“Faculty Unions Revisited: Will Yeshiva Be Reversed or

“Faculty Unions Revisited: Will Yeshiva Be Reversed or Ignored?”

Jeffrey L. Hirsch, J.D. Partner

HIRSCH ROBERTS WEINSTEIN LLP

22nd Annual Legal Issues in Higher Education Conference University of Vermont

October 8, 2012

TABLE OF CONTENTS

1. NLRB v. Yeshiva University, 444 U.S. 672 (1980)

2. Point Park University v. NLRB, 457 F.3d 42 (D.C. Cir. 2006)

3. NLRB “Notice and Invitation to File Briefs” in Point Park University and Newspaper Guild of Pittsburgh / Communications Workers of America Local 38061, AFL-CIO, Case No. 6-RC-12276

4. Reply Brief of Employer, Point Park University, July 20, 2012

5. Brief of Employer, Point Park University, July 6, 2012

6. Brief of Petitioner, Newspaper Guild of Pittsburgh, Communications Workers of America, Local 38061, AFL-CIO, and AFL-CIO, July 6, 2012

7. Amicus Brief of National Education Association, (undated)

8. Amicus Brief of American Association of University Professors, June 29, 2012

9. Amicus Brief of Michael Hoerger, PhD., University of Rochester Medical Center, July 6, 2012

10. Amicus Brief of Employment and Labor Relations Scholars Professor Joel Cutcher-Gershenfeld (University of Illinois, School of Labor and Employment Relations) and Professor Thomas A. Kochan (Massachusetts Institute of Technology, Sloan School of Management), and others.(undated)

11. Amicus Brief of The Center For The Analysis of Small Business Labor Policy, (undated)

12. Amended Amicus Brief of: (1) American Council on Education; (2) National Association of Independent Colleges and Universities; (3) Council of Independent Colleges; (4) Association of Independent Colleges and Universities of Pennsylvania; (5) College and University Professional Association for Human Resources; and (6) Association of American Universities, July 6, 2012

13. Amicus Brief of National Right to Work Legal Defense & Education Foundation, Inc., July 6, 2012

“Faculty Unions Revisited: Will Yeshiva Be Reversed or Ignored?” Jeffrey L. Hirsch, J.D.


1.

NRLB V. YESHIVA UNIVERSITY

444 U.S. 672 (1980)

100 S.Ct. 856 Page 1 444 U.S. 672, 100 S.Ct. 856, 103 L.R.R.M. (BNA) 2526, 63 L.Ed.2d 115, 87 Lab.Cas. P 11,819 (Cite as: 444 U.S. 672, 100 S.Ct. 856)

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

Supreme Court of the United States NATIONAL LABOR RELATIONS BOARD,

Petitioner, v.

YESHIVA UNIVERSITY. YESHIVA UNIVERSITY FACULTY ASSOCIA-

TION, Petitioner, v.

YESHIVA UNIVERSITY.

Nos. 78–857, 78–997. Argued Oct. 10, 1979. Decided Feb. 20, 1980.

On petition for enforcement of an order of the

National Labor Relations Board, the Court of Appeals, Mulligan, Circuit Judge, 582 F.2d 686, denied peti-tion, and certiorari was granted. The Supreme Court, Mr. Justice Powell, held that private university's full-time faculty members whose authority in aca-demic matters was absolute, who decided what courses would be offered, when they would be scheduled, and to whom they would be taught, who determined teaching methods, grading policies, and matriculation standards, and who effectively decided which students would be admitted, retained and graduated, exercised supervisory and managerial functions and were therefore excluded from the cat-egory of employees entitled to benefits of collective bargaining under the National Labor Relations Act.

Affirmed.

Mr. Justice Brennan dissented and filed opinion in which Mr. Justice White, Mr. Justice Marshall, and Mr. Justice Blackmun joined.

West Headnotes [1] Labor and Employment 231H 1178(1) 231H Labor and Employment 231HXII Labor Relations 231HXII(D) Bargaining Representatives 231Hk1171 Bargaining Units

231Hk1178 Supervisory Employees 231Hk1178(1) k. In general. Most Cited Cases (Formerly 232Ak67 Labor Relations)

For purposes of provision of National Labor Re-lations Act excluding managerial employees from the categories of employees entitled to the benefits of collective bargaining of the Act, “managerial em-ployees” are defined as those who formulate and ef-fectuate management policies by expressing and making operative the decisions of their employer; managerial employees must exercise discretion within or even independently of established employer policy and must be aligned with management, and normally, an employee may be excluded as managerial only if he represents management interests by taking or rec-ommending discretionary actions that effectively control or implement employer policy. National Labor Relations Act, §§ 1 et seq., 2(3, 11), 14(a) as amended 29 U.S.C.A. §§ 151 et seq.,152(3, 11), 164(a). [2] Labor and Employment 231H 1178(1) 231H Labor and Employment 231HXII Labor Relations 231HXII(D) Bargaining Representatives 231Hk1171 Bargaining Units 231Hk1178 Supervisory Employees 231Hk1178(1) k. In general. Most Cited Cases (Formerly 232Ak67 Labor Relations)

Private university's full-time faculty members whose authority in academic matters was absolute, who decided what courses would be offered, when they would be scheduled, and to whom they would be taught, who determined teaching methods, grading policies, and matriculation standards, and who effec-tively decided which students would be admitted, retained and graduated, exercised supervisory and managerial functions and were therefore excluded from the category of employees entitled to benefits of collective bargaining under the National Labor Rela-tions Act. National Labor Relations Act, §§ 1 et seq., 2(3, 11), 14(a) as amended 29 U.S.C.A. §§ 151 et seq.,152(3, 11), 164(a).

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[3] Labor and Employment 231H 1871 231H Labor and Employment 231HXII Labor Relations 231HXII(J) Judicial Review and Enforcement of Decisions of Labor Relations Boards 231HXII(J)1 Review by Courts 231Hk1869 Deference to Board 231Hk1871 k. Representation pro-ceedings. Most Cited Cases (Formerly 232Ak671 Labor Relations)

The absence of factual analysis in National Labor Relations Board's opinion which ruled that full-time faculty members of private university were manage-rial employees excluded them from coverage under the National Labor Relations Act reflected the Board's view that the managerial status of faculty members could be decided on the basis of conclusory rationales rather than examination of the facts of each case, and therefore, the deference normally accorded the exper-tise of the Board when its conclusions are rationally based on articulated facts and consistent with the Act was not applicable.

**857 *672 Syllabus FN*

FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the conven-ience of the reader. See United States v. De-troit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.

Yeshiva University Faculty Association (Union)

filed a representation petition with the National Labor Relations Board (Board), seeking certification as bargaining agent for the full-time faculty members of certain schools of Yeshiva University, a private uni-versity. The University opposed the petition on the ground that all of its faculty members are managerial or supervisory personnel and hence not employees within the meaning of the National Labor Relations Act (Act). The evidence at hearings before the Board's hearing officer showed, inter alia, that a central ad-ministrative hierarchy serves all of the University's schools, with University-wide policies being formu-lated by the central administration upon approval of the Board of Trustees. However, the individual schools within the University are substantially au-

tonomous, and the faculty members at each school effectively determine its curriculum, grading system, admission and matriculation standards, academic calendars, and course schedules. Also, the over-whelming majority of faculty recommendations as to faculty hiring, tenure, sabbaticals, termination, and promotion are implemented. The Board granted the Union's petition and directed an election. Summarily rejecting the University's contention that its faculty members are managerial employees, the Board held that the faculty members are professional employees entitled to the Act's protection. After the Union won the election and was certified, the University refused to bargain. In subsequent unfair labor practice pro-ceedings, the Board ordered the University to bargain and sought enforcement in the Court of Appeals, which denied the petition. The court agreed that the faculty members are professional employees under § 2(12) of the Act, found that the Board had ignored “the extensive control of Yeshiva's faculty” over academic and personnel decisions as well as its “crucial role . . . in determining other central policies of the institu-tion,” and accordingly held that the faculty members are endowed with “managerial status” sufficient to remove them from the Act's coverage.

*673 Held : The University's full-time faculty members are managerial employees excluded from the Act's coverage. Pp. 861–866.

(a) The authority structure of a university does not fit neatly into the statutory scheme, because authority in the typical “mature” private university is divided between a central administration and one or more collegial bodies. The absence of explicit congressional direction does not preclude the Board from reaching any particular type of employment, and the Board has approved the formation of bargaining units composed of faculty members on the ground that they are “pro-fessional employees” under § 2(12) of the Act. Nev-ertheless professionals may be exempted from cov-erage under the judicially implied exclusion **858 for “managerial employees” when they are involved in developing and implementing employer policy. Pp. 861–862.

(b) Here, application of the managerial exclusion to the University's faculty members is not precluded on the theory that they are not aligned with manage-ment because they are expected to exercise “inde-pendent professional judgment” while participating in



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academic governance and to pursue professional val-ues rather than institutional interests. The controlling consideration is that the faculty exercises authority which in any other context unquestionably would be managerial, its authority in academic matters being absolute. The faculty's professional interests—as ap-plied to governance at a university like Yeshiva which depends on the professional judgment of its faculty to formulate and apply policies—cannot be separated from those of the institution, and thus it cannot be said that a faculty member exercising independent judg-ment acts primarily in his own interest and does not represent the interest of his employer. Pp. 862–866.

(c) The deference ordinarily due the Board's ex-pertise does not require reversal of the Court of Ap-peals' decision. This Court respects the Board's ex-pertise when its conclusions are rationally based on articulated facts and consistent with the Act, but here the Board's decision satisfies neither criterion. P. 867.

2nd Cir., 582 F.2d 686, affirmed. Norton J. Come, Washington, D. C., for petitioner in no. 78–857. *674 Ronald H. Shechtman, New York City, for peti-tioner in no. 78–997. Marvin E. Frankel, New York City, for respondent in both cases. Mr. Justice POWELL delivered the opinion of the Court.

Supervisors and managerial employees are ex-cluded from the categories of employees entitled to the benefits of collective bargaining under the National Labor Relations Act.FN1 The question presented is whether the full-time faculty of Yeshiva University fall within those exclusions.

FN1. 49 Stat. 449, as amended, 61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq.; see 29 U.S.C. §§ 152(3), 152(11), 164(a); NLRB v. Bell Aerospace Co., 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974).

I

Yeshiva is a private university which conducts a broad range of arts and sciences programs at its five undergraduate and eight graduate schools in New

York City. On October 30, 1974, the Yeshiva Uni-versity Faculty Association (Union) filed a represen-tation petition with the National Labor Relations Board (Board). The Union sought certification as bargaining agent for the full-time faculty members at 10 of the 13 *675 schools.FN2 The University opposed the petition on the ground that all of its faculty mem-bers are managerial or supervisory personnel and hence not employees within the meaning of the Na-tional Labor Relations Act (Act). A Board-appointed hearing officer held hearings over a period of five months, generating a voluminous record.

FN2. The schools involved are Yeshiva College, Stern College for Women, Teacher's Institute for Women, Erna Michael College, Yeshiva Program, James Striar School of General Jewish Studies, Belfer Graduate School of Sciences, Ferkauf Graduate School of Humanities and Social Sciences, Wurzweiler School of Social Work, and Bernard Revel Graduate School. The Union did not seek to represent the faculty of the medical school, the graduate school of med-ical sciences, the Yeshiva High School, or any of the theological programs affiliated with the University. A law school has been opened since the time of the hearings, but it does not figure in this case.

The evidence at the hearings showed that a central

administrative hierarchy serves all of the University's schools. Ultimate authority is vested in a Board of Trustees, whose members (other than the President) hold no administrative positions at the University. The President sits on the Board of **859 Trustees and serves as chief executive officer, assisted by four Vice Presidents who oversee, respectively, medical affairs and science, student affairs, business affairs, and ac-ademic affairs. An Executive Council of Deans and administrators makes recommendations to the Presi-dent on a wide variety of matters.

University-wide policies are formulated by the central administration with the approval of the Board of Trustees, and include general guidelines dealing with teaching loads, salary scales, tenure, sabbaticals, retirement, and fringe benefits. The budget for each school is drafted by its Dean or Director, subject to approval by the President after consultation with a committee of administrators.FN3 The faculty partici-


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pate *676 in University-wide governance through their representatives on an elected student-faculty advisory council. The only University-wide faculty body is the Faculty Review Committee, composed of elected representatives who adjust grievances by in-formal negotiation and also may make formal rec-ommendations to the Dean of the affected school or to the President. Such recommendations are purely ad-visory.

FN3. At Yeshiva College, budget requests prepared by the senior professor in each subject area receive the “perfunctory” ap-proval of the Dean “99 percent” of the time and have never been rejected by the central administration. App. 298–299. A council of elected department chairmen at Ferkauf ap-proves the school's budget allocations when discretionary funds are available. Id., at 626–627. All of these professors were in-cluded in the bargaining unit approved by the Board.

The individual schools within the University are

substantially autonomous. Each is headed by a Dean or Director, and faculty members at each school meet formally and informally to discuss and decide matters of institutional and professional concern. At four schools, formal meetings are convened regularly pursuant to written bylaws. The remaining faculties meet when convened by the Dean or Director. Most of the schools also have faculty committees concerned with special areas of educational policy. Faculty welfare committees negotiate with administrators concerning salary and conditions of employment. Through these meetings and committees, the faculty at each school effectively determine its curriculum, grading system, admission and matriculation stand-ards, academic calendars, and course schedules.FN4

FN4. For example, the Deans at Yeshiva and Erna Michael Colleges regard faculty actions as binding. Id., at 248–249, 312–313. Ad-ministrators testified that no academic initia-tive of either faculty had been vetoed since at least 1968. Id., at 250, 313. When the Stern College faculty disagreed with the Dean's decision to delete the education major, the major was reinstituted. Id., at 191. The Di-rector of the Teacher's Institute for Women testified that “the faculty is the school,” id., at

379, while the Director of the James Striar School described his position as the “execu-tive arm of the faculty,” which had overruled him on occasion, id., at 360–361. All deci-sions regarding academic matters at the Ye-shiva Program and Bernard Revel are made by faculty consensus. Id., at 574, 583–586. The “internal operation of [Wurzweiler] has been heavily governed by faculty decisions,” according to its Dean. Id., at 502.

*677 Faculty power at Yeshiva's schools extends

beyond strictly academic concerns. The faculty at each school make recommendations to the Dean or Director in every case of faculty hiring, tenure, sabbaticals, termination and promotion. Although the final deci-sion is reached by the central administration on the advice of the Dean or Director, the overwhelming majority of faculty recommendations are implement-ed.FN5 **860 Even when financial problems in the early 1970's restricted Yeshiva's budget, faculty recommendations still largely controlled personnel decisions made within the constraints imposed by the administration. Indeed, the faculty of one school re-cently drew up new and binding policies expanding their own role in these matters. In addition, some faculties make final decisions regarding the admis-sion, expulsion, and graduation of individual students. Others have decided questions involving teaching loads, student absence policies, tuition and enrollment levels, and in one case the location of a school.FN6

FN5. One Dean estimated that 98% of faculty hiring recommendations were ultimately given effect. Id., at 624. Others could not recall an instance when a faculty recom-mendation had been overruled. Id., at 193–194. At Stern College, the Dean in six years has never overturned a promotion de-cision. Ibid. The President has accepted all decisions of the Yeshiva College faculty as to promotions and sabbaticals, including deci-sions opposed by the Dean. Id., at 268–270. At Erna Michael, the Dean has never hired a full-time faculty member without the consent of the affected senior professor, id., at 333–335, and the Director of Teacher's In-stitute for Women stated baldly that no teacher had ever been hired if “there was the slightest objection, even on one faculty member's part.” Id., at 388. The faculty at

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both these schools have overridden recom-mendations made by the deans. No promo-tion or grant of tenure has ever been made at Ferkauf over faculty opposition. Id., at 620, 633. The Dean of Belfer testified that he had no right to override faculty decisions on tenure and nonrenewal. Id., at 419.

FN6. The Director of Teacher's Institute for Women once recommended that the school move to Brooklyn to attract students. The faculty rejected the proposal and the school remained in Manhattan. Id., at 379–380.

*678 II

A three-member panel of the Board granted the Union's petition in December 1975, and directed an election in a bargaining unit consisting of all full-time faculty members at the affected schools. 221 N.L.R.B. 1053 (1975). The unit included Assistant Deans, senior professors, and department chairmen, as well as associate professors, assistant professors, and in-structors.FN7 Deans and Directors were excluded. The Board summarily rejected the University's contention that its entire faculty are managerial, viewing the claim as a request for reconsideration of previous Board decisions on the issue. Instead of making findings of fact as to Yeshiva, the Board referred generally to the record and found no “significan[t]” difference between this faculty and others it had con-sidered. The Board concluded that the faculty are professional employees entitled to the protection of the Act because “faculty participation in collegial decision making is on a collective rather than indi-vidual basis, it is exercised in the faculty's own interest rather than ‘in the interest of the employer,’ and final authority rests with the board of trustees.” Id., at 1054 (footnote omitted).FN8

FN7. “Full-time faculty” were defined as those

“appointed to the University in the titles of professor, associate professor, assistant professor, instructor, or any adjunct or visiting thereof, department chairmen, di-vision chairmen, senior faculty and assis-tant deans, but excluding . . . part-time faculty; lecturers; principal investigators; deans, acting deans and directors; [and others not relevant to this action].” 221

N.L.R.B., at 1057.

The term “faculty” in this opinion refers to the members of this unit as defined by the Board.

FN8. Identical language had been employed in at least two other Board decisions. See infra, at 863. In this case, it was not sup-ported by a single citation to the record. Mr. Justice BRENNAN's dissent relies on this language, post, at 869, and adds that a fac-ulty's “primary concerns are academic and relate solely to its own professional reputa-tion,” post, at 872. The view that faculty governance authority “is exercised in the faculty's own interest” rather than that of the University assumes a lack of responsibility that certainly is not reflected in this record.

*679 The Union won the election and was certi-

fied by the Board. The University refused to bargain, reasserting its view that the faculty are managerial. In the subsequent unfair labor practice proceeding, the Board refused to reconsider its holding in the repre-sentation proceeding and ordered the University to bargain with the Union. 231 N.L.R.B. 597 (1977). When the University still refused to sit down at the negotiating table, the Board sought enforcement in the Court of Appeals for the Second Circuit, which denied the petition. 582 F.2d 686 (1978).

Since the Board had made no findings of fact, the court examined the record and related the circum-stances in considerable detail. It agreed that the faculty are professional employees under § 2(12) of the Act. 29 U.S.C. § 152(12). But the court found that the Board had ignored “the extensive control of Yeshiva's faculty” over academic and personnel decisions as well as **861 the “crucial role of the full-time faculty in determining other central policies of the institu-tion.” 582 F.2d, at 698. The court concluded that such power is not an exercise of individual professional expertise. Rather, the faculty are, “in effect, substan-tially and pervasively operating the enterprise.” Ibid. Accordingly, the court held that the faculty are en-dowed with “managerial status” sufficient to remove them from the coverage of the Act. We granted certi-orari, 440 U.S. 906, 99 S.Ct. 1212, 59 L.Ed.2d 453 (1979), and now affirm.









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III There is no evidence that Congress has consid-

ered whether a university faculty may organize for collective bargaining under the Act. Indeed, when the Wagner and Taft-Hartley Acts were approved, it was thought that congressional power did not extend to university faculties because they were employed by nonprofit institutions which did not “affect com-merce.”*680 See NLRB v. Catholic Bishop of Chi-cago, 440 U.S. 490, 504–505, 99 S.Ct. 1313, 1320–1321, 59 L.Ed.2d 533 (1979).FN9 Moreover, the authority structure of a university does not fit neatly within the statutory scheme we are asked to interpret. The Board itself has noted that the concept of colle-giality “does not square with the traditional authority structures with which th[e] Act was designed to cope in the typical organizations of the commercial world.” Adelphi University, 195 N.L.R.B. 639, 648 (1972).

FN9. See also S.Rep.No.573, 74th Cong., 1st Sess., 7 (1935) (dispute between employer and college professor would not be covered); H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., 36 (1947) U.S.Code Cong.Serv.1947, p. 1135 (listing professional employees cov-ered by new statutory provision without mentioning teachers); S.Rep.No.105, 80th Cong., 1st Sess., 11, 19 (1947) (same).

The Act was intended to accommodate the type of

management-employee relations that prevail in the pyramidal hierarchies of private industry. Ibid. In contrast, authority in the typical “mature” private university is divided between a central administration and one or more collegial bodies. See J. Baldridge, Power and Conflict in the University 114 (1971). This system of “shared authority” evolved from the medi-eval model of collegial decisionmaking in which guilds of scholars were responsible only to them-selves. See N. Fehl, The Idea of a University in East and West 36–46 (1962); D. Knowles, The Evolution of Medieval Thought 164–168 (1962). At early uni-versities, the faculty were the school. Although facul-ties have been subject to external control in the United States since colonial times, J. Brubacher & W. Rudy, Higher Education in Transition: A History of Ameri-can Colleges and Universities, 1636–1976, pp. 25–30 (3d ed. 1976), traditions of collegiality continue to play a significant role at many universities, including Yeshiva. FN10 For these reasons, the Board has *681 recognized that principles developed for use in the

industrial setting cannot be “imposed blindly on the academic world.” Syracuse University, 204 N.L.R.B. 641, 643 (1973).

FN10. See the inaugural address of Williams College President Paul Ansel Chadbourne, quoted in Kahn, The NLRB and Higher Ed-ucation: The Failure of Policymaking Through Adjudication, 21 UCLA L.Rev. 63, 70, n. 16 (1973) ( “ ‘Professors are some-times spoken of as working for the college. They are the college’ ”) (emphasis in origi-nal); Davis, Unions and Higher Education: Another View, 49 Ed. Record 139, 143 (1968) (“The president . . . is not the faculty's master. He is as much the faculty's adminis-trator as he is the board [of trustees']”); n. 4, supra.

The absence of explicit congressional direction,

of course, does not preclude the Board from reaching any particular type of employment. See NLRB v. Hearst Publications, Inc., 322 U.S. 111, 124–131, 64 S.Ct. 851, 857–860, 88 L.Ed. 1170 (1944). Acting under its responsibility for adapting the broad provi-sions of the Act to differing workplaces, the Board asserted jurisdiction over a university for the first time in 1970. Cornell University, 183 N.L.R.B. 329 (1970). Within a year it had approved the formation of bar-gaining units composed of faculty members. **862C. W. Post Center, 189 N.L.R.B. 904 (1971).FN11 The Board reasoned that faculty members are “profes-sional employees” within the meaning of § 2(12) of the Act and therefore are entitled to the benefits of collective bargaining. 189 N.L.R.B., at 905; 29 U.S.C. § 152(12).FN12

FN11. The Board has suggested that Con-gress tacitly approved the formation of fac-ulty units in 1974, when the Act was amended to eliminate the exemption ac-corded to nonprofit hospitals. Although Congress appears to have agreed that non-profit institutions “affect commerce” under modern economic conditions, H.R.Rep.No.93–1051, p. 4 (1974); 120 Cong.Rec. 12938 (1974) (remarks of Sen. Williams), there is nothing to suggest that Congress considered the status of university faculties.





















FN12. The Act provides broadly that “em-ployees” have organizational and other rights. 29 U.S.C. § 157. Section 2(3) defines “employee” in general terms, 29 U.S.C. § 152(3); § 2(12) defines “professional em-ployee” in some detail, 29 U.S.C. § 152(12); and § 9(b)(1) prohibits the Board from cre-ating a bargaining unit that includes both professional and nonprofessional employees unless a majority of the professionals vote for inclusion, 29 U.S.C. § 159(b)(1).

Yeshiva does not contend that its faculty are not

professionals under the statute. But professionals, like other employees, may be exempted from coverage under the Act's exclusion*682 for “supervisors” who use independent judgment in overseeing other em-ployees in the interest of the employer,FN13 or under the judicially implied exclusion for “managerial em-ployees” who are involved in developing and enforc-ing employer policy. FN14 Both exemptions grow out of the same concern: That an employer is entitled to the undivided loyalty of its representatives. Beasley v. Food Fair of North Carolina, 416 U.S. 653, 661–662, 94 S.Ct. 2023, 2027–2028, 40 L.Ed.2d 443 (1974); see NLRB v. Bell Aerospace Co., 416 U.S. 267, 281–282, 94 S.Ct. 1757, 1765, 40 L.Ed.2d 134 (1974). Because the Court of Appeals found the faculty to be manage-rial employees, it did not decide the question of their supervisory status. In view of our agreement with that court's application of the managerial exclusion, we also need not resolve that issue of statutory interpre-tation.

FN13. An employee may be excluded if he has authority over any one of 12 enumerated personnel actions, including hiring and fir-ing. 29 U.S.C. §§ 152(3), 152(11), 164(a). The Board has held repeatedly that profes-sionals may be excluded as supervisors. E. g., University of Vermont, 223 N.L.R.B. 423, 426 (1976); Presbyterian Medical Center, 218 N.L.R.B. 1266, 1267–1269 (1975).

FN14. NLRB v. Bell Aerospace Co., 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974). The Board never has doubted that the man-agerial exclusion may be applied to profes-sionals in a proper case. E. g., Sutter Com-munity Hospitals of Sacramento, 227 N.L.R.B. 181, 193 (1976); see General Dy-

namics Corp., 213 N.L.R.B. 851, 857–858 (1974); Westinghouse Electric Corp., 113 N.L.R.B. 337, 339 (1955).

IV

[1] Managerial employees are defined as those who “ ‘formulate and effectuate management policies by expressing and making operative the decisions of their employer.’ ” NLRB v. Bell Aerospace Co., supra, at 288, 94 S.Ct., at 1768 (quoting Palace Laundry Dry Cleaning Corp., 75 N.L.R.B. 320, 323, n. 4 (1947)). These employees are “much higher in the managerial structure” than those explicitly mentioned by Con-gress, which “regarded [them] as so clearly outside the Act that no specific exclusionary provision was thought necessary.” 416 U.S., at 283, 94 S.Ct., at 1766. *683 Managerial employees must exercise dis-cretion within, or even independently of, established employer policy and must be aligned with manage-ment. See id., at 286–287, 94 S.Ct., at 1767–1768 (citing cases). Although the Board has established no firm criteria for determining when an employee is so aligned, normally an employee may be excluded as managerial only if he represents management interests by taking or recommending discretionary actions that effectively control or implement employer policy.FN15

FN15. E. g., Sutter Community Hospitals of Sacramento, supra, at 193; Bell Aerospace, 219 N.L.R.B. 384, 385–386 (1975) (on re-mand); General Dynamics Corp., supra, at 857; see NLRB v. Bell Aerospace Co., supra, at 274, 286–289, 94 S.Ct., at 1761–1762, 1767–1769.

The Board does not contend that the Yeshiva

faculty's decisionmaking is too insignificant**863 to be deemed managerial.FN16 Nor does it suggest that the role of the faculty is merely advisory and thus not managerial. FN17 Instead, it contends that the manage-rial exclusion cannot be applied in a straightforward fashion to professional employees because those em-ployees*684 often appear to be exercising managerial authority when they are merely performing routine job duties. The status of such employees, in the Board's view, must be determined by reference to the “align-ment with management” criterion. The Board argues that the Yeshiva faculty are not aligned with man-agement because they are expected to exercise “in-dependent professional judgment” while participating in academic governance, and because they are neither





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“expected to conform to management policies [nor] judged according to their effectiveness in carrying out those policies.” Because of this independence, the Board contends there is no danger of divided loyalty and no need for the managerial exclusion. In its view, union pressure cannot divert the faculty from adhering to the interests of the university, because the univer-sity itself expects its faculty to pursue professional values rather than institutional interests. The Board concludes that application of the managerial exclusion to such employees would frustrate the national labor policy in favor of collective bargaining.

FN16. The Board has found decisions of far less significance to the employer to be managerial when the affected employees were aligned with management. Swift & Co., 115 N.L.R.B. 752, 753 (1956) (procurement drivers who made purchases for employers); Firestone Tire & Rubber Co., 112 N.L.R.B. 571, 573 (1955) (production schedulers); Peter Kiewit Sons' Co., 106 N.L.R.B. 194, 196 (1953) (lecturers who indoctrinated new employees); Western Electric Co., 100 N.L.R.B. 420, 423 (1952) (personnel inves-tigators who made hiring recommendations); American Locomotive Co., 92 N.L.R.B. 115, 116–117 (1950) (buyers who made substan-tial purchases on employer's behalf).

FN17. The Union does argue that the facul-ty's authority is merely advisory. But the fact that the administration holds a rarely exer-cised veto power does not diminish the fac-ulty's effective power in policymaking and implementation. See nn. 4, 5, supra. The statutory definition of “supervisor” expressly contemplates that those employees who “ef-fectively . . . recommend” the enumerated actions are to be excluded as supervisory. 29 U.S.C. § 152(11). Consistent with the con-cern for divided loyalty, the relevant con-sideration is effective recommendation or control rather than final authority. That ra-tionale applies with equal force to the man-agerial exclusion.

This “independent professional judgment” test

was not applied in the decision we are asked to uphold. The Board's opinion relies exclusively on its previous faculty decisions for both legal and factual analysis.

221 N.L.R.B., at 1054. But those decisions only dimly foreshadow the reasoning now proffered to the Court. Without explanation, the Board initially announced two different rationales for faculty cases,FN18 *685 then quickly transformed them into a litany to be repeated in case after case: (i) faculty authority is collective, (ii) it is exercised in the faculty's own in-terest rather than in the interest of the university, and (iii) final authority rests with the board of trustees. Northeastern University, 218 N.L.R.B. 247, 250 (1975); University of Miami, 213 N.L.R.B. 634, 634 (1974); see Tusculum College, 199 N.L.R.B. 28, 30 (1972).FN19 In their arguments in this case, the Board's lawyers have abandoned the first and third branches of **864 this analysis,FN20 which in any event were flatly inconsistent with its precedents,FN21 and have trans-formed the second into a theory that does not appear clearly in any Board opinion. FN22

FN18. Two cases simply announced that faculty authority is neither managerial nor supervisory because it is exercised collec-tively. C. W. Post Center, 189 N.L.R.B. 904, 905 (1971); Fordham University, 193 N.L.R.B. 134, 135 (1971). The Board later acknowledged that “a genuine system of collegiality would tend to confound us,” but held that the modern university departs from that system because “ultimate authority” is vested in a board of trustees which neither attempts to convert the faculty into manage-rial entities nor advises them to advocate management interests. Adelphi University, 195 N.L.R.B. 639, 648 (1972). See Fairleigh Dickinson University, 227 N.L.R.B. 239, 241 (1976).

FN19. Citing these three factors, the Board concludes in each case that faculty are pro-fessional employees. It has never explained the reasoning connecting the premise with the conclusion, although an argument similar to that made by its lawyers in this case ap-pears in one concurring opinion. Northeast-ern University, 218 N.L.R.B., at 257 (opinion of Member Kennedy).

FN20. Although the Board has preserved the points in footnotes to its brief, it no longer contends that “collective authority” and “lack of ultimate authority” are legal rationales.


































They are now said to be facts which, respec-tively, “fortif[y]” the Board's view that fac-ulty members act in their own interest, and contradict the premise that the university is a “self-governing communit[y] of scholars.” Reply Brief for Petitioner in No. 78–857, p. 11, n. 8. Cf. n. 8, supra.

FN21. The “collective authority” branch has never been applied to supervisors who work through committees. E. g., Florida Southern College, 196 N.L.R.B. 888, 889 (1972). Nor was it thought to bar managerial status for employees who owned enough stock to give them, as a group, a substantial voice in the employer's affairs. See Sida of Hawaii, Inc., 191 N.L.R.B. 194, 195 (1971); Red and White Airway Cab Co., 123 N.L.R.B. 83, 85 (1959); Brookings Plywood Corp., 98 N.L.R.B. 794, 798–799 (1952). Ultimate authority, the third branch, has never been thought to be a prerequisite to supervisory or managerial status. Indeed, it could not be since every corporation vests that power in its board of directors.

FN22. We do not, of course, substitute counsel's post hoc rationale for the reasoning supplied by the Board itself. SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947). Because the first and third branches of the Board's analysis are insupportable, the Board's only colorable theory is the “interest of the employer” branch. The argument presented to us is an expanded and considerably refined version of that notion.

*686 V

[2] The controlling consideration in this case is that the faculty of Yeshiva University exercise au-thority which in any other context unquestionably would be managerial. Their authority in academic matters is absolute. They decide what courses will be offered, when they will be scheduled, and to whom they will be taught. They debate and determine teaching methods, grading policies, and matriculation standards. They effectively decide which students will be admitted, retained, and graduated. On Occasion their views have determined the size of the student body, the tuition to be charged, and the location of a

school. When one considers the function of a univer-sity, it is difficult to imagine decisions more manage-rial than these. To the extent the industrial analogy applies, the faculty determines within each school the product to be produced, the terms upon which it will be offered, and the customers who will be served.FN23

FN23. The record shows that faculty mem-bers at Yeshiva also play a predominant role in faculty hiring, tenure, sabbaticals, termi-nation and promotion. See supra, at 859–860, and n. 5. These decisions clearly have both managerial and supervisory char-acteristics. Since we do not reach the ques-tion of supervisory status, we need not rely primarily on these features of faculty au-thority.

The Board nevertheless insists that these deci-

sions are not managerial because they require the exercise of independent professional judgment. We are not persuaded by this argument. There may be some tension between the Act's exclusion of manage-rial employees and its inclusion of professionals, since most professionals in managerial positions continue to draw on their special skills and training. But we have been directed to no authority suggesting that that ten-sion can be resolved by reference to the “independent professional judgment” criterion*687 proposed in this case.FN24 Outside the university context, the Board routinely has applied the managerial and supervisory exclusions to professionals in executive positions **865 without inquiring whether their decisions were based on management policy rather than professional expertise.FN25 Indeed, the Board has twice implicitly rejected the contention that decisions based on pro-fessional judgment cannot be managerial.FN26 Since the Board does not suggest that the “independent professional judgment” test is to be limited to univer-sity faculty, its new approach would overrule sub silentio this body of Board precedent and could result in the indiscriminate recharacterization as covered employees of professionals working in supervisory and managerial capacities.

FN24. The Board has cited no case directly applying an “independent professional judgment” standard. On the related question of accountability for implementation of management policies, it cites only NLRB v. Fullerton Publishing Co., 283 F.2d 545, 550



















(CA9 1960), which held that a news editor “responsibly directed” his department so as to fall within the definition of a supervisor, 29 U.S.C. § 152(11). The court looked in part to accountability in rejecting the claim that the editor merely relayed assignments and thus was not “responsible” for directing em-ployees as required by the statute. The case did not involve the managerial exclusion and has no application to the issues before us.

FN25. See cases cited in nn. 13 and 14, su-pra. A strict “conformity to management policy” test ignores the dual nature of the managerial role, since managers by defini-tion not only conform to established policies but also exercise their own judgment within the range of those policies. See Bell Aero-space, 219 N.L.R.B., at 385 (quoting Eastern Camera & Photo Corp., 140 N.L.R.B. 569, 571 (1963)).

FN26. University of Chicago Library, 205 N.L.R.B. 220, 221–222, 229 (1973), enf'd, 506 F.2d 1402 (CA7 1974) (reversing an Administrative Law Judge's decision which had been premised on the “professional judgment” rationale); Sutter Community Hospitals of Sacramento, 227 N.L.R.B., at 193 (excluding as managerial a clinical spe-cialist who used interdisciplinary profes-sional skills to run a hospital department).

Moreover, the Board's approach would under-

mine the goal it purports to serve: To ensure that em-ployees who exercise discretionary authority on behalf of the employer will not *688 divide their loyalty between employer and union. In arguing that a faculty member exercising independent judgment acts pri-marily in his own interest and therefore does not rep-resent the interest of his employer, the Board assumes that the professional interests of the faculty and the interests of the institution are distinct, separable enti-ties with which a faculty member could not simulta-neously be aligned. The Court of Appeals found no justification for this distinction, and we perceive none. In fact, the faculty's professional interests—as applied to governance at a university like Yeshiva—cannot be separated from those of the institution.

In such a university, the predominant policy

normally is to operate a quality institution of higher learning that will accomplish broadly defined educa-tional goals within the limits of its financial resources. The “business” of a university is education, and its vitality ultimately must depend on academic policies that largely are formulated and generally are imple-mented by faculty governance decisions. See K. Mortimer & T. McConnell, Sharing Authority Effec-tively 23–24 (1978). Faculty members enhance their own standing and fulfill their professional mission by ensuring that the university's objectives are met. But there can be no doubt that the quest for academic excellence and institutional distinction is a “policy” to which the administration expects the faculty to adhere, whether it be defined as a professional or an institu-tional goal. It is fruitless to ask whether an employee is “expected to conform” to one goal or another when the two are essentially the same.FN27 See *689NLRB v. Scott Paper Co., 440 F.2d 625, 630 (CA1 1971) (tractor owner-operators); Deaton Truck Line, Inc. v. NLRB, 337 F.2d 697, 699 (CA5 1964) (same), cert. denied, 381 U.S. 903, 85 S.Ct. 1448, 14 L.Ed.2d 285 (1965).

FN27. At Yeshiva, administrative concerns with scarce resources and University-wide balance have led to occasional vetoes of faculty action. But such infrequent adminis-trative reversals in no way detract from the institution's primary concern with the aca-demic responsibilities entrusted to the fac-ulty. The suggestion that faculty interests depart from those of the institution with re-spect to salary and benefits is even less mer-itorious. The same is true of every supervi-sory or managerial employee. Indeed, there is arguably a greater community of interest on this point in the university than in industry, because the nature and quality of a university depend so heavily on the faculty attracted to the institution. B. Richman & R. Farmer, Leadership, Goals, and Power in Higher Education 258 (1974); see D. Bornheimer, G. Burns, & G. Dumke, The Faculty in Higher Education 174–175 (1973).

The problem of divided loyalty is particularly

acute for a university like Yeshiva, which depends on the professional judgment of its faculty to formulate and apply **866 crucial policies constrained only by necessarily general institutional goals. The university
























requires faculty participation in governance because professional expertise is indispensable to the formu-lation and implementation of academic policy.FN28 It may appear, as the Board contends, that the professor performing governance functions is less “accounta-ble” for departures from institutional policy than a middle-level industrial manager whose discretion is more confined. Moreover, traditional systems of col-legiality and tenure insulate the professor from some of the sanctions applied to an industrial manager who fails to adhere to company policy. But the analogy of the university to industry need not, and indeed cannot, be complete. It is clear that Yeshiva and like univer-sities must rely on their faculties to participate in the making and implementation of their policies.FN29 The large measure of independence*690 enjoyed by fac-ulty members can only increase the danger that di-vided loyalty will lead to those harms that the Board traditionally has sought to prevent.

FN28. See American Association for Higher Education, Faculty Participation in Aca-demic Governance 22–24 (1967); Bornheimer, Burns, & Dumke, supra, at 149–150; Kadish, The Theory of the Profes-sion and Its Predicament, 58 A.A.U.P.Bull. 120, 121 (1972). The extent to which Ye-shiva faculty recommendations are imple-mented is no “mere coincidence,” as Mr. Justice BRENNAN's dissent suggests. Post, at 872. Rather this is an inevitable charac-teristic of the governance structure adopted by universities like Yeshiva.

FN29. The dissent concludes, citing several secondary authorities, that the modern uni-versity has undergone changes that have shifted “the task of operating the university enterprise” from faculty to administration. Post, at 872–873. The shift, if it exists, is neither universal nor complete. See K. Mor-timer & T. McConnell, Sharing Authority Effectively 27–28, 158–162, 164–165 (1978). In any event, our decision must be based on the record before us. Nor can we decide this case by weighing the probable benefits and burdens of faculty collective bargaining. See post, at 872–874. That, after all, is a matter for Congress, not this Court.

We certainly are not suggesting an application of

the managerial exclusion that would sweep all pro-fessionals outside the Act in derogation of Congress' expressed intent to protect them. The Board has rec-ognized that employees whose decisionmaking is limited to the routine discharge of professional duties in projects to which they have been assigned cannot be excluded from coverage even if union membership arguably may involve some divided loyalty.FN30 Only if an employee's activities fall outside the scope of the duties routinely performed by similarly situated pro-fessionals will he be found aligned with management. We think these decisions accurately capture the intent of Congress, and that they provide an appropriate starting point for analysis in cases involving profes-sionals alleged to be managerial.FN31

FN30. For this reason, architects and engi-neers functioning as project captains for work performed by teams of professionals are deemed employees despite substantial planning responsibility and authority to di-rect and evaluate team members. See Gen-eral Dynamics Corp., 213 N.L.R.B., at 857–858; Wurster, Bernardi & Emmons, Inc., 192 N.L.R.B. 1049, 1051 (1971); Skidmore, Owings & Merrill, 192 N.L.R.B. 920, 921 (1971). See also Doctors' Hospital of Modesto, Inc., 183 N.L.R.B. 950, 951–952 (1970), enf'd, 489 F.2d 772 (CA9 1973) (nurses); National Broadcasting Co., 160 N.L.R.B. 1440, 1441 (1966) (broadcast newswriters). In the health-care context, the Board asks in each case whether the deci-sions alleged to be managerial or supervisory are “incidental to” or “in addition to” the treatment of patients, a test Congress ex-pressly approved in 1974. S.Rep. No. 93–766, p. 6 (1974), U.S.Code Cong. & Admin.News, 1974, p. 3946.

FN31. We recognize that this is a starting point only, and that other factors not present here may enter into the analysis in other contexts. It is plain, for example, that pro-fessors may not be excluded merely because they determine the content of their own courses, evaluate their own students, and supervise their own research. There thus may be institutions of higher learning unlike Ye-shiva where the faculty are entirely or pre-dominantly nonmanagerial. There also may



















be faculty members at Yeshiva and like universities who properly could be included in a bargaining unit. It may be that a rational line could be drawn between tenured and untenured faculty members, depending upon how a faculty is structured and operates. But we express no opinion on these questions, for it is clear that the unit approved by the Board was far too broad.

*691 **867 VI

[3] Finally, the Board contends that the deference due its expertise in these matters requires us to reverse the decision of the Court of Appeals. The question we decide today is a mixed one of fact and law. But the Board's opinion may be searched in vain for relevant findings of fact. The absence of factual analysis ap-parently reflects the Board's view that the managerial status of particular faculties may be decided on the basis of conclusory rationales rather than examination of the facts of each case. The Court of Appeals took a different view, and determined that the faculty of Yeshiva University, “in effect, substantially and per-vasively operat[e] the enterprise.” 582 F.2d at 698. We find no reason to reject this conclusion. As our deci-sions consistently show, we accord great respect to the expertise of the Board when its conclusions are ra-tionally based on articulated facts and consistent with the Act. Beth Israel Hospital v. NLRB, 437 U.S. 483, 501, 98 S.Ct. 2463, 2473, 57 L.Ed.2d 370 (1978). In this case, we hold that the Board's decision satisfies neither criterion.

Affirmed. Mr. Justice BRENNAN, with whom Mr. Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN join, dissenting.

In holding that the full-time faculty members of Yeshiva University are not covered employees under the National Labor Relations Act, but instead fall within the exclusion for *692 supervisors and mana-gerial employees, the Court disagrees with the deter-mination of the National Labor Relations Board. Be-cause I believe that the Board's decision was neither irrational nor inconsistent with the Act, I respectfully dissent.

I Ten years ago the Board first asserted jurisdiction

over private nonprofit institutions of higher education.

Cornell University, 183 N.L.R.B. 329 (1970). Since then, the Board has often struggled with the Procrus-tean task of attempting to implement in the altogether different environment of the academic community the broad directives of a statutory scheme designed for the bureaucratic industrial workplace. See, e. g., Adelphi University, 195 N.L.R.B. 639, 648 (1972). Resolution of the particular issue presented in this case—whether full-time faculty members are covered “employees” under the Act—is but one of several challenges con-fronting the Board in this “unchartered area.” C. W. Post Center, 189 N.L.R.B. 904, 905 (1971).

Because at the time of the Act's passage Congress did not contemplate its application to private univer-sities, it is not surprising that the terms of the Act itself provide no answer to the question before us. Indeed, the statute evidences significant tension as to con-gressional intent in this respect by its explicit inclu-sion, on the one hand, of “professional employees” under § 2(12), 29 U.S.C. § 152(12), and its exclusion, on the other, of “supervisors” under § 2(11), 29 U.S.C. § 152(11). Similarly, when transplanted to the aca-demic arena, the Act's extension of coverage to pro-fessionals under § 2(12) cannot easily be squared with the Board-created exclusion of “managerial employ-ees” in the industrial context. See generally NLRB v. Bell Aerospace Co., 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974).

Primary authority to resolve these conflicts and to adapt the Act to the changing patterns of industrial relations was *693 entrusted to the Board, not to the judiciary. NLRB v. Weingarten, Inc., 420 U.S. 251, 266, 95 S.Ct. 959, 969, 43 L.Ed.2d 171 (1975). The Court has often admonished that “[t]he ultimate problem is the balancing of the conflicting legitimate interests. The function of striking that balance to ef-fectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.” **868 NLRB v. Truck Drivers, 353 U.S. 87, 96, 77 S.Ct. 643, 648, 1 L.Ed.2d 676 (1957). Accord, Beth Israel Hospital v. NLRB, 437 U.S. 483, 501, 98 S.Ct. 2463, 2473, 57 L.Ed.2d 370 (1978); NLRB v. Erie Resistor Corp., 373 U.S. 221, 235–236, 83 S.Ct. 1139, 1149, 10 L.Ed.2d 308 (1963). Through its cumulative experience in dealing with labor-management relations in a variety of industrial and nonindustrial settings, it is the Board that has developed the expertise to determine whether






























coverage of a particular category of employees would further the objectives of the Act.FN1 And through its continuous oversight of industrial conditions, it is the Board that is best able to formulate and adjust national labor policy to conform to the realities of industrial life. Accordingly, the judicial role is limited; a court may not substitute its own judgment for that of the Board. The Board's decision may be reviewed for its rationality and its consistency with the *694 Act, but once these criteria are satisfied, the order must be enforced. See Beth Israel Hospital v. NLRB, supra, 437 U.S., at 501, 98 S.Ct., at 2473.

FN1. “It is not necessary in this case to make a completely definitive limitation around the term ‘employee.’ That task has been assigned primarily to the agency created by Congress to administer the Act. Determination of ‘where all the conditions of the relation re-quire protection’ involves inquiries for the Board charged with this duty. Everyday ex-perience in the administration of the statute gives it familiarity with the circumstances and backgrounds of employment relation-ships in various industries, with the abilities and needs of the workers for self organiza-tion and collective action, and with the adaptability of collective bargaining for the peaceful settlement of their disputes with their employers. The experience thus ac-quired must be brought frequently to bear on the question who is an employee under the Act. Resolving that question . . . ‘belongs to the usual administrative routine’ of the Board.” NLRB v. Hearst Publications, Inc., 322 U.S. 111, 130, 64 S.Ct. 851, 860, 88 L.Ed. 1170 (1944). Accord, NLRB v. Sev-en-Up Bottling Co., 344 U.S. 344, 349, 73 S.Ct. 287, 290, 97 L.Ed. 377 (1953).

II

In any event, I believe the Board reached the correct result in determining that Yeshiva's full-time faculty is covered under the NLRA. The Court does not dispute that the faculty members are “professional employees” for the purposes of collective bargaining under § 2(12), but nevertheless finds them excluded from coverage under the implied exclusion for man-agerial employees.” FN2 The Court explains that “[t]he controlling consideration in this case is that the faculty of Yeshiva University exercise authority which in any

other context unquestionably would be managerial.” Ante, at 864. But the academic community is simply not “any other context.” The Court purports to recog-nize that there are fundamental differences between the authority structures of the typical industrial and academic institutions which preclude the blind trans-planting of principles developed in one arena onto the other; yet it nevertheless ignores those very differ-ences in concluding that Yeshiva's faculty is excluded from the Act's coverage.

FN2. Because the Court concludes that Ye-shiva's full-time faculty are managerial em-ployees, it finds it unnecessary to reach the University's contention that the faculty are also excluded as “supervisors” under § 2 (11). Ante, at 862. My discussion therefore focuses on the question of the faculty's managerial status, but I would resolve the issue of their supervisory status in a similar fashion.

As reflected in the legislative history of the

Taft-Hartley Amendments of 1947, the concern be-hind the exclusion of supervisors under § 2(11) of the Act is twofold. On the one hand, Congress sought to protect the rank-and-file employees from being un-duly influenced in their selection of leaders by the presence of management representatives in their un-ion. “If supervisors were members of and active in the union which represented the employees they super-vised it could be possible*695 for the supervisors to obtain and retain positions of power in the union by reason of their authority over their fellow union members while working on the job.” NLRB v. Met-ropolitan Life Ins. Co., 405 F.2d 1169, 1178 (CA2 1968). In addition, Congress wanted to ensure that employers would not be deprived of the **869 undi-vided loyalty of their supervisory foremen. Congress was concerned that if supervisors were allowed to affiliate with labor organizations that represented the rank and file, they might become accountable to the workers, thus interfering with the supervisors' ability to discipline and control the employees in the interest of the employer.FN3

FN3. See H.R.Rep. No. 245, 80th Cong., 1st Sess., 14 (1947):

“The evidence before the committee shows clearly that unionizing supervisors under
















the Labor Act is inconsistent with the purpose of the act . . . . It is inconsistent with the policy of Congress to assure to workers freedom from domination or con-trol by their supervisors in their organizing and bargaining activities. It is inconsistent with our policy to protect the rights of employers; they, as well as workers, are entitled to loyal representatives in the plants, but when the foremen unionize, even in a union that claims to be ‘inde-pendent’ of the union of the rank and file, they are subject to influence and control by the rank and file union, and, instead of their bossing the rank and file, the rank and file bosses them.”

See also S.Rep. No. 105, 80th Cong., 1st Sess., 3–5 (1947).

