Thiel College

National Labor Relations Board - Board Decisions

Apr 30, 1982

261 N.L.R.B. 580 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thiel College and Thiel College Chapter, American
Association of University Professors, Petitioner.
Case 6-RC-8667
April 30, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a petition filed on December 31, 1979,
under Section 9(c) of the National Labor Relations
Act, as amended, a hearing was held on January
17, 1980,1 before Hearing Officer Laura A. John-
ston. Following the hearing, and pursuant to Sec-
tion 102.67 of the National Labor Relations Board
Rules and Regulations, Series 8, as amended, the
Regional Director for Region 6 transferred this
case to the Board for decision. Thereafter, the Em-
ployer filed a brief with the Board.
On February 20, the United States Supreme
Court issued its opinion in N.L.R.B. v. Yeshiva Uni-
versity,2 in which the Court held that the full-time
faculty members at that university were managerial
employees excluded from coverage of the Act.
Since the issue addressed by the Court in Yeshiva
University is also raised in the instant proceeding,
the Board, on May 22, issued a "Notice to Parties
of Opportunity To Submit Statements of Position."
Thereafter, the Employer filed a statement of posi-
tion.
The National Labor Relations Board has re-
viewed the Hearing Officer's rulings made at the
hearing and finds that they are free from prejudi-
cial error. They are hereby affirmed.
Upon the entire record, the Board finds:
1. Thiel College is a 4-year liberal arts, co-educa-
tional institution located in Greenville, Pennsylva-
nia. Since its inception in 1866, the College has
been affiliated with the Lutheran Church of Amer-
ica, hereinafter referred to as LCA. In 1971, the
LCA granted formal recognition to it as an LCA-
related college. This recognition was based on a
written covenant between the College and the
Western Pennsylvania-West Virginia Synod3 of the
LCA. The covenant sets out the mutual expecta-
tions and obligations of the two parties including,
inter alia, on the part of the College, (1) to strive
for the highest degree of excellence which its re-
sources allow; (2) to provide an "open forum for
the free exchange of thought, opinion, and belief';
(3) to provide opportunities for worship; (4) to re-
cruit Lutheran students; (5) to commit itself to un-
'All dates herein are in 1980, unless otherwise indicated.
'444 U.S. 672.
'This Synod, or aggregation of congregations, is composed of approxi-
mately 350 congregations in this geographic area.
261 NLRB No. 84
derstanding and resolving social problems; (6) to
act in consonance with the ethical standards of the
LCA; (7) to strive "for the goals of different races
on the faculty and among the students, opportun-
ties to discover the needs of the disadvantaged at
home and abroad, and the acquisition of those
learnings and skills necessary to act in ways which
enhance the quality of human life"; and (8) to make
its facilities available for church programs. The
covenant also specifies, inter alia, that the Synod
has the duties (1) to support the College "in its role
as an institution of free inquiry"; (2) to encourage
its youth to attend the school; and (3) to support it
financially.
The financial support contributed by the Synod
amounts to approximately $135,000 a year, in an
unrestricted grant, out of the Synod's $900,000
budget.4 In addition, the Synod sponsors periodic
fundraising drives, the next one to be held in 1983.
Past drives have raised $750,000 to $1 million for
the College. The Synod also contributes additional
unrestricted moneys, which amounted to $7,000 to
$8,000 in 1978. Finally, special restricted moneys
from individual congregations can equal $15,000 a
year, and faculty grants from the Synod can vary
from $1,500 to $10,000 yearly. 5
The constitution of Thiel College sets forth its
institutional purpose at article I, section 2. It is to
provide "Christian higher education, preparing
young men and women for service in the Church
and in the various professions and vocations." Fur-
ther, at article III, section 1, the constitution de-
fines the course of instruction as the customary 4-
year liberal arts program "including regular in-
struction in the Christian religion." At article I,
section 4, the constitution also delineates the struc-
ture of the College's governing body. It requires
that the 45-member board of trustees be composed
of 24 trustees who are selected by the Synod, of
whom 9 must be ministers, and 15 must be mem-
bers of congregations in the Synod. Of the remain-
ing 21 trustees, 15 are selected by the board of
trustees, and 6 by the College's Alumni Associ-
ation. Additional constitutional provisions state
that: (1) all College property is owned by the
Synod and no significant conveyance can be made
without its permission; (2) if the College should
cease to operate, its property would revert to the
Synod; (3) the president must be a Lutheran, al-
'The College's budget is approximately $6 million a year.
