Yeshiva University

National Labor Relations Board - Board Decisions

Dec 5, 1975

221 N.L.R.B. 1053 (N.L.R.B. 1975)

YESHIVA UNIVERSITY
Yeshiva University and Yeshiva University Faculty
Association , Petitioner . Case 2-RC-16662
December 5, 1975
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Clifford P.
Chalet. Pursuant to Section ' 102.67 of the National
Labor Relations Board Rules and Regulations, Series
8, as amended, and by direction of the Regional
Director for Region 2, this case was transferred to
the National Labor Relations Board for decision.
Thereafter, the Employer and the Petitioner filed
briefs in support of their respective positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. Yeshiva University, also referred to herein as
the Employer or the University, is a private institu-
tion of higher education chartered under the laws of
the State of New York. Its offices and educational
facilities are located on four campuses in New York,
New York.' During the past year the University
derived gross income in excess of $1,000,000 from
sources other than donations and restricted contribu-
tions . At least $50,000 of this income was derived
directly from sources located outside the State of
New York. Based on the foregoing stipulated facts,
we find that the Employer is engaged in commerce
i The University is composed of 12 schools and colleges and a number of
programs. These are as follows Yeshiva College , Bernard Revel Graduate
School (whose summer session is known as the Harry Fischel'School),
James Stnar School of General Jewish Studies , Wurzweiler School of Social
Work , Stern College for Women , Erna Michael College for Hebraic Studies,
Teachers Institute for Women, Ferkauf Graduate School of Humanities and
Social Sciences, Belfer Graduate School of Science , Albert Einstein College
of Medicine , Sue Golding Graduate School of Medical Sciences, Rabbi
Isaac Elchanan Theological Seminary, Community Service Division,
Cantonal Training Institute, Sephardic Studies Program , Yeshiva Program,
and Sephardic Community Action Program.
Y The Employer took the position that the Petitioner and its component
bodies, the Faculty Associations of the Belfer Graduate School of Science,
the Ferkauf Graduate School of Humanities and Social Sciences , and the
Yeshiva College , were formed by supervisory employees of the University
thereby taking the organization outside of the definition of a labor
organization as stated in the Act However , it is clear from the record that
the Petitioner is an organization "in which employees participate" and
which exists for the purpose of bargaining collectively with the Employer
The Petitioner thus meets the definition of " labor organization" set forth in
221 NLRB No. 169
1053
within the meaning of the Act, and it will effectuate
the policies of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.2
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The Yeshiva University Faculty Association
herein referred to as the Petitioner or YUFA seeks to
,represent a unit including all faculty appointed to the
University in the titles of professor, associate
professor, assistant professor, instructor with a full-
time teaching load or the equivalent, excluding part-
time faculty, lecturers, faculty of the Albert Einstein
College of Medicine, the Sue Golding Graduate
School of Medical Sciences, the Yeshiva High
School, the Rabbi Isaac Elchanan Theological
Seminary, the Cantonal Training Institute, the
Community Service Division, the Sephardic Commu-
nity Activities Program, the James Stnar School, the
Teachers Institute for Women, and the Sephardic
Studies Program, librarians, research associates,
research assistants, visiting faculty whose employ-
ment at the University is for a fixed 1-year period
and who are faculty members at another academic
institution, emeritus faculty who are not actively
engaged in teaching at the University, faculty whose
initial and subsequent appointment is subject to
special funding derived in the main from nonuniver-
sity funds, deans and acting deans, directors, the
Registrar, and other officers of the University.3
The Employer initially takes the position that all
faculty members of the University are managerial or
supervisory personnel and are therefore not employ-
ees within the meaning of the Act. In the alternative,
the Employer seeks a unit of all full-time and regular
part-time faculty members.4 The Employer would
exclude from this unit as managerial and/or supervi-
sory, department chairmen and their concomitants,
Sec 2(5) of the Act Further, it is clear that the Petitioner was organized
primarily by faculty found, infra, to be nonsupervisory employees The
participation in the organizational effort by three principal investigators,
found to be supervisors, infra, does not remove Petitioner from the
definition of a labor organization in light of substantial employee
participation in the Petitioner Directors Guild ofAmerica, inc (Association
of Motion Picture & Television Producers, Inc), 198 NLRB 707 (1972) We
also note that questions relating to showing of interest are not litigable in
