New Guidance From NLRB Could Pave the Way for More Faculty Organizing on College Campuses
If you work in human resources in higher education, you’re likely familiar with the NLRB v. Yeshiva University court case. Here’s a quick overview: The National Labor Relations Board in 1974 brought a lawsuit against Yeshiva University for failing to recognize the university’s faculty association as a bargaining unit. The case wound its way over several years through the legal system and ended up in front of the Supreme Court. Finally, in 1980, the nation’s highest court ruled in favor of the university, stating that faculty are considered managerial employees and are therefore not covered under the National Labor Relations Act.
In the four decades since Yeshiva, the NLRB has addressed the managerial status of faculty in more than 20 decisions. But those decisions have been less than consistent and have yet to provide a clear-cut rationale or explanation of faculty roles and responsibilities as they relate to the NLRA. Now, the NLRB has once again sought to provide guidance in its Pacific Lutheran University decision, providing a new framework for applying Yeshiva by examining the “breadth and depth” of faculty authority.
The Breadth and Depth Test
Proskauer law firm in a recent Higher Education Alert provided a good overview of the “breadth and depth” test. As it relates to the breadth of faculty authority, the NLRB will examine areas of decision making that “affect the university as a whole, such as the product produced, the terms on which it is offered, and the customers served.” To this end, the Board identified three “primary” areas of faculty authority (to which it will give greater weight when determining the managerial status of faculty members) — academic programs, enrollment management and finances; and two “secondary” areas of authority — academic policy and personnel policy.
In determining “depth” of faculty authority, the Board will analyze “whether faculty actually exercise control or make effective recommendations over those areas of policy.” The Board emphasized that the college or university “must prove actual — rather than mere paper — authority” and that “to be ‘effective,’ recommendations must almost always be followed by the administration.”
By applying this new “breadth and depth” faculty authority test, the Board ruled in Pacific Lutheran that the institution’s full-time contingent faculty are not managerial employees, and are therefore entitled to collectively bargain. (Inside Higher Ed published a great summary of the decision and its implications for faculty unionization in private institutions.)
What Does It All Mean?
Many are of the opinion that the Pacific Lutheran decision will make it easier for faculty to organize. Although the decision will likely be challenged in court, it has set a new precedent for now — and higher ed needs to be ready. Paul Salvatore and Edward Brill, partners at Proskauer, offer some tips for how to stay ahead of the game.
- Conduct a self-audit. Look at all relevant factors to try to determine which segment of your faculty population exercises decision-making authority and in what ways. Evaluate the role of faculty in your institution’s governance structure and review and update documents related to governance if they do not reflect current practices.
- Have a plan in place for adjunct faculty. As efforts to organize adjunct faculty continue to pick up steam, institutions need to be proactive in determining the roles and responsibilities of adjuncts, and need to put this in writing.
- Be prepared in advance for a possible organizing drive. Don’t get caught off guard – take time now to address potential areas of concern.
Want to learn more about the NLRB’s recent Pacific Lutheran decision and what it means for faculty organizing? Watch the free, on-demand CUPA-HR webinar “Will Your Faculty Be Unionized? The NLRB Opens the Door.”