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 university. 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 administrative hierarchy serves all of the
University's schools, with University-wide policies being
formulated by the central administration upon approval of the Board
of Trustees. However, the individual schools within the University
are substantially autonomous, and the faculty members at each
school effectively determine its curriculum, grading system,
admission and matriculation standards, academic calendars, and
course schedules. Also, the overwhelming 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 proceedings, 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 institution," and accordingly held that the faculty members are
endowed with "managerial status" sufficient to remove them from the
Act's coverage.
Page 444 U. S. 673
Held: The University's full-time faculty members are
managerial employees excluded from the Act's coverage. Pp.
444 U. S.
679-691.
(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 "professional employees" under
§ 2(12) of the Act. Nevertheless professionals may be exempted from
coverage under the judicially implied exclusion for "managerial
employees" when they are involved in developing and implementing
employer policy. Pp.
444 U. S.
679-682.
(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 management because they are expected to
exercise "independent professional judgment" while participating in
academic governance and to pursue professional values, 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
applied 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
judgment acts primarily in his own interest, and does not represent
the interest of his employer. Pp.
444 U. S.
682-690.
(c) The deference ordinarily due the Board's expertise does not
require reversal of the Court of Appeals' decision. This Court
respects the Board's expertise when its conclusions are rationally
based on articulated facts and consistent with the Act, but here
the Board's decision satisfies neither criterion. P.
444 U. S.
691.
582 F.2d 686, affirmed.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and STEWART, REHNQUIST, and STEVENS, JJ., joined. BRENNAN,
J., filed a dissenting opinion, in which WHITE, MARSHALL, and
BLACKMUN, JJ., joined,
post, p.
444 U. S.
691.
Page 444 U. S. 674
MR. JUSTICE POWELL delivered the opinion of the Court.
Supervisors and managerial employees are excluded from the
categories of employees entitled to the benefits of collective
bargaining under the National Labor Relations Act. [
Footnote 1] The question presented is whether
the full-time faculty of Yeshiva University fall within those
exclusions.
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
University Faculty Association (Union) file a representation
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
Page 444 U. S. 675
schools. [
Footnote 2] 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). A Board-appointed hearing officer held hearings over a
period of five months, generating a voluminous record.
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 Trustees and serves
as chief executive officer, assisted by four Vice Presidents who
oversee, respectively, medical affairs and science, student
affairs, business affairs, and academic affairs. An Executive
Council of Deans and administrators makes recommendations to the
President 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. [
Footnote 3]
The faculty participate
Page 444 U. S. 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
informal negotiation and also may make formal recommendations to
the Dean of the affected school or to the President. Such
recommendations are purely advisory.
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 standards, academic
calendars, and course schedules. [
Footnote 4]
Page 444 U. S. 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 decision
is reached by the central administration on the advice of the Dean
or Director, the overwhelming majority of faculty recommendations
are implemented. [
Footnote 5]
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 recently drew up
new and binding policies expanding their own role in these matters.
In addition, some faculties make final decisions regarding the
admission, 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. [
Footnote
6]
Page 444 U. S. 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. The unit included Assistant Deans,
senior professors, and department chairmen, as well as associate
professors, assistant professors, and instructors. [
Footnote 7] 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 considered. 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 individual 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). [
Footnote 8]
Page 444 U. S. 679
The Union won the election and was certified 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
representation 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 circumstances 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 the "crucial role of
the full-time faculty in determining other central policies of the
institution." 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, substantially and pervasively
operating the enterprise."
Ibid. Accordingly, the court
held that the faculty are endowed with "managerial status"
sufficient to remove them from the coverage of the Act. We granted
certiorari 440 U.S. 906 (1979), and now affirm.
III
There is no evidence that Congress has considered 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 commerce."
Page 444 U. S. 680
See NLRB v. Catholic Bishop of Chicago, 440 U.
S. 490,
440 U. S.
504-505 (1979). [
Footnote 9] 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
collegiality "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)
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 medieval
model of collegial decisionmaking, in which guilds of scholars were
responsible only to themselves.