representation proceedings Tappan Division of Tappan Incorporate4 193
NLRB 989 (1971)
3 At the close of the hearing, the Petitioner indicated that it did not seek
to represent faculty at the University 's Teachers Institute for Women , herein
referred to as Teachers, inasmuch as the professors at Teachers labeled
"full-time" by the University do not hold faculty appointments but are
actually part- time faculty
Under the University's definition, part -time (that is, half the normal
full-time load of 12 hours ) would include the faculty members teaching at
least 6 hours in the sEmester in which the election is held and in both
semesters of the preceding 3 academic years
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members of the University's committee on academic
priorities and resource allocation and the faculty
review committee, assistant deans, principal investi-
gators of research and training grants, faculty who
have as of date of the election, received notice that
their appointment will be terminated or will not be
renewed , have notified the University that they
intend to resign, or have reached the University's
mandatory retirement age. The Employer would not
exclude, as would the Petitioner, full-time faculty
whose appointments are subject to funding from
research grants or from other nonuniversity sources,
faculty with the rank of "lecturer," and faculty at
Teachers. The Employer does not disagree with the
other exclusions sought by the Petitioner.
In contending that no faculty bargaining unit can
be appropriate because all faculty members-by
virtue of their group participation in faculty gover-
nance-are supervisory or managerial and are,
thereby, not employees within the meaning of the
Act, the Employer requests that the Board reconsider
its previous decisions on this issue.5 The Employer
urges, further, that, in any event, the Board reach a
contrary result herein on the ground that this
particular faculty has authority which is different
from and more extensive than the authority vested in
the faculties which were the subjects of the earlier
cases.
We find from our examination of the record,
however, that the role and authority of the faculty
herein with respect to hiring, promotion, salary
increases , the granting of tenure, and other areas of
governance are not significantly different from what
they were in the cited cases,6 wherein the same
arguments were rejected. At Yeshiva University,
faculty participation in collegial decision making is
on a collective rather than individual basis, it is
exercised in the faculty's own interest rather than "in
the interest of the employer," 7 and final authority
rests with the board of trustees. As in the earlier
decisions , we find that the faculty members are
professional employees under the Act who are
entitled to vote for or against collective-bargaining
representation.
5 Northeastern University, 218 NLRB No 40 (1975), University of Miami,
213 NLRB 634 (1974), Adelpht University, 195 NLRB 639 (1972). Fordharn
University, 193 NLRB 134 (1971), and C W Post Center of Long island
University, 189 NLRB 904 (1971)
6 See fn 5 , supra See also New York University, 205 NLRB 4 (1973)
r Sec 2(I I) of the Act
B The Employer argues that application of the factors relied on by the
Board in New York University requires the inclusion of regular half-time
faculty members here However, while there is some involvement of part-
time faculty in issues of curriculum and standards in the Jewish Studies
Programs , for the most part the part-time faculty, by both regulation and
practice, play a significantly lesser role in student and faculty affairs at the
University than do full-time faculty The record herein amply demonstrates
a lack of mutuality of interest between the part-time and full-time faculty at
Yeshiva University similar to that requiring exclusion of part-time faculty in
Unit Composition
Part-time faculty- The Petitioner would exclude,
while the Employer would include, part-time faculty
members. For the reasons set forth in our decisions
in New York University, supra,s and University of San
Francisco, 207 NLRB 12 (1973), we shall exclude
part-time faculty from the bargaining unit found
appropriate herein.9
Members of committee on academic priorities and
resource allocation and faculty review committee. The
Employer contends that members of these commit-
tees have substantial managerial and supervisory
powers and must, therefore, be excluded from the
unit. The record, however, demonstrates that the
faculty members on each of the two committees are
elected by the faculty and serve as representatives of
the faculty rather than of management. As we have
found, supra, authority exercised by the faculty as a
group on the basis of collective discussion and
consensus is not sufficient to render the individual
members of such group supervisors within the
meaning of the Act.10 We therefore find that the
several members of the two above-named commit-
tees are not supervisory or managerial representa-
tives of the University, and we shall include them in
the bargaining unit.
