STATE OF ILLINOIS

 

EDUCATIONAL LABOR RELATIONS BOARD

 

IN THE MATTER OF:                         )

                                                                        )

Illinois State University Nontenure-Track   )

Faculty Association, IEA-NEA,                   )

)

Petitioner )

and                                                                  )           Case No. 2003-RC-0001-S

                                                                        )

Illinois State University,                               )

                                                                        )          

Employer )

)

 

Administrative Law Judge’s Recommended Decision and Order

 

I.  Statement of the Case

 

 

On October 11, 2002, Petitioner, Illinois State University Non Tenure-Track Faculty Association, IEA-NEA (Petitioner or Association) filed a representation petition with the Illinois Educational Labor Relations Board (IELRB or Board) seeking to represent a bargaining unit consisting of  “all full-time and part-time non-tenure track faculty employed by the Employer,” Illinois State University (Employer or University). (ALJ Ex. 2)[1]  The proposed unit excludes “all supervisory, managerial, confidential and short-term employees employed by the Employer.” (ALJ Ex. 2)  The representation petition was supported by an adequate showing of interest.  The parties were unable to agree on a consent agreement for an election.

The University contested the appropriateness of the unit and also asserted that as many as 268 of the 406 petitioned-for employees were ineligible to be part of the unit because they were “short-term” employees as defined in Section 2(q) of the Illinois Educational Labor Relations Act (Act), 115 ILCS 5/1 et seq. (2000) (ALJ Ex. 6).

On December 11, 2002, at a brief hearing, the parties made a joint motion to submit factual stipulations and two stipulated issues for a ruling in advance of the hearing to reduce the expenditure of time and resources by the parties and the IELRB in hearing this case. (Tr. 4, 12-13; P. Exs. 1-5; E. Ex. 1)  These legal issues arise under the definition of “short-term employee” in Section 2 (q) of the Act. 115 ILCS 5/2(q)  More specifically, the issues were: whether the definition of “short-term employee,” established by Public Act 92-748 (effective January 1, 2002) should be applied in this case, and how the term “calendar year” should be applied in this case.  (Tr. 7-13)  On December 18, 2002, the parties each submitted a memorandum of law on the two stipulated issues. (ALJ Ex. 20, 22)

On January 10, 2003, I issued an Order that addressed the two issues.  I ruled that the version of Section 2(q) in effect on the day that the petition was filed is the one that I would apply in this case.  Specifically, this means that wording of a portion of the statutory requirement for an employee to be classified as short-term is this: an employee “who does not have a reasonable assurance that he or she will be rehired by the same employer for the same service in a subsequent calendar year.”[2]  I also ruled that, for purposes of Section 2(q), the academic year prior to the filing of the petition was an appropriate “calendar year” to utilize when determining whether any employees in the proposed bargain unit were excluded by being short-term employees. (ALJ Ex. 24)  I determined, however, that the current academic year, depending upon the evidence adduced, may also be appropriate for determining short-term status. (ALJ Ex. 24)

On February 13, 2003, the hearing continued and the parties submitted additional factual stipulations and joint exhibits, as well as testimony and documentary exhibits (Jt. Ex. 1; P. Exs. 1-17; E. Exs. 1, 5-9; Tr. 33-36, 303-315). Both parties filed timely post-hearing briefs.  However, before the hearing ended, the Association clarified the precise bargaining unit that it sought to represent:

All full-time and part-time non-tenure track faculty employed by the Employer, excluding: non-tenure track librarians; non-tenure track employees who work at the Mennonite School; retirees with Emeritus status; and, all students and short-term, supervisory managerial, confidential employees as defined in the Act.

 

(Jt. Ex. 1; Tr. 304)    

                                                II.  Issues Presented

1.      Should any non-tenured track faculty be excluded from the proposed

bargaining unit as short-term employees, and if so,

a)     is the basis for excluding any of these employees the fact that

they did not have a reasonable assurance of being reemployed for the next academic year; or

b)     is the basis for excluding any of these employees the fact that they

were not employed for six months, or two academic semesters in the same academic year?

1)     And if so, is this based upon 2001-02 academic year?  Or,

    2)  Is this properly based on the 2002-03 academic year?

2.    Should Civil Service employees who are also employed as non-tenure

track faculty be excluded from the bargaining unit based on community of interest factors? 

3.    Should academic professional employees who are also employed as non-

tenure track faculty be excluded from the bargaining unit on the basis of

community of interest factors? 

4.    Should faculty associates, Lab School instructional employees, be excluded

from the bargaining unit based on community of interest factors?

5.      Should non-emeritus ISU retirees employed as non-tenure track faculty be

excluded from the proposed bargaining unit based on community of interest factors?

 

6.      Should Curriculum and Instruction Student Supervisors be excluded from the

bargaining unit based on community of interest factors? 

7.      Does the IELRB have jurisdiction over Curriculum and Instruction

Student Supervisors who do not perform their duties in the State of Illinois?  If so, does the IELRB have such jurisdiction when such an employee is the resident of another state?

8.     Is the bargaining unit sought by Petitioner appropriate for the purposes of

collective bargaining?

 

III.  Facts

The University is an educational employer within the meaning of Section 2(a) of the Act and the Association is an employee organization within Section 2(c) of the Act. (Jt. Ex. 1) The petition filed raises a question concerning representation. (Jt. Ex. 1) Illinois State University is located in Normal, Illinois where about 20,000 undergraduate and graduate students pursue degrees from one of six colleges. (Tr. 42)  Approximately 3,000 individuals are employed by the University, in one of several employment categories that include: tenured or probationary tenure-track employees, non-tenure track employees, administrative professionals, Civil Service employees, and faculty associates (employees who teach at the lab schools).  (Tr. 43-44)  Some of the employees in the petitioned-for unit are also employed by the University as administrative professionals, Civil Service employees, and faculty associates.  (Tr. 44)