' Student tuition amounts to approximately 75 percent of the College's
operating budget. The students have access to Pennsylvania Higher Edu-
cation Funds and other government moneys to assist them in making
these payments. These funds constitute approximately 50 percent of the
total tuition payments.
580
THIEL COLLEGE
though he need not be a minister; 6 (4) the trustees
select all of the administrative officers; and (5) the
trustees must approve all nontenured faculty ap-
pointments and all grants of tenure.
According to the record testimony of Dr. John
Braughler, a Lutheran pastor, a Thiel College
trustee, and chairman of the religious life commit-
tee, the Synod, by controlling the board of trustees,
has the ultimate decisionmaking power on campus
lifestyle issues; e.g., the use of alcohol and the
nature of dormitory living. Further, Dr. Louis T.
Alman, a Lutheran minister and president of Thiel
College, testified that while the Synod may hold a
"veto power" over College policies, in the day-to-
day administration of the school he is free to exer-
cise his own judgment. In addition, Dr. Alman
noted that he makes an annual report to the Synod
on the College's activities.
With regard to other aspects of the College's op-
erations, the evidence reveals that applicants for
student or teaching positions need not be Luther-
ans. In fact, there are more enrolled students of the
Roman Catholic faith than of the Lutheran persua-
sion. Further, teachers are informed of the school's
affiliation with the LCA during the hiring process,
and are asked to support the Church's goals, but
are not required to sign an oath of support to the
Church's mission. There are no religion courses
which are required at the school. While there is a
weekly 50-minute program dealing with the appli-
cation of the Christian faith to total life experi-
ences, open to the entire College community, at-
tendance is voluntary.7 Out of the 1,000 students,
25 to 150 may attend a particular session. Further,
6 to 40 professors out of a total complement of 63
faculty members may attend, and 40 of the adminis-
trative personnel may be present. This is not a
worship service, but a discussion of issues from the
Christian perspective. Finally, there are religious
events scheduled during the week, such as chapel
and Bible study groups, which are attended by ap-
proximately 425 persons over the course of the
week.
The Petitioner seeks to represent only the full-
time teaching faculty employed at Thiel College at
its Greenville, Pennsylvania, campus. The Employ-
er contends that the Supreme Court's decision in
N. LR.B. v. Catholic Bishop of Chicago,' which held
' Only 4 individuals in the administration and faculty are ministers;
while it is unclear how many persons are in administration, only I of the
63 professors is a minister.
I The bylaws of Thiel College do, however, provide at art. Vl, sec. 4,
that "No faculty member shall engage in any outside undertaking, with
or without pay, which shall hinder . . . regular attendance at . . . the
religious services."
'440 U.S. 490 (1979).
that Congress never intended the Board to extend
the Act's coverage to church-operated schools,
precludes the Board from asserting jurisdiction
herein. It argues this on the ground that the perva-
sive role of the Synod in the life of the College re-
quires a finding that the College is church-operat-
ed, and therefore that assertion of jurisdiction by
the Board would be contrary to the will of Con-
gress and violative of the first amendment.
At issue in Catholic Bishop was whether the
Board properly asserted jurisdiction over two
church-operated secondary schools. After examin-
ing the National Labor Relations Act and its legis-
lative history, the Court held that "Congress did
not contemplate that the Board would require
church-operated schools to grant recognition to
unions as bargaining agents for their teachers,""
and therefore concluded that the Board lacked ju-
risdiction over the schools in question.
The Supreme Court had stated previously in
Tilton v. Richardson,'° that "[t]here are generally
significant differences between the religious aspects
of church-related institutions of higher learning and
parochial elementary and secondary schools," in
deciding that the Higher Education Facilities Act
of 1963 did not foster an excessive government en-
tanglement with religion. The Court pointed out
that, contrary to the situation in parochial schools,
religious indoctrination is not the purpose of a col-
lege education. Thus, the Court stated that "[s]ince
religious indoctrination is not a substantial purpose
or activity of these church-related colleges and uni-
versities, there is less likelihood than in primary
and secondary schools that religion will permeate
the area of secular education."" Indeed, in Catholic
Bishop itself, the Court, quoting from Lemon v.
