On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Before: Ginsburg, Chief Judge, and Garland and Roberts,
The opinion of the court was delivered by: Roberts, Circuit Judge
Petitioner LeMoyne-Owen College is a historically black college in Memphis, Tennessee that traces its roots to a school founded in 1862. The College's full-time faculty (numbering approximately sixty members) sought to unionize in the spring of 2002 to negotiate with management, but the College argued that the faculty members were management -- that is, managerial employees not entitled to the protection of the National Labor Relations Act (NLRA). See 29 U.S.C. §§ 152(3), 157 (defining covered employees and establishing the right of collective bargaining); see also NLRB v. Bell Aerospace Co., 416 U.S. 267, 283 (1974) (managerial employees, though not specifically excluded from NLRA coverage, were "regarded as so clearly outside the Act that no specific exclusionary provision was thought necessary"). The National Labor Relations Board sided with the faculty, ordering the College to recognize and bargain with the faculty's representative. The College petitioned for review in this court, and the Board filed a cross-application to enforce its order.
1. The College relies primarily on NLRB v. Yeshiva University, 444 U.S. 672 (1980), the Supreme Court's leading (because only) case on determining the managerial status of an academic faculty. In Yeshiva, a union of the university's faculty sought certification to represent the faculty in collective bargaining with the administration. The NLRB granted the union's petition, but the Supreme Court held that the faculty were managerial employees and thus not covered by the NLRA. Id. at 691. The Court drew its definition of managerial employees from Bell Aerospace, which held that managers are those who " `formulate and effectuate management policies by expressing and making operative the decisions of their employer.' " 416 U.S. at 288 (quoting Palace Laundry Dry Cleaning Corp., 75 N.L.R.B. 320, 323 n.4 (1947)). See Yeshiva, 444 U.S. at 682. The Court explained that the exception for "managerial employees," like the express statutory exception for "supervisors," derived from a recognition "[t]hat an employer is entitled to the undivided loyalty of its representatives." Id.
Recognizing that the governance structures of academic institutions differ from the standard industry model for which the NLRA was designed, id. at 680, the Court declined to adopt a per se rule on the managerial status of faculty members, id. at 690-91 n.31. Instead, the Court emphasized a number of factors that supported its conclusion that Yeshiva University's faculty were beyond the scope of the NLRA:
The controlling consideration in this case is that the faculty ... exercise authority which in any other context unquestionably would be managerial. Their authority in academic matters is absolute. They decide what courses will be offered, when they will be scheduled, and to whom they will be taught. They debate and determine teaching methods, grading policies, and matriculation standards. They effectively decide which students will be admitted, retained, and graduated. On occasion their views have determined the size of the student body, the tuition to be charged, and the location of a school.
The Court explained that, in a university such as Yeshiva,
the predominant policy normally is to operate a quality institution of higher learning that will accomplish broadly defined educational goals within the limits of its financial resources. The "business" of a university is education, and its vitality ultimately must depend on academic policies that largely are formulated and generally are implemented by faculty governance decisions.
Id. at 688. The Court rejected the suggestion that the faculty's role was merely advisory because some of its decisions could be overturned by the university administration or board of trustees. "[T]he fact that the administration holds a rarely exercised veto power does not diminish the faculty's effective power in decisionmaking and implementation," the Court found; "the relevant consideration is effective recommendation or control rather than final authority." Id. at 683 n.17; see id. at 688 n.27 (discussing "occasional vetoes of faculty action").
2. As might be expected given such a long list of relevant factors and the exquisite variety of academic institutions across the country, the Board has developed a substantial body of cases that explicate and develop the Yeshiva standard. In American International College, 282 N.L.R.B. 189 (1986), for example, the Board held the approximately ninety faculty members to be managerial employees, noting the authority of faculty standing committees in such areas as admissions, curriculum issues, and graduation requirements. Id. at 190-202. Although there were some instances in which the administration had vetoed faculty proposals, the NLRB said that "they are not substantial or predominant and do not show a pattern of unilateral action by the administration." Id. at 202.
In Livingstone College, 286 N.L.R.B. 1308 (1987), the NLRB reached the same outcome, even though the faculty exercised their authority through standing committees of mixed membership -- including administrators and students. Id. at 1310. The faculty's "substantial authority" in the development and implementation of policies in the academic sphere, id. at 1314, outweighed the lack of faculty input into budget decisions or the tenure process. Id. ("[W]e do not believe that lack of participation in [budgeting, tenure decisions, or setting tuition] precludes a finding that the faculty are managerial employees.").
The Board again found faculty members to be managerial employees in Lewis and Clark College, 300 N.L.R.B. 155 (1990). Faculty workload policies at the college were set by the administration, but committees (composed predominantly of faculty) made effective recommendations in areas such as admissions requirements and curriculum. Id. at 156-57. The Board rejected a Regional Director's view that "umbrella committees" on which the faculty were a minority, addressing financial issues and long-term planning, negated the faculty's managerial status. As the Board found, "[t]here is ... nothing inconsistent with the faculty members' having authority over one level of policy (e.g., academics), and ...