# Petition — Trustees of Boston University v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1348%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 445 U.S. 912 ## 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, v. 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 12 12 12 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 21 (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. ‘ 6 Point Park College, 209 NLRB 1064 (1974) 21 Rensselaer Polytechnic Instit ute, 2 mes e, 218 NLRB 1435 ‘ 1 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) 21 Supreme Court of the United States. October Term, 1978. No. TRUSTEES OF BOSTON UNIVERSITY, PETITIONER, v. 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, 2 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, ee 8 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. 4 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- 7 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 9 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- 10 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, 11 ‘*. . . 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- 12 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 13 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 14 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 15 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, 16 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 17 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), 18 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, 19 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), \ 20 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). 21 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 22 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- 23 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 24 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., 25 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]’’), 26 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 27 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), 28 ‘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). 29 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 30 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). 31 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* * i ; : 34 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 35 Appendix A, United States Court of Appeals For the First Circuit TRUSTEES OF BOSTON UNIVERSITY, PETITIONER, v. 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, v. 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, v. NATIONAL LABOR RELATIONS BOARD, DEFENDANT-APPELLEE, 36 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 37 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 38 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. 39 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 40 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 41 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). 42 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. 43 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. 44 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 or of the rule where the time hes < 50%. supervisory closely approac 45 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, 46 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. 48 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 49 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 50 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 51 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 / 52 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. 53 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- © The Board in its FOIA brief at pages 21-26 argues the appli- cability of Exemption 5: (5) inter-agency or intra-agency memorandums or letters 54 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. 55 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. 56 57 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 58 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. 59 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, 60 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. 61 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 62 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 (¢). 63 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. 64 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, 65 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 - 66 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 Engl [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1348%3A1. Public record. Not legal advice.