The University’s academic calendar is based on a semester system. (Jt. Ex. 1)  The 2002-2003 academic year includes the fall semester 2002 (August 19, 2002 through December 13, 2002) and the spring 2003 semester (January 13, 2003 through May 9, 2003). (Jt. Ex. 1; P. Ex. 11)  Additionally, the parties stipulated that:

a)               The Illinois Educational Labor Relations Board has jurisdiction over this matter;

b)               There is no contract bar to a representational election for the petitioned-for unit;

c)               Faculty associates employed by the laboratory schools, and those administrative and/or professional personnel who are not civil service employees;

d)               Non-tenure track faculty who are given contracts for the period of August 2002 through  May or June 2003 are employed by the University for the 2002-2003 academic year;

e)               Non-tenure track faculty who are given contracts for Spring 2003 are expected to perform services for the University consistent with the contract for the duration of the Spring 2003 semester;

f)                All individuals employed as non-tenured track faculty members,

part-time or full-time, have the following same, or similar,

terms and conditions of employment when working in their

capacity as non-tenured track faculty:

1)   Use of same titles/classifications, i.e. instructor;

2)      Representation on Academic Senate, i.e. currently all non-tenure track faculty are represented by a part-time non-tenure track employee[3];

3)     Subject to same Employer policies related to employment, such as sexual harassment, attendance, Internet use policies;

4)     Eligible for the same University-Level Teaching Awards and grant programs such as in technology and fine arts programs;

5)     Participate in same annual new faculty orientation program; and,

6)     Subject to same faculty ethics code.

g)               Each spring semester contract begins January 1st; and,

h)               Spring 2003 semester for teaching classes began January 13, 2003.

 

(Jt. Ex. 1)

Additionally, the parties have agreed that emeritus retirees, non-tenure track faculty at the Mennonite College of Nursing, and all department heads and department chairs can be excluded from the bargaining unit. (Jt. Ex. 1; Tr. 210-11)  The Association stipulated that four of the twenty-six Curriculum & Student Supervisors were appropriately excluded, namely Carol Morrisey, Sharon Mungo and Tom Stone because


they are short-term employees, and Sam Mungo because he is an emeritus retiree.  Lastly, the Association in its brief conceded that Jay Groves is a supervisor and a manager who should be excluded from the unit.       

The University offers written contracts to individuals it wishes to employ in non-tenure track faculty appointments. (P. Exs. 2, 4, 6, 7, 8, 9(c) and 16(a); Tr. 53) The University determines how many and what types of non-tenure track appointments to offer for an academic year based on factors that include departmental needs, student enrollment in courses, and University policies. (Tr. 57-59)  The written contracts for non-tenure track faculty are the same and contain this provision:

This temporary appointment may in no way be construed as granting any property rights or guarantees of continued expectation of employment.  This contract of employment is for the stated time period only. Service rendered under the terms of this appointment shall not satisfy any criterion applicable to tenure or tenure-track appointments.

 

(E. Ex. 1)

 

Individual contracts, of course, include specific information regarding each employee’s salary, job classification[4], employing department, and the semester(s) to be taught. (Tr. 53)  The University issues contracts two times a year and the contracts last for either one or two semesters.  (Tr. 57)  Some part-time non-tenure track employees are employed elsewhere in the University; the type of positions that those employees have elsewhere at the University are Civil Service positions (CS) and Administrative Professional (AP) positions. (Tr. 44)  Administrative professionals usually hold middle management positions such as academic advisors, technical specialists or assistants to department chairpersons.  (Tr. 44)  It is the University’s policy to allow Administrative Personnel to only teach one class. (Tr. 78)

The University employs some of its civil service employees,[5] whose primary jobs do not involve classroom teaching, to teach classes. (Tr. 79 and 125)  For example, Janet Connelly, a civil service employee, serves as a Library Technical Assistant, Level III managing the School of Art’s slide library that contains 200,000 art images.  (Tr. 259-66)  She supervises student employees by assigning work, checking work assignments, and setting student working hours. (Tr. 259-68)  She does not hire these workers.  The graduate student workers are hired by the Department Chair. (Tr. 267)  She also is a non-tenure track faculty member. (Tr. 265)  Her teaching position is wholly separate from her civil service position.  (Tr. 264)

  Nancy Bragg, an administrative professional, is also employed as the Coordinator of the Center for the Advancement of Teaching; she also has a non-tenure track faculty position. (Tr. 244)  As Coordinator, Bragg coordinates presentations at the Center and asks faculty members to participate. (Tr. 250-51)  She taught courses as a non-tenure track faculty member both semesters in the 2001-02 academic year and also taught again during the spring 2003 semester. (Tr. 244)  Her teaching position is wholly separate from her administrative professional position.  (Tr. 248)

James Kelly is a faculty associate at Metcalf School.  The school term at Metcalf started August 16, 2002 and will end May 31, 2003. (Tr. 257)  He completed a contract that was identical in form to all the other contracts for non-tenure track faculty.

Phyllis Feaster is a retiree who was a non-tenure track faculty member at the time


that she retired from the University. (Tr. 271-72)  She has served as the non-tenure track faculty representative in the Academic Senate since 1972 and she continues to serve in that capacity as a retiree. (Tr. 274-75)

Sharon McDonald is a non-tenure track faculty member in the History department who has taught at the University for 30 years. (Tr. 287)  During the spring semester, the History department chair routinely contacts her about her teaching assignments for the next academic year. (Tr. 294) 

Jay Groves is an administrative professional who is also a non-tenure track faculty member.  (Tr. 111)  Groves is the Director of Media Relations.  (Tr. 111)  As the Director, Groves’ job is to report news of the University within the University community and to communicate with the media on behalf of the University.  (Tr. 111)  In order to report on labor policies, Groves attended a meeting between the University and the Petitioner that involved labor relations and the instant petition.  (Tr. 145)  In his appointment as the Director of Media Relations, Groves is responsible for supervising other employees. (Tr. 147)  His supervision includes assigning employees work, evaluating their performance, making recommendations as to their appointments or salaries, and ensuring the employees follow University policies and procedures.  (Tr. 147)  Groves is also required to follow the University’s discipline procedures if an employee under his supervision does not follow the University’s policies and procedures.  (Tr. 147)  Groves also directs employees’ work and can recommend dismissal.  (Tr. 147-148)

Dr. Sharon Stanford, the Associate Vice-President of Administrative Affairs at the University, stated that a non-tenure track faculty member is expected to faithfully function in that capacity when teaching regardless of what other employment position that person might hold, within the University or elsewhere—those other roles have no direct impact on the teaching responsibility. (Tr. 171-73)

