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OpinionMr. 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 *675 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). 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 **859 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. 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 *677 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 **860 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 *678 II *679 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). We granted certiorari, 440 U.S. 906, 99 S.Ct. 1212, 59 L.Ed.2d 453 (1979), and now affirm. III 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 commerce.” 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 *681 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 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 exclusion *682 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 IV 1Managerial 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, 94 S.Ct., at 1768 (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, 94 S.Ct., at 1766. *683 Managerial employees must exercise discretion within, or even independently of, established employer policy and must be aligned with management. See id., at 286–287, 94 S.Ct., at 1767–1768 (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 *686 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. The record shows that faculty members at Yeshiva also play a predominant role in faculty hiring, tenure, sabbaticals, and termination and promotion. 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. 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 *687proposed in this case.24 Outside the university context, the Board routinely has applied the managerial and supervisory exclusions to professionals in executive positions **865 without inquiring whether their decisions were based on management policy rather than professional expertise.25 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 *688 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. 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 . 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 **866 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 The large measure of independence *690 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. There may be institutions of higher learning unlike Yeshiva where the faculty are entirely or predominately 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. Affirmed. 98 S.Ct. 2505 Supreme Court of the United States EASTEX, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD. No. 77-453. Argued April 25, 1978.Decided June 22, 1978. Mr. Justice POWELL delivered the opinion of the Court. Employees of petitioner sought to distribute a union newsletter in nonworking areas of petitioner's property during nonworking time urging employees to support the union and discussing a proposal to incorporate the state “right-to-work” statute into the state constitution and a Presidential veto of an increase in the federal minimum wage. The newsletter also called on employees to **2509 take action to protect their interests as employees with respect to these two issues. The question presented is whether petitioner's refusal to allow the distribution violated § 8(a)(1) of the National Labor Relations Act, as amended, 61 Stat. 140, 29 U.S.C. § 158(a)(1), by interfering with, restraining, or coercing employees' exercise of their right under § 7 of the Act, 29 U.S.C. § 157, to engage in “concerted activities for the purpose of . . . mutual aid or protection.” The newsletter was divided into four sections. The first and fourth sections urged employees to support and participate in the union and, more generally, extolled the benefits of union solidarity. The second section encouraged employees to write their legislators to oppose incorporation of the state “right-to-work” statute into a revised state constitution then under consideration, warning that incorporation would “weake[n] Unions and improv[e] the edge business has at the bargaining table.” The third section noted that the President recently had vetoed a bill to increase the federal minimum wage from $1.60 to $2.00 per hour, compared this action to the increase of prices and profits in the oil industry under administration policies, and admonished: “As working men and women we must defeat our enemies and *560 elect our friends. If you haven't registered to vote, please do so today.”3 Petitioner contends that the activity here is not within the “mutual aid or protection” language of section 7 because it does not relate to a “specific dispute” between employees and their own employer “over an issue which the employer has the right or power to affect.” Brief for Petitioner 13. In support of its position, petitioner asserts that the term “employees” in § 7 refers only to employees of a particular employer, so that only activity by employees on behalf of themselves or other employees *564 of the same employer is protected. Id., at 18, 24. Petitioner also argues that the term “collective bargaining” in § 7 “indicates a direct bargaining relationship whereas ‘other mutual aid or protection’ must refer to activities of a similar nature . . . .”Id., at 24. Thus, in petitioner's view, under § 7 “the employee is only protected for activity within the scope of the employment relationship.” Id., at 13. Petitioner rejects the idea that § 7 might protect any activity that could