N.L.R.B. v. Yeshiva University, No. 852

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: Before LUMBARD, MULLIGAN and TIMBERS; MULLIGAN
• Citation: 582 F.2d 686
• Parties: 98 L.R.R.M. (BNA) 3245, 84 Lab.Cas. P 10,732 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. YESHIVA UNIVERSITY, Respondent, and Yeshiva University Faculty Association, Intervenor. ocket 77-4182.
• Decision Date: 31 July 1978
• Docket Number: No. 852,D

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582 F.2d 686 98 L.R.R.M. (BNA) 3245, 84 Lab.Cas. P 10,732 NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
YESHIVA UNIVERSITY, Respondent,
and
Yeshiva University Faculty Association, Intervenor. No. 852, Docket 77-4182. United States Court of Appeals,
Second Circuit. Argued April 26, 1978.
Decided July 31, 1978.

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Howard E. Perlstein, Washington, D. C. (John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D. C.), for petitioner.

Saul G. Kramer, New York City (Proskauer, Rose, Goetz & Mendelsohn, New York City, Peter G. Samuels, Gerald A. Bodner, New York City, Labor Counsel to respondent), for respondent.

Ronald H. Shechtman, New York City (Gordon & Shechtman, Murray A. Gordon, New York City, of counsel), for intervenor.

Matthew W. Finkin, Duke University, Durham, N. C., David E. Feller, University of California, Berkeley, Cal., of counsel, for amicus curiae American Association of University Professors.

Richard Semeraro, New York City, for New York University; Jerome Medalie, Boston, Mass. (Widett, Widett, Slater & Goldman, Boston, Mass.), for Northeastern University; Ronald DeMaria, Newark, N. J. (Lum, Biunno & Tompkins, Newark, N. J.), for Fairleigh Dickinson University; Alan Miller, Boston, Mass. (Stoneman, Chandler & Miller, Boston, Mass.), for Boston University; Nicholas DiGiovanni, Jr., Boston, Mass. (Morgan, Brown, Kearns & Joy, Boston, Mass.), for University of Vermont; Daniel Riesel, New York City (Winer, Neuburger & Sive, New York City), of counsel, for amici curiae.

Lawrence A. Poltrock, Chicago, Ill., Michael Radzilowsky, Chicago, Ill., of counsel, for American Federation of Teachers, AFL-CIO, amicus curiae.

Before LUMBARD, MULLIGAN and TIMBERS, Circuit Judges.

MULLIGAN, Circuit Judge:

The National Labor Relations Board (the Board) has applied for enforcement of its order of August 24, 1977, reported at 231 NLRB No. 98, requiring respondent Yeshiva University (Yeshiva) to recognize the Yeshiva University Faculty Association (the Union) as the exclusive bargaining agent of a unit of Yeshiva's full-time faculty members. The petition for enforcement of the Board's order is denied.

I

On October 30, 1974 the Union filed a petition under § 9(e) of the National Labor Relations Act (the Act), as amended, 29 U.S.C. § 159(e), for certification of a bargaining unit consisting of full-time faculty at Yeshiva University. ¹ In opposition Yeshiva contended that all its faculty members

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are managerial or supervisory personnel and hence not employees within the meaning of the Act. Alternatively, the University sought a unit consisting of all full-time and regular part-time faculty with certain exclusions for managerial or supervisory personnel. Between November 26, 1974 and May 6, 1975 hearings were conducted before a Board-appointed hearing officer. On December 5, 1975 the Board issued its decision and direction of election, reported at 221 N.L.R.B. 1053.

The Board found that the Union was a labor organization within the meaning of the Act and that University faculty were professional employees and not managerial or supervisory personnel. The Board further found that department chairmen, assistant deans, and faculty members of certain committees with University-wide jurisdiction were neither managerial nor supervisory personnel. The Board concluded that a unit of full-time faculty was an appropriate bargaining unit. ²

In the election held pursuant to the Board's direction between December 16 and 20, 1976 the Union won by a substantial margin. On December 29, 1976 the Union was certified as the exclusive bargaining representative of the employees in the unit.

Yeshiva, however, refused to bargain with the Union and on February 2, 1977 the Board issued a complaint against the University under charges filed by the Union. Yeshiva opposed the complaint and a subsequent motion for summary judgment, again raising objections to the propriety of the NLRB's unit determination.

