Trustees Of Boston University

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 798 (N.L.R.B. 1986)

798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trustees of Boston University and Boston Universi- ty Chapter, American Association of University Professors . Case 1-CA-11061 30 September 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN, BABSON, AND STEPHENS On 29 June 1984 Administrative Law Judge George F. Mclnerny issued the attached decision. The General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respond- ent filed exceptions, cross-exceptions, and an an- swering brief. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge' s rulings,' findings, and conclusions and to adopt the recommended Order. In adopting the judge's conclusion that the de- partment chairmen and full-time faculty at Boston University are managerial employees under the Ye- shiva2 standard, we note, as more fully set forth in the attached decision, that the faculty has absolute authority over such matters as grading, teaching methods, graduation requirements, and student dis- cipline. Additionally, the faculty is the moving force and almost always effectively controls ma- triculation requirements, curriculum, academic cal- endars, and course schedules. The faculty also plays an effective and determinative role in recom- mending faculty hiring, tenure, promotions, and reappointments.3 All of the matters listed are im- portant facets of university policy. That ultimate authority for decision making at the University rests with the president and board of trustees does not alter the fact that, in practice, faculty decisions on all those policy matters are effectuated in the great majority of instances. Nor does the fact that the administration occasionally has made and im- plemented policy decisions without faculty input detract from the collegial managerial authority consistently exercised by the faculty. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. 1 We note that, regardless of the burden-of-proof rulings made by the judge, all parties fully presented their case in this voluminous record, and that the weight of the evidence fully supports the judge's decision. a 444 U.S. 762 (1980). a We particularly note their authority to effectively veto curriculum and personnel decisions. Francis X. McDonough, Esq.,' and S. Anthony di Ciero, Esq., for the General Counsel. 281 NLRB No. 115 Mary H. Mitchell and J. Joseph Meng, of Boston, Massa- chusetts, on the brief, for the Respondent. Dahlia Rudavsky, Esq., and Warren H. Pyle, Esq. (Angoff, Goldman, Manning, Pyle, & Warren), of Boston, Massa- chusetts, for the Charging Party. Stanley R. Strauss, Esq., Charles I. Cohen, Esq., and Greg- ory W. Homer, Esq. (Vedder, Price, Kaufman, Kamm- holz & Day), of Washington, D.C., on the brief. DECISION STATEMENT OF THE CASE GEORGE F. McINERNY, Administrative Law Judge. This litigation commenced with the filing of a petition by the Boston University Chapter, American Association of University Professors (the Association) on October 18, 1974, in Case 1-RC-13564. Through this petition, the Association requested that the National Labor Relations Board (the Board) certify it as the collective-bargaining representative for a unit of all regular full-time faculty at Boston University (the University) with the exception of faculty in the schools of law, dentistry, and medicine, and administrative and supervisory personnel. By order of the Regional Director for Region 1 (the Regional Di- rector) a hearing was held between November 18, 1974, and January 31, 1975. Following the hearing, the Re- gional Director issued a Decision and Direction of Elec- tion on April 17, 1975. In that decision, he found the fol- lowing unit to be appropriate: All full-time teaching members of the faculty at Boston University including department and divi- sion chairmen, area chairmen in the School of The- ology, sequence coordinators in the School of Social Work, coordinators in the School of Nursing, the Director of the Teacher Training Project in Sargent College, the Directors of the African Stud- ies Center, the Afro-American Studies Program, the Center for Latin-American Development Studies, the American and New England Studies Program, the Center for Applied Social Science, the Boston University Center for the Philosophy and History of Science, the continuing Education Department in the School of Nursing, the University Professors Program, faculty on leave and in the Overseas Pro- gram, but excluding all part-time faculty, all officers of the University, deans, associate deans, assistant deans, administrative support personnel, non-teach- ing professionals, librarians, graduate assistants, teaching fellows, student employees, non-profession- al employees, coaches, directors of the schools of music, visual arts and theatre arts in the School of the Arts, visiting faculty, all faculty, department chairmen and program directors in the schools of Law, Medicine and Graduate Dentistry, all other employees, guards and supervisors as defined in the Act. 1 McDonough died on August 18, 1982, dung a recess in the hearing of this case. R.I.P. BOSTON UNIVERSITY 799 The Board denied the University 's request for review of this decision , and on May 14, 1975, an election was held among the University 's faculty, which resulted in a vote of 394 for the Association and 262 against represen- tation with 1 void and 40 challenged ballots . Objections were filed by the University , but these were dismissed by the Regional Director , who issued a certification to the Association as the exclusive bargaining representative of the employees in the unit described above on August 13, 1975. The Board denied the University 's request for review of this action. Following the certification , the University refused to bargain with the Association , and on September 23, 1975, the charge in this case (Case 1-CA-11061) was filed by the Association against the University . On October 8, 1975, the Regional Director , acting on behalf of the General Counsel of the Board , issued the complaint al- leging that the University had refused to bargain with the Association in violation of Section 8(a)(5) of the Na- tional Labor Relations Act, 29 U.S.C. § 151 et seq. (the Act). On November 28, 1975, the General Counsel filed a Motion for Summary Judgment with the Board, and on December 12, 1975, the Board issued a Notice to Show Cause why the General Counsel 's Motion for Summary Judgment should not be granted . After some procedural delays, the University 's response to this Notice to Show Cause was filed on December 2, 1976 , and on March 22, 1977, the Board issued a Decision and Order in which it ordered the University to bargain with the Association. Trustees of Boston University, 228 NLRB 1008 (1977). This decision was affirmed by the United States Court of Appeals for the First Circuit on April 13, 1978 . Boston University v. NLRB, 575 F.2d 301 (1978).2 The University then petitioned for a writ of certiorari to the United States Supreme Court on July 11, 1978. While the matter was yet pending , the Supreme Court issued its decision on February 20, 1980, in NLRB v. Ye- shiva University, 444 U.S. 672 (1980), in which the Court held the faculty of Yeshiva University, including depart- ment chairmen , to be managerial , and not employees en- titled to the protection of Section 9 of the Act. On March 3, 1980, the Court granted the University 's peti- tion , recalled the judgment of the First Circuit , and re- manded the case to the First Circuit for further consider- 2 After the decision by the court of appeals, the University and the Association commenced negotiations on a collective -bargaining agree- ment . After some delays, and a short strike , they signed an agreement on April 13 , 1979, to be effective from that date until August 31, 1981. This agreement , which I will refer to as the first contract , provided that it was "subject to the final disposition of First Circuit Cases . Numbers 77-1143, 77-1365 , and 77-1226 (this case), now pending in the Supreme Court of the United States on a petition of certiorari (No 78-67). However, it is agreed that, by the execution of this settlement agreement , neither party waives any of its rights with respect thereto , and it is further agreed that the foregoing does not prejudice the Chapter 's (the Association's) right to claim that this agreement remains in effect for its duration ." Whatever this language meant , it is not important , since this contract expired by its own terms on August 31, 1981, while this hearing continued. The parties then signed a new agreement (the second contract) effec- tive from September 1, 1981, to August 31 , 1984. This contract , too, is subject to the final disposition of this case : "The Trustees and the Chap- ter further agree that if, before the expiration of the term specified in the first paragraph of this Article (Article XXV), a final determination of Case No . 1-CA-11061 is reached which invalidates the said certification, then this Agreement shall expire." ation in light of the Supreme Court's decision in Yeshiva. Then, on May 8, 1980 , the court of appeals further re- manded the case to the Board for its consideration. The Board , in turn , asked for , and received , statements of po- sition from all parties and, on September 11, 1980, or- dered that the record in Case 1 -CA-11061 be reopened and the proceedings be remanded for a further hearing before an administrative law judge for the purpose of ad- ducing evidence on the supervisory and/or managerial status of the University 's chairpersons and other faculty members in the light of and consistent with the Supreme Court's decision in Yeshiva. In accordance with this order , a hearing was sched- uled and opened on December 15, 1980 , before Adminis- trative Law Judge Irwin Kaplan . The hearing continued on December 16, 1980 , but after that day, and before any testimony was received in the reopened proceeding, the matter was reassigned to me . There was no objection to this procedure . The hearing then resumed on January 13, 1981, and continued until concluded on March 14, 1983, consuming a total of 157 hearing days and consisting of 21,820 pages of testimony and 1180 exhibits. At the hearing all parties were represented by counsel, had the opportunity to present testimony and documen- tary evidence , to examine and cross -examine witnesses, and to argue orally . 3 Following the close of the hearing all the parties submitted briefs, which have been careful- ly considered. Now, based on the entire record , including specifically my observations of the witnesses , and their demeanor, I make the following FINDINGS OF FACT I. JURISDICTION Boston University is, and has been at all times materi- al, a body corporate under the provisions of the Acts of 1869 , Chapter 233, Acts and Resolves of the Common- wealth of Massachusetts . It has at all times material, op- erated as an educational institution with its principal office at 147 Bay State Road in the city of Boston, county of Suffolk , and Commonwealth of Massachusetts. It derives an unrestricted annual income exceeding $1 million and annually receives directly from points outside the Commonwealth of Massachusetts supplies and mate- rials having a value in excess of $50,000. I find that the University is an employer within the meaning of Section 2(6) and (7) of the Act. H. THE ASSOCIATION Boston University Chapter, American Association of University Professors is not a labor organization within the meaning of Section 2(5) of the Act.4 0 After the close of the hearing the Charging Party filed a motion to correct their transcript . There was no objection and that motion is al- lowed. The evidence does not show that the Chapter represents any persons who are considered employees under Sec . 2(3) of the Act. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE APPROPRIATE UNIT A. Introduction 1. The beginnings of the university It seems to me that it may be helpful in understanding the relationship between the university and its faculty, to explore briefly the historical relationship between univer- sity and college administrations and their faculties. This discussion may serve not only to set the stage for the facts of this case, but also to establish the properties, di- mensions, and conventions of the academy against which the facts of this case must be measured. This latter issue is significant because a real understanding of the current issues of faculty status and university governance neces- sarily depend on some familiarity with the policies and practices and, preeminently, with the traditions on which these contemporary issues are so firmly based. Modern American universities trace their lineage, with some legitimacy, from the schools of Athens and Alexan- dria,5 Cordoba and Salerno,6 to Bologna and Paris.' From these latter institutions, particularly from the Uni- versity of Paris, established before the end of the 12th century, came the establishment of prescribed courses of study for undergradute students, the granting of degrees certifying that the course or courses of study had been successfully completed; the establishment of graduate programs and the award of higher degrees with rights, privileges, and obligations recognized as pertaining there- to. From these institutions, too, came the external rubrics of academic life, titles, rituals, and regalia still in common use. More important to the present inquiry than these ex- amples of abiding academic tradition is the fact that these early universities were established and maintained as self- generated and self-perpetuating institutions; in Bologna, a government by students; in Paris, a government by facul- ty, in theory and by repute free of domination by prince or bishop, emperor or pope, and with the historical per- ception that, at such free institutions, students and facul- ty could devote themselves wholly to the free pursuit of knowledge.8 In the high Middle Ages, the 13th and 14th centuries, the University of Paris rose to a preeminent position in the study of theology and philosophy, those subjects so close to the spirit of the time. In Paris, particularly, "one would be hard put to it to think of any thorny problem touching God, the world, the Church, Christianity and dogma which was not posed in its basic and essential form."9 The extent of genuine freedom to pursue these 5 Kerr, The Uses of the University, Harvard University Press, Cam- bridge, Mass., 9, 10, 1972 8 Knowles, The Evolution of Medieval Thought, Longmans, London, 1962, 154. 7 N. Fehl, The Idea of a University in East and West, Chung Chi Col- lege, Hong Kong, 36-46, 1962. 8 Craven the Western tendency to organize and to institutionalize any facet of human activity, and the then current prevalence of trade and craft guilds, it was natural that this kind of activity should be organized into institutions with established requirements for entry and advancement, degrees, dress, and ritual. N. Fehl, op cit. p 36.' 9 F. Heer, The Medieval World, Praeger, New York, 194, 1969. questions to their manifold, unorthodox, or even hereti- cal conclusions may be open to some question. The cen- turies which separate modem standards of free inquiry from the accepted, even unspoken, strictures which cir- cumscribed the intellectual life of the schoolmen, may well obscure from us the actual state of freedom and control in the medieval universities. r 0 Whatever the real state of facts on the question of the freedom of professors to teach, whether that be known as libertas docendi, or Lehrfreiheit or "academic free- dom," it concerns us only tangentially in this case. For while the power to control the affairs of the university will influence the extent, or the very existence, of aca- demic freedom within the university, the presence or ab- sence of a state of academic freedom will not show where lies the power to control the administration of the university. Obviously, because the two matters are relat- ed, one to the other, there has historically been a close relationship between freedom and control. In considering the relationship between Boston University and its facul- ty we are concerned primarily with the extent of control over this institution by its administration, or its faculty, or by some combination of both. Looking at the medieval universities with this more limited focus, we can see the image of freely associated, self-governing companies of scholars, openly discussing the subjects of philosophy and theology, the great ques- tions of the day, and thereby laying the foundations for modern scholarly inquiry and scientific method. This image, however it comported with contemporary facts, and with all the intervening theological, ideological, eco- nomic, and political storms of passage to modern times, appears to those connected with higher education not only an ideal, but a tradition, like caps and gowns, or titles and degrees, closely held, honored, and revered. 2. The English universities The link between these European institutions and modern American universities runs directly through the institutions at Oxford and Cambridge. The former prob- ably was established in the late 12th century by scholars from the University of Paris, and the latter by men from Oxford early in the 13th. Like Paris, these institutions were composed in each case of a group of independent establishments, called colleges. The colleges were found- ed and supported by endowments of manors, benefices, and other assets bestowed by noble or wealthy benefac- tors. As at Paris, the colleges at Oxford and Cambridge operated to some extent under regulations prescribed by the donor or founder of the college under the general authority of the crown and, later, Parliament, but the hands of such authorities were restrained by mortality and distance, and by a tradition of self-government inher- ited from the continent. Accordingly, the English col- leges developed into mutually independent units, each governed by its own faculty, known as masters, with one of their number elected as principal, or head, of the col- 1s R. Hofstadter, W Metzger, The Development of Academic Freedom in the United States, New York and London, Columbia University Press, 11-27 1955, Tuchman, A Distant Mirror, New York, Alfred A. Knopf, xix, 1978. BOSTON UNIVERSITY lege. All collegiate policies, including the selection of new masters, the choice of the head master, determina- tion of curricular and scholastic requirements, and man- agement of the college's endowment, were decided by the faculty." A modern observer has noted that the English univer- sity of our own times is "an entirely medieval institution which has survived intact in all essentials to the present day." 1 z 3. Universities in America a. The first colleges in the American colonies. The opening of the new world, in particular the estab- lishment of the first English colonies in Virginia and Massachusetts Bay in the early 17th century, led to the foundation of colleges modeled on English institutions.'s The first of these, in 1637, was the college at "New- towne," later Cambridge, in the Colony of Massachusetts Bay. The college thus founded was named in 1639 for a local minister, John Harvard, who provided in his will for a substantial legacy of 800 pounds and a library of 250 volumes. Harvard College was designed on the English model'4 in respect to its 4-year course of studies, its curriculum, disciplines, administrative regulations, and degree re- quirements.' a It was founded, however, not as the result of the beneficence of John Harvard, nor, indeed, of any individual, but by act of the colonial legislature, the gen- eral court of the Massachusetts Bay colony. Nor was the college founded primarily to explore freely the great questions of the day, but to serve as a school to educate ministers for the established Puritan church and to supply informed, educated, magistrates, legislators, and teachers for the colony. The Puritan founders of New England viewed Oxford and Cambridge as hopelessly corrupt,' a which led them to contemplate an institution of higher learning which would not only avoid contami- nation with perceived wordly abominations, but would as well be isolated from the unwelcome attentions of Stuart Kings and the Anglican Church. Because there were not in the colony private sources of sufficient wealth to endow a collegiate institute in the manner of the English colleges, and because the interests of church and state were substantially the same, it fell to 11 Knowles , op cit., Fehl, op cit., W. Brubacher, W. Rudy, Higher Education in Transition , Harper & Row, New York, 1976. 12 Knowles, op cit., 176. For an instructive, if fictional, account of modern collegiate administration in Britain , see C.P. Snow , The Masters, New York, Charles Scribner's Sons, 1951. 13 The first universities in Spanish America were , of course, much older . The Dominican University of Santo Domingo dates its foundation from a Papal Bull of 1538 and the universities of New Spain and Lima date from the mid - 16th century . J. T Lanning, Academic Culture in the Spanish Colonies, New York, Oxford University Press, 12-14, 1940. These institutions, however, represented a different cultural background, with no impact on the development of similar institutions in the English colo- nies 14 Most likely Emmanuel College, Cambridge , one of the newest of the Cambridge colleges, founded in 1583 by Sir Walter Mildmay, and strongly nonconformist in its purposes . A. B. Hart, Ed., Commonwealth History of Massachusetts, New York, The States History Co., 1 333, 1927. 15 Brubacker & Ruby, op cit., p. 3. 16 Commonwealth History ofMassachusetts, I. 342. 801 the general court not only to establish the college, but to afford it financial support during its first years. To assure the management of the new college, the general court provided for a committee consisting of six of its own members, and six clergymen of the province. This committee was converted in 1642 to a board of overseers, which survives today, although no longer composed of clerics and legislators. This method of control by an outside body, composed, in this instance, of persons whose primary concerns were in fields other than education, represented a fundamental structural departure from English and continental prece- dents. The pattern, thus established, persisted in the founding of all important American institutions of higher learning either by religious bodies or by the State, when the interests of each became less congruent with the pas- sage of time.'' The vesting of control in a nonresident body naturally produced strains between the lay boards and the profes- sional educators comprising the faculties. At Harvard an attempt was made in its charter of 1650 to match the au- thority of the board of overseers by the creation of a "corporation" composed of the president and fellows, or resident instructors of the college. Perhaps this was a throwback to the governance of English colleges, but things did not work out that way. Gradually the corpo- ration lost its right to select its own membership, and by the beginning of the 18th century the selection of the fel- lows had fallen into the hands of the overseers and facul- ty members were no longer appointed to the corpora- tion. At the second colonial college, William and Mary, founded at Williamsburg in 1693, there existed a much closer imitation of the English model. There was a lay board of visitors, an outside board similar to the Harvard board of overseers, but during the middle years of the 18th century the faculty exercised almost complete au- thority over the policies and administration of the institu- tion. This was due to the intellectual stature of faculty members, but more importantly to financial support from patrons in England. This state of things did not survive the American Revolution, and the century ended with the board of visitors firmly in control.' 8 Other colonial colleges, Yale (1701), the college of New Jersey (Princeton, 1746), King's College (Columbia, 1754), the College of Philadelphia (Pennsylvania, 1755), Brown (1764), Queen's College (Rutgers, 1766), and Dartmouth (1769) were established under legislative charters that firmly vested total authority and control over the institutions and their faculty in boards of trust- ees.19 b. The American Revolution through the 19th century This principle of lay control, so firmly established in prerevolutionary times, continued through the extraordi- nary growth in institutions of higher education which ac- 17 Hofstadter and Metzger , op cit., 114 ff. Brubacher and Rudy op cit. 18 Hofstadter and Metzger , op cit ., 134, 135 19 Hofstadter and Metzger , op cit ., 115, 141 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD companied the expansion of the nation itself during the 19th century and, indeed, continues to the present day. Considering the factors of time and distance in 19th century life, it is evident that however severe and sectar- ian trustees might be, or however strongly they might feel about the piety and orthodoxy of faculty, students, and curriculum, the enforcement of these views univer- sally on a day-to-day basis was beyond the capacity of a body that met only periodically or sporadically and had only limited time to consider the operations of the insti- tution they held in trust. Moreover, the concept or ideal of control of the insti- tutions of higher learning by the company of scholars comprising the faculty of such institution had not per- ished with the end of the Middle Ages and in the univer- sal American practice of lay control. In the years 1823- 1825 an attempt was made by faculty members at Har- vard to revive their claim to places on the Harvard cor- poration. Although this failed, the attempt showed the persistence of the concept of faculty control of their in- stitution.2 0 More common in the older institutions was the prac- tice, beginning about 1817 at Yale, of regular discussions and decisions of all questions of college policy by the president with the faculty. The appointment of new fac- ulty was also subject to the consent of the incumbent faculty.21 This practice appeared to be followed in other eastern colleges by the 1830s.22 By the end of the fourth decade of the 19th century theories concerning the relative positions of trustees and faculties began to be formulated. One concept, as articu- lated by several prominent educators of the time, con- ceded the point that ultimate control resided in lay boards of trustees, but posed a functional distinction, based perhaps on American political experience, between the legislative function, appropriately exercised by the trustees, and the executive, or administrative function, traditionally and properly within the province of facul- ties. Under this theory, the trustees possessed the right to organize the institution, to provide for original staffing, to manage institutional funds, and to stand as patrons and protectors of the faculty. The faculty selected the course of studies to be offered, the choice of texts, and had the right to decide all internal matters of instruction, disci- pline, and administration. 2 3 Though the period ending with the Civil War there appears to have been slow acceptance of the role of the faculty in setting curriculum, hiring, -and retaining facul- ty, controlling student admission and discipline, and, of course, teaching, grading, and selecting of texts.24 During the 19th century, both before and after the wa- tershed of the Civil War25 the question of control of in- 20 Hofstadter and Metzger , op cit, 234-235 21 Id at 235. 22 Id. at 236 23 Id. at 236-238 There is no indication from the text that these au- thorities were conveying original thoughts, or were articulating concepts commonly accepted among educators . Subsequent events lead me to con- clude that the latter was the more logical view. 24 Id at 303-309 25 Which, roughly, separated the age of the small liberal arts college from the age of the multidimensional university. stitutional functions, whether considered legislative or administrative, concerned observers and commentators less than what were considered more important ques- tions, those concerning academic freedom and academic tenure.26 In all the great conflicts of the century, from the sectarian struggles at the beginning, to the slavery issue, which, divided the nation intellectually, as it did politically and militarily, to the struggle over Darwinism, to conflicts over curriculum,27 and to socialist or popu- list economic,and social questions at the end of the cen- tury, the battlegrounds were the fields of curriculum- what would be taught-teaching methods and text- books-how it would be taught-and tenure-who would do the teaching. In these conflicts the question of control of the general policies of institutions did not seem to be in issue. In some instances policies were di- rected by presidents firmly in control of trustees, and in others by strongminded trustees themselves. The concern of the faculties in those times seemed to focus on their right to determine the curriculum and their survival as teachers because of their exercise of that right. c. The emergence of the university In, the decades following the Civil War higher educa- tion in America underwent profound substantive and structural changes. The American system had been influ- enced for some years by German scholarship and re- search. To this influence in the postwar years was added the growth of scientific and technical knowledge, both a cause and effect of the enormous industrial expansion of those times. The simultaneous growth of great fortunes acquired by the owners of industries led in turn to a vast infusion of money dedicated to the foundation of new universities and the expansion of existing institutions. Under these influences the modern American, universi- ty began to emerge, joining undergraduate colleges with graduate schools, dedicated to high levels of scholarship and research, and to the increases of knowledge as much if not more than the transmission of existing knowledge to students. In some cases this university system was en- grafted on existing colleges, as at Harvard, Pennsylvania, and Michigan, in others entirely new institutions were created, at Cornell, Stanford, and Johns Hopkins. In all cases the new ideas, except in the smaller sectarian insti- tutions, caused fundamental changes in undergraduate curricula as well, giving rise to the modern elective system, and an increased emphasis on technical and sci- entific matters. The increase in institutional size and complexity, and an increased dependence by these larger institutions on the beneficence of men of wealth, made it inevitable that places on boards of trustees should become occupied by people whose training and experience fitted them for the management of large enterprises. The clerics, mechanics, 26 Hofstadter and Metzger, 308 fn. 113 27 That is, the traditional classical curriculum as opposed to the grow- ing interest of scholars in the physical, and social sciences This was in large part due to the preeminent influence on American higher education in midcentury, of German curricular practices, scholarship, and research. There is, however, no indication that German systems of university ad- tmmstration had any influence on higher education in the United States BOSTON UNIVERSITY 803 and farmers of earlier days were replaced by industrial- ists, bankers, and lawyers.2s Concurrently, social and political problems flowing from the enormous growth of industry, and the profound changes in American life , occupied the interest of social scientists , many of them faculty members of the new re- search institutions . The development of academic disci- plines in the fields of sociology, economics , and political science in the universities seemed to offer solutions, based on scholarship and scientific research , to sociologi- cal, economic , and political problems of the day. Inevita- bly, solutions proposed by faculty members, often public- ly and sometimes querulously , conflicted with the socio- logical , economic , or political views of the trustees. As a result, beginning in the 1880s numbers of faculty mem- bers (including presidents) were removed by trustees for the expression of social , economic , or political views that did not conform with those of a majority of the board.29 Some of these cases became celebrated issues in the aca- demic community , leading in turn to intensified discus- sion among faculty members from a number of institu- tions on the need for academic freedom and tenure.30 The question of control over institutional policies did not surface in so dramatic a fashion in these years, al- though this question is, as I have noted, tangentially re- lated to the issue of academic freedom . At institutions considered in the late 19th century, and today, to be "progressive," there seems to have been substantial con- sultation between administrations and faculties on both specific and general questions of university policy, with the agreement of the faculty a necessary element in the ultimate transmittal of such questions to the trustees.31 However, while this system of control may have worked at some institutions, the view of the mainstream seems to have remained clear that the trustees not only remained in control , but of right and logic ought to con- tinue to remain in control . As stated by one prominent commentator, the trustees served as guardians of the public interest in higher education, they were responsible for the financial administration and, in holding "the purse," must inevitably have the final control. The trust- ees were the only body able satisfactorily to act as an ar- biter between competing claims on the resources of the university by groups within the faculty. 32 Lowell was not so precise about the role of the faculty in this struc- ture. Pointing out that the trustees were not in the posi- tion of an industrial employer, he went on to describe the trustees as having as their "sole object" helping the faculty to achieve the intellectual and moral training of youth, and scientific and scholarly investigation. These factors, according to Lowell, were the "sole reason for the existence of trustees , of buildings, of endowments 28 Hofstadter and Metzger, op cit., 415. 29 Id. at 419-422. 30 On this last, a growing surplus of scholars vying for the faculty po- sitions available caused increased pressures to systematize procedures for gaining and retaining academic tenure. 91 Hofstadter and Smith, American Higher Education, II; 755-756 (Johns Hopkins), 757-759 (Cornell), 755 (Chicago); J. A. Perkins (Ed.), The University as an Organization , Carnegie Commission on Higher Edu- cation, McGraw Hill, 21, 1973. 32 A. Lawrence Lowell, quoted in Hofstadter and Smith , op cit., II, 837-838. and of all the elaborate machinery of a modern universi- ty.""33 d. General positions on academic freedom, tenure, and university governance84 The fact of trustee control over university policies, and particularly the exercise of such control by boards in cases involving academic freedom and tenure were con- tributing factors in the establishment of the American Association of University Professors in 1915. The general declaration of principles adopted by the Association on January 1 , 1916, 55 shows again that the ideals of the self- governing universities of Paris and Oxford, and the ideals of freedom of the German universities had not per- ished . There was no indication in that declaration that the Association intended to work for changes in the American practice of control by boards of trustees, or that this new Association adopted , as a matter of princi- ple, a greater measure of control by faculty of education policies or practices. Pursuing the goals of academic freedom and tenure, the Association worked , first alone, then, beginning in the 1920s, with the Association of American Colleges, an organization of college presidents also founded in 1915, toward a more precise definition of the principles sought, and then acceptance of those principles as defined by colleges and universities . SB After years of work the two organizations came to an agreement in 1940 on a state- ment covering both academic freedom and academic tenure.57 It is not certain that this statement was or is universal- ly accepted or that variances from the general principles stated there do not occur.38 In reviewing the evidence in this case it will be noted that there are few questions on academic freedom at Boston University, but many ques- tions on the granting and retention of academic tenure that touch on the power and authority of the faculty in university governance. On the actual status of university governance in recent years, there seems to be universal agreement as to the ul- timate power and authority of the board of trustees or equivalent bodies . Beyond this there appears, in the record of this case, to be commonly accepted standards on some matters but substantial disagreement on others. Beyond the record in this case , the literature I have read on the subject indicates , first, that aside from the ultimate authority of the trustees, there are wide variations in the comparative authority of the faculties and administra- as Id . at 838 . For a wry, if undocumented , comment on Lowell's own practices in hiring faculty see J. K. Galbraith, A Life in Our Times, Boston, Houghton Mifflin Co., 59-60, 1981. 84 The terms "governance" and "government" seem to be used inter- changeably in this field . I will make no distinction between them herein. as Reprinted in Hofstadter and Smith , II, 860-878 . See also AAUP Policy Documents and Reports, 1977 Ed., AAUP, Washington , D.C., 1-5, 1977. ae See generally Hofstadter and Metzger, op cit., 480-490. 84 Note that the statement on academic freedom as formulated in 1940 appears verbatim in the 1981 collective -bargaining agreement between Boston University and the Association. 3 See generally T. R. McConnell , K. P. Mortimer , The Faculty in Uni- versity Governance, University of California, Berkeley , 83-110, 1971. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions in different institutions39 and, second, that both ad- ministration and faculty must share their authority today with funding authorities including the Federal Govern- ment, state governments, and private funding agencies; alumni groups, accreditation bodies external to the uni- versity's internal curricular procedures; community groups; and stud'ents.40 All these factors were considered by the American As- sociation of University Professors (AAUP) in the devel- opment between 1964 and 1966 of a statement on gov- ernment of colleges and universities, finally adopted by the Association in April 1967.41 This statement, obvious- ly designed and written to appeal to the broad interests of faculty who compose the membership of the AAUP, was also, ostensibly, flexible enough to receive accept- ance from groups and organizations representing admin- istrators and governing boards of colleges and universi- ties. Generally, the statement calls for full and open com- munication between governing boards, administration, faculty, students, and other elements affecting the institu- tional community. Beyond this theme, which runs through the whole document, the statement urges thor- oughgoing cooperation, joint planning, if not joint agree- ment, on specific areas such as the determination of gen- eral educational policy, short term, or internal, oper- ations of the institution, budgeting, choice of presidents and other academic administrators, and determination of faculty status, that is the hiring, retention, and promotion of faculty. In order to ensure the equitable and efficient operation of these administrative functions, the statement reiterates, time after, time, the necessity for the establish- ment and maintenance of clearly defined and carefully observed practices, procedures, and regulations. There is no indication in the record of this case that this statement on Government, or any portion of it, was adopted by the administration of Boston University. The nature and extent of faculty participation in the govern- ment of Boston University remains to be shown in the record here. But this statement on government, together with the'other ideas and concepts described in this intro- duction should provide, as noted at the outset, an under- standing of the concepts and principles that underlie the relationship between Boston University and its faculty; concepts, and principles that differ markedly from those encountered ,universally in the world of commerce and industry., Of course there are similarities as well between the university and commercial or industrial enterprises. These will be noted, together with differences, in the body of this decision. 89 See, e g., McConnell and Mortimer op cit., S. P Capen, The Man- agement of Universities, Buffalo, Foster & Stewart, 1953, J. A. Perkins (Ed.), The University as an Organization , Carnegie Commission on Higher Education, McGraw-Hill, New York, 1973; J. Baldridge, Power and Con- flict in the University, NYU Press, 1971. 40 See, e.g., Kerr, The Uses of the University, Baldridge, Power and Con- flict in the University 91 The statement was commended to its members by the board of di- rectors of the American committee on education and the executive com- mittee of the Association of government boards and universities and col- leges, both of which can be considered "management" groups 4. Boston University The origin of Boston University42 dates from 1839 when a group of New England Methodists established an institution for the training of ministers. This school was first located in Newbury, Vermont, where it was know as the Newbury Biblical Institute. In 1847 it was moved to Concord, New Hampshire, and renamed the Method- ist General Biblical Institute. By 1867 the school moved again, this time to Boston, and its name became The Boston Theological Seminary. At the same time several prominent and successful businessmen, who also were trustees of the seminary, determined to use this move as the first step in the establishment of a more comprehen- sive educational institution. In 1869, they petitioned the Massachusetts legislature for permission to incorporate themselves as the trustees of `Boston University. The leg- islature duly granted this petition, and an enactment, Chapter 322, Acts of 1869, was signed into law on May 26, 1869. The law authorized but did not in itself create a uni- versity. In 1871 the legislature empowered the Boston Theological Seminary to transfer itself and all its assets to Boston University (Chapter 151, Acts of 1871), and the trustees established the seminary as the, school of the- ology and the first school in Boston University. To this was added a school of law in 1872, a school of medicine and college of liberal arts in 1873, and a graduate school in 1874. This group comprised the University until the second decade of the 20th century. A college of business administration, now the school of management, was es- tablished in 1913; the school of education, 1918;, the school of social work, 1919; Sargent College of Allied Health Professions, acquired in 1929; the school of nurs- ing, 1946; the school of public communication, 1947; the College of Engineering, 1950; the College of Basic Stud- ies; 1952; the school for the arts, 1954; the school of graduate dentistry, 1963; and Metropolitan College, 1965. In the course of this sporadic but steady growth, the University was for many years located in the scattered hodgepodge of rented,'' borrowed, and hand-me-down quarters in the city of Boston and neighboring Cam- bridge. Beginning in 1939, a comprehensive building and acquisitions program has served to concentrate all the University's activities in one area. This is the Charles River Campus, which serves as the site of all the schools and colleges involved in this case,, as well as the school of law, which is not. The medical and dental schools are located elsewhere in the city, and do not concern us here. The process of acquisition and building continues, and we will explore this process, especially the current development of the new University Science Center. 42 The material in this section derives from the charter, statutes, and bylaws, October 31, 1974 , Boston University Fact Books, and Speare, In- teresting Happenings in Boston University's History, Boston University Press, Boston, 1-60, 1957 BOSTON UNIVERSITY 805 B. The Administration of the University The central administration and board of trustees Assistant to the President and Associate Provost Jon Westling testified that in May 1980 there were 1202 full- time faculty employed at the Charles River Campus.43 The Boston University Fact Book for 1979-1980 shows that in the school year beginning in the fall of 1979 there were 18,056 full-time undergraduate and graduate stu- dents and 7955 part-time students enrolled in the Univer- sity. This student body studies and does research, is taught, housed, fed, and protected in a conglomeration of buildings stretching for more than a mile along Com- monwealth Avenue, a major urban thoroughfare, and scattered among a number of cross and parallel streets. The classrooms, laboratories, study facilities, athletic complexes, assembly, exhibition, merchandising, and recreation facilities, meeting rooms, locker rooms, food stores, processing area, kitchens, dining halls, garages, shop, libraries of the University, excluding dormitories (but including the medical school area) take up a total of 3,159,324 square feet or, put another way, 72-1/2 acres. For its fiscal year ending June 30, 1980, the University derived from all sources a total of $198,892,000 and ex- pended $192,274,000. The ordering of this substantial enterprise has been as- signed to a large and varied staff of administrators. The organizational charts contained in the several fact books submitted in evidence show what looks like a standard hierarchical chart for the organization of any large public or private enterprise. There are the trustees at the apex, with lines of authority flowing down to the presi- dent of the University, then to a number of vice presi- dents with functional titles. The vice presidents have lines of authority flowing from them to various offices in specialized areas relating to the general area of the vice president's responsibility. There is no question here that the principal business of Boston University, as stated by Associate Provost Wes- ding, is education and research. Accordingly, it appears that, of the nine boxes shown on the University's organi- zation chart as of June 30, 1981, 44 as representing admin- istrative divisions of the University, seven involve staff functions, composing a complex of support services es- tablished over the years to assist in the furthering of the University's functions of education and research. These would include the vice president for development, who acts in the area of gifts to the University; the vice presi- dent for university relations, with responsibility in the areas of alumini and community relations, physical devel- opment programs, and university publication; the vice president for financial and business affairs, responsible for audits, the treasury, real estate, and insurance, and for student health and security; the vice president for admin- istrative services, responsible for the admissions office, the university registrar, analytical services, and budget office, management information services, housing, park- ing, telecommunications, and mail, and university infor- 48 Out of about 4600 people employed at that campus. 44 This particular chart is referred to because it represents the basic organization of the University during much of the hearing. mation services; a vice president with no listed staff func- tions, who serves as an assistant to the president; the vice president for arts, publications, and media, whose func- tions lie in those areas; and a vice president for labor and public relations, whose title aptly describes his functions. The line functions, as opposed to the staff responsibil- ities described in the previous paragraph, ran, in 1981, from the president to the provost and then to the deans of all except the medically related colleges and schools. In that latter area, the deans of the school of nursing, the school of social work, and Sargent College4a reported to the provost through an academic vice president for med- ical affairs. After the end of 1981, the position of vice president for academic affairs, which had been allowed to lie fallow for a few years, was revived and the table of organization was amended to place this reconstituted vice president as another layer of responsibility between the provost and the deans of the college of basic studies, the college of engineering, the college of liberal arts, graduate school, the school of education, the school of law,46 the school of management, and the school of public communication. It is this structure, as set out on the chart I have used as a reference, as well as a number of other similar expo- sitions of the University's administrative structure, which has led the Association to maintain in its brief that the "academic and business affairs of Boston University are managed by an extensive and powerful bureaucracy," and the General Counsel, in his brief, to point to "an ex- tensive bureaucratic infrastucture-reporting directly to the president which controls every aspect of university administrative and academic life." Whatever kind of structure this is, infrastructure or su- perstructure, it most certainly is extensive and as shown by the titles in the Fact Books, deals with many facets of life on the campus. All the named officers in the Fact Books are appointed, the top level by the president on the approval of the board of trustees, and lower ranks by department vice presidents, or the president, without the need for trustee approval. The faculty of the University had no part in the creation of these departments and of- fices, in their continued existence or maintenance, and no voice in the selection of the occupants of any of the of- fices mentioned. Given all these facts, which are not dis- puted, and bearing in mind the traditional and historical- ly documented tendencies of bureaucracy to hold tena- ciously to tradition and orthodoxy; to hinder, thwart, or even stifle progress; and unless checked, to suffuse these obstructive influences throughout their organization,47 they would appear, on the surface, to support the con- clusions of the Association and the General Counsel. The record in this case, however, does not furnish jus- tification for that position. In fact, the testimony of facul- ty members here shows little if any contact between fac- 4r, As well as the medical school and school of graduate dentistry, which are not within the unit sought in this case. ' 46 Like the medical and graduate dentistry schools, not included in the unit under consideration. 47 I do not want to seem to be too hard on bureaucracy , being some- thing of a bureaucrat myself, but these comments I think are well sup- ported by common experience. 