Pacific Lutheran Univ. & SEIU, Local 925, 361 N.L.R.B. No. 157 (N.L.R.B. Dec. 16, 2014)

In this case the National Labor Relations Board published a significant decision expanding the organizing rights of private-sector faculty members. The Board modified the standards used to determine two important issues affecting the ability of faculty members at private-sector higher education institutions to unionize under the National Labor Relations Act: first, whether certain institutions and their faculty members are exempted from coverage of the Act due to their religious activities; and second, whether certain faculty members are managers, who are excluded from protection of the Act. In addressing this second issue, the Board specifically highlighted, as AAUP had in its amicus brief submitted in the case, the increasing corporatization of the university.

This case started when faculty members at Pacific Lutheran University petitioned for an election to be represented by a union. The university challenged the decision to hold the election, claiming that some or all of the faculty members were managers and therefore ineligible for union representation. The NLRB Regional Director ruled in favor of the union and found that the faculty in question do not have enough managerial authority to be precluded from unionizing. Pacific Lutheran asked the NLRB to overturn this ruling. The NLRB invited briefs from interested parties on the questions regarding whether university faculty members seeking to be represented by a union are employees covered by the National Labor Relations Act or excluded as managers and whether the NLRB has jurisdiction over faculty members at religious educational institutions.

In March 2014, the AAUP submitted an amicus brief urging the NLRB to consider the full context when determining whether faculty at private colleges are managerial. The brief described the significant changes in university hierarchical and decision-making models since the US Supreme Court ruled in 1980 that faculty at Yeshiva University were managerial employees and thus ineligible to unionize. The AAUP brief urged the NLRB to consider, when determining the managerial status of faculty, factors such as the extent of university administration hierarchy, the extent to which the administration makes academic decisions based on market-based considerations, the degree of consultation by the administration with faculty governance bodies, whether the administration treats faculty recommendations as advisory rather than as effective recommendations, whether the administration routinely approves nearly all faculty recommendations without independent administrative review, and whether conflict between the administration and the faculty reflects a lack of alignment of administration and faculty interests.

In its decision the NLRB ruled that it had jurisdiction over the petitioned for faculty members, even though they were employed at a religious institution, and that the faculty members were not managers. The question of whether faculty members in religious institutions are subject to jurisdiction and coverage of the Act has long been a significant issue, with the Supreme Court’s 1979 decision in Catholic Bishops serving as the foundation for any analysis. In Pacific Lutheran University, the Board established a two-part test for determining jurisdiction. First, whether “as a threshold matter, [the university] holds itself out as providing a religious educational environment”; and if so, then, second, whether “it holds out the petitioned-for faculty members as performing a specific role in creating or maintaining the school’s religious educational environment.”

The employer and its supporters argued that only the threshold question of whether the university was a bona fide religious institution was relevant, in which case the Act would not apply to any faculty members. The Board responded that this argument “overreaches because it focuses solely on the nature of the institution, without considering whether the petitioned-for faculty members act in support of the school’s religious mission.” Therefore, the Board established a standard that examines whether faculty members play a role in supporting the school’s religious environment.

In so doing, the Board recognized concerns that inquiry into faculty members’ individual duties in religious institutions may involve examining the institution’s religious beliefs, which could intrude on the institution’s First Amendment rights. To avoid this issue the new standard focuses on what the institution “holds out” with respect to faculty members. The Board explained, “We shall decline jurisdiction if the university ‘holds out’ its faculty members, in communications to current or potential students and faculty members, and the community at large, as performing a specific role in creating or maintaining the university’s religious purpose or mission.”

The Board also found that that 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 (emphasis in original). This would not be satisfied by general statements that faculty are to support religious goals, or that they must adhere to an institution’s commitment to diversity or academic freedom.

Applying this standard, the Board found that while Pacific Lutheran University held itself out as providing a religious educational environment, the petitioned-for faculty members were not performing a specific religious function. Therefore, the Board asserted jurisdiction and turned to the question of whether certain of the faculty members were managerial employees.

This second question arises from the Supreme Court’s decision in Yeshiva, where the Court found that in certain circumstances faculty may be considered “managers” who are excluded from the protections of the Act. The Board noted that the application of Yeshiva previously involved an open-ended and uncertain set of criteria for making decisions regarding whether faculty were managers. This led to significant complications in determining whether the test was met and created uncertainty for all of the parties.

Further, in explaining the need for the new standard, the Board specifically highlighted, as AAUP had in its amicus brief, the increasing corporatization of the university. The Board stated, “Indeed our experience applying Yeshiva has generally shown that colleges and universities are increasingly run by administrators, which has the effect of concentrating and centering authority away from the faculty in a way that was contemplated in Yeshiva, but found not to exist at Yeshiva University itself. Such considerations are relevant to our assessment of whether the faculty constitute managerial employees.”

In Pacific Lutheran, the Board sought to create a simpler framework for determining whether faculty members served as managers. The Board explained that under the new standard, “where a party asserts that university faculty are managerial employees, we 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.” The Board will give greater weight to the first three areas, as these are “areas of policy making that affect the university as whole.” The Board “will then determine, in the context of the university’s decision making structure and the nature of the faculty’s employment relationship with the university, whether the faculty actually control or make effective recommendation over those areas. If they do, we will find that they are managerial employees and, therefore, excluded from the Act’s protections.”

The Board emphasized that to be found managers, faculty must in fact have actual control or make effective recommendations over policy areas. This requires that “the party asserting managerial status must prove actual—rather than mere paper—authority. . . . A faculty handbook may state that the faculty has authority over or responsibility for a particular decision-making area, but it must be demonstrated that the faculty exercises such authority in fact.” Proof requires “specific evidence or testimony regarding the nature and number of faculty decisions or recommendations in a particular decision making area, and the subsequent review of those decisions or recommendations, if any, by the university administration prior to implementation, rather than mere conclusory assertions that decisions or recommendations are generally followed.” Further, the Board used strong language in defining “effective” as meaning that “recommendations must almost always be followed by the administration” or “routinely become operative without independent review by the administration.”