Conference Locations and Events:

Sunday, April 19, 2015, CUNY Graduate Center: 365 5th Avenue, NY, NY, 10016 (reception, research panels and workshops)

Sunday, April 19, 2015, Heartland Brewery-Empire State Building: 350 5th Avenue, New York, NY 10118 (buffet dinner, open bar)

Monday-Tuesday, April 20-21, 2015, CUNY Graduate Center: 365 5th Avenue, NY, NY, 10016 (continental breakfast, panels, lunch and workshops)

Please note the new locations for the Sunday, April 19th events are the CUNY Graduate Center and the Heartland Brewery.

Conference Hotels:

Affinia Dumont: 150 East 34th Street, NY, NY, 10016

Affinia Shelburne: 303 Lexington Avenue, NY, NY, 10016

Room Rate: $289/night.    

Click here for hotel reservation information.

On December 17, 2014, the National Labor Relations Board (NLRB) issued an important decision in Pacific Lutheran University (Pacific Lutheran) that has broad implications for the future of collective bargaining in private sector higher education.  

In its decision, the NLRB tackled two major and long-standing issues. The first is the proper standard to be applied by the NLRB when determining whether to assert jurisdiction over religiously affiliated colleges without interfering with the free exercise of religion under the First Amendment.  The second issue is the appropriate burden of proof on a private sector institution that asserts that its faculty are managerial for purposes of the National Labor Relations Act (NLRA) due to their role in shared governance, and are therefore unprotected under the NLRA .  

While the case involved a petition seeking to represent a unit of contingent faculty at the university, the decision will impact the collective bargaining rights of tenured-track and contingent faculty at other private sector schools of higher education. 

The decision and its impact will be the subject of discussion at the National Center's 2015 annual conference on April 19-21, 2015 at the CUNY Graduate Center in New York City.     

NLRB Jurisdiction Concerning Religiously Affiliated Schools 

The first issue examined in Pacific Lutheran concerning the standards for determining whether to assert jurisdiction over a religious college or university stems from the Supreme Court's decision in NLRB v. Catholic Bishop of Chicago (Catholic Bishop), 440 U.S. 490 (1979). 

Over the past decade, certain religious colleges and universities have objected to the NLRB asserting jurisdiction regarding faculty representation and collective bargaining on the grounds that enforcement of the provisions of the NLRA constitutes a violation of the Free Exercise Clause of the First Amendment under Catholic Bishop.  The following is a list of cases pending at the NLRB where an objection to jurisdiction on religious grounds has been asserted: Manhattan College, Case No. 2-RC-023543; Saint Xavier University, Case No. 13-RC-022025; Islamic Saudi Academy, Case No. 05-RC-080474; Duquesne University of the Holy Spirit, Case No. 06-RC-080933; Saint Xavier University, Case No. 13-RC-092296; and Seattle University, Case No. 19-RC-122863.    

In Pacific Lutheran, the NLRB adopted a new two-step test for deciding a jurisdictional objection made by a college or university under Catholic Bishop.  Under that test, an institution objecting to NLRB jurisdiction over a petitioned-for unit of faculty must meet a threshold requirement of demonstrating that it holds itself out as providing a religious educational environment.  To satisfy that burden, the institution has to present contemporary evidence such as "handbooks, mission statements, corporate documents, course catalogs" and material on the institution's website that demonstrate it provides a religious educational environment.  

If the institution meets that threshold requirement, it "must then show that it holds out the petitioned-for faculty members themselves as a performing a specific role in creating or maintaining the college or university's religious educational environment, as demonstrated by its representation to current or potential students and faculty members, and the community at large." To meet that burden, the institution will have to present evidence of public representations that faculty perform a specific religious function.  Relevant evidence would include "job descriptions, employment contracts, faculty handbooks, statements to accrediting bodies, and statements to prospective and current faculty and students" articulating the faculty's specific role in the provision of a religious educational environment.  

