NLRB Invites Briefs on Whether It Can Exercise Jurisdiction Over Religiously-affiliated Universities and Certain University Faculty | Practical Law

NLRB Invites Briefs on Whether It Can Exercise Jurisdiction Over Religiously-affiliated Universities and Certain University Faculty | Practical Law

On February 10, 2014, the National Labor Relations Board (NLRB) invited amicus briefs in Pacific Lutheran University on the question of whether the NLRB can exercise jurisdiction over religiously-affiliated universities and whether certain university faculty members are managerial employees excluded from the National Labor Relations Act's (NLRA) coverage.

NLRB Invites Briefs on Whether It Can Exercise Jurisdiction Over Religiously-affiliated Universities and Certain University Faculty

by Practical Law Labor & Employment
Published on 18 Feb 2014 • USA (National/Federal)
On February 10, 2014, the National Labor Relations Board (NLRB) invited amicus briefs in Pacific Lutheran University on the question of whether the NLRB can exercise jurisdiction over religiously-affiliated universities and whether certain university faculty members are managerial employees excluded from the National Labor Relations Act's (NLRA) coverage.
In Pacific Lutheran University, a union petitioned to represent all non-tenure-eligible contingent faculty who taught a certain number of hours at the university (19-RC-102521). The panel (Board) heading the NLRB's election functions granted the university's petition for review of an NLRB regional director's decision and direction of election. The university asserted that the NLRB lacks jurisdiction over the proposed bargaining unit because:
  • The university is a religiously-operated institution.
  • The faculty is comprised of managerial employees excluded from NLRA coverage.
On February 10, 2014, the Board invited briefs from interested parties in Pacific Lutheran University to help it decide whether:
  • A religiously-affiliated university is subject to the Board's jurisdiction.
  • A unit of all non-tenure-eligible contingent faculty members are:
    • employees covered by the NLRA; or
    • managerial employees not covered by the NLRA.
In particular, the Board has invited parties and others interested to file briefs answering the following questions:
  • In light of NLRB v. Catholic Bishop (440 U.S. 490 (1979)):
    • what test should the Board apply to determine whether self-identified "religiously affiliated educational institutions" are exempt from the Board's jurisdiction;
    • what factors should the Board consider in determining the appropriate standard for evaluating jurisdiction; and
    • applying the appropriate test, should the Board assert jurisdiction over Pacific Lutheran University?
  • In light of NLRB v. Yeshiva University (444 U.S. 672 (1980)) and the relevant cases decided by the Board since Yeshiva:
    • which factors are most significant in determining whether the faculty members are managerial employees excluded from the NLRA and why;
    • what evidence should be required to establish that faculty make or "effectively control" decisions;
    • are the factors that the Board has identified and used in its case law sufficient to correctly determine which faculty are managerial; and
    • if the factors are not sufficient, what additional factors would aid the Board in determining the faculty's managerial status?
  • Is the Board's application of the Yeshiva factors to determine managerial status for faculty consistent with the factors it uses for other categories of employees and, if not:
    • may the Board adopt a distinct approach for determining managerial status in an academic context; or
    • can the Board more closely align its analysis in an academic context with its analysis in non-academic contexts and remain consistent with Yeshiva?
  • Does the Board's current analysis for university faculty properly distinguish indicia of managerial status from indicia of professional status under the NLRA?
  • Since Yeshiva, have there been changes to customary university operations, in particular to how universities make decisions, that the Board should consider in analyzing faculty managerial status?
  • Can the Board draw inferences about certain job classifications within a university faculty depending on the faculty's structure and practices?
  • Did the NLRB regional director correctly find that the non-tenure-eligible contingent faculty members involved in Pacific Lutheran University are employees?
Amici may file briefs, no longer than 50 pages, using the NLRB E-Filing system by March 28, 2014. The parties' responsive briefs must be filed by April 11, 2014.