Fairleigh Dickinson University

National Labor Relations Board - Board Decisions

Dec 13, 1976

227 N.L.R.B. 239 (N.L.R.B. 1976)

FAIRLEIGH DICKINSON UNIVERSITY 239
Fairleigh Dickinson University and Fairleigh Dickin-
son University Council of American Association of
University Professors Chapters, Union-Petitioner.
Fairleigh Dickinson University Council of American
Association of University Professors Chapters and
Fairleigh Dickinson University, Employer-Petition-
er. Cases 22-UC-44 and 22-UC- 46
December 13, 1976
DECISION ON REVIEW AND ORDER
CLARIFYING CERTIFICATION
BY MEMBERS FANNING, PENELLO, AND
WALTHER
On April 9, 1976, the Regional Director for Region
20 issued a Decision and Order in which he dismissed
the UC petition (Case 22-UC-44) filed by the
Fairleigh Dickinson University Council of American
Association of University Professors Chapters (herein
called AAUP). Thereafter, pursuant to Section 102.67
of the National Labor Relations Board Rules and
Regulations, Series 8, as amended, the AAUP filed a
timely request for review of the Regional Director's
decision, contending, inter alia, that the Regional
Director's decision fording department chairmen to
be supervisors is clearly erroneous and that the
certified unit should be clarified to include the
Employer's department chairmen.'
By telegraphic order dated May 26, 1976, the Board
granted the request for review, remanded the case to
the Regional Director for the purpose of conducting a
hearing with respect to the present status of the
department chairmen, and directed that, after said
hearing, the case be transferred to the Board for
decision.
On May 28, 1976, the Employer filed a UC petition
(Case 22-UC-46) in which it contends that the
department chairmen's duties are the same as when
the Board in 1973 found them to be supervisors and
excluded them from the unit. The Employer also
contends that as a result of the collective-bargaining
agreement2 faculty members as a group exercise
authority in determining the terms and conditions of
their employment. Therefore, the Employer asserts
that, because the bargaining agreement creates such a
high degree of "collegiality" at the University, the
1 In Fairleigh Dickinson University, 205 NLRB 673,675 (1973), the Board
found that the department chairmen were supervisors within the meaning of
Sec. 2( 11) of the Act This determination was based on the facts that, at that
time, department chairmen exercised the authority to make effective
recommendations as to.the hiring and change of status of faculty members,
and they directed and assigned work to departmental support personnel.
The unit found appropriate consisted of. All full-tune faculty members
employed by the Employer at its New Jersey campuses, including the
extension schools located at Wayne and Fort Monmouth, New Jersey,
excluding part-time faculty members, the faculty of the Edward Williams
227 NLRB No. 40
faculty members are managerial and are not "em-
ployees" under the Act.
The Regional Director, on June 4, 1976, issued an
order consolidating cases and notice of hearing.
Following the hearing held before Hearing Officer
Albert G. Kroll, and pursuant to Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions and Statements of Procedure, Series 8, as
amended, and by direction of the Regional Director
for Region 22, this proceeding was transferred to the
Board for decision. Thereafter, the Employer and the
AAUP filed briefs in support of their positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby, af-
firmed.3
Upon the entire record in this proceeding, the
Board finds: -
1. Fairleigh Dickinson University is an indepen-
dent nonprofit university operating under a charter
from the State of New Jersey. It operates three major
campuses at Rutherford, Madison, and Teaneck,
New Jersey, with additional locations at Wayne and
Fort Monmouth, New Jersey. The University has a
gross annual revenue in excess of $33 million. Annual
purchases across state lines exceed $50,000. Accord-
ingly, we ford that the Employer is engaged in
commerce within the meaning of the Act, and that it
will effectuate the purposes of the Act to assert
jurisdiction herein.
2. We find that the labor organization involved
claims to represent certain employees of the Employ-
er.
