Trustees of Boston University v. N.L.R.B.

• Decision Date: 13 April 1978
• Docket Number: 77-1365 and 77-1226,Nos. 77-1143,s. 77-1143
• Citation: 575 F.2d 301
• Parties: 98 L.R.R.M. (BNA) 2070, 83 Lab.Cas. P 10,520 TRUSTEES OF BOSTON UNIVERSITY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Boston University Chapter, American Association of University Professors, Intervenor. BOSTON UNIVERSITY CHAPTER, AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Trustees of Boston University, Intervenor. TRUSTEES OF BOSTON UNIVERSITY, Plaintiff-Appellant, v. NATIONAL LABOR RELATIONS BOARD, Defendant-Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 301

575 F.2d 301

98 L.R.R.M. (BNA) 2070, 83 Lab.Cas. P 10,520

TRUSTEES OF BOSTON UNIVERSITY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Boston University Chapter, American Association of

University Professors, Intervenor.

BOSTON UNIVERSITY CHAPTER, AMERICAN ASSOCIATION OF

UNIVERSITY PROFESSORS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Trustees of Boston University, Intervenor.

TRUSTEES OF BOSTON UNIVERSITY, Plaintiff-Appellant, v. NATIONAL LABOR RELATIONS BOARD, Defendant-Appellee.

Nos. 77-1143, 77-1365 and 77-1226.

United States Court of Appeals, First Circuit.

April 13, 1978.

Alan S. Miller, Boston, Mass., (argued), with whom Stoneman, Chandler & Miller, Boston, Mass., were on brief, for Trustees of Boston University, petitioner in 77-1143.

Woodley B. Osborne, Washington, D. C., with whom David M. Rabban, Washington, D. C., and Matthew Finkin, Dallas, Tex., were on brief, for Boston University Chapter, American Association of University Professors, petitioner in 77-1365.

Patrick J. Szymanski, Washington, D. C., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Aileen A. Armstrong, Asst. Gen. Counsel for Sp. Litigation, Robert G. Sewell, and Linda Dreeben, Washington, D. C., were on briefs, for N. L. R. B., in all cases.

Richard W. Gleeson, Boston, Mass., (argued), with whom Stoneman, Chandler & Miller were on brief, for Trustees of Boston University, in 77-1226.

Before COFFIN, Chief Judge, and CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

The three cases before us all present issues which developed during the union organizational campaign and subsequent National Labor Relations Board certification election and as a result of Boston University's objections to the election and consequent failure to bargain with the Union. The union involved is the American Association of University Professors (AAUP) and its Boston University chapter. The issues are:

1. Whether the Board abused its discretion in finding that the University's department chairpersons are neither supervisors within the meaning of Section 2(11) of the National Labor Relations Act, 29 U.S.C. § 152(11), nor managerial employees, see NLRB v. Bell Aerospace Co., 416 U.S. 267, 275, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974);

2. Whether the Board abused its discretion in excluding the faculties of law, medicine, and dentistry and part-time faculty from the bargaining unit;

3. Whether the Board erred in overruling the University's objection that an article in the April, 1975, issue of the AAUP Bulletin critical of the President of the University amounted to conduct which unfairly affected the election;

4. Whether the district court erred in ruling that material gathered by the Board during the course of its investigation of the University's objections to the certification election were exempt from the Freedom of Information Act under Exemption 7(A), 5 U.S.C. § 552(b)(7)(A); and

5. Whether the Board erred in denying the Union's request for attorney's fees, giving retroactive effect to any negotiated agreement, and other extraordinary relief.

PROCEDURAL HISTORY

On October 18, 1974, the Union filed a petition with the Board for a representation election in a unit which was defined at the hearing as a unit of approximately 850 "full-time teaching faculty . . . , including department chairmen, certain academic program directors, nursing coordinators, faculty on leave and part-time faculty who have tenure or are on the tenure track at the University's Charles River campus, excluding faculty of the Law School, the Medical School, and the School of Graduate Dentistry." The University contended that department chairpersons should have been excluded from the bargaining unit and the faculty from the three professional schools and part-time faculty should have been included.