Kurtzman, 403 U.S. 602, 616 (1971), emphasized
that secondary parochial schools "involve substan-
tial religious activity and purpose," and, quoting
Mr. Justice Douglas' concurring opinion in Lemon,
noted that "the admitted and obvious fact that the
raison d'etre of parochial schools is the propagation
of a religious faith." Id at 628.
Accordingly, the Board in Barber-Scotia College,
Inc.,'2 specifically interpreted the holding in Catho-
lic Bishop as applying only to parochial elementary
and secondary schools. In that case, the Board con-
cluded that although Barber-Scotia, a 4-year liberal
arts school, had a relationship with the United
Presbyterian Church, it was "primarily concerned
'Id at 506.
'"403 U.S. 672, 685 (1971).
" Id. at 687.
" 245 NLRB 406 (1979).
581
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with providing a secular education, rather than
with inculcating particular religious values."'3
Barber-Scotia directly controls this case. Without
question, Thiel College is associated with the Luth-
eran Church, as evidenced generally by the cov-
enant between Thiel and the Synod, and specifical-
ly by its ownership of the College's property, its
power to appoint most of Thiel's trustees, and its
financial support of the institution. Just as clearly,
however, the purpose of the school is primarily
secular. The covenant provides that the Synod's
expectations of the College are, among other
things, that it attain the highest degree of academic
excellence, that it be an open forum for the free ex-
change of ideas, that it commit itself to understand-
ing and resolving social problems, and that it assist
its students to act in ways which enhance the qual-
ity of human life. Also, the constitution of the Col-
lege provides that its purpose is to train young
people in the various vocations and professions,
and that it offers as a course of studies a 4-year lib-
eral arts program. Further, the Synod contributes
only a small percentage of the College's budget.
There is no requirement that students take religious
courses or engage in worship. In addition, neither
students nor teachers need be Lutheran, and the
teachers do not have to commit themselves in writ-
ing to support the Church's mission.' 4 Finally, the
day-to-day administration of the college is not in-
terfered with by the Church's representatives.
Therefore, we conclude that Thiel is a liberal arts
college mainly concerned with providing a secular
education for students of all religious backgrounds
and that we are not precluded from taking jurisdic-
tion herein.
The gross annual revenue of the College exceeds
$1 million. At least $50,000 of that amount is re-
ceived from outside the Commonwealth of Penn-
sylvania. Accordingly, we find that the Employer
is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that it will ef-
fectuate the purposes of the Act to assert jurisdic-
tion over Thiel College.
2. The labor organization involved claims to rep-
resent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employ-
er within the meaning of Sections 9(c)(1) and 2(6)
and (7) of the Act.
4. The Petitioner seeks to represent a unit con-
sisting of all full-time teaching faculty, excluding
all other employees, administrators, adjunct (part-
time) faculty, guards, and supervisors. The Em-
1" Id. at 407. The Board reached a similar conclusion in College of
Notrte Dme, 245 NLRB 386 (1979).
" As previously noted, there are more Roman Catholic than Lutheran
students at Thiel.
ployer contends that the recent Supreme Court de-
cision in Yeshiva University, supra, specifically ex-
cludes such faculty members from the coverage of
the Act on the basis that they are managerial em-
ployees. It therefore argues that the petition must
be dismissed. In the alternative, the Employer sub-
mits that departmental chairmen and members of
the executive committee of the faculty council
should be excluded from the unit because these po-
sitions are managerial and/or supervisory. Finally,
the Employer contends that adjunct faculty mem-
bers with 3 or more years of continuous service
should be included in the unit.
Article II,B, of the faculty's constitution pro-
vides that:
The Faculty fills the dual and traditional roles
of a legislative body and a participant in the
decision-making processes of the College. Its
authority in these roles is derived from powers
delegated to it by the Board of Trustees.
1. LEGISLATIVE
With the approval of the Board of Trustees,
the Faculty shall
(a) enact rules for its own organization and
procedure,
(b) define the educational philosophy of the
College,
(c) establish the academic requirements for
admission to and retention in the College as
well as for all academic degree programs,
(d) establish and interpret the academic poli-
cies of the College,
(e) certify to the Board of Trustees, for ap-
proval for graduation, those students who
have completed the prescribed course of
study,
(f) share with the administration and the stu-
dent body in the definition, interpretation, and
implementation ofpolicies concerning student
conduct and life styles.
