University of Detroit

National Labor Relations Board - Board Decisions

Oct 6, 1971

193 N.L.R.B. 566 (N.L.R.B. 1971)

566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
University of Detroit and The University of Detroit
Chapter-American Association of University Pro-
fessors, Petitioner . Case 7-RC-10492
October 6, 1971
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, hearings
were held before Hearing Officers Theodore C.
Niforos and William C. Schaub, Jr., of the National
Labor Relations Board. Following the hearings,
pursuant to Section 102.67 of National Labor Rela-
tions Board Rules and Regulations and Statements of
Procedure, Series 8, as amended, this case was
transferred to the Board for decision. Thereafter, the
Petitioner and the Employer filed supplementary
briefs; the Employer also filed a copy of its brief to the
Regional Director.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connection
with this case to a three-member panel.
The Board has reviewed the Hearing Officers'
rulings made at the hearings and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The Petitioner seeks to represent a unit limited
to full-time faculty members at the University of
Detroit. The University contends that the unit should
include part-time faculty. The parties further disagree
as to the supervisory status of department chairmen:
the Petitioner would exclude, and the University
include, them.'
The University, a private, nonprofit institution of
higher education offering undergraduate, graduate,
and professional curricula at several Detroit, Michi-
gan, locations, currently employs approximately 330
full-time and 230 part-time faculty members.
The parties stipulated, and we find, that full-time
' The Petitioner indicated that it is willing to participate in an election
in a larger unit which would include department chairmen and part-time
faculty members
The parties stipulated that deans, assistant deans, and nonacademic
faculty members are professional employees within
the meaning of Section 2(12) of the Act and are
therefore entitled to all the benefits of collective
bargaining if they so desire.2
Part-time faculty members: Full-time faculty mem-
bers at the University are expected to teach approxi-
mately 12 hours per week. In most of the University's
schools each full-time faculty member teaches about
four 3-credit-hour courses per semester. In the School
of Law, however, where 2-credit-hour courses predo-
minate, each full-time faculty member is expected to
teach four courses or approximately 8 hours per week.
The School of Dentistry is organized on a clock hours
per semester basis and full-time dental school faculty
members are expected to be at the school 64 days per
semester. The University offers courses during two
16-week semesters; it also has a summer session of 16
weeks.
The Evening College of Business and Administra-
tion employed about 42 part-time and 2 full-time
faculty members during the 1970-71 academic year.
Most of that school's part-time instructors taught at
least 3 hours per week each semester; a few taught a 3-
credit-hour course for only one semester. All are
scheduled to teach at least 3 hours per week during the
fall 1971 semester.
In the College of Arts and Sciences 12 of 19 part-
time faculty members taught at least 3 hours per
semester during 1970-71; 6 taught 3-credit-hour
courses for only one semester and the remaining part-
time faculty members taught a 2-credit-hour course
one semester. During the 1971-72 school year, 17 of
23 part-time faculty members in that school are
scheduled to teach at least one 3-credit-hour course
per term; the other instructors will teach only one 3-
credit-hour course during the year.
In the School of Architecture, the five part-time
instructors each taught at least 3 hours per week
during the past year and they are scheduled to do
likewise during the coming school year.
The College of Engineering employed three part-
time faculty members during 1970-71 all but one of
whom taught 3 hours a week per semester; the same
pattern exists for 1971-72.
In the Day College of Business and Administration
the two part-time instructors are each scheduled to
teach 3 hours per term during 1971-72 although one
taught only a 3-credit-hour course for one semester
last year.
The School of Law's 10 part-time faculty members
taught between 2 and 8 hours per week during the
deans are supervisors within the meaning of Section 2(11) of the Act and
are thus to be excluded from the unit
2 C W Post Center of Long Island University, 189 NLRB No 109,
Fordham University, 193 NLRB No 23.
193 NLRB No. 95
UNIVERSITY OF DETROIT
1970-71 academic year; the same course schedule
exists for 1971-72.
The School of Dentistry employs the largest number
of part-time faculty members. Most of them are
practicing dentists who work between 1 and 3 days
per week in the school's dental clinic overseeing 3d
and 4th year dental students as they perform various
procedures on patients. About 100 of the dental
school part-time employees taught at least 32 days
during the year; the remaining 60 or so part-timers
worked 16 days or less during the 160-day school year.
