N.L.R.B. v. Wentworth Institute

• Decision Date: 31 March 1975
• Docket Number: No. 74-1219,74-1219
• Citation: 515 F.2d 550
• Parties: 89 L.R.R.M. (BNA) 2033, 76 Lab.Cas. P 10,816 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WENTWORTH INSTITUTE and Wentworth College of Technology, Inc., Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 550

515 F.2d 550

89 L.R.R.M. (BNA) 2033, 76 Lab.Cas. P 10,816

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WENTWORTH INSTITUTE and Wentworth College of Technology, Inc., Respondent.

No. 74-1219.

United States Court of Appeals,

First Circuit.

Argued Nov. 4, 1974.

Decided March 31, 1975.

Aileen A. Armstrong, Atty., Washington, D. C., with whom Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick H. Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and William H. DuRoss, III, Atty., Washington, D. C., were on brief, for petitioner.

Woodley B. Osborne and Carolyn I. Polowly, Washington, D. C., on brief for American Assn. of University Professors, amicus curiae.

Duane R. Batista, Boston, Mass., with whom Nutter, McClennen & Fish, Boston, Mass., was on brief, for respondent.

Charles Kelso and Fisher & Phillips, Atlanta, Ga., on brief for the University of Miami (Florida), amicus curiae.

Jerome Medalie, John E. Gorman, and Widett & Widett, Boston, Mass., on brief for Northeastern University, amicus curiae.

Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

The National Labor Relations Board applies for enforcement of its order finding Wentworth Institute and Wentworth College of Technology to have refused to bargain with the certified representative ¹ of its full-time faculty, and directing Wentworth to bargain with the union. Underlying this dispute between the Board and Wentworth is a major change in Board policy announced in 1970 in Cornell University, 183 N.L.R.B. 329. Ending a long-time refusal to assert jurisdiction over employers like Wentworth, see Trustees of Columbia University, 97 N.L.R.B. 424 (1951), the Board declared in Cornell, "(W)e shall no longer decline to assert jurisdiction over (nonprofit educational) institutions as a class." 183 N.L.R.B. at 331. The questions now before us are whether under the National Labor Relations Act, 29 U.S.C. § 141 et seq., the Board has jurisdiction over private nonprofit institutions of higher education, and, if so, whether the Wentworth faculty included in the unit are "employees" within the meaning of the Act.

We summarize the pertinent facts. Wentworth, located in Boston, Massachusetts, operates a two-year program in engineering technology at the "Institute" and a third and fourth-year program leading to a Bachelor of Science degree at the newer, smaller "College". On March 12, 1973, the union filed a representation petition with the Board for an election among Wentworth's full-time faculty members at the two divisions to determine whether the union would be certified as their bargaining representative. Wentworth opposed the petition.

At the representation hearing, there was testimony that final decisions on policy and personnel at Wentworth are made by its Board of Trustees and administration. Its chief administrative officer is its president. The provost is the head academic officer at the Institute, and the senior dean of instruction and two other deans of instruction are responsible for academic matters in departments. Members of the College faculty report to the dean of the college. (By stipulation the foregoing officers were excluded from the unit.)

Department heads at the Institute (also excluded from the unit) are appointed by the administration on one-year contracts, renewable indefinitely and not rotating. They make recommendations about faculty appointments, renewals, terminations, and salaries to a dean, who reports to the provost, who reports to the president. The administration sets salary guidelines and budgets for the department heads to follow in making recommendations, which are usually accepted. Department heads and the deans meet once a month to discuss appointments and allocation of faculty among departments.

The College has about 14 full-time faculty members, the Institute about 100. All of them have one-year contracts. The faculty senate may make recommendations on policy matters, but by its own constitution these do not bind the administration and trustees. The faculty holds four meetings a year, the agenda being generally drawn up by the provost. There was evidence that the following actions developed in conjunction with faculty meetings: the administration polled the faculty as to preferences towards class hours at the Institute and the academic calendars, and the results played a part in the final decision. The faculty was consulted on final examination and graduation requirements. The president discussed tenure with the faculty, but the administration of trustees took no action. The administration met with the executive committee of the faculty senate to discuss class hours, the academic calendar, and methods and timing for the payment of faculty.

