National Labor Relations Board v. Lewis University

765 F.2d 616, 119 L.R.R.M. (BNA) 2993, 1985 U.S. App. LEXIS 19995
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 17, 1985
Docket83-2873
StatusPublished
Cited by9 cases

This text of 765 F.2d 616 (National Labor Relations Board v. Lewis University) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Labor Relations Board v. Lewis University, 765 F.2d 616, 119 L.R.R.M. (BNA) 2993, 1985 U.S. App. LEXIS 19995 (7th Cir. 1985).

Opinions

COFFEY, Circuit Judge.

The National Labor Relations Board petitions this court to enforce an order requiring the respondent, Lewis University, to cease and desist its practice of refusing to bargain with the College of Arts and Sciences full-time faculty. We deny enforcement of the order.1

[617]*617I

The record reveals that the respondent, Lewis University, is an institution of higher education affiliated with the Catholic Church.2 The University, located on a small, rural campus in Romeoville, Illinois, consists of three colleges — Arts and Sciences, Nursing, and Business — with a total enrollment of approximately 3,200 students. On April 1, 1975, the National Labor Relations Board (“NLRB” or “Board”) certified the University’s Faculty Life Committee as the exclusive bargaining representative for a unit consisting of:

“all full-time faculty within the College of Arts and Sciences including professors, associate professors, assistant professors, and instructors, and excluding all professional librarians, part-time faculty, all faculty of the College of Nursing and Continuing Education, all deans, guidance counselors, office clerical employees, guards, supervisors as defined in the Act, and all other employees.”

Lewis University, 265 N.L.R.B. 1239, 1242 n. 15 (1982). 1'n September 1975, the Faculty Life Committee executed a three-year collective bargaining agreement with the Board of Trustees, on behalf of the College of Arts and Sciences full-time faculty. The agreement expired August 31, 1978, but was extended, by consent of the parties, as negotiations for a new agreement continued.

On February 20, 1980, the Supreme Court issued its decision in NLRB v. Yeshiva University, 444 U.S. 672, 100 S.Ct. 856, 63 L.Ed.2d 115 (1980) (“Yeshiva”), ruling that members of the Yeshiva faculty were managerial personnel and thus excluded from the National Labor Relations Act, 29 U.S.C. § 151 et seq (1982).3 Following the Supreme Court’s Yeshiva decision, Lewis University and the Faculty Life Committee each filed a unit clarification petition with the NLRB on the issue of whether the full-time faculty members of the College of Arts and Sciences constitute managerial personnel. Additionally, the University filed motions with the Board to revoke the Faculty Life Committee’s certification as the exclusive bargaining representative because (1) pursuant to the Supreme Court’s holding in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979) (“Catholic Bishop”), the NLRB lacks statutory jurisdiction over teachers in church-operated schools, such as Lewis University;4 and (2) under the Supreme Court’s reasoning in Yeshiva, the full-time faculty of the College of Arts and [618]*618Sciences are managerial personnel, excluded from the National Labor Relations Act.

On December 16, 1982, the Board, in a three to two decision, denied the University’s motions to revoke the Faculty Life Committee’s certification and also dismissed each party’s petition for unit clarification. The entire Board agreed that it had jurisdiction in this matter because:

“First we do not believe that Catholic Bishop prevents the Board from asserting jurisdiction because, as we have stated before, Catholic Bishop applies only to parochial elementary and secondary schools, not to institutions of higher learning such as Lewis University. College of Notre Dame, 245 NLRB 386 (1979), and Barber-Scotia College, Inc., 245 NLRB 406 (1979). Furthermore, ... we conclude that Lewis University is not church-operated as contemplated by Catholic Bishop, and that the Board clearly has statutory jurisdiction over the Employer.”

Lewis University, 265 N.L.R.B. at 1239.5 A majority of the Board further ruled that:

“after considering this case in light of the Supreme Court’s decision in Yeshiva, we find that the faculty members, either as individuals or in their capacity as members of various committees, exercise independent judgment in the routine discharge of their professional duties, but do not effectively formulate and effectuate the policies of the Employer. Therefore, we find they are not excluded from coverage under the [National Labor Relations] Act as managerial employees.”

Id. at 1241 (footnote omitted). To support this finding, the majority relied chiefly upon a management rights clause in the expired collective bargaining agreement between the University and the College of Arts and Sciences full-time faculty providing, in pertinent part, that “management retains and reserves unto itself all power, right, authority, duty, and responsibility to and for the management and operation of the institution.” Id. at 1242 n. 16.6 According to the Board majority:

“In light of the reservation of rights in the master contract ... and the limited authority bestowed on the faculty members through the master contract ..., the master contract demonstrates that the faculty members of the College of [619]*619Arts and Sciences at Lewis University were not intended to perform managerial functions or to be considered managerial employees.”

Id. at 1242. In dissent, Board chairman Van de Water stated that:

“In my opinion, the faculty members at Lewis University are, in fact, managerial employees____ [W]hen the faculty comes together as a whole to sit as the faculty convened, it possesses and exercises managerial authority similar to that of the Yeshiva faculty. The faculty convened determines student admission requirements, what programs shall be offered, and what degree will be awarded to whom. It decides grading standards and graduation requirements. The faculty convened determines, in conjunction with their department chairpersons, what courses shall be offered, to whom, and at what time. The record reveals that the faculty convened, through the various standing committees, and with their department chairpersons, has extensive authority to formulate and effectuate academic policies for the University.”

Id. at 1252 (Van de Water, dissenting). In a separate, yet equally strong dissent, Board member Hunter concluded that:

“once the majority’s analysis is examined in light of the approach mandated by the Supreme Court in Yeshiva, no basis whatsoever remains for finding that the authority exercised by the faculty here does not constitute them as managerial personnel. Accordingly, I would revoke the Union’s certification, and I join the Chairman in dissenting.”

Id. at 1254 (Hunter, dissenting).

Following the Board’s majority decision that the College of Arts and Sciences full-time faculty were an appropriate bargaining unit, the University refused to resume collective bargaining negotiations with the Faculty Life Committee.

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765 F.2d 616, 119 L.R.R.M. (BNA) 2993, 1985 U.S. App. LEXIS 19995, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-labor-relations-board-v-lewis-university-ca7-1985.