New York University

National Labor Relations Board - Board Decisions

Dec 16, 1975

221 N.L.R.B. 1148 (N.L.R.B. 1975)

1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New York University and NYU Federation of United
Professionals ; NYSUT, NEA, AFT, AFL-CIO,
Petitioner. Case 2-RC-16788
December 16, 1975
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS FANNING, JENKINS, AND
PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing ,was held before Hearing Officer Don T.
Carmody. After the hearing and pursuant to Section
102.67 of the National Labor Relations Board Rules
and Regulations, this proceeding was transferred to
the Board for decision. Briefs have been filed by the
Employer; Petitioner; New York University Chapter,
American . Association of University Professors;
NYU Faculty of Law Association;' and by the
Council of Arts and Science Chairmen as amicus
curiae.
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 rulings of the Hearing
Officer made at the hearing and- finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board finds: 2
1. New York University is a private nonprofit
institution of higher education founded in 1831 with
offices and educational facilities in New York,
Puerto Rico, France, and Spain. During the fiscal
year preceding the hearing, it purchased materials
valued at over $1 million from firms located outside
the State of New York, and its budget for the current
fiscal year exceeds $200 million. The parties stipulat-
ed, and we find, that the University is an employer
engaged in commerce within the meaning of the Act
and we find that it will effectuate the purposes of the
Act to assert jurisdiction in this proceeding.
2. The labor organizations involved claim to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. The Petitioner, NYU Federation of United
Professionals, subject to the stipulations, seeks a unit
comprising all full-time faculty, professional librari-
i Both the Faculty of Law Association and the American Association of
University Professors (herein the AAUP) intervened.
2 The Employer's motion for oral argument is hereby denied. In our
221 NLRB No. 176
ans, faculty on terminal contracts, directors, assistant
directors, coordinators, and assistant coordinators
whose primary functions are not supervisory and
administrative, mentors, master teachers, and teach-
ers. The Petitioner would exclude part- time/adjunct
faculty, law school faculty, Medical Center faculty
and librarians, faculty whose primary commitment is
to the Medical Center, even if they have secondary
responsibilities elsewhere at the University, visiting
faculty, persons whose primary commitment is to
administrative functions, noncompensated faculty,
teaching assistants , teaching fellows and graduate
assistants, deans, vice deans , associate deans, assist-
ant deans, directors of institutes who are supervisory,
guards, and supervisors as defined in the Act,
The AAUP at the hearing stated that its position
with respect to the appropriate unit was that set forth
in the petition, as amended. Its brief states that "an
election should be held with a unit consisting of all
full-time faculty allowed to vote." It would exclude
department chairmen, but would permit "Program
Directors" to vote subject to challenge. The AAUP
"has agreed to and still agrees with all other
stipulations agreed to between the employer and the
petitioner."
The Employer has moved to dismiss the petition on
the ground that a unit excluding the law school is
inappropriate despite the Board's conclusion in an
earlier proceedings that either separate units or an
overall unit would be appropriate depending on the
desires of the law faculty. Following the election
directed in that proceeding, the NYU Faculty of Law
Association was certified as the exclusive collective-
bargaining representative of the law school faculty.
No additional facts have been adduced in this
proceeding with respect to the appropriateness of a
unit excluding the law school, and, although the
Petitioner and the AAUP have not specifically
refused to appear on any ballot including the law
school in the overall unit, neither seeks that unit. The
Faculty of Law Association, although it has no
collective-bargaining agreement with the Employer,
is actively representing the unit. In these circum-
stances, there is no reason to disturb the existing
bargaining relationship or to reverse our earlier
decision. We conclude that a unit excluding the law
school is not inappropriate. The Employer's motion
to dismiss the petition on the ground that the unit is
inappropriate is denied.
As in the earlier proceeding, where it contended
that the faculty were independent agents or supervi-
opinion, the record, including the exhibits and briefs , adequately presents
the issues and the positions of the parties
3 New York University, 205 NLRB 4 (1973).
NEW YORK UNIVERSITY 1149
sors, the University again asserts that its faculty are
not employees within the meaning of the Act.4 This
time the University argues that they are managerial
employees, citing the First Circuit's dictum in
N.L R.B. v. Wentworth Institute and Wentworth
College of Technology, Inc., 515 F.2d 550 (C.A. 1,
1975), that the employee status of faculty members
depends upon the circumstances at each institution,
and the Supreme Court's decision in N.L R.B v Bell
Aerospace Company, Division of Textron, Inc., 416
U.S. 267 (1974)
Both the specific statutory exclusion of supervisors
and the exclusion of managerial employees, which
has been inferred, afford an employer the services of
employees whose allegiance the employer may
require, and depend upon, uninhibited by the direct
application of the National Labor Relations Act.
Managerial employees have been identified as those
who formulate and effectuate management policies
by expressing and making operative the decisions of
their employer. N.L.R.B. v. Bell Aerospace Co., Div
of Textron, Inc., supra, and cases cited therein.
However, only authority and discretion exercised in
the interest of the Employer are relevant in this
context.
We find nothing here, or in the cases the Employer
relies upon, to change our judgment in the previous
proceeding that "the faculty is not in the position of
management ," for it is clear that to the extent the
faculty acts in a "managerial" fashion it does so
collectively in its own interest and not on behalf of
the Employer. Despite the Employer's arguments,
both here and in the earlier proceeding, the record
made at both hearings shows that the faculty can do
little more than make its wishes known. Faculty
decisions are not directly effective. The University
Senate , whose role in the University the Employer
stresses , is not even controlled by the faculty.