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ulty and administration outside the academic hierachy, of faculty member to department chairperson, to dean, pro- vost, and president. Testimony by faculty members showed that when references were made to the "Admin- istration" these meant the provost and president, not the vice presidents or other functionaries shown on the charts in the Fact Books. Even in discussions in the fac- ulty or university councils, the only references to admin- istration members are to the president or provost. There are no indications of the delays, red tape, forms, and frustration characteristic of an active and fully function- ing bureaucracy affecting the activities of faculty. Aside from this question of interference with the aca- demic chain of command by officials located in adminis- trative positions outside that chain of command, we find, and there is no question about this, that final authority in the University in all matters rests with the board of trust- ees. Under the legislative authority cited above, the board of trustees at Boston University is a self-perpetuating body of from 10 to 50 individuals .48 The trustees have the power to elect their successors for 5-year terms. Of these, six trustees are nominated by the University's alumni. The president of the University and the treasurer are eligible to be members of the Board, and the evi- dence here shows that the president has been a member throughout the period covered by this case. The board, whose members (aside from the president and treasurer) are nonpaid, meets an average of three times a year. These meetings are not open to faculty, nor are the minutes of the meetings made available to facul- ty. Because it is manifestly impossible for the board of trustees, meeting three times a year, to fulfill its many re- sponsibilities in the appointments of the principal officers of the University and all its instructional staff, including all full-time and part-time faculty, managing its portfolio of investments, overseeing the entire physical plant, de- ciding questions of new academic programs, what real estate to buy, sell, or retain, and all the other decisions necessary to the conduct of such an enterprise, the trust- ees. have established out of their number an executive committee of 10 to 20 trustee members plus the presi- dent, and 12 other committees with specialized duties. The executive committee, which itself'meets only six to eight times a year and is elected annually by the board, has power to transact all business on behalf of the board, and may itself create other committees. The other standing committees of the board are: academic affairs, athletics, audit, development, investment, legal affairs, nominating , planning and budget, property acquisition, student affairs, university relations, and an investment ad- visory committee. There was evidence of faculty involvement in three of these committees, the investment advisory committee, the academic affairs committee, and the planning and budget committee. James Doyne Dawson, another assist- ant to the president, testified that he served on the board's investment advisory committee. The function of this committee is to vote the proxies for all shares of common stock held in the name of the trustees. The committee consists of two students, two administrators (of which Dawson is one), and two faculty members. They meet in the spring, when stockholders' annual meetings usually occur, to weigh and consider how to vote the board's proxies on 20 or 25 questions each year. This committee has been delegated almost complete au- thority to discuss the issues and vote the proxies. In addi- tion to exercising the proxies, Dawson testified about one instance in 1979 when the committee recommended to the trustees that the board adopt a permanent policy of selective divestment of stock in companies that did busi- ness with the Republic of South Africa. The trustees agreed with this recommendation and subsequently di- vested themselves of stock in a company that did busi- ness in South Africa. Robert S. Cohen, a professor of both philosophy and physics since 1958, former chairman of the physics de- partment (1958-1973) and acting dean of the college of liberal arts from 1971 to 1973, testified that he and Pro- fessor Paula Menyuk from the school of education, had served from 1979 until the time he testified in November 1981 on the trustees' academic affairs committee. These two faculty members were recommended to the board by the president from a list submitted by a faculty group and joined about eight trustee members. The function of this committee is to advise the trustees on recommenda- tions from the president to the board on academic mat- ters including curriculum, appointments of new faculty, and promotions of incumbent faculty. Cohen stated that he and Professor Menyuk were welcomed to the com- mittee, had access to all documents and files dealing with matters coming before the committee, and participated fully in its discussions and deliberations. Cohen was somewhat confused about whether he had the right to vote on committee matters. This perplexity may have stemmed from the fact that Cohen did not consider that voting in this context was important. What was impor- tant was the opportunity for faculty to communicate with the trustees on matters that came before the com- mittee. In any event, Cohen was under the impression that most decisions were reached by consensus. This feeling for consensus is a recurring theme in this case. At all levels from the trustee committee mentioned here, to decision making at the school and college level, and at the department level, the testimony is almost without exception that all parties at all levels consistently and consciously work to make every decision the result of a consensus, a general agreement among those present on an action to be taken, or not taken, or a'decision to be made, or not made. Indeed, why should this not be so? From my observations of these witnesses, and my read- ing of their resumes, I know that they are all highly edu- cated, most holding doctorates of philosophy. They are highly intelligent, 'articulate, urbane, sometimes witty, sometimes stuffy, but always bright and alert. If persons with these qualities cannot conduct matters to reach con- sensus through intelligence, reason, and discussion then I 48 As of January 13 , 1981, there were 46 trustees. BOSTON UNIVERSITY 807 would fear for the future of rational discourse in any or- ganization.49 None of the other trustee committees except for the planning and budget committee had any faculty member- ship or had contact with faculty members . I will consid- er the work of the planning and budget committee, to- gether with other faculty relations to the budget process in a separate section below dealing with that process, but I will not discuss further the other trustee committees as there appears to be no faculty involvement . Certainly the faculty may be interested in property acquisition, legal affairs, university relations , investments , or student af- fairs, but whatever goes on in those trustee committees cannot affect the outcome of this case. The charter, statutes and bylaws of Boston University provide in article IV, section 1 , that : "The President of the University is the official head of its administrative and educational system and shall be elected by the Cor- poration to hold office at its pleasure. He shall supervise and direct the management of the University, except as otherwise provided, and have general oversight of all course of study and research in the several schools and colleges and of the general academic work of the Uni- versity. . . . The President shall be advised by such groups as he may from time to time recommend to the Trustees and that are approved by them, provided that the President, as Chairman of all Faculties , shall be the presiding officer of the University faculty ." (As amended October 31, 1979.) The General Counsel , after some references in his brief to record evidence , seems to want me to fmd that in con- trast to the Supreme Court's reference in Yeshiva50 that the faculty is the University, should be read in this case "at Boston University, John R. Silber is the University." It is certainly true that the University' s president, Dr. Silber , is a strong-willed and controversial person. It is also true that there is testimony , that of Professor Joseph Speisman and former Professor Harvey Boulay comes to mind , tending to the view that Silber 's personality and the quality of his stewardship at the University led the faculty into organizing for collective bargaining. This factor, however much it may concern people at the University, does not, in my opinion , rise to such a level that I can accede to the General Counsel's sugges- tion . As Silber himself put it:st -no individual is competent to judge every issue at hand; certainly not in a context as complex as the University . It is equally important to recognize the corollary of this principle: That no issue in an institution as complex as a university falls within the range of competence of everyone. No individual is competent to judge every issue, and not everyone is competent to judge every single issue . There must be a division of 49 While the above statement may be logical enough , it does not ex- plain why this litigation continues . Gramatati certant et adhuc sub judice Lis est, Horace, Ars Poetics, L. 78. s° NLRB Y. Yeshiva University, 444 U.S. 672, 680 (1980). 51 In remarks before a Faculty Senate Council meeting on April 8, 1976, introduced into evidence by the Charging Party. These remarks were affirmed by Silber himself when he was on the witness stand. labor. It is not the job of the president, for example, to determine the requirements for a degree in Eng- lish or to select on the basis of his own independent judgement the faculty of that department . For that matter, it is not within the competence of a dean of the college of liberal arts. Both the dean and the academic vice president and the president are re- sponsible for reviewing and assessing the objectivity of the judgement ... . ... on this issue that is properly made by col- leagues within that department . Responsibility for the determination of requirements of an English major , the appointment of faculty in English and the advancement of faculty in English are to be de- termined on a comparable procedure. It is not within the competence of a single de- partment or its membership to determine the re- quirements for a B. A. degree in the College of Lib- eral Arts. That is the responsibility of the faculty of the entire college to which individual faculty, de- partment chairmen and the dean must contribute. It is not within the province of a single college to de- termine the requirements of joint programs such as the Program in Health Care Management . This re- quires the involvement of a Faculty Senate Council and an administrative council to review require- ments across collegiate lines. These remarks track fairly accurately (although with some exceptions which will be noted under various sub- ject headings below) the way personnel and educational policies are generally handled at Boston University. The complexity noted by Silber and, above all, the sheer number of educational , policy, and personnel decisions render it impossible for John Silber, or any individual, to render judgment on all of them. The fact that Silber may have been president during the period when the faculty voted to select the Associa- tion as their collective-bargaining representative may have had something to do with the feelings on the part of faculty that his style of management was responsible for this, but this is not really relevant to the issues of this case . Whoever occupied or occupies the chair of presi- dent of Boston University, it is the functions , duties, and responsibilities of the faculty that will determine whether they are managerial , supervisory, or employees subject to the provision of Sections 8 and 9 of the Act. Turning then to what has previously been described by Associate Provost Jon Westling as the University's principal enterprise, education and research, the principal line officer under the president , and reporting directly to him, is the provost. This office was established by the trustees on May 20, 1976, as a part of a general reorgani- zation of the higher levels of the administration . There is no evidence that faculty participated directly , although faculty displeasure with budget tightening and other ad- ministration measures at that time had erupted into de- mands for the removal of John Silber as president. This reorganization was an attempt by the trustees both to support Silber and at the same time to try to make the 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD administration more responsive to the sensitivities and real needs of the faculty. The provost reports directly to the president, acts as president in the incumbent's absence, and, in fact, is an assistant president . The academic deans of all the 16 schools and colleges, and the directors of the summer term, university professors program, and the program in artisanry, report directly to the provost.52 The provost is responsible for supervision of the teach- ing and research that goes on at Boston University. He reviews academic programs, the budget, appointments and retention of faculty, promotions, and tenure. He re- sponds on behalf of the president and trustees to ques- tions on the academic policies of the University and is responsible for taking a leadership role in implementing the policies of the trustees in the academic area. As we shall see, his influence over the budget and economic areas, personnel, and academic policy matters is strong and pervasive. C. Universitywide Committees 1. The university council 1975-1979 Hovering around in the area of the president-provost administrative axis, - at the university level' 53 are a number of bodies, or organizations, which have, at least in part, the function of advising the president and pro- vost. There is a group called, appropriately enough, the administrative group, becaue it is made up entirely of vice presidents and other administrators appointed by the president. This group meets irregularly and makes rec- ommendations to the president on matters of fundraising and government relations. A second group, also named after its membership, is the council of deans. This group meets when it pleases, considers matters of concern to the deans, and renders advice to the president on those issues. The most important of these groups to the issues in this case is the university council. Before 1976 this body, established by article IV, section 3 of the University's bylaws, was composed exclusively of deans, vice presi- dents, and other administrators. During 1975 and 1976 the faculty senate council, an all-faculty body composed of representatives of all the schools and colleges, pre- pared a draft proposing a new university council to be composed of faculty and administration members.54 During this process members of the senate council were in touch with the president, bringing his views into the council's own deliberations. These deliberations ultimate- ly resulted in an agreement in May 1976 establishing what was known as the "new University Council." This body was composed of an approximately equal number 52 In the case of the health -related schools , as noted, there is an addi- tional level, the academic vice president for health affairs. sa See the chart submitted with Presidential Assistant Dawson 's testi- mony on the university council. 54 Early in the hearing I indicated to the parties that I was concerned about practices in the period before the first contract, as well as after that document was signed in April 1979 In the light of the Board's decision in College of Osteopathic Medicine & Surgery, 265 NLRB 295 (1982), I probably could have relied entirely on testimony from the April 1979 period forward In the event, I have considered all the evidence both from before and after the execution of the first contract of faculty and administrators and met on a fairly regular monthly basis during the course of the school year. Pro- fessor John Zawacki testified from his experience as a member of this body, and developed a theory on its op- erations which, while interesting, is not really relevant to the issues here. What is important is what the new uni- versity council actually did. My reading of the minutes of the council from its organizational meeting on April 13, 1976, to the last meeting whose minutes are in the record, January 23, 1979, shows, and this is in agreement with the Association's brief, that the council did in fact recommend the approval of new degree programs, debat- ed and made changes in the university calendar, and dis- cussed, with President Silber in attendance, matters con- cerning the university budget, long-range planning, the size of the University, revision of the faculty manual, and the 'plan (later abandoned) to construct an academic center tower. There is no indication in the record that the recom- mendations with respect to new degree programs or the university calendar were not in fact adopted. Moreover, these minutes of the meetings of the university council in 1976 to 1979 show extensive and outspoken participation by faculty members of the council even in cases when their views directly contradicted those of the president. 2. The faculty senate and senate council 1975-1979 The universitywide organization called the university senate, also known by and referred to as the faculty senate, was also established in article IV of the Universi- ty's bylaws, in this case section 6, providing that "The voting members of the Faculties of the University shall constitute the University Senate." A senate council was also established "composed of representatives elected from and by faculties of the schools and colleges and shall act for the senate between meetings. The senate was empowered to consider "matters affecting the aca- demic and professional interests of two or more Schools or Colleges or such matters as may be referred by the President or the Vice-President," and both the senate and the council were authorized to refer recommenda- tions to the president, the university council, and the fac- ulties of the several schools and colleges. The council's membership in 197555 consisted of the president of the University, the vice president for aca- demic affairs, one representative, and one alternate from each school or college , nine at-large members from the university senate, two past chairmen, and the chairman ss When it became apparent how extended this hearing was going to be, I instructed the parties that I would receive no evidence of events or situations occurring before November 1974. The choice of this date was not arbitrary The original representation case on which the rest of this proceeding is based was filed on October 18, 1974 (Case 1-RC-13564). The 27 volumes and exhibits encompassing the record in that case are filed as an exhibit in this case By mid-1981 it was apparent that we were going to receive enough evidence about all the issues here, relating to the standards laid down by the Supreme Court in Yeshiva, supra, that addi- tional testimony about events prior to October 1974 would be out of date, or cumulative, or both Thus I do not feel that any party has been prejudiced or otherwise denied due process by this ruling. I have avoided references to matters in the record that occurred before 1974 except where necessary to establish continuity , not substantive facts See Stroeh- mann Bros Co , 268 NLRB 1360, 1361 fn 10 (1984) BOSTON UNIVERSITY of the academic policies and procedure committees, the appointments, promotions , and salaries committee, the student life committee , and such other standing commit- tees as were established by the senate of the senate coun- cil. The membership of the council was weighed at least as far as numbers were concerned , in favor of the faculty rather than the administration. Counsel for the Association have very carefully gone through the minutes of the usually monthly meetings of the senate council, and its successor, the faculty council, for the years 1974 through at least April 1982, and have come up with a series of 25 instances involving resolu- tions by the councils either protesting against or recom- mending administration actions, none of which were agreed to by the administration of the University. Of these resolutions , 18 occurred before the new faculty council came into existence in April 1979. Although some of these incidents may seem trivial in looking at the overall relations between the faculty and the administra- tion , it is also true that the matters complained of do concern subjects such as academic freedom (for both fac- ulty and students) and government , which reflect faculty concern with its role in that process, as discussed in the introduction , supra . These resolutions expressed the con- cerns of the faculty about its perceived traditional posi- tion in the University. The denial of such faculty re- quests, or, worse , the ignoring of the requests, con- strained the Association to argue that the faculty have no effective role in governance. I have read the hundreds of pages of minutes of senate council meetings submitted in evidence here by the Uni- versity and the Association . Any set or set of minutes obviously are more or less complete depending on the in- tegrity , the perception , and the diligence of the organiza- tion 's recording secretary . These minutes seem to be comprehensive . No one, party or witness, has cast any doubt on their accuracy or authenticity. It might also be noted, in examining these minutes , that the legal prob- lems between the Association and the administration during the years 1974 to 1981 apparently were causing both parties to take positions designed to improve their respective legal positions in the ongoing litigation. There were motions to have the American association of uni- versity professors investigate the role of the faculty in the governance of the University. There were sugges- tions by faculty members that the Association opposed revision of the faculty manual , and that the faculty should discontinue participation in the university council. With all this going on the senate council continued to consider , discuss, and approve degree programs and con- centrations . There was only one instance cited by the Association when a single program was not channeled through the council , and that turned out to be an over- seas program.56 In the instance cited when the senate council, as well as the senate, recommended the resignation of John Silber as president , the result was not the requested res- 86 This does not mean that overseas programs were not subject to ap- proval by the council , but this one apparently was set up by the overseas administrators in the mistaken expectation that faculty approval would be gained before the program started. 809 ignation, but there was a reorganization consisting in large part of the creation of the office of provost. The then chairman of the board of trustees, Hans H. Estin, met, on May 6, 1976, with the senate council and dis- cussed the relations between the faculty and trustees, as well as the reorganization , and the hoped for improved relations between the faculty and the trustees. Thus, whatever the eventual outcome of the reorganization, it cannot be said with justice that the senate council's ac- tions resulted in no change in policy at all. 33 The 1979 constitutions Beyond recognition that there was a growing interest among the faculty and Boston University during the middle seventies in revising the University's bylaws deal- ing with the establishment and powers of the university senate and senate council, it is not necessary to this deci- sion to chronicle the several drafts for new constitutions, or to describe the many meeting of faculty among them- selves or with administrators concerning these proposals. I will, therefore, begin with the meeting of November 10, 1977, between President Silber and Professors Robert Cohen, Paula Menyuk , John Zawacki, and Joseph Speis- man.57 The council members presented Silber with a copy of the then current draft of the faculty constitution. There was considerable discussion , article by article, of the draft, in the course of which Silber made a series of comments suggesting modifications in the draft. Beyond these suggestions , Silber was also reported by Speisman to have stated during the course of the meeting that "Faculty participation in University `governance' is es- sentially at the invitation of the Board of Trustees. The basic function of faculty is to teach and to engage in scholarly work. There is no faculty right to govern- ance." "The task of and responsibility for 'running the Uni- versity' (e.g., managing, directing , administering) is that of the administration ." Speisman also remarked that President Silber had a "clear expectation and hope that any form of faculty governance participation in addition to the University Council will eventually be found to be redundant and unnecessary" by the faculty themselves. Speisman 's memorandum of Silber's views was cor- roborated by Zawacki, but Silber himself specifically denied that he had said the faculty had no right to gov- ernance , or that their participation in the process was at the invitation of the board of trustees. I do not really have to resolve this question of credi- bility. The remarks quoted by Speisman sound like some- thing that Silber would say.58 But whether or not he used those precise words , Silber's testimony and his earli- er remarks to the faculty on April 6 , 1976, make it clear that Silber viewed the process of government , or man- agement, or control , at the university level, to be unique- ly within the control of the trustees and the administra- tion . Otherwise, as he said in 1976 : "Governance policy 64 The last named was chairman of the senate council in 1977-1978. The others were members of the council. se He does speak emphatically, but very rapidly, so that is entirely possible that Speisman , or some other notetaker , might have either mis- construed, or omitted, part of what Silber may have said. 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD becomes once again a struggle for power with every man for himself and the most powerful do what they can while the weak suffer what they must. That is a recipe for chaos, not for university governance, and all of the shibboleths about participation and collegiality do not gainsay this basic point of governance." With this in mind, it may be seen that Silber considers governance at the highest level, the University, to be the province of himself, his top administrators and the board of trustees. Faculty participation, at that level, would not be a matter of right, but by agreement of the board. Under- standing this point, so firmly held and clearly expressed by Silber, should make the experience, of the faculty with universitywide councils or committees more understand- able. After an additional meeting between Speisman and Silber on December 6, 1977, and a meeting between the senate council officers and the trustees' policy liaison committee in late December 1977, or early in January 1978, the council reconsidered the draft and in the light of the president's suggestions and comments approved a substantially rewritten version on May 4, 1978.59 This version was not transmitted to the president, as had pre- vious editions, but was included in a package of contract proposals presented by the Association to the University. The matter then remained on the bargaining table until the early spring.60 At that time, the trustees and the As- sociation agreed to sever the proposed constitution from the other elements then on the bargaining table, estab- lishing a tripartite group to be known as the governance commission to work out the details of a new constitution for the faculty. The commission was made up of three members selected by the trustees, and three each chosen by the Association and the senate council. Six of the nine members were faculty members, the three others admin- istrators. The commission set to work and, in four or five meet- ings, came to agreement on not one but two constitu- tions, one for the faculty assembly and council, and one for the university council. The documents were quickly ratified by the trustees and the faculty, and were still ef- fective as of the close of this hearing.61 - 4. The faculty assembly and faculty council The organizations that emerged from the 1979 consti- tutions seem to me to be remarkably similar in form and function to their predecessors.62 The purpose of the new 59 At or about the same tune, the United States Court of Appeals for the First Circuit enforced the Board's Order requiring the University to bargain with the Association; Trustees of Boston University v NLRB, 575 F 2d 301 (1st Cir 1978). 60 No evidence was received on the course of bargaining, but there was evidence that there was some dissatisfaction on the part of faculty in schools such as the medical school that the constitution for the whole faculty was in the hands of the Association which did not represent the whole faculty 61 Keeping in mind the fact, as previously noted, that the Association and the University have entered into two contracts, I will consider the actions and practice of the parties under the contracts and the constitu- tions, issue by issue. 62 Yet the parties seem to see great differences in the old and new fa- cultywide bodies. faculty assembly is broader than that of the former uni- versity senate, in that the new assembly is authorized to "speak for the faculty on matters of importance to the University" as well as to consider and recommend on matters concerning two or more schools or colleges. There is a change in the eligibility for membership, and some changes in the officers and the formalities for meet- ings. There is no indication that the existence or the ac- tions of the faculty assembly have any significant impact on the relations between the University and its faculty. The faculty council, like its predecessor, the senate council, was and remains the operative body for faculty consideration of a number of issues relating primarily to the interests of the faculty in areas of curriculum and academic policy, but also in remoter areas, such as budget, planning, affirmative action, and status of women. The new constitution mandates the formation of an executive committee to act when the council is not in session, to set agendas and advise and make recommen- dations to the council; a nominating committee to present nominations to the assembly of prospective offi- cers for the council; and a number of standing commit- tees in areas of faculty concern such as academic policy, curriculum, research, faculty status, and student life.63 As of February 1981, the following faculty council committees in addition to the executive committee were in existence: There was an affirmative action committee, set up to review conditions of employment for minority groups or the faculty. This committee was described by Presidential Assistant Dawson as working closely with the University's affirmative action officer.64 There was an appointments promotion and tenure committee (APT), whose function is to review policies affecting hiring, promotion, and tenure decisions concerning facul- ty.6 5 There was a faculty budget committee charged with reviewing the university budget processes each year from the departmental to university level. This commit- tee, which was also charged with reviewing the Univer- sity's investment portfolio and its management, paralleled and its membership overlapped the university council budget committee.66 There was a faculty council com- pensation committee, which was supposed to review and make recommendations on policies affecting faculty sala- ries.67 The credentials committee prepared bylaws for the faculty council and settled matters of voting rights of faculty members. The curriculum and academic policies committee's principal task was to review new degree programs and issues of class size and academic freedom. 63 Other than these, the council is authorized to establish ad hoc com- mittees to perform whatever functions the council may direct 64 Unfortunately, according to Dawson this committee did not meet during the 1980-1981 school year. 05 Like the university council APT committee, discussed below, this APT committee makes recommendations where appropriate. The univer- sity council APT committee has functions established by the collective- bargaining agreement. 66 Overall, these are formidable responsibilities. I will try to discuss this committee and its university council counterpart in sec III,D of this decision dealing with the budget. 67 Under the collective-bargaining contracts, of course, there were provisions for wage increases for represented faculty. However, this compensation committee did meet during 1980-1981 and obtained consid- erable information on faculty salaries to be distributed to the faculty. BOSTON UNIVERSITY 811 The grievance committee was charged with the responsi- bility for investigating grievances for the faculty who are outside the bargaining unit . The nominating committee nominated candidates for all committees except for the executive committee . The planning committee was charged with establishing academic priorities in the long- range planning processes of the University. Like the APT committee, this planning committee was a parallel committee to a university council planning committee. In this case the two committees always met as one. The re- search and libraries committee, also meeting jointly with its university council counterpart , was charged with con- sideration of university policy on grant and contract funding and the question of percentage return from grants and contracts to the University as well as the uni- versity libraries . The status of women committee was, needless to say, interested in the problems of women in the faculty. The student life committee was charged with looking into problems of students with faculty and the University. A review of the minutes of the meetings of the faculty council from May 1977 through January 1981 leads me to agree with the characterization of the council by Pro- fessor William L. Vance, a member and sometime associ- ate chairman of the department of English in the college of liberal arts , as an organization that "chiefly talks."68 Beyond the talk, the record shows , and the parties have cited to me , lists by the Association, on the one hand , of instances when the council has made recom- mendations to the trustees and administration that have been refused or ignored; and by the University, on the other, pointing to instances when the administration agreed with or accepted recommendations by the coun- cil. But in sum, as I noted with respect to the pre-1979 faculty bodies, the actions of the faculty council are ef- fective primarily with respect to degree programs. Thus I find that in general terms, and putting aside for the moment the issue of the budget, that the new faculty council and faculty assembly have little direct impact on the major decisions at the university level, such as long- range planning , the size of the University and its constit- uent schools , the acquisition or sale of real estate, and new construction . The faculty council does have, as the senate council did before , considerable authority over new degrees and degree programs. 5. The university council since 1979 The 1979 constitutional commission also worked out, in its tripartite fashion , a constitution changing the basic structure of what had been known as the "new" universi- ty council . The charge of the newer council (referred to merely as the council from here on) is to consider and recommend action on matters of common concern to faculty and administrators affecting two or more schools or colleges . The council is also authorized and directed ss Lest either Professor Vance or myself be considered as viewing the council in a negative way, I also agree with Vance's further comments that all the talk "is a good thing because it (the Faculty Council) is the one place where faculty from all the Schools and Colleges do talk to each other about mutual concerns." to recommend action , or to "act,"89 on matters referred to it by the president, the faculty council, or the council of deans . The committee 's membership is apportioned ap- proximately on a numerically equal basis between faculty and administrators. As with the faculty council , the primary burden for the council's work is placed on a number of committees. Because the council is scheduled to meet only twice a year, there are provisions for an executive committee made up of the president , the provost, the academic vice president for health affairs, and a representative from the council of deans, on the administration side ; and the chairman, vice chairman, secretary-treasurer, and imme- diate past chairman of the faculty council ; together with all the other committee chairmen of the university coun- cil.70 The executive committee appoints all other com- mittee members. In practice according to the testimony of Dr . Dawson , the administration nominates the admin- istration members, and the faculty council nominates the faculty members . The chairmanship of the executive committee is supposed to rotate between administration and faculty . That committee is scheduled to meet month- ly between September and May , with special meetings at the call of the president. Other committees of the university council are: The procedures committee that studies the functioning of the several governing bodies of the University and to make recommendations to improve the operations of those bodies;71 the committee on admissions and tuition poli- cies is supposed to review policies affecting admissions, enrollment, and tuition ; 7 a the budget committee is charged with reviewing the budgetary process every year at all levels , for reviewing the management of the investment portfolio and accounting procedures at the University ; 73 the committee on curriculum and degrees considers new degree programs after approval by the several schools and colleges; the committee on planning had combined before February 1981 with the faculty council planning committee . This combined committee is charged with looking into long-range academic planning and the review of the academic goals of the University, school by school . The ultimate purpose of this committee is to make for each school and for the University as a whole , recommendations on budget, space , faculties, and personnel ;74 the research and libraries committee also se The meaning of this is not clear . This committee , while it is one of those advisory bodies "hovering" around the president -provost chain of command , has no power to act but only to advise. 70 These chairmanships are required , insofar as is practical, to be equally apportioned between faculty and administration. 71 There is no indication in the record that this committee has done anything. 72 There is some testimony in the record that this committee has made a couple of recommendations, but it is clear that it has nothing whatever to do with major tuition , enrollment , or admission questions. 73 See sec . III,D below , directed to the budget process at the Universi- ty. 74 This is a large order , and there is no evidence that this committee has been able even to begin to digest it . This issue of long-range planning is a perennial problem for any large enterprise . At Boston University there was a major study in 1978 compiled by a former assistant dean in the school of management , in which the faculty had very little direct in- volvement. In connection with this study , and at other times as well from 1975 to 1981 there were conferences or "retreats ," in which faculty did participate, directed toward various aspects of long -range planning. 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meets jointly with its faculty council counterpart and, as mentioned earlier, considers university policy on grant and contract funding and the question of percentage of the grant or contract money to be alloted to the Univer- sity, as well as recommendations concerning the Univer- sity's libraries.9 5 The university life committee parallels the student life committee of the faculty council. It has, according to the testimony of Dr. Dawson generated a set of standards for student advising, and has the task of annually preparing the university calendar. 76 6. The University's appointments, promotions, and tenure committee (UAPT) Apart from the commissions, committees, and task forces created under the new faculty senate and universi- ty council constitutions, the UAPT is established by arti- cle V,C,4, of the first collective-bargaining agreement between the Association and the University. Its member- ship consists of 15 tenured faculty members, 8 of whom are selected by the faculty council, and 7 by the provost. The committee has responsibilities in the hiring process, when the dean of a college and a department within the college are unable to agree on a candidate for a faculty position; and in the tenure and promotion processes as a stage between the dean's review and the provost's.77 According to the testimony of Professor Joseph Speis- man, the committee works pretty much as set out in the first contract. The UAPT reviews all promotion and tenure applications and makes recommendations to the provost. They review all the documentation submitted, including departmental, chairperson, school or college APT, and deans' recommendations. If additional infor- mation or assistance is necessary the UAPT will solicit evaluations of the 'candidate from scholars outside of Boston University. The criteria used by the committee in evaluating the candidate are those that apparently are used throughout the academic community, certainly by the faculty and administration of Boston University, namely, scholarship, as represented by research and publications, teaching, 76 Professor of Sociology George Psathas testified that in the spring of 1981 this committee recommended a substantial increase in the budget of the University's main library, the Mugar Library A member of the com- mittee, Michael D Papagiannis, professor of astronomy and also chair- person of that department and, in that year, chairperson of the faculty council, worked out an arrangement with President Silber, whereby the budget of the Mugar Library was increased by $250,000 This was brought to the floor of the university council and duly passed. In the area of research, Professor Earle Barcus of the school of public communica- tion, testified about his participation in the research committee in 1975 to 1978 preparing guidelines for allocating seed grants to faculty members. These allocations, according to Barcus, were generally adopted by the administration. 76 With respect to the calendar the record shows considerable and vig- orous debate at the university council sessions about the calendar, with full faculty participation. Professor Joanne C. MacDonald from Sargent College was on the faculty council's student life task force, and she testi- fied to a series of frustrating experiences involving the task force and the administration. Although the situation that Professor MacDonald related to had not been solved at the time she-testified in June 1982, it is evident that the experiences of committees dealing with students and the adminis- tration on issues were not always smooth Similarly, Professor Robert Wexelblatt testified about the frustrations felt by the members of this same task force when faced with a unilateral administrative decision to discontinue funding of student publications. 17 For a full description of this process see sec I, infra. and university service. This last is usually equated with service on one or more of the multitude of committees which pervade all levels of activity at the University. According to Speisman's testimony, the UAPT commit- tee looks at an individual's committee service to deter- mine if the person participated "fairly fully" in such service, not the level, or success or failure of such serv- ice.7 8 7. Other universitywide committees There are other universitywide committees mentioned in the record. Professor Judith Hallett of the Department of English served on a trustees' scholar selection com- mittee in 1978 and 1979. The committee meets with, rep- resentatives of the admissions office each year and ranks applicants for 4-year full tuition plus expenses scholar- ship. As far as could be determined the committee's rec- ommendations are accepted by the trustees. Helen Hennessey Vendler, another professor of Eng- lish, testified that she served on a university fellowships committee, evaluating these who had applied for fellow- ship. Professor Vendler also served on a committee charged with making recommendations for candidates to receive honorary degrees. Professor William R. Mackavey, chairperson of psy- chology, described his membership on the university patent committee beginning in 1979. Mackavey's testimo- ny is clear that although he is not a technical expert in patent law he participated fully in the committee's dis- cussions and in the actual preparation of language for a draft patent policy. 8. Conclusions on universitywide committees, councils, and assemblies The evidence in this case shows rather clearly that none of the universitywide bodies in which faculty mem- bers participate has any visible impact on the major policy and financial decisions at the university level aside and apart from matters concerned with new degrees, degree programs, and appointments, promotions, and tenure. Given this state of things, the question arises whether the situation is institutional in nature, deriving from the way American universities have been traditionally estab- lished and governed; or personal, stemming from the styles and personalities of the principal participants in the events of the past 10 years; or required to reach a proper and equitable adjustment of limited resources among competing and sometimes conflicting groups, as argued by President Silber in his April 8, 1976 remarks and in his sworn testimony here in March 1983. The answer seems to me to be a combination of the first and third of the alternatives just noted.79 There are administrative 7a There is considerable testimony about the UAPT and the promotion and tenure processes that I have elected to treat under separate subject headings. In a case of this size there has to be some kind of orderly ap- proach In selecting the method I have used , I appreciate that there may appear to be some loose ends from time to time as well as some repeti- tion, but I trust that these loose ends will be tied up eventually. 79 The influence of President Silber's personality on these fundamental policy issues I find more in the nature of a ruffling of the surface , rather than in a determining of the strength and direction of the flow of events. BOSTON UNIVERSITY 813 imperatives in a time of declining numbers of students, rising inflation , and shifts of emphasis in academic and professional disciplines which must be resolved in order for the University to function . The university administra- tion has used traditional means of coping with these issues through established administrative methods. As far as I can see from all the evidence here , the role of the university council in most major decisions has been nonexistent . This is not to say that the council is merely a useless appendage . At least from 1976 to the present, the minutes of its meetings show that it did func- tion in the areas I have mentioned , degrees, degree pro- grams, calendars, and also class starting times, and travel policies . At no point, however, have the responsibilities of the university council risen to the level envisioned by Dr. Silber in his testimony , when faculty and administra- tion together, enlightened by relevant data and facts "could forge policy, and we could forge procedures and recommendations for the University that would make a lot of sense for all parties concerned." The faculty, however, have resisted Dr. Silber's blan- dishments and have retained their separate identity, me- morializing the latest manifestation of that separate iden- tity in the 1979 constitution establishing the faculty as- sembly, the faculty council , and the satellite committees of the council . Taken by itself, this insistence on a sepa- rate identity could suggest a conclusion that the faculty's interests indeed differ from these of the administration. But the faculty's own venerable traditions of shared gov- ernance , from the medieval universities and the English colleges, to the 1966 Statement on Government of the American Association of University Professors , impel the faculty here to join in, even to force themselves in, to the one body, the university council , which affords any promise of shared authority between the faculty and ad- ministration . There they sit, faculty and administration, and discuss and make recommendations regarding those questions mentioned above . 80 I think this is the signifi- cant fact to be drawn from this discussion . The faculty are there , present at the table, and their position there is guaranteed by the constitution of the university council, the culmination of years of effort and frustration by the faculty, ultimately agreed to by the trustees and by the faculty in 1979. D. The Budget The task of putting together the budget for Boston University is both lengthy and complex. S 1 The job must be accomplished under three basic rules. First, the budget must be a universitywide document . Thus, while some schools or programs may be more than self-sup- 80 The atmosphere at these meetings may be , in the words of Professor Vance, "chilling ," and administrators may sit on one side of the table and faculty on the other , and the administrators may be silent and wholly supportive of the president and the provost , but these factors do not change the fact that the faculty are there at all. The evidence shows no restrictions as the right of faculty to discuss any question , and to vote as they choose on any issue. 81 There is no disagreement on the mechanics of the budget process. The findings in this section are drawn from the testimony of Jon Wes- ding, Director of Analytical Services and Budget Marvin F . Cook, Di- rector of Admissions Anthony T. G. Pallett , and the several deans who testified here. porting and others are not , all must contribute to the general funds to be used for the benefit of all. Second, Boston University is not a wealthy or heavily endowed institution . The bulk of its income must, then, come from tuitions, which, inevitably , places the University 's office of admissions in a key position in the formulation of the budget . Third, the trustees have ordained that the Uni- versity shall operate on a balanced budget and that no deficits shall be incurred. Under these restrictions the budget process takes a double track approach . On the first track , for a year or two before the University 's fiscal year begins on each July 1 , the admissions office works with the office of an- alytical studies and budget to generate projections of income based on estimates prepared by the admissions office on the number of incoming full- and part -time stu- dents, and retentions of current students for the school year to be encompassed in the fiscal year for which the estimates are being prepared . The office of analytical services and budget can then combine these estimates of student population, converted into income figures, with other sources of projected income such as gifts, invest- ments, endowment income, sales and services, and activi- ties income , and income from sponsored programs,82 giving a total projected income for that fiscal year. On the second track , meanwhile , beginning in the fall of each year, the deans of the schools and colleges begin to put together their budgets , the amounts that will show the cost of salaries and academic programs for the fol- lowing fiscal year . 