Department chairmen, division chairmen, and senior
faculty: The Employer contends that the department
chairmen and their concomitants are managerial
and/or supervisory employees and, as such, must be
excluded from the bargaining unit. The Petitioner
asserts that the department chairmen and senior
faculty do not qualify as supervisory or managerial
and seeks their inclusion in the unit.
As in the University of Miami, supra, department
chairmen are generally appointed by the dean of
their school or college, after consultation with the
departmental faculty concerned-whose recommen-
dation is usually, although not always, followed.
Indeed, at Belfer, Revel, Ferkauf, and Yeshiva
College, the department or division chairmen are
actually elected by the faculty of their respective
departments or divisions. Further, department chair-
New York University and University of San Francisco
9 The record indicates that there are currently no faculty members at
Teachers holding full-time appointments with the University, rather the
faculty listed by Teachers as teaching a full 12-hour load are, in fact, part-
time faculty without University appointment Accordingly, such part-time
faculty members are not eligible to vote in the election However , as there is
no basis for excluding from the unit any full-time faculty members at
Teachers should any such University appointments be made in the future,
faculty at Teachers holding full-time appointments with the University will
be included in the unit As the faculty in the title "lecturer" work part-time,
'employees in that classification are excluded from the unit as part-time
employees
to Adelpht University, 195 NLRB 639, 648 (1972), C W Post Center of
Long Island University, supra
YESHIVA UNIVERSITY 1055
men have been subject to recall several times by their
faculty membership. .
The chairmen have regular faculty appointments
and teach classes . It appears from the record that
they do not receive any extra pay or stipend as
chairmen, but they do have their teaching obligations
somewhat reduced in many cases.
Belfer 's Dean Komar testified that department
chairmen at Belfer recommend faculty salaries to the
dean but such salaries are subject to approval by the
vice president of the University, and individual
faculty members can and have gone directly to the
president of the University to adjust the recommend-
ed figures. The recommendations, arrived at by a
consensus of the department members, as to hiring,
firing, or granting tenure are relayed through the
chairmen.
The dean at Erna Michael testified that when a
new faculty member is needed, he approaches the
"senior professor," if there is one for the subject area
involved, or a number of other faculty people if there
is no senior professor, and asks if they know of
anyone. Another source is letters or requests for
positions received by the dean or "any other of the
well-known members of the faculty." According to
the dean's testimony, if a particular application looks
good or if a faculty member has someone in mind,
the dean asks the faculty member to interview the
person in question; about 50 percent of the time the
dean also participates in the initial paper screening
and sometimes participates in the interviews.
Rabbi Besdin, Director of Striar, testified that the
two department chairmen were chosen with the
consensus of faculty and that other faculty, as well as
department chairmen, may play a consultative role
regarding hiring.
The testimony of Dean Gittler of Ferkauf indicates
that recommendations on hiring come from the
consensus of the department through the chairman.
Wurzweiler has no "chairmen" or "senior profes-
sors." The Employer argues that the convenors, the
chairman of the admissions committee, the field
instruction coordinator, and the ' chairman of the
doctoral committee perform many of the supervisory
and managerial duties of the school. The record
indicates that the primary duties of these personnel
involve, respectively, coordination of teaching ap-
proaches in each division, direction of students'
admission , selection of social agencies for placement
of students (a responsibility delegated by the faculty),
and establishment ofrequirements for the doctorate
degree.
Rabbi Landman of Revel testified that the depart-
ment chairman 's recommendations on the hiring of
full-time and part-time faculty members appear to be
arrived at by consensus of the department faculty.
The testimony of Dean Mirsky of Stern indicates
that he has consulted with Stern's chairmen and
generally obtained the approval of the department
chairmen before submitting recommendations to the
president with regard to the hiring of new employees
and the reappointment of faculty. Dean Mirsky has,
however, acted contrary to a department chairman's
recommendation, and the chairmen do not have the
authority to effectuate a reappointment denied by
the dean.