The University argues that the Board should not be
concerned with numbers here, or the scope of the
exclusion it seeks, since in Textron the Court
contemplated the exclusion of "scores of executives"
in major corporations who would be reached as
managers but would have no supervisory responsibil-
ity. But a major corporation may have thousands,
and even tens of thousands, of production workers.
The Employer asserts that "the main work of the
University is teaching and research." Yet the
University would exclude from the definition of
employee those who perform that "main work,"
leaving as employees only those whose work is
ancillary or incidental to the University's primary
4 The Employer also renews its arguments raised in the previous
proceeding , and has incorporated its brief in that proceeding into the
record Those arguments are rejected for the reasons set forth in that
decision, supra
goal. That cannot be justified on the ground that the
production force engaged directly in the Employer's
"main work" is allied with management. Although
the magnitude of the exclusion in terms of the
number of individuals affected is not controlling, the
proportion of the work force claimed to be within the
excluded category is significant.
We conclude that the faculty as a class are not
managerial employees. The role and authority of the
Employer's faculty do not differ materially from
earlier cases, where the same or similar arguments
have been rejected.5 The faculty's formal role in
decision making is collegial and advisory; and it is
exercised in the interests of the faculty, not in the
interest of the Employer as would be required in
order to warrant the faculty's exclusion from the
Act's coverage. The Employer's motions to dismiss
the petition on the ground that its faculty are not
employees are denied.
In the previous proceeding, 205 NLRB 4, only the
Employer would have excluded department chair-
men, on the ground that they supervised part-time
faculty members. However, part-time faculty were
excluded from the unit and the record did not
establish that the chairmen's duties in that respect
allied them with management.6 Additional evidence
was received at the hearing in this proceeding
concerning their authority over full-time faculty, and
all parties urge their exclusion from the unit as
supervisors. The record demonstrates that depart-
ment and area chairmen effectively recommend the
hiring, termination, employment during the summer
term, salary increases, and promotion of full-time
faculty members; evaluate their performance; and
assign class schedules. We shall exclude department
and area chairmen from the unit.
Although the parties stipulated the inclusion or
exclusion of a number of directors, they disagreed on
others. The AAUP argues that program directors and
directors "are not of an homogenous group ... .
many `Program Directors' are by title only," and
should be allowed to vote subject to challenge. The
Employer and the Petitioner agree that program
directors are like chairmen and have supervisory
authority. With the exception of Robert Daniels,
director of the leadership development program, they
would exclude the program directors in the School of
Continuing Education, which is organized by pro-
grams rather than departments.
The record indicates that program directors, with
the exception of Daniels, perform essentially the
same function as department or area chairmen. They
5 E g, Northeastern University, 218 NLRB No 40 (1975), and cases cited
therein
6 Chairman Miller and Member Fanning dissenting
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
make effective recommendations with respect to the
hiring, termination, and salary of full-time faculty, as
well as evaluate their work and make faculty
assignments. Accordingly, we conclude that the
program directors,7 except Daniels, are supervisors
and will exclude them from the unit.
The leadership development program, which Dan-
iels directs, is one of the Community Service
Programs or projects. Despite the name, the leader-
ship program is not a "program" in the sense that it
is the equivalent of a department in other schools of
the University, and Daniels does not have the same
authority as the excluded program directors. He does
not effectively recommend hiring or firing and may
assign faculty within the program only with the
concurrence of the director of the Community
Service Programs. Although he has some undefined
"responsibility" for full-time faculty within his
program, there is no indication that it involves
supervision within the meaning of the Act. We shall
include Daniels in the unit since he has no superviso-
ry authority.
Both the Petitioner and the Employer would
exclude Rudolf Bernard, vice director of the Ameri-
can Language Institute. Bernard was described as
one member of a two-man team with the Institute
director, which, inter alia, reviews the activities of the
full-time faculty in much the manner as the excluded
program directors, a category which includes the
Institute's director. Bernard effectively recommends
full-time faculty raises and terminations. According-
ly, we shall exclude him from the unit as a supervisor.
The Employer would exclude three associate
directors in the division of business and manage-
ment: Fink, Prager, and Weinberg. The Petitioner
notes that they may or may not be supervisors. Other
than the director and associate directors, there are no
full-time faculty members employed in the division,
which is staffed by 272 part-time faculty members.
Because, of the size of the division, the associate
directors bear a considerable share of the responsibil-
ities of the director, including responsibility in the
areas of hiring, termination, and assignment of part-
time faculty. Each of the three teaches the equivalent
of four credits per semester. None of the three
appears to have supervisory authority over any full-
time faculty members. However, since the record
does not reveal the extent of their supervisory and
administrative duties with respect to nonunit, part-
time faculty and clerical employees, or whether they
are so allied with management that their exclusion
from the unit is required,8 we shall permit them to
vote subject to challenge.
The Petitioner would include the following mem-
bers of the School of Continuing Education faculty,
listed under various titles on Employer's exhibit EE,
in the unit: Cheek, Gordon, Glesne, Dobrow,
Naftalis, Cohen, Newberger, and Lawrence. The
Employer, although generally stating in its brief that
it would treat "certain directors" like department
chairmen, states that these individuals are primarily
teachers, make no formal recommendations, and
have less managerial or supervisory responsibility
than department chairmen, without urging any
evidence of supervisory authority. We conclude that
they are not supervisors and shall include them in the
unit.
