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May 25, 2016 - degrees in 63 subject areas and master's degrees in 36. ..... who can be admitted to the Psychology gradu
UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD FOURTH REGION

MARYWOOD UNIVERSITY Employer Case 04-RC-173160 and MARYWOOD UNIVERSITY FACULTY ASSOCIATION a/w PENNSYLVANIA STATE EDUCATION ASSOCIATION Petitioner

REGIONAL DIRECTOR’S DECISION AND ORDER This case presents two issues: (1) whether the Board should decline to assert jurisdiction over a unit of university faculty members due to the university’s religious affiliation; and (2) whether, assuming jurisdiction is asserted, the petition should nonetheless be dismissed because the faculty members are managerial employees excluded from the categories of employees entitled to the benefits of collective bargaining under the National Labor Relations Act. The Employer, Marywood University, is a liberal arts university located in Scranton, Pennsylvania. Petitioner, the Marywood University Faculty Association a/w Pennsylvania State Education Association, seeks to represent a unit of all full-time and pro-rata faculty employed by the Employer, including professors, associate professors, assistant professors, and instructors.1 The Employer contends that the Board should decline to assert jurisdiction over this unit because of the University’s religious affiliation. The Employer also asserts that the petition should be dismissed because the proposed unit of faculty members is composed entirely of managerial employees. A Hearing Officer conducted a hearing in this matter, and the parties submitted briefs. As explained in greater detail below, I find that jurisdiction could appropriately be asserted over the Employer’s faculty despite its religious affiliation. Agreeing with the Employer, however, I conclude that the faculty qualify as managerial employees, and I shall therefore dismiss the petition. 1

The parties agreed at the hearing that this unit was appropriate. They also agreed that, if a representation election is ordered, 23 faculty members who were either retiring or scheduled for layoff should vote under challenge.

I.

OVERVIEW

As of 2014, the Employer had approximately 3,100 students and offered bachelor’s degrees in 63 subject areas and master’s degrees in 36. The University is divided into four colleges, the Reap College of Education and Human Development, the Insalaco College of Creative and Performing Arts, the College of Health and Human Services, and the Munley College of Liberal Arts and Sciences. It also has a School of Architecture. The Employer employs about 168 full-time faculty members. There are also 17 pro-rata faculty members, who teach less than full-time course loads. The Employer also employs a number of adjunct faculty who the parties agree should be excluded from the bargaining unit. The Employer identifies as a Catholic university. It was founded in 1915 by a Roman Catholic Order, the Sisters, Servants of the Immaculate Heart of Mary (the Order), and continues to be sponsored by the Order. The Employer operates as a non-profit corporation with the members of the corporation consisting of the President of the Order and her Council. The members of the corporation select a Board of Trustees, which exercises control over the University’s operations, although some of its decisions must be approved by the members of the corporation. The Board of Trustees consists of between 10 and 35 individuals and must include at least some members of the Congregation of Sisters and some alumni, although the corporate by-laws do not specify how many Sisters and alumni must be on the Board. The Board selects a President who serves as the Employer’s Chief Operating Officer. Throughout the Employer’s existence, the President has always been a Sister of the Order. Reporting to the President are four Vice Presidents, two Associate Vice Presidents, the Secretary of the University, and the General Counsel. Employees are generally assigned to one of four Areas – Academic Affairs, Business Affairs, University Advancement, and Enrollment Services and Student Success. Faculty are part of the Academic Affairs area, which is managed by the Vice President for Academic Affairs. Five Deans, three Directors, and the Assistant Vice President for Research and Sponsored Programs report to the Vice President for Academic Affairs. Reporting to the Deans, Directors, and Assistant Vice President are a number of Department Heads who are normally selected by department faculty. The Department Heads are included in the bargaining unit being sought by Petitioner. Only full-time faculty members normally serve as Department Heads, and faculty in a department sometimes rotate through the job. The Employer has a “shared governance” organizational structure under which administrators, faculty, and other employees serve on committees which advise management on various issues. There are approximately 40-41 standing committees, and ad hoc committees are appointed from time-to-time. Faculty members serve on 38-39 of the standing committees. Membership in most of the committees is open to both full-time and pro-rata faculty as well as to faculty that are either tenured or non-tenured. Assignments to many committees are by election of the faculty although faculty are appointed in some cases. Faculty committee assignments are 2

mostly limited in time, and faculty rotate through the committees. Faculty members constitute a majority of some committees and a minority of others. In addition to service on committees, faculty members can be elected to the Faculty Senate, which advises management on faculty-related issues. The Faculty Senate consists of three representatives chosen by the faculty in each of the four Colleges, one representative selected by faculty in the School of Architecture, one librarian, and four at-large faculty members. A President, who must be tenured, is chosen from among the representatives serving as senators.2 II.

JURISDICTION A.

BOARD LAW

The Board is barred from asserting jurisdiction over faculty at religiously-affiliated schools if doing so would create a significant risk that First Amendment religious rights would be infringed. NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). In Pacific Lutheran University, 361 NLRB No. 157 (2014), the Board announced a two-part test for making these determinations. Under this test, the Board will find jurisdiction unless (1) the university or college demonstrates that it holds itself out as providing a religious educational environment; and (2) that it holds out the petitioned-for faculty members “as performing a specific role in creating or maintaining the school’s religious educational environment.”3 Id., slip op. at 5 In this case, the parties stipulated that the Employer meets the first part of this test, i.e., that it holds itself out as providing a religious educational environment. Therefore, the only issue concerning jurisdiction is the question of whether the Employer also holds out its faculty as performing a specific role in creating or maintaining that environment. The Board has indicated that the focus of this inquiry is on whether the assertion of jurisdiction would produce a significant risk of infringement on a university’s religious beliefs and practices. Where faculty play a significant role in creating and maintaining a school’s religious environment, assertion of jurisdiction could produce conflicts between school management and the Board, which might raise First Amendment concerns. If faculty are not expected to perform a specific role in fostering a religious environment, on the other hand, the possibility of excessive governmental entanglement in religious belief is minimized. Id., slip op. at 7-8. In assessing the faculty’s role, the Board seeks to avoid entanglement issues by focusing solely on how a school describes faculty responsibilities; it does not probe the actual duties 2

