Berry Schools v. N.L.R.B.
| Decision Date | 08 October 1980 |
| Docket Number | Nos. 78-1594,78-1766,s. 78-1594 |
| Citation | 627 F.2d 692 |
| Parties | 105 L.R.R.M. (BNA) 2798, 89 Lab.Cas. P 12,342 The BERRY SCHOOLS, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner. N. Gordon CARPER, Joyce Carper, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Fisher & Phillips, Atlanta, Ga., for petitioner cross-respondent in No. 78-1594.
Robert W. Ashmore, R. Mason Barge, Atlanta, Ga., for Berry Schools.
Bronson, Woolf & Corn, Charles T. Corn, O. Frank Woolf, Atlanta, Ga., for petitioners in No. 78-1766.
Elliott Moore, Deputy Assoc. Gen. Counsel, Howard E. Perlstein, Sandra S. Elligers, N.L.R.B., Washington, D.C., Attys., for respondent N.L.R.B.
Robert W. Ashmore, R. Mason Barge, Atlanta, Ga., for intervenor.
Before COLEMAN, Chief Judge, BROWN and TJOFLAT, Circuit Judges.
These two consolidated cases involve unfair labor practices allegedly committed by the Berry Schools in reaction to its college faculty's initial steps toward unionization. After engaging in this activity, Dr. Gordon Carper was demoted from his position as chairman of the Department of Social Sciences, and Dr. Joyce Jackson was not promoted to full professor, a position for which she was eligible at that time.
Both faculty members filed unfair labor practice charges against the school. After a hearing, and decision by an ALJ the Board (NLRB) dismissed Carper's complaint, reasoning that in his position as department chairman, Carper had exercised supervisory powers and therefore was unprotected by the National Labor Relations Act (the Act). The NLRB affirmed the findings and conclusions of the ALJ in Berry Schools, Inc., 234 N.L.R.B. 942 (1978). We enforce this portion of the Board's order.
The ALJ also found that the college's failure to promote Dr. Jackson to full professor was an unfair labor practice, done in retaliation for her attempts to engage in protected concerted activity. The ALJ ordered that she be promoted to full professor and made whole for her lost earnings. These findings and conclusions were also affirmed by the Board, 1 but we reverse.
The Berry Schools comprise the Berry Academy, a preparatory school, and Berry College, offering bachelor and master degrees in the liberal arts. In the spring of 1975, Berry College, finding itself in severe financial straits, was having difficulty in sustaining even its then existing levels of pay to its faculty. In a letter of March 5, President John Bertrand announced that he would recommend to the Board of Trustees only "a modest uniformly applied pay increase in addition to limited adjustments for reason indicated in the budget guidelines."
Salaries were already quite low. In fact, one estimate was that they were 22% "behind" where they had been five years before. For four of the previous five years, an average cost of living increase of 4% to 5% had been given. In one of those years there had been no increase at all. Thus, the faculty was in as desperate a financial position as the college.
On March 12, Dr. Jackson, the elected chairman of the Berry College faculty council, called an informal meeting for "concerned faculty" members. Forty members met and elected Dr. Jackson to chair the meeting. She appointed an ad hoc committee, chaired by Dr. Carper, to research the possible advantages of collective bargaining for the faculty. On March 13, she wrote a letter to President Bertrand, informing him of all that had transpired, including "a unanimous mandate to consider the merits of the Berry College faculty's constituting itself as a self-organized collective bargaining agent through election processes prescribed by the National Labor Relations Board."
On March 25, President Bertrand called a meeting of the entire faculty and read a long speech explaining why he believed collective bargaining was out of place on the campus of a small private institution with limited endowments and tuition income. He made references to a "small power bloc deliberately maneuvering . . . to seek control (over) the larger number" of the faculty and asked the rhetorical question:
Do you really feel like saying, "Sock it to the students by raising tuition drastically, but let's get ours." "Bleed the endowment for cash if you have to, but let's get ours." "Destroy the sense of community shared here by faculty staff and students if you have to, but let's get ours." "Misinterpret what key administrators are saying without having the decency to even check for accuracy if you have to but let's get ours."
