David Wolcott Kendall Memorial School v. N.L.R.B., s. 87-5381

• Decision Date: 18 January 1989
• Docket Number: 87-5462,Nos. 87-5381,s. 87-5381
• Citation: 866 F.2d 157
• Parties: 130 L.R.R.M. (BNA) 2374, 110 Lab.Cas. P 10,916, 51 Ed. Law Rep. 445 DAVID WOLCOTT KENDALL MEMORIAL SCHOOL a/k/a Kendall School of Design, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner, Kendall Faculty Association, MEA/NEA, Intervenor.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 157

866 F.2d 157

130 L.R.R.M. (BNA) 2374, 110 Lab.Cas. P 10,916,

51 Ed. Law Rep. 445

DAVID WOLCOTT KENDALL MEMORIAL SCHOOL a/k/a Kendall School of Design, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner Kendall Faculty Association, MEA/NEA, Intervenor.

Nos. 87-5381, 87-5462.

United States Court of Appeals Sixth Circuit.

Argued July 18, 1988.

Decided Jan. 18, 1989.

Jack R. Clary, Clary, Nantz, Wood, Hoffius, Rankin and Cooper, Robert C. Stone, Lead Counsel (argued), Douglas W. Van Essen, Grand Rapids, Mich., for petitioner, cross-respondent.

Harvey I. Wax, M. Catherine Farrell, Levin, Levin, Garvett & Dill, Southfield, Mich., for intervenor.

Aileen A. Armstrong, Deputy Associate General Counsel, N.L.R.B., Judith Dowd (argued), Washington, D.C., Barbara A. Atkin, Bernard Gottfried, Director, Region 7, N.L.R.B., Detroit, Mich., for respondent, cross-petitioner.

Mitchell E. Roth, Washington, D.C., for intervenor Kendall Faculty Assoc., MEA/NEA.

Before MERRITT, KRUPANSKY and BOGGS, Circuit Judges.

KRUPANSKY, Circuit Judge.

This case is before the court on the petition of David Wolcott Kendall Memorial School, a.k.a. Kendall School of Design (Kendall), a four-year college located in Grand Rapids, Michigan, which specializes in art, architecture, and design with an enrollment of approximately 500 students and a teaching staff of approximately 20 full-time, 20 part-time, and various adjunct and visiting faculty members, to review and set aside an unfair labor practice order of the NLRB (the Board) issued against it on March 20, 1987. The Board has filed a cross-application for enforcement of its order.

The case involves the Board's determination and order that Kendall unlawfully refused to bargain with a representative of its faculty and thereby committed an unfair labor practice in violation of the NLRA. The instant controversy arose when Kendall in May, 1980 withdrew recognition of the Kendall Faculty Association MEA/NEA ("the Association") as the exclusive bargaining representative of the faculty on the basis that the Kendall faculty were "managerial employees" and not covered by the NLRA. Kendall relied on NLRB v. Yeshiva Univ., 444 U.S. 672, 100 S.Ct. 856, 63 L.Ed.2d 115 (1980). According to settled precedent, if Kendall's faculty are properly characterized as managerial, they should have been excluded from the bargaining unit (unit) and Kendall would not have had the duty to bargain with it.

In response, the Association filed unfair labor practice charges with the Regional Director of the Department of Labor. The Director decided to issue an unfair labor practice complaint.

On October 9, 1981, Kendall filed a petition seeking to clarify the unit by excluding all managerial employees. After 17 days of hearings, the Regional Director transferred the unit clarification petition directly to the Board for decision pursuant to Rule 102.67(h) of the Board's rules and regulations. While the unit clarification petition was pending before it, the Board issued opinions interpreting the Yeshiva decision. Because the instant case was no longer novel, the Regional Director, at the invitation of the Board, ordered that the case be returned to him for decision. ¹ The Regional Director stayed the unfair labor practice complaint pending his decision on the unit clarification petition.

On December 28, 1982, the Regional Director found that Kendall faculty members were not managerial employees and dismissed the unit clarification petition. In February, 1983, Kendall requested review of the dismissal of the petition which the Board granted on June 14, 1983 with the proviso that its result would be limited to determining the "managerial" status of faculty members. In April, 1986, the Board affirmed the Regional Director's earlier decision. It concluded that any errors attributable to the decision of the Regional Director were harmless.

After the Board confirmed the Regional Director's dismissal of the unit clarification petition, the General Counsel again pursued the unfair labor practice complaint. On November 28, 1986, the proceeding was transferred to the Board and on March 20, 1987, the Board concluded that all material issues had been previously litigated and the general counsel's motion for summary judgment was granted and Kendall's motion denied. The Board then ordered the school to bargain with the Union and to cease and desist from further unfair labor practices.

From these rulings, Kendall appealed to this court and the general counsel cross-petitioned for enforcement of the Board's decision.