See N. Fehl, The Idea of a
University in East and West 366 (1962); D. Knowles, The Evolution
of Medieval Thought 164-168 (1962). At early universities, the
faculty were the school. Although faculties have been subject to
external control in the United States since colonial times, J.
Brubacher & W. Rudy, Higher Education in Transition: A History
of American 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. [
Footnote 10] For these reasons, the Board
has
Page 444 U. S. 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).
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,
322 U. S.
124-131 (1944). Acting under its responsibility for
adapting the broad provisions 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 bargaining units
composed of faculty members.
C. W. Post Center, 189
N.L.R.B. 904 (1971). [
Footnote
11] The Board reasoned that faculty members are "professional
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). [
Footnote 12]
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
Page 444 U. S. 682
for "supervisors" who use independent judgment in overseeing
other employees in the interest of the employer, [
Footnote 13] or under the judicially
implied exclusion for "managerial employees" who are involved in
developing and enforcing employer policy. [
Footnote 14] 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,
416 U. S.
661-662 (1974);
see NLRB v. Bell Aerospace Co.,
416 U. S. 267,
416 U. S.
281-282 (1974). Because the Court of Appeals found the
faculty to be managerial 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 interpretation.
IV
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 416 U. S. 288
(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 Congress,
which "regarded [them] as so clearly outside the Act that no
specific exclusionary provision was thought necessary." 416 U.S. at
416 U. S.
283.
Page 444 U. S. 683
Managerial employees must exercise discretion within, or even
independently of, established employer policy and must be aligned
with management.
See id. at 286-28 (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. [
Footnote 15]
The Board does not contend that the Yeshiva faculty's
decisionmaking is too insignificant to be deemed managerial.
[
Footnote 16] Nor does it
suggest that the role of the faculty is merely advisory, and thus
not managerial. [
Footnote
17] Instead, it contends that the managerial exclusion cannot
be applied in a straightforward fashion to professional employees
because those employees
Page 444 U. S. 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 vier, must be determined by reference to the
"alignment with management" criterion. The Board argues that the
Yeshiva faculty are not aligned with management because they are
expected to exercise "independent professional judgment" while
participating in academic governance, and because they are neither
"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 university 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.
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, [
Footnote
18]
Page 444 U. S. 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 interest, 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). [
Footnote 19] In their arguments in this case, the Board's
lawyers have abandoned the first and third branches of this
analysis, [
Footnote 20]
which in any event were flatly inconsistent with its precedents,
[
Footnote 21] and have
transformed the second into a theory that does not appear clearly
in any Board opinion. [
Footnote
22]
Page 444 U. S. 686
V
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. When one
considers the function of a university, it is difficult to imagine
decisions more managerial 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. [
Footnote 23]
The Board nevertheless insists that these decisions 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 managerial
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 tension can be resolved by reference
to the "independent professional judgment" criterion
Page 444 U. S. 687
propose in this case. [
Footnote 24] Outside the university context, the Board
routinely has applied the managerial and supervisory exclusions to
professionals in executive positions without inquiring whether
their decisions were based on management policy, rather than
professional expertise. [
Footnote 25] Indeed, the Board has twice implicitly
rejected the contention that decisions based on professional
judgment cannot be managerial. [
Footnote 26] Since the Board does not suggest that the
"independent professional judgment" test is to be limited to
university faculty, its new approach would overrule
sub
silentio this body of Board precedent, and could result in the
indiscriminate recharacteriation as covered employees of
professionals working in supervisory and managerial capacities.
Moreover, the Board's approach would undermine the goal it
purports to serve: to ensure that employees who exercise
discretionary authority on behalf of the employer will not
Page 444 U. S. 688
divide their loyalty between employer and union. In arguing that
a faculty member exercising independent judgment acts primarily in
his own interest, and therefore does not represent the interest of
his employer, the Board assumes that the professional interests of
the faculty and the interests of the institution are distinct,
separable entities with which a faculty member could not
simultaneously 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 educational 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 implemented
by faculty governance decisions.
