The National Labor Relations Board (NLRB) has indicated that it will be examining two important issues relating to faculty unionization in the private sector in a representation case involving contingent faculty at Pacific Lutheran University.
On February 10, 2014, the NLRB issued a notice in Pacific Lutheran University
soliciting briefs to respond to specific questions relating to whether that university is exempt from NLRB jurisdiction because of its religious affiliation under NLRB v. Catholic Bishop of Chicago (1979) and whether contingent faculty at that university are managerial under NLRB v. Yeshiva University (1980). A copy of the notice containing the questions to be briefed is accessible at http://www.nlrb.gov/cases-decisions/invitations-file-briefs.
The issue of whether a university is subject to the religious exemption under Catholic Bishop of Chicago is already pending before the NLRB in representation cases involving contingent faculty at Manhattan College, Saint Xavier University and Duquesne University. While amicus briefs were filed in those cases, they were not solicited by the NLRB as it did in Pacific Lutheran University.
The NLRB questions in Pacific Lutheran University concerning the factors to be applied under Yeshiva are identical to a similar 2012 solicitation of briefs in Point Park University, which remains pending before the NLRB. Unlike the 2012 solicitation, however, no NLRB Board member dissented from the request for briefing in Pacific Lutheran University. The renewed request for briefing on the appropriate application of the Yeshiva factors is indicative of the deliberative approach being taken by the NLRB Board with respect to the important issues under consideration.
The case of Pacific Lutheran University is before the NLRB on a university request for review of a decision and direction of an election by a NLRB Regional Director who rejected the claim that the faculty were managerial and that the school was exempted from NLRB jurisdiction. In the Regional Director's decision, he concluded that the following unit of approximately 176 contingent members was appropriate for collective bargaining:
All full-time and regular part-time non-tenured contingent faculty employed
by the Employer on campus and off campus including in the following
classifications: instructor, lecturer, senior lecturer, visiting faculty, clinical
faculty, leave replacement faculty, professor emeritus/retired faculty, and
resident faculty; excluding all other employees, tenured faculty,
administrative faculty, full-time staff who are not compensated additionally
for teaching, administrators, department administrators, administrators
with teaching responsibilities, counselors, coordinators, campus clergy,
deans, associate deans, campus safety personnel, lab assistants,
graduate assistants, teaching assistants, managers, guards and
supervisors as defined in the Act.
Predictions concerning the ultimate outcome in any litigated case is inherently speculative. Nevertheless, a recalibration of the Yeshiva factors by the NLRB in Pacific Lutheran University regarding managerial status might result in a nationwide resurgence in organizing efforts by tenure track faculty at private universities. Similarly, NLRB rulings that it has jurisdiction over Pacific Lutheran University, Manhattan College, Saint Xavier University and/or Duquesne University, which are sustained by the courts, have the potential for a new growth in private sector collective bargaining with respect to contingent faculty working at schools with religious affiliations.