The University's position was rejected by the Board, which found Yeshiva to be acting in violation of §§ 8(a)(5) and (a)(1) of the Act, as amended, 29 U.S.C. §§ 158(a)(5), (a)(1). The Board granted summary judgment against Yeshiva and ordered the respondent to bargain collectively with the Union. This proceeding was commenced by the Board on October 17, 1977 following Yeshiva's continued refusal to comply with its decision and order.

On this appeal, Yeshiva argues principally, as it did before the Board, that the full-time faculty of the University are managerial and/or supervisory employees within the meaning of the Act and are therefore excluded from the Act's coverage. Yeshiva also urges that two assistant deans and faculty who are departmental or divisional chairmen, or who are members of certain committees on University affairs, exercise additional authority which mandates their classification as supervisors and/or managers. ³ Before examining these contentions it is necessary to review the structure of Yeshiva and the role played by the faculty in the operation and governance of the University.

II

Yeshiva University is a private institution of higher education chartered under the laws of the State of New York. Its offices and educational facilities are located on four widely separated campuses in New York City. We are here concerned with Yeshiva's six undergraduate colleges and

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programs, ⁴ and four graduate schools. ⁵ Approximately 2,500 full and part-time students are enrolled at Yeshiva. The University is staffed by 209 full-time and 150 part-time faculty members. ⁶

Yeshiva has a self-perpetuating Board of Trustees with no administrative position at the school apart from their membership on the Board. The University's chief executive officer is the President. There are, in addition, three vice-presidents at Yeshiva (for student affairs, business affairs, academic affairs) as well as a Bursar, Registrar, Director of Admissions and several University deans. An Executive Council of deans and administrators makes recommendations to the President with respect to various matters. Two other committees, the Council of Graduate Schools and the Council of Undergraduate Schools advise the President and Board regarding inter-divisional programs designed to increase coordination and cooperation among the schools and divisions of the University. These councils consist of elected student and faculty representatives from each school or division, the dean or director of each academic unit and members of the University administration, including the President. A Faculty Handbook sets forth University policies regarding faculty appointments, promotion, tenure, termination and sabbaticals.

Each of the schools or divisions is headed by a dean or director. Most of the schools have a faculty assembly or student-faculty senate as well as a committee structure, including, Inter alia, a curriculum committee, a standards committee, and a welfare committee. The faculty of each school meet periodically and at Stern College, Yeshiva College, and the Belfer and Ferkauf Graduate Schools the faculties meet and conduct their affairs according to written by-laws and/or constitutions which have been approved by the President. Only two of the schools, Yeshiva College and the Belfer Graduate School, have assistant deans. These two assistant deans are teaching faculty members.

Each school, college and program at Yeshiva enjoys great autonomy in determining its own curriculum, grading system, and academic standards as well as in a wide variety of other matters. Therefore the role of the faculty at Yeshiva can best be appreciated by a review of the individual academic units of the University.

1. Stern College for Women

At Stern College a Committee on Academic Standards, composed of the Dean of the College, Dean Mirsky, who retains his faculty rank, and six full-time faculty, fixes the academic requirements and decides whether a student whose performance is inadequate will be required to leave the school. Although Dean Mirsky recognizes that the decision to dismiss a student results in a loss of tuition income, he has

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never overruled the Committee. Similar committees composed predominantly of faculty members establish admission standards, determine graduation requirements, and set up grading systems. Upon the recommendation of a scheduling committee the faculty introduced a new scheduling model for the school. In response to growing budgetary limitations, a faculty committee on personnel and budget has made generally effective recommendations concerning elimination of elective courses, the establishment of joint courses, and other scheduling changes. In the 1969-70 academic year the Stern College faculty disagreed with a decision by Dean Mirsky and the Curriculum Committee to delete Stern's education major; Mirsky reinstituted the major. Indeed, a faculty dominated curriculum committee must pass on all program changes or changes in graduation requirements.

Department chairmen call to Mirsky's attention the need for new faculty members. Interviewing is done by the chairman and the Dean who then agree on an appointment. Dean Mirsky has never made a faculty appointment which was not approved by a department chairman. Similarly effective recommendations are made by department chairmen regarding termination of faculty members. Mirsky has only once disagreed with a department chairman with respect to a termination.

Promotion recommendations are solicited from department chairmen by a faculty Promotions Committee. The committee passes on its recommendation to Mirsky who has always accepted the committee's decisions. The University President has granted the great majority of recommended promotions and has never overruled a negative recommendation.

Tenure recommendations are made both by...