Point Park University v. National Labor Relations Board , 457 F.3d 42 ( 2006 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 17, 2006 Decided August 1, 2006
No. 05-1060
POINT PARK UNIVERSITY,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
NEWSPAPER GUILD OF PITTSBURGH/COMMUNICATIONS
WORKERS OF AMERICA, LOCAL 38061,
INTERVENOR
Consolidated with
05-1081
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.
Edward A. Brill argued the cause for amici curiae American
Council on Education, et al. in support of petitioner. With him
2
on the brief was Lawrence Lorber.
Daniel A. Blitz, Attorney, National Labor Relations Board,
argued the cause for respondent. With him on the brief were
Arthur F. Rosenfeld, Acting General Counsel at the time the
brief was filed, John H. Ferguson, Assistant General Counsel,
Aileen A. Armstrong, Deputy Associate General Counsel, and
Meredith L. Jason, Supervisory Attorney.
James B. Coppess argued the cause for intervenor. With
him on the brief was Joseph J. Pass.
Before: SENTELLE, RANDOLPH and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: In NLRB v. Yeshiva University,
444 U.S. 672 (1980), the Supreme Court first determined that
faculty at colleges and universities may be managerial
employees exempt from the protection of the National Labor
Relations Act (“NLRA” or the “Act”), 29 U.S.C. § 151 et seq.
Since Yeshiva, the battle lines over organizing unions among
faculty have been drawn with predictable arguments. College
and university administrations typically argue that their
faculties’ involvement in academic affairs is extensive and
managerial. Unions argue it is limited and circumscribed. And
so it is here. Petitioner Point Park University (the “University”
or “Point Park”) argues that the Act bars its faculty from
organizing a bargaining unit because they are managers. The
union argues they are not. Yeshiva and our explanation of its
application in LeMoyne-Owen College v. NLRB, 357 F.3d 55(D.C. Cir. 2004), provide the National Labor Relations Board
(“NLRB” or the “Board”) guidance how to resolve this type of
dispute. Because neither the Regional Director nor the Board
3
followed that guidance and thus failed to adequately explain
why the faculty’s role at the University is not managerial, we
grant the University’s petition for review, deny without
prejudice the Board’s cross-application for enforcement, and
remand this case for further proceedings consistent with this
opinion so that the Board can provide such an explanation or
reconsider its conclusion.
I.
Point Park University, located in Pittsburgh, Pennsylvania,
has 3,200 students, 80 full-time faculty, and 560 employees.
Founded in 1960 as Point Park College, it was chartered as a
university in 2003 and renamed to reflect its new status.
Students at the University pursue bachelors degrees in fifty
majors and seven masters degrees through four schools: Arts
and Sciences, Business, the Conservatory of Performing Arts,
and the Adult and Professional Studies Program. Point Park’s
authority structure consists of a board of trustees, a president
who also serves as a member of that board, a vice president of
academic affairs who also serves as dean of the faculty, an
associate vice president of academic affairs, deans of the four
schools, department chairs, program directors, and the faculty.
In 2003, the Newspaper Guild of Pittsburgh/
Communications Workers of America, Local 38061, AFL-CIO
(the “Union”) filed a petition with the Board seeking to
represent a bargaining unit of all full-time faculty at Point Park.
The University contested the petition, arguing that all its full-
time faculty members were managerial employees and that some
of the full-time faculty were supervisors,1 both barred by the Act
1
Those included: (1) Robert O’Gara, Frederick Johnson,
Martin Greenberg, and Walter Zalot, who were program directors; (2)
the unfilled position of Director of the MBA program; (3) Robin
4
from organizing a union. The Regional Director of Region Six
of the NLRB convened nineteen days of hearings between
November 12, 2003 and January 16, 2004 to consider the
Union’s petition. The Regional Director concluded that the full-
time faculty were eligible for union representation and that the
University had failed to prove, under Yeshiva, that the faculty
“exercise such plenary, absolute or effective authority or control
to warrant their exclusion from the protection of the Act as
managerial employees.” The Regional Director also found that
some faculty members were supervisors and thus barred by the
Act from joining a union, while others were not.2
The University filed with the Board a timely request for
review of the Regional Director’s decision, see 29 C.F.R.
