Petitioners Reply Brief — NLRB v. Yeshiva Univ.

FOR ARGUMENT

Supreme Court, U.S.

ON a a

Nos. 78-857 and 78-997 SEP 17 1979

In the Supreme Court of the Units See" "4

OCTOBER TERM, 1978

NATIONAL LABOR RELATIONS BOARD, PETITIONER

Vv.

YESHIVA UNIVERSITY

YESHIVA UNIVERSITY FACULTY ASSOCIATION,

PETITIONER

Vv.

YESHIVA UNIVERSITY

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

REPLY BRIEF FOR

THE NATIONAL LABOR RELATIONS BOARD

WADE H. MCCREE, JR.

Solicitor General

LAWRENCE G. WALLACE

Deputy Solicitor General

STEPHEN M. SHAPIRO

Assistant to the Solicitor General

JOHN S. IRVING Department of Justice

General Counsel Washington, D.C. 20530

JOHN E. HIGGINS, JR.

Deputy General Counsel

ROBERT E. ALLEN

Acting Associate General Counsel

NORTON J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

DAVID S. FISHBACK

Attorney

National Labor Relations Board

Washington, D.C. 20570

INDEX

CITATIONS

Cases: Page

Adelphi University, 195 N.L.R.B. 639... 6-7

Allied Chemical Workers v. Pittsburgh

Plate Glass Co., 404 U.S. 157 .....22......... 13-14

American Locomotive Co., 92 N.L.R.B.

| RSME EMD ae AER Lei RS GS rw rere AOU 6

Bell Aerospace, a Division of Textron,

Inc., 219 N.L.R.B. 384, on remand from

A ee PE ici nlnciviclcabecincabenunanasees 3, 4-5, 6

C. W. Post Center, 189 N.L.R.B. 904........ 6

Consolidated Papers, Inc., 179 N.L.R.B.

ENYA PETS TVR itl dat chain wR 5

Dow Jones & Co., 142 N.L.R.B. 421 ........ 6

Duquesne University, 198 N.L.R.B. 891.... 18

Dynalectron Corp., 231 N.L.R.B. 1147...... 6

Electric Controller & Mfg. Co., 69

Des MIE cence canchusnccucencbaseneeie caailinwean 6

Electric Wiring, Inc., 198 N.L.R.B. 1059-. 5

Fibreboard Paper Products Corp. v.

Ps: EO a PN wictclhctaelcctcinees 14

Firestone Tire & Rubber Co., 112

ee I ME ec osinwcteydecrisdsacunatonciiloanediens 6

Ford Motor Co. v. NLRB, No. 77-1806

“hfe” ERGO Mabie! (een eee 17

General Dynamics Corp., 213 N.L.R.B.

IRA Ie Ria lag DACA rede ne ne a 4

Hertzka & Knowles v. NLRB, 503 F.2d

625, cert. denied, 423 U.S. 875 -........ 18

International Union of United Brewery

Workers v. NLRB, 298 F.2d 297, cert.

denied, 369 U.S. 843 -......000. 2

Ladish Co., 180 N.L.R.B. 582 -................ 18

II

Cases—Continued . Page

Lockheed-California Co., 217 N.L.R.B.

\ ¢ MRT Meme ETAT, NT 6

Monarch Rubber Co., 129 N.L.R.B. 482... 6

National Cash Register Co., 95 N.L.R.B.

y | NT EIOUNMEE DN ORE Stharlee B 6

NLRB vy. Bell Aerospace Co., 416 U.S.

yO AAC RISEN KP In 3

NLRB vy. Hearst Publications, 322 U.S.

| | | REN UN y kT 14

NLRB v. Master Stevedores Association

of Tenas, 416 F236 WA... 2

NLRB vy. North Arkansas Electric Coop-

erative, Inc., 412 F.2d 324 ..................... 3

NLRB vy. Northeastern University, No.

78-1222 (1st Cir. June 26, 1979) _........ 18

New York University, 205 N.L.R.B. 4.... 8

New York University, 221 N.L.R.B. 1148.. 8

Northeastern University, 218 N.L.R.B.

y | SamaMeNeNeUnIen Wale em OT,

Peter Kiewit Sons’ Co., 106 N.L.R.B. 194..

Spicer Mfg. Corp., 55 N.L.R.B. 1491........

Stephens Institute, 241 N.L.R.B. No. 71

Ci i: ) SR RCNS mene rE 19

Sunnen Products, Inc., 189 N.L.R.B. 826.. 18

Sutter Community Hospitals of Sacra-

mento, 227 N.L.me. 368 «i

Syracuse University, 204 N.L.R.B. 641....

