Petition — Trustees of Boston University v. National Labor Relations Board

Supreme Court brief1980

Ask Donna

What actually matters in this document.

Text

| “Supreme Court, Vv Ss.

( FiLiLD

Jut Li

——_——_—_—______- cul nK_|

Supreme Court of the United States.

October Term, 1978.

oy U8 -67

TRUSTEES OF BOSTON UNIVERSITY,

Peririoner,

NATIONAL LABOR RELATIONS BOARD,

ResPpONDENT.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the First Circuit.

Aan §. Mruuer,

99 High Street,

Boston, Massachusetts 02110.

(617) 542-6789

Rromarp W. Guierson

Sroneman, CHANDLER AND MILLER

Of Counsel

Addison C, Getchell, Law Printers, Boston.

Table of Contents.

Opinions below

Jurisdiction

Questions presented

Statute involved

Statement of the case

A. The Board proceedings

B. The Court of Appeals decision

Reasons for granting the writ

The case presents important issues never ad-

dressed by this court involving the application

of the National Labor Relations Act to alter the

role of the faculty in the basic governance struc-

ture of private universities

1. The decision of the National Labor Relations

Board, which was given force and effect by

the Cireuit Court, arbitrarily excluded the

faculty of Boston University’s Schools of

Law, Medicine and Graduate Dentistry from

a university-wide collective bargaining unit.

In making its determination, the Board failed

to consider the unique characteristics of uni-

versity faculty which require a comprehen-

sive unit

2. The Board erroneously found that because

the authority of department chairmen is exer-

cised in the collegial context, typical of aca-

demic institutions, the chairmen do not con-

stitute supervisors or managerial employees

under the Act. This determination serves

to deprive the University of a critical group

necessary to the formation and implementa-

tion of University policy

ow nwo wD FE

ct aig Aaa a aac cers

ii TABLE OF AUTHORITIES CITED

3. The Board’s rule that department chairmen

who admittedly exercise supervisory author-

ity over non-unit employees do not qualify as

supervisors solely because’the exercise there-

of consumes less than 50% of the chairman’s

time conflicts with the language and legisla-

tive history of Section 2(11) 26

Conclusion 34

Appendix A 35

Appendix B 57

Appendix C 77

Appendix D 119

Table of Authorities Cited.

Cass.

Adelphi University, 195 NLRB 639 fart 21, 22, 31,

32, 33

Amalgamated Clothing Wkrs. of America, 210 NLRB

928 (1974) 28

Automobile Club of Missouri, 209 NLRB 614 27

C. W. Post Center of Long Island University, 189

NLRB 904 (1971) 21, 22

Claremont Colleges, 198 NLRB 811 (1974) 17, 32

Cornell University, 183 NLRB 329 (1970) 20

Fairleigh Dickinson University, 205 NLRB 673

(1973) 17, 21, 22

Fairleigh Dickinson University, 227 NLRB 239

(1976)

Florida Southern College, 196 NLRB 888 (1972) 21

Fordham University II, 214 NLRB 971 (1974) 11, 21

TABLE OF AUTHORITIES CITED lii

ae Sugar Company, 137 NLRB 551

) 29, 30, 31

Kalamazoo Paper Box Corp., 136 NLRB 134 (1962) 16, 19

L & S Construction Company, Inc., 155 NLRB 524 ;

1965) 16

Tawa (Brooklyn Center), 198 7

me | bi ad ae Corporation v. NLRB, $21 #

roo and Ontario Paper Co., 92 NLRB 711 x

Mourning v. NLRB, 559 F. 2d 768 (D.C, Cir. 1977) 27

NLREB vy. Bell Aeorospace Co., 416 U.S. 267 ( 1974) 24

NLBEB vy. Magnesium Casting Co

» 42

oe hes g Co., 427 F, 2d 114 (1st :

NLBB v. Mercy College, 536 F, 2d 544 (2d Cir, 1976) me

NLRB v. Metropolitan Life Ins, Co., 380 U.S. 438

(1965) 17

NLBEB v. Metropolitan Life Ins

. Co., 405

(2nd Cir. 1968) bariiniite 24, 25

New York University (I), 205 NLRB 4 (1973) 21

New York University (II), 221 NLRB 1148 (1975) 21

Northeastern University, 218 NLRB 247 (1975) 19, 21

Ohio Power Co. v. NLRB 176 F. 2d 385 (6th Cir

1949) cert. denied, 338 U.S. 899 (1949) 22, 29

Pittsburgh Plate Glass Com ;

pany v. NL

saa os y RB, 313 U.S. ‘

Point Park College, 209 NLRB 1064 (1974) 21

Rensselaer Polytechnic Instit

ute, 2

mes e, 218 NLRB 1435 ‘

L..

iv TABLE OF AUTHORITIES CITED

Rosary Hill College, 202 NLRB 1137 (1973) 21

Russel 8S. Kribs Associates, Inc., 181 NLRB 1009

(1970) 25

Sewell, Inc., 207 NLRB 325 (1973) 29

Swift & Company, 129 NLRB 1391 (1961) 29

Syracuse University, 204 NLRB 641 (1973) 17, 21, 22

Tusculum College, 199 NLRB 566 (1971) 21

University of Chicago Library, 13-CA-11447, modi-

fied; 205 NLRB No. 44 32

University of Detroit, 193 NLRB 566 (1971) 21

University of Vermont and State Agricultural Col-

lege, 223 NLRB 423 (1976) 21

Weather Seal Inc., 161 NLRB 1226 (1966) 25

Westinghouse Electric Corporation, 163 NLRB 723

(1967), enforced 424 F’, 2d 1151 (7th Cir. 1970) 30, 31

Yeshiva University, 221 NLRB 1053 (1975) 21

STaTuTes.

28 U.S.C. § 1254(1) 2

29 U.S.C. §§ 151 et seq., 61 Stat. 136, 73 Stat. 519,

National Labor Relations Act 2, 12, 18n.,

19, 20, 22, 23, 24, 26,

27, 29, 33, 119

MISCELLANEOUS.

Kahn, The N.L.R.B. and Higher Education: The

Failure of Policymaking through Adjudication, 21

U.C.L.A. Law Rev. 63 (1973) 18, 32

1 Legislative History of Labor Management Act,

1947, p. 409 (Senate Report No. 105 on S, 1126) 28

TABLE OF AUTHORITIES OITED

1 Legislative History of the Labor Management Re-

lations Act, 1947, at 305 (House Report No. 245 on

H. R. 3020)

2 Legislative History of Labor Management Re-

lations Act, 1947, p. 1008 (Remarks of Senator Taft)

Moore, The Determination of Bargaining Units for

College Faculties, 37 U. Pitt L. Rev. 43 (1975)

Supreme Court of the United States.

October Term, 1978.

No.

TRUSTEES OF BOSTON UNIVERSITY,

PETITIONER,

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT,

Petition for a Writ of Certiorari to the

United States Court of Appeals for the First Circuit.

The Trustees of Boston University pray that a writ of

certiorari issue to review the judgment of the United States

Court of Appeals for the First Circuit entered in this case

on April 13, 1978.

Opinions Below.

The opinion of the Court of Appeals is reported at — F., 2d

—, 98 LRRM 2070 (1978) and is reproduced in Appendix A,

infra, pp. 35-55. The decision and order of the National

Labor Relations Board is reported at 228 NLRB No, 120

and is reproduced in Appendix B, imfra, pp. 57-75. The

Board’s decision and direction of election in the underlying

representation proceeding is unreported and is reproduced

in Appendix ©, infra, pp. 77-118,

Jurisdiction.

The judgment of the Court of Appeals was entered on

April 13, 1978. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1254(1).

Questions Presented.

1. Whether the exclusion of the Law, Medical and Dental

faculty from an otherwise comprehensive unit of full-time

University faculty was proper where all faculty share a sub-

stantial community of interest and where the Board failed

to consider that the excluded faculty had fully participated

in the University’s governance system and where they

would be deprived of a continued voice in University affairs

due to the fact that the governance system would be effec-

tively replaced by the bargaining agent.

2. Whether the fact that the University’s department

chairmen exercise their supervisory authority in a collegial

context deprives them of their status as supervisors or man-

agerial employees under the National Labor Relations Act.

3. Whether the National Labor Relations Board’s rule

that chairmen who admittedly exercise supervisory author-

ity over non-unit employees do not qualify as supervisors

solely because they spend less than 50% of their time in

such duties violates §§ 14(a) and 2(11) of the National

Labor Relations Act.

Statute Involved.

The relevant provisions of the National Labor Relations

Act, as amended (29 U.S.C. §§ 151, et seq., 61 Stat. 136, 73

Stat. 519 (‘‘the Act’’), are reproduced in Appendix D,

infra, pp. 119-120,

Statement of the Case.

A. Tae Boarp Proceseprnas,

1, The Representation Case. On October 18, 1974, the

Boston University Chapter of the American Association of

University Professors (‘‘AAUP”’ or ‘‘the Union’’) filed

a petition for certification requesting a unit of all full-time

faculty including department chairmen, excluding the

faculty of the Schools of Law, Medicine and Dentistry, The

University contended that the unit petitioned for was in-

appropriate because it excluded faculty of the Law, Medical

and Dental Schools and also excluded all part-time faculty.’

The University further argued that department chairmen

were supervisors or managerial employees within the mean-

ing of the Act and therefore must be excluded.

The representation hearing conducted by the Board’s

Regional Director to determine the appropriate unit dis-

closed the following facts material to this petition:

Boston University is composed of 16 Schools and Colleges,

14 of which are located on the Charles River Campus (Tr.

3435; Er. Exh, 2).2 The Schools of Medicine and Graduate

Dentistry are located at the Boston University Medical

Center, approximately a mile and a quarter from the

Charles River Campus (Tr. 40-61). Of the 16 Schools, the

School of Theology, School of Law, School of Medicine,

School of Graduate Dentistry, School of Social Work, and

the Graduate School confer only graduate degrees, The

Colleges of Basic Studies and Liberal Arts are two and four

year undergraduate programs, respectively. The remain-

1The University sought to include part-time faculty with either

three-quarter status or University voting rights.

2‘«Tr.’’ references are to pages of the transcript of the represent-

ation hearing before a Hearing Officer of the National Labor Rela-

tions Board. ‘‘ Er. Exh,’’ references, in turn, are to Employer Ex-

hibits introduced at the hearing.

ing Schools — the School of Education, School of Manage-

ment, College of Engineering, School for the Arts, School

of Public Communication, Metropolitan College, School of

Nursing, and Sargent College of Allied Health Professions

—offer both graduate and undergraduate programs (Tr.

38-39).

Student enrollment at the University is approximately

24,500 and there are approximately 2,200 instructional per-

sonnel (Tr. 125). Faculty members often hold appoint-

ments to and teach in more than one School (Tr, 126), and

various faculty are appointed to both Schools included in

the bargaining unit as well as to one of the excluded Schools.

The faculty of the University share common employment

conditions, including a tuition remission program, life and

health insurance, travel and accident insurance, personal

and family accident insurance, disability insurance, retire-

ment and sick leave benefits (Tr. 1893; Er. Exh. 23). Tie

faculty, moreover, are compensated monthly (Tr. 127), have

uniform position titles and are subject to similar hiring,

promotion and tenure procedures.

The faculty of all Schools participate in the University’s

governance structure. Voting members of all Schools, in-

cluding Law, Medicine and Dentistry, constitute the Faculty

Senate and are eligible for election to the Senate Council.

The Council, as a body and especially through its commit-

tees, considers and makes recommendations on virtually

every topic affecting the University (Tr, 91-93). The Com-

mittees range in scope from Appointments, Promotions,

Tenure and Salaries, to Budget, to Academic Policies and

Procedures, to Grievance. In addition, the Sete Council

is represented on search committees for various) positions,

including those charged to recommend candidates for dean-

ships.

—_—————

The Law School

Boston University’s Law School is located in the center

of the Charles River Campus, sharing with the School of

Education a building designated the Law-Education Tower

(Tr, 1862; Er, Exh, 1). The Dean of the Law School reports

to Academic Vice-President Doner who also has jurisdiction

of the College of Liberal Arts, the Graduate School, School

of Education, Public Communication, Engineering, Metro-

politan College and Basic Studies, the faculty of which are

all included in the collective bargaining unit (Er, Exh. 8).

The Dean of the Law School is a member of the University

Council, composed of the President, Vice Presidents and

Deans of every School, which meets monthly to advise the

President on academic matters (Tr. 1797-1798).

University-wide budgetary procedures and policies con-

cerning expenditure requests, travel funds and payment of

extra compensation for overload or summer term teaching

apply to the Law School (Tr, 1868, 1872; Er. Exh, 132).

Moreover, hiring, evaluation, promotion and tenure pro-

cedures, eligibility for fringe benefits and personnel rules

generally, including salary procedures and retirement

policy, are uniform throughout the University system, in-

cluding the Law School (Tr. 1893, 1799-1804, 1878; Er. Exh.

23).

There exists a significant amount of instructional integra-

tion between the Law School and other Schools of the Uni-

versity. Not only do several law students take courses in

Schools other than the Law School, but 119 non-law students

were enrolled in law courses. In addition, the Law School

and the College of Liberal Arts jointly administer a six

year law degree program, and the University sponsors a

Center for Law and Health Sciences which draws its faculty

from the Schools of Law, Medicine, Nursing and Sargent

College of Allied Health Professions (Tr. 68).

— — CS t—

Faculty of the Law School participate significantly in

University governance and in the activities of University

committees, For example, the Law School has representa-

tives on thirteen University committees including the Ap-

pointments, Promotion, Tenure and Salaries Committee,

the Academic Advisory Committee and the Calendar Com-

mittee (Er, Exh, 127; Tr, 1804-1821) and has been regularly

and routinely represented on search committees for a

variety of positions in other University Colleges or their de-

partments (Tr. 1804-1821).

The Meeical and Dental Schools.

The Boston University Medical Center, containing the

Schools of Medicine and Graduate Dentistry, is located in

Boston approximately one mile and a quarter from the

Charles River Campus (Tr. 45). The Deans of Medicine and

Dentistry report to Dr. Richard Egdahl, Academic Vice-

President for Health Affairs, who also has jurisdiction over

the Schools of Nursing, Social Work and Sargent Col-

lege of Allied Health Professions, the faculty of which

were included by the Board in the unit. The Deans of Medi-

cine and Dentistry, like their counterparts in each of the

University’s other Schools, are part of the University

Council (Tr, 1699-1701),

University personnel practices, including appointment

and nonreappointment procedures, salary adjustment, re-

tirement policies, eligibility for fringe benefits, evaluations,

promotions and sabbatical policies, apply with equal force

to the Medical and Dental Schools (Tr. 1681-1682, 1687-

1688, 1697-1699, 1893; Er. Exhs, 23, 113, 120, 139).

As is the case with the Law faculty, the Medical and Den-

tal faculty participate fully in a variety of instructional pro-

grams with their colleagues from Schools whose faculty

members were included in the unit (Tr, 1742, 95-96). Mem-

bers of the Medical faculty teach at the Charles River

Campus, including the Center of Law and Health Sciences.

A six year liberal arts and medical education program is of-

fered jointly by the School of Medicine and the College of

Liberal Arts, and a two year program is jointly sponsored

by the Dental School and Metropolitan College (Tr. 94, 117-

118; Mr, Exh, 20). In addition, faculty in the Health Educa-

tion program have joint appointments to the Medical

School, while Sargent College offers a combined program

in nutrition in which faculty from Sargent, the Schools of

Nursing, Medicine, Education and Dentistry participate,

Moreover, members of the Medical and Dental faculty par-

ticipate significantly in graduate programs in chemistry and

biology, as well as in the Division of Medical and Dental

Sciences of the Graduate School of which 80 to 85 Medical

and Dental faculty are members (Tr. 97-98, 174-175),

Furthermore, like their colleagues in the Law School,

Medical and Dental faculty participate significantly in Uni-

versity governance and in the activities of University com-

mittees (Tr, 92-93, 1703; Er, Exhs, 122, 127).

Department Chairmen at Boston University,

Initially, department chairmen are appointed by the dean

of their School or College. Appointments are typically for

renewable three year terms, and some chairmen have served

for over a decade. Appointments are based upon several fac-

tors, including professional reputation, expertise, and abil-

ity to recruit new faculty and ‘‘manage a professional staff

within departments’? (Tr, 583), Moreover, chairmen are

sometimes recruited from outside the University (Er, Exh.

89 A, B). While the faculty may serve on search committees

or otherwise participate in the appointment procedure, the

appointment recommendation is by the dean and does not

necessarily reflect a consensus of the departmental faculty,

None of the chairmanships is either rotating or elective, and

final authority for the appointment rests with the President

and Trustees,

Chairmen are responsible for identifying and justifying

the necessity of additional faculty, typically in consultation

with the dean. Thereafter, chairmen recruit, screen and

recommend cand‘*ates. The degree of participation of the

faculty in the recruitment and screening process can vary

directly with the rank and anticipated salary of the vacancy,

but whatever the search procedu~es utilized, the appoint-

ment recommendation is the sole responsibility of the de-

partment chairman. The chairman also recommends an

initial salary for the appointee (Tr, 1105-1106). The chair-

men’s recommendations are variously accorded **strong

weight’? (e.g., School of Public Communication — Tr. 338),

are ‘invariably followed’’ (e.9., School of Management —

Tr, 589), are ‘‘almost one hundred percent effective’’ (e.g.,

School of Medicine — Tr, 1481), or are followed ‘‘in all

cases’’ (e.g., School of Engineering — Tr, 437),

The hiring of part-time faculty is far less formal than

that of their full-time counterparts and the department

chairman is often the only member of the department or the

administration to interview the candidate (Tr, 589-590,

2605). Typically, the department chairmen recommend the

hiring of part-time faculty without any prior consultation

with department faculty, and the recommendation is undis-

putably effective (Tr. 438, 340, 948).