2. ROLE IN DECISION-MAKING
With the approval of the Board of Trustees,
the Faculty shall
(a) participate in the definition of policy
concerning its professional status,
(b) participate with the Administration and
Board of Trustees in the selection of the Presi-
dent of the College, Academic Dean, and Col-
lege Pastor, and
(c) participate with the Administration and
Board of Trustees on matters dealing with
long-range educational, financial, and econom-
ic planning and the growth of the institution.
582
THIEL COLLEGE
The College is divided into 18 academic depart-
ments. Each department has a chairman who is
elected by its members for a 3-year term. The se-
lection of the chairman is subject to confirmation
and approval by the academic dean and vice presi-
dent for academic services, Dr. Omro Todd.' s In
addition to selecting a chairman, each department
chooses a representative to the faculty council. The
faculty council elects five members to the faculty
council executive committee. The council and the
executive committee operate as 2 of 19 standing
committees of the faculty to carry out its responsi-
bilities. According to the faculty constitution and
the faculty bylaws, these committees have been set
up for a variety of purposes, including acting as ad-
visory bodies to the College's administrators and
representing the "voice of the Faculty" in College
operations. All of the committees are composed
primarily of elected faculty representatives.' 6
The specific authority of the faculty concerning
curriculum, course schedules and teaching loads,
grading system and policies, admission and matric-
ulation standards, degree and graduation require-
ments, budgetary matters, salary issues and griev-
ance adjustment, and hiring, tenure, sabbaticals, ter-
minations, and promotions is described below.
A. Curriculum
The faculty formulates the College's curriculum.
The faculty constitution empowers it to "define the
educational philosophy of this College," and to
"establish and interpret the academic policies of the
College." The faculty bylaws provide that "the
Faculty shall have full responsibility for the design
and implementation of the academic program of
the College." It fulfills this duty through depart-
mental decisionmaking which results in a recom-
mendation regarding course offerings by the de-
partment's chairman to the faculty's curriculum
study committee. 17 This committee undertakes a
continuing review of all matters relating to curricu-
lum and then makes recommendations to the facul-
ty.' 8 Ultimate approval of all additions or deletions
t" Uncontradicted testimony in the record indicates that, in his 7 years
in this position, Dr. Todd has never rejected a department's choice for
chairman.
" There is a faculty nominations committee which is responsible for
preparing lists of nominees for vacancies on all standing committees. In
addition the president and the academic dean of the college are ex officio
members of all faculty committees when not specifically designated as
voting members of those committees
" Each department also controls the subject matter of what is taught
in each course.
" Designated administrative membership on this committee is limited
to the academic dean and an elected professional librrian. In addition to
this committee, the interim term and spcal program committees of the
faculty are involved in planning the College's curriculum. The interim
term committee whose designated membership includes the academic
dean, schedules the course offerings available for the I-month session be-
tween the fall and spring terms, in cooperation with the academic dean,
of courses rest with the faculty through the faculty
council.
B. Course Schedules and Teaching Loads
Not only does the Thiel College faculty deter-
mine which courses will be offered, but it is also
intimately involved in the technical aspects of set-
ting up the course schedules and equitably dividing
the teaching load. That is, it overses the "imple-
mentation" of the curriculum. Each chairman as-
signs classes, balances the size of classes, and co-
ordinates the work among department members.
The chairman's duties also include maintaining
records of departmental faculty annual teaching
loads. While Dr. Todd testified that it is the de-
partment chairman who determines who will teach
which courses, Dr. John Nichols, head of the
mathematics department, stated that, at least in his
division, the class assignments are decided upon
jointly with the faculty members.
C. Grading System and Policies
The bylaws provide that the faculty council su-
pervises the overall academic performance of the
College, including monitoring and analyzing stu-
dent grade levels. There is also an academic stand-
ing committee, whose functions involve assisting
the academic dean in maintaining the College's
high standards of performance, examining the
records of all probationary students to determine
their continuing status at the College, and making
recommendations to the academic dean or faculty
regarding matters related to academic standards. 9
Further, the faculty constitution expressly states
that it is the faculty's legislative duty to establish
the requirements for retention in the College.
D. Admission and Marticulation Standards
Under the faculty constitution, the faculty estab-
lishes academic requirements for admission to the
College. In addition, the bylaws provide that the
faculty, through its academic standing committee,
review all requests for readmission.