Identical considerations underlie the exclusion of

managerial employees. See ante, at 862. Although a variety of verbal formulations have received judicial approval over the years, see Retail Clerks Interna-tional Assn. v. NLRB, 125 U.S.App.D.C. 63, 65–66, 366 F.2d 642, 644–645 (1966), this Court has recently sanctioned a definition of “managerial employee” that comprises those who “ ‘formulate and effectuate management policies by expressing and making op-erative the decisions of their employer.’ ” See NLRB v. Bell Aerospace Co., 416 U.S., at 288, 94 S.Ct. at 1768. The touchstone of managerial status is thus an alliance with management, and the pivotal inquiry is whether the employee in performing his *696 duties represents his own interests or those of his employer.FN4 If his actions are undertaken for the purpose of implement-ing the employer's policies, then he is accountable to management and may be subject to conflicting loyal-ties. But if the employee is acting only on his own behalf and in his own interest, he is covered under the Act and is entitled to the benefits of collective bar-gaining.

FN4. Section 2(11) of the Act requires, as a condition of supervisory status, that authority be exercised “in the interest of the employ-er.” 29 U.S.C. § 152(11). See also NLRB v. Master Stevedores Assn., 418 F.2d 140 (CA5 1969); International Union of United Brew-ery Workers v. NLRB, 111 U.S.App.D.C. 383, 298 F.2d 297 (1961).

After examining the voluminous record in this

case,FN5 the Board determined that the faculty at Ye-shiva exercised its decisionmaking authority in its own interest rather than “in the interest of the em-ployer.” 221 N.L.R.B. 1053, 1054 (1975). The Court, in contrast, can perceive “no justification for this dis-tinction” and concludes that the faculty's interests “cannot be separated from those of the institution.” Ante, at 865. FN6 But the Court's vision is clouded by its failure fully to discern and comprehend the nature of the faculty's role in university governance.

FN5. The Board held hearings over a 5-month period and compiled a record con-taining more than 4,600 pages of testimony and 200 exhibits.

FN6. The Court thus determines that all of Yeshiva's full-time faculty members are managerial employees, even though their role in university decisionmaking is limited to the professional recommendations of the faculty acting as a collective body, and even though they supervise and manage no per-sonnel other than themselves. The anomaly of such a result demonstrates the error in extending the managerial exclusion to a class of essentially rank-and-file employees who do not represent the interests of management and who are not subject to the danger of conflicting loyalties which motivated the adoption of that exemption.

Unlike the purely hierarchical decisionmaking

structure that prevails in the typical industrial organ-ization, the bureaucratic foundation of most “mature” universities is characterized by dual authority systems. The primary decisional *697 network is hierarchical in nature: Authority is lodged in the administration, and a formal chain of command runs from a lay gov-erning board down through university officers to in-dividual**870 faculty members and students. At the same time, there exists a parallel professional net-work, in which formal mechanisms have been created to bring the expertise of the faculty into the decisionmaking process. See J. Baldridge, Power and Conflict in the University 114 (1971); Finkin, The NLRB in Higher Education, 5 U.Toledo L.Rev. 608, 614–618 (1974).

















What the Board realized—and what the Court fails to apprehend—is that whatever influence the faculty wields in university decisionmaking is at-tributable solely to its collective expertise as profes-sional educators, and not to any managerial or super-visory prerogatives. Although the administration may look to the faculty for advice on matters of profes-sional and academic concern, the faculty offers its recommendations in order to serve its own inde-pendent interest in creating the most effective envi-ronment for learning, teaching, and scholarship.FN7 And while the administration may attempt to defer to the faculty's competence whenever possible, it must and does apply its own distinct perspective to those recommendations, a perspective that is based on fiscal *698 and other managerial policies which the faculty has no part in developing. The University always retains the ultimate decisionmaking authority, see ante, at 858–859, and the administration gives what weight and import to the faculty's collective judgment as it chooses and deems consistent with its own per-ception of the institution's needs and objectives.FN8

FN7. As the Board has recognized, due to the unique nature of their work, professional employees will often make recommendations on matters that are of great importance to management. But their desire to exert influ-ence in these areas stems from the need to maintain their own professional standards, and this factor—common to all profession-als—should not, by itself, preclude their in-clusion in a bargaining unit. See Westing-house Electric Corp., 113 N.L.R.B. 337, 339–340 (1955). In fact, Congress clearly recognized both that professional employees consistently exercise independent judgment and discretion in the performance of their duties, see 29 U.S.C. § 152(12), and that they have a significant interest in maintaining certain professional standards, see S.Rep. No. 105, 80th Cong., 1st Sess., 11 (1947). Yet Congress specifically included profes-sionals within the Act's coverage. See NLRB v. Bell Aerospace Co., 416 U.S. 267, 298, 94 S.Ct. 1757, 1773, 40 L.Ed.2d 134 (1974) (WHITE, J., dissenting in part).

FN8. One must be careful not to overvalue the significance of the faculty's influence on academic affairs. As one commentator has

noted, “it is not extraordinary for employees to seek to exert influence over matters em-bedded in an employment relationship for which they share a concern, or that man-agement would be responsive to their strongly held desires.” Finkin, The NLRB in Higher Education, 5 U.Toledo L.Rev. 608, 616 (1974). Who, after all, is better suited than the faculty to decide what courses should be offered, how they should be taught, and by what standards their students should be graded? Employers will often attempt to defer to their employees' suggestions, par-ticularly where—as here—those recom-mendations relate to matters within the unique competence of the employees.

Moreover, insofar as faculty members are given some say in more traditional mana-gerial decisions such as the hiring and promotion of other personnel, such discre-tion does not constitute an adequate basis for the conferral of managerial or super-visory status. Indeed, in the typical indus-trial context, it is not uncommon for the employees' union to be given the exclusive right to recommend personnel to the em-ployer, and these hiring-hall agreements have been upheld even where the union requires a worker to pass a un-ion-administered skills test as a condition of referral. See, e. g., Local 42 (Catalytic Constr. Co.), 164 N.L.R.B. 916 (1967); see generally Teamsters v. NLRB, 365 U.S. 667, 81 S.Ct. 835, 6 L.Ed.2d 11 (1961).

The premise of a finding of managerial status is a

determination that the excluded employee is acting on behalf of management and is answerable to a higher authority in the exercise of his responsibilities. The Board has consistently implemented this require-ment—both for professional and non-professional employees—by conferring managerial status only upon those employees “whose interests are closely aligned with management as true representatives of management.” (Emphasis added.) E. g., Sutter Com-munity Hospitals of Sacramento, 227 N.L.R.B. 181, 193 (1976); *699Bell Aerospace, 219 N.L.R.B. 384, 385 (1975); **871General Dynamics Corp., 213 N.L.R.B. 851, 857 (1974).FN9 Only if the employee is expected to conform to management policies and is






















judged by his effectiveness in executing those policies does the danger of divided loyalties exist.

FN9. The Board has also explained that the ability of the typical professional employee to influence company policy does not bestow managerial authority:

“Work which is based on professional competence necessarily involves a con-sistent exercise of discretion and judgment, else professionalism would not be in-volved. Nevertheless, professional em-ployees plainly are not the same as man-agement employees either by definition or in authority, and managerial authority is not vested in professional employees merely by virtue of their professional sta-tus, or because work performed in that status may have a bearing on company direction.” General Dynamics Corp., 213 N.L.R.B., at 857–858.

Yeshiva's faculty, however, is not accountable to

the administration in its governance function, nor is any individual faculty member subject to personal sanction or control based on the administration's as-sessment of the worth of his recommendations. When the faculty, through the schools' advisory committees, participates in university decisionmaking on subjects of academic policy, it does not serve as the “repre-sentative of management.” FN10 Unlike industrial su-pervisors *700 and managers, university professors are not hired to “make operative” the policies and decisions of their employer. Nor are they retained on the condition that their interests will correspond to those of the university administration. Indeed, the notion that a faculty member's professional compe-tence could depend on his undivided loyalty to man-agement is antithetical to the whole concept of aca-demic freedom. Faculty members are judged by their employer on the quality of their teaching and schol-arship, not on the compatibility of their advice with administration policy. Board Member Kennedy aptly concluded in his concurring opinion in Northeastern University, 218 N.L.R.B. 247, 257 (1975) (footnote omitted):

FN10. Where faculty members actually do serve as management's representatives, the Board has not hesitated to exclude them from

the Act's coverage as managerial or super-visory personnel. Compare University of Vermont, 223 N.L.R.B. 423 (1976) (exclud-ing department chairmen as supervisors), and University of Miami, 213 N.L.R.B. 634 (1974) (excluding deans as supervisors), with Northeastern University, 218 N.L.R.B. 247 (1975) (department chairmen included within bargaining unit because they act pri-marily as instruments of the faculty), and Fordham University, 193 N.L.R.B. 134 (1971) (including department chairmen be-cause they are considered to be representa-tives of the faculty rather than of the admin-istration). In fact, the bargaining unit ap-proved by the Board in the present case ex-cluded deans, acting deans, directors, and principal investigators of research and train-ing grants, all of whom were deemed to ex-ercise supervisory or managerial authority. See ante, at 870, n. 7.

“[T]he influence which the faculty exercises in many areas of academic governance is insufficient to make them ‘managerial’ employees. Such influ-ence is not exercised ‘for management’ or ‘in the interest of the employer,’ but rather is exercised in their own professional interest. The best evidence of this fact is that faculty members are generally not held accountable by or to the administration for their faculty governance functions. Faculty criticism of administration policies, for example, is viewed not as a breach of loyalty, but as an exercise in ac-ademic freedom. So, too, intervention by the uni-versity administration in faculty deliberations would most likely be considered an infringement upon academic freedoms. Conversely, university administrations rarely consider themselves bound by faculty recommendations.”

It is no answer to say, as does the Court, that

Yeshiva's faculty and administration are one and the same because their interests tend to coincide. In the first place, the National Labor Relations Act does not condition its coverage on an antagonism of interests between the employer and the employee.*701 FN11 The mere coincidence of interests**872 on many issues has never been thought to abrogate the right to col-lective bargaining on those topics as to which that coincidence is absent. Ultimately, the performance of an employee's duties will always further the interests

















of the employer, for in no institution do the interests of labor and management totally diverge. Both desire to maintain stable and profitable operations, and both are committed to creating the best possible product within existing financial constraints. Differences of opinion and emphasis may develop, however, on exactly how to devote the institution's resources to achieve those goals. When these disagreements surface, the national labor laws contemplate their resolution through the peaceful process of collective bargaining. And in this regard, Yeshiva University stands on the same footing as any other employer.

FN11. Nor does the frequency with which an employer acquiesces in the recommendations of its employees convert them into managers or supervisors. See Stop & Shop Cos., Inc. v. NLRB, 548 F.2d 17, 19 (CA1 1977). Rather, the pertinent inquiries are who retains the ultimate decisionmaking authority and in whose interest the suggestions are offered. A different test could permit an employer to deny its employees the benefits of collective bargaining on important issues of wages, hours, and other conditions of employment merely by consulting with them on a host of less significant matters and accepting their advice when it is consistent with manage-ment's own objectives.

Moreover, the congruence of interests in this case

ought not to be exaggerated. The university admin-istration has certain economic and fiduciary respon-sibilities that are not shared by the faculty, whose primary concerns are academic and relate solely to its own professional reputation. The record evinces nu-merous instances in which the faculty's recommenda-tions have been rejected by the administration on account of fiscal constraints or other managerial poli-cies. Disputes have arisen between Yeshiva's faculty and administration on such fundamental issues as the hiring, tenure, promotion, retirement, and dismissal of faculty members, *702 academic standards and cred-its, departmental budgets, and even the faculty's choice of its own departmental representative.FN12 The very fact that Yeshiva's faculty has voted for the Un-ion to serve as its representative in future negotiations with the administration indicates that the faculty does not perceive its interests to be aligned with those of management. Indeed, on the precise topics which are specified as mandatory subjects of collective bar-

gaining—wages, hours, and other terms and condi-tions of employment FN13—the interests of teacher and administrator are often diametrically opposed.

FN12. See, e. g., App. 740–742 (faculty hir-ing); id., at 232–233, 632, 667 (tenure); id., at 194, 620, 742–743 (promotion); id., at 713, 1463–1464 (retirement); id., at 241 (dismis-sal); id., at 362 (academic credits); id., at 723–724, 1469–1470 (cutback in depart-mental budget leading to loss of accredita-tion); id., at 410, 726–727 (election of de-partment chairman and representative).

FN13. See 29 U.S.C. § 158(d).

Finally, the Court's perception of the Yeshiva

faculty's status is distorted by the rose-colored lens through which it views the governance structure of the modern-day university. The Court's conclusion that the faculty's professional interests are indistinguisha-ble from those of the administration is bottomed on an idealized model of collegial decisionmaking that is a vestige of the great medieval university. But the uni-versity of today bears little resemblance to the “community of scholars” of yesteryear.FN14 **873 Education has become *703 “big business,” and the task of operating the university enterprise has been transferred from the faculty to an autonomous ad-ministration, which faces the same pressures to cut costs and increase efficiencies that confront any large industrial organization.FN15 The past decade of budg-etary cutbacks, declining enrollments, reductions in faculty appointments, curtailment of academic pro-grams, and increasing calls for accountability to alumni and other special interest groups has only added to the erosion of the faculty's role in the insti-tution's decisonmaking process. FN16

FN14. See generally J. Brubacher & W. Rudy, Higher Education in Transition: A History of American Colleges and Universi-ties, 1636–1976 (3d ed. 1976). In one of its earliest decisions in this area, the Board recognized that the governance structure of the typical modern university does not fit the mold of true collegiality in which authority rests with a peer group of scholars. Adelphi University, 195 N.L.R.B. 639, 648 (1972). Accord, New York University, 205 N.L.R.B. 4, 5 (1973). Even the concept of “shared




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authority,” in which university decisionmaking is seen as the joint respon-sibility of both faculty and administration, with each exerting a dominant influence in its respective sphere of expertise, has been found to be “an ideal rather than a widely adopted practice.” K. Mortimer & T. McConnell, Sharing Authority Effectively 4 (1978). The authors conclude:

“Higher education is in the throes of a shift from informal and consensual judgments to authority based on formal criteria. . . . There have been changes in societal and legislative expectations about higher edu-cation, an increase in external regulation of colleges and universities, an increase in emphasis on managerial skills and the technocratic features of modern manage-ment, and a greater codification of internal decisionmaking procedures. These changes raise the question whether exist-ing statements of shared authority provide adequate guidelines for internal govern-ance.” Id., at 269.

FN15. In 1976–1977, the total expenditures of institutions of higher education in the United States exceeded $42 billion. National Center for Education Statistics, Digest of Education Statistics 137 (Table 133) (1979). In the same year, Yeshiva University, a pri-vate institution, received over $34 million in revenues from the Federal Government. Id., at 132 (Table 127).

FN16. University faculty members have been particularly hard hit by the current financial squeeze. Because of inflation, the purchasing power of the faculty's salary has declined an average of 2.9% every year since 1972. Real salaries are thus 13.6% below the 1972 lev-els. Hansen, An Era of Continuing Decline: Annual Report on the Economic Status of the Profession, 1978–1979, 65 Academe: Bulle-tin of the American Association of Univer-sity Professors 319, 323–324 (1979). More-over, the faculty at Yeshiva has fared even worse than most. Whereas the average salary of a full professor at a comparable institution is $31,100, a full professor at Yeshiva aver-

ages only $27,100. Id., at 334, 348. In fact, a severe financial crisis at the University in 1971–1972 forced the president to order a freeze on all faculty promotions and pay in-creases. App. 1459.

*704 These economic exigencies have also ex-

acerbated the tensions in university labor relations, as the faculty and administration more and more fre-quently find themselves advocating conflicting posi-tions not only on issues of compensation, job security, and working conditions, but even on subjects formerly thought to be the faculty's prerogative. In response to this friction, and in an attempt to avoid the strikes and work stoppages that have disrupted several major universities in recent years, many faculties have en-tered into collective-bargaining relationships with their administrations and governing boards.FN17 An even greater number of schools—Yeshiva among them—have endeavored to negotiate and compromise their differences informally, by establishing avenues for faculty input into university decisions on matters of professional concern.

FN17. As of January 1979, 80 private and 302 public institutions of higher education had engaged in collective bargaining with their faculties, and over 130,000 academic personnel had been unionized. National Center for the Study of Collective Bargaining in Higher Education, Directory of Faculty Contracts and Bargaining Agents in Institu-tions of Higher Education i–ii (1979). Alt-hough the NLRA is not applicable to any public employer, see 29 U.S.C. § 152(2), as of 1976, 22 States had enacted legislation granting faculties at public institutions the right to unionize and requiring public em-ployers to bargain with duly constituted bargaining agents. Mortimer & McConnell, supra, n. 14, at 53. See also Livingston & Christensen, State and Federal Regulation of Collective Negotiations in Higher Education, 1971 Wis.L.Rev. 91, 102.

The upsurge in the incidence of collective bargaining has generally been attributed to the faculty's desire to use the process as a countervailing force against increased administrative power and to ensure that the ideals of the academic community are ac-

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tually practiced. As the Carnegie Com-mission found, “[u]nionization for [facul-ty] is more a protective than an aggressive act, more an effort to preserve the status quo than to achieve a new position of in-fluence and affluence. . . .” Carnegie Commission on Higher Education, Gov-ernance of Higher Education 40 (1973). See also Mortimer & McConnell, supra, n. 14, at 56; Lindeman, The Five Most Cited Reasons for Faculty Unionization, 102 Intellect 85 (1973); Nielsen & Polishook, Collective Bargaining and Beyond, The Chronicle of Higher Education 7 (May 21, 1979).

*705 Today's decision, however, threatens to

eliminate much of the administration's incentive to resolve its disputes with the faculty through open discussion and mutual agreement. By its overbroad and unwarranted interpretation of the managerial exclusion,**874 the Court denies the faculty the pro-tections of the NLRA and, in so doing, removes whatever deterrent value the Act's availability may offer against unreasonable administrative conduct.FN18 Rather than promoting the Act's objective of funneling dissension between employers and employees into collective bargaining, the Court's decision undermines that goal and contributes to the possibility that “re-curring disputes [will] fester outside the negotiation process until strikes or other forms of economic war-fare occur.” Ford Motor Co. v. NLRB, 441 U.S. 488, 499, 99 S.Ct. 1842, 1850, 60 L.Ed.2d 420 (1979).

FN18. The Carnegie Commission, in con-cluding that “faculty members should have the right to organize and to bargain collec-tively, if they so desire,” Carnegie Commis-sion on Higher Education, supra, at 43, ob-served: “We may be involved in a long-term period of greater social conflict in society and greater tension on campus. If so, it may be better to institutionalize this conflict through collective bargaining than to have it manifest itself with less restraint. Collective bargaining does provide agreed-upon rules of behavior, contractual understandings, and mechanisms for dispute settlement and grievance handling that help to manage con-flict.” Id., at 51.

III In sum, the Board analyzed both the essential

purposes underlying the supervisory and managerial exclusions and the nature of the governance structure at Yeshiva University. Relying on three factors that attempt to encapsulate the fine distinction between those professional employees who are entitled to the NLRA's protections and those whose managerial re-sponsibilities require their exclusion,FN19 the Board concluded *706 that Yeshiva's full-time faculty qual-ify as the former rather than the latter. I believe the Board made the correct determination. But even were I to have reservations about the specific result reached by the Board on the facts of this case, I would certainly have to conclude that the Board applied a proper mode of analysis to arrive at a decision well within the zone of reasonableness. Accordingly, in light of the defer-ence due the Board's determination in this complex area, I would reverse the judgment of the Court of Appeals.

FN19. Contrary to the Court's assertion, see ante, at 863, the Board has not abandoned the “collective authority” and “ultimate author-ity” branches of its analysis. See Reply Brief for Petitioner in No. 78–857, pp. 11–12, n. 8. Although the “interest/alignment analysis” rationale goes to the heart of the basis for the managerial and supervisory exclusions and therefore provides the strongest support for the Board's determination, the other two ra-tionales are significant because they high-light two aspects of the university decisionmaking process relevant to the Board's decision: That the faculty's influence is exercised collectively—and only collec-tively—indicates that the faculty's recom-mendations embody the views of the rank and file rather than those of a select group of persons charged with formulating and im-plementing management policies. Similarly, that the administration retains ultimate au-thority merely indicates that a true system of collegiality is simply not the mode of gov-ernance at Yeshiva University.

U.S.,1980. N.L.R.B. v. Yeshiva University 444 U.S. 672, 100 S.Ct. 856, 103 L.R.R.M. (BNA) 2526, 63 L.Ed.2d 115, 87 Lab.Cas. P 11,819





END OF DOCUMENT



2.

POINT PARK UNIVERSITY V. NLRB

457 F.3d 42 (D.C. CIR. 2006)

Page 1

457 F.3d 42, 180 L.R.R.M. (BNA) 2072, 372 U.S.App.D.C. 396, 153 Lab.Cas. P 10,703, 211 Ed. Law Rep. 573 (Cite as: 457 F.3d 42, 372 U.S.App.D.C. 396)


United States Court of Appeals, District of Columbia Circuit.

POINT PARK UNIVERSITY, Petitioner v.

NATIONAL LABOR RELATIONS BOARD, Respondent

Newspaper Guild of Pittsburgh/Communications Workers of America, Local 38061, Intervenor.

Nos. 05-1060, 05-1081. Argued Jan. 17, 2006. Decided Aug. 1, 2006.

Background: University petitioned for judicial re-view of decisions in which National Labor Relations Board (NLRB) ruled that university's full-time faculty could form union and that university committed unfair labor practice under National Labor Relations Act (NLRA) by refusing to recognize and bargain with faculty's union. NLRB filed cross-application for enforcement. Holdings: The Court of Appeals, Griffith, Circuit Judge, held that: (1) NLRB's failure to explain basis for determination that university's faculty members could form union warranted remand for further proceedings, and (2) findings underlying NLRB's decision not to reopen and supplement the administrative record were not supported by substantial evidence.

Petition for review granted and case remanded.

West Headnotes

[1] Labor and Employment 231H 979 231H Labor and Employment 231HXII Labor Relations 231HXII(A) In General 231Hk977 Employees Within Acts 231Hk979 k. Particular Persons. Most Cited Cases

In determining whether faculty of a particular college or university are managerial employees ex-cluded from protection of National Labor Relations Act (NLRA) or professional employees covered by NLRA, National Labor Relations Board (NLRB) must perform an exacting analysis of the particular institu-tion and faculty, looking beyond self-serving descrip-tions of the role of faculty or the administration of a university. National Labor Relations Act, § 1 et seq., 29 U.S.C.A. § 151 et seq. [2] Labor and Employment 231H 982 231H Labor and Employment 231HXII Labor Relations 231HXII(A) In General 231Hk977 Employees Within Acts 231Hk982 k. Supervisory Personnel. Most Cited Cases

How a faculty is structured and operates is the key inquiry in determining whether faculty of college or university are managerial employees excluded from protection of National Labor Relations Act (NLRA) or professional employees covered by NLRA. National Labor Relations Act, § 1 et seq., 29 U.S.C.A. § 151 et seq. [3] Labor and Employment 231H 982 231H Labor and Employment 231HXII Labor Relations 231HXII(A) In General 231Hk977 Employees Within Acts 231Hk982 k. Supervisory Personnel. Most Cited Cases

In deciding whether faculty members of college or university are managerial employees under Na-tional Labor Relations Act (NLRA), National Labor Relations Board (NLRB) must determine whether faculty so controls the academic affairs of the school that its interests are aligned with those of the univer-sity, or whether faculty members occupy a role more like that of the professional employee in the pyramidal hierarchies of private industries. National Labor Re-lations Act, § 1 et seq., 29 U.S.C.A. § 151 et seq.

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[4] Labor and Employment 231H 979 231H Labor and Employment 231HXII Labor Relations 231HXII(A) In General 231Hk977 Employees Within Acts 231Hk979 k. Particular Persons. Most Cited Cases

In determining whether faculty members of col-lege or university are managerial employees excluded from protection of National Labor Relations Act (NLRA) or professional employees covered by NLRA, National Labor Relations Board (NLRB) must consider the degree of faculty control over academic matters such as curriculum, course schedules, teaching methods, grading policies, matriculation standards, admission standards, size of the student body, tuition to be charged, and location of the school. National Labor Relations Act, § 1 et seq., 29 U.S.C.A. § 151 et seq. [5] Administrative Law and Procedure 15A

502 15A Administrative Law and Procedure 15AIV Powers and Proceedings of Administrative Agencies, Officers and Agents 15AIV(D) Hearings and Adjudications 15Ak502 k. Stare Decisis; Estoppel to Change Decision. Most Cited Cases

Although an agency is not required to distinguish every precedent cited to it by an aggrieved party, when a party makes a significant showing that analogous cases have been decided differently, the agency must do more than simply ignore that argument. [6] Labor and Employment 231H 1870 231H Labor and Employment 231HXII Labor Relations 231HXII(J) Judicial Review and Enforcement of Decisions of Labor Relations Boards 231HXII(J)1 Review by Courts 231Hk1869 Deference to Board 231Hk1870 k. In General. Most Cited Cases

Since Congress has delegated to National Labor Relations Board (NLRB) the responsibility for de-termining the appropriate bargaining unit, Court of Appeals accords deference to NLRB's exercise of its authority, although Court of Appeals cannot be def-erential when NLRB fails to explain adequately its reasoning. National Labor Relations Act, § 9(b), 29 U.S.C.A. § 159(b). [7] Administrative Law and Procedure 15A

753 15A Administrative Law and Procedure 15AV Judicial Review of Administrative Deci-sions 15AV(D) Scope of Review in General 15Ak753 k. Theory and Grounds of Ad-ministrative Decision. Most Cited Cases

Court of Appeals is indulgent toward administra-tive action to the extent of affirming an order when agency's path can be discerned, even if agency's opinion leaves much to be desired. [8] Labor and Employment 231H 1891 231H Labor and Employment 231HXII Labor Relations 231HXII(J) Judicial Review and Enforcement of Decisions of Labor Relations Boards 231HXII(J)1 Review by Courts 231Hk1888 Remand to Board 231Hk1891 k. Representation Pro-ceedings. Most Cited Cases

Court of Appeals could not perform its assigned reviewing function or discern path taken by National Labor Relations Board (NLRB) in determining that university's full-time faculty members were not managerial employees under National Labor Rela-tions Act (NLRA), and so could form union, when NLRB and its regional director, whose findings and conclusions were adopted by NLRB, failed to explain which of the relevant factors were found to be signif-icant and which less so, and why, and therefore re-mand for further proceedings was warranted. National Labor Relations Act, § 1 et seq., 29 U.S.C.A. § 151 et seq. [9] Administrative Law and Procedure 15A









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753 15A Administrative Law and Procedure 15AV Judicial Review of Administrative Deci-sions 15AV(D) Scope of Review in General 15Ak753 k. Theory and Grounds of Ad-ministrative Decision. Most Cited Cases

In reviewing agency action, Court of Appeals can only look to agency's stated rationale, and cannot sustain action on some other basis not mentioned by agency. [10] Labor and Employment 231H 1809 231H Labor and Employment 231HXII Labor Relations 231HXII(I) Labor Relations Boards and Pro-ceedings 231HXII(I)9 Hearing 231Hk1809 k. Rehearing. Most Cited Cases

Findings underlying decision of National Labor Relations Board (NLRB) not to reopen and supple-ment the administrative record, based on union's late production of timely sought material, were not sup-ported by substantial evidence in proceedings to de-termine whether university's full-time faculty mem-bers were managerial employees unprotected by Na-tional Labor Relations Act (NLRA), inasmuch as NLRB, in concluding that reasonably diligent party would have sought enforcement of discovery request, did not address union's representation that it would make continuing determination, following its initial production, respecting whether it possessed additional documents responsive to university's subpoena, and did not explain why university's request, made within weeks of union's belated production, was not timely request to reopen the record. National Labor Relations Act, § 10(f), 29 U.S.C.A. § 160(f). [11] Administrative Law and Procedure 15A

754.1 15A Administrative Law and Procedure 15AV Judicial Review of Administrative Deci-sions 15AV(D) Scope of Review in General

15Ak754 Discretion of Administrative Agency 15Ak754.1 k. In General. Most Cited Cases Administrative Law and Procedure 15A 791 15A Administrative Law and Procedure 15AV Judicial Review of Administrative Deci-sions 15AV(E) Particular Questions, Review of 15Ak784 Fact Questions 15Ak791 k. Substantial Evidence. Most Cited Cases

Court of Appeals reviews agency's denial of mo-tion to reopen the administrative record for “abuse of discretion,” which occurs when agency's findings of fact are not supported by substantial evidence in the record considered as a whole. [12] Administrative Law and Procedure 15A

786 15A Administrative Law and Procedure 15AV Judicial Review of Administrative Deci-sions 15AV(E) Particular Questions, Review of 15Ak784 Fact Questions 15Ak786 k. Conflicting Evidence. Most Cited Cases Administrative Law and Procedure 15A 791 15A Administrative Law and Procedure 15AV Judicial Review of Administrative Deci-sions 15AV(E) Particular Questions, Review of 15Ak784 Fact Questions 15Ak791 k. Substantial Evidence. Most Cited Cases

In reviewing agency's failure to reopen and sup-plement the administrative record, Court of Appeals may not find substantial evidence merely on the basis of evidence which in and of itself justified agency's decision, without taking into account contradictory evidence or evidence from which conflicting infer-ences could be drawn.








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*44 Arnold E. Perl argued the cause and filed the briefs for petitioner. Edward A. Brill argued the cause for amici curiae American Council on Education, et al. in support of petitioner. With him on the brief was Lawrence Lorber. Daniel A. Blitz, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Arthur F. Rosenfeld, Acting General Counsel at the time the brief was filed, John H. Fer-guson, Assistant General Counsel, Aileen A. Arm-strong, Deputy Associate General Counsel, and Meredith L. Jason, Supervisory Attorney. James B. Coppess argued the cause for intervenor. With him on the brief was Joseph J. Pass. Before: SENTELLE, RANDOLPH and GRIFFITH, Circuit Judges. Opinion for the Court filed by Circuit Judge GRIFFITH. GRIFFITH, Circuit Judge.

**398 In NLRB v. Yeshiva University, 444 U.S. 672, 100 S.Ct. 856, 63 L.Ed.2d 115 (1980), the Su-preme Court first determined that faculty at colleges and universities may be managerial employees exempt from the protection of the National Labor Relations Act (“NLRA” or the “Act”), 29 U.S.C. § 151 et seq. Since Yeshiva, the battle lines over organizing unions among faculty have been drawn with predictable ar-guments. College and university administrations typ-ically argue that their faculties' involvement in aca-demic affairs is extensive and managerial. Unions argue it is limited and circumscribed. And so it is here. Petitioner Point Park University (the “ University” or “Point Park”) argues that the Act bars its faculty from organizing a bargaining unit because they are man-agers. The union argues they are not. Yeshiva and our explanation of its application in LeMoyne-Owen Col-lege v. NLRB, 357 F.3d 55 (D.C.Cir.2004), provide the National Labor Relations Board (“NLRB” or the “Board”) guidance how to resolve this type of dispute. Because neither the Regional Director nor the Board followed that guidance and thus failed to adequately explain why the faculty's role at the University is not managerial, we grant the University's petition for review, deny without prejudice the Board's

cross-application for enforcement, and remand this case for further proceedings consistent with this opinion so that the Board can provide such an expla-nation or reconsider its conclusion.

I. Point Park University, located in Pittsburgh,

Pennsylvania, has 3,200 students, 80 full-time faculty, and 560 employees. Founded in 1960 as Point Park College, it was chartered as a university in 2003 and renamed to reflect its new status. Students at the University pursue bachelors degrees in fifty majors and seven masters degrees through four schools: Arts and Sciences, Business, the Conservatory of Per-forming Arts, and the Adult and Professional Studies Program. Point Park's authority structure consists of a board of trustees, a president who also serves as a **399 *45 member of that board, a vice president of academic affairs who also serves as dean of the fac-ulty, an associate vice president of academic affairs, deans of the four schools, department chairs, program directors, and the faculty.

In 2003, the Newspaper Guild of Pitts-burgh/Communications Workers of America, Local 38061, AFL-CIO (the “Union”) filed a petition with the Board seeking to represent a bargaining unit of all full-time faculty at Point Park. The University con-tested the petition, arguing that all its full-time faculty members were managerial employees and that some of the full-time faculty were supervisors,FN1 both barred by the Act from organizing a union. The Re-gional Director of Region Six of the NLRB convened nineteen days of hearings between November 12, 2003 and January 16, 2004 to consider the Union's petition. The Regional Director concluded that the full-time faculty were eligible for union representation and that the University had failed to prove, under Yeshiva, that the faculty “exercise such plenary, ab-solute or effective authority or control to warrant their exclusion from the protection of the Act as managerial employees.” The Regional Director also found that some faculty members were supervisors and thus barred by the Act from joining a union, while others were not.FN2

FN1. Those included: (1) Robert O'Gara, Frederick Johnson, Martin Greenberg, and Walter Zalot, who were program directors; (2) the unfilled position of Director of the MBA program; (3) Robin Walsh, Head of
























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Graduate Studies; and (4) William Moushey, Executive Director of the Innocence Insti-tute.

FN2. The Regional Director found that “Robert O'Gara, Frederick Johnson, Walter Zalot and the Director of the MBA program are supervisors within the meaning of the Act” and not allowed to organize, but was “unable to determine on the record before [him] whether [Martin] Greenberg, a recently hired program director ... possesses any managerial authority” and thus permitted “Greenberg to vote subject to challenge in the election.” The Regional Director con-cluded that neither Robin Walsh nor William Moushey were supervisors or managerial employees. Petitioners do not dispute these findings and conclusions.

The University filed with the Board a timely re-

quest for review of the Regional Director's decision, see 29 C.F.R. § 102.67, arguing that the decision de-parted from established Board precedent and was clearly erroneous with respect to a number of facts not at issue here. The Board denied Point Park's request for review. After an election, the Union was certified as the exclusive collective bargaining representative. The University refused to recognize or bargain with the Union, and the Union filed an unfair labor practice charge in response. The Board's General Counsel issued a complaint against the University, alleging that it had violated Sections 8(a)(1) and (5) of the Act, 29 U.S.C. § 158(a)(1), (5),FN3 by “fail[ing] and refus [ing] to recognize and bargain with the Union.” In defense of its conduct, Point Park challenged the Board's de-cision to certify the Union and asked the Board to reopen the record to consider additional, newly dis-covered evidence. The Board granted the General Counsel's motion for summary judgment, ordered Point Park to bargain with the Union, and refused to reopen the record.

FN3. Section 158(a) of Title 29, United States Code, provides that “[i]t shall be an unfair labor practice for an employer-(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [the Act]; [or] ... (5) to refuse to bargain collec-tively with the representatives of his em-ployees.” 29 U.S.C. § 158(a).

Point Park filed a timely petition for review with

this Court, and the Board filed a cross-application for enforcement of the **400 *46 Board's order. Point Park's petition brings “the entire NLRB proceed-ing-including the Regional Director's underlying de-cision to certify the full-time faculty as a bargaining unit-before this court for review.” LeMoyne-Owen, 357 F.3d at 60 (citing Boire v. Greyhound Corp., 376 U.S. 473, 477, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964)).

II. The gravamen of Point Park's petition is that the

Board erred in determining that the University's full-time faculty are not managerial employees under the Act and are thus entitled to form a union. We conclude that we are unable to review adequately the Board's decision because the Regional Director failed to follow our guidance in LeMoyne-Owen that he explain which factors he found “significant and which less so, and why” in determining, pursuant to Yeshiva, that Point Park's full-time faculty were not managerial employees. See 357 F.3d at 61.

A. The Supreme Court set off a seismic shift in the

law of labor relations in American higher education when it held in Yeshiva that, in some circumstances, faculty members, who for many years the Board had thought were protected by the National Labor Rela-tions Act, might instead be barred by the Act from organizing a union.FN4 The proper analysis, the Court held, turns on the type of control faculty exercise over academic affairs at an institution. A brief explanation of the history of the sometimes expanding, sometimes contracting protections of the Act by Congress and the Supreme Court will help explain why the correct ap-plication of Yeshiva 's analysis is so important to the proper resolution of this case.

FN4. See Marina Angel, Professionals and Unionization, 66 MINN. L. REV. 383, 447-455 (1982).

As enacted in 1935, the National Labor Relations

Act broadly authorized “any employee,” excluding agricultural laborers and domestic servants, to organ-ize a union. See National Labor Relations Act of 1935, Pub.L. No. 74-198, § 2(3), 49 Stat. 449, 450. The Supreme Court held that under this expansive lan-guage even supervisors enjoyed the protection of the

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Act. Packard Motor Car Co. v. NLRB, 330 U.S. 485, 489-90, 67 S.Ct. 789, 91 L.Ed. 1040 (1947) (“we see no basis in this Act whatever for holding that foremen are forbidden the protection of the Act when they take collective action to protect their collective interests”). In quick response to the Supreme Court, Congress removed supervisors from the Act's protection, see Labor Management Relations (Taft-Hartley) Act of 1947, ch. 120, sec. 101, § 2(3), 61 Stat. 136, 137-38 (codified as amended at 29 U.S.C. § 152(3)) (“the term ‘employee’ ... shall not include ... any individual employed as a supervisor”), but also explicitly in-cluded professional employees within the Act's reach, see id. §§ 2(12) (codified as amended at 29 U.S.C. § 152(12)), 9(b)(1) (codified as amended at 29 U.S.C. § 159(b)(1)) (authorizing professional employees to unionize where “a majority of such professional em-ployees vote for inclusion in such unit”). From the time the Board first asserted jurisdiction over a uni-versity's faculty in 1971 until the Supreme Court de-cided Yeshiva in 1980, the Board considered faculty members at institutions of higher learning “profes-sional employees” whose union activities were pro-tected by the Act. See C.W. Post Ctr. of Long Island Univ., 189 N.L.R.B. 904, 905 (1971).

In 1974, the Supreme Court recognized another exception to the Act when it held **401 *47 in NLRB v. Bell Aerospace Co. that “Congress intended to exclude from the protections of the Act all employees properly classified as ‘managerial.’ ” 416 U.S. 267, 275, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974). Although the Act did not contain an express statutory exclusion for management employees like what Congress had provided for supervisors, the Court reasoned that they were “regarded as so clearly outside the Act” by the Congress that first created the Act “that no specific exclusionary provision was thought necessary.” Id. at 283, 94 S.Ct. 1757. Managerial employees, who cannot form or join a union, were those who “formu-late and effectuate management policies by expressing and making operative the decisions of their employ-er.” Id. at 288, 94 S.Ct. 1757 (quotation marks omit-ted). The key inquiry, the Court later explained, was whether employees were “aligned with management.” Yeshiva, 444 U.S. at 683, 100 S.Ct. 856 (citing Bell Aerospace, 416 U.S. at 286-87, 94 S.Ct. 1757).

Since Bell Aerospace, the Board's determinations in cases involving union petitions to organize have often turned on the distinction between professional

employees, who may unionize, and managerial em-ployees, who may not.FN5 Making that distinction requires the Board to conduct a fact-intensive inquiry into the specific responsibilities of employees. See Salinas Newspapers, 279 N.L.R.B. 1007, 1010 (1986) (“[t]he Supreme Court and the Board, in determining managerial status, weigh the facts elicited to deter-mine whether or not the persons at issue are involved in the formulation, determination and effectuation of management policies”) (quoting Simplex Indus., Inc., 243 N.L.R.B. 111, 111 (1979)); Curtis Noll Corp., 218 N.L.R.B. 1447, 1448 (1975) (“Whether or not a per-son is ‘managerial’ is to be determined on a case-by-case basis after close examination of the du-ties performed by the person in question while occu-pying a position alleged to be ‘managerial.’ ”).

FN5. See, e.g., Neighborhood Legal Servs., Inc., 236 N.L.R.B. 1269, 1273 (1978) (“professional employees plainly are not the same as management employees either by definition or in authority, and managerial authority is not vested in professional em-ployees merely by virtue of their professional status, or because work performed in that status may have a bearing on company di-rection”); Case Corp., 304 N.L.R.B. 939, 948 (1991) (“technical and professional em-ployees plainly are not the same as manage-rial employees either by definition or in au-thority”); General Dynamics Corp., 213 N.L.R.B. 851, 857 (1974) (distinguishing professional employees from managerial employees who occupy “executive-type po-sitions [and] are closely aligned with man-agement as true representatives of manage-ment”).

Even after Bell Aerospace, the Board continued to

find that full-time faculty at colleges and universities were professional, not managerial, employees. See, e.g., Goddard College, 234 N.L.R.B. 1111, 1113 (1978) (“the discretion exercised by core faculty members, both individually and collectively, regard-ing such matters as student recruitment and admis-sions, completion of degree requirements, and curric-ulum, clearly is indicative of professional, rather than managerial status”); Ne. Univ., 218 N.L.R.B. 247, 257 (1975) (“The existence of ... ‘shared authority’ may well indicate that faculty members are ‘professionals,’ but it does not necessarily make them ‘managerial.’ ”).












































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As long as faculty were understood to be profes-

sional employees, which they clearly are, and not also managerial employees under Bell Aerospace, the task of the Board was relatively straightforward. See id. That all changed with Yeshiva, when the Supreme Court applied the definition of managerial employee in Bell Aerospace to faculty at a college or university and **402 *48 held for the first time that some faculty members, even though they are professional employ-ees, may also be “managerial employees,” barred by the Act from union activities. 444 U.S. at 691, 100 S.Ct. 856.

[1][2][3] Yeshiva imposed significant demands upon the Board in determining whether faculty members are “managerial employees,” holding that this mixed question of fact and law cannot be deter-mined “on the basis of conclusory rationales rather than examination of the facts of each case.” Id. In other words, context is everything. Every academic institution is different, and in determining whether a particular institution's faculty are “managerial em-ployees” excluded from the Act or “professional em-ployees” included in the Act, the Board must perform an exacting analysis of the particular institution and faculty at issue. That analysis must look beyond self-serving descriptions of the role of faculty or the administration of a university. In Yeshiva, the Court looked repeatedly to the actual role of the faculty in the academic affairs of the university.FN6 The key inquiry is “how a faculty is structured and operates.” Id. at 690 n. 31, 100 S.Ct. 856 (emphasis added). The Board's task under Yeshiva is made more difficult by the fact, frankly acknowledged by the Court in Ye-shiva, that the Act is not easily applied to labor rela-tions in the university setting:

FN6. See id. at 676, 100 S.Ct. 856 (“Through these meetings and committees, the faculty at each school effectively determine its curric-ulum, grading system, admission and ma-triculation standards, academic calendars, and course schedules.”) (emphasis added); id. at 686, 100 S.Ct. 856 (“They effectively decide which students will be admitted, re-tained, and graduated.”) (emphasis added); id. at 691, 100 S.Ct. 856 (“[T]he faculty of Yeshiva University, in effect, substantially and pervasively operat[e] the enterprise.”) (citation omitted, quotation marks omitted,

and emphasis added).

The Act was intended to accommodate the type of management-employee relations that prevail in the pyramidal hierarchies of private industry. In contrast, authority in the typical mature private university is divided between a central administration and one or more collegial bodies.... Although faculties have been subject to external control in the United States since colonial times, traditions of collegiality continue to play a significant role at many universities, including Yeshiva. For these reasons, the Board has recognized that principles developed for use in the industrial setting cannot be imposed blindly on the academic world.

Id. at 680-81, 100 S.Ct. 856 (internal citations, quotation marks, and footnote omitted). Thus, the Board must determine whether the faculty in question so controls the academic affairs of the school that their interests are aligned with those of the university or whether they occupy a role more like that of the pro-fessional employee in the “pyramidal hierarchies of private industries.” See id. That is by its very nature a fact-bound inquiry.

[4] The Court also noted that the core professional activities of faculty that are common at most colleges and universities-“determin[ing] the content of their own courses, evaluat[ing] their own students, and supervis[ing] their own research”-are not enough, by themselves, to remove faculty from the protection of the Act. Id. at 690 n. 31, 100 S.Ct. 856 (emphasis added). The Court determined, however, that the fac-ulty at Yeshiva University were involved in activities far beyond the core professional activities of a typical faculty-activities that fit the Bell Aerospace definition of “managerial employees.” As the Court explained:

*49 **403 The controlling consideration in this case is that the faculty of Yeshiva University exercise authority which in any other context unquestionably would be managerial. Their authority in academic matters is absolute. They decide what courses will be offered, when they will be scheduled, and to whom they will be taught. They debate and determine teaching methods, grading policies, and matriculation standards. They effectively decide which students will be admitted, retained, and graduated. On occasion their views have determined the size of the student body, the tuition to be charged, and the location of a school.



























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Id. at 686, 100 S.Ct. 856. This is the heart of the

Court's decision in Yeshiva. The faculty's “authority” in the “academic matters” mentioned-the Yeshiva factors-has become the template for Board analysis of whether faculty are managerial employees. Specifi-cally, the Board must consider the degree of faculty control over academic matters such as curriculum, course schedules, teaching methods, grading policies, matriculation standards, admission standards, size of the student body, tuition to be charged, and location of the school. See, e.g., Duquesne Univ., 261 N.L.R.B. 587, 589 (1982); Loretto Heights College, 264 N.L.R.B. 1107, 1119 (1982).

Like Point Park University, LeMoyne-Owen College sought review of a Board decision that its faculty were not managerial employees and were thus entitled under the Act to organize a union. See LeMoyne-Owen, 357 F.3d at 61. The College had argued to the Regional Director and the Board that its faculty were indistinguishable from faculty the Board had held to be managerial employees in previous cases. In ruling against the College, neither the Re-gional Director nor the Board discussed these prece-dents.

[5] We found such silence insufficient and re-manded the case for the Board to provide a more ful-some explanation of its decision. Although an “agency is by no means required to distinguish every precedent cited to it by an aggrieved party,” id. at 60, we held that where “a party makes a significant showing that analogous cases have been decided differently, the agency must do more than simply ignore that argu-ment,” id. at 61. We then stressed the need for a clear explanation by the Board when applying Yeshiva 's multi-factor test:

The ‘open-ended rough-and-tumble of factors' on which Yeshiva launched the Board and higher educa-tion can lead to predictability and intelligibility only to the extent the Board explains, in applying the test to varied fact situations, which factors are significant and which less so, and why.... In the absence of an explanation, the ‘totality of the circumstances' can become simply a cloak for agency whim-or worse.... [The Board] may have an adequate explanation for the result it reached [but] we cannot ... assume that such an explanation exists until we see it.

Id. (citation omitted and emphasis added). That is where we find fault with the Board's analysis here.

B. [6][7][8] Because Congress has delegated to the

Board responsibility for determining the appropriate bargaining unit, see 29 U.S.C. § 159(b), we “accord deference to the Board's exercise of its authority.” LeMoyne-Owen, 357 F.3d at 60. We cannot be def-erential, however, where the Board fails to adequately explain its reasoning. Id. at 61. The Supreme Court has held that when the “Board so exercises the dis-cretion given to it by Congress, it must ‘disclose the basis of its order’ and ‘give **404 *50 clear indication that it has exercised the discretion with which Con-gress has empowered it.’ ” NLRB v. Metro. Life Ins. Co., 380 U.S. 438, 443, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965) (citation omitted). We are, however, “ indul-gent toward administrative action to the extent of affirming an order where the agency's path can be ‘discerned’ even if the opinion ‘leaves much to be desired.’ ” WAIT Radio v. FCC, 418 F.2d 1153, 1156 (D.C.Cir.1969) (citation omitted); see also Casino Airlines, Inc. v. NTSB, 439 F.3d 715, 717 (D.C.Cir.2006). Without a clear presentation of the Board's reasoning, it is not possible for us to perform our assigned reviewing function and to discern the path taken by the Board in reaching its decision. See Metro. Life Ins. Co., 380 U.S. at 443, 85 S.Ct. 1061.

[9] Nor can our Court fill in critical gaps in the Board's reasoning. We can only look to the Board's stated rationale. We cannot sustain its action on some other basis the Board did not mention. See SEC v. Chenery Corp., 332 U.S. 194, 196-97, 200, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) (“It will not do for a court to be compelled to guess at the theory underlying the agency's action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive.”) This is not a new concern, but it is central to our performance of the limited role Congress has assigned us in reviewing agency action. See id.; SEC v. Chenery Corp., 318 U.S. 80, 94-95, 63 S.Ct. 454, 87 L.Ed. 626 (1943); Village of Winnetka, Ill. v. FERC, 678 F.2d 354, 357 (D.C.Cir.1982).

Here, both the Board and the Regional Director failed to do what Yeshiva and LeMoyne-Owen man-date: explain “which factors are significant and which less so, and why” in their determination that the fac-ulty at Point Park were not “managerial employees.”












































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See LeMoyne-Owen, 357 F.3d at 61. Volume alone is insufficient. The Regional Director, whose findings and conclusions regarding the role of Point Park's full-time faculty the Board adopted with only limited discussion and no stated analysis, produced a 108-page decision with 59 pages of factual findings, and 16 pages of legal analysis that identified and relied upon a host of factors. Some findings suggest that the faculty are managerial employees, while others sug-gest they are not. In analyzing these findings, the Regional Director mentioned some of the academic factors relied upon by the Supreme Court in its man-agerial analysis in Yeshiva, including: (1) control over curriculum and course schedules; (2) control over teaching methods; (3) control over grading policies; and (4) control over which students will be admitted, retained, and graduated. In addition, the Regional Director referred to various non-academic factors that the Supreme Court listed in Yeshiva but which the Supreme Court described as “features of faculty au-thority” upon which it did not need to “rely primarily,” 444 U.S. at 686 n. 23, 100 S.Ct. 856: (1) control over hiring; (2) control over tenure; (3) control over sab-baticals; (4) control over terminations; and (5) control over promotions. Finally, the Regional Director touched upon several factors relied upon in previous Board decisions: (1) control over salary and benefits; (2) statements made by the Administration; and (3) the size of the University's administrative component.

Yet nowhere in his lengthy decision did the Re-gional Director state, as we held in LeMoyne-Owen that he must, which factors were “significant and which less so, and why.” 357 F.3d at 61. While the Regional Director stated many of the Yeshiva factors, he failed to explain which factors he primarily relied upon and his reasoning for doing so. Faced with this **405 *51 “open-ended rough-and-tumble of factors,” we cannot assume that the Regional Director had an “adequate explanation for the result [he] reached ... until we see it.” Id. The closest the Regional Director came to providing such an explanation was his statement that Point Park's “faculty ... undoubtedly has an important consultative role, but based on the record developed, it cannot be concluded that they exercise such plenary, absolute or effective authority or control to warrant their exclusion from the protection of the Act as managerial employees.” This passing observa-tion, stated in the form of a conclusion, does not sub-stitute for the fact-specific analysis called for by Ye-shiva and LeMoyne-Owen. The Board knows how to perform such an analysis, see Duquesne University,

261 N.L.R.B. at 589 (“In sum, it is evident from the record that the managerial authority possessed by the Duquesne law school faculty is nearly identical to that possessed by the faculty in Yeshiva in such critical academic matters as curriculum, grading systems, and admission and matriculation standards.”), but cer-tainly did not do so here.

