January 14, 2015Client Alert

Higher Education Faculty Unionization: The NLRB Sets New Rules

The National Labor Relations Board decision in Pacific Lutheran University (December 16, 2014) was two very significant decisions in one. The NLRB addressed when it would assert jurisdiction over religious colleges, and what test to apply to determine whether faculty are management employees and therefore exempt from unionization. The NLRB decided to change the rules on both issues. 

The case involved Pacific Lutheran University (PLU) and a requested bargaining unit consisting of contingent, (year-to-year) non-tenure track faculty. The first question faced was what the standard would be used to determine whether the NLRB will assert jurisdiction over religiously affiliated universities. The NLRB has been unsuccessful in establishing standards that would allow it to assert jurisdiction over religiously affiliated colleges and universities. Several times, the Courts of Appeals have rejected approaches taken by the NLRB. A leading Court of Appeals decision in the area, University of Great Falls v. NLRB, sets out a simple test to determine if a university or college is exempt from NLRB jurisdiction:

  1. Does the college hold itself out to students, faculty and community as providing a religious education environment;
  2. Is the college a non-profit;
  3. Is the college affiliated with, or owned, operated or controlled, dually or individually, by a religious organization or with an entity, membership of which is determined, at least in part, with reference to religion.

The University of Great Falls test is intended to avoid entanglement of the NLRB in college operations in determining what is religious, whether the college is sufficiently religious, etc. The courts have repeatedly found that the First Amendment religious exercise and establishment clauses prohibit the NLRB from engaging in such inquiries.  

In Pacific Lutheran University, the NLRB adopted the first prong of the Great Falls test, but substituted a new second prong for the two remaining tests: “the college holds out the [petitioned] for faculty as performing a specific role in creating or maintaining the school’s religious education environment.” The NLRB concluded that, since the evidence to be looked at to determine whether the college holds out faculty as playing a specific role in creating or maintaining a religious environment would be limited to what the college has represented, there would be no need for an intrusive inquiry into the operations of the college. 

Evidence of a college holding out the faculty as playing a specific role in maintaining a religious environment includes documents/communications/policies: (1) requiring that faculty include religious teachings in courses; (2) requiring that faculty conform to religious doctrines, tenets or beliefs. The NLRB found that PLU did not meet the second prong of its new test because:

  1. The college by-laws, website and faculty handbook did not make reference to faculty performing duties that furthered the religious environment of the campus.
  2. PLU does not consider whether a faculty member adheres to any religious beliefs in making hiring or other personnel decisions.
  3. Nothing in the description of duties for faculty refers to incorporation of religious concepts/beliefs in the course material presented by faculty.

The NLRB’s new test is likely to make many previously exempt colleges and universities subject to NLRB jurisdiction.

Faculty as Managerial Employees

After finding that it had jurisdiction over PLU, the NLRB went on to establish a new test regarding whether faculty are managerial employees. The courts have repeatedly found that faculty on many U.S. campuses are so engrained in deciding how colleges operate that faculty are managerial employees under the National Labor Relations Act.

The NLRB set out a new approach to resolve this issue.  The new test is:

Do faculty actually or effectively exercise control over decision making pertaining to central policies of the university such that they are aligned with management?

To determine if the faculty meets this test, the NLRB will consider the faculty’s participation in decision making regarding: (1) academic programs, enrollment management policies, and finances as primary considerations; and (2) academic policies and personnel policies of secondary importance. Where the faculty’s role in these areas includes decision making or effective recommendation, the faculty will be found to be managerial.

In applying the new test to the facts in the PLU case, the NLRB gave us some guidance in how these factors will be applied. One point is that the faculty will be found to control or effectively control an issue only if its decision/recommendations are “almost always . . . followed by the administration.”  Furthermore, faculty recommendations are “effective” if they generally become operative without independent review by administration. 

The standards adopted by the NLRB in PLU are a significant change and if left intact could have a major impact on unionization of college faculties. History teaches us that the Board’s test with regard to religious exemption is likely to be rejected by the courts. The NLRB’s test regarding the managerial role of faculty applies to both religious and non-religious schools and is a closer call, but will certainly also be tested in the courts.

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