Trustees of Boston University v. NLRB,

575 F.2d 301, petition for cert. pending,

|, 8 nee ME Neem eA 7

University of Detroit, 193 N.L.R.B. 566.. 7

7

7

aon-l]

“1 01

University of Miami, 213 N.L.R.B. 634..

University of Vermont, 223 N.L.R.B. 423.

Western Sample Book and Printing Co.,

BOD DRL OO acs snnckcnnisbinnciceepheeguunsiale 5

Il

Cases—Continued

Westinghouse Electric Co., 100 N.L.R.B.

eather apienancsapninnas

Wichita Eagle & Beacon Publishing Co.

v. NLRB, 480 F.2d 52, cert. denied, 416

a oe davai suinbnenpee inciniin tivebitaen

Statute:

National Labor Relations Act, 29 U.S.C.

151 et seq.:

Section 2(11), 29 U.S.C. 152(2)

I eh eh a

Section 8(a) (2), 29 U.S.C. 158(a)

SS ae ae

Miscellaneous:

Academic Freedom and Tenure: Univer-

sity of Detroit, 64 A.A.U.P. Bull. (Mar.

REA Sas EI: ARERR Saree

Finkin, The NLRB in Higher Education,

5 Toledo L. Rev. 608 (1974) ................

H. Bowen, Academic Compensation: Are

Faculty and Staff in American Higher

Education Adequately Paid? (1978,

Teachers Insurance and Annuity Asso-

Ne alsa csdncvantivecverives

N. Demerath, R. Stephens, R. Taylor,

Power, Presidents, and Professors

fae ney! BSS SRL ENS Bias Ope en

On Full-Time Non-Tenure-Track Appoint-

ments, 64 A.A.U.P. Bull. (Sept. 1978) ..

Page

15

19

15

IV

Miscellaneous—Continued Page

R. Nielsen & I. Polishook, Collective Bar-

gaining and Beyond, The Chronicle of

Higher Education (May 21, 1979) ........ 16

W. Hansen, An Era of Continuing De-

cline: Annual Report on the Hconomic

Status of the Profession, 1978-1979, 65

Academe: Bulletin of the AAUP (Sept.

SPUD -wiesbaduissbicaddinvcaistneasediieamensltaaied 14, 15, 16

Iv the Suprene Coot of the United States

OCTOBER TERM, 1978

No. 78-857

NATIONAL LABOR RELATIONS BOARD, PETITIONER

Vv.

YESHIVA UNIVERSITY

No. 78-997

YESHIVA UNIVERSITY FACULTY ASSOCIATION,

PETITIONER

Vv.

YESHIVA UNIVERSITY

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

REPLY BRIEF FOR

THE NATIONAL LABOR RELATIONS BOARD

I.

The University contends that faculty members per-

form functions that are “analogues of functions

(1)

2

performed by people who are ‘managers’ and ‘super-

visors’ * * * in other work contexts,” and that the

Board has “avoided this logical conclusion” by arbi-

trarily adopting a special rule in the academic con-

text: that “faculty members are employees because

they are professionals who act in their own interests,

collectively, and without ‘final authority’ ” (Resp. Br.

33). There is no merit to this line of argument.

A. The definition of “supervisor” in Section 2(11)

of the Act requires not only that an individual possess

one or more of the enumerated powers, but that such

powers be exercised “in the interest of the employ-

er.” ' Similarly, the definition of “managerial em-

' See, e.g., International Union of United Brewery Workers

v. NLRB, 298 F.2d 297, 304 (D.C. Cir. 1961), cert. denied,

369 U.S. 843 (1962), concluding that driver-salesmen were

not supervisors even though they possessed authority to

hire and oversee certain helpers because they exercised their

authority in their own interest and not on behalf of the

company. The court explained that “[i]n no meaningful

sense was their exercise of authority ‘in the interest of the

employer.’ On the contrary, * * * the driver-salesmen were

motivated by and were acting in their own interest. Engag-

ing the helpers had the effect of reducing the manual burdens

of the driver-salesmen, expediting the service to their route

customers, and increasing their potential for higher commis-

sions * * *.” See also NLRB v. Master Stevedores Association

of Texas, 418 F.2d 140, 141-143 (5th Cir. 1969), holding that

certain employees authorized to hire longshoremen for par-

ticular jobs were not supervisors because they did not act as

the employer’s representatives: “[t]hey were nominated in

the first instance by the union from the union membership

to fulfill the union’s obligation under its contract with the

stevedores. There is no showing of any identity of :nterest

between these men and the employers.” Jd. at 143.