Chairmen are also empowered to recommend effectively

salary increases, reappointment, promotion and tenure.

Salary recommendations are typically accomplished without

consultation with the faculty (Tr. 2805-2808, 1296-1300,

2603-2604, 2813, 2868). As to reappointment or nonreap-

pointment of untenured faculty, the record establishes that

chairmen are solely responsible for developing and submit-

ting recommendations. Although chairmen may review

with senior faculty members the performance of junior col-

leagues, the final recommendation is the chairman’s alone

(Tr, 657-658). The chairmen also play a critical role in the

promotion and tenure procedures (Tr. 1129, 1131). In addi-

tion, chairmen have the power to reprimand faculty mem-

bers, adjudicate their disputes, and discuss with them stu-

dent complaints (Tr, 2822-2823, 3065, 1300),

In the chairmen’s role as principal administrators of

their departments, the chairmen typically attend regularly

scheduled meetings with the deans of their schools — at

which none of the faculty is present — to consider a va-

riety of policy questions, including budgetary matters,

criteria for the recommendation of salary increments, cur-

riculum development and personnel procedures and prac-

tices (Tr. 335-336, 430-431, 533, 1102-1103, 1282, 1426,

1475). Additionally, deans and associate deans often con-

fer individually with department chairmen to review di-

verse issues,

Chairmen play a significant role in the preparation of

their departmental budgets and, once established, the

budget is managed solely by the department chairmen who

retain substantial flexibility within budgetary lines; rec-

ommend to the deans modification thereof ; and allocate

funds for speeches, symposia, supplies, and travel expenses

for faculty members (Tr. 969-970, 1133-1134, 2925-2926).

The administrative responsibilities of chairmen include

the assignment of faculty to courses, scheduling courses,

reconciling conflicts and assigning student advisers. In

conjunction with their control over scheduling, depart-

ment chairmen are also responsible for arranging cover-

age of classes in the event that the regularly-assigned fac-

ulty member cannot attend because of illness, personal

business or participation in professional conferences. In-

deed, faculty requests to attend or to participate in pro-

fessional meetings are subject to the approval of the chair-

man. Requests for extended leave or sabbaticals, in turn,

are similarly submitted to the chairman who then forwards

a recommendation to the dean (Tr. 1127-1128, 2873-2874).

Finally, in recognition of their non-instructional duties,

chairmen enjoy a significantly reduced teaching load and

their level of compensation reflects their status (¢.g., Tr.

324, 1270-1271, 1075; Ex. Exhs. 95, 96). In connection there-

with, department chairmen enjoy several incidental bene-

fits, including their own secretaries, larger and better-

equipped offices, and more importantly, control of support

personnel* over whom they exercise virtually the full

range of supervisory authority (Tr. 1095-1097, 1099-1100;

Er, Exh. 91),

The Representation Decision.

The Board, adopting pro forma the findings of the Re-

gional Director, concluded that the ‘‘law school faculty con-

stitutes an identifiable group of employees whose separate

community of interest is not irrevocably submerged in the

broader community of interest that they share with other

faculty members . . .’’ and that a collective bargaining

unit excluding Law School faculty would be appropriate

(Appendix C, infra, p. 110), Likewise, the Board adopted

the Regional Director’s findings that the faculty of the

Medical and Graduate Dental Schools did not share a

community of interest with the rest of the faculty ‘‘so in-

terwoven”’ as to render their exclusion inappropriate (Ap-

pendix C, infra, p. 115).

The Board similarly adopted the Regional Director’s

conclusion that department chairmen are not supervisors

largely because the record allegedly disclosed:

* The chairman’s support complement may range in number from

a single secretary to several clericals, technicians and administ®a-

tive assistants (Tr. 1498-1499). Regardless of the number, support

personnel are subject to reprimand or termination by the chairman,

who also retains the authority, inter alia, to assign work or recom-

mend salary adjustments,

‘*. . . collective rather than authoritarian action, most

of which is not only reviewable on the higher adminis-

trative levels, but which in significant numbers of

cases has been shown to be ineffective . . .”’ (Appen-

dix ©, infra, pp. 94-95).

The Board went on to find that although department chair-

men did exercise the requisite supervisory authority with

respect to non-unit and support personnel, this did not make

them supervisors for they spent less than 50% of their

time engaged in such supervision. The chairmen were not

found to be managerial employees based on the Board’s

finding that their interests are more akin to faculty than

to the administration (Appendix ©, infra, p.. 85). In

support of its conclusion, the Board cited a single case —

Fordham University II, 214 NLRB 971 (1974),

From among a total faculty of approximately 2,200, an

election was directed among full-time faculty excluding

Law, Medicine and Dentistry, and including department

chairmen, Two Board members dissented (Appendix C,

infra, p. 118). The Union won the election by a margin

of 394 to 262, and, on August 13, 1975, was certified by

the Board as the exclusive bargaining agent.

2. The Unfair Labor Practice Case. On or about August

27, 1975, the Union requested that the University engage

in collective bargaining —a request which the University

denied because it believed that the certification was in-

valid. The Union thereupon filed unfair labor practice

charges with the Board, and the General Counsel moved

for summary judgment against the University. On March

27, 1977, the Board issued its Decision and Order, con-

cluding that the issues sought to be litigated by the Uni-

versity were or could have been litigated in the prior rep-

resentation proceeding (Appendix B, infra, pp. 62-63),

Finding that no litigable issue was presented, the Board

granted summary judgment against the University and or-

dered the University to cease and desist from its unfair

labor practices, to bargain with the Union upon request,

and to post appropriate notices.

B. Tue Court or Appears Decision.

The Court of Appeals enforced the Board’s order. The

Court found that the Board had not abused its aoe

in excluding the faculty of the Law, Medical and sense e

Dental Schools from the bargaining | unit. ne ws

Board ‘‘a large measure of informed discretion,’’ the Cou

also ruled that the Board was entitled to find that . ond

men were acting in the interests of the faculty and vo

of the employer and that the authority exercised by the

chairmen was the result of consultation with the een’

The Court further found that the department chairmen 5

authority over non-unit and support personnel did not cause

them to be either supervisors or managerial employees.

Reasons for Granting the Writ.

Tue Case Presents Imvortant Issuers Never ApprEssED

py Turis Court Invo.vine THE APPLICATION OF THE Na-

TIONAL Lasor Revations Act to ATER THE Roue or THE

Facuutty in THE Basic Governance Structure or Pri-

VATE UNIVERSITIES.

1. The Decision of the National Labor Relations Board,

Which Was Given Force and Effect by the Circutt Cows,

Arbitrarily Excluded the Faculty of Boston University 8

Schools of Law, Medicine and Graduate Dentistry From

a University-wide Collective Bargaining Unit. In Mak-

ing Its Determination, the Board Failed to Consider the

Unique Characteristics of U niversity Faculty Which Re-

quire a Comprehenswe Unit.

inati d to by the

The determination of the Board, deferre

Court, which excludes the faculty of the Law, Medical and

Graduate Dental Schools from an otherwise comprehensive

unit of full-time University faculty has two principal

faults: first, applying the standards for unit determina-

tions developed by the Board in its experience with the in-

dustrial sector, it is an arbitrary and irrational grouping

which is unsupported by the record and conflicts with

well-established Board policies; second, the Board has

failed to consider in its determination the unique charac-

teristics of a university faculty which independently re-

quire a single unit of all full-time faculty,

On the basis of the facts briefly outlined in the State-

ment, supra, pp. 3-7, we submit that the uniformity of

employment conditions, interchange of faculty, instruc-

tional integration, centralization of administration, and

participation of the excluded faculty in a university-wide

system of governance rationally foreclose carving out from

an otherwise comprehensive unit the Schools of Law, Med-

icine and Graduate Dentistry,

The ‘‘professional’’ faculty at these three Schools share

with their colleagues elsewhere at the University a far

greater similarity than dissimilarity of employment con-

ditions and concerns. The attributes of the law and med-

ical faculty which the Board cites as distinguishing them

from the rest of the faculty — including greater compensa-

tion; ‘‘expedited”’ tenure consideration (Law School) ; ac-

creditation and heavier endowment of their schools; vari-

ant academic calendars; lower faculty-student ratio (espe-

cially Medical and Dental); private practices of faculty

members; sources of funding (Medical School); or geo-

graphical separation from the Charles River Campus

(Medical and Dental Schools) — are in large measure not

unique to the excluded faculty and in any case are inade-

quate to support their exclusion, particularly where no

labor organization seeks to represent them separately, For

example, accreditation requirements do not apply only to

Law, Medicine and Dentistry; indeed, Education, Social

Work, Nursing, Engineering and Sargent College have

similar accreditation or licensing requirements. The per-

centage of tenured faculty at the Law School, which uti-

lizes University tenure eligibility rules, is exceeded by the

Schools of Theology and Engineering, which are included

in the unit. The percentage of faculty members at the Law

School who engage in private consultation is estimated at

50%, which is lower than the percentage at the Schools of

Public Communication (60-70%), Management (90%), Ed-

ucation (60-70%) or the College of Engineering (60-70%),

and not much above the School of Theology (30-40%).

The Law School and University calendars, in turn, are not

significantly different; thus, the Law School and Univer-

sity fall semesters similarly commenced on September 3

and ended only a week apart, as did the start of the spring

semesters. Furthermore, the Medical School is by no means

alone in its use of ‘‘restricted funds’”’ (58.9% of total ex-

penses); the Graduate Centers and School of Nursing

have a comparable percentage of restricted funds (61.5%

and 56.9%, respectively), while the School of Social Work

is not far behind (48.4%). The Dental School, in contrast,

operates with only 8.9% restricted funding. Finally, the

distance between the Medical and Dental Schools and the

Charles River Campus (114 miles) is no greater than the

distance between some of the buildings on the Charles

River Campus from each other. Thus the differences be-

tween the included and excluded schools vanish upon closer

scrutiny.

More importantly, the faculty at the three excluded

Schools share with their ‘‘unit’’ colleagues a fundamental

community of interest which is based upon their mutual

commitment to teaching and is unobscured by variations in

collateral employment conditions. Indeed, the faculty in-

cluded in the unit reflect a disparity of interests — at-

tributable to rank, compensation, tenure, et al, and a de-

votion to separate academic disciplines — that at least

equals, if not exceeds, the putative disparities that dic-

tated the exclusion of the three Schools. If unit deter-

minations in the academic community turn upon the con-

siderations invoked by the Board to exelude the Law, Med-

ical and Dental faculty, then ‘*professional’’ faculty in

Engineering, N ursing or Social Work — to cite a few exam-

ples — may with equal justification be excluded from the

bargaining unit.

Even the Cireuit Court felt compelled to question the

Board’s decision—

‘The principal fault which can be found with its de-

termination is that some of the reasons given for

separating the Law School from the other Charles

River campus schools would be equally applicable to

the University’s other professional schools, e.g., the

Schools of Engineering, Public Communications, Man-

agement, and, perhaps, even the Schools of Fine Arts

Nursing, and Sargent College of Allied Health . . .

However, we do not review the Board’s decision de

novo, but must determine only if it has abused its

discretion [citations omitted]’’ (A j

. endix A

reg pp x A, wmfra,

The Petitioner submits that the track record of the Board

in the field of higher education since it assumed juria-

diction in 1970 merits anything but deference by the courts,‘

Not only is the Board’s exclusion of the Law Medical

and Dental faculty irrational when viewed in light of its

inclusion of the other professional Schools at the Univer

*See discussion infra, pp. 20-22,

sity, but this determination contravenes the Board’s ex-

pressed policies governing appropriate units. It is well

settled that establishment of bargaining units composed

of the largest groups of employees with a requisite com-

munity of interest not only maximizes the collective bar-

gaining effectiveness of employees in negotiating condi-

tions of employment with their employer but also more

effectively achieves the legislative purpose of promoting

‘‘industrial’’ stability by avoiding unit fragmentation and

its potential ill effeets of conflicting or competitive claims

by several rival units which must work together but which

may choose to be represented by different and perhaps

antagonistic unions. See, e.g., Pittsburgh Plate Glass

Company v. NLRB, 313 U.S. 146, 152 (1941). Indeed

the Board itself has consistently recognized in the indus-

trial sector that employees may not appropriately be rep-

resented for purposes of collective bargaining separately

or apart from other employees with whom they enjoy a

close community of interest based on common personnel

practices, conditions of employment, and supervision—

particularly where the entire operation of the employer

is integrated.’ Obviously, the greater the number of

units eventually created, the more time and resources the

University will be required to divert from its primary

educational mission to the already complicated, largely

uncharted sphere of collective bargaining in academia.

Moreover, the uniformity of many employment conditions,

including virtually all fringe benefits, underscores the dif-

ficulty and inadvisability of a multi-unit bargaining struc-

ture. Furthermore, the existence of several units will in-

evitably create a ‘‘whipsawing”’’ of the University in which

° See, ¢.g., Kalamazoo Paper Box Corp., 136 NURB 134, 139

(1962); L & S Construction Company, Inc., 155 NLRB 524, 527

(1965).

Fe ee ee

rival organizations will compete for a share of limited

University dollars,*

The Board has not only disregarded its own policy re-

garding unit determinations, but has also chosen to ig-

nore its most applicable precedent, Fairleigh Dickinson

University, 205 NLRB 673 (1973), in which the dental!

faculty were included in a broad unit given that no union

sought to represent them separately, and where several

indicia—e.g., participation in university governance, ac-

cess to a system-wide grievance procedure, applicability

of university policies concerning retirement, sabbatical,

promotion, ete., and limited curriculum integration sup-

ported their inclusion.’

But the harm which wil] befall Boston University and

other similarly situated universities from arbitrary de-

terminations which carve out part of a faculty from an

otherwise comprehensive unit goes far beyond the difti-

culties due to fragmentation which have been experienced

in the industrial sector, For while the Board has occa-

it has failed to take such differences into account in its

unit determinations.

Of the many differences between the faculty at a uni-

versity and the workers in industry, perhaps the most

significant is the participation of the faculty in the gov-

*See Claremont College , 198 NL ber

aes hy cnaiy ges RB 811, 819 (1974) (Member

* Petitioner urges that the Board’s failure ile j

ae! é to reconcile its j .

sistent decisions, if not a basis for invalidation of its dile, os

least dictates a remand for further rationalization and articulation

of policy. NLRB v. Metropolitan Life Ins. Co., 380 U.S. 488 (1965)

® See, e.9., Syracuse University, 204 NLRB 641 (1973),

ernance of the university. The importance of this sys-

tem of shared authority in the American university can-

not be underestimated. And yet neither the Board nor

the Cireuit Court considered the significance of this Sys-

tem in the determination to sever the Schools of Law,

Medicine and Dentistry from the rest of the faculty. The

equal and full participation of the excluded faculty in this

University-wide system demonstrates a single community

of interest which requires a singl4bargaining unit. This

fact was ignored by the Board.” Nor did the Board con-

sider the impact on the excluded faculty when this tra-

ditional mode of institutional governance has been dis-

mantled. The certified faculty bargaining agent will effec-

tively replace the University’s existing governance struc-

ture; yet while the existing system represented the in-

* See generally Kahn, The N.L.R.B. and Higher Education: The

Failure of Policymaking Through Adjudication, 21 U.C.L.A. Law

Rev. 63, 66 et seq. (1973).

1° Tn one of the many anomalies present in its decision, the Board

relies on the ‘‘minimal’’ participation of part-time faculty in Uni-

versity governance as a factor dictating their exclusion from the fac-

ulty unit (Appendix C, infra, pp. 102-103). Yet the Board fails to

consider as a factor militating in favor of inclusion of all full-time

faculty the participation of all such faculty in the University’s

shared authority system.

™ Section 9(a) of the Act provides, inter alia, that a collective

bargaining representative shall be the ‘‘exclusive’’ bargaining rep-

resentative of unit employees with respect to all conditions of em-

ployment. Since the employer’s obligation to bargain with the se-

lected representative is ‘‘exclusive,’’ it carries with it ‘the nega-

tive duty to treat with no other.’’ Medo Photo Supply Corporation

v. NLRB, 321 U.S. 678, 684 (1944). While the Board has spe-

cifically declined to give an ‘‘advisory’’ opinion on the applica-

bility of the exclusivity principle to university governance systems,

Member Kennedy was less reserved:

‘In my judgment this Board is statutorily required to apply

the exclusive representation principle to those colleges and

universities over which it asserts jurisdiction. Undoubtedly,

terests of all the faculty, the bargaining agent does not.

The excluded faculty are disenfranchised—a fact which

will have the dual effect not only of silencing their voice in

University affairs but also of diminishing the voice of the

certified bargaining agent which, while claiming to repre-

sent the ‘‘faculty,’’ actually speaks only for a part.

