominantly nonmanagerial. There also may be
faculty members at Yeshiva and like universi-
ties who properly could be included in a bar-
gaining unit. It may be that a rational line
could be drawn between tenured and unten-
ured faculty members, depending upon how a
faculty is structured and operates. But we ex-
press no opinion on these questions, for it is
clear that the unit approved by the Board was
far too broad.4
Turning to the instant case, it is clear in our
opinion that the Employer in this proceeding fails
to meet the criteria for collegial governance pursu-
ant to which the Supreme Court found the Yeshiva
faculty to be "managerial." We note initially that
the Employer is a private, independent, nonprofit
institution with a full-time faculty of 29 members.
Authority for the overall control of the institution
is vested in the board of trustees with particular re-
sponsibility for the sound financial operation of the
college, for any new changes in the educational
program of the college, and for the determination
of major policies. In turn, the trustees have dele-
gated to the president "full authority and responsi-
bility for the administration of the college." This
authority of the president vis-a-vis the faculty was
amplified by the president's memorandum to the
faculty on March 17, 1980, which stated, inter alia,
that:
. . . meetings of the faculty alone have no
power to set academic or administration poli-
cies. The President must run the college; it
cannot be run by the faculty or groups within
the faculty-even by implication.
These views were also reinforced by the vice
president for college relations, who informed the
faculty "that governance of [the] college was not a
democratic government-it was a government
from higher levels."
These views find support in a study of the col-
lege which was conducted by the New England
Teachers Association (NETA) which has the au-
thority to grant accreditation to colleges and uni-
versities of higher education in its area of jurisdic-
tion. In NETA's spring 1981 report regarding the
Employer, it cited a "lack of [faculty] participation
in academic decision-making," a "disregard for
stated operating procedures," and administration
decisions made "in disregard of due faculty consid-
Id at 690-691, fn. 31.
eration," and concluded there should be "greater
representation of faculty in decision-making.",
The present record reflects that, while the writ-
ten governing document, namely, the "Faculty
Manual," would indicate faculty input in many
areas of decisionmaking, the practices of the Em-
ployer's administration often are to the contrary:
All major changes in college curriculum
have to be approved by the board of trustees.
Faculty salaries are determined by the presi-
dent of the college.
Teaching loads, or requirements, are decid-
ed by the president and the academic dean.
The faculty choice for academic dean was
ignored by the president, who chose one not
recommended by the faculty search committee
and without consultation with its members.
Division chair recommendations for new
faculty members were rejected by the aca-
demic dean, and others were hired.
Faculty grades for students were altered by
the administration without notice to the facul-
ty members involved.
The academic dean made faculty evaluations
before receiving the division chair's report.
Faculty members were demoted by the aca-
demic dean from full-time to part-time status
without consultation of the chair or prior
notice.
Faculty members were demoted from full-
time to part-time status despite contrary rec-
ommendations from the division chairs.
The board of trustees does not grant faculty
tenure, only "continuing appointments" of
specified duration.
The president reversed a faculty member's
decision to "drop" a student for excessive ab-
senteeism after several warnings to the student
by the member.
The president and academic dean canceled
the 1980 summer school despite faculty pro-
tests.
Budget items have been transferred from the
academic budget to the academic dean's
budget.
The Faculty Manual, ostensibly the college's
governing document, was not submitted to, or
approved by, the faculty.
In sum, while the faculty and division chairs
have the written right to make recommendations,
the record shows that such recommendations were
' These findings mirror a similar report 3 years earlier in which NETA
noted a lack of structured tripartite government and a lack of an "inter-
nal governance structure."
566
BRADFORD COLLEGE
often ignored or reversed by the president, by the
academic dean, or by both with respect to curricu-
lum, admission policies, graduation of students,
course loads, course scheduling, grading of stu-
dents, faculty hiring or retention, tuition, and facul-
ty salaries. Applying the Supreme Court's criteria
for managerial employees in institutions of higher
learning, we conclude that the faculty in the instant
case are not managerial employees. Accordingly, as
the record evidence establishes, and the parties
admit, that the employees involved here are profes-
sional employees within the meaning of the Act,
we find that a unit of these professional employees
is appropriate for the purposes of collective bar-
gaining under the Act.
Turning to unit placement, the Petitioner would
include the division chairs and the B.A. coordina-
tor, while the Employer would exclude them as
managerial or supervisory employees. The division
chairs have the written authority to prepare depart-
mental budgets, to evaluate appropriate faculty
members, to assign students to faculty members for
advice purposes, to hire faculty, and to assign
courses. The record shows, however, that actual
practice often diverges from the written policy.
Faculty members have been hired by the academic
dean without consultation; recommendations on
faculty retention have been overruled by the aca-
demic dean; appointment commitments for the fol-
lowing academic year have been made by the aca-
demic dean prior to receiving the division chair's
evaluation of that faculty member; budgetary items
have been transferred to the academic dean's
budget; and division chairs elected by the faculty
have been fired as division chairs by the adademic
dean.
