NLRB Revises Managerial Employee Exclusion and Religious Institution Exemption in Higher Education
January 7, 2015 by Teague Paterson
In the December 16 decision in Pacific Lutheran University, the NLRB extended the reach of the National Labor Relations Act (Act) with respect to higher education faculty under the religious institution exemption and the managerial employee exclusion. The case involved the representation of non-tenured, contingent or contract, faculty members of Pacific Lutheran University.
The Board held that its jurisdiction would fail to extend to private institutions of higher education that are affiliated or associated with a religion only if the institution holds itself out as providing a significantly religious educational environment and when the employees seeking a union actually perform a religious function. A “religious function” in the education setting means the faculty members perform a specific role in creating or maintaining a religious educational environment. The Board found neither analysis applied to Lutheran Pacific University, because the university held itself out as a general higher educational institution, and did not require religious study, coursework, or even adherence to a particular faith. In addition, the university did not hire the faculty comprising the petitioned-for unit to provide religious instruction, and knowledge of Lutheranism was not required as a qualification, nor was faculty expected to acquire or explore Lutheranism after their appointment.
The Board next turned to the question of whether the faculty were managerial employees exempt from the Act. The Board, recognizing academic institutions are increasingly managed by professional administrators, revisited its prior holdings to clarify the analysis in the context of faculty of higher education institutions. The Board’s new standard reflected the input of many amici party briefs. The Board its standard to define certain primary and secondary areas of faculty involvement that indicate managerial status. Where faculty exercise actual control or make effective recommendations over the following primary areas, they will likely be considered managerial: Academic Programs, Enrollment Management and Finances. The Board also described secondary areas, where faculty control may be suggestive of managerial status: Academic Policy and Personnel Policy or Decisions.
The Board summarized its final holding as follows:
… where a party asserts that university faculty are managerial employees, we will examine the faculty’s participation in the following areas of decision-making: academic programs, enrollment management, finances, academic policy, and personnel policies and decisions, giving greater weight to the first three areas than the last two areas. We will then determine, in the context of the university’s decision-making structure and the nature of the faculty’s employment relationship with the university, whether the faculty actually control or make effective recommendation over those areas. If they do, we will find that they are managerial employees and, therefore, excluded from the Act’s protections.
The decision is Pacific Lutheran University and SEIU Local 925, 19-RC-102521 (December 16, 2014).
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