In addition, given that the vast majority of the Uni-

versity’s Schools are included in the unit, and given the

present University-wide uniformity of employment condi-

tions, it is likely that changes in those conditions result-

ing from the bargaining process will apply to all faculty,

While not speaking for all of the faculty, the Union’s

voice may well be the only one heard. Such a result is

hardly consistent with the democratic principles under-

lying the National Labor Relations dct.

The University submits that the Board has ignored its

own admonition stated in Kalamazoo Paper Box Corpora-

tion, 136 NLRB 134, 187 (1962) :

‘‘Because the scope of the unit is basic to and per-

meates the whole of the collective-bargaining rela-

tionship, each unit determination, in order to further

effective expression of the statutory purposes, must

have a direct relevancy to the circumstances within

which collective bargaining is to take place. For, if

the unit determination fails to relate to the factual

situation with which the parties must deal, efficient

and stable collective bargaining is undermined rather

than fostered.’

The accommodation of collective bargaining and the

existing structure of private universities is difficult enough

this will affect the ability of faculty members to utilize existing

governance structures in dealing with the administration . , .”’

Northeastern University, 218 NLRB 247, 256 (1975),

without the Board’s further complicating the process by

fashioning bargaining units which ignore the fundamental

characteristics of the university. If the Board’s deter-

mination is not reversed, Boston University will not only

lose its existing form of government, it will also be forced

into a bargaining relationship which is structurally unsound

and which can only lead to chaos, Without guidance by

this Court, the Board will continue to require universi-

ties to conform to its industrial model of university life,

a model which will, in essence, become a self-fulfilling

prophecy. /

2. The Board Erroneously Found that Because the Au-

thority of Department Chairmen Is Exercised in the

Collegial Context, Typical of Academic Institutions, the

Chairmen Do Not Constitute Supervisors or Managerial

Employees under the Act. This Determination Serves

to Deprive the University of a Critical Group Neces-

sary to the Formation and Implementation of University

Policy. .

In its decision, the Circuit Cotift stated that it deferred

to the ‘‘expertise of the Board’’ and allowed it a large

amount of ‘‘informed discretion’? (Appendix A, infra,

p. 43) in reviewing the Board’s determination thut de-

partment chairmen at Boston University were not super-

visors under the Act.

The Petitioner submits that any deference to the Board’s

‘fexpertise’’ in representation cases in the field of higher

education is unwarranted. Since first assirting jurisdic-

tion over nonprofit, educational institutions in 1970,'- the

Board has frequently considered whether department chair-

men individually exercise sufficient authority to require

2 Cornell University, 188 NLRB 329 (1970).

their exclusion as supervisors."® Even a cursory analy-

sis of the Board’s treatment of the supervisory status of

department chairmen reveals the lack of any consistent

thread or even intelligible guidelines, Indeed, one can

only speculate why department chairmen possessing es-

sentially similar authority are excluded from a faculty

unit in one case and included in another." The Board’s

decision in this case is not only unsupported by the ree-

ord but is yet another example of the Board’s disregard

of its obligation to reconcile apparently inconsistent de-

cisions. The only authority cited by the Board in sup-

port of the instant decision is a single cryptic reference

to Fordham University II, supra (Appendix ©, infra,

’ Department chairmen have been excluded as “‘supervisors”’ in

C. W. Post Center of Long Island University, 189 NLRB 904

(1971) ; Long Island University (Brooklyn Center), 189 NLRB

909 (1971) ; Adelphi University, 195 NLRB 639 (1972) ; Fairleigh

Dickinson University, supra; Syracuse University, 204 NLRB 641

(1973) ; Point Park College, 209 NLRB 1064 (1974) ; Rensselaer

Polytechnic Institute, 218 NLRB 1435 1975) ; New York University

(11), 221 NURB 1148 (1975) ; and University of Vermont and State

Agricultural College, 223 NLRB 423 (1976). Conversely, chairmen

have been included in faculty units in Fordham University (1 and

II), supra; University of Detroit, 198 NLRB 566 (1971); Florida

Southern College, 196 NLRB 888 (1972) ; Rosary Hill College, 202

NLRB 1187 (1973) ; usculum College, 199 NLRB 28 (1972) ; New

York University (1), 205 NLRB 4 (1973) ; Northeastern University,

218 NLRB 247 (1975); Yeshiva University, 221 NLRB 10538

(1975) ; and Fairleigh Dickinson University, 227 NLRB 239 (1976)

(order clarifying certification),

™ One commentator notes:

‘Knowledgeable observers would probably conclude that in

the cases decided thus far all the department chairmen func.

tioned in approximately the same way. Yet the Board vacil-

lates, One knowledgeable observer considers these Board deci-

sions the prime example of the failure of the adjudicatory

process [citition omitted].” Moore, The Determination of Bar-

eer Units for College Favulties, 37 U. Pitt. L, Rev. 43, 50

p. 95), unaccompanied by even an attempt to es 90°

why the several decisions relied upon by the orsspeibegrine

did’ not require exclusion of the department chairmen

or, indeed, by any discussion as to which factors are ee

tral to the existence of supervisory authority. The = .

dled state of Board law in this area requires not defer-

ence by the courts, but rather the closest critical scrutiny.

The Petitioner submits that department chairmen have

traditionally played a critical role in the day-to-day nr

tioning of American universities. Absent direction :

this Court, the Board will continue to disrupt the order y

administration of the nation’s grt universities by vir-

its unprincipled, haphazard decisions.

ye po baal under § 2(11) is whether department

chairmen have authority derived from the opione masa

to alter the employment conditions of other employees.

us , Long Island Universtiy (C. W. Post Center),

Pena os rey sre ( Brooklyn Center), supra; ae

University, supra; Syracuse University, supra; and Fairleigh Dick-

inson University, 205 NLRB 673 (1973).

16 Section 14(a) of the National Labor Relations Act commands

exclusion from an appropriate bargaining unit ‘‘supervisory’’ em-

ployees, defined by § 2(11) aS : in | be

«any individual(s) having authority, in the interest . the

employer, to hire, transfer, suspend, . s+ assign, — . -

discipline other employees, or responsibility to diree _ :

to adjust their grievances, or effectively to recommen ; su “

action, if in connection with the foregoing the exercise 0 =

authority is not of a merely routine or clerical nature, bu

requires the use of independent judgment. ait

i 2(11) is to be read disjunctively, wi e exer-

der ye a 5 Aes Bohodioks- statutory powers sufficient to

confer supervisory status upon the employee. NLRB v. rg oye

Casting Co., 427 F. 2d 114, 7 (Ist Cir. 1970). seca eS =

session of supervisory authority, and not the aoe bo

ercise, is controlling. Ohio Power Co. v. NLRB, 176 ~t ty ( ~

Cir. 1949), cert. denied, 338 U.S. 899 (1949). Finally, the legisla-

The question of whether the mere consultation with faculty,

which is characteristic of the collegial system, deprives de-

partment chairmen of supervisory status, raises this inquiry

from the realm of a mere factual dispute to one which pre-

sents a legal issue going to the very essence of the university

system. While some chairmen may choose to consult with

their department faculty on a regular basis in the running of

their departments, it is submitted that the variety of ap-

proaches employed reflects a difference in style and not a

diminution of authority. Indeed, the very fact that a depart-

ment chairman chooses his own style speaks for his author-

ity. Whether chairmen run their departments democratic-

ally or autocratically, with extensive or little consultation,

does not divest them of the supervisory power they have,

The record reflects both their authority and their differing

styles in using that authority: the two should not be blurred

in determining their status as supervisors or managerial

employees who must be excluded from a unit of faculty,

Nothing in either the University By-laws or the Faculty

Manual requires the department chairmen to act only upon

the ‘‘advice and consent’’ of departmental faculty; to the

contrary, the chairmen alone are responsible for recom-

mending appointment, salary adjustments, and promotion

of faculty members, Indeed, the record establishes that

department chairmen typically recommend salary adjust-

ments without consulting the faculty. Moreover, those

recommendations, which are prepared following consulta-

tion with the faculty, reflect the chairman’s own independent

judgment and evaluation of the candidate’s qualifications.

tive history of § 2(11) discloses that the supervisory exclusion was

designed to avoid not only dilution of the union’s bargaining

strength but also the unacceptable conflicts of interest inevitably

By the same token, the chairmen act on behalf of the

University and cannot be considered mere instruments or

agents of the faculty. Thus, chairmen are appointed by the

administration, rather than elected by the faculty ; attend

regular'y scheduled administrative meetings in which

faculty members do not participate, wherein policy ques-

tions, including curriculum, budget priorities and the like,

are considered ; and represent the administyfition in adjust-

ing faculty grievances, allocating among faculty the funds

available for merit raises, and implementing administrative

directives. In view of the chairmen’s extensive authority,

derived from the administration, to affect the employment

conditions of departmental faculty and staff and the poten-

tial conflicts of interest and risks of dominance presented

by their inclusion in a faculty unit, 4 2(11) commands their

exclusion as supervisory employees.""

Nonetheless, the Board, adopting pro forma the findings

of its Regional Director, insists that department chairmen

are not supervisors largely because the record allegedly

disclosed : ;

‘*. ,. collective rather than authoritarian action, most

of which is not only reviewable on the higher admin-

istrative levels,"*! but which in significant numbers of

id rnatively, the University submits that, in view of their

seuiltaies role the formulation and implementation of policy,

department chairmen are ‘‘managerial’’ employees similarly ex-

cludable from the faculty unit. NLRB v. Bell Aeorospace Co.,

416 U.S, 267 (1974). ?

*® The Board is apparently operating under a misconception that

review by higher management of an individual’s recommendations

is inconsistent with the notion that such recommendations are ac-

corded substantial weight and ae therefore ‘effective within the

meaning of § 2(11). Nothing in either § 2(11) or its legislative

history requires that a supervisor have final managerial authority

— only that he possess ‘‘authority .. . effectively to recommend

management action, See, e.g., NLRB v. Metropolitan Life Ins. Co.,

cases has been shown to be ineffective. . .”” (Appendix

C, infra, pp. 94-95),

Consultation with the faculty does not, as the Board sug-

gests, dictate a conclusion that subsequent recommendations

merely reflect the consensus of the individuals consulted. On

the contrary, the By-Laws and Faculty Manual neither re-

quire chairmen merely to ascertain and implement the col-

lective will of the faculty nor otherwise significantly circum-

scribe their independent judgment and discretion.

The irrationality of the Board’s determination is most

graphically illustrated by the absurdly high supervisory

ratios between the acknowledged supervisors (the deans)

and the teaching staff which result from the Board’s refusal

to treat department chairmen as supervisors, For example,

in the College of Liberal Arts the resulting ratio is 122 to 1!

Indeed, the Board has repeatedly considered the supervi-

sor/employee ratio to be a significant factor in determining

supervisory status.” The Board’s apparent notion that fac-

ulty consultation forecloses recognition of a chairman’s su-

pervisory or managerial authority suggests that the super-

visory status of deans, vice presidents and even the presi-

dent of the institution may be questioned with equal co-

gency.

Indeed, if ““‘collegiality’’ is perverted by the Board to in-

clude supervisory department chairmen in faculty units,

then universities throughout the country may well be forced

405 F. 2d 1169, 1177 (24 Gir. 1968) (‘The power to recommend

promotion is of course not the power actually to promote and con-

sequently promotion recommendations will always be subject to

review by those who, in fact, have the final power to promote’’),

” See, ¢.g., Weather Seal Inc., 161 NLRB 1226, 1233 (1966)

(‘‘ineredible to believe’’ that one supervisor could supervise 35 em.

ployees) ; Russel 8. Kribs Associates, Inc., 181 NLRB 1009, 1111

(1970) (‘‘A ratio of 35 rank-and-file employees to one supervisor

points strongly to the supervisory status of [the contested indi-

viduals]’’),

to sacrifice the basic academic principle of collegiality in

order to preserve the integrity of supervisory authority.

Alternatively, if universities cannot rely upon the undivided

loyalties of individuals who play such an important role in

the formulation and execution of policy, there may be no

reason for the continued existence of the department chair-

man’s position.

The effect of this decision, if not reversed, is to force

Boston University to change its basic system of adminis-

tration to conform to the Board’s misconceptioas about

university life. For this University or any university

which is subject to the vagaries of Board decisions to

have to alter its practices to fit the Board’s vacillating

view of academia is unfair to the University, its faculty,

and to the public at large. This situation warrants review

by the Court.

3. The Board’s Rule that Department Chairmen Who Ad-

mittedly Exercise Supervisory Authority over Non-unit

Employees Do Not Qualify as Supervisors Solely Be-

cause the Exercise Thereof Conswmes Less than 50%

of the Chairman’s Time Conflicts with the Language

and Legislative History of Section 2(11).

The record clearly establishes that department chairmen

exercise supervisory authority over non-unit employees.

The University’s contention that such a showing in and

of itself required the exclusion of the chairmen as ‘‘super-

visors’’ was rejected by the Board because the Board

found.that the exercise of such authority consumed less

than 50% of a chairman’s time.

The Circuit Court inexplicably and erroneously found

that the Board did not rely on the 50% rule in Boston

University’s case (Appendix A, infra, p. 44 at fn. 4).”

*° The Court went on to state that it ‘‘intimate[d] no view as to

the validity of the rule where supervisory time closely approaches

This finding directly contradicts the Board’s clear state-

ment — ‘‘{N Jor does the fact that they [department chair-

men] exercise some of the requisite authorities over sup-

port and non-unit personnel change this conclusion [that

department chairmen are not supervisors], as time spent

in such exercise is far from the requisite fifty percent’

(Appendix ©, infra, p. 95).

The 50% rule defies the language and legislative history

of § 2(11) and also conflicts with established judicial

precedent, Nothing in the literal language of § 2(11) dis-

closes a purpose to distinguish between supervision of

‘unit’? and ‘*non-unit’’ employees. Instead, § 2(11) de-

fines ‘‘supervisor’’ merely as an individual with author-

ity to direct ‘‘other employees,’’ If Congress intended to

attach controlling significance to the identity Of the ‘em-

ployees’’ supervised, then it could easily have so provided

by appropriately restrictive language. Congress’ failure

to do so, we submit, is persuasive evidence that an indi-

vidual who satisfies the § 2( 11) criteria is a ‘‘supervisor”’

whether he directs ‘unit’? or ‘‘non-unit”? employees. See

Automobile Club of Missouri, 209 NLRB 614 at 616-617

(Member Kennedy, dissenting), Cf. Mourning »v. NLRB,

559 I, 2d 768 (D.C. Cir, 1977), Nor, we submit, does the

legislative history of § 2(11) afford the Board solace, In

reviewing the pre-1947 Board law in which the issue of

‘‘divided loyalty’’ of unionized supervisors was initially

presented, the House Report states:

or exceeds 50%,’’ Compare NLRB », Mercy College, in which the

Second Cireuit, while not ruling on the ‘‘legal justification” of the

50% rule, underscored the “‘diffieult’”’ questions presented :

“The questions raised are difficult, ¢.g., whether there is legal

justification for the Board’s so-called 50 per cent rule, and, if

there is, whether it applies equally to the supervisory, man-

agerial and administrative categories, And: here there is the

additional complexity of applying terms: from the ordinary

industrial hierachy [sic] to the university context.’’ 536 F, 24

544, 550 (2d Cir. 1976),

‘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 our policy to protect the rights of

employers; they, as well as workers, are entitled to

loyal representatives in the plant .... What the bill

does is to say what the law always has said... : That

no one, whether employer or employee need have as

his agent one who is obligated to those on the other

side or one whom for any reason, he does not trust

~ «+++? 1 Legislative History of the Labor Manage-

ment Relations Act, 1947, at 305, 308 (House Report

No, 245 on H. R. 3020),

Of similar effect is the Senate Report.”

‘*... [T]he bill does not prevent anyone from organ-

izing nor does it prohibit any employer recognizing

a union of foremen. It merely relieves employers who

are subject to the national act free from any compul-

sion by this National Board or any local agency to

accord to the front line of management the anomalous

status of employees.’’ Legislative History, p. 411.

Compare 2 Legislative History of Labor Management Re-

lations Act, 1947, pp. 1008-1009 (Remarks of Senator Taft).

In short, the legislative history establishes a broad Con-

gressional concern with supervisory ‘conflict of interest”

or ‘‘divided loyalty’? that was in no manner limited to

supervision of unit, rather than non-unit, employees,

The imposition by the Board of a percentage figure on

top of its unit/non-unit distinction only serves to empha-

size the Board’s drastic break with precedent.” Thus,

"11 Legislative History of Labor Management Relations Act,

1947, pp. 409-411 (Senate Report No. 105 on 8. 1126),

2 See Amalgamated Clothing Wkrs. of America, 210 NLRB 928,

932-933 (1974) (Chairman Miller and Member Kennedy, dissent-

ing).

the Board, with court approval, has uniformly ruled that

possession of supervisory power, rather than the frequency

of its exercise, is controlling. See, e.g., Ohio Power Co. v.

NLRB, 176 F. 2d 385, 388 (6th Cir, 1949), cert. denied,

338 U.S. 899 (Section 2(11) ‘does not require the exer-

cise of the power described for all or any definite part of

the employee’s time. It is the existence of the power

which determines the classification.’’)