Some of the part-time instructors meet laboratory or
lecture classes; full-time professors teach the basic
science courses and are at the school 4 days per week
or 128 days per year or more.
Part-time faculty members are involved in curricu-
lum planning where appropriate and, in certain
instances , represent their schools in the university
senate. Most university fringe benefits are not
available to part-time faculty members; viz, life
insurance, health insurance, retirement benefits,
travel allowances, reduced tuition, etc. Tenure can
never be attained by part-time faculty members and,
if student demand for a course diminishes, the
involved part-time instructor may be released. De-
spite this apparent lack of job security, most part-time
faculty members have taught at the University for
several years. Part-time and full-time faculty mem-
bers have the same educational background and in
the classroom engage in exactly the same
activity-teaching.
The Petitioner contends that a unit of full-time and
part-time faculty members is inappropriate because
only full-time faculty members are involved in the
formation and implementation of department, school,
and university policies and, moreover, the University
treats the two employee groups differently. The
Petitioner further argues that if the Board finds
appropriate a unit of full-time and part-time faculty
members, the Board should determine who is eligible
to vote as a regular part-time employee. The Petition-
er suggests the following test for making such a
determination: only those currently employed part-
time faculty members who teach more than 3 credit
hours a semester or, in the dental school, more than 1
day a week, and who have taught in at least one
semester in each of the immediately preceding 2
academic years, exclusive of the summer session,
should be eligible to vote as a regular part-time
employee.
The University asserts that a unit of full-time and
regular part-time faculty members is appropriate. It
contends that the Board's recent decision in University
J The parties stipulated that approximately 47 supervisory adjunct
professors in the psychology department who are experts tending to the
student's personal needs are casual employees and not to be included in
567
of New Haven, Inc., 190 NLRB No. 102, is controlling.
The University does not propose a test for determin-
ing which of the part -time faculty members should be
eligible to vote.
In New Haven, the adjunct (part-time) faculty
members taught 3 hours a week or more as compared
to a 12-hour per week schedule for full-time faculty.
The part-time faculty members were ineligible for
tenure and fringe benefits; their average length of
service was 6 years; and they participated in delibera-
tions of the school 's board of governors . The Board
there applied the well -established principles concern-
ing the unit placement of part-time employees with
full-time personnel and included those part-time
faculty members in the same unit with the full-time
faculty.
The instant case in most relevant aspects is
identical . We do not find merit in the Petitioner's
contention that a different result is warranted here.
We find, therefore , from all the circumstances, that
the University part-time faculty members are part-
time professional employees having a substantial
community of interest with full -time faculty members
and we shall include them in the unit.3
However, we agree with the Petitioner that the
circumstances herein require that the Board develop a
test for this case to insure that only those part-tune
faculty members having a substantial and continuing
interest in the wages , hours, and working conditions
of unit employees be eligible to vote.4 In New Haven,
the Board concluded that part-time faculty members
teaching 3 hours or more per week during the
semester were regular part-time employees having a
community of interest with full-time faculty members
teaching 12 hours per week . We find no merit in the
Petitioner ' s contention that a different standard
should be applied here.
Accordingly, we find that part -time faculty mem-
bers teaching 3 hours or more per semester in all
university schools except the Schools of Law and
Dentistry are regular part-time employees eligible to
vote in the election . In the School of Law, where the
full-time faculty teaches approximately four 2 -credit-
hour courses per term, we shall apply the same 4-to-1
full-time-to -part-time-hours-taught -ratio as in New
Haven. Accordingly, we find that in the School of Law
all part-time faculty members teaching 2 hours per
week a semester or more are eligible regular part-time
employees . Likewise , while the School of Dentistry is
organized on a days-worked -per-year basis, the same
test may be applied since full -time dental school
faculty members are expected to work at least 128
days per school year. Accordingly, we find that in the
the unit
4 Quality Markets, Inc, 160 NLRB 44, Farmers Insurance Group, 143
NLRB 240
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
School of Dentistry all part -time faculty members
working 32 days or more per school year are regular
part-time employees eligible to vote.
Department chairmen : The department chairman is
appointed to a maximum 4-year term by the dean of
his school with the approval of the vice president and
dean of faculties . The chairman receives a reduced
course load but does not ordinarily receive additional
compensation unless he renders outstanding service.
Since the chairman need not be the department's
ranking professor , he often is paid less than other
members of his department . Unlike deans and
administrators who sign "administrative" contracts
with the University , the chairman retains his "faculty"
agreement upon being appointed.
