The National Labor Relations Board (Board) recently ruled that it would assert jurisdiction over Pacific Lutheran University's (PLU’s) full-time contingent faculty members.

In the context of a union's attempt to organize PLU's non-tenure track faculty, the NLRB articulated a standard for determining whether a religiously affiliated institution is exempt from the Board’s jurisdiction, stating that the key is whether the college or university has shown that "it holds out the petitioned-for faculty members as performing a religious function." What will be more significant to private colleges and universities is what the Board said about the standard it will use to evaluate whether full-time tenured and tenure track faculty are managerial employees under the National Labor Relations Act (Act), pursuant to the U.S. Supreme Court's ruling in NLRB v. Yeshiva University.

In its decision, the NLRB held that, to be excluded from the Act's coverage, managerial employees must have a significant breadth and depth of decision-making authority. It further accepted as fact that in the years after Yeshiva, universities and colleges have changed, noting that these institutions are now increasingly run by administrators, a move that has taken authority away from the faculty. The Board stated that when examining whether faculty members have managerial authority, it will look at the faculty's participation in the following areas: academic programs, enrollment management, finances, academic policy, and personnel policies and decisions. It also said that it will give greater weight to the first three factors, which the Board referred to as the "primary areas of decision-making."

The Board's new guidance is likely to significantly affect faculty unionization efforts. Colleges and universities should begin to assess these issues now, especially in light of the Board's recently released final rule on representation-case procedures and its recent decisions regarding the appropriate scope of bargaining units.

The Full-Time Contingent Faculty Members Are Not Managerial Employees

PLU cited NLRB v. Yeshiva University to argue that its full-time contingent faculty members nonetheless were managerial employees excluded from the Act's protections. The Board thus took the opportunity to review its application of the Supreme Court's holding in Yeshiva and revise the analytical framework it uses to determine the managerial status of university faculty.

In the years since Yeshiva, the Board has issued almost two dozen published opinions that address the managerial status of college and university faculty members. These decisions have been criticized for failing to provide adequate guidance. As a result, the Board sought to provide a "more workable, more predictable analytical framework to guide employers, unions, and employees alike."

Using Yeshiva as a guide, the Board noted that to be excluded from the Act's coverage, managerial employees must have a significant breadth and depth of decision-making authority. The Board further acknowledged that in the years after Yeshiva, universities and colleges have changed. These institutions are now increasingly run by administrators, a move that has taken authority away from the faculty. When examining whether faculty members have managerial authority, the Board will look at the faculty's participation in the following areas: academic programs, enrollment management, finances, academic policy, and personnel policies and decisions. Greater weight will be given to the first three factors, which the Board referred to as the "primary areas of decision-making."

When a faculty member exercises actual or effective decision-making authority over the university, that faculty member shall be considered a managerial employee. The party asserting managerial status has the burden of demonstrating that the faculty member has that authority. Actual authority requires more than just a job description or statements made in a faculty handbook. Rather, the party must demonstrate that the faculty member exercises authority in fact. Mere conclusory assertions of authority are insufficient. To demonstrate that the faculty member makes effective recommendations, it must be shown that the administration almost always follows the recommendations. Recommendations are also considered effective if they "routinely become operative" without the administration's independent review.

The Board concluded that PLU failed to prove that its full-time contingent faculty members exercised managerial authority on the university’s behalf. The record did not show that these faculty members actually controlled or made effective recommendations in the primary or secondary areas of decision-making. Furthermore, even in those areas in which the full-time contingent faculty members had some involvement in decision-making, PLU failed to show that their involvement rose to the level of actual or effective control.

The Board’s Jurisdiction over Religiously Affiliated Colleges and Universities

The Board acknowledged two competing interests at play when deciding whether to assert jurisdiction over faculty members at religiously affiliated colleges and universities. On one hand, the Board must ensure that any standard or test it uses does not violate the First Amendment's free exercise and establishment clauses. On the other, the Board must ensure that it is effectively implementing the federal labor policy of the Act. Because Congress has vested the Board with broad authority, the Board noted it must be careful when excluding groups from the Act's protections.

This is not the first time that the Board's jurisdiction over a religious educational institution has been addressed. In NLRB v. Catholic Bishop of Chicago, the U.S. Supreme Court held that the Board could not assert jurisdiction over lay teachers at a church-operated school, because it would create a "significant risk" that First Amendment rights would be infringed. Further, asserting jurisdiction would result in "entanglement with the religious mission of the school in the setting of mandatory collective bargaining."

In Pacific Lutheran University, however, the Board held that asserting jurisdiction is permitted unless the university or college can satisfy a two-part test. First, as a threshold matter, the college or university must show "that it holds itself out as providing a religious educational environment." Evidence that a university or college holds itself out as providing such an environment includes handbooks, mission statements, corporate documents, course catalogs, and documents published on the school's website. Contemporary presentations or statements about the institution's mission are more likely to be probative than the institution's historical tradition. Nonprofit status is not required, but may be considered as evidence when evaluating the first prong.

Second, the college or university must also show that "it holds out the petitioned-for faculty members as performing a specific role in creating or maintaining the school's religious educational environment." In this inquiry, the focus is on the faculty members themselves, rather than on the nature of the university. The Board will not look at faculty members' actual performance of their duties. Rather, the Board will require that the faculty members "be held out as performing a specific religious function." Merely supporting the university’s goals and mission will not be sufficient to satisfy this inquiry. If faculty members are required to serve a religious function such as, for example, teaching religion, serving as a religious counselor, or integrating the religion into coursework, then the Board will decline to assert jurisdiction. Absent such a showing, however, these faculty members cannot be distinguished from faculty members at nonreligious universities such that they should be excluded from the Act's coverage.

Applying its test to PLU’s faculty members, the Board noted that, although the university held itself out as creating a religious educational environment, it did not "hold out the petitioned-for contingent faculty members as performing a religious function in support of that environment." To support that conclusion, the Board pointed to PLU's emphasis of its commitment to academic freedom and acceptance of other faiths. PLU deemphasized "any specific Lutheran dogma, criteria, or symbolism" and did not state or suggest on its website that its contingent faculty members played a role in advancing the Lutheran religion.

Further, the university did not consider a contingent faculty member's religious faith in decisions regarding hiring, promotion, tenure, or as part of his or her evaluation. In addition, these faculty members' contracts did not mention religion. The course material was not required to have a religious component, and the contingent faculty members were not required to "perform any function in support of a religious educational environment." Consequently, the Board concluded that it could exercise jurisdiction.

One Board Member, Harry I. Johnson III, dissented. Although Member Johnson agreed that the Board's first prong—that the institution holds itself out as providing a religious educational environment—was an appropriate means of determining that the college or university was a bona fide religious institution, he disagreed with the Board's second prong, finding that it inappropriately subjected these institutions to "ongoing scrutiny of [their] beliefs" and required the Board to "judge the religiosity of the functions that the faculty perform."

Attorneys in Ballard Spahr's Labor and Employment and Higher Education Groups routinely advise educational institutions on union avoidance and unionization attempts. For more information, please contact David S. Fryman at 215.864.8105 or fryman@ballardspahr.com, Emilia McKee Vassallo at 215.864.8111 or vassalloe@ballardspahr.com, or the member of the Groups with whom you work. 


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