University of Great Falls

National Labor Relations Board - Board Decisions

Nov 8, 1997

325 N.L.R.B. 83 (N.L.R.B. 1997)

83
325 NLRB No. 3
UNIVERSITY OF GREAT FALLS
1 42 U.S.C. § 2000(bb).
2 The Board also granted review with respect to whether asserting
jurisdiction violated the Religious Freedom Restoration Act. Subse-
quently, however, in City of Boerne v. Flores, 117 S.Ct. 2157 (June
25, 1997), the Supreme Court concluded that RFRA was unconstitu-
tional as it contradicted principles necessary to maintain the separa-
tion of powers and exceeded Congress’ enforcement powers granted
to it by Section Five of the Fourteenth Amendment. Consequently,
we find that the issue of whether the Board’s assertion of jurisdic-
tion over the Employer violates RFRA is moot.
3 The Association of Southern Baptist Colleges and Universities
filed an amicus curiae brief in support of the Employer, and Loma
Linda University, Loma Linda University Medical Center, Pacific
Union Conference of Seventh-Day Adventists, and Adventist health
also filed an amicus curiae brief on behalf of the Employer.
4 263 NLRB 1248 (1982).
5 298 NLRB 280 (1990).
6 See also Loretto Heights College, 264 NLRB 1107 (1982), enfd.
742 F.2d 1245 (10th Cir. 1984).
7 309 NLRB 842 (1992).
8 Although not relied upon by the Employer, we also find Lewis
& Clark College, 300 NLRB 155 (1990), to be distinguishable.
There, the Board found that faculty effectively controlled academic
matters, as nearly all its recommendations were routinely approved,
and some academic matters were approved without making rec-
ommendations to higher management. Faculty made academic deci-
sions or effective recommendations in the following academic areas:
teaching methods, grades, retention standards, scholastic standards,
matriculation standards, admission standards, curriculum and course
content, degree and degree requirement, teaching assignments, grad-
uation requirements, academic calendars, departments of instruction,
honors programs, scholarship, and financial aid. For example, the
faculty approved a new core curriculum, approved new minors, and
Continued
University of Great Falls and Montana Federation
of Teachers, AFT, AFL–CIO, Petitioner. Case
19–RC–13114
November 8, 1997
DECISION ON REVIEW AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On February 20, 1996, the Regional Director for Re-
gion 19 issued a Decision and Direction of Election in
which he concluded that asserting jurisdiction over the
Employer was warranted under NLRB v. Catholic
Bishop of Chicago, 440 U.S. 490 (1979); that asserting
jurisdiction would not violate the Religious Freedom
Restoration Act (RFRA);1 and that the University’s
faculty members were not managerial employees as de-
fined in NLRB v. Yeshiva University, 444 U.S. 672
(1980). Thereafter, in accordance with Section 102.67
of the National Labor Relations Board’s Rules and
Regulations, the Employer filed a timely request for
review of the Regional Director’s Decision and Direc-
tion of Election. By Order dated April 2, 1996, the
Board denied review of the Regional Director’s con-
clusion that asserting jurisdiction was warranted under
Catholic Bishop but granted review with respect to the
managerial status of the faculty.2
Having carefully considered the entire matter, in-
cluding the briefs on review,3 the Board, for the rea-
sons set forth in the Regional Director’s Decision (rel-
evant portions of which are attached as an appendix)
has decided to affirm the Regional Director’s conclu-
sion that the faculty members are not managerial em-
ployees as defined in Yeshiva and instead are employ-
ees subject to the Act. In affirming the Regional Direc-
tor, the Board notes that the facts in the instant case
are similar to those in Florida Memorial College,4 and
St. Thomas University,5 in which the Board found that
the faculty members were not managerial employees.
In Florida Memorial College, the curriculum was not
within the faculty’s absolute control, and all curricular
proposals had to be approved by the administration. In
addition, faculty members had no effective control
over admissions policy, graduation requirements, or
matters relating to the retention, suspension, probation,
or expulsion of students.
In St. Thomas, faculty members did not have abso-
lute control over the curriculum, as all curricular rec-
ommendations and every proposal regarding academic
policy needed to be approved by the division chairs.
Division chairs certified students for graduation, con-
sulted with faculty on syllabus preparation and selec-
tion of textbooks, and reviewed proposed class sched-
ules. Further, the administration unilaterally established
a law school; eliminated entire degree programs; pro-
posed, drafted, and adopted the vast majority of aca-
demic policy and curriculum changes; and played the
predominant role in determining curriculum, grading
methods, faculty hiring, and tenure. The Board found
that the evidence in St. Thomas, similar to the evidence
here, did not establish that the faculty, through com-
mittees, had effectively recommended or had been the
moving force behind the formulation and adoption of
policies, and concluded that the faculty members did
not exercise managerial authority as set forth in Ye-
shiva.6
Further, Elmira College,7 relied on by the Employer,
is distinguishable. There, excluded division chairs sug-
gested class schedules, set the number of sections
which a faculty member could teach, made rec-
ommendations regarding salaries to the administration,
and planned the academic calendar. Unlike here, how-
ever, it was the faculty members who had final author-
ity for establishing standards for developing and ap-
proving new courses, approving changes in course lev-
els and changes in majors and minors, adding courses,
setting credit hours, course content, size of classes,
curriculum, grading of students, degree requirements,
admission and graduation standards, major and minor
requirements, and approving applications for waiving
academic requirements. Further, unlike here, there was
clear evidence that faculty recommendations were gen-
erally followed.8
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84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
conversion of the music school to a department, and changed foreign
language, math, and writing policy requirements.
9 While the above case was pending before the Board, the Em-
ployer filed a motion to reopen the record with respect to the
Board’s decision to assert jurisdiction under NLRB v. Catholic
Bishop of Chicago, 440 U.S. 490 (1979). The Petitioner filed a re-
sponse. We deny the Employer’s motion to reopen, as the evidence
the Employer seeks to add to the record would not warrant a dif-
ferent result in this case.
1 The parties’ briefs were considered.
12 The dean of outreach studies is not teaching this year but will
teach next year. Five deans teach full loads and two teach a three-
quarters load.
13 Hereafter, the term ‘‘program director’’ shall be used to encom-
pass the computer laboratory manager as well as those whose title
is program director.
14 Since the conversion to university status, the positions held by
Kottel are those of dean of the college of professional studies and
dean of the school of human services.
Accordingly, the Regional Director’s finding that the
petitioned-for faculty members are not managerial, as
defined in NLRB v. Yeshiva University, is affirmed and
the case remanded to the Regional Director for further
appropriate action consistent with this decision.9
APPENDIX
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the Na-
tional Labor Relations Act, as amended, a hearing was held
before a hearing officer of the National Labor Relations
Board (the Board).
Pursuant to the provisions of Section 3(b) of the Act, the
Board has delegated its authority in this proceeding to me.
Upon the entire record in this proceeding,1 I find:
1. The hearing officer’s rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
2. 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.
3. The labor organization involved claims to represent cer-
tain employees of the Employer.
4. A question affecting commerce exists concerning 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.
5. The following employees of the Employer constitute a
unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time faculty including professors, associate pro-
fessors, assistant professors, instructors and associate
faculty and all part-time associate faculty employed by
University of Great Falls in Great Falls, Montana, but
excluding part-time adjunct faculty, deans, nonprofes-
sional employees, guards and supervisors as defined in
the Act.
The University of Great Falls (UGF) is a liberal arts uni-
versity in Great Falls, Montana, which awards both bach-
elor’s and master’s degrees. A college founded in 1932 by
the religious order of the Sisters of Providence, St. Ignatius
Province (the Order), the institution attained university status
in 1995. It is an open admissions institution.
As amended at the hearing, the Petitioner seeks a unit of
all full-time faculty including professors, associate profes-
sors, assistant professors, instructors and associate faculty,
and all part-time associate faculty, but excluding part-time
adjunct faculty, deans, nonprofessional employees, guards,
and supervisors as defined in the Act.
The parties stipulated the exclusion of adjunct faculty on
the grounds they share no community of interest with the
faculty sought. The parties also stipulated the inclusion of
part-time associate faculty on the grounds they share a com-
munity of interest with full-time faculty. The parties stipu-
lated the provost/academic vice president and president are
managerial employees who should be excluded from the unit.
B. Lee Cooper is the provost/academic vice president and
Frederick Gilliard is the UGF president.
Managerial Status of Faculty
Deans
Reporting to the president are the provost/vice president of
academic affairs (provost), the vice president for develop-
ment, the vice president for finance and the vice president
for student services. The registrar reports to the provost.
Deans perform administrative functions related to the oper-
ation of the academic schools or colleges. They are full-time
members of the faculty, with full faculty rights and privi-
leges. All but one dean teach.12 Deans report to the
provost/vice president of academic affairs (provost). The only
other faculty who report directly to the provost are the pro-
gram directors and the computer laboratory manager.13
Deans are appointed by and serve at the pleasure of the
provost. The faculty handbook requires that the provost ob-
tain a consultative written vote from the full-time faculty
when selecting a dean and specifies that appointment nor-
mally should be in conformity with the faculty’s judgments.
Whether this in fact has been the case was not given. There
is no predetermined term of office. It appears that the assign-
ment as dean tends to be fairly long term. For example, Dean
Deborah Kottel has served as dean (a position formerly enti-
tled ‘‘division head’’) for 9 years.14 Should a dean be re-
moved from that position, the individual continues employ-
ment as a teaching faculty member. Four of the deans are
tenured; the others are tenure-track faculty. Deans are treated
as are other faculty as far as consideration for promotion and
tenure.