Chairmen occupy faculty seats and represent their
departments in the university senate , the highest
advisory body to the university president , which is
composed of faculty , students , and administrators.
The chairman , through the dean ' s office, requests
authority from the vice president to employ addition-
al faculty members for his department . The depart-
ment faculty members, the chairman , and the dean
each separately reviews prospective candidates. The
department's recommendation 5 is reviewed by the
vice president and if he concurs a faculty agreement is
executed by his office . While the new hire's actual
salary is determined by the vice president , within a
range the vice president has established, the chairman
can discuss remuneration with the prospective faculty
member prior to his being hired.
When a department member is due for tenure or
promotion , the chairman and faculty usually make
separate recommendations to the dean although in
some departments point recommendations are made.
The dean adds his comments and all three recommen-
dations are transmitted via the vice president's office
to the university senate committee on rank and
tenure. That committee , which is composed of faculty
members and administrators , the latter holding ex
officio positions , votes whether to grant tenure or a
promotion . The vice president votes, too, even though
he holds an ex officio seat on the committee.
If a department chairman discovers that a faculty
member is not performing satisfactorily , the chairman
reports this to the dean without making a formal
recommendation but usually after consulting the
faculty. The chairman and dean discuss the problem.
A nontenured faculty member may be terminated for
any reason merely by not having his contract
renewed; it is not clear from the record who makes
this decision . A formal proceeding involving the
university president and various universitywide coun-
5 The record is unclear whether the department makes a recommenda-
tion jointly with the chairman or each makes separate recommendations
6 Cf Fordham University, supra, In 3 For the reasons stated in Member
cils is required to dismiss a tenured faculty member.
The chairman plays no decisive role in that procedure.
A department chairman is responsible for the
academic excellence of his department and the
professional competence of the faculty. While the
chairman may assign courses (in some departments
this function is performed by a committee), he does
not otherwise direct the classroom work of faculty
members unless it is necessary to maintain the
department's academic standards. The scheduling of
courses is the chairman's responsibility although he
does not do the actual work. The chairman evaluates
the work of department clerical employees but the
University sets their hours.
The University contends that the department
chairman is a faculty member lacking any indicia of
statutory supervisory authority. The Petitioner con-
tends that the chairman is a supervisor.
It is clear that the department chairman does not
effectively recommend the appointment, promotion,
tenure, or discharge of faculty members. In every such
instance the chairman's recommendation, if any, is
just one of several made to the appropriate university
official or body which has the authority to make a
binding decision for the University. The record does
not reveal whether the chairman's recommendations
are accorded greater weight than those of the faculty
or dean. The chairman may assign courses, but he
does not ordinarily direct the classroom work of
faculty members.
Moreover, the University apparently regards the
chairman as a faculty member, not an administrator.
Thus, he does not sign an administrative agreement
upon being appointed; he represents the faculty at
university senate meetings; he usually receives no
additional compensation for being chairman; and the
chairman teaches courses albeit fewer than his fellow
faculty members.
Accordingly, we find from the above that depart-
ment chairmen are not supervisors within the mean-
ing of Section 2(11) of the Act and we shall include
them in the unit.6
For the reasons stated above, we find that the
following constitutes a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All full-time and regular part-time members of
the faculty at the University of Detroit, including
department chairmen, but excluding deans, assist-
ant deans, nonacademic deans, supervisory ad-
junct professors in the psychology department,
guards and supervisors as defined in the Act, and
all other employees.
Kennedy's dissent in Fordham University, he would find that department
chairmen are supervisors within the meaning of the Act
UNIVERSITY
[Direction of Election 7 x omitted from publication.]
I As the Petitioner 's original showing of interest was for a unit smaller
than the unit in which an election is being directed , the Direction of
Election is subject to an administrative determination by the Regional
Director for Region 7 of the Petitioner ' s interest in the unit found
appropriate herein
" In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, N L R B v Wyman - Gordon Co, 394 U S
OF DETROIT 569
759 Accordingly , it is hereby directed that an election eligibility list,
containing the names and addresses of all the eligible voters , must be filed
by the Employer with the Regional Director for Region 7 within 7 days of
the date of this Decision and Direction of Election The Regional Director
shall make the list available to all parties to the election No extension of
time to file this list shall be granted by the Regional Director except in
extraordinary circumstances Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper objections are
filed