Petitions for review and cross-petition for enforcement of a decision and order of the National Labor Relations Board finding petitioner Ithaca College in violation of Sections 8(a)(5) and (a)(1) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(5) and (a)(1), and denying petitioner Ithaca College Faculty Association's request for attorneys' fees. Ithaca College's petition for review is granted and the proceedings are dismissed. Ithaca College Faculty Association's petition for review and the Board's cross-petition for enforcement are denied.
Before Medina, Mulligan and Meskill, Circuit Judges.
On December 8, 1977, the Ithaca College Chapter of the American Association of University Professors (AAUP) filed a petition with the Regional Office of the National Labor Relations Board (the Board) for certification as the collective bargaining representative of the full-time and part-time faculty members of Ithaca College (the College). On February 3, 1978, the Regional Director issued a decision and directed an election in a unit consisting "of all full-time faculty members employed by Ithaca College at its Ithaca, New York location but excluding all . . . part-time faculty, and supervisors as defined in the (National Labor Relations) Act." The election was held on March 3, 1978 with the AAUP, the Ithaca College Faculty Association (ICFA), and "no union" as the choices. None of the three choices on the ballot received a majority of the votes cast and pursuant to the rules of the Board, a run-off election between the first and second choices, "no union" and the ICFA, was scheduled for September 29, 1978.
On July 31, 1978, this Court rendered its decision in NLRB v. Yeshiva University, 582 F.2d 686 (2d Cir. 1978), aff'd, 444 U.S. 672, 100 S. Ct. 856, 63 L. Ed. 2d 115 (1980), which held that the full-time faculty at Yeshiva University were managerial or supervisory employees under the National Labor Relations Act (the Act), 29 U.S.C. § 151 et seq. (1976), and were therefore ineligible for inclusion in a bargaining unit. In our opinion we indicated that the Board precedents which had been routinely applied in cases involving faculty members in private institutions of higher learning were arbitrary and inconsistent with the Act.
Not surprisingly, on August 4, 1978, the College filed a motion for a rehearing requesting that the record be reopened in light of the Yeshiva decision. The response of the Regional Director was prompt and to the point. By letter dated August 25, he stated in relevant part:
Your motion is denied. The Board may decide to petition the United States Supreme Court for a writ of certiorari to review the Second Circuit's decision in Yeshiva. In any case, whether the Board seeks review of this decision, or not, Regional Directors are bound to follow and apply Board rather than court precedent, at least until the Supreme Court speaks to the contrary or the Board decides to acquiesce in the decision of the Court of Appeals. For these reasons your motion is denied.
The College's request for review of the Regional Director's decision was denied by the Board on September 26, 1978 "as it raise(d) no substantial issues warranting review." While this request was pending, the College sought judicial intervention to postpone the run-off election and to order a hearing on the Yeshiva claim. This relief was denied for jurisdictional reasons. Ithaca College v. Thomas W. Seeler, Regional Director, NLRB, No. 78-CV-485 (N.D.N.Y. Sept. 26, 1978), motion for stay pending appeal denied, No. 78-6150 (2d Cir. Sept. 28, 1978).
The run-off election was conducted as scheduled on September 29, 1978, and ICFA won by a narrow margin, 116 votes to 109. The College tried to challenge each faculty vote to no avail. It then filed objections to the election, reasserting its challenge of the faculty votes based on the Yeshiva decision, and alleging various other grounds for voiding the election which, given our disposition of this case, we need not detail. In a report issued on November 8, 1978, the Regional Director rejected each of the College's objections and recommended that the ICFA be certified as the bargaining representative of Ithaca's faculty. His report and recommendation were adopted by the Board in February of 1979.
The College, seeking to obtain review of its Yeshiva claim, refused to bargain with the ICFA, and on March 29, 1979, the Regional Director issued an unfair labor practice complaint alleging violations of sections 8(a)(5) and (a)(1) of the Act. The College answered by claiming, inter alia, that its full-time faculty members were managerial or supervisory employees under the Act. The General Counsel of the Board moved for summary judgment on the ground that the College was not raising any issues that had not already been determined during the representation proceedings. In opposition, the College submitted affidavits from the Deans of each of its Schools which in considerable detail pointed out that the faculty possessed a large measure of authority over matters affecting academic policy. The affidavits showed that the faculty has effectively determined curricula and admissions standards, and has had an instrumental role to play in the creation and disbanding of several Schools within the College. In addition, the faculty has determined what teachers are to be hired, promoted, and tenured, and has participated in the selection of all of the Deans, a Vice President and the President of the College. In short, the affidavits were directed to the criteria held by this Court in Yeshiva to establish the managerial or supervisory status of full-time faculty members.
Thereafter, the General Counsel made a motion to transfer the proceedings to the Board, to strike the College's affirmative defenses, and to grant summary judgment. ICFA made a motion for the award of attorneys' fees. By Decision and Order dated August 22, 1979, and reported at 244 N.L.R.B. No. 54, the Board granted the General Counsel's motion, but denied ICFA's request for attorneys' fees on the ground that the College's defenses were not "patently frivolous." Responding to the College's continued reliance on the Yeshiva case, the Board, in a footnote, stated, "With all due respect to the view expressed by the Second Circuit in Yeshiva, supra, we shall adhere to our position until the Supreme Court has passed on the matter."
The case then came before this Court on petitions of the College and ICFA to review, and a cross-application of the Board to enforce, the order of the Board pursuant to sections 10(f) and 10(e) of the Act. Two days before oral argument was scheduled, the Supreme Court of the United States affirmed our decision in Yeshiva. NLRB v. Yeshiva University, 444 U.S. 672, 100 S. Ct. 856, 63 L. Ed. 2d 115 (1980). During oral argument we asked for supplemental briefs addressed to the issue of what remedy was appropriate here in view of the Supreme Court affirmance. The Board now seeks a remand for further proceedings. ICFA still urges that we enforce the order and continues to ask for attorneys' fees. The College requests that we grant summary judgment in its favor and vacate the Board's order.
The Board has offered us several explanations for its refusal to conduct a hearing on whether the criteria set forth in this Court's Yeshiva opinion applied to Ithaca College's faculty. We find none of these explanations acceptable.
First, the Board claims that the College's request for a hearing was untimely. The record belies that claim. The letter from the Regional Director denying the Board's motion for a rehearing made no mention of untimeliness, but rather, relied on the notion that "Regional Directors are bound to follow and apply Board rather than Court precedent. . . ." The history of the proceedings shows that the College was assiduous in its efforts to raise a Yeshiva claim. Moreover, if there truly was a procedural hurdle that prevented the hearing, the ...