According to Dean Bacon of Yeshiva College, the
division chairmen, who are elected by the faculty of
the particular division, make up the advisory council
to the dean. Collectively they deliberate and recom-
mend, through the chairman of the division involved,
action on such matters as promotions and sabbati-
cals. The senior faculty at Yeshiva College, faculty
members with the most seniority in each subject
area,'1 review applicants for faculty positions and
recommend the most outstanding to Dean Bacon,
who makes an independent review of the applicants'
qualifications before referring such recommenda-
tions to the president.
As with the final authority to appoint and
reappoint, exclusive authority for the granting of
tenure is vested in the president. The record does not
indicate that department chairmen play a significant
role in this process. The departments at Belfer
collectively make tenure recommendations which
Dean Komar passes on to the president; the dean at
Wurzweiler, individually, makes the recommenda-
tions to the president. At Ferkauf, a council of all
tenured faculty, considers award of tenure, but the
dean chairs the council and retains, and has
exercised, veto power over its recommendations.
The Board has considered many factors in deter-
mining whether department chairmen should be
included in a unit of faculty. One of the crucial
factors is the role of the chairmen in faculty
personnel decisions such as hiring, firing, and other
changes of status. In appropriate cases where the
chairman's authority has been effectively diffused
among the department faculty pursuant to the
principle of collegiality, the Board has included the
chairmen.12 The record in the present case demon-
strates that the department chairmen, division
chairmen, and senior faculty at Yeshiva fall within
this qualification.
On the record before us, it appears that, although
they have certain formal responsibilities with respect
to decisions on such matters as appointment,
promotion, and tenure, the department chairmen and
11 The subject areas at Yeshiva College are organized in broad 12 Northeastern University, supra
"divisions."
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their concomitants act primarily as instruments of
the faculty in these matters. The department chair-
men, in these respects, therefore stand largely on the
same footing as the faculty, from whom they receive
their authority. All major recommendations, includ-
ing hiring, appear to be done on a collegial basis.
Further, as previously noted, the department chair-
men at Yeshiva receive no additional remuneration
for assuming the position of chairman.
Accordingly, we find that the department chair-
men,, division chairmen, and senior faculty are
neither supervisors nor managerial employees and
shall include them in'the unit.13
Assistant deans: The Petitioner seeks to include in
the unit the. two assistant deans, Patt at Belfer and
Wischnitzer at Yeshiva 'College. The Employer
would exclude them as supervisory and/or manageri-
al. It does not appear from the record that' they are
ever delegated the supervisory authority possessed by
the deans under whom they serve.14
Both of the assistant deans hold faculty appoint-
ments, are paid in the faculty classifications, and
fulfill teaching responsibilities within the academic
departments with which they are affiliated. Further,
the assistant dean at Belfer has been elected by the
faculty to serve as faculty representative on several
committees.
Based' on the foregoing we find that the assistant
deans are neither supervisors nor managerial em-
ployees.15 Accordingly, we shall include them in the
bargaining, unit herein.16
Terminal faculty members: As noted, supra, the
Employer seeks to exclude faculty resignees, termi-
nees, and retirees.17 Petitioner seeks inclusion of
these faculty members. The Employer, recognizing
that in previous university cases the Board has
uniformly included such employees in faculty bar-
gaining units , 18 urges the Board to reconsider its
holding on this issue . After due consideration, we
have decided to adhere to our longstanding position
with regard to terminal employees, since while their
employment continues they have a substantial
community of interest with their colleagues. There-
fore, faculty members' who have received notice that
13 Northeastern University, supra, Fordham University, 214 NLRB No 137
(1974): University of Miami, supra; New York University, supra
14 Although Dean Komar testified that Assistant Dean Patt "replaces"
him during Komar's absences , there is no testimony indicating that during
such time Patt was empowered to make any determinations with regard to
hiring, firing, promotions, tenure, or any other change in status or to
exercise any other supervisory or managerial function.
15 University of Miami, supra
16 Chairman Murphy is of the view that the record m this case is
insufficient to make a determination as to whether the assistant deans are
supervisors within the meaning of the Act Accordingly, the Chairman
would vote the two assistant deans by challenged ballot.
17 Upon notice of resignation or termination , the full-time faculty
member is expected to continue his employment through and until the end
of the academic year. Further, terminations may be appealed, and a faculty
their appointments will be terminated or will not be
renewed, have notified the University that they
intend to, resign, or have reached the University's
mandatory retirement age will be eligible to vote in
the election herein provided that they are still
employed as faculty members at the time of the
election.
