National Labor Relations Board v. Yeshiva University

444 U.S. 672, 100 S. Ct. 856, 63 L. Ed. 2d 115, 1980 U.S. LEXIS 25, 103 L.R.R.M. (BNA) 2526

• Court: Supreme Court of the United States
• Decided: February 20, 1980
• Docket: 78-857
• Status: Published

Opinions

Mr. Justice Powell

delivered the opinion of the Court.

Supervisors and managerial employees are excluded from the categories of employees entitled to the benefits of collective bargaining under the National Labor Relations Act.¹ The question presented is whether the full-time faculty of Yeshiva University fall within those exclusions.

I

Yeshiva is a private university which conducts a broad range of arts and sciences programs at its five undergraduate and eight graduate schools in New York City. On October 30, 1974, the Yeshiva University Faculty Association (Union) filed a representation petition with the National Labor Relations Board (Board). The Union sought certification as bargaining agent for the full-time faculty members at 10 of the 13 schools.² The University opposed the petition on the ground that all of its faculty members are managerial or supervisory personnel and hence not employees within the meaning of the National Labor Relations Act (Act). A Board-appointed hearing officer held hearings over a period of five months, generating a voluminous record.

The evidence at the hearings showed that a central administrative hierarchy serves all of the University’s schools. Ultimate authority is vested in a Board of Trustees, whose members (other than the President) hold no administrative positions at the University. The President sits on the Board of Trustees and serves as chief executive officer, assisted by four Vice Presidents who oversee, respectively, medical affairs and science, student affairs, business affairs, and academic affairs. An Executive Council of Deans and administrators makes recommendations to the President on a wide variety of matters.

University-wide policies are formulated by the central administration with the approval of the Board of Trustees, and include general guidelines dealing with teaching loads, salary scales, tenure, sabbaticals, retirement, and fringe benefits. The budget for each school is drafted by its Dean or Director, subject to approval by the President after consultation with a committee of administrators.³ The faculty participate in University-wide governance through their representatives on an elected student-faculty advisory council. The only University-wide faculty body is the Faculty Review Committee, composed of elected representatives who adjust grievances by informal negotiation and also may make formal recommendations to the Dean of the affected school or to the President. Such recommendations are purely advisory.

The individual schools within the University are substantially autonomous. Each is headed by a Dean or Director, and faculty members at each school meet formally and informally to discuss and decide matters of institutional and professional concern. At four schools, formal meetings are convened regularly pursuant to written bylaws. The remaining faculties meet when convened by the Dean or Director. Most of the schools also have faculty committees concerned with special areas of educational policy. Faculty welfare committees negotiate with administrators concerning salary and conditions of employment. Through these meetings and committees, the faculty at each school effectively determine its curriculum, grading system, admission and matriculation standards, academic calendars, and course schedules.⁴

Faculty power at Yeshiva’s schools extends beyond strictly academic concerns. The faculty at each school make recommendations to the Dean or Director in every case of faculty hiring, tenure, sabbaticals, termination and promotion. Although the final decision is reached by the central administration on the advice of the Dean or Director, the overwhelming majority of faculty recommendations are implemented.⁵ Even when financial problems in the early 1970’s restricted Yeshiva’s budget, faculty recommendations still largely controlled personnel decisions made within the constraints imposed by the administration. Indeed, the faculty of one school recently drew up new and binding policies expanding their own role in these matters. In addition, some faculties make final decisions regarding the admission, expulsion, and graduation of individual students. Others have decided questions involving teaching loads, student absence policies, tuition and enrollment levels, and in one case the location of a school.⁶

II

A three-member panel of the Board granted the Union’s petition in December 1975, and directed an election in a bargaining unit consisting of all full-time faculty members at the affected schools. 221 N. L. R. B. 1053. The unit included Assistant Deans, senior professors, and department chairmen, as well as associate professors, assistant professors, and instructors.⁷ Deans and Directors were excluded. The Board summarily rejected the University’s contention that its entire faculty are managerial, viewing the claim as a request for reconsideration of previous Board decisions on the issue. Instead of making findings of fact as to Yeshiva, the Board referred generally to the record and found no “significan [t]” difference between this faculty and others it had considered. The Board concluded that the faculty are professional employees entitled to the protection of the Act because “faculty participation in collegial decision making is on a collective rather than individual basis, it is exercised in the faculty’s own interest rather than fin the interest of the employer,’ and final authority rests with the board of trustees.” Id., at 1054 (footnote omitted).⁸