3

ployee,” approved by this Court in NLRB vy. Bell

Aerospace Co., 416 U.S. 267, 286-287 (1974), re-

quires not only that an individual be in a position

to determine or effectuate management policies, but

also that he or she be aligned with and act as a

representative of management.°

The basic premise of both the supervisory and man-

agerial exclusions is management’s right to have its

2 Contrary to the brief amici curiae of Johns Hopkins Uni-

versity, New York University, Northeastern University, and

George Washington University (hereinafter “Johns Hopkins

Br.”), this Court did not reject the Board’s alignment with

management test in Beli Aerospace. Rather, the Court re-

jected an interpretation of the managerial exclusion that

would have limited it to persons engaged in labor relations

activities. The Court concluded that legislative history and

prior Board precedent established that persons other than

labor relations personnel could have managerial status if

closely allied with management. See also NLRB vy. North

Arkansas Electric Cooperative, Inc., 412 F.2d 324, 326 (8th

Cir. 1969) (the managerial exclusion rests “on the premise

that certain non-supervisory employees are * * * closely

allied with management,” not on the labor relations func-

tion) ; Wichita Eagle & Beacon Publishing Co. v. NLRB, 480

F.2d 52, 55-56 (10th Cir. 1973), cert. denied, 416 U.S. 482

(1974) (editorial writers held to be managerial employees

because “they were so closely aligned with the newspaper’s

management in the formulation, determination, and effectua-

tion, not to mention expression, of the newspaper manage-

ment’s policies * * *.’’)

The brief amicus curiae of the National Society of Profes-

sional Engineers (hereinafter, “NSPE Br.’’) errs in stating

that the Court concluded that the buyers in Bell Aerospace

were managerial employees. The Court remanded the case to

the Board for determination of that very question. See 416

U.S. at 295. On remand, the Board found that they did not

have managerial status. See 219 N.L.R.B. 384, 385-386 (1975).

See also note 3, infra.

4

representatives accountable solely to it and not to

have their loyalty divided with a union. When an

individual, though acting on matters of importance

to management, does not function in a capacity in

which he is expected to conform to management

policies and is not judged according to his or her

effectiveness in executing those policies (which is the

case with many “professional employees’), the

danger of divided loyalty does not exist. There is

therefore no reason to exclude such individuals from

the protections of the Act* indeed, to do so would be

contrary to Congress’ specific intention to extend

statutory coverage to a broad spectrum of “profes-

sional employees” (including medical personnel, law-

yers, accountants, engineers, scientists, and archi-

tects) who exercise independent judgment rather

than executing managerial policies. See the Board’s

principal brief (hereinafter, “Board Br.”) at 24-33,

45-48.

B. The Board has applied this principle consist-

ently in determining supervisory or managerial

status under the Act. As the Board explained in

General Dynamics Corp., 213 N.L.R.B. 851, 857-858

(1974), “managerial status * * * is reserved for

those who are closely aligned with management as

true representatives of management” ; the Board

added that “managerial authority is not vested in

professional employees merely by virtue of their pro-

fessional status, or because work performed in that

status may have a bearing on company direction.”

See also Bell Aerospace, A Division of Textron, Inc.,

5

219 N.L.R.B. 384, 385-386 (1975); Western Sample

Book and Printing Co., 209 N.L.R.B. 384, 385 (1974)

(finding no supervisory or managerial status since

the employee was not “closely allied with manage-

ment or * * * intimately involved in effectuating

[the employer’s] policies, but was at most a senior

experienced employee”); Electric Wiring, Inc., 193

N.L.R.B. 1059, 1062-1063 (1971) (holding that an

employee did not have managerial status even though

he did some work with managerial characteristics,

since the rest of his time was spent working ‘‘in the

same way and under the same conditions as | the

employer’s] other employees. This slight distinction is

not sufficient * * * to identify his interest with th[at |

of * * * management”) ; see also Consolidated Papers,

Inc., 179 N.L.R.B. 165, 166 (1969), and the cases

cited in Board Br. 27.

The cases cited by the University (Resp. Br. 34-

35) are not to the contrary. For example, in Sutter

Community Hospitals of Sacramento, 227 N.L.R.B.

181, 193 (1976), which held that a clinical specialist

was a managerial employee, the Board noted that in

exercising her discretion the specialist acted in the

interest of management. The Board also emphasized

that:

managerial status is conferred only upon those

in executive-type positions whose interests are

closely aligned with management as true repre-

sentatives of management. Accordingly, we have

held that professional employees are not the

same as management employees merely because

their professional competence necessarily in-

6

volves a consistent exercise of discretion and

judgment in a manner which may affect an em-

ployer’s business direction or establish policy.