§ 102.67, arguing that the decision departed from established
Board precedent and was clearly erroneous with respect to a
number of facts not at issue here. The Board denied Point
Park’s request for review. After an election, the Union was
certified as the exclusive collective bargaining representative.
The University refused to recognize or bargain with the Union,
and the Union filed an unfair labor practice charge in response.
The Board’s General Counsel issued a complaint against the
Walsh, Head of Graduate Studies; and (4) William Moushey,
Executive Director of the Innocence Institute.
2
The Regional Director found that “Robert O’Gara, Frederick
Johnson, Walter Zalot and the Director of the MBA program are
supervisors within the meaning of the Act” and not allowed to
organize, but was “unable to determine on the record before [him]
whether [Martin] Greenberg, a recently hired program director . . .
possesses any managerial authority” and thus permitted “Greenberg
to vote subject to challenge in the election.” The Regional Director
concluded that neither Robin Walsh nor William Moushey were
supervisors or managerial employees. Petitioners do not dispute these
findings and conclusions.
5
University, alleging that it had violated Sections 8(a)(1) and (5)
of the Act, 29 U.S.C. § 158(a)(1), (5),3 by “fail[ing] and
refus[ing] to recognize and bargain with the Union.” In defense
of its conduct, Point Park challenged the Board’s decision to
certify the Union and asked the Board to reopen the record to
consider additional, newly discovered evidence. The Board
granted the General Counsel’s motion for summary judgment,
ordered Point Park to bargain with the Union, and refused to
reopen the record.
Point Park filed a timely petition for review with this Court,
and the Board filed a cross-application for enforcement of the
Board’s order. Point Park’s petition 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.” LeMoyne-Owen, 357 F.3d
at 60 (citing Boire v. Greyhound Corp., 376 U.S. 473, 477
(1964)).
II.
The gravamen of Point Park’s petition is that the Board
erred in determining that the University’s full-time faculty are
not managerial employees under the Act and are thus entitled to
form a union. We conclude that we are unable to review
adequately the Board’s decision because the Regional Director
failed to follow our guidance in LeMoyne-Owen that he explain
which factors he found “significant and which less so, and why”
in determining, pursuant to Yeshiva, that Point Park’s full-time
3
Section 158(a) of Title 29, United States Code, provides that
“[i]t shall be an unfair labor practice for an employer—(1) to interfere
with, restrain, or coerce employees in the exercise of the rights
guaranteed in [the Act]; [or] . . . (5) to refuse to bargain collectively
with the representatives of his employees.” 29 U.S.C. § 158(a).
6
faculty were not managerial employees. See 357 F.3d at 61.
A.
The Supreme Court set off a seismic shift in the law of
labor relations in American higher education when it held in
Yeshiva that, in some circumstances, faculty members, who for
many years the Board had thought were protected by the
National Labor Relations Act, might instead be barred by the
Act from organizing a union.4 The proper analysis, the Court
held, turns on the type of control faculty exercise over academic
affairs at an institution. A brief explanation of the history of the
sometimes expanding, sometimes contracting protections of the
Act by Congress and the Supreme Court will help explain why
the correct application of Yeshiva’s analysis is so important to
the proper resolution of this case.
As enacted in 1935, the National Labor Relations Act
broadly authorized “any employee,” excluding agricultural
laborers and domestic servants, to organize a union. See
National Labor Relations Act of 1935, Pub. L. No. 74-198,
§ 2(3), 49 Stat. 449, 450. The Supreme Court held that under
this expansive language even supervisors enjoyed the protection
of the Act. Packard Motor Car Co. v. NLRB, 330 U.S. 485,
489-90 (1947) (“we see no basis in this Act whatever for
holding that foremen are forbidden the protection of the Act
when they take collective action to protect their collective
interests”). In quick response to the Supreme Court, Congress
removed supervisors from the Act’s protection, see Labor
Management Relations (Taft-Hartley) Act of 1947, ch. 120, sec.
101, § 2(3), 61 Stat. 136, 137-38 (codified as amended at 29
U.S.C. § 152(3)) (“the term ‘employee’ . . . shall not include . . .
4
See Marina Angel, Professionals and Unionization, 66
MINN. L. REV. 383, 447-455 (1982).
