College of Osteopathic Medicine and Surgery

National Labor Relations Board - Board Decisions

Nov 2, 1982

265 N.L.R.B. 295 (N.L.R.B. 1982)

COLLEGE OF OSTEOPATHIC MEDICINE
College of Osteopathic Medicine and Surgery, Peti-
tioner and College of Osteopathic Medicine and
Surgery Faculty Federation, Local 3474, Ameri-
can Federation of Teachers. Case 18-UC- 113
November 2, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS ZIMMERMAN AND HUNTER
Upon a petition duly filed by the Employer
under Section 102.60 of the National Labor Rela-
tions Board Rules and Regulations, Series 8, as
amended, to clarify the existing bargaining unit, a
hearing was held before Hearing Officers Richard
R. Anderson and David M. Biggar. Subsequently,
pursuant to Section 102.67 of the Board's Rules,
the Regional Director for Region 18 transferred
this proceeding to the Board for decision. Thereaf-
ter, the Employer (herein called the College or
COMS) and the Union filed briefs with the Board
which have been duly considered.
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 Hearing Officers'
rulings 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:
1. The Employer is a nonprofit Iowa corporation
with its offices and principal place of business lo-
cated in Des Moines, Iowa, where it is engaged in
the operation of a medical college. The parties stip-
ulated, and we find, that during the past calendar
year, a representative period, the Employer's gross
volume of business was in excess of $1 million.
During the same period, the Employer purchased
goods and services valued in excess of $10,000
which were shipped to its Des Moines facility di-
rectly from points located outside the State of
Iowa. Accordingly, we find that the Employer is
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act and that it will effectu-
ate the purposes of the Act to assert jurisdiction
herein.
2. College of Osteopathic Medicine and Surgery
Faculty Federation, Local 3474, American Feder-
ation of Teachers, is not a labor organization
within the meaning of Section 2(5) of the Act.
I In light of our finding, infra, that the faculty members in the unit are
managerial employees, and since it appears that the unit is comprised
solely of the managerial employees involved herein, we find that the
Union does not represent statutory employees and therefore is not a labor
265 NLRB No. 37
3. Pursuant to a representation election, the
Union was certified on January 23, 1976, as the ex-
clusive bargaining representative in the following
unit:2
All full-time and regular part-time clinical and
pre-clinical faculty. student faculty and librar-
ians employed by the Employer at its facilities
including clinics in the Des Moines, Iowa area;
excluding office clerical employees, guards and
supervisors as defined in the Act, and all other
employees.
Thereafter, the parties negotiated a collective-
bargaining agreement which was effective from
December 7, 1976, through June 30, 1978. On Oc-
tober 18, 1978, the parties entered into a successor
agreement effective July 1, 1978, through June 30,
1981. On February 5, 1981, the College filed the in-
stant petition.
The petition seeks to clarify the unit to exclude
all employees who are currently included therein,
and requests that the Board revoke the Union's
certification accordingly. The College contends
that the faculty unit consists solely of managerial
employees as defined in the Supreme Court's deci-
sion in N.LR.B. v. Yeshiva University, 444 U.S. 672
(1980), and that these employees are not entitled to
the benefits of collective bargaining under the Na-
tional Labor Relations Act, as amended. The Col-
lege urges, that, similar to the Yeshiva faculty,
COMS faculty members formulate and effectuate
the institution's academic policies and have signifi-
cant input into essential nonacademic decisions.
Alternatively, the College asserts that, if the
Board disagrees with the College's principal con-
tention, then the appropriate unit should not in-
clude in any event the positions of discipline head,
clinic director, director of biomedical communica-
tions, and library director, because these positions
are supervisory.
The Union contends that the faculty members do
not meet the criteria set forth in Yeshiva for man-
agerial employee status. To the contrary, the Union
asserts that the COMS administration has retained
full authority for managerial decisionmaking. The
Union alternatively contends that even if the Board
finds that the faculty members are managerial em-
ployees, they should not lose the protection of the
organization within the meaning of the Act. See Ithaca College, 261
NLRB 577 (1982), at fn. 2.
s The record indicates that in 1972 the administration revoked the
then-existing faculty manual and replaced it with a new one which con-
tained a vastly different managerial structure which decreased authority
for the faculty. During 1974-75, a faculty committee drafted a new
manual, which was rejected by the administration because it provided for
greater faculty job security than the administration favored. In 1975, sev-
eral faculty members were terminated, provoking a dispute which culmi-
nated in litigation.
295
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act because the faculty's authority was gained
solely through the collective-bargaining process.
The College is a privately supported institution
which offers students a program leading to the
degree of doctor of osteopathy (D O.). This pro-
gram involves an academic (preclinical) curriculum
which is followed by student participation in var-
ious osteopathic clinics run by the College. Cur-
rently, this program encompasses 4 years.