Following its application of the new jurisdictional test to the evidence in the record, the NLRB concluded that Pacific Lutheran had presented sufficient evidence to meet the threshold requirement that it holds itself out as providing a religious educational environment.  However, the NLRB found that it will assert jurisdiction over the question of representation of contingent faculty at Pacific Lutheran because the school did not demonstrate it holds out the faculty members as performing any religious function.  Instead, Pacific Lutheran's public pronouncements "emphasize a commitment to academic freedom, its acceptance of other faiths and its explicit deemphasis of any specific Lutheran dogma, criteria or symbolism." 

Yeshiva University Revisited: Modified Evidentiary Standards for Determining Managerial Status of Faculty at Private Sector Colleges and Universities

The second major component of the Pacific Lutheran decision was the reexamination of the standards it will apply in determining whether faculty at a private college or university are managerial employees within the meaning of NLRB v. Yeshiva University, 444 U.S. 672 (1980) (Yeshiva University). 

It should be recalled that during the decade after Yeshiva University, the National Center closely monitored the application and impact of the decision on unionization at private sector institutions through a series of "Yeshivawatch" articles by former National Director Joel M. Douglas and Thomas E. Matteoli.  The research in those articles revealed that in the first seven years following the decision, fifty-five institutions relied on Yeshiva University to seek to terminate a collective bargaining relationship. In that period, a total of twenty faculty units were decertified and another five voluntary agreed to a certification withdrawal.  

The NLRB in Pacific Lutheran has now refined the applicable burden of proof that a university or college must satisfy to obtain a finding that its faculty are managerial under Yeshiva University.  Under the modified standards, when applying Yeshiva University the NLRB will examine the record to determine whether faculty, in fact, actually exercise control or make effective recommendations over core decision-making as part of shared governance concerning five subject areas:  academic programs, enrollment management policies, finances, academic policies, and personnel policies and decisions. The NLRB made clear that it will give greater weight to the first three areas than the last two.   

A party asserting the managerial status of faculty will now have to prove that faculty have actual authority through presentation of "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."  To prove faculty make "effective recommendations," a party will have to demonstrate that the recommendations are "almost always" followed by university administrators or routinely become operative without independent review by the administration.   

In refining the applicable standards, the NLRB made specific findings concerning changes in the structure of higher education since Yeshiva University with colleges and universities "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." 

Applying the refined standards to the record evidence, the NLRB concluded that Pacific Lutheran had not met its burden of proof of demonstrating that the at-issue contingent faculty are managerial employees because their involvement in decision-making was insufficient to show actual control or effective recommendations concerning the primary and secondary decision-making areas.  

It is too early to make firm predictions concerning how Pacific Lutheran will effect faculty unionization and collective bargaining in the private sector.  In 2012, the National Center found that only 7% of full-time faculty at private sector institutions are unionized, while the union density rate of faculty at public four-year institutions is 25%, and the rate at community colleges is 42%.    

The final outcomes in the six pending cases before the NLRB where religious-based objections to jurisdiction have been made will provide a clearer picture concerning the import of Pacific Lutheran to religiously affiliated institutions.  In the meantime, it is likely that the decision will cause some colleges and universities to have their statements and pronouncements carefully scrutinized for possible modifications if they intend on resisting NLRB jurisdiction on First Amendment grounds in future cases.   

The impact of Pacific Lutheran should be greatest with respect to the managerial status issue under Yeshiva University.  The revised legal standards set forth in Pacific Lutheran, along with the successful unionization efforts by contingent faculty at private institutions, has the potential for stimulating renewed efforts by private sector tenure track faculty to unionize.  Whether that happens will depend on a number of factors including the extent to which the new change in the legal landscape impacts the interest and desire of faculty to assert rights under the NLRA.  Finally, the decision may result in administrators at private institutions reexamining the actual practices of shared governance on their campuses.