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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 9, 2003 Decided February 10, 2004
No. 03-1031
LEMOYNE-OWEN COLLEGE,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with
03–1099
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
Arnold E. Perl argued the cause and filed the briefs for
petitioner.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Steven B. Goldstein, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the
brief were Arthur F. Rosenfeld, General Counsel, John H.
Ferguson, Associate General Counsel, Aileen A. Armstrong,
Deputy Associate General Counsel, and Margaret A. Gaines,
Supervisory Attorney.
Before: GINSBURG, Chief Judge, and GARLAND and ROBERTS,
Circuit Judges.
Opinion for the Court filed by Circuit Judge ROBERTS.
ROBERTS, Circuit Judge: Petitioner LeMoyne-Owen College
is a historically black college in Memphis, Tennessee that
traces its roots to a school founded in 1862. The College’s
full-time faculty (numbering approximately sixty members)
sought to unionize in the spring of 2002 to negotiate with
management, but the College argued that the faculty mem-
bers were management — that is, managerial employees not
entitled to the protection of the National Labor Relations Act
(NLRA). See 29 U.S.C. §§ 152(3), 157 (defining covered
employees and establishing the right of collective bargaining);
see also NLRB v. Bell Aerospace Co., 416 U.S. 267, 283 (1974)
(managerial employees, though not specifically excluded from
NLRA coverage, were ‘‘regarded as so clearly outside the Act
that no specific exclusionary provision was thought neces-
sary’’). The National Labor Relations Board sided with the
faculty, ordering the College to recognize and bargain with
the faculty’s representative. The College petitioned for re-
view in this court, and the Board filed a cross-application to
enforce its order.
1. The College relies primarily on NLRB v. Yeshiva Uni-
versity, 444 U.S. 672 (1980), the Supreme Court’s leading
(because only) case on determining the managerial status of
an academic faculty. In Yeshiva, a union of the university’s
faculty sought certification to represent the faculty in collec-
tive bargaining with the administration. The NLRB granted
the union’s petition, but the Supreme Court held that the
faculty were managerial employees and thus not covered by
the NLRA. Id. at 691. The Court drew its definition of
managerial employees from Bell Aerospace, which held that
3
managers are those who ‘‘ ‘formulate and effectuate manage-
ment policies by expressing and making operative the deci-
sions of their employer.’ ’’ 416 U.S. at 288 (quoting Palace
Laundry Dry Cleaning Corp., 75 N.L.R.B. 320, 323 n.4
(1947)). See Yeshiva, 444 U.S. at 682. The Court explained
that the exception for ‘‘managerial employees,’’ like the ex-
press statutory exception for ‘‘supervisors,’’ derived from a
recognition ‘‘[t]hat an employer is entitled to the undivided
loyalty of its representatives.’’ Id.
Recognizing that the governance structures of academic
institutions differ from the standard industry model for which
the NLRA was designed, id. at 680, the Court declined to
adopt a per se rule on the managerial status of faculty
members, id. at 690–91 n.31. Instead, the Court emphasized
a number of factors that supported its conclusion that Yeshiva
University’s faculty were beyond the scope of the NLRA:
The controlling consideration in this case is that the
faculty TTT 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 teach-
ing methods, grading policies, and matriculation stan-
dards. 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.
Id. at 686.
The Court explained that, in a university such as Yeshiva,
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.
4
Id. at 688. The Court rejected the suggestion that the
faculty’s role was merely advisory because some of its deci-
sions could be overturned by the university administration or
board of trustees. ‘‘[T]he fact that the administration holds a
rarely exercised veto power does not diminish the faculty’s
effective power in decisionmaking and implementation,’’ the
Court found; ‘‘the relevant consideration is effective recom-
mendation or control rather than final authority.’’ Id. at 683
n.17; see id. at 688 n.27 (discussing ‘‘occasional vetoes of
faculty action’’).