be characterized as “political,” and suggests that the discharge of an employee who engages in any such activity would not violate the Act.11 1We believe that petitioner misconceives the reach of the “mutual aid or protection” clause. The “employees” who may engage in concerted activities for “mutual aid or protection” are defined by § 2(3) of the Act, 29 U.S.C. § 152(3), to “include any employee, and shall not be limited to the employees of a particular employer, unless **2512this subchapter explicitly states otherwise . . . .” This definition was intended to protect employees when they engage in otherwise proper concerted activities in support of employees of employers other than their own.12 2We also find no warrant for petitioner's view that employees lose their protection under the “mutual aid or protection” clause when they seek to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee-employer relationship. The 74th Congress knew well enough that labor's cause often is advanced on fronts other than collective bargaining and grievance settlement within the immediate employment context. It recognized this fact by choosing, as the language of § 7 makes clear, to protect concerted activities for the somewhat broader purpose of “mutual aid or protection” as well as for the narrower purposes of “self-organization” and “collective bargaining.”14 Thus, it has been held that the “mutual aid or*566 protection” clause protects employees from retaliation by their employers when they seek to improve working conditions through resort to administrative and judicial forums,15 and that employees' **2513 appeals to legislators to protect their interests as employees are within the scope of this clause.16 To hold that activity of this nature is entirely unprotected-irrespective of location or the means employed-would leave employees *567 open to retaliation for much legitimate activity that could improve their lot as employees. It is true, of course, that some concerted activity bears a less immediate relationship to employees' interests as employees than other such activity. We may assume that at some point *568 the relationship becomes so attenuated that an activity cannot fairly be deemed to come within the “mutual aid or protection” clause. It is neither necessary nor appropriate, however, for us to attempt to delineate precisely the boundaries of the “mutual aid or protection” clause. That task is for the Board to perform in the first instance as it considers the wide variety of cases that come before it.18 5*569 The Board determined that distribution of the second section, urging employees to write their legislators to oppose incorporation of the state “right-to-work” statute into a revised state constitution, was protected because union security is “central to the union concept of strength through solidarity” and “a mandatory subject of bargaining in other than right-to-work states.” 215 N.L.R.B., at 274. The newsletter warned that incorporation could affect employees adversely “by weakening Unions and improving the edge business has at the bargaining table.” The fact that Texas already has a “right-to-work” statute does not render employees' interest in this matter any less strong, for, as the Court of Appeals noted, it is “one thing to face a statutory scheme which is open to legislative modification or repeal” and “quite another thing to face the prospect that such a scheme will be frozen in a concrete constitutional mandate.” 6The Board held that distribution of the third section, criticizing a Presidential veto of an increase in the federal minimum wage and urging employees to register to vote to “defeat our enemies and elect our friends,” was protected despite the fact that petitioner's employees were paid more than the vetoed minimum wage. It reasoned that the “minimum wage inevitably influences wage levels derived from collective bargaining, even those far above the minimum,” and that “concern by [petitioner's] employees for the plight of other employees might gain support for them at some future time when they might have a dispute with their employer.” 215 N.L.R.B., at 274 (internal quotation marks omitted). We think that the Board acted within the range of its discretion in so holding. Few topics are of such immediate concern to employees as the level of their wages. The Board was *570 entitled to note the widely recognized impact that a rise in the minimum wage may have on the level of negotiated wages generally,19a phenomenon that would not have been lost on petitioner's employees. The union's call, in the circumstances of this case, for these employees to back persons who support an increase in the minimum wage, and to oppose those who oppose it, fairly is characterized as concerted activity for the “mutual aid or protection” of petitioner's employees and of employees generally.
323 NLRB No. 30 (N.L.R.B.), 323 NLRB 244, 154 L.R.R.M. (BNA) 1233, 1997 WL 109101 NATIONAL LABOR RELATIONS BOARD (N.L.R.B.) Timekeeping Systems, Inc. And Lawrence Leinweber Case 8-CA-27999 February 27, 1997 Chairman Gould and Members Browning and Fox: The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order as modified. BERNARD RIES, ADMINISTRATIVE LAW JUDGE This case was tried in Cleveland, Ohio, on August 27, 1996. The sole issue presented is whether Respondent discharged Lawrence Leinweber on December 5, 1995,1 because of his protected concerted activities and therefore violated Section 8(a)(1) of the Act.