E. Degree and Graduation Requirements
The constitution and the record also reveal that
it is the faculty which determines the requirements
for obtaining all academic degrees and which certi-
fies to the board of trustees, for its approval, those
the curriculum committee, faculty, and students, with the approval of the
faculty council. The special program committee, on the other hand, in-
vestigates new courses of studies not within the jurisdiction of other com-
mittees.
" The designated administrators on this committee include the aca-
demic dean, the assistant director of institutional data (records), the dean
of students, and the director of advising and counseling.
583
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
students who are eligible for graduation. The
bylaws also provide that the faculty executive com-
mittee is to consider student petition for exceptions
to the College's academic requirements.
F. Budgetary Matters
The evidence indicates that the faculty is in-
volved in the finances of the College from the de-
partmental to the institutional level. It is the re-
sponsibility of the department chairmen, with the
assistance of other members in their respective sec-
tions, to prepare the annual departmental requisi-
tion for appropriations, and the request for library
purchases. Further, the chairmen make recommen-
dations to the academic dean regarding such per-
sonnel actions as salary increases, promotions, dis-
missals, and the need for adjunct professors, which
affect the overall financial picture of the College.
Indeed, the academic dean's preparation of the
annual academic budget is not undertaken until the
chairmen's recommendations in the various above-
mentioned areas are transmitted to him. 20
The faculty also concerns itself with the financial
matters of the College on the institutional level. It
is, in fact, directed to do so by its constitution. The
faculty is to participate with the administration and
the board of trustees on matters dealing with the
long-range financial and economic planning and the
growth of the College. Further, the faculty's
bylaws state that the institutional planning commit-
tee21 is involved in planning for the nonacademic
future of the College. Moreover, the description of
the functions of the faculty's committee on faculty
salaries and fringe benefits sets out that at least one
member of that committee "shall be present at all
meetings when decisions are made regarding salary
schedules, fee structure, budget and such other
matters which would impact, overall, the financial
status of the College." Further, "[M]embers of the
committee shall be a party to any communications
on matters of . . . finance and budget between
board members and/or administrative person-
nel ... ."
G. Salary Issues and Grievance Adjustment
The faculty salaries and fringe benefits commit-
tee each year reviews the current salary and bene-
fits schedules, and further makes recommendations
regarding these items to the faculty. If approved,
'0 Dr. Nichols, the mathematics department chairman, testified that,
while his budget requests could be denied by an administrative officer,
his department has always received its requested funds. The administra-
tion has asked on occasion, however, that the department make certain
cuts in its budget in view of the College's intermittent financial problems.
This has been done where possible.
" This committee's membership also includes a member of the board of
trustees, a member of the administrative cabinet, and an alumnus.
these proposals are then transmitted to the Col-
lege's administrators and ultimately to the board of
trustees for action. The executive committee also is
involved in salary issues in the event of an individ-
ual appeal from a salary determination. It is then
the committee's responsibility to make a recom-
mendation regarding this appeal to the academic
dean and president. 22
As to grievances, in addition to the salary ap-
peals just mentioned, the faculty's bylaws set forth
a procedure to be followed if a problem involving
a member of the teaching staff or the student body
arises. Specifically, the process calls for a step-by-
step approach to reach a satisfactory resolution of
the grievance. With regard to faculty protests,
these steps are to deal with the offending party di-
rectly, then to take the issue to the department
chairman involved, then to the academic dean
and/or the faculty council, then to appeal to the
president of the college, and finally to the board of
trustees. The approach with regard to student
grievances is identical with the exception of the
participation of the faculty council executive com-
mittee, instead of the council as a whole, if the aca-
demic dean cannot resolve the problem.