83 This part of the process begins with the transmittal , from the provost to the deans of "target" figures in what is known as "Stage I" of the budget process . 84 As a rule the Stage I figures supplied by the provost are the same as the previous year 's figures. The testimony of the four deans and one associate dean who testified was consistent enough to permit general findings in this area. That testimony showed that when the target figures were received , the deans went to their staff people, assistant deans and department chairpersons,85 to see what courses had to be covered for the next year, who would be there to cover the courses, and what impact the proposed figures would have on the capabili- ties of the school to offer its desired programs . In addi- tion , the chairpersons may indicate at this time their re- quirements, needs or wishes for materials, supplies, or program materials , beyond the salaries for department 88 Sponsored programs in this context include all contracts and grants that will actually produce income in the fiscal year in question 83 All the evidence on budget here concerned the academic budgets. Obviously there are large sums needed to run the University , above and beyond academic expenses , but those are really not of importance to the issues here. 84 All of those administration witnesses who commented on the budget process were in agreement that there is not much flexibility in budgetary planning from year to year . The bulk of the amounts that are included in the budget are attributable to salaries and program expenses that are fixed and cannot be easily changed. ss Faced with the question of what to call the individuals who occupy the chairs of departments at the University , I have chosen to use the term "chairpersons," as used by the parties in their collective -bargaining agree- ments . I know it is clumsy , but I think it is preferable to either the more traditional "chairmen," favored by the University , which is inaccurate on many occasions , or the term "chair" favored by the Association, which conveys to me a depersonalized kind of trendiness. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD faculty, technical, and clerical people . The chairpersons then, in most cases, discuss these proposals with the dean. Following the discussions the dean may alter or subtract from the chairpersons ' proposals, often without consultation, and then send the whole school budget to the provost. The provost in his turn has been alloted, to use his expression , "a slice of the pie," that is , a share of the amount of dollars available as developed through the collaboration between admissions office and the analyti- cal services and budget office. After this, the deans meet individually , sometimes alone and sometimes accompanied by other school ad- ministrators , with the provost and university administra- tors in what are known as "budget hearings ." The deans explain their requests , are questioned, and leave, not knowing the outcome of the sessions . Later the deans re- ceive what is known as the "Stage II" budget, a line-by- line document showing the amounts allocated in each and every budget category. Appeals are permitted from the figures in the Stage II document , but are rarely al- lowed.86 Following these last-minute adjustments, the budget is finally closed by the administration around the end of the year. The enrollment estimates developed as much as 2 years before by the admissions office have by this time been more closely refined. These figures are then matched with the budget figures and the administration makes a decision on the following year's tuition figures, a figure that, hopefully, will furnish sums to allow the ex- penditure of the moneys in the budget. The final, Stage III, budget is then prepared, a massive three or four volume computer printout. Only five copies of the entire budget are made , and these copies are kept secure in the offices of the president , the pro- vost, the vice president for administrative services, the chairman of the board of trustees , and the chairman of the trustees ' committee on planning and budget. Copies of those sections dealing with each school or college are excerpted from the master documents and distributed to, the dean of that school. The dean, in turn, reproduces and distributes to each department chairper- son the line item budget for that department. This description of the budget process may be simpli- fied and encapsulated, but it is accurate , and seems to me suffices to show the relevant aspects of the process. What is significant is that the faculty, in the normal course of the budget process and in the normal course of their activities, have no part in the process at all.87 Chairpersons are involved, and there is some evidence that chairpersons from time to time discuss the budget, or rather portions of it, with rank-and-file faculty, but I cannot find one instance of systematic or sustained dis- cussion within departments at any of the schools in- volved here between deans , chairpersons , and faculty on the budget process. 86 Testimony of Dean Dondis of the school of public communications and Jon Westlmg. 87 Moreover, although deans have considerable authority to move money around between budget fines, during the budget year, and chair- persons have some much more limited authority to do this , there is no evidence that faculty axe consulted in this process There is general agreement that the size and shape of the budget has profound consequences to the academic programs at the University . The Association in its brief has cited approximately 15 instances in which it is argued that budgetary constraints were used to set policy . However, an analysis of these reveals that the bulk of the incidents referred to were situations in which administrators made policy decisions that in turn affected the budget . For example , the refusal of Dean Bannister to appoint a lecturer in the anthropology department at the college of liberal arts, or a case in which the same dean refused to renew a postretirement teaching assign- ment and the sociology department had to cancel four courses . There are other instances in which there may be questions both of academic and budget policy as in the development and funding of a women's studies program or the archeological studies program . In the former case funding was not provided by the administration, in the latter it was, but I cannot tell from all the evidence whether the various deans and administrators involved thought that these two proposals had academic merit, or did not, and, therefore, funding was or was not provided, or whether the level of money available dictated the aca- demic decision. The Association has also pointed out that there are wide disparities in the increases in school and departmen- tal budgets as these have grown during the inflationary decade of the seventies , and that the faculty has had no hand in making these disparities . Similarly, faculty have no say in the size of schools or departments, and if, as at the school of public communication , the enrollment is raised by agreement between the dean and the central administration, the faculty must either handle the in- creased class size or be paid extra compensation for what is termed "overload" at the University. All this certainly is true , and it is also true that the size of the University is determined to some extent by admis- sions policies, which will be discussed below, but in the main, the size of the University , the schools and colleges, and departments within the schools and colleges, is de- termined primarily by the number of students who actu- ally enroll and choose certain schools or departments in which to study. This, in turn, may be due to any number of outside factors over which neither faculty nor admin- istration have any control ; the increasing popularity for students of communications courses , engineering, busi- ness, science, and the decline , sometimes precipitous, of traditional academic disciplines such as classics, English, modern languages , philosophy, or history . The Universi- ty and its component parts must adjust and conform to the preceived needs of the student body, and, as Presi- dent Silber pointed out in his April 9, 1976 remarks to the faculty, the decisions must be made in this area by the administration, lest the competition between schools and departments leave both at a disadvantage in the search for students. Now, having observed that the faculty has no hand, generally, in the formulation of the budget, and, aside from faculty, participation in the admissions process , little input to determining the size of the , schools and colleges, or the University , I must point out that the faculty has BOSTON UNIVERSITY 815 exhibited a continuing and lively interest in the overall budget process at the university level.88 Professor Robert Cohen testified concerning the interest and con- cern among the membership of the old senate council when he was a delegate to and later chairperson of that body, from 1974 to 1977, over the budget process and, particularly, the allocation of money between the several schools and colleges . This concern came to a head during the spring of 1976, and was a major factor in the move by the council to force the ouster of President Silber . But before that, and Robert Cohen was not too sure of the year, 1973 to 1975, the faculty senate pro- posed the establishment of a senate budget committee of elected faculty members to seek out a substantial role in the budget process at the university level. There were discussions with Silber after which the council nominat- ed a group and the president chose some of those to con- stitute a senate council budget committee . This group was pledged to confidence on the budget making process to the extent that they could not make regular reports back to the senate council , but could enter objections, suggestions, and modifications when the final budget was sent forward to the central administration and the trust- ees. Professor Murray L. Cohen from the psychology de- partment of the college of liberal arts served on this committee in the academic year 1975-1976. His fellow committee members were former Professor Lowell Coulter from the chemistry department , Professor Davies from the law school, Holcomb from the school of engineering , John W. Aber from the school of man- agement, and Professor Filios from the school of gradu- ate dentistry .89 According to Murray Cohen, the com- mittee did receive some documents , although no salary information on faculty , and sat in on some of the budget hearings . He complained about the fact that the commit- tee could get no information on formulas used to allocate funds between the several schools, and could not even find out where these decisions were made .90 Cohen fi- nally resigned from the committee.91 88 Individual faculty members may be consulted with by their chair- persons, or even deans, but my review of the evidence here did not turn up any showing of interest by faculty at the departmental or college level. Many faculty were asked whether they had ever seen a budget, most answered no but , significantly, no one said that they had ever asked to see the budget. 89 With the exception of Aber, who is a professor of finance , there is no indication that any of these committee members had any background or experience with the kind of complex fiscal process they were expected to observe and on which they were supposed to comment. 90 The problems of establishing who actually was making the decisions followed us throughout this hearing . The deans did not make them. Marvin Cook, the director of analytical services and budget did not testi- fy that he made them . The provost , Robert Mayfield, testified in vague terms about being allotted "a slice of the pie" but did not say that he made them . The only conclusion I can draw from all this is an inference that these ultimate fiscal decisions are made by President Silber, or his immediate staff, and I so find. 91 Cohen's testimony was marked by confusion and he did not display a good memory for example, identifying Professor Coutler as being in the biology, rather than the chemistry department. I do not discredit this tes- timony, but I do rely more on the later testimony of John Aber and Wil- liam Capron. John W. Aber, an associate professor of finance in the school of management , served on the senate council budget committee from 1975 to 1977 and on the new fac- ulty council budget committee , a reconstitution of the old committee , in 1979 and 1980.92 Aber's experience, unlike that of Murray Cohen, was that the committee had access to everything that it asked for and that, in fact, the administration itself initiated the supplying of summaries and other budget data. He added, though, that the committees he served on, composed as they were mainly of academics from departments such as chemistry and religion, did not have too much inclina- tion to become well informed . The budget, according to Aber's testimony is a very, very, large and complex doc- ument, and to have understood it in detail was more than the committees were able to do. In his view, the commit- tees, without great interest in the subject matter, with no staff assistance , and having other academic responsibil- ities, tried hard, but just never got to the point of under- standing the whole process. Aber's testimony was impressive and credible and was corroborated by that of William M. Capron, a professor of economics at the college of liberal arts, and a person who had spent much of his working life outside of the academy , including a tour as assistant director of the United States Bureau of the Budget in 1964 and 1965. Capron served on the faculty council budget committee from 1979 through 1981 and also served on the universi- ty council budget committee.93 Capron's experience with these committees was that they were supplied with all the information they wanted, but had difficulty in de- termining the crucial points in the process during their twice a year meetings . Thus, the committees did not come up with any concrete recommendations to the fac- ulty council or the university council . Capron believed that they did not do more because of the pressures of time, and the difficulties of faculty participation when there was no staff and the faculty were not really im- mersing themselves in the process. In the end , Capron stated that he felt it was just too difficult for faculty to learn the process. Moreover, both Capron and Aber were aware that decisions on the budget were made at a higher level than the university council or its budget committee. This conclusion agrees with my finding that, ultimately , budget decisions are made at the presidential level. To sum up, the evidence shows no appreciable partici- pation by faculty in the budget process at the college or department levels . There is, however, no evidence that such participation has been actively sought at these levels . The evidence also shows that there is only a limit- ed involvement by faculty in the process at the universi- ty level , despite intense and continuing faculty interests. The problem is, as outlined by Capron and Aber, that even when faculty serve on the faculty council or uni- versity council budget committees they are simply not equipped , either by training or temperament to under- stand and deal with the enormity and complexity of the 92 Aber recalled his service on the latter committee as being in 1978- 1979, but probably the 1979-1980 dates are more accurate 93 The functions of both these committees overlap. 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD budget94 despite the willingness of the administration to supply all requested information, and much more besides. These later circumstances can lead me only to the con- clusion that the lack of faculty participation in the budget process is not a controlling factor in the question of whether faculty are employees, or are managerial or supervisory in nature.95 E. The Schools and Colleges 1. General description and organization The University's principal enterprise, indeed its sole reason for existence, education, and research, is carried on in the several schools and colleges. Those schools and colleges whose faculty are included in the bargaining unit here are: (a) The College of Basis Studies (CBS)96 (b) The School of Management (SMG) (c) The School of Public Communication (SPC) (d) Sargent College of Allied Health Professions (SAR) (e) The College of Liberal Arts/ Graduate School (CLA/GRS) (f) The School of Engineering (ENG) (g) Metropolitan College (MET) (h) School of Education (SED) (i) School of the Arts (SFA) (j) School of Nursing (SON) (k) -School of Social Work (SSW) (1) School of Theology (STH) (m) Program in Artisanry (PIA)97 (n) University Professors Program (UNI) 94 In response to questions about whether the faculty members of these committees had ever asked for staff assistance Capron said they had not but felt that such a request would be denied by the administration. 9s 1 recognize that there are instances when the administration could be said to have used the budget to influence academic decisions, but the evidence in this area, as I have noted, is somewhat equivocal, in the light of the general agreement that the fixed costs of the budget are propor- tionally so high, the budget amounts left over to be subject to administra- tion influence are relatively minor 96 During the hearing I noted a reluctance on the part of the Universi- ty and the Association to abbreviate the name of the University. Howev- er it is customary to refer to the Schools and Colleges by acronyms, so I shall do so here Each of these schools and colleges,98 notwithstanding the restrictions imposed by the fact that the University runs on a unitary financial basis, operates on an individ- ual semiindependent basis, each with its own mission, most with specialized programs. Each, except for PIA and UNI, are headed by a dean with assistants and staff, and are governed in somewhat the same, but in some cases a less authoritarian, manner as the University, with combinations of faculty, committees, and administrators participating in decision-making. Below the level of dean, each school and college is organized into depart- ments. Departments exist or are created to provide edu- cation and research in particular disciplines under the di- rection of faculty trained in and adept at that discipline, and to allow concentration by students into specialized aspects of human knowledge ending, hopefully, with de- grees certifying scholarly attainments in those disciplines. The departmental structure is very much the same in all the schools on which evidence was taken.99 Each is headed by a chairperson and, in larger departments, as- sistant chairpersons, program directors, and others who in most cases are full-time faculty members, and who may receive a reduction in teaching hours or a financial stipend or both, for time spent on such additional duties. We will explore the activities of faculty in their depart- ments in detail when considering courses, teaching as- signments, hiring, retention, promotion, and tenure of faculty, and related subjects. 2. The college of basic studies The first of the schools governed by the evidence in this case is the college of basic studies (CBS).>.oo Dean Brendan F. Gilbane testified about the mission and orga- nization of CBS. His testimony on these issues was not disputed. CBS was established in 1952 as a unique gener- al education program. It offers what is termed a "core curriculum" in physical science, social science, human- ities, rhetoric (English composition), psychology, and counseling. There is a prescribed curriculum in a 2-year program, which all students must take. The college 97 This program was not in existence at the time of the hearing in Case 1-RC-13564. Jon Westling testified that PIA is a separate academic pro- gram offering quality instruction in crafts, together with liberal education and instruction in management skills. Westhng added that the faculty of this program was included in the bargaining unit There was no further evidence on PIA, but in view of my decision here, it does not really matter 98 There is no real difference between a "School" and a "College," although the latter term tends to be applied to an institution devoted to traditional academic disciplines , classics, languages, and sciences, when a "School" carries the idea of a professional or technical institution, such as engineering, business, journalism, or health sciences. 99 At the conclusion of its presentation of evidence concerning 5 of the 13 schools, CBS, SMG, SPC, SAR, and CLA/GRS, the University stated through its counsel that it would present no evidence on the others, and that its case would stand or fall on the basis of the evidence already presented. Thereupon I ruled that I would not permit the Gener- al Counsel and the Association to present evidence on the schools not covered in the University's presentation. This ruling was upheld by the Board in an Order dated January 28, 1982. Then Chairman Van de Water, and Members Zimmerman and Hunter, were joined in a concur- ring opinion by former Chairman and Member Fanning No further argu- ments on this issue have been raised by the parties' briefs 100 Merely for convenience I will treat each school in order that evi- dence was presented by the University BOSTON UNIVERSITY offers no degree , but students who successfully complete the prescribed course of study are eligible for transfer to other schools or colleges within Boston University, or recommendation for transfers to other colleges or univer- sities . In the school year 1980-1981, CBS had a faculty of 50 full-time members . There are no part-time faculty. There were in that same year 1350 students. The college is organized into five departments, which are generally referred to as "divisions ," but according to Dean Gilbane the terms are interchangeable . The depart- ments are: science , social science , and humanities, which offer core courses over the whole 2-year period; and rhetoric and psychology , which are offered in the first year only. In the second year students are expected to choose an elective at one of the other schools at the Uni- versity, generally in a field to which the student may wish to transfer into the following year. 10 t Students at CBS are organized into sections of 30. The faculty, in turn , is organized into teams of five in the first year of the program, representing the areas of science, social science, humanities , rhetoric , and psychology; and teams of three in the second year in the area of science, social science, and humanities . Each team is assigned 120 students , and they work together , faculty and students, in a team teaching format. 3. The school of management Micheal E. Lawson, associate dean , testified that the primary mission of SMG is to deliver management edu- cation at the undergraduate, graduate , and doctoral levels; to provide additional educational opportunities to other constituencies such as the business community, and to provide a research atmosphere for the conduct of the- oretical and applied research in the area of management. The school is organized into seven departments, ac- counting ; organizational behavior ; operations manage- ment; quantitative methods; management policy; finance and economics ; and marketing . Students may study toward the undergraduate degree of bachelor of science in business administration (BSBA) or the graduate studies of master of doctor in business administration. The Boston University Fact Book shows that in the 1980- 1981 school year there were 72 full -time faculty. t 02 In that same year, there were 1932 undergraduate and 1259 graduate students, including both full- and part-time stu- dents. 4. The school of public communication (SPC) Dean Donis A. Dondis1O3 testified that SPC is a pre- professional and a professional school offering a variety of courses under the general heading of communication and including broadcasting , film, broadcast and print journalism , public relations , and other specialized areas. At the time Dean Dondis testified there were two de- 101 The student body at CBS is derived from direct applicants and re- ferrals from other schools in the University . Generally, these students have had problems with grades , test scores , or motivation , but the dean asserted that all those admitted have an excellent chance to complete a 4- year college degree 102 SMG uses a number of part-time faculty as well. isa Dean Dondis resigned as dean some time after she gave her testi- mony here, but continued as a faculty member 817 partments in the school ; a department of journalism and a department of communication . At SPC these depart- ments were further broken down into programs. The journalism department was made up of three programs, print journalism , broadcast journalism , and photo jour- nalism . The communications department also had three programs : public relations , mass communication, and broadcast and film . The school offers the bachelor of sci- ence and master of science in a number of areas, but does not offer a doctoral program. 1 °4 At SPC there are, in addition to the dean , two assist- ant deans , two chairpersons , and six program directors. At the time that Dean Dondis testified early in 1981, there were 39 full-time faculty and 48 part -time lecturers and adjunct professors . There were about 1300 under- graduate and 450 graduate students in attendance in the 1980-1981 school year. 5. Sargent college of allied health professions Dean David B. Hershenson t ° 5 stated that SAR is an academic institution within Boston University devoted to the fields of health maintenance and health restoration, that is, health care delivery other than in the fields of medicine , dentistry , nursing, and social work. The dean is assisted by an associate dean for adminis- tration . There is another associate dean 's position in the academic area, but that was vacant at the time Dean Hershenson testified early in 1981. The structure at SAR is broken down into five depart- ments; communication disorders, including programs in speech, pathology, and audiology; health sciences with programs in applied anatomy , physiology, and nutrition; occupational therapy, physical therapy; and rehabilitation counseling . All five departments offer programs leading to bachelor's, master's, and doctor's degrees in science. Each department at SAR, as at the other schools, is headed by a chairperson . The faculty at the time Dean Hershenson testified in 1981 consisted of 58 full-time members, of whom 15 were clinical professors not on the tenure track, although, by agreement of the parties, in- cludable in the bargaining unit found appropriate by the Board . At the same time there were 1160 students at SAR of whom 730 were undergraduate and 430 graduate students. 6. The college of liberal arts and the graduate school Dean Geoffrey Bannister testified about the present or- ganizational structure of this, the largest of all the schools in the bargaining unit under question here. At the time that Dean Bannister testified , in April 1981, there were 392 faculty at CLA/GRS in the bargaining unit out of a total of 407 full-time faculty, 168 part-time and 13 research faculty.106 At the same time, the dean 104 It might be noted here that undergraduate students must take ap- proximately one-half of their required courses in liberal arts that are given at the college of liberal arts . These amounts vary from program to program The requirement that liberal arts courses be taken at CLA ap- plies to all the professional schools , SMG, SPC, and Sargent College. 106 Dean Hershenson resigned some time after testifying here. 106 By my calculation this is between 40 and 45 percent of the total faculty in the unit. 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD estimated that in the academic year 1980-1981 some- where between 12,000 and 13,000 students took courses in CLA, of whom 4600 were full-time undergraduate stu- dents at CLA, and the rest were students from other schools taking required liberal arts courses at CLA. There are two associate deans at CLA/GRS. The as- sociate dean for CLA maintains the advising function for premedical students (about one-third of the incoming freshman class), including contacts with students, faculty, and the medical coordinating the progress of students in the program. In addition the associate dean advises the dean on all undergraduate programs at CLA, and main- tains the direction of a Washington-based intern pro- gram. The associate dean for GRS is a half-time position held early in 1981 by a professor of astronomy. The re- sponsibilities of this office are to maintain graduate records, to process applications for grants, contracts, and financial aid, to make recommendations for appointment of research professors and to provide service to graduate school committees. There ' are three assistant deans, one of whom handles student affairs and runs the college advisory office for students, with the help of three faculty members who re- ceive a $2000 stipend and a one-course reduction in their teaching load for acting as the college's principal aca- demic advisors. Another assistant dean is the assistant dean for freshmen assisted by faculty members under the same arrangement. Freshmen require considerably more in the way of advising than older students who can obtain advice from faculty in their area of concentration. A third assistant dean handles development and planning. According to Dean Bannister this is a new position de- signed primarily to implement a prospective grant from the National Endowment for the Humanities. This posi- tion need not concern us further. There are also about 100 clerical employees in CLA/GRS, of whom 31 work in the dean's immediate office, the others scattered through the departments of the college. CLA/GRS is divided into 20 departments107 repre- senting, I assume, the liberal arts and sciences as that phrase is understood in late 20th century America. They are: Anthropology Political Science Archaeology History Astronomy Mathematics Biology Philosophy Classics Physics Chemistry Psychology Economics Religion English Modern Foreign Art History Languages Geography Sociology Geology In addition to the departments, those functional and operational academic entities, there are other entities in CLA/GRS. There are divisions; a division of medical 107 Dean Bannister testified there were 19 departments, but a 20th, ar- chaeology, was established after his testimony concluded. and dental services operating between CLA/GRS and the medical and dental schools; a division of music, be- tween CLA/GRS and the school for the arts; and a divi- sion of theology and religion between CLA/GRS and the school of theology. All these offer joint programs leading to the master's and doctorate of philosophy de- grees. There are also entities variously termed centers, pro- grams, or institutes.10 s These are: American and New England Studies Program Afro-American Studies Program African Studies Centers Asian Studies Center Center for Latin American Development Studies Institute for Employment Policy Center for Polymer Studies Energy and Environment Center Philosphy of Science Institute of Philosophy and Religion Center for Applied Social Science The centers, programs, and institutes are organization- al entities of CLA/GRS dedicated to work in a specific scholarly or geographical area, but with interests, mainly research, which derive from two or more academic dis- ciplines. Faculty from various departments may become connected with centers, programs, or institutes,109 either as research associates, as fellows, or as directors. 110 Each center has a budget, which is a part of the overall CLA/GRS budget, but the evidence shows that in most cases funding for the activities of the centers comes from outside the University, either from grants or contracts that generate center activities, or from center activities that themselves generate income. Beyond their research functions, centers do offer pro- grams in which graduate students from Boston Universi- ty and other colleges and universities may participate, they have seminars and symposia with prominent, and not so prominent, speakers and participants and, in some cases, offer academic programs with credit toward grad- uate degrees. As in the other schools and colleges, the departments in CLA/GRS are all headed by a chairperson. Depend- ing on the size of the department, it may have one or more assistant chairpersons, an administrative assistant, and other clerical employees, and, where necessary, technical employees. 7. The selection of deans The first and second collective-bargaining agreements between the Association and the University, effective in 1979 and 1981111 respectively, set out, in almost identi- 108 There were 12 of these when Dean Bannister testified , but archae- ological studies that started out as a program, later became a center, and now is a department 109 These entities may be referred to collectively as centers 110 As directors , they may participate in the committee of chairmen at CLA/GRS Faculty who have a position in the centers always retain their primary appointment in one of the CLA/GRS departments 111 The changes in the second contract are of no consequence to the issues in this case. BOSTON UNIVERSITY 819 cal language, provisions for the selection of deans. The procedures agreed to by the parties call for the establish- ment of an advisory committee whenever "it becomes necessary to appoint a new dean ." The advisory commit- tee is to consist of six voting members, of whom two are to be selected by the school for which the dean is to be selected.112 Two others are elected by the faculty coun- cil for full-time faculty of schools other than the one for which a dean is to be selected . The other two of the six voting members are selected by the provost. If this com- mittee requests , the provost is required to appoint two students and a graduate of the school to sit with the ad- visory committee. The advisory committee is then to solicit nominations from inside and outside the University and to work with the provost (the president in the second contract) in screening candidates. The faculty of the school involved are then to meet with finalists selected by the advisory committee , to review their credentials, and to express their views to the advisory committee . The advisory committee then makes one or more recommendations to the president for final selection by the president and the board of trustees. In cases when there is a vacancy in a dean 's office, the contracts require that the provost (the president in the contract) consult with that school 's faculty and appoint an acting dean, then either initiating or continuing the process outlined for decanal selection. These contractual provisions have led counsel for the University to urge that I find the participation of the fac- ulty in this process to be managerial in nature. To the extent that faculty make up two-thirds of the voting members of the advisory committees, that would then tend to support that conclusion . The Association in its brief states merely that these committees are entirely ad- visory, and adding , inaccurately , that the committees work within a "framework" set by the administration. This ignores the fact that the "framework" is established by the collective-bargaining agreement , 113 not by the administration . The Association 's position, further, does not address itself to the question of why, if faculty have no real power to affect the selection of deans, it agreed to the contractual provisions in question . If the Associa- tion really believes that decanal selection is merely a "charade," unfolding from "preordained conditions to the foregone conclusion ,"' 14 why bother with this proc- ess? My own inference is that the position of the Asso- ciation is grounded fundamentally in the view that facul- ty participation in selection of deans is a part of the aca- demic tradition dating from the Middle Ages, and rein- 112 This provision is somewhat ambiguous. If the word "school" is taken to mean 'the faculty then it makes sense . If the word means some other entity , then it is not clear who actually names the members of the advisory committee. If the words "school" and "faculty" are, in the in- tention of the parties to this agreement, synonymous , see Yeshiva, 444 U.S. 672, 680 fn. 10. 113 The agreement is not inconsistent with art . IV, sec . 3 (formerly sec. 4) of the University 's bylaws serving to bring prospective appointees up to where the president may recommend appointment to the trustees. 114 See letter from Hyman H . Goldin to Gerald J. Gross dated No- vember 6, 1978. forced by latter day statements by the Association's parent the AAUP. 11 s Since the execution of the first contract on April 13, 1979, there have been only three decanal vacancies, in SPC after the resignation of Dean Dondis , at SAR after Dean Hershenson left the University , and at SMG after the resignation of Dean Schwartz . We do not have any evidence in this record of what happened in the searches at SPC and SAR.116 At SMG Dean Jules J. Schwartz resigned on Novem- ber 9 , 1979. The president called one of the department chairpersons , and the chairperson of the school's faculty policy committee, and asked that the committee meet and provide the president with a list of names of persons to serve as dean ad interim . A committee of chairper- sons, and the chairperson of the faculty policy committee wrote to Dr. Silber and suggested the names of Michael Lawson and Henry Morgan . The chairpersons thought Morgan would be a better choice , and the chairperson of the committee added the name of professor John R. Rus- sell, but expressed no preference . The school's faculty then met and unanimously recommended the appoint- ment of Morgan to become dean ad interim , together with a strong view that Morgan be considered as a can- didate for the permanent deanship. Following this Morgan was appointed dean ad interim by the president and the procedures set out in the collec- tive-bargaining agreement were invoked . A search com- mittee was appointed and on October 9, 1980, recom- mended to the provost, unanimously , that Morgan be ap- pointed dean . On October 20, 1980, President Silber ad- dressed a letter to the faculty of SMG appointing Morgan as permanent dean.' 17 Aside from this selection of a dean under the new con- tractual procedures, we have evidence of four dean searches that took place after 1974 but before the effec- tive date of the first contract . I have not considered the appointment of Brendan Gilbane as dean of CBS because much of the process occurred before October 1974 and I 115 In a statement adopted by the council of the AAUP in November 1974, and received in evidence here , the AAUP elaborated on its 1966 Statement on Government of Colleges and Universities and addressed the issue of the selection and retention of administration . With regard to the hiring of deans, the following appears in the statement: "Other academic administrators, such as the academic dean, or the dean of a college or other academic subdivision, are by the nature of their duties more direct- ly dependent on faculty support . In such instances, a primary faculty role in the search is highly desirable , and may be particularly critical in insti- tutions where the dean plays a directly influential role vis-a -vis the facul- ty. Even here, however, the president, after fully weighing the views of the faculty , must make the final choice. Nonetheless , sound academic practice dictates that he not choose a person over the reasoned opposi- tion of the faculty." 116 A successor to Dean Dondis was appointed around the end of 1982, and there had been no permanent appointment at SAR by the time the hearing was conducted in March 1983. I do credit the testimony of Kenneth Bloem , associate academic vice president for health affairs, that he, as the representative of the administration, consulted the faculty at SAR in December 1981 and January 1982 on the appointment of an acting dean . He testified that the name of Professor Nancy Talbot, then chairperson of the department of occupational therapy, was suggested by the other chairpersons and approved by the faculty and the administra- tion. 117 All this is taken from the credible and uncontroverted testimony of Associate Dean Lawson. 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD think that is too remote from our present concerns. With respect to the appointment of David Hershenson as dean of SAR there really is very little evidence. Hershenson himself testified that there was a search committee con- sisting of six faculty, two alumni of SAR, two SAR stu- dents, and three administrators. He applied for the dean's position, was interviewed by the search committee, the department chairperson at SAR, two vice presidents, the provost and the president, then was appointed in 1976 or 1977. This is not inconsistent with the Morgan appoint- ment,-but with so little information on how things were done, or how people voted, I cannot say that this testi- mony shows anything more than that faculty participated in the search. However, the appointments of Donis Dondis as dean of SPC, and Geoffrey Bannister of CLA/GRS, are closer in time to be considered on prac- tices which, -although superseded by the contracts, may shed some light on how the administration and faculty may act in the future. In both of these cases , it seems to me, the evidence is equivocal and really inconclusive on the role of the fac- ulty in the selection of the dean., A significant fact, as I noted in considering universitywide committees, is the presence of faculty in this process. I cannot envisage sit- uations when rank-and-file employees in the industry would serve on committees to choose plant managers of operational executives whose functions are similar to those of college deans. Obviously if the faculty members on these committees just sit there and do nothing, or if they,merely ratify decisions made elsewhere, then the participation on committees is a sham, as the Association seems to maintain . The participation of the SMG faculty did not appear to be merely a rubber stamp, but let us look at the SPC and CLA/GRS situations to see what differences,' if any, appear. At SPC, Otto Lerbinger, professor of public relations, testified that he served on the dean search committee along with representatives from the other departments at the school, ` three members elected by the senate council, two students and two people selected by the administra- tion. One of these last, Gerald J. Gross, vice president for administration was named by the provost to be chair- person. One of the SPC faculty members, Hyman H. Goldin, objected to the fact that the provost named the chairperson, and thereupon resigned from the committee. This was adverted to in the Association's brief as indica- tive of how'the administration controls this process. But the first collective-bargaining agreement, agreed to by the trustees and the Association, specified precisely that method for the selection of a chairperson of dean search committees. 118 The Association also points out that at the beginning of this committee's activity the administration, through then Provost Harold Hanson stated that Acting Dean Dondis was doing a good job and would be acceptable. Hanson did not feel that consideration of academics at other schools would be fruitful, but the committee could try to attract a nationally known figure in the communi- cation field. A communication by another faculty 118 The 1981 agreement replaced the provost with the president, but the administration still names the chairperson member (from CLA/GRS) on the committee indicates that despite the boasting of SPC faculty on the commit- tee about their "connections to the media" and the "high National standing" of the school, no worthy candidates from the media were turned up. Another communication entered into evidence by the Association shows that in spite of Hanson's recommendation against looking at other candidates from the academic world, Professor Lerbinger suggested that they do so. Vice President Gross agreed, and they looked for, but failed to fmd, other candidates. 11 9 In the end the search committee voted by seven to one, with two abstentions, to submit the names of Acting Dean Dondis and an outside candidate, to the president for his approval. Dondis was chosen and served as dean from 1979 until 1982. There is no question but that the SPC faculty was not consulted (other than in the ap- pointment of the search committee) and did not vote in the selection or appointment of Dean Dondis. The dean of CLA/GRS, Warren Ilchman, resigned unexpectedly in the summer of 1976. Academic Vice President Dean B. Doner was selected by the administra- tion as acting dean. There is no evidence that any faculty members were consulted on this. After Doner's appointment a search committee was appointed. Professor Patricia Craddock, afterward chair- person of the English department at CLA/GRS, testified that the committee was made up of 13 members, 6 of whom were faculty, elected by the faculty of CLA/GRS, and the other members were administrators, alumni, or trustees.12 ° The chairperson, named by the president, was Dean John Sandson of the medical school. According to Professor Robert Cohen, who testified at length on this subject, and as set out in the minutes of the April 27, 1977 meeting of the committee, the stand- ards for candidates seeking this job were very high. The committee worked through 1977 and eventually came up with a list of three recommended candidates, two from outside the University, and the third the acting dean, Dr. Doner. The position was offered to Doner by the presi- dent, but Doner, for personal reasons, declined. The two outside candidates were found unacceptable by the presi- dent, and the matter was returned to the committee. Now up to this point the situation seems relatively clear. Both Craddock and Cohen agree that, in this first stage of the dean search, the committee had many meet- ings and worked assiduously to cast a wide net and were successful in attracting a number of candidates who were carefully screened, and a very few were selected for an interview, finally, by the committee, the administration, and the president. They then selected three candidates, one of whom was accepted at all levels and was offered the position by the president. There is no indication in all this that faculty did not participate fully in the process, or that faculty recommendations were not made, or that 119 All the findings in this paragraph are taken from correspondence submitted in evidence by the Association 120 The minutes of this committee from April 27, 1977, show, 14 mem- bers, 7 persons with the title of professor, 3 names that I identify as trust- ees, the dean of the medical school, and 3 names I could not identify, who could be administrators or alumni. BOSTON UNIVERSITY those recommendations were ordered by the administra- tion, or were coerced through intimidation . This is con- sistent with the Morgan and Hershenson appointments. After Doner turned down the job, things became less clear . There was a period when the president ordered the committee not to bring any more candidates to the campus for an interview , but to reexamine previous ap- plicants and to pass on others on the basis of applications and supporting documents alone . Then there was another stretch when more interviews were held . Some candi- dates, according to Cohen, were rejected by a chairper- sons' caucus of CLA/GRS, others were rejected by the president . In the spring of 1978 Doner indicated that he did not wish to continue as acting dean . The chairper- sons' caucus was then asked by the president or the pro- vost to recommend names for acting dean . The caucus made suggestions regarding three or four names, which were then screened by the search committee and sent to the president . The first or second of those names was Geoffrey Bannister, and he was selected acting dean at the end of the 1977-1978 school year. In late 1978 or early 1979, according to th/testimony of Dean Sandson , the search committee was reactivated. The committee reviewed Bannister's performance and sent his name forward to the provost as one of seven po- tential dean candidates . Sandson conducted a poll of committee members and those polled voted unanimously to recommend Bannister as dean , and he was so selected. There was considerable evidence in this situation that there was less faculty involvement in the process in this final stage then in the first stages of this dean search. There was evidence that the chairpersons of CLA/GRS had voted unanimously for some one other than Bannis- ter. After all, Bannister was an untenured assistant pro- fessor, only 32 years old at the time of his appointment as acting dean . These facts would hint at an inference that there was pressure on the search committee to vote in favor of Bannister, both as acting and as permanent dean . But there is really not enough convincing evidence that these appointments were pushed through over the opposition of the faculty. Approval for one candidate does not necessarily signify disapproval of another, and no showing of real disapproval of Bannister has been made here. To conclude, there is evidence that faculty members do participate in the dean selection process . That partici- pation is active, meaningful , and includes conducting searches for likely candidates,121 screening these candi- dates by studying their applications , resumes, and other documents , interviewing candidates, and joining with ad- ministrators, alumni , trustees or students , however search committees are made up , in making recommendations to the president . In the case of the Dondis appointment at SPC, the Morgan appointment at SMG, the Hershenson appointment at SAR, and in the first stage of the CLA/GRS search , the Doner recommendation , all have been acceptable to the president, these recommended were offered the positions , and in all but the Doner situa- tion, accepted the position as dean . There are equivocal 121 Even though, in the case of SPC, apparently they could not attract high caliber outside candidates either from the media or the academy. 