The Regional Director issued his decision on April 17, 1975, finding that the department chairmen were neither supervisors nor managerial employees and that the part-time faculty and the faculties of the three professional schools in question did not share a community of interest with the other faculties sufficient to require their inclusion. ¹ Other points decided by the Regional Director are not before us.

The Regional Director directed an election and the Board denied the University's request for review. The election was held on May 14, and the ballot count on June 3 showed the Union the winner, 394-262, with 40 challenged ballots.

The University filed objections and supplemental objections contending that an article in the AAUP Bulletin misrepresented Boston University President John Silber's role in the firing of a professor at Texas University when Silber was Dean of its College of Arts and Sciences. The University requested a hearing on its objections, and the Union requested attorney's fees on the ground that the University's objections were frivolous.

After an administrative investigation, the Regional Director issued a supplemental decision, dated August 13, finding that the alleged misrepresentations were not sufficient to set aside the election even if found to be as alleged and, therefore, certified the Union as the collective bargaining agent for the unit. The Board denied review because the request for review "raised no substantial issues," but declined to award attorney's fees.

On August 7, the University refused to bargain with the Union as the exclusive bargaining agent for the unit. The Union filed an unfair labor practice charge, and the General Counsel issued a complaint on October 8 charging the University with refusing to bargain with a certified bargaining agent in violation of sections 8(a)(1) and (5) of the NLRA. The University's answer admitted the failure to bargain, but raised the affirmative defense that the Regional Director had erred in failing to include the three professional school faculty in the bargaining unit, in including the department chairpersons, and in overruling its election objections. In response to the General Counsel's motion for summary judgment on the issues, the Board issued a notice to show cause why the motion should not be granted. The Union filed a motion for specific relief on December 17, asking for an order requiring the University to give retroactive effect to any agreement regarding salaries or fringe benefits, to pay costs of attorney's fees and other litigation expenses, and several other extraordinary remedies in addition to the usual prospective bargaining order.

The University requested and received two extensions of time so that its answer to the notice to show cause would have been due on January 15. It filed its answer to the notice to show cause on December 2 opposing summary judgment for the reasons indicated earlier. The Board granted the motion for summary judgment.

On January 12, the University filed a complaint in the United States District Court for the District of Massachusetts requesting that the Board (pursuant to the Freedom of Information Act, 5 U.S.C. § 552) be ordered to divulge information which it had collected in its investigation of the University's election complaint. The district court, after issuing and then dissolving a temporary restraining order, found that the information sought by the University should not be disclosed.

These three cases stem from the University's petition to review and set aside the order of the Board and the Board's cross-petition for enforcement of its order, the Union's petition for review of the denial of extraordinary relief, and the University's appeal from the order of the district court.

THE NATIONAL LABOR RELATIONS BOARD AND ITS ROLE IN HIGHER EDUCATION

The Board ended its longtime policy of refusing to take jurisdiction over nonprofit higher educational institutions in Cornell University, 183 NLRB 329, 331 (1970). See Columbia University, 97 NLRB 424 (1951). This court first faced the significant questions which arise from the assertion of jurisdiction over post secondary institutions in NLRB v. Wentworth Institute, 515 F.2d 550 (1st Cir. 1975). In that case, we considered and answered in the affirmative the questions of whether an institution of higher education was an "employer" under the National Labor Relations Act, section 2(2), 29 U.S.C. § 152(2), and whether the institution's faculty were employees within the meaning of section 2(3), rather than supervisors under section 2(11), 29 U.S.C. § 152(3) and (11).

In considering this major policy change by the Board, we recognized that: "The declared purpose of the Act is to eliminate obstructions upon commerce caused by labor unrest . . . 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." Id. at 554. In holding that Wentworth's faculty members were not managerial, we specifically refrained from "comment(ing) on the Board's developing views on the significance of a substantial faculty role in decisions on curricula, admissions, hiring, degree requirements, and other educational policy matters." Id. at 557. We must now address some of these matters, at least with respect to department chairpersons.

Since the Board's first entry into the field of higher education, the exposure of the nation's universities to organizational efforts has grown rapidly, ² and the role of the Board in the University setting has engendered a great deal of comment and criticism. ³ Much has been made by the Board's critics of the special governance structure in universities and the general inapplicability of its rules developed for private industry to the academic community, and the University here has, quite understandably, seized on this general criticism to support its case. We are bound to...