Similarly, in Peter Kiewit Sons’ Co., 106 N.L.R.B.

194, 196 (1953), the excluded personnel, who planned

and executed indoctrination programs for both super-

visors and employees, were deemed to be managerial

because they were closely “allied with management.” *

C. The Board’s conclusion that the faculty mem-

bers here involved are not managerial or supervisory

employees rests on the same principle.‘ While the

8’ The University correctly notes that the Board has found

personnel such as buyers, expediters, investigators, produc-

tion schedulers and lecturers to be managerial employees,

citing Spicer Mfg. Corp., 55 N.L.R.B. 1491, 1498 (1944) ;

American Locomotive Co., 92 N.L.R.B. 115, 116-117 (1950) ;

Electric Controller & Mfg. Co., 69 N.L.R.B 1242, 1246 (1946) ;

Westinghouse Electric Co., 100 N.L.R.B. 420, 423 (1952);

Firestone Tire and Rubber Co., 112 N.L.R.B. 571, 573 (1955) ;

and Peter Kiewit Sons’ Co., 106 N.L.R.B. 194, 196 (1953).

However, when they have not been shown to be closely aligned

with management, the Board has concluded that such per-

sonnel are not managerial employees. See, e.g., Bell Aero-

space, A Division of Textron, Inc., 219 N.L.R.B. 384, 385-

386 (1975), on remand from 416 U.S. 267 (1974) (buyers) ;

Lockheed-California Co., 217 N.L.R.B. 573, 574-575 (1975)

(buyers) ; Dynalectron Corp., 231 N.L.R.B. 1147, 1149 (1977)

(buyers and expediters) ; Monarch Rubber Co., 129 N.L.R.B.

482, 486 (1960) (expediters) ; Dow Jones & Co., 142 N.L.R.B.

421, 427 (1963) (personnel interviewers); National Cash

Register Co., 95 N.L.R.B. 27, 32 (1951) (instructors).

* Contrary to the contencion of the University (Resp. Br.

50), the Board’s “interest /alignment” analysis was not a mere

“thought * * * added to the C.W. Post rationale” three years

after that April 1971 decision (189 N.L.R.B. 904). In Feb-

ruary 1972, the Board issued its decision in Adelphi Uni-

=

‘

University’s faculty members, like those at most

other private universities and colleges, participate

in decision-making regarding faculty promotion and

hiring, curriculum, and other matters of academic

policy, they are not required to, and do not, serve as

“representatives of management” in so doing.’ As

versity, 195 N.L.R.B. 639, 648, in which it discussed in detail

its approach to this issue, explaining that faculty members

who participate in university governance “are not advised

to advocate management’s interests in making their decisions,

nor are they advised that they are management’s representa-

tives in making them.” The “interest/alignment” analysis has

been central to the Board’s approach in faculty cases follow-

ing Adelphi University. See Board Br. 40-41.

5 When faculty members actually serve as representatives

of management, the Board consistently has concluded that

they are managerial or supervisory personnel. Thus in Uni-

versity of Vermont, 223 N.L.R.B. 423, 426 (1976), the Board

excluded department chairmen as supervisors, observing that

“(t]heir performance is evaluated by the dean, based pri-

marily upon their administrative performance [and] many of

them have risen to higher administrative positions in the

University * * * . In some cases they may do little or no

teaching [because they] spend considerable time participat-

ing in numerous administrative meetings in their respective

colleges and with higher authorities.” See also University of

Miami, 213 N.L.R.B. 634, 637 (1974): Syracuse University,

204 N.L.R.B. 641, 642 (1973). In contrast, the Board found

that the department chairmen in the present case were not

supervisors or managers because, although they possess re-

sponsibility for faculty hiring, promotion, and tenure, they

“act primarily as instruments of the faculty in these matters”

(Pet. App. 74a). Accord, Northeastern University, 218

N.L.R.B. 247, 252 (1975); Trustees of Boston University v.

NLRB, 575 F.2d 301, 306 (1st Cir. 1978), petition for cert.

pending, No. 78-67 (department chairmen are not supervisors

because they act “ ‘in the interest’ of the faculty, not of the

employer”); University of Detroit, 193 N.L.R.B. 566, 568

8

acknowledged by the University, faculty recommen-

dations embody a “clearly ‘independent judgment’ ”

on what is professionally desirable (Resp. Br. 41).

Accordingly, faculty members ave evaluated by the

University on the basis of the quality of their

teaching and research and the extent of their

participation in university affairs, not on the com-

patibility with administrative policy of their recom-

mendations or advice." An over-arching administra-

tion reviews faculty proposals and renders its final

decision on: the basis of university-wide considera-

tions and institutional policies. While the ongoing

process of discussion between the vice-presidents and

ns

(1971) (department chairmen are not supervisors because

they “represent[] the faculty at university senate meetings’).