821 elements in both Dondis and the Bannister appointments, but there is no substantial evidence that contradicts my findings here. F. Faculty Participation in Government at the Schools and Colleges 1. In general The bylaws of the University , established by the board of trustees , and as last amended on October 31, 1979, ex- press the expectation in article IV ,4, that all faculty members will attend the regular and special faculty meet- ings of their college or school , as well as those of the University . Voting rights are limited to the dean , profes- sors, associate professors , assistant professors , and other teaching staff as provided in the school or college bylaws and approved by the dean and the president. This section of the university bylaws goes on to state that the faculty of each school or college shall have authority to establish rules and regulations concerning its academic requirements, with the approval of the dean and appro- priate academic vice president. Each of the schools involved has adopted some sort of formal government document , a constitution (CLA), bylaws (SPC and SAR), a faculty manual (CBS) or just a government document (SMG).122 The university bylaws assume that each school and college will have its own set of bylaws and the university bylaws grant to the fac- ulty of each school and college the authority to set their academic requirements , subject to the approval of the dean and academic vice president , but beyond these two areas, the adoption of bylaws and academic requirements the university bylaws seem neither to permit nor pro- scribe what the faculty may or may not do in this area of government. As I have already noted , major questions of policy, or governance if you will , are decided without formal or se- rious faculty participation at the university level. As pre- viously noted , even school or departmental budgets are processed through chairpersons and deans without par- ticular reference to faculty. It follows, then, that references to "government" at the school or departmental levels will be concerned with matters other than major questions of budget and policy. Those matters are: what is to be taught ; what research is to done; how are teaching and research to be conducted; and who will perform these tasks . The remainder of this decision will explore the relative actions and interactions of faculty and administration in determining , within the limitations imposed by major policy decisions and budg- 122 None of these has been approved by an academic vice president, the provost, or the president There was a lot of discussion on the record about the validity of these documents in view of the university bylaws requirement that such actions by the schools and colleges be approved by the central administration. However, there has been no authority cited to show that the documents complained of are invalid. The schools, col- leges, faculties, and the University have been operating under them for years. The administration, the ostensible approving authority, has raised no question concerning their validity. I find, therefore, that these govern- ance documents are de facto valid. Any procedural defects in them have been condoned and accepted by the administration, and they are not sub- ject to collateral attack, unsupported by legal authority, in this proceed- ing. 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD etary constraints, who will teach, what courses will be offered, when they will be scheduled, and to whom they will be available. What "teaching methods, grading poli- cies or matriculation standards" will be followed and "which students will be admitted, retained and graduat- ed." Whether faculty, on occasion have power to deter- mine "the size of the student body, the tuition to be charged, and the location of a school."123 This section will look at basic government or proce- dural documents, constitutions, bylaws, or governance documents, as the case may be, and the internal adminis- tration of,the schools and colleges, to test the relative au- thority of faculty and administration at that level. A common thread running through the evidence on the schools and colleges is the ubiquity of committees of all kinds, shapes, and sizes, from standing committees, to ad hoc committees of all descriptions, established to consid- er and recommend on all sorts of subjects. A second, less prominent thread, is the almost universal habit of faculty and administrators of seeking consensus in the decision- making process, mostly within this committee-shaped system of government. 1124 In addition to the operational machanics of the schools and colleges, I will look, in this section, at the number of incidents involving the discontinuance of departments and programs, and mergers of splits of schools and de- partments, alleged by the Association in its brief as showing administration action taken without faculty con- sultation, and demonstrating, in turn, the essential power- lessness of faculty in the face of administration actions. In general I see no distinction in kind between the ac- tions catalogued by the Association on this subject in its brief, and the exercise on unilateral administrative au- thority on major policy issues and budget at the universi- ty level. The evidence on these incidents is relevant and has been carefully considered in my decision here. I do not believe, however, that the incidents are important enough, neither showing a consistent and frequent pat- tern, nor varying to any degree the authority actually ex- ercised in other matters by the faculty, to allow me to conclude, on that basis alone, that faculty are not manag- ers or supervisors. 2. The college of basic studies Dean Brendan Gilbane of CBS testified that the main governing body for the college is the faculty assembly, a group that includes all full-time faculty. The assembly meets once a, month unless there are no items on their agenda, in which case they do not meet. The dean pre- sides over the faculty meetings, reading announcements and participating in the discussions. Gilbane did say that he has the authority to vote, but he would only do so in 123 Yeshiva, supra, 444 U.S at 686. 124 This leads to instances when one reads through dozens of pages of minutes of a series of faculty meetings, following the discussions and de- bates on a particular issue. Later the minutes show that issue is resolved, but there is no recorded vote of the meeting, and one is left with the question of whether the issue was decided by the collegial voice, of facul- ty, or by the administration, or by some other process. Aside from my own problems with it, this phenomenon tended to confound witnesses for all parties here in attempting to be precise in describing faculty or admin- istration actions. the case of a tie, which has not happened since he has been the dean. Although he has the power to veto facul- ty action, Dean Gilbane testified that he has never done so. The minutes of the faculty assembly were entered into evidence the period from September 1976 to April 1980: In these I have noted discussions by faculty concerning their participation in building up alumni activities, ap- pointing a faculty committee to promote faculty study and use of articles and books on skills and methods of teaching; several discussions, and eventual faculty rejec- tion, on setting up programs within the college to serve students with reading disabilities; approving a 2-day reading period in December 1977; suspending special limitations on freshman participation in intercollegiate athletic programs; nominating and electing the winners of two $1500 scholarships; debating electives and changes in program requirements; and discussing at length a study skills program, to remedy students' defi- ciencies in reading. The dean identified a faculty manual which is dated August 1978 and stated that this was a revision of a prior, 1964 edition of the manual, and that the 1978 edi- tion had been approved by the faculty. A review of the minutes of the faculty assembly for 1977 and 197'8 does not reveal either that faculty members were appointed to revise the manual , or that the revision was approved by the faculty. None of the faculty witnesses talked about this manual, or whether it had or had not been revised by, or approved by the faculty. I did find Dean Gilbane to be a credible witness, but I cannot speculate about the origin or approval of this manual, so I will not use it in reaching my conclusion here. There is enough evidence here, in the form of sworn testimony, to allow me to reach certain conclusions re- garding the role of faculty at CBS. Beyond the activities of the faculty assembly, whose membership is open to all faculty, there are a number of specialized committees, whose membership is more limited. The most prominent of these is the dean's advisory committee, made up of the dean, the associate and assistant deans, the 5 division chairmen, and 12 team coordinators. 125 The council con- siders all policies, practices, and procedures relating to the college's programs, and makes recommendations to the faculty assembly for decision. Other committees at CBS include a college appoint- ments, promotions, and tenure committee, mandated by the collective-bargaining agreements, and composed of five tenured faculty, one from each division. Before the contracts, the dean's advisory council filled these func- tions. There is a college admissions committee made up of three senior, tenured, faculty. The assistant dean con- venes this committee, handles the paperwork, and keeps records, but does not vote. CBS has a unique admissions 125 The number of team coordinators, who are elected by their col- leagues, varies with the number of teams. A first year faculty member, Professor Linda S. Wells, testified that in her first year.at CBS she was elected to represent her team at the dean's advisory council She partici- pated fully in discussions, voted, and otherwise was a full member of the council. BOSTON UNIVERSITY 823 system that will be more fully explained in the section of this decision dealing with student admissions . Suffice it to say here that this college admissions committee deals primarily with applicants whose qualifications do not en- title them to automatic acceptance . The committee mem- bers review these areas and recommend either accept- ance or rejection. There is an affirmative action committee , composed of faculty, whose function is to monitor the implementation of the college's affirmative action goals . Members of this affirmative action committee are either appointed mem- bers of faculty search committees , or they have the duty of monitoring the decisions of such committees. The capstone project committee deals with the col- lege's capstone project. For over 20 years the college has required second year students to undertake a project to pull the students and what they have learned in their 2 years at CBS together into a "dramatic" concluding project. The capstone project committee is made up of the sophomore faculty, who pick the topic each year and structure the project that involves all the sophomore fac- ulty and all the sophomore students . Professor Robert B. Wexelblatt testified that he, as an individual faculty member, recommended a "major" change in the cap- stone project in the 1976-1977 school year . His ideas were accepted by the faculty of the college and have been used ever since. Five to seven faculty members serve by appointment of the dean on the college's curriculum committee. They are responsible for recommending to the faculty assem- bly any major curricular changes . There is general agree- ment that the faculty sets the curriculum and must ap- prove any changes in that curriculum . However , there is also agreement that the curriculum developed over the years since the founding of the college in 1952 has proven successful and any change must , according to the dean, "evolve" within the confines of the obligations the college has in preparing students for continuation within the University, or elsewhere. This can lead to restrictions imposed by division chair- persons-Professor Frederick M. Koss, of the social sci- ence division 1 z 6 testified that he favors a lecture method in teaching , and that some faculty have objected to this method, but he will not change it and faculty have no choice in that. There is a freshman orientation committee, a group of faculty who organize an orientation program in the spring for prospective freshmen , trying in the words of the dean , to turn applicants into registrants. Finally, at the college level , there was an ad hoc facul- ty evaluation and development committee . This consists of three tenured and three untenured faculty appointed to explore a student evaluation form through which stu- dents were able to evaluate faculty. This committee worked during 1980-1981 , devised a new form that was approved by the faculty and began to be used in that same school year. 126 At CBS, -unlike CLA, the chairpersons seem to stay on indefinitely. Koss, for example, was chairperson of social science before 1974 and In each division there are committees on curriculum, textbooks, and faculty search , and ad hoc committees in various subjects including merit pay but there was very little testimony about these committees and their work. 12 7 There are several incidents at CBS which, the Asso- ciation claims, show unilateral "structural changes" having a "significant impact on teaching , faculty work- load, and student academic life." The first of these was the halving of the rhetoric division staff in 1976 . Profes- sor Dolores M. Burton testified that the reduction in staff was not discussed with her , and that she was not aware of any discussion by the dean with an rhetoric division faculty. The dean did testify that the change in 1976 was the result of a faculty vote in 1972 to discontinue the second year rhetoric, psychology , and counseling courses . According to the dean , the reduction in the rhetoric division faculty was a natural consequence of the 1972 vote and was so understood by the faculty. This view was corroborated by Professor Wexelblatt, a wit- ness called by the General Counsel , who recalled the 1972 vote as having "far-reaching implications for indi- viduals on the faculty , as well as for the nature of the program ." Wexelblatt did agree with Professor Burton, however , that the actual implementaion of the reduction in rhetoric staff in 1976 was not discussed with faculty. Also in 1976 , the dean agreed with the college of engi- neering to use CBS faculty to instruct ENG students in rhetoric and psychology . Dean Gilbane admitted that he did not discuss this with faculty , and there was no vote of the faculty on this matter. In 1978 the dean wrote to the academic vice president recommending the latter's approval of a reorganization of the psychology and counseling division taking the fac- ulty members of that division out of the tenure track and out of faculty status , and making them administrators. The dean's memorandum of January 9, 1978 , mentions that this was discussed several times, with division chair- person but there is no indication that either the division faculty (soon to become ex -faculty) or the college faculty ever agreed with this reorganization. The last incident cited by the Association as demon- strating faculty impotence in the face of unilateral admin- istrative action concerned the so-called "skills" program, the college reading and study skills program (CRS). There were discussions of a skills program in the faculty assembly at CBS beginning in May 1977 and apparently a voluntary program was to begin in the fall of that year. The faculty was concerned with reading problems of stu- dents and wanted to see what could be done about it. By May 1979 the faculty voted to require students to take part in study skills programs because voluntary participa- tion was not effective . Up to this point there seemed to be no questions about the program . However, during the summer of 1979 the dean had some nonfaculty "skills specialists" work up the details of the program , in con- sultation , according to the dean , with faculty in the rhet- oric division , and other team and division chairpersons. gave no indication that he was going to step down in the immediate 127 I will discuss the work of this search committee and those of other future schools in sec. I1I,I, below 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Apparently there was not much contact because there was considerable discussion by the faculty at their Octo- ber 5, 1979 assembly on the program as it was instituted. It was finally voted to allow the rhetoric faculty to "retain the responsibility" for the program, and, accord- ing to the dean, the program did not ever become man- datory.12s I cannot infer from these incidents that there was or is a practice at CBS of unilateral administrative actions af- fecting faculty, students, or programs. The use of CBS faculty to teach students from ENG is minor in nature, the implementation of the study skills program in the fall of 1979 without prior faculty approval concerning details of time or content is not only minor, but, according to faculty minutes was actually approved by the faculty, albeit in a somewhat different context. Regarding the two important incidents, the termination of faculty in the rhetoric division was, I find, inherent in the 1972 vote to eliminate second year rhetoric. If there was a fault by the administration, it was in not consulting the rest of the faculty on how the inevitable reduction would be accom- plished. Finally, on the conversation of psychology and counseling faculty to nonfaculty status, there is not enough evidence to allow me to find that the division chairperson either did or did not consult with the divi- sion faculty. The conclusion 'that I can draw from all this evidence on CBS, and particularly from my observation of the dean and the faculty who testified are, first, that the col- lege is governed primarily by the dean. The dean formu- lates the college budget, after consultation with division chairpersons and, as revealed by correspondence in evi- dence here, frustration with administrative cheese paring. He takes the lead in discussions at the faculty 'assembly meetings, as shown by the minutes and, as noted in the previous paragraphs, he has taken actions on his own, which, in my view, place him in a prominent position in college governance. This is not to say that he governs alone. The faculty assembly, judging from the minutes of its meetings, is a body that is vitally concerned with all aspects of the aca- demic program, and there are ongoing discussions on how to improve the educational program. It is true, as Professors Koss and Wexelblatt and Dean Gilbane stated, that the program is relatively inflexible in its basic framework, but I ford that that inflexibility is based on 30 years or so of experience with the program, and there was no indication in the record either that the program was imposed by the dean or administration, or altered by the administration, or that there was any widespread dis- pleasure with the program by college faculty. Moreover, this inflexibility does not deter discussion on improved methods to implement the program. My observation of the witnesses shows that there are senior faculty who are strong-minded and forceful in ex- pressing their, views. Certainly Professor Koss, Fogg, and Wexelblatt are that type. However, the testimony of two first-year faculty members, Linda Wells and James King shows, too, that they are not relegated to the back benches, but are full participants in department, college, and university councils. I ford, then, that the faculty at CBS, and I mean all the faculty, senior and junior, have, effective control over the curriculum of the college. To the extent that the curricu- lum, the program offered, composes the primary business of the college, then the faculty exercises governmental authority in that area. 3. The school of management Testimony concerning government at SMG was limit- ed to that of Associate Dean Michael C. Lawson, Profes- sor Lawrence H. Wortzel, and former Professor Michael J. Maggard.129 The testimony of Wortzel and Maggard dealt with specific factual situations, not with the general scheme and pattern of Government. Thus the testimony of Lawson stands undenied. Lawson impressed me as a credible witness. He had a good memory in complex areas, he generally gave the impression of candor and helpfulness, and his testimony was corroborated by docu- ments introduced during his testimony. Government, or "faculty governance," at SMG is the subject matter of a document not otherwise named, which according to Lawson's testimony, and as noted on its face, was voted by the faculty on December 12, 1975, with various additions and amendments on subsequent dates. This document, referring to the university faculty manual, fords its starting point in statements in the latter manual that "Each faculty determines academic policy for its own College"; that each faculty "has the authority to establish rules and regulations concerning the academ- ic requirements of its own school or college"; and "Any new academic program or revision-must be voted by the faculty." The SMG governance document goes on, then, to assume, I think correctly, that the vagueness in these provisions was due to the fact that "the academic collegial tradition and various ad hoc accommodations would be brought to bear in creating a workable mode of governance." The document lists the duties of the dean, taken from the university faculty manual, with additions deriving from "SMG tradition." These duties are: (a) Maintenance of academic standards in teaching, re- search, and service by the faculty. (b) The selection and promotion of faculty members. (c) Budget preparation. (d) Supervision '6f curricular changes. (e) The observance of academic rules,and' regulations. (f) Maintenance of student morale. (g) Determination, in cooperation with department chairmen of faculty teaching, research, and other duties. (h) Maintenance of academic relations _ with other schools and colleges. "In addition, by, administration direction or tradition, the deans at SMG,, and their support staff, Piave responsi- bility for: 128 The matter of the 27 faculty who applied for a "professional day" exemption in April 1981 I consider to be an incident manufactured for purposes of this hearing and I decline to consider it as suitable evidence on which to base conclusions as to the government of CBS.- 129 Professor John. Aber , from SMG testified aboznt the university budget, but not about government matters at SMG. } ; ; BOSTON UNIVERSITY 825 (a) Alumni and community relations , including fund raising and the production of internal and external com- munications media. (b) Certain registrar-type functions, including grade re- cording, and graduate admissions and placement. (c) External representation in accrediting associations, foundations , government bodies, other universities, and the professional management community. What is described , rather poetically for a business school document, as "The Realm of Faculty Responsibil- ity" includes the following: (a) Determine academic policy for the school. (b) Establish rules and regulations to implement this policy. (c) Determine the curriculum of the school. Any latent ambiguity about who is really responsible for curriculum , and for the establishment of rules and regulations on academic policy, is dispelled by a review of Lawson's testimony and, even more so by analysis of the minutes of the SMG faculty meetings in evidence here. The governance document provides for the creation and election of several committees . The first of these is the faculty policy committee , known as the FPC. This committee is composed of seven faculty members, one from each of six departments , one at large , and the dean. The committee has broad responsibilities, including gen- eral oversight of all matters of academic policy and is charged with authority to act on behalf of the faculty in matters of school budget in preparatory and active stages; facilities , including classrooms , offices, computer services , libraries, and security ; long-range plans for the school and faculty recruitment ; oversight of all academic programs , and evaluation of proposals for new degree programs ; and oversight for undergraduate and all grad- uate programs. What the FPC does not have responsibility for is left primarily to the academic standards committee, which has responsibility for supervising , interpreting, and re- viewing the academic standards established by the facul- ty. There is also a faculty actions committee , consisting of all tenured faculty members and responsible for advis- ing and consulting with the dean and department chair- persons on faculty promotion , tenure , and develop- ment.1 so There is also an executive education program commit- tee, created by the faculty to establish and run programs for outside people , executives and other people who are not full-time or part-time students, in the nature of a con- tinuing education program . These programs vary from a few hours to 1 or 2 hours a week for a full semester. Any profits generated from tuition in these programs are retained by SMG and some profits may be retained by sponsoring departments.' 31 130 After the effective date of the first contract, the faculty of SMG, on recommendation of the FPC, voted to create an appointments , promo- tions, and tenure committee, as mandated by the contract. However, under the SMG procedure, the APT committee reports through the old faculty actions committee to the school's faculty. 131 There id not much evidence on this program , but it is an example of faculty enterprise of which other examples ' will be discussed below. The faculty policy committee at SMG acts as an exec- utive committee , as a committee on committees, as a ways and means committee , and as a general clearing house for proposals on revisions of the governance docu- ment itself; nomination for all other committees; new or restructured courses; discusses budgetary matters; and either discusses or recommends virtually every action taken by the faculty . The members, as shown by the minutes of the faculty and of the FPC in evidence, take themselves and their responsibilities seriously . The min- utes show that the faculty will not generally even con- sider proposals in any area until they have been cleared by the FPC. There is no indication in the record that the dean or the administration have vetoed or thwarted ac- tions recommended by the FPC and voted by the SMG faculty. The Association cites two instances when the adminis- tration of the school took arbitrary and unilateral action, involving in one instance a department chairperson, and in another the splitting of one department into two. Pro- fessor Lawrence H. Wortzel testified that he was the chairperson of the department of marketing in 1975, and that in August or September of that year he was notified by then Dean Gabriel that he was to be chairman no longer. Thereafter, Professor Ronald C. Curhan was named chairman without any consultation with depart- mental faculty . A grievance was filed but nothing further happened . Professor Wortzel's testimony was corroborat- ed by contemporary documents and by a member of the grievance committee that handles the grievance. In a second instance , Lawson testified that the oper- ations management and quantitative methods depart- ments, which had operated as one department, were split into two departments early in 1979 . Lawson himself was not familiar with exactly what had happened , but corre- spondence from former Dean Jules J. Schwartz indicated that he, Schwartz , had discussed the breakup with facul- ty in the affected departments . Micheal J . Maggard, for- merly with the quantitative methods department, now employed at another university in the Boston area , testi- fied that the matter was not discussed with him or other faculty. With regard to the Wortzel matter the evidence is clear, the dean fired Wortzel and appointed Curhan with no consultation . The operations management, quantita- tive methods case suffers from too little reliable evi- dence . Schwartz, the former dean , who so far as I can see from the catalogs in evidence , is still at SMG as a faculty member, was not called to testify . Maggard, on the other hand, was a candidate for the chairperson's po- sition in operations management and was passed over. I think his testimony in this regard is somewhat unreliable. I can come to no conclusion on this last case. The evidence on government in SMG shows clearly that the principal instrument of government at the school is the faculty policy committee . This group evinces at least an awareness of the budget process, and has made effective recommendations on the continuation and later termination of an SMG overseas program in Brussels, Belgium ; in the establishment of the executive education program; and in new degree programs . Obviously, the 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FPC is the representative of the faculty, and in a sense, what the FPC does is the action of the faculty. This committee is different from committees in any of the schools and colleges studied here in its sincerity, its dedi- cation to its task, and in the respect and deference ac- corded its recommendations by the faculty and adminis- tration alike. Through the FPC, the faculty at SMG have effective control over the curriculum and program in the school, and through the executive education pro- gram and the overseas program at Brussels, with pro- grams connected with and sponsored by the school, but outside its boundaries. Beyond this, the faculty through the FPC, oversees and 'supervises the day-to-day oper- ations of the departments and the school itself. 4. The school of public communications Donis Dondis, dean of SPC from 1979 to 1982, testi- fied that the faculty of the school determined in 1975 to establish a set of bylaws as the governance document for the school . The faculty set up a committee that drew up a set of bylaws, which, in turn , were adopted by the fac- ulty on November 25, 1975. The new bylaws acknowl- edged that the power under which they were enacted sprang from the University's bylaws, and went on to state that the legislative power of the school faculty in- cluded "such fundamental matters as the subject matter and methods of instruction ; requirements for admission, for academic performance , and for granting degrees; major changes in the size of the student body ; the rela- tive emphasis to be given to various components of the program , and the school ." At the suggestion of Dean Dondis, because of the effect of the first collective-bar- gaining agreement and the restructuring of the school from three to two departments, another faculty commit- tee undertook to amend the bylaws, which then were ac- cepted by the faculty . Again in 1982 , restructuring of the school to four departments led to another revision of the bylaws. All these actions were taken without participa- tion or interference by the dean, and neither dean nor provost nor president has ever approved the documents. The clause quoted from above has remained unchanged. The bylaws'32 provide for a number of committees in- cluding a faculty council, which, according to the dean, was not active in the years for 1979 to 1981 . The stand- ing committees include a school appointments , promo- tions, and tenure committee , set up in accordance with the terms of article V,C,2, of the first contract , consisting of six members, all tenured and charged with reviewing tenure applications and making, recommendations to the dean. There is an academic affairs committee , which is described in the bylaws as having functions in the area of internal communications , in mediation of student griev- ances, and on admissions, class, size, goals, academic standards , and faculty evaluation . Dean Dondis testified that this committee did not really do the things listed here, but did work on an ad hoc basis as directed by the faculty. The dean testified that one such item was the ap- proval of participation in Army Reserve Officer Training 132 I have used the 1980 edition, which was in effect through most of the period taken up by this hearing, to describe the various committees. This is supplemented by the testimony of Dean Dondis Corps (ROTC) by students and receipt of course credits at SPC for students participating in the program. The committee duly recommended this program to the facul- ty, and the faculty voted at its meeting on May 13, 1980, to accept the recommendation. The minutes of the SPC faculty meeting also show approval by the faculty on February 17, 1981, of an academic affairs committee rec- ommendation that undergraduate courses given under the auspices of the Harvard extension division be accept- ed for credit at SPC, and, at the same meeting the com- mittee was studying the question of an inordinately high number of honor graduates at SPC. The curriculum committee is responsible under the bylaws for considering specific courses and sequences of courses before the courses go to the faculty for approval, and for periodic reviews of existing curriculum. The dean described the process of approval of courses and degree programs at SPC. Proposals for new degree pro- grams originate with individual faculty members, or with program or department faculty. The programs must be approved by the program faculty and the department faculty before going on to the curriculum committee. The committee then studies the proposal and if its rec- ommendation is positive sends it on to the SPC faculty meeting. On approval by the faculty, the program is sent forward by, the dean to the provost's office and thence to the trustees. Dean Dondis testified that no program sent forward by her to the provost and trustees had ever been rejected by them.133 In addition to these committees established under the bylaws there are several ad hoc committees made up of faculty and established either by the dean or the faculty to study and make recommendations in areas that are not handled by the standing committees. There is a commit- tee on graduate studies; a space committee, concerned with overcrowded conditions at SPC; an archives com- mittee charged with preserving the "Morgue" or clip- ping files of the old Boston Herald-Traveler newspaper; a commencement committee; an academic standards com- mittee, created by the faculty to look into problems of plagiarism and, other student misbehavior; an academic scholastic review committee, a committee whose mem- bership varies, but is appointed by the chairperson of a department from the faculty of that department wherein a student has been charged with plagiarism, forgery, or misrepresentation, together with an assistant dean. The committee reviews the evidence against the student and makes a final disposition of the case. No review of this disposition is permitted. In its brief, the association has raised the issue of the ,SPC faculty's participation or, rather, nonparticipation in a series of reorganizations affecting particularly the areas of public communications, public relations, and broad- cast, and film. The first of these to occur within our time frame here, was brought about by then Dean Wicklein, who merged the public communications and public rela- 183 Single courses are proposed by faculty and considered by the pro- gram and department then sent to the curriculum committee and the fac- ulty. If approved they are put into the curriculum, There is no require- ment to send individual courses forward for approval ,to the dean and provost BOSTON UNIVERSITY 827 tions departments into one department , at the same time abolishing a division called communications research, and terminating a nontenured faculty member in the process . At that time Dean Dondis was the chairperson of public communications , and she testified , somewhat vaguely I must say, that she discussed the merger with her department faculty , but she could not recall that Wicklein ever discussed the merger with any faculty. In any event it is clear that neither of the affected depart- ments held a faculty vote on the merger. There was some faculty discussion as the subject of re- organization during 1977 and 1978 . At Dean Wicklein's suggestion, the journalism department , through a memo- randum written by Professor Robert Baram, made a number of recommendations , including one that the ex- isting departmental structure be maintained , and one that administrative leadership be reorganized and improved. Professor Otto Lerbinger of public relations also submit- ted suggestions. There is no indication that anything was done about these suggestions and recommendations although, per- haps coincidentally , Dean Wicklein was succeeded by Dean Dondis as acting dean in 1978 . Dondis, again, was unclear in her testimony on events in the summer and fall of 1978 . She did make a proposal to reduce the number of departments to two , with associate deans in place of chairpersons , but there is no evidence that this was ever implemented . Dondis stated that this was only one among several proposals put forward around that time, but she could neither produce nor recall the sub- stance of any other proposals . There were ongoing dis- cussions about reorganization . Dondis was concerned, I find, about the high per-student cost of running the broadcasting and film department and she felt that by folding that department into the communications depart- ment considerable savings could be realized. She testified that she sought advice from all members of the affected departments . 134 There was a lot of conflicting testimony from Dean Dondis , and professors Bluestone , Barcus, and Lerbinger about the faculty 's involvement in the merger itself and in subsequent discussions on either re- maining merged , or breaking apart . Matters really are confusing in this testimony , but I think the evidence suf- fices for me to find that there were sharp differences be- tween the faculty involved , first on the question of the merger itself, and, second, on how to treat the combined departments philosophically and academically , and how best to get the most effective programs for students out of the merged departments . Finally, in December 1981, the new vice president for academic affairs, Russell Jones, met with faculty members of each of the three programs from the combined communications depart- ment . Meeting separately , the faculty voted to sever themselves and form three separate departments. Jones 184 From this incident as well as others connected with the hiring process, it is apparent that Dean Dondis operated by a kind of informal consensus, sampling faculty opinion in corridor or office discussions, away from the traditional school or departmental meeting. This method may save time, but it can lead to misunderstanding on what is asked, or answered , and may well leave some not consulted at all. then approved the break up.135 This may or may not be the last act in that drama, but it is the last evidence we have in this record on the subject. Like so many issues in this case , the meaning of all these facts is not precisely clear . Dean Dondis impressed me as a credible witness, but her memory was admittedly not good . Her testimony in other areas , such as faculty hiring, reappointments , and tenure, shows that she had a practice of stopping people in the halls, or popping into their offices, or while they came to pick up the mail in her office, and confronting them with questions about what they thought of this candidate, or that reappoint- ment . This is consistent with Dondis' informal discus- sions with faculty while she was department chairperson in public communication concerning Wicklein's proposed 1975 consolidation ; and with Dondis' reactions when, as dean, she consulted with faculty in communications and broadcast and film about the 1978 consolidation to those departments . But this, for all that it closely follows the facts that I find based on the evidence here , does not answer the question of whether, as the result of the dean's peripatetic polling of faculty , those faculty agreed or did not agree with the proposition being put to them. Dean Dondis said that they did agree , and in the absence of any substantial evidence to the contrary I will agree with that statement.136 Therefore, I find that there was some informal consul- tation by the dean with faculty during these reorganiza- tions, consistent with the method of operation Dean Dondis used during her term as dean . There was a lack of enthusiasm for the mergers by some faculty , but not by all, and even in December 1981 , when the mergers were undone, there was still one group , in public rela- tions, who opposed the break up of these merged depart- ments. At SPC, as at CBS, and in contrast to SMG, I find that the dean is the most influential factor in the manage- ment of the school . However, in accordance with the terms of the bylaws and the unified testimony of all the witnesses for all sides here, the faculty is the only au- thority to "alter, amend or remove courses from the cur- riculum, and accept or reject new programs," regardless of. structural and administrative changes .'37 In accord- ance with my conclusions on Dean Dondis' methods of operation , I find that she did have a policy of consistent, if informal, consultation with faculty in the management and administration of the school.' s s In terms of these 'SS I cannot avoid the suspicion that this action by the administration may have come about as a result of the testimony already received in this proceeding, but any such played no part in my decision here. 'as Although it is evident that there was some unhappiness with these mergers ; if that was not articulated to the dean , how could she know about it? In this regard, see the memoranda from Walter Lubars to the faculty of mass communication , public relations, and broadcasting and film dated December 12, 1979 . It is difficult , after reading this, to deter- mine just what the faculty wanted. 187 See testimony of Professor Robert Baram and a memo written by Baram on the reorganization of SPC dated December 1977 ; testimony of Professors Kay Israel, Earle Barcus, and Otto Lerbinger, as well as that of Dean Dondis 199 This was not confined to tenured faculty as noted by Professor Kay Israel, an untenured faculty member, withal a dynamic and articu- late young man. 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consultations, at the faculty control over curriculum, I find they play a substantial part in the operations of SPC. 5. Sargent College of Allied Health Professions The principal witness on the subject of governance at SAR was Dean David Hershenson. As with the other schools and colleges, SAR has a set of bylaws, adopted by the faculty in May 1976. These bylaws, like the others, emphasize the "legal responsibility" of the faculty for "such fundamental matters as the subject matter and methods of instruction; requirements for admission, for academic performance, and for granting degrees; major changes-in the size of the student body; the relative em- phasis to be given to various components of the pro- gram, and the college. In addition to these provisions, which are similar to those at SPC and SMG, the SAR bylaws show that the framers recognized faculty responsibilities to students and beyond the college itself An added function of Sargent College is to pro- vide educational experiences that will insure the highest level, of competency in the health profes- sions of each of its graduates. The Faculty of,the College recognizes that they are responsible to their students for the exercise of these functions. In addition, the Faculty recognized that they are both responsible and accountable to the community for the competence of each health professional who is granted a degree from the College. It is the accountability to the health consumer that makes it critical that the Faculty of the College exercise their responsibility to participate in the making and carrying out of decisions on educational policy. There, phrased simply and succinctly, is a point that I think expresses the distinction between the' merely pro- fessional' side of the faculty's function, not only at SAR, but throughout the University, to train students so that those students attain the highest levels of competence, and to represent to the community at large that gradu- ates of the college are competent; and what may be con- sidered the managerial function in ordering the educa- tional policies of the college to permit the faculty to attain these stated professional goals. The bylaws establish a faculty council, composed of representatives from each of the college departments, the chairpersons of all standing committees, the college's del- egate to the university faculty council, and the associate dean for academic affairs. The council has responsibilities to appoint members to standing committees; to review the functions and duties of standing and ad hoc' commit- tees; to review all matters affecting two or more depart- ments, or any matter referred to it by any other body in the college; to make recommendations to the faculty on academic policies and procedures, curriculum revisions affecting two or more departments, new degree pro- grams, faculty development, policies and procedures for appointments, promotions, tenure, and salaries, and ad- mission standards and involvement; and to the adminis- matters concerning the physical plant, supplies equip- ment, maintenance, teaching loads, faculty assignments, student-teacher ratios, and other matters touching on the effectiveness of the faculty. Dean Hershenson testified that this council operates as sort of an executive committee to the faculty as a whole. However, the minutes of the faculty meetings indicate that the faculty council does not function with either the authority or the scope of the faculty policy committee at SMG. The faculty council reports to the faculty con- cerning mainly questions of nominations and appoint- ments to the several standing and ad hoc committees. There is not any channeling of committee reports through the faculty council. Rather, the standing com- mittees report directly to the faculty meeting. Another group established by the bylaws is the admin- istrative council. This is composed of the dean, the asso- ciate dean, and the departmental chairpersons. Their re- sponsibility is in the areas of financial planning and budget, matters referred by the central administration of the University and academic and support services for students, making recommendations to the dean on these and other matters. Again there is no evidence on this council, except for a broad, general, statement by the dean. There are six standing committees created in the SAR bylaws. The chairpersons are elected by the faculty of the college.139 Other members are appointed by depart- mental faculties and approved by the faculty council. Under the bylaws the academic policies and proce- dures committee (APP) is responsible for the "coordina- tion and implementation of policy concerning undergrad- uate and graduate academic standards and procedures as set forth by the Sargent Faculty and the University Ad- ministration." This committee is also the final step in a student grievance procedure. As outlined in Dean Her- shenson's testimony, the APP committee's decisions re- garding grades, taking of makeup examinations, or other student academic grievances are final and there is no fur- ther appeal. There are also committees on appointments, promo- tions, and tenure, as at the other schools and colleges; a committee on faculty development, which is supposed to help faculty performance and aid faculty development. This committee also has developed standards, later ap- proved by the faculty, for an award donated by an alumna of SAR to an outstanding faculty member. There are committees on undergraduate education, and graduate education, and provisions in the bylaws for the establish- ment of ad hoc committees to deal with issues outside the scope of the standing committees. Pursuant to its argument that the administration has unilaterally reorganized schools and departments,,the As- sociation points to the termination of the program in audiology in the communications disorders department as evidence of such unilateral administrative action. The evidence adduced, however, does not bear, this out. Pro- fessor Herman A. Schill, a professor of audiology, testi- fied that the department chairperson, Professor Nicholas tration on the structure and organization of the college; 119 This is corroborated in the minutes of SAR faculty meetings BOSTON UNIVERSITY 829 W. Bankson , had relayed word from the dean several years ago that the student-teacher ratio in the audiology program , about 3-1/2 faculty to something under 10 stu- dents, was too high. In discussions between Bankson and the audiology staff it was decided that they would pre- pare advertisements to try to attract more students.140 The results of this were disappointing , and the student decline continued . Two faculty members left the college voluntarily, and eventually the faculty voted to terminate the program. Certainly it may be argued that the admin- istration, at least at the level of the dean, initiated the discussions about high teacher-student ratio,141 but the proposed solutions were debated and implemented by the faculty, including the chairperson. When those efforts failed , it was the faculty, not the dean, that terminated the program , or at least declared a moritorium on it. This certainly does not stand for the proposition main- tained by the Association. From the testimony of Dean Hershenson , and a review of the minutes of faculty meetings from September 1976 to February 1981 , I can only conclude that the faculty of the college actually runs the college on a day -to-day basis . I credit the dean 's testimony that he chairs the fac- ulty meetings; that he would only vote in case of a tie, but he has never been forced to; and that he has never refused to carry out the will of the faculty as expressed in their vote. The minutes show that the faculty has adopted policies for faculty and students , modified cur- ricula, approved candidates for graduation , discussed and agreed on goals for the college , participated in the search for a dean and a department chairperson, and gen- erally exercised functions that show all faculty, tenured and untenured , research and clinical, participated in making decisions affecting themselves , the students, and the college. 6. The college of liberal arts and the graduate school The college of liberal arts and the graduate school ex- isted as separate entities , each with its own dean, staff, and governing documents , for just over 100 years. In July 1975, with the resignation of the then dean of GRS, Philip Kabzansky , the dean of CLA, Warren Ilchman, was named as interim dean of GRS as well. Both schools joined in establishing a faculty committee to devise a new constitution for the combined schools and, begin- ning in 1976 the faculties of both began to hold joint meetings . The constitution , after several revisions, was approved by the faculties in a mail ballot in the spring of 1977.142 140 Schill 's testimony is not clear who made the suggestion , but there is no doubt that there was a consensus among faculty that this be done. 141 Apparently in teaching audiology, the study of hearing deficiencies and rehabilitation of people with such deficiencies , it is necessary to teach with one faculty to one student on some aspects of the program. 