The Employer considers Edward Gaige, an assist-
ant director, a member of the foregoing group. The
Petitioner places him in a group which it asserts may
or may not be supervisors, because, although he does
not appear to have any supervisory authority, the
Dean of the School of Continuing Education testified
that he "would regard . . . Gaige as primarily
managerial ...." Gaige has a faculty title, although
he is not currently teaching, and is "concerned with
things like administration, foreign student visas,
student activities, and so forth." Since Gaige is a
member of the faculty with duties related to students,
and the record provides no basis for his exclusion
other than the Dean's conclusionary observation, we
shall include him in the unit.
The Employer would also include Associate Direc-
tors Marrow and Zelazny in the same category as
Gaige and the others. The Petitioner, as with Gaige,
asserts they may or may not be supervisors. Both
Zelazny and Marrow make "recommendations" to
the director, apparently concerning full-and part-
time faculty, but the record indicates no more than
that these "recommendations" occur in the course of
meetings with their director, where "courses, teach-
ers, notions" are discussed. The director. makes
"effective recommendations" concerning faculty to
the dean. Zelazny acts in the director's absence, but
the record does not indicate the frequency of those
absences or the extent of Zelazny's authority in that
circumstance. Since the record does not show that
Zelazny and Marrow even effectively recommend
effective recommendations, or that Zelazny exercises
supervisory authority regularly, irregularly, or at all,
we shall include them in the unit.
The difficulties in determining whether or not
faculty members. with varying kinds, and degrees of
authority must be excluded as managerial or supervi-
sory employees are considerable. That is particularly
true when the source, nature, and extent' of any
authority are not clear on the record or are mixed.
7 Viz Bell, Clarke, Collins, Donahoe, Gabor, Grimaldi, Jaffa, Phillips,
Reiner, Rothschild, Saltzer, and Wolfe
8 E g, New York University, 205 NLRB 4, 8
NEW YORK UNIVERSITY 1151
Only the extremes can be determined with any
confidence. These difficulties are all reflected in the
attempt to gauge the status of the directors and
associate directors of the Courant Institute of
Mathematical Sciences. All are ' also members of
other departments and teach. The director of the
Courant Institute, Lax, is the chairman of the
mathematics department, and is excluded as a
supervisor for that reason; the rest are not so easy.
The Employer considers Garabedian, director of
the Computer and Applied Mathematics Center,
Courant Institute, typical. Garabedian is a principal
investigator,9 engages in extensive research, and
"directs" a large and complex group consisting of
about 90 people. However, "he does not tell other
people what to do," with he exception of a small
group of doctoral candidates working on his personal
research whom he supervises on their theses; instead
he provides scientific leadership. Garabedian also
"has some people with Ph.D.'s working on the
calculations which he has underway," but their
relationship with him and with the Employer is not
evident from the record. Garabedian, as director, is
not involved in recruiting faculty other than to the
same extent as any other senior faculty member.
However, he does have authority with respect to
hiring nonacademic staff. The record does not reveal
whether the group he "directs" works on grants he
receives as a principal investigator or is part of the
Center staff as such, although the record suggests the
latter. There is no. specific testimony that Garbedian
as director of the Center supervises any full-time
faculty member. Nor for that matter is there
testimony that he exercises supervisory authority
over members of the faculty even as a principal
investigator. Assuming, as the record suggests, that
he does supervise nonacademic staff as director, the
only witness to testify' on the point declined to
estimate whether or not, 50 percent of his time was
consumed in supervising nonunit employees. We
have frequently held that professional college faculty
members who supervise nonunit members need not
be excluded from a professional faculty unit for that
reason if they spend less than 50'percent of their time
at it.
The Petitioner suggests that Garabedian may be a
managerial employee since he is listed in'the Courant
Institute catalogue as a member of the Institute's
administration, "directs" a large research program,
and is closely allied with management., Garabedian
also makes recommendations to the Institute's
director concerning employees in his division and the
Petitioner argues that he must make effective
recommendations concerning hiring, firing, salaries,
etc., because of the director's other heavy responsi-
bilities. But we are not persuaded by that evidence,
which is little more than speculation, and otherwise it
is by no means clear which responsibilities devolve
upon Garabedian as director and which as principal
investigator, or, indeed, what those responsibilities
are except in general terms.
The record, like the Petitioner, suggests that
Garabedian may be a managerial employee, but is
not adequate to resolve that issue satisfactorily. It is
clear, as the Employer asserts, that Garabedian, and
the other directors as such, have less supervisory and
managerial authority than department chairmen.
Accordingly, we find that his status as director does
not preclude him from voting subject to challenge.
The record indicates that the other directors at the
Institute-John, Goldstein, Grad, and Keller-have'
similar duties and responsibilities, as both the
Petitioner and the Employer assert, and we therefore
conclude that directors of the divisions at the
Courant Institute are not, for that reason, precluded
from voting subject to challenge.
Weitzner and'Marawetz are associate directors of
divisions of the Courant Institute. Their duties,
which include teaching, are basically intellectual,
involving, for example, keeping track of what is going
on and providing advice. At most the record
indicates that Marawetz "participates" in hiring or
terminating the one or two clericals in her division.
The Petitioner suggests they may be supervisors; the
Employer states that they have less responsibility
than either directors or chairmen. We conclude that
their duties as associate directors do not require their
exclusion from the unit.