Seven of the deans are on 9-month contracts, as are
nondean faculty. One dean has a 12-month contract. Deans
teaching full loads receive a stipend in addition to their fac-
ulty salary. The average stipend is 9.15 percent of their con-
tract salary, and can be as much as 17.2 percent of salary.
The college and graduate school deans and the dean of out-
reach studies receive summer stipends of $5000. Undergradu-
ate school deans receive stipends of $2520.
Deans oversee the college and/or schools for which they
are responsible. Deans and program directors are the only
faculty whose performance is evaluated by the provost. Pro-
gram directors are evaluated by the provost only with respect
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85UNIVERSITY OF GREAT FALLS
15 One of these two instances involved an adjunct professor.
to their duties as directors. With respect to their duties as
teaching faculty, they are evaluated by their deans. Deans, on
the other hand, are evaluated solely by the provost.
Deans perform annual written performance evaluations for
the faculty of their schools or colleges. These are in part
based upon deans’ classroom observation of faculty teaching
and upon student evaluations which deans review. Deans
meet with faculty members to discuss the evaluations. These
evaluations become part of faculty members’ personnel
records and are used in making promotion and tenure deci-
sions. Deans make recommendations regarding tenure to the
faculty status committee, and regarding faculty promotions to
the promotions committee. The latter is composed of the
members of the faculty status committee plus the dean of the
faculty member being evaluated.
Independently, deans may and do discipline faculty, both
orally and in writing. Written reprimands are retained in fac-
ulty members’ personnel files. Oral reprimands may be me-
morialized in writing and similarly retained. Kottel rec-
ommended the termination of three faculty members; all
three recommendations were acted upon without independent
investigation by higher management. In two instances, she
advised professors to seek counseling, and her advice was
followed.15
Deans are significantly involved in course scheduling. Fac-
ulty submit course schedules to their deans. These are re-
viewed by deans to ensure there are sufficient course offer-
ings. Deans may determine that additional classes should be
taught and arrange for full-time faculty or adjunct faculty to
teach them. Deans also may and do require faculty to change
their class times in order to avoid conflicts and ensure proper
scheduling overall. Once the course schedule is printed,
changes may be made only upon authorization of the dean.
Deans independently determine whether to cancel classes
based on enrollment, even over the objection of the faculty
member offering the course.
With the input of their faculty, deans draw up budget pro-
posals for their schools for submission to the provost. Deans
control and administer their schools’ budgets. Deans are ac-
countable for their performance in handling their budgets and
are specifically evaluated on this responsibility.
Deans authorize expenditures for school needs, including
part-time faculty and overload staffing expenditures. All pur-
chase orders must be approved by deans. Deans determine
whether to allow open accounts at the UGF bookstore for
faculty purchases. Deans must approve faculty travel. While
the vice president for finance also signs off on faculty travel
requests, his approval is a pro forma adoption of the dean’s
approval. Work orders for work of any kind, even such
minor tasks as changing light bulbs, must be signed by the
dean and approved by the vice president of finance.
Deans determine whether adjunct faculty will be retained
to teach classes. Their decisions as to whether certain classes
should be taught by adjunct faculty, or offered at all, is influ-
enced by their responsibility for administering their budgets.
Deans recommend the hiring and retention of specific ad-
junct faculty, and in virtually all cases, the deans’ rec-
ommendations are accepted routinely by the provost.
The UGF bookstore will not take a professor’s order for
class textbooks unless the dean has approved the request.
Kottel testified that while she generally accepts faculty mem-
bers’ book order requests, there have been several occasions
when she has not permitted the requested books be ordered.
Student applications for individualized study must be ap-
proved by the dean. Deans must approve home study courses
and special student projects, summer session courses, and
student course challenges and waivers of courses. While
nondean faculty, either as a whole or in committee, do not
pass on applicants for graduation, students must be approved
for graduation by deans.
Formal student grievances regarding faculty must be pre-
sented to the school dean prior to submission to the griev-
ance committee. Deans have authority to resolve student
grievances. Kottel testified that 50 percent of formal student
grievances are resolved at her level. Deans must file a report
with the vice president of student affairs detailing their action
and position on grievances; these reports become part of the
grievance record. Deans also hear and adjust student com-
plaints regarding faculty which are not brought as formal
grievances. In resolving student grievances or informal com-
plaints, deans independently may direct involved faculty
members to change their classroom conduct, their manner of
interacting with students, or their style of commenting on
students’ work. It appears faculty comply with such direc-
tives.
The deans of the undergraduate colleges orient new faculty
in day-long sessions which cover all aspects of faculty duties
and responsibilities. Kottel prepared the orientation handbook
which is given all faculty.
While deans are required to give recommendations on fac-
ulty promotions and tenure requests, it is unclear to what ex-
tent their recommendations are effective. In all cases where
the dean does not recommend promotion or tenure of an eli-
gible faculty member, the provost must consult with the dean
and the faculty member.
Monthly, all deans convene in a group called the council
of deans. Deans there discuss a variety of topics, including
policy matters and broad faculty-related issues. It is unclear
whether deans formulate, recommend, or determine the
means to effectuate institutional policy through their discus-
sions at these meetings.
Program Directors
Program directors have responsibility in particular program
activities and are expected to ensure the tasks of their pro-
grams are carried out. Cooper testified generally and without
further explication that their responsibilities are comparable
to those of deans, albeit within a narrower programming
scope. Exactly what their duties and responsibilities entail
was not described.
Six of the program directors are not deans. These are the
director of the English writing program; the two codirectors
of the criminal justice program; the director of master in pro-
fessional counseling program; the director of wellness and in-
tramural programs; and the computer laboratory manager. A
new director position has been established, that of director of
the University research center, and will be filled by a
nondean faculty member. Assignment as a program director
is a continuing assignment.
Program directors report to the provost vis-a-vis their pro-
grams. Four of the nondean program directors have faculty
reporting to them. While an Employer witness generally as-
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86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 The faculty handbook is the fundamental policy guide for fac-
ulty and is made part of faculty contracts.
17 This year, the faculty status committee representative on the
budget committee is a dean.
18 Faculty grievances in other areas are heard by individual griev-
ance committees specially convened for specific grievances. Such
committees are composed of the vice president for student services
as chair, and four additional members appointed by the president,
only one of whom is a faculty member.
serted that these directors have authority to discipline report-
ing faculty comparable to deans’ disciplinary authority, no
example was provided in which a nondean program director
independently disciplined a faculty member or effectively
recommended such action. Faculty who report to nondean di-
rectors are not evaluated by the directors but rather by their
dean.
Program directors carry full teaching loads and are evalu-
ated with respect to their teaching duties by their deans. All
but four of the program directors receive stipends of $2520
or $2700; the other four receive $1260 or $1680.
Faculty Authority and Responsibilities
Faculty participate in academic governance through
facultywide votes on certain matters and through membership
on various committees. Faculty committee members have one
vote each. Inasmuch as deans and program directors are fac-
ulty with full faculty rights, they may vote for faculty rep-
resentatives to those committees on which faculty are se-
lected through a faculty vote. Inasmuch as they are faculty,
deans and program directors may hold faculty positions on
committees either by faculty election or by administrative ap-
pointment.
There are four standing campus committees: faculty status,
curriculum and academic affairs, admissions, scholarships
and financial aid; and student rights and responsibilities. The
president is an ex officio member of all committees except
the faculty status committee. The faculty handbook16 speci-
fies that the creation or dissolution of standing committees
involving faculty requires a two-thirds vote of the faculty. In
addition to standing committees, there are several ongoing ad
hoc committees.
Faculty Status Committee
The faculty status committee is a seven-member commit-
tee composed entirely of faculty. It convenes once monthly
and at other times as needed. Committee members are elect-
ed by the faculty for 3-year terms. Currently, the faculty sta-
tus committee includes three deans. The present committee
chair is not a dean.
This committee acts in an advisory capacity to the provost
on such matters as faculty leaves and sabbaticals, faculty
promotions and tenure actions, and faculty terminations. It
recommends to the provost regarding general and specific
faculty policies. Annually, the committee selects one of its
members to serve as the committee’s representative on the
campus budget committee.17 The bylaws specify the commit-
tee is to counsel with the vice president for student services
on matters and policies pertaining to faculty-student relations.
The committee hears and assists in resolving faculty griev-
ances relating to promotion, tenure, and retention.18
According to the faculty handbook, dismissal of non-
adjunct faculty is preceded by ‘‘informed inquiry’’ by the
faculty status committee which may, failing to effect an ad-
justment, determine whether in its opinion dismissal proceed-
ings should be undertaken, without its opinion being binding
upon the president. No evidence was presented as to whether
the committee has in fact rendered such opinions and, if so,
whether those opinions have been followed. The bylaws of
the faculty status committee specify that the committee is to
advise the academic vice president on all contemplated em-
ployment terminations. Provost Cooper, who came to UGF
in September 1993, has terminated two nontenured non-
adjunct faculty. In neither case did he notify and consult with
the faculty status committee. No tenured faculty member has
been terminated since Cooper’s arrival.
Recommendations of the faculty status committee are
made in writing to the provost. In turn, the provost makes
recommendations to the president, who recommends to the
board of trustees. The board of trustees has ultimate deci-
sion-making authority in matters recommended by this com-
mittee. Cooper testified without contradiction that all rec-
ommendations of the faculty status committee with respect to
leaves and sabbaticals have been granted. Faculty submit re-
quests for sabbaticals to their dean, who recommends action
to the faculty status committee. The dean is responsible for
ensuring the requesting faculty member can be replaced.