148 Again, despite the mandates in the University's bylaws , and in the CLA/GRS constitution itself that the administration approved its provi- sions, there had been no approval of this document by the administration. However , the document is in effect, and the faculties of GLS /GRS have been living under it since 1977. As in the governance documents adopted by the facul- ties at SPC, SMG, and SAR this constitution draws its authority from the university bylaws, interpreting those bylaws to mean that "The Faculty of Arts and Sci- ences143 shall have legislative authority over all academ- ic matters in the College and the Graduate School. These matters include , but are not limited to , require- ments for the award of the Bachelor's , Master's, and Doctoral degrees, curriculum , academic standards and honors, admissions standards, and concentration require- ments." The constitution establishes a number of standing com- mittees, the first being an executive committee composed of three chairpersons of academic units (departments), one director of a program or center , four faculty mem- bers elected at large, the chairperson of the academic policy committee, two associate deans, and the dean. This committee, according to the constitution and the testimony of Dean Geoffrey Bannister, advises the dean on appointments and formation of search committees for department chairpersons; on the appointment of members of the college's appointments, promotions , and tenure (APT) committee ; on budget ; of faculty standards and conduct; and on any other matters deemed appropriate by the dean. There was not much testimony on this committee. Professor of History John B . Armstrong testified that he served on it during Dean Ilchman's time (1974-1976) and they discussed budget , allocations of money, and other confidential matters . Armstrong continued to serve under interim Dean Doner in 1976 and 1977. The committee discussed admissions policies in those days, and also interviewed candidates for an acting dean to succeed Doner. More recently , Professor and former chairperson of English Eugene Goodheart testified that the commit- tee met infrequently, without formal procedure and ap- parently only to advise the dean when, in Goodheart's words, the dean was "trying to figure out certain things." Much more active , and more important , is the academ- ic policy committee , composed of nine faculty members, elected by the faculty to 3-year terms, the two associate deans, two undergraduate , and two graduate students. This committee is charged broadly with supervision and review of academic and educational policies to recom- mend changes in these policies, and to take action on matters delegated to it by the faculty . Dean Bannister testified that the APC serves as the principal faculty committee on all academic matters in the college. It makes recommendations to the whole faculty on all new degree programs, all new majors or concentrations in the graduate and undergraduate programs , and changes in degree programs ; recommends to the faculty the amount of course credit each approved course should carry; and recommends any changes in graduation requirements for graduate and undergraduate programs . According to the dean, the APC committee makes its recommendations to the monthly faculty meetings, which usually follow these 143 The faculty of arts and sciences is a term used to denote the facul- ty of CLA/GRS. In some of the documents, it is abbreviated as FAS. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recommendations. If the APC turns down a program, it would not be considered by the faculty. There is no appeal from the APC's rejections. In the years since the adoption of the 1977 constitu- tion, the dean stated, 9 new degree programs and 20 minor programs have been approved by the CLA/GRS faculty. There is no dispute here about the functions or author- ity of this committee. Dean Bannister's testimony is cor- roborated by that of Professor John B. Armstrong, and Professor of Anthropology Harold Fleming, both of whom have served on the committee, Armstrong as its chairperson from 1975 to 1978. The minutes of the com- mittee for the years 1977 through 1981 were entered in evidence, and these confirm that the committee in fact performed the functions described by these witnesses. These minutes show that the members of the committee treated their duties seriously and worked hard on the issues that come before them including such matters as academic priorities during the budget development proc- ess in September 1978; changes in the college's honors policy in December 1978; discussions on the so-called college program144 in September 1979; discussions of a PH.D. program in sociology and social work at several meetings in January and February 1980; and extended discussions on ROTC at seven separate meetings in March, April, and May 1980. The constitution establishes a committee of chairper- sons (referred to in the constitution as "Chairmen"). This committee has three divisions, reflecting the three broad elements of learning encompassed within the college, natural sciences, social sciences, and the humanities. The committee has no specific charges set out in the constitu- tion, but according to Dean Bannister it meets monthly with himself as chairperson, and discusses matters such as budget timetables, and issues relating to the collective- bargaining agreement between the University and Dis- trict 65, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) (District 65) covering clerical, technical, and service employees, at the Charles River campus, including, of course, CLA/GRS. A policy was adopted by consensus between the dean and the chairpersons in this committee on keep- ing uniform the salaries of clericals who are paid out of tuition based university funds and those paid out of funds received from grants or contracts.145 Additionally the committee of chairpersons has discussed a new science center complex; guidelines for merit pay increases for faculty; came to a decision that 10 percent of overhead money generated by grants should be returned to the de- partment whose members obtained the grants; and, in 1979 decided that the college should sequester leave money from departments, rather than to hold back new 144 A set of courses combining several disciplinary areas to give stu- dents a more well-rounded': education. 145 The tuition based money is referred to as "hard" money and the contract or grant money as "soft" money. A number of faculty, as well as clericals, are paid either entirely out of soft money, or partly from one source and partly from the other, depending on the proportion of time spent working on grants of contracts faculty appointments, during one of the University's re- curring budget crises. 14 6 The only references to this committee from other wit- nesses were the comments by Professor Robert Cohen that the committee had voted in 1978 for someone other than Dean Bannister for ad interim dean of CLA/GRS. The constitution requires that the dean appoint a com- mittee of three faculty members to secure and recom- mend to the dean the names of faculty members to serve on the various committees of the college. An appoint- ments, promotions, and tenure committee is established by the constitution, consisting of eight faculty, two un- dergraduate, and two graduate students,147 with the power to recommend appointments, promotions, and tenure to the dean and the faculty. There is no evidence on the activities of the nominating committee, and the APT committee's doings will be included in sections dealing with appointment, retention, promotion, and tenure, below. Other committees, referred to as standing committees, are established by the CLA/GRS constitution. There are four curriculum committees, in the areas of humanities, social sciences, and natural sciences, and in interdiscipli- nary studies. These committees are made up of faculty members from the departments, divisions, and centers in the area of each committee, together with graduate and undergraduate students. According to Dean Bannister, these committees receive and review proposals from de- partments, divisions, and centers. If these proposals ' in- volve substantial change in existing programs the cur- riculum committees, after studying them, either reject and return them to their place of origin, or pass them on with a favorable recommendation to the APC. These committees also have the function of periodically study- ing and evaluating the departments within their area of responsibility. In so doing, the curriculum committees may come up with recommendations to the faculty and thence to the dean and administration, but such recom- mendations may not be accepted by the dean and the ad- ministration. The two committees on graduate and undergraduate academic standards and conduct are composed of six fac- ulty members and two students. Their responsibilities are to act on requests and petitions from students for modifi- cation of academic regulations and to act as a review and appeals committee for students of actions taken in the academic units. The committees also advise the faculty in standards and regulations for students and act as tribu- nals in cases of alleged cheating, misrepresentation, gross deception, fraud, plagiarism, and other kinds of dishones- ty. Professor of English Emily K. Delgarno served on the graduate committee and testified that it considered re- quests for waivers of academic requirements on a case- to-case basis. In 1980, Professor Delgarno testified, the 146 Leave money is money made available when a faculty member goes on leave without pay. Ordinarily the funds are available to be used in the department either to pay for a substitute to teach thecourses of the absent member or for general purposes 147 The-students have not served since execution of the collective-bar- gaining agreements in 1979 and 1981. BOSTON UNIVERSITY 831 committee recommended a tightening up on students with incomplete grades after 3 years. This recommenda- tion was adopted by the graduate school. Professor of Mathematics Barry Granoff and Professor of Political Science Harvey Boulay agreed with Professor Delgar- no's description of these committees. The work of the undergraduate admissions and recruit- ing committee will be considered under the heading of student admissions. The constitution also provides for a committee on honors, scholarships, and fellowships, a committee on the Augustus Howe Buck education fund. With respect to these, Professor Delgarno testified that the honors com- mittee considers the appropriateness of the standards for admission and completion by students of honors pro- grams, determines who will be admitted, and recom- mends to the departments on students to be retained or dropped from the program. In addition to these committees , the constitution di- rects the formation of several advisory boards. There are boards for prelaw, premedical , and predental programs, and an advisory board for the 6-year liberal arts medical program . These boards are composed of faculty members whose functions are to advise students in these pro- grams.149 These are all the committees established by the CLA/GRS constitution of 1977. The constitution does provide for the establishment and dissolution of addition- al advisory boards or committees , and the dean testified that ad hoc committees were created from time to time with the membership appointed by himself or an associ- ate dean . For example, Dean Bannister described a bio- medical research committee , composed of four faculty members from CLA/GRS and one from SAR, which re- views applications from faculty for "seed money," funds used to set up research projects that may later qualify for outside grants or contract funding . The committee rec- ommends to an associate dean which proposals should be funded and for how much money . The money is, or was in 1981 , provided by the National Institutes of Health, and in that year amounted to $20,000 or $30,000 , award- ed substantially as recommended by the faculty commit- tee. The university advisory council on research, located in CLA/GRS , is composed of 14 faculty members and 2 nonvoting administrators . This committee makes recom- mendations, similar to the biomedical research commit- tee, to provide $20,000 or $30,000 in seed money for the development of proposals, and, additionally, provides about $35,000 in summer salaries to aid young faculty members just getting started on their research. In both these cases, according to Dean Bannister, the recommendations of the committees were almost invari- ably followed by the administration. Including , the committees described above, the dean testified that there were in existence in April 1981 a total of 57 committees at the college level , and another 239 committees at the department , divisional , and center levels. 149 The Association has cited three major incidents which, in its view , show unilateral actions by the administration to reorganize schools and departments , in contradiction to the University's position that faculty members are managers . The first of these incidents was the abolition of the division of general education announced in May 1974. In spite of the fact that this decision was made before the time limit of October 1974. I imposed on the parties, the effects continued into 1975 and 1976, and the division was not actually phased out until the end of the 1975-1976 school year . I accept , on the basis of the testi- mony of Professors Robert T. Smart of the division of general education, and of Robert Cohen, who in the spring of 1974 was acting as dean of CLA, and the docu- mentation on this matter submitted by the Association, that the decision to phase out the division, while it may have been impelled by economic considerations, was made unilaterally , and was summarily announced to the faculty, after they had previously been assured that the termination would not happen. The second incident cited by the Association was the alleged unilateral dissolution of the speech department. There, the only evidence cited in support of this is the testimony of Professor Vance that the "Speech Depart- ment was dissolved when Dean Doner was appointed." Now Doner, who had been academic vice president, was appointed dean ad interim of CLA on the resignation of Warren Ilchman in the spring of 1975. In the absence of any more evidence on the matter I cannot find that Vance's testimony , somewhat confusing on this issue in any event, establishes what the Association wants it to establish. The third incident was the merger of the college of liberal arts and the graduate school, described briefly above. Dean Bannister testified that the idea of a merger of the schools was discussed among faculty as early as 1973. This may be true, but it is uncorroborated and does not convince me that the idea for the merger was germi- nated by the faculty. Rather, the testimony of former GRS Dean Philip Kubzansky, as corroborated by Harvey Boulay , assistant dean of GRS from 1972 to 1975 , shows that Kubzansky apparently had in his mind for some time the creation of a universitywide graduate school , to have responsibility for all graduate programs at all schools and colleges . In the 1973-1974 academic year, Kubzansky formulated a 5-year plan for GRS, rec- ommending this overall graduate school concept, and, at the same time recommending that the existing graduate school of arts and sciences merge with CLA into a single unit. His own position , that of dean of GRS, would be abolished. x s o There is no evidence of further discussions with any- body on the merger until January 1975 when Kubzansky had arranged to spend a half-year sabbatical leave in 148 An advisory board of assistant deans was disbanded after the first contract became effective , as the assistant deans composing the board were, in fact, faculty members . To avoid confusion the titles of the indi- viduals and the board were abolished, although the same function contin- ues. It is now known as the board of faculty advisors. 149 Fortunately, in the discretion of the parties, we were spared de- tailed descriptions of all these bodies . I believe that we have evidence on all committees having a significant impact on the issues in this case. 160 There is no evidence that he discussed this with the faculty , or that he received any input from faculty on the idea. 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD England. At the same time, and in what he considered a pro forma manner, he submitted his resignation as dean of GRS to President Silber. In early January, 2 days before he was to leave for England, Kubzansky was called into Silber's office where the president told him that his resignation was accepted and that the administra- tion had decided to accept, as well, Kubzansky's recom- mendation for the restructuring of CLA/GRS and the formation of a universitywide graduate school. Accord- ing to Kubzansky, Silber told him he could apply for the universitywide graduate school position, but otherwise Kubzansky's position as dean of GRS; on his own rec- ommendation, would no longer exist.151 As I have noted, in the spring of 1975 Dean Warren Ilchman of CLA was named acting dean of GRS, again without faculty input or approval. On October 8, 1975, a faculty member made a motion that the faculty vote to work out the details of the merger. That faculty member was Professor of Psychology Philip Kubzansky, a good soldier, returned from his sabbatical leave, and having been asked by his successor, Ilchinan, to make the motion. All this undenied and credible testimony leads me to the conclusion that the idea for the merger came from Dean Kubzansky and was adopted by President Silber without any faculty consultation. From that point on, however, the record shows that the faculty accepted Kubzansky's motion, created a committee that prepared a new constitution after consultation with other faculty members, debated the matter in the whole faculty, pro- duced' a revised constitution, then revised ' the document again, finally producing the 1977 constitution that was approved by the faculty and the dean. Without going into the mass of detail covered by the preceeding sen- tence, it is apparent that once the decision was made to merge the two schools, the management of the process of implementing this decision in the academic and educa- tional areas was substantively under the control of the faculty. I52 I am convinced by these incidents that the Association has established as fact that the administration habitually, or even periodically, acts in a unilateral fashion to rear- range the schools, departments, divisions, or other units in the University. Indeed, even if that were so, it would not lead in and of itself, to the conclusion that the'nature of faculty is not managerial or supervisory. In industry or in commerce plants or divisions may open or close, or be shifted 'around, without the knowledge or assent of managers or supervisors who may be affected thereby. In this case, in the absence of a proven pattern or practice of unilateral administrative action, we must, as we have with the other schools, look more closely at the func- tions performed by the faculty. In the case of the merger of CLA and GRS, the decision to merge certainly was the administration's but the implementation of that deci- sion, at least on the academic side was the faculty's doing. 151 Dr Silber did not deny any of this testimony 152 There is no evidence on the working out of the manifold adminis- trative details of the merger, which must have been handled by adminis- trative, technical, and clerical employees. The influence of the present dean seems, from his own testimony , as well as other evidence here , to be stronger and more pervasive than that of the deans of SAR, SMG, and CBS , and Dean Bannister's interests range further down into the departmental structure of the col- lege than the other deans . He testified that he has, for ex- ample , reduced the amount of graduate student aid to the history department on the theories , first, that there were a larger number of faculty members when compared to the number of students , thus reducing the need for grad- uate teaching fellows, and, second , the dean considered the future prospects for graduate students in history, pointing out that it would not be right to entice people into a field by granting aid to graduate students, when future opportunities appear to be severely limited. The dean also stated that he reduced graduate student aid in the political science department on the grounds that the quality of graduate students there had declined, and that the department was failing to attract high qual- ity graduate students. Other departments were similarly evaluated, and money granted or withheld depending on quality and numbers of students. 15 s The dean terminated a remedial writing center institut- ed by the then chairperson of the English department in the 1977- 1978 school year. He claimed that he decided not to fund the center because he was not impressed with the work accomplished there , he saw no document- ed information on the center's successes. The dean point- ed out that similar remedial services were available in an- other remedial center that was undergoing expansion. In addition , the dean added , there were sufficient resources in faculty in the English department to help students without additional' funding. This impression of the dean 's that the English depart- ment had people to spare for remedial writing help for students is related to his concern generally about class size . Bannister ' testified that enrollment should be higher in some courses in the English department , and he indi- cated that he had brought his concerns to the faculty and despite some opposition, had reached a compromise agreement with the faculty on staffing of four major areas in the department.154 Government at CLA/GRS, then, seems to rest largely in the hands of Dean Bannister. The evidence shows that he has consulted with faculty on the class size issue in the English department, with the chairperson of political science and history about reduction in graduate aid, but there is no evidence that faculty had much input on these issues. The minutes of faculty meetings , however , show that Bannister is not by any means an autocrat . These minutes are lengthy and sometimes tedious , the 'faculty at CLA/GRS are nothing if not articulate , but the minutes show, as do the minutes of the other schools discussed 152 There may have been additional reasons for this action See refer- ences below in the testimony of Political Science Chairperson Edward Bustin, in respect to recruitment and hiring of new faculty. 154 Bannister had a similar problem on class size and `coverage with Professor of History Sam Bass Warner Jr. Warner's testimony on his interview with the dean revealed that in spite of a deceptively mild manner, Bannister can summon up a sharp and formidable, temper. BOSTON UNIVERSITY 833 here, actions as well as words in regard to approval or removal of courses , degree programs, changing of grades, standards for honors standing , along with recom- mending the award of degrees , and the approval of the CLA/GRS constitution. I therefore conclude that while the dean of CLA/GRS does take more of an interest in, and interferes more in, academic matters than the deans at other schools, the bulk of academic decisions on degrees , programs, courses, teaching loads, course prerequesites , require- ments and rules for students , and other educational areas, are made by the faculty. G. Degrees and Degree Programs 1. Degrees A degree is, of course, recognition that the individual who possesses it has completed a course of instruction and has proven himself or herself adequate to the stand- ards established for the award. At Boston University all degrees are awarded by and in the name of the Universi- ty, authorized and recommended by the faculty of the school or college in which the recipient has pursued and passed the course of instruction. t 5 5 All the schools and colleges in the bargaining unit here , with the exception of CBS, grant degrees. Some, like CLA/GRS, SAR, and SMG grant the bachelor's, master's, and doctor's degrees . SPC grants only bache- lor's and master 's. There are also joint degrees, awarded sometimes in more than one program in the same school, more often in programs in more than one school. The procedurel5a for award of a degree calls for initiation of the process by a student who expects to receive a degree at the end of a semester to so notify the university regis- trar . The registrar then forwards a list of potential gradu- ates to the schools and colleges . The faculty in those schools and colleges are asked if there are any problems. If there are none , lists are compiled in deans' offices and are presented to the school or college faculty for a formal vote that the degrees, as specified, be awarded to students on the list . No degree has ever been denied by the trustees , according to Westling , after recommenda- tion by the faculty. 2. Degree programs A degree program is a course of study, or, put another way, a selected series of courses, leading to a degree. There seems to be no dispute about the actual process followed in the formulation and approval of degree pro- grams.157 The idea for a new program originates gener- ally in an individual faculty member or in a group of fac- ulty who believe that their school or college should be offering a new, degree program in a given area or field. The new idea is then considered in a departmental cur- riculum committee or, if the department is small and has no similar committee , by the department faculty. During 166 The Act of the Massachusetts legislature. which created the Uni- versity provided that "no degree shall be conferred except upon the rec- ommendation of the appropriate faculty ." Acts of'1869 , chap . 22, sec. 2. Ise This is taken from the undisputed testimony of Jon Westling. 157 See testimony of Westling , Hershenson, and Bannister. this process a proposal is fully detailed both as to its aca- demic content , and with estimates of additional equip- ment required , physical space, laboratories, additional faculty or other employees , and other details . t 58 After departmental discussion and approval , 159 the proposal is taken up by one of the college or school curriculum committees . On approval there, it then is considered by the college academic policy or similar committee and then -to a college faculty meeting for a formal approval. After this, the new degree program is transmitted to the faculty council and university council committees on new degree programs . Finally, after all these approvals, the proposals are put before the faculty assembly and the university council and , having received approvals there, to the trustees. 160 Both Westling and Bannister agreed that the deans have a large part to play in this process . Bannister testi- fied that the program should fit in to the long term goals and objectives of the school or college, and that he re- viewed each proposal to see whether the resources of CLA/GRS were adequate to fund the new program. He did say, however, that he had forwarded, without revi- sion, all proposals submitted to him while he has been dean of CLA/GRS. Individual courses may not require such an extended approval chain, but are ordinarily decided on by the de- partment , the appropriate curriculum committee , and the faculty meeting of the school or college. The University submitted evidence showing that of 60 new degree programs transmitted from the school and college faculties from 1975 through 1980, 59 or 98 per- cent , were approved by the trustees. Although it may be anecdotal , I note Dean Bannister's testimony that a curriculum revision favored by the president , the provost, and the dean himself, called "common course" was voted down by the APC commit- tee of CLA/GRS and has not been further revived. t 61 On the other hand a program for a women 's studies minor was discussed off and on from 1975 to 1979, was approved by the faculty of CLA/GRS in May 1977, but was never fully funded by the administration. Witnesses for the General Counsel and the Association did not dispute the power and authority of the faculty in formulating and shepherding these programs through the various administrative levels just discussed . These wit- nesses did express concern , and emphasized their lack of power and authority, because of actions by the adminis- tration in refusing to fill vacancies or to hire replace- ments for faculty, resulting in the inability of surviving departmental faculty to cover what they considered val- 158 CBS is an execption to these procedures as the programs there are time-honored and inflexible. However, Professor Wexelblatt testified that faculty had considerable leeway in designing "units" that is parts of pro- grams, which can and do vary from year to year. He mentioned his own devising of new units on subjects such as poetry, modern painting, and the history of music, in his humanities curriculum. 159 At any stage, if a proposed new program is disapproved, it goes back to the originators for further study, and perhaps later resubmission. 160 The same sort of process is required in cases when programs are to be removed from the curriculum, or in major revisions to existing degree programs. 161 This was verified by Professor John B. Armstrong, the chairman of the APC at the time. 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD uable courses.162 It is significant that the dean or the central administration, or both, can unilaterally dilute the content of programs adopted by the faculty, by refusing to fund positions considered necessary by faculty to the proper implementation of the programs. But it is likewise significant that the administration does not prescribe how courses or programs are to be taught when faculty are not replaced, but rather leaves those critical decisions in the hands of the very faculty affected thereby. The testi- mony shows that the department faculty, reorganizes, im- provises and fills in to accomplish the goals of the de- partment, much as managers of an industrial or commer- cial enterprise must reorganize and improvise in the face of cutbacks in personnel, budget, or materials, imposed by higher management, or dictated by falling sales or other economic necessity. Consistent with my findings on the powers of the fac- ulty in sections C, D, E, and F, above, dealing with the University and the school and college level, I find that faculty have a large measure of control over degrees and degree programs, tempered by budgetary restrictions and limitations, and by the ebb and flow in popularity of pro- grams and courses among students, and in the disciplines of which those degree programs and courses are parts. H. Faculty and Students 1. Admission of undergraduate students There are no universitywide admission policies for either graduate or undergraduate students, leaving to each school and college the function of selecting its own students. The process of selecting undergraduate students is coordinated by the University's office of admissions, which handles the initial paperwork involving prospec- tive students. Jon Westling testified that the University received between 180,000 and 200,000 inquiries a year from people interested in undergraduate admission to the University. This remarkable figure, according to Wes- tling, represents expressions of interest in Boston Univer- sity on the part of 1 out of 10 graduating high school seniors in the entire United States. Of this number about 20,000 actually apply for admission to the undergraduate schools and colleges at Boston University, 11,000 or 12,000 are offered admission and something over 3500 actually enroll.163 The process that leads from inquiry and application to acceptance and enrollment moves from the admissions office, which makes sure that appli- cations are properly filled out and fees are paid, to the appropriate school or college1fi4 whence the applications are forwarded, except when special arrangements have been made. At CBS, a member of the faculty, Professor Charles P. Fogg, now chairperson of the division of science and di- rector of research for the college devised some years ago 162 See testimony of Professor of Anthropology Harold Fleming, Pro- fessors of English Vance, Craddock, Vendler, and Goodheart; Professors of Political Science Boulay and Bustin; and Professor of Sociology Mark G Field. 163 These last two figures are taken from the testimony of Jon Wes- thng and the University Fact Book for 1980-1981. 164 The University does not admit students, so application forms re- quire applicants to specify to which school they are applying, a chart, variously referred to as a graph, an algorithm, or, most commonly, the "Fogg grid." This grid has one numerical sequence denoting scholastic achievement test (SAT) scores, and, at right angles, a numerical sequence denoting grade point averages (GPI), running diagonally across the grid ,are a series of numbers ranging from minus 9 to plus, 13. According to Dean Gilbane of CBS and Professor Fogg, the latter worked out the grid as a predictor of success or failure for students in the CBS program. If a student's SAT scores and GPI place him on the plus side of the grid he will probably be success- ful, if not, he will probably fail. The grid was adopted by the CBS faculty in 1975 and forwarded to the admissions office with instructions to admit those on the positive side.' 6 s Beyond the application of the Fogg grid to ap- plicants and referrals, there is a college admissions com- mittee at CBS composed of three senior faculty, volun- teers who meet with, representatives of the admissions office to consider applications from those who are close to the line, generally just below the automatic accept- ance level, or cases above the level that have peculiar- ities such as ambivalent recommendations.' 6 6 The com- mittee then applies its understanding of the college's pro- grams and experience with students through the years, to the applicant's complete file, letters of recommendations, transcripts, and SAT scores, and makes a decision on ad- mission. Dean Gilbane could recall no student admitted under the latter process without the concurrence of this college admission committee. There was no evidence that contradicted that of Dean Gilbane and Professor Fogg on this issue. At SMG, testimony on the undergraduate admissions process was that given by Associate Dean Lawson. He was not sure either of the standards for admission or of the way those standards were adopted. I cannot rely on his assumptions to find that the faculty set the under- graduate admission standards, particularly in view of the fact that the faculty has, in Lawson's words, expressed concern from time to time with the quality of the student body, and their desire and interest to see that the quality of the student body improved.1-67 The only thing, which seems to be definite in Lawson's testimony on under- graduate admissions is that Assistant Dean Charles 0. Strickler, who is not a faculty member, has charge of passing on applicants who do not meet the criteria for admission. 168 At SPC there are two phases to undergraduate admis- sions. The first is the regular freshman admission process, and the second the admission of students at the junior level. Dean Dondis was vague about the standards used 165 CBS has two sources of students, direct applicants, and "referrals," that is, students whose records leave them ineligible for admission to other university schools and colleges, and who are automatically referred to CBS. 166 See testimony of Professor Sidney Black, chairperson of humanities at 'CBS. 167 The testimony of John Aber indicates that there was no under- graduate admissions committee at SMG, but he did not say that there was no faculty input to undergraduate admissions He did not remember any such, however. 168 The memoranda on admissions introduced through Director of Ad- missions Anthony T. G: Pallett are not helpful because they do not iden- tify who actually set the standards at SMG. BOSTON UNIVERSITY for freshman admission , but, unlike Associate Dean Lawson of SMG, she was definite in her testimony that the standards used were set by faculty , and applied as so formulated by the university admissions office . A number of faculty members testified about graduate admissions, but none were definite about the undergraduate level.lse Because I found Dean Dondis to be a generally credible witness, albeit sometimes forgetful , I find that the fresh- man admission process at SPC is based on standards es- tablished by the faculty and administered by the office of admissions. Junior admissions involve applicants from other schools at the University , CBS being the most promi- nent, on colleges and universities other than Boston Uni- versity . In these cases the applicant 's files and credentials are assembled by the SPC counseling office and forward- ed to the program to which the student is applying. The faculty in those programs reads the files and decides who will be admitted. The responsibility for undergraduate admissions at SAR is exercised by the faculty, not of the whole school, but from each of the five departments at SAR.17 ° Each department , separately, establishes standards for automat- ic admission, and for automatic rejection . For candidates whose qualifications fall between these two poles, repre- sentatives of the departmental admissions committees go to the university admissions office, where they review those candidates who do not fall within the upper and lower cut off points . According to Dean Hershenson, the faculty's decisions on these candidates is final and bind- ing.171 The Dean has no oversight into these proce- dures, but may raise questions , particularly in the area of total enrollments . Enrollment targets are set by the facul- ty, but in consultation with the dean , and, ultimately, those figures are negotiated between the dean and de- partments. In these discussions, consideration is given to such matters as past enrollments , unusual situations such as changes in the field of study, more or less job oppor- tunities for graduates, changes in the number of prospec- tive students available, and economic conditions general- ly. As a footnote to this question of enrollments Professor O'Sullivan, a witness for the Association , testified that in the spring of 1982, Kenneth D. Bloen, the assistant to Vice President for Health Affairs Richard H. Egdahl, came to a SAR faculty meeting and asked the faculty to approve an increase in enrollment of students . The facul- ty at first said no, then , after some negotiation on equip- ment and space problems, agreed to the increase. 169 I do not find the statements of Professor George Bluestone that faculty had no role in admissions to be persuasive . The only other testi- mony on this was that of Professor Kay Israel , who said merely that he had no role in the undergraduate admissions process. 170 Undergraduate transfers are handled in the same way as entering freshmen. 171 Professor Susan O 'Sullivan, acting chairperson of the physical therapy department, corroborated Hershenson 's testimony, adding that for the academic year 1981-1982, a faculty admissions committee of five people reviewed more than 800 folders of applicants to the entry-level physical therapy programs . She added further that the department re- quested some support staff to help out in the burdensome process, but no support was granted by the administration. 835 As I have noted , the 1977 constitution of CLA/GRS established an undergraduate admissions and recruiting committee . The committee was charged with coordinat- ing recruitment efforts of CLA; reviewing and reporting to the faculty standards of admission for both freshmen and transfer students ; reviewing relationships between admissions criteria and academic achievement ; and acting on any special admissions problems referred to it by the associate dean. There had been a committee on admissions at CLA before the merger . The minutes of that committee for January 10, 1975 , submitted in evidence by the General Counsel, show an agreement by that committee that "re- alistic" criteria for CLA acceptance would be a com- bined SAT score of 900, a GPI of 2. 8 to 3 .0, and second- ary school class rank at the top one-third of the class. At this time the faculty committee on admissions reviewed the files of marginal applicants . Admissions Director Pal- lett testified that in 1977 the faculty of CLA/GRS to delegate this review function to the admissions office, and the reviews have been done by that office ever since. At some time between 1975 and 1977, the SAT stand- ard had been raised to 1000, where it remained until the formation of a new committee on undergraduate admis- sions and recruiting after the adoption of the 1977 consti- tution . According to Professor Emily Delgarno, a member of this committee , the group worked for some time , about a year , familiarizing themselves with all as- pects of the admissions process, budget ; the relationship between the budget and class size ; and the transfer com- ponent of the student body. They determined that the admissions standard should be raised in order to improve the image of the University . The committee then voted to raise the automatic acceptance level SAT score for CLA to 1100. Those between 1000 and 1100 would be examined by the admissions office, which had already been delegated this function by the faculty of CLA. Pallett became quite concerned about this action, as re- vealed by his testimony, that of Professor Delgarno and by the minutes of a series of meetings of the admissions committee from October 1978 to February 1979 dealing with this issue . Among the things that bothered Pallett were the fact that SAT scores of applicants to CLA had declined in the 1978-1979 application period; the number of applicants in the 1000-1100 SAT category amounted to almost 800, all whose files had to be individually ex- amined by the admissions office, an enormous burden, in Pallett's view , over and above the ordinary work of the office; and, most importantly , the distinct possibility that numbers of applicants either would not qualify, or would lose interest because of delays in processing their applica- tions, thereby resulting in a failure to reach the target figures for enrollment on which the whole university budget is based . Pallett took his concerns to Dean Ban- nister . The latter agreed and wrote a memorandum to the committee stating that he would not recommend the committee's proposal to the faculty. There were further discussions by the committee with Pallett and, reluctant- ly, the committee abandoned its proposed 1100 SAT standard. 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With regard to transfers, the record shows that on No- vember 1, 1977, the admissions committee was of the un- derstanding that it had no jurisdiction in the area of transfers of students from other institutions to Boston University. The standards used were set out in a memo- randum dated January 26, 1979, entered in evidence here, conveyed from the admissions office to Professor of Chemistry Norman Lichtin, then chairman of the ad- missions committee. Basically, the admissions office screens applicants for transfer, looking at SAT scores, and high school records, as well as the performance of the applicant at his or her current institution. The admis- sions office makes a judgment about the chance for suc- cess at Boston University for the candidate, as well as whether there is room for the applicant in his or her chosen program or whether the applicant comes within the target quota for the college. Dean Bannister testified that standards for transfer are established in the department that the student wishes to transfer into. Faculty in these departments evaluate the applicants' prior courses and make the determination whether to give credit in the department, and in the col- lege, for those courses. The dean also said that the CLA committee on admissions has responsibility for monitor- ing the progress of transfer students (including those from CBS) and reporting on this each year to the CLA/GRS faculty. I saw no sign of this in the record here. These facts show very clearly, and I find, that at CBS and SAR the faculty controls the admissions process. The two schools operate quite differently, CBS using a formula approach, which students must meet in order to gain automatic admissions, and SAR an almost one-on- one faculty member and applicant method. In both schools, the files on marginal candidates are examined by faculty members individually. In neither case is there any indication of interference by the dean or the administra- tion in the admissons process itself. 172 At SPC the issue of faculty control of admissions seems clear only with respect to the transfer students. With respect to freshman admissions Dean Dondis, as I have noted, was less than clear, but I fmd the statement that the standards were set by the faculty and applied by the university admissions office. I have noted the problem with clear evidence on the undergraduate admissions process at SMG, Dean Lawson did not know much about it. John Aber, whom I generally found to be a credible witness (see discussion, in sec. D, above, on the budget), testified that there was no undergraduate admissions committee. The SMG gov- ernance document,, however, establishes an undergradu- ate academic standards committee whose functions in- clude consulting with the university admissions office re- garding admissions decisions. The minutes for the SMG faculty meeting for September 17, 1976, dated October 21y 1976, contains a reference to remarks by Dean Strickler expressing his thanks to Professors Carson and 172 At SAR the faculty has veto power over the size of the undergrad- uate class as evidenced by the testimony of Professor O'Sullivan. At CBS, there is an arrangement between the dean and the administration to increase the faculty when the number of admissions rises to a certain level above the current number. McBrien for "their many hours of work on the Admis- sion Review Committee." The minutes of the SMG fac- ulty meetings for the period 1976-1981, at least up to the fall of 1980, show that at the beginning of each semester Dean Strickler reported to the faculty on the size of the entering undergraduate class and transfer students, to- gether with SAT average scores and comparison of those scores with previous classes . The minutes report no response by faculty to these reports. On the basis of all these facts I cannot find that the faculty has no voice in admissions standards for undergraduates. Rather, review- ing all my findings so far on SMG, I think it would be illogical for a group of faculty who are otherwise so in control of the destiny of their school, to overlook com- pletely the standards set for the annual infusion of new life to that school. Based then on this logic and the evi- dence concerning governance at SMG, I infer and find that Dean Strickler's handling of relations with the ad- missions office is agreeable to and in accord with the views of the SMG faculty, if not by overt delegation, then by tacit understanding. The evidence adduced on the application of under- graduate admissions standards at CLA/GRS indicates a shared sort of authority between the dean and the facul- ty. The dean's veto of the proposed raise in SAT scores proposed by the faculty admissions committee limits the power of that committee to set standards unilaterally. The fact that the dean and Pallett found it necessary, or at least advisable, to bring the matter back to the faculty committee for a new vote is evidence that the dean did not exercise the authority to have his way unilaterally in setting the standards.173 I find, therefore that the faculty has a share of the authority to set undergraduate admis- sions standards which is just as great,'or close to being as great, as that of the dean. The facts also show that the University' s admissions office really acts as' the agent of the faculty, or the dean and faculty at CLA/GRS, but that the director of the admissions office views seriously his duty to keep deans and faculty aware of the University's imperatives, among which is the need to meet the target figures for enroll- ment which in turn, keep the funds coming in to run the University. I 2. Admission of graduate students, financial aid, and scholarships There is really no question of fact about the power and authority to admit graduate students. In all cases the admissions process is controlled by the faculty of the de- partment or program in which the prospective graduate student wishes to enroll. But as Dean Bannister pointed out in his testimony, financial aid plays a strong part in the admissions process at the graduate level. Tuition is high and many graduate students cannot afford to pay the full fee, and must ask for financial aid for all or part 173 We cannot know whether the dean or the faculty had the ultimate authority in the 1978-1979 SAT standards issue , because the matter was settled by mutual agreement . I do not read any significance in the fact that the matter was not reopened the next year. Either party could, have opened it, neither chose to do so, and the question of final authority on admissions standards remains as I have found it, a draw. BOSTON UNIVERSITY 837 of the tuition. In some cases, additional aid in the form of a stipend may also be requested . t' 4 All the witnesses who testified on this subject , Professors Earle Barcus and Kay Israel from SPC, Anthony Leeds, Charles Beye, William Vance, Patricia Craddock, and Richard Verrill from CLA/GRS, were in agreement that the selection of those to receive aid is made by the faculty. t 7 a The total amount of aid, is, however, set by the administration without faculty approval , and is allocated within the schools and colleges to programs and departments by the deans without the approval, and sometimes in the face of strong dissaproval , of the faculty. The amounts provided, whether they involve tuition remission , or stipends for various positions such as teaching fellows, teaching as- sistants, graduate assistants, graders, or various kinds of clerical work are set by the administration without con- sultation with faculty. Scholarships and prizes are awarded to graduate as well as undergraduate students . Dean Gilbane testified that money prizes totalling $13 ,000 are awarded at CBS to superior students nominated and selected by the facul- ty. There are also scholarships awarded by the president, and trustees scholarships awarded with faculty participa- tion in the selection process . t 7 6 Some scholarships are limited in their application by the donors, such as the Alcoa, Abbott, or Readers' Digest scholarships at CBS. Others are based on merit as well as need, such as the Martin Luther King , and Whitney Young Fellowships at CLA/GRS. In all cases there is no question that faculty is consulted and are involved in the process. It appears the graduate area , even more than in the un- dergraduate admissions process, faculty make the deci- sions concerning who will be admitted, and who will re- ceive aid . As I noted before on this subject, when the ad- ministration or the deans restrict the amount of money available for aid, it is up to faculty to shift around their assets, and to improvise solutions to cover essential pro- grams with less resources. 3. Grades and academic requirements a. Grades There is no dispute that the faculty has ultimate au- thority and responsibility for student grades . There is a system of letter grades , which is established by the ad- ministration with no input from the faculty, but within those strictures each faculty member may make academic judgments based on his or her own perception of the stu- dent's work. Some may grade on what they consider the "old-fashioned system" of letter grades based on their evaluation of performance, as does Professor Charles Beye of Classics at CLA/GRS, and others may adopt the so-called "bell curve" system based on certain as- 174 Jon Westling testified that there is little faculty involvement in un- dergraduate student financial aid. Most is need-based and is administered under the auspices of various Federal and state programs by the Univer- sity's office of financial assistance. 