Retirees, individuals who have retired from the University and receive benefits from the State Universities Retirement System (SURS), also hold non-tenure track faculty positions. (Tr. 79-80)  SURS governs the post-retirement employment salaries that retirees can earn while collecting benefits from SURS. (Tr. 81)  The retirees employed by the University are not entitled to participate in the University’s retirement plan and are not entitled to health insurance benefits by virtue of the fact that they are retirees whose retirement and health insurance needs are addressed and/or governed by SURS. (Tr. 201) 

The University has given the honorary title of emeritus retirees to those professional employees who retire from the University in good standing while holding a tenured faculty position.  (Tr. 81)  Emeritus status does not affect the ability of a retiree to teach or receive a salary or benefits. (Tr. 81)   Emeritus retirees are able to serve on academic graduate committees while the non-tenure track faculty retirees, non-emeritus retirees, are not entitled to do so. (Tr. 276)  Having emeritus status indirectly affects the amount of teaching salary that an emeritus retiree can receive.  This is because by retiring as a tenured faculty member, an individual would be entitled to a larger retirement benefit than a person who retired from a position as a non-tenure track faculty member. (Tr. 275-76)  The reason for this is that tenured faculty members are more highly compensated than non-tenure track faculty. (Tr. 275-76)  Thus, all things being equal, a non-emeritus retiree could earn more money from teaching classes at the University than an emeritus retiree could earn because the emeritus retiree would be permitted by SURS to earn a smaller amount before incurring a penalty than would a non-emeritus retiree. 

Faculty associates are individuals employed to teach in the University’s laboratory schools, Metcalf School (grades K-8) and the University High School.  These individuals are able to attain contractual continued service (tenure) status under the Illinois School Code, but these individuals are not eligible to attain tenure status under the University’s tenure track system. (Tr. 44 and 82)

            Curriculum and Instruction Student Supervisors (C & I Supervisors) are employed by the University to supervise students who are student teaching at public elementary, middle and high schools. (Tr. 133, 156; E. Ex 6)  C & I Supervisors are employed in various locations in Illinois, including the Chicago suburbs; five C & I Supervisors are located outside Illinois.  Three are located in Hawaii, one in Texas and one in England. (Tr. 133)

Dr. Stanford testified about a list of C & I Supervisors that she  prepared the day before she testified; the list was based on a conversation she had with a secretary in that department.  She also testified that there were probably other non-tenure track faculty in departments other than the Curriculum and Instruction department who supervised students away from the campus; she had no detailed information about such employees in departments other than the Curriculum and Instruction department. Likewise, her knowledge about the C & I Supervisors was very limited.  (Tr. 132-36; 154-55; 218-21)  C & I Supervisors’ employment contracts list the employment term as one or both of the University’s semesters, but their actual work term depends on the school terms of the school districts in which the students they are supervising student teach. (Tr. 162)

The Employer initially contended that a majority of the employees in the petitioned-for unit were ineligible to vote because they do not share a community of interest with the proposed bargaining unit and/or because they are short-term employees.  As to the latter group, the University asserted many employees in the petitioned–for bargaining unit were short-term employees because they have no reasonable assurance that they will be rehired for the same service in a subsequent calendar year. (Tr. 5-6)

The evidence submitted about the non-tenure track faculty and the community of interests that they shared or did not share is as follows: 

a)                          Each non-tenure track faculty member receives the same basic

     employment contract, but it includes the provision that the

     appointment is temporary and does not give any guarantee of   

     continued employment. (P. Ex. 2(a)-(b), 4(a)-(b), 6, 6(a), 7(a)-

     (f), 8(a)-(b), 9(c), 16(a), Tr. 51-56, 310-15)

b)                          Non-tenure track faculty have common duties (teaching or

     instruction), but not identical duties. (Tr. 171-76, 202-03, 210,

      278-79, 296-97)

c)               Non-tenure track faculty are subject to common or similar  

supervision (department chairs, or other managerial   

employees).   (Tr. 75-76, 175, 202, 279)

d)              Some, but not all, non-tenured track faculty have or share

offices. (Tr. 227-28, 232-33, 280-81, 289-90)

e)               Non-tenure track faculty are salaried employees, subject to

     the same University minimum salaries. (P. Ex. 2, 4 (a)-(b), 5 e,

     6, 7, 16(a); Tr. 51-56, 217-18)

f)                Non-tenure track faculty are hired in a similar manner and using the University’s procedures. (Tr. 57-62, 166-67, 196-97, 282-83, 295-96)

g)               Non-tenure track faculty have the same or similar benefits,

access/eligibility to benefits (parking, wellness program, tuition

waiver), leaves, retirement, and holidays. (E. Ex. 9)

h)               There is mobility for non-tenured track faculty members

 between full-time and part-time assignments from year to year.

 

 (P. Ex. 7(a)-(f); Tr. 287-88)

The parties cooperated on the University’s chart of non-tenure track faculty appointments for fall 2001/spring 2002 and fall 2002/spring 2003. (E. Ex. 5) This chart identified for each non-tenure track faculty member the following: whether the person taught in a semester in the 2001-02 or the 2002-03 academic years; in what department the employee taught; what percentage of a full-time equivalent position the teaching assignment represented; and whether the person is a retiree or has other employment with the University (CS or AP) which is the individual’s primary appointment. (E. Ex. 5)

IV.  Positions of the Parties

            The Petitioner contends that all of the employees within the proposed bargaining unit are deemed to be educational employees unless proved otherwise.  In this case, the Petitioner argues that the Employer must carry the burden of proof to show that there are short-term employees in the proposed bargaining unit or employees who do not share a community of interest.  Petitioner emphasizes that, in order for an employee to be classified as short-term, both prongs of the test in Section 2(q) of the Act must be met: an employee who was employed less than two consecutive calendar quarters and who has no reasonable assurance of being rehired for the same service in a subsequent year.

Additionally, the Petitioner asserts that an employee’s employment in the 2001-2002 and the 2002-2003 academic years should be considered in determining if an employee is a short-term employee.  The Petitioner asserts that it is significant that the statutory definition of short-term employee refers to “an employee who is employed … during a calendar year…” The Petitioner urges that the inquiry about whether an employee is a short-term employee should not be restricted to the last complete academic year, 2001-2002. 