The Union won the election and was certified by the Board. The University refused to bargain, reasserting its view that the faculty are managerial. In the subsequent unfair labor practice proceeding, the Board refused to reconsider its holding in the representation proceeding and ordered the University ,to bargain with the Union. 231 N. L. R. B. 597 (1977). When the University still refused to sit down at the negotiating table, the Board sought enforcement in the Court of Appeals for the Second Circuit, which denied the petition. 582 F. 2d 686 (1978).

Since the Board had made no findings of fact, the court examined the record and related the circumstances in considerable detail. It agreed that the faculty are professional employees under § 2 (12) of the Act. 29 U. S. C. § 152 (12). But the court found that the Board had ignored “the extensive control of Yeshiva’s faculty” over academic and personnel decisions as well as the “crucial role of the full-time faculty in determining other central policies of the institution.” 582 F. 2d, at 698. The court concluded that such power is not an exercise of individual professional expertise. Rather, the faculty are, “in effect, substantially and pervasively operating the enterprise.” Ibid. Accordingly, the court held that the faculty are endowed with “managerial status” sufficient to remove them from the coverage of the Act. We granted certiorari, 440 U. S. 906 (1979), and now affirm.

Ill

There is no evidence that Congress has considered whether a university faculty may organize for collective bargaining under the Act. Indeed, when the Wagner and Taft-Hartley Acts were approved, it was thought that congressional power did not extend to university faculties because they were employed by nonprofit institutions which did not “affect corn-merce.” See NLRB v. Catholic Bishop of Chicago, 440 U. S. 490, 504-505 (1979).⁹ Moreover, the authority structure of a university does not fit neatly within the statutory scheme we are asked to interpret. The Board itself has noted that the concept of collegiality “does not square with the traditional authority structures with which th[e] Act was designed to cope in the typical organizations of the commercial world.” Adelphi University, 195 N. L. R. B. 639, 648 (1972).

The Act was intended to accommodate the type of management-employee relations that prevail in the pyramidal hierarchies of private industry. Ibid. In contrast, authority in the typical “mature” private university is divided between a central administration and one or more collegial bodies. See J. Baldridge, Power and Conflict in the University 114 (1971). This system of “shared authority” evolved from the medieval model of collegial decisionmaking in which guilds of scholars were responsible only to themselves. See N. Fehl, The Idea of a University in East and West 36-46 (1962); D. Knowles, The Evolution of Medieval Thought 164-168 (1962). At early universities, the faculty were the school. Although faculties have been subject to external control in the United States since colonial times, J. Brubacher & W. Rudy, Higher Education in Transition: A History of American Colleges and Universities, 1636-1976, pp. 25-30 (3d ed. 1976), traditions of collegiality continue to play a significant role at many universities, including Yeshiva.¹⁰ For these reasons, the Board has recognized that principles developed for use in the industrial setting cannot be “imposed blindly on the academic world.” Syracuse University, 204 N. L. R. B. 641, 643 (1973).

The absence of explicit congressional direction, of course, does not preclude the Board from reaching any particular type of employment. See NLRB v. Hearst Publications, Inc., 322 U. S. Ill, 124—131 (1944). Acting under its responsibility for adapting the broad provisions of the Act to differing workplaces, the Board asserted jurisdiction over a university for the first time in 1970. Cornell University, 183 N. L. R. B. 329 (1970). Within a year it had approved the formation of bargaining units composed of faculty members. C. W. Post Center, 189 N. L. R. B. 904 (1971).¹¹ The Board reasoned that faculty members are “professional employees” within the meaning of § 2 (12) of the Act and therefore are entitled to the benefits of collective bargaining. 189 N. L. R. B., at 905; 29 U. S. C. § 152 (12).¹²

