A regional director of the National Labor Relations Board (NLRB) recently ordered the counting of ballots that were cast in a union election by contingent faculty members at Seattle University. The votes had been impounded since last spring, after the University appealed the NLRB’s decision to authorize an election by adjunct instructors.

The NLRB’s decision is the first since its ruling in Pacific Lutheran University in January, when it held that it would assert jurisdiction over Pacific Lutheran University’s full-time contingent faculty. The Board explained that, to be excluded from the National Labor Relation Act’s coverage, managerial employees must have a significant breadth and depth of decision-making authority. It also held that the standard for determining whether a religiously affiliated institution is exempt from the NLRB’s jurisdiction is whether the college or university has shown that “it holds out the petitioned-for faculty members as performing a religious function.” The NLRB has since remanded challenged adjunct union bids back to the regional directors for reconsideration. Seattle University is the first to apply the two tests set forth in Pacific Lutheran University.

In Seattle University, Regional Director Ronald K. Hooks, applying the first test, held that adjunct faculty members were employees and should not be excluded as managers under the Act. Mr. Hooks explained that the adjuncts lack authority in primary and secondary areas, such as enrollment management and finances. He also held that adjuncts lack actual control or power of effective recommendation based on their minimal opportunity to participate in university governance.

Applying the second test, the Regional Director held that, although the university held itself out as providing a religious educational environment, it did not hold adjunct faculty members out as performing a religious function. Mr. Hooks explained that, following Pacific Lutheran University, a generalized statement in the university’s faculty handbook is insufficient, and there was no evidence to demonstrate that faculty members serve as religious advisers to students, teach the tenets of the Society of Jesus, or engage in religious training. Consequently, he held that jurisdiction over the university was proper.

This holding represents another case in an ongoing effort by unions to organize faculty in higher education. Colleges and universities facing these issues should begin to take steps now to assess them, especially in light of the NLRB final rule on representation case procedures. The rule is set to take effect next month and will significantly limit the time that organizations will have to campaign against a faculty unionization effort.

Attorneys in Ballard Spahr's Higher Education and Labor and Employment Groups routinely advise educational institutions on union avoidance and unionization attempts.

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