See K. Mortimer & T.
McConnell, Sharing Authority Effectively 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 institutional 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. [
Footnote 27]
See NLRB v. Scott Paper Co.,
Page 444 U. S. 689
440 F.2d 625; 630 (CA1 1971) (tractor owner-operators);
Deaton Truck Line, Inc. v. NLRB, 337 F.2d 697, 699
(CA51964) (same),
cert. denied, 381 U.S. 903 (1965).
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 crucial policies constrained
only by necessarily general institutional goals. The university
requires faculty participation in governance because professional
expertise is indispensable to the formulation and implementation of
academic policy. [
Footnote
28] It may appear, as the Board contends, that the professor
performing 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.
[
Footnote 29] The large
measure of independence
Page 444 U. S. 690
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.
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. The Board
has recognized 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.
[
Footnote 30] 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. We think these decisions accurately
capture the intent of Congress, and that they provide an
appropriate starting point for analysis in cases involving
professionals alleged to be managerial. [
Footnote 31]
Page 444 U. S. 691
VI
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 apparently
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 pervasively
operat[e] the enterprise." 582 F.2d at 698. We find no reason to
reject this conclusion. As our decisions consistently show, we
accord great respect to the expertise of the Board when its
conclusions are rationally based on articulated facts and
consistent with the Act.
Beth Israel Hospital v. NLRB,
437 U. S. 483,
437 U. S. 501
(1978). In this case, we hold that the Board's decision satisfies
neither criterion.
Affirmed.
* Together with No. 78-997,
Yeshiva University Faculty Assn.
v. Yeshiva University, also on certiorari to the same
court.
[
Footnote 1]
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 (1974).
[
Footnote 2]
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 medical
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
[
Footnote 3]
At Yeshiva College, budget requests prepared by the senior
professor in each subject area receive the "perfunctory" approval
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 approves the school's budget
allocations when discretionary funds are available.
Id. at
626-627. All of these professors were included in the bargaining
unit approved by the Board.
[
Footnote 4]
For example, the Deans at Yeshiva and Erna Michael Colleges
regard faculty actions as binding.
Id. at 248-249,
312-313. Administrators testified that no academic initiative 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 Director 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 "executive arm of the faculty," which had overruled
him on occasion,
id. at 360-361. All decisions regarding
academic matters at the Yeshiva 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.
[
Footnote 5]
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 recommendation had been
overruled.
Id. at 193-194. At Stern College, the Dean in
six years has never overturned a promotion decision.
Ibid.
The President has accepted all decisions of the Yeshiva College
faculty as to promotions and sabbaticals, including decisions
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 Institute 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 both these schools have overridden recommendations made
by the deans. No promotion 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.
[
Footnote 6]
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.
[
Footnote 7]
"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, division
chairmen, senior faculty and assistant 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.
[
Footnote 8]
Identical language had been employed in at least two other Board
decisions.
See infra at
444 U. S.
684-685. In this case, it was not supported by a single
citation to the record. MR. JUSTICE BRENNAN's dissent relies on
this language,
post at
444 U. S. 696,
and adds that a faculty's "primary concerns are academic, and
relate solely to its own professional reputation,"
post at
444 U. S. 701.
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.
[
Footnote 9]
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)
(listing professional employees covered by new statutory provision
without mentioning teachers); S.Rep. No. 105, 80th Cong., 1st
Sess., 11, 19 (1947) (same).
[
Footnote 10]
See the inaugural address of Williams College President
Paul Ansel Chadbourne, quoted in Kahn, The NLRB and Higher
Education: The Failure of Policymaking Through Adjudication, 21
UCLA L.Rev. 63, 70, n. 16 (1973) ("
Professors are sometimes
spoken of as working for the college. They are the
college'") (emphasis in original); 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 administrator as he is the board [of trustees']");
n 4, supra.