Yeshiva does not contend that its faculty are not professionals under the statute. But professionals, like other employees, may be exempted from coverage under the Act’s ex-elusion for “supervisors” who use independent judgment in overseeing other employees in the interest of the employer,¹³ or under the judicially implied exclusion for “managerial employees” who are involved in developing and enforcing employer policy.¹⁴ Both exemptions grow out of the same concern: That an employer is entitled to the undivided loyalty of its representatives. Beasley v. Food Fair of North Carolina, 416 U. S. 653, 661-662 (1974); see NLRB v. Bell Aerospace Co., 416 U. S. 267, 281-282 (1974). Because the Court of Appeals found the faculty to be managerial employees, it did not decide the question of their supervisory status. In view of our agreement with that court’s application of the managerial exclusion, we also need not resolve that issue of statutory interpretation.

IV

Managerial employees are defined as those who “ 'formulate and effectuate management policies by expressing and making operative the decisions of their employer.’ ” NLRB v. Bell Aerospace Co., supra, at 288 (quoting Palace Laundry Dry Cleaning Corp., 75 N. L. R. B. 320, 323, n. 4 (1947)). These employees are “much higher in the managerial structure” than those explicitly mentioned by Congress, which “regarded [them] as so clearly outside the Act that no specific exclusionary provision was thought necessary.” 416 U. S., at 283. Managerial employees must exercise discretion within, or even independently of, established employer policy and must be aligned with management. See id., at 286-287 (citing cases). Although the Board has established no firm criteria for determining when an employee is so aligned, normally an employee may be excluded as managerial only if he represents management interests by taking or recommending discretionary actions that effectively control or implement employer policy.¹⁵

The Board does not contend that the Yeshiva faculty’s decisionmaking is too insignificant to be deemed managerial.¹⁶ Nor does it suggest that the role of the faculty is merely advisory and thus not managerial.¹⁷ Instead, it contends that the managerial exclusion cannot be applied in a straightforward fashion to professional employees because those employees often appear to be exercising managerial authority when they are merely performing routine job duties. The status of such employees, in the Board's view, must be determined by reference to the “alignment with management” criterion. The Board argues that the Yeshiva faculty are not aligned with management because they are expected to exercise “independent professional judgment” while participating in academic governance, and because they are neither “expected to conform to management policies [nor] judged according to their effectiveness in carrying out those policies.” Because of this independence, the Board contends there is no danger of divided loyalty and no need for the managerial exclusion. In its view, union pressure cannot divert the faculty from adhering to the interests of the university, because the university itself expects its faculty to pursue professional values rather than institutional interests. The Board concludes that application of the managerial exclusion to such employees would frustrate the national labor policy in favor of collective bargaining.

This “independent professional judgment” test was not applied in the decision we are asked to uphold. The Board's opinion relies exclusively on its previous faculty decisions for both legal and factual analysis. 221 N. L. R. B., at 1054. But those decisions only dimly foreshadow the reasoning now proffered to the Court. Without explanation, the Board initially announced two different rationales for faculty cases,¹⁸ then quickly transformed them into a litany to be repeated in case after case: (i) faculty authority .is collective, (ii) it is exercised in the faculty’s own interest rather than in the interest of the university, and (iii) final authority rests with the board of trustees. Northeastern University, 218 N. L. R. B. 247, 250 (1975); University of Miami, 213 N. L. R. B. 634, 634 (1974); see Tusculum College, 199 N. L. R. B. 28, 30 (1972).¹⁹ In their arguments in this case, the Board’s lawyers have abandoned the first and third branches of this analysis,²⁰ which in any event were flatly inconsistent with its precedents,²¹ and have transformed the second into a theory that does not appear clearly in any Board opinion.²²

V

The controlling consideration in this case is that the faculty of Yeshiva University 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. When one considers the function of a university, it is difficult to imagine decisions more managerial than these. To the extent the industrial analogy applies, the faculty determines within each school the product to be produced, the terms upon which it will be offered, and the customers who will be served.²³

The Board nevertheless insists that these decisions are not managerial because they require the exercise of independent professional judgment. We are not persuaded by this argument. There may be some tension between the Act’s exclusion of managerial employees and its inclusion of professionals, since most professionals in managerial positions continue to draw on their special skills and training. But we have been directed to no authority suggesting that that tension can be resolved by reference to the “independent professional judgment” criterion proposed in this case.²⁴ Outside the university context, the Board routinely has applied the managerial and supervisory exclusions to professionals in executive positions without inquiring whether their decisions were based on management policy rather than professional expertise.²⁵ Indeed, the Board has twice implicitly rejected the contention that decisions based on professional judgment cannot be managerial.²⁶ Since the Board does not suggest that the “independent professional judgment” test is to be limited to university faculty, its new approach would overrule sub silentio this body of Board precedent and could result in the indiscriminate recharacterization as covered employees of professionals working in supervisory and managerial capacities.

Moreover, the Board’s approach would undermine the goal it purports to serve: To ensure that employees who exercise discretionary authority on behalf of the employer will not divide their loyalty between employer and union. In arguing that a faculty member exercising independent judgment acts primarily in his own interest and therefore does not represent the interest of his employer, the Board assumes that the professional interests of the faculty and the interests of the institution are distinct, separable entities with which a faculty member could not simultaneously be aligned. The Court of Appeals found no justification for this distinction, and we perceive none. In fact, the faculty’s professional interests — as applied to governance at a university like Yeshiva — cannot be separated from those of the institution.

In such a university, 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. See K. Mortimer & T. McConnell, Sharing Authority Effectively 23-24 (1978). Faculty members enhance their own standing and fulfill their professional mission by ensuring that the university’s objectives are met. But there can be no doubt that the quest for academic excellence and institutional distinction is a “policy” to which the administration expects the faculty to adhere, whether it be defined as a professional or an institutional goal. It is fruitless to ask whether an employee is “expected to conform” to one goal or another when the two are essentially the same.²⁷ See NLRB v. Scott Paper Co., 440 F. 2d 625, 630 (CA1 1971) (tractor owner-operators); Deaton Truck Line, Inc. v. NLRB, 337 F. 2d 697, 699 (CA5 1964) (same), cert. denied, 381 U. S. 903 (1965).

The problem of divided loyalty is particularly acute for a university like Yeshiva, which depends on the professional judgment of its faculty to formulate and apply crucial policies constrained only by necessarily general institutional goals. The university requires faculty participation in governance because professional expertise is indispensable to the formulation and implementation of academic policy.²⁸ It may appear, as the Board contends, that the professor performing governance functions is less “accountable” for departures from institutional policy than a middle-level industrial manager whose discretion is more confined. Moreover, traditional systems of collegiality and tenure insulate the professor from some of the sanctions applied to an industrial manager who fails to adhere to company policy. But the analogy of the university to industry need not, and indeed cannot, be complete. It is clear that Yeshiva and like universities must rely on their faculties to participate in the making and implementation of their policies.²⁹ The large measure of independence enjoyed by faculty members can only increase the danger that divided loyalty will lead to those harms that the Board traditionally has sought to prevent.

We certainly are not suggesting an application of the managerial exclusion that would sweep all professionals outside the Act in derogation of Congress’ expressed intent to protect them. The Board has recognized that employees whose deci-sionmaking is limited to the routine discharge of professional duties in projects to which they have been assigned cannot be excluded from coverage even if union membership arguably may involve some divided loyalty.³⁰ Only if an employee’s activities fall outside the scope of the duties routinely performed by similarly .situated professionals will he be found aligned with management. We think these decisions accurately capture the intent of Congress, and that they provide an appropriate starting point for analysis in cases involving professionals alleged to be managerial.³¹

VI

Finally, the Board contends that the deference due its expertise in these matters requires us to reverse the decision of the Court of Appeals. The question we decide today is a mixed one of fact and law. But the Board’s opinion may be searcheddn vain for relevant findings of fact. The absence of factual analysis apparently reflects the Board’s view that the managerial status of particular faculties may be decided on the basis of conclusory rationales rather than examination of the facts of each case. The Court of Appeals took a different view, and determined that the faculty of Yeshiva University, “in effect, substantially and pervasively operat[e] the enterprise.” 582 F. 2d, at 698. We find no reason to reject this conclusion. As our decisions consistently show, we accord great respect to the expertise of the Board when its conclusions are rationally based on articulated facts and consistent with the Act. Beth Israel Hospital v. NLRB, 437 U. S. 483, 501 (1978). In this case, we hold that the Board’s decision satisfies neither criterion.

Affirmed.

1 49 Stat. 449, as amended, 61 Stat. 136, 73 Stat. 519, 29 U. S. C. § 151 et seq.; see 29 U. S. C. §§ 152 (3), 152 (11), 164 (a); NLRB v. Bell Aerospace Co., 416 U. S. 267 (1974).

2 The schools involved are Yeshiva College, Stern College for Women, Teacher’s Institute for Women, Erna Michael College, Yeshiva Program, James Striar School of General Jewish Studies, Belfer Graduate School of Sciences, Ferkauf Graduate School of Humanities and Social Sciences, Wurzweiler School of Social Work, and Bernard Revel Graduate School. The Union did not seek to represent the faculty of the medical school, the graduate school of medical sciences, the Yeshiva High School, or any of the theological programs affiliated with the University. A law school has been opened since the time of the hearings, but it does not figure in this case.

3 At Yeshiva College, budget requests prepared by the senior professor in each subject area receive the “perfunctory” approval of the Dean “99 percent” of the time and have never been rejected by the central administration. App. 298-299. A council of elected department chairmen at Ferkauf approves the school’s budget allocations when discretionary funds are available. Id., at 626-627. All of these professors were included in the bargaining unit approved by the Board.

4 For example, the Deans at Yeshiva and Erna Michael Colleges regard faculty actions as binding. Id., at 248-249, 312-313. Administrators testified that no academic initiative of either faculty had been vetoed since at least 1968. Id., at 250, 313. When the Stern College faculty disagreed with the Dean’s decision to delete the education major, the major was rein-stituted. Id., at 191. The Director of the Teacher’s Institute for Women testified that “the faculty is the school,” id, at 379, while the Director of the James Striar School described his position as the “executive arm of the faculty,” which had overruled him on occasion, id., at 360-361. All decisions regarding academic matters at the Yeshiva Program and Bernard Revel are made by faculty consensus. Id., at 574, 583-586. The “internal operation of [Wurzweiler] has been heavily governed by faculty decisions,” according to its Dean. Id., at 502.

5 One Dean estimated that 98% of faculty hiring recommendations were ultimately given effect. Id., at 624. Others could not recall an instance when a faculty recommendation had been overruled. Id., at 193-194. At Stem College, the Dean in six years has never overturned a promotion decision. Ibid. The President has accepted all decisions of the Yeshiva College faculty as to promotions and sabbaticals, including decisions opposed by the Dean. Id., at 268-270. At Erna Michael, the Dean has never hired a full-time faculty member without the consent of the affected senior professor, id., at 333-335, and the Director of Teacher’s Institute for Women stated baldly that no teacher had ever been hired if “there was the slightest objection, even on one faculty member’s part.” Id., at 388. The faculty at both these schools have overridden recommendations made by the deans. No promotion or grant of tenure has ever been made at Ferkauf over faculty opposition. Id., at 620, 633. The Dean of Belfer testified that he had no right to override faculty decisions on tenure and nonrenewal. Id., at 419.

6 The Director of Teacher’s Institute for Women once recommended that the school move to Brooklyn to attract students. The faculty rejected the proposal and the school remained in Manhattan. Id., at 379-380.

7 “Full-time faculty” were defined as those

“appointed to the University in the titles of professor, associate professor, assistant professor, instructor, or any adjunct or visiting thereof, department chairmen, division chairmen, senior faculty and assistant deans, but excluding . . . part-time faculty; lecturers; principal investigators; deans, acting deans and directors; [and others not relevant to this action].” 221 N. L. R. B., at 1057.

The term “faculty” in this opinion refers to the members of this unit as defined by the Board.

8 Identical language had been employed in at least two other Board decisions. See infra, at 684M385. In this case, it was not supported by a single citation to the record. MR. Justice BreNNAN’s dissent relies on this language, post, at 696, and adds that a faculty’s “primary concerns are academic and relate solely to its own professional reputation,” post, at 701. The view that faculty governance authority “is exercised in the faculty’s own interest” rather than that of the University assumes a lack of responsibility that certainly is not reflected in this record.

9 See also S. Rep. No. 573, 74th Cong., 1st Sess., 7 (1935) (dispute between employer and college professor would not be covered); H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 36 (1947) (listing professional employees covered by new statutory provision without mentioning teachers); S. Rep. No. 105, 80th Cong., 1st Sess., 11, 19 (1947) (same).

10 See the inaugural address of Williams College President Paul Ansel Chadbourne, quoted in Kahn, The NLRB and Higher Education: The Failure of Policymaking Through Adjudication, 21 UCLA L. Rev. 63, 70, n. 16 (1973) (‘"Professors are sometimes spoken of as working for the college. They are the college’ ”) (emphasis in original); Davis, Unions and Higher Education: Another View, 49 Ed. Record 139, 143 (1968) (“The president ... is not the faculty’s master. He is as much the faculty’s administrator as he is the board [of trustees’] ”); n. 4, supra.

11 The Board has suggested that Congress tacitly approved the formation of faculty units in 1974, when the Act was amended to eliminate the exemption accorded to nonprofit hospitals. Although Congress appears to have agreed that nonprofit institutions “affect commerce” under modem economic conditions, H. R. Rep. No. 93-1051, p. 4 (1974); 120 Cong. Rec. 12938 (1974) (remarks of Sen. Williams), there is nothing to suggest that Congress considered the status of university faculties.

12 The Act provides broadly that “employees” have organizational and other rights. 29 U. S. C. § 157. Section 2 (3) defines “employee” in general terms, 29 U. S. C. §152(3); §2(12) defines “professional employee” in some detail, 29 U. S. C. § 152 (12); and § 9 (b) (1) prohibits the Board from creating a bargaining unit that includes both professional and nonprofessional employees unless a majority of the professionals vote for inclusion, 29 U. S. C. § 159 (b) (1).

13 An employee may be excluded if he has authority over any one of 12 enumerated personnel actions, including hiring and firing. 29 U. S. C. §§ 152 (3), 152 (11), 164 (a). The Board has held repeatedly that professionals may be excluded as supervisors. E. g., University of Vermont, 223 N. L. R. B. 423, 426 (1976); Presbyterian Medical Center, 218 N. L. R. B. 1266, 1267-1269 (1975).

14 NLRB v. Bell Aerospace Co., 416 U. S. 267 (1974). The Board never has doubted that the managerial exclusion may be applied to professionals in a proper case. E. g., Sutter Community Hospitals of Sacramento, 227 N. L. R. B. 181, 193 (1976); see General Dynamics Corp., 213 N. L. R. B. 841, 857-858 (1974); Westinghouse Electric Corp., 113 N. L. R. B. 337, 339 (1955).

15 B. g., Sutter Community Hospitals of Sacramento, supra, at 193; Bell Aerospace, 219 N. L. R. B. 384, 385-386 (1975) (on remand); General Dynamics Corp., supra, at 857; see NLRB v. Bell Aerospace Co., supra, at 274, 286-289.

16 The Board has found decisions of far less significance to the employer to be managerial when the affected employees were aligned with management. Swift & Co., 115 N. L. R. B. 752, 753 (1956) (procurement drivers who made purchases for employers); Firestone Tire & Rubber Co., 112 N. L. R. B. 571, 573 (1955) (production schedulers); Peter Kiewit Sons’ Co., 106 N. L. R. B. 194, 196 (1953) (lecturers who indoctrinated new employees); Western Electric Co., 100 N. L. R. B. 420, 423 (1952) (personnel investigators who made hiring recommendations); American Locomotive Co., 92 N. L. R. B. 115, 116-117 (1950) (buyers who made substantial purchases on employer's behalf).

17 The Union does argue that the faculty's authority is merely advisory. But the fact that the administration holds a rarely exercised veto power does not diminish the faculty's effective power in policymaking and implementation. See nn. 4, 5, supra. The statutory definition of “supervisor” expressly contemplates that those employees who “effectively . . . recommend” the enumerated actions are to be excluded as supervisory. 29 U. S. C. § 152 (11). Consistent with the concern for divided loyalty, the relevant consideration is effective recommendation or control rather than final authority. That rationale applies with equal force to the managerial exclusion.

18 Two cases simply announced that faculty authority is neither managerial nor supervisory because it is exercised collectively. C. W. Post Center, 189 N. L. R. B. 904, 905 (1971); Fordham University, 193 N. L. R. B. 134, 135 (1971). The Board later acknowledged that “a genuine system of collegiality would tend to confound us,” but held that the modem university departs from that system because “ultimate authority” is vested in a board of trustees which neither attempts to convert the faculty into managerial entities nor advises them to advocate management interests. Adelphi University, 195 N. L. R. B. 639, 648 (1972). See Fairleigh Dickinson University, 227 N. L. R. B. 239, 241 (1976).

19 Citing these three factors, the Board concludes in each case that faculty are professional employees. It has never explained the reasoning connecting the premise with the conclusion, although an argument similar to that made by its lawyers in this case appears in one concurring opinion. Northeastern University, 218 N. L. R. B., at 257 (opinion of Member Kennedy).

20 Although the Board has preserved the points in footnotes to its brief, it no longer contends that “collective authority” and “lack of ultimate authority” are legal rationales. They are now said to be facts which, respectively, “fortif[y]” the Board’s view that faculty members act in their own interest, and contradict the premise that the university is a “self-governing communit[y] of scholars.” Reply Brief for Petitioner in No. 78-857, p. 11, n. 8. Cf. n. 8, supra.

21 The “collective authority” branch has never been applied to supervisors who work through committees. E. g., Florida Southern College, 196 N. L. R. B. 888, 889 (1972). Nor was it thought to bar managerial status for employees who owned enough stock to give them, as a group, a substantial voice in the employer’s affairs. See Sida of Hawaii, Inc., 191 N. L. R. B. 194, 195 (1971); Red and White Airway Cab Co., 123 N. L. R. B. 83, 85 (1959); Brookings Plywood Corp., 98 N. L. R. B. 794, 798-799 (1952). Ultimate authority, the third branch, has never been thought to be a prerequisite to supervisory or managerial status. Indeed, it could not be since every corporation vests that power in its board of directors.

22 We do not, of course, substitute counsel’s post hoc rationale for the reasoning supplied by the Board itself. SEC v. Chenery Corp., 332 U. S. 194, 196 (1947). Because the first and third branches of the Board’s analysis are insupportable, the Board’s only colorable theory is the “interest of the employer” branch. The argument presented to us is an expanded and considerably refined version of that notion.

23 The record shows that faculty members at Yeshiva also play a predominant role in faculty hiring, tenure, sabbaticals, termination and promotion. See supra, at 677, and n. 5. These decisions clearly have both managerial and supervisory characteristics. Since we do not reach the question of supervisory status, we need not rely primarily on these features of 'faculty authority.

24 The Board has cited no case directly applying an “independent professional judgment” standard. On the related question of accountability for implementation of management policies, it cites only NLRB v. Fullerton Publishing Co., 283 F. 2d 545, 550 (CA9 1960), which held that a news editor “responsibly directed” his department so as to fall within the definition of a supervisor, 29 U. S. C. §152(11). The court looked in part to accountability in rejecting the claim that the editor merely relayed assignments and thus was not “responsible” for directing employees as required by the statute. The case did not involve the managerial exclusion and has no application to the issues before us.

25 See eases cited in nn. 13 and 14, supra. A strict “conformity to management policy” test ignores the dual nature of the managerial role, since managers by definition not only conform to established policies but also exercise their own judgment within the range of those policies. See Bell Aerospace, 219 N. L. R. B., at 385 (quoting Eastern Camera & Photo Corp., 140 N. L. R. B. 569, 571 (1963)).

26 University of Chicago Library, 205 N. L. R. B. 220, 221-222, 229 (1973), enf’d, 506 F. 2d 1402 (CA7 1974) (reversing an Administrative Law Judge’s decision which had been premised on the “professional judgment” rationale); Sutter Community Hospitals of Sacramento, 227 N. L. R. B., at 193 (excluding as managerial a clinical specialist who used interdisciplinary professional skills to run a hospital department).

27 At Yeshiva, administrative concerns with scarce resources and University-wide balance have led to occasional vetoes of faculty action. But such infrequent administrative reversals in no way detract from the institution’s primary concern with the academic responsibilities entrusted to the faculty. The suggestion that faculty interests depart from those of the institution with respect to salary and benefits is even less meritorious. The same is true of every supervisory or managerial employee. Indeed, there is arguably a greater community of interest on this point in the university than in industry, because the nature and quality of a university depend so heavily on the faculty attracted to the institution. B. Richman & R. Farmer, Leadership, Goals, and Power in Higher Education 258 (1974); see D. Bornheimer, G. Burns, & G. Dumke, The Faculty in Higher Education 174-175 (1973).

28 See American Association for Higher Education, Faculty Participation in Academic Governance 22-24 (1967); Bornheimer, Burns, & Dumke, supra, at 149-150; Kadish, The Theory of the Profession and Its Predicament, 58 A. A. U. P. Bull. 120, 121 (1972). The extent to which Yeshiva faculty recommendations are implemented is no “mere coincidence,” as Mr. Justice BrenNAN’s dissent suggests. Post, at 701. Rather this is an inevitable characteristic of the governance structure adopted by universities like Yeshiva.

29 The dissent concludes, citing several secondary authorities, that the modern university has undergone changes that have shifted “the task of operating the university enterprise” from faculty to administration. Post, at 703. The shift, if it exists, is neither universal nor complete. See K. Mortimer & T. McConnell, Sharing Authority Effectively 27-28, 158— 162, 164-165 (1978). In any event, our decision must be based on the record before us. Nor can we decide this case by weighing the probable benefits and burdens of faculty collective bargaining. See -post, at 702-705. That, after all, is a matter for Congress, not this Court.

30 For this reason, architects and engineers functioning as project captains for work performed by teams of professionals are deemed employees despite substantial planning responsibility and authority to direct and evaluate team members. See General Dynamics Corp., 213 N. L. R. B., at 857-858; Wurster, Bernardi & Emmons, Inc., 192 N. L. R. B. 1049, 1051 (1971); Skidmore, Owings & Merrill, 192 N. L. R. B. 920, 921 (1971). See also Doctors’ Hospital of Modesto, Inc., 183 N. L. R. B. 950, 951-952 (1970), enf'd, 489 F. 2d 772 (CA9 1973) (nurses); National Broadcasting Co., 160 N. L. R. B. 1440, 1441 (1966) (broadcast newswriters). In the health-care context, the Board asks in each case whether the decisions alleged to be managerial or supervisory are “incidental to” or “in addition to” the treatment of patients, a test Congress expressly approved in 1974. S. Rep. No. 93-766, p. 6 (1974).

31 We recognize that this is a starting point only, and that other factors not present here may enter into the analysis in other contexts. It is plain, for example, that professors may not be excluded merely because they determine the content of their own courses, evaluate their own students, and supervise their own research. There thus may be institutions of higher learning unlike Yeshiva where the faculty are entirely or predominantly nonmanagerial. There also may be faculty members at Yeshiva and like universities who properly could be included in a bargaining unit. It may be that a rational line could be drawn between tenured and untenured faculty members, depending upon how a faculty is structured and operates. But we express no opinion on these questions, for it is clear that the unit approved by the Board was far too broad.