H. Decisions Regarding Hiring, Tenure,
Sabbaticals, Terminations, and Promotions
A review of the faculty's constitution, its bylaws,
and the record clearly shows that the faculty par-
ticipates substantially in the personnel decisions in-
volving its members. In delineating the faculty's
role in the decisionmaking processes of the Col-
lege, the constitution specifically states that the fac-
ulty shall "participate in the definition of policy
concerning its professional status."2 3 The bylaws
further explain the nature of this participation. The
department chairmen are responsible for interview-
ing candidates and, after consulting with their dis-
cipline's professors, for making the appropriate rec-
ommendations to the academic dean. The chairmen
also make recommendations to the dean regarding
salary increases, promotions, continuation of a
teacher on the staff, dismissal, and tenure. The ex-
ecutive committee must also review the eligibility
of individual faculty members for promotions, con-
tract renewals, tenure, sabbaticals or leaves of ab-
sence, or continuation after retirement age has been
reached, and must make the proper recommenda-
tions to the academic dean. The dean is precluded
" Record testimony by Dr. Nichols indicates that department chair-
men may indirectly affect levels of pay. He stated that, if an outstanding
evaluation is given to a teacher, such a recommendation may result in a
higher level of remuneration for that individual.
" The teachers are also directed to participate in the selection process
for hiring the president of the College, the academic dean, and the col-
lege pastor.
584
THIEL COLLEGE
from taking action in any of the above-mentioned
areas until he receives the recommendations of the
department chairmen and/or the executive commit-
tee. Moreover, the bylaws list the basic guidelines
for employment, general and specific criteria for
promotion and tenure, the procedures for evalua-
tion, and even sample evaluation forms from the
students, fellow faculty members, department
chairmen, and administrators. Further, the faculty
council monitors the student evaluations of the fac-
ulty, and all of the data accumulated by the above
evaluations is considered by the executive commit-
tee in its decisionmaking procedures. 24
The record testimony also establishes the effec-
tive nature of faculty recommendations concerning
promotions, tenure, sabbaticals, and hiring and
firing. In Dr. Todd's 7 years as academic dean
there have been 20 promotions, and Dr. Todd con-
curred in all but I of the executive committee's
recommendations. Further, the evidence shows
that Dr. Todd has followed all of the committee's
recommendations on tenure.' The chairmen and
the department members advertise vacancies, inter-
view applicants, and then decide who will fill each
slot. After consultation with Dr. Todd, this recom-
mendation is then made in writing to him. Accord-
ing to Dr. Todd, such a recommendation to hire or
not to hire is always followed. Further, while Dr.
Nichols indicated that his recommendation in this
regard could be reversed, he also stated that during
his tenure as mathematics department chairman his
three positive recommendations resulted in job
offers to the applicants involved. As to firing, the
procedure begins either with a termination recom-
mendation from the department chairman, if a fac-
ulty member is involved, or with such a suggestion
from the faculty, if the chairman is the subject of
the complaint. Dr. Todd testified, without contra-
diction, that with regard to the former the result
has always been termination. The evidence shows
that on at least one occasion a department faculty's
negative recommendation as to its chairman also
ended with his dismissal.
As stated previously, in Yeshiva University the
Supreme Court decided that the employer's full-
time faculty members were managerial employees
who were not covered under the Act. The Court
found that the faculty at each of the university's
schools effectively determined its curriculum, grad-
ing system, admission and matriculation standards,
" As budgetary considerations must, of necessity, be involved in per-
sonnel decisions regarding the faculty, the faculty salaries and fringe
benefits committee, whose duties are set forth more fully in sec. G, supra,
is at least tangentially involved in the determinations in this area as well.
" There is no evidence of the track record regarding sabbaticals. How-
ever, Dr. Todd did indicate that he reviews recommendations regarding
such leaves of absence in the same manner that he does those concerning
promotion and tenure.