[
Footnote 11]
The Board has suggested that Congress tacitly approved the
formation of faculty units in 1974, when the Act was amended to
eliminate the exemption accorded to nonprofit hospitals. Although
Congress appears to have agreed that nonprofit 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.
[
Footnote 12]
The Act provides broadly that "employees" 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
employee" in some detail, 29 U.S.C. § 152(12); and § 9(b)(1)
prohibits the Board from creating 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).
[
Footnote 13]
An employee may be excluded if he has authority over any one of
12 enumerated personnel actions, including hiring and firing. 29
U.S.C. §§ 152(3), 152(11), 164(a). The Board has held repeatedly
that professionals 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).
[
Footnote 14]
NLRB v. Bell Aerospace Co., 416 U.
S. 267 (1974). The Board never has doubted that the
managerial exclusion may be applied to professionals in a proper
case.
E.g., Sutter Community Hospitals of Sacramento, 227
N.L.R.B. 181, 193 (1976);
see General Dynamics Corp., 213
N.L.R.B. 841, 857-858 (1974);
Westinghouse Electric Corp.,
113 N.L.R.B. 337, 339 (1955).
[
Footnote 15]
E.g., Sutter Community Hospitals of Sacramento, supra
at 193;
Bell Aerospace, 219 N.L.R.B. 384, 385-386 (1975)
(on remand);
General Dynamics Corp., supra at 857;
see
NLRB v. Bell Aerospace Co., supra at
416 U. S. 274,
416 U. S.
286-289.
[
Footnote 16]
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
(195) (personnel investigators who made hiring recommendations);
American Locomotive Co., 92 N.L.R.B. 115, 116-117 (1950)
(buyers who made substantial purchases on employer's behalf).
[
Footnote 17]
The Union does argue that the faculty's authority is merely
advisory. But the fact that the administration holds a rarely
exercised veto power does not diminish the faculty's effective
power in policymaking and implementation.
See nn.
4 5
supra. The statutory definition of "supervisor" expressly
contemplates that those employees who "effectively . . . recommend"
the enumerated actions are to be excluded as supervisory. 29 U.S.C.
§ 152(11). Consistent with the concern for divided loyalty, the
relevant consideration is effective recommendation or control,
rather than final authority. That rationale applies with equal
force to the managerial exclusion.
[
Footnote 18]
Two cases simply announced that faculty authority is neither
managerial nor supervisory, because it is exercised collectively.
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 managerial 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).
[
Footnote 19]
Citing these three factors, the Board concludes in each case
that faculty are professional 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 appears
in one concurring opinion.
Northeastern University, 218
N.L.R.B. at 257 (opinion of Member Kennedy).
[
Footnote 20]
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, respectively, "fortif[y]" the Board's view that
faculty 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.
[
Footnote 21]
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.
[
Footnote 22]
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,
332 U. S. 196
(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.
[
Footnote 23]
The record shows that faculty members at Yeshiva also play a
predominant role in faculty hiring, tenure, sabbaticals,
termination and promotion.
See supra at
444 U. S. 677,
and n. 5. These decisions clearly have both managerial and
supervisory characteristics. Since we do not reach the question of
supervisory status, we need not rely primarily on these features of
faculty authority.
[
Footnote 24]
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 employees as required by
the statute. The case did not involve the managerial exclusion, and
has no application to the issues before us.
[
Footnote 25]
See cases cited in nn.
13 and |
13 and S.
672fn14|>14,
supra. A strict "conformity to management
policy" test ignores the dual nature of the managerial role, since
managers, by definition, not only conform to established policies
but also exercise their own judgment within the range of those
policies.
See Bell Aerospace, 219 N.L.R.B. at 395 (quoting
Eastern Camera & Photo Corp., 140 N.L.R.B. 569, 571
(1963)).
[
Footnote 26]
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 specialist who used
interdisciplinary professional skills to run a hospital
department).
[
Footnote 27]
At Yeshiva, administrative concerns with scarce resources and
University-wide balance have led to occasional vetoes of faculty
action. But such infrequent administrative reversals in no way
detract from the institution's primary concern with the academic
responsibilities entrusted to the faculty. The suggestion that
faculty interests depart from those of the institution with respect
to salary and benefits is even less meritorious. The same is true
of every supervisory 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).