Had the Regional Director, or the Board, stated with clarity which factors were significant to the outcome and why, we could have performed our re-view. Distinguishing between excluded managers and included professional employees is a fact-intensive inquiry that presents special challenges in the unique and often decentralized world of academia. Yeshiva identified the relevant factors that the Board must consider. See 444 U.S. at 691, 100 S.Ct. 856. LeMoyne-Owen held that the Board must clearly ex-plain its analysis. See 357 F.3d at 61. The failure to provide such an explanation is grounds for remand to the Board, see id., which we do here.

C. One remaining issue requires our attention. In

October 2003, Point Park served a subpoena on the faculty seeking a variety of books and records. One month later, in advance of the Regional Director's hearing, the Union responded on behalf of the faculty providing some, but not all, of the materials sought. The Union represented that it would make further determinations whether it possessed additional re-sponsive materials. The Regional Director announced his decision in April 2004. In August and September 2004, the Union, responding to an unrelated request, produced documents, sought by the October 2003 subpoena, that had not previously been produced. On September 13, 2004, as part of its answer to the Board's complaint, Point Park asserted that the Board should reopen the hearings before the Regional Di-rector to take additional evidence and supplement the record in light of this timely sought but late-produced material. Point Park repeated this request in its No-vember 27, 2004, response to the motion for summary judgment.

On February 17, 2005, the Board denied Point Park's request, holding that Point Park failed to “act with reasonable diligence” by not (1) seeking to en-force its subpoena when the Union responded with a partial production and (2) moving to immediately reopen the hearing when it received the belated pro-





















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duction in September 2004.

[10][11][12] Point Park argues the “Board's fail-ure to reopen and supplement the record was error.” We review an agency's denial of a motion to reopen the record for abuse of discretion. See Reno Hilton Resorts v. NLRB, 196 F.3d 1275, 1285 n. 10 (D.C.Cir.1999). An abuse of discretion occurs where the Board's “findings of fact are not supported by substantial evidence in the record considered as a whole.” **406*52Lakeland Bus Lines, Inc. v. NLRB, 347 F.3d 955, 961 (D.C.Cir.2003) (quotation marks and citation omitted). We “may not find substantial evidence ‘merely on the basis of evidence which in and of itself justified [the agency's decision], without taking into account contradictory evidence or evi-dence from which conflicting inferences could be drawn.’ ” Id. at 962 (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487, 71 S.Ct. 456, 95 L.Ed. 456 (1951)).

The Board's findings are not “supported by sub-stantial evidence on the record considered as a whole.” See 29 U.S.C. § 160(f). The Board, in concluding that “a reasonably diligent party would have sought en-forcement,” did not address that the Union had, in fact, already informed Point Park that after it had made its initial production in response to the October 2003 subpoena, it would make a continuing determination whether it possessed any additional documents re-sponsive to the subpoena. In addition, the Board, in concluding that Point Park had “waited over 2 months ... to seek to reopen the record,” ignored Point Park's September 13, 2004 request to do so. The Board does not explain why this request, made within weeks of the Union's belated production of the new evidence, does not constitute a timely request to reopen the record. Because the Board's decision did not “tak[e] into account contradictory evidence or evidence from which conflicting inferences could be drawn,” Uni-versal Camera Corp., 340 U.S. at 487, 71 S.Ct. 456, its findings are not supported by substantial evidence.

III. For the foregoing reasons, we grant Point Park's

petition for review, deny without prejudice the Board's cross-application for enforcement, and remand the case to the Board for proceedings consistent with this opinion.

So ordered.

C.A.D.C.,2006. Point Park University v. N.L.R.B. 457 F.3d 42, 180 L.R.R.M. (BNA) 2072, 372 U.S.App.D.C. 396, 153 Lab.Cas. P 10,703, 211 Ed. Law Rep. 573 END OF DOCUMENT

















3.

NLRB “NOTICE AND INVITATION TO FILE BRIEFS” IN

POINT PARK UNIVERSITY AND NEWSPAPER GUILD OF PITTSBURGH /

COMMUNICATIONS WORKERS OF AMERICA LOCAL 38061, AFL-CIO

CASE NO. 6-RC-12276

UNITED STATES OF AMERICABEFORE THE NATIONAL LABOR RELATIONS BOARD

POINT PARK UNIVERSITYEmployer

and 6-RC-12276

NEWSPAPER GUILD OF PITTSBURGH/COMMUNICATIONS WORKERS OF AMERICA,LOCAL 38061, AFL-CIO, CLC

Petitioner

NOTICE AND INVITATION TO FILE BRIEFS

The central issue in this case is whether the University faculty members sought to be represented by the Petitioner are statutory employees or rather excluded managerial employees, consistent with the Supreme Court’s decision in NLRB v. Yeshiva University, 444 U.S. 672 (1980). In his original decision and direction of election, the Regional Director found that the faculty members were not managerial employees, and, after an election, the Petitioner was certified as their collective-bargaining representative. The underlying issue ultimately was presented to the United States Court of Appeals for the District of Columbia Circuit, which found that the Board had “failed to adequately explain why the faculty’s role at the University is not managerial.” Point Park University v. NLRB, 457 F.3d 42, 44 (D.C. Cir. 2006). The court instructed the Board to identify which of the relevant factors set forth in Yeshiva University, supra, are significant and which less so in its determination that the Employer’s faculty are not managerial employees and to explain why the factors are so weighted. Following the court’s remand, the Regional Director issued a Supplemental Decision on Remand. The Employer sought review of that decision, which the Board granted on November 28, 2007.

To aid the Board in properly addressing the court’s remand, the Board invites the parties and amici to file briefs that address the court’s instruction that the Board explain the weight of the various factors identified by the Supreme Court in Yeshiva and their application to this

2

case.1 Specifically, the briefs should address some or all of the following questions:

(1) Which of the factors identified in Yeshiva and the relevant cases decided by the Board since Yeshiva are most significant in making a finding of managerial status for university faculty members and why?

(2) In the areas identified as “significant,” what evidence should be required to establish that faculty make or “effectively control” decisions?

(3) Are the factors identified in the Board case law to date sufficient to correctly determine whether faculty are managerial?

(4) If the factors are not sufficient, what additional factors would aid the Board in making a determination of managerial status for faculty?

(5) Is the Board’s application of the Yeshiva factorsto faculty consistent with its determination of themanagerial status of other categories of employeesand, if not, (a) may the Board adopt a distinct approach for such determinations in an academic context or (b) can the Board more closely align its determinations in an academic context with its determinations in non-academic contexts in a manner that remains consistent with the decision in Yeshiva?

(6) Do the factors employed by the Board in determining the status of university faculty members properly distinguish between indicia of managerialstatus and indicia of professional status under the Act?

(7) Have there been developments in models of decision making in private universities since the

1 On December 12, 2007, the Employer filed a brief on review of the Regional Director’s Supplemental Decision on Remand. The Petitioner did not file a brief on review. Given the amount of time that has passed since the request for review was granted and the absence of a Brief on Review from the Petitioner, the Board has decided to solicit additional briefing. We acknowledge, as our dissenting colleagues point out, that this case has suffered from considerable delay already. However, given the nature of the D.C. Circuit’s remand of the case, we believe that allowing a short period of time for additional briefing will aid the Board in deciding the important issues at stake.

3

issuance of Yeshiva that are relevant to the factors the Board should consider in making a determination of faculty managerial status? If so, what are those developments and how should they influence the Board’s analysis?

(8) As suggested in footnote 31 of the Yeshivadecision, are there useful distinctions to be drawn between and among different job classifications within a faculty--such as between professors, associate professors, assistant professors, and lecturers or between tenured and untenured faculty--depending on the faculty's structure and practices?

In answering these questions, the parties and amici are invited to submit empirical and other evidence.

Briefs not exceeding 50 pages in length shall be filed with the Board in Washington, D.C. on or before July 6, 2012. The parties may file responsive briefs on or before July 20, 2012, which shall not exceed 25 pages in length. No other responsive briefs will be accepted. The parties and amici shall file briefs electronically at http://mynlrb.nlrb.gov/efile. If assistance is needed in filing through http://mynlrb.nlrb.gov/efile, please contact Lester A. Heltzer, Executive Secretary, National Labor Relations Board.

MARK GASTON PEARCE, CHAIRMAN

RICHARD F. GRIFFIN, JR., MEMBER

SHARON BLOCK, MEMBER

Members Hayes and Flynn, dissenting:

We dissent from the majority’s decision to solicit additional briefing now, nearly 5 years after the Board granted the Employer’s Request for Review of the Regional Director’s Supplemental Decision on Remand. An amicus brief has already been filed in this case by the American Council on Education ("ACE"), the National Association ofIndependent Colleges & Universities ("NAICU"), the Council of Independent Colleges ("CIC"), and the Association of Independent Colleges & Universities of Pennsylvania

http://mynlrb.nlrb.gov/efile

http://mynlrb.nlrb.gov/efile

4

("AICUP"), which collectively represent virtually all institutions of higher education. After the Board granted review in November 2007, the Petitioner did not avail itself of its opportunity to file a brief. Further, no additional organizations have asked to participate as amici during the lengthy pendency of this case despite the publicity surrounding it.2 Under these circumstances, wefind it unwise to further delay the processing of this case to solicit additional briefing.

BRIAN E. HAYES, MEMBER

TERENCE F. FLYNN, MEMBER

Dated, Washington, D.C. May 22, 2012.

2 See NLRB’s Weekly Summary of Cases, dated December 7, 2007, reprinted in Daily Labor Report, E-1 (Dec. 7, 2007) (summarizing Board’s grant of review of the Regional Director’s Supplemental Decision on Remand); NLRB Failed to Adequately Explain Ruling on Faculty Status, Appeals Court Decides, Daily Labor Report (Aug. 2, 2006); Bill Schackner, “College Dispute Returned to NLRB, Point Park Faculty Seek to Join Union,” Pittsburgh Post-Gazette (Aug. 2, 2006).



4.

REPLY BRIEF OF EMPLOYER

POINT PARK UNIVERSITY

JULY 20, 2012



5.

BRIEF OF EMPLOYER

POINT PARK UNIVERITY

JULY 6, 2012



6.

BRIEF OF PETITIONER, NEWSPAPER GUILD OF PITTSBURGH

COMMUNICATIONS WORKERS OF AMERICA, LOCAL 38061

AFL-CIO AND AFL-CIO

JULY 6, 2012

1

UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD

POINT PARK UNIVERSITY, Employer,

and 6-RC-12276

NEWSPAPER GUILD OF PITTSBURGH, COMMUNICATIONS WORKERS OF AMERICA, LOCAL 38061, AFL-CIO, Petitioner.

BRIEF ON BEHALF OF THE PETITIONER NEWSPAPER GUILD OF PITTSBURGH, CWA, AFL-CIO, AND

THE AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS

AS AMICUS CURIAE

The petitioner Newspaper Guild of Pittsburgh, CWA, AFL-CIO, and the

American Federation of Labor and Congress of Industrial Organizations, as

amicus curiae, submit this joint brief in response to the National Labor Relations

Board’s invitation to address the correct application of the Supreme Court’s

decision in NLRB v. Yeshiva University, 444 U.S. 672 (1980).

After nine years of litigation, encompassing 20 days of hearings spanning

three months, two Regional Director reports running to some 171 pages between

them and a trip to the D.C. Circuit, the Board is no closer to determining whether

the full-time faculty of Point Park University are “managerial employees” under

Yeshiva than it was when the hearings closed in early 2004.

2

The President of the University and the faculty members were not confused

about the “managerial” status of the Point Park professors. The President informed

faculty members that she was under no obligation to follow or implement their

suggestions with regard to academic policy. She responded to the professors’

protests over this approach by bluntly stating, “This is not a democracy.” DDE

30.1 The President instructed the faculty’s one representative to the University’s

Board of Trustees – who had no voting power – that he attended Board meetings as

an employee and was not to speak unless spoken to. DDE 6 n. 17. And, when the

faculty representative protested unilateral changes by the President to previously

agreed-upon academic policies at a meeting of the Deans Council to which he had

been invited, the faculty representative was told not to attend future meetings. Tr.

3814-15. The professors understood that they had been marginalized in many

respects, most especially with regard to influencing University academic policy.

See DDE 30. This was no doubt one of the reasons that the faculty voted by a

greater than three-to-one margin – 49 to 14 – in favor of union representation.

The sum and substance of the matter is that all the days of hearing and pages

of analysis have not allowed the Board to determine conclusively what was plain to

1 “DDE” refers to the Regional Director’s Decision and Direction of Election (April 27, 2004). Citations in this brief use the pagination in the original hard copy version issued by the Regional Director. The electronic version posted by the NLRB website is paginated in a way that does not correspond to the DDE’s table of contents.

3

everyone at Point Park – the faculty members do not manage the University’s

academic program. The proceedings in this case thus amply demonstrate how

“[t]he open-ended rough-and-tumble of factors on which Yeshiva launched the

Board and higher education,” Lemoyne-Owen College v. NLRB 357 F.3d 55, 61

(D.C. Cir. 2004) (citation and quotation marks omitted), has caused the Board –

and consequently the reviewing courts – to miss the forest for the trees. The Board

should use this case for a considered reappraisal of the role of the so-called

“Yeshiva factors” in determining the “managerial” status of college professors

under the National Labor Relations Act.

1. THE “YESHIVA FACTORS” DO NOT CONSTITUTE A LEGAL TEST FOR DETERMINING WHETHER PROFESSORS ARE EXEMPT “MANAGERIAL” EMPLOYEES.

The “Yeshiva factors” are nothing more than the concrete set of

circumstances identified by the Supreme Court to support its conclusion “that the

faculty of Yeshiva University exercise authority which in any other context

unquestionably would be managerial.” Yeshiva, 444 U.S. at 686. Before the

Supreme Court’s Yeshiva decision, the Board did not attempt to analyze what sort

of faculty authority might be “managerial” in nature, because, in the Board’s view,

the fact that, “[i]n carrying out the[ir] duties and responsibilities, the faculty acts as

a group, on the basis of collective discussion and consensus” precluded treating the

faculty as “managerial” employees. C.W. Post Center, 189 NLRB 904, 905

4

(1971). The Supreme Court rejected that per se rule in Yeshiva. 444 U.S. at 678.

Following the Supreme Court’s Yeshiva decision, the Board did not

undertake its own analysis of what type of authority would make college

professors “managerial” employees. Rather, the Board simply treated the

circumstances cited by the Court in Yeshiva as “the criteria for collegial

governance” that would cause “faculty to be ‘managerial.’” Bradford College, 261

NLRB 565, 566 (1982). On that approach, whether a college’s faculty members

would be categorized as “managerial” depended on their authority “to make[]

decisions and effective recommendations . . . in the critical areas relied upon by the

Supreme Court in Yeshiva University.” Thiel College, 261 NLRB 580, 586 (1982).

See, e.g., id. at 583-85 (considering the faculty’s authority in each area).

The Yeshiva opinion was intended to provide “a starting point only” and

states that “other factors . . . may enter into the analysis.” 444 U.S. at 691 n. 31.

As the instant case demonstrates, marching through the “Yeshiva factors” in a

mechanical fashion to determine how the authority of a particular college faculty

matches up point-by-point with the authority exercised by the Yeshiva faculty has

not served the Board – or the college administrations and professors – well.

Nothing in the Yeshiva opinion suggests that the Board is required to address the

“managerial” status of college professors in this manner. To the contrary, the

holding of Yeshiva is that the “managerial” status of college faculty members must

5

be determined on the same basis as is applied in other contexts. See 466 U.S. at

686 (“The controlling consideration in this case is that the faculty of Yeshiva

University exercise authority which in any other context unquestionably would be

managerial.”). That is, the “Yeshiva factors” represent an application of the

Board’s more general analytical approach to determining managerial status in the

concrete circumstances presented by the Yeshiva case, not a separate test unto

itself.2

Moreover, nothing in the circuit court decisions following Yeshiva, including

the decisions of the D.C. Circuit in LeMoyne-Owen College and in this case,

requires the Board to determine the “managerial” status of a college faculty

through a point-by-point comparison with the factors treated as significant by the

courts in Yeshiva. To the contrary, the import of the D.C. Circuit decisions is that

2 In endorsing the traditional approach to determining managerial status in

the university context, the Court expressly recognized that “[t]here . . . may be institutions of higher learning unlike Yeshiva where the faculty are entirely or predominantly nonmanagerial.” Id. at 690-91 n.31. In fact, in the three decades since Yeshiva, the trend has been “that the faculty role in university governance is decreasing” as “[t]he pressures for efficiency and the achievement of performance goals are encouraging college and university presidents to focus more on the management of their institutions and less on the more collegial processes of academic decision making.” William L. Waugh Jr., “Issues in University Governance: More ‘Professional’ and Less Academic,” Annals of the American Academy of Political and Social Science 84 (January 2003). A recent study of federal data supports this conclusion, confirming that colleges have added managers and support personnel at a rate that “far outpac[es] the growth in student enrollment and instructors.” Jeffrey Brainard, Paul Fain & Kathryn Masterson, “Support-Staff Jobs Double in 20 Years, Outpacing Enrollment,” The Chronicle of Higher Education (April 24, 2009).

6

the Board needs to explain what is “‘significant . . . and why,’” Point Park

University v. NLRB, 457 F.3d 42, 50 (D.C. Cir. 2006), quoting LeMoyne-Owen

College, 357 F.3d at 61, in deciding whether particular faculty members are or are

not “managerial” employees.

If the Board is going to continue to test the “managerial” status of college

professors by comparing them to the Yeshiva faculty on the basis of the particular

factors listed in the Yeshiva decisions, the D.C. Circuit requires the Board to do

what the Regional Director did so ably in his Supplemental Decision on Remand,

i.e., group the points of comparison hierarchically into the categories “Academic

Matters,” Supp. Dec. 9-32, “Academic-Related,” Supp. Dec. 32-36, and

“[N]onacademic,” Supp. Dec. 36-48. We cannot improve upon the Regional

Director’s detailed application of this multifactor approach and explanation of

which Yeshiva factors were significant and why.

We submit, however, that the Board is not bound to continue that approach

and is free to take a more analytical approach to applying the Supreme Court’s

Yeshiva decision by undertaking a thorough reconsideration of the question of what

authority would make college professors “managerial” employees. This

reconsideration should begin with the statutory language and the Supreme Court’s

articulation of the “managerial” employee exception. Against that background, the

Board should rethink its approach to determining the “managerial” status of

7

college faculty members based on the legal analysis underlying the Yeshiva

decision, rather than the particular factual circumstances of that case.

2. THE NLRA’S BROAD STATUTORY DEFINITION OF COVERED “EMPLOYEES” EXPRESSLY ENCOMPASSES “PROFESSIONAL EMPLOYEES,” SUCH AS PROFESSORS.

The proper starting point is the statutory language. The National Labor

Relations Act has two definitions clearly indicating that employees performing the

work typical of college professors are intended to be covered by the Act.

NLRA § 2(3) provides generally that “[t]he term ‘employee’ shall include

any employee.” 29 U.S.C. § 152(3). “The breadth of § 2(3)’s definition is

striking: the Act squarely applies to ‘any employee.’” Sure-Tan, Inc. v. NLRB, 467

U.S. 883, 891 (1984). The Supreme Court has observed that a “broad, literal

interpretation of the word ‘employee’ is consistent with several of the Act’s

purposes, such as protecting the right of employees to organize for mutual aid

without employer interference and encouraging and protecting the collective-

bargaining process.” NLRB v. Town & Country Electric, Inc., 516 U.S. 85, 91

(1995) (quotation marks and citations omitted).

What is more, the Act specifically defines a category of “professional

employee” and grants those “professional employees” the right to vote on whether

they will be separately represented from nonprofessionals in collective bargaining.

29 U.S.C. § 159(b)(1). Among the employees included in the category

8

“professional employees” are those “engaged in work [] predominantly intellectual

and varied in character . . . involving the consistent exercise of discretion and

judgment . . . [and] learning customarily acquired by a prolonged course of

specialized intellectual instruction and study in an institution of higher learning.”

29 U.S.C. § 152(12). Given that statutory definition, it is hardly surprising that

“faculty members employed at institutions of higher learning have long been

considered ‘professional employees’ protected by the Act.” David Wolcott

Kendall Mem. School of Design v. NLRB, 866 F.2d 157, 160 (6th Cir. 1989).

While the NLRA defines the term “employee” broadly, “the Act’s definition

also contains a list of exceptions.” Town & Country Electric, 516 U.S. at 90.

Significantly, none of the express statutory exceptions apply to the Park Point

faculty.

As a general matter, the Supreme Court has cautioned “that administrators

and reviewing courts must take care to assure that exemptions from NLRA

coverage are not so expansively interpreted as to deny protection to workers the

Act was designed to reach.” Holly Farms Corp. v. NLRB, 517 U.S. 392, 399

(1996). This warning applies a fortiori to the application of implied exemptions,

such as the one created for “managerial” employees. “Because managerial

employees are not excluded from coverage under the NLRA by any express

language, but rather by an implied exception to the statute, the exception must be

9

narrowly construed to avoid conflict with the broad language of the Act, which

covers ‘any employee,’ including professional employees.” David Wolcott

Kendall Mem. School, 866 F.2d at 160 (citation omitted).

3. THE IMPLIED “MANAGERIAL” EXEMPTION APPLIES ONLY TO THOSE EMPLOYEES WHO ARE SO MUCH MORE CLEARLY “MANAGERIAL” THAN THE EXPRESSLY EXEMPT “SUPERVISORS” THAT NLRA COVERAGE WOULD BE INCONCEIVABLE.

The NLRA, as enacted in 1935, “did not expressly mention the term

‘managerial employee.’ After the Act’s passage, however, the Board developed

the concept of ‘managerial employee’ in a series of cases involving the

appropriateness of bargaining units.” NLRB v. Bell Aerospace Co., 416 U.S. 267,

275 (1974). The early Board cases “established that ‘managerial employees’ were

not to be included in a unit with rank-and-file employees” but left unclear whether

“all ‘managerial employees’ [are] entirely outside the protection of the Act, as well

as inappropriate for inclusion in a rank-and-file bargaining unit.” Id. at 275-276.

In Bell Aerospace, the Supreme Court held that “all ‘managerial employees’

. . . are excluded from the protections of the Act.” 416 U.S. at 274. The Court

found the exclusion of “managerial employees” to be implicit in the express

exclusion of “supervisors” that Congress enacted in 1947 to overrule the Supreme

Court’s holding in Packard Motor Car Co. v. NLRB, 330 U.S. 485 (1947), that the

NLRA covers foremen. 416 U.S. at 277-284. In this regard, the Bell Aerospace

10

Court expressly relied upon “the portion of Mr. Justice Douglas’ Packard dissent

relating to the organization of executives,” id., at 284, which the Court understood

to have been ratified by the 1947 Congress. See id. at 278-279 (setting out the

relevant portion of Justice Douglas’ dissent).

The basic point of Justice Douglas’s Packard dissent was that “if foremen

are ‘employees’ within the meaning of the National Labor Relations Act, so are

vice-presidents, managers, assistant managers, superintendents, assistant

superintendents” and that “once vice-presidents, managers, superintendents,

foremen all are unionized, management and labor will become more of a solid

phalanx than separate factions in warring camps.” Bell Aerospace, 416 U.S. at

278, quoting Packard, 330 U.S. at 494 (Douglas, J., dissenting). In Justice

Douglas’ view, this would “obliterate the line between management and labor” in

labor relations with the result that “the basic opposing forces in industry [would

be] not management and labor but the operating group on the one hand and the

stockholder and bondholder group on the other.” Ibid.

Against that background, the Bell Aerospace Court understood the 1947

amendment excluding “supervisors” as “intended to exclude from the protection of

the Act those who comprised a part of ‘management’ or were allied with it on the

theory that they were the one[s] from whom the workers needed protection.” Id.

Bell Aerospace, 416 U.S. at 288-289 n. 16, quoting Retail Clerks v. NLRB, 366

11

F.2d 642, 644-645 (D.C. Cir. 1967). The Court reasoned that the 1947

amendments did not include an express exception for nonsupervisory “managerial

employees,” because “Congress recognized there were other persons so much more

clearly ‘managerial’ that it was inconceivable that the Board would treat them as

employees.” Bell Aerospace, 416 U.S. at 284.

Consistent with Bell Aerospace’s reading of the 1947 amendments, the

Board has held that “managerial status . . . is reserved for those in executive-type

positions, those who are closely aligned with management as true representatives.”

General Dynamics Corp., 213 NLRB 851, 857 (1974). Of particular pertinence

here, the Board has specified that “managerial authority is not vested in

professional employees merely by virtue of their professional status, or because

work performed in that status may have a bearing on company direction.” Id. at

857-78. Rather, the status of “managerial” employee is reserved to “true

representatives of management in the traditional sense,” id. at 858, i.e., “faculty . . .

involved in activities far beyond the core professional activities of a typical

faculty,” Point Park, 457 F.3d at 48.

4. PROFESSORS ARE EXEMPT “MANAGERIAL” EMPLOYEES ONLY IF THEY EXERCISE NEARLY ABSOLUTE AUTHORITY IN DETERMINING THEIR EMPLOYER’S ACADEMIC PROGRAM.

In Yeshiva, “[t]he controlling consideration . . . [wa]s that the faculty . . .

exercise[d] authority which in any other context unquestionably would be

12

managerial.” 444 U.S. at 686. In this regard, the Court emphasized that the

faculty’s “authority in academic matters is absolute,” so that, “[t]o the extent the

industrial analogy applies, the faculty determines . . . the product produced, the

terms upon which it will offered, and the customers who will be served.” Ibid.

The authority of the Yeshiva faculty derived from the fact that the University

“depend[ed] on the professional judgment of its faculty to formulate and apply

crucial policies constrained only by necessarily general institutional goals,”

because their “professional expertise [wa]s indispensable to the formulation and

implementation of academic policy.” Id. at 689.

The Tenth Circuit accurately described the pertinent aspect of the

relationship between Yeshiva’s faculty members and the college administration:

“[T]he administrative staff at Yeshiva was fairly small, at least in relation to

the university’s overall size, and there was no effective buffer between the

faculty and top management. The university was, in effect, compelled to

rely upon the faculty for advice, recommendations, establishment of

policies, and implementation of policies. As a result, the Yeshiva faculty

was by necessity aligned with management.” Loretto Heights College v.

NLRB, 742 F.2d 1245, 1254 (10th Cir. 1984) (citations and quotation marks

omitted).

As a direct result of its almost total reliance on the expertise of the faculty when it

13

came to framing academic policy – such as the school’s “curriculum, grading

system, admission and matriculation standards, academic calendars, and course

schedules” – the administration of Yeshiva University was essentially the

“executive arm of the faculty.” Yeshiva, 444 U.S. at 676 & n. 4 (quotation marks

omitted).

At the same time that it explained what made the faculty “managerial”

employees, the Yeshiva Court also emphasized:

“We certainly are not suggesting an application of the managerial

exclusion that would sweep all professionals outside the Act in derogation of

Congress’ expressed intent to protect them. * * * Only if an employee’s

activities fall outside the scope of the duties routinely performed by similarly

situated professionals will he be found aligned with management.” Id. at

690.

Elaborating on this caution, the Court explained, “It is plain, for example, that

professors may not be excluded merely because they determine the content of their

own courses, evaluate their own students, and supervise their own research.” Id.

at 690 n. 31. And, with regard to framing the college’s academic policies, the

Court explained that a merely “advisory role” was “not managerial.” Id. at 683.

Under Yeshiva, the central inquiry in determining whether college professors

are exempt “managerial” employees is whether the professors’ “authority in

14

academic matters is absolute,” 444 U.S. at 686, so that the college administration

functions essentially as the “executive arm of the faculty,” id. at 676 n. 4

(quotation marks omitted). Professors will naturally influence their college’s

academic policy simply by engaging in their ordinary teaching duties (which

includes determining not only the content of the courses they are assigned to teach

but which courses in their field will be offered) and making known to the college

administration their views on related academic matters. But Yeshiva makes clear

that influence of this sort does not make the professors “managerial”

employees. Rather, the faculty members must either have direct control over

academic policy or their recommendations with regard to academic policy must be

so routinely followed by the administration that they are effectively in control.

That being so, a particularly important aspect of determining whether the

professors at a particular college are “managerial” employees is the relative size

and nature of the college administration. If “the administration is fairly large in

relation to the size of the College” and “possess[es] the professional expertise [that

is] indispensable to the formulation and implementation of academic policy[,] [t]he

availability of this expertise within the ranks of the administration obviates the

College’s need to rely extensively on the professional judgment of its faculty in

determining and implementing academic policy.” Loretto Heights College, 742

F.2d at 1254 (quotation marks omitted). Inclusion of academic personnel, such as

15

deans and department chairs, in a college administration indicates that the faculty

does not control academic policy, because the point of including academics in the

administration is to give it independent capacity to determine academic policy. If a

college “has an effective buffer between the faculty and top management in the

form of [personnel who] perform administrative duties and are part of the

administration,” while “possess[ing] the professional expertise that [is]

indispensable to formulation and implementation of academic policy,” then the

nonadministrative teaching faculty are not “managerial” employees. St. Thomas

University, 298 NLRB 280, 287 (1990).

Equally important is the extent to which the college administration acts

independently of the faculty in formulating academic policy. To the extent that the

administration formulates academic policy without faculty advice – or, even more

tellingly, contrary to faculty advice – the administration’s actions conclusively

demonstrate that the faculty members’ role in formulating academic policy is at

most “merely advisory and thus not managerial.” Yeshiva, 444 U.S. at 683. Even

where the administration’s formulation of academic policy is always in accordance

with faculty advice, it must be shown that the administration is carrying out the

faculty’s directions – and not simply seeking the faculty’s advice – for that

circumstance to establish that professors are “managerial” employees.

Finally, the Board must remain cognizant of the Supreme Court’s

16

admonition that “[o]nly if an employee’s activities fall outside the scope of the

duties routinely performed by similarly situated professionals will he be found

aligned with management.” Yeshiva, 444 U.S. at 690 (emphasis added). As the

Court explained, this means “that professors may not be excluded merely because

they determine the content of their own courses, evaluate their own students, and

supervise their own research.” Id. at 690 n. 31. It is pertinent in this regard, that

professors determine the content of their courses not only by formulating the

specific contents of their assigned courses but also by participating more generally

in the determination of what other courses in their field will be offered by their

department.

5. THE PROFESSORS AT POINT PARK DO NOT EXERCISE SUFFICIENT AUTHORITY OVER ACADEMIC POLICY TO BE EXEMPT “MANAGERIAL” EMPLOYEES.

Under the legal analysis articulated by the Court in Yeshiva, the Point Park

faculty members clearly do not come within the implied “managerial” exemption

from the NLRA’s broad statutory definition of covered “employees.”

In 2002, Point Park was substantially restructured as part of the school’s

transition from a college to a university, so that its six academic departments were

folded into four newly created schools, each of which was headed by a Dean

appointed by the University President or someone in her administration. DDE 30-

32, 59-61. Notably, faculty members were not involved in the decision to change

17

the structure of the school nor were they involved in Point Park’s application for

university status. DDE 9.

The four Deans sit on a Deans Council along with the Vice President for

Academic Affairs and two directors. DDE 4. The Chairs of each Department

within a particular school – who are stipulated to be part of President Henderson’s

management team and thus were not included in the unit of teaching faculty that

voted on union representation – report to the particular Dean for their school.

DDE 4.3

As a result of the restructuring, an extensive academic managerial staff

encompassing at least 20 administrators – including the President, the Vice

President of Academic Affairs, the Associate Vice President of Academic Affairs,

the Deans, the Department Chairs and various Directors – runs the academic

program of the University. The existence of such an extensive academic

administration – including persons, such as the Deans and Department Chairs, who

are directly involved in the University’s day-to-day academic life – reduces the

dependence of the college administration upon the teaching faculty in setting

academic policy.

3 In its Request for Review, p. 12 n. 7, the University asserts that the “Department Chairs are members of the faculty.” That the Chairs may be both part of the faculty and part of the University management, as the parties have stipulated, merely demonstrates “that a rational line could be drawn between . . . faculty members, depending upon how a faculty is structured and operates.” Yeshiva, 444 U.S. at 691 n. 31.

18

As the Regional Director explained:

“[Faculty] input on academic matters became more diluted as the

Administration added even more administrators to its substantial

administrative staff. After restructuring the institution, the Administration

had not one, but two buffers between it and the faculty. The department

chairs and all but one program director were one buffer and the newly-

created deans comprised a second buffer.” DDE 10.

The ratio of academic administrator to full-time teaching faculty was 1 to 4. Supp.

Dec. 10 n. 11.

What is more, the hierarchy of authority clearly indicates that the teaching

faculty are not “managerial” employees. The teaching faculty report to their

respective Department Chairs, who report to their respective Deans, who report to

the Associate Vice President for Academic Affairs, who reports to the Vice

President for Academic Affairs, who reports to the President. DDE 4. Within this

chain of command, the teaching faculty can hardly be characterized as “so much

more clearly ‘managerial’ [than the academic administrators to whom they report]

that it [would be] inconceivable that the Board would treat them as employees.”

Bell Aerospace, 416 U.S. at 284.

The administration of Point Park University not only has the capacity to

formulate academic policy independently of the faculty but has frequently acted

19

independently in formulating academic policy. For example, the University

administration unilaterally implemented academic programs in Sports and Arts and

Entertainment, and created the Innocence Institute. DDE 14-17. It unilaterally

refused to implement academic programs approved by the faculty, including

faculty-suggested programs in construction management, vocal performance and

counseling. DDE 15. The administration also unilaterally altered existing

academic programs without faculty consultation – or, in some cases, over faculty

objection – such as the Government and International Studies Department, the

International Masters of Business Administration program, and the English as a

Second Language program. DDE 17-18, 24-25. And, the administration

unilaterally altered degree requirements by adding a required freshman seminar,

changing the requirements for an education degree, and unilaterally redesigning the

honors program. DDE 19-21.

Moreover, unlike the case in Yeshiva, Point Park’s administration’s authority

extends to many of the core professional activities typically exercised by faculty,

such as course content and student evaluations. For example, the university

administration unilaterally developed and implemented policies on online course

offerings and independent studies, DDE 21-22, decreed the use of a plus/minus

grading system despite faculty opposition, DDE 26-27, changed individual student

grades without following established procedures for faculty participation, DDE 27,

20

denied bonuses to professors who issued what the administration considered too

many A’s, DDE 59, and imposed syllabi requirements, DDE 59.

The fact that the University administration has acted independently of the

faculty in determining so many aspects of academic policy – as well as unilaterally

determining many core faculty professional matters – conclusively demonstrates

that the faculty’s “authority in academic matters is [not] absolute.” Yeshiva, 444

U.S. at 686. Rather, “the role of the faculty is merely advisory and thus not

managerial.” Id. at 683.

CONCLUSION

The National Labor Relations Board should adopt the Regional Director’s

determination of the appropriate bargaining unit and certify the results of the

election.

Respectfully submitted,

Joseph J. Pass Lynn K. Rhinehart Jubelirer, Pass & Intrieri James B. Coppess 219 Fort Pitt Blvd. Donna R. Euben Pittsburgh, PA 15222 Matthew J. Ginsburg (412) 281-3850 AFL-CIO

815 Sixteenth Street, NW Barbara Camens Washington, DC 20006 Barr & Camens (202) 637-5337 1025 Connecticut Avenue, NW Washington, DC 20036 (202) 293-9222 Attorneys for Amicus Curiae Attorneys for the Petitioner

CERTIFICATE OF SERVICE

I, James B. Coppess, hereby certify that on July 6, 2012, I caused to be

served a copy of the foregoing Brief on behalf of the Petitioner Newspaper Guild of Pittsburgh, CWA, AFL-CIO, and the American Federation of Labor and Congress of Industrial Organizations as Amicus Curiae, by electronic mail on the following: Arnold Perl Glankler Brown, PLLC 6000 Poplar Avenue, Suite 400 Memphis, TN 38119-3955 [email protected] /s/ James B. Coppess James B. Coppess



7.

AMICUS BRIEF OF NATIONAL EDUACATION ASSOCIATION

(UNDATED)

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

POINT PARK UNIVERSITY, Employer, and NEWSPAPER GUILD OF PITTSBURGH/COMMUNICATIONS WORKERS OF AMERICA, LOCAL 38061, AFL-CIO, CLC Petitioner.

Case No. 6-RC-12276

____________________________________________________

AMICUS CURIAE BRIEF OF THE NATIONAL EDUCATION ASSOCIATION ____________________________________________________

Alice O’Brien Philip A. Hostak Kristen Hollar National Education Association 1201 16th Street NW, Suite 820 Washington, DC 20036 Tel. (202) 822-7035 Fax: (202) 822-7033 Attorneys for Amicus National Education

Association

1

The National Education Association (“NEA”) submits this brief in response to the Notice

and Invitation to File Briefs issued by the National Labor Relations Board (“Board”) inviting

interested amici to file briefs addressing issues raised by the U.S. Court of Appeals for the D.C.

Circuit’s remand order in Point Park Univ. v. NLRB, 457 F.3d 42 (D.C. Cir. 2006). That order

instructs that the Board “explain the weight of the various factors identified by the Supreme

Court” in NLRB v. Yeshiva University, 444 U.S. 672 (1980), and, more specifically, “explain

‘which factors are significant and which less so, and why’ in determin[ing] that the faculty at

Point Park were not ‘managerial employees.’” Point Park, 457 F.3d at 49, 50 (citation omitted).

STATEMENT OF INTEREST OF AMICUS

NEA is a national labor organization representing more than three million education

employees, many of whom are employed in colleges and universities. NEA is strongly

committed to preserving the collective bargaining rights of education employees in both public

and private school systems—including employees of private colleges and universities.

Accordingly, amicus NEA strongly believes that the judicially created managerial exception to

the coverage of the National Labor Relations Act (“NLRA” or the “Act”), as applied to

university faculty in Yeshiva, must be analyzed judiciously so as to keep faith with the Supreme

Court’s teaching in Yeshiva while at the same time ensuring that the managerial exception is not

given such overly broad application as to deny protection to workers that the Act was intended to

cover.

STATEMENT OF FACTS

Point Park University is a private liberal arts university in Pittsburgh Pennsylvania with

about 3,200 students and a full-time faculty of 80 instructors, assistant processors, associate

professors, and professors. Point Park Univ., Case No. 6-RC-12276, Regional Director’s

Decision and Direction of Election at 5, 7, 15 (N.L.R.B. Region 6, April 27, 2004) (hereinafter

2

“Dec. & Dir. of Election”). The institution was originally founded in 1960 as Point Park

College. As explained in more detail below, the college’s administration—without faculty

approval or input—substantially restructured the institution in 2002 in order to effectuate the

administration’s plan to transform the institution into a university. The administration, then

successfully applied for a charter to operate as a university the following year. Dec. & Dir. of

Election at 7-8; Point Park Univ., Case No. 6-RC-12276, Regional Director’s Supplemental

Decision on Remand at 5, 7, 15 (N.L.R.B. Region 6, July 10, 2007) (hereinafter “Supp. Dec.”).

1. The Institution’s Governance and Operations

A. Governance

Point Park’s Board of Trustees is vested with ultimate authority to govern and manage

the university. Dec. & Dir. of Election at 10. The Board of Trustees consists of thirty-five

voting members, including the University President; the President of the Faculty Assembly sits

as an ex officio member of the Board of Trustees but has no voting rights. Id. Apart from this

non-voting member, the faculty has no other representation on the Board of Trustees. Id. at 10-

11.

Between meetings, the Board of Trustees’ authority is exercised by its Executive

Committee, which consists of no less than six trustees and the university president. Id. at 11.

Apart from the Executive Committee, the Board of Trustees has six other standing committees—

the Finance Committee, the Compensation Committee, the Development Committee, the

Nominating Committee, Planning and Facilities Committee, and the Academic and Student

Affairs Committee. Id. Faculty are represented only on the latter-most committee, which

consists of at least four trustees appointed by the Chair of the Board of Trustees, plus two faculty

members. Id. Thus, in the one standing governance committee in which the faculty has any

3

voice at all, faculty representatives are in the minority, with their votes outnumbered by Trustee

votes by a ratio of at least 3:1.

B. Administration

The day-to-day operations of the university are managed by a staff of twenty

administrators, including the University President, four vice-presidents, several associate and

assistant vice-presidents, the Deans of Enrollment Management and Community Outreach, the

academic deans of each of the university’s four schools, the academic chairs of the various

departments within those schools, and several program directors. Id. at 12-13. The ratio of

administrators to full-time faculty is 1:4. Supp. Dec. at 10 n.11. The administration sets tuition

and fee levels, establishes enrollment targets, and engages in fundraising. Dec. & Dir. of

Election at 12.

The University’s budget is prepared by the Vice-President of Finance and Operations

with no faculty input; the Vice-President of Finance and Operations submits the budget to the

Board of Trustees’ Finance Committee and ultimately to the full Board of Trustees for a vote.

Dec. & Dir. of Election at 12. The university’s enrollment goals are set by the Dean of

Enrollment Management, also without faculty input. Id. Those enrollment goals—which

effectively determine the size of the student body and thereby directly impact the delivery of

educational services by the faculty—are a particular point of contention between the university’s

administration, which has pursued an expansionary enrollment policy, and the faculty members,

who favor more modest enrollment targets that they believe more suited to the university’s

facilities, but who lack any voice in the shaping of enrollment policy. Id. at 13.

Academic policies are set by the Vice-President of Academic Affairs, upon

recommendations by two standing committees: The Deans Council and the Graduate Council.

Id. at 13. The Deans Council consists of the deans of the four schools, plus two program

4

directors, the Director of Library and the Director of Honors Program. Id. The Graduate

Council consists of the directors of each graduate program, who report to the chairs of the

various departments within which the graduate programs operate. Id. at 14.

C. Faculty

Point Park’s full-time faculty members act through their governing body, the Faculty

Assembly, which meets monthly throughout the academic year. Dec. & Dir. of Election at 15-

16. The Faculty Assembly has nine standing committees, including, of particular relevance here,

the Curriculum Committee, whose function is to make recommendations to the Faculty

Assembly concerning such matters as adding new courses, programs, and majors as well as

structural changes in existing degree programs and course offerings that have the potential to

have effects beyond a single department. Id. at 16 & n.32.

“The normal process” by which changes are made to undergraduate programs is as

follows: Since the 2002-03 restructuring, proposals would originate at the school level, whereas

before the restructuring, such proposals would originate from the departments. Dec. and Dir. of

Election at 17 & n.34. Any such proposal is referred to the Faculty Assembly’s Curriculum

Committee, which is empowered to either reject the proposal or recommend it to the full Faculty

Assembly for a vote. If the proposal is approved by the Faculty Assembly, it is then referred to

the Vice-President for Academic Affairs, who can either reject the proposal or submit it with a

recommendation for approval to the University President. Id. at 17 & n.35.

Graduate programs originate from the administration, which submits a statement of

design to the Pennsylvania Department of Education and then completes a program proposal to

the Graduate Council. Dec. & Dir. of Election at 18. If the Graduate Council approves the

program, the proposal then goes to the Faculty Assembly’s Curriculum Committee. Id. If the

Curriculum Committee approves the program, it is then submitted to the full Faculty Assembly

5

for a vote. Id. Programs approved by the Faculty Assembly are then submitted to the Vice-

President of Academic Affairs and the University President, who have final authority to approve

the program; if the President approves, the program must be resubmitted in its final form to the

Pennsylvania Department of Education. Id.

2. Decision-Making Regarding the Overall Nature and Direction of the Institution and the Structure of Departments and Academic Programs

Notwithstanding the fact that Point Park’s bylaws ostensibly require faculty consultation

“[f]or decisions that affect programs, curricula, or faculty,” Dec. & Dir. of Election at 17, the

reality is that major decisions regarding course offerings, the structure of degree programs and

departments, and the even the very nature of the institution have routinely been made by the

administration either without faculty consultation or contrary to the stated position of the faculty.

Most importantly, in the period from 2002 to late 2003, the administration of the

institution—then operating as Point Park College—began a major restructuring that culminated

in the transformation of the institution from a college to a university. Before 2002, the college

was organized into academic departments and programs, each headed by a department chair or

program director; the department chairs and program directors reported directly to the Vice-

President for Academic Affairs, who, in turn, reported to the University President. Supp. Dec. at

9 & n.9. In 2002, the administration, without faculty input or participation, created a new layer

of administration above the department chairs and program directors by creating four schools,

each headed by a dean—the School of Arts and Sciences, the School of Business, the

Conservatory of Performing Arts, and the School of Adult and Professional Studies. Id. at 10.

After this restructuring, there were “not one but two buffers” between the faculty and the

administration: “The department chairs and all but one program director … and the newly

created deans.” Id. Consequently, a substantial amount of authority shifted from the department

6

chairs and program directors to the deans of the four schools, thereby “dilut[ing]” the faculty’s

“input on academic matters.” Id.

After this restructuring, the administration of what was then Point Park College applied

for accreditation as a university. This action, too, was undertaken without faculty input; indeed,

the faculty was not informed of the administration’s decision to seek university status until after

the application was completed. Supp. Dec. at 9-10 & n.10. The application was finally

approved in October of 2003. Dec. & Dir. of Election at 7-8.

The administration also made substantial changes to departments and academic programs

without consulting the faculty. In 2001, for instance, the administration dismantled the

Government and International Studies Department and reassigned the courses previously taught

by faculty members from that department to the Business Department and the Humanities

Department. Id. at 14. Although this action required the Business and Humanities Departments

to offer additional courses, the faculty was not consulted before the administration implemented

this change. Id. In the same year, the administration also merged the International Master in

Business Administration (“International MBA”) degree program with the Master of Business

Administration (“MBA”) program. Id. at 15. The result of this merger was to cease offering the

International MBA degree program altogether, in favor of offering an “international business

track” within the MBA program, and to eliminate twenty-two international business course

offerings. Id. The administration effected this change without any consultation with the faculty.

Id. Also in 2001, the administration created a new program within the Department of Journalism

and Mass Communication called the Innocence Institute of Western Pennsylvania, thereby

creating new curriculum and independent study opportunities. Id. Again, the faculty was not

consulted on the creation of this new program. Id. at 16.

7

And in 2002, amidst the restructuring of the entire institution, the University President

decided to contract out the English as a Second Language (“ESL”) Program—previously run by

the Humanities and Human Sciences Department—to a private, for-profit company, Berlitz/ELS

Educational Services, Inc., and to reduce the number of ESL courses offered to international

students. Supp. Dec. at 16. This action was taken without faculty input and over the objection of

the chair of the Humanities and Human Sciences Department. Id. In the same year, the

administration, again acting unilaterally, changed the course requirements for students seeking

an undergraduate degree in Early Childhood Education and Elementary Education by adding a

required course and rejected the recommendation of the National Collegiate Honors Council to

offer a separate curriculum for students in Point Park’s Honors Program. Id. at 17-18.

3. Decision-Making Regarding Academic Policies

In the area of academic policy, too, the administration of Point Park frequently acted

unilaterally with respect to purely academic matters. As explained above, the administration’s

unilateral restructuring of programs and departments led to the elimination of more than twenty

academic courses, the elimination of the International MBA degree program, and the contracting

out and consequent reduction in ESL offerings. Of equal moment, in those instances in which

the administration did consult with the faculty concerning changes to existing academic

programs or the creation of new programs—as ostensibly required under the institution’s

bylaws—the administration frequently acted contrary to the faculty’s recommendations. With

respect to undergraduate programs, the Regional Director found that “the outcome of 4 out of 14

undergraduate programs, or approximately 29 percent of the undergraduate programs about

which there is evidence in the record, was not decided on by the faculty.” Id. at 12. This

included the administration’s decisions not to offer three degree programs recommended by the

Faculty Assembly and its creation of a new undergraduate degree program without faculty

8

approval. Id.; Dec. & Dir. of Election at 18. As to graduate programs, “the faculty’s

recommendation … was not followed [by the administration] nearly 17 percent of the time.”

Supp. Dec. at 13; Dec. & Dir. of Election at 18-19.

The administration showed a marked tendency to disregard the faculty’s purported

control over curriculum as outlined in the university’s Faculty Handbook. Supp. Dec. at 20.

Notably, in 2003, the administration unilaterally established new policies concerning online

courses, “special delivery courses,” independent study courses, and faculty-led study abroad

programs. Id. Specifically, the administration unilaterally created a stipend for the development

of online courses, required that faculty add fourteen hours of “special delivery courses” taught

outside the classroom, required approval by deans of all independent study courses, and

suspended study abroad programs. Id. at 20-21.

Decisions regarding admissions, enrollment targets, and tuition levels, as noted above,

are structurally committed to the administration, and nothing in the actual practice of the

institution shows that the administration chose to share that authority with the faculty. Id. at 23-

25, 32-33, 35.

The administration’s tendency to act unilaterally on academic matters even reached into

such areas as the development of course syllabi and the assigning of student grades. In 2003,

faculty members were provided with a detailed model syllabus developed by the administration

for the redesign of all classes, whereas faculty members previously were required to prepare a

syllabus for each course, without being subject to any particular model. Supp. Dec. at 30. At the

same time, the administration required faculty to assign library work and research for all students

and established attendance and grading policies directing faculty members to decrease student

grades by a set number of points for missing a specified number of classes, and to reduce

students’ grades by one full letter grade for all late assignments “without exception.” Id.

9

Administrative interference in grading also took the form of altering grades assigned to

individual students by faculty members. The Vice President for Academic Affairs unilaterally

ordered the registrar to change a student’s grade in an MBA course from a B- to an A and to

change in another graduate student’s grade to an A+ in order to raise the student’s grade-point

average to 4.0. Id. at 27. And the same Vice-President approved a committee’s determination to

change the grades of eighteen students in an undergraduate business class, even though the

committee process did not comport with the university’s process for student appeals of grading

decisions. Id.