The University asserts that many employees in the petitioned-for unit are short-term employees.   In support of its view, the University points to the plain language in their contracts to show that non-tenure track employees lack any reasonable assurance of continued employment.  The University argues that no non-tenure track faculty member has been given reasonable assurance by the University of being rehired.  Additionally, the Employer contends that only the 2001-2002 academic year should be considered for purposes of determining if any employees are short-term employees since because that was the only academic year that was complete on the date that the petition was filed.  According to the Employer, unless the semester has been concluded, there can be no determination whether an employee worked for two consecutive calendar quarters during a calendar year.

In addition, the Employer argues that various sub-groups within the petitioned-for unit lack a community of interest with the group as a whole.   Specifically the Employer asserts that the faculty associates, C & I Supervisors, and the Civil Service and Academic Professional employees should all be excluded because they do not share a community of interest with the larger group. 

The University further asserts that the IELRB has no jurisdiction over the five Curriculum and Supervision Student Supervisors who perform their duties outside of Illinois or live outside of Illinois, or both.  Lastly, the University contends that the Director of Media Relations should be excluded from the unit. 

V. Discussion and Conclusions of Law

A.  Standards to be applied

1.  Appropriate Unit and Community of Interest

Section 7 of the Act reads as follows and lists various factors to be used in

analyzing questions of unit appropriateness representation cases:

    (a) In determining the appropriateness of a unit, the Board shall decide in each case, in order to ensure employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purpose of collective bargaining, based upon but not limited to such factors as historical pattern of recognition, community of interest, including employee skills and functions, degrees of functional integration, interchangeability and contact among employees, common supervision, wages, hours and other working conditions of the employees involved, and the desires of the employees.

 

115 ILCS 5/7

 

However, Section 7(a) does not mandate that a proposed unit be the “most” appropriate unit, rather it merely has to be “an” appropriate unit. Community College District No. 509 v. Illinois Educational Labor Relations Board, 227 Ill. App. 3d 114, 660 N. E. 2d 265, 214 Ill. Dec. 74 (1st Dist. 1996).

The language of Section 7(a) of the Act, which requires that a determination be made “in each case,” suggests that such determinations will turn largely on questions of fact.  However, it is a misinterpretation of the Act to focus on one or two facts to the exclusion of the others Community College District No. 509, 660 N.E. 2d at 270.

Community of interest and unit appropriateness are "relative to the total context in which they are being considered and must be viewed in light of all of the surrounding circumstances, including all existing configurations and the employer's unrepresented groups." Thornton Township High School District No. 205, 2 PERI 1103 (IELRB 1986) at VII-303. "[T]o determine whether a petitioned-for group constitutes an 'appropriate unit,' we must compare the relative community of interest among the petitioned-for group of employees with others employed by the employer who are excluded from the petition. . . ." Id.

The Board found that a unit consisting only of the adjunct faculty at a community college was appropriate. William Rainey Harper Community College, 10 PERI 1002, IX-7 (IELRB 1993)(Harper II).  The Board’s decision was affirmed in William Rainey Harper Community College v. Harper College Adjunct Faculty Association, IEA-NEA, 273 Ill. App. 3d 648, 653 N.E. 2d 411, 210 Ill. Dec. 506 (4th Dist. 1995)(Harper III). In Harper II, the Board found that since the duty of the non-tenure track faculty was to teach, they shared common skills, functions and functional integration. Further, all non-tenure track faculty were hired and evaluated by department chairs or coordinators and were also evaluated by their students. Id. at IX-9. The Board also found that the non-tenure track faculty (1) were paid based on a common salary schedule separate from the full-time faculty schedule; (2) received common benefits, which consisted of a day of non-cumulative sick or personal leave for each class section a faculty member taught, and beginning with a faculty member’s third semester of employment, tuition waiver; (3) worked fewer than 24 contact hours, or the equivalent, during an academic year; (4) were referred to as lecturers and did not have academic rank; (5) were not eligible for tenure and did not accrue seniority; and (6) were not eligible to participate on any of the College's governance committees. Id.  The Board concluded that the facts showed that the "College's adjunct [non-tenure track] faculty … are educational employees [who] share a community of interest and form an appropriate bargaining unit. It is unnecessary to determine if this unit is the most appropriate possible unit. [Citations omitted.]" Id.

The Board has also found units combining full-time and part-time faculty appropriate for purposes of bargaining under Section 7(a) of the Act.  Elgin Community College District 509, 9 PERI 1079, (IELRB 1993) aff'd 277 Ill. App. 3d 114, 660 N.E. 2d 265 (1st Dist. 1996).[6]  Thus, the petitioned-for unit in this case that seeks all full-time and part-time non-tenure track faculty is not substantially different from units previously recognized in higher education, by this Board.

2. Short term employees

The Act defines  “short-term employee” as follows:

‘Short-term employee’ is an employee who is employed for less than 2 consecutive calendar quarters during a calendar year and who does not have a reasonable assurance that he or she will be rehired by the same employer for the same service in a subsequent calendar year. (emphasis supplied)

 

115 ILCS 5/2(q)

 

"Section 2(q) imposes one test based on length of employment (the first prong) and a separate test based upon the relationship between the employer and employee (the second prong)." Harper II, supra, at 651.  "An employee who fits within both prongs of the Section 2(q) definition of 'short term employee' is not an 'educational employee,' and accordingly is not entitled to representation." Id. In other words, where an employee meets only one of the Section 2(q) tests, the employee is not a short-term employee but is rather an educational employee eligible for representation.