[
Footnote 28]
See American Association for Higher Education, Faculty
Participation in Academic Governance 22-24 (1967); Bornheimer,
Burns, & Dumke,
supra at 149-150; Kadish, The Theory
of the Profession and Its Predicament, 58 A.A.U.P.Bull. 120, 121
(1972). The extent to which Yeshiva faculty recommendations are
implemented is no "mere coincidence," as MR. JUSTICE BRENNAN s
dissent suggests.
Post at
444 U. S. 701.
Rather, this is an inevitable characteristic of the governance
structure adopted by universities like Yeshiva.
[
Footnote 29]
The dissent concludes, citing several secondary authorities,
that the modern university has undergone changes that have shifted
"the task of operating the university enterprise" from faculty to
administration.
Post at
444 U. S. 703.
The shift, if it exists, is neither universal nor complete.
See K. Mortimer & T. McConnell, Sharing Authority
Effectively 27-28, 15 162, 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
444 U. S.
702-705. That, after all, is a matter for Congress, not
this Court.
[
Footnote 30]
For this reason, architects and engineers functioning as project
captains for work performed by teams of professionals are deemed
employees despite substantial planning responsibility and authority
to direct and evaluate team members.
See General 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 decisions alleged to be managerial or
supervisory are "incidental to" or "in addition to" the treatment
of patients, a test Congress expressly approved in 1974. S.Rep. No
. 93-766, p 6 (1974).
[
Footnote 31]
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 professors 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
Yeshiva where the faculty are entirely or predominantly
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.
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
Page 444 U. S. 692
supervisors and managerial employees, the Court disagrees with
the determination of the National Labor Relations Board. Because 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 Procrustean 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 confronting 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 universities, 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 congressional intent in this respect by its explicit
inclusion, 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 academic arena, the Act's extension of coverage
to professionals under § 2(12) cannot easily be squared with the
Board-created exclusion of "managerial employees" in the industrial
context.
See generally NLRB v. Bell Aerospace Co.,
416 U. S. 267
(1974).
Primary authority to resolve these conflicts and to adapt the
Act to the changing patterns of industrial relations was
Page 444 U. S. 693
entrusted to the Board, not to the judiciary.
NLRB v.
Weingarten, Inc., 420 U. S. 251,
420 U. S. 266
(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
effectuate 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."
NLRB v. Truck Drivers, 353 U. S.
87,
353 U. S. 96
(1957).
Accord, Beth Israel Hospital v. NLRB, 437 U.
S. 483,
437 U. S. 501
(1978);
NLRB v. Erie Resistor Corp., 373 U.
S. 221,
373 U. S.
235-236 (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. [
Footnote 2/1] 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
Page 444 U. S. 694
Act, but once these criteria are satisfied, the order must be
enforced.
See Beth Israel Hospital v. NLRB, supra, at
437 U. S.
501.
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 "managerial employees." [
Footnote 2/2] 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
444 U. S. 686.
But the academic community is simply not "any other context." The
Court purports to recognize that there are fundamental differences
between the authority structures of the typical industrial and
academic institutions which preclude the blind transplanting of
principles developed in one arena onto the other; yet it
nevertheless ignores those very differences in concluding that
Yeshiva's faculty is excluded from the Act's coverage.
As reflected in the legislative history of the Taft-Hartley
Amendments of 1947, the concern behind 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 unduly
influenced in their selection of leaders by the presence of
management representatives in their union.
"If supervisors were members of and active in the union which
represented the employees they supervised, it could be possible
Page 444 U. S. 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. Metropolitan Life Ins. Co., 405 F.2d.1169, 1178
(CA2 1968). In addition, Congress wanted to ensure that employers
would not be deprived of the undivided 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. [
Footnote 2/3]
Identical considerations underlie the exclusion of managerial
employees.