In addition to the Faculty Senate, the University has Professional and Support Staff Senates which also advise management. 3 The Employer argues in its post-hearing brief that the Pacific Lutheran standard is inappropriate and urges me to apply the less stringent test for determining jurisdiction used by the United States Court of Appeals for the DC Circuit in Carroll College, Inc. v. NLRB, 558 F.3d 568 (D.C. Cir. 2009), and University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002). As I am bound by Board law, I decline to consider the Employer’s suggestion. 3

performed by faculty. The question is how the faculty’s role is characterized in school communications to current or prospective students, to the faculty, and to members of the general public. The Board will not look behind a school’s description of faculty responsibilities to determine whether the description accurately describes what faculty members actually do. Id. at 8. To justify a refusal to assert jurisdiction, however, a school must hold faculty out as performing a specific religious function. Generalized statements suggesting that faculty are expected to support university goals or missions are not sufficient since such statements do not indicate that, “faculty members are expected to incorporate religion into their teaching or research, that faculty members will have any religious requirements imposed on them or that the religious nature of the university will have any impact on their employment.” Id. Jurisdiction will be declined only where a university’s representations suggest that faculty members are expected to integrate the school’s religious teachings into coursework, serve as religious advisors to students, engage in religious training, or conform to religious doctrine in ways specifically linked to their job duties. Id. at 9. B.

FACTS

The Employer’s faculty members are not expected to be members of the Roman Catholic faith. The faculty are not obliged to provide Catholic religious training or to serve as religious advisors to students. Prior to being hired, new faculty members meet with Sister Catherine Luxner, the Director of Campus Ministry. She tells applicants that when dealing with controversial topics, the Employer expects they will present the Catholic viewpoint. There is, however, no evidence that faculty members are required to suggest that the Catholic viewpoint is superior or correct. Other than these comments to applicants for employment, there is no indication that faculty members are told they must incorporate Catholic religious teachings into coursework except to the extent that the Religious Studies Department offers a handful of courses specifically dealing with Catholicism. The Faculty Handbook includes a provision that emphasizes the University’s commitment to academic freedom. According to the Handbook, Catholic tradition, “posits freedom of inquiry, open discussion, and unrestricted exchange of ideas as essential to the pursuit of knowledge.” The University “accepts the responsibility of protecting both teacher and student from being forced to deny truth that has been discovered or to assert claims that have not been established in [their] discipline” and gives faculty “freedom in the classroom in discussing their subject.” Like faculty, students are not required to be Catholic, and a pamphlet distributed by the University in an effort to recruit students emphasizes that it is “a community where all faiths and backgrounds are warmly welcomed.” Between 2008 and 2013, the percentage of students who self-identified as Catholic in campus surveys ranged from 51 to 58 percent. The Employer requires all students to take a “core curriculum,” which includes a course titled “Modern Belief” and one other course in religious studies. According to the Undergraduate Catalog, “Modern Belief” is “an introduction to religious belief in general and Christian belief in particular.” Students are not obliged to take any courses dealing specifically with Catholic doctrines. 4

A chapel is located on the campus, and Roman Catholic services, organized by the Department of Campus Ministry, are held there. Chapel attendance is voluntary. The University’s Mission Statement is as follows: Marywood University, sponsored by the Congregation of the Sisters, Servants of the Immaculate Heart of Mary, roots itself in the Catholic Intellectual tradition, the principle of justice, and the belief that education empowers people. The University integrates an enduring liberal arts tradition and professional disciplines to create a comprehensive learning experience. Our undergraduate and graduate programs promote academic excellence, advance innovative scholarship and foster leadership in service to others. Within a welcoming and supportive community, Marywood challenges individuals of all backgrounds to achieve their full potential and make choices based on spiritual and ethical values. Marywood University prepares students to seek sustainable solutions for the common good and educates global citizens to live responsibly in an interdependent world. The following are the University’s Core Values: Catholic Identity. The pursuit of truth, goodness, beauty, justice and the common good within the context of the Catholic Faith tradition and in dialogue and service with persons of diverse faiths and worldviews. Respect. Honoring the uniqueness and dignity of each human person; demonstrating ethical and just interactions; and caring for the earth and all creation through a commitment to sustainability. Empowerment. Access to education that enables all to achieve their full potential to live as conscientious citizens in a pluralistic society. Service. A commitment to promoting social responsibility which fosters community engagement to meet real needs. Excellence. Manifesting Marywood University’s pursuit of the highest level of achievement in support of ‘Sancitas, Scientia, Sanitas’ (Holiness, Knowledge, Health). . The Employer’s President, Sister Anne Munley, testified that the University’s mission statement and core values are based on the teaching of St. Alphonsus Liguori. The Employer asserts that the faculty plays a significant role in furthering the University’s mission and core 5