The President also stated that he was meeting that afternoon with the executive committee of the Board of Trustees to discuss salaries, tenure, promotion recommendations, and changes in such administrative assignments as departmental chairmanships. Dr. Jackson then responded on behalf of the faculty to President Bertrand's speech.
Bertrand repeated the speech the next day at a meeting of the college staff (including secretaries, maintenance personnel and security guards), the faculty and staff of the affiliated academy, and student leaders. Again, Dr. Jackson responded.
A meeting of the Board of Trustees personnel relations committee was held on April 4. Dr. Jackson, Dr. Carper and about fifty-eight other members of the faculty, staff and student body attended. The status of faculty salaries and "viable alternatives to collective bargaining" were discussed.
On April 15, at a meeting of all the faculty and staff of both the college and the academy, President Bertrand made several announcements, including that Dr. Carper's position as chairman of the Social Science department would be filled by another professor. Bertrand also named all faculty members who were to be promoted. Dr. Jackson's name, which had been submitted for consideration of promotion to full professorship, was not on the list. Finally, Bertrand reported an 8% salary increase (plus 2% in selected pay adjustments), an amount unprecedented in the preceding five years.
A public announcement of the replacement of a department chairman was also unprecedented at Berry College. When asked why he made this announcement publicly, Bertrand testified, "I felt that many of the matters that were discussed . . . including this particular change, was of concern and rightful interest to the entire faculty and staff of the Berry Schools." Dr. Carper was not informed of the replacement decision until five minutes before the announcement.
In the speech which incorporated these announcements Bertrand stated that "leadership . . . (as a college president) demands . . . toughness." He made references to "labor-management psychology" which "hamper(ed) effective functioning of both parties" and to "faculty activism" resulting "in disruptive tactics which are in complete violation of the whole purpose of higher education."
The ALJ found that the public announcement of Dr. Carper's removal from the chairmanship of his department "was an apparent public rebuke to the chairman of the ad hoc committee considering collective bargaining for the faculty." Notwithstanding this, and declining to specifically rule on whether he had engaged in protected concerted activity, the ALJ dismissed Carper's charges against his employer, finding that in his position as department chairman he had exercised supervisory authority and therefore was not protected by the Act. The correctness of this ruling is the primary issue which concerns us on Carper's appeal.
Section 7 of the Act, 29 U.S.C.A. § 157 (West 1973), defines the types of concerted activity employees may engage in. 2 Under § 8(a)(1) of the Act, 29 U.S.C.A. § 158(a)(1) (West 1973), 3 it is an unfair labor practice for an employer to interfere with the exercise of § 7 rights by his employees. However, this protection is afforded only to employees, as defined in 29 U.S.C.A. § 152(3) 4 and not to supervisors. Beasley v. Food Fair, Inc., 416 U.S. 653, 654-55, 94 S.Ct. 2023, 2028, 40 L.Ed.2d 443, 446-47 (1974); NLRB v. Big Three Welding Equipment Co., 359 F.2d 77, 80 (5th Cir. 1966).
The term "supervisor" is defined in 29 U.S.C.A. § 152(11) 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 responsibly to direct them, or to adjust 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 factors which indicate supervisory authority are listed disjunctively. Therefore, in order for supervisory status to exist, the authority to perform at least one, but not necessarily all of the enumerated functions, is necessary. A legion of cases so hold. E.g., NLRB v. Gray Line Tours, Inc., 461 F.2d 763, 764 (9th Cir. 1972); Sweeney & Co. v. NLRB, 437 F.2d 1127, 1131 (5th Cir. 1971); Federal Compress & Warehouse Co. v. NLRB, 398 F.2d 631, 634 (6th Cir. 1968). Of course, the power to perform one or more of these functions must require the use of independent judgment and not be merely clerical in nature. Sweeney, supra, 437 F.2d at 1131.
As the Act states, a person is a supervisor even if he does not have complete authority to perform any of these functions but can "effectively recommend" the performance of one or more. The effectiveness of an alleged supervisor's authority is normally a question of fact. Stop & Shop Companies, Inc., Medi Mart Division v. NLRB, 548 F.2d 17, 19 (1st Cir. 1977). The ALJ in this case found that "department chairmen have and exercise the authority, in the interest of Berry, effectively to recommend the hire, retention and discharge of members of their department, and they are therefore supervisors within the meaning of the...
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