See ante at
444 U. S. 682.
Although a variety of verbal formulations have received judicial
approval over the years,
see Retail Clerks International 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 operative
the decisions of their employer.'" See NLRB v. Bell Aerospace
Co., 416 U.S. at 416 U. S. 288.
The touchstone of managerial status is thus an alliance with
management, and the pivotal inquiry is whether the employee, in
performing his
Page 444 U. S. 696
duties represents his own interests or those of his employer.
[
Footnote 2/4] If his actions are
undertaken for the purpose of implementing the employer's policies,
then he is accountable to management, and may be subject to
conflicting; loyalties. 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 bargaining.
After examining the voluminous record in this case, [
Footnote 2/5] the Board determined that the
faculty at Yeshiva exercised its decisionmaking authority in its
own interest, rather than "in the interest of the employer." 221
N.L.R.B. 1053, 1054 (175). The Court, in contrast, can perceive "no
justification for this distinction," and concludes that the
faculty's interests "cannot be separated from those of the
institution."
Ante at
444 U. S. 688.
[
Footnote 2/6] 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.
Unlike the purely hierarchical decisionmaking structure that
prevails in the typical industrial organization, the bureaucratic
foundation of most "mature" universities is characterized by dual
authority systems. The primary decisional
Page 444 U. S. 697
network is hierarchical in nature: authority is lodged in the
administration, and a formal chain of command runs from a lay
governing board down through university officers to individual
faculty members and students. At the same time, there exists a
parallel professional network, 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 attributable solely to its collective expertise
as professional educators, and not to any managerial or supervisory
prerogatives. Although the administration may look to the faculty
for advice on matters of professional and academic concern, the
faculty offers its recommendations in order to serve its own
independent interest in creating the most effective environment for
learning, teaching, and scholarship. [
Footnote 2/7] 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
Page 444 U. S. 698
and other managerial policies which the faculty has no part in
developing. The University always retains the ultimate
decisionmaking authority,
see ante at
444 U. S.
675-676, and the administration gives what weight and
import to the faculty's collective judgment as it chooses and deems
consistent with its own perception of the institution's needs and
objectives. [
Footnote 2/8] 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
requirement -- both for professional and nonprofessional 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 Community Hospitals of Sacramento, 227 N.L.R.B. 181,
193 (1976);
Bell Aerospace,
Page 444 U. S. 699
219 N.L.R.B. 384, 385 (1975);
General Dynamics Corp.,
213 N.L.R.B. 851, 857 (1974). [
Footnote
2/9] 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.
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 assessment 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 "representative of management."
[
Footnote 2/10] Unlike industrial
supervisors
Page 444 U. S. 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 competence could depend on his
undivided loyalty to management is antithetical to the whole
concept of academic freedom. Faculty members are judged by their
employer on the quality of their teaching and scholarship, 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):
"[T]he influence which the faculty exercises in many areas of
academic governance is insufficient to make them 'managerial'
employees. Such influence 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 academic freedom. So,
too, intervention by the university 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. [
Footnote 2/11]
Page 444 U. S. 701
The mere coincidence of interests on many issues has never been
thought to abrogate the right to collective 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.
Moreover, the congruence of interests in this case ought not to
be exaggerated. The university administration has certain economic
and fiduciary responsibilities that are not shared by the faculty,
whose primary concerns are academic and relate solely to its own
professional reputation. The record evinces numerous instances in
which the faculty's recommendations have been rejected by the
administration on account of fiscal constraints or other managerial
policies. Disputes have arisen between Yeshiva's faculty and
administration on such fundamental issues as the hiring, tenure,
promotion, retirement, and dismissal of faculty members,
Page 444 U. S. 702
academic standards and credits, departmental budgets, and even
the faculty's choice of its own departmental representative.
[
Footnote 2/12] The very fact
that Yeshiva's faculty has voted for the Union 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 bargaining
-- wages, hours, and other terms and conditions of employment
[
Footnote 2/13] -- the interests
of teacher and administrator are often diametrically opposed.