values. She testified that the mission and values of both the University and the Order are about empowering students to realize “God-given gifts and potential.” She further stated that the mission statement and core values are the lens through which all University decisions are made. The Associate Vice President for Planning and Institutional Effectiveness, Dr. Kathleen Ruthkosky, indicated that the core values “permeate” the University. They are included in many University publications, and copies are posted around campus. Indeed, first-year undergraduates are required to take a one-credit course designed to familiarize them with the University’s mission and values. The Employer’s values are similar in some respects to values espoused by some nearby non-religious universities whose value statements were introduced into evidence by Petitioner. The values set out in documents from Pennsylvania State University, Wilkes University, and Mansfield University, for instance, include service, excellence, and respect. As President Munley correctly noted, however, the value statements from these non-sectarian institutions make no mention of a “Catholic identity.” There are several documents which make references to the faculty in relation to the mission statement and core values. A portion of the Faculty Handbook, which lists the University’s goals and objectives, for example, states that “employees will demonstrate core values in the work place.” The same admonition is included in both the Undergraduate and Graduate Catalogs. A Code of Conduct included in the Faculty Handbook includes a list of behaviors which might result in disciplinary action. According to this portion of the Handbook, the Employer “expects faculty, administrators and staff to be responsible for supporting and sustaining the University’s Mission and Core Values.” The Handbook Code of Conduct provision also notes that the core values, “promote behavior that seeks to create an environment in which ethical academic and professional conduct, responsible interpersonal engagement, and respect for the safety of all, empower faculty, administrators, and staff in their pursuit of excellence.” The Faculty Handbook contains a provision titled “Catholic Identity,” which declares that “Marywood’s Catholic character imbues the liberal arts curriculum with its emphasis on religious studies” and states that the University’s programs “are infused with the study of ethical, moral and religious values.” According to this portion of the Handbook, the University “exists for the intellectual development of its students in an atmosphere where Catholic Christian values, leadership skills and open respectful dialogue join to nurture fully human persons.” The Handbook states that the University, “welcomes people of all religious and humanistic traditions to participate in this dialogue so as to arrive at truth.” A Handbook policy dealing with tenure also makes mention of the University’s mission and values. According to this provision, faculty seeking tenure must have “demonstrated significant involvement in community service related to the mission, goals or core values of the University” and indicates that an application for tenure suggests “a strong acceptance by [the applicant] of the mission, goals and objectives of the University.”

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As noted above, the Director of Campus Ministry, Sister Catherine Luxner, interviews all applicants for faculty positions. During these interviews, she discusses the University’s Catholic roots and reviews the mission statement and core values, emphasizing that the Employer holds faculty out as demonstrating the values described in the mission statement. In explaining the University’s Catholic identity to applicants, she testified that it is, “not about doctrine or even religious practice as much as it is about the pursuit of truth, goodness, beauty, which for us is where we find God.” Following the interviews, she gives her impression of the applicants to the committee charged with hiring. On one occasion during her approximately 14 years as the Director of Campus Ministry, she told the hiring committee that she did not believe an applicant would be a good fit, and the applicant was not hired. The record does not indicate why she formed that opinion.4 Newly-hired faculty members attend an orientation program. As part of the orientation, Sister Catherine Luxner makes a presentation on “mission integration.” Attendance at this portion of the program is voluntary. The Employer has a Mission Integration Committee which is charged with: “promoting integration of the Marywood mission and core values into the everyday life of the University”; “providing ongoing mission-related orientation to administrators, faculty and staff members and students”; and “participating in orientation of new hires to the mission and core values of the University.” Faculty members participate in this Committee, which sponsors events during the course of the school year including events designed to inform participants about the University’s relationship with its founding Order and about its mission and values. New faculty members are encouraged to attend these events. The faculty members who testified at the hearing generally indicated that the University expected them to further its mission and core values, although they did not view this as promoting Catholicism. Mathematics Professor Dr. Craig Johnson, for instance, believes he furthers the University mission by promoting social justice. English Professor Dr. William Conlogue indicated that he fulfills the University’s mission by selecting texts for his courses that deal with social justice, race, gender, and the environment. Psychology Professor Dr. Brooke Cannon believes she advances the mission and core values by trying to inculcate general values in students such as empowerment and excellence. Religious Studies Professor Sister Mary Ann Zimmer testified that the core values impact how she does her job since they had been part of her value system before coming to the University. The Associate Vice President for Planning and Institutional Effectiveness, Dr. Kathleen Ruthkosky, no longer occupied a faculty position at the time of the hearing, but testified that she felt she was expected to support the University’s mission and values during her previous service in the Education Department faculty. She believes that she furthered the mission and values by treating students with respect in the classroom, making certain they had the opportunity to complete their degrees, and recognizing the value the University places on education. 4

Prior to 2002, applicants for faculty positions were required to write a statement indicating how they would support the University’s mission and values. This practice was apparently discontinued with Sister Catherine Luxner’s appointment as Director of Campus Ministry. 7

Faculty members are required to submit a Faculty Activity Report each year, which is used in evaluating their eligibility for merit wage increases. As part of the report, faculty members are required to include a description of how they demonstrated the University’s core values during the year. Dr. Cannon testified, however, that she has been told by administrators that this portion of the Report is not counted in determining who will receive increases. C.