Compare New York University, 206 N.L.RB. 4, 9 (1973),

with New York University, 221 N.L.R.B. 1148, 1149 (1975)

(modifying original decision on the supervisory status of de-

partment chairmen in light of new evidence).

°The University misapprehends the point of the Board’s

conclusion that the faculty acts in its own interest rather

than the interest of the university administration. The is-

sue is not, as the University suyyests (Resp. Br. 51), whether

the faculty acts on personal as opposed to altruistic grounds.

The relevant consideration is that faculty members—unlike

other personnel who have been found to be manayerial em-

ployees or supervisors in the past (see notes 1 & 8, supra)—

do not function in a capacity in which they are required to

conform to management policies in rendering their decisions

and offering advice. The essential purpose of the supervisory

and managerial exclusions—protection of the employer's le-

gitimate expectation of undivided loyalty from its representa-

tives—would not be served by excluding from the coverage

of the Act those persons who concededly are entitled to exer-

cise wholly independent professional judgment.

9

the deans usually enables them to avoid situations in

Which the administration must “veto” faculty pro-

posals, the vice-presidents do have the power, and

have exercised it, to overrule proposals that conflict

with institutional requirements. See Board Br. 6-17.

The University argues that it is “ludicrous to speak

of the faculty versus the ‘management’ of a great

university” (Resp. Br. 39)—that “ ‘the faculty is

the school?” (Resp. Br. 35 n.17). However, this

line of argument—supgyestive of an idealized con-

ception of a university based on a medieval model—

ignores the administrative hierarchy within the Uni-

versity and considers the faculty member’s role only

in relation to his own peer group and individual

school. It fails to take account of the essential role

of the administrators, such as the Vice-President for

Academic Affairs, the Vice-President for Business

Affairs, and the President, who are responsible for

governing the University as a whole. Nor are the

differing interests of the faculty and the administra-

tion obliterated by the fact that “the Yeshiva fac-

ulty’s judgments are almost always accepted by the

administrators with whom they share the Univer-

sity’s governance” (Resp. Br. 52-53). As pointed

out on pages 50-51 of our main brief, agreement

between the administration and the faculty is the

product of a continuous process of discussion, in-

formal negotiation, and compromise.’ The persuasive-

’ As noted in N. Demerath, R. Stephens & R. Taylor, Power,

Presidents, and Professors 25, 30 (1967), it is frequently

necessary for the faculty to assert its own interests in the

face of the opposing objectives of the university administra-

10

ness of the faculty and the respect of the admin-

istration for the views of this essential portion of

the University’s personnel do not logically compel

an inference by the Board that the faculty has acted

as management’s representative in formulating their

views. .

The University is on no firmer ground in main-

taining that the record shows that faculty members

are judged by the administration based on the con-

tent of their recommendations (Resp. Br. 39). The

evidence cited by the University shows only that, at

the Stern and Ferkauf schools, one factor relevant

to promotion is the professor’s record of activity and

service in the university (A. 231, 238, 1448); noth-

ing suggests, however, that the direction or thrust,

as opposed to the professional competence, of a pro-

fessor’s recommendations or decisions has any impact

whatsoever on his or her promotion or compensation.

Indeed, the Ferkauf Guidelines for promotion iden-

tify the quality of teaching, research and_publica-

tions as the primary criteria for promotion (A.

1447-1448). Other portions of the record cited

by the University show that on occasion certain

tion. Faculty participation in university governance is par-

ticipation “in behalf of their constituencies, * * * to modify,

tame, and curb the powers of the full-time administrators

which derive from the corporate authority of the institution,

as interpreted by [the] board [of trustees] and president.

** * (P]rofessors * * * have felt the need for a policy voice

in order to protect freedom of inquiry and teaching, and the

recognition of professional competence, and they have in-

sisted on having such a voice.”

11

faculty recommendations have been accepted by

the administration over conflicting recommendations

from the dean (A, 191, 266-269, 379-380); that the

deans in several schools generally accept and some-

times feel bound by faculty recommendations concern-

ing tenure, hiring and curriculum (A. 231-232, 248-

249, 274, 328); and that administrators ranking

higher than the deans sometimes solicit faculty rec-

ommendations on tenure and renewal of appointments

(A. 419, 537-538). The record does indeed show

that the administration is often willing to follow the

recommendations of the faculty in deference to its

professional judgment and expertise (as would ordi-

narily be expected of most employers of professional

employees). The record nowhere suggests that the

faculty is in any way accountable to the administra-

tion for the substance of its recommendations.