175 See testimony of Dean Bannister , Professors Craddock, Verrill, Coulter, Offner , and Warner for this area. 176 Dean Bannister testified that these prestigious trustee scholarships are awarded on the basis of nominations by a 10 -member faculty commit- tee. sumptions about student performance , as with Professor Albert Kirsch at CBS. Whatever system is used , it is in- violate . We have testimony from Dean Gilbane that two professors at CBS were so lenient with grades that in the dean's view, the integrity of that part of the CBS pro- gram when these faculty were involved was threatened. Despite his remonstrances with the faculty members, the problem had continued down to the time he testified, and he confessed that there really was nothing he could do about it. Both Deans Bannister and Dondis testified about incidents when students and parents , even accom- panied by lawyers, had protested grades, but the deans could do nothing to coerce the faculty member into changing a grade involuntarily. 1177 b. Academic requirements Beyond the academic requirements we have looked at in connection with admissions of graduate and under- graduate students, there are other requirements that affect students in their progression through their degree programs . These include matters such as prerequisites, that is, courses that must have been taken before that stu- dent may take another, more advanced course ; credit for courses taken at other institutions or study abroad; or ad- vanced placement for incoming freshmen because of their achievements in tests designed to show such achievements. All these are of vital importance to stu- dents, both from an academic and financial view point. If they do not have to take a course , they do not have to pay for it. The other side of the coin is that the award of credits for advanced placement , study abroad, or at other institutions, is that it can be very costly to the Universi- ty. Dean Bannister stated that the loss to the University for credits awarded by the CLA/GRS study abroad committee (composed of four faculty members) was $408,000 in 1979-1980, and $536,000 in the academic year 1980- 1981 . Admissions with advanced placement in particular fields, such as English , biology , or physics, are authorized by the faculty in each department . This facul- ty determines what level of the standardized advanced placement test scores will qualify the student for admis- sion with credit for beginning level courses . Dean Ban- nister testified that in 1979-1980, 1468 credit hours were granted with a tuition loss of $216,300. Faculty also de- termined transfer credits, which do not present the same money problems but may have an influence on whether the prospective student will attend Boston University. The requirements and prerequisites for any program at the University are established by the faculty of these pro- grams . 17 8 The system of prerequisites at CLA/GRS was 177 Professor Robert Baram of SPC testified that he gave a student a failing grade in the 1980-1981 school year, but that the student was given a substitute course and was allowed to graduate without consultation with Baram . This may have been improper , even discourteous, but there is no indication in Baram's testimony that the actual grade he gave was tampered with. 178 There certainly are influences that bear on the setting of require- ments for any program . These may be formal requirements set by nation- al professional groups that certify programs or schools . See testimony of Professor Susan O'Sullivan regarding certification of the SAR physical therapy program; Elisabeth Wttg on the recertification of the communica- Continued 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD described by Dean Bannister as ensuring that the student who follows the program will "come out with the re- quired degree of competence and the required coverage according to the dictates of that program." See also the testimony of Professors Anthony Leeds, Charles Beye, Richard Verrill, Patricia Craddock, and Robert Cohen. The minutes of the faculty meetings and the faculty policy committee meetings at SMG show the activity and the influence of the faculty in determining prerequi- sites for courses at that school, and similar conclusions can be drawn from the minutes of faculty meetings at SAR and SPC, taken together with the testimony of Deans Hershenson and Dondis.179 c. Textbooks There is no dispute about the fact that faculty in any course chooses the text to be used by students. In pro- posing new courses faculty also provides reading lists of relevant material. These lists may also be provided to students enrolled in the course.' so At CBS, the college operated for years with a book loan system under which students borrowed the required texts from the college. In 1980 Dean Gilbane was con- cerned about the bad condition of the texts being used as well as the administrative costs of running the system out of the,dean 's office. He proposed that the loan system be abandoned, and that the students be required to buy their textbooks at the university book store. There was consid- erable dispute at the hearing about what happened then. Based on all the I" I I find that the dean pushed the matter, despite opposition by some faculty, but I find that the mail ballot conducted by the dean did result in a vote to change the system. All of this, however, has no bearing on the fact, about which there is no dispute, that CBS faculty chooses the required texts for their students, no matter whether those texts are borrowed or pur- chased. This finding is consistent with my previous find- ings in section III,F,2, above, that the dean is the most influential figure in the government of CBS. d. Teaching methods Teaching methods are adopted by the faculty, al- though there may be factors that require that certain courses be taught in certain ways. For example some in- troductory courses, as in freshmen-sophomore English composition, must be broken up into a number of small sections. Professor Verrill, chairperson of the freshman- sophomore composition committee handles this for the tions disorders program at SAR and T. Barton Carter regarding the loss of certification by SPC. It is clear, however, that within the overall con- straints imposed by certifying authorities the schools and colleges have considerable leeway to devise their own programs. Informally, the facul- ty is guided by the professional and scholarly standards of its' particular academic discipline. Changes in courses and concentrations occur over the years, sometimes through the efforts of local faculty, at other times by a more cosmopolitan movement within the discipline . See the testimo- ny of Professors Helen Vendler and Robert Cohen in this area. 179 At CBS the prerequisites are determined by the college's estab- lished program. 180 See testimony of westhng and Deans Bannister, Hershenson, and Lawson. 181 See testimony of Dean Gilbane and Professors Koss, Kirsch, and Zawacki. English department . In this case, Verrill talked about in- tensive discussions between himself and members of the committee and part-time instructors engaged to teach sections of freshman-sophomore composition. 1112 Dean Bannister indicated his interest and concern with teaching methods , whether the course was a seminar, a lecture format, or a lecture with discussion sections, and how the material was delivered , through visual aids, lec- tures, or use of physical materials . He did indicate that faculty was free to vary teaching methods as it chose, and noted that he would not become involved unless the variances resulted in additional costs beyond that which could be worked out between the instructor and the de- partmental chairperson. I might note that while teaching methods are the pre- rogative of the faculty, the effectiveness of those meth- ods are sometimes subject to review and criticism. At CBS, for example, faculty is evaluated annually by stu- dents, and in some departments of CLA/GRS, student evaluations as well as evaluations by other faculty are a part of the tenure review package.183 e. Student discipline This general subject may be broken down into catego- ries such as student attendance, academic standing, and student wrongdoing. The University's undergraduate catalogs state that stu- dents are expected to' attend all classes. In practice, at- tendance policy in a matter of subjective choice by indi- vidual faculty members. There is no disagreement on the right of faculty to enforce or not to enforce attendance standards. At all the schools and colleges on which evidence was received at this hearing, students are required to maintain certain academic standards. Primarily this means that the students' grades must not fall below the level of "D" as set out in the catalogs for undergraduates, or below levels set by the faculty in the various schools for both graduate and undergraduate students. At CLA/GRS, ac- cording to Dean Bannister, undergraduate grade require- ments are administered by an undergraduate academic standards committee, which has power to place students on academic probation, or to require that they withdraw from the college either temporarily or permanently. There is also a graduate academic standards and conduct committee that has the same functions as its undergradu- ate counterpart, as well as examining requests for waiv- ers of academic rules, time constraints on incomplete courses, and when requirements for degrees should be completed. The other schools have similar committees.'84 At CBS, the procedure, for evaluating and passing or termi- 182 See also testimony of Professor Jeffrey Coulter o£ the sociology department. 183 An actual tenure review package used in the modern language de- partment was introduced in evidence here to illustrate the process, and it shows a number of such evaluations . All were favorable, and the candi- date was awarded tenure. 114 See Dean Hershenson's testimony on SAR, Dean.Pondis at SPC, and Dean Lawson at SMG. BOSTON UNIVERSITY nating students is a relatively formal process . Each stu- dent is evaluated by his or her team , the members of which make recommendations . There is a review board composed of the five division chairmen that reviews these recommendations to make sure they were fairly and reasonably made, and also to try to assure that rec- ommendations coming from the teaching teams are uni- form and objective throughout the college . The decisions of the review board on retention are final . Decisions to dismiss a student are appealable to a CBS appeal board, composed of one faculty member and two representa- tives of the dean 's office . The decisions of this board are final on dismissals.185 In addition to faculty control over scholarly matters, there are also rules against various kinds of academic misconduct such as cheating , plagiarism, or copying. These issues have been mentioned before , in connection with government . There are committees , as with every other aspect of university life, charged with investigating and enforcing both written and unwritten academic codes of conduct. At CLA/GRS these matters are first considered by the graduate or undergraduate academic standards com- mittees . Judgments of these committees may be appealed to the dean, whose only power is to lessen the penalty imposed by the committees . Dean Bannister and Profes- sors Richard Verrill and Barry Granoff were all in agreement that out of about 120 cases during Bannister's time as dean, he had followed the committee recommen- dations in all but one case. At CBS there is a ladder progressing from the faculty member who first perceived the offensive conduct to the division chairman, the assistant dean, and the dean. The dean's decision may be appealed , in which case the dean appoints an ad hoc committee composed of three faculty members to review the matter . The decisions of ad hoc committees have never been overruled by the dean. At SAR and SPC there are faculty committees with similar functions . In no case does the evidence show any interference by deans or administration with the deci- sions of these committees , composed of students and fac- ulty at SAR , and two faculty and one administrator at SPC. 4. Class size , teaching loads, and scheduling a. Class size Before getting into consideration of the actual size of classes at the University , and the role of faculty, I would like to explore an issue that was the subject of questions asked a number of witnesses called by the General Coun- sel and the Association , namely, what role the faculty has or has had in the size of the student body." 8a There iss This board was criticized by Professor Dolores Burton for revers- ing a number of recommendations for her team . The dean denied this and it appears from his testimony and documents in evidence that , while some cases were reversed , Professor Burton was mistaken both as to the number and the circumstances which the appeal board relied on to make its decision to continue some students. ' as See Yeshiva , 444 U.S. 672, 686. 839 are a number of factors which taken all together deter- mine the size of the student body at Boston University, several of these have nothing to do either with the facul- ty or the administration . These include, the number of applicants and their qualifications to meet admissions standards established, as we have seen, • in large measure by the faculty ; the amount of tuition and fees, which, we have seen, are not determined by the faculty; the general economic conditions in the country ; inflation ; the avail- ability of aid for undergraduate and graduate students; the physical location and condition of the University; and, of course , the quality of academic programs and the social amenities provided for students by the University and the area in which it is located . Within the financial imperatives and limitations under which the University, as a tuition supported institution , must operate , and con- sidering the demographic and economic factors of the 1970s and 1980s, President Silber predicted in April 1976 that the total student body would decline from 19,000 full-time equivalent students in 1976 to between 12,000 and 15 ,000 in 1982 . 187 It would appear from this that the administration in 1976 was looking for a reduced number of students, not because of administration or faculty policy, but because of a combination of outside forces. The faculty was not involved in President Silber's 1976 analysis, except insofar as his remarks on that occa- sion were made to the faculty senate council , and it does not appear that the size of the student body was ever specifically taken up at faculty meetings . The 1978-1979 discussions in the CLA admissions committee show that the size of the student body was a matter of deep con- cern to the faculty as well as to the dean of the director of admissions . The votes of the committee first to raise the SAT requirements , and later to lower them both, had an impact on the size of the student body. In the other schools, at CBS , the Fogg grid , devised by a faculty member, and approved by the faculty, is the most important determinant as to who will be admitted to the college and who will not. At SAR, many pro- grams are limited as stated by Dean Hershenson by the absence or presence of equipment, laboratories or limited clinical facilities, but within those limitations the faculty controls the number of students in the schools, requiring the administration to obtain faculty approval before al- lowing the admission of additional students . At SPC, in the same kind of arrangement , the dean reached a bar- gain with the faculty to allow more students in return for a new film studio space and equipment. In addition to this more or less institutional participa- tion by faculty in determining the size of the student body, the record shows a number of individual activities by faculty which either directly or indirectly have led to students choosing Boston University . The activities of Professors Psathas, Papanek, and Harris of CLA/GRS in Asia, Africa, and South America have consciously led to the enrollment of a number of students . Programs and 187 As it turned out, by the fall of 1980, the last figures available in the record of this case, there were still 19 ,000 full -time equivalent students at the University . Part of the reason for this may be seen in the discussion between Dean Bannister , Pallet , and the undergraduate admissions com- mittee on raising the SAT scores for CLA freshmen in 1978 and 1979. 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD brochures designed and distributed by the faculty in de- partments such as physics and chemistry have attracted students. At SPC the activities of Professor Baram with his scholastic press conference, and Professor Bernard Rubin with his institute for democratic communication, show an interest on the part of these individual faculty members in attracting attention to Boston University and in urging students to enroll there. At SMG the more recent executive programs, devised and run by faculty, could also attract students to degree courses. These factors, viewed together with the power of the faculty to influence the size of the student body through the giving of grades; participation on academic standards and disciplinary committees; and the intangible but very real thrust of the personalities, scholarship, and pedagog- ic abilities of individual faculty in the process of attract- ing and retaining students, all lead me to the conclusion that the faculty at Boston University have and continue to play a significant role in determining the size of the student body. Class size itself is a variable item. Some courses, ac- cording to Dean Bannister, have no limits set on the numbers of students who may enroll. In other cases, a limit on numbers may be set by the physical size of the room, or, as at SPC, by the number of typewriters, or video display terminals, available in a room . At CBS the numbers , as with the curriculum, are tightly circum- scribed. One hundred twenty students comprise a sec- tion , when this number grows beyond 120, then a new team of 5 additional faculty may be hired. 188 In other instances, not size, but academic reasons, re- quired that numbers of students be limited. In some basic programs at CLA, Dean Bannister testified that enroll- ment limits were set. In freshman English composition courses, the limits may be as low as 15 in a section. When the enrollment rises above this number, then a lec- turer is hired or a faculty member is assigned to teach the section. In discussions on raising these numbers, the dean indicated that he has agreed with the departmental view that the numbers remain as they are. A limit has also been worked out in an agreement be- tween a former acting dean and the chairperson and fac- ulty of the English department not to offer a course if the proposed enrollment would be less than 10.189 I think it is fair to conclude from this testimony, and from the fact that faculty participation in the design and ap- proval of courses makes them responsible for the most appropriate size of the class as well as the substance of the course, that faculty are primarily responsible for es- tablishing class size. b. Teaching loads However, in exploring the next subject, teaching loads, it may be seen that administrative concerns over produc- tivity can have an impact on class size as well. Provost Robert C. Mayfield testified that as a part of his office's 188 The evidence did show one incident when the size of sections in- creased beyond 30, but no additional faculty were hired. See testimony of Professor Wexelblatt on that point. The difference was small but no less real. 189 The same rule extends to courses offered in the University's summer program preparation for the budget process his staff studies the work levels of faculty to determine how much workload each faculty member is carrying, or, put another way, how many students are being taught by each professor. Mayfield indicated that he took into account such varia- bles as the types of courses taught, other commitments of the faculty member, and- availability of graduate or teaching assistants. During 1980 the provost held a series of hearings on CLA/GRS departments and other schools, as 'a result of which he determined that there were "one or two" faculty members who seemed to have very light loads, with no exceptional factors involved. Mayfield "suggested" to the deans that they see if these faculty members could be "encouraged" to carry more students.' ' Beyond these "suggestions," and although Mayfield did not mention it in his testimony, he ordered a reduc- tion in the CLA/GRS budget of $180,000 on the grounds that "greater productivity must be achieved in the College of Liberal Arts."19° This action by the pro- vost led to reductions in the numbers of teaching assist- ants are faculty lines at CLA/GRS. However, this impact on the English department as noted in the testimony of^Chairperson Patricia Craddock, and Professors Vendler and Verrill, and in the history department as reflected in the testimony of Professor Sam Bass Warner Jr., must be evaluated with Dean Ban- nister's undisputed testimony that normal teaching loads, which vary from department to department, are set through discussions between the faculty and chairper- sons. The dean cited examples in the department of ge- ography, of which he is still a member, to retain a level of four courses per year; in the geology department where, the former chairperson testified, a dialogue be- tween the faculty and himself resulted in a reduction of two courses a year for all faculty, without consultation with the dean. Former chairperson of mathematics, Dennis Berkey and Professor Barry Granoff, testified that the mathematics faculty determined in 1976 to reduce the course load for senior faculty by one course a year without involvement of the dean.191 In 1978 former chairperson of English, Eugene Goodheart, stated that after a study by a faculty committee, the faculty of Eng- lish agreed that the teaching load of junior faculty should be reduced by two courses during one semester, or one course during each semester, to allow for comple- tion of research. The dean was informed of this, but had no part in the decision.' 9 z At SAR the course load is determined, according to Dean Hershenson, through ad hoc negotiations between the department chairpersons and the faculty members, 190 I found Mayfield to be clever but evasive and uncommunicative. I do not believe that he purposely lied, but his testimony must be scruti- nized with great care to see what he left out, as well as what he said on particular subjects. For example, the imperative tone of his memorandum of October 27, 1980, to Dean Bannister contrasts sharply with his testi- mony that after the productivity hearing in 1980, he "suggested" to the deans that they "encourage" greater productivity by faculty. 191 Dean Bannister stated, however, that he requires that he approve of any reduction below the general departmental rule in cases when a faculty member may be engaged in research. iii The dean did not comment on this BOSTON UNIVERSITY then sent up to the dean for approval . Dean Hershenson could not recall a "single instance" when such an agree- ment was overruled by him. There is no indication at SPC that the a was any fac- ulty involvement in setting the class load. Dean Dondis testified that she reviewed requests for course reductions, but there is no evidence that she did or did not approve such requests . At SMG , the only evidence about teach- ing loads was the testimony of Dean Lawson that the dean reduced the workload from six 'to five courses per year . Having reviewed the 'government structure at SMG, I cannot conceive of the dean taking such an action unilaterally , but I cannot speculate about the basis of Lawson's uncontroverted statement. At CBS , aside from the incident of 27 faculty request- ing a professional day in one year, which I have already mentioned , there have been two other matters dealing with the question of teaching loads . Actually these mat- ters did not concern the teaching load, which has re- mained constant during the period explored at this hear- ing, but rather a realignment of the schedules . In the first incident, Professor Dolores Burton testified that the grading day, a day off during the week enjoyed by the division of rhetoric , was split into two half-days. Dean Gilbane admitted that this was done , but ascribed it to an action by the division chairperson . After further discus- sions, and a recommendation by the rhetoric division fac- ulty, the full day was restored. The second incident occurred late in 1981 when, after a study by a faculty committee , the full faculty of CBS voted to move to a 4-day week from their existing 5-day week schedule. The dean declined to do this on the grounds that alterations in the hours of 'prk of bargain- ing unit employees would be in violation of the collec- tive-bargaining agreement. The Association took issue with the dean 's reasoning on this, describing it in the brief as a "pretext," and pointing to article IX,A,4 of the second contract. I do not intend to get involved in a question of contract inter- pretation along with everything else I have to do here, but I note that the cited contractual section provides also for the institution of grievance and arbitration proce- dures in cases when faculty members are not satisfied with the dean 's determination in this type of matter. I note also that there is no evidence here of any grievance being filed on this, which leads me to suspect that, as with the 27 professional day applications , the 4-day week situation may have been stimulated for purposes of this hearing. Whatever the origin of the incident , its conclu- sion is not really definite enough to allow me to make any findings relative to the status of the faculty at CBS. c. Scheduling On the question of scheduling , there does not seem to be much question about who will teach what course, and when these courses will be scheduled . At CLA/GRS, senior faculty, like Professor Fleming in anthropology, or Beye in classics, will work out the details of their courses with the chairperson . As Beye put it, he teaches the courses he chooses , and informs the chairperson of that . Large introductory courses are frequently assigned to new faculty , but may also be assigned to senior facul- 841 ty, as in the case of Professor Warner. The other schools appear to operate under much the same kind of consen- sus.193 My conclusions on the various subjects encompassed under the general heading of faculty and students are that the faculty has the primary role in the admission of undergraduate students and an exclusive role in the ad- mission of graduate students. The administration has the power to award aid money to the schools and colleges and the deans to allocate those funds among depart- ments, but faculty has the authority to award aid to indi- viduals, and when budgets are cut by the administration, to innovate and improvise within the limits of those cuts to effectuate the departments' programs. The faculty, within budget limitations and under out- side standards sometimes imposed by accrediting groups, has complete authority to determine what will be taught, which courses and degree programs will be offered, who will teach the courses and when and in what form the courses will be taught. The faculty has substantially com- plete control, subject in some cases to appeal procedures, over student grades, suspension, retention, promotion, and graduation, over scholarships and aid, and over stu- dent discipline either for academic reasons or for scho- lastic wrongdoing. In a real sense the faculty has control of the size of the student body, by controlling the gates at either end of the academic channel, and directing the flow of students between those points. 1. Faculty Appointments, Reappointments, Promotions, and Tenure 1. Appointments of faculty The University 's bylaws provide in article IV , section 3, that "Appointments of all faculty members shall be made by the Corporation upon written recommmenda- tion of the President and the Academic Vice President and Dean concerned . Such appointments shall state length of time and special conditions , if any." If the institution we are studying here were operated in the same way as a commercial or industrial enterprise, we would expect to find a personnel office or depart- ment with recruiters , interviewers , and analysts whose function would be to supply the University with faculty members as needed . The University does have a person- nel office , but so far as can be determined in this record, that office has nothing to do with the hiring of faculty. The functions of recruiting , interviewing , and analysing, of course, do exist at the University . The first two of those functions are exercised almost exclusively by facul- 199 There are, of course , problems with scheduling . Professor Judith Hallett testified to her problems with an administrative assistant in the classics department placing her in rooms that were inconvenient, and re- fusing to change room assignments . The council of deans also passed an order in December 1980 to the faculty requiring classes to begin on the hour, as set out in published schedules, rather than at 10 minutes after the hour, as had developed as a matter of practice on the sprawling Charles River Campus. Faculty were not consulted about this but, after protests, the matter was reviewed and adopted by that university council The sur- prising thing about this subject, or scheduling, in an institution of this size, was that there were so few problems. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ty. The third function, that of analysing the qualifications of applicants, is also performed by the faculty, but re- viewed by deans and other administrators, including the provost and the president. The critical factor in this process is not that the admin- istration can disregard recommendations of faculty, or even impose a candidate on unwilling faculty. As in any large enterprise higher management can impose its will on people who, nonetheless, continue to exercise legiti- mate managerial or supervisory functions. The critical question,, rather, is what effect the efforts of the faculty in recruiting and interviewing, analysing the credentials, and, then, making recommendations on candidates, has on the ultimate decision to hire new faculty.194 The Uni- versity has attempted to show, through the testimony of Westling and Deans Gilbane, Lawson, Dondis, Hershen- son, and Bannister, and through the introduction of charts showing the rates of concurrence between the de- partments and chairpersons, and executive approval of appointments by the trustees, that the recommendations of faculty indeed are effective in determinating who will be appointed as new faculty members. The Association for its part, presented testimony that the University's concurrence rate charts were in fact misleading, first, be- cause of the numbers of candidates approved by search committees, departments, and chairpersons that were subsequently disapproved by deans or higher administra- tors; second, that in many cases the approval of deans was informally secured before the departments and chair- persons voted on candidates; in effect making the candi- date the dean's choice rather than that of the depart- ment; and, third, that deans influence the hiring process by using salaries and terms of appointment to impose their own views on the process, and to frustrate faculty desires. 19 s The process itself begins, as provided in the con- tract, 196 when the provost has decided that a vacancy,is to be filled. At that point, the department chairperson after consulting, with the full-time faculty of the depart- ment and the dean197 is required to appoint a search committee drawn primarily from full-time department faculty. The committee then begins the search by solicit- ing applicants from both inside and outside the Universi- ty. The committee may advertise in professional journals, or in general circulation, or specialized newspapers, or may recruit privately, through professional contacts of individual committee members, or by setting up inter- views at professional meetings. In this recruiting stage of the proceeding, aside from the influence the dean may 194 From the point of view of those candidates rejected along the way by faculty committees, there is no question that the authority of the fac- ulty is final There is no evidence that any rejected candidacy was re- vived because of intervention by chairpersons, deans, or higher adminis- trators. 195 These descriptions of the positions of the parties may be over sim- plified, but I think they portray accurately the thrust of the arguments. 198 Westling testified that the procedures in the contracts were forma- lizations of the procedures generally followed previously The facts bear out the accuracy of this testimony 197 At this stage in the process the dean may influence the direction of the search by setting the level of the appointment at the assistant profes- sor level or as a tenured position, and setting the dollar amount or dollar range for the salary for the new position have on the type of candidate desired , or the salary level of the position, the committees operate entirely on their own. The results of the recruitment can be as many as 300 or 400 applications in CLA/GRS as noted by Dean Ban- nister and Professor Patricia Craddock, chairperson of the English department , or there can be difficulties in finding any qualified candidates, as described by Associ- ate Dean Lawson of SMG. The committee members then review the applications, which contain not just an application but complete dos- siers of folders on the professional and academic records of the candidates. These may also be accompanied by letters of recommendation . The committee may ask for other names of people who would supply references. The process of reviewing all this material will vary with the numbers of applications received.198 Committee members go through this material , in many cases work- ing individually or in small subcommittees , and report back to the full committee with the names of those they consider worthy of further attention . The full committee then narrows the list down to the top two or three199 candidates who will be offered the opportunity to come to the campus at the expense of the University for fur- ther review . Westling indicated that , typically, the candi- date would give a scholarly lecture or present a paper for an audience of departmental faculty , search commit- tee members, and anyone else who wished to attend. This could be, followed by a social occasion and further interviews with the department chairperson and, in most cases, the dean.200 After all this, the search committee reviews the records of the candidates , and makes recommendations to the full-time faculty of the department . The chairper- son of the department makes his or her own recommen- dation and ships the whole package to the school or col- lege dean . If the dean approves , then he and the depart- ment chairperson will work out the details on what the candidate 's initial schedule and workload will be, and what the new faculty member 's salary will be. Faculty salaries are not set up in any kind of uniform scale as, say, with public school teachers whose salaries are based on a grid where one line represents years of service, and the other the level of academic attainment. Rather, at Boston University, the salary of a new faculty member may reflect the current salary level of a person with the candidate's level of experience , or possibly the salary of the, person ,who had left and whose job is being filled, or there can be variables such as limitations in the department or school budget, the inclusion of moving ex- 198 I have no doubt of the accuracy of the Association's statement in its brief that the amount of working time spent by individual faculty members on these committees over the years is not great Memberships are constantly rotating among faculty, and there maybe years when no vacancies need to be filled in a department. I do not, however, believe that time in this context'is as significant as function 199 This was Westing's estimate Dean Gilbane estimated 3 to 5, at SMG there might be 4 to 6, at SAR, 1 or more; and at CLA/GRS, 8 to 10 Whatever the number, the process goes along in the same way. 209 In cases involving senior, that is, tenured, faculty candidates, the process would include meetings with the provost and the president as well BOSTON UNIVERSITY 843 penses or other extras as negotiated , in the package, or an adjustment of the new member 's workload . 801 The chairperson then engages in negotiations with the suc- cessful candidate . The figures agreed on between the chairperson and the dean may be adjusted further. As Dean Bannister put it , it would be "stupid" to lose the right person for the sake of a couple of thousand dollars. The whole package then goes up to the provost and the president for transmittal to the board of trustees. The University has introduced into evidence a series of charts showing concurrence between faculty recom- mendations on new faculty and final action by the trust- ees. At CBS , the chart shows that 28 recommendations were made by CBS faculty between 1976 and 1980. The trustees approved 32 candidates . 202 The testimony of Professor Dolores Burton of the division of rhetoric on this subject is less than credible . Her statements that there were no search committees or formal searches in the division of rhetoric, and her testimony that the rheto- ric faculty listens, but takes no part in candidate inter- views was denied , credibly , by Division Chairperson Harry Crosby . I found Burton to be a bitter sort of person and her testimony was just not logical in the face of all the other contrary testimony by Professors Wex- elblatt, Black, and Koss. At SMG the concurrence rates for the period 1976- 1980 show that of 47 candidates recommended by de- partment faculty , 47 were approved by the board of trustees . Professor Lawrence Wortzel testified that some candidates were not included on the University 's concur- rence tables. I note that Wortzel is a sincere and earnest individual , but I note also that for some years he refused to attend department meetings because he was displaced as department chairperson, and had a personal dislike of his successor . 203 This, together with the vague and rather disconnected nature of his testimony lead me to disregard Professor Wortzel's testimony and to find that the concurrences are as shown in the University's chart.20a At SPC the concurrence rates on the University's chart show 10 positive recommendations by departmen- tal faculty and 13 approvals by the trustees . The chart 201 There is an almost morbid reluctance on the part of the University and the Association to reveal actual faculty salaries . Exhibits were cen- sored to avoid getting these things into the record , and witnesses did not mention figures when talking about salaries . All this had no effect on the facts of the case and no bearing on my decision. 202 The discrepancy here is the University's own doing . Counsel indi- cated that documentation for faculty action could not be found for four candidates at the department level. At the the chairperson 's level, docu- mentation was found and this indicated that the chairperson recommend- ed 32 candidates . In this case the University has, I think , erred on the side of fairness . It is highly unlikely that the opinion of the department and the chairperson differed in only these cases , and I infer and find that they did agree, making the concurrence rate at CBS 100 percent between 1976 and 1980 . In arriving at this inference I have taken into account the testimony of Dean Gilbane that he had never turned down a candidate brought forward by the division and the chairperson, as well as the testi- mony of Professors Wexelblatt, Black , and Koss. sos See sec . III,F,3, supra. 204 The University indicated , through its counsel, that the documenta- tion for all these charts was available , on request, to the Association and the General Counsel . The hearing lasted 2 years and 4 months, with many recesses and breaks , which should have allowed ample time for the parties to examine all the underlying documentation. shows no departmental documentation for 3 of the 13 ap- proved by the trustees . Again I think the University has erred on the side of caution . For example , two or three faculty members for whom the University could find no documentation are Kay Israel and T. Barton Carter, both hired in the 1978-1979 year. 205 Regarding these two fac- ulty members, Professor Otto Lerbinger of SPC , testify- ing about the hiring process in 1978 -1979, said that he was "probably" consulted by his chairperson about both Carter and Israel . He did not remember a formal vote, but the absence of a formal procedure was not unusual before the 1979 contract . The only other candidate for whom there is no departmental recommendation is Peter W. Ladue, hired in the 1979-1980 school year . As in the situation at CBS , and in the absence of any evidence that contractual requirements in effect during the 1979-1980 year were not observed , I infer and fmd that the concur- rence rates at SPC were 100 percent in the 1976-1980 period. There were a number of cases cited by witnesses for the General Counsel when faculty members asserted that they were not consulted in the hiring process. The prob- lems with this testimony by Professor Bernard Rubin, Otto Lerbinger , Earle Barcus, and Robert Baram are, first , that the testimony is so vague and so full of qualify- ing words like "probably ," "I guess," "I believe," "I think," "I heard," and "possibly" that it is difficult to de- termine whether the witness is talking about something he knows, or something he had just heard from some- body, or something he is surmising ; and, second, these witnesses were confused on dates and times , as well as about the program divisions within the departments at SPC. For these reasons, while I am sure there are in- stances when particular faculty may have been bypassed or even ignored, I do not think that there is a conscious effort to do that at SPC , and I do not believe that the cited testimony is sufficient to establish a lack of faculty involvement in the decisional stage of the hiring process. There is not much evidence concerning the hiring process at SAR . Dean Hershenson's testimony indicates that the process there is very similar to that outlined above, and as set out in the collective -bargaining agree- ments . The concurrence rates for 1977-1980 show a rate of 100 percent. At CLA/GRS the procedures are substantially the same as outlined in the contract and followed in the other schools and colleges . The concurrence rates show that out of 102 positive recommendations by department faculty in the period 1976-1980 (together with 26 for which departmental documentation was not available), the trustees approved 126 appointments of new faculty. If we include all these cases the concurrence rate is 83 percent, if the undocumented cases are excluded from the computation , the rate is 98 percent . I do not see in 205 I also note that despite the Association's citation of a policy im- posed in 1978 by former Provost Hanson that the University not hire Boston University graduates , as an example of restrictions unilaterally im- posed by the administration , both Israel and Carter, hired in 1978-1979, are Boston University graduates, Israel with a master 's degree in public relations, and Carter with a master's degree in mass communications and a current (1983) candidacy for a Ph. D. in the university professors pro- gram . Hanson was provost through the 1978-1979 academic year. 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the evidence offered with regard to CLA/GRS, the same clues which I saw in regard to CBS and SPC, so that I do not-feel that I can draw the same inferences that I did in these instances. There are some cases cited by the Association and 'of- fered to show that the concurrence rate chart submitted by the University for CLA/GRS was inaccurate in not including some candidates who were rejected by the ad- ministration after being recommended by faculty. There are, however, conflicts in testimony between witnesses that cast some doubt on the probative value of this testi- mony. Professor Fleming of the anthropology depart- ment testified that there was no consultation in the de- partment on the hiring of certain people, whereas Profes- sor Leeds, from the same department, testified that there was consultation on those people. 'Professor Hallett of the classics department, indicated that the chairperson consulted very little with the faculty in the department on new appointments, but Professor Beye testified that the same chairperson consistently consulted faculty on appointments. Beyond these discrepancies I did not find sufficient clear and credible evidence to determine that there were any omissions from the Univesity's concur- rence rate charts.206 There are a number of examples, based on the testimo- ny of Professors Bustin, Goodheart, and Coulter, of con- ditional searches, when the administration reserved the right to cancel the opening even after searches have been completed; promises of increased openings that never materialized; and the use of the university professors pro- gram to find academic berths for eminent personages who may not be, primarily, scholars, as in the cases of Herman Eilts, former United States Ambassador to Saudi Arabia and Egypt, and William V. Shannon, former Am- bassador to the Republic of Ireland. These factors, to- gether with the lack of evidence tending to tie in those undocumented departmental recommendations to the charts submitted by the University leads me to find that the concurrence rates as compiled by the University ac- curately reflect the real state of the hiring process at CLA/GRS. Based on these conclusions, I have calculated, and find the following concurrence rates between departmental votes at the five schools under consideration and the votes of the board of trustees approving appointments. Of a total of 242 appointments207 218 were recommend- ed by the departmental faculties, for an overall concur- rence rate of just slightly over 90 percent. 206 The Association in its brief, for example, states that a Professor Houska resigned on December 7, 1978 The record evidence shows that counsel for the Association, in showing Houska's resignation letter to Professor Bustin, then chairperson of the political science department, de- scribed it as being dated December 7, 1979 The letter itself shows the date, in my opinion, as 1979. The testimony of Bustin on this is likewise contradictory, indicating at one point that he had notified the dean of Houska's resignation before recommending a successor, later denying that. In other cases cited by the Association, the individuals mentioned had declined offered employment or their rejections by the administration were outside the time period covered by the University's concurrence rate tables. 