The Board interpreted the phrase "less than two consecutive calendar quarters during a calendar year" contained in Section 2(q) in Harper II, supra. The Board pointed out that the standard educational year begins in late August or early September and ends in late May or early June. Id. The Board determined that if it strictly construed the “consecutive calendar quarters” language of the Act, virtually no faculty members


would qualify as educational employees under the Act. Id. at IX-6. Taking into account “the uniqueness of the educational work calendar,” the Board decided that in the definition of short-term employee, the term “calendar year” meant “academic calendar year” Harper II, IX-7.  The Board held that brief breaks in the educational schedule, such as those between the fall and spring semester, do not constitute a break in service.  As the Board stated it, to decide otherwise would "yield the absurd result that no public sector faculty would be educational employees under the Act." Id. at IX-7.  Thus, an employee who works a full fall semester and a full spring semester in an educational calendar year is an educational employee.[7]

The Appellate Court has upheld the Board’s interpretation of Section 2(q) as follows: "[a] faculty member who teaches one semester (16 weeks) a year might be a short-term employee, but a faculty member who teaches two semesters a year cannot be." 273 Ill. App. 3d at 652. Additionally, the court stated that "[t]he Board's interpretation of the first prong of Section 2(q) of the Act is reasonable and advances the legislative intent by taking into account the uniqueness of the educational calendar year." Id.  Finally, the court remarked that "[e]ven if adjunct faculty are not employed for at least six consecutive months during an educational calendar year, they may still be 'educational' rather than 'short-term' employees under the second prong if they 'have a reasonable assurance that [they] will be rehired by same employer for the same service in a subsequent calendar year."' Id. at 652. "An 'assurance' requires more than mere expectations…. [and] … implies some affirmative act by the employer to demonstrate that it intends to rehire an employee, like a contract or oral representation." Id. at 652.[8] 

“It is well settled that the party asserting the exclusionary status, whether it be supervisory, managerial or confidential, bears the burden of proving that such status exists.”  Board of Education of Community Consolidated School District No. 230 v. IELRB, 165 Ill. App. 3d 41, 518 N. E. 2d 713 (4th Dist. 1987)(District 230); Board of Trustees of Southern Illinois University, 5 PERI 1197 (IELRB, 1988). The exclusions in the Act that bar an employee from being classified as an educational employee are narrowly drawn to avoid depriving employees of the protections under the Act. District 230, supra; Board of Education of Plainfield Community Consolidated School District No. 202, 143 Ill. App. 3d 898, 493 N. E. 2d 1130  (4th Dist. 1986); Winchester Community Unit School District No. 1, 13 PERI 1026 (IELRB, 1997).

3. Supervisors

Section 2(g) of the Act defines a supervisor as follows:

(g) "Supervisor" means any individual having authority in the interests of the employer to hire, transfer, suspend, lay off, recall, promote, discharge, reward or discipline other employees within the appropriate bargaining unit and adjust their grievances, or to effectively recommend such action if the exercise of such authority is not of a merely routine or clerical nature but requires the use of independent judgment. The term "supervisor" includes only those individuals who devote a preponderance of their employment time to such exercising authority.

 

115 ILCS 5/2(g)

The IELRB created a three-part analysis to determine whether an employee is a supervisor.  Southern Illinois University Board of Trustees, 4 PERI 1030 (IELRB, 1987)  That approach was expressly approved by the appellate court, which described it as follows:

(1) the employee must have the authority to perform some of the functions of supervisors or to effectively recommend such action; (2) those functions must require the use of independent judgment and not be merely clerical or routine in nature; and (3) the employee must spend a preponderance of his or her time exercising these functions. Chicago Principals Association, Local 2 v. Illinois Educational Labor Relations Board (1989), 187 Ill. App. 3d 64, 67, 134 Ill. Dec. 883, 885, 543 N.E. 2d 166, 168.

 

Board of Trustees v. IELRB, 235 Ill. App. 3d 709, 600 N.E. 2d 1292 (4th Dist. 1992). 

Non-tenure track faculty who are supervisors within the meaning of the Act, in any capacity at the University, be it in a civil service, academic professional or otherwise at the University must be excluded from the bargaining unit.   Board of Regents v. IELRB, 166 Ill. App. 3d 730, 520 N.E. 2d 1150, 1158 (4th Dist. 1988) (Board of Regents).

4.  Managerial Employees

Section 2(o) of the Act reads as follows:  

 

"managerial employee" means an individual who is engaged predominantly in executive and management functions and is charged with the responsibility of directing the effectuation of such management policies and practices. 

115 ILCS 5/2(o)

 

"The 'predominant' character of executive and management work is determined not only by the amount of time the employee spends on managerial functions, but also by considering whether these functions are 'uppermost in importance and influence."' Chicago Teachers Union, IFT/AFT, AFL-CIO v. IELRB, 291 Ill. App. 3d 785, 695 N.E.2d 1332, 1337 (1st Dist. 1998) citing, Southern Illinois University Board of Trustees, 5 PERI 1197.  (IELRB 1988) (SIU) at IX-530. "The defining characteristic of managerial employees is the authority to make independent managerial decisions." Id.  In order to be considered a managerial employees, an individual must exercise control in several areas, such as establishing and carrying out policy and procedures, carrying out and enforcing policies and programs, designing and changing programs, serving on policy-making committees, establishing regulations, determining the budget and representing higher administration to other employees and outsiders. Board of Regents, supra; SIU, supra.  Managerial status is not limited to employees at the very highest levels of the government entity. Board of Regents, supra.  Non-tenure track faculty who are managerial employees within the meaning of the Act, in any capacity at the University, be it in a civil service, academic professional or otherwise at the University must also be excluded from the bargaining unit.  Id.    

5.  Civil Service Employees and Academic Professionals

 

In determining whether an employee who functions as a non-tenure track faculty member, as well as, in another capacity at the University, it is appropriate to consider the definition of an “educational employee.”  Section 2(b) of the Act states, in relevant part, that, an educational employee is:

any individual, excluding supervisors, managerial, confidential, short-term employees, student and part-time academic employees of community colleges employed full or part-time by an educational employer . . ..

 

115 ILCS 5/2(b)

 

An individual who is employed full or part-time by an educational employer and does not fall within one of the Act's specific exclusions, is an educational employee. Employees in civil service or academic professional categories that are not within any statutory exclusion are educational employees.  Dual-function employees, such as these civil service employees and academic professionals who also teach, must be included in a bargaining unit if they perform duties similar to those of unit employees in sufficient degree to demonstrate that they have a substantial interest in the unit employees' wages, hours, and working conditions. Berea Publishing Company, 140 NLRB 516 (1963); Alpha School Bus Co., 287 NLRB 698 (1987).