There are five directors in the School of Education,
Health, Nursing, and Arts Professions whose status is
questioned: Claussen, Higgins, Trachtman, Deutsch,
and-,Schein. Claussen, Higgins, and Trachtman are
basically teachers who, the record indicates, and
both the Employer and Petitioner appear to agree,
have no discernible supervisory authority. We shall
include them in the unit.
The director of the Institute for Developmental
Studies, Deutsch, teaches and works with doctoral
candidates approximately half the time. Of 30
"service units," which the school' considers to be a
faculty member's load for the year, Deutsch received
15-1/2 for his work as director. The Institute is a
research component of the school and seeks money
from outside sources for research projects.. As
director, Deutsch has one full-time and one part-time
secretary, as well as 12 , research 'scientists not
otherwise employed by the University. Deutsch
effectively recommends the hiring ;and firing of the
9 A category to be considered later
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
research scientists and clerical employees in the
Institute. He also is a principal investigator, but the
record does not elaborate on that point. We shall
exclude him from the unit as a supervisor. Although
the research scientists and the clerical employees are
not in the unit, half or more of Deutsch's worktime is
credited to his duties as director, a position in which
he exercises supervisory authority in the interest of
the Employer that is clearly more than the incidental
supervision of clerical employees whose work is
merely ancillary and in support of the work of a
professional employee.
Schein is the director of the University Center for
Advanced Training in Deafness Rehabilitation. With
the exception of three "service units" for advising
students, his responsibility is as director in carrying
out, and directing the carrying out of, research
projects in deafness. As director, Schein has 19,
researchers and 10 full-time and 16 part-time
clericals working at the Center, as well as "non-
permanent" employees working on projects in
Milwaukee and Houston. His authority over Center
employees is the same as that exercised by Deutsch,
although in addition he "supervises" the research
work performed by the Center's associate director.
Like Deutsch, he is also a principal investigator, but,
again , the record does not elaborate. We shall
exclude him from the unit.
The School of Education, Health, Nursing and
Arts Professions is organized in four divisions, each
with a head, and each, with the exception of nursing,
is further organized into departments. Two of the
heads also are department chairmen in fact or effect.
Ross, head of the Arts Professions Division, also acts
as chairman of the music and music education
department of that division, and Rogers, head of the
Nursing Division, which has no departments, also
performs all the functions of a department chairman.
Both would thus be excluded from the unit in light of
their supervisory authority as chairmen of depart-
ments.
Division heads come between department chair-
men and the dean in the school's hierarchy, with
diverse responsibilities. The division heads have the
overall responsibility for the operation of their
divisions, supervise faculty recruiting, assist depart-
ment chairmen, evaluate department chairmen, and
review those chairmen's evaluation of faculty mem-
bers. The Employer considers division heads compa-
rable to chairmen, the Petitioner would exclude them
as supervisory or managerial employees, and none of
the parties requests their inclusion. We conclude that
they are supervisory employees and shall exclude
them from the unit.
There are three directors and an acting codirector
in the Graduate School of Public Administration,
which, like some other schools, is organized by
program rather than department. However, none of
the four has the same authority as a department
chairman. Barrish is the acting codirector of the
Research Center for Industrial Behavior, which is
inactive. Since none of the parties requests his
exclusion and the record indicates that he is
primarily engaged in teaching and research without
any suggestion of supervisory authority, we shall
include him in the unit.
The directors- Beaumont, Hansen, Padilla-chair
faculty meetings, coordinate the timetable for cours-
es, and advise the dean on the need for part-time
faculty. They have no independent role as directors
in hiring or evaluating any faculty members. Beau-
mont has an administrative assistant , hired by an
assistant dean, for whom she has "some responsibili-
ty for day-to-day supervision," but the nature and
extent of that responsibility, also described as
"principal," is not further detailed. Since there is no
indication that the directors in the Graduate School
of Public Administration possess any supervisory
authority over unit members, and only vague
conclusionary testimony that Beaumont has some
authority over an employee outside the unit, we shall
include these directors in the unit.
There are four directors and an associate director
in the Graduate School of Business Administration.
Sorter, associate. director of the Ross Institute, is also
chairman of the accounting and taxation area, and is
excluded from the unit for that reason. The directors
are Richter, Silber, Zink, and Schiff.
Richter is director of the Doctoral Office and-
applies the University's policy to individual cases,
organizes the scheduling of examinations, communi-
cates and enforces deadlines and standards in the
doctoral program, and works with the administration
and the doctoral committee of the faculty in
reviewing and setting new policy for the program. He
teaches roughly half the time . There are no other
faculty members iii the Doctoral Office, which
consists of Richter and two secretaries. In the event
the secretaries were to be replaced, Richter' would
have the right to select among approved candidates
for the job. No faculty member' reports to Richter
and he does not evaluate faculty members he had
worked closely with in the doctoral program. In 'view
of the foregoing, we conclude that Richter is not a
supervisor for the purposes of this proceeding and we
shall include him in the unit.
Schiff is the director of the Ross Institute of
Accounting which conducts research on accounting
and 'other areas of interest to the accounting
profession , and organizes and runs seminars on a
variety of issues. He participates in administrative
meetings with the area chairmen . In addition to
NEW YORK UNIVERSITY
clerical employees, three faculty members are suffi-
ciently involved with the Institute to have primary
offices there, although they, like Schiff, also teach.
He has the authority, to insure that these faculty
members carry out the projects they undertake for
the Institute and to-remove Institute support for their
projects, and decides which faculty members will
work at the Institute . Schiff evaluates faculty
members who work at the Institute during the year
and his recommendations weigh very heavily in
decisions concerning the faculty members' continua-
tion at the , University or salary increases . We find
that Schiff possesses supervisory authority to act in
the interest of the Employer and we will exclude him
from the unit.