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
indistinguishable 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 university of today bears
little resemblance to the "community of scholars" of yesteryear.
[
Footnote 2/14] Education has
become
Page 444 U. S. 703
"big business," and the task of operating the university
enterprise has been transferred from the faculty to an autonomous
administration, which faces the same pressures to cut costs and
increase efficiencies that confront any large industrial
organization. [
Footnote 2/15] The
past decade of budgetary cutbacks, declining enrollments,
reductions in faculty appointments, curtailment of academic
programs, 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 institution's decisionmaking process.
[
Footnote 2/16]
Page 444 U. S. 704
These economic exigencies have also exacerbated the tensions in
university labor relations, as the faculty and administration more
and more frequently find themselves advocating conflicting
positions 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
entered into collective bargaining relationships with their
administrations and governing boards. [
Footnote 2/17] 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.
Page 444 U. S. 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, the Court
denies the faculty the protections of the NLRA and, in so doing,
removes whatever deterrent value the Act's availability may offer
against unreasonable administrative conduct. [
Footnote 2/18] 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 "recurring disputes
[will] fester outside the negotiation process until strikes or
other forms of economic warfare occur."
Ford Motor Co. v.
NLRB, 441 U. S. 488,
441 U. S. 499
(1979).
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 responsibilities require
their exclusion, [
Footnote 2/19]
the Board concluded
Page 444 U. S. 706
that Yeshiva's full-time faculty qualify 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 deference due the
Board's determination in this complex area, I would reverse the
judgment of the Court of Appeals.
[
Footnote 2/1]
"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 require protection' involves inquiries for the Board
charged with this duty. Everyday experience in the administration
of the statute gives it familiarity with the circumstances and
backgrounds of employment relationships in various industries, with
the abilities and needs of the workers for self-organization and
collective action, and with the adaptability of collective
bargaining for the peaceful settlement of their disputes with their
employers. The experience thus acquired 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,
322 U. S. 130
(1944).
Accord, NLRB v. Seven-Up Bottling Co.,
344 U. S. 344,
344 U. S. 349
(1953).
[
Footnote 2/2]
Because the Court concludes that Yeshiva's full-time faculty are
managerial employees, it finds it unnecessary to reach the
University's contention that the faculty are also excluded as
"supervisors" under § 2(11).
Ante at
444 U. S. 682.
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.
[
Footnote 2/3]
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 control 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 'independent' 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).
[
Footnote 2/4]
Section 2(11) of the Act requires, as a condition of supervisory
status, that authority be exercised "in the interest of the
employer." 29 U.S.C. § 152(11).
See also NLRB v. Master
Stevedores Assn., 418 F.2d 140 (CA5 1969);
International
Union of United Brewery Workers v. NLRB, 111 U.S.App.D.C. 383,
298 F.2d 297 (1961).
[
Footnote 2/5]
The Board held hearings over a 5-month period and compiled a
record containing more than 4,600 pages of testimony and 200
exhibits.
[
Footnote 2/6]
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 personnel 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.
[
Footnote 2/7]
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 influence in these areas stems from the need to
maintain their own professional standards, and this factor --
common to all professionals -- should not, by itself, preclude
their inclusion in a bargaining unit.
See Westinghouse 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 professionals within the
Act's coverage.
See NLRB v. Bell Aerospace Co.,
416 U. S. 267,
416 U. S. 298
(1974) (WHITE, J., dissenting in part).
[
Footnote 2/8]
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 embedded in an employment relationship for
which they share a concern, or that management 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,
particularly where -- as here -- those recommendations relate to
matters within the unique competence of the employees.
Moreover, insofar as faculty members are given some say in more
traditional managerial decisions such as the hiring and promotion
of other personnel, such discretion does not constitute an adequate
basis for the conferral of managerial or supervisory status.
Indeed, in the typical industrial context, it is not uncommon for
the employees' union to be given the
exclusive right to
recommend personnel to the employer, and these hiring-hall
agreements have been upheld even where the union requires a worker
to pass a union-administered skills test as a condition of
referral.