In a case involving a representation petition at a state university, the IELRB held that civil service and academic professional employees were properly included in a non-tenure track faculty bargaining unit, notwithstanding a challenge by the university to have these employees excluded. Northern Illinois University, 8 PERI 1113 (IELRB, 1992) (NIU).  The Board stated that the premise underlying the employer's argument in regard to excluding the civil service and academic professional employees was that they more appropriately belonged in a different unit, a unit of tenure-track faculty.  The Board found, however, that the Administrative Law Judge had correctly noted that:

[T]he Board's task is not, as the University seems to suggest, to determine the contours of some generic … (non-tenure track) faculty bargaining unit…. Rather, the Board's task is to determine whether the petitioned-for unit is an appropriate unit under Section 7 of the Act. So long as the proposed unit is not based on artificial or arbitrary groupings, placement in another or even a more appropriate unit is not mandated by the Act.  University of Illinois (Board of Trustees), 7 PERI 1103, Case No. 90-RS-0017-S (IELRB Opinion and Order, September 13, 1991); [citations omitted].

 

NIU, at IX-397 

The IELRB held that those faculty members who are also employed in a civil service or supportive professional staff position for more than 50 percent of their time, were properly included in the non-tenure track faculty bargaining unit because “they have sufficient continuing interest in the working conditions of other [non-tenure track] … faculty due to their [non-tenure track] … faculty appointment to be included in the unit.  NIU, at IX-397.[9]

6.  Off Campus Employees

In the case of Nova Southeastern University 325 NLRB 150, 158 LRRM 1153 (1998), the NLRB held that faculty located at an off-campus program were to be included in a bargaining unit of faculty because the faculty policy manual applied to this group and this group received the same benefits, terms and conditions of employment received by all of the other faculty members.  The group in question in that case was responsible for distance education sites that were located in forty-nine cities in the United States, Canada and abroad.[10] 

B. Analysis

1.  Community of Interest

 

The analysis of whether the employees in the petitioned-for unit share a community of interest must necessarily begin with Section 7(a) of the Act.  The bargaining unit petitioned for in this case is made up of non-tenure track faculty who share many community of interest factors.  For example, as to employee skills and functions, each of the members of the unit engage in common duties, teaching, instruction or overseeing the work of undergraduate or graduate students. All non-tenure track faculty are subject to common or similar supervision through department heads or department chairs, including  whether non-tenure track employees are rehired.  All of the members of the proposed unit have one of four employee ranks and no matter the length of service or other qualifications, they remain ineligible for tenure.  The civil service employees and the academic professional employees on the campus in the petitioned-for unit are functionally  integrated with the rest of the petitioned-for unit in that they teach and function no differently than any other non-tenure track faculty member.  There is contact among all the petitioned-for employees on the Employer’s Normal campus.  All of the petitioned-for employees are salaried and subject to the same University-wide minimum salaries.  Benefits are common to all of the members of the proposed unit, including parking, leaves, tuition waivers, holidays, wellness program, and retirement.  There is mobility for non-tenure track faculty from full-time to part-time from year to year. The members of the petitioned-for unit are all represented on the Academic Senate, a University governance committee, through a non-tenure track representative.  The latter factor is recognition by the University that the non-tenure faculty share common issues and concerns.

There was no evidence that the unit as a whole is inappropriate, rather the evidence offered by the University only showed that certain component groups were in some manner different from the rest of the proposed unit.  However, it is a misinterpretation of the Act to focus on one or two facts to the exclusion of the others.  There is nothing in the record to demonstrate that the petitioned-for unit in the overall context of the University’s existing representation configurations or its unrepresented employees is in any manner inappropriate. Thornton Township, supra. 

Moreover, this conclusion is in keeping with the Board’s decision in Harper II, supra; and Elgin Community College District 509U, supra.  As in Harper II, the facts here demonstrate that the University’s non-tenure track faculty are educational employees, and in light of their commonality in skills, functions, wages, and working conditions, they share a sufficient community of interest such that it would be appropriate to include them in a single bargaining unit.

2.  Short term employees

The University prepared a list of employees that included the entire group of employees petitioned-for herein. (E. Ex. 5) Specifically, it was a list of those non-tenure track faculty who did teach or are now teaching at the University in the 2001-02 and 2002-03 academic years. (E. Ex. 5)  Since the University seeks to exclude employees from the proposed bargaining unit, it has the burden to show that the various categories of employees that it seeks to exclude from the unit meet the appropriate requirements.  District 230, supra.  The largest group that the University seeks to exclude is those employees that it asserts are ineligible by reason of being short-term employees. 

Under the two-prong test for short-term employees, the first test is based on length of employment; the second test is based upon the relationship between the employer and employee. Harper II, supra, at 651.  With respect to length of employment and whether there is a reasonable expectation of reemployment, the University asserts that the only academic year that can be considered here is the 2001-02 academic year, which ended in May of 2002—4 months before the petition was filed in this case.  The University did not present any evidence that any of the individuals who were contracted to teach for the fall 2002 semester did not complete their contractual responsibilities.  In fact, the University presented no evidence that any of its employees contracted to teach in any semester in the 2001-02 or the 2002-03 academic years failed to complete their contractual teaching responsibilities.

The parties agreed that the non-tenured track faculty who were given contracts for the 2002-03 are employed by the University for the 2002-2003 academic year and the non-tenured track faculty who are given contracts for spring 2003 are expected to perform services for the University consistent with the contract for the duration of the Spring 2003 semester. (Jt. Ex. 1, page 6)  The parties stipulated that the fall 2002 semester began on August 19, 2002 and that January 13, 2003 was the first day of classes for the spring 2003 semester. (Jt. Ex. 1, page 6)  At the time of the hearing, nearly six consecutive months had passed in the 2002-03 academic year during which non-tenure track faculty members employed for both semesters had been working.  Harper II, supra, held that the semester break period in December and January was insufficient to constitute a break in continuous service, thus the break in this academic year is no bar to finding that such non-tenure faculty were not short-term employees. 

