NAICU Washington Update

NLRB Seeks Comments on Issues Relating to Unionization of College Faculty

February 18, 2014

The National Labor Relations Board (NLRB) has issued a notice and invitation for briefs to respond to a series of questions relating to unionization of college faculty. The specific case before the board involves an effort to unionize non-tenure track faculty at Pacific Lutheran University.

Pacific Lutheran has raised two main arguments to support its position that none of its faculty are eligible to unionize under federal labor law. The first of these arguments involves the university’s religious affiliation, and it is similar to the position that has been taken by a number of other faith-based, and mostly Roman Catholic, colleges in response to efforts to unionize adjunct faculty. The religious argument is based on a 1979 Supreme Court case (NLRB v. Catholic Bishop) which found religiously affiliated educational institutions to be exempt from NLRB jurisdiction on First Amendment grounds.

Pacific Lutheran’s second argument involves those non-tenure track faculty who are employed full time, and who participate and vote in the university’s Faculty Assembly. The university argues that those faculty are not eligible to unionize because they participate in the management of the institution—a position based on the 1980 Supreme Court ruling in NLRB v. Yeshiva University.

The questions raised by the NLRB about both of Pacific Lutheran’s arguments have broader significance for other institutions. They clearly affect other colleges raising similar religious freedom arguments about efforts to organize their adjunct faculty. The NLRB asks how it should test whether any institution that identifies itself as religiously affiliated should be exempt from the board’s jurisdiction. In 2009, in a case involving Carroll College, the D.C. Court of Appeals found that any investigation by federal officials of an institution’s religious practices and values could dangerously affect the institution’s freedom of religion under the First Amendment.

The NLRB’s questions about the application of the Yeshiva precedent, involving tests about the managerial status of faculty, could have implications for all independent colleges and universities. The NLRB raised similar questions two years ago, in connection with a case involving efforts to unionize the faculty at Point Park University. NAICU joined ACE and other associations in a brief to the NLRB affirming the continued relevance of Yeshiva. That case is still pending.

Briefs in response to the most recent NLRB questions are due at the end of March. NAICU is now considering its response to those questions. Faculty unionization cases often take a very long time to resolve. Once the NLRB issues a ruling, it is likely to be appealed to the federal courts. The Point Park University case has gone on for more than a decade, and at its most recent stage has been under consideration by the NLRB for two years.

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