2. As might be expected given such a long list of relevant
factors and the exquisite variety of academic institutions
across the country, the Board has developed a substantial
body of cases that explicate and develop the Yeshiva stan-
dard. In American International College, 282 N.L.R.B. 189
(1986), for example, the Board held the approximately ninety
faculty members to be managerial employees, noting the
authority of faculty standing committees in such areas as
admissions, curriculum issues, and graduation requirements.
Id. at 190–202. Although there were some instances in which
the administration had vetoed faculty proposals, the NLRB
said that ‘‘they are not substantial or predominant and do not
show a pattern of unilateral action by the administration.’’
Id. at 202.
In Livingstone College, 286 N.L.R.B. 1308 (1987), the
NLRB reached the same outcome, even though the faculty
exercised their authority through standing committees of
mixed membership — including administrators and students.
Id. at 1310. The faculty’s ‘‘substantial authority’’ in the
development and implementation of policies in the academic
sphere, id. at 1314, outweighed the lack of faculty input into
budget decisions or the tenure process. Id. (‘‘[W]e do not
believe that lack of participation in [budgeting, tenure deci-
sions, or setting tuition] precludes a finding that the faculty
are managerial employees.’’).
The Board again found faculty members to be managerial
employees in Lewis and Clark College, 300 N.L.R.B. 155
(1990). Faculty workload policies at the college were set by
5
the administration, but committees (composed predominantly
of faculty) made effective recommendations in areas such as
admissions requirements and curriculum. Id. at 156–57. The
Board rejected a Regional Director’s view that ‘‘umbrella
committees’’ on which the faculty were a minority, addressing
financial issues and long-term planning, negated the faculty’s
managerial status. As the Board found, ‘‘[t]here is TTT
nothing inconsistent with the faculty members’ having author-
ity over one level of policy (e.g., academics), and the adminis-
tration (including the board of trustees), having control over
another (e.g., financial viability and long-term planning).’’ Id.
at 162. The Board further explained:
The board of trustees and others in the administration
are entrusted with the ultimate policy-making and fidu-
ciary responsibility for the College, not the faculty. But,
even as to those areas in which the administration has
exercised its own managerial decision-making authority,
high-level implementation of those decisions is performed
by the faculty.
Id.
In Elmira College, 309 N.L.R.B. 842 (1992), the Board
upheld, without comment, a Regional Director’s conclusion
that ‘‘[w]ithout more, the nature of faculty involvement with
respect to academic matters conclusively establishes their
status as managerial employees.’’ Id., app. at 849 (Regional
Director decision). Under the college by-laws, the faculty
had authority over admissions, courses, graduation require-
ments, the nature of available degrees, and related procedural
matters. Id. at 842. The Regional Director noted that some
factors supported a lack of managerial status: ‘‘the college
faculty does not participate in promotion decisions exclusive
of tenure and, in a few instances, has been overruled in hiring
decisions. Also, the faculty has only a limited voice in
administrative decisions involving salary or benefits or the
budget process.’’ Id. at 850. He did not find these factors
controlling, because they ‘‘fall outside the crucial matters of
academic governance considered dispositive by the Supreme
Court in Yeshiva.’’ Id.
6
3. When the faculty of LeMoyne-Owen College petitioned
the NLRB for recognition as a bargaining unit, the College
responded by contending that ‘‘[t]he instant case bears strong
similarity to cases in which the Board, utilizing the principles
set forth in Yeshiva, found that faculty members were mana-
gerial employeesTTTT’’ Employer’s Br. to Regional Dir. at 16
(citing, inter alia, American International College, Living-
stone College, and Elmira College). The College pointed to
significant factual parallels between LeMoyne-Owen and the
other institutions at which faculty members were deemed
managerial employees — particularly when the comparison
focuses primarily on academic matters and on ‘‘effective
recommendation or control rather than final authority.’’
Yeshiva, 444 U.S. at 683 n.17. For example, the LeMoyne-
Owen faculty have, according to the Faculty Handbook, ‘‘poli-
cy and procedural authority’’ over a range of academic areas,
including admissions standards, the curriculum, general edu-
cation requirements, graduation requirements, standards for
grading, candidates for graduation, and conditions of aca-
demic standing, suspension, and dismissal. Faculty Hand-
book § 3.00.