There are a number of faculty committees at Wentworth. The Curriculum, Development and Planning Committee reviews ideas for the Institute submitted by individuals or groups, and makes recommendations thereon to the deans and president. There is no evidence the committee's recommendations are generally given effect or even presented to the entire faculty. Another committee schedules final examinations. The Athletic Committee promotes athletics and schedules activities in the gymnasium. The Faculty Welfare Committee administers a small fund for expressing sympathy to ill people at the Institute. The Student Status and Grades Committee reviews disciplinary problems and student standing at the Institute. Another committee promotes harmonious relations between students and faculty at the two divisions of Wentworth. The Radiological Safety and Civil Defense Committee was established at the Institute to satisfy the Atomic Energy Commission safety requirements. A committee oversees the administration of the scholarship and loan program at the Institute, but it is unclear whether the committee as a whole has the final decision on awards. The High School Personnel Committee arranges two annual promotional dinners for high school students.

After the hearing the Board's Regional Director, ruling that Wentworth's operations came within the Board's statutory jurisdiction and its own standards, ² found that an appropriate bargaining unit consisted of all full-time day faculty, including a research associate, the librarians, and two faculty members who spent part of their time working on curriculum development and general planning at the College. Excluded from the unit were department heads, part-time faculty, the registrar, athletic department employees, laboratory assistants, employees under the dean of students, clerical employees, executives, guards, and supervisors.

The Board denied review of this decision on the ground that no substantial issues were raised. The union won the subsequent election by a 57-39 vote, and the Board certified the union as the exclusive bargaining agent for the unit. As is the accepted method for challenging the Board's rulings in representation proceedings, Wentworth refused to bargain with the union and was found to have violated sections 8(a)(5) and 8(a)(1) of the Act, 29 U.S.C. § 158(a)(5) & (1), in the ensuing unfair labor practice proceeding.

NLRB JURISDICTION OVER NONPROFIT EDUCATIONAL INSTITUTIONS

The statutory grant of jurisdiction to the Board extends to all questions of representation "affecting commerce". NLRA §§ 9(c)(1), 10(a),29 U.S.C. §§ 159(c)(1), 160(a). Wentworth opposes Board jurisdiction on the ground that although no exclusion appears in the Act, an exclusion for private nonprofit higher educational institutions must be implied from the legislative history and the Board's earlier policy. This is a difficult position to sustain and we do not accept it, although we are not unsympathetic to the concerns of Wentworth and the private nonprofit educational institutions which have filed amicus briefs herein. We do not believe that the Act, clear on its face, can be understood to preclude jurisdiction.

The Board maintains that Wentworth is an "employer" within the Act, ³ Congress having excluded certain types of employers (including nonprofit hospitals) ⁴ in the Taft-Hartley legislation but made no exception for nonprofit institutes and colleges. Wentworth's annual unrestricted revenues and its out-of-state purchases, note 2 supra, are in amounts held, in other settings, to establish more than a minimal impact on commerce. See, e. g., NLRB v. Benton & Co., 313 F.2d 629, 630 (5th Cir. 1963); NLRB v. Stoller, 207 F.2d 305, 307 (9th Cir. 1953), cert. denied, 347 U.S. 919, 74 S.Ct. 517, 98 L.Ed. 1074 (1954). The Supreme Court has stated that "Congress intended to and did vest in the Board the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause". NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224, 226, 83 S.Ct. 312, 313, 9 L.Ed.2d 279 (1963), and cases cited therein.

Given the sweep of the statute, the Board sees no impediment to what it concedes was a major policy shift in 1970. The declared purpose of the Act is to eliminate obstructions upon commerce caused by labor unrest, 29 U.S.C. § 151, and in dealing with employer operations whose 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. Thus the shift in 1970 was, in its view, not a volte-face but an exercise of continuing responsibility. In Cornell, supra, and in later pronouncements, the Board found that today's colleges and universities affect commerce more than they once did, being now more involved in private commercial activity, and receiving extensive federal support. ⁵ Shortly after Cornell, the Board formalized its intentions to exercise jurisdiction over nonprofit educational institutions grossing over $1,000,000 annually. See 35 Fed.Reg. 18370, 18371. Jurisdiction was asserted over professional campus personnel. See, e. g., C. W. Post Center of Long Island...