4. Decision-Making Regarding the Terms and Conditions of Faculty Employment

The Point Park administration also displays a penchant for unilateral actions concerning

the terms and conditions of faculty employment to a significant degree.

The administration, for instance, repeatedly flouted the Faculty Handbook’s guidelines as

to faculty hiring by directly appointing tenure-track faculty, and in one instance promoting an

existing faculty member to chair a department, without convening a search committee of faculty

members. Id. at 36-37. As with appointments, the administration in three instances directed the

award of tenure despite Faculty Handbook requirements mandating that a departmental review

committee be established to review tenure requests. Id. at 43-44. These three incidents

constituted about seventeen percent of all tenure decisions during the relevant period. Id. at 44.

The administration also routinely ignored faculty input in the selection of deans and department

chars. Id. at 40-41.

Significantly, in 2002, amidst the overall restructuring of the institution, the University

President and the Vice-President for Academic Affairs decided to implement, for the first time in

the institution’s history, a comprehensive personnel manual for the entire university and engaged

10

an outside consultant to draft the policies—which has resulted in six separate draft volumes.

While the administration has allowed faculty an opportunity to comment on the draft policy, it

has set a tight deadline, and of course failed to involve faculty in the initial decision to

promulgate such policies or to hire a consultant rather than develop them in-house. Id. at 47.

Finally, and perhaps most importantly, the administration implemented a merit pay

system despite the fact that the Faculty Assembly voted the proposal down twice, and also

implemented a corresponding evaluation system for that purpose. Id. at 47.

PRIOR PROCEEDINGS

In late 2003, the Newspaper Guild of Pittsburgh, affiliated with the Communications

Workers of America, AFL-CIO, petitioned the Board to represent a unit consisting of

approximately 77 full-time faculty members at Point Park University, teaching artists, and

laboratory associates, but excluding the university’s president, vice-presidents, associate and

assistant vice-presidents, deans, department chairs, and part-time faculty. Dec. & Dir. of

Election at 5. The university’s administration argued that all members of the petitioned-for unit

are managerial employees excluded from the Act’s coverage. After a twenty-day hearing and

full briefing by the union and the university, the Regional Director issued his 109-page Decision

and Direction of Election, concluding that the university’s full-time faculty were not managerial

employees and that the proposed bargaining unit was an appropriate one.

The university sought review by the Board, which the Board denied by order dated June

23, 2004, without issuing a written opinion. After the bargaining unit’s members voted in favor

of the union’s representation in Board-supervised election, the union was certified as the

bargaining agent for the unit. The university refused to bargain in order to test the certification,

and the union filed unfair labor practice charges alleging a violation of the duty to bargain. The

11

Regional Director filed a complaint, which the Board resolved against the university on summary

judgment.

The university then filed a petition for review with the U.S. Court of appeals for the D.C.

Circuit. The court granted the petition on the ground that “the Board and the Regional Director

“failed to … explain which factors are significant and which less so, and why’ in their

determination that the faculty at Point Park were not ‘managerial employees.’” Point Park, 457

F.3d at 50 (citation omitted). Accordingly, the court remanded the case to the Board to provide

such an explanation. Id. at 50-51. The Board, in turn remanded the case to the Regional

Director, who issued his Supplemental Decision on July 10, 2007, in which he offered a fuller

legal analysis based on the same record. This review proceeding followed.

ARGUMENT

I. INTRODUCTION

The D.C. Circuit’s remand order in this case presents the Board with an opportunity both

to clarify its application of the Supreme Court’s teaching in Yeshiva in a way that is responsive

the D.C. Circuit’s direction that the Board “explain ‘which factors are significant and which less

so, and why,’” Point Park, 457 F.3d at 50, and to build on the Yeshiva factors, consistent with

the Supreme Court’s admonition that the factors it identified “are a starting point only, and that

other factors not present here may enter the analysis in other contexts,” 444 U.S. at 690 n.31. In

this regard, we suggest that the Board take due account of the substantial changes to the

landscape of academia that have that have occurred in the decades since the Supreme Court

issued its Yeshiva decision—many of which are amply reflected in the record here.

Accordingly, we suggest that the Board develop a decisional matrix for evaluating

whether faculty members in a particular institution of higher education are professional

employees protected by the NLRA that eschews the ‘laundry list’ approach but instead focuses

12

on the locus of decision-making in broad areas. Briefly stated, our suggested approach is this:

Analysis must begin, but certainly not end, with a careful consideration of the governance and

administrative structures of the institution, with an eye to the question whether the overall

structure suggests a hierarchical organization or a collection of collegial bodies with broadly

shared authority between faculty and administration. While this is a necessary starting point, it is

by no means the most important consideration. Far more significant is how the actual,

operational decisions are made in three critical areas: (a) decisions as to the structure of the

institution’s academic programs and/or the overall nature and direction of the institution; (b)

decisions as to the institution’s academic policies; and (c) decisions as to the terms and

conditions of faculty members’ employment. Consideration of the actual decision-making

process in these areas should be the backbone of the Board’s analysis. And on such analysis, the

full-time faculty included within the Regional Director’s Decision and Direction of Election

easily qualify as professional employees entitled to the protections of the Act, rather than

managerial employees who are excluded from the Act.

We will detail our proposed approach in Part II below, but in order to place the

discussion in its proper context, we will first discuss the development of the managerial

exception, with particular focus on its application in higher education settings, and then survey

broad developments in academia that post-date the Yeshiva decision that are pertinent to the

issues to be decided by the Board.

1. The managerial exception to the NLRA’s coverage is not stated in the text of the Act,

but in NLRB. v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267 (1974), the Court

concluded—based on an analysis of the legislative history of the Taft-Hartley Act of 1947 and

Board decisions prior to Packard Motor Car, 64 N.L.R.B. 1212 (1945), enforced 157 F.2d 80

(6th Cir. 1946), judgment aff’d 330 U.S. 485 (1947)—“that Congress intended to exclude from

13

the protections of the Act all employees properly classified as ‘managerial.’” Id. at 275. In

reaching this conclusion, the Court placed particular emphasis on the legislative rationales

underlying the Act’s express exclusion of supervisory employees (29 U.S.C. § 152(3)).1 The

Court found that the two houses of Congress, while in disagreement over the precise shape that

the supervisory exclusion should take, shared the concern that in Packard Motor Car, the Board

had broadly read the Act “to include those clearly within the management hierarchy” and thereby

potentially “depriv[ing] employers of the loyal representatives to which they were entitled” in

such a way as to impair productivity and “upset the balance of power between labor and

management.” Bell Aerospace, 416 U.S. at 281.

The Bell Aerospace Court did not endeavor to define the precise scope of the managerial

exclusion, although it did approvingly quote the Board’s definition of “managers” as set forth in

another case: “those who ‘formulate and effectuate management decisions by expressing and

making operative the decisions of their employer.’” Id. at 288, quoting Palace Laundry and Dry

Cleaning, 75 N.L.R.B. 320 (1947). Having done so, however, the Court closed its discussion of

the issue by saying “the Board ‘is now free to’ read a new and more restrictive meaning into the

Act.” 416 U.S. at 289 (citation omitted).

The Court revisited the managerial exclusion in the higher education context in NLRB v.

Yeshiva Univ., 444 U.S. 672 (1980). There, the Court further sharpened the definition of

exclusion, holding that managers “exercise discretion within, or even independently of,

1 The Act defines “supervisor” as:

any individual having the authority, in the interest of an employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of authority is not of a merely routine or clerical nature, but requires use of independent judgment. [29 U.S.C. § 152(11).]

14

established employer policy and must be aligned with management.” Id. at 683. The Court

elaborated that an employee is “aligned with management” if he or she “represents management

interests by taking or recommending discretionary actions that effectively control or implement

employer policy.” Id.

The Court in Yeshiva noted that these benchmarks were difficult to apply in the academic

context because, in contrast to the “purely hierarchical” structures common in industrial

organizations, private universities typically have “shared authority” structures pursuant to which

“authority … is divided between a central administration and one or more collegial bodies.” Id.

at 680. The Court also recognized the difficulty of distinguishing between explicitly-covered

professionals2 and those endowed with managerial status.3

Ultimately, however, the Court did not delve too deeply into this issue, as it concluded

that the faculty members at Yeshiva were clearly managerial because, in matters essential to the

operation of the university, they “exercise[d] authority which in any other context

unquestionably would be managerial.” Id. at 686. The Court summed up the evidence as

follows:

[The faculty members’] authority in academic matters is absolute. They decide what courses will be offered, when they will be scheduled, and to whom they will be taught. They debate and determine teaching methods, grading policies, and matriculation standards. They effectively decide which students will be admitted, retained, and graduated. On occasion their views have determined the size of the student body, the tuition to be charged, and the location of a school. …. To the

2 The Act defines “professional employees” as those who perform work “predominantly intellectual and varied in character … involving the consistent exercise of discretion and judgment in its performance ... requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study … or from training” the output of which “cannot be standardized in relation to a given period of time.” 29 U.S.C. § 152(12). 3 As the Board has acknowledged, “managerial authority is not vested in professional employees merely by virtue of their professional status, or because work performed in that status may have a bearing on company direction.” General Dynamics Corp., 213 N.L.R.B. 851, 857-58 (1974).

15

extent the industrial analogy applies, the faculty determines within each school the product to be produced, the terms upon which it will be offered, and the customers who will be served. [444 U.S. at 686.] The Board had argued that even though the faculty’s members effectively control

academic matters at Yeshiva, they should not be excluded from the Act because the

“independent professional” judgment they exercise mitigates the concerns over divided loyalty

that underlie the managerial exception. The Court rejected that approach, reasoning that “[t]he

problem of divided loyalty is particularly acute for a university like Yeshiva, which depends on

the independent professional judgment of its faculty to formulate and apply crucial policies

constrained only by necessarily general institutional goals.” Id. at 865-66.

Furthermore, as a factual matter, the Court rejected the union’s contention that the

faculty’s role was “merely advisory” and that the administration had the power to override the

professional advice offered by the faculty, concluding that “the fact that the administration holds

a rarely exercised veto power does not diminish the faculty’s effective power in policymaking

and implementation.” Id. at 683 n.17. In this regard, the Court pointed out that the record

revealed, inter alia, the following: “budget requests prepared by the senior professor in each

subject receive the ‘perfunctory’ approval of the Dean ‘99%’ of the time and have never been

rejected by the central administration”; that the deans of two of Yeshiva’s colleges “regard faulty

actions as binding”; that “[o]ne Dean estimated that 98% of faculty hiring recommendations

were ultimately given effect”; that “[t]he President has accepted all decisions by the Yeshiva

faculty as to promotions and sabbaticals, including decisions opposed by the Dean.” Id. at 675-

77 nn.3,4,&5.

At the same time, the Court took pains to outline the limits of its holding. The Court

made clear that its decision was not intended to “sweep all professionals outside the Act in

derogation of Congress’ expressed intent to protect them” and that faculty members who merely

16

engaged in “the routine discharge of professional duties in projects to which they have been

assigned” were not managerial employees, even if their inclusion in a bargaining unit involved

“some divided loyalty.” Id. at 690. In other words, that faculty members are performing the

traditional role of professors is not enough, without more, to confer “managerial” status.

Of critical significance here, the Court further stressed that its analysis was “a starting

point only, and that other factors … may enter into the analysis in other contexts.” 444 U.S. at

691 n.31. For example, the Court said that there may be “institutions of higher learning unlike

Yeshiva where the faculty are entirely or predominantly nonmanagerial.” Id. The Court went

on to note that “[t]here may be faculty members at Yeshiva and like universities who properly

could be included in a bargaining unit” but expressed no opinion on that issue because it was

“clear that the unit approved by the Board was too broad.” Id. .

Of equally critical importance at this juncture, the Court acknowledged the dissent’s

point that the “shared governance” structure on which the Court’s decision rests was becoming

less common in universities, even at that time, while pointing out that any such shift was “neither

universal nor complete” and stressing that, in any event, the Court’s “decision must rest on the

record before us.” Id. at 689 n.29.

2. Board decisions subsequent to Yeshiva have, to say the least, not displayed a

consistent approach. There is general agreement across existing decisions that the kind of

“absolute” faculty control over academic matters that drove the Court’s decision in Yeshiva need

not be shown, see, e.g., Lewis & Clark College, 300 NLRB 155, 163 fn. 41 (1990), and

Lemoyne-Owen College, 345 NLRB 1123 (2005), and that academic factors are generally more

significant than non-academic factors in the analysis because “the ‘business’ of a university is

education.” Yeshiva, 444 U.S. at 688.

17

However, this is largely where the decisions cease to agree. As Board Member Johanson

noted in University of Dubuque, 289 NLRB 349 (1988), the Board “has failed to develop an

integrated body of law” charting the point short of “absolute” control at which faculty members

are “expressing and making operative the decisions of their employer”—thereby becoming

managers—rather than acting in their own interests. Id. at 355 (member Johansen dissenting)

In a number of cases, however, the Board has given (in our view, appropriate) weight to

significant “non-academic” factors going to the structure and overall direction of the

institution—all of which have inevitable consequences for the academic enterprise even if they

do not constitute “academic policy” in a narrow sense. For example, in Cooper Union of Science

& Art, 273 NLRB 1768 (1985), enforced 783 F.2d 29 (2d Cir. 1986), the Board, in finding that

the faculty were not managerial employees, gave considerable weight to the fact that the

institution had engaged in major restructuring without faculty input. The Board stressed that the

administration had, without consulting the faculty and over faculty objections, engaged in two

restructurings: In the first, it “increase[ed] class size, increase[ed] the student-faculty ratio,

increase[ed] teaching loads, severely limit[ed] grants of tenure, reduc[ed] the number of full-time

faculty through attrition, and increase[ed] the proportion of adjunct faculty,” and in the second

“eliminated the divisions and the division head positions, leaving the schools the primary

structural academic units.” Id. at 1770-71. See also University of Great Falls, 325 NLRB 83, 83

(1997) (emphasizing that the administration was not only the driving force behind academic

policy but also “unilaterally established a law school” and “eliminated entire degree programs”

without faculty input).

Other cases suggest that that the locus of decision-making with regard to academic

policies, narrowly construed as those relating to curriculum, course schedules, teaching methods,

grading policies, admissions and graduation standards, student body size, and tuition rates—the

18

factors that, to be sure, primarily drove the Yeshiva decision—are perhaps the only factors of

significance. See, e.g., Livingstone College, 286 NLRB 124 (1987) (“Given that the business of

a university is education, it is the faculty members’ participation in formulating academic policy

that aligns their interest with that of management. . .”).

In New York Univ. Med. Ctr., 324 NLRB 887 (1997), the Board endeavored to succinctly

explain its method for evaluating faculty bargaining cases where the managerial exception was at

issue, but managed instead to underscore this tension in its case law. There, the Board concluded

that “[w]here faculty members have been afforded protection under the Act, the Board has relied

on the fact that the administration either unilaterally or effectively made the decisions essential to

university operations.” At the same time, however, the Board noted that it had denied NLRA

coverage to a group of faculty members in University of Dubuque, 289 NLRB 349 (1989), where

faculty members were generally in the minority on committees that formulated academic

policies,4 and where “the administration vetoed a majority of the faculty members’

recommended decisions.” Id. at 350, citing New York Univ. Med. Ctr., 324 NLRB at 910.

As the dissent in Dubuque noted, denying the protection of the Act to employees is “a

serious matter.” 289 NLRB at 354 (Member Johansen, dissenting). Implicit exclusions such as

the managerial exclusion “must be narrowly construed to avoid conflict with the broad language

of the Act, which covers ‘any employee,’ including professional employees.” David Wolcott

Kendall Mem. School, 866 F.2d at 160 (citation omitted). The Supreme Court itself has agreed

with this general principle, noting that “administrators and reviewing courts must take care to

4 For example, three faculty members were on the nine-member committee that set admission, retention, and student discipline policies; three faculty members sat on the seven-member committee that made policy related to the distribution of financial aid; and five faculty members sat on the sixteen-member committee on Educational Policies. In the cases of the admissions and financial aid committees, the faculty members were appointed by the university president rather than the faculty. Dubuque, 289 NLRB at 350.

19

assure that exemptions from NLRA coverage are not so expansively interpreted as to deny

protection to workers the Act was designed to reach.” Holly Farms Corp. v. NLRB, 517 U.S.

392, 399 (1996).

3. Underlying all this ferment in the case law is historical reality: While both Yeshiva

and Board decisions after Yeshiva have rested on a strong a view of the “shared governance”

university, the landscape of higher education is changing rapidly. Universities ever less

frequently resemble the collegial institutions referenced in Yeshiva. As institutions of higher

education have become increasingly similar to large businesses, power over both academic and

non-academic decision-making has become more centralized in administrative bodies, with a

corresponding reduction in faculty authority. See Benjamin Ginsberg, The Fall of the Faculty:

The Rise of the All-Administrator University and Why it Matters, at 1-7 (Oxford University

Press, 2011). These administrative bodies often contain large numbers of specialized personnel,

such that faculty recommendations are not implemented in many areas deemed important in

Yeshiva—if, indeed, professional advice in these areas is sought from faculty at all. Id. The

result of these changes is that an increasing portion of universities are not “like Yeshiva,” 444

U.S. at 689, and faculty members at such institutions serve in an advisory role, at best, not a

managerial role.

Universities also increasingly rely on contingent faculty, including part-time and adjunct

employees. See Michael W. Klein, Declaring an End to “Financial Exigency”? Changes in

Higher Education Law, Labor, and Finance, 1971-2011, 38 J. College & Uinv. L. 221, 271-

72 (2012) (“Between 1995 and 2007, contingent faculty came to outnumber tenured faculty. ….

By 2007, the proportion of tenure and non-tenure faculty was reversed. Only 21.3% of faculty

were full-time tenured, and 9.9% were full-time tenure-track.” (footnotes omitted)). Such

contingent faculty members are truly confined to “the routine discharge of professional duties in

20

projects to which they have been assigned” and cannot reasonably be considered managerial.

Yeshiva, 444 U.S. at 690. The advent of online distance learning is creating a sea change from

real-time, in-person course offerings to virtual, online offerings. See Laura N. Gasaway,

Impasse: Distance Learning and Copyright, 62 Ohio St. L.J. 783, 784 (2001) (noting that “[t]he

number of distance education courses and degree programs offered in the United States grew by

72% from 1995 to 1998,” such that “[a]lmost 1,700 institutions offer about 54,000 online courses

with a total student enrollment of approximately 1.6 million” (footnotes omitted)). This

development also has the potential to create a disconnect between many faculty members and

their employing institution’s governance structures. Particular care should be taken to ensure

that the managerial exception is not applied too broadly in these settings.

Given the inconsistent application of the managerial exception and the realities of private

university governance more than thirty years after Yeshiva, this case presents an important

opportunity for the Board to clarify its interpretation of that case in a manner that remains true to

the mandates of the NLRA. A rigorous analysis is needed that can serve as a blueprint for future

cases in determining whether faculty members are managerial so that those who are properly

covered as professionals under the act are not deprived of their statutory right to organize.

II. THE BOARD MUST DEVELOP A RIGOROUS ANALYSIS FOR DETERMINING WHETHER FACULTY MEMBERS ARE MANAGERIAL THAT IS CONSISTENT WITH BOTH YESHIVA AND THE PURPOSES OF THE NATIONAL LABOR RELATIONS ACT

The Board should develop an integrated theory of the application of Yeshiva to present-

day institutions of higher education by honing the approach in Yeshiva in a way that ensures that

only faculty members who exercise broad authority in areas critical to the university’s operations

as an educational institution are classified as managerial—that is, only those faculty members

who, like the faculty in Yeshiva, have actual control over “the product to be produced, the terms

21

upon which it will be offered, and the customers who will be served.” Yeshiva, 444 U.S. at 686

n.17. This will require a detailed analysis of which factors or areas of control “are significant

and which less so, and why,” Point Park, 457 F.3d at 50, as well as what factors should be

considered in determining whether the faculty members in question exercise an adequate level of

control in each of these areas and in the institution as a whole that it “pervasively operate[s] the

enterprise.” Yeshiva, 444 U.S. at 691.

As noted above, this case presents the Board with an opportunity both to clarify its

application of Yeshiva in a way that is responsive the D.C. Circuit’s remand order and to build on

the Yeshiva factors, consistent with the Supreme Court’s admonition that the factors it identified

“are a starting point only, and that other factors not present here may enter the analysis in other

contexts,” 444 U.S. at 690 n.31. Consequently, it is eminently possible to keep faith with the

Court’s teaching in Yeshiva while accounting for the substantial changes to the landscape of

academia that have that have occurred in the decades since the Supreme Court issued its Yeshiva

decision—changes that are evident in the record in this case.

A. Which Factors Are Significant, Which Less So, And Why

We propose that the Board develop a decisional matrix for evaluating whether faculty

members in a particular institution of higher education focusing on the locus of decision-making

in broad areas, prioritized according to those that have the greatest impact on the creation and

delivery of the institution’s product—educational services. This case is a particularly apt vehicle

for developing such a decisional matrix both because the record here reflects the historical trends

in academia and because the Regional Director’s Supplemental Decision on Remand and the

earlier Decision and Direction of Election here go a long way toward providing the Board with

an outline for “explain[ing] ‘which factors are significant and which less so, and why,’” Point

Park, 457 F.3d at 50. As the court in Yeshiva observed, “the business of a university is

22

education” and its “vitality” depends on the academic policies the school chooses to implement.

Yeshiva, 444 U.S. at 688. Based on this cogent observation, the Regional Director’s

Supplemental Decision suggests that the most logical way to prioritize the Yeshiva factors is to

place the most emphasis on those with the greatest and most direct impact on “the creation and

delivery” of the “product” of that business. Supp. Dec. at 57. Hence, we provide a slightly

modified and supplemented reiteration of the Regional Director’s analysis below.

1. The Institution’s Formal Governance and Administrative Structure

The analysis must begin with a careful consideration of the governance and

administrative structures of the institution, with an eye to the question whether the overall

structure suggests a hierarchical organization or a collection of collegial bodies with broadly

shared authority between faculty and administration. To be sure, the formal structure of the

institution is not the most significant factor in the analysis; rather, it is the actual operational

decision-making within the institution that largely determines whether faculty can properly be

considered either “managerial employees” or “professional employees.” But it is well-nigh

impossible to analyze an institution’s actual operations without first getting a handle on the

institution’s formal structure. See Cooper Union of Science & Art, 273 NLRB 1768, 1768

(1985) (“We review first the formal governance structure for faculty participation in institutional

decision making and then actual governance practice.”).

In this regard, we believe that the following features of formal governance structures are

the most important: (a) the degree of faculty representation, if any, on the governing board and

governance committees; (b) the size of central administration relative to the faculty; (c) the

number of layers of authority between the faculty and the institution’s governing board; and (d)

the authority granted to administrators. See generally Elmira College, 309 N.L.R.B. 842 (1992);

23

Duquesne University, 261 N.L.R.B. 587 (1982); Loretto Heights College, 264 NLRB 1107

(1982).

In this case, these factors suggest that faculty at Point Park are not managerial employees:

Faculty have no voting representatives on Point Park’s Board of Trustees, but only a single, non-

voting representative, and they have only a small minority of voting members on one of the eight

standing governance committees, the Curriculum Committee. The size of the central

administration at Point Park, while not large in absolute terms, is certainly outsized in relation to

faculty, as there is one administrator for every four faculty members. Cf. Loretto Heights

College, 264 NLRB at 1121 (a cadre of three administrators for every faculty member provided

an “effective buffer between the faculty and top management”). Since Point Park’s

restructuring, there are multiple layers of administration between the faculty and the Board of

Trustees (the department chairs, the deans of the schools, the Vice-President of Academic

Affairs, and the President). Broad, unshared authority is committed to administrators regarding

the university budget, tuition rates, and enrollment targets.

2. The Actual Operational Decision-Making of the Institution

As noted above, although an examination of the institution’s formal governing structures

is a necessary and first step, and is not insignificant in its own right, it is hardly the most

important part of the analysis. Rather the heart of the analysis should be, as Yeshiva and post-

Yeshiva Board cases have recognized, a thorough consideration of the locus of actual,

operational decision-making within the institution—“the law of the shop,” to borrow a phrase

from the industrial context.

Although this much is clear, the Board’s challenge—as the D.C. Circuit’s remand order

makes plain—has lain in articulating which types of decisions are the most significant and why.

We believe that the path forward can be drawn from existing case law and the Regional

24

Director’s decisions in this case, provided that the Board eschews the case-by-case ‘laundry list’

approach—which, due to the peculiarities of each particular case and each particular institution

does not always provide adequate guidance in other cases—and instead focus on three broad

areas of decision-making, prioritized according to their effects on the delivery of educational

services: (a) decisions as to the structure of the institution’s academic programs and/or the

overall nature and direction of the institution; (b) decisions as to the institution’s academic

policies; and (c) decisions as to the terms and conditions of faculty members’ employment.

Needless to say, given the variation among institutions, the precise contours of decision-making

in these broad areas will doubtless vary from case to case, but we believe that these three areas

are critical to the determination whether faculty are, in fact, managerial.

(a) Decision-Making Regarding the Overall Nature and Direction of the Institution and the Structure of Departments and Academic Programs

It would be difficult to posit a set of decisions that have more impact on the delivery of

educational services than fundamental decisions as to the overall nature and direction of an

institution of higher education as well as more granular decisions about the structure of academic

departments and programs. To be sure, such decisions were not part of the record in Yeshiva,

and thus did not feature in the Court’s articulation of the factors driving its conclusion that

Yeshiva faculty were managerial employees, but we believe that, where applicable, such

decisions fall comfortably within the “other factors not present [at Yeshiva that] may enter into

the analysis in other contexts.” 444 U.S. at 690 n.31.

Decisions as to the overall nature and direction of an educational institution—like the

Point Park administration’s decision to transform the college into a university—are

quintessential managerial functions. They are, in the higher education context, equivalent to the

types of decisions that Justice Stewart, in his now-canonical concurrence in Fibreboard Paper

25

Products Corp. v. NLRB, 379 U.S. 203 (1964), identified as constituting “the core of

entrepreneurial control,” in the industrial context—i.e., “[d]ecisions concerning the commitment

of investment capital and the basic scope of the enterprise.” Id. 223 (Stewart, J., joined by

Douglas and Harlan, JJ., concurring). Just as such decisions “are fundamental to the basic

direction of a corporate enterprise,” id., so, too, decisions as to the nature and direction of an

institution are fundamental to the educational enterprise conducted by higher education

institutions.

Here, the Point Park administration’s unilateral decisions to restructure the institution and

thereby transform from a liberal-arts college, with semi-autonomous departments reporting

directly to the college’s top administrators, into a university in which departments are

subordinate to schools and the school report up the administrative chain, were obviously

fundamental to the academic enterprise. Consequently, the complete exclusion of faculty from

any input into those fundamental decisions at Point Park points strongly toward the conclusion

that Point Park’s faculty are not managerial.

But such fundamental restructuring and reorienting decisions are not the only types of

decisions that fall into this category. Decisions regarding more modest structural changes—e.g.,

the creation, merger, or elimination of academic programs, or the decision to contract out

educational services to a private vendor, all of which occurred at Point Park without faculty

involvement—also are inherently managerial. Cf. Fibreboard, 379 U.S. at 210-11 (“To hold, as

the Board has done, that contracting out is a mandatory subject of collective bargaining would

promote the fundamental purpose of the Act by bringing a problem of vital concern to labor and

management within the framework established by Congress as most conducive to industrial

peace.”). And again, the Point Park administration’s unilateral actions in these areas also points

strongly to the conclusion that the faculty are not managerial employees. See Cooper Union of

26

Science & Art, 273 NLRB 1768 (1985), enforced 783 F.2d 29 (2d Cir. 1986); University of Great

Falls, 325 NLRB 83, 83 (1997); St. Thomas Univ., 298 NLRB 280 (1990).

(b) Decision-Making Regarding Academic Policies

Of no less significance are decisions regarding academic policies—the types of decisions

that form what the D.C. Circuit has aptly called “the heart of the Court’s decision in Yeshiva.”

Point Park, 457 F.3d at 403. As these traditional Yeshiva factors are well-nigh universally

considered of paramount importance in the Board’s post-Yeshiva case law, we need not elaborate

on their significance to the delivery of educational services by the institution. To reiterate, the

Court concluded that Yeshiva’s faculty were “clearly managerial” because their authority over

the following academic polices was “absolute”:

They decide what courses will be offered, when they will be scheduled, and to whom they will be taught. They debate and determine teaching methods, grading policies, and matriculation standards. They effectively decide which students will be admitted, retained, and graduated. On occasion their views have determined the size of the student body, the tuition to be charged, and the location of a school. …. To the extent the industrial analogy applies, the faculty determines within each school the product to be produced, the terms upon which it will be offered, and the customers who will be served. [444 U.S. at 686.]

While there is no need to elaborate on the importance of these factors, the key question arising in

most contemporary colleges and universities will turn on the degree of administrator or faculty

control over these decisions. See David M. Rabban, Distinguishing Excluded Managers from

Covered Professionals Under the NLRA, 89 Colum. L. Rev. 1775, 1800 (1989) (“The crucial

issue in distinguishing between professionals and managers … is not whether professional work

has a direct impact on company policy, but rather who makes the effective decision to accept or

reject professional advice. This decisionmaker, who may or may not have professional training,

is a manager.”). As the Board’s cases recognize, faculty need not have “absolute” authority over

27

such decisions to be considered managerial, but lines must be drawn where there are still vestiges

of the “shared control” model.

While the degree of faculty control over matters related to programs of study and

curriculum is of signal importance, it must be emphasized that “professors may not be excluded

merely because they determine the content of their own courses, evaluate their own students, and

supervise their own research” still stands. Yeshiva at 690 n.31. Rather, it is control of overall

educational policy that is significant. By the same token, where the administration has

established a pattern of overriding faculty members on basic pedagogical matters, the inference

may be drawn that faculty power is extraordinarily weak.5

In this regard, Point Park is an instructive case. While it certainly cannot be said that

Point Park’s faculty members are excluded from decision-making on all matters of educational

policy to the same degree that they are from restructuring decisions, the record nevertheless

discloses a pattern of unilateral actions by the administration on matters ranging from course

offerings to individual students’ grades.

As explained above, decisions regarding admissions, enrollment targets, and tuition

levels, as noted above, are structurally committed to the administration, and are effected by the

administration without faculty input in actual practice. And the administration’s unilateral

restructuring of programs and departments resulted in the elimination of more than twenty

academic courses, the elimination of the International MBA degree program, and the contracting

out and consequent reduction in ESL offerings.

In those instances in which the administration did consult with the faculty concerning

changes to existing academic programs or the creation of new programs, the administration 5 In St. Thomas Univ., for example, the fact that faculty members were severely constrained in drafting syllabi, selecting course materials, and changing course grades was seen as an indication that they were not managers. 298 NLRB at 283.

28

frequently acted contrary to the faculty’s recommendations: The administration rejected

approximately 29 percent of the faculty’s recommendations as to undergraduate programs nearly

17 percent of the faculty’s graduate program recommendations.

The administration unilaterally established new policies concerning online courses,

“special delivery courses,” independent study courses, and faculty-led study abroad programs,

created grading policies tied to student absences, and established a model syllabus. The

administration’s interference in academics even reached the arena of individual student grades,

with the Vice President of Academic Affairs ordering the alteration of numerous individual

students’ grades.

(c) Decision-Making Regarding the Terms and Conditions of Faculty Members’ Employment

Finally, the Board should also take into account decisions concerning the terms and

conditions of faculty members’ employment. Although this factor relates to subjects that are

critical in bargaining and of obvious importance to faculty members qua employees, it should

receive the least weight in the consideration of managerial status. That is because according

these factors greater significance would run the risk that the judicially created “managerial

exception” would become redundant of the statutory exemption of supervisors. And the weeding

out of supervisory employees can be accomplished by application of the proper exception. That

said, a similar pattern of unilateral action by Point Park’s administration is evident in this

decision-making area as well.

The administration, for instance, repeatedly flouted the Faculty Handbook’s guidelines by

directly appointing tenure-track faculty, and in one instance promoting an existing faculty

member to chair a department, without convening a search committee of faculty member, and by

directed the award of tenure despite Faculty Handbook requirements mandating that a

29

departmental review committee be established to review tenure requests. The administration

also routinely ignored faculty input in the selection of deans and department chars.

And, in 2002, amidst the overall restructuring of the institution, the administration began

the process of drafting and implementing university-wide personnel policies without involving

faculty in the decision to adopt such new policies. And, perhaps most importantly, the

administration implemented a merit pay system despite the fact that the Faculty Assembly voted

the proposal down twice, and also implemented a corresponding evaluation system for that

purpose.

Thus, even though these decisions are not entitled to the same weight as the classes of

decisions discussed above, they likewise point decidedly toward the conclusion that the faculty

members at Point Part are not managerial employees.

B. The Board Should Issue Broad Guidelines as to the Level of Control Necessary for Faculty to be Considered Managerial

Once the Board identifies and prioritizes the subject areas as described above, it is faced

with what is perhaps an even more important—and more daunting—task. Existing decisions

have often failed to articulate factors to be considered in determining the level of control

exercised in each of these areas, as well as how to determine the overall balance of power

between the faculty and the administration. This is understandable; given the Court’s finding of

“absolute” control in Yeshiva, no further analysis was apparently seen by the Court as necessary.

However, as existing decisions seem to agree that something less than “absolute” control can

indicate managerial status, it is critical that the Board identify factors to be considered on the

“level of control” issue as well as the weight given to the various areas of control as explained

above.

30

Existing cases on faculty bargaining and the Regional Director’s Supplemental Decision

on Remand allow us to draw out a number of factors that ought to be considered in determining

control, some of which overlap with the analysis of the areas of control discussed above. These

are: (1) the institution’s governing documents, (2) the size and sophistication of administration

and closeness of its relationship to the faculty (3) which party prevails in the event of a conflict,

(4) the specific makeup and power of faculty committees, (5) whether the administration makes

important decisions that impact academics without consulting the faculty or in circumvention of

regular processes, (6) what has changed in the overall balance of power between the faculty and

the administration, and how the changes were implemented.

It bears reiteration at the outset that, like the areas-of-control analysis, this analysis must

focus on the level of control that the faculty in fact exercises. The institution’s governing

documents serve again as an entry point, but they should not be taken at face value. In Yeshiva,

the Court looked to the actual authority exercised by the faculty and whether its actions were

“regard[ed] as binding,” 6 not to the “rarely exercised veto power” that governing documents

gave to the administration. Yeshiva, 444 U.S. at 683 n.17 (1980). “The relevant consideration”,

said the Court, is not some theoretical “final authority”, but “effective recommendation or

control”—that is, whose decisions were implemented. Id. This distinction is important

regardless of whether it is the faculty or the administration that appears to hold official final

authority. In Bradford College, 261 NLRB 565 (1982), for example, the Board found that the

6 In Yeshiva, the Court noted that some witnesses in the case could not recall a single occasion when a faculty recommendation was overruled. Yeshiva, 444 U.S. at 677 n.4-5. See also University of Great Falls, 325 N.L.R.B. 83 (1997) (stating that there must be “clear evidence that faculty recommendations [a]re generally followed.”); Florida Mem’l College, 263 NLRB 1248 (1982) (no managerial status where faculty recommendations were frequently overruled and were nothing more than “a sophisticated version of the familiar suggestion box.”), overruled in part on other grounds, Detroit College of Bus., 296 NLRB 318 (1989).

31

faculty were non-managerial where governance documents indicated they had substantial

authority, but in practice they had little.7

In determining the level of credence to give to governing documents, the Board should

consider whether the policies and procedures contained therein are followed in practice. Even

where the policies are followed, it is important to consider who initially drafted the documents,

who has the right to revise them, and whether this revision right has been exercised. If the

governing documents favor faculty power, but that power has been reduced by the

administration’s unilateral revision of the documents, it may be a sign that the faculty does not

truly serve in a managerial capacity.

The size and sophistication of the administration should be a primary consideration in

any analysis of control. In Yeshiva there were deans at each of the university’s subsidiary

schools, but the faculty committees were much larger by comparison, the deans were not experts

in academic policy, and the administration therefore depended on faculty expertise in order to

make policy. Yeshiva, 444 U.S. at 689. By contrast, in Loretto Heights College, 264 NLRB 1107

(1982), the college had roughly one administrator for every three faculty members, and this

created an “effective buffer between the faculty and top management” that supported a finding

that unit members were non-managerial. The Tenth Circuit enforced the Board’s ruling, further

noting that, unlike in Yeshiva, “[t]he availability of this expertise within the ranks of the

administration obviates the College’s need to rely extensively on the professional judgment of its

faculty in determining and implementing academic policy.” Loretto Heights College v. NLRB,

7 “In sum, while the faculty and division chairs have the written right to make recommendations, the record shows that such recommendations were often ignored or reversed by the president, by the academic dean, or by both with respect to curriculum, admission policies, graduation of students, course loads, course scheduling, grading of students, faculty hiring or retention, tuition, and faculty salaries.” Bradford College, 261 NLRB at 566-67. But see University of Dubuque, 289 NLRB 349 (1989).

32

742 F.2d 1245, 1254 (10th Cir. 1984). This “effective buffer between the faculty and top

management” also proved to be important in assessing the level of authority in St. Thomas Univ.,

298 NLRB 280 (1990).

The authority and membership of decision-making bodies should also be considered in

great detail. Formerly, in “mature universities” like Yeshiva, such committees held considerable

sway. In today’s “big business” university, this may not be the case. If faculty members do not

comprise a majority of the group, “control” over any policies made by the group cannot fairly be

considered probative of faculty managerial status. In addition, it is important to consider

whether the administration has the power to reorganize or dissolve such committees, to set their

agendas, see Kendall Sch. of Design, 279 NLRB 281 (1986), or prevent them from meeting—and

whether it has exercised this power, either directly or indirectly by reorganizing committees’

parent departments, see Cooper Union of Science & Art, 273 NLRB 1768, 1770 (1985) (holding

that faculty members were employees where trustees restructured academic organization over

strong faculty opposition), enforced, 783 F.2d 29 (2nd Cir. 1986). Finally, if important decisions

that would ordinarily fall within the committee’s jurisdiction are decided by the administration

before the committee is consulted or entirely outside of the committee system, this would be a

strong indicator that the committees are “merely advisory,” Yeshiva, 444 U.S. 672, 683 n.17, and

thus non-managerial. See St. Thomas Univ., 298 NLRB 280 (1990) (holding that faculty were

not managerial where a faculty committee was established to make recommendations on

academic matters, but its recommendations were seldom implemented, and the administration

often made academic policy on its own without consulting the committee).

A related consideration is whether it is the opinion of the faulty or the administration that

tends to prevail in the event of a conflict. In the absence of conflict, it is likely that the

administration will rely on the informed recommendations of professional educators. If the

33

administration acts contrary to this advice when issues that are most significant to the academic

interests of the school arise, it may be that it sees faculty power as a privilege that it can choose

to deny. See, e.g., Kendall Sch. of Design, 279 NLRB 281, 293 (1986) (“Where faculty views

are known to conflict with the Administration’s, it is the latter’s views which predominates.”).

This factor is not limited to decisions directly concerning academics. Contrary to the

assertions of the American Council of Education and others in their amicus brief, structural

changes should not be divorced from an analysis of faculty control. As explained above, there

may be numerous academic consequences to such decisions, especially where academic

departments are restructured, as in the instant case. The level of faculty control over the growth

of the administration and the appointment of key administrative heads—such as presidents, vice-

presidents, provosts, deans, and department chairs—is relevant for similar reasons. Particular

attention should be paid to these factors where they result in a change in faculty power vis-à-vis

the administration.

Finally, in every case, the Board should also consider the dynamic nature of university

governance. This includes an inquiry into how the faculty obtained whatever power it possesses,

as well as whether, why, and to what extent that power has changed. There may be cases where

universities that had small administrations and large and influential faculties at one time, but

have since changed dramatically.

III. Given the Existing Inconsistencies in Board Law, Decisions that have Strayed from the Principles of Yeshiva Ought to be Overruled.

The Court of Appeals remanded this case to the Board because the university made “a

significant showing that analogous cases have been decided differently” and the Board did not

rebut that showing to the Court’s satisfaction. Point Park Univ. v. NLRB, 457 F.3d 42, 49 (D.C.

Cir. 2006). Given the inconsistencies between Board decisions to date as explained supra, this

34

problem is likely to recur even if NEA’s recommended analysis—or any other analysis that

comports with Yeshiva—is applied. Accordingly, it is essential that the Board overrule decisions

that directly conflict with the limited application of the managerial exception articulated in

Yeshiva.

Most notably, in Dubuque, 289 NLRB 349, the faculty exercised partial control in less

than half of the areas mentioned in Yeshiva, and were generally in the minority on policymaking

committees. In Lewis and Clark College, 300 NLRB 155 (1990), the Board assigned managerial

status to the faculty in spite of its observation that the administration had unilaterally created

“umbrella committees” within the institution’s governance structure. These committees

implemented new programs into the curriculum over faculty objection. And in Livingstone

College, 286 NLRB 1308 (1987), faculty members were excluded on the basis of managerial

status due to their influence in academic matters, even though they possessed no authority in

non-academic matters. While non-academic matters may not always command the same

importance as purely academic matters in some settings, as this case demonstrates, non-academic

matters can and should be highly significant, particularly where an institution engages in

restructuring that affects the delivery of educational services.

Those decisions quite simply cannot be squared with a proper understanding of the

Court’s holding in Yeshiva, and indeed cannot be squared with many of the Board’s own

precedents. See St. Thomas Univ., 298 NLRB 280 (1990); University of Great Falls, 325 NLRB

83, 83 (1997); Cooper Union of Science & Art, 273 NLRB 1768, 1773 (1985), enforced 783 F.2d

29 (2d Cir. 1986); Florida Mem'l College, 263 NLRB 1248 (1982). Accordingly, the Dubuque,

Lewis and Clark College, and Livingstone College decisions are due to be overruled.

35

CONCLUSION

NEA hopes that this amicus brief proves helpful to the Board’s deliberations in this case

and respectfully requests that it adopt the recommendations herein.


Alice O’Brien Philip Hostak Kristen Hollar National Education Association Office of General Counsel 1201 16th Street NW, Suite 820 Washington, DC 20036 Tel. (202) 822-7035 Fax: (202) 822-7033



8.

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REGION SIX


Employer,

and Case 06-RC-012276

NEWSPAPER GUILD OF PITTSBURGH/ COMMUNICATIONS WORKERS OF AMERICA LOCAL 38061, AFL-CIO, CLC

Petitioner.

__________________________________________

BRIEF OF AMICUS CURIAE, AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, IN SUPPORT OF PETITIONER, NEWSPAPER GUILD OF

PITTSBURGH/COMMUNICATION WORKERS OF AMERICA LOCAL 38061, AFL-CIO, CLC

Of Counsel

Kathi S. Westcott, Esq. Risa L. Lieberwitz Senior Counsel Professor American Association School of Industrial of University Professors and Labor Relations 1133 19th Street, NW, Ste. 200 Cornell University Washington, DC 20036 361 Ives Hall 202-737-5900 Ithaca, NY 14853 [email protected] 607-225-3289

1

TABLE OF CONTENTS

Statement of Interest of Amicus Curiae ...........................................................................................2

Statement of Facts ...........................................................................................................................3

Argument ........................................................................................................................................4

I. Introduction ...................................................................................................................4

II. Response to Questions 3 and 4 ......................................................................................4

III. Response to Question 7 .................................................................................................6

A. Overview of nationwide trends that have changed the context of the university ....6

B. Universities’ increasing use of a corporate business model and the significant expansion of university administration have eroded faculty effective control and effective recommendations over academic affairs ................................................12

1. In the three decades since the Yeshiva decision, the university context has changed through the adoption of a corporate business model that has expanded the size and power of university administration ...........12

2. The expanded size and authority of university administration has decreased faculty authority to effectively control or make effective recommendations about academic affairs ...........................................18

a.) Increasing university administrative authority over academic matters ...........................................................................................20

b.) Increasing university administrative authority over nonacademic matters .....................................................................24

c.) Increasing conflict between administration and faculty ...........26

3. Summary: Factors relating to expanded administration size and authority ...............................................................................................29

4. University administrations increasingly respond to external market forces rather than faculty views and recommendations ......................30

C. An accurate assessment of faculty status under Section 2(12) should take into

account factors related to the university’s use of the corporate business model of decision-making ....................................................................................................34

Conclusion ....................................................................................................................................37

2

STATEMENT OF INTEREST OF AMICUS CURIAE

The American Association of University Professors (“AAUP”), founded in 1915, is a

non-profit organization of over 48,000 faculty, librarians, graduate students, and academic

professionals, a significant number of whom are private sector employees. Its purpose is to

advance academic freedom and shared university governance, define fundamental professional

values and standards for higher education, and ensure higher education’s contribution to the

common good. AAUP’s policies have been recognized by the Supreme Court and are widely

respected and followed in American colleges and universities. See, e.g., Bd. of Regents v. Roth,

408 U.S. 564, 579 n. 17 (1972); Tilton v. Richardson, 403 U.S. 672, 681-82 (1971). In cases that

implicate AAUP policies or otherwise raise legal issues important to higher education or faculty

members, AAUP frequently submits amicus briefs in the Supreme Court, the federal circuits, and

the National Labor Relations Board. See, e.g., Grutter v. Bollinger, 539 U.S. 306 (2003);

Regents of Univ. of Michigan v. Ewing, 474 U.S. 214 (1985); NLRB v. Yeshiva University, 444

U.S. 672 (1980); Keyishian v. Bd. of Regents, 385 U.S. 589 (1967); Urofsky v. Gilmore, 216 F.3d

401 (4th Cir. 2000), cert. denied 531 U.S. 1070 (2001); Columbia Union Coll. v. Oliver, 254

F.3d 496 (4th Cir. 1999); Smith v. Virginia Commonwealth Univ., 84 F.3d 672 (4th Cir. 1995);

Brown University, 342 NLRB 483 (2004); and New York University, 332 NLRB 1205 (2000).

By participating as an amicus in this case, AAUP seeks to assist the National Labor Relations

Board in developing the legal definition of employee status in a manner that accurately reflects

employment relationships in universities and colleges and that respects the rights of college and

university employees to exercise their rights to organize and engage in collective bargaining.

3

STATEMENT OF FACTS

This case is before the National Labor Relations Board for decision following remand by

the United States Court of Appeals for the District of Columbia Circuit for clarification of the

reasons for the Board’s conclusion that the Point Park University faculty members are not

managerial employees. Point Park University v. NLRB, 457 F.3d 42 (D.C. Cir. 2006).

Following the court’s remand, the Regional Director issued a Supplemental Decision on Remand

finding that the Point Park University faculty members are not excluded managerial employees.

On November 28, 2007, the NLRB granted the Employer’s request for review of the Regional

Director’s Supplemental Decision.

On May 22, 2012, the NLRB issued a Notice and Invitation to File Briefs, inviting the

parties and amici to “address the court’s instruction that the Board explain the weight of the

various factors identified by the Supreme Court in Yeshiva and their application to this case.”

Point Park University, 2012 NLRB LEXIS 292 (May 22, 2012). In its Notice, the Board

instructed that the briefs should address some or all of eight listed questions.

4

ARGUMENT

I. Introduction

This amicus brief responds to Questions 3, 4, and 7 listed in the NLRB’s Notice and

Invitation to File Briefs. These questions were chosen as being particularly relevant to

addressing the changes in the university context since the Supreme Court’s decision in NLRB v.

Yeshiva University, 444 U.S. 672 (1980). Section II of the brief, responding to Questions 3 and 4,

enumerates additional factors relevant to determining whether a party has met its burden of

proving that faculty are managerial employees. Section III of the brief, responding to Question 7,

provides a detailed analysis of the reasons for adding the factors enumerated in the response to

Questions 3 and 4.

II. Response to Questions 3 and 4:

Question 3: Are the factors identified in the Board case law to date sufficient to correctly determine whether faculty are managerial?

Question 4: If the factors are not sufficient, what additional factors would aid the Board in making a determination of managerial status for faculty?

The determination of whether faculty members are managerial employees should be

considered in the current context of universities in the United States, which includes major

changes in university structure and authority.1 During the three decades since NLRB v. Yeshiva

University, 444 U.S. 672 (1980), was decided, the context in universities has changed in

1 The term “university” is used in this brief to refer to colleges and universities. At certain points in the brief, the term “college” refers to colleges or schools, such as the college of arts and sciences, within a university.

5

fundamental ways. Rather than relying on faculty expertise and recommendations, universities

have increasingly relied on expanded administrations to make unilateral decisions, often

influenced by considerations of revenue generation. Administrators have become more top-

down in managing the university, which undermines faculty effective recommendation and

control over academic matters. Increasingly, university administrations ignore or override

written university policies and faculty handbooks that set forth a shared governance model

recognizing faculty authority on matters of academic concern. A pattern has emerged of

university administrators making unilateral decisions, without approval of faculty governance

bodies, on matters central to academic work, including: developing curriculum; creating,

restructuring, or discontinuing academic programs; changing academic degree requirements;

changing grades and grading systems; subcontracting out the work of existing academic

programs; and procedures for faculty hiring and retention.

These significant changes should be considered as factors relevant to determining

whether faculty are Section 2(12) professional employees with Section 7 rights or whether they

are managerial employees excluded from the protections of the NLRA. Taking account of the

changed context calls for consideration of the following additional factors in determining

whether a party has met its burden of proving that faculty are managerial employees:

the extent of university administration hierarchy;

the extent to which the administration makes academic decisions based on revenue

generation or other market-based considerations;

the degree of consultation by the administration with faculty committees or other

faculty governance bodies over academic and nonacademic matters;

6

whether the administration treats faculty recommendations as advisory rather than as

effective recommendations;

whether the administration routinely approves nearly all faculty recommendations

without independent administrative review;

whether conflict between the administration and the faculty reflects a lack of

alignment of administration and faculty interests.

The response to Question 7, below, provides support for the addition of these factors in

the managerial employee determination. This discussion includes a description and analysis of

changes in management structures that have expanded university administrations, increased top-

down decision-making by the administration, and encouraged choices about academic matters

based on external market forces. As discussed below, these changes in the distribution and

exercise of authority in the university reveal a changed relationship between the administration

and the faculty, one in which their interests are not aligned.

