Back on December 16, 2014 the National Labor Relations Board (“NLRB”), in its Pacific Lutheran University decision, announced a new standard for the exercise of its jurisdiction over religiously-affiliated colleges and universities; and a new standard for determining the managerial status of faculty members expanding on the Supreme Court’s Yeshiva University decision. In light of these new standards, the NLRB remanded a number of decisions involving religiously-affiliated colleges and universities back to the regional offices. On March 3, 2015, the Regional Director in Region 19, in a case involving the appropriateness of a bargaining unit involving non-tenure-eligible contingent faculty, ruled that the NLRB had jurisdiction over Seattle University and that the University’s contingent faculty members were not managerial employees.
With respect to the jurisdictional issue, the standard set forth in Pacific Lutheran University involves a two-step analysis.
The NLRB will not decline to exercise jurisdiction over faculty members at a university that claims to be a religious institution unless the university demonstrates that 1) it holds itself out as providing a religious educational environment, and 2) the university holds the petitioned-for faculty out as performing a specific role in creating or maintaining the university’s religious educational environment.
Based on the evidence presented, the Regional Director easily found that Seattle University holds itself out as a Jesuit Catholic institution and publicly describes those values as inspiring the education it provides. It should be noted that the NLRB requires that to be exempt from its jurisdiction, the institution must be organized as a nonprofit, which is how Seattle University is organized. As to the second step in the analysis, the Regional Director held that the University did not hold out the petitioned-for faculty members as performing a religious function. A general statement in the faculty handbook that “each member of the faculty is expected to show respect for the religious dimension of human life” was found insufficient, particularly where there was no evidence that faculty members were required to serve as religious advisors to students, engage in religious training, or conform to the tenets of Catholicism in their job duties.
With respect to whether the non-tenure-eligible contingent faculty members in the petitioned-for unit where managers, the Regional Director found that they lacked authority to actually control or effectively recommend decisions affecting University policy in the three primary or two secondary areas of authority identified by the NLRB in its Pacific Lutheran University decision. He found that that the Academic Assembly exercised authority in the first primary area of academic programs, but had no say in the second primary area, enrollment management, in that it lacks any authority over student body size. In addition, the Assembly had only a minimal authority over finance – the third primary area. Significantly, tenured faculty, as opposed to the non-tenure-eligible contingent faculty in the petitioned-for unit, made up a majority of the Assembly, and no contingent faculty served on the Program Review Committee, which reviewed all proposals for curricular change. Also, all decisions of the Assembly were approved by the administration (the provost).
Following the standards announced by the NLRB in Pacific Lutheran University, it can be expected that more cases involving contingent faculty will be issued with similar results. It will be interesting to see, however, how a case involving tenured faculty is handled since such faulty members general have more control over the governance of an institution. Stay tuned.