As to those employed during all or part of the 2002-03 academic year, there are several subgroups.  Some non-tenure track faculty signed contracts before or at the beginning of the fall 2002 semester, specifying that the University would employ such individuals for both semesters of the 2002-03 academic year (i.e., Kelli Sue Appel; E. Ex. 5; E. Ex. 1, pp. 0000041-42).    Others signed contracts prior to, or at the beginning of the fall semester, specifying that the individual would be employed for only the fall 2003 academic year (i.e., Mark Louis Anderson; E. Ex. 5; E. Ex. 1, pp. 0000035-36).  Lastly, there were employees who signed contracts for the spring 2003 semester after the petition in this case was filed but before or at the beginning of the spring 2003 semester began (i.e., Jane Adrian; Ex. 5, p. 1).  Since the spring 2003 semester began on January 13, 2003, non-tenure track employees were in place and teaching for the spring 2003 semester as of the time of the February 11, 2003 hearing.  The time for courses to be dropped due to low enrollment had passed as of the time of the hearing.  The evidence was that the University employment contracts that are tendered to non-tenure track faculty are in fact not cancelled, notwithstanding the standard language included by the University in each of these contracts.  That contractual language may have value with respect to making clear what the University’s rights and obligations are and what the employee’s rights and duties are.  Also, it may advise an employee what rights do not arise by reason of the contract.  However, that standard language used by the University is not dispositive.  In view of the testimony that the teaching assignments are finalized during the second week of the semester and that it would only be in rare circumstances that a non-tenure track employee would not complete his or her teaching assignment for that semester, I conclude that it is appropriate to consider the 2001-02 and the 2002-03 academic years in making determinations about short-term employees. 

Applying the first prong of the short-term employee test, non-tenure track faculty members who worked both semesters of the 2001-02 academic year and of the 2002-03 academic year are not short-term employees under the Act. (E. Ex. 5)  As an employee must satisfy both prongs of the short-term employee test, it is sufficient that employees in this group do not meet the first prong of the test; thus, there is no need to look at the second prong. Those individuals are educational employees and are appropriately included in the bargaining unit, unless excluded by reason of meeting the requirements for a different statutory exclusion.

Under the first prong, I further conclude those non-tenure track faculties who have been employed for both semesters of the 2002-03 academic year are also not short-term employees.  Thus, they are not excluded from the unit.   This is because I consider the strong evidence that faculty members who began teaching during a semester will finish their teaching contract.  The various portions of the Act must be harmonized and if such employees were excluded, such action would be inconsistent with the purposes of the Act.  Even if my analysis was only confined to the 2001-02 academic year, as urged by the University, it would still be necessary to determine if those individuals were employed during the spring 2003 semester, because if the employees were not employed in the spring 2003 semester they would not be eligible to vote in the election.  It would be an anomaly that individuals employed in the 2001-02 academic year would be deemed to be in the bargaining unit, that is they would not be excluded because they were not short-term employees, but individuals who taught in the fall 2002 semester and are teaching in the spring 2003 semester would not be eligible to be in the unit or to vote—even though such individuals may continue to teach both in the fall and spring semesters of the 2003-04 academic year.  Arguably, under the type of ruling advocated by the University, if a person was employed for both semesters of the 2001-02 and the 2002-03 academic years but was unable to be present for the last class of the spring 2002 semester, such an individual would not be in the unit and not eligible to vote because the single absence would have prevented the employee from fully completing the prior academic year.  To apply the law in this fashion would run directly contrary to one of the primary purposes of the Act.

There is no dispute about the identities of all of the non-tenure track faculty who taught for both semesters in the 2001-02 academic year.  All of those employees, by virtue of being employed both semesters, demonstrate that they are not short-term employees.  Any of those individuals who are employed during this the spring 2003 semester are included in the bargaining unit because in the last complete academic year they taught both semesters and are still employed now. The University offered no evidence, save the “boiler-plate” language in all of its employee contracts with employees, that any of those employees who taught both semesters in 2001-02 and who are employed in the spring of 2003 did not have a reasonable assurance about being rehired in the 2002-03 academic year. To exclude such employees would mean that the only employees in the petitioned-for unit would be those who were employed each and every semester--this would run contrary to the purposes of the Act and be an unduly restrictive interpretation of the short-term employee exclusion. 

Non-tenure track faculty who were employed in the 2001-02 academic year and who have not been employed in either semester of the 2002-03 academic year do not meet the test of being employed for two semesters and lack a reasonable expectation of continued employment, as shown by not being employed in the current academic year. 

Non-tenure track faculty who were only employed during the two semesters of  the 2001-02 academic year are not in the bargaining unit.

Non-tenure track faculty who were not employed in the 2001-02 academic year and who were employed in the fall 2002 semester, but are not employed in the spring 2003 semester are not in the bargaining unit because they are short-term employees because they have not been employed for two semesters in either academic year and are not employed this semester.  Likewise, non-tenure track faculty who were not employed in the 2001-02 academic year and who were not employed in the fall 2002 semester, but are now employed in the spring 2003 semester are not in the bargaining unit.  In these latter two situations, the employees at issue are short-term employees, as they have not been employed for two semesters in either academic year.

3.  Supervisors and Managers

The appellate court held that non-tenure track faculty who are managers within the meaning of the Act in another capacity at the University, be it in a civil service, academic professional or otherwise, are excluded from the bargaining unit.   Board of Regents, supra, 520 N.E. 2d 1150, 1156-58.  In this case, the University has argued that all supervisors and managers at the University who also teach as non-tenure track faculty should be excluded from the unit.  However, the University only offered evidence about a few such individuals.  The University argued that Groves, Bragg, and Connelly should be excluded from the unit because they were supervisors and/or managers.  The Association conceded that Groves should be excluded.

The University argued that Bragg should be excluded as a manager and centered its argument on her having responsibility for orientation for new faculty and her selecting other faculty to make presentations at the Center for the Advancement of Teaching.  There was no showing that she is engaged predominantly in executive and management functions or that she is charged with the responsibility of directing the effectuation of management policies and practices.  There was no showing that, to the extent that her position has managerial characteristics, any managerial functions of that position are uppermost in importance and influence. Chicago Teachers Union, supra. There was no evidence showing that her position established and carried out policy and procedures, established regulations or determined the budget. Board of Regents, supra.  Therefore, Bragg is not a manager within the meaning of the Act.

According to the University, Connelly should be excluded because she is a supervisor.  The argument to exclude Connelly relied upon her assigning work duties and hours to student employees and overseeing the quality of their work.  There was no showing by the University that she had authority to act in the interests of the University to hire, transfer, suspend, lay off, recall, promote, discharge, reward or discipline other employees within the appropriate bargaining unit and adjust their grievances, or to effectively recommend such action.  The graduate students she supervises are not within the petitioned-for unit, she does not do the hiring and she has never had the occasion to pursue the dismissal of a student employee.  Thus, Connelly is in the unit, she is not a supervisor within the meaning of the Act.