academic calendars, and course schedules, and that
its authority extended beyond "strictly academic
concerns."2 6 Thus, the Court found that Yeshiva
University's teaching staffs made recommendations
in every case of faculty hiring, tenure, sabbatical,
termination, and promotion and that the "over-
whelming majority" 27 of such recommendations
were followed by the administration. In addition,
the Court found some faculties made "final deci-
sions" regarding the "admission, expulsion, and
graduation of individual students," and that others
decided "questions involving teaching loads, stu-
dent absence policies, tuition and enrollment levels,
and in one case the location of a school."2 8
The Court noted that, under the definition of
N.L.R.B. v. Textron, Inc., Bell Aerospace Co. Div.,2 9
managerial employees are those who "formulate
and effectuate management policies by expressing
and making operative the decisions of their em-
ployer."3 0 The Court stated that, in a school like
Yeshiva University, the faculty's professional inter-
est "cannot be separated from those of the institu-
tion," and that the teachers exercised authority
"which in any other context unquestionably would
be managerial." 31 In particular,
Their authority in academic matters is abso-
lute. They decide what courses will be offered,
when they will be scheduled, and to whom
they will be taught. They debate and deter-
mine teaching methods, grading policies, and
matriculation standards. They effectively
decide which students will be admitted, re-
tained, and graduated. On occasion their views
have determined the size of the student body,
the tuition to be charged, and the location of a
school. When one considers the function of a
university, it is difficult to imagine decisions
more managerial than these. To the extent the
industrial analogy applies, the faculty deter-
mines within each school the product to be
produced, the terms upon which it will be of-
fered, and the customers who will be served.3 2
Although the Court concluded that the analogy be-
tween the university and industrial setting could
not be complete, it further stated that "[ilt is clear
444 U.S. at 677.
I7 Id.
Id
"416 U.S. 267 (1974).
Id. at 288.
" 444 U.S. at 686.
" Id. In fn. 23 of its decision, the Court stated that the record revealed
the "predominant role" played by the faculty in decisions regarding
hiring, tenure, sabbaticals, termination, and promotion. The Court further
asserted that, in view of the supervisory as well as mangerial characteris-
tics of such personnel determinations, it need not rely primarily on these
factors, because it did not reach the issue of supervisory status.
585
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Yeshiva and like universities must rely on their
faculties to participate in the making and imple-
mentation of their policies." 3 3
We conclude that the Thiel College faculty
makes decisions and effective recommendations in
the overwhelming majority of critical areas relied
upon by the Supreme Court in Yeshiva University.3 '
The faculty constitution and the faculty bylaws au-
thorize the professors to play this role, and the
record establishes that, through the faculty council,
the faculty executive committee, and other faculty
committees, such power is actually exercised.
Like the teachers in Yeshiva University, the fac-
ulty herein controls the College's curriculum; each
department makes recommendations regarding
course offerings (and course content) which are re-
viewed by the faculty curriculum study committee,
and which are ultimately approved or disapproved
by the faculty through the faculty council. It also
implements the curriculum in setting up course
schedules and dividing the teaching load among
the various departments' professors. Through the
faculty council and its academic standing commit-
" 444 U.S. at 689. The Court also limited its holding by stating that
the managerial exclusion would only apply to those professional employ-
ees whose activities "fall outside the scope of duties routinely performed
by similarly situated professionals." Id. at 690. Therefore, those teachers
who only "determine the content of their own courses, evaluate their
own students, and supervise their own research" would be within the
Act's protection. 444 U.S. at 690-691, fn. 31.
", There is no specific evidence concerning whether the Thiel College
teachers are involved in decisions regarding academic calendars, student
absence policies, enrollment levels, tuition, and the location of a school.
However, art. II,B, of the faculty constitution, set forth in full supra,
would appear to empower the faculty to make decisions in these areas. In
addition, the Court clearly indicated that the faculties of only some of the
10 schools of Yeshiva covered by the petition effectively determined
questions in these areas. 444 U.S. at 677. Last, we do not regard faculty
involvement or lack of involvement in these areas as vitally significant.
tee it supervises the overall academic performance
of the College, including grade levels and academic
standards. The faculty also determines who will be
admitted and readmitted to the College; it estab-
lishes the academic requirements for obtaining de-
grees; and it certifies to the board of trustees, for
its approval, those students eligible for graduation.
In addition, each department prepares its own
annual budget, which apparently is normally ac-
cepted by the College. The faculty is also involved
in long-range financial and economic planning for
the College. The faculty participates in setting its
own salary and benefit levels, and adjusts faculty
and student grievances. Finally, the Thiel College's
faculty makes effective decisions on hiring, tenure,
sabbaticals, terminations, and promotions.
Although, as in Yeshiva, ultimate authority is
vested in the board of trustees, we conclude that
the faculty of Thiel College, like that of Yeshiva
University, does not have professional interests sep-
arate from those of its employer, and that it neces-
sarily plays a large role in operating the College.
Thiel College, like Yeshiva University, "requires
faculty participation in governance because profes-
sional expertise is indispensable to the formulation
and implementation of academic policy," and
therefore must depend upon its teaching staff "to
participate in the making and implementation" of
its policies.3 5
We shall therefore dismiss the petition.
ORDER
It is hereby ordered that the petition herein be,
and it hereby is, dismissed.
" 444 U.S. at 689.
586