Perhaps more significantly, the Board’s 50% rule is at

odds with its long-established policy that individuals who

regularly—albeit infrequently—substitute for supervisors

are themselves statutory supervisors excludable from rank-

and-file units. It is the responsibility for the supervi-

sion of employees that is alone dispositive; thus, a su-

pervisor is no less a supervisor merely because he has only

infrequent occasion to exercise his authority,

While the application of the Board’s 50% rule in any

context defies the language and legislative history of § 2

(11) and conflicts with established judicial and Board

precedent, the Petitioner submits that its application to

the academic world is totally unsupportable. The Board’s

50% rule had its genesis in Great Western Sugar Com-

pany, 1387 NLRB 551 (1962), which establishes that indi-

viduals employed in a seasonal industry who devote the

major part of their work year to the performance of rank-

and-file duties, but who exercise supervisory authority

for a portion of the year should be included in the rank-

and-file unit." Significantly, the Board distinguished the

* See, e.g., Swift & Company, 129 NLRB 1391, 1392 (1961) ;

Sewell, Inc., 207 NLRB 325, 331 ( 1973). Minnesota and Ontario

Paper Co., 92 NLRB 711, 713-714 (1950),

**Members Rodgers and Leedom dissented in Great Western

Sugar Company, observing that the ‘‘dual status’’ individuals

‘*... probably wish to retain not only their supervisory status,

but also the protection of the Act when they engage in union

seasonal supervisors from ‘‘those individuals who spend

a part of each working day or week as supervisors’’ 137

NLRB at 552. Subsequently, in Westinghouse Electric

Corporation, 163 NLRB 723, (1967), enforced, 424 F. 2d

1151 (7th Cir, 1970), a case involving a unit of profes-

sional engineers, the Board, relying on Great Western,

refused to deny employee status to engineers who spent

less than 50% of the year as lead engineers at construc-

tion projects where they performed some supervisory

duties in view of the fact that they spent the greater part

of the year at the employer’s headquarters performing

no supervisory duties, As the Board explained:

‘*. . . [T]he supervisory jobs which the senior en-

gineers may be called upon to perform are not reg-

ularly and closely intermingled with their nonsuper-

visory work activity. Rather, depending on the Em-

ployer’s assignment, their status shifts, full-time, from

supervisory to nonsupervisory work for a measura-

ble and continuous period of time, and their duties

in each position are sharply demarcated,” 163 NLRB

at 727 (emphasis added).

As the underscored language indicates, the Westinghouse

rationale contemplates a sharp demarcation between the

supervisory and nonsupervisory duties performed by those

‘‘dual status’’ individuals who can be considered ‘‘em-

ployees.’’ It is significant that also at issue in Westing-

house was the status of the engineers who spent all of

the year at construction sites working as lead engineers.

activities. Whatever their desires, the fact remains that there

exists an inherent conflict in their position .. . . Stated some-

what differently, management must have agents and repre-

sentatives in whom it can repose trust and confidence; and so

must a union, And it matters not that certain individuals are

supervisors for only 3 to 4 months of the time ...’’ 137 NLRB

at 556 (emphasis added).

The Board specifically excluded, as supervisors, the lead

engineers who were permanently assigned to construction

sites without requiring any showing that supervising non-

professionals took up 50% of their time. In fact, the

strong inference is that their supervisory duties were only

incidental to their primary role as engineers.”

The Board’s holding that the professional engineers

who were permanently assigned to construction sites where

they regularly spent a part of their time supervising non-

professionals were supervisors requires a finding that de-

partment chairmen who regularly spend a part of their

time supervising non-unit employees be treated as #uper-

visors. Nevertheless, the Board introduced the 50% rule

to the academic setting in Adelphi University, 195 NLRB

639 (1972), where it relied on Westinghouse to include in

a faculty unit a director of admissions who exercised the

‘‘requisite” supervisory authority over a non-unit secre-

tary.

Whatever the legitimacy of the 50% rule in the econ-

text of Great Western Sugar Company or Westinghouse,

its application in Adelphi University and Boston Uni-

versity was plainly unwarranted.* The explicit ration-

*5*<The status of engineers assigned as leadmen on labor con-

tract projects poses a more difficult issue. It is true, as the Peti-

tioner points out, that a substantial portion of their work is primar-

ily professional in character. However, we are satisfied that they

also have certain special duties and responsibilities, vis-a-vis the

craftsmen employed by the Employer for the project work, that

are clearly supervisory in character. In these circumstances we

find, in agreement with the Employer, that when engaged as lead

engineers on labor contract projects, the individuals so assigned

have supervisory status within the meaning of the Act’? ( emphasis

added) 163 NLRB at 726.

*6 Tt is extraordinary that faculty appear to be the only individu-

als with on-going supervisory responsibilities against whom the rule

has been applied. One commentator has noted on this issue: “, . .

the Board has directly contradicted itself in nonfaculty University

ale of the doctrine, as articulated in Westinghouse, was

that dual status individuals who performed ‘“‘sharply de-

marcated’’ supervisory and nonsupervisory duties at dif-

ferent ‘‘measurable and continuous period[s] of time’’

should not be denied collective bargaining rights alto-

gether. Quite clearly, department chairmen do not ~per-

form ‘‘sharply demarcated’’ supervisory and nonsuper-

visory duties at measurably different times during the

year. On the contrary, their supervisory and nonsuper-

visory functions cannot be so neatly compartmentalized.

The over 70 department chairmen at Boston University

have a continuing supervisory relationship with several

hundred support and non-unit personnel—a relationship

which raises a continuing potential of a ‘‘conflict of in-

terest’’ or ‘‘division of loyalty.’’ To illustrate, the chair-

men at Boston University exercise virtual control over

the hiring of the nearly 1,200 part-time faculty whom the

Board excluded from the unit. In the event of an admin-

istrative directive to save money by recruiting part-time

faculty, department chairmen will inevitably be required

to act against the interests of their full-time faculty col-

leagues, creating suspicion of their motives by labor and

management alike--the very difficulty which the supervisory

exclusion was designed to avert.’ In short, contrary to

the Board’s unsupported speculation in Adelphi,** the po-

cases .. .’’ citing Claremont Colleges, 198 NLRB 811 (1972) and

University of Chicago Library, 13-CA-11447 , modified; 205 NLRB

No. 44 (1972). Kahn, N.L.R.B. and Higher Education, 21 U.C.L.A.

L. Rev. 63, 130.

27 The opportunity to save substantial amounts of money by sub-

stituting part-time faculty for full-time has been an issue at other

universities. Kahn, supra, 21 U.C.L.A. Law Rev. 63, 117, at n. 193.

*°The Board stated in Adelphi:

“‘No danger of conflict of interest within the unit is presented,

nor does the infrequent exereise of supervisory authority so

ally such an employee with management as to create a more

tential conflicts of interest are not significantly diminished

merely because the supervised employees are not mem-

bers of the unit. Moreover, the Board’s observation in

Adelphi that individuals should be included in a rank-

and-file unit if they do not have their ‘*principal inter-

ests so allied with management as to establish a differen-

tiation between them and other employees in the unit’?

ignores the fact that § 2(11) requires only that supervi-

sors act ‘‘in the interest of the employer’’—not that they

share management’s ‘*principal interests,’’

For the Board to draw a distinction between supervising

unit and non-unit employees and then to couple it with a

percentage test conflicts with the letter and spirit of ¢ 2

(11) as well as with Board and judicial precedent, and

imposes the considerable burden of measuring with serv-

iceable precision the hours of employment devoted to su-

pervision. The validity of the 50% rule and particularly

its application to the academic world presents an im-

portant question in the administration of the Act; one

which, we submit, warrants review by this Court.

generalized conflict of interest of the type envisioned by Con-

gress in adopting Section 2( 11) of the Act.’? 195 NLRB at

644).

;

Conclusion.

For the reasons set forth above, it is respectfully sub-

mitted that this Petition for a Writ of Certiorari should

be granted. ,

Respectfully submitted,

ALAN §. MILLER,

9 High Street,

Boston, Massachusetts 02110.

(617) 542-6789

RICHARD W. GLEESON

STONEMAN, CHANDLER anp MILLER

Of Counsel

No. 77-1143

Appendix A,

United States Court of Appeals

For the First Circuit

TRUSTEES OF BOSTON UNIVERSITY,

PETITIONER,

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT,

and

BOSTON UNIVERSITY CHAPTER, AMERICAN

ASSOCIATION OF UNIVERSITY PROFESSORS,

INTERVENOR.

No. 77-1365

BOSTON UNIVERSITY CHAPTER, AMERICAN

ASSOCIATION OF UNIVERSITY PROFESSORS,

PETITIONER,

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT,

and

TRUSTEES OF BOSTON UN IVERSITY,

INTERVENOR.

ON PETITION FOR REVIEW OF ORDERS OF THE

NATIONAL LABOR RELATIONS BOARD

No. 77-1226

TRUSTEES OF BOSTON UNIVERSITY,

PLAINTIFF-APPELLANT,

NATIONAL LABOR RELATIONS BOARD,

DEFENDANT-APPELLEE,

2 TRUSTEES OF BOSTON UNIVERSITY U. NLRB

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Frank J. Murray, U. District Judge]

Before Corrin, Chief Judge

CaMPpBELL, Circuit Judge,

Bownss, Circuit Judge

Alan 8. Miller, with whom Stoneman, Chandler, & Miller was

on brief, for Trustees of Boston Universit titioner in 77-1143.

Woodley B. Osborne, with whom David i. bban and Matthew

Finkin were on brief, for Boston University Chapter, American

Association of University Professors, petitioner in 77-1365.

Richard W. Glecson, with whom Stoneman, Chandlcr & Miller

were on brief, for Trustees of Boston University, appellant in

77-1226.

Patrick J. Szymanski, attorney, with whom John 8. Irving,

General Counsel, John E. Higgins, Jr., Deputy General Counsel,

Carl L. Taylor, Associate General Counsel, EWiott Moorc, Deputy

Associate General Counsel, Atleen A. Armstrong, Assistant General

Counsel for Special Litigation, Robert G. Sewell, and Linda

Dreeben, attorneys, were on briefs, for National Labor Relations

Board. '

April 13, 1978

Bownes, Circuit Judge. The three cases before us all

present issues which developed during the union organiza-

tional campaign and subsequent National Labor Relations

Board certification election and as a result of Boston Uni-

versity’s objections to the election and consequent failure

to bargain with the Union. The union involved is the Ameri-

ean Association of University Professors (AAUP) and its

Boston University chapter. The issues are:

1. Whether the Board abused its discretion in finding

that the University’s department chairpersons are neither

supervisors within the meaning of Section 2(11) of the

National Labor Relations Act, 29 U.S.C. § 152(11), nor

OPINION OF THE COURT. 3

managerial employees, see NLRB v. Bell Aerospace Co.,

416 U.S. 267, 275 (1974);

2. Whether the Board abused its discretion in ex-

cluding the faculties of law, medicine, and dentistry and

part-time faculty from the bargaining unit;

3. Whether the Board erred in overruling the Univer-

sity ’s objection that an article in the April, 1975, issue of the

AAUP Bulletin critical of the President of the University

amounted to conduct which unfairly affected the election;

4. Whether the district court erred in ruling that ma-

terial gathered by the Board during the course of its inves-

tigation of the University’s objections to the certification

election were exempt from the Freedom of Information Act

under Exemption 7(A), 5 U.S.C. § 552(b)(7)(A); and

5. Whether the Board erred in denying the Union’s

request for attorney’s fees, giving retroactive effect to any

negotiated agreement, and other extraordinary relief.

PROCEDURAL HISTORY

On October 18, 1974, the Union filed a petition with the

Board for a representation election in a unit which was

defined at the hearing as a unit of approximately 850

*‘full-time teaching faculty . .. , including department chair-

men, certain academic program directors, nursing coordi-

nators, faculty on leave and part-time faculty who have

tenure or are on the tenure track at the University’s

Charles River campus, excluding faculty of the Law School,

the Medical School, and the School of Graduate Dentistry.’’

The University contended that department chairpersons

should have been excluded from the bargaining unit and

the faculty from the three professional schools and part-

time faculty should have been included.

The Regional Director issued his decision on April 17,

1975, finding that the department chairmen were neither

supervisors nor managerial employees and that the part-

time faculty and the faculties of the three professional

4 TRUSTEES OF BOSTON UNIVERSITY U. NLRB

schools in question did not share a community of interest

with the other faculties sufficient to require their inclusion.’

Other points decided by the Regional Director are not be-

fore us.

The Regional Director directed an election and the Board

denied the University’s request for review. The election

was held on May 14, and the ballot count on June 3 showed

the Union the winner, 394-262, with 40 challenged ballots.

The University filed objections and supplemental objec-

tions contending that an article in the AAUP Bulletin

misrepresented Boston University President John Silber’s

role in the firing of a professor at Texas University when

Silber was Dean of its College of Arts and Sciences. The

University requested a hearing on its objections, and the

? The unit found appropriate was:

All full-time teaching members of the faculty at Boston

University, including yr ens and division chairmen, area

chairmen in the School o Theology, sequence coordinators in the

School of Social Work, coordinators in the School of Nursing, the

director of the Teacher Training Project in Sargent College, the

directors of the African Studies Center, the Afro-American Studies

Program, the Center for Latin-American Development Studies,

the American and New England wivdies Program, the Center for

Applied Social Science, the Boston University Ceater for the

Philosophy and History of Science, the Continuing Education De-

partment in the School of Nursing, the University Professors Pro-

gram, faculty on leave (who are visiting faculty at another educa-

cation institution and who are otherwise al ble), and faculty in

the Overseas Program (who taught at the University immediately

prior to taking assignment in said Overseas Program for a definite

period of time and who are expected to return to the school or

college of the University in Boston from which they came), but

excluding all part-time faculty, all officers of the University, deans,

associate deans, assistant deans, administrative support personnel,

nonteaching penenem librarians, duate nts, teaching

fellows, student employees, oy we essional employces, coaches

(who are not otherwise eligible for inelusion), directors of the

schools of ——s bp eg ee theatre arts gps pacers na the

A Visiti aculty, R my ot ore airmen

er Treen in the Schools of Law, icine and Graduate

tistry, all other employees, guards and supervisors as defined in

the Act.

OPINION OF THE COURT. 5

Union requested attorney’s fees on the ground that the

University’s objections were frivolous.

After an administrative investigation, the Regional Di-

rector issued a supplemental decision, dated August 13,

finding that the alleged misrepresentations were not suffi-

cient to set aside the election even if found to be as alleged

and, therefore, certified the Union as the collective bar-

gaining agent for the unit. The Board denied review be-

cause the request for review ‘‘raised no substantial issues, ’’

but declined to award attorney’s fees.

On August 7, the University refused to bargain with the

Union as the exclusive bargaining agent for the wait. The

Union filed an unfair labor practice charge, and the General

Counsel issued a complaint on October 8 charging the Uni-

versity with refusing to bargain with a certified bargaining

agent in violation of sections 8(a)(1) and (5) of the NLRA.

The University’s answer admitted the failure to bargain,

but raised the affirmative defense that the Regional Director

had erred in failing to include the three professional school

faculty in the bargaining unit, in including the department

chairpersons, and in overruling its election objections. In

response to the General Counsel’s motion for summary

judgment on the issues, the Board issued a notice to show

cause why the motion should not be granted. The Union

filed a motion for specific relief on December 17, asking for

an order requiring the University to give retroactive effect

to any agreement regarding salaries or fringe benefits, to

pay costs of attorney’s fees and other litigation expenses,

and several other extraordinary remedies in addition to

the usual prospective bargaining order.

The University requested and received two extensions of

time so that its answer to the notice to show cause would

have been due on January 15. It filed its answer to the

notice to show cause on December 2, opposing summary

judgment for the reasons indicated earlier, The Board

6 TRUSTEES OF KOSTON UNIVERSITY VU. NLRB

granted the motion for summary judgment.

On January 12, the University filed a complaint in the

United States District Court for the District of Massa-

chusetts requesting that the Board (pursuant to the Free-

dom of Information Act, 5 U.S.C. § 522) be ordered to

divulge information which it had collected in its investi-

gation of the University’s election complaint. The district

court, after issuing and then dissolving a temporary re-

straining order, found that the information sought by the

University should not be disclosed.

These three cases stem from the University’s petition to

review and set aside the order of the Board and the Board’s

cross-petition for enforcement of its order, the Union’s

petition for review of the denial of extraordinary relief,

and the University’s appeal from the order of the district

court.

THE NATIONAL LABOR RELATIONS BOARD

AND ITS ROLE IN HIGHER EDUCATION

The Board ended its longtime policy of refusing to take

jurisdiction over nonprofit higher educational institutions

in Cornell University, 1883 NLRB 329, 331 (1970). See

Columbia University, 97 NLRB 424 (1951). This court first

faced the significant questions which arise from the asser-

tion of jurisdiction over post secondary institutions in

NLRB v. Wentworth Institute, 515 F.2d 550 (1st Cir. 1975).