The Statement of Principles of the Ferkauf Fac-

ulty Government By-Laws (A. 1427-1428) under-

scores the accuracy of the Board’s finding that there

is a university management separate and distinct

from the faculty." While noting that “|p ]articipa-

*In this connection, the University misconstrues (Resp.

Br. 46) the references in the Board’s opinion to the collective

nature of faculty participation in the governance system. The

Board’s point (see Board Br. 40-41 n.35) is not that the col-

lective exercise of authority necessarily precludes a finding of

supervisory or managerial status. Rather, the faculty’s col-

legial voice fortifies the inference that its recommendations

embody the views of the rank and file, not the views of the

administrative chain of command. In observing that authority

is exercised by the entire faculty body, rather than by an in-

12

tion in college government by the faculty cultivates

a sense of responsibility and nourishes the combi-

nation of thought, feeling, and action without which

the college enterprise cannot be fulfilled as it should”

and that “participation in the governance of an insti-

tution of higher learning is a necessary responsibility

of the academic profession,” the Preamble at the out-

set declares (A. 1427):

Since the Board of Regents of the New York

State Education Department has granted the

charter to the University’s Board of Trustees

and the President, full responsibility for deci-

sions relating to the University and its constitu-

tent parts resides with the Board of Trustees

and the President. Where specific powers and

responsibilities have been delegated to the Dean

of the Ferkauf Graduate School, he as the chief

educational officer of the school, is administra-

tively responsible for the programs of the school.

dividual or a relatively small group of persons charged with

overseeing a broader body of employees, the Board’s decision

underscores the common-sense differences between the Uni-

versity’s faculty and persons traditionally deemed to be super-

visors or managers.

Similarly, the Board has not held, and we do not suggest,

that the fact that ultimate authority rests with a board of

trustees is dispositive of the faculty’s employee status. Rather,

the locus of ultimate and delegated authority in the admin-

istration has been stressed to show that American colleges

and universities are not, as is often argued (Resp. Br. 35 n.17;

NSPE Br. 20; Johns Hopkins Br. 29-30), self-governing com-

munities of scholars. See Board Br. 36-37 & n.30.

13

II.

The University objects (Resp. Br. 30, 54-58) to

our demonstration (Board Br. 45-48) that collective

bargaining is compatible with the governance of uni-

versities and the economic realities of academic em-

ployment, claiming that such an analysis has no

relevance to the issue at bar." We do not, of course,

quarrel with the proposition that individuals who

would otherwise be deemed managerial or supervisory

personne! do not become statutory employees merely

because they desire to belong to a union or because

unionization would be consistent with prevailing

practices at the place of employment. However, a

showing that inclusion of faculty members within

the coverage of the Act would further statutory pur-

poses, and that university faculty members share the

economic concerns that prompt working people gen-

erally to seek the benefits of collective bargaining, but-

tresses the preceding demonstration that faculty mem-

bers satisfy the legal standards traditionally utilized

in determining “employee” status (and exemplify the

congressional purpose in extending the Act’s protec-

tion to professional employees). As this Court noted

in Allied Chemical Workers y. Pittsburgh Plate Glass

Co., 404 U.S. 157, 167 (1971), “[t]he term ‘em-

ployee’ ‘must be understood with reference to the

purpose of the Act and the facts involved in the

*In contrast, amici strenuously contend that the Board’s

position cannot be sustained because university governance

is incompatible with collective bargaining. Johns Hopkins Br.

8-16; NSPE Br. 19-32.

14

economic relationship’” (quoting NLRB v. Hearst

Publications, 322 U.S. 111, 129 (1944)). Most per-

tinently the Court added that “[i]n doubtful cases

resort must still be had to economic and policy con-

siderations to infuse § 2(3) with meaning.” 404 U.S.

at 168. See also Fibrehoard Paper Products Corp. v.

NLRB, 379 U.S. 203, 211-212 (1964).