7
any individual employed as a supervisor”), but also explicitly
included professional employees within the Act’s reach, see id.§§ 2(12) (codified as amended at 29 U.S.C. § 152(12)), 9(b)(1)
(codified as amended at 29 U.S.C. § 159(b)(1)) (authorizing
professional employees to unionize where “a majority of such
professional employees vote for inclusion in such unit”). From
the time the Board first asserted jurisdiction over a university’s
faculty in 1971 until the Supreme Court decided Yeshiva in
1980, the Board considered faculty members at institutions of
higher learning “professional employees” whose union activities
were protected by the Act. See C.W. Post Ctr. of Long Island
Univ., 189 N.L.R.B. 904, 905 (1971).
In 1974, the Supreme Court recognized another exception
to the Act when it held in NLRB v. Bell Aerospace Co. that
“Congress intended to exclude from the protections of the Act
all employees properly classified as ‘managerial.’” 416 U.S.
267, 275 (1974). Although the Act did not contain an express
statutory exclusion for management employees like what
Congress had provided for supervisors, the Court reasoned that
they were “regarded as so clearly outside the Act” by the
Congress that first created the Act “that no specific exclusionary
provision was thought necessary.” Id. at 283. Managerial
employees, who cannot form or join a union, were those who
“formulate and effectuate management policies by expressing
and making operative the decisions of their employer.” Id. at
288 (quotation marks omitted). The key inquiry, the Court later
explained, was whether employees were “aligned with
management.” Yeshiva, 444 U.S. at 683 (citing Bell Aerospace,
416 U.S. at 286-87).
Since Bell Aerospace, the Board’s determinations in cases
involving union petitions to organize have often turned on the
distinction between professional employees, who may unionize,
8
and managerial employees, who may not.5 Making that
distinction requires the Board to conduct a fact-intensive inquiry
into the specific responsibilities of employees. See Salinas
Newspapers, 279 N.L.R.B. 1007, 1010 (1986) (“[t]he Supreme
Court and the Board, in determining managerial status, weigh
the facts elicited to determine whether or not the persons at issue
are involved in the formulation, determination and effectuation
of management policies”) (quoting Simplex Indus., Inc., 243
N.L.R.B. 111, 111 (1979)); Curtis Noll Corp., 218 N.L.R.B.
1447, 1448 (1975) (“Whether or not a person is ‘managerial’ is
to be determined on a case-by-case basis after close examination
of the duties performed by the person in question while
occupying a position alleged to be ‘managerial.’”).
Even after Bell Aerospace, the Board continued to find that
full-time faculty at colleges and universities were professional,
not managerial, employees. See, e.g., Goddard College, 234
N.L.R.B. 1111, 1113 (1978) (“the discretion exercised by core
faculty members, both individually and collectively, regarding
such matters as student recruitment and admissions, completion
of degree requirements, and curriculum, clearly is indicative of
professional, rather than managerial status”); Ne. Univ., 218
N.L.R.B. 247, 257 (1975) (“The existence of . . . ‘shared
5
See, e.g., Neighborhood Legal Servs., Inc., 236 N.L.R.B.
1269, 1273 (1978) (“professional employees plainly are not the same
as management employees either by definition or in authority, and
managerial authority is not vested in professional employees merely
by virtue of their professional status, or because work performed in
that status may have a bearing on company direction”); Case Corp.,
304 N.L.R.B. 939, 948 (1991) (“technical and professional employees
plainly are not the same as managerial employees either by definition
or in authority”); General Dynamic Corp., 213 N.L.R.B. 851, 857
(1974) (distinguishing professional employees from managerial
employees who occupy “executive-type positions [and] are closely
aligned with management as true representatives of management”).
9
authority’ may well indicate that faculty members are
‘professionals,’ but it does not necessarily make them
‘managerial.’”).
As long as faculty were understood to be professional
employees, which they clearly are, and not also managerial
employees under Bell Aerospace, the task of the Board was
relatively straightforward. See id. That all changed with
Yeshiva, when the Supreme Court applied the definition of
managerial employee in Bell Aerospace to faculty at a college
or university and held for the first time that some faculty
members, even though they are professional employees, may
also be “managerial employees,” barred by the Act from union
activities. 444 U.S. at 691.