2 07 I am using the total numbers submitted, recognizing that at SPC figures for the 1976-1977 academic year were not given Having found that the role of the faculty in recruiting, and in the mechanics of sifting through files, choosing applicants to come to the campus, interviewing, further analyzing the candidates' files, and ultimately arriving at recommendations regarding these candidates, 90 percent of which recommendations in the five schools have been accepted by the trustees, I must now consider the rela- tive weight that the judgments of departmental faculty carry in the ultimate decision of the trustees, relative to and compared with the intermediate actions and judg- ments by department chairpersons, deans, the provost, and the president, all of whom make their own analyses, judgments, and recommendations in the hiring process between the recommendations of the-department faculty and the actions of the trustees. The chairpersons, deans, and the provost, all testified that they study the applications, references, and qualifica- tons of candidates separately and distinctly from the lower levels of review. At the departmental level, the criteria used to select and recommend candidates were eloquently described by Professors Wexelblatt of CBS and Vendler of the English department at CLA/GRS. Wexelblatt stated that the faculty at CBS, in evaluating a candidate, look for a breadth of background and an in- terest in general education for evidence of teaching abili- ty, especially in interdisciplinary programs, and with some interest in working with people in other fields, not just their own. Candidates, in Wexelblatt's view, should be articulate, be able to connect ideas, and to think on their feet; and to handle and control groups of students. According to' Professor Vendler, she looks at candidates in the hiring process for "originality of conception and some scholarly competence and a capacity to communi- cate one's discoveries in search to someone else. That is to say, the writing has to be lucid, clear . . . ." Vendler made it clear that she would 'review the candidates in areas with which she is familiar, when others in the de- partment would review others. This' testimony is substan- tially in agreement with President Silber's April 8, 1976 comments, as I have already noted, that responsibility for the appointment of faculty in English" is initially the' re- sponsibility of the faculty of that department, with the dean, the academic vice president, and the president re- sponsible "for reviewing and assessing the objectivity of the judgment" made by faculty in the hiring process. The statements of these two faculty members are con- sistent with the statements of others that the faculty ex- pends a great deal of effort in recruiting, interviewing, and hiring. The amount of time varies from year to year and department to department, and, as noted above, there may be years when' an individual faculty member spends no time at all in the recruiting or appointment process, but there is no evidence that faculty do not con- sider this an important, even necessary task, or, con- versely, that they consider it merely a ministerial exer- cise in shuffling paper, as when the University's office of admissions forwards files of graduate student applicants to the appropriate departments of ' CLA/GRS, SPC, SMG, or SAR. ' The attitude of department chairpersons toward their role in this process varies according to the, individual. I BOSTON UNIVERSITY 845 find, however, a pattern among most chairpersons in the hiring process . These chairpersons act in the first stages more or less as secretaries , handling the paperwork in processing applications . Sometimes , as noted by Profes- sor Sidney Black, chairperson of humanities at CBS, or Eugene Goodheart, former chairperson of English at CLA/GRS, they screen out inappropriate inquiries or unqualified applicants . Then the remaining files are for- warded to the search committees . When the committees complete their review the chairperson then takes the committee recommendations back to the departmental faculty for a consensus , or a vote, if necessary . Consider- ing themselves a part of the departmental faculty, just as other members,208 some chairpersons consider them- selves bound by departmental faculty decisions. This view is reflected in the testimony of current chairperson of English, Patricia Craddock, former chairperson of physics, Robert Cohen, former chairperson of psycholo- gy, Joseph Speisman , and Chairperson of Biology Ian Callard. A contrary view appears in the testimony of chairperson of social science at CBS , Frederick Koss, and Chairperson of Chemistry Norman Lichtin. Koss in- dicated he followed the same procedure as outlined above, but in the end, while he consulted the faculty, he makes the final decision . As he put it, it would take a very strong faculty member to resist the chairperson. Lichtin, another strong-willed person, indicated that he operates much the same way. On balance , I find the preponderance of the evidence establishes that, with few exceptions , chairpersons review the files, and consult with faculty, but in the end are guided in their own recommendations by the recom- mendations of the department faculty. The deans have opportunities to affect the hiring proc- ess either directly or indirectly, and in several different ways. Directly, the dean can influence hiring in that he or she makes the initial decision that a vacancy is to be filled (although since the collective-bargaining agree- ments, this decision is subject to final review by the pro- vost). As Dean Bannister put it, when it is known in a department that a vacancy is coming up, the chairperson consults with the dean to see if a search should com- mence . If the dean believes that there is a reasonable chance that the budget will permit the filling of that va- cancy, he will authorize the chairperson to commence a search . At the point when the search is authorized, there is also come consultation between the dean and chairper- son on the type of candidate who will be sought, and the salary level at which the candidate will be hired, accord- ing to Dean Bannister, as corroborated by chairpersons Craddock and Papanek. This is one of the areas in which the dean can indirectly affect the hiring process. Other points at which the dean's authority may touch on the process are the questions of the length of the term of appointment , and negotiations over salaries and other benefits. The former point is not significant at present be- cause the contract mandates a 2-year initial appointment, but in the precontract periods we have evidence that deans could and did discourage applicants by offering only a 1-year initial appointment . The question of salaries 208 See sec . III,N, below. and other benefits is another area in which the dean can influence the hiring process . Professor Goodheart testi- fied that the failure of the dean to agree to a higher salary resulted in the loss of a good candidate, even though Bannister himself said that a good candidate should not be lost for want of a couple of thousand dol- lars. A final and most important point of indirect influence by the deans, occurs at that moment in the process after the candidate 's files have been reviewed , and after the candidate has come to the campus and been interviewed by the search committee , other faculty , the department chairperson , and the dean . At this point, the Association argues, the chairperson and the dean meet and the dean informally gives his views on the chances for approval of the candidate by himself and by higher administrative au- thority . This, according to the Association's argument, effectively subordinates the department 's action to the in- formal views of the dean , and makes the departmental decision and recommendations really the dean 's and not that of the department. There is no question that deans try to interview all the final candidates , and the evidence shows that there is a kind of salary auction between chairpersons and deans in the final assembly process of the offer to be made to the candidate, at which the dean could influence the vote of the department. Looking at the five schools we have studied, at CBS Dean Gilbane testified that the salary negotiations be- tween himself and the chairperson take place before the final vote of the division on the candidate. There was no testimony on this from either Gilbane , or the chairper- sons who testified on the hiring process , Koss and Black. Gilbane himself stated that he had never rejected a can- didate brought forward by the division and chairperson. Associate Dean Lawson of SMG testified that he does discuss the question of money before the offer is made to the candidate, but it seems to me in reading Lawson's testimony that the money discussions follow, rather than precede, the department 's decision on the candidate. At SPC Dean Dondis stated that she tries to interview every candidate who is invited to the Charles River Campus for interviews , and also consults informally with chairpersons on salaries . She testified that the recommen- dation to hire is sent to her in writing and that she review the files in a "really sincere" way, but actually "rubber stamps" the recommendations of the faculty. Dean Hershenson of SAR indicated that he is not a part of the hiring process up to the time when candidates come to the campus and he interviews them . Then the search committee communicates with everyone who has interviewed the candidates , including the dean. At this point, according to Hershenson , the committee takes the matter up with the faculty of the department , gets a final consensus, or vote , which is written up by the depart- ment chairperson and conveyed to the dean. There are, then , further discussions on salary and other conditions between the dean, the chairperson, and the candidate. If these result in a final package acceptable to all, the offer and acceptance are forwarded again to the dean, who, in turn, sends the matter to the college APT committee. 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This committee , composed entirely of faculty , then agree or disagree with the package and send their recommen- dation back to the dean . The dean then writes a recom- mendation based on the APT recommendation, to the academic vice president for health affairs.2o9 At CLA/GRS there was testimony from former Asso- ciate Deans Slechta and Beal , and former Acting Dean Newman of GRS that there was a process at CLA/GRS whereby the dean would dictate the choice of the de- partment in hiring new faculty. This was denied by former Acting Dean Doner and by Dean Bannister. As in the other schools, the deans do interview candidates when they are able, Bannister testified that he works with chairpersons on salary and other benefits , but that he refuses to tip his hand in advance with regard to his views on candidates, reserving his option either to reject the recommended candidate210 or to agree with the de- partment recommendation , despite serious misgivings in some cases , and forward his positive recommendation on the provost . I am not persuaded by the testimony submit- ted by the General Counsel in this area, 211 and I find the testimony of Doner and Bannister to be credible and logical here. With regard to what are referred to as senior appoint- ments the process is more complicated . 212 Not only is the interest of the higher administration , the provost, and president more visible by the candidate . The candidate also must be approved for tenure by the college and uni- versity appointments , promotions, and tenure commit- tees. The Association has pointed to several of these situa- tions to demonstrate that the administration often rejects search committee and chairperson recommendations. For example , Professor Steven Marcus from Columbia Uni- versity was brought to the University on the basis of his superior reputation and his expression of interest in coming to Boston. He was impressive and Chairperson of English Goodheart recommended to the provost that Marcus be offered a position. Goodheart heard no more about it, but the facts show that there was no search committee , just an informal visit and a recommendation for this senior appointment based on the facts that he was both distinguished and available . Another example cited by the Association concerned Goodheart's experi- ence as a member of a search committee for director of the American and New England studies program. Good- heart's' testimony on this was that "I don't have a very good ' memory about this. I know that , somebody was rec- ommended by the committee . And the person was not appointed . I do not know exactly what the circumstances were of his not being appointed . I can't recall. I wasn't directly-I was on the committee I believe, but I was not involved in that negotiation with the Dean. I certain- 209 The University's concurrence rate charts show a 100 percent con- currence at all these levels for the 1976-1980 period. 210 Which he did at least three times in the 1978-1980 period 211 The testimony of Professor Lichtin, while not entirely clear, tends to show not that Lichtin looks for approval by the dean before making a recommendation, but that he looks for "signs" from the dean that the latter will approve Lichtm's recommendation. 212 The section does not deal with appointments of department chair- persons who almost always are senior appointments as well . See sec. III,M , below. ly wasn't chairman of the committee." I cannot make a finding based on this sort of testimony.213 There is one case that does reflect negative unilateral action by the administration. Late in 1978, the provost and the dean authorized a search for a senior position with tenure in the English department. A search commit- tee was established, advertisements composed and pub- lished, files reviewed, interviews conducted, and the search committee, the department, and the chairperson recommended that one Mark Strand be appointed as a senior professor. The dean approved and sent the file up to Provost Mayfield. Mayfield reviewed the file and talked to Strand at length, then rejected the candidate as a tenure faculty member on the basis that Strand's poetry "was almost entirely gloomy." Mayfield continued, "I wasn't certain what effect this would have on students. I knew that people had read his poetry and had appraised [sic] it but I knew that in terms of the University's need this would probably be the only senior appointment in poetry we might be able to make for a number of years. And I thought we ought to try this man to see what impact he was having on our students." From all his tes- timony I have no question that this provost is, indeed, a "douce man" but there caution seems to come closer to whimsy. This incident certainly establishes what can be done by the higher administration, even as President Silber im- posed Professors Lord, Littell and Brann on SPC. But these examples are not sufficient to show either a pattern of interference and imposition by the administration of people unacceptable, or at least unknown, to the faculty, or a refutation of the University's concurrence rates, or a refutation of the testimony from witnesses representing both sides concerning the faculty's role in the hiring process. The facts show that faculty at the five schools examined here have the major role in advertising, re- cruiting, reviewing files, and finally, in recommending candidates. I did not observe, during President Silber's appearance on the witness stand in this proceeding, that he is much given to understatement, but his description of the faculty's role in the hiring process that "they don't decide who is to be hired. They participate in deciding who is to be hired" does not restrict the level of partici- pation, or the effectiveness of that participation, as re- vealed by the record here. 2. Reappointments of faculty Full-time teaching faculty members '214, who are hired in the rank of instructor or assistant professor, without 212 In another search for a senior appointment, described by Good- heart's successor as chairperson of English, Patricia Craddock, she re- ceived a dossier from the dean for a candidate who had been recom- mended to the dean by the president. The candidate was first rejected on paper qualifications, but then, on the suggestion of the dean, interviewed, but rejected again. The person was not appointed. " -' , 214 Full-time faculty sometimes is engaged exclusivelyi in research and does not teach. These people, as well as part-time faculty, who may be known as clinical or adjunct faculty (usually practictiorieis' who are' hired to offer instruction of a practical kind in programs at tlai tffmversity), and visiting professors (who are temporary appointments); are not included in the bargaining unit here. Those appointed with tenure 'as" Associate or full professors are, naturally, not subject to reappointment. BOSTON UNIVERSITY tenure , have what are called probationary appoint- ments . 215 When the terms of their original appointment, mandated at 2 or more years by the contracts, or subse- quent appointments , expire , they must either be reap- pointed , or leave their positions.216 The procedures for renewal of probationary appoint- ments are set out in the 1981 -1984 contract as follows: "All decisions to renew or not to renew probationary ap- pointments without changes in rank -shall be made by the Dean , with the approval of the Provost, after consul- tation with the department faculty and chairperson. Con- sultation shall normally include a meeting of faculty with prior timely notice and the availability of appropriate documents . Procedures used in reappointment decisions shall follow a schedule that has been set by the Dean and communicated to faculty." "Full-time faculty members appointed at the rank of Instructor shall be advanced to the rank of Assistant Professor when they have met the departmental and other requirements for the rank." The evidence shows that there are two separate deci- sions that must be made in the reappointment process. The first of these , at the threshold of the procedure for reappointment, is the requirement , imposed unilaterally by the provost in a memorandum to deans dated March 26, 1981, that "For any reappointment, proof of need must first be established. This should be done in the context of a departmental plan, current enrollment figures and levels of faculty productivity within the department or school." At- tached to this memorandum was a form to be used by the deans in justifying the recommendation for renewal. As the Association has pointed out in its brief, the form has places to indicate the date of consultation, and the number of tenured faculty consulted, but no space for recommendations by faculty or department chairpersons. Of course, the contract does not require recommenda- tions, just consultation , but the design of the form cer- tainly reflects the administration 's thoughts on the matter, and, possibly , its reliance on faculty contributions to this process. It is necessary to look at the evidence to determine whether these intimations of disregard for fac- ulty input are reflected in the practice at the several schools and colleges. At CBS, Dean Gilbane testified that the chairpersons consult with the tenured members of their division and then make written recommendations to the dean . Gilbane was not sure if the chairpersons held meetings with the tenured faculty or discussed the matters with them indi- vidually. This testimony is corroborated by Professor Wexelblatt, who stated that he was asked to evaluate fac- ulty coming up for renewal . He either made classroom visits, checked the subject' s colleagues , or the evaluation 816 See art IV,D, of the collective-bargaining agreements . Probation- ary status and procedures for renewal of appointments are common in the academic field, and not applicable only at Boston University. See statements on procedural standards in the renewal or nonrenewal of fac- ulty appointments, AAUP, April 1971, in evidence here. 216 The rank of instructor is rarely used , ordinarily in cases of talented candidates who have completed all the requirements for the Ph.D. degree except for the dissertation . At Boston University, instructors will not be retained if they have not completed their dissertation and received their Ph.D. degree within an agreed-on time See testimony of Professor Pa- panek. 847 form prepared by students, and the comportment and be- havior of the subject at faculty meetings , before convey- ing his recommendations to his chairperson. Division Chairpersons Black and Koss testified that they obtained the views of the tenured faculty in their divisions. Black and Koss indicated that before the contracts became ef- fective the process was much less formal, but both were clear that there was consultation between the chairper- sons and senior faculty.217 Another concurrence chart prepared by the University for this hearing , purporting to show concurrences in CBS reappointments between chairpersons' recommenda- tions and final action by the trustees, indicates that in the years 1976 to 1980 the concurrences between those two were 100 percent.218 According to the testimony of Associate Dean Lawson at SMG recommendations for reappointment are subjects of discussion between tenured faculty and chair- persons . These discussions , as at CBS, may be in a meet- ing, or informally. Recommendations are then forwarded from the chairperson to the dean. The testimony of Pro- fessor Wortzel, which indicated that there was little or no consultation by chairpersons with faculty in the pre- contract period, was consistent with that of Dean Lawson regarding the later practice under the contract. Dean Dondis testified that at SPC the chairpersons consult with tenured faculty before forwarding their rec- ommendations on renewal or nonrenewal to the dean. The dean's testimony was corroborated by Professors Barcus and Baram . The testimony of Professor Bluestone does not contradict this, but seems to have reference to a single instance when the dean disagreed with a faculty recommendation . Even if this were so, and the Universi- ty's brief makes a strong case that it is not, but even if it is, it does not alter or put into question the testimony of Dean Dondis and Professors Barcus and Baram that the faculty is consulted on reappointments. Dean Hershenson testified that the practice at SAR follows the contractual mandate . The chairpersons meet with the tenured faculty, the faculty votes on the reap- pointment , and the chairperson submits a recommenda- tion to the dean based on that vote. If the dean disagrees he discusses it with the chairperson , but he has had no such disagreements since he became dean in 1977. Pro- fessor Joanne C. MacDonald contradicted the dean, saying that in the department of occupational therapy the chairperson handles the reappointments in that de- partment without consulting the tenured faculty, of which MacDonald is one . I did not generally find Pro- fessor MacDonald to be an untrustworthy witness, but this testimony is so completely at variance with all the 217 I do not credit the contrary testimony of Professor Dolores Burton , who impressed me as vague and imprecise in her recollections. I do credit the testimony of Division Chairperson Harry Crosby. See also memorandum from Koss to an anonymous faculty member dated Decem- ber 9, 1976, in evidence here. 218 There are some problems with this concurrence rate chart as well as those for the other schools and colleges because of lack of documenta- tion for some chairpersons' recommendations . I think it only fair in these circumstances that I use these charts only for reference , and rely for my findings in this area on the testimony of the witnesses with regard to CBS as well as the other schools and colleges. 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other testimony by the dean and by SAR faculty show- ing a collegial approach to governance, curriculum, pro- gram, hiring, and every other facet of the college's ac- tivities, that I cannot believe it. I note further that Pro- fessor MacDonald was for some years a member of the faculty council and its predecessor. The minutes of meet- ings of those bodies reflect that she was an active and vocal participant in the deliberations of those groups. Yet there is no evidence that she ever raised a question or filed a grievance alleging that her department chair- persons ignored contractual provisions that faculty be consulted on reappointments. At CLA/GRS Dean Bannister testified that the proc- ess varies from department to department, but in all cases there is consultation with senior, i.e., tenured, faculty by department chairpersons. I found no real variance from this testimony in the testimony of Professors Beye, Miller, Speisman, Psathas, and Papanek. Instances cited by Professors Leeds and Fleming are really not clear enough for one to conclude that faculty are not consult- ed in the reappointment process, or, indeed, were ever not consulted in the process. The contractual provisions quoted above and the testi- mony in this area lead me to the conclusion that the fac- ulty care substantially less about reappointments than they do about either the hiring process that precedes re- appointment procedures, or the tenure process that fol- lows. I do find, however, that there is participation by faculty in reappointments although the level of that par- ticipation is not so pronounced as in the hiring stage. 3. Faculty and tenure Tenure is a state or condition of employment under which a, faculty member who has been awarded tenure may continue in his or her employment at the University until retirement, barring physical incapacity, outrageous moral turpitude, or financial crisis. As set out in article V,A, of the contracts, "Tenure is a means to certain ends; specifically; (1) freedom of teaching and research and of extramural activities, 219 and (2) a sufficient degree of economic security to make the profession at- tractive to men and women of ability." If the award of tenure is of critical importance to the individual faculty member, as- a matter of personal free- dom and security,220 it is likewise vitally important to the University, involving, as Westling stated, the com- mittment of over $1 million during the working life of a tenured faculty member, as well as concern over the scholarly stature and teaching ability of that tenured fac- ulty member. There are two other constituencies present here, each with its own interests in the tenure process and its own order of priorities in that process. The Association, as I have noted above through references to several of its policy documents dealing with academic freedom and tenure, has been vitally concerned with tenure for many 219 See the discussion of academic freedom in the development of the modern university in the introduction, III,A, supra. 220 Faculty members who seek tenure and do not receive it are placed on what is called a terminal contract for 1-year, after which they must leave the University years and, in its more recent manifestation as a collec- tive-bargaining representative, has seen fit to attempt to bind itself and academic institutions to detailed proce- dures in the award of tenure. The last group having interests in the tenure process is the faculty in the department or discipline where a can- didate is seeking tenure. Here the testimony shows that the tenured faculty, people like Professor Helen Vendler, look searchingly at the candidate's teaching ability, fre- quently visiting classes, noting whether the teaching is lively, not boring, but relating to the text being taught in a way that is "both profound and true," clearly and lu- cidly expressed. Vendler sets extraordinarily high stand- ards for tenure candidates, looking at the candidates to make sure that they can take on any of the tasks that other senior faculty perform, someone who will not just publish once, but will continue to publish, and "keep a living scholarly life alive." When I asked her what was the import of these judgments she stated that the judg- ments were made within a university framework, for the benefit of the University, but mostly to affirm some- body's worth "as a scholar in your own discipline." I am sure that not every judgment on tenure at Boston Uni- versity is made under such empyrean standards, but all the evidence tends to show that faculty take their re- sponsibility very seriously in this area, despite the ties of personal affection and comradeship that might ordinarily be thought to influence judgments on departmental peers. The procedures set out in the contract concerning the tenure process are elaborate and comprehensive. 221 Ac- cording to testimony from Westling and the . several deans, the schedule requires that each faculty member in his or her 6th year of full-time service at the University must undergo tenure review.222 The University's faculty actions office annually notifies each dean of the names of faculty who are in their 5th year of service and who appear to be facing tenure review in the following year. Early in the next academic year the long and complicat- ed forms used in the process are sent to the tenure candi- date with appropriate instructions on how to proceed. The candidate fills out the form, listing his or her own account of accomplishment in the three areas of teach- ing, scholarship, 223 and service to the University.224 The evidence here shows clearly that the single most im- portant factor in the tenure process is the candidate's record in research and publication.22s 221, These procedures are substantially the same as , those that existed before the contracts became effective. 222 There are exceptions and qualifications to this general rule, but these are not really significant to the issues in this case. The overwhelm- ing majority of faculty go through the process as described 223 This really means publications. 224 This refers generally to committee assignments. 225 See extended discussion in the record on the cases involving Pro- fessors Judith Hallett, Julia Brown, and Harvey Boulay? See also the de- cisions of my colleague, Administrative Law Judge Michael Miller, in Trustees of Boston University, Case 1-CA-14023 (unpublished), dealing with the tenure problems of former Professor Evan Cameron. No excep- tions were taken to Judge Miller's decision and his recommended Order was adopted pro forma by the Board on April 9, 1980. The decision is in evidence in this case. BOSTON UNIVERSITY The candidate's account includes publications , descrip- tions, courses taught, doctoral candidates supervised, committee assignments , and plans for the future. The candidate is asked to supply the names of three persons not connected to the University who are qualified to evaluate his or her published work. After the candidate has compiled all this material the tenured members of the department review the files, dis- cuss the candidate in the light of this review, and vote, by secret ballot if desired , on the question of whether or not to recommend tenure . The department chairperson adds his or her recommendation to the department's review and forwards the files to the dean and the school or college appointments , promotions , and tenure (APT) committee composed of tenured faculty and selected under procedures recommended by the faculty and ap- proved by the dean and the provost. The APT commit- tee reviews the department's and chairperson's recom- mendation, discusses the whole matter further, then for- wards its recommendations to the dean. The dean may send the matter forward with a recom- mendation for tenure, or may reject the recommendation (in which case the process is over except for an appeal to the provost), or may send the matter back to the depart- ment or the APT committee to remedy procedural defi- ciencies . If the last alternative is chosen , the procedural matters are cleared up and the recommendations come back again to the dean for positive or negative recom- mendation. On approval by the dean, he or she sends the package, together with his or her own recommendation , forward to the provost. Before making his own decision, the pro- vost is required under the contract to refer the case to the university APT committee, composed of tenured fac- ulty, eight selected by the faculty council and seven se- lected by the provost. This group reviews all the files and, in addition, solicits evaluations of the candidate by persons selected by the committee from among persons outside the University who are authorities in the candi- date's field of scholarly interest . When all this is done, the APT renders what the contract calls its "Judgment" and forwards the files to the provost.226 From this point on , there are alternative procedures set out in the contract in cases of differences in the judg- ments of the school APT, the university APT and the provost, including in some cases the appointment of an ad hoc tenure review committee composed of one member named by the university APT committee, one by the provost, and the third by the first two. The final decision is, of course made by the trustees on recommen- dations of the president. This outline is simplified but shows the points at which faculty becomes involved in the formal tenure process; at the departmental level, in the school APT committees, and at the university APT level. In this area, as in hiring and reappointment, the Uni- versity submitted concurrence figures designed to show me, and any other reader of the record, that in a consid- erable majority of the decisions , the faculty and trustees' 226 It is not surprising that Dean Bannister described some of these tenure files as being 2-feet thick. 849 actions concurred . In this area, however, the University's concurrence chart included figures from schools about which I excluded evidence at this hearing . This led the University , in its brief, to revise the chart to attempt to reflect the reality at the five schools we did cover. In so doing, their figures indicate a concurrence rate at the five schools between the faculty votes on the candidates, and the trustees action , of 84 percent . I had some prob- lems with these computations . I agree that four candi- dates who resigned before completion of the process should not be counted . In my own calculations I counted as a disagreement , or lack of concurrence , cases when a candidate withdrew after receiving a positive vote from the department faculty and a negative vote from the dean, and I counted as disagreements areas when the de- partment faculty voted negatively and the trustees awarded tenure . According to my figures, out of a total of 79 tenure decisions counted , I found 57 agreements between department faculty and the trustees, 13 disagree- ments, 2 ties (when there was a tie vote of faculty and I list the figure but can think of no way to count it posi- tively or negatively) and 7 recommendations of 3-year extensions of time before the tenure decision . 227 My fig- ures show a concurrence rate of just over 77 percent. This is appreciably lower than the concurrence rates I have found to be reached in the hiring process, but this difference , I believe, reflects the overwhelming impor- tance of tenure decisions from the point of view of the individual , the academic discipline, and of the University both from a scholarly and economic viewpoint. Given these factors , I find that a concurrence level by the trust- ees with faculty recommendations at better than a three to one ratio shows substantial faculty impact on the tenure process. In making this finding I am not unmindful that there are some people who arrive at the tenure decision year and decide not to apply , preferring to accept a terminal contract instead of facing the judgments of the faculty and administrators . In the absence of evidence of intimi- dation by administrators228 I cannot find that this affects negatively the authority of the faculty in actual tenure cases . 229 Nor have I disregarded the testimony of Pro- fessors Robert Cohen , Speisman , Fleming, Collard, and others that there are names of persons, not included on the University 's concurrence charts, who nonetheless were recommended by faculty and rejected by the ad- ministration . I find the same fault with this testimony that I found with the same sort of testimony in regard to the appointments process . The testimony was imprecise, vague , filled with hesitancies , qualifications, and lack of 227 This 3 -year extension was created in the first collective-bargaining agreement as a kind of way station between tenure and termination, on the theory that the candidate 's work showed promise but more time was needed to determine whether tenure should be awarded . I did not count these in my concurrence rate. ass One faculty member , Professor of Political Science Rossell, admit- ted that she was concerned and apprehensive about how her senior col- leagues on the faculty would treat her when her time for tenure review came around 229 This would apply to the testimony of Professors King and Wells that they were advised that tenure was hard to come by at CBS. These warnings were nearly speculative by the division chairperson and the dean, who allegedly made them. 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clarity. I am not reconsidering my rulings with regard to so-called hearsay testimony, but whatever it is called, probative testimony must be clear, precise, and reflect a firm knowledge of the facts. 4. Faculty and promotions As previously indicated, promotions occur in grades from instructor to assistant professor, from assistant pro- fessor to associate professor, and from associate professor to full professor. The instructor level is, according to Westling, becoming rare in American higher education. As I have noted, at Boston University people are hired at that grade while finishing up the requirements for the doctor of philosophy degree. When these requirements are completed, promotion to the level of assistant profes- sor is automatic and involves no faculty action. The tenure process almost always includes a concomi- tant promotion from assistant to associate professor.230 The process for promotion from associate professor to professor (or "full" professor) is not structured as are the appointment, reappointment, and tenure processes. The contracts say merely in article VI, that promotion "shall be the result of demonstrated and significant additional attainments after the faculty member has been appointed or granted tenure. There should not be a rigid schedule for promotion, although a minimum number of years in rank before promotion should ordinarily be expected." Westling testified that the time period between the grant of tenure and promotion to associate professor, and the promotion to full professor is usually 6 to 10 years, but sometimes earlier.231 The process of promotion to full professor begins with the filing of an application by the individual himself on his own initiative, or may be prompted by colleagues or others. The application forms and the process itself are substantially identical to the tenure process,232 involving the same activities by the same groups, committees, and administrators, and resulting in either a decision by the trustees to, promote, or a decision somewhere lower down on the chart not to promote. The University submitted more concurrence rates on this issue, but as in the case of the tenure rates, the docu- ments submitted in evidence on promotions included all the bargaining ' unit schools. Therefore the University in its brief factored out the schools we have studied here, and came up with a figure of 83 percent concurrence by the trustees with the recommendations of the faculty de- partments . My own independent factoring came up with a total of 44 actions when the trustees and the depart- ments agreed , and 9 when they disagreed, for a concur- rence rate of 80 percent. On this subject the Association adduced testimony from Professor of Geography George K. Lewis, which amounted only to the fact that he could not recall being consulted on a promotion in the 1978-1979 academic 230 There are, of course, exceptions such as assistant professors with tenure, or full professors without tenure, but these are not important to our inquiry 231 For example, Professor of Chemistry Richard H. Clarke, who was hired as an assistant professor in 1971, was promoted to associate profes- sor with tenure in 1972, and to full professor in 1976 2 nt See art . VI of the contracts. year. Even assuming that Lewis was not consulted, the incident is so minor and isolated that it cannot impair the conclusions, which I draw, that the faculty has a strong and important role in the promotion process. J. Faculty, Teaching Duties and Functions 1. Recruitment and appointment of part-time faculty Part-time faculty are excluded from the bargaining unit by the terms of the Board's determination of the unit in this case. Part timers are used in all the schools except CBS, and are hired under a much less formal procedure than full timers. Generally the department chairperson at CLA/GRS will determine that part-time faculty will be needed because of faculty on leave, or openings not filled for some reason. The chairperson generally does the recruiting from lists maintained in the department, as described by Professor Bustin, chairperson of political science, or from advertisements at professional associa- tion meetings, or by reference from faculty members. The prospective candidates may be reviewed by faculty committees, as in the departments of English or modern foreign languages, or less formally, as in political science. All such appointments are subject to approval by deans, the provost, the president, and the trustees.233 The same processes generally are followed at SMG, SPC, and SAR. There is some faculty involvement here, but that is in- stitutionalized only in the English and modern foreign languages department at CLA/GRS. I cannot say that these areas , show substantial faculty involvement, but nei- ther does the evidence show that the administrative or even the chairpersons operate in isolation from the facul- ty. I can therefore draw no firm conclusions from this aspect of the case. 2. Appointment of clerical and technical employees The University maintains a central personnel office where applications for clerical positions are, received, evaluated, and graded, and successful applicants placed on lists. As vacancies occur in clerical positions234 in de- partments of the schools and colleges, chairpersons, with the permission of the dean, notify the central personnel office that a vacancy exists, and the personnel office sup- plies a list of candidates. The chairperson, either alone, or with the guidance of the departmental administrative assistant, or staff coordinator, reviews the files, inter- views candidates, and notifies the personnel office of the selection of a clerical person to fill the vacant posl- tion. 235 Sometimes , as in the department„of English at 233 In only one instance, Professor Verrill of the English department noted that candidates sent forward by the department were rejected by the provost, but, on reconsideration, were then approved. See also testi- mony of Dean Bannister and Professor Craddock 1 234 I include within the clerical category employees known as adminis- trative assistants. From the testimony here it is apparent that there are senior clerical positions, sometimes with considerable responsibility dele- gated by department chairpersons sas Professor Black,. chairperson of humanities at CBS, andlcated in his testimony that an additional clearance may be requlred.frolp the dean at this stage. BOSTON UNIVERSITY CLA/GRS, as noted by Professors Goodheart and Crad- dock, the administrative assistant does all this and merely obtains the concurrence of the department chairperson. Techicians are required in several areas. At SPC, tech- nicians maintain and handle the distribution of electronic equipment needed in courses on film, broadcasting, and television. At CLA/GRS there are technical people in the natural sciences . There is not much evidence on the hiring process for these people, but I infer and find that the hiring of these technicians is handled in substantially the same way as clerical employees. All these employees , clerical and technical, are includ- ed in a bargaining unit previously certified by the Board and covered by the collective-bargaining agreement with District 65 , United Automobile , Aerospace and Agricul- tural Implement Workers of America. The evidence presented by Deans Gilbane , Hershen- son, and Bannister was not refuted , and indicated that these clerical and techical employees are under the direct authority of department chairpersons , who not only are primarily responsible for hiring them , but also direct their work on a day-to-day basis , 236 evaluate clerical and technical work performance , and recommend pay raises, grant time off (except for extended leaves which must be cleared with the personnel office), issue repri- mands, or recommend that an employee be terminat- ed.237 The District 65 contract contains a grievance proce- dure which calls for an informal step 1 when the ag- grieved employee presents and discusses the grievance with his or her "immediate supervisor." Failing adjust- ment at this level, step 2 calls for a written grievance and submission to the employee's "department head." According to the testimony of Ann Carol Knox, an or- ganizer and a member of the grievance committee for District 65 , the Union had been accustomed to submit the step 2 grievance arising out of the departments of the schools and colleges at the Charles River Campus direct- ly to the deans of the schools and colleges . At some time, Knox reported, the deans began referring griev- ances filed in step 2 to departmental chairpersons. I do not think it is necessary for me to get into the testimony on who is the proper person with whom to file step 2 grievances . The contract says, "department head," but the evidence shows that department chairper- sons, in several cases, did not have the authority to adjust grievances , particularly where money was in- volved . The action of the deans in referring such matters to chairpersons seems a futile act unless, of course, it was done to maintain a consistent position for purposes of this hearing . Similarly, the insistence by District 65 in filing step 2 grievances at the deans ' level resembles a gesture of solidarity with the Association and another in- stance when the actions of people may have been moti- ase It is true in most instances that direction does not take very much of the chairperson 's time . In some cases the administrative assistants, who have longer service in their positions than the chairpersons , will handle all the details of the clerical operations of the department with little if any direct supervision . See testimony of Professors Craddock and Vance, and Dean Hershenson. Par This last,has to be cleared through the personnel office to make sure that the strictures of the District 65 contract are met. 851 vated by this ongoing litigation . Accordingly, I will make no finding on the status of faculty or department chairpersons based on this evidence. The facts concerning the hiring of clerical and techni- cal employees show that the faculty generally have little to do with the hiring of these people . The chairpersons apparently act as the final or semifinal step in the hiring process, having a veto over the hiring of any one indi- vidual, and, likewise, chairpersons have considerable au- thority over the day-to-day occupation and the job pro- gression of these employees. There is no indication that faculty authority over clerical and technical employees is anything but casual , making and reviewing typing assign- ments or reporting to chairpersons on adequacy or inade- quancy of performance. 3. Employment of students Students , both graduate and undergraduate , mostly graduate, are hired by the various schools and colleges in a number of different capacities. At CBS , Dean Gilbane testified that students, usually doctoral candidates at Boston University or neighboring universities , are hired after interviews and recommenda- tions by the faculty and chairperson of the rhetoric divi- sion as graders . Those graders became employees of the University and are assigned to faculty members in the rhetoric division . That faculty member directs the work of the graders and, on one occasion a faculty member, together with the division chairperson , actually terminat- ed the employment of one of the graders. SMG employs two different kinds of students. Re- search assistants are graduate students at the master's or doctoral level . As of the spring of 1981 there were 44 of these research assistants hired for an 8-month school year at a stipend of $2500 . The students apply at the SMG fi- nancial aid office . Their applications are separated by the departments in which the students are interested, and the applications are sent to those departments . Faculty and chairpersons look them over238 and recommend that certain students be hired . When they are hired the stu- dents are assigned research duties by an individual facul- ty member, who actually directs their work, makes sure they are present when they should be, signs their time- sheets, and can terminate them. The other group of students at SMG are called teach- ing assistants, who actually teach classes as assigned by faculty, or assist faculty members in teaching classes. These teaching assistants are hired and supervised, and may be fired , in the same way as with the research assist- ants. Students employed at SPC are referred to as graduate assistants or undergraduate assistants . A memorandum dated July 29, 1980 , to communications department fac- ulty, by the coordinator (nonfaculty) of the department, advised the faculty that it was their responsibility to find and hire their own assistants . According to Dean Dondis, the faculty did just that, seeking out and hiring their own graduate or undergraduate assistants . Some of 108 In most cases, according to Dean Lawson, these students are well known to department faculty. 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these assistants do actual teaching in sections, or act as leaders of laboratory, workshop, or discussion groups. Others act as clerical or research assistants to faculty, do preliminary reading of papers for faculty, or are assigned typing and filing functions. At SAR there are graduate assistants , hired by the de- partments and chairpersons, frequently on the recom- mendation of an individual faculty member with whom the graduate assistant will work. Faculty members assign and direct the work of these assistants and evaluate the time spent and the quality of the assistant's work. As described by Dean Bannister, CLA/GRS has some of all the categories of assistants employed by the other schools, with some additions. There are teaching fellows, graduate students who assist faculty in the teaching of courses and, in science courses, supervise laboratories under the direction of faculty members. There are teach- ing assistants, usually undergraduates, who perform roughly the same duties of teaching fellows, although for much less money. Graduate assistants assist faculty in re- search or help in the day-to-day operations of the depart- ment. These are similar to another category, research as- sistants , who work on individual research projects at the direction of the faculty member who is conducting the research. There are graders, as at CBS, who assist facul- ty in grading papers, and, finally, student employees, who work as clerical, or on other nontechnical tasks, sometimes for faculty and sometimes under the direction of people not on the faculty. All these categories are hired by faculty and chairper- sons, work under the direction of faculty, and are recom- mended for reappointment, or not, by faculty. These facts show that faculty and chairpersons at all the schools and colleges we have studied here are deeply involved in this process of hiring, directing the work of, evaluating, and in some cases terminating, these various kinds of student assistants. The money may be limited, and there may be cases, as attested by Professors Warner, Vance, and Verrill, when lack of money re- quires faculty to operate around gaps when there former- ly was student help, but this does not alter the basis of the authority of the faculty in this area. 4. Faculty research and individual enterprise According to the testimony of Dean Bannister, one of the principal responsibilities of faculty members at Boston University is to carry on research in their respec- tive fields. Matters such as appointment, reappointment, tenure, and merit or equity pay increases depend in part on the quality and quantity of the faculty member's re- search.239 The administration, however, does not dictate what research projects faculty will work on, and faculty members determine their own areas of research. In order to perform research, especially in the physical sciences, many things besides the researcher's time and intellectual application may be involved. There can be R99 And, most importantly, on publications showing the results of that research The importance of the quantity of research was apparant in the case of Professor Arno Heyn of the chemistry department, whose re- search was somewhat limited and whose space in the new science center was drastically reduced, according to Heyn himself, Dean Bannister, and Department Chairperson Norman Lichtm, because of that equipment, sometimes very expensive, even whole lab- oratories, travel, space, supplies, and clerical, technical, and professional salaries. Some of this is paid for by vari- ous private sources such as foundations or corporations, but the bulk is financed by various agencies of the United States Government. Briefly, as explained by Francis R. Collins, director of the office of sponsored programs, faculty becomes in- volved either because it is approached by the sponsoring agency, or because it hears about opportunities for funded research. In either case faculty members, assisted by the University's office of sponsored programs, apply for grants or contracts. Arrangements are worked out so that expenses are covered including amounts for the fac- ulty member's salary, the University's overhead, or indi- rect costs, equipment, supplies, travel, salaries, and any other expenses connected with the project. Once the award is made, the University, which oper- ates as a responsible channel for grant or contract money coming in to the project, opens a separate account for this project. The faculty member who has been awarded the grant is known as the principal investigator and he or she is authorized to use the money in the grant account as needed, hiring staff, including professional, technical, and clerical people and paying them according to univer- sity scales, and directing their work as long as they are needed. Dean Bannister estimated that CLA/GRS received about $8 million a year from grants and contracts. The University Fact Book for 1980-1981 shows that in the 1980-1981 academic year the total amounts of grants and contracts actually awarded at the Charles River Campus was $23,688,454. It is clear that these principal investigators exercise su- pervisory authority over professional, technical, and cler- ical employees working for them on grants and con- tracts, and in a similar case have been found by the Board to be supervisors within the meaning of the Act while exercising such positions.240 Beyond this more or less institutionalized form of fac- ulty enterprise, faculty, on their own, using their own in- genuity and almost enterpreneurial qualities, have become engaged in a number of endeavors, some of which make money for the University or the individual or both, and some of which do not. Professor Bernard Rubin of SPC has for some years run an institution known as the Institute for Democratic Communication. Working on research on the First Amendment to the Constitution of the United States, the Institute under Rubin's direction has obtained $95,000 in grants, has run conferences, published a magazine, and run a radio program for 5-1/2 years on public broadcast- ing stations on "The First Amendment and a Free People." All these activities are under the aegis of the University. Credit is given in books, magazines, and the radio programs to the University, the conferences are held on university property, and all proceeds received from these activities accrue to the fiscal benefit of the University. Rubin stated that this was his own "brain- 240 Northeastern University, 218 NLRB 247, 253-254 (1975) BOSTON UNIVERSITY child," and he did it to help promote SPC, to further its mission, and to bring in students. Rubin also testified that he recruits students for the University wherever he goes about the world. He esti- mated that as a result of a trip he made to Malaysia in 1975, 35 Malay students had attended and received de- grees from Boston University. Professor Robert Baram, of SPC, testified that he was the founder, some 29 years ago and was still , when he testified in 1981 , the executive director of the New Eng- land Scholastic Press Association , an organization whose functions are to give to students and faculty of the sec- ondary schools of New England the opportunity to have publications such as newspapers , magazines, and year books evaluated, and to hold an annual conference when these matters are discussed and awards given to deserv- ing publications . The conference is held in the fall of each year at SPC and 700 to 800 students and advisors attend . Baram indicated that he makes sure that other faculty at SPC participate so that "our School and Uni- versity receive recognition" and those participating in the conference can see what the members of the SPC faculty can do. Baram could not estimate precisely the results of these conferences over the years, but he did state that they at- tract outstanding students and it was his opinion that many students have enrolled at SPC and other schools at the University as a result of the conference.241 Professor of Physics and Philosophy Robert S. Cohen testified that for over 20 years he has been the chairper- son of Boston Colloquium for the philosophy of science, a collaboration with other universities in the Boston area sponsored by Boston University as a function of the Uni- versity. The Colloquium conducts weekly meetings of scholars to hear papers prepared and delivered by other scholars, and to comment on and criticize those papers. Professor Cohen is also the director of the center for the history and philosophy of science in CLA/GRS, a func- tion of the University and employing a full-time research fellow who is not a faculty member. This research fellow was hired by the University on the recommendation of Professor Cohen, and sets up the weekly colloquia at Cohen's direction . Cohen and a professor of physics named Marx W . Wartofsky are also the founders and of- ficers of a nonprofit enterprise called the Boston Philoso- phy of Science Association. This Association combines material developed in the colloquia , together with mate- rial from other sources and publishes a series of books called the Boston Studies in Philosophy and Science. The books are sold commercially and the profits are distribut- ed in part to the University to defray the expenses of the center for the history and philosophy of science.242 Cohen and Wartofsky take no salaries for this work, but are reimbursed for travel and other expenses . Cohen did not say what would happen if the sale of the books did not make money , but presumably like Professor Baram, S41 Baram said he receives about $2000 annually from the conferences, but added that if the conferences lost money he would take the loss per- sonally . Rubin , on the other hand , said that he received only a one- course reduction in his workload and a telephone line in his office for his work with the Institute for Democratic Communication. 