The faculty act largely through a Faculty Assembly, con-
sisting of all full-time faculty members, and various standing
committees. Id. The standing committees include a Curricu-
lum Committee, which approves curriculum changes and
course additions or modifications, and an Academic Honors,
Standards, and Selection Committee, which oversees the
awarding of academic honors and handles cases of academic
probation and dismissal. See id. § 3.06 (curriculum commit-
tee); id. § 3.05 (academic honors committee). Faculty have
discretion over their teaching methods and the content of
their courses, within certain parameters described in the
Faculty Handbook. For example, each full-time faculty
member is obliged to teach twelve credit hours per semester,
and for each course, the faculty member must prepare a
detailed syllabus and file it with the appropriate division
chair. Id. §§ 9.01, 10.01. College policy mandates that an
7
evaluation of each student’s English usage form at least ten
percent of the student’s grade. Id. § 10.06.
Faculty recommendations on academic policies and other
matters, such as tenure, often require the approval of the
president and ultimately of the College’s board of trustees.
But the president testified that he had never, in six years as
president, failed to approve a faculty recommendation on
degree requirements or other matters related to the courses
taught at the College. Hearing Transcript 338. He also
stated that he had forwarded all Faculty Assembly recom-
mendations on curricular changes to the trustees, without
exception, and that the trustees had never rejected any of
those recommendations. Id. at 339–40.
4. The Regional Director determined, however, that the
faculty at LeMoyne-Owen were not managerial employees,
and certified a bargaining unit consisting of all full-time
faculty members. Decision and Direction of Election, NLRB
Case No. 25-RC-10120 (Aug. 6, 2002), at 2–3 (Certification
Decision). The Regional Director distinguished the College’s
faculty from the faculty at Yeshiva University, stating that
‘‘the faculty of LeMoyne-Owen College neither possess abso-
lute control over any facet of the school’s operations, nor
‘effectively’ recommend policies affecting its administration.
They neither establish new policy nor effectively recommend
changes to existing policy.’’ Id. at 11. In support of this
conclusion, the Regional Director noted that committee rec-
ommendations at the College are ‘‘subject to multiple levels of
review, and subject to change by higher levels of authority.’’
Id. The existence of such multiple levels of authority, he
stated, makes it less likely that faculty recommendations will
be effective, because the recommendations can be altered on
their way up the hierarchy. Id. at 12. The Regional Di-
rector pointed to a number of other factors, including the
presence of non-faculty on standing committees, an ad hoc
core curriculum committee with significant non-faculty repre-
sentation established by the president in apparent tension
with the faculty Curriculum Committee, and the instructional
policies in the Faculty Handbook, such as the English usage
requirement and the rules governing course syllabi. Id. at
8
12–13. He also stated that the faculty play ‘‘a limited role in
the selection of applicants for hire, [and] no role in the
decision to dismiss staff or faculty,’’ and cited specific instanc-
es such as the firing of secretaries during a financial crunch
at the College in 2000 and the hiring of a professor as a full-
time faculty member despite a faculty recommendation that
she be hired only as a visiting professor. Id.
In reaching his determination, the Regional Director did
not discuss any of the cases the College had cited. Instead,
he relied primarily on Florida Memorial College, 263
N.L.R.B. 1248 (1982); Kendall School of Design, 279
N.L.R.B. 281 (1986); and University of Great Falls, 325
N.L.R.B. 83 (1997). See Certification Decision at 12, 14.
Each of these post-Yeshiva cases held that an academic
institution’s faculty were not managerial employees. The
College, however, contends that the facts of these cases are
distinguishable in significant respects from the facts in the
LeMoyne-Owen record. There was no tenure system at
Florida Memorial College, and teaching contracts were gener-
ally only for a single year. Nor was there evidence of any
effective faculty input into the college’s curriculum; faculty
members seeking to introduce new courses had to seek
approval directly from the president and the dean of aca-
demic affairs. 263 N.L.R.B. at 1249–51. The school had an
open admissions policy (precluding a faculty role in admission
standards), and the administration established continuation
requirements and approved students for graduation. Id. at
1250. Noting that the administration had ‘‘systematically and
independently reviewed’’ faculty proposals and ‘‘consistently
substituted its own judgment for that of the faculty,’’ the
Board found that the faculty’s authority did not satisfy the
Yeshiva standard. Id. at 1254.