Kottel testified that without the dean’s approval, a sabbatical
request would not be granted. Sabbaticals granted may not
exceed the amount budgeted for this purpose by the board
of trustees.
Since Cooper’s arrival at UGF, there have been four fac-
ulty promotions. In three of these cases, the committee’s rec-
ommendations were implemented. In the fourth instance, the
faculty status committee felt the applicant did not have suffi-
cient graduate credits to qualify for the promotion and rec-
ommended the promotion be denied. Based on his own re-
view of the committee’s rationale and the applicant’s creden-
tials, Cooper disagreed with the committee’s assessment and
communicated his concerns to the committee. The committee
adhered to its recommendation. Cooper then advised the
president to grant the promotion despite the committee’s rec-
ommendation. The president agreed with Cooper. Cooper’s
and the president’s recommendations to promote the individ-
ual went to the board of trustees, along with the committee’s
recommendation that promotion be denied. The promotion
was granted.
There have been five grants of tenure since Cooper’s arriv-
al at UGF. In one of these instances, the faculty status com-
mittee recommended a delay in granting tenure. Cooper dis-
agreed with the recommendation based on his own review of
the committee’s rationale; the faculty member’s credentials,
abilities, and contributions; and the credentials, abilities and
contributions of others to whom tenure had been granted.
The president and board of trustees were informed of the
conflicting recommendations and implemented Cooper’s rec-
ommendation that tenure be granted.
The faculty status committee may and does establish var-
ious subcommittees to address specific issues or projects. For
example, prior to the recent conversion to university status,
an all-faculty subcommittee of the faculty status committee
worked on the governance process for academic operations.
The effectiveness of its recommendations in this area was
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87UNIVERSITY OF GREAT FALLS
19 Pursuant to art. X of the faculty handbook, the faculty may
amend the handbook by a two-thirds vote of the faculty; amend-
ments involving other than intrafaculty matters must be submitted by
the president to the board of trustees for final approval.
20 The committee’s bylaws specify three student committee mem-
bers, but witness testimony and an employer exhibit listing the com-
mittees and membership indicate there are six students as the com-
mittee currently is configured.
21 The exact testimony on this point is as follows:
Asked by Petitioners counsel whether Cooper would agree that
faculty involvement in curriculum is limited to reviewing, advising,
and making recommendations, Cooper concurred, adding that ‘‘. . .
in my experience at the institution, there has never been a faculty
recommendation [on curriculum] that has been rejected by any of the
places along the way.’’
not described. There is a governance subcommittee which
has been working on proposals to restructure the system of
faculty committees. The subcommittee’s proposal has been
approved by the faculty status committee and will go to a
full faculty vote in the spring of 1996. The proposal includes
the creation of an executive committee, despite Cooper’s
suggestion that there be no such committee in the new para-
digm. Even should this proposal pass the full faculty, it must
be approved by the administration. Another subcommittee
has worked on rewriting the faculty handbook. The chair of
the faculty status committee has chosen to table that project
until other issues have been settled.
Final proposals of subcommittees are submitted to the fac-
ulty status committee for approval. Certain matters approved
by the faculty status committee are passed to the full faculty
for vote, as would be the case in the matter of governance
changes or faculty handbook revisions.19
The faculty status committee serves as a nominating com-
mittee for faculty vacancies on the other standing commit-
tees. Additional nominations may be made from the floor.
No information was given with respect to this committee’s
actual activities related to its function of counseling with the
vice president for student services on matters and policies
pertaining to faculty-student relations.
Curriculum and Academic Affairs Committee
The curriculum and academic affairs committee (CAAC)
is an advisory body which recommends academic policies re-
lating to curriculum, degree requirements, research, academic
regulations regarding such matters as examination and grad-
ing policies, and other areas related to the educational proc-
esses within those programs of study approved by the board
of trustees. Final decisions on the CAAC’s recommendations
rest with the board of trustees or, if so delegated by the
board, with the president.
The CAAC is composed of seven faculty members, elected
by the faculty, and six students appointed by the student sen-
ate.20 Faculty committee members have one vote each, while
student members have one-half vote apiece. The provost, reg-
istrar, and library director are ex officio nonvoting members.
Faculty thus account for 70 percent of the committee’s vote.
Elected members serve for 3-year terms. Meetings are held
at least monthly.
There are three categories of academic change, two of
which (categories I and II) require action by the CAAC. Cat-
egory I deals with academic changes affecting the total aca-
demic program; Category II deals with academic changes af-
fecting the requirements for majors, minors, or associate de-
grees; and Category III includes all nonsubstantive academic
changes such as changes in course titles, numbers, and de-
scriptions.
The establishment or discontinuance of degree programs or
of majors and minors are board of trustee matters. Proposals
in these Category I areas may be presented to the CAAC by
its members; deans; any member of the faculty, staff or ad-
ministration; and students. The CAAC examines the proposal
and may invite persons to testify before it. If the CAAC
agrees the proposal is acceptable it refers the proposal to the
schools for their consideration and recommendations. After
receiving decisions and recommendations from the schools,
the CAAC either passes or denies the proposal. A proposal
rejected by the CAAC on its second vote may not be resub-
mitted for 12 months. If passed, the proposal is submitted to
a full faculty vote. If approved by the faculty, the proposal
is submitted to the provost who approves or disapproves. If
the proposal is denied by the provost, it is resumed to the
CAAC along with reasons for the denial. The CMC then re-
turns the proposal to the originator, along with the reasons
for denial and suggestions for improvement. If the provost
approves the proposal, he forwards it to the president with
his recommendation it be presented to the board of trustees.
Should the president disapprove, the proposal returns to the
provost and thence to the CAAC which in turn returns the
proposal to the originator.
Category I changes which affect distribution requirements,
interschool degree programs, or substantive academic policy
follow the procedures above outlined, except that the process
ends with the provost. No specific examples of the faculty’s
having effectively recommended such matters were provided.
Category II changes are those involving changes in re-
quirements of majors, minors, or associate degrees or involv-
ing ‘‘minor, relatively nonsubstantive academic policy
altemations.’’ This latter expression was not clarified. Pro-
posals are submitted to the CAAC. After examination, the
CAAC either passes or rejects the proposal. If rejected, the
proposal is returned to the person introducing it, along with
reasons for the denial. If passed by the CAAC, the proposal
is forwarded to the provost who approves or disapproves. If
disapproved, the proposal is returned to the CAAC with an
explanation. Should the provost approve, the CAAC and con-
cerned schools are notified. No information was provided re-
garding the effectiveness of CAAC recommendations in Cat-
egory II matters.
The CAAC bylaws do not require that Category II propos-
als be submitted to a full faculty vote. However, the CAAC
may choose to put certain Category II proposals to such a
vote, and it appears this does occur, although no specific de-
tails of such instances were given.
Category III nonsubstantive changes are not reviewed or
approved by the CAAC or submitted to a full faculty vote.
Rather, pursuant to the CAAC bylaws, such changes are ap-
proved by the dean in consultation with the appropriate
school members and submitted to the provost for approval.
With respect to the effectiveness of faculty recommenda-
tions on curriculum, Cooper broadly testified that since his
arrival at UGF, all such recommendations have been ap-
proved.21 As to the other academic matters which pass
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88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 The UGF accrediting association.
through the CAAC process, little information was provided
regarding the effectiveness of faculty recommendations.
Cooper has raised with the CAAC concerns over certain
low enrollment programs, as these represent financial losses
for UGF. He has acceded to faculty desires to retain such
programs. No information was given as to whether CAAC
recommendations on this issue were accepted without inde-
pendent evaluation by the provost.
Currently the CAAC is reviewing revisions of the core
curriculum. Revision proposals have been formulated by the
general education review committee, a faculty committee
chaired by a nondean faculty member. Kottel testified that
she recently asked the provost what would happen if a core
were passed by the faculty that the provost did not like. Ac-
cording to Kottel, the provost replied that he would tell the
board of trustees not to approve it, and the proposal would
die. Kottel testified, ‘‘So the message was fairly clear, at
least to me, that we could pass what we wanted to pass, but
it may not get approved; we could pass something in the pa-
rameters of what is acceptable to the Administration, and it
would get approved.’’
Cooper testified regarding this conversation as follows:
The conversation with Professor Kottel was really a
part of a conversation at the Dean’s Council meet-
ing. . . . And what we were dealing with was a ques-
tion of how the new core proposal would come to the
faculty. . . .
I had outlined at the beginning of the conversation
on that the fact that I was deeply concerned that we had
spent two years working on a core proposal, and that
the committee that was in charge of that, the General
Education Review Committee . . . a faculty committee
chaired by a faculty member who is not a Dean—that
that body had given a proposal to the Curriculum and
Academic Affairs Committee, and that the committee
had in fact removed so much of one portion of it that
I felt they were in danger of not fulfilling the North-
west Association’s22 mandates for us to revise and up-
grade our core curriculum activity. This was part of a
general conversation that was going on with all of the
Deans. Professor Kottel then asked me what would hap-
pen if the faculty were to vote either the shrunken pro-
posal or to return to the original proposal, and I re-
sponded to her that I would have to recommend to the
Board of Trustees that it not be passed or approved
simply because I felt that it certainly did not meet the
mandates of the Northwest Association, but I also
added that I didn’t feel that it measured up to the stand-
ards that the President was looking for in the quality
and integrity of the education program at a University.
Another matter currently before the CAAC is a rec-
ommendation from a CAAC subcommittee that six credits of
interdisciplinary classes be required.
A witness cited two instances in which Cooper took di-
rectly to the full faculty for a vote matters which should have
been presented first to the CAAC. One involved the question
of whether students sitting on the CAAC should continue to
be accorded the right to vote on matters before that body.