3. In Case 22-UC-44, the Union-Petitioner con-
tends that, under the terms and conditions of the
parties' collective-bargaining agreement, the role of
the department chairperson with respect to the hiring
of new faculty members and the change of status of
faculty members has changed to such an extent, that
department chairpersons are no longer supervisors
within the meaning of the Act. Contrary to the
Union's position, the Employer-Petitioner, in Case
22-UC--46, argues that the terms and conditions
under the agreement as to the department chairper-
Junior College located at the Teaneck Campus, all officers and officials
primarily engaged in admi nistrative functions, librarians, laboratory work,
all supervisors as defined in the Act including department chairmen, guards,
and all other employees,
2 The Fairleigh Dickinson University and the AAUP entered into a
collective-bargaining agreement for the term September 1, 1974, to August
31, 1976.
3 The Employer's request for oral argument is hereby denied as the record
and briefs adequately set forth the issues and the contentions of the parties
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
son's duties have not changed from that which existed
when the Board in 1973 found them to be supervisors.
We find merit in the Union's contentions.
The facts relating to the supervisory responsibilities
of the department chairmen, prior to the parties'
entering into their collective-bargaining agreement,
are set forth in the Board's decision in Fairleigh
Dickinson University, 205 NLRB 673, 675 (1973).
There the Board concluded that the department
chairmen were supervisors within the meaning of the
Act inasmuch as they exercised authority to make
effective recommendations with respect to the hiring
and change of status of faculty members and directed
and assigned departmental support personnel. In so
concluding, the Board specifically noted that the
department chairman conducted hiring interviews
and that, although other faculty members also may
have interviewed applicants, it was the chairman's
recommendation ' which was forwarded to the college
dean. In contrast, the record now indicates that the
collective-bargaining agreement has substantially
altered the duties and responsibilities of the depart-
ment chairmen.
Under the contract, the various colleges of the
University are subdivided into departments, with
each department under the direction of a department
chairperson. Department chairpersons are elected to
a 3-year term based upon obtaining at least two-
thirds of the votes of the full-time departmental
faculty and the approval of the college dean, which is
given except for reasonable cause. If the election of a
chairperson is by a lesser margin than a two-thirds
majority, then at least two names are presented to the
college dean for his selection of a chairperson for the
department. A chairperson may be recalled at the end
of any academic year by a two-thirds vote of the
departmental faculty and the concurrence of the
dean. Department chairpersons do not receive extra
compensation for their duties during the academic
year, but they do receive a one-quarter teaching load
reduction.
When the University administration authorizes the
filling of a departmental vacancy or when a new
position' has been authorized, the Departmental
Policy Committee (DPC),4 not the department chair-
person, screens the 'applicants and recommends an
individual to fill the position.
The parties' collective-bargaining agreement pro-
vides that no later than October of each academic
4 The DPC is elected by the faculty members in each department and
consists of one-third of the departmental faculty, exclusive of the department
chairperson . When the DPC functions as a personnel committee, there are
also one student representative and a student alternate on the committee.
The department chairperson is an ex ofcio member of the DPC, except
when the DPC functions as a personnel committee at which time the
department chairperson does not serve as a member of the DPC. Inasmuch
as the chairperson isvsuoteeshis own separate recommendation as to personnel
matters, he does not again on such matters on the committee.
year the department chairperson shall forward to the
DPC the names of all members of the department
who, under the terms of the agreement and university
regulations, must be reviewed for renewal or nonre-
newal of their contracts, promotions, tenure, emeritus
status, or sabbatical leaves.5 In cases to be reviewed,
the department chairperson provides the DPC with a
personal "preliminary recommendation" on the per-
sonnel matter and with a copy of the individual's
personnel file. The DPC makes its own independent
recommendation based on peer evaluations which
include classroom observation, analysis of course
outlines, etc., student evaluations, and in some cases
recommendations from faculty members in the
department.
The recommendations of both the department
chairperson and the DPC are sent to the college dean
who also makes a preliminary recommendation as to
the personnel matter at issue. The bargaining agree-
ment provides that the dean's recommendation shall
be based upon "considerations of individual merit
and, where appropriate, his analysis of such college-
wide concerns as enrollment patterns, class size
statistics, staffing patterns, and budgetary considera-
tions." The dean's recommendation, along with all
relevant information, is forwarded to the College
Faculty Status Committee (CFSC) 6 for it to make a
recommendation.