In that case, we considered and answered in the affirmative

the questions of whether an institution of higher education

was an ‘‘employer’’ under the Nationa) Labor Relations

Act, section 2(2), 29 U.S.C. § 152(2), and whether the

institution’s faculty were employees within the meaning

of section 2(3), rather than supervisor’s under section

2(11), 29 U.S.C. § 152(3) and (11).

In considering this major policy change by the Board,

we recognized that: ‘‘The declared purpose of the Act is

to eliminate obstructions upon commerce caused by labor

unrest ... and-in dealing with employer operations whose

OPINION OF THE COURT. 7

effect upon commerce has grown over time the Board

believes that it is endowed with discretion to exercise a

fuller measure of its conferred jurisdiction.’’ Id. at 554.

In holding that Wentworth’s faculty members were not

managerial, we specifically refrained from ‘‘comment[ing]

on the Board’s developing views on the significance of a

substantial faculty role in decisions on curricula, admis-

sions, hiring, degree requirements, and other educational

policy matters.’’ Jd. at 557. We must now address some

of these matters, at least with respect to department

chairpersons.

Since the Board’s first entry into the field of higher

education, the exposure of the nation’s universities to

organizational efforts has grown rapidlr,* and the role of

the Board in the University setting has engendered a great

deal of comment and criticism. Much has been made by

? See, ¢.g., Trustees of Boston University v. NLRB, 548 F.2d 391

(Ist Cir. 1977); NLRB v. Mercy College, 536 F.2d 544 (2d Cir.

1876); NLRB v. Wentworth Institute, supra, 515 F.2d 550; Uni-

versity of Vermont and State Agricultural College, 223 NLRB 423

(1976); Yeshiva University, 221 NLRB 1053 (1975), enf’t pd’g,

(2d Cir. No. 77-4182) ; Rensstlaer Polytechnic Institute, 218 NLRB

1435 (1975) ; Fordham University, 214 NLRB 971 (1974) ; Univer-

sity of Miami, 213 NLRB 634 (1974); Point Park C. ¢, 209

NLRB 1064 (1974) ; University of San Francisco, 207 NLRB 12

(1973) ; Fair h Dickinson University, 205 NLRB 673 (1973) ;

University of Chicago Library, 205 NLRB 220 ede enf’d mem.,

506 F.2d 1402 (7th Cir. 1974) ; New York University, NLRB

4 (1973) ; Syracuse Unwersity, 204 NLRB 641 (1973); The Catho-

lic University of America, 201 NLRB 929 (1978); Rosary Hill

College, 202 NLRB 1137 (1973); Claremont Universit enter,

198 NLRB 811 (1973) ; Tusculum College, 199 NLRB 28 (1972) ;

Florida Southern C ¢, 196 NLRB (1972) ; Adelphi Univer-

sity, 195 NLRB 639 (1972) ; University of Detroit, 198 NLRB 566

(1971); Fordham University, 193 134 (1971); University

of New Haven, Inc., 190 NLRB 478 (1971) ; Long Island Univer-

sity (Brooklyn Center), 189 NLRB 909 (1971) ; C. W. Post Center

oy, in meee NLRB 904 (1971) ; Cornell Univer-

Bee eg, Kenneth Kahn, The NLRB ond Higher Education:

The Failure of P. —T Through Adjudication, 21 U.C.L.A.

The 766-708 Cane Ag LRB v. bye Co., 394 U8.

, 1964) ; Aerospace v. NLRB, 475 F.2d 485, 495-

497 (2d Cir. 1978), modified, 416 U.S. 267 (1974).

8 TRUSTEES OF BOSTON UNIVERSITY V. NLRB

the Board’s critics of the special governance structure in

universities and the general inapplicability of its rules de-

veloped for private industry to the academic community,

and the University here has, quite understandably, seized

on this general criticism to support its case. We are bound

to observe that some of the problems that arise in academia

might better be addressed by rulemaking than by an ad hoc,

case-by-case determination. But we must also note that the

Board’s transfer of its private industry experience and

rules to the university setting was only natural and is

consistent with the common law method of applying time-

tested legal principles to new situations.

ARE DEPARTMENT CHAIRPERSONS SUPER-

VISORS WITHIN THE MEANING OF SECTION

2(11) OF THE NATIONAL LABOR RELATIONS

ACT OR MANAGERIAL EMPLOYEES?

Section 2(11) of the NLRA requires exclusion of ‘‘super-

visory’’ employees from collective bargaining units and

defines « ‘‘supervisory”’ employee as

any individual having authority in the interest of the

employer, to hire, transfer, suspend, lay off, recall,

promote, discharge, assign, reward, or discipline other

employees, or responsibility to direct them, or to ad-

just their grievances, or effectively to recommend such

action, if in connection with the foregoing the exercise

of such authority is not of a merely routine or clerical

nature, but requires the use of independent judgment.

The Board found that the department chairpersons were

“‘employees”’ rather than “*supervisors’’ and thus properly

included in the bargaining unit.

Our analysis of whether chairpersons are excluded super-

visors or managerial employees looks to the degree of con-

trol exercised by chairpersons over other bargaining unit

personnel and the relative amount of interest they have

in furthering the policy of the administration as opposed

te the members of the bargaining unit.

OPINION OF THE COURT. )

The question of who are supervisors or managerial en- -

ployees is one of fact for the Board, Stop & Shop Compa-

nies, Inc. v. NLRB, 548 F.2d 17; 18 (1st Cir. 1977 ); NLRB

v. Vagnesium Casting Co., 427 F.2d 114, 117 (1st Cir. 1970),

aff’d, 401 U.S. 137 (1971), and the expertise of the Board

in dealing with the gradations of authority between ‘‘super-

visors’’ and ‘‘employees’’ can be so subtle that determining

who is a supervisor must ‘‘as a practical matter’’ involve

“fa large measure of informed discretion.” Swift & Co.,

supra, 292 F.2d at 563.

In this case, the Board’s determination that the depart-

ment chairpersons did not exercise supervisory authority

Over unit personnel and that whatever supervisory au-

thority they did exercise over nonunit, support personnel

was insufficient to render them supervisors, must be upheld.

Keeping in mind the substantial evidence test, our review

of the record discloses the following facts which supply a

firm footing to the Board’s findings. The appointment and

reappointment of full-time faculty is by approval of the

trustees upon the written recommendation of the president,

the academic vice-president, and the dean concerned. The

department chairperson makes a recommendation, which

is followed more often than not, ‘fonly after consultation

by him with all full professors with tenure of that Depart-

ment.’’ Faculty Manual, Pet. Ex. 43 (p. VII-2). Although

there are varying procedures used by the over eighty chair-

persons, the department chairperson’s recommendation,

as is the case in other universities, is the result of such

consultation. Reappointment, promotion, and discipline

of the faculty are finally determined by the President and

Board of Trustees based on recommendations by the de-

partment chairperson who consults with and usually obtains

the consensus of the tenured faculty members of the depart-

ment. In each of these areas, the Board was entitled to find

that the chairperson’s recommendations were not ‘‘effec-

tive’’ or that he/she was acting ‘‘in the interest’ of the

faculty, not of the employer.

10 TRUSTEES OF BOSTON UNIVERSITY 0. NLRB

While department chairpersons are selected by the ap-

propriate dean, the selection is usually based on a consensus

of the faculty of the department. The Board could also

have found that the chairpersons were not acting as super-

visors with respect to their department budgets since they

lacked discretion in formulating them. Based on this evi-

dence, the Board was warranted in finding that the depart-

ment chairpersons are not supervisors. Indeed, the selec-

tion process for department chairpersons is such that they

represent the interests of the tenured professors of the

department rather than the University.

The record also amply supports the Board’s finding that

University chairpersons spend less than 50% of their time

supervising nonunit employees. The chairperson is nor-

mally a member of the department who takes on the assign-

ment for varying periods of time without losing standing

in the department. A frequent career step for a department

chairperson is to return to a position as full-time professor.

DID THE BOARD ABUSE ITS DISCRETION IN

EXCLUDING THE FACULTIES OF THE SCHOOLS

OF LAW, GRADUATE DENTISTRY, AND MEDI.

CINE AND PART-TIME FACULTY FROM THE

BARGAINING UNIT?

The determination of the composition of a bargaining

unit is almost entirely a factual determination for the

*Boston University objects to the Board’s use of the 50% rule

on ce grounds: one, Ane —_ »Rncob ome — evidence in ee

record to support its i t t persons actually

devoted less than 50% of their time to supervision, and two, that

the rule is unrealistic and unworkable in a university setting and

should be invalidated as a matter of law. We think that the record

amply supports the finding of the Board that the ti

supervisory duties ‘‘reached a maximum of five

among the many chairmen who testified.’’ In this case, the Board

did not rely on the 50% rule. We intimate no view as to the validity

of the rule where the time hes

< 50%. supervisory closely approac

OPINION OF THE COURT. ll

Board. South Prairie Construction Co. v. Operating Engi-

neers, 425 U.S. 800 (1976); NLRB v. Diamond Standard

Fuel Corp., 437 F.2d 1163 (1st Cir. 1971). We have said

that a unit which the Board finds appropriate is entitled

to stand unless it is a ‘‘crude gerrymander.”’ §. D. Warren

Co. v. NLRB, 353 F.2d 494, 498 (1st Mir. 1965), cert. denied,

383 U.S. 958 (1966). The party opposing the Board’s unit

determination must show that the unit selected is ‘‘clearly

not appropriate.’’ Banco Credito v. NLRB, 390 F.2d 110,

112 (1st Cir.), cert. denied, 393 U.S. 832 (1968).

The University’s best case with respect to the exclusion

of the three professional school faculties lies with the

‘School of Law. Unlike the Schools of Medicine and Grad-

uate Dentistry, the law school is on the University’s main,

Charles River, campus. It shares a building with another

school which was included in the bargaining unit, the

School of Education, and its dean reports to the same aca-

demic vice-president as do most of the schools which are

in the bargaining unit. None of these factors apply to the

other two excluded schools. The Schools of Graduate Den-

tistry and Medicine are on a separate campus, approxi-

mately a mile away from the main campus, and report to

the Academic Vice-President for Health Affairs.® As a

result of these differences, there is relatively little inter-

action between the faculty members from the Schools of

Graduate Dentistry and Medicine and the members of the

bargaining unit as compared with the School of Law.

The Board’s determination concerning the School of

Law was neither novel nor unfounded.* The principal fault

* Several other schools which were included in the bargaining

unit also re to the Academic Vice-President for Health Affairs.

They are: of Nursing, School of Social Work, Sargent Col-

* Some other decisions in which law schools were out of

ion faculty units in varying cireumstances : iversit

of Miews, supre. 518 NLRP ; University of Bon Proncisce,

12 TRUSTEES OF BOSTON UNIVERSITY V. NLRB

which can be found with its determination is that some

of the reasons given for separating the law school from

the other Charles River campus schools would be equally

applicable to the University’s other professional schools,

e.g., the Schools of Engineering, Public Communications,

Management, and, perhaps, even the Schools of Fine Arts,

Nursing, and Sargent College of Allied Health. Each of

these schools occupies a separate building less centrally

located on the campus than the one occupied by the School

of Education and the School of Law. However, we do not

review the Board’s decision de novo, but must determine

only if it has abused its discretion. Diamond Standard,

supra, 437 F.2d at 1164; S.D. Warren Co., supra, 353 F.2d

494; Swift & Co., supra, 292 F.2d at 563. It can be argued,

based on the above factors, that the Board should have

included the law school and, perhaps even the Schools of

Graduate Dentistry and Medicine within the bargaining

unit. But these facts can also be used to argue that the

Board should have excluded the other professional schools.

See Fordham University, supra, 193 NLRB 134. But, how-

ever viewed, these facts do not establish conclusively that

the Schools of Law, Graduate Dentistry and Medicine

must be part of the bargaining unit.

Moreover, there are significant differences between the

law school and the other graduate schools included in the

bargaining unit. It occupies its own segment of the building

which it shares with the School of Education with a sep-

arate entrance and separate lobby and elevators. The dean

of the law school, not the University Space Planning Com-

mittee, controls the assignment of rooms and space in the

law school area. It has its own admissions office and reg-

istrar and keeps its own records. The law school has a

supra, 207 NILRB 12; Catholic University, supra, 201 NLRB 929;

Fordham U: ity, supra, 193 NLRB 134. In Pairleigh-Dickinson,

supra, 205 NLRB 3, the Board included the dental faculty in a

unit of university faculty.

°*47

OPINION OF THE COURT. 13

separate library in a separate building with access only

through buildings or areas controlled by it. It makes in-

dependent recommendations for financial aid, has a sep-

arate academic calendar and a distinct and separate grad-

uation ceremony.

The law school, like the Schools of Dentistry and Medi-

cine, has significant independent resources, although its

budget is reviewed in the same manner as the other schools.

Its endowment, exceeded only by the School of Medicine

and Dentistry in the entire University, is the largest

of any of the schools on the Charles River campus. The

law school] maintains its own fund raising mechanism, and

it does not divide contributions with the University as do

the other schools on the main campus. These differences are

important elements in determining what the faculties of

the respective schools can realistically expect from col-

lective bargaining.

The difference in faculty salaries between the law school

and the included schools must have played a key role in the

Board’s decision. While the average salary for law profes-

sors is $27,000, the average salary for all Charles River

campus professors, including the law school, is approxi-

mately $17,000. We must also take judicial notice of the

fact that many law school professors are able to supple-

ment their incomes either by the practice of law, publish-

ing legal material or other legally related activities.

Tenure, one of the most important quasi-economic issues

for bargaining, is obtained on the average in three years

at the law school while ii takes approximately six years

at the other Charles River Campus schools.”

Viewed as a whole, we cannot say that the Board’s

decision as to the law school was arbitrary or not based on

™ We do not think that the + erage Sag the law school faculty

maintains closer ties to its profession that of the other schools

is particularly helpful. Nor do we consider faculty luncheon cus-

toms of probative value on this issue.

14 TRUSTEES OF BOSTON UNIVERSITY VU. NLEB

substantial evidence. Since the Schools of Medicine and

Graduate Dentistry are physically separate from the main

campus and since all of the factors discussed as to the

law school are even more applicable to them, it follows that

the Board’s ruling is sustained as to them.

THE PART-TIME FACULTY

The Board excluded all part-time faculty. Since its deci-

sion in New York University, supra, 205 NLEB 4, 6, 7, it

has consistently excluded all part-time faculty not employed

in ‘‘tenure track’’ positions.* The Board found that ‘‘gen-

erally only full-time members are eligible [for tenure].’’

The reason for the exclusionary rule is that they have ‘‘no

mutuality of interest [with full-time faculty in] (1) comp-

ensation, (2) participation in University Government, (3)

eligibility for tenure, and (4) working conditions.’’ New

York University, supra, 205 NLRB at 6-7. To this we add

that the part-time faculty do not share the same benefit

package nor are they generally as dependent on the Uni-

versity either for financial support or for continuing their

careers and life style. These reasons, and others cited by

the Board, are more than sufficient to sustain the exclu-

sion of part-time faculty from the bargaining unit.

DID THE BOARD ABUSE ITS DISCRETION IN

OVERRULING THE UNIVERSITY’S ELECTION

OBJECTION WITH RESPECT TO AN ARTICLE

CONCERNING PRESIDENT JOHN SILBER IN

THE AAUP BULLETIN?

One of the lead articles appearing in the AAUP Bulletin

in April of 1975 was a book review by Alan Grob en-

titled ‘‘Invasion In Austin.’’ The book under review, ‘‘Our

® Decisions in which part-time have brza included in the

unit are all cases prior to New York U , supra, 305 NLRB 4.

Since then, the has been to keep the part-time faculty

OPINION OF THE COURT. 15

Invaded Universities,’ has portrayed John Silber, now

President of Boston University and then Dean of Arts and

Sciences at Texas University, in a favorable light. Profes-

sor Grob’s article was critical of the portrait and accused

Silber of unfairly interfering with the rights of an in-

structor in an employment dispute with the University of

Texas. The University claims that the article was, at the

least, inaccurate and, at the most, a deliberate distortion

of the truth. It asserts that, since it did not learn of the

article until May 8 and the election was scheduled and held

on May 14, it had no opportunity fo reply to the charges.

The Board’s policy has been to set aside an election where

there has been a material misrepresentation of fact made by

one who had special knowledge or was in a position to

know the true facts and where there was no opportunity

to correct the misrepresentation of fact made by one who

had special knowledge or was in a position to know the

true facts and where there was no opportunity to correct

the misrepresentation before the election. Celanese Corp-

oration of America v. NLRB, 291 F.2d 224, 226 (7th Cir.

1961).