Initially, it is noted that the Board has broad authority, delegated to it by Congress, to determine the constituency of the employee collective bargaining unit. Section 9(b) of the Act, 29 U.S.C. Sec. 159(b); Packard Motor Car Co. v. NLRB, 330 U.S. 485, 491, 67 S.Ct. 789, 793, 91 L.Ed. 1040 (1947); Maccabees Mutual Life Ins. Co. v. NLRB, 757 F.2d 767, 769 (6th Cir.1985). "The parameters of our scope of action are restricted," Boston U. Chapter, Amer. Assoc. of Univ. Prof. v. NLRB, 835 F.2d 399, 401 (1st Cir.1987), because the Secretary's ruling is entitled to deference if it is supported by substantial evidence and has a reasonable basis in law. Id. In construing the scope of the NLRA, this court "must accord great respect to the expertise of the Board." Loretto Heights College v. NLRB, 742 F.2d 1245, 1255 (10th Cir.1984). The Board's determination must be upheld unless it is "arbitrary, unreasonable or an abuse of discretion." NLRB v. American Seaway Foods, Inc., 702 F.2d 630, 632 (6th Cir.1983).

The term "employee" is broadly defined in Section 2(3) of the NLRA, 29 U.S.C. Sec. 152(3) to include "any employee." See Angel, Professionals and Unionization 66 Minn.L.Rev. 383, 417 (1982) ("Congress intended to broadly define the term employee"). Professional employees are specifically included within the coverage of the NLRA under section 2(12), and faculty members employed at institutions of higher learning have long been considered "professional employees" protected by the Act. C.W. Post Center of Long Island Univ., 189 N.L.R.B. 904, 905 (1971). The Supreme Court has carved out a narrow exception to that rule in NLRB v. Yeshiva Univ., 444 U.S. at 672, 100 S.Ct. at 857 (some faculty members may be "managerial" and thus excluded from NLRA coverage).

Because managerial employees are not excluded from coverage under the NLRA by any express language, but rather by an implied exception to the statute, see NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-90, 94 S.Ct. 1757, 1761-70, 40 L.Ed.2d 134 (1974), the exception must be narrowly construed to avoid conflict with the broad language of the Act, which covers "any employee," including professional employees. See The Managerial Status of Faculty Members Under the NLRA, 94 Harv.L.Rev. 251, 256-61 (1980) (Yeshiva must be narrowly construed to prevent emasculation of Board's policy of including professionals under the NLRA).

According to Yeshiva, the effect of faculty participation in the "academic affairs" of a university on the determination of their "managerial" status is to be evaluated by reviewing the faculty's role in effectively formulating the university's curriculum, departmental budgeting and funding, grading systems, admissions and matriculation standards, academic calendars, size of the student body, tuition and, in some instances, the geographical location of the institution. Collateral criteria for consideration by the court include the faculty's participation in and contribution to faculty hiring, promotions, tenure, sabbaticals, and termination.

In essence, according to Yeshiva:

To the extent the industrial analogy applies, the faculty determines within each school the product to be produced, the terms upon which it will be offered, and customers who will be served.

100 S.Ct. at 864.

Although Yeshiva does not mandate that faculty authority in academic affairs be absolute it admonishes that:

employees whose decision-making is limited to the routine discharge of professional duties in projects to which they have been assigned cannot be excluded from coverage even if union membership arguably may involve some divided loyalty. Only if an employee's activities fall outside the scope of the duties routinely performed by similarly situated professionals will he be found aligned with management.

* * *

* * *

It is plain, for example, that professors may not be excluded [from the bargaining unit] merely because they determine the content of their own courses, evaluate their own students, and supervise their own research.

100 S.Ct. at 866.

This court is, pursuant to Yeshiva, mandated to undertake "a factually based assessment of the control and authority actually asserted by faculty members." 1979-1980 Annual Survey of Labor Rel. and Employment Discrim. Law, 22 B.C.L.Rev. 40, 53 (1980). Thus, the crucial issue is the extent to which the faculty is involved in decisionmaking beyond their own classrooms. Sussman, Univ. Governance Through a Rose-Colored Lens: NLRB v. Yeshiva, 1980 Sup.Ct.Rev. 27, 46.

Yeshiva instructs that since "the business of a university is education," Yeshiva, 444 U.S. at 688, 100 S.Ct. at 865, this court must focus its attention on "the faculty's role in academic affairs in order to determine the question of managerial status." Loretto Heights College, 742 F.2d at 1252. "An administration's systematic deference to faculty wishes is probably the most significant criterion used by the Board to determine that faculty are managerial employees." See Lee and Begin, Criteria for Evaluating the Managerial Status of College Faculty: Application of Yeshiva University by the N.L.R.B., 10 J.Coll. and Univ.Law 515, 536 (1983-84).

Juxtaposing the faculty's authority in the instant action with the standards enunciated in Yeshiva, this court is satisfied that the Board's factual findings are correct...