Yeshiva imposed significant demands upon the Board in
determining whether faculty members are “managerial
employees,” holding that this mixed question of fact and law
cannot be determined “on the basis of conclusory rationales
rather than examination of the facts of each case.” Id. In other
words, context is everything. Every academic institution is
different, and in determining whether a particular institution’s
faculty are “managerial employees” excluded from the Act or
“professional employees” included in the Act, the Board must
perform an exacting analysis of the particular institution and
faculty at issue. That analysis must look beyond self-serving
descriptions of the role of faculty or the administration of a
university. In Yeshiva, the Court looked repeatedly to the actual
role of the faculty in the academic affairs of the university.6 The
6
See id. at 676 (“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.”) (emphasis added); id. at 686 (“They effectively
decide which students will be admitted, retained, and graduated.”)
10
key inquiry is “how a faculty is structured and operates.” Id. at
690 n.31 (emphasis added). The Board’s task under Yeshiva is
made more difficult by the fact, frankly acknowledged by the
Court in Yeshiva, that the Act is not easily applied to labor
relations in the university setting:
The Act was intended to accommodate the type of
management-employee relations that prevail in the
pyramidal hierarchies of private industry. In contrast,
authority in the typical mature private university is
divided between a central administration and one or
more collegial bodies. . . . Although faculties have
been subject to external control in the United States
since colonial times, traditions of collegiality continue
to play a significant role at many universities,
including Yeshiva. For these reasons, the Board has
recognized that principles developed for use in the
industrial setting cannot be imposed blindly on the
academic world.
Id. at 680-81 (internal citations, quotation marks, and footnote
omitted). Thus, the Board must determine whether the faculty
in question so controls the academic affairs of the school that
their interests are aligned with those of the university or whether
they occupy a role more like that of the professional employee
in the “pyramidal hierarchies of private industries.” See id.That is by its very nature a fact-bound inquiry.
The Court also noted that the core professional activities of
faculty that are common at most colleges and
universities—“determin[ing] the content of their own courses,
(emphasis added); id. at 691 (“[T]he faculty of Yeshiva University, in
effect, substantially and pervasively operat[e] the enterprise.”) (citation
omitted, quotation marks omitted, and emphasis added).
11
evaluat[ing] their own students, and supervis[ing] their own
research”—are not enough, by themselves, to remove faculty
from the protection of the Act. Id. at 690 n.31 (emphasis
added). The Court determined, however, that the faculty at
Yeshiva University were involved in activities far beyond the
core professional activities of a typical faculty—activities that
fit the Bell Aerospace definition of “managerial employees.” As
the Court explained:
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.
Id. at 686. This is the heart of the Court’s decision in Yeshiva.
The faculty’s “authority” in the “academic matters”
mentioned—the Yeshiva factors—has become the template for
Board analysis of whether faculty are managerial employees.
Specifically, the Board must consider the degree of faculty
control over academic matters such as curriculum, course
schedules, teaching methods, grading policies, matriculation
standards, admission standards, size of the student body, tuition
to be charged, and location of the school. See, e.g., Duquesne
Univ., 261 N.L.R.B. 587, 589 (1982); Loretto Heights College,
264 N.L.R.B. 1107, 1119 (1982).
Like Point Park University, LeMoyne-Owen College sought
12
review of a Board decision that its faculty were not managerial
employees and were thus entitled under the Act to organize a
union. See LeMoyne-Owen, 357 F.3d at 61. The College had
argued to the Regional Director and the Board that its faculty
were indistinguishable from faculty the Board had held to be
managerial employees in previous cases. In ruling against the
College, neither the Regional Director nor the Board discussed
these precedents.
We found such silence insufficient and remanded the case
for the Board to provide a more fulsome explanation of its
decision. Although an “agency is by no means required to
distinguish every precedent cited to it by an aggrieved party,” id.
at 60, we held that where “a party makes a significant showing
that analogous cases have been decided differently, the agency
must do more than simply ignore that argument,” id. at 61. We
then stressed the need for a clear explanation by the Board when
applying Yeshiva’s multi-factor test:
The ‘open-ended rough-and-tumble of factors’ on which
Yeshiva launched the Board and higher education 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. . . . In the absence of an explanation, the
‘totality of the circumstances’ can become simply a
cloak for agency whim—or worse. . . . [The Board] may
have an adequate explanation for the result it reached
[but] we cannot . . . assume that such an explanation
exists until we see it.