Had this article been published in another setting, we

might well find that it impaired the employees’ freedom

of choice in the election, but it was published in a union

organ by a writer who had no personal knowledge of the

facts. See NLRB v. Gilmore Industries, Inc., 341 F.2d 240,

241 (6th Cir. 1965); NLRB v. Houston Chronicle Publish-

ing Co., 300 F.2d 237 (5th Cir. 1962); NLRB v. Shirlington

Supermarket, 224 F.2d 649 (4th Cir.), cert. denied, 350

U.S. 914 (1955). It concerned an event that took place

seven to eight years prior in a differont University. The

voters in this election were as sophisticated and literate

a group as ever votes in a union certification election, and

they had the advantage of four and one-third years of

experience under the administration of the man criticized

16 TRUSTEES OF BOSTON UNIVERSITY V. NLRB

in the article. One of the circumstances which we must take

into account is the sophistication of the work force involved,

In Modine Manufacturing Company, 203 NLRB 527 (1973),

enforced, 500 F.2d 914 (8th Cir. 1974), the Board stated:

We must, we think, be allowed a reasonably broad

area of discretion in judging whether the alleged mis-

representation is prima facie sufficient to justify

either a hearing or a rerun election. There are many

intangibles going into such a judgment. We may, for

example, take into account the current degree of

sophistication of the voters at a particular time or in

a particular area of the country. We may also call

into play the expertise we develop in observing through

our own eyes and through the eyes of regional person-

nel indirectly involved‘in the conduct of some 9,000

elections a year. For we are faced in each case with

a judgment both as to how material alleged misrep-

resentations in a given subject area may be in a partic-

ular place and in a background of the tenor of the

particular time. We may also appropriately bear in

mind the character of the particular work force in-

volved and what we observe to be the reputation and

the relative strength of the employer or the labor

organization alleged to have made a material mis-

representation. Jd. at 531.

Given this particular unit and the time span, there is no

reason why the article should have prejudiced the faculty

or influenced its voting unfairly.

FREEDOM OF INFORMATION ACT ISSUE

The fourth issue is whether the University is entitled to

material gleaned by the Board in its investigation of the

University’s objections to the Board certification election.

The Board argues, and the district court found, that the

information which is sought comes within Exemption 7(A)

of the Freedom of Information Act. We have previously

OPINION OF THE COURT. 17

decided two cases on the question of the FOIA’s ap-

plicability to information garnered during an investigation

of an unfair labor practice charge, New England Medical

Center v. NLRB, 548 F.2d 377 (1st Cir. 1976), and Good-

friend Western Corp. v. Fuchs, 535 F.2d 145 (1st Cir.),

cert. denied, 429 U.S. 834 (1976). Because of the extensive

analysis in New England Medical Center and in Title

Guarantee Co. v. NLRB, 534 F.2d 484 (2d Cir.), cert. denied,

429 U.S. 834 (1976), we deal only with the arguments which

the University advances in attempting to distinguish this

case from those cited above.®

*In Robbins Tire and Rubber Co. v. NLRB, 563 F.2d 724 (5th

Cir. 1977), cert. granted, 46 U.S.L.W. 3511 (2/21/78), the Fifth

Cireuit considered a similar situation to the ones here and in New

England Medical Center, Goodfriend Western Corp., and Title

Guarantce and held that it could not

agree with the Board’s assertion that disclosure of witnesses’

statements would inevitably interefere with enforcement pro-

ceedings even in the sense that it would always allow liti-

gants greater discovery than they otherwise would obtain.

Robbins Tire and Rubber Co., supra, 563 F.2d at 730.

However, the Fifth Circuit has consistently ordered broader dis-

covery than the Board is generally willing to grant and broader

than has been forced on the Board by other circuits. See e¢.g.,

NLRB v. Rez Disposables, 494 F.2d 588, 592 (5th Cir. 1974) ;

NLRB v. Miami Coca-Cola Bottling Co., 403 F.2d 994 (5th Cir.

1968) ; NLRB v. Safway Steel Scaffolds Co., 383 F.2d 273 (5th

Cir. 1967), cert. denicd, 390 U.S. 955 (1968). Sée also Charlotte-

Mecklenburg Hospital Authority v. Lowell W. Perry, Chairman o

the E nity Commission, etc., Nos. 76-2272 and 227

(4th Cir. 4, 1977). Compare NLRB v. Hardeman Garment

Corp., 557 F.2d 559 (6th Cir. 1977) ; New England Medical Center,

supra, 548 F.2d at ; Roger J. Au & Son, Inc. v. NLRB, 538

F.2d 80 (3d Cir. 1976) ; NLRB v. Martin A. Gleason, Inc., 584 F.2d

466, 481 (2d Cir. 1976); Combs v. State of Tenn., 530 F.2d 695

(6th Cir.), cert. ied, 96 S.Ct. 1781 (1976); D’Youville Manor

v. NLRB, 526 F.2d 3, 7 (1st Cir. 1975) ; NLRB v. Liedale Knitting

Mills, Inc., 523 F.2d 978 (2d Cir. 1975); NLRB v. Interboro Con-

tractors, Inc., 432 F.2d 854, 859-869 (2d Cir. 1970), cert. denied,

402 U.S. 915 (1971); Electromec Design and Development Co. v.

NERB, 409 F.2d 631, 685 (9th Cir. 1965).

We have read Charlotte-Mecklenburg Hospital Authority v. Perry,

16 F.E.P. 680 (4th Cir. Jan. 26, 1978), submitted by the attorney

18 TRUSTEES OF BOSTON UNIVERSITY UV. NLRB

Boston University attempts to distinguish its case from

New England Medical Center and Goodfriend Western

Corporation on the basis that it seeks only material and

facts which were gathered pursuant to the University’s

objection to the Board certification election, not the ma-

terial gathered pursuant to the unfair labor practice char-

ges made by the Union as was the situation in the cited

cases, At the outset, we note that the factors bearing on the

‘*closed’’ election objection files are little different from

those concerning the ‘‘closed’’ unfair labor practice charge

in New England Medical Center, supra, 548 F.2d at 385-

387.

The University itself points out in its brief that the

election objection case and the pending enforcement and

unfair labor practice actions are really one and the same

when it asserts that the ‘‘principal purpose in seeking

the information is an unfair labor practice case in which

the university is the respondent.’’ Brief at 10, 25. In its

brief at pages 19-20, the University states:

The only way the University can obtain judicial re-

view of the representation proceeding, the conduct

of which the University has objected to numerous

times, is by refusing to bargain with the Board-

certified union. ... The pending enforcement proceed-

ing against Boston University . . . is, in essence, a

procedural device to test the Board’s certification ... .

Thus, the University’s argument that the case is closed

and that the Board’s case can no longer be frustrated by

revealing the contents of its files is internally inconsis-

tent. As the Tenth Circuit said in AMF Head v. NLRB,

564 F.2d 374, 375 (10th Cir. 1977) :

University. We are also aware that the United States

Suovene teaes bene ted certiorari in the Fifth Circuit case,

Robbins Tire and R Co. v. NLRB, supra. Since the rule in

this circuit has been well established, we continue to adhere to it.

OPINION OF THE COURT. 19

It would be anomalous indeed for us to hold at this

juncture that the exemption ceases to protect once

the proceedings before the NLRB have ended, for this

is not the end of the enforcement proceedings. To hold

in accordance with the argument of the AMF Head

Division would mean that the F.O.I.A. machinery

could be used for the purpose of obtaining information

in aid of the review of the unfair labor practice pro-

ceedings in this court. Various evidence would be

tendered in this, an appellate court, in an effort to

obtain a reversal. Thus, the discovery effort would

be employed to affect the outcome of the enforcement

proceedings. It is to be noted at the time of the trial

court’s decision that the present body of law had

not developed. Furthermore, there is no assurance

that the NLRB cause will not be remanded to that

Board for further proceedings.

Even if we remand, the appropriate procedure would be

for the University, if it still wants the information, to

return to the Board and make a new request for the in-

formation on the basis of the new factual situation. Re-

view of this new determination would, of course, be avail-

able in the district court. See New England Medical Cen-

ter, supra, 548 F.2d at 387 (denial of rehearing).

While we concur in part with the University’s contention

that ‘‘employee fear’’ is not a significant element of this

case because the materials sought are not employee state-

ments, we remain unconvinced that the sound reasons which

underlie the decisions cited above are inapplicable here.

The principal question here is not one of protecting the

sanctity of statements made by employees with an ex-

pectation of confidentiality.” The key question in exam-

cability of Exemption 5:

(5) inter-agency or intra-agency memorandums or letters

20 TRUSTEES OF BOSTON UNIVERSITY UV. NLRB

ining the claim under 7(A) ‘‘is whether production would

‘interfere’ with the pending enforcement proceeding,’’

New England Medical Center, supra, 548 F.2d at 382, or

upset the ‘* ‘delicate’. .. balance existing between employer

and employee in labor proceedings.” Id. at 387, citing

Title Guarantee, supra, 534 F.2d at 492. We think it would.

The University’s objection to the Board’s certification of

the election is a closed file only in the most technical sense

since the University has announced its intention to rely on

its objections as a defense to the unfair labor practices

charge. If the University is permitted to see the Board’s

files from the election case, the University will be able to

determine the boundaries of the Board’s information; that,

in turn, ‘‘will ‘interfere’ with Board proceedings by enabl-

ing a possible violator to construct defenses.’’ New England

Medical Center, supra, 548 F.2d at 386. Here, ‘‘the closed

file documents remain fully relevant to a specific pending

enforcement proceeding, although, to be sure, not the one

for which they were precisely intended.’ Jd. at 385.

DID THE BOARD ERR IN DENYING THE

UNION’S REQUEST FOR EXTRAORDINARY

RELIEF?

The Union attacks as insufficient the Board’s prospec-

tive bargaining order and complains that it erred in deny-

ing its request for extraordinary relief. Its complaint is

based on the premise that the University’s appeals were

dilatory and frivolous, designed only to avoid its statutory

obligation to bargain with the duly elected Union.

Because of the. Board’s ad hov and, at times, inconsis-

tent rulings in cases involving higher institutions of learn-

ing, we cannot say that the position of the University was

either frivolous or dilatory.

which would not be available by law to a party other than an

agency in litigation with the agency.

Because of our findings with regard to Exemption 7(A), no discus-

sion of Exemption 5 is necessary.

OPINION OF THE COURT. 21

The question of whether chairpersons are employees

or supervisors has always been a difficult one for the Board,

and the determination of the composition of a bargaining

unit in a university setting remains unsettled and may

never be susceptible of a fixed rule.

While we do not look with favor upon the attempt by

attorneys to use the Freedom of Information Act as a

discovery tool, we have become resigned to the fact that

it has now become almost a matter of rote to assert it in

cases involving government agencies,

The orders of the National Labor Relations Board in

Nos. 77-1143 and 77-1875 are to be enforced, and the dis-

trict court is affirmed in No. 77-1296.

Adm. Office, U. 8. Courts — Blanchard Press, Inc., Boston, Mass.

Appendix B.

MJP

228 NLRB No. 120 D-1925

Boston, Mass.

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS

BOARD

TRUSTEES OF BOSTON UNIVERSITY

and

BOSTON UNIVERSITY CHAPTER, AMERICAN

ASSOCIATION OF UNIVERSITY PROFESSORS

Case 1-CA-11061

DECISION AND ORDER

Upon a charge filed on September 23, 1975, by Boston

University Chapter, American Association of University

Professors, herein called the Union, and duly served on

Trustees of Boston University, herein called the Respond-

ent, the Acting General Counsel of the National Labor

Relations Board, herein called General Counsel, by the

Regional Director for Region 1, issued a complaint on Oc-

tober 8, 1975, against Respondent, alleging that Respond-

ent had engaged in and was engaging in unfair labor prac-

tices affecting commerce within the meaning of Section

8(a)(5) and (1) and Section 2(6) and (7) of the National

Labor Relations Act, as amended. Copies of the charge,

complaint, and notice of hearing before an Administrative

Law Judge were duly served on the parties to this pro-

ceeding.

With respect to the unfair labor practices, the complaint

alleges in substance, and the record shows, that on August

13, 1975, following a Board election in Case 1-RC-13564

the Union was duly certified as the exclusive collective-

bargaining representative of Respondent’s employees in

the unit found appropriate ;' and that, commencing on or

about August 27, 1975, and at all times thereafter, Re-

spondent has refused, and continues to date to refuse, to

bargain collectively with the Union as the exclusive bar-

gaining representative, although the Union has requested

and is requesting it to do so. On November 4, 1975, Re-

spondent filed its answer to the complaint admitting in

part, and denying in part, the allegations in the complaint,

On November 28, 1975, counsel for the General Counsel

filed directly with the Board a Motion for Summary Judg-

ment, Subsequently, on December 12, 1975, the Board is-

sued an order transferring the proceeding to the Board

and a Notice To Show Cause why the General Counsel’s

Motion for Summary Judgment should not be granted. On

December 17, 1975, the Union filed a motion that the Board,

in ruling on the Motion for Summary Judgment, grant,

in addition to a bargaining order, certain specific relief,

Respondent requested and received two extensions of time

to file a response to the Notice to Show Cause, the last

extension setting January 15, 1976, as the date for receipt

of its response.

On January 13, 1976, the United States District Court

for the District of Massachusetts issued an order tempo-

rarily restraining the Board from requiring a response to

’ Official notice is taken of the record in the representation pro-

ceeding, Case 1-RC-13564, as the term ‘‘record”’ is defined in Sees.

102.68 and 102.69(g) of the Board’s Rules and Regulations, Series

8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938

(1967), enfd. 388 F.2d 683 (C.A. 4, 1968) ; Golden Age Beverage

Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969) ; In-

tertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967) ; Follett

Corp., 164 NLRB. 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968) ;

Sec. 9(d) of the NLRA, as amended.

the Notice To Show Cause and from all other proceedings

herein until further order? On April 8, 1976, unaware of

the court’s order, the Board inadvertently issued a Deci-

sion and Order in these proceedings. When the court’s

temporary restraining order was called to its attention,

the Board, on April 13, 1976, issued an Order vacating

that Decision and Order, On April 19, 1976, the Board

filed a motion with the district court to have the tempo-

rary restraining order set aside and on October 28, 1976,

renewed its motion. On November 12, 1976, the district

court dissolved the restraining order,

Thereafter, on November 16, 1976, Respondent requested

a due date for its response to the Notice To Show Cause

and the Board set December 1, 1976, as the due date. The

response was filed on December 2, 1976. On December 30,

1976, the Union renewed its motion for specific relief.

Pursuant to the provisions of Section 3(b) of the Na-

tional Labor Relations Act, as amended, the National La-

bor Relations Board has delegated its authority in this

proceeding to a three-member panel.

Upon the entire record in this proceeding, the Board

makes the following:

Ruling on the Motion for Summary Judgment

In its answer to the complaint and response to the No-

tice To Show Cause, Respondent, in substance, (1) at-

tacks the validity of the certification based on its unit

contentions and its objections to the election; (2) contends

for the first time that faculty are managerial employees ;

and (3) argues that a hearing (a) should have been held

on its objections because of the Regional Director’s fail-

ure to conduct an adequate investigation and (b) should

now be held to receive newly discovered and previously

* Trustees of Boston University v. N.L.R.B., Civil Action 76-

115-M,

unavailable evidence. The General Counsel contends that

the Respondent seeks to relitigate issues resolved in the

prior representation case and has raised no issue requir-

ing a hearing. We agro.

Review of the record, including that of the representa-

tion proceeding, Case 1-RC-13564, establishes that, after

a hearing, the Regional Director on April 17, 1975, issued

a Decision and Direction of Election ordering an election

in the appropriate unit of all full-time teaching members

of the Respondent’s faculty. Subsequently, Respondent

filed a timely request for review and a brief in support,

arguing that, contrary to the Regional Director’s decision,

(1) department chairmen and directors of academic pro-

grams and centers were supervisors or managerial em-

ployees and should be excluded from the unit and (2) all

part-time faculty and the faculty of the schools of law,

medicine, and dentistry should be included. By telegram

of May 13, 1975, the Board denied Respondent’s request

for review as raising no substantial issues warranting re-

view.’

An election by manual and mail ballots was held. On

June 3, 1975, the manual and mail ballots were commingled

and counted. The tally of ballots showed 394 votes cast

for the Union, 262 against, and 40 challenged ballots. Re-

spondent filed timely objections to the election and supple-

mental objections, alleging in substance that (1) the Board

breached its responsibility to conduct an election at a time

and in a manner which would afford the maximum number

of faculty the opportunity to vote,‘ and (2) last-minute

* Members Kennedy and Pencllo dissented from certain inclu-

sions and eyelusions,

*The breach allegedly arose in that the election was conducted

after the close of classes, should have been entirely by mail ballot,

and did not accord overseas faculty sufficient time to receive and

return mail ballots.

union misrepresentations were contained in a book review

in the Spring issue of the “AAUP Bulletin”? (Vol. 61, No.

1), charging the Respondent’s president with violations of

academic freedom in 1968-69 while he was dean of the

college of Arts and Sciences at the University of Texas.

Subsequently, Respondent requested a hearing on its ob-

jections. The Union filed a response requesting attorney’s

fees and costs on the grounds that Respondent’s objec-

tions were frivolous, After investigation, the Acting Re-

gional Director issued his Supplemental Decision and Cer-

tification of Representative on August 13, 1975, denying

Respondent’s hearing request and overruling its objec-

tions. With respect to the conduct of the election, the

Regional Director found that (1) at the time the date and

method of election were established there was no evidence

that participation would be inadequate and, in any event,

there was adequate participation and (2) the fact that

some overseas faculty members were not able to timely

cast mail ballots did not warrant setting aside the elec-

tion since these ballots were insufficient to affect the elec-

tion results. Regarding the alleged misrepresentations, the

Regional Director found that, even assuming Respondent

had no opportunity to respond, (1) the alleged misrepre-

sentations were not so substantial as to warrant setting

aside the election; (2) the book review charging the Re-

spondent’s president with violations of academic freedom

constituted opinion and would not be viewed as a state-

ment of fact by such a sophisticated electorate; and (3)

the events described therein were too remote in time and

place to have a substantial and significant impact on the

Voters, especially since Respondent’s president had held

that position for over 4 years at the time of the election.