Despite Cooper’s opinion that students should not have this
right, the faculty voted to retain student voting rights on the
CAAC.
The other instance involved a change in curriculum re-
quirements. What the curriculum requirements were, whether
this was a matter of significant import, what the faculty’s
recommendation was, and whether that recommendation rou-
tinely was adopted by the administration were not given.
Admissions, Scholarships, and Financial Aid Committee
This committee carries out the policies and upholds the
standards of UGF relating to admissions, scholarships, and
financial aid as determined by the board of trustees. The reg-
istrar, director of financial aid, and vice president for student
services are members by virtue of their offices. Also on the
committee are three faculty members, elected by the faculty
for 3-year terms, and two students. One of the faculty com-
mittee members is a dean. Each committee member has one
vote.
The committee’s functions, as specified in its bylaws, in-
clude formulating and implementing policies and procedures
governing the admission and readmission of students and the
awarding and withdrawal of scholarships and financial aid.
With respect to scholarships, the committee administers mon-
eys budgeted by the board of trustees by awarding scholar-
ships and grants. The committee announces and conducts
competitive applications and/or examinations and awards the
scholarship moneys in accordance with its criteria. It also
formulates criteria for the retention of scholarships. Accord-
ing to Cooper, with respect to matters involving scholarships,
this is not merely an advisory body but rather is the decision-
making body on campus.
With respect to financial aid, the committee assists the di-
rector of financial aid in the administration of Federal and
other financial aid programs.
With respect to admissions, the committee reaffirms ad-
mission standards and registration policies. How this is done
was not described. It may suggest modifications to such
standards and policies, but the effectiveness of its sugges-
tions was not given. The committee serves as an appeal com-
mittee for individual applications for admission and readmis-
sion.
Student Rights and Responsibilities Committee
This committee reviews matters of student concern and
serves as the grievance body for students. Sitting on the
committee are three faculty elected by the faculty, three stu-
dents, and the vice president for student services. Each com-
mittee member has one vote.
The type of grievance typically heard by this committee
involves disputes between professors and students regarding
classroom conduct or academic grades. Professor Michael
Low, a faculty member for 21 years, testified that in one 3-
year period in the past, the committee heard only one case.
As he is not now a member of this committee, he has no
knowledge whether the number of cases heard by this com-
mittee has increased. as such cases are not publicized due to
student privacy concerns.
Low testified regarding an instance 4 years ago when, fol-
lowing a decision of the committee, the committee was dis-
banded and reconstituted by the then-president. The case was
reheard and an opposite conclusion reached. It appears, how-
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89UNIVERSITY OF GREAT FALLS
23 The two staff members are the library director and the informa-
tion resources director.
24 Currently, the faculty status committee appointee to the budget
committee is a dean.
ever, that upon review of the first hearing on appeal, the
then-president determined the adjudicative process had not
followed the proper procedures, prompting him to reconsti-
tute the committee for rehearing.
Graduate Council
The graduate council, an advisory body to the dean of
graduate studies, is composed of seven graduate school fac-
ulty, appointed by the academic vice president on the rec-
ommendation of the dean of graduate studies; the graduate
dean as chair; and the registrar, who serves ex officio. Be-
sides the graduate dean, there are two deans on the commit-
tee. Members are appointed for indefinite terms. According
to the faculty handbook, the council acts as the executive
committee of the graduate faculty.
The council advises and recommends on graduate pro-
grams, curricula, and matriculation guidelines. The council
makes recommendations to the dean of graduate studies re-
garding applicants for graduate studies. Inasmuch as the body
is advisory to the graduate dean, who is himself a voting
member of the committee, it is unclear whether the faculty
committee members serve merely in an advisory resource ca-
pacity or whether their input actually constitutes effective
recommendation. Definitive information pertaining to the ef-
fectiveness of this body’s recommendations was not pro-
vided. No description of the actual deliberative and advisory
processes of this body was given.
Teacher Education Committee
The teacher education committee is composed of five fac-
ulty appointed by the dean of the school of education; the
registrar; the vice president of student services; and the dean
of the school of education. The committee serves in an advi-
sory capacity to the dean of the school of education.
The only description of the work of this committee was
given by Cooper who explained it ‘‘deals with student teach-
ing policies, generally oversees the text of the teacher edu-
cation handbook, would make decisions regarding individual
student participation in the teacher education certification
program.’’ No other information regarding this committee’s
procedures, recommendations, and/or decisions was provided.
Library Committee
On this committee are five faculty elected by the faculty,
two students, and two staff members.23 Each member has
one vote. The committee is an advisory group to the library
director with regard to library policies and acquisitions. No
information was provided regarding specific matters rec-
ommended by the committee nor the effectiveness of its rec-
ommendations.
Strategic Planning Committee
This is a new committee chaired by the vice president for
student services. There are five faculty, appointed by the
president. All five are deans. There are an additional seven
committee members: four staff personnel, two administrators,
and one student. The committee is to recommend to the
president on a 5-year plan dealing with the University’s fu-
ture, including facility development, staff additions, and aca-
demic programs. Faculty are members on some of this
body’s subcommittees.
According to Kottel, faculty were not involved in long-
term planning under past administrations. She explained that
while Gilliard has changed that, it is too soon to know the
extent to which faculty will be instrumental in such planning.
Once formulated, the strategic plan will be submitted to the
president, and then to the board of trustees.
Campus Master Plan Committee
Currently inactive, this committee was composed of two
faculty appointed by the president, the auxiliary services di-
rector, the physical plant director, the library director, and
three vice presidents, two of whom had one-half votes. The
other committee members each had one vote. Of the two fac-
ulty, one was a dean.
The purpose of this committee was to project the long-
range development of campus facilities and to make rec-
ommendations to the president. The committee completed a
report which the provost characterized as a ‘‘driving force in
the budgeting and planning for the institution.’’
Computer Planning and Policy Committee
This committee is composed of two faculty, neither of
whom is a dean; four staff; and one student. It serves to rec-
ommend to the president campus policy and long-range plans
for computer use on campus. No evidence was presented re-
garding the outcome of its recommendations.
Safety Committee
Committee members, appointed by the president, consist
of two faculty, five staff, and the vice president of finance.
The role of the committee is to assure campus facility safety
and assist in implementing required safety procedures. No in-
formation was provided regarding its deliberative processes
or the effectiveness of its recommendations.
Budget Committee
The budget committee develops the annual budget rec-
ommendation. The committee is composed of three faculty,
three staff, four administrators, and one student. One of the
three faculty members is appointed by the faculty status com-
mittee. This faculty member presents to the budget commit-
tee the faculty salary schedule drafted by the faculty status
committee.24 The other two faculty are the two undergradu-
ate college deans who sit on the committee by virtue of their
office. The staff and administrators are appointed by the
president and the student member is appointed by the student
senate. The budget committee meets on an as-needed basis.
With faculty input, deans develop specific program budg-
ets for consideration by the budget committee. The faculty
status committee makes specific recommendations with re-
spect to faculty salaries. Other faculty groups may generate
personnel requests for consideration by the budget commit-
tee. Tuition standards are established through the budget
committee process and reviewed annually.
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90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 The faculty status committee has the option, not currently exer-
cised, to appoint an additional faculty member to this subcommittee.
26 Such was the case for the search committee constituted in the
fall of 1995 for a faculty vacancy in physical education. Besides the
According to Kottel, who has been a member of the com-
mittee for 8 years, the president gives the committee param-
eters within which to work. For example, the president may
ask for a certain percentage of the budget to be in reserve,
and a certain percentage per month to pay debt. The commit-
tee holds open hearings where any interested person may
speak. The committee reviews the various requests of dif-
ferent campus constituencies and attempts to align them vis-
a-vis the strategic plan of the university. The committee then
presents its recommendations to the president. Kottel stated
that in her 8 years on the committee, the president never has
forwarded the budget to the board of trustees without first
making changes to the committee’s recommendations. She
testified that while those changes at times have been minor,
there have been occasions when presidents unilaterally have
made major changes to the proposed budget.
Kottel presented examples in which she believed the budg-
et committee’s recommendations had been overridden. One
involved a unanimous recommendation of the committee that
surplus revenue be used to raise the pay of adjunct faculty.
Although there was a surplus in the budget year, Gilliard re-
fused to follow the committee’s recommendation. Instead,
the money was used for one-time expenses, based on the
president’s rationale that this was surplus money which could
not be relied upon to continue in future years, and that there-
fore it should be used for one-time capital expenditures rath-
er than for a budget item that would be continuing in nature,
as pay raises would be.
Another instance involved the committee’s allocation of
$20,000 to the continuing education budget to perform con-
tinuing education on campus. Thereafter, in mid-fiscal year,
the administration unilaterally removed 75 percent of those
funds from the continuing education budget without prior no-
tification to the budget committee or to the dean overseeing
the continuing education budget. The funds were reallocated
by the administration in an attempt to balance funds. Vice
President for Finance Washburn testified that the budget
committee is responsible only for developing and rec-
ommending an annual budget and plays no role in monitor-
ing the budget once passed. He explained that this particular
instance was caused by the institution’s need to reapportion
allocations.
Kottel stated that besides making changes to the commit-
tee’s recommended budgets, the administration imposes its
will on the committee by specifying in advance what will or
will not be acceptable. She gave as an example the commit-
tee’s wish to use a certain amount of endowment money to
effect needed repairs on the campus infrastructure. Gilliard
felt this amount was too high and instructed the committee
to write in a lesser figure. However, Washburn, who also sits
on the budget committee, testified that despite Gilliard’s op-
position, the committee’s original recommendation regarding
the amount of endowment money to be used for the infra-
structure remained in the budget and was adopted by the
board of trustees.