The Salomon Brothers Center for the Study of
Financial Institutions was established with an en
dowment fund , as was the Ross Institute. Part of its
funds comes from outside research grants.10 The role
of its director, Silber, is basically the same as that of
Schiff, the Ross Institute director. He, too, teaches
and participates with the area chairmen in monthly
administrative meetings of the school. Silber has the
same relationship with the Center's staff, which
includes about - four faculty members who are
actively involved and. another four or five involved in
its research projects, as well as two clerical employ-
ees. Since his relationship with faculty members at
the Center is the same as that of Schiff, we find that
Silber is a supervisor and shall exclude-him from the
unit.
Zink is director of Placement Services for the
Graduate School of Business Administration and
teaches one course a semester. He primarily provides
services to the graduate students; i.e., organizing
work` shops and seminars with business, scheduling
campus interviews,'visiting' employers, etc. There are
two other professionals on his staff who are not
members of the faculty and four clerical employees.
Zink has authority' to- hire and fire the staff. The
position is not, apparently, intended to be a faculty
position and the fact that'the present director is a
faculty member was described as an accident:
The Employer groups Zink with Richter, director
of the Doctoral Office, whom' we have included in
the unit, and Silber, director of the Salomon Brothers
Center, whom we have excluded. The Petitioner
contends that Zink does- not supervise any faculty
members, is not a supervisor, and should be included
in the unit. We are not fully in accord with either
position. It is evident that we do not agree with the
Employer's equation of Zink, Silber, and Richter.
The parties have stipulated the exclusion of
"administrative personnel, whose primary commit-
1153
ment to the University is their administrative
function, who may teach either optionally or inciden-
tally to their primary responsibility." That descrip-
tion seems to fit Zink quite well. However, none of
the parties perceives Zink in that light, and he is a
teaching member of the faculty in addition to his
administrative duties. Accordingly, we shall permit
him to vote subject to challenge.
The Institute for Retail Management publishes a
professional journal, runs courses and seminars in
conjunction with the School of Continuing Educa-
tion, organizes career days, and provides some
placement help for students. It has been attempting
to develop a research program. The director, Coe,
teaches half time and has authority to hire and fire
clerical employees and the editor of the journal
published by the Institute. Coe decides which faculty
members will participate in the Institute's seminars
and courses' and makes evaluations and recommen-
dations concerning faculty members who do so
participate, apparently in the same manner as Silber
and. Schiff, although to a lesser extent because of the
more limited nature of the program. In view of the
foregoing, particularly her authority to select faculty
members for participation in Institute programs, we
conclude that she exercises supervisory authority in
the interest of the Employer and shall exclude her
from the unit.
The Iberia-America Language and Area Center
has a master of arts program in the Graduate School
of Arts and Science, and is interdisciplinary; its
faculty is derived from the faculty of other depart-
ments that offer courses in the area. Its director,
Corradi, who also teaches two courses, selects the
faculty members who teach in the program and has
the authority to end their association with the
Center's program. His responsibilities and duties are
almost identical with those of a department chairman
and he is consulted by department chairmen in the
hiring and evaluation of faculty in the program. We
shall exclude him from the unit.
Ferri, director of the Division of Applied Science
of the School of Arts and Science, directs its research
efforts and teaches one course. The division has a
master of science program with six full-time' faculty
members, as well as 'a research staff of five, and five
clerical employees. Ferri's duties are similar to those
of a department chairman, and his recommendations
to the dean concerning the hiring of faculty members
carry great weight. Since Ferri is the equivalent of a
department chairman and effectively recommends
the hiring of faculty, members, we shall exclude him
from the unit.'
10 There is no contention that the grants are not to the Center
1
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
- McChesney is assistant director of the Hagop
Kervorkian Center for Near Eastern Studies, which,
like the Iberia-America program, is interdepartmen-
tal. It offers a master of arts degree in Near Eastern
studies. McChesney is also a full-time teaching
member of the faculty with a full teaching load. He
assists the director, Winder, who is the executive
dean of Arts and Science, in the operation of the
Center; he handles correspondence, prepares reports
for Federal funding, coordinates activities, helps
schedule lectures and conferences, etc. Dill, dean of
the Graduate School of Art and Science, testified
that he thought McChesney shared responsibility for
recruiting faculty from other departments with and
under the direction of Winder and carries out more
of the day-to-day operations under broad policy set
down by Winder. There is one part-time secretary in
the Center who McChesney is not responsible for
hiring, although there is conclusionary testimony,
bare of any detail, that he does "supervise"_ the
secretary. McChesney's duties were equated with
those of Corradi, director of the Iberia-America
program, except that McChesney has no budgetary
responsibility.
The Employer describes McChesney as primarily a
faculty member, although .asserting he supervises a
part-time clerical employee. As already noted, there
is nothing in the record which would permit the
conclusion that McChesney supervises that employee
within the meaning of the Act. The Petitioner asserts
that since McChesney's duties were equated to
Corradi's, McChesney should be excluded as a
supervisor: However, that conclusionary response to
a leading question is not supported by any of the
testimony in the record regarding McChesney's
actual duties. There is no evidence that McChesney
possesses any supervisory authority, within the
meaning of the Act, other than the reference to
Corradi and the supposition that' he shares responsi-
bility for recruiting faculty with the director, and that
under the direction of his superior. As there is no
evidence that McChesney has authority to exercise
his independent judgment in any of the areas
enumerated in the Act's definition of supervisors, we
conclude that he is not a supervisor and shall include
him in the unit.