III. Response to Question 7:

Question 7: Have there been developments in models of decision making in private universities since the issuance of Yeshiva that are relevant to the factors the Board should consider in making a determination of faculty managerial status? If so, what are those developments and how should they influence the Board’s analysis?

A. Overview of nationwide trends that have changed the context of the university.

In Yeshiva, the Supreme Court applied the Bell Aerospace definition of managerial

employees as those who “formulated and effectuated management policies by expressing and

making operative the decisions of their employer.” Yeshiva University, 444 U.S. at 682, quoting

7

NLRB v. Bell Aerospace Co., 416 U.S. 267, 288 (1974). The Yeshiva Court further developed

this standard by explaining that managerial employees “exercise discretion within, or even

independently of, established employer policy and [are] aligned with management…by taking or

recommending discretionary actions that effectively control or implement employer policy.” 444

U.S. at 683.

The Yeshiva Court recognized that this analysis of faculty employment status is a

dynamic process, stating that the factors the Court relied on provide “a starting point only, and

that other factors not present here may enter into the analysis in other contexts.” 444 U.S. at 690,

n. 31. During the three decades since Yeshiva was decided, the context of the university has

changed in fundamental ways, with major alterations in the structure and practices of universities

across the United States. As the context changes, so should the evaluation of faculty

employment status under the NLRA.2 The significant changes in the university structure and

management model should be considered as factors relevant to determining whether faculty are

Section 2(12) professional employees with Section 7 rights or whether they are managerial

employees excluded from the protections of the NLRA. As the D.C. Circuit Court of Appeals

stated in Point Park University v. NLRB, 457 F.3d 42, 48 (D.C. Cir. 2006), in determining

whether faculty are managerial employees:

[C]ontext is everything. Every academic institution is different, and…the Board must perform an exacting analysis of the particular institution and faculty at issue. That analysis must look beyond self-serving descriptions of the role of the faculty or the

2 The AAUP continues to adhere to its long-standing position that faculty engage in shared governance as part of their non-managerial responsibilities as professional employees under Section 2(12) of the NLRA. As argued in this amicus brief, however, under the standards developed by the Supreme Court in Yeshiva, within the changed context of current universities most faculty should be determined to be non-managerial professional employees covered by the NLRA.

8

administration of a university. In Yeshiva, the Court looked repeatedly to the actual role of faculty in the academic affairs of the university…. The key inquiry is “how a faculty is structured and operates.”

Nationwide patterns since 1980 show that the context has transformed through

universities’ increasing use of a corporate business model that goes well beyond Justice

Brennan’s observation in Yeshiva that universities have become “big business.” 444 U.S. at 703.

As Andrew Meyer, the chairman of Suffolk University’s Board of Trustees has stated, “Suffolk

has gone through a transition. This is a new chapter in the history of the university. We need

people who understand that running an institution of higher education today means running a

business.”3

While the extent to which particular universities embrace a corporate business model

will vary, the influence of the model has increased the likelihood that university administrations

adopt and implement corporate management practices. Various reasons have been identified to

explain the influence of the corporate business model, including “competition for students and

research dollars and resulting pressures on universities to ‘market’ themselves; increasing costs,

overall, of operating the university; rising costs of research in the sciences and engineering; the

growing media use of competitive rankings in U.S. News & World Report and other outlets as

indicators of presumed educational quality; and the privatization of public functions, with a

3 Mary Carmichael, “New guiding hands at Suffolk: School set to add 12 trustees with business focus,” Boston.com (Oct. 4, 2011), available at http://articles.boston.com/2011-10-04/news/30243289_1_board-members-higher-education-pappas-consulting-group

9

decrease in public funding to universities.”4 It is striking how widespread and similar the

structural changes are in universities nationwide.5

The application of a corporate model of management has resulted in significant changes

in university institutional structure and distribution of authority. There has been a major

expansion of the administrative hierarchy, which exercises greater unilateral authority over

academic affairs. This organizational structure stands in stark contrast to the Yeshiva majority’s

description of the university as a collegial institution primarily driven by the internal decision-

making authority of its faculty. Further, university administrators increasingly are making

decisions in response to external market concerns, rather than consulting with, relying on, or

following faculty recommendations. Thus, university decision-making is increasingly made

unilaterally by high-level administrators who are driven by external market factors in setting and

implementing policy on such issues as program development or discontinuance, student

admissions, tuition hikes, and university-industry relationships. As a result, the faculty have

experienced a continually shrinking scope of influence over academic matters.

4 Faculty Senate Committee to Review Faculty Governance: Final Report and Recommendations 6 (March 7, 2007), available at http://theuniversityfaculty.cornell.edu/pdfs/GOVERNANCE372007.pdf 5 These national trends have been described and analyzed by many commentators in articles, books, and studies of the current university structure. See, e.g., Ellen Schrecker, THE LOST SOUL OF HIGHER EDUCATION: CORPORATIZATION, THE ASSAULT ON ACADEMIC FREEDOM, AND THE END OF THE AMERICAN UNIVERSITY (New York: New Press 2010); Gaye Tuchman, WANNABE U: INSIDE THE CORPORATE UNIVERSITY (University of Chicago Press 2009); Jennifer Washburn, UNIVERSITY INC.: THE CORRUPTION OF HIGHER EDUCATION (New York: Basic Books 2005); Sheila Slaughter and Larry L. Leslie, ACADEMIC CAPITALISM: POLITICS, POLICIES, AND THE ENTREPRENEURIAL UNIVERSITY (Baltimore: Johns Hopkins University Press 1998); Risa L. Lieberwitz, Faculty in the Corporate University: Professional Identity, Law and Collective Action,16 CORNELL J. L. & PUB. POL’Y 263 (2007); Joan Wallach Scott, The Critical State of Shared Governance, available at http://www.aaup.org/AAUP/pubsres/academe/2002/JA/Feat/Scot.htm

10

The Yeshiva Court limited the scope of the managerial exception, stating, “It is

plain…that professors may not be excluded [as managerial employees] merely because they

determine the content of their own courses, evaluate their own students, and supervise their own

research.” 444 U.S. at 690 n. 31. In today’s universities, while faculty may have effective

control over their own courses and research, their sphere of influence on other academic matters

has been eroded through the administration’s application of the goals and managerial practices of

the corporate business model. Moreover, faculty loss of influence over programmatic and other

academic matters reduces faculty influence even in their individual academic course content and

research. The scope of the managerial exception as applied in universities should be narrowed to

reflect the scope of actual authority in practice. As the Sixth Circuit, interpreting Yeshiva, stated,

“[T]he [managerial] exception must be narrowly construed to avoid conflict with the broad

language of the Act, which covers ‘any employee,’ including professional employees.” Kendall

Memorial School v. NLRB, 866 F.2d 157, 160 (6th Cir. 1989). The party asserting managerial

status must carry the burden of proving that faculty fall within this narrow managerial exception.

This is essential to protect the rights of faculty in universities, as overly broad application of the

managerial exception will result in the exclusion of an entire class of professional employees

from the NLRA. University of Great Falls, 325 NLRB 83, 93 (1997), affd. 331 NLRB 1663

(2000), reversed on other grounds 278 F.3d 1335 (D.C. Cir. 2002).

Faculty in public and private universities have experienced the impact of the corporate

business model and its erosion of shared governance. Public university faculty, however, have

an effective means to respond to these changes by exercising their statutory rights to unionize

11

and collectively bargain.6 Faculty unionization in public universities has led to successful

collective bargaining to address terms and conditions of employment across a range of academic

and economic issues. This experience teaches that collective bargaining by faculty unions has

not resulted in problems of conflicted loyalties. Rather faculty unions and administrations have

engaged in collective bargaining as a constructive means to address their different positions

about terms and conditions of employment.7 Within the current context of private universities,

the interpretation of faculty employee status should be informed by the long-term experience of

successful collective bargaining relationships in public universities. This is consistent with the

Yeshiva majority’s clarification that “[w]e certainly are not suggesting an application of the

managerial exclusion that would sweep all professionals outside the Act in derogation of

Congress' expressed intent to protect them.” 444 U.S. at 690. Protecting faculty rights as

professional employees requires a full consideration of social and institutional changes since

Yeshiva was decided.

Most importantly, the influence of the corporate business model has resulted in

fundamental changes in power and authority in the university that are not fleeting or ephemeral.

They are embedded structural changes that favor top-down decision-making authority by

6 See, Richard Hurd & Amy Foerster, 23 Directory of Faculty Contracts and Bargaining Agents In Institutions of Higher Education 135 (1997) (listing thirty-four states with public sector collective bargaining legislation covering higher education faculty, including one state without legislation but with collective bargaining permitted by State Governing Board policy. 7 See the following chapters in ACADEMIC COLLECTIVE BARGAINING (Ernst Benjamin and Michael Mauer, eds. 2006): Ernst Benjamin, Introduction (pp. 9-20); Ernst Benjamin, Faculty Bargaining (pp. 23-51); Martin J. Morand and Ramelle C. Macoy, Keys to the Development of the Association of Pennsylvania State College and University Faculties (APSCUF) (pp. 275-283); Brad Art, A Worst-Case Scenario (pp. 284-291); Richard Katz and Dean Casale, Professionalism, Inclusiveness, and Accountability in Collective Bargaining (pp. 292-300); Roger Hatch and John Pfeiffer, After the Contract: Vigilance (pp. 301-307).

12

university administrators responding to market concerns, rather than a collegial process of

consultation and consensus-building over academic affairs. One outcome of this institutional

shift is a growing conflict between university administrations and faculty over unilateral actions

taken by administrators either without consultation with faculty or overriding faculty governance

bodies’ recommendations. Thus, contrary to the circumstances informing the Court’s conclusion

in Yeshiva, the faculty’s interests in many universities today are not aligned with the interests of

the administration. These changed circumstances should be assessed as factors relevant to the

fact-based inquiry in evaluating whether the employer has met its burden of proving that faculty

are managerial employees.

The consequences and outcomes of the use of the corporate business model in the

university are detailed below, revealing the specific patterns of the changes, the widespread

impact on universities nationwide, and the corrosive effect on faculty influence in the university.

B. Universities’ increasing use of a corporate business model and the significant expansion of university administration have eroded faculty effective control and effective recommendations over academic affairs.

1. In the three decades since the Yeshiva decision, the university context has changed through the expanded the size and power of university administration.

The influence of the corporate business model on universities has led to a major

expansion of university administration, accompanied by the increased top-down authority

exercised by high-level administrators. Between the years of 1976 and 2009, the number of full-

13

time executives and managers grew by 129 percent, while full-time faculty grew by 68 percent.8

Breaking this down by sector is even more revealing. From 1976 to 2009, the number of full-

time executives and managers at private colleges and universities increased by 200 percent, more

than double the 83 percent rate of growth at public colleges and universities.9 These positions

include a proliferation of executive-level administrators in university administration. In addition

to the Provost, academic affairs are governed by Vice Provosts, Associate Provosts, and Vice

Presidents. It is important to emphasize that this expansion of administration has occurred not

simply in public university systems featuring multiple campuses throughout the state, but also, as

noted above, in private universities with a single campus location. For example, at Stanford

University, in addition to the President and Provost, there are three Vice Provosts, eight Vice

Presidents, and eight Deans.10 At Cornell University, in addition to the President and Provost,

there are three Senior Vice Provosts (one who is also a Vice President and another who is also a

Dean), four Vice Provosts (one who is also a Dean), two Vice Presidents, the Head of the

University Library, and twelve Deans.11 At MIT, there is a President, Chancellor, Provost, four

Associate Provosts, an Executive Vice-President and Treasurer, six Vice Presidents, and eight

8 Data compiled by John W. Curtis, Director of Research and Public Policy, AAUP, Washington, D.C. (June 6, 2012) (Source: US Department of Education, Integrated Postsecondary Education Data System (1993 and 2009) and Higher Education General Information System (1976)). Data for 1976 is from Digest of Education Statistics 2001, table 224. Data for 2009 is from Digest of Education Statistics 2011, table 257.). See also, “Specialization” and “Shifts in Staffing”, in AAUP 2007-2008 Report on the Economic Status of the Profession, available at http://www.aaup.org/AAUP/comm/rep/Z/ecstatreport2007-08/survey2007-08.htm 9 Id. Data for 2009 is from Digest of Education Statistics 2011, table 259. 10 Stanford University, Stanford Facts 2012, University Governance and Administration, available at http://facts.stanford.edu/governance.html 11 The Vice Provost who is also a Dean and one of the Vice Presidents are administrators for the forthcoming Cornell University New York City Tech Campus. The individuals filling these positions had been Dean of the Cornell Faculty of Computing and Information Science and Associate Dean in the Cornell School of Engineering. Provost Organizational Chart (as of February 1, 2012), available at http://dpb.cornell.edu/documents/1000006.pdf

14

Deans.12 At the college level of universities, the administration has expanded through the

addition of associate deans, assistant deans, and directors.

Along with the increase of high-level administrators, the administrative apparatus has

expanded. From 1976 to 2009, the number of full-time non-faculty professional positions

increased by 345 percent overall, with growth of 499 percent in that category at private

institutions.13 Between the years of 1947 to 1995, while overall university spending increased by

148 percent, administrative spending increased by 235 percent, as compared with instructional

spending increases at only 128 percent.14 A 2010 study reported that in the period 1998 to 2008,

U.S. private colleges increased spending on administration and staff support by 36 percent, but

increased spending on instruction by only 22 percent.15 It is noteworthy that during these years,

as expenditure on instruction has gone down, the percentage of lower-wage nontenure-track

faculty has increased significantly. Between 1976 and 2009, the number of part-time faculty

positions has grown by more than 256 percent overall, with the rate of growth in private colleges

and universities at 331 percent.16 Currently, nearly 40 percent of full-time faculty positions and

70 percent of all faculty positions in post-secondary institutions are nontenure-track.17 The

12 MIT Organization Chart, available at http://orgchart.mit.edu/ 13 Curtis, supra notes 8 and 9. 14 Benjamin Ginsberg, THE FALL OF THE FACULTY: THE RISE OF THE ALL-ADMINISTRATIVE UNIVERSITY AND WHY IT MATTERS 33 (Oxford University Press 2011) (citing as the source for the data: Calculated from National Center for Education Statistics (NCES), Digest of Education Statistics, 2006, Table 346). 15 Id. at 27, citing, Sam Dillon, “Share of College Budgets for Recreation is Rising,” New York Times, July 10, 2010, A13 (describing the Delta Cost Project). 16 Curtis, supra notes 8 and 9. 17 Ernst Benjamin, The Eroding Foundations of Academic Freedom and Professional Integrity: Implications of the Diminishing Proportion of Tenured Faculty for Organizational Effectiveness in Higher Education, 1 AAUP JOURNAL OF ACADEMIC FREEDOM, at 4 (2010), available at http://www.academicfreedomjournal.org/Previous/VolumeOne/Benjamin.pdf; The Coalition for the Academic Workforce (CAW) reports that as of 2009, “when graduate student teaching assistants are Continued

15

reduction of tenure-track positions along with the expansion of nontenure-track positions further

dilutes the effectiveness of faculty governance. The vast majority of nontenure-track faculty are

not included as full participants in faculty governance bodies.18 Further, nontenure-track faculty

are in precarious positions without the job security of tenure, making it difficult for them to

meaningfully assert rights of academic freedom.19

The proliferation of high-level administrators and their professional staff has multiple

effects. First, the growth of administration expands the hierarchical nature of decision-making,

concentrating power at the top level of the central university administration and the college

administrations. This upward movement of power to the administrative hierarchy, in turn,

undermines the “shared governance” model of collegial decision-making by funneling authority

away from the faculty influence over academic matters.20 Shared governance is also eroded by

administrators taking unilateral actions without consultation with faculty governance bodies such

included, [contingent employees constitute] more than three-quarters of the instructional workforce.” Coalition for the Academic Workforce, A Portrait of Part-Time Faculty Members: A Summary of Findings on Part-Time Faculty Respondents to the Coalition on the Academic Workforce Survey of Contingent Faculty Members and Instructors (2012), at 5, citing, Laura G. Knapp, Janice E. Kelly-Reid, and Scott A. Ginder, Employees in Postsecondary Institutions, Fall 2009, and Salaries of Full-Time Instructional Staff, 2009–10. NCES 2011-150. National Center for Education Statistics. Natl. Center for Educ. Statistics, Dept. of Educ., Nov. 2010. Web. 24 Apr. 2012. The CAW report is available at http://www.academicworkforce.org/survey.html 18 Coalition for the Academic Workforce, supra note 17, at 2; Joe Berry and Elizabeth Hoffman, Including Contingent Faculty in Governance, Academe Vol. 94, No. 6 (Nov. – Dec. 2008), available at http://www.aaup.org/AAUP/pubsres/academe/2008/ND/Feat/berr.htm 19 John C. Duncan, Jr., The Indentured Servants of Academia: The Adjunct Faculty Dilemma and Their Limited Legal Remedies, 74 IND. L.J. 513, 524-528 (1999); Berry and Hoffman, supra note 18. 20 For AAUP policy statements on academic freedom and shared governance, see, AAUP 1915 Declaration of Principles on Academic Freedom and Tenure, available at http://www.aaup.org/AAUP/pubsres/policydocs/contents/1915.htm ; 1940 Statement of Principles on Academic Freedom and Tenure, available at http://www.aaup.org/AAUP/pubsres/policydocs/contents/1940statement.htm 1966 Statement on Government of Colleges and Universities, available at http://www.aaup.org/AAUP/pubsres/policydocs/contents/governancestatement.htm

16

as faculty senates. As the Regional Director observed in Point Park University, the restructuring

involved in making the transition from College to University expanded the administration and

created a “buffer” between academic policy decision-making and the faculty. Case 6-RC-12276,

Regional Director’s Supplemental Decision on Remand (July 10, 2007), at 10. The

administration made unilateral decisions about academic matters, including creating and

discontinuing academic programs. As a result, faculty influence over decisions about academic

policy and programs has been diminished, often placing the faculty in the position of merely

being notified of decisions unilaterally reached by the administration. Further, these unilateral

decisions about academic programs have a direct impact on faculty control over their courses and

curriculum, as top-down administrative changes in academic programs force faculty to alter their

course offerings to fit the new shape of academic programs.

The growth in university administration, which creates a “buffer”, can also be described

as an increased stratification in the university employment structure. The proliferation of

administrators at high levels of the university hierarchy has solidified a class of long-term

university administrators who could be called “managerial professionals,” in contrast to the rest

of the faculty, who remain “practicing professionals.” David M. Rabban, Distinguishing

Excluded Managers From Covered Professionals Under the NLRA, 89 Colum. L. Rev. 1775,

1834 (1989). These “managerial professionals” in the administration “have positions of

bureaucratic power within [the university’s] formal hierarchy,” while the faculty as “practicing

professionals” do not. Id. Although many of the individuals holding these bureaucratic

managerial positions were originally in faculty positions, their entry into the central

administration removes them from the normal professional faculty activities of teaching and

17

research. This separation from the classroom and research may be for a period of years or even

as a permanent shift into the university administration and an upwardly mobile career path in

administration at other universities.21

Most importantly in this increased stratification, the growing number of “managerial

professionals” in the administration have been given enhanced authority and power over

academic matters in a way that erodes effective recommendations or control by the “practicing

professionals” in the faculty. While “managerial professionals” would be excluded from the

NLRA as managerial employees, faculty “practicing professionals” should be protected as

professional employees under Section 2(12). Further, “[e]xcluding [only the] managerial

professionals would reflect the key concern about divided loyalties that generated the

unwillingness to allow protected bargaining by managers and supervisors.” Rabban, supra, at

1855. As the Tenth Circuit explained, “The availability of this expertise within the ranks of the

administration obviates the College’s need to rely extensively on the professional judgment of its

faculty in determining and implementing academic policy. Under these circumstances while

significant faculty input undoubtedly remains beneficial to the College, it is not necessary that

the faculty be ‘aligned with management’… [and] presents no problem of divided loyalty

equivalent to that found in Yeshiva.” Loretto Heights College v. NLRB, 742 F.2d 1245, 1254

(10th Cir. 1984); St. Thomas University, 298 NLRB 280, 287 (1990).

This growing separation of power and functions of administrators and faculty has

important implications for faculty employee status under the NLRA. As university restructuring

shifts power and authority, the legal principles of employee status, defined in Yeshiva, must be 21 Tuchman, supra note 5, at 69-82.

18

applied to the evidence that accurately demonstrates “authority in practice.” University of Great

Falls, 325 NLRB at 93; St. Thomas University, 298 NLRB 280 (1990); Bradford College, 261

NLRB 565 (1982). While the extent of changes may differ from one university to another, the

nationwide patterns show that the context has changed as universities have expanded the size of

administrations and their unilateral authority over academic affairs. These circumstances should

be assessed as part of the fact-based evaluation of whether the employer has met its burden of

proving that faculty are managerial employees.

2. The expanded size and authority of university administration has decreased faculty authority to effectively control or make effective recommendations about academic affairs.

In applying Yeshiva, the NLRB has emphasized that “neither the Board nor the Court

requires that a faculty possess absolute or plenary authority in order to be found to be managerial;

the standard set forth in the Court’s decision is ‘effective recommendation or control.’” Lewis

and Clark College, 300 NLRB 155, 163 n. 41 (1990). “Effective recommendation authority is

found where nearly all recommendations are routinely approved by the administrative hierarchy,

without independent review.” University of Great Falls, 325 NLRB at 93. Further, “the

presence of a large administrative staff…create[s] an effective buffer between the top

management and the lowest echelon, eliminating the need for the institution’s administration to

rely on the faculty for advice, recommendations, and the establishment and implementation of

policies.” University of Great Falls, 325 NLRB at 94; Loretto Heights College v. NLRB, 742

F.2d 1245, 1254 (10th Cir. 1984). As the statistics show, university administrations have

continued to expand and provide a multi-layered buffer between the top managerial

administrators and the faculty. In this context, it is crucial to require the university to go beyond

19

conclusory assertions that the faculty are managerial because they may make recommendations

to the administration on academic affairs. Rather the university must demonstrate that “nearly

all [faculty] recommendations are routinely approved by the administrative hierarchy, without

independent review.” University of Great Falls, 325 NLRB at 93.

In today’s universities, the expanded scope and authority of bureaucratic “managerial

professionals” in university administrations have reduced faculty participation to an advisory

capacity in many instances. In Manhattan College, Case 2-RC-21735, 1999 NLRB LEXIS 903,

n.21 (Nov. 9, 1999), the Regional Director observed that “the Yeshiva Court specifically noted

that the Board failed to advance the argument that the role of the faculty was merely advisory,

and thus not managerial.” Further, the Yeshiva Court “distinguished between situations where

faculty authority is advisory and where faculty effectively recommends action, notwithstanding

the administration's rarely exercised veto power.” Manhattan College, at n.21, discussing

Yeshiva University, 444 U.S. at 684, n. 17. In Manhattan College, the Regional Director relied

on this distinction to find that the faculty was not managerial, based on the evidence that

although “the Manhattan College faculty have a substantial role in the development of policy in

academic and other spheres…this role is fundamentally advisory in nature.” 1999 NLRB LEXIS

903, at 130-131.22

22 A three-member panel of the NLRB denied Manhattan College’s appeal of the Regional Director’s decision, finding that the appeal “raises no substantial issues warranting review.” Courtney Leatherman, NLRB Lets Stand a Decision Allowing Professors at a Private College to Unionize, CHRON. HIGHER EDUC., Jul. 7, 2000, at A14.

20

(a) Increasing university administrative authority over academic matters.

University administrations increasingly make unilateral decisions about academic matters,

either by excluding faculty from the decision-making process or by treating faculty

recommendations as merely advisory, particularly when they disagree with the administration’s

position. As the Regional Director stated in Point Park University, based on Yeshiva and its

progeny, he “considered authority over academic matters to be the most critical to the

determination of managerial status.” Case 6-RC-12276, Regional Director’s Supplemental

Decision on Remand (July 10, 2007), at 57. Faculty authority over academic matters, as Yeshiva

recognized, refers to far more than the course content and research of a particular faculty

member. Rather, the scope of academic matters includes the creation, alteration, and

discontinuance of academic programs, given the impact of such decisions on the curricular and

course content that make up the academic program.

The Board has held that faculty were non-managerial based on the administration’s

actions of unilaterally creating and discontinuing academic programs without faculty approval or

over faculty opposition. In Cooper Union, the Board detailed the academic areas where faculty

authority “has been made ineffective by the administration,” including “the administration's

creation and elimination of entire degree programs without faculty input or over faculty

opposition” and “the creation of a special admissions program without faculty-approval….” The

Cooper Union for the Advancement of Science and Art, 273 NLRB 1768, 1775 (1985). In St.

Thomas University, the Board found that faculty were not managerial based in part on the

administration’s practice of submitting faculty proposals on curriculum or academic policy for

21

independent approval by a committee of the dean and five division chairpersons, which often

ignored or overrode the faculty. 298 NLRB at 287.

In Point Park University, the administration’s conduct established a pattern of making

unilateral decisions concerning academic programs, including: discontinuing some

undergraduate programs; approving a new undergraduate program; dismantling an academic

department; restructuring a graduate program; creating a new institute with an existing academic

department; subcontracting out the work of an existing academic program; changing

requirements for two academic programs in the Education department; designing and designating

a new required course for university freshmen; developing policies for on-line courses; and

developing new requirements for special delivery courses, independent studies, and faculty-led

trips abroad. Regional Director’s Supplemental Decision on Remand, at 57-58. The Regional

Director described the administration’s failure to respect the Point Park University faculty’s

recommendation authority: “Abandoning the program obviously includes abandoning the

courses which made up that program, all of which courses should have been previously reviewed

and recommended by the Curriculum Committee and the Faculty Assembly in accordance with

the process by which an undergraduate program becomes a part of the curriculum.” Regional

Director’s Supplemental Decision on Remand, at 57.23

23 Other examples of unilateral decisions on academic matters include actions by the administrations at Yale University, George Mason University, Bennington College, and University of Dubuque: At Yale University, “[s]ince January [2012], faculty dissatisfaction over a number of issues has coalesced into a semi-organized movement calling for a larger role for faculty in the governance of the university.” The issues concern faculty reservations about the Yale-National University of Singapore new joint venture; the university’s shared-services plan, which centralizes some business and financial functions; and a Graduate School dean’s report, which encouraged “best practices” that many faculty Continued

22

In addition to administrators’ unilateral actions concerning the creation, content, and

discontinuance of academic programs, administrators have made unilateral changes in other

types of academic affairs. In Point Park University, the Regional Director found that the

administration unilaterally changed student admission standards in two academic programs;

created a new grading system to be used as a pilot program; changed grades the faculty had

assigned; imposed syllabus requirements; and decreased bonuses to faculty who, in the

administration’s view, gave too many grades of “A”. Regional Director’s Supplemental

Decision on Remand, at 58-59. Such actions evidence further erosion of the faculty’s effective

control or effective recommendations in matters that relate directly to course development and

viewed as an imposition of sciences practices on the humanities. Mark Alden Branch, Delayed reaction, Yale Alumni Magazine, Vol. 75, No. 5 (May/June 2012), available at http://www.yalealumnimagazine.com/issues/2012_05/lv_faculty.html

The George Mason University Governing Board engaged in unilateral actions in derogation of the faculty handbook provision giving the faculty the “primary role” in “the university’s academic offerings.” The Governing Board rejected a faculty committee’s proposal for a required undergraduate course, substituting two of the Board’s own courses; rejected a faculty governance body recommendation concerning credit for courses; and rejected another faculty governance body’s recommendation of whether to relocate a degree program to the College of Arts and Sciences. Nota Bene, Board Overrides Faculty Recommendation on Curriculum at George Mason University, Academe Online (Sept.-Oct. 2000), available at http://www.aaup.org/AAUP/pubsres/academe/2000/SO/NB/mason.htm

The Bennington College administration reorganized teaching programs and divisions as part of its unilateral actions of dismissing one-third of its faculty, eliminating many of its faculty governance bodies, and changing standards for hiring and retention. William Celis 3d, Radical Answer to a Small College’s Woes, NEW YORK TIMES, Jun. 23, 1994, at A12.

In 1999, the University of Dubuque terminated the tenured appointments of two professors based on the administration’s assertion of a financial exigency. However, the board of trustees and administration did not consult with faculty governance bodies prior to developing a plan that determined that there was a financial exigency and that academic programs would be discontinued and faculty terminated; did not provide a meaningful faculty role in the decisions to discharge the two professors; and did not provide the professors with academic due process hearings. AAUP Report, Academic Freedom and Tenure: University of Dubuque (September – October 2001).

23

student evaluation. As Yeshiva recognized, “It is plain…that professors may not be excluded [as

managerial employees] merely because they determine the content of their own courses, evaluate

their own students, and supervise their own research.” 444 U.S. at 690 n. 31. Yet, at Point Park

and other universities, administrators’ unilateral actions have eroded faculty authority even in

realms that the Yeshiva Court considered non-managerial professional work.

In some cases, a university administration’s unilateral actions have violated the

university’s own policies or regulations providing for faculty governance rights. At Adelphi

University, university governance documents provide faculty with broad rights to participate in

university matters. Yet, during the 1990s, the president and board of trustees ceased

communicating with the faculty through the governance process. For example, the board of

trustees created a confidential academic plan, excluding faculty from participation in developing

or commenting on it.24 Similarly, in Bradford College, the NLRB concluded the faculty were

not managerial where the administration failed to follow college documents giving faculty

substantial governance authority. Faculty recommendations “were often ignored or reversed by

the president, by the academic dean, or by both” on academic matters that included “curriculum,

admission policies, graduation of students, course loads, course scheduling, [and] grading of

students… .” 261 NLRB at 566-567. These examples reinforce that the employer has the

burden of proving managerial status based on authority in practice, rather than simply pointing to

general descriptions of university policies.

24 Larry G. Gerber, College and University Government: Adelphi University (New York): A Special Report from Committee T, Academe, Vol. 83, No. 3 (May - Jun., 1997), pp. 69-71.

24

The Board’s observation in University of Great Falls captures the problem of the

administration’s exercise of its authority to override or ignore the recommendations of faculty

governance bodies: “[M]any of the recommendations of [the faculty status committee] are not

routinely accepted but rather are independently reviewed and evaluated, particularly by the

provost, as they travel up the administrative hierarchy. Where the provost strongly has opposed

a faculty status committee recommendation, higher administrators have approved the provost’s

recommendation over that of the committee.” 325 NLRB at 96.

(b) Increasing university administrative authority over nonacademic matters.

Further examples reveal the increasing use of top-down administrative authority in areas

that the Board has described as “nonacademic,” including faculty hiring, tenure and promotion.

University of Great Falls, 325 NLRB at 93; Lewis and Clark College, 300 NLRB 155, 161

(1990). Although the Yeshiva Court did not “rely primarily” on such nonacademic factors in

determining managerial status, 444 U.S. at 686, n.23, the Board has considered them relevant,

while according them “less weight.” University of Great Falls, 325 NLRB at 93. As the Board

has noted, “while curriculum is a key academic matter, in no case have faculty been held

managerial solely because of their participation in recommending curricular matters.” University

of Great Falls, 325 NLRB at 96. In finding the Bradford College faculty to be non-managerial,

the Board relied, in part, on the administration’s responses ignoring or reversing faculty

recommendations on nonacademic matters of “faculty hiring or retention, tuition, and faculty

salaries.” Bradford College, 261 NLRB at 566-567. At Adelphi University, despite university

governance provisions giving faculty the right to participate in the selection of academic

25

administrative officers, the university president excluded faculty from giving any input in many

of his major appointments, including provosts and deans.25 At Bennington College, in 1994, the

board of trustees and the president unilaterally decided on and implemented a plan to abolish its

“presumptive tenure” system under which faculty had been reviewed every five years,

substituting one to five year individual contracts.26 The administration instituted this change by

dismissing one-third of its faculty, eliminated many of the faculty governing bodies, and changed

standards for hiring and retention.27 At Clark Atlanta University, the administration unilaterally

discharged one-fourth of its faculty, stating that it was on the basis of an “enrollment emergency.”

The administration took this action, however, without consulting with the faculty, without

substantiating the asserted “emergency,” and without following due process provisions of the

university’s own regulations.28

In Point Park University, the Regional Director concluded that “just as with academic

matters, the faculty herein do not effectively recommend or control nonacademic matters,”

finding that the administration failed to follow the procedures outlined in the Faculty Handbook,

including hiring some faculty members without a search committee. Regional Director’s

Supplemental Decision on Remand, at 60-61. Further evidencing its lack of consideration for

faculty recommendations, the administration hired an outside consultant to redraft policies,

including the Faculty Handbook, in derogation of the Faculty Handbook Revision Process.

Regional Director’s Supplemental Decision on Remand, at 59. As the Regional Director

25 Gerber, supra note 24. 26 William Celis 3d, Radical Answer to a Small College’s Woes, N.Y TIMES, Jun. 23, 1994, at A12. 27 Id. 28 AAUP: New AAUP Investigation Report (Jan. 13, 2010), available at http://www.aaup.org/AAUP/newsroom/prarchives/2010/clark.htm?PF=1

26

explained, this unilateral action by the administration is significant, as it constitutes the

administration’s “assertion of the unilateral right to alter the document most fundamental to

establishing the status of the faculty vis-à- vis the Administration….” Regional Director’s

Supplemental Decision on Remand, at 59-60.

Other university administrations have also emphasized that their managerial authority

supersedes the Faculty Handbook. For example, although the preface to the Cornell University

Faculty Handbook states that the Handbook is issued by the Office of the University Faculty, the

following caveat is also included: “STATEMENT FROM UNIVERSITY COUNSEL:

This handbook describes various Cornell University policies and procedures of interest to the

University Faculty. The handbook, however, is not intended to create a contract between the

university and its employees or to set forth terms or conditions of employment.”29

(c) Increasing conflict between administration and faculty.

The use of a corporate business model of top-down management and the corresponding

erosion of the shared governance model has led to increased conflict between university

administrations and faculty. Faculty governance bodies, including committees, senates, and

councils, have protested administrative failures to consult with them or administrative decisions

overriding faculty governance recommendations. For example, a Cornell University faculty

senate committee report in 2007 recounts a series of administration decisions made without

adequate consultation with the faculty senate, including the creation of a new faculty of

computing and information science, the reorganization of the division of biological sciences, and

29 Faculty Handbook 2010 (Eighth Edition), available at http://theuniversityfaculty.cornell.edu/handbook/handbook_main.html

27

the creation of a for-profit distance learning corporation.30 At Bennington College, the

Bennington Academic Freedom Committee and the AAUP engaged in activities to protest the

administration’s unilateral actions in 1994 to abolish its “presumptive tenure” system.31 At

Rensselaer Polytechnic Institute, in 2006, the Board of Trustees ordered the Faculty Senate to

revoke its amendment to expand Senate membership to include clinical faculty. Following the

Rensselaer President’s rejection of the Senate’s request to convene a joint committee to resolve

the issue, the Provost unilaterally suspended the Faculty Senate for failing to comply with the

Board of Trustees’ order. This action led to an extended period of conflict, during which the

administration took control from the Senate of the election process for faculty committees

(including the curriculum committee) and for the responsibility over the contents of the Faculty

Handbook.32

In NLRB v. The Cooper Union for the Advancement of Science and Art,783 F.2d 29, 32

(2d Cir. 1986), the Second Circuit considered “faculty-administration conflict arising out of the

[administration’s] unilateral changes” in concluding that the faculty was not “aligned with

management” and thus, not managerial. As the court stated, “[W]e would have to ignore the

extensive evidence of conflict and of broad administrative authority to implement changes over

30 Faculty Senate Committee to Review Faculty Governance: Final Report and Recommendations 18-42 (March 7, 2007), available at http://theuniversityfaculty.cornell.edu/pdfs/GOVERNANCE372007.pdf 31 Joan Wallach Scott, The Critical State of Shared Governance, http://www.aaup.org/AAUP/pubsres/academe/2002/JA/Feat/Scot.htm; Jane Buck, The President’s Report: Successes, Setbacks, and Contingent Labor, Academe, Vol. 87, No. 5, Sept.-Oct. 2001, at 18, 20. 32 Nancy D. Campbell and Jane F. Koretz, The Demise of Shared Governance at Rensselaer Polytechnic Institute, 1 AAUP Journal of Academic Freedom (2010), available at http://www.academicfreedomjournal.org/Previous/VolumeOne/Campbell-Koretz.pdf ; Paula Wasely, “Rensselaer Professors Challenge Provost’s Decision to Suspend Faculty Senate,” Chronicle of Higher Education (Nov. 1, 2009).

28

faculty opposition in core academic areas such as curriculum to find that the Cooper Union

faculty is ‘aligned with management.’” 783 F.2d at 32.

Faculty perceptions reflect the conflict between the corporate business model and the

shared governance model. The results from a 2007 international survey reveal that most U.S.

faculty perceive that they have little influence over key academic policies at the level of their

college and in the central university administration. Seventy-three percent of faculty responded

that they are very or somewhat influential in helping to shape key academic policies at their

departmental level.33 That percentage drops at the school/college-level to 37 percent and even

further at the university level, where 21 percent responded that they are very or somewhat

influential in shaping key academic policies.34 Sixty-four percent of faculty agreed that “there is

a top-down management style” in their university, while only 31 percent agreed that “there is

collegiality in decision-making processes” and only 30 percent agreed that “there is good

communication between management and academics.”35 Faculty sense of affiliation with their

university is also dropping. In a comparable survey in 1992, 90 percent of faculty responded that

their affiliation with their university was important or very important, while in 2007, only 61

percent responded positively to this question.36 This contrasts with a continued high degree of a

sense of affiliation of faculty with their discipline, at 96 percent in 1992 and 92 percent in

2007.37 These data support a conclusion that the shifts toward top-down management and away

33 William K. Cummings and Martin Finkelstein, Global Trends in Academic Governance, Academe Online (Nov.-Dec. 2009) (Table 3), available at http://www.aaup.org/AAUP/pubsres/academe/2009/ND/Feat/Cumm.htm 34 Id. 35 Id. at Table 4. 36 Id. at Table 5. 37 Id.

29

from shared governance contribute to faculty perceptions that faculty and administrative interests

are not aligned.38 Rather faculty interests lie with their professional discipline, but diverge from

their institutions.

3. Summary: Factors relating to expanded administration size and authority.

As this discussion has demonstrated, the growing influence of the corporate business

model on universities has led to a major expansion of university administration, accompanied by

increased top-down authority exercised by high-level administrators. This has resulted in

institutional changes in the relationship between administration and faculty. The proliferation of

administrators at high levels of the university hierarchy has solidified a class of long-term

university administrators – “managerial professionals” – who have been given enhanced

authority and power over academic matters in a way that erodes effective recommendations or

control by the “practicing professionals” in the faculty. As the administration expands, its

decisions rely more heavily on the expertise of the “managerial professional” administrators.

Although the “practicing professionals” in the faculty may continue to have a substantial role in

the development of academic policy and practice, this role has become more advisory in nature.

Unilateral decision-making by the administration and the corresponding erosion of the shared

governance model has led to conflict between administration and faculty.

These institutional shifts in power and authority should be considered in the fact-based

evaluation of whether the employer has met its burden of proving that faculty are managerial 38 Cummings and Finkelstein state: “Academics both in the United States and around the world believe that they do not have a sufficient role in decision making, though American faculty feel less powerful in a number of respects than their colleagues in other mature systems of higher education. Additionally, in most countries, faculty do not believe that the current decision-making processes have led to much improvement in their working conditions.” Id. at 2.

30

employees. Additional factors relating to the growth of administration size and authority are: the

extent of university administration hierarchy; the degree of consultation by the administration

with faculty committees or other faculty governance bodies over academic and nonacademic

matters; whether the administration treats faculty recommendations as advisory rather than as

effective recommendations; whether the administration routinely approves nearly all faculty

recommendations without independent administrative review; and whether conflict between the

administration and the faculty reflects a lack of alignment of administration and faculty interests.

4. University administrations increasingly respond to external market forces rather than faculty views and recommendations.

In applying the corporate business model, university administrators have relied

increasingly on external market forces to make decisions based on revenue generating potential

of academic programs. This has eroded the shared governance model by shifting control and

influence over academic policy and programs from the faculty to the administration. In the

competition for market position, university administrators have turned to public relations firms to

develop the university’s “brand” in a way that will appeal to students as “customers” purchasing

education as a product.39 This commercial image of education has been one of the bases for

expanding the administration, with a multiplicity of new “nonacademic” units to address

administrative areas such as finance, student affairs, and housing.40 Yet these “nonacademic”

units have an impact on traditional “academic” concerns, including issues about budgetary 39 See, Susan C. Aldridge, Strategy Matters More Than Budget in Student Recruiting, Chronicle of Higher Education (Oct. 31, 2010); Lloyd Thacker, Confronting the Commercialization of Admissions, Chronicle of Higher Education (Feb. 25, 2005). 40 See, Ginsberg, supra note 14, at 27-36; Faculty Senate Committee to Review Faculty Governance: Final Report and Recommendations 6 (March 7, 2007), available at http://theuniversityfaculty.cornell.edu/pdfs/GOVERNANCE372007.pdf

31

priorities. As universities face continuing financial pressures, administrators control the

management of finances and the budget, with a marked reduction of faculty consultation or

participation in setting budget policies that affect academic matters.41 Faculty influence

decreases, as well, with the growth of the ranks of lower paid nontenure-track faculty.42

The erosion of faculty governance of academic programs has occurred, in part, through

changes in the various budget models that universities have been adopting. The traditional

model was incremental budgeting where only new revenue is allocated. However, more and

more universities are moving to models like Responsibility Center Management, which

“exemplifies the attempt to introduce business principles into higher education” by making each

college within the university a profit center.43 The central administration maintains control by

imposing a tax on the colleges to carry out “strategic initiatives.” At the same time, colleges

receive most of the revenue but also have all expenses, including space, police and

administrative costs allocated to them. Each college receives revenues based on student credit

hours and research funding. Colleges receive higher revenue for their own majors, giving them

an incentive to offer as many courses as they can within their own colleges. Thus, engineering

schools have an incentive to teach English and mathematics as well as engineering; business

41 Joan Wallach Scott, The Critical State of Shared Governance, available at http://www.aaup.org/AAUP/pubsres/academe/2002/JA/Feat/Scot.htm 42 See, Benjamin, supra note 17 (nearly 40 percent of full-time faculty positions and 70 percent of all faculty positions are nontenure-track). 43 David L. Kirp, The Corporation of Learning: Nonprofit Higher Education Takes Lessons from Business, Research & Occasional Paper Series: CSHE.5.03, Center for Studies in Higher Education, at 4-5 (May 2003), available at http://cshe.berkeley.edu/publications/docs/ROP.Kirp.5.03.pdf Universities have also changed their reporting in financial statements to make them much closer to financial statements used by for-profit businesses. See, Mary F. Foster and James E. Shiah, FASB Changes Reporting Standards for Not-for-Profit Organizations, JOURNAL OF CORPORATE ACCOUNTING AND FINANCE 381, 382 (Spring 1994).

32

schools have incentives to teach writing, philosophy, mathematics and statistics. This budgetary

model encourages deans to make unilateral decisions to create, develop, or eliminate programs

based on their revenue generating potential regardless of the faculty’s academic concerns. This

budgetary model also changes the communal academic culture of the university by discouraging

collaboration between faculty across colleges for research and in formulating interdisciplinary

programs.44

Other budgetary decisions by university administrations have also invaded faculty control

over academic programs. The market potential in the sciences has led to budgetary priorities

favoring expansion of the science disciplines as compared to the humanities. Since the

enactment of the Bayh-Dole Act of 1980, which encourages commercialization of federally

funded research, there has been an expansion of university technology transfer offices, directed

and operated by non-faculty administrators to provide the infrastructure and personnel to “scour

[university] labs”45 for commercially profitable discoveries.46 Between 1998 and 2003, U.S.

44 See, John D. Hummell, Financing Higher Education: Approaches to Funding at Four-Year Public Institutions, Working Paper Series: CHEWP.1.2012, Center for Higher Education, at 2-4, 9-13 (March 2012), available at http://www.cehs.ohio.edu/centers-partnerships/centers/c4he/CHEWP_1_2012_JH.pdf Leroy W. Dubeck, Beware Higher Ed’s Newest Budget Twist, THOUGHT & ACTION 81-91 (Spring 1997), available at http://www.nea.org/assets/img/PubThoughtAndAction/TAA_97Spr_07.pdf 45 DEREK BOK, UNIVERSITIES IN THE MARKETPLACE: THE COMMERCIALIZATION OF HIGHER EDUCATION 141 (2003). 46 See, AAUP Recommended Principles & Practices to Guide Academic-Industry Relationships (draft report) 107 (June 2012), available at http://www.aaup.org/AAUP/comm/rep/industry.htm ; David Blumenthal, Academic-Industrial Relationships in the Life Sciences, 349 NEW ENGLAND JOURNAL OF MEDICINE 2452, 2454-55 (2003); Sheldon Krimsky, The Profit of Scientific Discovery and Its Normative Implications, 75 CHICAGO-KENT LAW REVIEW 15, 22 (1999); Arti K. Rai and Rebecca S. Eisenberg, Bayh-Dole Reform and the Progress of Biomedicine, 91 AMERICAN SCIENTIST 52, 53 (Jan.-Feb. 2003).

33

patents awarded to universities quadrupled, from about 800 to more than 3,200 per year.47 From

1991 to 2000, licenses granted by universities increased by 158 percent.48

Faculty control has been reduced, as well, by the growth of university agreements giving

corporate donors unprecedented access to university departments in exchange for large-scale

corporate funding. Such access includes corporate representatives on panels making decisions

about whether to fund faculty research proposals, a function which had traditionally been

reserved for faculty peer review.49 Corporate donors also influence the dissemination of research

results through arrangements for non-exclusive or exclusive licensing of patented academic

research results. Examples include the 1982 Washington University-Monsanto agreement for

$23.5 million of corporate funds over five years in exchange for exclusive licensing rights to

patents resulting from biomedical research; the 1994 MIT-Amgen agreement for $30 million of

corporate funding to the Department of Biology and the Department of Brain and Cognitive

Sciences over a ten-year period in exchange for resulting patents to be owned jointly by MIT and

Amgen;50 and a 2008 Harvard-GlaxoSmithKline five-year $25 million agreement for stem cell

research, which will include joint projects, Glaxo first rights to non-exclusive licensing, and a

47 Josephine Johnston, Health Related Academic Technology Transfer: Rethinking Patenting and Licensing Practices, 9 INTERNATIONAL J. BIOTECHNOLOGY 156, 162 (2007). 48 Blumenthal, supra note 46, at 2455 (2003). 49 AAUP Recommended Principles & Practices to Guide Academic-Industry Relationships, supra note 46, at 189-195. 50 Risa L. Lieberwitz, Confronting the Privatization and Commercialization of Academic Research: An Analysis of Social Implications at the Local, National, and Global Levels, 12 IND. J. GLOBAL LEG. STUD. 109, 123-124 (2005).

34

research consortium to be “overseen by a steering committee made up of equal numbers of

Harvard and GSK personnel.”51

The university’s growing identity as a business and market actor has altered the unique

academic culture of the university. The extent to which the administration makes academic

decisions based on market potential should be considered as a factor in the determination of

whether faculty are managerial employees. In considering this factor, the fact-based inquiry

should include the extent to which faculty governance bodies actually exercise the authority to

make “effective recommendations” about university market ventures, including university-

industry agreements. As discussed above, faculty do not make effective recommendations if

they are relegated simply to an advisory capacity, where the administration will seek, accept, or

reject faculty recommendations depending on whether they comport with the administration’s or

external industry partner’s position

C. An accurate assessment of faculty status under Section 2(12) should take into account factors related to the university’s use of the corporate business model of decision-making.

Erosion of faculty influence and faculty governance bodies means erosion of faculty

academic freedom as a term and condition of employment. Faculty rely on academic freedom as

the term and condition of employment central to their ability to have autonomy and

independence in their teaching and research, and in their collective influence on academic

matters through governance bodies. The fundamental structural changes in the distribution of

authority in the university, however, have led to established patterns of administrators’ unilateral 51 AAUP Recommended Principles & Practices to Guide Academic-Industry Relationships, supra note 46, at 191.

35

actions on academic and nonacademic matters. These structural changes have weakened

academic freedom and shared governance as terms and conditions of employment that faculty

can rely on as a predictable and regular part of their professional work. Administrators have

made it increasingly clear that they will consult with faculty when they please, fail to consult

with faculty when they please, accept or reject faculty input and recommendations when they

please, and even dissolve faculty governance bodies when they please. As a result,

administrations increasingly make and implement unilateral decisions when they please. The

faculty does not make “effective recommendations” or have “effective control” over many

academic and nonacademic matters. These conditions show that administration and faculty

interests are not aligned.

Thus, the determination of whether faculty members are managerial employees should

consider the changed relationship between the faculty and the administration. As discussed

above, this assessment is consistent with the emphasis on context in Yeshiva and in the D.C.

Circuit’s decision in Point Park University. The Regional Director will, of course, engage in

fact-finding on a case by case basis to determine whether the employer has met its burden of

proving that faculty at a specific university are managerial. But the current widespread

conditions of universities make it necessary to expand the parameters of that determination to

assess whether the faculty actually exercises managerial authority. Taking account of the

changed context would include consideration of the following factors in the determination of

whether faculty are managerial employees: the extent of university administration hierarchy; the

extent to which the administration makes academic decisions based on revenue generation or

other market-based considerations; the degree of consultation by the administration with faculty

36

committees or other faculty governance bodies over academic and nonacademic matters; whether

the administration treats faculty recommendations as advisory rather than as effective

recommendations; whether the administration routinely approves nearly all faculty

recommendations without independent administrative review; and whether conflict between the

administration and the faculty reflects a lack of alignment of administration and faculty interests.

In applying these factors, the conclusion that faculty are non-managerial professional

employees should not depend on evidence of the most extreme loss of faculty authority over

academic matters. The current context in universities reveals a range of situations where faculty

governance has been eroded through administrative unilateral decision-making and disrespect for

faculty recommendations. In enforcing the Board’s decision finding Loretto Heights College

faculty to be non-managerial, the court noted that the faculty did “play a substantial role in

College governance, participating in decision making and implementation in a wide range of

areas.” 742 F.2d at 1252. At the same time, the court concluded that “while faculty members do

take part in the formulation and implementation of management policy, their role does not…rise

to the level of ‘effective recommendation or control’….” 742 F.2d at 1252. The faculty did not,

therefore, meet the Yeshiva standard of “in effect, substantially and pervasively operating the

enterprise.” 742 F.2d at 1255, quoting Yeshiva, 444 U.S. at 679. Nor was “their authority in

academic matters…absolute.” 742 F.2d at 1255, quoting Yeshiva, 444 U.S. at 686. Thus, in

applying the relevant factors in the current university context, the Board can reasonably conclude

that faculty are non-managerial professional employees across a range of cases where faculty

participate actively in university affairs but do not “substantially and pervasively operate the

enterprise.”