See, e.g., Local 2 (Catalytic Constr. Co.), 164
N.L.R.B. 916 (1967);
see generally Teamsters v. NLRB,
365 U. S. 667
(1961).
[
Footnote 2/9]
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 consistent exercise of discretion and judgment, else
professionalism would not be involved. Nevertheless, professional
employees plainly are not the same as management employees, either
by definition or in authority, and 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. at 857-858.
[
Footnote 2/10]
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 supervisory personnel.
Compare University of Vermont, 223 N.L.R.B. 423 (1976)
(excluding 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 primarily as instruments of the faculty),
and
Fordham University, 193 N.L.R.B. 134 (1971) (including
department chairmen because they are considered to be
representatives of the faculty, rather than of the administration).
In fact, the bargaining unit approved by the Board in the present
case excluded deans, acting deans, directors, and principal
investigators of research and training grants, all of whom were
deemed to exercise supervisory or managerial authority.
See
ante at
444 U. S. 678,
n. 7.
[
Footnote 2/11]
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 management's own objectives.
[
Footnote 2/12]
See, e.g., App. 740-742 (faculty hiring);
id.
at 232-233, 632, 667 (tenure);
id. at 194, 620, 742-743
(promotion);
id. at 713, 1463-1464 (retirement);
id. at 241 (dismissal);
id. at 362 (academic
credits);
id. at 723-724, 1469-1470 (cutback in
departmental budget leading to loss of accreditation);
id.
at 410, 726-727 (election of department chairman and
representative).
[
Footnote 2/13]
See 29 U.S.C. § 158(d).
[
Footnote 2/14]
See generally J. Brubacher & W. Rudy, Higher
Education in Transition: A History of American Colleges and
Universities, 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 authority," in which university
decisionmaking is seen as the joint responsibility 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 education, an increase in external regulation of
colleges and universities, an increase in emphasis on managerial
skills and the technocratic features of modern management, and a
greater codification of internal decisionmaking procedures. These
changes raise the question whether existing statements of shared
authority provide adequate guidelines for internal governance."
Id. at 269.
[
Footnote 2/15]
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 private
institution, received over $34 million in revenues from the Federal
Government.
Id. at 132 (Table 127).
[
Footnote 2/16]
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
levels. Hansen, An Era of Continuing Decline: Annual Report on the
Economic Status of the Profession, 1978-1979, 65 Academe: Bulletin
of the American Association of University Professors 319, 323-324
(1979). Moreover, 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
averages 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
increases. App. 1459.
[
Footnote 2/17]
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
Institutions of Higher Education i-ii (1979). Although 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 employers to bargain with duly constituted
bargaining agents. Mortimer & McConnell,
supra,
444
U.S. 672fn2/14|>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
actually practiced. As the Carnegie Commission found,
"[u]nionization for [faculty] is more a protective than an
aggressive act, more an effort to preserve the
status quo
than to achieve a new position of influence and affluence. . .
."
Carnegie Commission on Higher Education, Governance of Higher
Education 40 (1973).
See also Mortimer & McConnell,
supra, 444
U.S. 672fn2/14|>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).
[
Footnote 2/18]
The Carnegie Commission, in concluding that "faculty members
should have the right to organize and to bargain collectively, if
they so desire," Carnegie Commission on Higher Education,
supra at 43, observed:
"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 conflict."
Id. at 51.
[
Footnote 2/19]
Contrary to the Court's assertion,
see ante at
444 U. S. 685,
the Board has not abandoned the "collective authority" and
"ultimate authority" 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 rationales are significant because they highlight two
aspects of the university decisionmaking process relevant to the
Board's decision: that the faculty's influence is exercised
collectively -- and only collectively -- indicates that the
faculty's recommendations embody the views of the rank and file,
rather than those of a select group of persons charged with
formulating and implementing management policies. Similarly, that
the administration retains ultimate authority merely indicates that
a true system of collegiality is simply not the mode of governance
at Yeshiva University.