Pe oo

Accordingly, the Acting Regional Director certified the

Union.

Respondent filed a request for review reiterating its ob-

jections and seeking a hearing based on (1) its objections,

(2) the Regional Director’s failure to conduct a meaning-

ful and thorough investigation of its objections, and (3)

its contention that, due to the fact that the Board has not

acquired a level of expertise in dealing with faculty mem-

bers equivalent to its expertise in an industrial setting,

the factors outlined in Modine,® which permit the Board

to make informed decisions without hearings on typical

misrepresentations in industrial cases, were not present

here. The Union filed an opposition and also requested

review of its request for attorney’s fees and costs be-

cause of Respondent’s frivolous objections —a request

upon which the Acting Regional Director did not rule. On

September 17, 1975, the Board by telegram denied Re-

spondent’s request for review for lack of substantial is-

sues warranting review and declined to award attorney’s

fees and costs to the Union on the grounds that the ob-

jections filed, though not meritorious, were not frivolous

or otherwise warranting the award of such fees and costs.

It is well settled that in the absence of newly discovered

or previously unavailable evidence or special circumstances

a respondent in a proceeding alleging a violation of Sec-

tion 8(a)(5) is not entitled to relitigate issues which were

or could have been litigated in a prior representation pro-

ceeding.®

All issues raised by the Respondent in this proceeding

were or could have been litigated in the prior representa-

5 Modine Manufacturing Company, 203 NLRB 527 (1973).

*See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162

(1941) ; Rules and Regulations of the Board, Sees. 102.67(f) and

102.69 (¢).

tion proceeding,’ and the Respondent does not offer to ad-

duce at a hearing any newly discovered or previously un-

available evidence,® nor does it allege that any special cir-

cumstances exist herein which would require the Board to

reexamine the decision made in the representation proceed-

ing. We therefore find that the Respondent has not raised

any issue which is properly litigable in this unfair labor

practice proceeding.® We shall, accordingly, grant the Mo-

tion for Summary Judgment.

7 In its response to the Notice to Show Cause Respondent con-

tends for the first time that the faculty are managerial employees

excluded from coverage of the Act. In the representation case

where Respondent argued that a unit of all faculty was appro-

priate, Respondent raised the issue of managerial status only with

respect to department chairmen and directors, which contention

was rejected. As the contention that all faculty are managerial

employees could have been raised in the representation case, Re-

spondent may not litigate that issue in these proceedings.

*In its response to the Notice to Show Cause, Respondent con-

tends that October and November 1975 correspondence disclosing

a reply by the book’s author to the review, which the Union de-

clined to publish in a postelection issue of its magazine, consti-

tutes previously unavailable and newly discovered evidence since

it reflects the continuing significance of the controversy and the

Uhion’s recognition of the gravity of its misrepresentations. As-

suming, arguendo, the accuracy of this evidence, we are not per-

suaded that it would affect the determination to overrule the

misrepresentation objection or would warrant a hearing thereon.

* In its answer to the complaint, Respondent specifically denies

the status of the Union as a labor organization, the appropriate-

ness of the unit, and the allegations with respect to the Union’s

representative status. In the underlying representation proceed-

ing, Case 1-RC-13564, the Union’s status as a labor organization

within the meaning of Sec. 2(5) of the Act was determined and,

accordingly, it is not subject to litigation in the instant unfair

labor practice proceeding. Similarly, Respondent litigated the unit

appropriateness and the Union’s representative status in the rep-

resentation case and may not relitigate them here.

In its motion for specific relief, the Union requests that

the Board, in addition to the usual bargaining order en-

tered in refusal-to-bargain cases, issue an order that all

contract provisions involving salaries or fringe benefits be

retroactive and further require Respondent to supply in-

formation for bargaining, to mail any order issued herein

to each member of the unit and of Respondent’s board of

trustees, and to pay costs and attorney’s fees because of

Respondent’s frivolous objections and refusal to bargain.

We decline to grant the Union’s request for such extraor-

dinary relief,

By its request for retroactivity of certain contract pro-

visions, the Union in affect is asking the Board to estab-

lish the effective date of the contract with respect to these

terms. Since the Board is without power to compel par-

ties to agree to any such substantive provision of a col-

lective-bargaining agreement, we shall deny this request,’°

Likewise, we will not grant the Union’s request for an

order that Respondent supply bargaining information since

an employer is under no obligation to furnish information

in the absence of an actual request therefor and here there

was no such request,"

In the prior representation case, the Board rejected the

Union’s request for attorney’s fees and costs on the

grounds that Respondent’s election objections were not

frivolous. Since Respondent’s defense herein, based upon

its objections, is not patently frivolous, we hereby deny

the request for payment of costs and attorney’s fees,"

H. K. Porter Co., Ine. y. N.L.R.B., 397 US. 99 (1970).

14. H. Belo Corporation ( WFAA-TV) y. N.L.R.B., 411 F.2d

959 (C.A. 5, 1969), cert. denied 396 U.S. 1007 (1970), enfg.

170 NLRB 1558 (1968).

12 Heck’s Inc., 215 NLRB 765 (1974). Nor does Respondent’s

allegedly frivolous Freedom of Information Act request warrant

a different conclusion,

Finally, since there is herein no pattern of widespread

and pervasive unlawful conduct requiring individual reas-

surance that the statutory rights of employees are pro-

tected, we decline the request for additional mailings of

the Board order.”

On the basis of the entire record, the Board makes the

following :

Findings of Fact

I. The Business of the Respondent

Respondent is and has been at all times material herein

a Massachusetts corporation with its principal office and

place of business at 147 Bay State Road, Boston, Massa-

chusetts (herein called the Charles River Campus), and is

now and continuously has been engaged at said campus

in the operation of a nonprofit educational institution from

which it derives an unrestricted annual gross income ex-

ceeding $1 million. Also, Respondent receives directly in

Massachusetts from points outside Massachusetts supplies

and materials having an annual value exceeding $50,000.

We find, on the basis of the foregoing, that Respondent

is, and has been at all times material herein, an employer

engaged in commerce within the meaning of Section 2(6)

and (7) of the Act, and that it will effectuate the policies

of the Act to assert jurisdiction herein.

Il. The Labor Organization Involved

Boston University Chapter, American Association of

University Professors, is a labor organization within the

meaning of Section 2(5) of the Act.

Cynteli Tool Company, 196 NLRB 1032 (1972), distinguish-

ing H. W. Elson Bottling Company, 155 NLRB 714 (1965) (cited

by the Union),

~~, eS --

7, ome PO -

III. The Unfair Labor Practices

A. The Representation Proceeding

1. The unit j

The following employees of the Respondent employed at

its Charles River Campus constitute a unit appropriate

for collective-bargaining purposes within the meaning of

Section 9(b) of the Act:

All full-time teaching members of the faculty at Bos-

ton University, including department and division

chairmen, area chairmen in the School of Theology,

sequence coordinators in the School of Social Work,

coordinators in the School of Nursing, the director of

the Teacher Training Project in Sargent College, the

directors of the African Studies Center, the Afro-

American Studies Program, the Center for Latin-

American Development Studies, the American and New

England Studies Program, the Center for Applied

Social Science, the Boston University Center for the

Philosophy and History of Science, the Continuing

Education Department in the School of Nursing, the

University Professors Program, faculty on leave (who

are visiting faculty at another educational institution

and who are otherwise eligible), and faculty in the

Overseas Program (who taught at the University im-

mediately prior to taking assignment in said Overseas

Program for a definite period of time and who are

¢ pected to return to the school or college of the Uni-

versity in Boston from which they came), but exclud-

ing all part-time faculty, all officers of the University,

deans, associate deans, assistant deans, administrative

support personnel, non-teaching professionals, librar-

ians, graduate assistants, teaching fellows, student em-

ployees, non-professional employees, coaches (who are

not otherwise eligible for inclusion), directors of the

schools of music, visual arts and theatre arts in the

School for the Arts, visiting faculty, all faculty, de-

partment chairmen and program directors in the

Schools of Law, Medicine and Graduate Dentistry, all

other employees, guards and supervisors as defined

in the Act.

2. The certification

On May 14, 1975, a majority of the employees of Re-

spondent in said unit, in a secret ballot election conducted

under the supervision of the Regional Director for Region

1, designated the Union as their representative for the

purpose of collective bargaining with the Respondent. The

Union was certified as the collective-bargaining repre-

sentative of the employees in said unit on August 13, 1975,

and the Union continues to be such exclusive representa-

tive within the meaning of Section 9(a) of the Act.

B. The Request To Bargain and Respondent’s Refusal

Commencing on or about August 20, 1975, and at all

times thereafter, the Union has requested the Respondent

to bargain collectively with it as the exclusive collective-

bargaining representative of all the employees in the

above-described unit. Commencing on or about August 27,

1975, and continuing at all times thereafter to date, the

Respondent has refused, and continues to refuse, to rec-

ognize and bargain with the Union as the exclusive repre-

sentative for collective bargaining of all employees in said

unit.

Accordingly, we find that the Respondent has, since Au-

gust 27, 1975, and at all times thereafter, refused to bar-

gain collectively with the Union as the exclusive repre-

sentative of the employees in the appropriate unit, and

that, by such refusal, Respondent has engaged in and is

engaging in unfair labor practices within the meaning of

Section 8(a)(5) and (1) of the Act.

IV. The Effect of the Unfair Labor

Practices Upon Commerce

The activities of Respondent set forth in Section III,

above, occurring in connection with its operations described

in section I, above, have a close, intimate, and substantial

relationship to trade, traffic, and commerce among the sev-

eral States and tend to lead to labor disputes burdening

and obstructing commerce and the free flow of commerce,

V. The Remedy

Having found that Respondent has engaged in and is

engaging in unfair labor practices within the meaning of

Section 8(a) (5) and (1) of the Act, we shall order that

it cease and desist therefrom, and, upon request, bargain

collectively with the Union as the exclusive representative

of all employees in the appropriate unit, and, if an under-

Standing is reached, embody such understanding in a

signed agreement,

In order to insure that the employees in the appropriate

unit will be accorded the services of their selected bargain-

ing agent for the period provided by law, we shall con-

strue the initial period of certification as beginning on the

date Respondent commences to bargain in good faith with

the Union as the recognized bargaining representative in

the appropriate unit. See Mar-Jac Poultry Company, Inc.,

136 NLRB 785 ( 1962) ; Commerce Company d/b/a Lamar

Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A,

5, 1964), cert. denied 379 U.S. 817 (1964) Burnett Con-

struction Company, 149 NLRB 1419, 1421 (1964), enfd.

350 F.2d 57 (C.A. 10, 1965).

The Board, upon the basis of the foregoing facts and

the entire record, makes the following:

Conclusions of Law

1. Trustees of Boston University is an employer en-

gaged in commerce within the meaning of Section 2(6) and

(7) of the Act,

2. Boston University Chapter, American Association of

University Professors, is a labor organization within the

meaning of Section 2(5) of the Act.

3. All full-time teaching members of the faculty at Bos-

ton University, including department and division chair-

men, area chairmen in the School of Theology, sequence

coordinators in the School of Social Work, coordinators

in the School of Nursing, the director of the Teacher

Training Project in Sargent College, the directors of the

African Studies ( enter, the Afro-American Stuc.es Pro-

gram, the Center for Latin-American Development Stud-

ies, the American and New England Studies Program, the

Center for Applied Social Science, the Boston University

Center for the Philosophy and History of Science, the Con-

tinuing Education Department in the School of Nursing,

the University Professors Program, faculty on leave (who

are visiting faculty at another educational institution and

who are otherwise eligible), and faculty in the Overseas

Program (who taught at the University immediately prior

to taking assignment in said Overseas Program for a defi-

nite period of time and who are expected to return to the

school or college of the University in Boston from which

they came), but excluding all part-time faculty, all officers

of the University, deans, associate deans, assistant deans,

administrative support personnel, non-teaching profession-

als, librarians, graduate assistants, teaching fellows, stu-

i i a

dent employees, non-professional employees, coaches (who

are not otherwise eligible for inclusion), directors of the

schools of music, visual arts and theatre arts in the School

for the Arts, visiting faculty, all faculty, department chair-

men and program directors in the Schools of Law, Medi-

cine and Graduate Dentistry, all other employees, guards

and supervisors as defined in the Act, constitute a unit

appropriate for the purposes of collective bargaining

within the meaning of Section 9(b) of the Act.

4. Since August 13, 1975, the above-named labor organ-

ization has been and now is the certified and exclusive rep-

resentative of all employees in the aforesaid appropriate

unit for the purpose of collective bargaining within the

meaning of Section 9(a) of the Act.

5. By refusing on or about August 27, 1975, and at all

times thereafter, to bargain collectively with the above-

named labor organization as the exclusive bargaining rep-

resentative of all the employees of Respondent in the ap-

propriate unit, Respondent has engaged in and is engag-

ing in unfair labor practices within the meaning of Sec-

tion 8(a)(5) of the Act,

6. By the aforesaid refusal to bargain, Respondent has

interfered with, restrained, and coerced, and is interfering

with, restraining, and coercing, employees in the exercise

of the rights guaranteed to them in Section 7 of the Act,

and thereby has engaged in and is engaging in unfair labor

practices within the meaning of Section 8(a)(1) of the Act.

7. The aforesaid unfair labor practices are unfair labor

practices affecting commerce within the meaning of Sec-

tion 2(6) and (7) of the Act.

ORDER

Pursuant to Section 10(¢) of the National Labor Rela-

tions Act, as amended, the National Labor Relations Board

(

hereby orders that Respondent, Trustees of Boston Uni-

versity, Boston, Massachusetts, its officers, agents, succes-

sors, and assigns, shall:

1. Cease and desist from:

(a) Refusing to bargain collectively concerning rates of

pay, wages, hours, and other terms and conditions of em-

ployment with Boston University Chapter, American As-

sociation of University Professors, as the exclusive bar-

gaining representative of its employees in the following

appropriate unit:

All full-time teaching members of the faculty at

Boston University, including department and division

chairmen, area chairmen in the School of Theology,

sequence coordinators in the School of Social Work,

coordinators in the School of Nursing, the director of

the Teacher Training Project in Sargent College, the

directors of the African Studies Center, the Afro-

American Studies Program, the Center for Tatin-

American Development Studies, the American and New

England Studies Program, the Center for Applied

Social Science, the Boston University Center for the

Philosophy and History of Science, the Continuing

Education Department in the School of Nursing, the

University Professors Program, faculty on leave (who

are visiting faculty at another educational institution

and who are otherwise eligible), and faculty in the

Overseas Program (who taught at the University im-

mediately prior to taking assignment in said Overseas

Program for a definite period of time and who are

expected to return to the school or college of the Uni-

versity in Boston from which they came), but exclud-

ing all part-time faculty, all officers of the University,

deans, associate deans, assistant deans, administrative

support personnel, non-teaching professionals, librar-

ians, graduate assistants, teaching fellows, student em-

ployees, non-professional employees, coaches (who are

not otherwise eligible for inclusion), directors of the

schools of music, visual arts and theatre arts in the

School for the Arts, visiting faculty, all faculty, de-

partment chairmen and program directors in the

Schools of Law, Medicine and Graduate Dentistry, all

other employees, guards and supervisors as defined in

the Act,

(b) In any like or related manner interfering with, re-

straining, or coercing employees in the exercise of the

rights guaranteed them in Section 7 of the Act.

2. Take the following affirmative action which the Board

finds will effectuate the policies of the Act:

(a) Upon request, bargain with the above-named labor

organization as the exclusive representative of all employ-

ees in the aforesaid appropriate unit with respect to rates

of pay, wages, hours, and other terms and conditions of

employment, and, if an understanding is reached, embody

such understanding in a signed agreement,

(b) Post at its Boston, Massachusetts, campus copies

of the attached notice marked ‘‘ Appendix.’ Copies of

said notice, on forms provided by the Regional Director

for Region 1, after being duly signed by Respondent’s rep-

resentative, shall be posted by Respondent immediately

upon receipt ‘hereof, and be maintained by it for 60 con-

In the event that this Order is enforced by a Judgment of a

United States Court of Appeals, the words in the notice reading

“POSTED BY ORDER OF THE NATIONAL LABOR RELA-

TIONS BOARD”? shall read ‘‘POSTED PURSUANT TO A

JUDGMENT OF THE UNITED STATES COURT OF AP-

PEALS ENFORCING AN ORDER OF THE NATIONAL LA-

BOR RELATIONS BOARD.”’

secutive days thereafter, in conspicuous places, including

all places wheré@ notices to employees are customarily

posted, Reasonable steps shall be taken by Respondent to

insure that said notices are not altered, defaced, or cov-

ered by any other material.

ing, within 20 days from the date of this Order, what steps

have been taken to comply herewith.

Dated, Washington, D.C. March 22, 1977

Betty Southard Murphy, Chairman

Howard Jenkins, Jr., Member

John A. Penello, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

WE WILL NOT refuse to bargain collectively concern-

ing rates of pay, wages, hours, and other terms and con-

ditions of employment with Boston University Chapter,

American Association of University Professors, as the ex-

clusive representative of the employees in the bargaining

unit described below.

