The National Labor Relations Board Strikes Again - How Managerial Are Your Faculty and How Religious Is Your Institution?

December 22, 2014

By: John Gaal

In the latest example of dramatic changes to well-developed principles of federal labor law and policy, the National Labor Relations Board (“NLRB” or “Board”) issued its long awaited decision in Pacific Lutheran University, 361 NLRB No. 157, last week. Pacific Lutheran presented the Board with the opportunity to address, and redefine, two critical areas of interest to institutions of higher education: (1) when are faculty “managerial” and thus not “employees” covered by the National Labor Relations Act (“Act”) so that, among other things, they are not entitled to organize for purposes of collective bargaining; and (2) when are the faculty at a religiously affiliated institution beyond the jurisdiction of the NLRB because of the institution's religious character. Managerial Status and Yeshiva - A New Framework The most impactful aspect of the Pacific Lutheran decision (because it affects all private institutions and not just those that are religiously affiliated) relates to the managerial status of faculty members.  In NLRB v. Yeshiva University, 444 U.S. 672 (1980), the Supreme Court ruled that faculty members who participate in the governance of the institution in a meaningful way are “managerial” and not covered “employees” under the Act.  (Regardless of industry, “managerial” individuals are not “employees” for this purpose.)  Among other things, this means that, if managerial, faculty are not entitled to compel recognition for collective bargaining purposes through the NLRB’s representation procedures.  The Supreme Court left for future case by case analysis whether the faculty at any particular institution are managerial.  Over the years, the Board has most often found that faculty are managerial under Yeshiva standard.  In a few cases, it has found otherwise, but those determinations have often been rejected by the Circuit Courts because the Board failed to provide a rationale that was consistent with its long history of treating faculty as managerial. Taking the opportunity presented by Pacific Lutheran, the Board has created a new analytical framework for determining the managerial status of faculty.  Under this new approach, managerial status will be determined by looking at whether faculty actually exercise control or make effective recommendations in three “primary” and two “secondary” areas.  The primary areas are academic programs (e.g., curricular, research, major/minor, certificate offerings), enrollment management (e.g., size, scope and make-up of the institution’s student body) and finances (e.g., the power to control or recommend on issues of income and expenses, such as net tuition).  The secondary areas are academic policy (e.g. teaching/research methods, grading policy, academic integrity policy, syllabus policy, research policy, course content policy) and personnel policy and decisions (e.g., hiring, promotion, tenure, leave and dismissal). The Board’s new analytical framework raises a number of issues.  The first is the primary/secondary dichotomy and the lower level of importance it gives to academic policy and personnel matters.  In terms of the basic issue presented in Yeshiva – who controls “the product to be produced, the terms upon which it will be offered, and the customers who will be served” ? the identified academic policy areas (teaching methods, grading policy, course content policy, etc.), seemingly have a significant impact on all three of those key factors so it is hard to understand the “secondary” characterization.  Similarly, personnel decisions (especially faculty hiring and tenure), go to the very heart of an institution’s quality and reputation, and seem to have more than just an “indirect” impact on the “product to be produced, the terms in which it is offered, and the customers sought.” Second, the Board offers no guidance on the interplay of these factors in making a determination.  For example, do faculty have to control/effectively recommend in all three primary areas (academic programs, enrollment management and finances) or will doing so in any one area carry the day?  In any other (industrial or commercial) setting, it is clear that individuals may be “managerial” even if they do not have, for example, financial control, so would/should a higher standard apply to colleges and universities?  How do primary areas interplay with secondary areas?  Will control/effective recommendation in one primary area and one secondary area be enough?  What about in two primary areas and no secondary area? No primary areas and two secondary areas?  At this point in time, we simply do not know. The Board’s new analytical framework also seemingly raises the bar on the “control or effectively recommend” side of the equation in two ways.  First, Pacific Lutheran “requires” that in order to effectively recommend, the faculty’s recommendation “must almost always” – whatever that means – be followed.  While past cases have certainly indicated that if recommendations are “almost always” followed the faculty are likely managerial, and if they are “almost never” followed the faculty are likely not managerial, the establishment of those two outer parameters did not necessarily mean that “almost always” was the recognized floor in this analysis.  Apparently it is now.  Second, the Board stated that faculty recommendations are “effective” if they routinely become operative “without independent review by the administration.”  What is enough “independent review” to take a matter outside the ambit of “effectively recommend”?  In most institutions, tenure and promotion recommendations of faculty committees “almost always” carry the day, but often there is a substantive review of the file by the Provost or President along the way.  Does the mere fact of that review mean faculty do not effectively recommend tenure and promotion, even when that administrator would reach a different conclusion if left alone to decide, but nonetheless defers to the faculty view because he or she does not act alone?  Even aside from what constitutes “independent review by the administration,” the Board’s new requirement appears to impose a higher standard in the higher education arena than in the industrial setting.  Is there any doubt that individuals in other settings retain managerial status even though their recommendations are subject to some higher level of independent review? Because we do not know, for sure, how the Board will apply this new framework, it perhaps remain to be seen how significant a change this case presents.  