ANALYSIS AND CONCLUSION

To demonstrate a religious exemption, the Employer was obligated to produce evidence that it holds faculty out as performing a specifically religious function. Pacific Lutheran, supra, slip op. at 8-9. As the Board made clear in Pacific Lutheran, generalized statements that faculty are expected to support an employer’s mission are not sufficient to meet this standard, particularly where the employer also expresses a commitment to academic freedom. The evidence clearly does not meet the standard for exemption; the record does not show that the faculty performs an explicitly religious role. At most, the documents and testimony introduced by the Employer suggest that faculty members are generally expected to support the University’s mission and core values, much of which is expressed largely in non-religious terms, including respect, empowerment, service, and excellence. Even the Catholic Identity value is defined in a way that suggests universal values such as “truth, goodness, beauty, justice and the common good,” terms which also may apply to secular institutions. More critically, the Employer did not produce evidence suggesting that faculty have a specific role in promoting its religious mission and values. To the extent the documents distributed by the University mention any faculty role, they indicate in a general way that faculty are expected to demonstrate or support University values. Similarly, the faculty members who testified described a general expectation that they would support the University’s mission and goals in the course of performing their functions without any suggestion as to how this expectation would require them to incorporate Catholic teachings into their coursework. The requirement that annual Faculty Activity Reports reference the core values was also expressed in general terms; faculty are merely expected to describe how they demonstrated core values during the year. Since the values include goals that are not for the most part described in religious terms, these Reports do not require faculty members to indicate how they furthered Catholic religious doctrine. The only evidence which might suggest that faculty members are expected to perform a specific religious function was provided by Sister Catherine Luxner, who informs applicants for faculty positions that they will be expected to provide students with the Catholic position when presenting controversial issues. But, she did not claim that faculty are obliged to espouse the Catholic viewpoint. Given the University’s support for academic freedom, I find the requirement that faculty mention the Catholic view does not give them a specifically religious role. In short, the record evidence indicates that the faculty are held out as being required to generally support the University’s mission and values, but the Employer did not demonstrate that it communicates to faculty, students, or the general public that faculty have a specifically 8

religious role. I therefore find that the Employer has not shown that Board exercise of jurisdiction over its faculty would be inappropriate. III.

MANAGERIAL STATUS A.

BOARD LAW

In addition to asserting a religious exemption from Board jurisdiction, the Employer contends that the petition should be dismissed because its full-time and pro-rata faculty are managerial employees who are “excluded from the categories of employees entitled to the benefits of collective bargaining under the National Labor Relations Act.” NLRB v. Yeshiva University, 444 U.S. 672, 674 (1980). Individuals are considered managerial if they formulate and effectuate management policies by expressing and making operative the decisions of their employer. NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974). To be deemed managerial, individuals must exercise discretion within, or even independently of, established employer policy and must be aligned with management. NLRB v. Yeshiva University, supra, at 683. An individual is aligned with management if he or she represents “management interests by taking or recommending discretionary actions that effectively control or implement employer policy.” Id. The individual must actually exercise authority; paper authority is not sufficient. Pacific Lutheran University, supra, slip op. at 18. And, to be “effective,” an individual’s recommendations must almost always be followed. Id. The burden of proving managerial status rests on the party seeking to exclude individuals as managers. University of Great Falls, 325 NLRB 83, 93 (1997), affd. 331 NLRB 1663 (2000), revd. on other grounds, 278 F.3d 1335 (D.C. Cir. 2002). Where the status of university faculty is at issue, the Board has indicated that an evaluation of whether they actually exercise control or make effective recommendations requires an, “inquiry into both the structure of university decision-making and where the faculty at issue fit within that structure.” Id., slip op. at 19. In Pacific Lutheran, supra, the Board revised its framework for analyzing the managerial status of university faculty in accordance with the Yeshiva decision. In cases involving the asserted managerial status of university faculty, the Board examines the breadth and depth of the faculty’s authority at the university, with particular focus on “those areas of policy making that affect the university as a whole, such as the product produced, the terms on which it is offered and the customer served.” Id., slip op. at 17. The Board’s review of faculty decision-making is divided into five general areas with three of these areas being viewed as more significant because they are likely to impact the university as a whole. The three more significant or “primary” areas of decision-making are academic programs, enrollment management, and finances. The two less important or “secondary” decision-making areas are academic policy and personnel policy and decisions. Id., slip op. at 17-18. The Board stated that it will examine these factors in the context of the university’s decision-making structure and administrative hierarchy, as well as the nature of the employment relationship of the faculty. Id., slip op. at 14.

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B.

FACTS

1.

Academic Programs

The Board has indicated that this decision-making area covers topics such as the university’s curricular, research, major, minor, and certificate offerings and the requirements for successful completion of those offerings. Pacific Lutheran, supra, slip op. at 17. The Employer’s primary argument in favor of finding managerial status centers on the control faculty arguably exercise through participation in faculty committees. In examining the managerial status of university faculty, the Board will only attribute committee conduct to faculty if they exercise majority control over the committee. Pacific Lutheran, supra, slip op. at 18, fn. 36. The Employer claims faculty control over University academic policy is exercised principally through three Curriculum Committees – the Graduate Curriculum Committee, the Undergraduate Curriculum Committee, and the Undergraduate Core Curriculum Committee. The Graduate Curriculum Committee: reviews proposals and makes recommendations for new graduate programs; approves graduate level curriculum changes including new programs, new courses and substantive modifications of current courses; and examines existing programs and courses to minimize duplication of course content. The Undergraduate Curriculum Committee performs a similar function with respect to undergraduate studies. The University has established a core curriculum of courses which all undergraduate students are required to take, and the Undergraduate Core Curriculum Committee reviews and makes recommendations regarding proposals to change the core curriculum and evaluates courses to determine whether they should be viewed as satisfying core requirements. Both faculty and administrators are included on the Curriculum Committees, and administrators participate in Committee deliberations. However, only faculty can vote on action by these Committees. As a consequence, faculty effectively control Committee recommendations. Where a proposal to alter a program or change a requirement is viewed as particularly significant, the Faculty Senate, or in some cases the entire faculty, will be asked for its recommendation. The University has a policy governing the procedure to be followed when a new academic program is proposed. According to the policy, discussion of the program begins with faculty in the proposing department, who make a presentation to the appropriate Curriculum Committee. If the Committee approves it, the proposal is submitted to the appropriate Dean and then to the Provost and Vice President for Academic Affairs. Assuming the Dean, Provost, and Vice President approve, the matter is submitted for approval to the President of the University, the Academic Affairs Committee of the Board of Trustees, and finally to the entire Board. Nonprogrammatic changes in course offerings and degree requirements approved by the Curriculum Committees are submitted to the Vice President for Academic Affairs or University President for approval. The Employer introduced minutes of five Undergraduate Curriculum Committee meetings, which show the types of issues generally confronted by the Curriculum Committees. During the meetings described by the minutes, departmental faculty members presented 10