The College is officially governed by a board of
trustees, which meets twice annually. The board of
trustees oversees a board of directors which has a
more direct and active role in the College's af-
fairs.3 Primary authority for the day-to-day admin-
istration of the College is held by the college presi-
dent, a position in which Dr. Leonard Azneer has
served since 1971. He is assisted primarily by the
dean for academic affairs, currently Dr. Joseph
Walsh, the assistant dean for preclinical affairs, the
associate dean for clincial affairs, and the assistant
dean for student affairs. The College's executive
council also includes the assistant dean for admis-
sions, the director of the library, the director of
biomedical communications, the discipline heads,
one elected representative of the clinic directors,
and two faculty members elected at-large.
Pursuant to the 1976 collective-bargaining agree-
ment, the faculty drafted a constitution and bylaws
which were approved by the board of trustees. The
faculty constitution provides for monthly meetings
of the full-time faculty. Additionally, it established
faculty committees to deal with a wide range of
issues of concern to the College and the faculty.
Several of these committees consist exclusively of
voting members elected by the faculty.4 Other
committees include administration appointees as
well as elected faculty members. 5 On most commit-
tees, one or more deans are members ex officio, but
have no voting rights. The faculty president and
the dean for academic affairs are ex officio members
of all committees. The bylaws state that no faculty
member may serve on more than one committee,
unless every other member is on one.
The faculty is divided into various disciplines,
which are analogous to departments at other insti-
s The directors are all members of the board of trustees. They meet on
a quarterly basis.
4 These include the nominating committee, animal care committee,
bylaws committee, rank and promotion committee, tenure committee,
graduate council, postgraduate education committee, research and grant
committee, student promotion and evaluation committee, and affirmative
education committee.
' These include the admissions committee, curriculum committee, edu-
cational resources committee, clinic education committee, scholarship,
honors, and awards committee, student financial aid committee, and stu-
dent health committee.
tutions.6 Each discipline is led by a discipline head,
who is chosen by the dean for academic affairs.
The College's curriculum is taught through an
"integrated systems" approach. The bodily organ
systems, e.g., respiratory, gastrointestinal, etc., are
considered individually, with input from the var-
ious disciplines involved. 7 The syllabus for each
system is prepared annually under the direction of
faculty members called co-secretaries, who are ap-
pointed by the dean for academic affairs. 8 Co-sec-
retaries, with input from the other faculty members
teaching the system, are expected to decide upon
course content, lecture schedules, course materials,
and examination content and schedules. They
submit their draft syllabi to the faculty curriculum
committee and then to the executive council for re-
vision and approval. However, the curriculum
committee and executive council generally make
only nonsubstantive "housekeeping" changes in the
original documents. Thus, the faculty effectively
determines the content and schedules of the sys-
tems taught at the College.
The faculty also participates in the formulation
of the College's basic academic philosophies and
policies. For example, the faculty was instrumental
in the College's conversion from a 3-year to a 4-
year course of study, and a faculty committee was
directly responsible for the formulation of the ex-
panded curriculum.9 Additionally, the faculty has
been engaged in the planning process for a new
animal care facility at the College.
The admissions committee, which includes six
faculty members, two students, and the director of
admissions ex officio, sets the College's admissions
policy. Further, the admissions procedure requires
that the entire faculty be involved in reviewing ap-
plications, interviewing candidates, and recom-
mending for or against their admission. The final
decision as to whether or not to admit a candidate
is made by the dean for academic affairs. Dr.
Walsh testified, however, that he adopts faculty
recommendations 99 percent of the time.
Student academic standards are set and enforced
by the student promotion and evaluation committee
(SPEC), which consists of eight faculty mem-
6 These include anatomy, behavioral science, biochemistry, family
practice, internal medicine, microbiology, nutrition, obstetrics and gyne-
cology, osteopathic manipulative medicine, pathology, pediatrics,
physiology/pharmacy, radiology, and surgery.
7 For example, the rheumatology and orthopedics system is taught
over a 6-week period, and includes lectures in anatomy, biochemistry,
physiology/pharmacology, rheumatology, microbiology, pathology, and
orthopedics.
* A system may have more than one co-secretary, depending upon its
size.
9 Its draft course schedule was subject to approval by the board of
trustees, which adopted it in full.
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COLLEGE OF OSTEOPATHIC MEDICINE
bers.' 0 This committee is responsible for evaluating
performance, recommending promotions, and re-
viewing graduation requirements of students. In
June 1979, SPEC established the COMS student
evaluation mechanism, a comprehensive document
which sets forth detailed attendance, examination,
grading, probation, dismissal, and leave policies.
SPEC also makes initial recommendations as to the
discipline or dismissal of individual students. These
recommendations are subject to the approval of the
dean for academic affairs, the executive council,
the full faculty and the board of trustees. However,
there is no evidence that any SPEC recommenda-
tions have been reversed by the administration. 1
The faculty also has considerable influence in the
hiring of its members. The discipline heads often
initiate the hiring process by informing the dean
for academic affairs of the need for new instructors
and suggesting specific names of candidates. The
discipline heads, in conjunction with other faculty
members in their respective disciplines, are further
responsible for screening all candidates and advis-
ing the dean and the college president as to their
competence. No faculty member will be hired
without the endorsement of the discipline head.
However, the president has rejected a small
number of faculty candidates recommended by dis-
cipline heads, because of high salary requirements
or other onerous preconditions.