As another example, Kottel testified the president often in-
forms the committee of a specific upper limit for tuition in-
creases.
Beautification Committee
One faculty member, three staff persons and one student
comprise the beautification committee. All are appointed by
the president for the purpose of making recommendations re-
garding the esthetics of the campus’ physical plant. No other
information regarding this committee was provided.
Grievance Committee
As noted above, grievance committees are appointed on a
case-by-case basis to hear faculty grievances in matters other
than those handled by the faculty status committee. Commit-
tee members are appointed by the president. Of five mem-
bers, one is a faculty member. Cooper testified that grievants
usually accept the committee’s decisions, although they may
appeal to the president whose determination is final.
Academic and Faculty Affairs Committee
This is a standing subcommittee of the board of trustees
composed of nine members, one of whom is faculty.25 The
faculty member is elected by the board of trustees. In addi-
tion, there are four trustees, two students, one administrator,
and the Great Falls school superintendent. All committee
members have one vote. This committee makes recommenda-
tions to the full board regarding academic policies and pro-
grams; faculty status committee recommendations vis-a-vis
faculty tenure, promotions, sabbaticals, and leaves; and stu-
dents recommended for graduation. The committee meets
three times yearly.
Student Services Committee
Another subcommittee of the board of trustees, the student
services committee is composed of one faculty, two staff,
one administrator, four students, and four trustees, all having
one vote. The faculty member is appointed by the faculty
status committee. The current faculty member is not a dean.
This committee makes recommendations on student services
policies directly to the board of trustees. It meets three times
yearly.
Faculty Meetings
No information was provided regarding the frequency of
facultywide meetings and/or facultywide votes. Nor was evi-
dence provided describing faculty meeting procedures or the
matters there discussed. It appears the provost chairs these
meetings. According to Kottel, the majority of recommenda-
tions which emanate from the various committees are not
submitted to facultywide votes.
Hiring
The UGF president ultimately decides who will be hired
as well as the number of positions which will be filled. Fac-
ulty members are hired through a search committee process.
The provost selects a dean to serve as chair of the search
committee. The dean selects the other committee members,
to include a faculty member from the school having the va-
cancy, a faculty member not of that school, and a student
majoring in the school with the vacancy. In some cases, ad-
ditional persons may be appointed to the committee.26 The
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91UNIVERSITY OF GREAT FALLS
dean, as chair, two faculty members, and a student, there were an
administrator and a staff person from student services.
search committee screens applications and recommends the
top three candidates for on-campus interviews. Candidates
brought to the campus are interviewed by the search commit-
tee and the provost. In addition, candidates meet with the
president, graduate dean, and other interested faculty, stu-
dents, administrators, and staff persons.
A final search committee recommendation is submitted to
the provost. Cooper described his role as being ‘‘independent
from the search committee’’ and his responsibility as ‘‘to
judge both the candidates and how I perceive they will im-
pact the institution, just as significantly as the search com-
mittee.’’ He explained that ‘‘in the vast majority of cases, I
will be in concurrence with the committee. It would be the
exception to the rule that I would object to it.’’ He stated
that in instances where he himself is not ‘‘a hundred percent
sure,’’ he follows the committee’s recommendation. He ad-
heres to the philosophy that both the search committee and
he must be satisfied the candidate recommended will be a
strong contributor to the institution.
Cooper testified that in his 2 years at UGF, there have
been nine faculty searches, of which he has declined to fol-
low the search committee’s recommendation in one instance.
In that case, the provost hired a candidate who was one of
the lower-ranked by the search committee.
In another of these nine searches, Cooper approved the
committee’s choice, although it was not his own first choice,
after discussing the matter with the dean serving as search
chair. In another instance, although one of the applicants who
held a Ph.D. degree met all the criteria as far as credentials
and background, the search committee felt the candidate
would not be willing to spend enough time with students. Al-
though UGF wished to upgrade the staff by retaining some-
one with a Ph.D. in the area, Cooper accepted the commit-
tee’s reservations regarding this applicant and a person with
a lesser degree was retained.
Faculty may sit on search committees for administrative
personnel. With respect to the selection of the president, the
faculty handbook specifies ‘‘[j]oint effort of a most critical
kind must be taken when an institution chooses a new presi-
dent. The selection of a chief administrative officer should
follow upon cooperative search by the Board of Trustees and
the faculty.’’ It appears that faculty were members of the
search committee for the presidential vacancy filled by
Gilliard. However, the exact proportion of faculty on that
committee was not given, nor the number of those faculty
who were deans/division heads. Nor was infommation pro-
vided regarding whether the recommendation of that panel
was accepted.
As far as the selection of the provost/academic vice presi-
dent, applications are submitted to a faculty screening com-
mittee composed of seven members: two members of the fac-
ulty status committee selected by that committee; two mem-
bers of the CAAC selected by that committee; two members
of the general faculty elected by that body; and one dean se-
lected by the other deans. The screening committee which re-
viewed candidates for the provost vacancy filled by Cooper
had as members students and staff persons as well. Cooper
believed 7 of 11 members of his search committee were fac-
ulty; the number who were deans/division heads was not
given. The provost search committee’s recommendation is
submitted to the president. According to the faculty hand-
book, ‘‘[t]he president will entertain the suggestions [of the
search committee] but reserves the right both to review other
candidates not on the faculty committee list and ultimately
to choose one of the latter.’’ In the case of the vacancy filled
by Cooper, the president interviewed all candidates. Cooper
was the search committee’s recommended applicant.
Last year, faculty sat on the search committee for a non-
faculty student services position. The proportion of faculty to
nonfaculty was not provided. The committee ranked four
candidates, unanimously agreeing the fourth-ranked candidate
was not appropriate for the position. The vice president of
student services declined to follow the committee’s rec-
ommendation and in fact hired its fourth-ranked candidate.
New Faculty Structure
The recent reorganization of the institution into colleges
and schools headed by deans was approved as a pilot project
by a vote of the faculty. According to Cooper, there was
‘‘immense’’ faculty involvement in the development of the
new organizational design, but the exact nature of this in-
volvement was not described.
Teaching Loads
Prior to 1992, faculty could meet the requirements of their
faculty contracts by teaching from 24 to 26 credits per aca-
demic year. In 1992, the faculty status committee rec-
ommended to the board of trustees that this spread in teach-
ing loads be modified such that the required teaching load
be standardized at 24 credits. This recommendation was ac-
cepted and implemented by the board. Any individual reduc-
tion in a particular faculty member’s teaching load from the
standard must be recommended to the provost by the faculty
member and the school dean. The provost unilaterally devel-
oped a policy whereby faculty may not teach in excess of
the standard teaching load, even should particular faculty
wish to teach extra classes. The provost has charged the
deans with ensuring this policy is followed.
While the faculty handbook permits a portion of a faculty
member’s teaching load to be transferred to the summer ses-
sion, Cooper, over the objections of two faculty status com-
mittee members, supported a faculty members desire to trans-
fer her full load to the summer session. Cooper’s comment
in defense of his position was that the faculty handbook is
a ‘‘stale’’ guide. It is unclear whether the faculty status com-
mittee as a body officially objected and whether the transfer
was effected.
Admissions Policies
As UGF is an open admissions institution there is thus no
faculty involvement, as a historical matter, in establishing or
changing general admissions policies.
Specific programs at the graduate level may have certain
admissions standards established through the graduate coun-
cil process. Whether this in fact occurs and, if so, whether
nondean faculty committee members effectively recommend
such standards were not given. Elevated standards for partici-
pation in student teaching are established through the teacher
education committee process, though no description of this
process was given.
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92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 Although Kottel testified that there recently have been new
grades promulgated without faculty input, further testimony estab-
lished that the designations to which she referred are not grades of
academic performance but rather shorthand designations of reasons
for which grades are not being reported at that time. Specifically, IP
designates in progress coursework or research; NG, no grade: and
RD, grade report delayed.
Teaching Methods
Faculty establish their own teaching methods.
Size of Student Body and Class Size
As UGF is an open enrollment institution, faculty have no
input into enrollment levels. Faculty do not participate in de-
termining the number of students who will be accepted in a
major.
With respect to class size, the school dean and individual
faculty member together recommend to the CAAC. Kottel
testified that the institution ‘‘has followed a practice of ac-
ceding to faculty interests in terms of identified pedagogical
needs for class size.’’ However, an instance was given in
which a former provost unilaterally raised the class size of
an English class despite faculty protest.
Course Scheduling
School deans work with individual faculty and the reg-
istrar in developing course schedules as above described.
Student Absences
Faculty individually and unilaterally determine class poli-
cies governing student absence.
Academic Calendar
The academic calendar is reviewed by the CAAC and put
to a vote of the faculty. In Cooper’s experience at UGF,
there have been no calendar alterations other than those pro-
posed by faculty.
Grades and Grading Policies
The UGF grading system is set forth in its catalog.
Changes in the system go through the CAAC process and
must be approved by the provost and president.27 It is un-
clear whether CAAC recommendations regarding grading
policies generally and routinely are approved. Individual fac-
ulty independently determine the application of the grading
system to their students, subject to an appeal process.
Faculty have individual discretion in determining their
policies vis-a-vis student cheating, but are required to notify
classes through their syllabi should their policies be harsher
than the standard set forth in the student rights and respon-
sibilities handbook.
Changes to a student’s grade outside a certain timeframe
require approval of the provost.