There are six B.A. coordinators, five of whom
are also division chairs, since the duties are similar.
The pattern of practice is the same. Moreover,
both division chairs and B.A. coordinators teach,
are regarded as faculty, and spend an insignificant
amount of time on these collateral functions. Ac-
cordingly, we find the division chairs and the coor-
dinator to be neither managerial nor supervisory
employees, and shall include the division chairs and
the B.A. coordinator in the unit.
With respect to the librarian and assistant librar-
ian, the Petitioner would include them in the unit,
while the Employer would exclude them as super-
visors or as managerial employers.
The record shows that both the librarian and as-
sistant librarian qualify as professional employees
with advanced degrees in library science. Both
attend faculty meetings, vote at such meetings, and
are considered to be "faculty." There is no evi-
dence that such employees spend more than 50 per-
cent of their time supervising nonunit employees.-
Consequently, we shall not exclude them as super-
visors.
Nor does the record support a finding that they
are managerial employees. The librarian could be
equated with a division chair and the assistant li-
brarian with a faculty member. Although both
have been involved in the budgetary process, the
librarian's budget proposals have been reduced by
the academic dean, the locks and keys to the li-
brary doors were changed without prior consulta-
tion, and the academic dean and dean of students
determine the library hours.
Accordingly, inasmuch as neither the librarian
nor assistant librarian is a supervisory or manageri-
al employee, we shall include both employees in
the unit.
The parties also disagree as to the unit placement
of the "part-time" (one-half time) faculty,' some 15
in number. The Petitioner would include one-half
time faculty in the unit, and the Employer would
exclude them as not possessing a community of in-
terest with the other professionals in the unit. The
Board in New York University, supra, held that the
differences in compensation, participation in uni-
versity government, eligibility for tenure, and
working conditions are so substantial in most col-
leges and universities that a community of interest
is lacking between the two groups. Facts here
show that the one-half time faculty are classified as
independent contractors, generally cannot vote by
ballot on major curriculum changes, are paid a flat
fee twice a semester, and are not eligible for em-
ployer programs relating to life insurance, social
security deductions, or retirement.
Accordingly, we shall exclude the one-half time
faculty from the unit.'
The Petitioner would include, and the Employer
would exclude, the director and faculty of the Eng-
lish Language Institute.
The English Language Institute (ELI) was set up
in June 1979, and is intended to teach English as a
second language to prepare foreign students for
courses in American universities and for jobs upon
their return to their home countries. The ELI
offers 24 hours of English instruction a week to be-
tween 30 and 40 students per term.
The students receive no college credit for this
work and do not matriculate at Bradford, although
some advanced students may take college courses
for credit at no extra cost.
' New York University, 205 NLRB 4, 8 (1973).
' Both parties agree that three-quarters time faculty should be included
in any unit found appropriate by the Board.
i University of Vermont and State Agricultural College, 223 NLRB 423,
425 (1976).
567
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The faculty consists of the director and three in-
structors. With the exception of the director, such
instructors are paid less than regular faculty mem-
bers; and, while they possess "faculty status," they
vote only on certain issues at faculty meetings. Ad-
ditionally, the ELI faculty teaches during different
hours, are not subject to the Faculty Manual, have
no "advising" responsibility, and do not share the
same employment benefits.
Accordingly, we shall exclude the director and
faculty of the English Language Institute, inas-
much as they lack a community of interest 9 with
the full-time faculty of the college.
The College Learning Program was established
in February 1980 for the purpose of assisting bright
students from high school in accommodating their
diagnosed learning disabilities and developing their
study skills, writing skills, and time management.
The 20 students in the program receive no grade or
college credit, although they do receive a confiden-
tial report evaluating their progress. The staff con-
sists of the director and a generic specialist. Nei-
ther supervises the other, each working with the
special needs of small groups of students. Neither
has served on a faculty search committee, although
Point Park College, 209 NLRB 1064 (1974).
they may attend faculty meetings. The record also
shows that the hours of work and range of salaries
are different from those of regular full-time faculty
members.
Accordingly, we find that the director and the
generic specialist in the College Learning Program
do not share a community of interest with other
faculty members and we shall exclude them from
the unit.
In sum, we find the following unit appropriate:
Full-time and three-fourths time faculty, the
division chairs, the B.A. coordinator, the li-
brarian and assistant librarian, excluding the
half-time and one-quarter time faculty, the di-
rector and faculty of the English Language In-
stitute, the director and the generic specialist
of the College Learning Program, all other
employees, guards and supervisors as defined
in the Act. 10
[Direction of Election and Excelsior footnote
omitted from publication.]
'° The parties stipulated, and we find, that the following employees
also should be excluded from the unit: The president of the college, the
vice president for college relations, deans, associate deans, the registrar,
the public relations director, the director of the Counseling and Resource
Center, the director of admissions, directors of various dormitories, and
the director of development.
568