NLRB Issues Significant Decision on Faculty Unionization - Ballard Spahr, LLP Alert

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. To learn more about the Board's decision, click here.

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 John B. Langel at 215.864.8227 or langel@ballardspahr.com, David S. Fryman at 215.864.8105 or fryman@ballardspahr.com, Daniel V. Johns at 215.864.8107 or johns@ballardspahr.com, Emilia McKee Vassallo at 215.864.8111 or vassalloe@ballardspahr.com, or the member of the Groups with whom you work

Source: Ballard Spahr's Labor and Employment and Higher Education Group Alert