However, given the Board’s recent history, there should be little doubt that this new standard will lead to a dramatic change in how the Board handles faculty representation petitions, at least until a Circuit Court can determine whether this new framework is in fact consistent with the Supreme Court’s original Yeshiva decision. Religious Institutions - A New Standard In NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979) the Supreme Court rejected the Board’s attempt to exert jurisdiction over lay teachers at religiously affiliated schools due to concerns that Board jurisdiction could interfere with religious rights, in violation of constitutional principles.  Not content with that constitutionally-based limitation on its jurisdiction, the Board has continuously advanced interpretations of its jurisdictional reach over faculty at religiously affiliated institutions despite often being met with judicial disapproval, most notably by the U.S. Court of Appeals for the District of Columbia CircuitPacific Lutheran involved an organizing attempt by adjuncts at this religiously affiliated institution and the NLRB seized upon it as an opportunity to once again try to circumvent the principles established in Catholic Bishop. The core issue that arises when the NLRB attempts to exercise jurisdiction over religiously affiliated institutions is whether in doing so it is impermissibly entangling itself in matters of religion, which then runs afoul of the Religion Clauses of the First Amendment of the U.S. Constitution.  In its prior attempts to push back at Catholic Bishop, the Board has been criticized by the Circuit Courts for invoking a standard that would involve the Board in determining whether a religiously affiliated institution is “sufficiently religious” that its faculty fall outside its jurisdiction.  Needless to say, the Board attempting to determine whether any specific institution is “sufficiently religious” seems to be exactly the type of entanglement prohibited by the Constitution. In order to avoid impermissible entanglement, the D.C. Circuit in Great Falls v. NLRB, 278 F. 3d 1335 (2002), established a three part test which allows the Board to assert jurisdiction unless an institution: (1) holds itself out to students, faculty and the community as providing a religious educational environment; (2) is organized as a nonprofit; and (3) is affiliated with, or owned, operated, or controlled (directly or indirectly) by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion. In its latest effort to extend its jurisdiction beyond these limits, the Board in Pacific Lutheran has now established its own two part standard: (1) does the institution hold itself out as providing a religious educational environment (this is consistent with Great Falls) and (2) does it hold its petitioned-for-faculty out as “performing a specific role in creating or maintaining the school’s religious educational environment”?  Only if both prongs are met will the Board consider an institution's faculty exempt from coverage.  To justify this latest test, the Board majority relies on the fact that, under this second prong, (1) it will no longer look at the character of the institution as a whole but at only the function of those faculty members who are the subject of the representation petition and (2) it will not look beyond the institution’s public pronouncements on the role of those faculty members in determining whether this standard is met. As the dissent points out, however, this rationale is misplaced.  First, the Board majority attempts to justify this approach as an appropriate “balancing” of the competing interests reflected in the First Amendment and the purposes underlying the Act.  Dissenting Member Johnson points out, from a legal perspective, there really is no place for “balancing” in cases involving a conflict between a federal statute and the Constitution.    As much as the majority might view the purposes of the Act as standing on an equal footing with the Religion Clause of the First Amendment, that simply is not the case.  Between constitutional principles and federal legislation, federal legislation (such as the Act) must always give way. Second, this new standard does nothing to avoid the very entanglement that lies at the core of this debate.  While the Board will no longer determine whether an institution, as a whole, is sufficiently religious to exempt its faculty from coverage, it has merely moved its impermissible analysis to a different level – the faculty level.  It will now determine whether faculty members individually perform a sufficiently religious role, that is whether they have a “specific role in creating or maintaining the school’s religious educational environment.”  In other words, the Board “shall require that [the faculty] be held out as performing a specific religious function,” and the Board will decide what is a sufficiently “religious” function for this purpose.  For example, the Board majority notes that requiring faculty members to support the goals or missions of the religiously affiliated institution is not a sufficiently religious function to qualify for the exemption.  The Board illustrates its expectations by suggesting that faculty members must  be required to incorporate religion into their teaching or research or have religious requirements imposed on them to meet its new standard.  It goes so far as to say that requiring faculty members “to comply with norms shared by both a religion and a wider society” is insufficient to support a finding that faculty members are sufficiently religious to be exempt.  Thus apparently even if faculty members are expected to comply with specific religious tenets, if those tenets overlap with what “wider society” views as a norm (as noted by the dissent, the principles of the Ten Commandments?), that is not sufficiently religious. Ultimately, the Board’s “new” test merely moves the risk of religious entanglement from the institutional level to the faculty level, but does little to remove the risk of entanglement altogether.  It is hard to imagine this new standard passing muster under the Circuit Court’s Great Falls standard. Conclusion The Board’s Pacific Lutheran decision, coupled with its recent decisions in other areas (e.g., employee use of employer email systems for organizing purposes), its pending consideration of students as employees (whether in the context of graduate students or football players), and the recent surge in union adjunct organizing activity, promises to provide a very bumpy road ahead for colleges and universities.