proposals to add and delete courses, add minors, and change major and minor degree requirements. In one of the meetings, the Committee recommended approval of proposals from administrators to reduce both the number of credits required for graduation and the number of credits required to receive a degree. The witnesses who testified about Curriculum Committee activities confirmed the picture painted by the minutes as to the issues considered by the Committees. Dr. Conlogue, for instance, reported that the Undergraduate Curriculum Committee approved English Department proposals to create majors and minors in Writing and Journalism. Dr. Cannon described obtaining Committee approval for five or six Psychology courses. Religious Studies professor Sister Mary Ann Zimmer testified that the Curriculum Committees approved a course she suggested and a minor proposed by her department. In each case, the witnesses noted that the proposals adopted by the Committees were eventually approved by University administration. Employer President Sister Anne Munley could not recall any occasion during her eightyear term on which a Curriculum Committee recommendation had not been followed. Dr. Kathleen Ruthkosky, who currently serves as the Employer’s Associate Vice President for Planning and Institutional Effectiveness and previously served on the faculty in the School of Education, was also unable to recall any Curriculum Committee recommendations that had not been adopted. Religious Studies Professor Zimmer, however, reported that when she served on the Core Curriculum Committee, the administration insisted on a reduction in the number of core curriculum credits, leaving the Committee merely to decide which core requirements would be jettisoned. She also indicated that a Committee recommendation to eliminate a language requirement had been rejected. Although the Curriculum Committees deal with most curriculum-related issues, not all action relating to curriculum must pass through the Committees. Departmental faculty determine when courses will be offered and scheduled. They also decide which courses will be considered prerequisites for higher-level offerings. Dr. Ruthkosky reported that faculty in the School of Education determined that student teaching assignments had to be located within 50 miles of the Employer’s campus and rescinded a rule prohibiting students from taking courses while student teaching. Professors can offer “special topics” courses for up to two terms without securing Committee or administration approval. The minimum and maximum numbers of students who can take undergraduate courses are set by the administration. Psychology Professor Cannon indicated that administrators also determine the minimum number of students who must express an interest for a graduate course to be offered, but reported that faculty have control over the maximum number of students in graduate offerings. A faculty recommendation to transform the Department of Business into a School of Business was approved by the Board of Trustees without being vetted by the Curriculum Committees. President Munley explained that the Committees had not been consulted because

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the proposal involved a name change only and did not require any additions to or subtractions from course offerings.5 Petitioner also points out in its brief that administrators have recently taken actions which impact curriculum without securing faculty input. In February 2016, President Munley decided to lay off faculty despite objections from a faculty-dominated Committee on Retrenchment. The layoffs impacted course and degree offerings. In the fall of 2015, the administration and Board of Trustees reacted to financial problems the Employer is experiencing by hiring a consultant to evaluate its operations. The decision to employ the consultant was made without obtaining faculty approval. The consultant has established a procedure under which each department is required to report on its offerings to a task force which will rank them based on their perceived importance. The rankings will then be reviewed by a coordinating committee, which will make recommendations to the Board of Trustees as to the possible elimination of programs. Faculty are included on the coordinating committee but do not constitute a majority. Since the process is ongoing, it is not clear whether departmental, task force, or coordinating committee recommendations will be accepted by the Board. Despite potential ramifications from the University’s response to its financial issues, the record shows that the faculty is responsible for making critical decisions concerning University curriculum, majors and minors through the various Curriculum Committees and decisions by individual professors and departments. Thus, faculty have significant control in this primary area. 2.

Enrollment Management

This decision-making area encompasses judgments regarding the size, scope, and makeup of a school’s student body. Pacific Lutheran, supra, slip op. at 17. The role played by the Employer’s faculty in this area is less extensive than in academic programs but still significant. Overall enrollment goals are set by the administration, with faculty input. The Admissions Department creates a matrix each year that determines which applicants will be eligible for admission based on high school grades and standardized test scores. In cases where students fail to meet these standards but are deemed worthy of consideration, an Undergraduate Admissions Committee reviews the applications and makes recommendations. Faculty members constitute a majority of the voting members on this Committee. According to Vice President of Enrollment Services Ann Boland-Chase, the Committee annually considers about 100 applications. The Committee’s recommendations as to whether a student should be admitted are almost always followed.

5

Petitioner’s brief claims that a faculty proposal to create a School of Architecture was approved by the Trustees without Curriculum Committee involvement, but President Munley testified that the proposal had in fact been recommended by the Committee, and the brief does not explain the basis for its contrary claim. 12

A few departments have departmental enrollment standards in addition to the general standards for admission to the University set by the Admissions Department. In some cases, departments impose requirements for freshman admission that are more stringent than the overall requirements of the University. In other cases, departments have standards for retention beyond freshman year. The Undergraduate Grades and Academic Standing Committee makes decisions about whether students should be placed on academic probation or dismissed from the University due to academic difficulties. Faculty members constitute a majority of this Committee. A Committee’s dismissal recommendation is reviewed by the Dean of the appropriate College. According to Enrollment Vice President Boland-Chase, the Deans accept Committee recommendations in about 60 to 75 percent of cases. Most determinations about whether credits from other institutions will transfer are made by the Registrar’s Office. If there is some question, the Registrar refers the issue to the faculty of the appropriate department, but Vice President Boland-Chase described referrals as rare. When they are made, the department’s determinations are generally accepted. Faculty members play a significant role in graduate admissions. The Admissions Department requires that applicants to graduate programs have a 3.0 undergraduate grade point average. Applications which meet this requirement are forwarded to the faculty of the appropriate department, which decides which students to recommend for admission, and the recommendations are nearly always followed by the Admissions Department. An applicant denied admission can appeal to the appropriate Dean, but Vice President Boland-Chase reported that Deans support the faculty position in 99 percent of cases. The only evidence about faculty input into the retention of graduate students was provided by Dr. Cannon. She reported that on several occasions she has recommended to her Dean that graduate students be dismissed, but her recommendations have never been followed. Dr. Cannon also reported that the Employer has placed a limit on the number of students who can be admitted to the Psychology graduate program and has denied repeated requests by Department faculty to lift the cap. Vice President Boland-Chase testified that a five-year degree program in Communications, Sciences, and Disorders has not been expanded due to faculty objections to requests from the Employer to add students. 3.