242 This amounts to $10,000 or $15,000 per year. 853 Cohen's Association would be prepared to take the losses. Beyond these several examples of faculty enterprise, Professor Gustav Papanek , chairperson of economics at CLA/GRS, and professor and director of the African studies center, John R. Harris, testified as to their inten- sive recruiting efforts on behalf of the University in their trips to Africa, Asia, and Latin America. These fmdings are limited to the individuals who testi- fied, and may not be applicable to other faculty members who do not perform research or become involved in the kind of enterprises described by Professors Rubin, Baram , and Cohen, but there is no doubt that others could, if they had the interest, initiative , and, perhaps, some luck, become involved in similar activities. It is clear that this faculty, even Professor Baram , whose hos- tility to the University's administration was evident while he was on the witness stand , while involved in these ac- tivities was working as much in the interests of the Uni- versity, as for themselves in their academic discipline.243 K. Leaves, Merit, and Equity Salary Adjustments 1. Leaves of absence The collective-bargaining agreements provide for leaves of absence in section VIII , but it is clear from the evidence that this contractual provision merely formal- izes what has been traditional academic practice. There are two kinds of leaves mentioned in the con- tracts and covered by the testimony here . The first is sabbatical leave . After 6 full years of service at the Uni- versity , faculty members are eligible for sabbatical leave of one semester at full pay , or two semesters at half pay. The contract goes on to specify that the teaching load of the faculty member on leave is to be absorbed by the de- partment without additional expense to the University except in unusual circumstances . A faculty member eligi- ble for sabbatical must submit an application to the de- partment chairperson with a description of what scholar- ly or professional activity is going to be accomplished in the sabbatical period . In addition, the administration has for some years required any faculty member requesting a sabbatical leave to submit a proposal for funding by grant or contract from a source outside the University, in order for the application to be approved.244 The applications for sabbatical leaves go through de- partment chairpersons , to the dean, the provost, and thence to the trustees for approval. The other form of leave available to faculty members is leave without pay. This leave is also applied for but there are no particular requirements except that the leave must be consistent with the administrative and teaching needs of the applicant 's school and department.245 243 Yeshiva , 444 U .S. 672, 685 fn. 20. 244 The proposal for outside funding does not have to be successful in order for the sabbatical leave to be approved. 245 Unpaid leaves are apparently fairly common because salary money freed up by the use of such leaves was the subject of much testimony by department chairpersons in connection with the operations of their de- partments. 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The faculty, aside from the department chairpersons, has no part in the process of approval or disapproval of either sabbatical leaves or leaves without pay. However, I do not consider the subject of primary importance in the determination of whether faculty members are man- agers, supervisors, or rank-and-file employees.246 2. Merit and equity salary adjustments The subject of wages or salaries was not really an issue in this case . As has been noted in connection with the hiring process, salaries are negotiated between the candidate and the department chairperson under the oversight of the dean. The evidence shows that in the 1980-1981 academic year the beginning salary for an as- sistant professor at the start of his or her career ranged between $15,000 and $16,000 per year.247 Beyond this the parties have drawn a veil over the existing salary scales or schedules. The matter was treated throughout this hearing as highly confidential248 and, at the same time, not important to the issues here. What the parties did consider important in the context of this case were the issues of merit and equity salary increases. There are two different concepts here, but they do run in tandem, and have been treated in the contracts, and in the testimony here , as a single issue . Westling testified that the concept of merit and equity salary increases was traditional at the University, predating the collective-bar- gaining agreements. There were no written guidelines for merit increases before the contract but these increases came out of a pool of money allocated by the administra- tion to each school and college, by the deans to each de- partment, and by the chairperson of the department to each individual. The criteria used to determine who would get a merit increase, and how much that increase would be were scholarship, teaching, and service. Equity increases were adjustments in a faculty mem- ber's salary where that salary was deemed to be out of line with current salary levels for comparable faculty members at the University. Put another way, according to Dean Gilbane, equity increases were for "past merit" which had gone unrewarded. As with merit, equity in- creases were paid out of a pool allocated from school, to department, to individual. Under the collective-bargaining agreements the overall merit and equity pools are set by the terms of the agree- ments. In the second contract the pool was agreed to be 3 percent of the total salaries of all members of the bar- gaining unit , one-half of which sum was to be distributed on a proportional basis to the schools and colleges, and the other one-half as determined by the provost. Guide- lines for the allocation of these increases in each school and college are to be recommended to the dean by a committee consisting of both tenured and untenured fac- ulty and selected by the faculty. Once the guidelines are established, the contract provides for the establishment in each department of committees, again made up of ten- ured and untenured faculty, known as merit and equity 246 See Yeshiva, 444 U.S 672, 680 fn. 23 241 See testimony of Professors Wells and King of CBS 241 Although the parties did offer to permit me to have access to salary information in camera, I declined the offer allocation committees, whose function it is to recom- mend merit and equity increases for individual faculty members to their department chairperson.249 The Chair- person then recommends increases to the dean, and the dean to the provost. There was a great deal of testimony on this subject,251 but I am convinced that the testimony of Professor Arlene S. Ash of the mathematics department at CLA/GRS is credible and the charts which she prepared are accurate representations of the history of the recom- mendations of faculty committees on this subject. The testimony and the charts show many changes were made in faculty recommendations by chairpersons, deans, and the provost. Thus, while the faculty, through the collec- tive-bargaining process, have placed themselves in the merit and equity process, I find that their participation is not influential. L. Buildings and Physical Facilities 1. In general It can be fairly stated, based on all the evidence on the subject here, that decisions on the acquisition of real estate in the form of land or buildings, decisions on the building of new structures, or the remodeling of existing buildings, and decisions concerning which school or de- partment will occupy what space at the University, are all made at the highest level. Dean Bannister testified that when a new building is acquired, the provost deter- mines who or what will be assigned to that building. Provost Mayfield stated that the president and trustees have the responsibility for the acquisition and develop- ment of property. The decisions to acquire, renovate, or reassign entire buildings or portions of them may apse, however, from requests of faculty. Bannister said that the regular budget cycle at CLA/GRS will involve requests for new space or renovation of existing facilities initiated by faculty members or department chairpersons, or sometimes in connection with externally funded research. Initially, faculty members will sketch out their needs and consult with their chairperson. The chairperson will ask the University's buildings and grounds department to calculate the costs of the project. At that point, if the chairperson and the dean agree on the need for the project and its place in the priorities of both the depart- ment and the school, the matter goes to the university space committee, an administrative body, whose function is to assign priorities to such requests based on the Uni- versity's needs and available financial and physical re- sources. 249 Before the contracts the evidence shows that merit and equity were handled informally, primarily by the chairpersons recommending increases to the deans There was little or no discussion between chair- persons and faculty 250 More than the subject warranted In my view the issue of whether the faculty has the power and authority to set its own salaries, or may award itself merit or equity increases, is not an issue which was discussed by the Supreme Court in Yeshiva Nor are managers in industry or com- merce thought to be less managerial because their salaries and wage in- creases are set for them by others BOSTON UNIVERSITY 855 Things do not always work out so smoothly as in the procedure outlined by Dean Bannister . Professors Psathas and Mackavey testified about requests for remodeling gone awry , or not done at all. There was tes- timony from Professors Bustin and Harris about the forced move of the African studies center . There were also complaints by Professors Black and Koss that defi- ciencies in the physical plant went unremedied for years. On the other hand, when it has been decided to make a move or to renovate a building , faculty may take a prominent role in planning and designing for the use of such space . Dean Hershenson and Professor Wiig testi- fied about participation of faculty in the design for new space acquired by SAR. Professor Baram recalled that most comments and suggestions made by the SPC broad- cast journalism faculty were adopted in the expansion of broadcast studies. 2. The science center The idea of a science center at the University, a uni- fied structure or group of structures with new and ex- panded space devoted to study and research in the physi- cal sciences at CLA/GRS, has been around for some time. Both Dean Bannister and Professor Norman Lich- tin, chairperson of the chemistry department, talked about an attempt to finance and construct a "science tower" at the Charles River Campus in the 1974-1976 period . Lichtin consulted extensively with the chemistry department faculty in developing guidelines for the ar- chitects; plans were developed, but the tower was never built. After 1976 the chairpersons of the science departments kept advocating and lobbying for something to be done to fill the recognized great need for additional and ren- ovated space in the physical science area . 251 In 1978 or 1979 Bannister assumed a leadership role in this lobbying effort as one of his principal objectives as dean . In June of 1979 he called a meeting of chairpersons and others and laid out several alternatives through which he thought the financing problems that had doomed the sci- ence tower could be avoided . The meeting reached a consensus on one of the three alternatives proposed by the dean , the purchase and renovation of several build- ings adjacent to the Charles River Campus into a science center. There is no evidence that faculty other than chairper- sons were directly involved in this decision , but both Professor Lichtin of chemistry , and Professor Robert Cohen of physics agreed that the faculty in these two de- partments was consulted throughout the planning proc- ess which succeeded the decision to go ahead and ac- quire the buildings.2 s 2 251 Lichtin's testimony on this was corroborated by Professor Ian Cal- lard, chairperson of biology. 252 Professor John R. Harris of economics and a member of the uni- versity council planning committee testified that the committee members were unaware of any decision to purchase and renovate buildings until they heard that the .trustees had agreed to spend $25 million to buy the buildings . I was not impressed with this testimony in view of the lack of diligence or initiative shown by this committee in searching out informa- tion on planning . See discussion on the university council, above , in sec. III,C,5. After the June 1979 meeting , Bannister had an archi- tect work up preliminary plans and obtained approval of the trustees in June or July 1980 to proceed with the project. The evidence shows that the renovating of buildings was continuing throughout the period of this hearing, and that faculty in the chemistry, biology, and physics departments had been consulted throughout this period on the specific utilization of the space acquired by the trustees.253 In all this testimony about renovations and moves in general , and the science center in particular, there is no- where to be found an instance similar to that cited by the Supreme Court in Yeshiva that the views of the faculty have determined "the location of a school."2 64 As a gen- eral statement, based on the evidence here, the adminis- tration determines the locations of the schools and col- leges, and what space they will be allotted . In the case of the science center, I think it can be said that the urging of the physical science chairpersons in conjunction with their departmental faculty , was primarily responsible for the decisions , first of the dean and then of the trustees, to enter on a program which was estimated at the time of this hearing to cost more than $50 million.255 M. Appointment of Chairpersons Before the collective-bargaining agreement256 the se- lection of chairpersons would begin with consultation be- tween , the dean and the tenured faculty of the affected department. If the faculty and dean agreed on a search among these presently on the departmental faculty, then the matter might be decided on quickly . There were in- stances when there was no question on whom the choice would fall , and other instances where the department faculty and dean could not agree . In these latter cases, in anthropology, sociology , psychology , and political sci- ence, the wish of the dean prevailed . After the dean had made his recommendation , the nomination went on to the provost , the president, and the trustees. In some cases , before the contracts , it might be deter- mined between the dean dnd department faculty to look outside the department and make a nationwide search for a new chairperson . In those cases, the dean selected a search committee from the department in need of a chairperson and other departments academically allied to that department . The committee thus named would then advertise and recruit as we have already noted in exam- ining the recruiting process in the appointment of new faculty . As in the appointment process, applications were submitted and studied by committee members, the list of applicants was whittled down , and a select few would be invited to the campus for interviews . In the case of ass The testimony of Professor Arno Heyn of the chemistry depart- ment shows that consultation does not necessarily mean that all faculty members will be assigned the space they want, but this does not negate the fact that consultation did take place. 261 444 U.S. 672, 686. 255 I note also, in this regard, Bannister's testimony that as the result of urging by the chairperson of biology and other science chairpersons, the school of engineering was not to be included in the units to be housed in the science center. 866 See testimony of Westling as corroborated by Professor Robert Cohen on this aspect of the process. 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD chairperson applicants , interviews would ordinarily be with the committee and the dean , and sometimes with the provost and president as well. Under article XIX of the contracts the procedures are basically the same , except that all full-time faculty, not just tenured members , are to be initially consulted on whether the search will be inside or outside the depart- ment . In case the search is to be from inside, the depart- ment determines how its nominee or nominees will be se- lected . If there is to be an outside search the search com- mittee will be composed of three nominees from the de- partment faculty and three from the Provost. The contracts , as was the case previously , set an initial term of 3 or 5 years for chairpersons with additional 3- year terms . Dean Bannister testified that ordinarily at CLA/GRS chairpersons serve two terms and then return to faculty status.257 As with other aspects of this case, the University has come up with concurrence charts showing agreements or disagreements at various levels of administration up to the trustees with recommendations by the faculty. After extrapolating the five schools covered here from a chart submitted early in the hearing containing information on all 13 of the bargaining unit schools, the University came up with a concurrence rate of 82 percent . My own cal- culation , using only the rate of concurrence between the faculty recommendation and the action of the trustees, arrives at a concurrence rate of just over 88 percent, noting that the rate for CLA is 80 percent , but at CBS, SMG, SPC , and SAR the rates are, in each case, 100 percent. These decisions as chairpersons are critical to the de- partment primarily , the school or college and to the Uni- versity . It is not surprising, therefore , to find evidence here that deans and other administrators become closely involved in the decision -making process. At CBS there seemed to be no outside influence in the process . The only testimony in the selection of chairper- sons at CBS was that of Dean Gilbane, who described the appointment of three chairpersons in the period from 1974 to 1979 where the faculty supported the successful candidates . There is no record of any disagreement or in- terference from the dean or central administration. Dean Lawson testified that the five chairpersons ap- pointed at SMG in the 1976- 1980 period had the support of a majority of the faculty , in fact the candidates select- ed were the first choice of the department faculties af- fected . Lawson did own up to the action of former Dean Gabriel in ousting Lawrence Wortzel as a chairperson of the marketing department SMG in 1975 and thereupon appointing Ronald Curhan to the position without con- sultation with the department faculty. As in some other areas here , things are a bit less clear at SPC . Dean Dondis testified that in the period before the contracts , she informally checked with departmental faculty on appointment of chairpersons. This was cor- roborated by Professors Lerbinger , Rubin , and Israel. 217 There are, of course , exceptions to this rule Norman Lichtin, chairperson of the chemistry department , testifying in January 1983, had been chairperson since July 17, 1973 Gustav Papanek , chairperson of ec- onomics, testified in April 1982 that he had held that position for 7-1/2 years Professor Baram disagreed in the case of the appoint- ment of David Klatell as chairperson of the journalism department, although Baram did assert that the contrac- tual procedures were followed. It was at CLA/GRS that most of the evidence on ir- regularities in procedure was brought out. I will not set out all the complex , confusing and sometimes contradic- tory evidence on these several appointments . Suffice it to say that I have carefully studied each situation and my conclusions are based on my view of the weight of the evidence. The department of anthropology had an ongoing prob- lem from 1979 to 1981 in locating a chairperson. There was some consultation between the dean and faculty, in- cluding Professors Fleming and Leeds , on the appoint- ment of Dennis Tedlock as acting chairperson in 1979. In February 1980 a search committee was set up and a na- tionwide search was conducted . As a result a recommen- dation was made by the committee , approved by the dean, but not recommended by the provost . Further work by the search committee proved fruitless in the face of inaction by the administration , and finally, an- other faculty member was appointed as acting chairper- son. The faculty accepted this appointment after stipulat- ing certain conditions for the appointment, which were met by the dean. The department of political science had similar experi- ences, as described by Professors Bustin , Rossell, and Kugler , but I do not find that it has been established that the administration disregarded the wishes of the search committee and the faculty . The evidence regarding which candidates were recommended, and then turned down the jobs , was just so confusing that no conclusions can be drawn. There are other instances where recommendations were turned down by the administration , as in sociology for example , and another case when the dean 's displeas- ure with Professor Papanek as chairperson of economics was overridden by vehement faculty protests over Pa- panek's replacement. Even though Papanek has served two 3 -year terms as chairperson he was reappointed to a third term. This evidence , as with the faculty actions in respect to appointments , reappointments , and tenure, show that the faculty are closely involved in the appointment and reap- pointment of their own chairperson and that, generally, their recommendations are followed, N. Powers and Duties of Chairpersons At the time this hearing was going on there were 19 departments at CLA/GRS ranging in size from 6 faculty members in geology and 7 in classics , to 41 in English, and 43 in biology . The average departmental faculty at CLA/GRS was 22.7 In the other schools about which we heard testimony there were a total of 20 departments ranging from 7 faculty in the psychology and counseling division at CBS to 20 in the occupational ; therapy depart- ment at SAR , with an average for the four schools of 11.7 per department.259 2S8 See Fact Book for 1980-1981 BOSTON UNIVERSITY In all the testimony about the powers and duties of de- partment chairpersons there were no real distinctions re- counted based on the size of the department. There seemed to be no difference in duties and responsibilities although in the larger departments at CLA/GRS there were more functionaries having responsibilities in various programs within the departments both at undergraduate and graduate levels . Nor were there any real differences in the descriptions of the duties and functions of chair- persons, although the emphasis shifted depending on whether the witness was testifying for the University, the General Counsel , or the Association . a a e The differences surfaced when the testimony shifted to the perceptions of faculty and administrators as to the responsibility of chairpersons, their loyalties and their powers. Before getting into considerations raised by the evi- dence let me briefly set out the duties and responsibilities of chairpersons as outlined by witnesses for the Universi- ty, the General Counsel , and the Association . Jon Wes- sling pointed out three general areas of responsibilities as- sumed by chairpersons . a 60 First, the chairperson has a major role in communications, in communicating the views of the department faculty to the dean and the ad- ministration , and to communicate the views of the dean and administration to the faculty . Second , the chairper- son should be an effective administrator . There is a sub- stantial amount of administrative detail which must be handled by the department and it devolves on the chair- person to respond to this function . Third, the chairper- son must exercise a leadership role in the department. He or she is responsible for building academic quality and effectiveness into the department 's offerings . The chair- person must also be a scholar and a teacher , a guide to junior faculty, and mentor to others in the faculty. Dean Dondis added to this description the responsibil- ity of chairpersons to preside over departmental faculty meetings, to lead or assist their faculty in curriculum changes, new courses and new degree programs ; the re- sponsibility for supervising and monitoring the current departmental budget and to prepare and fight for the next year's budget proposals . The chairperson must evaluate faculty performance , recommend merit and equity pay increases , sabbatical leaves, other leaves, pro- motions, and tenure.2 a 1 Dean Hershenson added mention of the chairperson's responsibility in reducing the class load of a faculty member who had received outside finding. for research, and reassigning the work of the department . Chairper- sons also have the duty of negotiating summer school teaching assignments with faculty. 259 There were shifts in emphasis, I also noted„from the testimony of witnesses for the Association in the representation case (Case I-RC- 13564) where the managenal status of the faculty was not at issue, but the supervisory 'status of chairpersons was at issue and in this case where the primary issue is the status of the whole faculty. See, particularly, tes- timony of Professor Robert Cohen on this point. 200 There are no written job descriptions or guidelines for chairper- sons. As Patricia Craddock , chairperson of English at CLA/GRS , put it, the chairpersons' actions are based on tradition,.and the need for some action in the face of a problem or a challenge of some sort. 861 We have already seen the role of chairpersons in all these person- nel and curriculum functions . It will not be necessary to repeat fundings on the participation or chairperson in these areas. 857 At CLA/GRS, Dean Bannister talked of the chairper- son's duty to put together the teaching schedule for the department after consultation with individual faculty members . Chairpersons are also responsible for allocation of space , offices, and classrooms which have been as- signed to the department . More important than assign- ments of teaching duties and classroom space are the re- sponsibilities of the departmental chairpersons in the hiring, assigning, overseeing , disciplining , and recom- mending discharge for administrative technical and cleri- cal staff. Miscellaneous duties and responsibilities for chairper- sons mentioned by Dean Bannister include the negotiat- ing of special fees for foreign students because of extra costs of teaching English to these students . These fees are generally negotiated with agents for the program sponsoring the foreign students at Boston University. Chairpersons are responsible for maintaining contact with alumni ; fundraising with foundations or agencies; negotiating for gifts from individuals ; and preparing an annual report to the dean showing programs of the de- partment , and achievements of faculty . Bannister said that he expected that, normally, chairpersons would deal with problems encountered by faculty, as well as insur- ing that faculty members are available during their office hours, and that faculty not abuse the college's allowance of 1 day a week for consulting purposes.262 In contrast to Westling 's description of the chairperson as representing the interests of the department in dealing with the dean, the administration and the world beyond, and, on the other hand, representing the administration and the dean in dealing with the faculty , those witnesses who were or had been chairpersons seemed uniformly to view their position and function entirely as the guardian, spokesperson , and advocate for the departmental faculty. Professor Sidney Black , chairperson of humanities at CBS saw himself primarily as a faculty member who had been delegated responsibilities to be the representative of the other faculty members in the division. Professor Pa- tricia Craddock viewed the chairperson's job as "mother- ing" in the sense that she acted as a resource for prob- lems of faculty, students, and even the parents of stu- dents . In another sense, according to Professor Crad- dock, the chairperson is an "ambassador " from the facul- ty to the dean . This view was echoed by Professor Eugene Goodheart , former chairperson of English, S.M. Miller, former chairperson of sociology, and Gustav Pa- panek, chairperson of economics . Indeed, as Papanek put it, his view was that he represented the parochial inter- ests of the economics department , assuming that the dean would worry about the college and the provost and president about the University. More in line with Westling's description of a Janus-like chairperson, simultaneously contemplating the adminis- tration and the faculty was the testimony of Professor Frederick Koss, chairperson of social science at CBS, and Joseph Speisman , former chairperson of psychology at CLA/GRS. 202 There was no substantial disagreement by faculty members and chairpersons, past and present, who testified here on these general out- lines of chairpersons' duties 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The perceptions of these faculty members on the ques- tion of how they view their situation as chairpersons are, in my view, honest expressions of the emphasis they place on their relations with the department and the ad- ministration. There may well be a recognition of the perils inherent in trying to serve two constituencies.263 But this does not take into proper account the fact that chairpersons in the hierarchical order of the University form the only conduit that exists between the levels of the dean and the administration and the rank-and-file fac- ulty. Thus, chairpersons must represent the views of the administration to the faculty, and it stands to reason to infer that chairpersons in this context must, whether or not they agree with administration positions, make what- ever efforts are necessary to make sure the faculty un- derstands these positions. Otherwise, of course, the chair- person would not be properly representing the faculty. So that in the end, chairpersons must form a bridge, hopefully of communication and mutual understanding, between the administration and the faculty whose inter- ests in the functioning of the institution cannot, as the Supreme Court stated in Yeshiva, be separated.264 The chairpersons who testified here did not view themselves merely as passive conduits for communica- tions or other actions between different parts of this en- terprise. Even the least active chairperson is faced with what Professor Goodheart265 described as a "vast" amount of correspondence from job seekers, students, faculty, parents, intra-University matters, other colleges and universities, all of which have to be studied, ana- lyzed, and answered.266 Within their departments, chair- persons are responsible for all of the matters discussed above, but some have gone farther than merely "run- ning" their department. As Professor Goodheart stated, he was responsible for the intellectual direction of the department. In this he considered curriculum important, and tried to "create" an atmosphere where people in the department could fulfill themselves as creative scholars and teachers. In pursuit of these ends Goodheart worked out a one-course reduction in teaching load for not ten- ured faculty, to allow them to work on scholarly re- search anticipating their tenure review.267 Professor Mackavey, chairperson of psychology at CLA/GRS, testified that he tried to organize his department to be more effective, consulting other people in the department and around the country. He stated that he assigned or at- tempted to assign faculty and developed the strengths of faculty to retain the scholarly reputation of the depart- ment and to make it more attractive to students and to funding agencies. Professor Mark Field, former acting chairperson of sociology pointed to the responsibility of a chairperson to see that the department fulfills the major responsibilities of the University, in research, teaching, and service. Now when much of the Universi- ty's income derives from tuition, and there is pressure to 2113 Matthew 6 24 2134 444 U S. 672, 688 285 This is not to say that Goodheart was not an active chairperson To the contrary, the testimony shows that he was extremely active as chairperson of English at CLA/GRS 286 See also testimony of Professor Sidney Black on this area 117 The dean was informed, but had no part in this decision produce tuition income, the chairperson must try to assure good teaching procedures at the graduate and un- dergraduate level, recruitment of superior faculty and or- derly processes in the department. Professor S.M. Miller, former chairperson of sociology, saw his role as trying to facilitate the efforts of the faculty to be more effective. In this he established six core groups of faculty within the department, based on mutual interest, to cite interest by faculty, to work on curriculum, and to obtain more outside funding. These statements were corroborated by Professor Pa- panek, chairperson of economics, Professor Joanne Mac- Donald of SAR, and Professor Norman Lichtin, chair- person of the chemistry department at CLA/GRS. There was a good deal of testimony about the author- ity of chairpersons in the process of hiring of administra- tive and clerical employees. The process has been dis- cussed in section III,J,2, above. The basic question raised was whether, for example in the department of English at CLA/GRS, the actual hiring was effected by the chairperson, either Goodheart or Craddock in the time period on which we had testimony, or by a long-time first rate administrative assistant named Harriet Lane. Both Goodheart and Craddock testified that Lane made the decisions on hiring of clerical employees, even though Goodheart admitted that he was ultimately re- sponsible for the hiring. This is really a matter of inter- pretation of Lane's status under the District 65 contract. The evidence here dealing not only with her authority to hire or effectively to recommend hiring, but her day-to- day supervision of clericals in the English department, could well show that she enjoys supervisory status under the Act. For our purposes, however, there is enough evi- dence to show that the general practice at the five schools is that department chairpersons have the final say on hiring, directing, and disciplining or recommending discharge of administrative and clerical employees. On the basis of these facts, together with my findings in respect to the participation of chairpersons in govern- ment, degrees, and degree programs, teaching loads, class size, and scheduling, and faculty appointments, reappointments, tenure, and promotions, I find that de- partment chairpersons are, as faculty members, and as persons in the position of exercising additional powers, are intimately and closely concerned with, and exercise considerable authority in these areas. Moreover, the actions of chairpersons in reviewing the performance of faculty and nonfaculty alike; in the scheduling of classes and administrative and clerical ac- tivities; in the hiring, firing, disciplining of clerical, tech- nical, and administrative employees and part-time facul- ty; in managing the paperwork, answering inquiries and paperwork from many sources; in overseeing the expend- iture of the current department budget, and preparing the next year's budget; in organizing and directing the teaching and scholarly activities of their departments, show that chairpersons exercise functions which can only be described as supervisory under the provisions of BOSTON UNIVERSITY 859 Section 2(11) of the Act, 268 and I so find them to be su- pervisors under that section . Adelphi University, 195 NLRB 639, 642, 643 (1972). 0. Concluding Findings In Adelphi University , supra, 195 at 648 , the Board con- fronted the issue of collegiality in the following terms: The difficulty both here , and in Post [C. W. Post Center of Long Island University , 189 NLRB 904 (1971)] may have potentially deep roots , stemming from the fact that the concept of collegiality, wherein power and authority is vested in a body composed of all of one's peers or colleagues, does not square with the traditional authority structures with which this Act was designed to cope in the typical organizations of the commercial world. The statutory concept of "supervisor" grows out of the fact that in those organizations authority is normally delegated from the top of the organizational pyra- mid in bits and pieces to individual managers who in turn direct the work of the larger number of em- ployees at the base of the pyramid. Because authority vested in one 's peers, acting as a group , simply would not conform to the pattern for which supervisory exclusion of our Act was de- signed, a genuine system of collegiality would tend to confound us. Indeed the more basic concepts of the organization and representation of employees ... to deal with a "management" or authoritarian group would be equally hard to square with a true system of collegaility [sic]. Nevertheless , both here and in Post the collegial principal is recognized and given some effect.E8° It was because of these views on the part of the Board , and the discussion in Yeshiva itself270 that I felt it was important to set out, in this Decision , an extended discussion of the origin of the concept of collegiality on the continent and in England, the changes in that con- cept under conditions in America in colonial times and afterward through the development of higher education in the United States . I did this to show that the concept, fragile as it may well have been iit its inception and throughout its history , has survived into our time. In this case, that survival is made manifest in two areas; first the reference throughout the testimony par- ticularly in the area of hiring and tenure , to "AAUP standards," set out in the AAUP Policy Documents and 268 The testimony of Professors Robert S . Cohen and John B. Arm- strong to the effect that directors of the various centers , programs, and institutes operated under the aegis of CLA/GRS shows that directors share many of the powers of chairpersons . Directors hire, fire, discipline, and direct the work of administrative , clerical , and professional employ- ees, prepare and administer budget ; review the performance of employees and faculty assignment to then centers; and, generally , organize and direct the work of the centers . These people would, similarly, come under the statutory definition of supervisors. S°° The Board went on to comment that "[w]e are not disposed to dis- enfranchise faculty ; members merely because they have some measure of quasi-collegial authority either as an entire faculty or as representatives elected by the faculty." 270 444 U.S. at 689, 690. Reports received in evidence in this case ; and, second, in the collective-bargaining agreements , containing provi- sions such as requirements for hiring , reappointment, tenure, and, particularly , hiring of chairpersons and deans, which are, in my experience, quite different than those in ordinary labor agreements , and indicate to me the faculty's concept of itself as more a partner in than a party to, the management of the affairs of the University. The facts which I have found in this case show that the faculty at Boston University effectively determine the curricula of the several schools and colleges. The faculty has not, or at least there was no evidence that it had, established the Universitywide grading system, but the evidence is undisputed that the grades given students by faculty members will not be changed without the consent of that faculty member. The facts show that the faculty determines admission and matriculation standards . This may be subject to some question at CLA/GRS because of the attempt of the col- lege's admissions committee to raise the SAT standards, but in the end I find that the faculty agreed with the rec- ommendation of the director of admissions that. the standards be returned to their previous level. In CBS, SPC, SAR the facts seem clear that the faculty deter- mines the admissions standards . At SMG the matter is not clear, but looking at all the facts, it is reasonable and logical to infer that the faculty at least concurs in the ad- missions system being used. The faculty has total authority in determining class schedules. It decides , within budget limitations, (and I note that within those limitations faculty authority to im- provise, reassign , and innovate is taken for granted), what courses will be offered , when they will be sched- uled, and to whom they will be taught . It debates and determines teaching methods, grading policies, and ma- triculation standards . It effectively decides which stu- dents will be admitted , retained , and graduated. At SAR, at SPC, and at CBS the views of the faculty and the establishment of admissions standards have deter- mined , and continue to determine the size of the student body. There is no direct evidence that the faculty has had a say in determining tuition, but since tuition money constitutes the bulk of the University's income, and since the number of students is a principal factor in settling tui- tion rates, the role of the faculty in setting admissions standards and determining the size of the student body indirectly but necessarily has an impact on the tuition rate itself. The evidence shows very clearly that the faculty at Boston University plays a predominant role in faculty hiring, tenure, termination, and promotion. It may be truly said at Boston University, that "it is difficulty [sic] to imagine decisions more managerial than these, and I find that the faculty are managers within the standards set out in Yeshiva , supra."27 t With the exception of reappointment, tenure , and pro- motion decisions , the evidence in this case shows that untenured faculty share the same functions, duties, au- 271 1 see no need to repeat here the analysis of the Board 's prior deci- sions set out in Yeshiva 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thority, and responsibility in all the areas described in the last five paragraphs. It is clear that those newer faculty members even in their first year, share in the managerial status of their older, tenured , colleagues. The evidence on the status of instructors is somewhat limited. Westling has said that the rank of instructor was rare. The 1980-1981 Fact Book shows only 25 instruc- tors in the five schools covered here as of 1981. The evi- dence shows that they do participate in faculty meetings at the five schools, but the extent of that participation or what other areas they participate in is unknown. I can make no findings on their status , or even , because they are described as probationers , employed only on the con- dition that they complete their Ph.D. requirement, whether they have any status at all in this case. I have found that the department chairpersons, while managers in view of their status as faculty are also super- visors as defined in Section 2(11) of the Act Adelphi Uni- versity, supra. Using the same criteria I find that the di- rectors of the centers, institutes, and programs affiliated with CLA/GRS are likewise statutory supervisors. The evidence also shows that faculty members while serving as principal investigators on research grants and contracts exercise supervisory authority over faculty, re- search associates, technical, and clericals employed by those principal investigators. Principal investigators are, thus, supervisors within the meaning of the Act, North- eastern University, 218 NLRB 247, 254 (1975). This leaves us with the question of whether the rest of the faculty, rank-and-file members, or principal investiga- tors who employ no staff are statutory supervisors be- cause of their involvement with the hiring, reappoint- ment, tenure, and promotion process. There is no indication in the evidence here that the rank-and-file faculty participates in the hiring process for clerical employees or has much to do with supervising the work of those employees. The faculty is involved in the hiring of students, teaching assistants, graduate assist- ants, research assistants , and undergraduate and graduate graders, and helpers. The faculty directs the work of these students. Here there seems to me to be too much of a connection with the educational process (the students are learning while they are employed), to base a finding of supervisory status for faculty. We are left, then with the question of whether the role of faculty in the hiring and promotional process is suffi- cient to permit a finding that they are statutory supervi- sors.272 272 Untenured faculty have no role in the tenure or promotional proc- ess In my view, faculty members effectively recommend the hiring of other faculty members. This authority may not be exercised every week, or every year, but the evi- dence here shows that any faculty member may, if he or she wishes, serve on search committees as frequently as desired, and, thus, may participate frequently in the exer- cise of this supervisory function. It is my feeling that the opportunity to exercise this power, rather than the fre- quency with which it is exercised, determines the status of the individual. It goes without saying that the further exercise of the power to recommend reappointment, tenure , and promotion reinforces the authority to recom- mend hiring. I find, therefore, that all full-time faculty above the rank of instructor in the schools and colleges studied in this case to be supervisors within the meaning of Section 2(11) of the Act. The majority of the cases decided by the Board since the issuance of Yeshiva are in accord with this decision. Ithaca College, 261 NLRB 577 (1982); Duquesne Universi- ty, 261 NLRB 587 (1982); Thiel College, 261 NLRB 580 (1982); College of Osteopathic Medicine, 265 NLRB 295 (1982). In cases such as Bradford College, 261 NLRB 565 (1982); Florida Memorial College, 263 NLRB 1248 (1982); and Lewis University, 265 NLRB 1239 (1982), the factual situations are not comparable to the situation at Boston University. CONCLUSIONS OF LAW 1. Respondent, The Trustees of Boston University is an employer within the meaning of the Act. 2. The Boston University Chapter, American Associa- tion of University Professors, is not a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent did not violate the Act as alleged in the instant complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed273 ORDER The complaint is dismissed. 273 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings , conclusions , and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses