Point Park University

National Labor Relations Board - Unpublished Board Decisions

May 22, 2012

06-RC-012276 (N.L.R.B. May. 22, 2012)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
POINT PARK UNIVERSITY
Employer
and 6-RC-12276
NEWSPAPER GUILD OF PITTSBURGH/
COMMUNICATIONS WORKERS OF AMERICA,
LOCAL 38061, AFL-CIO, CLC
Petitioner
NOTICE AND INVITATION TO FILE BRIEFS
The central issue in this case is whether the
University faculty members sought to be represented by the
Petitioner are statutory employees or rather excluded
managerial employees, consistent with the Supreme Court’s
decision in NLRB v. Yeshiva University, 444 U.S. 672
(1980). In his original decision and direction of
election, the Regional Director found that the faculty
members were not managerial employees, and, after an
election, the Petitioner was certified as their collective-
bargaining representative. The underlying issue ultimately
was presented to the United States Court of Appeals for the
District of Columbia Circuit, which found that the Board
had “failed to adequately explain why the faculty’s role at
the University is not managerial.” Point Park University v.
NLRB, 457 F.3d 42, 44 (D.C. Cir. 2006). The court
instructed the Board to identify which of the relevant
factors set forth in Yeshiva University, supra, are
significant and which less so in its determination that the
Employer’s faculty are not managerial employees and to
explain why the factors are so weighted. Following the
court’s remand, the Regional Director issued a Supplemental
Decision on Remand. The Employer sought review of that
decision, which the Board granted on November 28, 2007.
To aid the Board in properly addressing the court’s
remand, the Board invites the parties and amici to file
briefs that address the court’s instruction that the Board
explain the weight of the various factors identified by the
Supreme Court in Yeshiva and their application to this
2
case.1 Specifically, the briefs should address some or all
of the following questions:
(1) Which of the factors identified in Yeshiva and the
relevant cases decided by the Board since Yeshiva are
most significant in making a finding of managerial
status for university faculty members and why?
(2) In the areas identified as “significant,” what
evidence should be required to establish that faculty
make or “effectively control” decisions?
(3) Are the factors identified in the Board case law
to date sufficient to correctly determine whether
faculty are managerial?
(4) If the factors are not sufficient, what additional
factors would aid the Board in making a determination
of managerial status for faculty?
(5) Is the Board’s application of the Yeshiva factors
to faculty consistent with its determination of the
managerial status of other categories of employees
and, if not, (a) may the Board adopt a distinct
approach for such determinations in an academic
context or (b) can the Board more closely align its
determinations in an academic context with its
determinations in non-academic contexts in a manner
that remains consistent with the decision in Yeshiva?
(6) Do the factors employed by the Board in
determining the status of university faculty members
properly distinguish between indicia of managerial
status and indicia of professional status under the
Act?
(7) Have there been developments in models of
decision making in private universities since the

1 On December 12, 2007, the Employer filed a brief on review of the
Regional Director’s Supplemental Decision on Remand. The Petitioner
did not file a brief on review. Given the amount of time that has
passed since the request for review was granted and the absence of a
Brief on Review from the Petitioner, the Board has decided to solicit
additional briefing. We acknowledge, as our dissenting colleagues
point out, that this case has suffered from considerable delay already.
However, given the nature of the D.C. Circuit’s remand of the case, we
believe that allowing a short period of time for additional briefing
will aid the Board in deciding the important issues at stake.
3
issuance of Yeshiva that are relevant to the
factors the Board should consider in making a
determination of faculty managerial status? If
so, what are those developments and how should
they influence the Board’s analysis?
(8) As suggested in footnote 31 of the Yeshiva
decision, are there useful distinctions to be
drawn between and among different job
classifications within a faculty--such as between
professors, associate professors, assistant
professors, and lecturers or between tenured and
untenured faculty--depending on the faculty's
structure and practices?
In answering these questions, the parties and amici are
invited to submit empirical and other evidence.
Briefs not exceeding 50 pages in length shall be filed
with the Board in Washington, D.C. on or before July 6,
2012. The parties may file responsive briefs on or before
July 20, 2012, which shall not exceed 25 pages in length.
No other responsive briefs will be accepted. The parties
and amici shall file briefs electronically at
http://mynlrb.nlrb.gov/efile. If assistance is needed in
filing through http://mynlrb.nlrb.gov/efile, please contact
Lester A. Heltzer, Executive Secretary, National Labor
Relations Board.
MARK GASTON PEARCE, CHAIRMAN
RICHARD F. GRIFFIN, JR., MEMBER
SHARON BLOCK, MEMBER
Members Hayes and Flynn, dissenting:
We dissent from the majority’s decision to solicit
additional briefing now, nearly 5 years after the Board
granted the Employer’s Request for Review of the Regional
Director’s Supplemental Decision on Remand. An amicus
brief has already been filed in this case by the American
Council on Education ("ACE"), the National Association of
Independent Colleges & Universities ("NAICU"), the Council
of Independent Colleges ("CIC"), and the Association of
Independent Colleges & Universities of Pennsylvania
4
("AICUP"), which collectively represent virtually all
institutions of higher education. After the Board granted
review in November 2007, the Petitioner did not avail
itself of its opportunity to file a brief. Further, no
additional organizations have asked to participate as amici
during the lengthy pendency of this case despite the
publicity surrounding it.2 Under these circumstances, we
find it unwise to further delay the processing of this case
to solicit additional briefing.
BRIAN E. HAYES, MEMBER
TERENCE F. FLYNN, MEMBER
Dated, Washington, D.C. May 22, 2012.

2 See NLRB’s Weekly Summary of Cases, dated December 7, 2007, reprinted
in Daily Labor Report, E-1 (Dec. 7, 2007) (summarizing Board’s grant of
review of the Regional Director’s Supplemental Decision on Remand);
NLRB Failed to Adequately Explain Ruling on Faculty Status, Appeals
Court Decides, Daily Labor Report (Aug. 2, 2006); Bill Schackner,
“College Dispute Returned to NLRB, Point Park Faculty Seek to Join
Union,” Pittsburgh Post-Gazette (Aug. 2, 2006).