Pursuant to the collecstive-bargaining agreements
and bylaws, a faculty committee has authority to
effectively recommend the initial rank and subse-
quent promotions of faculty members. The rank
and promotion committee, based on criteria set
forth in detail in the collective-bargaining agree-
ment, makes specific recommendations to the dean
for academic affairs.12 If approved by the dean,
these recommendations are submitted to the presi-
dent for final approval. Drs. Walsh and Azneer
both testified that they view the committee's rec-
ommendation as the paramount consideration in
their decisionmaking process.' 3 Additionally, the
collective-bargaining agreement states that the ini-
tial rank of all incoming faculty members is subject
to the committee's approval.
Similarly, the administration makes the final de-
cisions on tenure for faculty members, but relies
'o SPEC meetings are frequently attended by Dr. Walsh in an adviso-
ry capacity.
"I The faculty was also responsible for establishing the College's test
question challenge procedure. This procedure was set by an ad hoc com-
mittee of faculty members.
i2 Promotion proceedings are initiated by the faculty member's disci-
pline head.
x1 In fact, the record indicates that there have been several cases in
which they disagreed with committee recommendations and sent them
back for reconsideration. When the committee did not change its recom-
mendation, the administration yielded to the committee's view.
heavily on the tenure committee recommenda-
tions.' 4 During the 1979-80 and 1980-81 school
years, all six committee recommendations to grant
tenure were effectuated by the administration.
It is evident from the record that the COMS fac-
ulty currently has almost plenary authority in aca-
demic matters and significant input into important
nonacademic matters. The faculty is instrumental
not only in the day-to-day operation of the College
but also in its long-range policy planning. More-
over, faculty members have considerable influence
over their colleagues' job security and advance-
ment. In sum, the COMS faculty clearly has man-
agerial authority as outlined in Yeshiva, and in sub-
sequent Board decisions. 15
The Union contends that the faculty does not
have managerial authority because they do not
make the final decision in many matters, but merely
recommend a course of action which the adminis-
tration is free to reject. However, the record indi-
cates that faculty recommendations are almost
always followed by the administration. As the
Court found in Yeshiva,"' administration retention
of final decisionmaking authority is not determina-
tive of managerial status where the faculty retains
managerial authority through its effective recom-
mendations. 1 7
The Union further contends that a unit should
not be able to "bargain itself out of the protections
of the Act." The Union asserts that the faculty's
authority has been gained and maintained solely
through an adversarial process of collective bar-
gaining, and that faculty interests are not truly
aligned with management, as contemplated by the
Court in Yeshiva, supra. The Union fears that if the
faculty were unprotected by a collective-bargaining
agreement the Employer could unilaterally remove
any managerial authority that the faculty has
achieved through collective bargaining.
Although we recognize the concerns expressed
by the Union, we are constrained to reject this
contention. The Supreme Court was primarily con-
cerned that a collective-bargaining relationship
might cause college faculty members to divide
" This has not always been the case. In 1978, the committee recom-
mended 12 faculty members for tenure. Of these, Dr. Azneer presented
six to the board of trustees, who refused to grant tenure to any of them.
After the faculty invoked the contractual grievance procedure, an arbi-
trator ordered the College to conduct the tenure reviews again.
'1 See, e.g., Montefiore Hospital and Medical Center, 261 NLRB 569
(1982); Ithaca College, 261 NLRB 577 (1982); Thiel College. 261 NLRB
580 (1982); and Duquesne University of the Holy Ghost, 261 NLRB 587
(1982).
i6 See 444 U.S. at 683, fn. 17, wherein the Court stated that "the fact
that the administration holds a rarely exercised veto power does not di-
minish the faculty's effective power in policymaking and implementation.
.. . the relevant consideration is effective recommendation or control
rather than final authority."
i7 Also, see Ithaca College, supra.
297
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their loyalties between their employers and unions.
The Yeshiva decision does not expressly or implied-
ly distinguish situations in which managerial au-
thority was gained through collective bargaining
from situations in which such authority was more
freely granted, and we do not believe that such a
distinction is required by the Act. Accordingly, we
must look to the extent of managerial authority
held by college faculties rather than the manner in
which such authority was obtained.
However, our determination that COMS faculty
members are managerial employees not qualified
for the protection of the Act is dependent on the
particular facts of the current situation. If the Col-
lege removes sufficient authority from its faculty
members so that they revert to the status of non-
managerial employees, the Board will process a
proffered representation petition at that time.
The Employer's petition to exclude all COMS
faculty members from the unit is hereby granted.
In light of this decision we need not decide wheth-
er the discipline heads, clinic directors, library di-
rector, or biomedical communications director, all
of whom are faculty members, should be excluded
as supervisors. As the unit now includes no em-
ployees within the meaning of Section 2(3) of the
Act, we will revoke the Union's certification.
ORDER
It is hereby ordered that the existing contractual
collective-bargaining unit represented by College
of Osteopathic Medicine and Surgery Faculty Fed-
eration, Local 3474, American Federation of
Teachers, be, and it hereby is, clarified to exclude
all employees in the unit. Accordingly, the Union's
certification, issued in Case 18-RC-10663, is
hereby revoked.
298