In the event that the CFSC and the college dean
concur, the vice president for academic affairs shall
approve their recommendations, except in unusual
circumstances. If the CFSC fails to make an effective
recommendation owing, for example, to a tie vote or
abstentions by a majority of the CFSC, the recom-
mendation of the college dean is regarded as the
effective recommendation of the college. However, if
the CFSC and the college dean do not agree in a
faculty status matter, the vice president for academic
affairs, after reviewing the judgments made at each
level, gives substantial weight to the recommendation
of the CFSC. The vice president for academic affairs
has final authority on personnel matters.
With respect to the hiring of part-time faculty, the
record discloses that the DPC submits to the depart-
ment chairperson a list of individuals recommended
by them for part-time employment in the department.
Except for emergency situations, the department
chairperson's discretion in filling vacancies for part-
5 The procedures for handling personnel matters are contained in arts. 10
and 1 I of the collective-bargatmng agreement.
6 The CFSC is an elected body composed-of five tenured associate
professors or professors , two other faculty members who are either tenured
assistant professors or untenured faculty members without regard to rank,
and two students . The recommendation of the CFSC as to personnel matters
constitutes the recommendation of the college faculty
FAIRLEIGH DICKINSON UNIVERSITY
time faculty is limited to selecting from among those
individuals whose names appear on the DPC list.
Thus, under the terms of the parties' collective-
bargaining agreement entered into and implemented
after the election in which department chairpersons
were excluded as supervisors, the recommendation of
each chairperson as to personnel matters involving
full-time faculty can no longer be said to be given
"great weight." The department chairperson's recom-
mendation is now only one of four recommendations
on the same personnel matter and the college dean is
specifically directed by the contract to concur with
the recommendations of the DPC, "except for
substantial reasons stated in writing." Further, the
chairpersons now generally have only limited author-
ity with respect to filling vacancies for part-time
faculty positions. Additionally, the record reveals
that the chairpersons spend only a minimal portion of
their time directing nonunit departmental support
personneL7 We therefore find that the authority and
responsibilities of the chairpersons have been so
significantly changed under the parties' contract that
the chairpersons are no longer supervisors within the
meaning of the Act.
In its brief, the Employer, inter alia, contends in
support of its petition in Case 22-UC-46 that a "true
system of collegiality" exists at the University pursu-
ant to which all faculty members have effective
participation in formulating managerial policies. On
this basis, the Employer maintains that faculty
members are managerial employees and should be
excluded from the unit- In support of its contentions,
it cites Adelphi University, 195 NLRB 639, 648 (1972),
wherein the Board stated:
Because authority vested in one's peers, acting
as a group, simply would not conform to the
pattern for which the supervisory exclusion of our
Act was designed, a genuine system of collegiality
would tend to confound us.
The Employer submits that the above quote indicates
that the Board will apply the supervisory exclusion
when, as in the instant case, a "genuine system of
collegiality" exists. The Employer notes that not even
the University's president can hire a faculty member
without following the detailed contractual provision
providing for effective faculty participation. Further,
the Employer notes that department chairpersons are
subject to review by their faculty peers, resulting in a
situation in which those supposedly being supervised
are collectively supervising their supervisor.
7 See, e.g., New York University, 221 NLRB 1148 (1975).
8 See Fordham University, 193 NLRB 134, 138 (1971), where the Board
included department chairmen in the professional unit , noting that decisions
as to hiring , promotions , and tenure were not made by the chairmen alone
but by the faculty of the department acting as a group, Northeastern
241
We find no record evidence to support the Employ-
er's contention that all faculty members have enough
participation in formulating labor relations policies to
make them managerial employees. We note that the
Employer's argument, if sustained, would effectively
abolish the faculty unit found appropriate in 1973. As
stated in Adelphi University, supra, "the concept of
collegiality, wherein power and authority is vested in
a body composed of all of one's peers or colleagues,
does not square with the traditional authority struc-
tures with which this Act was designated to cope in
the typical organizations of the commercial world."