At the hearing all parties stipulated the exclusion of
all deans, vice deans, assistant deans, and assistants
to the dean with the exception of a limited number
listed on joint exhibit "E" whom the Petitioner would
exclude and the Employer would treat in the same
manner as department chairmen, whom we have
excluded from the unit. Since none of the parties
would, in the circumstances, include these classifica-
tions, we shall exclude all deans, vice deans, assistant
deans, and assistants to the dean from the unit.
The Employer would exclude, while the Petitioner
and -the AAUP would include, principal investiga=
tors. A principal investigator is an individual who is
responsible for the direction of contract research or
"corollary activities" which are funded by a source -
outside the University. The initiative and responsibil-
ity for advancing a proposal for contract research is
the faculty member's, although other signatures from
the University hierarchy may be required to indicate
that the proposal has the University's approval and
that it will support it. - -
The principal investigator has the intellectual or
research responsibility, as well as that for determin-
ing the budget in the proposal and insuring that
expenditures adhere to that budget. The principal
investigator must approve all expenditures allocated
to funds received in this manner. However, expendi-
tures must conform, in general direction, with the
proposal written by the principal- investigator.
The- actual funds, including a 72-percent payment.
to the Employer for its overhead costs, are paid to
the University, which disburses them in, accordance
with the contract. Professional research scientists and
clerical employees, if any, are hired in conformity
with the University's regular personnel policies,
although their salaries are allocated, to grant ,funds.
Other faculty members may participate in the
research, generally on a part-time basis although it
may be full time during the summer. If a faculty
member is performing work on a contract during the
academic year, it does not generally result in extra
pay. Instead that proportion of his normal salary is
allocated to the grant or contract funds, whether he is
a principal, investigator or merely working on
someone else's contract.
The decision to invite another faculty member to
work on research with a principal investigator is his
to make. However, the principal investigator "would
undoubtedly work out with the chairman of the
appropriate department or the dean . . . whether it
would be appropriate . . . to invite the faculty
member to accept an assignment . . . ." There is no
provision permitting a principal investigator to
relieve another faculty member from a research
program, and that action would .require negotiations
among the principal investigator, the ,faculty mem-
ber, the University,. and, although the record is not
entirely clear,, possibly the granting agency. No clear
authority is vested in any individual, or particular
group.
Although the principal investigator has the authori-
ty to determine the character of the program and
scientific procedures, his authority is "more intellec-
tual." Typically, the technical details are set forth in
the proposal. There is no implication that the
principal investigator directs or tells other faculty
NEW YORK UNIVERSITY
members what to do and he does not evaluate their
work performance.
A faculty member is totally free in the area of
research and independent study and is required to
report to no one on his endeavors. A research
proposal must represent the principal investigator's
interests. It would not be considered proper to press
a member of the faculty to submit a proposal for any
activity which he would not be doing anyway, and
the University would not feel free to dismiss a
principal investigator from a project without the very
close concurrence of the funding agency. If a faculty
member leaves the University, it is not uncommon
for the grant to be transferred with him.
Section 2(11) of the National Labor Relations Act
defines a supervisor as an individual with authority
to exercise his independent judgment to hire,
promote, assign, discipline, etc., other employees or
to direct them, all in the interest of his employer. It is
clear from the testimony at both the hearing in the
current proceeding and in the earlier one that a
principal investigator exercises no supervisory au-
thority over his fellow faculty members originating
from his status as principal investigator. He cannot
assign a faculty member to his project, he does not
direct him while he is working on the project, and he
cannot terminate him. Further, it appears that, at
least in the majority of cases, other faculty members
will be paid for work on the project only for 2
months during the summer. Even were we to
conclude that a principal investigator exercise super-
visory authority over fellow faculty members during
the summer, we have not heretofore .,excluded
individuals as supervisors because they seasonally
supervise unit members while working in the same
manner as other unit members during the bulk of the
year.
More importantly, however, the research is not
performed for the University, is not paid for from
university funds, is not under the control of the
University (although contrary toisome testimony and
assertions , there are at least written limits on certain
kinds of research, e.g., with human subjects), and is
not undertaken at the direction of the University.
The University need not approve a proposal, or a
particular disbursement from research funds, but
neither can the University draw from these funds
without the approval of the principal investigator.
11 Northeastern University, 218 NLRB No. 40 (1975) (Member Fanning
dissenting in pertinent part), where the Board excluded principal investiga-
tors, is distinguishable, as the Board found that-principal investigators
supervised unit members . There is no indication that the supervision was
seasonal or that it was not exercised in the interest of the employer The
same is true of Rensselaer Polytechnic, Institute, 218 NLRB No 220 (1975).
The principal investigators there were found to exercise supervisory
authority over Non-Faculty employees in the bargaining unit on behalf of
the employer Moreover , New York University has identified a small
1155
The principal investigator, although paid through the
university payroll for his activities in this respect, is
paid with funds drawn from the grant.
There is nothing to suggest that any direction of a
research project by a principal investigator is on
behalf of the University rather than on behalf of the
principal investigator and the contracting agency.
Any time devoted to those activities is compensated
by the contracting agency and not by the University.
Significantly, there is no indication that the Universi-
ty requires principal investigators to evaluate the
work of employees on his project or that the
University evaluates a principal investigator's perfor-
mance or ability as a supervisor. Any "employees"
are also compensated by funds provided by the
contracting agency for that purpose and there is no
indication in the record that they are accountable to
anyone other than the principal investigator for their
work on the contract.
