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Pacific Lutheran University and Service Employees International Union, Local 925

January 5, 2015

On December 16, 2014, The National Labor Relations Board issued a ruling which could clear the path for unionization of faculty members who were once considered "managerial employees." In Pacific, the Service Employees International Union (Local 925) filed a petition seeking to represent a unit of all non-tenure eligible contingent faculty members employed by Pacific Lutheran University. The University challenged the Union's petition on two fronts, arguing that the i) University is a church-operated institution exempt from the Board's jurisdiction under NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), and ii) that certain faculty members in the proposed unit are managerial employees who must be excluded from the unit under the framework espoused in the U.S. Supreme Court's ruling in NLRB v. Yeshiva University, 444 U.S. 672 (1980).

The NLRB rejected both arguments made by Pacific and promulgated a new standard of review when considering exercising its jurisdiction over religious affiliated colleges and universities. Further, the NLRB refined the standard by which it determines the managerial status of faculty.

NLRB Jurisdiction

In Pacific, the NLRB took the opportunity to articulate a new standard of review that, it claims, remains faithful to the holding of Catholic Bishop. Under the new standard, the NLRB would not decline to exercise jurisdiction over faculty members at a religious institution unless the college or university first demonstrates, as a threshold matter, that it holds itself out as providing a religious educational environment. Once the threshold is met, the college or university must then show that it holds out the petitioned-for faculty members as performing religious functions. More specifically, the NLRB set a framework that requires an institution to demonstrate it holds those faculty members out as performing specific roles in creating or maintaining the institution's religious educational environment.

Faculty Managerial Status

The NLRB also took the opportunity to refine the standard by which it determines the managerial status of faculty. Where an institution asserts that its faculty are managerial employees, the NLRB will examine the faculty's participation in the following areas of decision-making:

• Academic programs
• Enrollment management
• Finances
• Academic policy
• Personnel policies and decisions

In essence, the NLRB will consider the argument that the faculty are managerial employees when it can be demonstrated that the faculty are involved in the decision-making process in areas that clearly fall outside the routine discharge of a professor's duties, including areas that effect the very nature of an academic institution, and reflect the university's goals and aspirations.

The NLRB will then determine, in the context of the institution's decision-making structure and the nature of the employment relationship between the faculty and the institution, whether the faculty actually control or make effective recommendations over those areas.

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Dougherty, Anthony D. Partner, CFE Partner, CFE 212.216.8099 VCard