We recognize and give some effect to the faculty
participation or collegiality at the University. How-
ever, the record clearly indicates that, although
faculty representatives on the DPC and `CFSC make
recommendations, the final authority as to personnel
matters rests with the vice president for academic
affairs. Committee representatives are not advised to
advocate management's interests in making their
recommendations, nor are they considered manage-
ment's representatives while functioning on the
committee. As in Adelphi University and in C. W. Post
Center of Long Island University, 189 NLRB 904, 905
(1971), we will not disenfranchise faculty members
merely because they have "some measure of quasicol-
legial authority." Accordingly, we shall dismiss the
Employer's petition for unit clarification in Case 22-
UC-46.
In view of the foregoing, we find that the collective-
bargaining agreement between the parties has so
changed the authority and responsibilities of the
department chairpersons that they are no longer
supervisors under the Act. We therefore conclude
that, as the department chairpersons spend the great
majority of their time performing teaching functions
with minimal time spent directing secretarial nonunit
employees, they should be accreted to the faculty unit
found appropriate by the Board in 1973.8
Member Walther would not accrete these depart-
ment chairmen or chairpersons to the certified faculty
inasmuch as their positions were in existence at the
time of the 1973 election and they were not eligible to
vote. Those considerations are among recognized
Board criteria for determining whether accretion has
occurred. However, in each case the total circum-
stances are necessarily considered, and the cases cited
in the dissent notably demonstrate that approach.
For example, in Hyatt House Motel,9 emphasis was
placed upon the separate community of interest of
the office clericals and front desk personnel sought
University, 218 NLRB 247 (1975); and Rosary Hill College, 202 NLRB 1137,
1139 (1973), where concentration chairmen were found not to be supervisors.
9 San Jose Motel d/b/a Hyatt House Motel; Hyatt Corporation d/b/a
Ricky's Hyatt House; Holiday Inn; May West Corporation d/b/a Holiday Inn
of Sunnyvale, 174NLRB 1009(1969).
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after "a number of years" to be accreted to the
existing unit covered by an industry contract. Gould-
National Batteries and General Electric Company,'°
decisions that also declined to clarify, were premised
in substantial part on the passage of time since unit
certification without the union making any claim in
the meantime to represent the employees sought. The
case presently before the Board is distinguishable. Its
facts are unusual. The Union sought to include these
chairpersons in the unit before the election, and
afterward in bargaining for its first contract, for a 2-
year term ending mid-1976, it secured substantial
change in the duties of these professors. The record
here reflects implementation of those changes and
has convinced this panel that these chairpersons, who
are elected for a 3-year term, are no longer supervi-
sors within the meaning of Board precedent. Thus,
due to the efforts of the bargaining agent who has
continuously sought to represent this classification; it
is now an employee classification rather than supervi-
sory. In these circumstances we find the issue to be
one of accretion rather than selection of a representa-
tive, and- in this unit clarification proceeding shall
accrete to -the certified unit employees classified as
department chairpersons.'1
ORDER
It is hereby ordered that the certification heretofore
issued to the Fairleigh Dickinson University Council
10 Gould-National Batteries, Inc., 157 NLRB 679 (1966), General Electric
Company, 144 NLRB 88 (1963).
11 Compare Union Electric Company, 217 NLRB 666 (1975)
of American Association of University Professors
Chapters, be, and it hereby is, clarified by specifically
including therein the employees designated depart-
ment chairpersons.
IT IS FURTHER ORDERED that the petition in Case
22-UC-46 be, and it hereby is, dismissed.
MEMBER WALTHER, dissenting:
Assuming that department chairmen are no longer
supervisors, it is error on the part of the majority to
blanket them into the certified unit by means of a
motion for clarification. The position of department
chairman existed at the time of the election, albeit it
was then supervisory, the individuals occupying that
position did not vote because of their supervisory
status, and they were not included in the coverage of
the subsequently executed collective-bargaining
agreement. Under these circumstances, department
chairmen cannot be considered accretions to the
existing unit and cannot be added to the certified unit
by a motion for clarification.12 The Union's desire to
include them in the certified unit gives rise to a
question concerning representation and requires the
filing of a representation petition and the holding of
an election to ascertain the desires of the employees
involved. I would, therefore, dismiss the petitions for
clarification.
12 San Jose Motel d/b/a Hyatt House Motel, et al., 174 NLRB 1009
(1969); Gould-National Batteries, Inc., 157 NLRB 679 (1966); General
Electric Company, 144 NLRB 88 (1963).