Id. (citation omitted and emphasis added). That is where we
find fault with the Board’s analysis here.
13
B.
Because Congress has delegated to the Board responsibility
for determining the appropriate bargaining unit, see 29 U.S.C.
§ 159(b), we “accord deference to the Board’s exercise of its
authority.” LeMoyne-Owen, 357 F.3d at 60. We cannot be
deferential, however, where the Board fails to adequately
explain its reasoning. Id. at 61. The Supreme Court has held
that when the “Board so exercises the discretion given to it by
Congress, it must ‘disclose the basis of its order’ and ‘give clear
indication that it has exercised the discretion with which
Congress has empowered it.’” NLRB v. Metro. Life Ins. Co.,
380 U.S. 438, 443 (1965) (citation omitted). We are, however,
“indulgent toward administrative action to the extent of
affirming an order where the agency’s path can be ‘discerned’
even if the opinion ‘leaves much to be desired.’” WAIT Radio
v. FCC, 418 F.2d 1153, 1156 (D.C. Cir. 1969) (citation omitted);
see also Casino Airlines, Inc. v. NTSB, 439 F.3d 715, 717 (D.C.
Cir. 2006). Without a clear presentation of the Board’s
reasoning, it is not possible for us to perform our assigned
reviewing function and to discern the path taken by the Board in
reaching its decision. See Metro. Life Ins. Co., 380 U.S. at 443.
Nor can our Court fill in critical gaps in the Board’s
reasoning. We can only look to the Board’s stated rationale.
We cannot sustain its action on some other basis the Board did
not mention. See SEC v. Chenery Corp., 332 U.S. 194, 196-97,
200 (1947) (“It will not do for a court to be compelled to guess
at the theory underlying the agency’s action; nor can a court be
expected to chisel that which must be precise from what the
agency has left vague and indecisive.”) This is not a new
concern, but it is central to our performance of the limited role
Congress has assigned us in reviewing agency action. See id.;
SEC v. Chenery Corp., 318 U.S. 80, 94-95 (1943); Village of
Winnetka, Ill. v. FERC, 678 F.2d 354, 357 (D.C. Cir. 1982).
14
Here, both the Board and the Regional Director failed to do
what Yeshiva and LeMoyne-Owen mandate: explain “which
factors are significant and which less so, and why” in their
determination that the faculty at Point Park were not
“managerial employees.” See LeMoyne-Owen, 357 F.3d at 61.
Volume alone is insufficient. The Regional Director, whose
findings and conclusions regarding the role of Point Park’s full-
time faculty the Board adopted with only limited discussion and
no stated analysis, produced a 108-page decision with 59 pages
of factual findings, and 16 pages of legal analysis that identified
and relied upon a host of factors. Some findings suggest that the
faculty are managerial employees, while others suggest they are
not. In analyzing these findings, the Regional Director
mentioned some of the academic factors relied upon by the
Supreme Court in its managerial analysis in Yeshiva, including:
(1) control over curriculum and course schedules; (2) control
over teaching methods; (3) control over grading policies; and (4)
control over which students will be admitted, retained, and
graduated. In addition, the Regional Director referred to various
non-academic factors that the Supreme Court listed in Yeshiva
but which the Supreme Court described as “features of faculty
authority” upon which it did not need to “rely primarily,” 444
U.S. at 686 n.23: (1) control over hiring; (2) control over tenure;
(3) control over sabbaticals; (4) control over terminations; and
(5) control over promotions. Finally, the Regional Director
touched upon several factors relied upon in previous Board
decisions: (1) control over salary and benefits; (2) statements
made by the Administration; and (3) the size of the University’s
administrative component.