Matriculation Standards; Graduation and Degree
Standards and Requirements
Individual faculty determine whether transferring students’
courses qualify for credit toward their work at UGF. It is the
faculty member with the professional expertise in the subject
area of the courses under consideration who makes this eval-
uation. In reaching a decision on such matters, faculty rely
on UGF standards required in the major, which standards are
approved by the full faculty through its vote on curriculum
design.
Many of the issues pertaining to graduation and degree re-
quirements and standards pass through the CAAC process.
Depending upon the category within which the rules fall, the
CAAC’s recommendation may go directly to the provost or
may be passed to the full faculty for a vote prior to being
transmitted to the provost, president, and board of trustees.
As noted, it is the deans who approve applicants for gradua-
tion.
Through the CAAC process, faculty advise as to require-
ments for the core curriculum and majors. Faculty unilater-
ally cannot make changes to the standards and requirements
approved by the administration.
Kottel testified that Rules regarding whether Telecom
home study classes count for residency credit, the number of
independent studies a student may take, and the number of
Telecom home studies classes a student may take unilaterally
were set by the administration.
Tuition
Tuition is recommended to the board of trustees by the
budget committee.
Retention, Suspension, Probation, and Expulsion
of Students
Nondean faculty members do not participate in decisions
involving student retention, suspension, probation, or expul-
sion.
Course Substitutions and Petitions for
Special Consideration
Students’ requests for course substitutions and petitions for
special consideration are recommended to school deans by
students’ academic advisors. Only faculty serve as advisors.
There have been many instances in which academic advisors’
approvals of course substitutions and petitions for special
consideration have been overruled by deans.
Course Content/Course Offerings/Credit Hours
Establishing course content historically has been within the
realm of faculty. Faculty members’ course offerings are sub-
ject to final approval by the provost. The number of credit
hours assigned courses is dictated by standards promulgated
by the Northwest Accreditation Association.
New Facilities/Space Allocation
The president is guided in the establishment of new facili-
ties and in the allocation of space on the broad scale by the
campus master plan approved by the board of trustees.
School deans and individual faculty may make requests to
the administration with respect to smaller-issue space alloca-
tion matters, such as requests for conference rooms or advis-
ing areas, or for adding accouterments to a classroom. The
administration attempts to accommodate such requests where
possible.
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93UNIVERSITY OF GREAT FALLS
28 444 U.S. at 682, quoting NLRB v. Bell Aerospace Co., 416 U.S.
267, 288 (1974).
29 Id. at 683.
30 Ibid.
31 Id. at 688 fn. 27. See American International College, 282
NLRB 189, 202 (1986) (vetoes of faculty proposals did not preclude
finding faculty members to be managerial employees, as incidents
were not substantial or predominant, and did not show a pattern of
unilateral action that undermined faculty authority); Boston Univer-
sity, 281 NLRB 798 (1986), enfd. 835 F.2d 399 (1st Cir 1987) (that
administration occasionally made and implemented policy decisions
without faculty input did not detract from the faculty’s managerial
authority).
32 University of Dubuque, 289 NLRB 349 (1988); Livingstone,
supra. In Lewis & Clark, supra, faculty were found managerial be-
cause nearly all their recommendations on academic matters were
routinely approved. While some faculty recommendations were inde-
pendently reviewed, this did not negate a managerial finding as such
review occurred predominantly with nonacademic rather than aca-
demic matters.
33 Lewis & Clark, supra at 161 fn. 30 and cases cited therein.
Analysis and Conclusions
In NLRB v. Yeshiva University, 444 U.S. 672 (1980), the
Supreme Court found that faculty members at that institution
were managerial employees excluded from the Act’s cov-
erage. The Court defined managerial employees as those who
‘‘formulate and effectuate management policies by express-
ing and making operative the decisions of their employer.’’28
It held that managerial employees ‘‘must exercise discretion
within, or even independently of, established employer policy
and must be aligned with management,’’29 and that they
must represent ‘‘management interests by taking or rec-
ommending discretionary actions that effectively control or
implement employer policy.’’30
The Court found that through facultywide meetings and
participation on faculty committees, the faculty at each of the
Yeshiva University schools effectively determined curricu-
lum, grading systems, admissions, matriculation standards,
academic calendars, and course schedules. In addition, fac-
ulty at some schools made decisions regarding admission, ex-
pulsion, and graduation of individual students, and others had
made decisions involving teaching loads, student absence
policies, tuition, enrollment levels and, in one case, the loca-
tion of a school. In nonacademic areas, the Court found that
the faculty made recommendations regarding hiring, tenure,
sabbaticals, terminations, and promotions, the majority of
which had been implemented. Relying primarily on faculty’s
extensive authority over academic affairs, but noting also its
predominant authority in nonacademic areas, the Court ap-
proved the Second Circuit’s conclusion that the faculty mem-
bers were ‘‘in effect, substantially and pervasively operating
the enterprise.’’ The Court concluded:
Their authority in academic matters is absolute. They
decide what courses will be offered, when they will be
scheduled, and to whom they will be taught. They de-
bate and determine teaching methods, grading policies,
and matriculation standards. They effectively decide
which students will be admitted, retained, and grad-
uated. On occasion their views have determined the size
of the student body, the tuition to be charged, and the
location of a school.
The Yeshiva faculty were found to be managerial despite
occasional vetoes of faculty action caused by ‘‘administrative
concerns with scarce Resources and University-wide bal-
ance.’’31 In Lewis & Clark College, 300 NLRB 155, 162
(1990), the Board, considering this language in Yeshiva, con-
cluded that there are ‘‘college policy questions (i.e., ‘finan-
cial resources,’ ‘general institutional goals,’ or ‘University-
wide balance’) that are broader than academic policy matters
and from which the faculty members may be excluded yet
they remain managerial employees.’’
In Yeshiva, the Court held that professors may not be ex-
cluded merely because they determine the content of their
own courses, evaluate their own students, and supervise their
own research.
Since Yeshiva, the Board has held that it is faculty mem-
ber’s participation in the formulation of academic policy that
aligns their interest with that of management.32 Faculty au-
thority in nonacademic matters is accorded less weight in de-
termining whether faculty are managerial employees.33 In
cases where there is substantial indicia of faculty’s manage-
rial status in academic areas, an administration’s frequent re-
jection of faculty recommendations in nonacademic areas,
such as faculty promotion and tenure, would not preclude a
managerial finding. University of Dubuque, 289 NLRB 349
(1988). Nor does effective recommendation in such nonaca-
demic matters as tenure or promotion require a managerial
conclusion. Loretto Heights College, 264 NLRB 1107
(1982), enfd. 742 F.2d 1245 (10th Cir. 1984). It is not fac-
ulty’s authority on paper which determines their status, but
rather their authority in practice. Bradford College, 261
NLRB 565 (1982); St. Thomas University, 298 NLRB 280
(1990).
In Thiel College, 261 NLRB 580, 586 at fn. 34 (1982), the
Board held that faculty involvement or lack thereof in the
following areas is not vitally significant in determining fac-
ulty’s managerial status: academic calendars, student absence
policies, enrollment levels, tuition, and the location of a
school.
Under Yeshiva, a faculty need only exercise effective rec-
ommendation or control, rather than final authority, to be
deemed managerial. In Lewis & Clark College, supra, the
Board emphasized that ‘‘neither the Board nor the Court re-
quires that a faculty possess absolute or plenary authority in
order to be found to be managerial; the standard set forth in
the Court’s decision is ‘effective recommendation or con-
trol.’’’ (300 NLRB 163 at fn. 41). Effective recommendation
authority is found where nearly all recommendations are rou-
tinely approved by the administrative hierarchy, without
independent review. Lewis & Clark, id.
The party seeking to exclude either a whole class of em-
ployees or particular individuals as managerial has the bur-
den of presenting the evidence necessary to establish such
exclusion. Montefiore Hospital & Medical Center, 261
NLRB 569 (1982) at fn. 17.
In Livingstone, supra, the Board concluded that faculty
were managerial employees based on its finding that the fac-
ulty exercised ‘‘almost plenary control overcurriculum and
academic policy.’’ The Board found significant the fact that
all curriculum changes had to be approved by the faculty-
dominated curriculum catalog committee and that the admin-
istration could not make changes in academic policy without
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94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 Those areas were curriculum, degree requirements, course con-
tent and selection, graduation requirements, matriculation standards,
and scholarship recipients.
35 Id. at 350.
36 A review of the provost’s performance evaluations for three of
the deans supports a conclusion that deans perform a large number
of significant duties pertaining to the running of the institution which
are in addition to those typically expected of a professor in the dis-
charge of his professional responsibilities as a teacher. I note, more-
over, that in Cooper’s evaluation of the dean of the school of edu-
cation, he specifically commends her for her ‘‘academic manage-
ment’’ and for creating and launching, in cooperation with the grad-
uate studies dean, a new Master of Arts in Teaching degree without
the hiring of additional staff. The dean of the school of business is
lauded for her modification of the accounting curriculum, creation of
the cooperative B.S. in respiratory therapy program, and resolution
of ‘‘a very difficult 1994 Fall Semester staffing problem.’’ He urges
her to ‘‘[k]eep up the good work in monitoring the Business School
budget and in exercising control over part-time and overload staffing
expenditures.’’
presenting the changes to this committee. The Board noted
that in certain academic areas,34 the majority of the rec-
ommendations made by various committees and approved by
the faculty were implemented without prior approval from
the administration and that there was no evidence the admin-
istration ever had countermanded these faculty decisions. The
Board placed only limited significance on the fact that the
faculty lacked authority in nonacademic matters such as the
budget process, tenure decisions, selection of administrators,
and no authority in the hiring and firing of faculty.