In sum, principal investigators do not "supervise"
employees of the University in the interest of the
University, they "supervise" faculty only seasonally,
if at all, and the work is not performed at the
direction of the University. Therefore, we find that
principal investigators are not supervisors within the
meaning of the Act for the purposes of this
proceeding. Accordingly, we shall not exclude any
faculty members from the unit as supervisors merely
because they are principal investigators."
In Adelphi University, 195 NLRB 639 (1972), the
Board held that it would not exclude college or
university faculty members from a professional unit
as supervisors merely because they infrequently
might exercise supervisory authority over nonunit
members, drawing the line for that purpose at faculty
members whose supervisory duties required 50
percent or more of their time. The Employer,
however, would exclude any librarians whose duties
include the supervision of nonprofessional nonunit
employees, regardless of the significance of those
duties to the bulk of their work. The Petitioner, and
apparently the AAUP, would apply the 50-percent
standard used in Adelphi.
The Employer objects to the 50-percent rule in part
because of the difficulty in determining how the rule
is to be applied. Its difficulty stems from the problem
of determining in the case of dual function profes-
sional and supervisory employees whether or not the
number of "mature" universities, including itself, which are characterized
chiefly in terms of research At a "mature" university, we are told , effective
control of research is "virtually impossible" and, in any event, "the
University's stature makes any such control undesirable " If, as the
University believes, the relationship between an academic employer and its
faculty with respect to research is directly related to its "maturity ," whether
as function or as cause , decisions involving institutions which have not been
identified as comparable, or in which the significance of that status was not
raised, can have little bearing on that relationship here.
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee is "supervising" when not actively assign-
ing and directing work.
Obviously an employee may be engaged in super-
vising other employees even while not giving orders.
It cannot be expected in every individual case that a
hard and fast line can be drawn for this purpose.
That, however, does not invalidate the standard. It is
the Employer which assigns duties to its employees,
and in the final analysis it is the duties actually
assigned to, and performed by, the "supervisor"
which determine whether or not the employee is
engaged in supervision outside the unit to an extent
which requires exclusion from a unit. The standard is
only an attempt to identify professional employees
who, by virtue of their duties with respect to
employees outside a professional unit, are essentially
supervisors and not professionals with incidental
nonunit supervisory authority.
Additionally, the Employer argues that Congress
intended to exclude from the Act any individual with
any supervisory authority, and that the Board can
not pick and choose from among a statutorily
excluded category for the purpose of the Act's
coverage. The broad intent of Congress in enacting
the statutory exclusion of supervisors is reasonably
clear. But the exclusion was not motivated by a
single factor. Motives as diverse as affording an
employer representatives or agents of its own
choosing, whose undivided loyalty could be com-
pelled, and that of protecting individuals who had
demonstrated the-ability and desire to get ahead
from the leveling influences of unionization, as well
as the, desire to protect workers from individuals
allied with management, have been discerned. See,
-e.g.,, N.L.R.B. v. Bell Aerospace Company, Division of
Textron, Inc., 416 U.S. 267 (1974).
In the case of professional employees in a profes-
sional unit the issue is not clear cut. Professionals, as
well as supervisors, exercise discretion and judgment,
and professional employees frequently require the
ancillary services of nonprofessional employees in
order to carry out their professional, not supervisory,
responsibilities. But that does not change the nature
of their work from professional to supervisory, nor
their relation to management. They are not hired as
supervisors but as professionals. The work of
employees that may be "supervised" by professionals
in -this category is merely adjunct to that, of the
professional and is not the primary work product. In
short, we do not believe that any teacher, lawyer,
architect, doctor, editor, etc., whose employer pro-
vides him with the services of a typist, secretary,
draftsman, or similar support personnel, was intend-
ed by Congress to be excluded from the Act by the
rote application of the statute without any reference
to its purpose or the individual's place on the labor-
management spectrum.
Accordingly, we shall apply the 50-percent stand-
ard to professional librarians who do not supervise
other professional employees in the unit.
The parties agree with respect to the nature and
extent of the duties of the bulk of the librarians. They
have stipulated to the identity of certain librarians
who do or do not supervise other professional
employees, as well as to professional librarians who
spend less than 50 percent of their time supervising
nonprofessional employees who are not in the unit.
However, the parties were unable to agree on the
extent or nature of the duties of other,librarians.
Best is reserve librarian,in the Readers' Services
Division and Nelson is circulation librarian in the
same division. Both are responsible for the operation
of their departments and both appear to supervise
clerical employees in those departments. There_ are 7
full-time and 3 part-time clerical employees in Best's
department, 10 full-time and 9 part-time in Nelson's.
Yucht, assistant university librarian for Readers'
Services and the supervisor of Best and Nelson,
testified that Best spends less than 50 percent of her
time supervising clerical employees. Best is also
concerned with how the, orders are received, feed-
back from the faculty,' and ` working with the
reference librarians. Nelson, according to Yucht,
spends less time than Best supervising clerical
employees. Nelson attempts to solve specific prob-
lems faced by users of the library and analyzes her
operation to determine the cause of the problems:
Contrary' to Yucht, Brynildsen, assistant university
librarian for Administration, testified that both Best
and Nelson devoted more than 50 'percent of their
time to their supervisory duties. In view of this
conflict in testimony, which we perceive no basis for
resolving on this record, we shall permit Best and
Nelson to vote subject to challenge.
