Operations In Fiscal Year 1988 - National Labor Relations Board

52 Fifty-Third Annual Report of the National Labor Relations Board"employees" within the meaning of the Act, citing Lewis University."The Board stated that clarification was appropriate evenabsent evidence of any change in faculty duties since the unit'sformation. Second, the Board noted that, although the Board haddismissed clarification petitions filed midway through the term ofan agreement, the Board had entertained such petitions whenthey were filed shortly before the agreement's expiration as theparties were preparing for negotiations. Because the University'spetition was filed just about 3 months before negotiations for anew collective-bargaining agreement were to begin, the Boardfound it appropriate to process the petition.The majority, consisting of Chairman Stephens and MemberBabson, held that Dubuque faculty members were managerialemployees and should be excluded from the bargaining unit. Indoing so, the majority applied the Court's holding in Yeshivas°and noted that the Court in Yeshiva focused primarily on whetherfaculty members, though they may not have absolute authorityin academic matters, play a major and effective role in theformulation of academic policy. The majority stated that underYeshiva it is the faculty members' participation in the formulationof academic policy that aligns their interest with that of management.The majority cited the Dubuque faculty's exclusive rightto set general student grading and classroom conduct standardsand degree requirements, recommend earned-degree recipients,"initially receive, and consider" new degree requirements, anddevelop, recommend, and ultimately approve curricular contentand course schedules, admission standards, student retention, thedistribution of financial aid to students, and the modification ofprograms or departments. Because Dubuque faculty membershad substantial authority in formulating and effecting policies inthe academic area, the majority concluded that they were managerialemployees.Although of less significance to a determination of the faculty'smanagerial status, the majority also noted that the Dubuquefaculty could effectively recommend discretionary actions withrespect to the implementation of university policy in nonacademicareas—e.g., budget matters, capital improvements, the promotionand tenure of faculty members, dismissals for cause and nonrenewalof contract for probationary employees, the granting ofleave, and the distribution of funds for faculty development.Thus, the majority concluded that the Dubuque faculty played asignificant role in the operations of the university.Member Johansen dissented, fmding the Dubuque facultymembers to be statutory employees. Member Johansen foundDubuque to be a school "unlike Yeshiva" because Dubuque facultymembers exercised authority in only five areas, areas in29 265 NLRB 1239 (1982), revd. on other grounds 765 F.2d 616 (7th dr. 1985)."444 U.S. 672 (1980).