In University of Dubuque, supra, the Board found faculty
to be managerial employees based on their substantial role in
curriculum and academic policy decisions, their minority in-
volvement on combined committees, and on an extant collec-
tive-bargaining agreement which gave ‘‘the faculty . . . the
exclusive right to set student grading and classroom conduct
standards; set degree requirements; recommend earned de-
gree recipients; initially receive and consider new degree
programs; and develop, recommend, and ultimately approve
curricular content and course offerings.’’35 In addition, while
noting that it was of less significance, the Board found that
faculty’s minority involvement on certain other committees
allowed them effectively to recommend discretionary actions
with respect to a number of nonacademic areas of govern-
ance, including department staffing, budgeting, long-term
planning, and personnel actions pertaining to faculty mem-
bers such as hiring, promotion, and tenure decisions.
In Boston University, supra, faculty were found to be man-
agerial employees because they exercised effective control
over matriculation requirements, curriculum, academic cal-
endars, and course schedules and had absolute authority over
grading, teaching methods, graduation requirements, and stu-
dent discipline. The Board also noted the faculty played an
effective role in recommending faculty hiring, tenure, pro-
motions, and reappointments.
Likewise, in American International College, supra, the
Board found faculty to be managerial because the faculty ef-
fectively controlled academic standards and curriculum
through their participation in committees and through their
vote on recommendations and proposals made by the com-
mittees. The faculty’s influence in hiring, promotion, and
tenure decisions also was noted.
In Loretto Heights, supra, faculty participated in the gov-
ernance of the college through various faculty-dominated
committees. The administration routinely accepted the rec-
ommendations of these committees in the areas of academic
policy, new courses, grading criteria, faculty promotion, and
tenure. However, in spite of the faculty’s power, the Board
found faculty members to be nonmanagerial. In making that
determination, the Board relied in part on the fact that most
of the actions taken in which faculty members participated
were in the form of recommendations and advice, and that
no faculty member was authorized to take any action on the
member’s own initiative that would be final and binding on
the college. The Board also relied on the presence of a large
administrative staff. The Board found that such a staff cre-
ated an effective buffer between the top management and the
lowest echelon, eliminating the need for the institution’s ad-
ministration to rely on the faculty for advice, recommenda-
tions, and the establishment and implementation of policies.
It was the program directors who provided the buffer in that
case. These individuals largely controlled the budget, served
on key committees and task forces, and were administrators
rather than instructors even though they carried teaching
loads. In enforcing the Board’s decision, the court relied
upon the infrequent or insignificant nature of committee
work, the mixed membership of many committees, the fac-
ulty’s limited decision-making authority, and the layers of
administrative approval required for many decisions.
Turning in the instant case to the status of the UGF deans,
I find that deans take or recommend discretionary actions in
both academic and nonacademic areas which effectively con-
trol or implement UGF policies and thus are managerial em-
ployees, as both parties urge.
Deans are responsible for overseeing all facets of their
schools. One way in which they accomplish this is through
their administration of their schools’ budgets, for which re-
sponsibility they are held accountable and on which they are
evaluated by the provost.36 Deans are significantly involved
in course scheduling. They may determine additional classes
should be taught, make arrangements for faculty to teach
them, and reschedule class times as they deem appropriate.
Deans independently may cancel classes based on such con-
siderations as enrollment levels, even over faculty objections.
Deans determine whether adjunct faculty will be hired for
specific classes, and which adjunct faculty to hire. Deans ap-
prove students for graduation.
A variety of actions cannot occur absent deans’ approval.
For example, deans must authorize faculty travel; school
work orders; changes in course schedules after the schedules
have been printed; purchase orders, including textbook or-
ders; student applications for individualized study and sum-
mer session courses; student course challenges; and waivers
of courses. Deans have denied textbook requisitions submit-
ted by faculty. A faculty member’s request for sabbatical will
not be granted absent the dean’s approval.
Deans are the first step in the resolution of student griev-
ances and have authority, which is exercised, to resolve those
grievances. They also hear and adjust student complaints re-
garding faculty which are not brought as formal grievances.
Deans have other authority and duties which have both
managerial and supervisory aspects. For example, deans per-
form annual performance evaluations of the faculty of their
schools, which are based in part upon deans’ observations of
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95UNIVERSITY OF GREAT FALLS
37 As noted by the Supreme Court in Yeshiva, an individual’s role
in decisions pertaining to faculty hiring, tenure, sabbaticals, termi-
nation, and promotion has both managerial and supervisory charac-
teristics. Yeshiva, supra at 686 fn. 23. As no party has asserted a
position that deans are supervisors, l make no finding as to deans’
supervisory status.
38 In Cooper Union, supra at 1774, discussing College of Osteo-
pathic Medicine & Surgery, 265 NLRB 295 (1982), wherein faculty
were found managers, the Board noted as significant the fact that
voting members of many committees were elected by the faculty.
39 The Tenth Circuit, in Loretto Heights College, 742 F.2d 1245,
1253 (10th Cir. 1984), enfg. 264 NLRB 1107 (1982), held that ef-
fective control of academic policies cannot be imputed to faculty
when faculty comprises a minority of the committee which develops
and reviews these policies. However, in University of Dubuque,
supra, the Board, in concluding faculty were managers, relied in part
on faculty minority membership on committees. In that case, though,
faculty were vested with the exclusive right to set student grading
and classroom conduct standards; to set degree requirements; to rec-
ommend earned degree recipients; initially to receive and consider
new degree programs; and to develop, recommend and ultimately ap-
prove curricular content and course offerings. Despite its partial reli-
ance in Dubuque on faculty minority membership on committees, in
other cases the Board has followed a rationale vis-a-vis faculty rep-
resentation on committees similar to that expressed by the Tenth Cir-
cuit in Loretto Heights. Thus, for example, in Cooper Union, supra,
the Board at fn. 21 noted that in finding the faculty of College of
Osteopathic Medicine to be managerial, it had relied on ‘‘100 per-
cent faculty composition of key committees and faculty initiation of
a major change in the entire academic curriculum as indicative of
faculty authority.’’ In finding the Cooper Union faculty nonmana-
gerial, the Board relied in part on the fact that faculty constituted
a minority on most governance committees and something less than
a voting majority on about one-half of the committees; only one of
14 faculty committees was 100-percent faculty in composition. In
Lewis University, 265 NLRB 1239 (1982), the Board noted that al-
though the communications advisory board’s recommendations gen-
erally were adopted, ‘‘it is apparent that, because only one member
[of six or eight committee members] is a faculty member, this mem-
ber could not effectively formulate and effectuate the Employer’s
policies.’’ See also Lewis & Clark, supra at fn. 37.
40 As noted, on the graduate council and teacher education com-
mittee, it is unclear to what extent the deans to whom these commit-
tees are advisory and who themselves sit and vote on the committees
guide or control the fommulation of the committee’s recommenda-
tions.
41 To the extent deans may hold faculty seats on this and other
committees by virtue of their election to the committees by the fac-
ulty at large, I will not consider their presence on the committees
as a diminishment of faculty authority, despite their managerial role,
as they have been elected freely by nondean faculty to represent fac-
ulty’s interests.
faculty members’ teaching abilities. These evaluations be-
come part of faculty members’ personnel records and are
used in deciding promotion and tenure. Deans independently
discipline faculty, both orally and in writing. Written rep-
rimands become part of faculty members’ personnel files.
Deans have effectively recommended faculty terminations.
They effectively recommend the hiring and retention of spe-
cific adjunct faculty.
Based on the foregoing and the record evidence as a
whole, I conclude that deans are aligned with management
and I find they are managerial employees.37
The managerial status of nondean program directors and
the computer laboratory manager is less clear. They are ex-
pected to ensure the tasks of their programs are carried out,
but their specific duties and responsibilities vis-a-vis this
goal were not described. While there was testimony to the
effect that program directors have authority to discipline fac-
ulty who report to them comparable to the disciplinary au-
thority of deans, no example was provided in which a
nondean director independently disciplined a faculty member
or effectively recommended such action. Moreover, only four
of the nondean program directors have faculty reporting to
them.
Based on the record before me, I am unable to conclude
that nondean program directors are managers by virtue solely
of their duties and responsibilities as program directors.
Turning now to the managerial status of nondean faculty,
I note that faculty comprise a voting majority on only the
CAAC, faculty status committee, graduate council, teacher
education committee, and library committee. Of these com-
mittees, faculty are elected to committee membership by the
faculty at large only on the CAAC and the faculty status and
library committees. On the graduate council and teacher edu-
cation committee, faculty are appointed by deans.38
While there are several committees on which faculty com-
prise a minority, it is with the influence of these faculty-
dominated committees that I am primarily concerned in re-
solving the issue of faculty’s managerial status. Decisions or
recommendations made by committees only a minority of
whose members consist of faculty representatives cannot be
said to be faculty decisions or recommendations.39 In light
of this rationale, and given that, in any event, the evidence
is insufficient to warrant a conclusion that effective rec-
ommendations in key academic areas emanate from UGF
committees on which faculty are a minority, I shall not rely
upon the roles of these committees in reaching a determina-
tion on managerial status.
No party contends that the committees on which faculty
constitute a majority are other than advisory in nature, hav-
ing the authority only to recommend. The controlling issue,
then, is whether these committees ‘‘effectively’’ recommend
policy or action. With respect to the library committee, grad-
uate council, and teacher education committee, the record
evidence is insufficient to support a conclusion that nondean
faculty members on these committees effectively recommend
or otherwise exercise managerial authority. Thus, while the
record is replete with evidence that these committees make
recommendations in critical academic areas, the record is
vague or silent as to whether such recommendations gen-
erally and routinely are approved by the administration or
whether those recommendations are independently reviewed
and evaluated by higher administrators.40
In the key area of academic policy and rules, the CAAC
is the committee which recommends such matters as degree
requirements, matriculation and graduation standards, cur-
riculum, and examination and grading policies. These matters
lie at the very heart of the business of the institution.
