Positive Developments for Faculty Unionization

By Aaron Nisenson

Three December rulings by the National Labor Relations Board (NLRB) positively affect the faculty’s ability to organize unions. The decisions expand the organizing rights of faculty members, allow the use of employers’ e-mail systems for union organizing, and set new rules for union elections.

The NLRB

The NLRB is an independent federal agency created by Congress in 1935 to administer the National Labor Relations Act (NLRA), the primary law governing relations between unions and employers in the private sector. (The unionization rights of public-sector faculty members are governed by state, and sometimes local, law.) In recent years, largely as a result of the Supreme Court’s 1980 Yeshiva decision, the courts and the NLRB have defined most tenure-line faculty at private institutions as “managerial” employees not necessarily entitled to the protections of the act, and they have also exempted faculty at religious institutions from the act’s protections.

Organizing Rights of Private-Sector Faculty

In Pacific Lutheran University, the NLRB modified the standards in two key tests used to determine the eligibility of faculty members at private-sector higher education institutions to unionize under the NLRA.

First, it addressed whether certain institutions and their faculty members are exempted from the NLRA as a result of their religious activities. The board ruled that in order to qualify for a religious exemption, the university must both hold itself out as “providing a religious educational environment” and also hold out the faculty members seeking to unionize as “performing a specific role in creating or maintaining the school’s religious educational environment.” The board found that the faculty must be “held out as performing a specific religious function,” such as integrating the institution’s religious teachings into coursework or engaging in religious indoctrination. General statements that faculty must support religious goals would not satisfy this new standard, which should expand the number of faculty who have the legally protected right to unionize at private-sector religious institutions.

Second, the board created a new standard for determining whether faculty members are managers and thus excluded from the act’s protection. Under the new standard, the board will “examine the faculty’s participation in the following areas of decision making: academic programs, enrollment management, finances, academic policy, and personnel policies and decisions,” giving greater weight to the first three areas. The board emphasized that to be found managers, faculty must in fact have actual control, not mere “paper authority,” and the ability to make effective recommendations over policy areas. The new standard should simplify the determination of whether faculty are managerial employees and, ultimately, increase the number of private-sector faculty members who have the legally protected right to unionize.

For a more detailed discussion of this case, including the amicus brief submitted by the AAUP, see http://www.aaup.org/news/plu.

Use of E-mail for Union Organizing

In Purple Communications, the NLRB significantly expanded the right of employees at private-sector institutions to use their employers’ e-mail systems for union organizing and other activities. The board ruled that employees given access to their employer’s e-mail system for business purposes must also be allowed to use that system during nonworking time to engage in a wide range of protected communications, including union support and criticism of the employer’s employment-related policies and management decisions.

More information is at http://www.aaup.org/news/purple.

Election Rules

Finally, the NLRB issued revisions to union election rules that should dramatically simplify and expedite the election process. Previously, election results could be tied up for years in pointless litigation, delaying the democratic process, a situation that would be intolerable in any other context. Under the new rules, the parties may file documents electronically; the time frames for identifying issues, providing documents, and making arguments are shortened; and the number of issues that can be litigated prior to holding an election are reduced. Cumulatively, these changes will likely reduce to between ten and twenty days the time from the filing of a representation petition to the holding of an election.

The new election rules also require that employers give the union employees’ personal e-mail addresses and employee phone numbers. This is particularly important for reaching out to contingent faculty, who often perform most of their work off campus.

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