37

Even with an expanded range of faculty determined to be non-managerial professional

employees, there will still be a need to determine whether certain positions are managerial. In

addition to high-level administrators, in some cases department chairs and program directors will

be found to be managerial employees. Where the parties do not agree, this determination will be

made, of course, through a fact-based inquiry by the Regional Director. Having made these

employee status determinations, the most relevant issues will involve bargaining unit

determinations, for example, whether tenure-track/tenured faculty members and nontenure-track

faculty should be included in a single bargaining unit. These community of interest issues will

be determined, as in all cases, through the labor organization’s petition for election, followed by

either agreement of the parties or a Regional Director’s decision based on evidence gathered at a

representation case hearing.

CONCLUSION

For the foregoing reasons, the AAUP respectfully urges the NLRB to expand the factors

used in determining whether university faculty are managerial employees. These factors, as

listed and analyzed above, would take into account the current context of universities, including

the major institutional changes in university structure and authority since the Yeshiva case was

decided.

Dated: June 29, 2012


AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS

38

/s/ Kathi S. Westcott, Esq. Senior Counsel 1133 19th Street, NW, Ste. 200 Washington, DC 20036 202-737-5900 (Office) 202-737-5526 (Fax) [email protected]

CERTIFICATE OF SERVICE I, the undersigned, hereby certify that the foregoing BRIEF OF AMICUS CURIAE,

AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, IN SUPPORT OF

PETITIONER, NEWSPAPER GUILD OF PITTSBURGH/ COMMUNICATIONS WORKERS

OF AMERICA LOCAL 38061, AFL-CIO, CLC, was served electronically on this 29th day of

June 2012, to the parties and their counsel in this case by e-filing via the NLRB website:

http://mynlrb.nlrb.gov/efile.

/s/ Kathi S. Westcott, Esq.



9.

AMICUS BRIEF OF MICHAEL HOERGER, PhD., UNIVERSTIY OF ROCHESTER MEDICAL CENTER

JULY 6, 2012

No. 06-RC-012276

__________________________________

UNITED STATES OF AMERICA AMICUS BRIEF

FOR THE NATIONAL LABOR RELATIONS BOARD

__________________________________

POINT PARK UNIVERSITY,

Employer,

vs.

NEWSPAPER GUILD OF PITTSBURGH/ COMMUNICATIONS WORKERS OF AMERICA,

LOCAL 38061, AFL-CIO, CLC, Petitioner

__________________________________

BRIEF OF AMICUS CURIAE ON INVITATION BY THE NATIONAL LABOR RELATIONS BOARD

“Recent Developments in Models of Decision Making” Michael Hoerger, PhD, Senior Instructor Rochester Healthcare Decision-Making Group and Department of Psychiatry University of Rochester Medical Center 300 Crittenden Blvd, Rochester, NY 14642 (585) 276-4251

1

TABLE OF CONTENTS Statement of Interest of Amicus Curiae ...............................................................................2 Argument .............................................................................................................................3 I. Introduction..................................................................................................3 II. Response to Question 7: Social Science Research on Models of Decision Making.........................................................................3 Conclusion ...........................................................................................................................8

2

STATEMENT OF INTEREST OF AMICUS CURIAE

Dr. Michael Hoerger, PhD, is a social scientist with a decade of experience

conducting research on decision making. Recent developments in decision-making

research support the need for protecting, rather than limiting, the right to shared

governance in the workplace, which is often codified through union representation and

collective bargaining. By participating as an amicus in this case, Dr. Hoerger seeks to

assist the NLRB in understanding recent developments in models of decision making,

which support a narrow interpretation of the scope of Yeshiva, NLRB v. Yeshiva

University, 444 U.S. 672 (1980).

3

ARGUMENT

I. Introduction

Recent developments in social science research on models of decision making

make clear the societal benefits of shared decision making (shared governance), and

given the increasingly top-down structure of American universities, Yeshiva should be

interpreted narrowly, classifying faculty employees as “managers” only where particular

universities can clearly demonstrate the absence of a top-down hierarchy. This amicus

brief responds to Question 7 listed in the NLRB’s Invitation to File Briefs. The AAUP’s

amicus brief, dated June 29, 2012, responds to Questions 3, 4, and 7, emphasizing the rise

of top-down decision making by administrative management at private universities.

There, they request the inclusion of “the extent of university administration hierarchy” (p.

5) when considering whether faculty ought to be classified as non-managerial

professional employees. As that brief describes, this top-down administrative structure is

often driven by external market forces. Recent developments in social science research

take their argument one step further – top-down administrative decision-making

structures have inherent flaws, even when motivated by benevolence toward employees.

II. Response to Question 7: Social Science Research on Models of Decision Making

Question 7. Have there been developments in models of decision making in private universities since the issuance of Yeshiva that are relevant to the factors the Board should consider in making a determination of faculty managerial status? If so, what are those developments and how should they influence the Board’s analysis?

4

Overview

In order to contextualize the changes in decision making at private universities, it

is important to understand more generally the rapid advances made since Yeshiva in

social science research on models of decision making. This research demonstrates the

inherent flaws of top-down decision making and supports the AAUP’s request for the

inclusion of “the extent of university administration hierarchy” (p. 5) when considering

whether faculty may be classified as non-managerial professional employees.

Sample Decisions

When discussing decision-making models, it is important to consider a range of

decisions individuals may desire to make. In the context of private universities, relevant

decisions include choices about health insurance plans, retirement plans, course

scheduling, policies for admitting students, tenure and promotion policies, and the like.

As the AAUP’s amicus brief makes clear, these and other decisions are increasingly

being made unilaterally by administrative managers, rather than through a shared

decision-making process that includes both the administration and non-managerial

professional faculty employees.

5

Social Science Models of Decision Making

Research by myself 1 and others 2 indicates that when individuals face decisions,

they often predict how their various options will impact their well-being (referred to

throughout as “well-being prediction” 3). As an example of well-being prediction, an

individual might predict whether they would be better off with Health Insurance Plan A

or Health Insurance Plan B, admitting two highly-qualified graduate students this year or

1 Hoerger, M., Quirk, S. W., Lucas, R. E., & Carr, T. H. (2009). Immune neglect in affective forecasting.

Journal of Research in Personality, 43, 91-94. Hoerger, M., Quirk, S. W., Lucas, R. E., & Carr, T. H. (2010). Cognitive determinants of affective

forecasting errors. Judgment and Decision Making, 5, 365-373. Hoerger, M., Quirk, S. W. (2010). Affective forecasting and the Big Five. Personality and Individual

Differences, 49, 972-976. Hoerger, M., Quirk, S. W., & Weed, N. C. (2011). Development and validation of the Delaying

Gratification Inventory. Psychological Assessment, 23, 725-738. Hoerger, M. (2012). Coping strategies and immune neglect in affective forecasting: Direct evidence and

key moderators. Judgment and Decision Making, 7, 86-96. Hoerger, M., Quirk, S. W., Chapman, B. P., & Duberstein, P. R. (in press). Affective forecasting and self-

rated symptoms of depression, anxiety, and hypomania: Evidence for a dysphoric forecasting bias. Cognition & Emotion.

Hoerger, M., Chapman, B. P., Epstein, R. M., & Duberstein, P. R. (in press). Emotional intelligence: A theoretical framework for individual differences in affective forecasting. Emotion.

2 Gilbert, D. T., Pinel, E. C., Wilson, T. D., Blumberg, S. J., & Wheatley, T. P. (1998). Immune neglect: A

source of durability bias in affective forecasting. Journal of Personality and Social Psychology, 75, 617-638.

Wilson, T., Wheatley, T., Meyers, J., Gilbert, D., & Axsom, D. (2000). Focalism: A source of durability bias in affective forecasting. Journal of Personality and Social Psychology, 78, 821-836.

Dunn, E. W., & Laham, S. A. (2006). Affective forecasting: A user’s guide to emotional time travel. In J. Forgas (Ed.), Affect in social thinking and behavior (pp. 177-196). New York: Psychology Press.

Chapman, G. B., & Coups, E. J. (2006). Emotions and preventive health behavior: Worry, regret, and influenza vaccination. Health Psychology, 25, 82-90.

Gilbert, D. T., & Wilson, T. D. (2007). Prospection: Experiencing the future. Science, 317, 1351-1354. Gilbert, D. T., Killingsworth, M. A., Eyre, R. E., & Wilson, T. D. (2009). The surprising power of

neighborly advice. Science, 323, 1617-1619. Dillard, A. J., Fagerlin, A., Cin, S. D., Zikmund-Fisher, B. J., & Ubel, P. A. (2010). Narratives that

address affective forecasting errors reduce perceived barriers to colorectal cancer screening. Social Science & Medicine, 71, 45-52.

Ruby, M. B., Dunn, E. W., Perrino, A., Gillis, R., & Viel, S. (2011). The invisible benefits of exercise. Health Psychology, 30, 67-74.

3 Psychologists and behavioral economists often use the term “affective forecasting” to describe this

phenomenon

6

just one, with a tenure policy that favors research productivity or favors teaching.

Individuals will differ in each of these preferences.

The problem is that well-being prediction is challenging, which leads people to

make decisions that fail to optimize future well-being.4 For example, people avoid

exercise, vaccinations, and cancer screenings because they overestimate the distress

evoked by these behaviors and underestimate their potential benefits for well-being.5

Similar examples of faulty well-being prediction can be found in society’s high divorce

rate, consumer dissatisfaction with purchasing decisions, as well as workplace managerial

policies, that even when good-intentioned, foster employee dissatisfaction. In fact, well-

being prediction goes into the architecture of decision making, decisions about what

options should exist, what health insurance plans should be made available, what

retirement options should be available, what course scheduling options should be

available, and the like. Because well-being prediction is challenging, these decisions

warrant careful consideration.

4 Wilson, T. D., & Gilbert, D. T. (2005). Affective forecasting: Knowing what to want. Current Directions

in Psychological Science, 14, 131-134. 5 Chapman, G. B., & Coups, E. J. (2006). Emotions and preventive health behavior: Worry, regret, and

influenza vaccination. Health Psychology, 25, 82-90. Dillard, A. J., Fagerlin, A., Cin, S. D., Zikmund-Fisher, B. J., & Ubel, P. A. (2010). Narratives that

address affective forecasting errors reduce perceived barriers to colorectal cancer screening. Social Science & Medicine, 71, 45-52.

Ruby, M. B., Dunn, E. W., Perrino, A., Gillis, R., & Viel, S. (2011). The invisible benefits of exercise. Health Psychology, 30, 67-74.

7

Well-being prediction is challenging, but social science research shows that

people are better off predicting their own well-being than predicting somebody else’s.6

Accordingly, when it comes to well-being prediction, an individual faculty member

should be better than administrative management at accurately predicting what that

faculty member will want. The implication is that faculty employees should have a say in

the decisions that affect their lives, have a say in the architecture of decision making, as

even a benevolent-but-top-down administrative decision-making structure has inherent

flaws – a problem that has increased within the private university administrative structure

over the past three decades. Simply put, when it comes to well-being prediction,

individual faculty members have a much better idea than administrative management of

what health plan they would prefer, or when they would want to hold office hours,

meaning that a top-down hierarchy can inflict unnecessary harm. In fact, well-being

prediction tends to be at its best when made through a shared process, where multiple

individuals can offer perspectives7 -- the very stance argued by the AAUP. Thus, in

considering Yeshiva, faculty should be classified as non-managerial professional

employees, unless an employer fulfills the burden of specifically demonstrating the

absence of top-down decision making.

6 Igou, E. R. (2008). “How long will I suffer?” versus “How long will you suffer?” A self-other effect in

affective forecasting. Journal of Personality and Social Psychology, 95, 899-917. 7 Gilbert, D. T., Killingsworth, M. A., Eyre, R. E., & Wilson, T. D. (2009). The surprising power of

neighborly advice. Science, 323, 1617-1619.

8

CONCLUSION

In summary, recent advances in social science research document the underlying

flaws inherent in top-down decision-making processes. Given the increasing

administrative hierarchy since Yeshiva, it is recommended that faculty at private

universities be classified as non-managerial professional employees, unless specific

employers can provide evidence indicating the absence of a top-down administrative

hierarchy.

Dated: July 6, 2012


/s/ Michael Hoerger Michael Hoerger, PhD, Senior Instructor Rochester Healthcare Decision-Making Group and Department of Psychiatry University of Rochester Medical Center 300 Crittenden Blvd, Rochester, NY 14642 (585) 276-4251


I, the undersigned, hereby certify that the foregoing BRIEF OF AMICUS CURIAE IN SUPPORT OF THE PETITIONER, NEWSPAPER GUILD OF PITTSBURGH/ COMMUNICATIONS WORKERS OF AMERICA LOCAL 38061, AFL-CIO, CLC, was served electronically on this 6th day of July 2012, to the parties and their counsel in this case by e-filing via the NLRB website: http://mynlrb.nlrb.gov/efile. /s/ Michael Hoerger



10.

AMICUS BRIEF OF EMPLOYMENT AND LABOR RELATIONS SCHOLAR PROFESSOR

JOEL CUTCHER-GERSHENFELD (UNIVERSTIY OF ILLINOIS, SCHOOL OF

LABOR AND EMPLOYMENT RELATIONS) AND PROFESSOR THOMAS A. KOCHAN

(MASSACHUSETTS INSTITUTE OF TECHNOLOGY, SLOAN SCHOOL OF

MANAGEMENT), AND OTHERS




Employer

and 6-RC-12276

NEWSPAPER GUILD OF PITTSBURGH/

COMMUNICATIONS WORKERS OF AMERICA

LOCAL 38061, AFL-CIO, CLC

Petitioner

On Remand from the United States Court of

Appeals for the District of Columbia Circuit

BRIEF AMICUS CURIAE OF EMPLOYMENT

AND LABOR RELATIONS SCHOLARS IN RESPONSE

TO INVITATION TO FILE BRIEFS

Of Counsel

Joel Cutcher-Gershenfeld Matthew W. Finkin

School of Labor and Employment Relations College of Law

University of Illinois University of Illinois

Champaign, IL Champaign, IL

Counsel for Amici

Thomas A. Kochan

Sloan School of Management

M.I.T

Cambridge, MA

[Institutional Affiliation for

Identification Purposes Only]

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INTEREST OF AMICI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

I. High Performance or Knowledge-Driven Systems that Involve Employees and

Their Representatives in the Management of the Company are an Important

Advance in Industrial Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II. Employee Participation in Policy Formulation and Effectuation Alone Does

Not Result in Managerial Status: the Touchstone is of an Impermissible

Division of Loyalty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

A. The Analytical Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

B. The Board Has Failed to Pursue the Question—and so the Meaning—of

the Putative Manager’s “Relationship to Management” . . . . . . . . . . . . . . . . . . . 18

C. The Party Proposing that an Employee is a Manager Should be Obligated to

Prove How Statutory Coverage Would Create a Demonstrable Conflict in the

Duty of Loyalty: Absent that Conflict the Employee Cannot Be a Manager . . . .24

III. An Employee Whose Time Spent in Participative Governance is Insubstantial in Terms of His or Her Primary Responsibilities is Not a Manager. . . . . . . . . . . . . .27

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

LIST OF AMICI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

ii

TABLE OF AUTHORITIES

Page

Supreme Court Cases

NLRB v Bell Aerospace Co, 410 U.S. 267 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

NLRB v. Kentucky River Community Care, 532 U.S. 706(2001). . . . . . . . . . . . . . . . . . . . . . . . . 27

NLRB v. Yeshiva University, 444 U.S 672 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

NLRB Cases

College of Osteopathic Medicine and Surgery, 265 NLRB 295 (1982). . . . . . . . . . . . . . . . . . . . 19

Canonie Transp. Co., 289 NLRB 299 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Detroit College of Business, 296 NLRB 318 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 29

FHP, Inc., 274 NLRB 1141 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19, 26, 28

NLRB v Health Care & Retirement Corp., 511 U.S. 571,579 (1994). . . . . . . . . . . . . . . . . . passim

Oakwood Healthcare, Inc., 348 NLRB 688 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20, 21, 29

Westinghouse Elec. Corp., 163 NLRB 723 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Federal Statues

29 U.S.C. § 152 (11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

29 U.S.C. § 2 (11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 25

State Statutes

N.C. Gen. Stat. § 95-252 (d) (2) (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 22

N.C. Gen. Stat. § 595-252 (c) (4) (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

OR. Rev. Stat § 654.182 (1) (a) (2011). . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

International Statutes

Fair Work Act (2009) Australia, http://www.fwa.gov.au/index.cfm?pagename=legislationfwact. . . . . . .13

iii

Secondary Authorities

Agreement between UMass Memorial & SHARE, Oct. 1, 2007–Sept. 30, 2011,

available at http://theshare union.org/SHARECONTRACT2007-2011.pdf. . . . . . . . . . . . . . . . . .7

S.E. Black & L.M. Lynch, How to Compete: The Impact of Workplace Practices and

Information Technology on Productivity,

(National Bureau of Economic Research, Inc., NBER Working Papers 6120, 1997). . . . . . .12, 13

Barry Bluestone & Thomas Kochan, Toward a Grand Bargain:

Collaborative Approaches to Labor-Management Reform in Massachusetts

(The Boston Foundation Oct. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Comment, Protecting Managerial Employees Under the National Labor Relations Act, 91

Colum. L. Rev. (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Comment, The Managerial Exclusion Under the National Labor Relations Act:

Are Worker Participation Programs Next?, 48 Cath. U. L. Rev. (1998/99). . . . . . . . . . . . . . . . .28

Correspondence with Dan Brooks, former UAW Co-Chair of the UAW-Ford National

Program Center & Marty Mulloy, Vice President, Global Labor Affairs,

Ford Motor Company, UAW-Ford National Quality Committee Charter. . . . . . . . . . . . . . . . . . . 9

Joel Cutcher-Gershenfeld, Bargaining When the Future of an Industry is at Stake:

Lessons from UAW-Ford Collective Bargaining Negotiations,

27 Negotiation J. (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . 8

Joel Cutcher-Gershenfeld, The Impact on Economic Performance of a Transformation in

Workplace Relations, 44 Indus. & Lab. Rel. Rev. (1991). . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . .4

Joel Cutcher-Gershenfeld et al., Knowledge-Driven Work: Unexpected Lessons

from Japanese and United States Work Practices (Oxford University Press 1998). . . . . . . . . . . .5

Joel Cutcher-Gershenfeld & Saengdow Prasittisuk, Beyond Gridlock: Advancing

the American Dream in a Global Knowledge Economy Via Distinct Models for Labor and

Employment Relations Policy, LERA Annual Meeting, panel on Creating a New Balance

in the Corporate World: Promoting Stable Employment and Long-Term Growth (2011). . . . . 13

Joel Cutcher-Gershenfeld and Saul A. Rubinstein, Innovation and Transformation in Public

Sector Employment Relations: Future Prospects on a Contested Terrain,

Ohio St. J. on Disp. Resol. (Symposium Issue, forthcoming). . . . . . . . . . . . . . . . . . . . . . . . . . . .11

Cynthia Estlund, Regoverning the Workplace (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

Jody Hoffer Gittell, The Southwest Airlines Way: The Power of Relationships

for Superior Performance (McGraw Hill 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

iv

Robert A. Gorman & Matthew W. Finkin, Basic Text on Labor Law:

Unionization and Collective Bargaining (2d ed. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

Mark A. Huselid, The impact of human resource management practices on turnover,

productivity, and corporate financial performance, 38 Acad. of Mgmt. J. (1995). . . . . . . . . . . . 4

C. Inchiowski & K. Shaw, The Effects of Human Resource Management Systems on

Economic Performance: An International Comparison of U.S. and Japanese Plants,

45 Mgmt. Sci. (1999). . . . . . . . . .. . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4, 13

H.C Katz & O.R. Darbishire, Converging Divergences: Worldwide Change in Employment

Relations (ILR Press 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Thomas A. Kochan et al., Healing Together: The Labor-Management

Partnership at Kaiser Permanente (Cornell University Press 2009). . . . . . . . . . . . . . . . . . . . . . 5, 6

Thomas A. Kochan, Harry C. Katz & Robert B. McKersie,

The Transformation of American Industrial Relations

(New York: Basic Books 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Richard M. Locke et al., Does monitoring improve labor standards? Lessons from Nike,

61 Indus. & Lab. Rel. (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

John Paul Macduffie, Human Resource Bundles and Manufacturing Performance:

Organizational Logic and Flexible Production Systems in the World Auto Industry,

48 Indus. & Lab. Rel. Rev. (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Ikujiro Nonaka, The knowledge-creating company, 69 Harv. Bus. Rev. (1991). . . . . . . . . . . . . .5

R. Nichol, A multi-domain process design and improvement framework (2010)

(ESD Doctoral Dissertation) (MIT). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

Michael Piore & Charles Sabel, The Second Industrial Divide:

Possibilities for Prosperity (New York: Basic Books 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

Saul A. Rubinstein & Thomas A. Kochan, Learning from Saturn: Possibilities for

Corporate Governance and Employee Relations (Cornell University Press 2001). . . . . . . . . . . 8

Saul A. Rubinstein & John E. McCarthy. Collaborative School Reform:

Creating Union-Management Partnerships to Improve Public School Systems,

Rutgers University School of Management and labor Relations (Oct. 2010). . . . . . . . . . . . . . . .11

U.S. Dep’t of Labor, U.S. Comm’n on the Future of Worker-Management

Relations—Final Report (Dec. 1, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

v

U.S. Dep’t of Labor, U.S. Labor Law and the Future of Labor-Management Relations,

Bureau of Labor-Management Relations and Cooperative Programs Report

No. 113 (Feb. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

Richard E. Walton, From control to commitment in the workplace,

63 Harv. Bus. Rev. (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

David Weil, Are Mandated Health and Safety Committees Substitutes for or Supplements to

Labor Unions? 52 Indus. & Lab. Rel. Rev. (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Paul Weiler, Governing the Workplace (1990). . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

J. Womack & D. Roos, The machine the changed the world (MacMillan 1990). . . . . . . . . . . . . . . .8

Shoshana Zuboff, In the Age of the Smart Machine (New York: Basic Books 1984 . . . . . . . .. . .4

Other Authorities

Restatement (Third) Employment Law §402 (b) (2011)

commented on at 13 Emp. Rts. & Emp. Poly. J. (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

1

Interest of Amici

Amici are academics long engaged in the study and analyses of systems of work

organization and employee representation. (A list is appended at the close.) They will address

the issues put by the Board, particularly in questions (5) and (6), from the perspective of neither

“labor” nor “management” as organized interests but as impartial scholars of industrial relations.

They are uniquely qualified to bring their decades of experience and thought to bear, to assist the

Board in accommodating the Labor Act to the emerging needs of the modern workplace.

Summary of Argument

The Board’s invitation for the submission of Amicus briefs anticipates its engagement

with systems of worker involvement in the formulation and effectuation of employer policies: of

whether those so engaged are exempted from the coverage of the National Labor Relation Act

because they are managers, or possibly, statutory supervisors. In a post-industrial society where

increasing managerial responsibilities are delegated to front-line workers and where work itself

is more knowledge-driven, the roles of managers and supervisors under the law merit close

consideration.

The law on the supervisory exemption is crisp: Anyone who possesses the necessary

modicum of effective authority over a list of enumerated subjects is a statutory supervisor where

that authority is possessed “in the interest of the employer,” whether or not any palpable conflict

with the duty of loyalty that person owes to the employer would be divided as a result of

unionization. Congress has made that determination categorically. But the principle is subject to

two corollaries. First, to act “in the interest” of the employer means that the employer has the

power to hold the person accountable for the exercise of those responsibilities. If the person is

not accountable –– as neither a shop steward under a collective bargaining agreement nor a

2

member of a safety committee would be –– she or he cannot be a supervisor. Second, an

employee whose performance of admittedly supervisory functions is segregable from her

ordinary duties and comprises only an insubstantial amount of her time is not a supervisor: she

can bargain collectively with regard to her terms and conditions of employment for the non-

supervisory portion of her job. Even if supervisory roles are shifting from a command-and-

control model to a coaching-and-mentoring model in some workplaces and even if unilateral

management actions increase the coincidence of interest between front-line workers and

supervisors, the plain language of the Act requires continued exclusions of supervisors from

collective bargaining coverage.

In sharp contrast, the law on managerial status is amorphous. A manger must be

“aligned” with management, must “formulate” or “effectuate” managerial policy, and at a high

level. To decide whether that is so, the Board must consider the employee’s actual job

responsibilities, authority, and “relationship to management.” This test is fashioned, akin to the

statutory supervisory exemption, to ensure against a division of loyalty. But, in contrast to the

supervisory exemption, where the statute sets out precisely what is to be considered, the direction

to examine the “relationship to management” necessarily implicates a more far ranging

examination. Nor does the Yeshiva Court’s treatment of the participation of faculty in policy

formulation relieve the Board of that engagement. On the contrary, the Court’s statement that

“some” lessened degree of accountability will not result in non-managerial status necessarily

requires the Board to weigh the entire scope of accountability as well other aspects of the

employee’s relationship to management.

In one instance, however, the law of supervisory and managerial exemption should

coincide. And that is where the employee performs a managerial function that is segregable

3

from her normal responsibilities and consumes an insubstantial amount of her work time. Thus,

the classifications of a group of employees as “managers” is highly consequential and a

determination that must be made in context.

In fact, the context for industrial relations is changing. The pyramidal structure of

command and control prevalent in 1935, and 1947, is flattening. Employers have come to see

the need to secure employee participation and involvement, their knowledge and insight, on a

range of issues “outside the box” of wages, hours, and working conditions. As front-line

employees assume expanded managerial functions in a growing number of leading-edge

workplaces, it is only individuals whose work is entirely managerial who are clearly to be

excluded from coverage under the Act. For many other types of employees, including faculty in

higher education, Amici submit that there is ample play in the statutory joints to accommodate

the Act to this manifest need.

Argument

I. High Performance or Knowledge-Driven Systems that Involve Employees and Their

Representatives in the Management of the Company are an Important Advance in

Industrial Relations

As the NLRB considers the specifics of the Point Park case and the broader standards

concerning managerial and professional work, it is important to consider the degree to which

managerial responsibilities are routinely placed on the shoulders of front-line workers and their

union representatives in settings that are unambiguously covered under the NLRA. These

instances suggest that the standard for coverage under the NLRA should be very broad with

respect to professional work and that many managerial functions are now routinely handled by

front-line workers in a wide range of industries. Moreover, the NLRB, like any other regulatory

body, has a responsibility to adapt to changes in workplace practices as they evolve, consistent

with the full range of principles and purposes of the law it enforces. There is clear and

4

unambiguous evidence that the distinction between “managers” and “employees” as originally

envisioned at the time of the passage of the NLRB has changed in response to the changing

organization of work, especially in knowledge based organizations. The line between these two

categories of workers is now blurred to the point it no longer serves the law’s original purpose.

While there is continued debate among scholars on the specific way to characterize the

present post-industrial era, it was over a quarter century ago that compelling evidence was

presented on our entering a “second industrial divide”1 that posed transformational challenges for

the American systems of industrial relations.2 Observers initially focused on the new ways that

information technologies were “informating” work in ways that led employers to rely more

heavily on employees to change their work processes and to use the data and information

produced by new technologies to participate in the control (e.g., reduce variances and error rates)

of operations and to track and improve organization performance.3 A wave of scholarship

documented how clusters of work practices, including employee involvement in business

decisions (particularly front-line decision making concerning product and service quality),

accounted for high performance work systems.4 The distributed knowledge of the front-line

workforce has come to be seen as central to the capacity of organizations to “learn” from

1 Michael Piore & Charles Sabel, The Second Industrial Divide: Possibilities for Prosperity (New York: Basic

Books 1984). 2 Thomas A. Kochan, Harry C. Katz & Robert B. McKersie, The Transformation of American Industrial Relations

(New York: Basic Books 1986). 3 Shoshana Zuboff, In the Age of the Smart Machine (New York: Basic Books 1984).

4 Joel Cutcher-Gershenfeld, The Impact on Economic Performance of a Transformation in Workplace Relations, 44

Indus. & Lab. Rel. Rev. 241–60 (1991); Mark A. Huselid, The impact of human resource management practices on

turnover, productivity, and corporate financial performance, 38 Acad. of Mgmt. J. 635–72 (1995); C. Inchiowski &

K. Shaw, The Effects of Human Resource Management Systems on Economic Performance: An International

Comparison of U.S. and Japanese Plants, 45 Mgmt. Sci. 704 –21 (1999); John Paul Macduffie, Human Resource

Bundles and Manufacturing Performance: Organizational Logic and Flexible Production Systems in the World Auto

Industry, 48 Indus. & Lab. Rel. Rev. (1995).

5

experience5 and this “knowledge-driven” nature of work has been documented as diffusing

across national boundaries.6

The legal implications of these changes in the nature of work itself were highlighted in

1994 by what was termed the “Dunlop Commission” on labor law reform,7 which concluded

that the doctrines used to distinguish between supervisors/managers and employees needed to be

updated to “define employees and employers in ways consistent with economic reality.”

Specifically, the Commission concluded that public policy needed to update:

. . . the definitions of supervisor and manager to insure that only those with full

supervisory or managerial authority and responsibility are excluded from

coverage of the law. We further recommend that no individual or group of

individuals should be excluded from coverage under the statute because of

participation in joint problem-solving teams, self-managing work groups, or

internal self-governance or dispute resolution processes.8

To understand the shift around increased managerial content in front-line work, consider

the origins of what is presently the nation’s largest labor-management partnership, which

involves over 90,000 health care professionals belonging to a coalition of unions at Kaiser

Permanente. As Kochan and co-authors9 document, over a decade ago, former union leader

Peter diCicco recalled a meeting with top management leaders in the context of escalating

adversarial conflict: “We went to that meeting ready to blast Kaiser Permanente for its

behavior.” diCicco added, “At the top of our list was patient care. That’s where the frustration

was greatest among our members.” Thus, the core concern was not wages, hours or working

conditions, but the very business itself, “patient care.” As the authors note, “the labor leaders

5 Ikujiro Nonaka, The knowledge-creating company, 69 Harv. Bus. Rev. 96–104(1991).

6 Joel Cutcher-Gershenfeld et al., Knowledge-Driven Work: Unexpected Lessons from Japanese and United States

Work Practices (Oxford University Press 1998). 7 U.S. Dep’t of Labor, U.S. Comm’n on the Future of Worker-Management Relations—Final Report (Dec. 1, 1994).

8 Id. at 9.

9Thomas A. Kochan et al., Healing Together: The Labor-Management Partnership at Kaiser Permanente (Cornell

University Press 2009).

6

were in for a surprise.” CEO Lawrence opened the meeting with a statement that diCicco recalls

disarmed them. “He said all the things we were prepared to say . . . It was clear that there was

almost total alignment of objectives.”10

That interchange gave birth to a labor management

partnership at Kaiser that has now lasted fourteen years. Over 3,000 unit based teams composed

of service workers, technicians, nurses, administrators, and physicians work together to improve

health care quality, cost control, use of electronic records technologies for preventive care, etc.

Moreover, specialized joint labor management committees provide advice on marketing, new

hospital design, planning, and organization, and other strategic concerns of shared interest to

managers, physicians, and employees. Thus, the changing nature of work begins with alignment

of labor and management around working together to advance strategic organizational

objectives. Note that there are enduring areas of conflicting interests on aspects of wages,

hours, and working conditions, but even these are addressed using a more problem-solving

oriented approach to collective bargaining.11

It is instructive that the parties at Kaiser

Permanente have even developed a visual image to reflect the efforts that do and do not fit into

what they term the “NLRA box,” which is as follows:

Inside and Outside the NLRA Box

Source: Kaiser Permanente and the Coalition of Unions

10

Id. at 2. 11

Id.

7

Kaiser Permanente is not the only health care setting where unionized professional

workers have responsibility for strategic managerial decisions. At the University of

Massachusetts Memorial health care complex the union representing the front-line service

workers (food service, etc.), SHARE, is widely regarded for its success in improving patient

satisfaction in parts of the hospital where managers, doctors and nurses all had previously had

little success. The negotiated contract language supporting what is termed “Joint work on

Patient Satisfaction and Process Improvement,” reads as follows:

UMass Memorial and SHARE recognize our joint interest in improving patient

satisfaction, employee satisfaction, and doing other joint process improvement

projects. We agree to continue and expand our joint work in these areas. UMass

Memorial leadership and SHARE leadership will work together to enable this to

happen – working with the employees and their managers to overcome obstacles

to releasing SHARE Reps, and being flexible in balancing the needs of these

projects with the other needs of the departments. A joint union-management

oversight committee will meet regularly to assess progress and to remove

barriers.12

This reflects a fundamental feature of new work systems, which is the degree to which

knowledge, information, skills, and processes integral to continuous improvement in business

operations are distributed widely and deeply within organizations in ways that cut across

traditional “employee-supervisor-manager” job titles. This contrasts with the model forged in

the industrial revolution where supervisors were the experts and employees were to follow

direction.

In the auto industry, the concept of “kaizen” (roughly translated as “continuous

improvement based on knowledge”) was first pioneered, as documented in The Machine that

12

Agreement between UMass Memorial & SHARE, Oct. 1, 2007–Sept. 30, 2011, available at http://theshare

union.org/SHARECONTRACT2007-2011.pdf

8

Changed the World, based on the Toyota production system.13

This model placed substantial

managerial responsibility for continuous improvement on front-line workers, but only on a very

narrow range of issues associated with the work in their defined work area. The Saturn

Corporation was founded in the mid-1980s with a central role for a broader form of front-line

employee engagement with the business operations and union-management partnership in

running the business.14

This includes a “self-directed” team-based work system, consensus

decision making, groups of one hundred workers led by a union-management pair of “advisors.”

At the highest levels, union leaders shared responsibility with management for new product

development, selection of suppliers, marketing, and work force selection, training and

development.15

Thus, it is important to recognize independent (if, at times, fragile) emergence of

such models in the U.S. context. The case of Saturn and others like it make clear that distinctions

between production and managerial work can’t be make without appreciating the larger

institutional context in which labor-management have structured their relations. If they have

adopted a full partnership model, that will shape all the roles within it.

Even without an overarching co-determination model akin to Saturn, the work itself of

union members in the auto industry has expanded to include managerial functions. The UAW

and Ford are widely regarded for having jointly implemented a Quality Operating System that

helped the auto maker jump from near the bottom in product quality to world-leading quality.16

This has included “charters” at multiple levels with precisely defined roles and responsibilities

13

J. Womack & D. Roos, The machine the changed the world (MacMillan 1990). 14

Saul A. Rubinstein & Thomas A. Kochan, Learning from Saturn: Possibilities for Corporate Governance and

Employee Relations (Cornell University Press 2001). 15

Despite the advantages of the Saturn model (and a similar partnership at the New United Motors Manufacturing,

Inc. [NUMMI] joint venture between GM and Toyota) in terms of product quality and employee engagement, the

full partnership model was threatening in important ways to the both the UAW and General Motors leadership. Id.

As a result, individual work practices diffused across the larger organization, but the full model was not embraced. 16

Joel Cutcher-Gershenfeld, Bargaining When the Future of an Industry is at Stake: Lessons from UAW-Ford

Collective Bargaining Negotiations, 27 Negotiation J. 115–45 (2011).

9

on quality, including work teams with responsibility for providing input on what is termed

“design for manufacture” in engineering decision making. For example, the charter for the

UAW-Ford National Quality Committee17

includes the following mission statement:

The UAW-Ford National Quality Committee is committed to driving "Best-In-

Class" quality through the joint efforts of the UAW and Ford. We will partner

with and support front-line operations in their quest to deliver World Class quality

to our customers by:

Supporting Divisional and Local joint quality efforts

Helping to standardize quality principles and practices across the business

Ensuring a climate of fairness and respect

These elements will help to sustain and grow the business, while enabling the

personal growth, development and adaptability of the workforce.

Underlying the UAW-Ford National Quality Committee charter is a strategic decision by the

parties, made in the 2003 national negotiations, to have all quality activities at all levels of the

corporation under one set of governing committees (at corporate, divisional and plant levels).

Thus, there are no separate managerial forums for quality. Labor and management individuals

serving on the national committee have detailed roles and responsibilities, including the

following with respect to plant-level committees (with are also joint committees with union and

management members):

Roles and Responsibilities with Respect to the Facility Quality Committees:

Overall responsibility to implement and support the "Best-In-Class" Quality

Program as listed in Appendix Q, through the Divisional and Facility

Committees

Communicate quality objectives and strategies under the "Best-In-Class"

Quality Program through the Divisional Committees to Facility levels

Provide tools, coaching and other support, as appropriate, to enable the

implementation of quality objectives and strategies through Divisional

Committees to Facility levels to include, but not limited to, Joint Alignment

and Implementation

Coach Local/Facility compliance to the Local Quality Committee (LQC)

Effectiveness Assessment

17

Correspondence with Dan Brooks, former UAW Co-Chair of the UAW-Ford National Program Center & Marty

Mulloy, Vice President, Global Labor Affairs, Ford Motor Company, UAW-Ford National Quality Committee

Charter.

10

Serve as a resource to Facilities, through Divisions in meeting Quality goals

and objectives

Certify local UAW Quality Representatives

Provide support and training for the Quality Operating System Coordinators

(QOSC)

Identify leading Quality best practices – internally and externally

Provide NQC training as requested

Provide reward and recognition as appropriate

Notice that these roles and responsibilities include overall responsibility for the corporation’s

“best in class” quality program, enabling quality goal accomplishment, certification of local

UAW quality representatives, training and development, and rewards and recognition. These are

all managerial functions that are now shared equally between labor and management.

In the airline industry, the most heavily unionized airline, Southwest Airlines, is also the

most profitable (with a valuation that exceeds that of nearly all other airlines combined). At the

heart of this success story, is a model of workforce engagement in the business operation that

involves new forms of “relational coordination.”18

The many professional roles, including

pilots, flight attendants, customer service agents, ramp agents, and mechanics work collectively

and seamlessly with supervisors and managers on mission critical tasks, such as the rapid

“turning” of a plane coming and going at the gate. The key to this success is that no one function

or level acts in territorial ways about “its work” and instead all roles share all responsibility for

the business operation of turning around planes safely, efficiently, and in ways that

preserve/support high levels of customer satisfaction. An attempt to segment work by

profession or to draw a line around what is or isn’t managerial would undercut the very essence

of what has been termed “the Southwest Way.”19

18

Jody Hoffer Gittell, The Southwest Airlines Way: The Power of Relationships for Superior Performance

(McGraw Hill 2003). 19

Id.

11

The same trend in blurring lines between supervisors and employees is not only occurring

in the public sector, it is being actively encouraged in education via federal government “Race to

the Top” incentives and federal mediation/facilitation efforts. At the heart of the reform efforts

are improved teacher evaluation, professional development, curriculum innovations, and

reassignments, transfers, and discipline/discharge decisions and processes. Increasingly “peer

review” models are being used to carry out these interrelated processes in which senior teachers

evaluate, coach, and mentor teachers along with assistant principals, principals, and other

administrative personnel. Consider the following language from the collective bargaining

agreement between the San Juan teachers and the school administration:

The District and the Association agree to take responsibility and be held accountable for

the improvement of the quality of teaching and learning which represents an expanded

role in public education. It is in the best interest of the San Juan Schools that the District

and the Association cooperatively engage in activities and communication which

demonstrate mutual respect for all stakeholders and results in the improvement of student

achievement through development of common goals, a cooperative, trusting environment

and teamwork. It is the [parties’] belief that actively and constructively involving all

relevant stakeholders contributes significantly toward achieving these goals.

Shared responsibility and accountability for results are at the core of a continuous

improvement model. Joint responsibility for student success means that educators share

in celebrating what works and share in identifying together areas that are not working and

are in need of improvement.20

Here the teachers are joining with management to take shared responsibility for the central public

goods at stake in the operation – the educational mission. Note the emphasis on “shared

responsibility and accountability,” which are the essence of the managerial function and which

are central to the teacher’s professional identities. Language similar to the above can be found

in a growing number of schools21

and form the basis for much of what is being advocated and

20

Joel Cutcher-Gershenfeld and Saul A. Rubinstein, Innovation and Transformation in Public Sector Employment

Relations: Future Prospects on a Contested Terrain, Ohio St. J. on Disp. Resol. (Symposium Issue, forthcoming). 21

Saul A. Rubinstein & John E. McCarthy. Collaborative School Reform: Creating Union-Management

Partnerships to Improve Public School Systems, Rutgers University School of Management and labor Relations

12

put in place in charter schools, some of which are unionized and some of which are not. Thus, if

a non-union charter school faculty sought union representation, the traditional supervisor-

employee distinction would be of no value in assuring that teachers as professional employees

were afforded the right to representation.22

It is clearly in the national interest to continue to

work collaboratively across the traditional “supervisor-manager-employee” boundaries in

education.

The expansion of front-line worker responsibility has long been documented in nonunion

work settings.23

Indeed, key elements of high performance work systems have been examined

across both unionized and non-union settings,24

confirming that the increased responsibility for

managerial functions can be found in both contexts. Consider professional work at the MIT-

Broad Institute, which won the race to sequence the human genome. Tasks had been organized

in a linear assembly line fashion for the first five years of operations. An exponential reduction

in the cost per sequence pair of DNA happened, however, after the work was restructured into a

team-based work system with weekly “kaizen” meetings that also included test equipment

manufacturers.25

While there are many documented examples of workplaces where front-line workers

have responsibility for managerial decisions, the full high performance model still represents a

(Oct. 2010). See also Barry Bluestone & Thomas Kochan, Toward a Grand Bargain: Collaborative Approaches to

Labor-Management Reform in Massachusetts (The Boston Foundation Oct. 2011). 22

Indeed, the federal government, through the U.S. Department of Education and the Federal Mediation and

Conciliation Service are actively promoting and facilitating diffusion of this new model of collaboration and joint

decision making. A joint statement of these agencies with the two national teachers’ organizations, and national

organizations of school superintendents and board members was signed at a May 23–24, 2012 conference. The

statement can be found at www2ed.gov/documents/labor-management-collaboration/vision-statement-sigs.pdf. 23

Richard E. Walton, From control to commitment in the workplace, 63 Harv. Bus. Rev. 77–84 (1985). 24

S.E. Black & L.M. Lynch, How to Compete: The Impact of Workplace Practices and Information Technology on

Productivity, (National Bureau of Economic Research, Inc., NBER Working Papers 6120, 1997). 25

R. Nichol, A multi-domain process design and improvement framework (2010) (ESD Doctoral Dissertation)

(MIT).

13

minority of U.S. workplaces.26

One estimate suggests that there are approximately 7.7 million

U.S. workers in unionized and nonunion high performance work systems27

based on adding ten

percent of the unionized workforce and ten percent of the nonunion workforce.28

Black and

Lynch set traditional nonunion work practices as zero and documented the following

performance levels for traditional unionized facilities and what they termed “transformed” or

high performance facilities:29

Relative Performance of Union and Nonunion Facilities with

Traditional and Transformed Work Practices

Traditional Transformed

Nonunion 0% 15%

Union -15% 20%

Source: Black and Lynch, 1997

The diffusion to approximately ten percent of the workforce is what has happened

without supporting policy initiatives. By contrast, other nations see these new work systems as

instrumental for competitive advantage in a global economy. This is the logic that underlies, for

example, the recently passed “Fair Work Australia” legislation, which seeks to “provide a

balanced framework for cooperative and productive workplace relations that promote national

economic prosperity and social inclusion for all Australians.”30

Importantly, these high

performance work practices have been found to be more effective than regulatory oversight in

26

S.E. Black & L.M. Lynch, supra note 24. 27

Joel Cutcher-Gershenfeld & Saengdow Prasittisuk, Beyond Gridlock: Advancing the American Dream in a

Global Knowledge Economy Via Distinct Models for Labor and Employment Relations Policy, LERA Annual

Meeting, panel on Creating a New Balance in the Corporate World: Promoting Stable Employment and Long-Term

Growth (2011). 28

Ten percent of workplaces ended up in the high performance category in the studies by Black and Lynch, op. cit.

(union and nonunion workplaces); C. Inchiowski & K. Shaw, supra note 4 (steel mill finishing lines in the U.S. and

Japan), and in a study by Cutcher-Gershenfeld, J. and T. A. Kochan, Taking Stock: Collective Bargaining at the

Turn of the Century, 58 Indus. & Lab. Rel. Rev. 3–26 (Oct. 2004). 29

S.E. Black & L.M. Lynch, supra note 24. 30

Fair Work Act (2009) Australia, http://www.fwa.gov.au/index.cfm?pagename=legislationfwact.

14

fostering compliance with basic labor standards in global supply chains.31

While there is not a

global convergence in public policy in this domain,32

there is sufficient movement in this

direction that it should also be taken into account as part of the NLRB’s deliberations.

At stake in the NLRB’s consideration of professional and managerial work is both the

changing nature of work and the connection of new forms of work to the continued realization of

key objectives of the NLRA, namely to increase employee purchasing power, to promote

orderly and efficient interstate commerce (i.e., adapt to the changing organization of business in

ways that promoted efficiency and economic growth), and to provide employees a voice on the

terms and conditions of employment. When front-line workers and professional employees have

increased managerial responsibility it has the potential to increase their purchasing power and to

further balance the power of labor and management. When a sharp distinction for coverage

under the NLRA is drawn based on having even substantial degrees of managerial responsibility,

vast segments of the U.S. workforce that unambiguously should be covered under the act (such

as auto workers, nurses, teachers, professors, and airline crews) would be in tension as their

responsibilities have expanded. These are not isolated exceptions, but emblematic of larger

shifts in the nature of work itself. There are clearly supervisory and managerial jobs in which the

work in its entirety is supervisory and managerial. Drawing distinction short of this standard will

encounter difficulty given that increasingly knowledge-driven nature of work in leading

organizations across a wide array of industries and sectors.

31

Richard M. Locke et al., Does monitoring improve labor standards? Lessons from Nike, 61Indus. & Lab. Rel.

(2008). 32

H.C Katz & O.R. Darbishire, Converging Divergences: Worldwide Change in Employment Relations (ILR Press

2000).

15

II. Employee Participation in Policy Formulation and Effectuation Alone Does Not

Result in Managerial Status: the Touchstone is of an Impermissible Division of

Loyalty

A. The Analytical Framework

In NLRB v Bell Aerospace Co, 410 U.S. 267 (1974), the Court looked to the policy

undergirding the statutory exclusion of supervisors to drive inexorably to the exclusion of

managers: Neither should be made subject to any division in the duty of loyalty they singularly

owe to their employers. The extension of a statutory right to engage in concerted activity for

protection from management, or to bargain collectively with, it by the firm’s executives,

responsible for the exercise of managerial power for the hierarchy, would blur—the term the

Court used was “eviscerate”—the very distinction between management and labor that the

statute allowed companies to create and rely upon.33

Thus a line has to be drawn to distinguish

an “executive officer” (416 U.S. at 289), “executives who formulate and effectuate management

policies” (416 U.S. at 286), from employees. In the line-drawing process the Court commanded

close attention to the employee’s “actual job responsibilities, authority, and relationship to

management.” 416 U.S. n. 19 at 290 (emphasis added). The scope of the former two are clear.

The third draws attention specifically to the nature of the individual’s precise relationship to

higher authority that would be threatened by engagement in collective bargaining. More on that

needs be and will be said below.

But first it should be stressed that the Bell Aerospace Court was concerned that the

Board’s approach would blur the distinction between labor and management that companies

relied upon in structuring their employment relations and which the Labor Act sanctioned; that

33

NLRB v Bell Aerospace Co., supra n.13 at 284:

The Wagner Act was designed to protect ‘laborers’ and others clearly within the managerial

hierarchy. Extension of the Act to cover true ‘managerial employees’ would indeed be

revolutionary, for it would eviscerate the raditional distinction between labor and management. If

Congress intended a result so drastic, it is not unreasonable to expect that it would have said so

expressly.

16

is, a system of managerial command and control. But much has changed in the nearly 40 years

since Bell Aerospace was decided. Companies have come to adopt “high performance” systems

in the unionized setting, with union participation and support, that flatten the hierarchy and

devolve decision-making to employees, their work groups and representatives. See Section I,

supra. This sea-change in industrial relations poses the obverse of the issue addressed in Bell

Aerospace: not whether the Board’s construction of the Act will blur a managerial distinction

that employers maintain and claim in order to retain hierarchical control; but, whether the Board

can adapt the Act to those situations where it is management that has blurred the distinction,

where it is willing to concede to employees as employees a capacity to influence key company

policies because doing so yields benefits in efficiency, job satisfaction, productivity, and profits.

That issue is beclouded as a result of NLRB v. Yeshiva University, 444 U.S 672 (1980).

As Paul Weiler so aptly put it, the premise upon which the Court proceeded was

the importance of ensuring that the allegiance of every manager adheres to the

enterprise he serves, rather than to a union which might be serving him. This

sentiment is most plausible in the case of the traditional hierarchical firm, in

which there is assumedly a major conflict of interest between labor on one side

and capital on the other. This premise is much less plausible, though, in situations

in which contemporary collegial approaches to production have been adopted, and

in which the firm seeks in effect to involve all employees in at least some aspect

of management of the enterprise.

Paul Weiler, Governing the Workplace 216–17 (1990).

“Beclouded” because even as the Yeshiva Court struggled with a “collegial approach to

production,” albeit in higher education, not manufacturing, and sought to place it within the Bell

Aerospace framework, the Court’s actual treatment was a tissue of ambiguity, of begged

questions. What is one to make of a college or university faculty that customarily participates,

and significantly so, in the formulation and execution of basic day-to-day educational policies:

admission standards, curriculum, degree requirements, and the like. The faculty’s role in these

17

matters has long been understood in the academic world — in public and private institutions

alike—as reflecting widely shared principles of good governance. And so did this Board, which

held the bringing to bear of professional judgment in matters of educational policy was not

managerial in the industrial sense used by the Bell Aerospace Court. As the Board well knows,

however, the Yeshiva Court disagreed.

