The National Labor Relations Board is revisiting the question of whether faculty at private universities are simply employees—and therefore eligible for collective bargaining—or employees with managerial duties who enjoy no such rights .

For more than three decades, the NLRB has been applying the U.S. Supreme Court’s 1980 decision in NLRB v. Yeshiva University, which held that the Yeshiva faculty were managerial employees ineligible to unionize under the National Labor Relations Act due to their role in shared governance within the university.

Now, in Point Park University v. NLRB, the Board is signaling a willingness to revisit and possibly refine the Yeshiva University test. A divided Board recently announced a formal request for amicus briefs on the issue of the collective bargaining rights of faculty members.

In Point Park, the D.C. Circuit Court of Appeals held in 2006 that both the Regional Director and the NLRB “failed to adequately explain why the faculty’s role at the University is not managerial.” The court remanded and held that Yeshiva required a detailed analysis of the faculty members’ degree of control over academic matters.

On remand, the NLRB’s Regional Director issued a supplemental decision in 2007, again finding that the faculty members were not managerial employees. Point Park University petitioned the NLRB to review that decision, and the petition was granted in November 2007. The Board has not issued a ruling on review in the past five years.

In its Notice and Invitation to File Briefs, a majority of the Board requested that specific issues addressed in Yeshiva be considered, including which of the factors identified in Yeshiva and subsequent relevant cases are most significant in determining university faculty members’ status as excluded managerial employees, and whether these factors are sufficient to make that determination.

 The request also addresses the issue of consistency, asking for briefs that address whether the NLRB‘s application of the Yeshiva factors to the university faculty is consistent with its determination of the managerial status of other categories of employees. It invites information on distinctions among different job classifications within university faculty—professors, associate professors, assistant professors, and lecturers or tenured and untenured faculty—based upon the faculty’s structure and practices. Additionally, it asks for briefs to address developments in models of private university decision-making since Yeshiva that are relevant to the factors the NLRB should consider in determining managerial status.

The request for briefs invites interested parties to submit empirical and other practical evidence on or before July 20, 2012.

The Yeshiva decision has effectively served as a barrier to faculty unionization in many instances, and the Board’s request could be the first step in the process of removing this significant obstacle. If the Board decides to overturn the Yeshiva decision, the implications for the unionization of faculty at private colleges and universities are particularly acute given the Board’s 2011 decision in Specialty Healthcare and Rehabilitation Center of Mobile.

In that decision, the Board potentially sanctioned smaller bargaining units that do not necessarily include all of an employer’s employees who perform similar work. Thus, if Yeshiva is overturned, universities could potentially face unionization efforts that do not seek to include all faculty, but instead focus solely on smaller units such as the faculty within particular schools or departments.

Copyright © 2012 by Ballard Spahr LLP.
(No claim to original U.S. government material.)

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