The University contended that most or all of the other civil service or academic professional employees at issue should be excluded under the Act’s supervisory or managerial exclusions.  However, it presented no evidence in support of those claims, and the record does not otherwise contain such evidence.  Consequently, there is not a basis to exclude the civil service or academic professional employees at issue from the Act’s coverage.

 

 

 

4.  Civil Service and Academic Professionals

For those civil service or academic professional employees who are also employed as non-tenure track faculty, but who do not fall within any statutory exclusion, it is appropriate to recognize them as dual-function employees.  There has been no showing by the University sufficient to warrant excluding these dual-function employees from the bargaining unit, as they regularly perform duties similar to those of unit employees so as to demonstrate that they have a substantial community of interest in the unit employees' wages, hours, and working conditions. Berea, supra; Alpha, supra.  There is no reason to view these employees any differently than the IELRB did the civil service and academic professional employees included in the non-tenure track faculty bargaining unit at NIU as they shared a sufficient community of interest with the other faculty in the unit.  NIU, supra.

5.   Non-Emeritus Retirees[11]

The University argues that the non-emeritus retirees’ wages, benefits, and working conditions are controlled by SURS and the statutes under which SURS functions, rather than the University.  The University offers no legal authority for this statement other than a passing reference to NIU, supra.  However, although in NIU the parties agreed to exclude the retirees due to the fact that the retirees’ employment was subject to SURS’ control, more than to NIU’s control, that outcome and agreement have no precedential value in the instant matter.  Therefore, the University’s reference to SURS control over retirees’ wages, benefits, and working conditions is simply an argument.  For that to be of value here, that assertion must be supported by sufficient evidence, and legal authorities, since here the non-emeritus retirees group is contested.  The apparent basis for the University’s argument is that SURS has imposed limits on the amount that a retiree may earn at a public university or community college in Illinois.  Retirees also receive their health insurance through SURS.  Retirees do not participate in the SURS retirement program in the same manner, as would an employee who has not already retired.  Nonetheless, there are a vast number of items that would be bargainable as to the employment of the non-emeritus retirees, notwithstanding the role SURS plays as to these individuals.  In addition, SURS does not establish the salary that a retiree earns at the University.  SURS merely has limitations on how much a retiree can receive in salary from a public university or community college in Illinois, before incurring a penalty--necessitating some portion of SURS benefits being repaid when the limit is exceeded. In addition, since the role of SURS before an employees’ retirement is established by statute and regulations, this is unlikely to be of any consequence in collective bargaining.  Accordingly, as the non-emeritus retirees share virtually all of the other community of interest factors with the remainder of the employees in the petitioned-for unit, with the exception of health insurance benefits, there is no basis for excluding the non-emeritus retirees from the unit.

6.  Faculty Associates

The University states that faculty associates employed to teach in the University’s laboratory schools, Metcalf School and the University High School, are able to attain contractual continued service status (tenure) under the Illinois School Code, but these individuals are not eligible to attain tenure status under the University’s tenure track system (Tr. 44 and 82).  105 ILCS 5/1 et seq. (2000).  The University’s argument, that these individuals should be excluded from the bargaining unit because their terms and conditions of employment are set by the Illinois School Code, has not been supported by any authorities.  The University asserts that the School Code regulates the terms and conditions of the employment of the faculty associates, but offers nothing in support of that conclusion.

Moreover, it is fair to say that the majority of educational employees subject to the Act are employed by public elementary, secondary or unit school districts and all of them are subject, in varying degrees, to the Illinois School Code.  Accordingly, the University’s statement that the faculty associates’ employment is subject to the Illinois School Code is of no significance—since that does not place the faculty associates in any different circumstance from the thousands of educational employees whose employment is also subject to the Illinois School Code and who nonetheless have the right to organize and bargain under the Act.  Numerous aspects of wages, hours and terms and conditions of employment for educational employees are not addressed by the School Code--and those matters are subject to collective bargaining under the Act. 

The University asserts that the lab school faculty work “off campus,” but in fact both Metcalf School and the University High School are located on the campus, as shown by the University’s campus maps.   Likewise, I do not find the school term calendars of the laboratory schools to be so different from the academic calendars of the other non-tenure faculty as to be of any significance.  Certainly, in wall-to-wall bargaining units in elementary or secondary school districts, differences between twelve-month employees, such as custodians and maintenance workers, and nine-month academic employees, such as teachers and aides, do not constitute sufficient reasons to separate such groups. Finally, the University has not shown how the faculty associates do not share the community of interests with the other non-tenure track faculty.  The factors identified herein above likewise are all features of the employment of the faculty associates.  The University did not present evidence that would warrant excluding the faculty associates from the petitioned-for unit.

7.  Curriculum and Instruction Student Supervisors

            While the C & I Supervisors, who are employed to supervise student teachers are located in various locations in Illinois, Hawaii, Texas, and England, their actual work is subject to virtually all of the employment factors identified earlier herein.  Specifically, C & I Supervisors: use the same titles/classifications (i.e. instructor, etc.); are represented on the Academic Senate by a non-tenure track faculty representative; are subject to the same University policies related to employment, such as sexual harassment and internet use policies; and are subject to the same faculty ethics code.  Additionally, the University offers written contracts for non-tenure track faculty appointments to the C & I Supervisors depending on departmental needs, student enrollment in courses, and University policies.  Each of those factors contributed to a finding of a community of interest as to other non-tenure track faculty and those factors are no less descriptive as to these C & I Supervisors than it was to the other non-tenure track faculty. 

While the University’s witness, Dr. Stanford, displayed a wide knowledge of the University’s operations, I did not find her testimony about the  C & I Supervisors to be persuasive, primarily because she did not have direct knowledge of this type of employment.  Thus, her testimony about the characteristics of this group did not bolster the University’s position.

The University argued that all of the C & I Supervisors should be excluded, citing NIU, supra.   However, as pointed out in footnote 9, that case is of no precedential value on this issue.  Nova Southeastern University, supra, included faculty located at an off-campus program in the bargaining unit because the group received the same benefits, terms and conditions of employment that were received by all of the other faculty members.  That circ