Appeals by the University System of New Hampshire (hereafter “university”) and by the New Hampshire Education Association (hereafter NHEA) from a determination of the Public Employee Labor Relations Board (hereafter PELRB) establishing faculty units for purposes of collective bargaining within the university system. These appeals have been brought under the provisions of RSA ch. 541.
Petitions were filed with the PELRB by the American Association of University Professors (hereafter AAUP), by the American Federation of Teachers (hereafter AFT), and by NHEA for determination of the appropriate unit or units of faculty within the university system in accordance with RSA 273-A:8, :10 (Supp. 1975). The PELRB held a public hearing on the matter on March 18, 1976, at which time oral and written testimony was taken. Written briefs were also submitted to the PELRB on or before April 15,1976.
On May 26,1976, the PELRB issued its determination, establishing three separate units of full-time academic faculty as follows: One unit at the Durham campus; one unit at the Keene campus; and one unit at the Plymouth campus. The PELRB further determined that librarians and department chairmen shall be included in each bargaining unit so established. The PELRB also deter *99 mined that the faculty of the Wheelock Laboratory School at Keene State College are excluded from that bargaining unit.
A rehearing on the matter was held on July 14, 1976, and on August 9, 1976, the PELRB reaffirmed its earlier determination. On appeal the university seeks to overturn the PELRB’s determination that librarians and department chairmen are to be included in the bargaining units. The NHEA, joined by the AAUP and the AFT, seeks to overturn the PELRB’s determination that the Wheelock Laboratory School faculty are excluded from the Keene campus faculty bargaining unit. The AAUP also filed a motion to dismiss these appeals on the grounds that the PELRB’s determination was not a final order within the meaning of RSA 273-A: 14 (Supp. 1975), and that these appeals were therefore premature. However, prior to oral argument this motion was withdrawn with prejudice and is not before us.
According to the provisions of RSA 541:13 the burden rests on the appealing parties to show, by a clear preponderance of the evidence, that the determinations of the PELRB complained of are unjust or unreasonable. Otherwise, except for errors of law, we cannot set aside the PELRB’s decision.
Hanaway v. State,
Librarians.
In determining an appropriate bargaining unit the PELRB is to “take into consideration the principle of community interest.” RSA 273-A: 8 I (Supp. 1975). Some criteria are listed in this section, including whether the employees share the “same conditions of employment.” As community of interest is a virtually universal standard for determining appropriate units in both the public and private sectors, the PELRB can also turn to decisions in other states and by the National Labor Relations Board for additional guidance.
See American Fed. of State, Etc. v. Manchester,
The PELRB found that librarians “are given faculty rank and tenure based on qualifications and share in the same benefits as faculty members;” that they “participate in a measurable degree in the related teaching process;” and that “[a] community of interest with academic faculty is apparent. .. .” These findings were supported by testimony given at both the initial hearing and the rehearing, as well as by written evidence submitted by interested parties. There was evidence that the librarians hold faculty rank. Tenure and promotions are determined in the same manner as for other faculty members. Librarians also serve on university committees in the same capacity as other faculty members. Although the job of a librarian is not the same as that of other faculty members, librarians are nevertheless engaged in the instruction of students, both on an individual and on a classroom basis. In their relationship to both students and faculty, librarians are an integral part of the university’s teaching, learning, and research processes. The PELRB’s determination that librarians should be included in a unit of academic faculty is also consistent with decisions by both the National Labor Relations Board and other state labor relations boards in similar fact situations.
See, e.g., University of Massachusetts,
Mass. Labor Rel. Comm’n, Case Nos. SCR-2079 and SCR-2082 (October 15, 1976);
University of Vermont and State Agricultural College,
223 N.L.R.B. No. 46 (March 29, 1976);
Rensselaer Polytechnic Institute,
The decision of the PELRB that librarians share a community of interest with the other faculty so as to be included in a bargaining unit of academic faculty members is based on evidence in the record and constitutes a reasonable interpretation and application of RSA 273-A.-8 (Supp. 1975) to the facts of the case. We hold, therefore, that the university has not met the burden of proof required by RSA 541:13 to set aside this portion of the PELRB’s
*101
determination.
Lambert Constr. Co. v. State,
Department Chairmen. The university challenges the inclusion of department chairmen in the bargaining unit on three grounds: (1) That they are persons appointed by the chief executive of the institution and are therefore excluded from any bargaining unit by the provisions of RSA 273-A: 1 IX(b) (Supp. 1975); (2) that they are confidential employees and are therefore excluded from any bargaining unit by the provisions of RSA 273-A: 1 IX (c) (Supp. 1975); and (3) that they are supervisors and cannot therefore be in the same unit as other faculty members under the provisions of RSA 273-A: 8 II (Supp. 1975).