Finance

Faculty input in the area of finance is quite limited. The Employer has a Budget Committee that provides a “forum for discussion of budgetary issues” and an “opportunity . . . to recommend annual budget priorities,” but faculty members are a minority of the Committee. The Employer also has a budgetary process that starts with the Office of Budget Affairs sending proposed budgets to academic departments and ends with a committee making spending decisions. Only one faculty member is on the committee that actually makes budgeting decisions; the majority of the committee consists of administrators.

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Faculty members do not have significant input into determining University revenue. The amount of tuition is approved by the Board of Trustees based on administrator recommendations, and there is no indication of a faculty role in this process. Administrators determine the amount of money available each year for faculty salary increases. Once this amount has been determined, administrators have historically met with a group of faculty members appointed by the Faculty Senate to discuss how the money should be allocated. There is no indication in the record that faculty are able to dictate the allocation. Administrators have unilaterally changed health insurance coverage available for faculty and reduced the amounts contributed by the Employer to faculty retirement accounts without first securing faculty input. The Employer’s brief points to two other areas in which it contends faculty exercise some control over finances - sabbaticals and conferences. In this connection, faculty members comprise a majority of the Faculty Development Committee, which considers faculty requests for sabbaticals and allocates University funds for faculty members to attend academic conferences. Committee recommendations regarding sabbaticals are submitted to the Vice President for Academic Affairs and then sent to President Munley. Until recently, President Munley routinely approved the recommendations. Due to the University’s financial problems, however, she has now placed a moratorium on requests for full-pay half-year sabbaticals and indicated that she will only consider full-year sabbaticals at half pay. The administration decides how much money will be available for funding for conferences. For 2016, the amount is $50,000. The Faculty Development Committee determines which faculty members will receive funds. Because of a reduction in the amount of funds, the Committee recently decided that only non-tenured faculty trips would be funded in 2016, since it concluded that non-tenured faculty had a greater need to attend conferences in order to improve their resumes for purposes of securing tenure. 4.

Academic Policy

This is one of the “secondary” areas in which the Board views a faculty’s role as less significant in evaluating whether faculty members are aligned with management. It encompasses decisions regarding teaching/research methods, grading policy, academic integrity policy, syllabus policy, research policy, and course content policy. Pacific Lutheran, supra, slip op. at 17. The faculty’s role in this area is limited. Faculty determine content and grading in their own courses, but both the Supreme Court in Yeshiva and the Board in Pacific Lutheran made it clear that the exercise of such discretion is not enough to establish managerial status. NLRB v. Yeshiva University, supra, at 690; Pacific Lutheran, supra, slip op. at 16. The Employer also points to faculty representation on a Policy Committee charged with recommending policies impacting more than one area of the University, but faculty members are a minority on the Committee. 14

Dr. Ruthkosky testified to an occasion on which a change in grading policy recommended by either the Faculty Senate or one of the Curriculum Committees was approved by the administration. She also generally asserted that the Employer would not alter grading policy without faculty approval, although she did not explain the basis for this claim. Dr. Ruthkosky also indicated that she had been President of the Faculty Senate at a time when the Senate appointed a committee to review all policies related to faculty and suggest changes. Suggested revisions were submitted to the Policy Committee, which raised some questions that caused policies to be returned to the Senate. The Policy Committee also offered amendments in some cases. Dr. Ruthkosky’s recollection was that all revised policies were ultimately approved, although it was not clear from her testimony if approval was with or without amendments suggested or imposed by the Policy Committee. Dr. Ruthkosky insisted that she could not recall a change in policy involving faculty which had not been considered by the Faculty Senate. In sum, while the faculty may have an influential voice in determining academic policy, the administration makes the final decisions in this area and does not routinely approve faculty recommendations. 5.

Personnel Policy and Decisions

This is the final area of faculty participation in decision-making evaluated by the Board. Like academic policy, it is considered less significant in determining alignment with management since, in the Board’s view, it does not normally implicate the university as a whole. Decisions in this area involve hiring, promotion, tenure, leave, and dismissal. Pacific Lutheran, slip op. at 18. Department Heads can determine whether adjunct faculty members are needed to cover courses being offered in their departments. Dr. Johnson testified that when he was Head of the Mathematics Department, he normally spoke with the Dean before hiring adjuncts, and the Dean routinely approved his decisions. When Dr. Conlogue served as Head of the English Department, he determined the need for and hired adjuncts, subject to review by the Employer’s Human Resources Department to make certain they had the necessary qualifications. Sister Mary Ann Zimmer, the Head of the Employer’s Religious Studies Department, testified that she can identify a need for adjuncts and locate acceptable candidates. But, the qualifications of her selections are reviewed by her Dean and the Vice President for Academic Affairs before a position can be offered. All of the adjuncts Zimmer has recommended have been approved. When Dr. Ruthkosky served as Head of the Education Department, she was able to identify a need for adjunct faculty and select suitable candidates. Administrators never stopped Ruthkosky from hiring the candidates she preferred. Dr. Ruthkosky also hired support staff for her Department. Rank and Tenure, one of the Employer’s standing committees, is composed entirely of faculty and is charged with reviewing faculty applications for tenure or promotion and