Yet nowhere in his lengthy decision did the Regional
Director state, as we held in LeMoyne-Owen that he must, which
factors were “significant and which less so, and why.” 357 F.3d
at 61. While the Regional Director stated many of the Yeshiva
factors, he failed to explain which factors he primarily relied
15
upon and his reasoning for doing so. Faced with this
“open-ended rough-and-tumble of factors,” we cannot assume
that the Regional Director had an “adequate explanation for the
result [he] reached . . . until we see it.” Id. The closest the
Regional Director came to providing such an explanation was
his statement that Point Park’s “faculty . . . undoubtedly has an
important consultative role, but based on the record developed,
it cannot be concluded that they exercise such plenary, absolute
or effective authority or control to warrant their exclusion from
the protection of the Act as managerial employees.” This
passing observation, stated in the form of a conclusion, does not
substitute for the fact-specific analysis called for by Yeshiva and
LeMoyne-Owen. The Board knows how to perform such an
analysis, see Duquesne University, 261 N.L.R.B. at 589 (“In
sum, it is evident from the record that the managerial authority
possessed by the Duquesne law school faculty is nearly identical
to that possessed by the faculty in Yeshiva in such critical
academic matters as curriculum, grading systems, and admission
and matriculation standards.”), but certainly did not do so here.
Had the Regional Director, or the Board, stated with clarity
which factors were significant to the outcome and why, we
could have performed our review. Distinguishing between
excluded managers and included professional employees is a
fact-intensive inquiry that presents special challenges in the
unique and often decentralized world of academia. Yeshiva
identified the relevant factors that the Board must consider. See
444 U.S. at 691. LeMoyne-Owen held that the Board must
clearly explain its analysis. See 357 F.3d at 61. The failure to
provide such an explanation is grounds for remand to the Board,
see id., which we do here.
16
C.
One remaining issue requires our attention. In October
2003, Point Park served a subpoena on the faculty seeking a
variety of books and records. One month later, in advance of the
Regional Director’s hearing, the Union responded on behalf of
the faculty providing some, but not all, of the materials sought.
The Union represented that it would make further
determinations whether it possessed additional responsive
materials. The Regional Director announced his decision in
April 2004. In August and September 2004, the Union,
responding to an unrelated request, produced documents, sought
by the October 2003 subpoena, that had not previously been
produced. On September 13, 2004, as part of its answer to the
Board’s complaint, Point Park asserted that the Board should
reopen the hearings before the Regional Director to take
additional evidence and supplement the record in light of this
timely sought but late-produced material. Point Park repeated
this request in its November 27, 2004, response to the motion
for summary judgment.
On February 17, 2005, the Board denied Point Park’s
request, holding that Point Park failed to “act with reasonable
diligence” by not (1) seeking to enforce its subpoena when the
Union responded with a partial production and (2) moving to
immediately reopen the hearing when it received the belated
production in September 2004.
Point Park argues the “Board’s failure to reopen and
supplement the record was error.” We review an agency’s
denial of a motion to reopen the record for abuse of discretion.
See Reno Hilton Resorts v. NLRB, 196 F.3d 1275, 1285 n.10
(D.C. Cir. 1999). An abuse of discretion occurs where the
Board’s “findings of fact are not supported by substantial
evidence in the record considered as a whole.” Lakeland Bus
Lines, Inc. v. NLRB, 347 F.3d 955, 961 (D.C. Cir. 2003)
17
(quotation marks and citation omitted). We “may not find
substantial evidence ‘merely on the basis of evidence which in
and of itself justified [the agency’s decision], without taking into
account contradictory evidence or evidence from which
conflicting inferences could be drawn.’” Id. at 962 (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)).
The Board’s findings are not “supported by substantial
evidence on the record considered as a whole.” See 29 U.S.C.
§ 160(f). The Board, in concluding that “a reasonably diligent
party would have sought enforcement,” did not address that the
Union had, in fact, already informed Point Park that after it had
made its initial production in response to the October 2003
subpoena, it would make a continuing determination whether it
possessed any additional documents responsive to the subpoena.
In addition, the Board, in concluding that Point Park had “waited
over 2 months . . . to seek to reopen the record,” ignored Point
Park’s September 13, 2004 request to do so. The Board does not
explain why this request, made within weeks of the Union’s
belated production of the new evidence, does not constitute a
timely request to reopen the record. Because the Board’s
decision did not “tak[e] into account contradictory evidence or
evidence from which conflicting inferences could be drawn,”
Universal Camera Corp., 340 U.S. at 487, its findings are not
supported by substantial evidence.
III.
For the foregoing reasons, we grant Point Park’s petition
for review, deny without prejudice the Board’s cross-application
for enforcement, and remand the case to the Board for
proceedings consistent with this opinion.
So ordered.