Labor Board Sets New Tests for Whether Private-College Faculty Members Can Unionize

December 21, 2014

The National Labor Relations Board has made it easier for faculty members at religious colleges—and private colleges as a whole—to unionize.

In a 3-to-2 decision last week involving contingent faculty members at Pacific Lutheran University, the board laid out new standards for deciding two of the most-divisive questions in academic-labor law: whether a college’s religious nature should exempt it from NLRB jurisdiction, and whether faculty members have too much involvement in the management of their colleges to be considered as employees eligible for union representation.

A regional official of the NLRB ruled last year that adjuncts at Pacific Lutheran could move to unionize. The full labor board later agreed to review the case, and in February it solicited input on both of the questions that were central to the dispute.

The NLRB’s majority came down squarely in favor of the labor organizers seeking to unionize contingent faculty members at Pacific Lutheran on both counts.

Focusing, for the first time, on the question of whether the college characterizes the faculty members at issue as involved in religious indoctrination, the board held that the role played by Pacific Lutheran’s contingent faculty members was too secular for federal oversight of their union election to be seen as an infringement of Pacific Lutheran’s academic freedom.

The board's majority conducted a detailed analysis of what roles contingent faculty members played and how much power they actually had. It concluded that it was left with “little doubt that the contingent faculty simply do not, and in fact cannot, control or effectively control relevant decision making” there.

Such faculty members “tend to have a limited voice in university governance, if they have a role at all,” partly because Pacific Lutheran provides few mechanisms for them to express their concerns, and partly because they are not given enough job security or information about their basic rights to feel comfortable speaking up, the majority held.

Although the board sent the case back to a regional NLRB officer for further proceedings, it seems likely that the federal courts will be asked to review last week’s decision and assess whether the board had overstepped its bounds under the U.S. Constitution.

A Question of Religious Indoctrination

In a strongly worded dissent to last week’s ruling, Harry I. Johnson III, a member of the board’s minority, argued that the majority had violated the First Amendment’s religious protections by inserting itself into the college’s affairs.

Rejecting the board’s assertion that Pacific Lutheran is not involved enough in religious indoctrination to be seen as too religious for board oversight, he said, the board “cannot tell the religion what it must believe—and what it must express to the public—in order to be religious.”

The university and its supporters argued that the NLRB should exempt Pacific Lutheran based on how the university characterized itself. The Service Employees International Union, which was seeking to organize Pacific Lutheran’s contingent faculty members, and its supporters argued that the board should instead conduct an analysis of whether the work actually done by contingent faculty members there was religious in nature.

The majority in the NLRB’s Pacific Lutheran decision said it was articulating a new test because it regarded an examination of the religious nature of faculty members’ work as too intrusive, yet did not see the university’s assertions of its institutional religious character as relevant to the question of whether its faculty members played a religious role.

It said a better test would be to consider whether colleges that hold themselves out as religious also explicitly hold their faculty members out as doing religious work. Applying such a test, it concluded that, although Pacific Lutheran characterizes itself as providing a religious educational environment, “it does not hold its contingent faculty out as performing a specific role in creating or maintaining that environment” in its public statements. Therefore, the board majority held, such faculty members should not be exempt.

The second major question tackled by the board was how to determine whether contingent faculty members at the college should be considered as managerial employees ineligible for union representation. That question was at the heart of a landmark 1980 decision by the U.S. Supreme Court, National Labor Relations Board v. Yeshiva University (444 U.S. 672), which has since essentially barred full-time faculty members at private colleges from forming unions.

Pacific Lutheran had held that its contingent faculty members played managerial roles. Rather than taking such an assertion at face value, the board conducted an unprecedented examination of the work such faculty members do, and concluded that the university had “failed to prove” that full-time contingent faculty members exercised managerial authority.

“In particular, we find that there is insufficient evidence that the full-time contingent faculty are substantially involved in decision making affecting the key areas of academic programs, enrollment management, and finances,” the majority’s decision stated. It said, “Contingent faculty are often employed in teaching- or research-only positions, with little to no support for faculty development or scholarship, providing them with a very different relationship to the university and its functions.”

Mr. Johnson, in his dissent, said that the board had set the bar for determining whether a faculty member plays a managerial role too high, and that many full-time faculty members who routinely make recommendations to their institutions’ administrations would fail to qualify as managerial under such a standard.