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submitting recommendations to the Vice President for Academic Affairs and the University President. The Committee also reviews criteria for promotion and can recommend changes. President Munley testified that she has always followed Rank and Tenure Committee recommendations. Dr. Johnson and Dr. Conlogue could recall only one occasion in their 20plus years of employment on which a Committee recommendation for tenure or promotion had been overruled by the administration. Dr. Ruthkosky and Dr. Cannon both indicated that Committee recommendations were routinely adopted by management during their three years as members. Dr. Ruthkosky also recounted an instance on which a Committee recommendation for a change in promotion policy was accepted by the Employer. Departmental faculty can request that positions for full-time or pro-rata faculty within their departments be filled or created. Such requests must be approved by the appropriate Dean, the Vice President for Academic Affairs, and the University President. The record does not indicate that requests are routinely approved, and Dr. Cannon noted that Psychology Department requests for an additional faculty member were repeatedly rejected. Once a request is approved, department faculty screen applicants and identify two candidates to be interviewed. Interviews are conducted by the Department Head along with other faculty members. The appropriate Dean, the Vice President for Academic Affairs, and the Director of Campus Ministry also interview applicants. Following the completion of the interviews, department faculty rank the applicants and administrators consider the rankings in deciding which applicant will be offered employment. One of the top-ranked applicants is normally selected, although Dr. Ruthkosky recalled an occasion on which a Dean rejected a hiring recommendation made by Department of Education faculty, and Dr. Cannon reported that administrators sometimes view candidates recommended by faculty as overqualified. Faculty select a six-person Grievance Committee, which reviews faculty complaints. Only tenured faculty members can serve on the Committee. When a grievance is filed, the Committee designates three members to consider the matter. This subcommittee can either reject the grievance, decide it has merit, or refer it to an Ad Hoc Committee for further investigation. Faculty vote to select 10 candidates for service on the Ad Hoc Committee, and the Faculty Senate’s Executive Committee designates three of these candidates to constitute the Committee. Both the grievant and the administrator involved in the matter may challenge two of the candidates voted by the faculty. The Ad Hoc Committee can recommend that a grievance be either rejected or found to have merit, and University policy states that the administrator should take Committee recommendations “very seriously.” An appeal from a Committee finding can be taken to the University President. President Munley reported that she has considered appeals on approximately three occasions and accepted the Committee’s recommendation in each instance, although she did not indicate whether the Committee had rejected or found merit to the grievances. University policy requires the appointment of an Ad Hoc Committee on Retrenchment if financial considerations suggest faculty layoffs may be necessary. Faculty members are to constitute a majority of such a Committee, which is responsible for making recommendations to the University President. The Employer is currently experiencing financial difficulties, and a 16

Retrenchment Committee has been appointed. In mid-February 2016, the Committee asked University President Munley to refrain from taking any action until it had completed its deliberations. Nevertheless, President Munley announced on February 28 that 10 faculty members would be laid off effective at the end of the school term in the spring. Shortly after this announcement was made, the Board of Trustees declared a moratorium on hiring, firing, or promoting faculty without its approval. 6.

University Structure

Unlike the contingent faculty at issue in Pacific Lutheran, the proposed bargaining unit in this case consists of full-time and pro-rata faculty with a more lasting connection to the Employer. By way of example, the four current faculty members who testified for Petitioner have been employed by the Employer for 8, 20, 21 and 22 years, respectively. Faculty essentially have an intermediate role in the Employer’s decision-making procedures. Acting mostly through committees or the Faculty Senate, faculty can make recommendations regarding certain matters. But, even if the recommendations may be routinely adopted in some instances, they are nearly always reviewed by administrators and/or the Employer’s Board of Trustees. C.

ANALYSIS AND CONCLUSION

As discussed above, in Pacific Lutheran, the Board identified five primary and secondary areas to be considered in evaluating claims that university faculty are managerial employees. Relying on the Court’s Yeshiva decision, the Board suggested that the focus should be on whether faculty determine “the product to be produced [by the University], on what terms and from whom.” Pacific Lutheran, supra, at 16. Taking this statement as my benchmark, I find the Employer’s full-time and pro-rata faculty should be viewed as managerial. There are several reasons for this conclusion. First, the faculty largely determine the product offered by the Employer. Departmental faculty decide when courses will be offered and scheduled without any apparent intervention by administrators. A faculty member can decide to offer a “special topics” course for up to two semesters without securing approval. Requests to offer new courses over a longer term or to modify existing courses are submitted to faculty-dominated Curriculum Committees, and these Committees consider changes in the majors and minors offered by the University. Committee recommendations are reviewed by administrators but nearly always adopted. Religious Studies Professor Zimmer testified to a single occasion on which a Core Curriculum Committee recommendation was rejected, but this is the only example in the record of the administration overruling a Curriculum Committee proposal. Moreover, President Munley and Vice-President Ruthkosky testified that they could not recall any other Committee recommendations being turned down, and Petitioner’s witnesses testified that the administration adopted various recommendations. I find this single rejection is not enough to prevent a finding

