Higher Education Alert: NLRB Announces Two New Standards Favorable To Faculty Unions

In Pacific Lutheran University, 361 NLRB No. 157, a case that had been watched closely by the higher education community, the National Labor Relations Board issued a 3-2 decision the week before Christmas announcing new standards for resolving two issues that frequently arise in the context of union organizing of faculty at private colleges and universities: (1) whether faculty members are managerial employees and thus not protected by the National Labor Relations Act; and (2) when the Board should decline to exercise jurisdiction over a college or university that claims to be a religious institution. The Board and appellate courts have grappled with - and disagreed over - these questions in numerous cases since the Supreme Court's decisions more than thirty years ago in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979) and NLRB v. Yeshiva University, 444 U.S. 672 (1980). But, as exemplified by the two dissenting opinions in Pacific Lutheran - and particularly the strongly worded opinion authored by Member Johnson - the debate is likely to continue and prompt further consideration by the courts. In the meantime, the Board's new tests would appear to make it easier than ever before for faculty unions to make inroads at private institutions of higher education. (See also Proskauer's previous client alert concerning the Board's new representation election rules and blog post concerning the Specialty Healthcare decision for other ways in which the Board's recent actions seemingly have bolstered unionization efforts more generally.)

Managerial Status of Faculty Members

In Yeshiva (in which Proskauer represented the university), the Supreme Court defined managerial employees in higher education as those who "formulate and effectuate management policies by expressing and making operative the decisions of their employer." 444 U.S. at 682. Thus, as was the case in Yeshiva (where faculty members made effective decisions concerning course offerings, scheduling, admissions, retention, teaching methods, grading policies, matriculation standards, and other matters), faculty members who exercise control over academic and other areas are managerial employees excluded from coverage under the Act.

As noted by the majority in Pacific Lutheran, the Board has issued nearly two dozen published decisions addressing the managerial status of faculty at colleges and universities since Yeshiva. In so doing, however, the Board increasingly has come under fire - particularly from the Court of Appeals for the D.C. Circuit - for failing to provide sufficient guidance...