Point Park University v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 17, 2006 Decided August 1, 2006

No. 05-1060

POINT PARK UNIVERSITY,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

NEWSPAPER GUILD OF PITTSBURGH/COMMUNICATIONS

WORKERS OF AMERICA, LOCAL 38061,

INTERVENOR

Consolidated with

05-1081

On Petition for Review and

Cross-Application for Enforcement

of an Order of the National Labor Relations Board

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

2

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. Ferguson, Assistant General Counsel,

Aileen A. Armstrong, 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: In NLRB v. Yeshiva University,

444 U.S. 672 (1980), the Supreme 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 arguments. College

and university administrations typically argue that their

faculties’ involvement in academic 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 managers. The

union argues they are not. Yeshiva and our explanation of its

application in LeMoyne-Owen College 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

3

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 explanation 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 Performing 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 member of that board, a vice president of

academic affairs who also serves as dean of the faculty, 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 Pittsburgh/

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 contested the petition, arguing that all its full-

time faculty members were managerial employees and that some

of the full-time faculty were supervisors,1 both barred by the Act

1

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

4

from organizing a union. The Regional 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, absolute 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.2

The University filed with the Board a timely request for

review of the Regional Director’s decision, see 29 C.F.R.

§ 102.67, arguing that the decision departed 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

Walsh, Head of Graduate Studies; and (4) William Moushey,

Executive Director of the Innocence Institute.

2

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

concluded that neither Robin Walsh nor William Moushey were

supervisors or managerial employees. Petitioners do not dispute these

findings and conclusions.

5

University, alleging that it had violated Sections 8(a)(1) and (5)

of the Act, 29 U.S.C. § 158(a)(1), (5),3 by “fail[ing] and

refus[ing] to recognize and bargain with the Union.” In defense

of its conduct, Point Park challenged the Board’s decision to

certify the Union and asked the Board to reopen the record to

consider additional, newly discovered 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.

Point Park filed a timely petition for review with this Court,

and the Board filed a cross-application for enforcement of the

Board’s order. Point Park’s petition brings “the entire NLRB

proceeding—including the Regional Director’s underlying

decision 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

(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

3

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 collectively

with the representatives of his employees.” 29 U.S.C. § 158(a).

6

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 Relations Act, might instead be barred by the

Act from organizing a union.4 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 application of Yeshiva’s analysis is so important to

the proper resolution of this case.

As enacted in 1935, the National Labor Relations Act

broadly authorized “any employee,” excluding agricultural

laborers and domestic servants, to organize 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 language even supervisors enjoyed the protection

of the Act. Packard Motor Car Co. v. NLRB, 330 U.S. 485,

489-90 (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 . . .

4

See Marina Angel, Professionals and Unionization, 66

MINN. L. REV. 383, 447-455 (1982).

7

any individual employed as a supervisor”), but also explicitly

included 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 employees vote for inclusion in such unit”). From

the time the Board first asserted jurisdiction over a university’s

faculty in 1971 until the Supreme Court decided Yeshiva in

1980, the Board considered faculty members at institutions of

higher learning “professional employees” whose union activities

were protected 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 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 (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. Managerial

employees, who cannot form or join a union, were those who

“formulate and effectuate management policies by expressing

and making operative the decisions of their employer.” Id. at

288 (quotation marks omitted). The key inquiry, the Court later

explained, was whether employees were “aligned with

management.” Yeshiva, 444 U.S. at 683 (citing Bell Aerospace,

416 U.S. at 286-87).

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,

8

and managerial employees, who may not.5 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 determine 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 person is ‘managerial’ is

to be determined on a case-by-case basis after close examination

of the duties performed by the person in question while

occupying a position alleged to be ‘managerial.’”).

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, regarding

such matters as student recruitment and admissions, completion

of degree requirements, and curriculum, clearly is indicative of

professional, rather than managerial status”); Ne. Univ., 218

N.L.R.B. 247, 257 (1975) (“The existence of . . . ‘shared

5

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 employees merely

by virtue of their professional status, or because work performed in

that status may have a bearing on company direction”); Case Corp.,

304 N.L.R.B. 939, 948 (1991) (“technical and professional employees

plainly are not the same as managerial employees either by definition

or in authority”); General Dynamic Corp., 213 N.L.R.B. 851, 857

(1974) (distinguishing professional employees from managerial

employees who occupy “executive-type positions [and] are closely

aligned with management as true representatives of management”).

9

authority’ may well indicate that faculty members are

‘professionals,’ but it does not necessarily make them

‘managerial.’”).

As long as faculty were understood to be professional

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 held for the first time that some faculty

members, even though they are professional employees, may

also be “managerial employees,” barred by the Act from union

activities. 444 U.S. at 691.

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 determined “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 employees” excluded from the Act or

“professional employees” 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.6 The

6

See id. at 676 (“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.”) (emphasis added); id. at 686 (“They effectively

decide which students will be admitted, retained, and graduated.”)

10

key inquiry is “how a faculty is structured and operates.” Id. at

690 n.31 (emphasis added). The Board’s task under Yeshiva is

made more difficult by the fact, frankly acknowledged by the

Court in Yeshiva, that the Act is not easily applied to labor

relations in the university setting:

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 (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 professional employee

in the “pyramidal hierarchies of private industries.” See id.

That is by its very nature a fact-bound inquiry.

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,

(emphasis added); id. at 691 (“[T]he faculty of Yeshiva University, in

effect, substantially and pervasively operat[e] the enterprise.”) (citation

omitted, quotation marks omitted, and emphasis added).

11

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 (emphasis

added). The Court determined, however, that the faculty 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:

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.

Id. at 686. 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.

Specifically, 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

12

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 Regional Director nor the Board discussed

these precedents.

We found such silence insufficient and remanded the case

for the Board to provide a more fulsome 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 argument,” 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 education 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.

13

B.

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

deferential, 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 discretion given to it by

Congress, it must ‘disclose the basis of its order’ and ‘give clear

indication that it has exercised the discretion with which

Congress has empowered it.’” NLRB v. Metro. Life Ins. Co.,

380 U.S. 438, 443 (1965) (citation omitted). We are, however,

“indulgent 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.

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 (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 (1943); Village of

Winnetka, Ill. v. FERC, 678 F.2d 354, 357 (D.C. Cir. 1982).

14

Here, both the Board and the Regional Director failed to do

what Yeshiva and LeMoyne-Owen mandate: explain “which

factors are significant and which less so, and why” in their

determination that the faculty at Point Park were not

“managerial employees.” 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 suggest they are

not. In analyzing these findings, the Regional Director

mentioned some of the academic factors relied upon by the

Supreme Court in its managerial 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

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, 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 Regional

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

15

upon and his reasoning for doing so. Faced with this

“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 observation, stated in the form of a conclusion, does not

substitute for the fact-specific analysis called for by Yeshiva 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 certainly 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 review. 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. LeMoyne-Owen held that the Board must

clearly explain 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.

16

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 responsive

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 Director 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 November 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 enforce its subpoena when the

Union responded with a partial production and (2) moving to

immediately reopen the hearing when it received the belated

production in September 2004.

Point Park argues the “Board’s failure 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.” Lakeland Bus

Lines, Inc. v. NLRB, 347 F.3d 955, 961 (D.C. Cir. 2003)

17

(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 evidence from which

conflicting inferences could be drawn.’” Id. at 962 (quoting

Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)).

The Board’s findings are not “supported by substantial

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 enforcement,” 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 responsive 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,”

Universal Camera Corp., 340 U.S. at 487, 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.