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that faculty recommendations made through the Curriculum Committees are nearly always accepted. Petitioner also argues that recent faculty layoffs may impact curriculum and that a consultant recently hired by management to deal with the Employer’s financial difficulties may make recommendations to eliminate degree programs. However, the recommendations and their potential impact on curriculum are uncertain at this point, and it is impossible to say what, if any, faculty involvement may be solicited before final action. Further, the Board has been willing to find managerial status where faculty exercise substantial control over decisions regarding curriculum within financial parameters set by management. Lewis and Clark College, 300 NLRB 155, 161-163 (1990). Assuming the consultant eventually makes recommendations to eliminate programs, and these recommendations are adopted without faculty input, this would still leave the faculty with effective control over much of the curriculum -- the faculty will continue to set course schedules and make recommendations regarding specific course offerings. Given management’s historic deference to faculty recommendations in the area of curriculum, it is likely that faculty suggestions regarding courses to be offered will continue to be routinely adopted to the extent allowed by financial circumstances. Thus, the determination of which courses and programs will be offered by the Employer – the Employer’s product - will still be largely determined by the faculty. Second, the faculty plays a meaningful role in deciding which undergraduate students will be offered the Employer’s product. Overall enrollment levels are determined by the University administration, and many undergraduate admission decisions are governed by standards developed by the Admissions Department. But, an Undergraduate Admissions Committee controlled by faculty annually reviews about 100 applicants who fall short of university admissions standards and makes recommendations as to whether these applicants should be admitted. The recommendations are nearly always followed by the Admissions Department. Faculty participation in graduate admissions is even more extensive. Applicants must have a 3.0 undergraduate cumulative average, but faculty members decide which of the applicants who meet this standard will be offered admittance. And, determinations by departmental faculty as to which students should be admitted to graduate programs are routinely adopted by the Department of Admissions. Faculty do not have the same level of control over whether students will be retained. A faculty majority committee makes determinations as to whether undergraduates should be placed on probation or expelled for academic reasons, but dismissals are reviewed by Deans who reject committee recommendations in 25 to 40 percent of cases. The only evidence regarding graduate student retention was provided by Dr. Cannon, who reported that her efforts to have students removed from a graduate program were repeatedly rebuffed by administrators. However, even if faculty do not determine all aspects of enrollment and retention, they effectively control significant portions of the process. The Board in Pacific Lutheran noted that faculty do not necessarily have to control all aspects of a particular decision-making area for its role to be an indication of managerial status. Pacific Lutheran, supra, at 17, fn. 34. In my view, 18

the part played by the Employer’s faculty in determining who will be admitted to both undergraduate and graduate programs is significant enough to militate in favor of finding them to be managerial employees. The faculty also plays at least some part in making personnel decisions. Department faculty can decide whether adjunct faculty are needed, and their recommendations as to which individuals are selected for adjunct positions are nearly always adopted. A faculty-dominated Rank and Tenure Committee makes recommendations regarding promotions and tenure, which have historically been accepted in almost all cases. Faculty cannot determine whether full-time positions should be created or filled, but they are able to identify and recommend candidates to fill those positions. The faculty’s role in hiring and promotions is evidence of managerial status, as is the fact that the unit in this case consists of longer-term employees with a significant stake in the Employer’s operations. The faculty clearly do not exercise control over all aspects of the Employer’s operations. They play no role in deciding the amount of tuition and little part in determining the Employer’s budget; the faculty’s role in financial affairs is mostly limited to allocating small sums budgeted for faculty travel to conferences. Thus, the Employer’s faculty does not determine the terms on which the Employer’s product is offered to customers. There is also insufficient evidence to show faculty control over academic policy. Faculty have recommended policy changes, but the Employer failed to establish that faculty policy recommendations were accepted without modification. The witness who testified for the Employer on this issue, Dr. Ruthkosky, indicated that a Policy Committee with a non-faculty majority raised questions about the faculty proposals and may have made amendments. Thus, the Employer’s faculty exercises effective control over some, but not all, aspects of the Employer operations. The faculty has extensive control over academic programs and a lesser, but still meaningful role in enrollment management and personnel policy and decisions. The Board has, however, never required that total faculty control is a prerequisite to finding managerial status; control over some aspects of a school’s operations is sufficient. Elmira College, 309 NLRB 842, 850 (1992); Lewis and Clark College, supra; Livingstone College, 286 NLRB 1308, 1313-1314 (1987). Although, those cases issued before the Board adopted the Pacific Lutheran test, the Board did not call these decisions into question. This case is distinguishable from Pacific Lutheran, in which the Board determined that contingent faculty were not managerial. In that case, members of the proposed unit had yearly contracts, were not permitted to participate in faculty committees, and had a very limited voice in university governance. The Marywood faculty do not have the same limitations on their employment relationship, and they constitute the majority of several committees that play a significant role in determining major university policies. In sum, I find the faculty’s effective control and influence over several of the decisionmaking areas identified in Pacific Lutheran is sufficient to justify a finding of managerial status, and I am, therefore, dismissing the petition.

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IV.

CONCLUSIONS AND FINDINGS

Based upon the entire record in this matter and for the reasons set forth above, I conclude and find as follows: 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 in this case. 3. Petitioner is a labor organization that claims to represent certain employees of the Employer. 4. No 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. V.

ORDER IT IS HEREBY ORDERED that the petition be, and it hereby is, dismissed. RIGHT TO REQUEST REVIEW

Pursuant to Section 102.67(c) of the Board’s Rules and Regulations, you may obtain a review of this action by filing a request with the Executive Secretary of the National Labor Relations Board. The request for review must conform to the requirements of Section 102.67(d) and (e) of the Board’s Rules and Regulations and must be filed by Wednesday, May 25, 2016. A request for review may be E-Filed through the Agency’s website but may not be filed by facsimile. To E-File the request for review, go to www.nlrb.gov, select E-File Documents, enter the NLRB Case Number, and follow the detailed instructions. If not E-Filed, the request for review should be addressed to the Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570-0001. A party filing a request for review must serve a copy of the request on the other parties and file a copy with the Regional Director. A certificate of service must be filed with the Board together with the request for review. DATED: May 11, 2016 HAROLD A. MAIER6 Acting Regional Director, Region Four National Labor Relations Board 615 Chestnut Street, Suite 710 Philadelphia, PA 19106 6

Regional Director Dennis P. Walsh is recused from this matter. 20

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