NLRB Invites Briefs on whether University Faculty are Managerial Employees Excluded from the NLRA's Coverage | Practical Law

NLRB Invites Briefs on whether University Faculty are Managerial Employees Excluded from the NLRA's Coverage | Practical Law

On May 22, 2012, a divided National Labor Relations Board (NLRB) invited amicus briefs in Point Park University on the question of whether university faculty members are managerial employees excluded from the National Labor Relations Act's (NLRA) coverage. The case has a long history starting with a union successfully petitioning for a union election more than eight years ago.

NLRB Invites Briefs on whether University Faculty are Managerial Employees Excluded from the NLRA's Coverage

by PLC Labor & Employment
Published on 24 May 2012 • USA (National/Federal)
On May 22, 2012, a divided National Labor Relations Board (NLRB) invited amicus briefs in Point Park University on the question of whether university faculty members are managerial employees excluded from the National Labor Relations Act's (NLRA) coverage. The case has a long history starting with a union successfully petitioning for a union election more than eight years ago.
On May 22, 2012, the NLRB invited briefs from interested parties in Point Park University (06-RC-012276) concerning:
  • Whether university faculty members are either:
    • Employees covered by the NLRA.
    • Managerial employees not covered by the NLRA.
  • The NLRB's standards for evaluating who is a managerial employee in the university faculty context and other contexts.
  • The NLRB's standards for distinguishing professional employees, who are covered by the NLRA, from managerial employees.
The Point Park University case has a long history including:
  • A union petitioning for an election to represent Point Park University's faculty in 2003.
  • An NLRB regional director's direction of an election in 2004, which the union won.
  • The university petitioning for review of the NLRB regional director's decision that the five member panel (Board), which oversees the NLRB's union representation election process, denied.
  • The university refusing to bargain with the union, which prompted an appealable 2005 unfair labor practice (ULP) case decision by the Board.
  • The university petitioning for the US Court of Appeals for the DC Circuit to review the Board's ULP case decision and the NLRB's decision to direct an election for alleged managerial employees.
  • The DC Circuit remanding the case to the NLRB in 2006 (see Point Park Univ. v. NLRB, 457 F.3d 42 (D.C. Cir. 2006)).
  • An NLRB regional director issuing a supplemental decision on remand in 2007.
  • The university petitioning for review of the regional director's supplemental decision supported by amicus briefs by various university associations and not opposed by any union briefs in 2007.
  • The Board granting the university's petition for review in 2007.
The DC Circuit had found that the Board "failed to adequately explain why the faculty's role at the University is not managerial." The court instructed the NLRB to:
  • Identify which of the relevant factors set forth in the US Supreme Court decision in NLRB v. Yeshiva University are significant and which are less significant in its determination that the faculty are not managers (444 U.S. 672 (1980)).
  • Explain why the factors in Yeshiva are so weighted.
To help the NLRB to address the remand and the university's petition for review, a three member majority of the Board (Chairman Pearce and Members Block and Griffin) invited parties and amici to file briefs to help it address the court's instructions.
In its Notice and Invitation to File Briefs, the Board majority listed eight questions that the parties and amici should address in their briefs:
  • Which of the factors identified in Yeshiva and relevant cases since Yeshiva are most significant in finding that university faculty members are excluded managerial employees and why?
  • In the areas identified as "significant," what evidence should be required to show that faculty make or effectively control decisions?
  • Are the factors identified in NLRB case law sufficient to correctly determine whether faculty are managerial employees?
  • If the factors are not sufficient, what additional factors would help to determine whether faculty are managerial employees?
  • Is the NLRB's application of the Yeshiva factors to the university faculty consistent with its determination of the status of other categories of employees? If not:
    • may the NLRB adopt a distinct approach for an academic context; or
    • can the NLRB more closely align its determinations in an academic context with its determinations in non-academic contexts and be consistent with Yeshiva?
  • Do the NLRB's factors used in determining the status of university faculty members properly distinguish professional employees, who are covered by the NLRA, from managerial employees.
  • Have there been developments in models of decision making in private universities since Yeshiva that are relevant to the factors the NLRB should consider in determining of faculty status? If yes:
    • what are those developments; and
    • how should they influence the NLRB's analysis?
  • Are there useful distinctions between different job classifications in a university faculty, for example between professors and lecturers or tenured and untenured faculty?
Members Hayes and Flynn dissented from the majority's decision to solicit additional briefing because:
  • Nearly five years have passed since the Board granted the university's request for review.
  • An amicus brief has already been filed in this case by entities that represent virtually all institutions of higher education.
  • After the Board granted review in 2007, the union did not take the opportunity to file a brief.
  • No additional organizations have asked to participate as amici during this case despite the publicity surrounding it.
The Notice and Invitation to File Briefs also states that in answering these questions, the parties and amici are invited to submit empirical and other evidence.
Briefs, which must not exceed 50 pages in length, should be electronically filed using the NLRB E-Filing system. Briefs must be filed on or before July 6, 2012.