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 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.
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