Instead, the Yeshiva Court drew an industrial analogy: those who satisfied the

institution’s degree requirement were its product; completion of the curriculum was the process

by which the product was produced; admissions standards governed the selection of the

institution’s raw materials, and so forth. And so the Court opined that, “To the extent to which

the industrial analogy applies, the faculty determine…the product to be produced, the terms on

which it will be offered, and the customers who will be served.” 444 U.S. at 686. But, when

confronted with the argument that in making those determinations the faculty is not acting for the

managerial hierarchy in the industrial sense but rather is exercising an independent professional

judgment the Court responded in a critical passage that needs to set out at length:

It may appear, as the Board contends, that the professor performing the

governance functions is less “accountable” for departures from institutional policy

than a middle-level industrial manager whose discretion is more confined.

Moreover, traditional systems of collegiality and tenure insulate the professor

from some of the sanctions applied to an industrial manager who fails to adhere to

company policy. But the analogy of the university to industry need not, and

indeed cannot, be complete. It is clear that Yeshiva and like universities must rely

on their faculties to participate in the making and implementation of their policies.

The large measure of independence enjoyed by faculty members can only

increase the danger that divided loyalty will lead to those harms that the board

traditionally has sought to prevent.

Yeshiva, 444 U.S. at 689–90 (footnotes omitted) (emphases added)

Note that the pivotal issue was posed but not confronted, and so no dispositive guidance

was given. It was ducked, left for another day, which is now. If a “large measure of

18

independence” is accorded, in the sense that the employee is “less” accountable to the corporate

hierarchy in the industrial sense, how can loyalty to the employer—which Bell Aerospace and

Yeshiva teach is the critical question—possibly be divided?34

Importantly, the Court does not say that the industrial analogy has no application, nor that

it would be irrelevant if no sanctions were available to control managerial discretion. It says that

the analogy merely need not be “complete” and that the unavailability of “some of the sanctions”

applicable to an industrial manager is irrelevant. In effect, the Court has returned the resolution

of these questions to the Board, with virtually no indication of where or how the lines are to be

drawn.

B. The Board Has Failed to Pursue the Question—and so the Meaning—of the

Putative Manager’s “Relationship to Management”

Thus far, the Board has read Bell Aerospace and Yeshiva to render the issue of the

putative manager’s relationship to management to be irrelevant sub silentio. The question has

never been mentioned, let alone analyzed. The entirety of the Board’s treatment has been

devoted exclusively the first two prongs of Bell Aerospace’s three pronged test: to just how

much recommendatory authority the faculty member has, over what issues, and to what effect, to

place her in one box to the other. It is instructive that the Regional Director’s decision in this

case devotes over eighty pages of exacting exposition to these questions without even once

mentioning whether the president or a dean can sanction a faculty member due to displeasure

34

Robert A. Gorman & Matthew W. Finkin, Basic Text on Labor Law: Unionization and Collective Bargaining 51

(2d ed. 2004) (footnotes omitted):

If college professors (or other professional employees) who effectively recommend a variety of

ostensibly “managerial” policies are not answerable to higher management for the

recommendations they make, one would ordinarily be hard pressed to see how they could be

considered “managerial.” Nor would the extension of the Act to them seem to pose the kind of a

threat of divided loyalty that both the statutory exemption of supervisors and the judge-made

exemption of managers was intended to forestall. In consequence, the reach of the managerial

exemption not only with respect to faculty in private universities but with respect to professional

employees generally remains clouded.

19

with her recommendation let alone examine the consequences of any want of accountability to

the question of the duty of loyalty. Nor is this singularity of the Board’s focus under Yeshiva

unique to the faculty setting. FHP, Inc., 274 NLRB 1141 (1985).

A decision that is at once the prime example of this singularity of focus and a reductio ad

absurdum of it is the Board’s decision in College of Osteopathic Medicine and Surgery, 265

NLRB 295 (1982) [COMS], a “telling example of the ‘Catch-22’ situation that professional [or

other] employees since Yeshiva may face if they attempt to gain more input into work place

decision making.” U.S. Dept. of Labor, U.S. Labor Law and the Future of Labor-Management

Relations, Bureau of Labor-Management Relations and Cooperative Programs Report No. 113

(Feb. 1987) at p. 67.

In the COMS case, a faculty secured collective representation; the administration did not

assert managerial status, nor, apparently, could it due to the want of any participative

governance. The faculty then bargained for a committee structure to give it a role in educational

policy formulation and execution that it had not had theretofore. The Board then held the faculty

to be managerial as a result of the bargain made with the faculty union:

The Yeshiva decision does not expressly or impliedly distinguish situations in

which managerial authority was gained through collective bargaining from

situations in which such authority was more freely granted, and we do not believe

that such a distinction is required by the Act. Accordingly, we must look to the

extent of managerial authority held by college faculties rather than the manner in

which such authority was obtained.

COMS, supra, at 298. The Board did not think it relevant to inquire any further into whether and

how the faculty’s “relationship to management” was such as to have possibly compromised its

duty of loyalty by serving on committees their union created by collective agreement with the

administration.

20

It is obvious to Amici that employee participation in key areas of managerial decision

making “outside the box”—business strategy, marketing, product selection, quality standards,

and the like occurring today in high performance workplaces (Section I, supra)—which is the

product of collective bargaining does not convert the employee participants in those co-operative

engagements into non-employee managers. Such a result would be antithetical to the very

purpose such systems are bargained for. Nor should the result differ if the participatory system

were to be the product of company policy rather than the product of an arms-length bargain. The

reason why that should be so turns upon the concept that the Court held to undergird the

managerial exemption: the need for undivided hierarchal loyalty. That, Bell Aerospace tells us,

requires an assessment not only of the employee’s “job responsibilities and authority”—which

the Board has taken to be the only issues to be addressed—but also of the employee’s

“relationship to management,” which the Board has thus far ignored.

The Board’s neglect of the critical element is in sharp contrast to the Board’s close

attention to it in deciding the issue of supervisory status on which the Bell Aerospace Court drew

so heavily by analogy to exempt managers. To obviate the evil of divided loyalty Congress

excluded not just those who have power, or effective recommendatory power, to make a variety

of decisions affecting employee status—to hire, fire, assign, or responsibly direct the work of

others. It limited the exemption only to those who possessed that authority in “the interest of” the

employer. 29 U.S.C. § 152 (11). Accordingly, the supervisory exemption requires an assessment

of the employee’s “relationship to management,” just as the Bell Aerospace Court required in

making the judgment of managerial status. But here, as Oakwood Healthcare, Inc., 348 NLRB

688 (2006), evidences, the Board has paid close attention to that relationship, in particular in the

matter of accountability. Citing well establish authority, the Board in that case emphasized that

21

to be responsible for the performance of a duty is to be answerable, to be accountable, to the

managerial hierarchy for it. Id. at 691–92. And to be “accountable” means “that there is a

prospect of adverse consequences for the putative supervisor if he/she does not” act as the

hierarchy would wish. Id. at 692. Whence the conflict that would follow should the supervisor

become unionized. To be sure, Oakwood Healthcare discusses this issue only with respect to the

element of “responsible direction” under § 2(11). But such is an inextricable component of the

requirement that all the putative supervisor’s actions be “in the interest of the employer.” To act

in that interest, in the statutory sense, is to be accountable for its exercise.

Let us take the example of union stewards. Collective agreements commonly provide

that union stewards will be on company-paid time when performing those duties—i.e.,

winnowing out frivolous or unjustified claims of breach of contract or company rules, bringing

unforeseen or novel problems to managerial attention, and securing adherence to company

policies by both employees and management, all in aid of managerial objectives set out in the

collective agreement and collateral company policies. But because of their “relationship to

management” in the performance of these functions, absent engagement in such misconduct as

would be cause to dismiss any employee, e.g. bribery or the falsification of company records,

they cannot be dismissed for excessive zeal or an overabundance of militance. As such is not

their relationship to management they cannot be supervisors—or managers. As the Court put it:

The interpretation of the “in the interest of the employer” language

mandated by our precedents and by the ordinary meaning of the phrase does not

render the phrase meaningless in the statutory definition. The language ensures,

for example, that union stewards who adjust grievances are not considered

supervisory employees and deprived of the Act’s protections.

NLRB v Health Care & Retirement Corp., 511 U.S. 571, 579 (1994).

22

To take another example, collective agreements commonly provide for employee safety

committees and often clothe them with considerable authority. Employees who serve on these

bodies are not rendered members of management thereby: even as their decisions are obviously

for the benefit of, “in the interest of,” the company in that sense, they do not function in the

shadow of “adverse consequences” should management be displeased with actions they take in

that capacity. Sanction for managerial displeasure with what to management might be a too

aggressive an approach to safety and health would be a violation of the collective agreement, not

the exercise of managerial accountability.

Nor, again, is it necessary that that authority be conferred by collective agreement in

order for the employee exercising it to be non-managerial for the Board’s error has lain in

collapsing the possession of influential authority into a conclusive if tacit presumption of a

relationship of accountability and control. To stay with job safety and health for a moment, over

a dozen states have mandated employee-management safety committees. See Cynthia Estlund,

Regoverning the Workplace 172–80 (2010). These commonly require an equal number of

managerial and non-management employee representatives. E.g., N.C. Gen. Stat. § 95-252 (d)

(2) (2011) (italics added) (“Employee safety and health representation shall be selected by and

from among the employer’s non-managerial employees….”); OR. Rev. Stat §654.182 (1) (a)

(2011) (“to ensure equal members of employees… and employer representation”). These laws

authorize these bodies to take specific and sometimes far-reaching action: to conduct inspections,

review incidents, and recommend safety improvements. N.C. Gen. Stat. § 595-252 (c) (4); OR.

Rev Stat. § 654.182 (d). The exercise of discretion effectively to recommend the content of

company safety and health policies and effectively to oversee its execution would surely seem to

come within Yeshiva’s definition of management. But these non-managerial representatives are

23

not converted into members of management merely by performing these functions alone. These

employee-participative systems require independence from management, not accountability to it.

Today, even in the absence of an express statutory anti-retaliation clause, the discharge or

discipline of an employee for doing what the statute authorizes her to do, for performing these

duties, would be in violation of public policy and actionable in tort on that ground. Such,

indeed, would seem to be the general state of the common law. See Restatement (Third)

Employment Law §402 (b) (2011) commented on at 13 Emp. Rts. & Emp. Poly. J. 183–203

(2009).

Suppose, then, that in a jurisdiction lacking such a statute a company were to see it to its

interest to establish such a committee. In fact, “thousands of non-union health and safety

committees are currently operation within firms’ internal compliance programs.” Regoverning

the Workplace, supra, at 177. And assume further that as a matter of company policy such

bodies were clothed with independence equal to that statutorily commanded elsewhere or

ensured by collective agreement, for the effectiveness of the safety program and its credibility

turn upon both the reality and perception of the employee participants’ independence from

management.35

It should follow that employees serving on such bodies as part of their duties,

working, as union stewards are, on Company-paid time, could not suffer “adverse consequences”

for their efforts. And absent that accountability, as Health Care & Retirement Corp. teaches,

they cannot be made members of management by virtue performing those functions alone.

35

David Weil, Are Mandated Health and Safety Committees Substitutes for or Supplements to Labor Unions? 52

Indus. & Lab. Rel. Rev. 339 (1999).

24

C. The Party Proposing that an Employee is a Manager Should be Obligated to Prove

How Statutory Coverage Would Create a Demonstrable Conflict in the Duty of

Loyalty: Absent that Conflict the Employee Cannot Be a Manager

The current state of the law is a muddle. On the one hand, Bell Aerospace teaches that

the determination of managerial status, resting on the need for undivided loyalty, turns on a

three-pronged analysis: of how much power an employee has, over what issues, and, in

exercising that power, of the employee’s relationship to the hierarchy, which ordinarily would

include the employee’s accountability to the hierarchy. The Court echoed the latter is when it

later expressly distinguished union stewards as non-managerial despite the rather effective

influence they have. But on the other hand, Yeshiva says that, for faculty—and, potentially,

others engaged in participative forms of institutional or corporate governance—the analogy to

industry need not be “complete,” that the lack of “some” degree of accountability is not

dispositive. Maddeningly, however, the Court declined to breathe any hint of what the degree of

incompleteness was, what the degree of unaccountability would be that would nevertheless not

disprove a determination of managerial status.

What is the Board to make of this? The short, if obvious answer is that one cannot

fathom what the Court had in mind by these Delphic dicta.

The total absence of guidance counsels the Board to adhere closely not only to the three-

pronged test the Court set out in Bell Aerospace, but to the ground these tests are devised to

address and which that Court in both Bell Aerospace and Yeshiva held to be determinative:

whether coverage under the Act would deprive the employer of the duty of loyalty the employee

singularly owes to it when he or she participates in the formulation or effectuation of managerial

policies. In the case of high executives—whom Bell Aerospace addressed as the paradigmatic

example of statutory exclusion—the answer would be obvious. In contested cases, however,

25

where the answer is far from clear—as it is when the exemption confronts faculty participation in

institutional governance or employee participation in high performance systems—the party

asserting managerial status should be required to prove that statutory coverage would so

demonstrably engender the conflict the exemption contemplates as to warrant the employee to be

held to be a manager — such being his or her “relationship to management.”

This line of analysis is consistent with the Court to treatment of supervisors in NLRB v.

Health Care & Retirement Corp, supra. There, the Board argued that persons who met the

statutory definition of a supervisor were nevertheless covered by the Act because the

professional judgment required for their supervisory work posed no threat of divided loyalty.

The Court denied the Board the power to take that approach as it would create an entirely new

category not contemplated by the Act. “The Act is to be enforced according to its own terms, not

by creating legal categories inconsistent with its meaning as the Board has done in nurse cases.”

511 U.S. at 580. In other words, insofar as division of loyalty is the problem § 2(11) was divised

to solve, anyone who meets the tests set out in § 2(11) is irrebuttably presumed to be in such a

position. The statute forecloses any examination of that issue.

Here, the question is not whether a manager should have the right to engage in collective

bargaining because doing so would pose no conflict in loyalty: if there would be no conflict of

loyalty the employee isn’t a manager at all. Unlike the statutory supervisory exemption, the

managerial exemption is judge-made; its categories are loosely defined, to say the least. One

element of the analysis commands an examination of the putative manager’s relationship to the

hierarchy which necessarily includes the extent to which the duty of loyalty is implicated. As

noted above, the Yeshiva Court adverted to that question but, by saying that the loss of some

degree of accountability did not work against a finding of managerial status, the Court essentially

26

and necessarily required the extent and depth of accountability to be examined. In sum, that

which the Act conclusively presumes for those who are supervisors is what is required to be

decided for those who are managers.

As the Board and the judiciary have acknowledged, the question is not whether the

employee is aligned with management or effectuates employer policy simpliciter. All employees

can be said to advance the company’s mission and policies. The question is whether they are so

aligned or so specially situated vis-à-vis the hierarchy that they should not be covered by the Act.

Accordingly the Board is called upon to address and explain how the employee’s relationship to

management drives toward the extension or denial of managerial status, not to create some new

category.

Because the loss of statutory protection is at stake, the conflict in loyalty should be

demonstrable. The evidence should be more than speculative; more than a generalized

suspicion. In the case of physicians at an HMO who serve on committees reviewing patient care,

therapies, patient services, and work environment—in FHP, Inc., for example—the employer

should be required to show how unionization would compromise the physicians’ loyalty to the

hierarchy in the matter of patient care. If it would not, they would not be managers as defined by

their relationship to it. Thus, evidence from analogous employments in the public sector could

readily be looked to: in the case of professors, whether collective bargaining by faculties in

public universities, whose exercise of the same degree of influence or authority over basic

educational policies is indistinguishable from their private sector counterparts has compromised

their duty of loyalty in any way; in the case of teachers in private or charter schools, whether

teachers in public schools who have collectively bargained for robust participative governance

27

systems have compromised their duty of loyalty or management’s ability to manage;36

in the case

of employees in company-sponsored participative bodies, whether their unionized counterparts

— at Kaiser Permanente or Ford—have caused those managements a demonstrable loss of

loyalty; and in the case of employed physicians, whether management of their unionized

counterparts in public health services have experienced an unacceptable division of loyalty as a

result of collective bargaining.

As that is a question the claim of managerial status necessarily presents, there is every

good reason for the Board to require that it be addressed directly: by the party asserting that fact

to be so and best positioned to prove it. NLRB v. Kentucky River Community Care, 532 U.S.

706(2001). In this way, the Board will be able to distinguish the true manager while dispelling

the pall of legal uncertainty that hangs over high performance systems under current Board

doctrine. Section III, infra.

III. An Employee Whose Time Spent in Participative Governance is Insubstantial in

Terms of His or Her Primary Responsibilities is Not a Manager

Section I, supra, pointed out that there has been a significant movement in the years

subsequent to Bell Aerospace and Yeshiva to involve employees and their representatives—as

employees—in formulating and effectuating their employers’ policies. To consider these

employees to be members of management in consequence of that participation would deprive

them of the protection of the Labor Act and the benefits of collective bargaining. Consequently,

to extend managerial status on that basis would blunt the desire by unions and employees to

participate in such systems, much to the Nation’s disadvantage. This concern was expressed

clearly in the Dunlop Report, Section I, supra. As that Section noted, despite the benefits of high

performance systems, adoption, though significant, has not been exponential; but the pace of

36

See supra text accompany notes 21 –22.

28

union-management cooperation can be explained in part by the pall of uncertainty cast by the

current state of Board doctrine. A student comment captured the situation rather well:

Unions would have to balance the desire of enabling their members to gain

sufficient power to influence the policies of the employer against the concern that

units of workers who gain sufficient discretion at the bargaining table might

eventually be decertified. A union would be most reticent when it perceives that

the employer is most likely to seek decertification; these probably are situations in

which labor relations have been problematic in the past—precisely the situations

in which such participative management agreements would have the most

potential for benefit.

Comment, Protecting Managerial Employees Under the National Labor Relations Act, 91

Colum. L. Rev. 405, 428 (1991) (footnote omitted) (emphasis added). See also Comment, The

Managerial Exclusion Under the National Labor Relations Act: Are Worker Participation

Programs Next?, 48 Cath. U. L. Rev. 557 (1998/99).

One factor that distinguishes the employee-participant from the true manager—the

“executive” that the Bell Aerospace Court said was at the center of the exemption’s concern—is

that an executive is an executive all the time. A vice president for marketing, a director of

product design is always a vice president for marketing or a director of product design. The job

he or she holds is managerial. An employee who serves on a union-management committee on

marketing or product design does so in addition to his or her normal job duties which do not

involve engagement with policy issues. But the Board’s treatment of the managerial status of

those who participate in shared governance has ignored the difference: the fact that a majority of

physicians have served from time to time on a variety of committees concerned with the quality

of patient care in addition to their normal care-giving functions was held, without more,

sufficient to render the entire complement of physicians to be managerial. FHP, Inc., supra.

Not only did the Board omit any discussion of accountability, Section II, supra, it devoted no

29

consideration to how substantial a part of the physicians’ time was consumed in that

participation.

Quite the contrary is so of the supervisory exemption, where a supervisor’s supervisory

duties can also be segregable from and in addition to non-supervisory job responsibilities. The

Board has long acknowledged that the possession of segregable supervisory power which is

exercised only a small amount of time does not render the employee a supervisor. The amount

of time devoted to separate supervisory functions that, in the Board’s view, will result in

supervisory status has fluctuated over the years. See e.g., Detroit College of Business, 296

NLRB 318 (1989). But the basic principle has been consistently acknowledged.

Where an individual is engaged a part of the time as a supervisor and the

rest of the time as a unit employee, the legal standard for a supervisory

determination is whether the individual spends a regular and substantial portion

of his/her work time performing supervisory functions.

Oakwood Healthcare, Inc., 348 NLRB 686, 694 (2006) (footnote omitted) (emphasis added).

In other words, those who spend an insubstantial portion of their time doing supervisory

work pose no threat of divided loyalty, even though they are doing some genuine supervisory

work, at least not so serious a threat as to deprive them of statutory protection in their role as

rank-and-file employees. Consequently, Amici are hard-pressed to see why an employee who

does not spend a substantial portion of her time participating in collaborative bodies that

formulate or effectuate company or institutional policies should not be treated similarly. Yet the

Board has paid no attention to this issue, perhaps due to the obvious fact that authentic managers

are rarely, if ever, part-time in that capacity.

Amici submit that not only professional employees but non-professionals as well who are

alleged to be managers on the basis of participation in systems of shared corporate or

institutional governance but which participation does not consume a substantial portion of their

30

time should not be denied the protections of the Act as employees. We believe that it would

strain credulity to conceive that a worker who spends a few hours a week or less to participate on

a committee on product design, marketing, safety or environmental policy, would engender an

intolerable conflict of loyalty with the company by virtue of union representation. Nor would a

faculty member who, in addition to keeping up in her discipline, preparing for classes—current

and under development—researching and publishing, counseling students, engaging in outreach

and public service, and who serves on institutional committees, few of which deal with basic

policy issues and which meet for only relatively brief periods of time. Even a worker who is on

assignment to product design operations for a defined period of time — say a period of months –

– but will spend the preponderance of their career doing production work would not be

considered to have changed jobs and left the bargaining unit. Westinghouse Elec. Corp., 163

NLRB 723 (1967) aff’d 171 NLRB 1239 (1968) aff’d 424 F.2d 1151 (7th Cir. 1970) explained in

Canonie Transp. Co., 289 NLRB 299 (1988). This approach would merely extend well

established doctrine regarding supervisors with dual responsibilities to the parallel situation of

employees who participate in cooperative governance systems in addition to their normal duties.

More important, it would effect a much-needed accommodation of the Act, consistent with

extant doctrine, to facilitate the adoption of high performance or value-added workplace

participation systems. Section, I, supra.

Conclusion

The course of action outlined in the foregoing is consistent with the Act, is well within

the Board’s authority to pursue, and will benefit the Nation by fostering a legal atmosphere

conducive to the adoption of high performance workplace systems. Amici believe that the health

31

of the nation’s economy and the well-being of its working force will be significantly advanced as

a result.


Matthew W. Finkin

Counsel for Amici

32

Appendix: List of Amici

Trevor Bain

Human Resources Institute,

University of Alabama

Tuscaloosa, AL

Rosemary Batt

ILR School,

Cornell University

Ithaca, NY

Paul F. Clark

Dept. of Labor Studies and Empl. Relations,

Penn State University

University Park, PA

Alexander J.S. Colvin

ILR School,

Cornell University

Ithaca, NY

Joel Cutcher-Gershenfeld

School of Labor and Empl. Relations,

University of Illinois

Champaign, IL

Adrienne Eaton

School of Management and Labor Relations,

Rutgers University

New Brunswick, NJ

Larry W. Hunter

Wisconsin School of Business,

University of Wisconsin-Madison

Madison, WI

Sanford Jacoby

Anderson School of Management,

UCLA

Los Angeles, CA

Jeff Keefe


Rutgers University

New Brunswick, NJ

Thomas A. Kochan

Sloan School of Management,

M.I.T.

Cambridge, MA

Robert McKersie

Sloan School of Management ,

M.I.T.

Cambridge, MA

Saul Rubenstein


Rutgers University

New Brunswick, NJ

Hoyt Wheeler

Moore School of Business,

University of South Carolina

Columbia, SC

[Institutional Affiliation for Identification

Purposes Only]



11.

AMICUS BRIEF OF THE CENTER FOR THE ANALYSIS OF SMALL BUNIESS

LABOR POLICY


AMICUS BRIEF

FOR THE NATIONAL LABOR RELATIONS BOARD

_________________________________________________________________________

NATIONAL LABOR

RELATIONS BOARD

and

Park Point University

and Case (06-RC-012276).

Newspaper Guild of Pittsburgh/

Communications Workers of America

Local 38061, AFL–CIO, CLC.

_________________________________________________________________________

AMICUS BRIEF BY THE CENTER FOR THE ANALYSIS OF SMALL BUSINESS

LABOR POLICY, AS AMICUS CURIAE ON INVITATION BY THE NATIONAL

LABOR RELATIONS BOARD

Bruce F. Mills

Of Counsel For The Center

For The Analysis Of Small

Business Labor Policy, Inc.

1175 Fox Road Suite 400-109

Indianapolis, IN 46236 (317) 826-0970

_________________________________________________________________________

Point Park University, Employer

and

Newspaper Guild Of Pittsburgh/ Communications Workers Of America, Local 38061,

AFL-CIO, CLC, Petitioner

NOTICE AND INVITATION TO FILE AMICUS BRIEFS WITH THE

NATIONAL LABOR RELATIONS BOARD

http://www.nlrb.gov/case/06-RC-012276

I. INTRODUCTION ............................................................................................................. 2

II. ARGUMENT ..................................................................................................................... 3

(1) Which of the factors identified in Yeshiva and the relevant cases decided by the

Board since Yeshiva are most significant in making a finding of managerial

status for university faculty members and why? ...................................................... 5

(2) In the areas identified as “significant,” what evidence should be required to

establish that faculty make or “effectively control” decisions? ............................ 10

(3) Are the factors identified in the Board case law to date sufficient to correctly

determine whether faculty are managerial? .......................................................... 11

(4) If the factors are not sufficient, what additional factors would aid the Board in

making a determination of managerial status for faculty? .................................... 12

(5) Is the Board’s application of the Yeshiva factors to faculty, consistent with its

determination of the managerial status of other categories of employees? .......... 12

(6) Do the factors employed by the Board in determining the status of university

faculty members properly distinguish between indicia of managerial status

and indicia of professional status under the Act? ................................................. 12

(7) Have there been developments in models of decision making in private

universities since the issuance of Yeshiva that are relevant to the factors the

Board should consider in making a determination of faculty managerial

status? .................................................................................................................... 13

(8) As suggested in footnote 31 of the Yeshiva decision, are there useful distinctions

to be drawn between and among different job classifications within a

faculty--such as between professors, associate professors, assistant

professors, and lecturers or between tenured and untenured faculty--

depending on the faculty's structure and practices? ............................................. 13

II. CONCLUSION ................................................................................................................ 13

TABLE OF AUTHORITIES

CASES

Carroll College, Inc., 350 NLRB No. 30 (2007) ............................................................................ 9

Cornell University, 183 NLRB 329, 336 (1970) ............................................................................. 9

Elmira College, 309 NLRB 842 (1992) .......................................................................................... 8

Florida Memorial College, 263 NLRB 1248 (1982) ...................................................................... 9

Greenhorne & O'Mara, Inc., 326 NLRB 514 (1998) .................................................................... 10

Harvard College, 269 NLRB 821 (1984) ........................................................................................ 9

LeMoyne-Owen College, 345 NLRB 1123, 1128 (2005) ............................................................ 7, 8

Livingston College, 286 NLRB 1308, 39-40 (1987) ....................................................................... 8

Montefiore Hospital & Medical Center, 261 NLRB 569, 572 fn. 17 (1982) .................................. 7

NLRB v. Yeshiva University, 444 U.S. 672 (1980) ............................................ 2, 5, 6, 7, 11, 12, 13

Point Park University v. NLRB, 457 F.3d 42, 44 (D.C. Cir. 2006) ................................................. 2

St. Thomas University, 298 NLRB 280 (1990) ............................................................................... 9

University of Great Falls, 325 NLRB 83 (1997) ............................................................................. 9

Western Electric Co., 98 NLRB 1018 (1952) ................................................................................. 9

OTHER AUTHORITIES

2010 NLRB Reg. Dir. Dec. LEXIS 179, 65-66

(NLRB Reg. Dir. Dec. 2010) ........................................................................................... 6, 9

http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=2010+NLRB+Reg.+Dir.+Dec.+LEXIS+179


2

INTRODUCTION

The central issue in this case is whether the (Point Park) University faculty

members sought to be represented by the Petitioner are statutory employees or rather

excluded managerial employees, consistent with the Supreme Court’s decision in NLRB v.

Yeshiva University, 444 U.S. 672 (1980). In his original decision and direction of election,

the Regional Director found that the faculty members were not managerial employees, and,

after an election, the Petitioner was certified as their collective-bargaining representative.

The underlying issue ultimately was presented to the United States Court of Appeals for the

District of Columbia Circuit, which found that the Board had “failed to adequately explain

why the faculty’s role at the University is not managerial.” Point Park University v. NLRB,

457 F.3d 42, 44 (D.C. Cir. 2006).

The court instructed the Board to identify which of the relevant factors set forth in

Yeshiva University, supra, are significant and which less significant in its determination

that the Employer’s faculty are not managerial employees and to explain why the factors

are so weighted. Following the court’s remand, the Regional Director issued a

Supplemental Decision. The Employer sought review of that decision, which the Board

granted on November 28, 2007.

To aid the Board in properly addressing the court’s remand, the Board invites the

parties and amici to file briefs that address the court’s instruction that the Board explain the

weight of the various factors identified by the Supreme Court in Yeshiva and their

application to these factors. Again, the central issue in this case is whether the (Point Park)

University faculty members sought to be represented by the Petitioner are statutory

employees or rather excluded managerial employees, consistent with the Supreme Court’s

decision in NLRB v. Yeshiva University, 444 U.S. 672 (1980).

3

In his original decision and direction of election, the Regional Director found that

the faculty members were not managerial employees, and, after an election, the Petitioner

was certified as their collective-bargaining representative. The underlying issue ultimately

was presented to the United States Court of Appeals for the District of Columbia Circuit,

which found that the Board had “failed to adequately explain why the faculty’s role at the

University is not managerial.” Point Park University v. NLRB, 457 F.3d 42, 44 (D.C. Cir.

2006).

The underlying issue ultimately was presented to the United States Court of

Appeals for the District of Columbia Circuit, which found that the Board had “failed to

adequately explain why the faculty’s role at the University is not managerial.” Point Park

University v.NLRB, 457 F.3d 42, 44 (D.C. Cir. 2006). The court instructed the Board to

identify which of the relevant factors set forth in Yeshiva University, supra, are significant

and which less significant in its determination concerning whether Point Park's faculty are,

or are not, managerial employees for the purposes of Section 9 of the National Labor

Relations Act, and to explain why the factors are so weighted. Following the court’s

remand, the Regional Director issued a Supplemental Decision. Point Park sought review

of that decision, which the Board granted on November 28, 2007. The Board affirmed the

Regional Director's decision that the Point Park faculty are professionals and not Managers,

which are excluded from coverage under the NLRA.

Point Park then appealed the Board's determination to the D.C. Court of Appeals ,

arguing that the Point Park faculty should be considered Managers and thus are NOT

covered under the Act. The Court of Appeals remanded the case to the Board and asked,

considering the factors set forth by the Supreme Court in their Yeshiva decision, how the

Board made its decision that the Point Park faculty are not Managers.

4

In requesting Amicus Briefs, the Board stated the purpose of the Briefs are,

to aid the Board in properly addressing the court’s remand, the Board invites the parties

and amici to file briefs that address the court’s instruction that the Board explain the weight

of the various factors identified by the Supreme Court in Yeshiva and how the Board

applied these factors in this case.

Again, the question presented by the D.C. Circuit is whether the full-time faculty of

various Private Colleges and Universities fall within the Managerial exclusion the Supreme

Court delineated in Yeshiva. This question turns on the decision making authority of the

faculty and faculty committees. If the faculty has the authority to autonomously make

academic decisions, the faculty should be considered managers. If the faculty does not have

the authority to autonomously make academic decisions, and these decisions are made by

administrators, the faculty should NOT be considered managers. As stated by the D.C.

Circuit, the Board did not state the factual basis why the Point Park faculty members were

not Managers, in contrast to the faculty members at Yeshiva University et al.

An investigation of a proposed faculty bargaining unit should answer the following

questions, which were set forth in Yeshiva.

Are the individual schools or Departments within the Private College or University

substantially autonomous?

Is each Department headed by a Department Head faculty member, and do the

faculty members at each Department meet formally and informally to discuss and

decide matters of institutional and professional concern?

5

At the Departmental level, are formal faculty meetings convened regularly pursuant

to written bylaws? Does the faculty meet when convened by the Department Head,

Dean or Director?

Do the Departments also have faculty committees concerned with special areas of

educational policy? Do faculty welfare committees negotiate with administrators

concerning salary and conditions of employment?

Through these meetings and committees, do the faculty and/or faculty committees

at each department effectively determine its curriculum, grading system, admission

and matriculation standards, academic calendars, and course schedules?

Managerial Status of Faculty

In determining the Managerial status of University faculty, one must remember that

the common description of University governance has long been described as "faculty

governance." Therefore any decision by the Board should concern whether the faculty has

decision making authority, either by individuals or by committees. The only variance from

the Supreme Court's rationale in Yeshiva would be at a small or community college, where

administrators make these decisions, and the responsibility of the faculty largely involves

teaching. As an example, at most Colleges and Universities, the faculty members teach no

more than three (3) or (6) hours per week, while at Community and other Private Colleges

(i.e. Phoenix or Kaplan) the faculty members most often teach twelve (12) or more hours

per week. In the newer Private Colleges and Universities such as Phoenix, Kaplan, et al.,

almost all decisions concerning academic topics are made by administrators.

Again, the first question the Board should ask in any determination related to

Private College and University faculties is who makes academic decisions. Again, at the

small or community college level, the faculty often teach 12 hours per week in classes

6

assigned by a Dean or other administrator and have few or no decision making

responsibilities. At essentially all other Private Colleges and Universities, the faculty makes

academic decisions.

Also, it must be understood that many persons have academic rank at a College or

University, even though they are not "classically" teaching faculty. These include, among

many others, coaches, librarians and administrators, or strictly researchers. Therefore a

petition stating that the bargaining unit should include "all faculty" would be inappropriate,

since it would include many administrators and other non-academic personnel that are

clearly decision makers. Therefore, any coaches and administrators who have faculty rank

clearly should not be included in a bargaining unit.

At the most basic level, most Private College and University decisions are made at

the Departmental and at the individual faculty member level, with no oversight by any

administrators. What specific topics a faculty member covers in a class is entirely at the

discretion of the individual faculty member. The individual Departments are then made up

by faculty with common teaching and research interests. These can range from the

Sociology Department to the Engineering or Mathematics or Psychology Departments.

Many Private Colleges and Universities also have Medical or Law Schools. Among

these Departments are Faculty with specific areas of expertise. The faculty members make

all decisions based on what they teach, what research they do, and what areas of Service

they engage in, as well as what furthers the mission of the university. Because of these

diverse academic interests and academic assignments, a "wall to wall" bargaining would

not be appropriate.

Hiring is most often done first by a faculty committee and then voted on by all of

the faculty in the Department. Terminations, or refusals to grant tenure, are examined first

7

by a faculty committee and then by the faculty as a whole. Terminations for cause are done

rarely, for very egregious behavior, and these are done by the Departmental faculty. Most

typically, faculty members have seven (7) years to meet the requirements for tenure, unless

they are particularly outstanding in publishing and are granted early tenure by faculty

consensus. Also. some faculty members are hired by the faculty at the Associate Professor,

or Full Professor level and automatically are granted tenure upon their hire. These

decisions are made by the faculty in the Department. Most non-tenured hires are for

Assistant Professors, while tenured hires are typically for Associate or full professors.

In addition, there simply is no community of interest among most of the various

Departments. As stated earlier, the Departments vary from Engineering, to Sociology to

Mathematics. There is simply no way to treat these Departments collectively, since the

decision making is made at the Departmental or individual faculty member level, with no

common base of academic expertise. Who should make more money, engineering, or

business faculty, or liberal arts faculty. Thus, the faculty members regularly make

numerous academic decisions and have the authority to make these decisions

autonomously.

Likewise, salary administration among faculty members is very complex and made

by the faculty at the Departmental level; subject only by administrative or budgetary caps.

Other compensation is paid directly from Grants, or endowed chairs, with no contribution

from the University. It would be impossible for a labor union to negotiate a salary

administration schedule for a Private College or University on any reasonable basis; even at

the Departmental level. It simply is too complex. There also is little continuity among the

faculty, and the faculty would never agree to have salary administration, or any other

academic decision, done by a Labor Union. As an example, physicians at Medical Schools

8

are paid by income derived from their work and also compensation for teaching. Also,

faculty regularly receive awards from foundations that often have stipends attached. Also,

there are wide ranges of salaries in the various Departments.

Next, one must understand the nature of the Private College and University

governance process and the significant decision making authority that faculty members

have in the various Departments. Quite simply, the faculty is responsible for almost all

academic decisions and have the authority to execute these decisions, which make them

Managers, rather than "simply cogs in a wheel" or employees. In liberal arts Departments,

there is some salary continuity among faculty members, but most often salary is based on

the Department's desire to hire, or to keep, a faculty member who is well known in the field

and/or has a significant amount of publishing in peer reviewed journals.

Again, in Private Colleges and Universities, the authority for most decision making

is by individual faculty members through intra-Departmental Committees, or the

Department as a whole. These committees, or the individual faculty members themselves,

are responsible for, and have the authority over, all academic aspects of Departmental

governance. When the Departmental faculty make a decision, it is by consensus, with no

input from any administrators. The Department heads are most often selected by the

Department faculty and are often filled on a rotating basis among the tenured faculty in the

Department. Only in such institutions as some community colleges is hierarchical

institutional governance found, with College or University Deans making decisions

unilaterally. Thus, the first thing to consider in a Representation case is whether or not

decision making is done by Departmental Deans or at the faculty level in the Private

College or University.

9

(1) Which of the factors identified in Yeshiva and the relevant cases decided by

the Board since Yeshiva are most significant in making a finding of

managerial status for university faculty members and why?

The most significant factors are largely grouped around decision making and

academic control. If the faculty at the individual or Departmental level have autonomy over

deciding academic matters, they are Managers. If such decision making is made at the

Administrative level, the faculty would be Professional, but not managerial. Thus, the first

level of investigation should be to ask who makes decisions about academic matters,

the faculty, or some other Administrators.

In Yeshiva, the Supreme Court reviews several Board decisions, which

sets the groundwork for such consideration. These include:

In Yeshiva, the Supreme Court found that faculty members at Yeshiva University

were managerial employees who were excluded from coverage under the Act. The Court

defined managerial employees as those who "formulate and effectuate management

policies by expressing and making operative the decisions of their employers."

Yeshiva, 444 U.S. at 682. The Court held that managerial employees "must exercise

discretion within, or even independently of, established employer policy and must be

aligned with management," and that they must represent "management interests by

taking or recommending discretionary actions that effectively control or implement

employer policy." Id. at 683.

The most basic aspect of a Representational investigation at Private Colleges and

Universities is to ask the faculty who decides the content of their courses, or their area of

expertise, or are they autonomous in making these decisions.

10

In Yeshiva, the Court formulated critical areas of inquiry from previous Board

decisions. The controlling consideration in this case is that the faculty of Yeshiva

University exercises authority which in any other context unquestionably would be

managerial. Their authority in academic matters is absolute.

1. They decide what courses will be offered, (Significant)

2. when they will be scheduled, and (Significant, although these are usually determined

at the Departmental level. )

3. to whom they will they teach. (Significant, this is typically determined by the faculty

at the Departmental level. )

4. They debate and determine teaching methods, (Significant, this is typically

determined by the faculty at the individual level)

5. grading policies, (Significant, this is typically determined by the faculty at the

individual level )

6. and matriculation standards. (Significant, this is typically determined by the faculty

at the Departmental level)

7. They effectively decide which students will be admitted, retained, and graduated.

(Significant, this is typically determined by the faculty at the individual level )

8. On occasion their views have determined the size of the student body, (Significant,

although this is usually determined at the administrative level. )

9. the tuition to be charged, (Significant, although these are usually determined at the

administrative level. )

10. and the location of a school. (Significant, although this is usually determined at the

administrative level. )

When one considers the function of a university, it is difficult to imagine decisions more

11

managerial than these.

2010 NLRB Reg. Dir. Dec. LEXIS 179, 65-66 (NLRB Reg. Dir.

Dec. 2010)

Managerial Status

In considering the managerial status of a Private College or University faculty such

as in NLRB v. Yeshiva University, 444 U.S. 672 (1980), the Supreme Court defined

managerial employees to be those who formulate and effectuate management policies

by expressing and making operative the decisions of their employers. The Court noted

that managerial employees must exercise discretion within, or even independently of,

established employer policy, must be aligned with management, and must represent

management interests by taking or recommending discretionary actions that effectively

control or implement employer policy. The Board has held that the party seeking to exclude

individuals as managerial has the burden of coming forward with the evidence necessary to

establish such an exclusion. Quite simply, Managers are those who formulate and

effectuate management policies by expressing and making operative the decisions of their

employers. Lemoyne-Owen College, 345 NLRB 1123, 1128 (2005); Montefiore Hospital

& Medical Center, 261 NLRB 569, 572 fn. 17 (1982).

Applying its managerial test to the faculty members in Yeshiva, the Supreme Court

found them to be managerial employees, based on their extensive authority over academic

matters such as the school's curriculum, academic calendar, course schedules, student

admission, student retention, matriculation standards, teaching methods and grading

policies. The Court noted that, on occasion, faculty views had determined the size of the

student body, the tuition to be charged, and the location of a school. While the Court also



12

noted the faculty's predominant authority in nonacademic matters, such as hiring, tenure,

sabbaticals, termination and promotion, which it found to have both managerial and

supervisory characteristics, the Court did not rely primarily on these features of faculty

authority but rather on their authority over academic affairs.

The Board has applied the Yeshiva decision in numerous cases in Private College

and University settings, most of which involved the managerial status of rank-and-file

faculty members rather than Department chairs or their equivalents. The Board has

emphasized the importance of faculty control or effective control over academic areas as

opposed to nonacademic areas, LeMoyne-Owen College, Id. at 1128 (2005)(emphasis in

original).

The Board has generally found rank-and-file faculty to be managerial when they

exercise substantial control over academic matters. This is almost universal in Private

Colleges and Universities. Administrators should not have any input into academic matters.

For example, administrators have little knowledge relative to the Physics. Department and

should not have input in such academic matters.

The Board Has Made the Following Determinations in applying Yeshiva.

In Livingston College, 286 NLRB 1308, 39-40 (1987), the Board found faculty

members to be managerial employees where they exercised substantial authority over

curriculum, degree requirements, course content and selection, graduation requirements,

matriculation standards and scholarship recipients. The faculty members participated in

academic governance through membership on various standing committees and by virtue of

a faculty-wide vote on recommendations proposed by these committees. The Board placed

only limited significance on the fact that the faculty had virtually no input into

nonacademic matters such as the budget process, tenure decisions and selection of

13

administrators, and no authority in the hiring and firing of faculty.

In Elmira College, 309 NLRB 842 (1992), the Board found faculty members to be

managerial where committees comprised predominately of faculty members established the

curriculum, had final authority to add new courses, to make changes in course content and

level, to determine whether a particular course satisfied the College's requirements, and to

approve student petitions to waive academic requirements, The faculty, through individual

faculty members, divisions, or committees, approved degree candidates, student grading,

course scheduling, class size, number of course sections, student advising, transfer course

credits, and student retention and discipline related to academic performance. The Board

held that, without more, the nature of faculty involvement in academic matters conclusively

established their managerial status. In addition, however, they exercised considerable

authority concerning the hiring of faculty and tenure decisions, although they had no

authority over salaries. Faculty recommendations concerning both academic and

nonacademic matters were generally followed by the college president.

In LeMoyne-Owen College, 345 NLRB 1123 (2005), the Board found the faculty to

be managerial where, through individual faculty members, a curriculum committee, an

academic standards committee, and a faculty assembly composed entirely of faculty

members except for two administrators, the faculty made or effectively controlled decisions

with regard to curriculum, courses of study and course content, degrees and degree

requirements, major and minors, academic programs and academic divisions, the addition

and deletion of courses, teaching methods, grading, academic retention, lists of graduates,

selection of honors, admission standards, syllabi and textbooks. The faculty also made

effective decisions in some nonacademic areas, including tenure standards, tenure

selection, and the faculty evaluation process.

14

However, the Board has found rank-and-file faculty to be non-managerial in

circumstances where they do not have substantial control over academic matters.

In Carroll College, Inc., 350 NLRB No. 30 (2007) vacated on other grounds 585

F.3rd 568 (D.C. Cir. 2009), the Board found faculty to be non-managerial where proposals

made by a faculty committee regarding degree requirements, curriculum, and the addition

and deletion of majors and courses are independently reviewed by the college

administration and have been rejected by the administration.

In Florida Memorial College, 263 NLRB 1248 (1982), the Board found faculty to

be non-managerial where the curriculum was not within the faculty's absolute control and

all curricular proposals had to be approved by the administration. Accord, University of

Great Falls, 325 NLRB 83 (1997); St. Thomas University, 298 NLRB 280 (1990).

The Employer bases its contention that the Department heads are managerial largely

on their role as members of the School Committee. I find that the Employer has failed to

establish that the Department heads are managerial employees. I base this conclusion on

the lack of control by Department heads over academic matters as members of the School

Committee. The issue, then, is whether, by their role on that committee, the Department

heads effectively recommend or determine academic policy or action as described in

Yeshiva.

2010 NLRB Reg. Dir. Dec. LEXIS 139, 36-42 (NLRB Reg. Dir. Dec. 2010)

In determining the appropriateness of a unit in a college or university environment,

the Board applies the rules traditionally used to determine the appropriateness of a unit, as

set forth above. Livingstone College, 290 NLRB 304 (1988); Harvard College, 269 NLRB

821 (1984); Cornell University, 183 NLRB 329, 336 (1970).

In this regard, a campus or college-wide unit, like a plant-wide unit, is viewed by


15

the Board as presumptively appropriate under the Act. Livingston College, supra; Western

Electric Co., 98 NLRB 1018 (1952). (This is NOT appropriate in a College or University

setting, where there is a wide range of expertise from one Department to another.) See also

§ 9(b) of the Act.

The burden of proving that the interests of a given classification of employees are

so disparate from those of others that they cannot be represented in the same unit rests with

the party challenging the unit's appropriateness. Greenhorne & O'Mara, Inc., 326 NLRB

514 (1998). In the instant case, the Employer has not met its burden of showing that the

petitioned-for unit is inappropriate.

Applying Yeshiva and its progeny to the facts in this case, we find that the faculty

at LeMoyne-Owen College are managerial employees. Whether acting as individual faculty

members, through committees, or in the faculty assembly, n15 we find that the faculty

make or effectively recommend decisions in the majority of critical areas identified in

Yeshiva and subsequent decisions interpreting and applying it. See e.g., Elmira College,

309 NLRB 842 (1992); Lewis & Clark College, 300 NLRB 155 (1990); American

International College, 282 NLRB 189 (1986); University of Dubuque, 289 NLRB 349

(1988); and Livingstone College, 286 NLRB 1308 (1987).

Lemoyne-Owen College & Faculty Org., 345 N.L.R.B. 1123, 1128-1129 (N.L.R.B. 2005)

An election by secret ballot shall be conducted among the employees in the unit

found appropriate, as early as possible, but not later than 30 days from the date below. The

Regional Director for Region 1 shall direct and supervise the election, subject to the

National Labor Relations Board Rules and Regulations, Series 8, as amended. Eligible to

vote are those in the unit who were employed during the payroll period ending immediately

http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=345+N.L.R.B.+1123%2520at%25201128

16

before the date below, including employees who did not work during that period because

they were ill, on vacation, or temporarily laid off. Also eligible are employees engaged in

an economic strike which commenced less than 12 months before the election date and

who retained their status as such during the eligibility period and their replacements. Those

in the military services of the United States may vote if they appear in person at the polls.

Ineligible to vote are employees who have quit or been discharged for cause since the

designated payroll period; employees engaged in a strike who have been discharged for

cause since the commencement thereof and who have not been rehired or reinstated before

the election date; and employees engaged in an economic strike which commenced more

than 12 months before the election date and who have been permanently replaced. Those

eligible shall vote whether or not they desire to be represented for collective-bargaining

purposes by Milk Wagon Drivers and Creamery Workers Union, Local 380, a/w

International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of

America. 261 N.L.R.B. 565, 568 (N.L.R.B. 1982)

The Board has been criticized for its lack of a consistent approach to the faculty managerial

issue. n6 The 18 (?) Yeshiva criteria provide a valid and valuable starting point for Board

analysis. The Supreme Court highlighted the 18 criteria for a reason, the reason being to

examine the entire gamut of faculty authority. The Yeshiva faculty possesses authority over

100 percent of this range, while the Dubuque faculty possesses authority over 44 percent of

this range. The Yeshiva faculty were managerial employees, the Dubuque faculty are not.

Accordingly, I would dismiss the unit clarification petition as to the faculty members.

Dubuque University 289 N.L.R.B. 349 (N.L.R.B. 1988)


http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=289+N.L.R.B.+349

17

DIRECTION OF ELECTION

An election by secret ballot shall be held among the employees in the unit found

appropriate, as early as possible but not later than 30 days from this date. The

Regional Director shall direct and supervise the election, subject to the Board's

Rules and Regulations. Eligible to vote are those employed during the payroll

period ending immediately before this date, including employees who did not work

during that period because they were ill, on vacation, or temporarily laid off. Also

eligible are employees engaged in an economic strike that began less than 12

months before the election date and who retained their employee status during the

eligibility period and their replacements. Those in the military services may vote if

they appear in person at the polls. Ineligible to vote are employees who have quit or

been discharged for cause since the payroll period, striking employees who have

been discharged for cause since the strike began and who have not been rehired or

reinstated before the election date, and employees engaged in an economic strike

that began more than 12 months before the election date and who have been

permanently replaced. Those eligible shall vote whether they desire to be

represented for collective bargaining by St. Thomas University Faculty Association,

a Chapter of the United Faculty of Florida/NEA.

To ensure that all eligible voters have the opportunity to be informed of the

issues in the exercise of their statutory right to vote, all parties to the election should

have access to a list of voters and their addresses that may be used to communicate

with them. Excelsior Underwear, 156 NLRB 1236 (1966); NLRB v. Wyman-

Gordon Co., 394 U.S. 759 (1969). Accordingly, it is directed that an eligibility list

containing the names and addresses of all the eligible voters must be filed by the

18

Employer with the Regional Director within 7 days of the date of this Decision On

Review, Order and Direction of Election. The Regional Director shall make the list

available to all parties to the election. No extension of time to file the list shall be

granted by the Regional Director except in extraordinary circumstances. Failure to

comply with this requirement shall be grounds for setting aside the election if

proper objections are filed.

