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National Labor Relations Board v. Mercy College

decided: June 9, 1976.


Petition for enforcement of bargaining order. Respondent resists, primarily on ground that determinative ballot in representation election was cast by ineligible employee.

Moore, Feinberg and Gurfein, Circuit Judges.

Author: Feinberg

FEINBERG, Circuit Judge:

In this hotly-contested matter, the National Labor Relations Board petitions for enforcement of its order requiring Mercy College, a private, non-profit institution, to recognize the Mercy College Faculty Council (the Union) as the bargaining agent for a unit consisting of all full-time and regular part-time members of the faculty. 219 N.L.R.B. No. 5. This proceeding is only one of the many evidencing the recent trend toward unionization of faculties at the university level.*fn1 Several questions as to unit eligibility are raised before us that are in some instances perplexing, but we do not find it necessary or appropriate to resolve them. We conclude that there was a serious procedural error in the Board proceeding that affects the validity of the order the Board seeks to enforce. We therefore remand to the Board for correction of that error and for further consideration.


Although this case comes to us in the framework of an alleged unfair labor practice, the basic issues stem, as is frequently the case, from the representation proceeding that led to certification of the Union. This began about three years ago when the Union filed a certification petition with the Board. After some skirmishing about the proper name of the Union on the ballot,*fn2 the Board's Acting Regional Director ordered an election in a unit, essentially agreed upon by the parties, consisting of " all full-time and regular part-time members of the faculty," including department chairmen and certain librarians, but with specified exclusions, the most important of which for our purposes were "administrative personnel" and "supervisors as defined in the Act."*fn3 The election took place in November 1973, and could not have been closer. Forty-two votes were cast for the Union and 41 against. The Board and the College challenged three voters, one of whom, Neil Judge, has turned out to be crucial, as will be seen below. The College also challenged one ambiguous ballot, which was included in the total of 42 for the Union, and filed various objections to the Union's pre-election conduct.

The Regional Director conducted a lengthy investigation of the issues raised by the challenges and the objections. In the course of that ex parte inquiry, the College submitted to the Director affidavits in support of its position. In March 1974, the Director dismissed all the College's objections and directed that one of the challenged votes (that of Neil Judge) be counted. The College submitted a timely request for review to the Board, in which it again pressed its challenge to the Judge ballot (which had not yet been counted), objected to the ambiguous ballot (which had been counted for the Union), objected to an alleged union campaign misrepresentation and sought an evidentiary hearing on these issues. In April 1974, the Board granted review only as to the ambiguous ballot. The College then sought reconsideration of Neil Judge's eligibility, in light of the Supreme Court's then recent decision in NLRB v. Bell Aerospace Co., 416 U.S. 267, 40 L. Ed. 2d 134, 94 S. Ct. 1757 (1974), which dealt with the definition of "managerial employees" under the Labor Act. The Board denied this request for reconsideration. In August 1974, the Board held that the ambiguous "yes" vote was void, reversing the Regional Director. 212 N.L.R.B. 925.*fn4 This made the tally 41 votes for, and 41 votes against, the Union. The Board remanded the case to the Regional Director to open and count the ballot of Neil Judge. His vote for the Union restored the vote to 42-41, in the Union's favor. The Union was certified on August 30, 1974.

Thereafter, the Union requested bargaining, and the College refused. The Union filed unfair labor practice charges, the Board issued a complaint, and the College admitted its refusal to bargain but contested the validity of the election and the Union's certification and asserted various affirmative defenses. The Board's General Counsel then moved for summary judgment, which the Board granted over the College's protest. The Board's order, which it now seeks to enforce, found that the College's admitted refusal to bargain with the Union violated sections 8(a)(5) and (1) of the Act.


In response to the Board's petition to enforce its order, the College raises six points. It argues that (1) Neil Judge was ineligible to vote because he was an administrator, a manager and a supervisor; (2) misrepresentation in a union handbill destroyed the required laboratory conditions for the election; (3) at the very least, the College was entitled to an evidentiary hearing on these two issues; (4) the Union's name on the ballot was misleading to the voters; (5) the Board violated the Act's quorum requirements; and (6) expansion of the unit since the election, the closeness of the election and the resulting serious legal issues require, at the very least, a new election. Since we believe that the failure to hold an evidentiary hearing as to Judge's eligibility was a serious error requiring a remand of these proceedings to the Board, we turn to that issue first.

The College argues to us, as it did to the Board, that Judge was ineligible to vote in the election because he was an administrative, managerial and supervisory employee or at least fell into one of these categories. The three concepts are related and blend into one another in a way difficult to define. The term "managerial employee" was not used in the original Wagner Act, and does not appear in the 1947 Taft-Hartley amendments to the Labor Act. Nevertheless, the Board has developed the concept, and the pertinent cases and legislative history are traced in great detail in the decisions both of the Supreme Court in NLRB v. Bell Aerospace Co., supra, 416 U.S. at 274-90, and of this court in the earlier stage of that case, 475 F.2d 485, 488-94 (1973). A frequently cited definition is that "managerial employees" are those who "formulate and effectuate management policies by expressing and making operative the decisions of their employer," quoted in Bell Aerospace, supra, 416 U.S. at 267.*fn5 The Supreme Court held in Bell Aerospace that all managerial employees are excluded from the protections of the National Labor Relations Act. Id. at 275. The Taft-Hartley Act defined the term "supervisor," 29 U.S.C. § 152(11),*fn6 and explicitly excluded those so defined from the protections of the Act. 29 U.S.C. § 152(3).*fn7 See Bell Aerospace, supra, 416 U.S. at 274 n.4. The legislative history of the Taft-Hartley Act, summarized at 416 U.S. at 279-84, suggests that the explicit exclusion of "supervisors" was not extended to cover those categorized as "managerial employees" because Congress regarded the latter "as so clearly outside the Act that no specific exclusionary provision was thought necessary." Id. at 283-84.

The term "administrative personnel," in contrast, does not appear in the statute, nor are we cited to any decision holding the category an implicit exclusion from the Act. The parties agreed, however, that "administrative personnel" were to be excluded from the unit in this case.*fn8 The Regional Director correctly observed in his March 1974 opinion that "the record sheds no very clear light on the meaning which the parties intended to give to the term."

The question whether a particular employee falls within one of these categories ordinarily depends upon individual facts, which may vary from case to case. It is, of course, true that issues of general application may arise, as happened in Bell Aerospace, supra, where the question was whether "managerial employees" could be covered by the Labor Act if their job responsibilities created no conflict of interest with membership in a labor organization. A similar broad issue is raised in this case by the Regional Director's use of a rule that in order to be classified as a supervisor an employee must supervise other unit employees or spend more than 50 per cent of his working time supervising non-unit employees.*fn9 The College says that there is no support for such a rule in the statute, its legislative history or the cases.

But most of the time, the issue whether an employee is excluded from the unit as a supervisor, manager or administrator is purely factual. In large part, this case is no exception. At the time of the election, Judge was Director of Athletics at the College and responsible for development of its athletic program. In support of its position that Judge does not belong in the unit, the College stresses the following: Judge administers the program under an administrative letter of appointment similar to the College's agreement with its officers and deans, all of whom were excluded from the unit. His appointment is terminable at will, while faculty members receive teaching contracts for a fixed term. Judge is paid as an administrator, prepares his department's budget, reports to an administrative dean, is listed in the catalog as an administrator and does not attend faculty meetings. Judge ...

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