Principal investigators: The Petitioner seeks to
include in the unit principal investigators. The
Employer argues that they possess supervisory and
managerial authority and must be excluded.
Principal investigators are faculty members who
prepare grant proposals and administer the projects
once funds have been awarded by government or
private agencies.
The principal investigator is responsible, subject
only to approval of the deans and University
administration, for the hiring of full- time and part-
time members of the Yeshiva faculty, research
associates , research assistants , clerical and other
support personnel for work on his project. The
record shows that the principal investigator prepares
the budget for a grant and sets salaries within broad
University guidelines. The record also demonstrates
that the principal investigators have the authority to
reprimand and terminate the services of all grant
employees. Day-to-day supervision of grant employ-
ees is also carried out solely by the principal
investigator.19 The principal investigator adjusts the
complaints and grievances of the' grant employees.
As in Northeastern University, supra, all of the
employees who work on grants and contracts under
the direction of a principal investigator are employ-
ees of the University and not of the granting agency.
These employees are paid by Yeshiva and receive the
fringe benefits available to other employees. Yeshiva
makes payroll deductions for grant employees similar
to the deductions made for other employees.
In the instant case, as in Rensselaer Polytechnic
Institute,20 the employees supervised by the principal
investigators are employees of the University, and,
therefore, the principal investigators herein are
supervisors in their relationship to their Employer.21
Therefore, we find them to be supervisors within the
member may continue beyond the retirement age on a year -to-year basis
with the president's permission.
18 See Fordham University, supra, New York University, supra, Manhattan
College, 195 NLRB 65 (1972)
19 While it is difficult to determine the amount of time actually spent by
the principal investigators in grant supervision , the University allocates 50
percent of a principal investigator 's time for administration of grants.
Further, testimony indicates that ' "absolutely more than half of the time"
has been spent by a principal investigator in the supervision of nonunit
employees.
20 218 NLRB No. 220 (1975).
21 In Fordham, supra, and New York University, supra, the principal
investigators were found not to be supervisors in their relationship to their
employers and were included in the unit . However, in both cases, the
YESHIVA UNIVERSITY
meaning of the Act and exclude them from the unit
found appropriate herein.
Full-time faculty whose appointment is subject to
special funding and derived from non- University funds:
Contrary to the Employer, the Petitioner would
exclude the two faculty members who have been
hired primarily to perform research activities under a
research grant.
Although listed by the University as full-time
faculty (one under the title "Research Assistant
Professor") neither of the two faculty members in
this category have appointment letters from the
president, and they are' ineligible for tenure, sabbati-
cal leave, or other perquisites enjoyed by full-time
faculty. Further, it appears that their salaries are
determined under the grant proposals upon which
their employment is dependent.
Under these circumstances, it appears that these
two faculty members whose appointment is subject
to special funding have a community of interest with
the research associates and research assistants,
stipulated out of the unit by the parties, rather than
with the appointed full-time faculty herein. Accord-
ingly, we shall exclude them from the unit.
In accordance with the above, we find that the
following unit is appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
1057
All full-time faculty members appointed to the
University in the titles of professor, associate
professor, assistant professor, instructor, or any
adjunct or visting thereof, department chairmen,
division chairmen, senior faculty and assistant
deans, but excluding faculty at Albert Einstein
College of Medicine, Sue Golding Graduate
School of Medical Sciences, Yeshiva High School,
Rabbi Isaac Elchanan Theological Seminary,
Cantorial Training Institute, Community Service
Division, and Sephardic Community Activities
Program; part-time faculty; lecturers; principal
investigators; deans, acting deans and directors;
faculty whose initial and subsequent appointment
is subject to special funding derived in the main
from non-University funds or whose initial or
subsequent appointment is in connection with
special projects; the Registrar; visiting professors
(with effective faculty appointments at other
academic institutions); 'librarians; research assist-
ants; research associates; emeritus faculty not
actively engaged in teaching at the University;
officers of the University; all other administrative
and support personnel; guards, and supervisors as
defined in the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
employees hired by them were not and did not become employees of the
university.