The Employer would also exclude Rossi, Stecher,
and Teitelbaum on the ground that they supervise
other professional librarians. Neither the Petitioner
nor the AAUP takes any position on these individu-
als in their briefs and their final positions on them
are not apparent from the record.
Rossi is assistant head of the catalogue department
and coordinator of the catalogue section, one of
three sections in the department, and is directly
responsible for monograph material. There are three
other professionals in the monograph section whose
work is reviewed and revised by Rossi. Rossi
approves requests for vacations, but does not make
the final decision; makes a draft evaluation of their
work performance, which "holds a good deal of
weight"; assigns incoming work on the basis of the
individual's expertise; has authority to vary their
NEW YORK UNIVERSITY 1157
work hours; resolves questions of interpretation of
cataloguing rules; is consulted on the hiring of
professional - employees; and is responsible for
training any new professional employees in his
section. Based on the foregoing, particularly the fact
that Rossi assigns directs, and reviews the work of
professional employees in, the unit and effectively
evaluates their performance on the job, we conclude
that he is a supervisor and shall exclude him from the
unit.
Stecher is in charge of serials material under "the
very casual supervision" of Rossi. Two professional
librarians report to Stecher, who assigns them work
and evaluates their performance. Rossi testified that
the relationship of Stecher to the professionals in her
section was different from his relationship to the
professionals in his section, but without specifying
the difference. Brynildsen, assistant university librar-
ian for Administration, testified that he was not
aware of any difference but that he was not on top of
the situation. However, since no difference is
specifically indicated and there is no indication that
it would detract from the conclusion that Stecher
assigns work to and evaluates the performance of
professional employees in the unit, we conclude that
Stecher is a supervisor and shall exclude her.
The Employer would also exclude a reference
librarian, Teitelbaum, who substitutes for the head of
the reference division, an agreed-upon supervisor,
approximately 15 percent of the time. Although she
has no independent supervisory authority, a certain
amount has "accreted" to her because of her role as
substitute and her seniority on the job. Since
Teitelbaum only sporadically substitutes for a super-
visor, has no independent supervisory authority, and
the nature and extent of that authority which has
accreted to her is not apparent, we conclude that she
is not a supervisor and shall include her in the unit.
The Employer would also exclude faculty members
on terminal contracts, those who have been given
notice that they will not be reappointed for the
following academic year. Notice that a faculty
member will not be reappointed is normally given
from 6 months to 1 year in advance depending upon
length of service.
The Employer argues that terminal-contract facul-
ty members should be considered in the same light as
visiting faculty, who have been excluded from faculty
units. Visiting faculty, like terminal faculty, have no
reasonable expectancy of reappointment and, the
University argues, it is wrong for its "civilized and
humane practices . . . to be used to its detriment by
allowing persons who have no substantial interest in
the University to vote in an election ...."
Why permitting, terminal faculty to vote is detri-
mental to the University is not explained" Similarly,
despite the University's arguments rooted in the
length of the notice period,. we see no reason why it
should make any difference. Were ; the employee
placed on 2 weeks' notice before, the election, the
effect would be the same and the employee's interest
in the unit even less.
Contrary to the Employer, the relation of visiting
faculty to the University, other than its anticipated
duration, is not at all comparable. A visiting faculty
member has a regular full-time appointment at some
other college or university and is working for the
Employer only while on a leave of absence from his
own. The visiting faculty member, unlike one on
terminal contract, may participate in faculty meet-
ings only at the sufferance of the faculty and, even
so, may not vote unless specifically permitted to do
so on matters pertaining to the faculty only. In
particular, visiting faculty may not vote in elections
for the Faculty Council or university commissions.
The inclusion of terminal contract faculty members
in the unit while excluding visiting faculty closely
parallels their respective roles in the governance of
the University.
We conclude that terminal contract faculty mem-
bers have a substantial continuing interest in the
employment relationship. They are hired on the same
basis as other employees and subject to termination
on the same basis. While their employment continues
they have a community of interest with other
employees in the unit, and we shall include them in
the unit.
The parties jointly request that any election be
directed during the University's fall or spring term,
but not during the 30-day period following the
beginning of the fall term or preceding the end of
spring term examinations. This request has merit and
the election shall be held on a date to be determined
by the Regional Director consistent with those
guidelines. Similarly, the parties request that certain
employees be permitted to vote by mail ballot.
Regional Directors are authorized to conduct elec-
tions in the manner deemed advisable; accordingly,
we leave this matter to the Regional Director's
discretion.
We find that the following unit,12 as further
defined by the stipulations of the parties, is appropri-
ate for collective bargaining within the meaning of
Section 9(b) of the Act:
All full-time faculty, professional librarians,
faculty on terminal contracts, directors, assistant
directors, coordinators and assistant coordina-
tors, whose primary functions are not supervisory
12 Member Fanning concurs in the exclusion of part-time faculty solely because the parties agree to their exclusion
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and administrative , mentors, master teachers ; but fellows and graduate assistants, deans, vice deans,
excluding part-time/adjunct ' faculty, law school associate deans, assistant deans, directors of
faculty and librarians , faculty whose primary institutes who are supervisory, guards, and
commitment is to the Medical Center, even if they supervisors as defined in the Act.
have secondary responsibilities elsewhere at the
University , visiting faculty , persons whose prima - [Direction of Election and Excelsior footnote
ry commitment is administrative functions , non- omitted from publication.]
compensated faculty , teaching assistants , teaching