While university faculty members have many char-

acteristics that distinguish them from _ industrial

“working men,” their employment situation is compar-

able to that of the professional medical personnel, law-

yers, accountants, and scientists that Congress intended

to embrace within the Act. Moreover, faculty members

share most of the economic concerns of ordinary work-

ing people—concerns that justify our characterization

of them as “rank and file” employees. Faculty mem-

bers have the same interests as other working people

in obtaining pay raises and improvements in the terms

and conditions of their employment through collective

bargaining. They are concerned with compensation,'°

10 Tn recent years, the economic position of college and uni-

versity faculty members has substantially eroded. Adjusting

for inflation, the average professional salary has declined

every year since the 1973-1974 academic year. Between the

1972-1973 and 1978-1979 academic years, the average salary

in “real” dollars declined by 13.6°¢. See W. Hansen, An Ere

of Continuing Decline: Annual Report on the Economic Status

of the Profession, 1978-79, 65 Academe: Bulletin of the AAUP

319, 325 (Table 4) (Sept. 1979). This steady decline has

been felt across all professional ranks, from instructor to

full professor (id. at 321, Table 1). The consequences of this

large decline in faculty salaries are varied, but commentators

have noted that such conditions produce “the likely hardening

of attitudes about the need to organize more effectively to

15

job security," and the conditions of academic employ-

ment.’ -Current conditions in the over-crowded em-

promote the economic interests of faculty members. * * *

[T]here is likely to be a greater push for collective bar-

gaining” (id. at 329). See also H. Bowen, Academic Compen-

sation: Are Faculty and Staff in American Higher Educa-

tion Adequately Paid? 65-67, Table A (Teachers Insurance

and Annuity Association 1978), showing a real decline of

7° in salaries and 5° in total compensation between 1972-

1973 and 1976-1977.

The faculty at Yeshiva has not fared well economically

even relative to the faculties at comparable private universi-

ties. For example, the most recent figures from the Hansen

survey show that while the average compensation package

paid to full professors in comparable institutions is $37,000, .

the average full professor at Yeshiva receives $30,400; the

average salary in comparable institutions is $31,100, but

$27,000 at Yeshiva (W. Hansen, supra, at 334, 348). And

while the average salary of a full professor in schools similar

to Yeshiva has increased 6.2% in dollar amount in the last

two years, the increase at Yeshiva has been only 2.6% (id.

at 333, 348).

"The American Association of University Professors

(which represents many faculty bargaining units) has re-

cently noted a trend toward unilateral reduction of faculty

appointments to tenured positions. See the report of the Sub-

committee of AAUP Committee A on Academic Freedom and

Tenure, On Full-Time Non-Tenure-Track Appointments, 64

A.A.U.P. Bull. 267-273 (Sept. 1978). And see Academic

Freedom and Tenure: University of Detroit, 64 A.A.U.P. Bull.

36 (Mar. 1978) (discussing the discharge of 40 professors, 29

tenured, for economic reasons). The assertion of amici

(Johns Hopkins Br. 13-15) that collective bargaining poses

a potential threat to the tenure system ignores the fact that

erosion of that system is a principal motivation for faculty

members to seek union representation.

"* Collective bargaining has assisted faculty members in

their efforts to resist curtailment of traditional prerogatives.

See, e.g., R. Nielsen & I. Polishook, Collective Bargaining

d 16

ployment market for college professors, and efforts

by university administrators to curtail rising costs,

intensify the danger of unemployment or non-promo-

tion for faculty members, and diminish the possibility

of obtaining substantial improvements in the condi-

tions of academic employment.’* Nothing in their

responsibilities as educators precludes faculty mem-

bers from attempting to resolve their concerns about

the terms and condit’ ns of employment through col-

lective bargaining.”

and Beyond, The Chronicle of Higher Education 7 (May 21,

1979) :

It is not unusual to find similarities between faculty

“handbooks” or “guidelines” formerly promulgated by

academic management and college contracts, with the

one major difference being the enforceability of the con-

tract that replaced the president’s prerogative. In this

sense, collective bargaining is not new to the campus.

What does occur—when the informal structure fails to

work—is that collective bargaining becomes the means

whereby the faculty secure what management has said,

all along, is theirs.

13 For an overview of the severe economic pressures cur-

rently facing college faculty members, see W. Hansen, supra,

at 327. See also the brief amicus curiae of the American

Association of University Professors 2-6. Curtailment of

academic or research programs in response to such pressures

can, of course, severely affect the terms of employment—or

even the continued existence of employment—of particular

faculty members.

14 The University suggests that assertion of economic con-

cerns by faculty members can foster an “adversary” rela-

tionship on campus and thereby threaten the academic envir-

onment (Resp. Br. 55). That, however, is a question apart

from the issue presented here. Regardless of the scope of the

National Labor Relations Act, faculty members are free to

—

17

While the University disputes the relevance of our

contention that the position of faculty members is

analogous in many respects to that of other workers,

it does not hesitate to argue that the fact that the

“{ndustrial analogy is imperfect” proves that Con-

gress did not intend to “treat professors as ‘employ-

ees’” (Resp. Br. 36-38; see also NSPE Br. 21-22).

The industrial analogy concededly is not perfect.