The PELRB made no specific finding regarding whether or not department chairmen are appointed to their positions. The evidence before the PELRB indicated that faculty members become department chairmen by decision of the department faculty, or by decision of the dean in conjunction with the faculty. The inclusion of department chairmen in the bargaining unit of academic faculty does not violate the provision of RSA 273-A: 1 IX (b) (Supp. 1975) excluding persons appointed by the employer’s chief executive. The PELRB has been vested with the primary authority to construe this statutory provision,
Waste Control Systems, Inc. v. State,
The PELRB found that “[t]he confidential relationship of the Chairmen to the Administration appears not to exist.” The National Labor Relations Board has defined confidential employees as employees “who assist and act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations.”
B. F. Goodrich Co.,
The evidence showed that access to personnel files is not limited to department chairmen, but extends to members of the department’s promotion and tenure committee. Such access would not alone require a finding that the department chairmen are confidential employees. Shaw and Clark, supra at 171; University of Massachusetts, Mass. Labor Rel. Comm’n, Case Nos. SCR-2079 *102 and SCR-2082 (October 15, 1976). Recommendations to the administration by department chairmen regarding promotions and tenure are made after discussions with other members of the department. This does not constitute confidential interaction between department chairmen and the administration on labor relations matters. The PELRB’s determination that department chairmen are not confidential employees is neither unreasonable nor unlawful. Id. We are not convinced by this second argument advanced by the university.
The PELRB also found that “[supervisory responsibility of Department Chairmen is limited and minimal at best;” that “Chairmen, in reality, act as liaison between the faculty and the Dean and Administrative Officers; make recommendations as to performance, tenure, and to a degree, hiring and firing, but do not possess any final authority in this area;” and that “[t]he community of interest of the Chairmen appear (sic) clearly with the faculty rather than the administrative authorities.”
These findings are supported by the evidence. There was testimony that chairmen consider it their role to represent the interests of the faculty and not the interests of the administration. Department chairmen continue to teach and to research, although their teaching load may be reduced. After their term as chairmen, usually about three years, they return full time to their regular duties as faculty members. Decisions and recommendations of a chairman regarding budget allocation, scheduling, promotion, and tenure are made on a collegial basis with other members of their department. The chairmen have no final authority in most of these matters.
While recognizing that each case turns on its own facts, the National Labor Relations Board has established that department chairmen do not
“generally
have or exercise supervisory authority,” and places the burden on the employer to show supervisory status requiring exclusion from a faculty bargaining unit.
Rosary Hill College,
The PELRB’s determination that department chairmen are not supervisors is therefore supported by the record and in accordance with applicable principles of law. See Comment, The Bargaining Unit Status of Academic Department Chairmen, 40 U. Chi. L. Rev. 442 (1973). We cannot accept the university’s third argument against the inclusion of department chairmen in the bargaining unit. We hold that the university has not met the burden of proof required by RSA 541:13 to set aside the PELRB’s determination that department chairmen be included in the full-time academic faculty units.
Wheelock Laboratory School Faculty.
The PELRB found that the Wheelock Laboratory School faculty “are involved at different levels of teaching than the faculty of Keene State College,” and that their “salary schedule, fringe benefits, qualifications are determined in conjunction with the local school board in Keene.” The PELRB also construed our decision in
Plymouth School District v. State Board of Education,
The PELRB has erroneously interpreted the Plymouth School District case. We held only that, whatever their status, the laboratory school teachers were entitled to certain procedural rights under RSA 189:14-a when, after termination of the contract between Plymouth State College and the Plymouth School District, the school district failed to renominate or reelect them as teachers. We did not hold that the laboratory school teachers were public school teachers. Nor did we hold that they were “not members of the Plymouth State College faculty” as stated in the board’s decision.
We are unable to conclude that the PELRB’s erroneous interpretation of the
Plymouth School District
case had no significant influence on its decision.
See Parker-Young Co. v. State,
As we cannot substitute our judgment for that of the PELRB, we must remand this case for a redetermination of the question whether the Wheelock Laboratory School teachers are to be included in or excluded from the Keene campus faculty bargaining unit. We are of the opinion that this determination can be arrived at by the PELRB from the record already before it, examined in the light of the Plymouth School District case.
Remanded.