I. THE FACTS Respondent is a small Cleveland, Ohio company which manufactures data collection products. The chief operational officer of Respondent is Barry Markwitz. His father, George Markwitz, is nominally the president, but is essentially inactive in the business. Larry Leinweber, the Charging Party, 1 of about 23 employees located in two buildings, was hired by Respondent in April 19954 as a “software engineer” who prepared computer programs. On December 1, Markwitz sent a message to all of Respondent's employees by electronic mail (“e-mail”) regarding “proposed plans” for an incentive based bonus system *246 (as to which employees were told to “reply with your comments or stop by to see me. A response to this is required.”) and changes in vacation policy (“Your comments are welcome, but not required”). The incorporated memorandum regarding the proposed vacation policy changes, which are our only concern here, stated prefatorily, “Please give me your comments (send me an e-mail or stop in and talk to me) by Tuesday, 12/5.”The particular suggested policy changes in which we are interested were to close the offices on December 23 and reopen on January 2 and to adjust the number of paid days off over a 5-year period, the effect of which, Markwitz asserted, was that the employees “actually get more days off each year, compared to our present system.” **4 Markwitz received a number of employee responses regarding his vacation proposals, including one on December 1, by e-mail, from Leinweber. Leinweber's response demonstrated that, in fact, the change referred to above would result in the same number of vacation days per year, and less flexibility as to their use.5 On December 4, Leinweber, having checked his calculations over the weekend, discovered a minor error, and notified Markwitz by e-mail. Markwitz did not reply to Leinweber's communications. On December 5, Tom Dutton, a member of the engineering team, sent an e-mail to Markwitz, with copies to other engineering team members (which would include Leinweber), reading, “In response to the proposed vacation plan, I have only one word, GREAT!” Promptly, Leinweber, according to his credible testimony, sent an e-mail to Dutton telling him that the proposed policy did not, in fact, redound to the advantage of the employees. Also on December 5, Leinweber sent a lengthy e-mail message to all employees, including Markwitz. The message spelled out in detail Leinweber's calculations regarding the result of the proposed vacation policy change. It contained, as well, some flippant and rather grating language. The salutation was “Greetings Fellow Traveler.”6 In his initial remarks, Leinweber wrote, “The closing statement in Barry's memo: 'The effect of this is that you actually get more days off each year, compared to our present system,' will be proven false.” This declaration is reiterated in the final thought of the memo: “Thus, the closing statement in Barry's memo ... is proven false.” The paragraph preceding that statement reads, “Assuming anyone actually cares about the company and being productive on the job, if Christmas falls on Tuesday or Wednesday [sic7 as it will in 1996 and 1997, respectively, two work weeks of one and two days each will be produced by the proposed plan, and I wouldn't expect these to be any more productive than the fragmented weeks that they replace. “In closing, Leinweber asked that the recipient “please send errata to the [sic] Larry.” Also on December 5, after reading the e-mail message from Leinweber, Dutton e-mailed again to Markwitz, and also the engineering team (as shown on the e-mail address), saying in part, “After reading Larry's E-mail(s) of this date[,] I realized I had made a mistake in calculating the vacation days and wish to change my comment from 'GREAT' to 'Not so Great' on the proposed vacation policy.” Dutton also noted in his message that the proposals had “generated more E-mail than any other plan in the company.” At the hearing, Markwitz at first admitted that he was “angry that Mr. Leinweber sent his e-mail messages to all employees.”8 He prepared on December 5 a memorandum to Leinweber which was conveyed to him by the engineering team leader. The memo stated that Markwitz was “saddened and disappointed” by Leinweber's e-mail, which was “inappropriate and intentionally provocative” and beneath “someone as talented and intelligent as you are.” Markwitz then wrote: Directory: journals journals -> El Niño-Southern Oscillation and the seasonal predictability of tropical cyclones journals -> Guide to jmir online Interface (ppt to come) for help with using our online system journals -> Conceptualisation of Rights and Meta-Rule of Law for the Web of Data journals -> The End of Men is Not True: What is not and what might be on the road toward gender equality journals -> Object-Agent Oriented Programming journals -> And we need your turnover journals -> Anti-money laundering regulations and the effective use of mobile money in south africa – part 1 journals -> The effect of positive end-expiratory pressure on inflammatory cytokines during laparoscopic cholecystectomy: a randomised controlled trial journals -> Implicit Theories Running head: implicit theories Download 0.91 Mb. 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