Seventy percent of the committee’s vote is held by fac-
ulty.41 While Cooper generally testified that in his 2 years
at UGF all faculty recommendations regarding curriculum
have been approved, information was lacking as to the nature
and number of such recommendations; which, if any, of
these were recommendations of the full faculty versus of the
CAAC only; and to what extent, if at all, higher administra-
tors independently reviewed and evaluated such rec-
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96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
42 The exchange between Kottel and Cooper over the core curricu-
lum revisions would tend to indicate that higher administrators re-
view and evaluate faculty recommendations on curricular matters
against the administration’s own opinions and standards and base
their approval or disapproval on the degree to which faculty’s rec-
ommendations are in harmony with the administration’s views.
While I would not make a finding that faculty curricular rec-
ommendations are not effective based solely on the exchange be-
tween Kottel and Cooper, without further detailed testimony on spe-
cific curricular recommendations, I conversely am unable to deter-
mine whether faculty recommendations in this area in fact are effec-
tive.
43 It is unclear whether faculty as a whole generally vote on cat-
egory II changes.
ommendations.42 Thus, Cooper’s general assertion that since
his arrival at UGF, all ‘‘curriculum’’ matters passed by the
faculty have been approved at every step is too vague to per-
mit a meaningful assessment of the actual activities of the
faculty as a whole and/or of the CAAC in this regard. I note,
moreover, that while curriculum is a key academic matter, in
no case have faculty been held managerial solely because of
their participation in recommending curricular matters. In
fact, in Loretto Heights, supra, faculty were found not to be
managers even though faculty approval was required for
major curricular changes, such as the introduction of new
majors, minors, and degrees.
As to key academic matters other than curriculum; the
CAAC and full faculty clearly provide input.43 However, the
Employer failed to establish that faculty recommendations on
such matters, either directly from the CAAC or from the fac-
ulty as a whole, constitute effective recommendations. More-
over, there is evidence that the UGF administration, without
faculty input, unilaterally has established certain academic
rules such as the number of independent studies and Telecom
home studies classes students may take and whether Telecom
home study classes may be counted for residency credit.
There have been instances, also, in which Cooper bypassed
the CAAC to take directly to the full faculty matters which
properly should have been presented first to the committee,
in disregard of the procedures specified in the faculty hand-
book.
As to academic matters not passed through the committee
structure, I note that it is deans, not nondean faculty, who
determine course schedules, approve students for graduation,
and approve student requests for course substitutions, peti-
tions for special consideration, applications for individualized
study, and summer session courses. Nor do nondean faculty
participate in decisions regarding the retention, suspension,
probation or expulsion of students.
Based on the paucity of evidence regarding the frequency
of facultywide votes, the specific matters thereby considered,
and the effectiveness of the resultant faculty recommenda-
tions, I am unable to conclude that faculty as a whole are
managers by virtue of their participation in facultywide de-
liberations.
That faculty and deans together effectively recommend
class size, and that faculty individually decide student grades
within the parameters of the UGF grading system, determine
class absence and cheating policies, and establish course con-
tent and teaching methods used in their own classes does not
compel a managerial finding, as faculty are not to be ex-
cluded as managers based on decisions relating solely to their
own classes and students. Yeshiva, supra. That individual fac-
ulty are called upon to decide questions of accreditation of
transfer courses within their area of professional expertise
likewise does not require a managerial finding. That faculty
approve the academic calendar is not dispositive of the issue.
Thiel, supra at fn. 34.
Although the board of trustees adopted a faculty status
committee recommendation that the teaching load required to
fulfill faculty’s contractual obligations be modified from a
range of 24 to 26 credits to a single standard of 24 credits,
that recommendation was made in 1992 and was more in the
nature of achieving uniformity among faculty. It is unknown
how many faculty actually carried loads in excess of 24 cred-
its prior to the change. Since that time, Cooper unilaterally
implemented a policy prohibiting faculty from teaching in
excess of 24 credits, even if individual faculty members wish
to do so. Moreover, there was no evidence that nondean fac-
ulty assign teaching loads, assign classes, balance class size,
or coordinate work among faculty of a school.
While faculty voted its approval of the recent UGF reorga-
nization into colleges and schools headed by deans, it is un-
clear whether that vote was determinative in effectuating the
change. Although Cooper testified there was ‘‘immense’’
faculty involvement in the development of the new organiza-
tional design, the exact nature and weight of that involve-
ment were not given. It therefore cannot be concluded, on
this record, that faculty determined or effectively rec-
ommended the new faculty structure.
While there is evidence that faculty status committee rec-
ommendations often are followed, these recommendations are
in nonacademic areas, to which the Board accords less
weight in determining whether faculty members are manage-
rial employees. Moreover, many of the recommendations of
this committee are not routinely accepted but rather are inde-
pendently reviewed and evaluated, particularly by the pro-
vost, as they travel up the administrative hierarchy. Where
the provost strongly has opposed a faculty status committee
recommendation, higher administrators have approved the
provost’s recommendation over that of the committee. Addi-
tionally, the provost has taken such action as terminating
nonadjunct faculty without consulting with this committee, in
apparent disregard of the established procedures. Sabbatical
requests not first approved by the dean will not be granted.
While the faculty status committee may and does establish
subcommittees to develop proposals in a number of impor-
tant areas, such as revisions to the faculty handbook and
governance, no evidence was provided demonstrating that
recommendations emanating from these subcommittees and
accepted by the faculty status committee constitute effective
recommendations.
With respect to hiring, nondean faculty sit on search com-
mittees for faculty positions, although they do not constitute
a majority on such committees. Moreover, Cooper interviews
and evaluates finalists as well. Cooper described his role as
being independent of the search committee and equally sig-
nificant in terms of judging the candidates. As nondean fac-
ulty do not constitute a majority on the search committees
and as Cooper clearly does not accept the recommendations
of these committees without independent review and evalua-
tion, I cannot conclude that nondean faculty effectively rec-
ommend faculty hiring.
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97UNIVERSITY OF GREAT FALLS
44 The Employer would point to the recent interim evaluation re-
port done on UGF by the Northwest Association of School and Col-
leges, UGF’s accrediting agency, as support for its assertion that fac-
ulty’s role in curriculum and governance matters is managerial.
However, I note that the comments contained in that report are far
too general to constitute proof of the matter before me. Thus, for
example, the comment that core curriculum proposals by various fac-
ulty members are being studied is not dispositive of the faculty’s
role in formulating or recommending that curriculum. Nor is the re-
port’s language regarding faculty in governance any more helpful in
analyzing the faculty’s role under the Board’s standards.
There is no question that faculty play a role in the selec-
tion of the president and academic vice president/provost.
However, the record did not specify the number of nondean
faculty on the most recent search committees for these posi-
tions and so it cannot be determined whether their voice was
determinative in reaching a recommendation. Moreover, the
record did not establish whether the presidential search com-
mittee recommended Gilliard, the person hired for the posi-
tion. While the search committee for the provost/academic
vice president position did recommend Cooper’s hire, the
president accepted that recommendation only after independ-
ently interviewing candidates for the position.
While faculty sat on the.search committee for a nonfaculty
student services position, the proportion of faculty was not
given. Moreover, in that case, the vice president of student
services rejected the search committee’s recommendation and
hired the one applicant who the search committee unani-
mously agreed was not suitable for the position.
While faculty clearly participate in the hiring process, it
cannot be concluded, based on this record, that nondean fac-
ulty effectively recommend hiring. Nor does the record evi-
dence support a conclusion that nondean faculty determine or
effectively recommend budget, salaries, or tuition.
I note that deans, whom I have found to be managers,
teach courses in particular disciplines and possess the ‘‘pro-
fessional expertise’’ indispensable to the formulation and im-
plementation of academic policies. The provost also holds
faculty rank, and while he does not teach, he clearly is relied
upon by higher administration for his expertise in academic
matters. There is thus a group apart from nondean faculty
who possess the requisite professional expertise in academic
areas and upon whom the administration may, and does, rely
in formulating and implementing policy.
Even though faculty members, either through committees
or as a whole, are empowered to make recommendations in
many areas, the evidence is insufficient to warrant a conclu-
sion that these recommendations effectively control or imple-
ment employer policy to an extent that would require exclud-
ing nondean faculty from coverage under the Act as manage-
rial employees.44 I cannot conclude, on the record before me,
that faculty as a whole, or even those faculty who sit on
committees, are aligned with management as contemplated
under Yeshiva.
Accordingly, as the Employer has failed to meet its burden
of demonstrating that nondean faculty exercise managerial
authority as contemplated under Yeshiva and subsequent
Board cases, I find that nondean faculty are not managers.
With respect to nondean program directors, including the
computer laboratory manager, the record evidence is too
vague and ambiguous to support a conclusion that they are
managers by virtue solely of their responsibilities as program
directors. As there has been no showing that nondean pro-
gram directors otherwise should be treated differently from
nondean faculty whom I have found nonmanagerial, I shall
include nondean program directors and the computer labora-
tory manager in the unit.
As I have found deans to be managerial employees, it
would be inappropriate to grant the Employer’s request that
they be included in the unit of nondean faculty. Accordingly,
I shall exclude deans from the unit.
There are approximately 41 employees in the unit.
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