St. Thomas University, Incorporated, Employer and St. Thomas University Faculty

Association, a Chapter Of The United Faculty Of Florida/NEA Petitioner 298

N.L.R.B. 280, 287 (N.L.R.B. 1990)

IV. CONCLUSIONS AND FINDINGS

Based upon the entire record in this matter and in accordance with the discussion

above, I conclude and find as follows:

1. The hearing officer's rulings made at the hearing are free from prejudicial error and are

hereby affirmed.

2. The Employer is engaged in commerce within the meaning of the Act and it will

effectuate the purposes of the Act to assert jurisdiction in this case.

3. The Petitioner is a labor organization within the meaning of Section 2(5) of the Act and

claims to represent certain employees of the Employer.

4. No question affecting commerce exists concerning the representation of certain

employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7)

of the Act.

V. ORDER

IT IS HEREBY ORDERED that the petition herein be, and it hereby is, dismissed.

2008 NLRB Reg. Dir. Dec. LEXIS 12, 25-26 (NLRB Reg. Dir. Dec. 2008)




19

There is no specific evidence concerning whether the Thiel College teachers are

involved in decisions regarding academic calendars, student absence policies, enrollment

levels, tuition, and the location of a school. However, art. II, B, of the faculty constitution,

set forth in full supra, would appear to empower the faculty to make decisions in these

areas. In addition, the Court clearly indicated that the faculties of only some of the 10

schools of Yeshiva covered by the petition effectively determined questions in these areas.

444 U.S. at 677. Last, we do not regard faculty involvement or lack of involvement in these

areas as vitally significant.

Like the teachers in Yeshiva University, the faculty herein controls the College's

curriculum; each department makes recommendations regarding course offerings (and

course content) which are reviewed by the faculty curriculum study committee, and which

are ultimately approved or disapproved by the faculty through the faculty council. It also

implements the curriculum in setting up course schedules and dividing the teaching load

among the various departments' professors. Through the faculty council and its academic

standing committee it supervises the overall academic performance of the College,

including grade levels and academic standards. The faculty also determines who will be

admitted and readmitted to the college; it establishes the academic requirements for

obtaining degrees; and it certifies to the board of trustees, for its approval, those students

eligible for graduation. In addition, each department prepares its own annual budget, which

apparently is normally accepted by the College. The faculty is also involved in long-range

financial and economic planning for the College. The faculty participates in setting its own

salary and benefit levels, and adjusts faculty and student grievances. Finally, the Thiel

College faculty makes effective decisions on hiring, tenure, sabbaticals, terminations, and

promotions.

20

Although, as in Yeshiva, ultimate authority is vested in the board of trustees, we

conclude that the faculty of Thiel College, like that of Yeshiva University, does not have

professional interests separate from those of its employer, and that it necessarily plays a

large role in operating the College. Thiel College, like Yeshiva University, "requires

faculty participation in governance because professional expertise is indispensable to the

formulation and implementation of academic policy," and therefore must depend upon its

teaching staff "to participate in the making and implementation" of its policies. n35

Thiel College 261 N.L.R.B. 580, 586 (N.L.R.B. 1982)

Again, almost all Private Colleges or Universities, the Departments are too distinct

to fit under a "plant-wide rule." In most Departments, the academic duties are quite distinct

among each other. There simply is not a sufficient community of interest between the

Engineering Department and the Sociology Department to make a plant-wide rule practical.

They have distinct and significantly different products to present to the students. In

addition, Business or Engineering School faculties have distinct salary requirements, that

would be impossible to collectively bargain.

(2) In the areas identified as “significant,” what evidence should be

required to establish that faculty make or “effectively control” decisions?

The Board asked, in its request for Amicus Briefs, whether or not the decisions of

the Departments, or individual faculty members, can be effectively vetoed by the Deans or

other University personnel, or whether the individual faculty members or Faculty

Committees make, in essence, final decisions by the consensus of the faculty committees.

To designate whether or not decisions are significant, what evidence is required.?

As stated above, any documents or interviews of faculty and administration

members relating to decision making authority should be considered. In this regard,


21

first, a faculty committee most often makes hiring decisions. This can be confirmed

through interviews with faculty members and administrators. In the typical hiring

process, the faculty reviews any resumes the Department receives, selects the applicants

to bring onto campus, sets up interviews and invites the other members of the

Departmental faculty to interview the applicant, and, make what is in essence, the final

decision. Also, the faculty decides who meets the criteria for tenure in the Department.

They effectively control these areas of decision making, because, unless outlandish, the

decisions are never vetoed by the administration.

(3) Are the factors identified in the Board case law to date sufficient to

correctly determine whether faculty are managerial?

YES - As laid out in Yeshiva. First, it is necessary to understand the

governance process at a University before one can decide whether or not the individual

faculty members have a managerial role. Decisions at Private Colleges and

Universities are made by individual faculty members or by consensus by the

Departmental faculty and/or faculty committees. Once a decision has been made, the

Department Head transmits the decision for information only, typically to a Dean, who

has no authority to veto any faculty decisions. As stated earlier, in Yeshiva, the

Supreme Court listed the following factors that faculty must have to be considered

Managers:

(1) control over curriculum and course schedules;

(2) control over teaching methods;

(3) control over grading policies; and

(4) control over which students will be admitted, retained, and

graduated.

22

In addition, the Regional Director referred to various non-academic factors that the

Supreme Court listed in Yeshiva, but which the Supreme Court described as "features of

faculty authority" upon which it did not need to "rely primarily," 444 U.S. at 686 n.23:

(1) control over hiring;

(2) control over tenure;

(3) control over sabbaticals;

(4) control over terminations;

and (5) control over promotions.

Finally, in Yeshiva, the Regional Director touched upon several factors relied upon

in previous Board decisions:

(1) control over salary and benefits;

(2) statements made by the Administration; and

(3) the size of the University's administrative component.

These are not relevant to this determination.

(4) If the Yeshiva factors are not sufficient, what additional factors would

aid the Board in making a determination of managerial status for faculty?

None. These are sufficient.

(5) Is the Board’s application of the Yeshiva factors to faculty,

consistent with its determination of the managerial status of other

categories of employees and, if not,

They are consistent, however in most other businesses, individual employees are

not give autonomous decision making authority.

(a) may the Board adopt a distinct approach for such determinations

in an academic context or

Yes - It is necessary, as described above. The Board must first verify and recognize

the nature of University Governance, including the autonomous decision making authority

23

of individual faculty members and the Committees they serve on.

(b) can the Board more closely align its determinations in an

academic context with its determinations in non-academic contexts in a

manner that remains consistent with the decision in Yeshiva?

NO - Autonomous individual and Departmental authority to make all academic

related decisions is unique to Colleges and Universities. As long as the Board recognizes

the autonomous decision making authority of individual faculty members and the

Committees they serve on, they must use different criteria.

(6) Do the factors employed by the Board in determining the status of

university faculty members properly distinguish between indicia of

managerial status and indicia of professional status under the Act?

Yes - As long as the Board recognizes the autonomous decision making authority of

individual faculty members and the Committees they serve on.

(7) Have there been developments in models of decision making in private

universities since the issuance of Yeshiva that are relevant to the factors the Board

should consider in making a determination of faculty managerial status?

NO

If so, what are those developments and how should they influence the

Board’s analysis?

NONE

24

(8) As suggested in footnote 31 of the Yeshiva decision, are there useful

distinctions to be drawn between and among different job classifications

within a faculty--such as between professors, associate professors, assistant

professors, and lecturers or between tenured and untenured faculty--

depending on the faculty's structure and practices?

No - Typically, in performing an analysis of the factors described above, all

faculty have the same decision making authority, regardless of their rank. The only difference is

when tenured faculty decide whether Assistant Professors are granted tenure.

Conclusion

The Supreme Court was correct in the Yeshiva case. When the Region receives a Petition

concerning a Private College or University, their investigation of the bargaining unit should be

for a single academic Department and the major aspect of the Investigation should be whether or

the faculty or faculty have the right to make academic decisions without further Administrative

Review.

/s/ Bruce F. Mills

Bruce F. Mills

Bruce F. Mills

11715 Fox Road, Suite 400-109

Indianapolis, IN 46236



12.

AMENDED AMICUS BRIEF OF: (1) AMERICAN COUNCIL ON EDUCATION; (2) NATIONAL

ASSOCIATION OF INDEPENDENT COLLEGES AND UNIVERSITIES; (3) COUNCIL OF

INDEPENDENT COLLEGES; (4) ASSOCIATION OF INDEPENDENT COLLEGES AND

UNIVERSITIES OF PENNSYLVANIA; (5) COLLEGE AND UNIVERSITY PROFESSIONAL

ASSOCIATION FOR HUMAN RESOURCES; AND (6) ASSOCIATION OF AMERICAN UNIVERSITIES

UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD

POINT PARK UNIVERSITY, Employer, and NEWSPAPER GUILD OF PITTSBURGH / COMMUNICATIONS WORKERS OF AMERICA, LOCAL 38061, AFL-CIO, CLC, Petitioner.

Case No. 6-RC-12276 July 6, 2012

AMENDED BRIEF OF AMICI CURIAE AMERICAN COUNCIL ON EDUCATION,

NATIONAL ASSOCIATION OF INDEPENDENT COLLEGES AND UNIVERSITIES, COUNCIL OF INDEPENDENT COLLEGES, ASSOCIATION OF INDEPENDENT

COLLEGES AND UNIVERSITIES OF PENNSYLVANIA, COLLEGE AND UNIVERSITY PROFESSIONAL ASSOCIATION FOR HUMAN RESOURCES,

AND ASSOCIATION OF AMERICAN UNIVERSITIES

Of Counsel: Ada Meloy General Counsel AMERICAN COUNCIL ON EDUCATION One Dupont Circle, NW Washington, DC 20036 202.939.9300 [email protected]

Edward A. Brill David A. Munkittrick PROSKAUER ROSE LLP 11 Times Square New York, NY 10036-8299 212.969.3000 [email protected] [email protected] Lawrence Z. Lorber James F. Segroves PROSKAUER ROSE LLP 1001 Pennsylvania Avenue, NW Suite 400 South Washington, DC 20004-2533 202.416.6800 [email protected] [email protected]

- i -

TABLE OF CONTENTS Page

TABLE OF AUTHORITIES .......................................................................................................... ii

INTEREST OF AMICI CURIAE .....................................................................................................1

PRELIMINARY STATEMENT .....................................................................................................2

ARGUMENT...................................................................................................................................5

I. USING ADJUDICATION INSTEAD OF RULEMAKING TO PROMULGATE STANDARDS OF GENERAL APPLICABILITY BEYOND THE FACTS OF THIS CASE WOULD NOT ONLY CONSTITUTE AN ABUSE OF DISCRETION, IT WOULD VIOLATE THE D.C. CIRCUIT’S MANDATE......................................................................................................................5

II. EVEN IF THE BOARD’S CALL FOR AMICUS BRIEFS DOES NOT VIOLATE THE D.C. CIRCUIT’S MANDATE, THE ANSWERS TO THE QUESTIONS POSED DO NOT ALTER THE CONCLUSION THAT POINT PARK UNIVERSITY’S FULL-TIME FACULTY MEMBERS ARE MANAGERIAL EMPLOYEES ......................................................................................8

A. Effective Authority in Matters of Curriculum and Course Selection Are of Paramount Importance Under Yeshiva.....................................................................8

B. In Determining Effective Authority, the Board Should Continue to Evaluate All Relevant Evidence and Avoid Imposing an Evidentiary Burden That Undermines Yeshiva ...........................................................................9

C. The Factors Identified By Existing Precedent Are Sufficient to Accurately Determine Whether Faculty Are Managerial Employees ......................................10

D. Yeshiva Recognizes That Higher Education Is Unique .........................................11

E. The Board’s Professional-Status Question Is Misdirected ....................................12

F. There Have Been No Significant Developments in Private Universities’ Decision-Making Models Since Yeshiva ...............................................................13

G. The Use of Faculty Job Classifications Would Be Neither Sound Policy Nor Factually Supportable Given the Lack of Standardization Throughout Higher Education ...................................................................................................16

CONCLUSION..............................................................................................................................19


- ii -

TABLE OF AUTHORITIES Page(s)

CASES

1st Bancorporation v. Bd. of Governors of Fed. Reserve Sys., 728 F.2d 434 (10th Cir. 1984) .................................................................................................... 5

City of Cleveland, Ohio v. Fed. Power Comm’n, 561 F.2d 344 (D.C. Cir. 1977)................................................................................................ 6, 7

Ford Motor Co. v. FTC, 673 F.2d 1008 (9th Cir. 1981) .................................................................................................... 6

In re Core Commc’ns, Inc., 531 F.3d 849 (D.C. Cir. 2008).................................................................................................... 7

In re People’s Mojahedin Org. of Iran, --- F.3d ---, No. 12-1118, 2012 WL 1958869 (D.C. Cir. June 1, 2012)............................................................................................... 8

Ithaca College v. NLRB, 623 F.2d 224 (2d Cir. 1980) ....................................................................................................... 7

Jochims v. NLRB, 480 F.3d 1161 (D.C. Cir. 2007)................................................................................................ 16

LeMoyne-Owen Coll., 345 NLRB 1123 (2005), on remand from LeMoyne-Owen Coll. v. NLRB, 357 F.3d 55 (D.C. Cir. 2004)................................................................................................ 9, 12

NLRB v. ADCO Elec. Inc., 6 F.3d 1110 (5th Cir. 1993) ...................................................................................................... 16

NLRB v. Bell Aerospace Co., 416 U.S. 267 (1973).................................................................................................... 2, 5, 10, 11

NLRB v. Yeshiva Univ., 444 U.S. 672 (1980)........................................................................................................... passim

Pfaff v. U.S. Dep’t of Housing & Urban Dev., 88 F.3d 739 (9th Cir. 1996) ........................................................................................................ 5

Point Park Univ. v. NLRB, 457 F.3d 42 (D.C. Cir. 2006)............................................................................................. passim

Point Park Univ., No. 6-RC-12276, 2012 WL 1865034 (NLRB May 22, 2012)........................................... passim

- iii -

Rochelle Waste Disposal, LLC v. NLRB, 673 F.3d 587 (7th Cir. 2012) .................................................................................................... 16

Specialty Healthcare & Rehab. Ctr. of Mobile, 356 NLRB No. 56 (Dec. 22, 2010), cross-appeals pending sub nom. Kindred Nursing Ctrs. E., LLC v. NLRB, Nos. 12-1027 & 12-1174 (6th Cir.) ........................................ 6

Univ. of Dubuque, 289 NLRB 349 (1988) ................................................................................................................ 9

STATUTES

National Labor Relations Act, 29 U.S.C. §§ 151-169 ........................................................................................................ passim

OTHER AUTHORITIES

Am. Fed’n of Teachers, A National Survey of Part-Time/Adjunct Faculty, 2 Am. Academic 3 (Mar. 2010)................................................................................................ 18

Ctr. for Higher Educ. Pol’y Analysis, Challengers for Governance: A National Report (2003) ......................................................... 15

David W. Leslie, Part-Time, Adjunct and Temporary Faculty: The New Majority?, A Report of the Sloan Conference on Part-Time and Adjunct Faculty (May 1998) .... 16, 17, 18

Gabriel E. Kaplan, How Academic Ships Actually Navigate, in Governing Academia 165 (2004).................................................................................... 14, 15

Judith Areen, Government As Educator: A New Understanding of First Amendment Protection of Academic Freedom and Governance, 97 Geo. L.J. 945 (2009) ......................... 15

Judith M. Gappa, Employing Part-Time Faculty: Thoughtful Approaches to Continuing Problems, Am. Ass’n Higher Educ. Bull. 3 (Oct. 1984) .......................................................... 18

Scott Smallwood, United We Stand?, Chron. of Higher Educ., Feb. 21, 2003, at A10................ 18

Willis A. Jones, Faculty Involvement in Institutional Governance: A Literature Review, 6 J. Professoriate 117 (2011) ...................................................... 13, 14, 16

- 1 -

Amici Curiae American Council on Education, National Association of Independent Col-

leges and Universities, Council of Independent Colleges, Association of Independent Colleges

and Universities of Pennsylvania, College and University Professional Association for Human

Resources, and Association of American Universities (collectively, the “Higher Education

Amici”) respectfully submit this brief in response to the Notice and Invitation to File Briefs

(“Notice”) issued by the National Labor Relations Board (“Board”) on May 22, 2012.

INTEREST OF AMICI CURIAE

The American Council on Education (“ACE”) represents 1,800 accredited, degree-

granting colleges and universities and higher education-related associations, organizations and

corporations. Founded in 1918, ACE serves as the nation’s unifying voice for higher education.

ACE serves as a consensus leader on key higher education issues and seeks to influence public

policy through advocacy, research and program initiatives.

The National Association of Independent Colleges and Universities (“NAICU”) serves as

the unified national voice of private, nonprofit higher education in the United States. Founded in

1976, NAICU currently has nearly 1,000 members nationwide, including traditional liberal arts

colleges, major research universities, special service educational institutions, and schools of law,

medicine, engineering, business and other professions. NAICU represents these institutions on

policy issues primarily with the federal government, such as those affecting student aid, taxation

and government regulation.

Founded in 1956, the Council of Independent Colleges (“CIC”) is the major national ser-

vice organization for small and mid-sized, independent, liberal arts colleges and universities in

the United States. CIC has nearly 700 members and affiliates including liberal arts, comprehen-

sive and international institutions, as well as higher education-related associations. CIC works to

- 2 -

support college and university leadership, advance institutional excellence and enhance private

higher education’s contributions to society.

The Association of Independent Colleges and Universities of Pennsylvania (“AICUP”) is

the only statewide organization that serves exclusively the interests of private higher education

within the Commonwealth of Pennsylvania. AICUP provides its 88-member private colleges

and universities with services and programs tailored specifically to the needs and situation of

independent higher education.

The College and University Professional Association for Human Resources (“CUPA-

HR”) serves as the voice of human resources in higher education, representing more than 11,000

human-resources professionals at over 1,700 colleges and universities across the country, includ-

ing 90 percent of all United States doctoral institutions, 70 percent of all master’s institutions,

more than half of all bachelor’s institutions and nearly 500 two-year and specialized institutions.

Higher education employs 3.3 million workers nationwide, with colleges and universities in all

50 States.

The Association of American Universities (“AAU”) is an organization of 59 United

States and two Canadian major research institutions committed to developing strong national and

institutional policies supporting research and both graduate and undergraduate education.

PRELIMINARY STATEMENT

When this case began almost a decade ago, it presented a relatively straightforward ques-

tion: are Point Park University’s full-time faculty members “managerial employees” who fall

outside the scope of the National Labor Relations Act (“Act”), 29 U.S.C. §§ 151-169? See

NLRB v. Bell Aerospace Co., 416 U.S. 267, 275 (1973) (implying from the Act’s structure and

history that “Congress intended to exclude from the protections of the Act all employees prop-

erly classified as ‘managerial’”). That question is relatively straightforward because the Su-

- 3 -

preme Court of the United States has instructed the Board to consider well-defined factors in

making the managerial determination in the context of higher education. See NLRB v. Yeshiva

Univ., 444 U.S. 672, 686-90 (1980). “The proper analysis, the Court held [in Yeshiva], turns on

the type of control faculty exercise over academic affairs at an institution.” Point Park Univ. v.

NLRB, 457 F.3d 42, 46 (D.C. Cir. 2006).

The Regional Director and the Board originally determined that Point Park University’s

full-time faculty members do not fall within the judicially implied exclusion for managerial

employees. Importantly, however, the United States Court of Appeals for the District of Colum-

bia Circuit reversed the Board’s determination nearly six years ago and remanded this matter for

further proceedings consistent with the appellate court’s opinion, explaining that “Yeshiva identi-

fied the relevant factors that the Board must consider.” Point Park Univ., 457 F.3d at 51 (em-

phasis added). As the Board’s call for amicus briefs concedes, the D.C. Circuit instructed the

Board to “identify which of the relevant factors set forth in Yeshiva . . . are significant and which

less so . . . and to explain why the factors are so weighted.” Notice, 2012 WL 1865034, at *1

(emphasis added).

Many of the Higher Education Amici have filed multiple amicus briefs during this case’s

lengthy history. The last of those briefs was filed on August 24, 2007, and supported Point Park

University’s request for Board review following the Regional Director’s Supplemental Decision

on Remand, which was issued on July 10, 2007. Although the Board granted Point Park Univer-

sity’s request for review on November 28, 2007, the Board failed to take any further action in

this matter for over four years until, on May 22, 2012, a narrow majority of the Board invited

third parties to address the following eight questions:

- 4 -

(1) Which of the factors identified in Yeshiva and the relevant cases decided by the Board since Yeshiva are most significant in making a finding of managerial status for university faculty members and why?

(2) In the areas identified as “significant,” what evidence should be required to establish that faculty make or “effectively control” decisions?

(3) Are the factors identified in the Board case law to date sufficient to cor-rectly determine whether faculty are managerial?

(4) If the factors are not sufficient, what additional factors would aid the Board in making a determination of managerial status for faculty?

(5) Is the Board’s application of the Yeshiva factors to faculty consistent with its determination of the managerial status of other categories of employees and, if not, (a) may the Board adopt a distinct approach for such determi-nations in an academic context or (b) can the Board more closely align its determinations in an academic context with its determinations in non-academic contexts in a manner that remains consistent with the decision in Yeshiva?

(6) Do the factors employed by the Board in determining the status of univer-sity faculty members properly distinguish between indicia of managerial status and indicia of professional status under the Act?

(7) Have there been developments in models of decision making in private universities since the issuance of Yeshiva that are relevant to the factors the Board should consider in making a determination of faculty manage-rial status? If so, what are those developments and how should they influ-ence the Board’s analysis? [and]

(8) As suggested in footnote 31 of the Yeshiva decision, are there useful dis-tinctions to be drawn between and among different job classifications within a faculty—such as between professors, associate professors, assis-tant professors, and lecturers or between tenured and untenured faculty—depending on the faculty’s structure and practices?

Notice, 2012 WL 1865034, at *1-2. But see id. at *2 (Members Hayes & Flynn, dissenting)

(concluding that it is “unwise to further delay the processing of this case to solicit additional

briefing”).

As set forth below, many of the Higher Education Amici addressed the narrow issues

raised by the D.C. Circuit’s mandate in their submission four years ago. Therefore, while the

- 5 -

Higher Education Amici reiterate those arguments and refer the Board to the prior amicus brief,

they will not burden the Board by repeating those arguments in detail in this brief.

Instead, the Higher Education Amici wish to emphasize that the breadth of the Board’s

call for argument and evidence from third parties and its very timing violates the D.C. Circuit’s

mandate. The D.C. Circuit did not remand this case for the Board to engage in de facto rulemak-

ing outside the factual record presented by this case, let alone to conduct such rulemaking six

years after the D.C. Circuit issued its mandate. Accordingly, the Board should comply with the

D.C. Circuit’s mandate without further delay and reverse the Regional Director’s supplemental

decision, which, as explained in detail by the 2007 amicus submission, misapplied Yeshiva and

Board precedent under Yeshiva.

ARGUMENT

I. USING ADJUDICATION INSTEAD OF RULEMAKING TO PROMULGATE STANDARDS OF GENERAL APPLICABILITY BEYOND THE FACTS OF THIS CASE WOULD NOT ONLY CONSTITUTE AN ABUSE OF DISCRETION, IT WOULD VIOLATE THE D.C. CIRCUIT’S MANDATE

The “choice between rulemaking and adjudication lies in the first instance within the

Board’s discretion.” Bell Aerospace, 416 U.S. at 294. However, like all grants of discretion,

there “may be situations where the Board’s reliance on adjudication [instead of rulemaking]

would amount to an abuse of discretion or a violation of the Act.” Id.; see, e.g., Pfaff v. U.S.

Dep’t of Housing & Urban Dev., 88 F.3d 739, 748 (9th Cir. 1996) (finding agency abuses its

discretion when, among other things, the “new standard, adopted by adjudication [instead of

through rulemaking], departs radically from the agency’s previous interpretation of the law” and

“is very broad and general in scope and prospective in application”); 1st Bancorporation v. Bd.

of Governors of Fed. Reserve Sys., 728 F.2d 434, 437 (10th Cir. 1984) (reversing agency orders

because they were “merely a vehicle by which a general policy would be changed” by the

- 6 -

agency, which should have been accomplished, if at all, through rulemaking, not adjudication);

Ford Motor Co. v. FTC, 673 F.2d 1008, 1009 (9th Cir. 1981) (explaining “agencies can proceed

by adjudication to enforce discrete violations of existing laws where the effective scope of the

rule’s impact will be relatively small; but an agency must proceed by rulemaking if it seeks to

change the law and establish rules of widespread application”).

The Board’s recent use of calls for amicus briefs to conduct de facto rulemaking is both

troubling and the subject of pending judicial proceedings. See Specialty Healthcare & Rehab.

Ctr. of Mobile, 356 NLRB No. 56, at *2 (Dec. 22, 2010) (asking amici to address, among other

things, whether a unit of all employees performing the same job is a presumptively appropriate

bargaining unit), cross-appeals pending sub nom. Kindred Nursing Ctrs. E., LLC v. NLRB, Nos.

12-1027 & 12-1174 (6th Cir.). Calls for amicus briefs do not satisfy the procedural and substan-

tive requirements imposed by the Administrative Procedure Act’s rulemaking requirements, nor

do they render harmless the agency’s error in using adjudication instead of rulemaking. See

Specialty Healthcare, 356 NLRB No. 56, at *4-6 (Member Hayes, dissenting).

More important, however, is the fact that the breadth of the Board’s call for amicus briefs

in this case violates the D.C. Circuit’s mandate. “The decision of a federal appellate court,” the

D.C. Circuit explained long ago, “establishes the law binding further action in the litigation by

another body subject to [the appellate court’s] authority.” City of Cleveland, Ohio v. Fed. Power

Comm’n, 561 F.2d 344, 346 (D.C. Cir. 1977) (footnote omitted). “The latter is without power to

do anything which is contrary to either the letter or spirit of the mandate construed in the light of

the opinion of the court deciding the case, and the higher tribunal is amply armed to rectify any

deviation through the process of mandamus.” Id. (internal quotations, alteration and footnotes

omitted). “These principles, so familiar in operation within the hierarchy of judicial benches,

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indulge no exception for reviews of administrative agencies.” Id. (emphasis added and footnotes

omitted); accord Ithaca College v. NLRB, 623 F.2d 224, 228 (2d Cir. 1980) (“Of course, we do

not expect the Board or any other litigant to rejoice in all the opinions of this Court. When it

disagrees in a particular case, it should seek review in the Supreme Court. . . . [T]he Board

cannot, as it did here, choose to ignore the decision as if it had no force or effect. Absent rever-

sal, that decision is the law which the Board must follow.”).

The D.C. Circuit instructed the Board to “identify which of the relevant factors set forth

in Yeshiva . . . are significant and which less so . . . and to explain why the factors are so

weighted.” Notice, 2012 WL 1865034, at *1 (emphasis added); see also Point Park Univ., 457

F.3d at 49-50. However, all of the questions posed by the Board’s call for amicus briefs, save for

the first, suggest that the Board intends to use this case as a vehicle to address issues that far

exceed the scope of the D.C. Circuit’s mandate. For example, the Board’s call for third parties to

submit their views as to whether there are “useful distinctions to be drawn between and among

different job classifications within a faculty,” Notice, 2012 WL 1865034, at *2, injects a com-

pletely new issue into this case that none of the parties asked the Board to decide and is not

presented by the record.

Accordingly, the Board should comply with the D.C. Circuit’s mandate without further

delay and without conducting de facto rulemaking well outside the scope of the D.C. Circuit’s

mandate and the factual record presented by this case.*

* The act of asking third parties to answer the first question regarding the relative

weight of the Yeshiva factors itself violates the D.C. Circuit’s mandate given the extraordinary delay in posing the question. See In re Core Commc’ns, Inc., 531 F.3d 849, 857 n.7 (D.C. Cir. 2008) (explaining “timeliness [of an agency’s response] is implicit in every remand by this court” and issuing writ of mandamus because agency failed to respond to mandate in a timely manner); In re People’s Mojahedin Org. of Iran, --- F.3d ---, No. 12-1118, 2012 WL 1958869, at

(continued)

- 8 -

II. EVEN IF THE BOARD’S CALL FOR AMICUS BRIEFS DOES NOT VIOLATE THE D.C. CIRCUIT’S MANDATE, THE ANSWERS TO THE QUESTIONS POSED DO NOT ALTER THE CONCLUSION THAT POINT PARK UNIVER-SITY’S FULL-TIME FACULTY MEMBERS ARE MANAGERIAL EMPLOYEES

A. Effective Authority in Matters of Curriculum and Course Selection Are of Paramount Importance Under Yeshiva

In question 1, the Board asks: “Which of the factors identified in Yeshiva and the relevant

cases decided by the Board since Yeshiva are most significant in making a finding of managerial

status for university faculty members and why?” Notice, 2012 WL 1865034, at *1. The 2007

amicus submission explained that Yeshiva and subsequent Board decisions “reflect a hierarchy of

academic factors relevant to managerial status: (i) faculty authority over the curriculum and

course offerings is paramount among the factors relevant to managerial status; (ii) authority

relating to course scheduling, grading, graduation, student admission and retention policies,

matriculation standards, and teaching methods are important, but not determinative; and

(iii) authority regarding such other factors as tuition or faculty hiring and tenure are of lesser

significance.” 2007 Amicus Br. at 2. In other words, “faculty authority in matters of curriculum

and course selection is, for all practical purposes, a sine qua non of managerial status.” Id. at 12.

“[G]raduation policies, course scheduling, grading, student admission and retention policies,

matriculation standards and teaching methods are also important and relevant considerations, and

faculty should ordinarily have authority in a majority of these areas to be considered manage-

*6 (D.C. Cir. June 1, 2012) (per curiam) (issuing writ of mandamus where agency failed to comply with appellate court’s mandate in less than two years). As Board Members Hayes and Flynn noted in their dissent from the Board’s call for amicus briefs, it is “unwise to further delay the processing of this case to solicit additional briefing” where, among other things, the Board already has the 2007 amicus submission and the union voluntarily chose not to file a brief after the Board granted Point Park University’s request for review almost five years ago. Notice, 2012 WL 1865034, at *2 (Members Hayes & Flynn, dissenting).

- 9 -

ment.” Id. “[O]ther considerations, ranging from the academic calendar and course enrollment

levels to faculty status matters, remain relevant considerations but were not central to the Su-

preme Court’s holding in Yeshiva and should not be determinative.” Id.

Nothing in the intervening years has altered the above conclusions, nor has the passage of

time affected the validity of Yeshiva itself. Given the breadth of the Board’s questions, it bears

emphasizing that Yeshiva remains the law of the land until the Supreme Court overturns Yeshiva

or Congress amends relevant provisions of the Act. Neither has occurred.

B. In Determining Effective Authority, the Board Should Continue to Evaluate All Relevant Evidence and Avoid Imposing an Evidentiary Burden That Un-dermines Yeshiva

In question 2, the Board asks: “In the areas identified as ‘significant,’ what evidence

should be required to establish that faculty make or ‘effectively control’ decisions?” Notice,

2012 WL 1865034, at *1. Yeshiva itself establishes the legal framework on this issue. The

“relevant consideration is effective recommendation or control rather than final authority.”

Yeshiva, 444 U.S. at 683 n.17 (emphasis added). For example, the fact that the faculty’s author-

ity in certain areas may be circumscribed by fiscal or other long-range policy concerns does not

diminish the faculty’s effective power in policymaking and implementation. See id. at 683 n.17,

688 n.27. Moreover, the Board has consistently rejected a “mechanical application of Yeshiva,

i.e., counting and comparing the number of areas in which faculty have input with the number of

such areas in Yeshiva.” LeMoyne-Owen Coll., 345 NLRB 1123, 1128 (2005) (“LeMoyne-Owen

II”), on remand from LeMoyne-Owen Coll. v. NLRB, 357 F.3d 55 (D.C. Cir. 2004) (“LeMoyne-

Owen I”); see also Univ. of Dubuque, 289 NLRB 349, 353 (1988) (explaining that a mechanical

application of Yeshiva “fails to take into account the many different combinations and permuta-

tions of influence that render each academic body unique”). Therefore, it would likewise be

improper for the Board to set rigid standards for determining effective recommendation, espe-

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cially in an environment such as higher education, where the prevalence of collegial decision-

making requires an institution-specific inquiry rather than a wooden application of bright-line

rules.

As noted above, the most significant area for consideration is authority over curriculum

and course offerings. In all areas, however, the Board should continue to use objective evidence

such as historical data with respect to institutional decisionmaking (e.g., how often faculty rec-

ommendations are accepted by an institution’s administration or governing body). See Yeshiva,

444 U.S. at 688 n.27 (“[I]nfrequent administrative reversals in no way detract from the institu-

tion’s primary concern with the academic responsibilities entrusted to the faculty.”). The Board

should also continue to use subjective evidence such as non-faculty members’ perceptions re-

garding the influence of faculty recommendations. See Yeshiva, 444 U.S. at 676 n.4 (crediting

testimony of deans and other administrators regarding the influence of faculty recommenda-

tions), 677 n.5 (same). Care should be taken not to impose an evidentiary burden that is so high

that it essentially negates the judicially implied exclusion for managerial employees first recog-

nized by Bell Aerospace and later applied to higher education by Yeshiva.

C. The Factors Identified By Existing Precedent Are Sufficient to Accurately Determine Whether Faculty Are Managerial Employees

In question 3, the Board asks: “Are the factors identified in the Board case law to date

sufficient to correctly determine whether faculty are managerial?” Notice, 2012 WL 1865034, at

*1. Question 4, in turn, asks: “If the factors are not sufficient, what additional factors would aid

the Board in making a determination of managerial status for faculty?” Id.

The Supreme Court in Yeshiva identified the factors the Board is to consider. As the

D.C. Circuit explained in applying Yeshiva to this case, the Board “must consider the degree of

faculty control over academic matters such as curriculum, course schedules, teaching methods,

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grading policies, matriculation standards, admission standards, size of the student body, tuition to

be charged, and location of the school.” Point Park Univ., 457 F.3d at 49 (emphasis added).

Even if one assumed for the sake of argument that the Yeshiva factors are not exclusive, the

Higher Education Amici are aware of no evidence that the Yeshiva factors are insufficient, nor

are they aware of any request by the parties for the Board to identify additional factors. That

Congress has not amended relevant provisions of the Act in the 32 years since Yeshiva was

decided provides compelling evidence that Yeshiva is consistent with congressional intent and

cannot be altered in the absence of congressional action. See, e.g., Bell Aerospace, 416 U.S. at

275 (citing congressional acquiescence as evidence previous interpretation of Act satisfied con-

gressional intent).

D. Yeshiva Recognizes That Higher Education Is Unique

In question 5, the Board asks if its “application of the Yeshiva factors to faculty [is] con-

sistent with [the Board’s] determination of the managerial status of other categories of employ-

ees and, if not, (a) may the Board adopt a distinct approach for such determinations in an aca-

demic context or (b) can the Board more closely align its determinations in an academic context

with its determinations in non-academic contexts in a manner that remains consistent with the

decision in Yeshiva?” Notice, 2012 WL 1865034, at *1.

Yeshiva expressly recognized that the Act cannot be applied to higher education in the

same manner that it would be to private industry generally. “The Act was intended to accommo-

date the type of management-employee relations that prevail in the pyramidal hierarchies of

private industry,” the Supreme Court explained. Yeshiva, 444 U.S. at 680. “In contrast, author-

ity in the typical ‘mature’ private university is divided between a central administration and one

or more collegial bodies. . . . This system of ‘shared authority’ evolved from the medieval model

of collegial decisionmaking in which guilds of scholars were responsible only to themselves.”

- 12 -

Id. “Distinguishing between excluded managers and included professional employees is a fact-

intensive inquiry that presents special challenges in the unique and often decentralized world of

academia.” Point Park Univ., 457 F.3d at 51.

Therefore, the Board “must determine whether the faculty in question so controls the aca-

demic affairs of the school that their interests are aligned with those of the university or whether

they occupy a role more like that of the professional employee in the ‘pyramidal hierarchies of

private industries.’” Id. at 48 (quoting Yeshiva, 444 U.S. at 680). “That,” the D.C. Circuit ex-

plained in this case, “is by its very nature a fact-bound inquiry.” Id.; see, e.g., LeMoyne-Owen II,

345 NLRB at 1128-31 (applying Yeshiva factors to detailed factual record focused specifically

on collegiate employer at issue). If such an inquiry proves different in the context of higher

education than it does in the context of manufacturing, retail, health care or any of the other

myriad areas subject to the Board’s jurisdiction, it is simply a product of the fact that, as recog-

nized by Yeshiva, higher education does not fit within the mold of pyramidal hierarchies found in

private industry generally. See Yeshiva, 444 U.S. at 681 (explaining that the “principles devel-

oped for use in the industrial setting cannot be imposed blindly on the academic world”) (internal

quotations and citation omitted).

E. The Board’s Professional-Status Question Is Misdirected

In question 6, the Board asks: “Do the factors employed by the Board in determining the

status of university faculty members properly distinguish between indicia of managerial status

and indicia of professional status under the Act?” Notice, 2012 WL 1865034, at *2. One of the

central lessons of Yeshiva, however, was that merely being a professional employee does not

preclude one from being a managerial employee. The Supreme Court specifically rejected the

Board’s argument that the judicially implied exclusion for managerial employees cannot be

applied to professional employees. Yeshiva, 444 U.S. at 683-84. Furthermore, in light of the fact

- 13 -

that Point Park University does not challenge the professional status of its full-time faculty, it

would be improper for the Board to use this adjudication as a means to address an issue not

presented by this case.

F. There Have Been No Significant Developments in Private Universities’ Deci-sion-Making Models Since Yeshiva

In question 7, the Board asks: “Have there been developments in models of decision

making in private universities since the issuance of Yeshiva that are relevant to the factors the

Board should consider in making a determination of faculty managerial status? If so, what are

those developments and how should they influence the Board’s analysis?” Notice, 2012 WL

1865034, at *2. As outlined below, research supports the conclusion that faculties continue to

exert the same amount of influence and control, if not more, over the aspects of institutional

governance identified in Yeshiva and subsequent Board decisions as being indicative of manage-

rial status.

For the past 150 years, starting with Harvard University in 1826, the decision-making

model of shared governance has been utilized at most private colleges and universities. Due to

the development of the research institution, increased professionalism of faculty, rapid enroll-

ment growth, the changing composition of the student body, and the volatile political climate of

the 1960s, the model of shared governance has developed to increase faculty voice in various

areas of institutional governance. See Willis A. Jones, Faculty Involvement in Institutional

Governance: A Literature Review, 6 J. Professoriate 117, 119-35 (2011). Shared governance

was utilized at Yeshiva University, which prompted the Supreme Court to conclude that the

university’s full-time faculty were managerial employees. See Yeshiva, 444 U.S. at 680.

Shared governance is still the general rule at institutions today. Approximately 90 per-

cent of four-year institutions currently have faculty governing boards that participate in institu-

- 14 -

tional governance. Jones, supra, at 120. Recent research studies and articles confirm that facul-

ties still have influence over areas such as curriculum, the establishment of teaching standards,

academic performance, and standards for promotion and tenure. See id. at 124 (collecting and

discussing recent studies on faculty influence on institutional governance). “Faculty appear to be

given great decision-making authority over the areas in which they presumably have the most

expertise.” Id. at 129-30. Setting budget priorities and evaluating presidents and vice presidents

are areas where faculty sometimes had the least control. However, one study found that even

where faculty had little overall control or influence over budgeting, they were often consulted on

specific areas such as salaries and the merger or discontinuation of programs. Id. at 125. Such

findings align with Yeshiva and subsequent decisions holding that faculty need not play an exclu-

sive role in governing the institution.

Two studies—the 2001 Survey of Higher Education Governance and the 2003 survey

conducted by the Center for Higher Education Policy Analysis—provide additional data on the

distribution of power among various parties on campus. The 2001 Survey of Higher Education

Governance asked respondents (governing boards, presidents, deans and division heads, depart-

ment chairs and faculty governance bodies) at both private and public institutions to evaluate

how their relative formal powers have changed in the last two decades. Gabriel E. Kaplan, How

Academic Ships Actually Navigate, in Governing Academia 165, 178 (2004). The overwhelming

majority of private faculty governance bodies (92 percent) responded that they had the same or

more power now. Id. Only 8 percent of faculty governance bodies responded that they had less

power. Id. Another question revealed that 86 percent of respondents from private institutions

felt that the main representative body of faculty either influenced or directly made policy at the

institution. Id. at 181. Almost 90 percent of faculties (private and public) had determinative or

- 15 -

joint authority with the administration on content of the curriculum; 69.9 percent had determina-

tive or joint authority on faculty appointments; and 66.1 percent had determinative or joint au-

thority on tenure decisions. Id. at 184.

The survey also included questions from a 1970 American Association of University Pro-

fessors survey in order to see how governance has changed and whether shared governance has

deteriorated in the face of economic challenges. One author summarized a comparison of the

relevant findings of the studies as follows:

[F]aculty participation in governance of academic matters increased over time. In 1970, faculties determined the content of curriculum at 45.6% of the institutions, and they shared authority with the administration at another 36.4%. By 2001, faculties determined curriculum content at 62.8% of the institutions, and they shared authority at 30.4%. In 1970, faculties determined the appointments of full-time faculty in 4.5% of the institutions, and they shared authority at 26.4%. By 2001, faculties determined appointments of full-time faculty in 14.5% and shared authority in 58.2% of the institutions.

Judith Areen, Government As Educator: A New Understanding of First Amendment Protection of

Academic Freedom and Governance, 97 Geo. L.J. 945, 966 n.99 (2009).

Similarly, the Center for Higher Education Policy Analysis survey asked all respondents

(faculty, academic vice presidents and senate leaders) to report the perceived level of faculty

influence in decision making for various domains. See Ctr. for Higher Educ. Pol’y Analysis,

Challengers for Governance: A National Report (2003). The survey revealed that 67 percent of

faculty reported having formal authority over undergraduate curriculum, 59 percent of faculty

reported formal authority over tenure and promotion standards, and 50 percent of faculty re-

ported formal authority over the standards for evaluating teaching. Id. at 8. Further findings

showed that over 75 percent of faculty at baccalaureate, master’s and doctoral institutions believe

there is sufficient trust and 70 percent of faculties believe there is sufficient communication

- 16 -

between administrators, a necessary element of successful shared governance. Jones, supra, at

122.

Accordingly, recent surveys and articles support the conclusion that faculties not only

continue to be heavily involved in the governance of institutions on many levels and in multiple

forms, but that such involvement has increased since Yeshiva was decided.

G. The Use of Faculty Job Classifications Would Be Neither Sound Policy Nor Factually Supportable Given the Lack of Standardization Throughout Higher Education

Finally, in question 8, the Board asks if there are “useful distinctions to be drawn be-

tween and among different job classifications within a faculty—such as between professors,

associate professors, assistant professors, and lecturers or between tenured and untenured fac-

ulty—depending on the faculty’s structure and practices.” Notice, 2012 WL 1865034, at *2.

It is well established that job classifications are an inaccurate guide for determining an

employee’s status under the Act. See, e.g., Jochims v. NLRB, 480 F.3d 1161, 1168 (D.C. Cir.

2007) (rejecting use of job classifications as means to determine supervisory status); Rochelle

Waste Disposal, LLC v. NLRB, 673 F.3d 587, 590 (7th Cir. 2012) (same); NLRB v. ADCO Elec.

Inc., 6 F.3d 1110, 1117 (5th Cir. 1993) (“In determining whether someone is a supervisor, job

titles reveal very little, if anything.”). Using job classifications would be particularly unwise in

this context because there is no set definition in academia used to describe a particular job title.

Academic titles, and the policies that govern them, vary widely among different institutions.

“[T]erminology varies, making it difficult, in some cases, to define clearly who may be included

in a generalization and who may not.” David W. Leslie, Part-Time, Adjunct and Temporary

Faculty: The New Majority?, A Report of the Sloan Conference on Part-Time and Adjunct Fac-

ulty 21 n.1 (May 1998) (unpublished manuscript). Because of this inconsistency, attempts to

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create useful distinctions between and among different job classifications is neither sound policy

nor factually supportable.

One distinction that is often drawn between faculty members is the difference in tenure

status. However, this distinction does not accurately categorize different faculty, their level of

commitment or their interests. For example, a survey of 25 universities revealed that a signifi-

cant portion of non-tenure-track (“NTT”) faculty, 44 percent, is working at their institution full-

time. A full-time NTT faculty member will often have interests similar to a full-time tenure-

track (“TT”) faculty member. Furthermore, while the titles of assistant, associate and full pro-

fessor are usually reserved for TT faculty members, the titles of lecturer, instructor, and visiting

and adjunct professor are usually reserved for NTT faculty members. Id. However, these titles

are not used exclusively to refer to one or the other. For example, while “Professor,” “Associate

Professor” and “Assistant Professor” are generally used to describe TT faculty, those titles ac-

count for 18 percent of NTT faculty. Id. Similarly, the title of “Adjunct Professor” is used at

institutions for both TT faculty and NTT faculty. Id.

There are also significant practical distinctions between adjunct professors at different in-

stitutions. For example, adjunct faculty may or may not be salaried depending on the institution.

At some institutions adjunct faculties are given fixed-length appointments, while at others they

can be given an indefinite appointment. Policies regarding benefits for adjunct faculty also vary

among institutions. Some institutions provide no benefits for adjunct faculty while others pro-

vide adjunct faculty the same benefits as they do for TT faculty. There are similar distinctions

for the titles of “Lecturer” and “Senior Lecturer,” which represent 0.5 percent of TT faculty and

46 percent of NTT faculty, and “Instructor,” which represents 0.3 percent of TT faculty and 10

- 18 -

percent of NTT faculty with regard to such things as length of appointment and benefits. See id.

(discussing variations at different institutions).

A survey conducted by Hart Research Associates on behalf of the American Federation

of Teachers (“AFT”) also found that part-time/adjunct faculty members vary considerably in the

extent of their participation in institutional governance. Am. Fed’n of Teachers, A National

Survey of Part-Time/Adjunct Faculty, 2 Am. Academic 3 (Mar. 2010). The AFT survey con-

firms findings from an earlier study in which 42 percent of the adjunct faculty surveyed “re-

ported that part-time faculty had either a full or proportional vote in departmental decisions. A

quarter of institutions reported that they extended institutional-level voting privileges to part-

time faculty.” Judith M. Gappa, Employing Part-Time Faculty: Thoughtful Approaches to Con-

tinuing Problems, Am. Ass’n Higher Educ. Bull. 3, 5 (Oct. 1984) (citation omitted).

There are also personal accounts from part-time professors attesting to the difference in

treatment of part-time faculty at different institutions. For example, at Ventura College, “ad-

juncts can control their own courses, participate in curriculum revisions, and vote in departmen-

tal meetings.” Scott Smallwood, United We Stand?, Chron. of Higher Educ., Feb. 21, 2003, at

A10. However, the same professor teaching part-time at College of the Canyons “can’t choose

[his] own books, and taking part in curriculum discussions is unheard of.” Id. Therefore, at

some institutions, an adjunct faculty member will be more like a full-time TT employee.

Ultimately, though, the lack of consistency makes it impossible to identify useful distinc-

tions between types of faculty based solely on job classification. As the D.C. Circuit explained

in this case, “[e]very academic institution is different, and in determining whether a particular

institution’s faculty are ‘managerial employees’ excluded from the Act,” the Board “must per-

form an exacting analysis of the particular institution and faculty at issue.” Point Park Univ.,

- 19 -

457 F.3d at 48. Moreover, the union has petitioned to represent all of Point Park University’s

full-time faculty, not some subset of that group based on job classification. Therefore, the job-

classification issue is not presented by this case.

CONCLUSION

For the foregoing reasons, the Board should comply with the D.C. Circuit’s mandate

without further delay and reverse the Regional Director’s supplemental decision.

Dated: July 6, 2012 Respectfully submitted,

Of Counsel: Ada Meloy General Counsel AMERICAN COUNCIL ON EDUCATION One Dupont Circle, NW Washington, DC 20036 202.939.9300 202.833.4762 (fax) [email protected]

PROSKAUER ROSE LLP

By: /s/ Edward A. Brill

Edward A. Brill David A. Munkittrick 11 Times Square New York, NY 10036-8299 212.969.3000 212.969.2900 (fax) [email protected] [email protected] Lawrence Z. Lorber James F. Segroves 1001 Pennsylvania Avenue, NW Suite 400 South Washington, DC 20004-2533 202.416.6800 202.416.6899 (fax) [email protected] [email protected]


The undersigned certifies that on this sixth day of July, 2012, he caused the foregoing

Amended Brief of Amici Curiae to be filed using the National Labor Relations Board’s E-Filing

Program. The foregoing brief was also served by e-mail upon the following counsel:

Arnold E. Perl Michael D. Tauer GLANKLER BROWN, PLLC 6000 Poplar Avenue, Suite 400 Memphis, TN 38119 [email protected] [email protected] Counsel for Point Park University

Richard H. Markowitz MARKOWITZ & RICHMAN 121 S. Broad Street 1100 North American Building Philadelphia, PA 19107-4533 [email protected] Joseph J. Pass JUBELIRER, PASS & INTRIERI PC 219 Fort Pitt Boulevard Pittsburgh, PA 15222-1558 [email protected] Mary O’Melveny Communications Workers of America, AFL-CIO, CLC 501 3rd Street, NW, Suite 800 Washington, DC 20001-2760 [email protected] Counsel for Newspaper Guild of Pittsburg / Communications Workers of America, Local 38061, AFL-CIO, CLC

A courtesy copy of the foregoing brief was also served by e-service upon:

Robert W. Chester Regional Director National Labor Relations Board, Region 6 William S. Moorhead Federal Building 1000 Liberty Avenue, Room 904 Pittsburgh, PA 15222

/s/ Edward A. Brill Edward A. Brill



13.

AMICUS BRIEF OF NATIONAL RIGHT TO WORK LEGAL DEFENSE &

EDUCATION FOUNDATION, INC.

JULY 6, 2012

Documents

“Faculty Unions Revisited: Will Yeshiva Be Reversed or