WE WILL NOT in any like or related manner interfere

with, restrain, or coerce our employees in the exercise of

the rights guaranteed them by Section 7 of the Act.

WE WILL, upon request, bargain with the above-named

Union, as the exclusive representative of all employees

in the bargaining unit described below, with respect to

rates of pay, wages, hours, and other terms and condi-

tions of employment, and, if an understanding is reached,

embody such understanding in a signed agreement. The

bargaining unit is:

All full-time teaching members of the faculty at

Boston University, including department and division

chairmen, area chairmen in the School of Theology,

sequence coordinators in the School of Social Work,

coordinators in the School of Nursing, the director of

the Teacher Training Project in Sargent College, the

directors of the African Studies Center, the Afro-

American Studies Program, the Center for Latin-

American Development Studies, the American and New

England Studies Program, the Center for Applied

Social Science, the Boston University Center for the

Philosophy and History of Science, the Continuing

Education Department in the School of Nursing, the

University Professors Program, faculty on leave (who

are visiting faculty at another educational institution

and who are otherwise eligible), and faculty in the

Overseas Program (who taught at the University im-

mediately prior to taking assignment in said Overseas

Program for a definite period of time and who are

expected to return to the school or college of the Uni-

versity in Boston from which they came), but exclud-

ing all part-time faculty, all officers of the University,

deans, associate deans, assistant deans, administrative

support personnel, non-teaching professionals, librar-

ians, graduate assistants, teaching fellows, student em-

ployees, non-professional employees, coaches (who are

not otherwise eligible for inclusion), directors of the

schools of music, visual arts ard theatre arts in the

School for the Arts, visiting faculty, all faculty, de-

partment chairmen and program directors in the

Schools of Law, Medicine and Graduate Dentistry, all

other employees, guards and supervisors as defined in

the Act.

TRUSTEES O# BOSTON UNIVERSITY

(Employer)

Dated By

(Representative) (Title)

This is an official notice and must not be defaced by any

one, :

This notice must remain posted for 60 consecutive days —

from the date of posting and must not be altered, defaced,

or covered by any other material. Any questions concern-

ing this notice or compliance with its provisions may be

directed to the Board’s Office, Keystone Building, 12th

Floor, 99 High Street, Boston, Massachusetts 02110, Tele-

phone 617-223-3348,

Appendix C.

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

FIRST REGION

CASE NO. 1-RC-13,564

In the Matter of

TRUSTEES OF BOSTON UNIVERSITY

Employer '

and

BOSTON UNIVERSITY CHAPTER,

AMERICAN ASSOCIATION

OF UNIVERSITY PROFESSORS

Petitioner

DECISION AND DIRECTION OF ELECTION

Upon a petition duly filed under Section 9(c) of the

National Labor Relations Act, a hearing? was held be-

* The name of the Employer appears as amended at the hearing.

* After the close of the hearing, the University moved to reopen

the record to receive evidence, not available at the time of the

hearing, in the form of statements allegedly made by two unioa

officials, who are also faculty members of the University, published

in a student-operated newspaper distributed throughout the Uni-

versity community. The University contends that from these state-

ments it can be concluded that: (1) the Petitioner believes part-

time faculty have a community of interest with the full-time fac-

ulty, contrary to its position at the hearing that no such commu-

nity of interest existed, and (2) that the extent of organization of

the faculty of Boston University is of controlling significance to

the principal officers of the petitioning union in respect to those

groups it seeks to exclude from the unit.

fore a hearing officer of the National Labor Relations

Board. The hearing officer’s rulings made at the hearing

are free from prejudicial error and are hereby affirmed.

Pursuant to the provisions of Section 3(b) of the Act,

the Board has delegated its powers in connection with

this case to the undersigned Regional Director.

1, The Employer is engaged in commerce within the

meaning of the Act and it will effectuate the purposes

of the Act to assert jurisdiction herein.

2. The labor organization involved claims to represent

certain employees of the Employer.’

Assuming arguendo, that the statements allegedly made are true,

and that the alleged conclusions may properly be drawn from such

statements.

(1) The findings made regarding the composition of the unit here-

in are based on facts established in the record and applicable Board

precedent. Absent a stipulation of the parties, what their indi-

vidual views may be is not considered in making such findings.

(2) Section 9(c)(5) states: ‘‘In determining whether a unit is

appropriate for the purposes specified in subsection (b) the extent

to which the employees have organized shall not be controlling’’.

In N.L.R.B. v. Metropolitan Life Insurance Company, 380 U.S.

438, the court stated, in substance, that extent of organization may

be taken into consideration, together with other factors, provided

of course, that it is not the governing factor. The unit found ap-

propriate herein is based on an extensive factual record and es-

tablished Board precedent. Even if the alleged evidence were to

prove that Petitioner’s motive in seeking the unit encompassed by

its position is guided by the extent to which the union has organized,

it is immaterial so long as the Board in its choice of an appropriate

unit, does not give controlling weight to that fact. Allied Stores

of New York, Inc. d/b/a Stearns, Paramus, 150 NLRB 799, 807.

Accordingly the motion is denied.

*The Employer declined to stipulate that Petitioner is a la-

bor organization within the meaning of Section 2(5) of the Act,

on the grounds that a minority of members may oppose Petition-

er’s collective bargaining objective, and that it may not have filed

certain reports required by law. The record is clear and uncon-

tradicted that Petitioner, a Chapter of the National American

Association of University Professors, in existence since the early

3. A question affecting commerce exists concerning the

representation of certain employees of the Employer with-

in the meaning of Section 9(c)(1) and Section 2(6) and

(7) of the Act.

Trustees of Boston University, colloquially known as

Boston University (the University, herein) is a private,

non-profit educational institution, incorporated under the

laws of the Commonwealth of Massachusetts, with offices

and principal academic facilities located in two sections of

Boston. The Charles River Campus, approximately a mile

and a quarter in length, covering over forty-five acres,

contains fourteen of the University’s sixteen schools and

colleges. They are, College of Liberal Arts, Graduate

School, School of Education, School of Management, Col-

lege of Basic Studies, College of Engineering, School for

the Arts, School of Public Communications, School for

Social Work, Metropolitan College, School of Theology,

School of Law, School of Nursing, and Sargent Cohiege

of Allied Health Professions. Approximately a mile and

a quarter distant, on the opposite side of the City, is the

Boston University Medical Center containing the School

of Medicine, School of Graduate Dentistry and University

Hospital. The University also conducts an Overseas Pro-

gram involving 23 faculty members in 35 programs at 24

European locations, primarily on military bases, At the

Boston campuses there are approximately 24,500 students,

1950’s, has adopted by majority vote of its membership as one

of its purposes, the representation of faculty members for pur-

poses of collective bargaining with the University and has artic-

ulated and demonstrated willingness to fulfill these functions.

Failure to file reports does not affect this status. See Labor-

Management Reporting and Disclosure Act of 1959, Section 603

(b). Accordingly, it is found that Petitioner is a labor organiza-

tion within the meaning of the Act. Alto Plastics Manufacturing

Corp., 1388 NLRB 850, 851-852; ‘‘M’’ System, Inc., 115 NLRB

1316, n. 2,

involving the services of approximately 4500 employees,

of whom some 2200 are instructional personnel.

The School of Theology, School of Law, School of Medi-

cine, School of Social Work and the Graduate School con-

fer only graduate degrees. The College of Basic Studies

is a two-year undergraduate program and the College of

Liberal Arts has only an undergraduate program. All

other schools have both undergraduate and graduate pro-

grams.

Petitioner seeks a unit of approximately 850 full-time

teaching faculty on the University payroll, including de-

partment chairmen, certain academic program directors,

nursing coordinators, faculty on leave and part-time fac-

ulty who have tenure or are on the tenure track at the

University’s Charles River Campus, excluding faculty of

the Law School, the Medical School and the School of

Graduate Dentistry,

The University contends that the appropriate unit should

include all full-time instructional faculty and all part-

time instructional faculty on the University payroll, who

are in a status of three-quarter time or more, or who have

voting rights in the faculty senate, but would exclude

department and divisional chairmen, certain academic pro-

gram directors, and nursing coordinators.

The parties have agreed to the following exclusions

from any unit found to be appropriate: all officers of

the University, deans, associate deans, assistant deans, ad-

ministrative support personnel (including office clericals

and guards), all non-teaching professionals (including li-

brarians), graduate assistants, teaching fellows, student

employees, all non-professional employees, all individuals

with the title ‘‘coach’’ who are not otherwise eligible for

inclusion, department chairmen at the School of Medicine

and the School of Graduate Dentistry, directors of the

schools of music, visual arts and theatre arts in the School

for the Arts, and academic program directors at the School

of Law, School of Medicine and the School of Graduate

Dentistry.

The parties have further agreed on the following in-

clusions in the unit found to be appropriate: area chair-

men in the School of Theology, department chairmen in

the Division of General Education, sequence coordinators

in the School of Social Work, full-time teaching faculty

who taught at the University immediately prior to taking

assignment in the Overseas Program for a definite pe-

riod of time and who are expected to return to the school

or college of the University in Boston from which they

come, and faculty on leave from the University, who are

visiting faculty at another educational institution will be

eligible to vote if otherwise eligible.

There being nothing in the facts supporting the above-

stipulated exclusions and inclusions contrary to any pro-

vision of the statute or established Board policy, they are

adopted and accordingly found to be appropriately ex-

cluded and included respectively,

Petitioner takes the position that it is willing to, and

will participate in, an election in any unit found by the

Board to be appropriate.

‘There is no history of collective bargaining involving

any of the employees sought by the Petitioner or argued

as inclusions by the University.

Department Chairmen:

The Petitioner would include, and the University would

exclude as supervisory or managerial personnel, the fol-

lowing: 5 department chairmen in the School of Public

Communications; 3 department chairmen in the School

of Engineering; 7 department chairmen in the School of

Management; 5 department chairmen, 3 division chair-

ee ee ae

men and 1 director of the Teacher Training Project in

Sargent College of Allied Health Professions; 12 depart-

ment chairmen in the School of Education; 19 depart-

ment chairmen in the College of Liberal Arts; 5 divi-

sion chairmen in the College of Basic Studies; and 10

coordinators in the School of Nursing.‘

There are no department or division chairmen or co-

ordinators in the Graduate School or the School of Law,

nor in Metropolitan College, and the parties have agreed

to exclude department chairmen in the Medical School

and School of Graduate Dentistry, the directors in the

three schools in the School for the Arts, sequence co-

ordinators in the School of Social Work and area chair-

men in the School of Theology.

The general structure and authorities of the University

are set forth in its by-laws which vest all ultimate author-

ity in the members of the corporation, who, as trustees,

elect the President of the University as the executive head

of its administrative and educational system. The chair-

man of the corporation, trustees, President and treasurer

comprise the Executive Committee which has authority

to establish, increase and decrease the amount of salaries

or other compensation to be paid to the officers and mem-

bers of the faculty and other employees of the Univer-

sity, which authority may be delegated. The University

Council, consisting of the President, vice-presidents, deans

and such others as the President may appoint, is a body

established generally to advise the President on broad

matters of academic interest. It does not include depart-

ment chairmen. The voting members of the several fac-

ulties constitute the membership of the University Sen-

ate, which considers matters affecting two or more schools

* Although titles may differ from school to school the term ‘‘chair-

man’’, as used hereinafter, applied to all disputed positions listed.

or colleges, Derns are elected for each school or college

annually by the corporation upon the nomination of the

President, hold office at his pleasure and are impressed

with the responsibility for oversight of the work of the

school or college of which they are deans, Faculties con-

sist of all professors, associate professors, assistant pro-

fessors and such other members of the teaching staff as

may be designated by the dean and approved by the

President and trustees. Faculty members are appointed

by the corporation upon the written recommendation of

the President, academic vice-president and the dean con-

cerned. The by-laws further provide that each faculty

shall have the authority to establish rules and regulations

concerning the academic requirements of its school or col-

lege, with the approval of the dean an academic vice-

president,

As might be assumed, within these broad guidelines,

there have developed many distinctive factual variances

in practice from school to school.

Whether an individual is an ‘‘employee’’® within the

meaning of the National Labor Relations Act, as amended,

and thereby entitled to exercise the rights of ‘femployees’’

as guaranteed in the Act,® or is a ‘‘supervisor’”’ as de-

° Excluded from the definition of ‘‘employee’’ in Section 2(3)

of the Act is ‘‘.. . any individual employed as a supervisor .. .”’

* Section 7 of the Act states: ‘Employees shall have the right to

self-organization, to form, join, or assist labor organizations, to

bargain collectively through representatives of their own choosing,

and to engage in other concerted activities for the purpose of col-

lective bargaining or other mutual aid or protection, and shall also

have the right to refrain from any or all such activities except to

the extent that such right may be affected by an agreement requir-

ing membership in a labor organization as a condition of employ-

ment as authorized in Section 8(a) (3).’’

fined in the Act,’ and thereby not accorded the rights

and protection granted to ‘‘employees’’, is a frequently

recurring, serious and often difficult issue to determine.

It has been held that Section 2(11) is to be interpreted

in the disjunctive and that ‘‘the possession of any one

of the authorities listed in that section places the em-

ployee invested with this authority in the supervisory

class.’’ Ohio Power Co. v. N.L.R.B., 176 F. 2d 285; cert.

den, 338 U.S, 899. The Board first asserted jurisdiction

over private, non-profit colleges and universities in Cornell

University, et al., 183 NLRB 329, and was first called

upon to make appropriate unit determinations in regard

to university teaching staffs in C.W. Post Center of Long

Island University, 189 NLRB 904, in which inter alia, the

Board excluded department chairmen from the unit found

appropriate therein, as supervisors, based upon findings

that they exercised authority to make effective recommen-

dations as to the hiring and change of status of faculty

members and other employees. In the four years since

C.W,. Post the Board has had occasion to consider the

supervisory or managerial status of department chair-

men in at least twelve cases, excluding them as ‘‘super-

visors’’ in five of these* and including them as ‘‘em-

* Section 2(11) of the Act: ‘‘The term ‘supervisor’ means any

individual having authority, in the interest of the employer, to

hire, transfer, suspend, layoff, recall, promote, discharge, assign,

reward, or discipline other employees or responsibly to direct them,

or to adjust their grievances, or effectively to recommend such ac-

tion, if in connection with the foregoing the exercise of such au-

thority is not of a merely routine or clerical nature, but requires

the use of independent judgment.’’

* Department chairmen were excluded in: Long Island Univer-

sity (Brooklyn Center), 189 NLRB 909; Adelphi University, 195

NLRB 640; Syracuse University, 204 NLRB No. 85; Farleigh Dick-

inson University, 205 NLRB No. 101; Point Park College, 209

NLRB No. 152.

ployees”’ in others,’ not always by unanimous decision, but

based upon the specific facts in each case. As the Board

stated in Rosary Hill College, 202 NLRB 1187, ‘. . . we

are not persuaded, on the basis of our experience to date

with university cases in which their supervisory status

is in issue, that faculty department heads generally have

or exercise supervisory authority as it is defined in the

Act, And we see no reason at this time to depart

from our usual practice ef requiring an affirmative show-

ing that the disputed faculty department heads have been

given one or more of the indicia of supervisory authority

set forth in Section 2(11), or that their recommendations

affecting personnel status are relied on and generally fol-

lowed.’’

The Faculty Manual, the updated status of which was

introduced into evidence at the hearing, has as its ex-

pressed purpose ‘‘. , , to assist faculty members at Bos-

ton University . . . to become acquainted with the poli-

cies, regulations and procedures which affect their rela-

tionship with the University.’

The Manual” requires that:

‘Whenever a Department Chairmanship becomes va-

cant the Dean of the School or College in which the

Department is budgeted shall consult with all full-

time faculty members of full professorial rank in

that department to recommend a candidate for that

position.’? And further: ‘‘A Department Chairman

shall normally be appointed for a three year term

which may be renewed,’’

* Department chairmen were included in: Fordham University,

193 NLRB 134; University of Detroit, 193 NLRB 566; Tusculum

College, 199 NLRB 28; Rosary Hill College, 202 NLRB 1137; New

York University, 206 NLRB No. 16; University of Miami, 213

NLRB No, 64; and Fordham University, 214 NLRB No, 187,

10 VII-8,

This mandate has been generally followed, although the

manner of its application has varied from school to school;

some deans consulting directly, in varying degrees of

formality, with faculty members, and some utilizing fac-

ulty search committees with varying degrees of complex-

ity. Overall, there is a considerable amount of faculty

input in the selection of department chairmen, whom the

dean of the particular school eventually appoints, upon

the approval of the President and trustees. Appointments

have been made, in fact, for terms of one year, three years

and some for indefinite terms, all being renewable and

some having lasted for over a decade. There is some

evidence that the current trend is generally toward two

three year terms. As chairmen have relinquished that

status, a number have progressed to higher administra-

tive posts both at the University and at other colleges.

However, there is also testimony, by a faculty member

of long tenure, who has held the posts of both chairman

and dean, that approximately three quarters of the former

chairmen have returned to faculty status at the Univer-

sity.

There is no specific policy regarding extra

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.