However, the University’s model of a community of

scholars identical with, and pervasively in control of,

the academic enterprise is further from the mark.

That model cannot be squared with the University’s

repeated assertion that dangers would “hover in the

wings” if faculty members were permitted to assert

their interests through the collective bargaining

process (Resp. Br. 31, 55-56). On the one hand, the

University argues that faculty members are merged

with itself, having no separate interests. On the

other, the University maintains that it needs to be

sheltered from the faculty’s assertion of economic

assert their collective interests (through, for example, faculty

welfare committees or faculty senates) and thereby con-

front administrative policies that are contrary to their eco-

nomic welfare. The National Labor Relations Act merely

introduces into this process of economic confrontation the

requirements of orderly bargaining. See Ford Motor Co. v.

NLRB, No. 77-1806 (May 14, 1979), slip op. 10: “ “The basic

theme of the Act was that through collective bargaining the

passions, arguments, and struggles of prior years would be

channeled into constructive, open discussions leading, it was

hoped, to mutual agreement.’ * * * The assumption is that this

is preferable to allowing recurring disputes to fester outside

the negotiation process until strikes

; or other f

nomic warfare occur.” orms of eco-

18

concerns through collective bargaining. If the Uni-

versity and faculty did not have the separate inter-

ests of employers and employees, which the Board

found in this case, there would be no occasion to

protest the bargaining relationship that is recognized

when parties negotiate over the terms and conditions

of employment.”

15 Contrary to the assertion in Johns Hopkins Br. 10-11,

recognition that faculty members are employees under the

Act does not mean that existing faculty bodies (such as

faculty senates) violate Section 8(a)(2) of the Act, 29

U.S.C. 158 (a) (2). Section 8(a) (2) makes it an unfair labor

practice for an employer “to dominate or interfere with the

formation or administration of any labor organization or

contribute financial or other support to it * * *.” Section

8(a) (2) does not, however, bar all forms of employer assist-

ance to labor organizations. See, e.g., Sunnen Products, Inc.,

189 N.L.R.B. 826, 828 (1971); Ladish Co., 180 N.L.R.B. 582,

585 (1970). Thus, in Duquesne University, 198 N.L.R.B.

891 (1972), the Board recognized that university assistance

to a nonprofessional employee committee in the form of free

use of university premises, meetings on university time, and

university subsidization of a committee newsletter, did not in

itself constitute unlawful assistance where the university

“freely makes available its facilities, time, and services to any

desirous organization.” The Board also noted that even if

employer assistance reaches an unlawful level, the employee

organization need not be disestablished unless it has been

“dominated” by the employer. Jd. at 893. Moreover, employer

domination does not arise merely because employer repre-

sentatives are included in the organization. See Hertzka &

Knowles v. NLRB, 503 F.2d 625, 626, 630-631 (9th Cir. 1974),

cert. denied, 423 U.S. 875 (1975). See also NLRB v. North-

eastern University, No. 78-1222 (ist Cir. June 26, 1979), slip

op. 8, reyecting a Section 8(a) (2) challenge to an organiza-

tion of employees established by a university president, and

noting that the courts have appropriately “recogniz[ed] some

19

room for management-employee cooperation short of domina-

tion * * *.” The Act does not prohibit organized collective

endeavor by professional employees (apart from and in ad-

dition to collective bargaining) in performance of the collec-

tive professional aspects of their employment responsibilities.

And the Board has never held that faculty organizations in-

fringe Section 8(a) (2) where such bodies have been formed

without regard to union organization efforts. The only case

in which a faculty senate was found to be in violation of

Section 8(a) (2) is Stephens Institute, 241 N.L.R.B. No. 71

(1979), where the senate was established by the college ad-

ministration in response to, and as a weapon against, a union

a are to Slip op. 32-33. See generally Finkin

e in Higher Educati

on ee, 9 cation, 5 Toledo L. Rev. 608, 647-

20

For the foregoing reasons and the reasons stated

in the Board’s principal brief, the judgment of the

court of appeals should de reversed.

Respectfully submitted.

WADE H. McCREE, JR.

Solicitor General

LAWRENCE G. WALLACE

Deputy Solicitor General

STEPHEN M. SHAPIRO

Assistant to the Solicitor General

JOHN S. IRVING

General Counsel

JOHN E. HIGGINS, JR.

Deputy General Counsel

ROBERT E. ALLEN

Acting Associate General Counsel

NorRTON J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

DAVID S. FISHBACK

Attorney

National Labor Relations Board

SEPTEMRER 1979

5 8 U. 8. GOVERNMENT PRINTING Office, 1979 3008970 82