At the Kendall School of Design, meetings of the full
faculty were held only twice per semester, and votes of the
full faculty were never taken; a refocusing of the school’s
curriculum took place under the direction of the academic
dean, who gave the faculty curriculum committee only the
broad outlines of the revisions and then demanded a simple
9
up-or-down vote. 279 N.L.R.B. 281, app. at 283, 286 (Region-
al Director decision). Faculty members played no role in
other academic matters such as matriculation standards and
graduation requirements. Id. at 286. University of Great
Falls involved an institution where the dean of faculty had on
several occasions refused to let faculty use the textbooks of
their choice, and the deans — not the faculty — were
responsible for approving students for graduation. 325
N.L.R.B. 83, app. at 85 (Regional Director decision). In
addition, the Board found that, unlike in Elmira College and
Lewis and Clark College, there was no ‘‘clear evidence that
faculty recommendations were generally followed.’’ 325
N.L.R.B. at 83 & n.8.
LeMoyne-Owen requested that the Board review the Re-
gional Director’s decision, challenging the Regional Director’s
reliance on these cases and renewing its argument that other
cases, such as American International College and Lewis and
Clark College, were controlling precedent. See Employer’s
Request for Review of Bargaining Unit Certification at 10–12,
17–21. The Board denied the request by a 2–1 vote, declar-
ing in a one-sentence order that the College had ‘‘raised no
substantial issues warranting review.’’ Order, NLRB Case
No. 25-RC-10120 (Sept. 4, 2002). After the faculty voted to
accept their bargaining representative, the Regional Director
issued a formal certification of that representative and the
College again sought the review of the Board. As it had
before, the College argued that the LeMoyne-Owen faculty
exercise authority comparable to that of the faculty members
in American International College and the analogous post-
Yeshiva cases. See Employer’s Request for Review of Re-
gional Director’s Supplemental Decision and Certification of
Representative at 12–15. The Board again issued a terse
order denying review, again with no discussion of the prece-
dents. Order, NLRB Case No. 26-RC-8328 (Oct. 11, 2002).
The College refused to bargain with the faculty, and the
Board ultimately deemed the College guilty of unfair labor
practices and ordered it to bargain. Decision and Order,
NLRB Case No. 26-CA-20953, at 2 (Jan. 17, 2003). The
matter is before this court on the College’s petition for review
10
of the order and the Board’s cross-application for enforce-
ment. The College’s challenge brings the entire NLRB
proceeding — including the Regional Director’s underlying
decision to certify the full-time faculty as a bargaining unit —
before this court for review. Boire v. Greyhound Corp., 376
U.S. 473, 477 (1964); Terrace Gardens Plaza, Inc. v. NLRB,
91 F.3d 222, 225 (D.C. Cir. 1996).
5. We accord deference to the Board’s exercise of its
authority under 29 U.S.C. § 159 to certify appropriate bar-
gaining units. See, e.g., BB&L, Inc. v. NLRB, 52 F.3d 366,
369 (D.C. Cir. 1995). That deference is subject to certain
limits, however, and one of those limits is that the Board
‘‘cannot ignore its own relevant precedent but must explain
why it is not controlling.’’ Id. (citing Cleveland Constr. Co. v.
NLRB, 44 F.3d 1010, 1016 (D.C. Cir. 1995)); see also Inter-
national Union of Operating Eng’rs v. NLRB, 294 F.3d 186,
188 (D.C. Cir. 2002) (‘‘The Board has an obligation to engage
in reasoned decisionmaking, which TTT requires it to give a
reasoned explanation when it departs from its own prece-
dent.’’) (citations omitted). In this case, the Board has not
provided any explanation — let alone an adequate one — of
how its disposition is consistent with its contrary holdings in
the post-Yeshiva cases that appear to have presented similar
facts. The only opinion is that of the Regional Director,
which did not discuss or even mention a single one of the
precedents on which the College relied.
An agency is by no means required to distinguish every
precedent cited to it by an aggrieved party. See Bush-
Quayle ’92 Primary Comm., Inc. v. Federal Election
Comm’n, 104 F.3d 448, 454 (D.C. Cir. 1997) (‘‘We may permit
agency action to stand without elaborate explanation where
distinctions between the case under review and the asserted
precedent are so plain that no inconsistency appears.’’); Hall
v. McLaughlin, 864 F.2d 868, 873 (D.C. Cir. 1989) (‘‘if the
court itself finds the past decisions to involve materially
different situations, the agency’s burden of explanation about
any alleged ‘departures’ is considerably less’’). But where, as
here, a party makes a significant showing that analogous
11
cases have been decided differently, the agency must do more
than simply ignore that argument. See Speedrack Prods.
Group, Ltd. v. NLRB, 114 F.3d 1276, 1279 (D.C. Cir. 1997)
(Board ‘‘ignored its own precedent without offering any expla-
nation as to why this precedent was inapplicable’’). As this
court noted in Cleveland Construction, 44 F.3d at 1016, ‘‘we
cannot uphold silence.’’ Emerson’s advice to preachers —
‘‘emphasize your choice by utter ignoring of all that you
reject,’’ RALPH WALDO EMERSON, The Preacher, reprinted in 10
LECTURES AND BIOGRAPHICAL SKETCHES 215, 235 (1904) — will
not do for administrative agencies.
The need for an explanation is particularly acute when an
agency is applying a multi-factor test through case-by-case
adjudication. The ‘‘open-ended rough-and-tumble of factors’’
on which Yeshiva launched the Board and higher education,
Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.,
513 U.S. 527, 547 (1995); see Yeshiva, 444 U.S. at 690 n.31
(Court’s analysis ‘‘is a starting point only, and TTT other
factors not present here may enter into the analysis in other
contexts’’), can lead to predictability and intelligibility only to
the extent the Board explains, in applying the test to varied
fact situations, which factors are significant and which less so,
and why. As the Second Circuit explained in Arrow Fastener
Co. v. Stanley Works, 59 F.3d 384, 400 (2d Cir. 1995),
‘‘thorough, careful, and consistent application’’ of a multi-
factor test is important to allow ‘‘relevant distinctions be-
tween different factual configurations [to] emerge,’’ and be-
cause ‘‘appellate courts depend on it for the performance of
their assigned task of review.’’ In the absence of an explana-
tion, the ‘‘totality of the circumstances’’ can become simply a
cloak for agency whim — or worse. See HENRY J. FRIENDLY,
BENCHMARKS 104 (1967) (‘‘Lack of definite standards creates a
void into which attempts to influence are bound to rush; legal
vacuums are quite like physical ones in that respect.’’).
A court reviewing an ipse dixit outcome that seems incon-
sistent with proferred precedent is left to attempt to discern
for itself which factual differences might have been determi-
native, without guidance from the agency, and to assess
whether making such distinctions controlling is rational or
12
arbitrary, again without any agency explanation of why par-
ticular factors make a difference. The court really has no
way of knowing if the rationale it discerns is in fact that of
the agency, or one of the court’s own devise. Yet only the
former can provide a legitimate basis for sustaining agency
action. SEC v. Chenery Corp., 318 U.S. 80, 87–88 (1943).
Requiring an adequate explanation of apparent departures
from precedent thus not only serves the purpose of ensuring
like treatment under like circumstances, but also facilitates
judicial review of agency action in a manner that protects the
agency’s predominant role in applying the authority delegated
to it by Congress.
The NLRB may have an adequate explanation for the
result it reached in this case. We cannot, however, assume
that such an explanation exists until we see it. We therefore
grant the petition for review, deny the cross-application for
enforcement, and remand to the NLRB for further proceed-
ings.