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At Year’s End, Pending NLRB Decisions Weigh Heavily on Higher Education

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December 10, 2012

A trio of cases currently pending before the National Labor Relations Board (NLRB) could drastically affect employment relationships within higher education. At stake in all three cases are members of the university community’s right to organize, join, form, and assist labor unions. We have been closely following major developments in all three cases, and because decisions are likely to be issued before the end of the year, we want to re-focus your attention on these potentially landmark cases.

In Point Park University, the NLRB is revisiting the 1980 Supreme Court decision, NLRB v. Yeshiva University. Yeshiva held that full-time faculty members were exempt from protection under the National Labor Relations Act (NLRA) because they were managers. This holding has blocked nearly every major faculty organizing drive since. In New York University (NYU), the NLRB is revisiting its more recent 2004 decision, Brown University. In Brown, the NLRB held that graduate students have a predominantly academic relationship with their institutions and are therefore not “employees” as defined in the NLRA. In Saint Xavier University (SXU) and affiliated cases, the NLRB is re-examining its test for determining when a university is a religious educational institution. Under the Supreme Court’s 1979 decision in NLRB v. Catholic Bishop of Chicago, the NLRB does not have jurisdiction over religious educational institutions. The NLRB is revisiting the issue because the U.S. Court of Appeals for the D.C. Circuit has repeatedly struck down the NLRB’s current test as unconstitutional under the First Amendment.

Point Park University

In Point Park, the NLRB is deciding whether it should modify the factors identified in Yeshiva as evidence of whether faculty members are “managerial” under the NLRA and therefore, prohibited from organizing. In Yeshiva, the Supreme Court found that because the faculty had “absolute authority” in academic matters, a “prominent role” in faculty personnel issues, and sat on committees where the overwhelming majority of their recommendations were adopted by the administration, they were managers, and thus, were not employees under the NLRA. Since then, faculties attempting to organize had to show that they were unlike the faculty in Yeshiva. Only a small handful of faculties were successful, and even fewer faculties actually succeeded in getting a union certified.

The dispute between Point Park University and its full-time faculty began in 2003 when the faculty voted overwhelmingly to form a collective bargaining unit in response to changes in the faculty handbook. In a rare victory for faculty, the NLRB ruled that the faculty were non-managerial and could form a union. However, the D.C. Circuit Court of Appeals overruled that decision in 2006, asking the NLRB to explain how, under Yeshiva, “The faculty’s role at the University is not managerial.” An NLRB Regional Director issued a supplemental decision explaining why the factors cited in Yeshiva do not apply to the Point Park faculty, leading the University to appeal that decision to the NLRB. The case lay dormant for several years until the NLRB issued a call for amicus briefs earlier this summer, which we previously reported

Most of the briefs filed on behalf of and in support of the union paint a picture of decreasing shared governance and faculty powerlessness that some claim has slowly pervaded academia since the Yeshiva ruling. On the other hand, the briefs filed on behalf of and in support of the University maintain that shared governance remains the predominant model, and that the Point Park faculty is sufficiently similar to the Yeshiva faculty to warrant a reversal of the Regional Director’s decision. Point Park’s brief also sharply criticizes the NLRB for overstepping its bounds by attempting to overrule Supreme Court precedent and ignoring the mandate of the D.C. Circuit Court of Appeals on remand.

New York University

In NYU, the NLRB is deciding whether it should overturn its 2004 decision in Brown University, where it held that graduate students were predominantly students and not employees, and therefore had no organizing rights under the NLRA. In Brown, the NLRB reasoned that because graduate students’ principal time commitment is focused on obtaining a degree, and not earning wages, they had a predominantly educational, and not economic, relationship with the institution. The NLRB further explained that collective bargaining would have a “deleterious impact on overall educational decisions” and that such an intrusion would interfere with the “principal prerogatives of an educational institution like Brown.” The Brown decision overruled a previous 2000 decision involving NYU, where the NLRB held precisely the opposite. 

The current NYU case actually involves two separate proposed bargaining units: One involving graduate research assistants at NYU, and another involving graduate research and teaching assistants at the Polytechnic Institute of NYU.  The union seeking to represent both units filed representation petitions which were dismissed by NLRB Regional Directors. However, in both cases, the NLRB’s Regional Directors noted that graduate students have a “dual relationship” that is both academic and economic. In one case, the Regional Director went so far as to state that such a relationship “does not necessarily preclude a finding of employee status.” Nonetheless, both Regional Directors felt constrained to follow Brown, and dismissed the petitions. The union appealed and the NLRB agreed to hear the cases, seeking amicus briefs from interested parties, which we previously reported.

The briefs on behalf of and in support of the union mostly reiterate the arguments rejected by the NLRB just a few years ago in Brown. They liken graduate students to industry “apprentices” in support of their argument that they are more like employees than students. The union’s brief also characterizes a previous relationship between a graduate student union and the university that was in place from 2001-2005 as decidedly positive for all parties. Conversely, the briefs on behalf of and in support of NYU argue that there is no reason to overturn Brown, and that graduate students still have relationships with their institutions that are much more academic than economic. NYU’s brief flatly denies that its previous collective bargaining relationship was beneficial. Rather, it cites to the conclusions of three separate university committees, which found that the actions previously engaged in by the union while the contract was in effect “presented a clear and present threat to NYU’s academic autonomy.”  

Saint Xavier University

In SXU and several other pending cases, the NLRB is examining whether it should continue to apply its “substantial religious character” test for determining whether an educational institution qualifies as a religious educational institution or if it should adopt a new test. The NLRB does not have jurisdiction over religious educational institutions. Currently, the NLRB uses its substantial religious character test to determine if a university is a religious educational institution. In doing so, it analyzes the affiliated religious group’s involvement in the school’s day-to-day affairs, the school’s religious mission, whether indoctrination and proselytizing are part of the school’s purpose, and whether the school uses religious criteria when appointing or evaluating the faculty. The NLRB has applied this test for several decades. The D.C. Circuit Court of Appeals, however, has repeatedly held that the NLRB’s test is unconstitutional because the nature of the inquiry boils down to determining whether the institution is “sufficiently religious,” which violates the First Amendment.

The Regional Director’s decision in SXU applied the substantial religious character test and concluded that the NLRB had jurisdiction over the University. In its request for review, the University argued that the NLRB should discard the substantial religious character test and adopt the three-part test used by the D.C. Circuit Court of Appeals. Under that test a university is exempt from the NLRB’s jurisdiction if: 1) it holds itself out as providing a religious educational environment; 2) it is organized as a nonprofit; and 3) it is affiliated with, or owned, operated, or controlled directly or indirectly by a recognized religious organization or with an entity in which membership is determined with reference to religion. The University also argued that even if the NLRB applied the substantial religious character test, under prior precedent, it is exempt from the NLRB’s jurisdiction. In its response, the union argued that the NLRB’s test is consistent with the Supreme Court’s decision in Catholic Bishop, and that the Regional Director’s decision correctly applied NLRB precedent.

Because of the NLRB’s current democratic majority makeup, it is likely that all three cases will be decided in favor of the unions and against the universities. Recent NLRB decisions, which we have extensively covered, have been decidedly pro-labor under the Obama administration, and there is no reason to believe that the NLRB will depart from this stance when deciding these cases. Because the NLRB may not issue binding decisions with less than three members, the fact that the terms for two of the four NLRB members expire at the end of the year leads us to believe that these decisions will be handed down shortly.

Given this somewhat gloomy prediction, colleges and universities need to be prepared for the costly and disruptive organizing campaigns that may quickly materialize in the aftermath of these significant decisions. Because of the long history of previously pro-university precedents in these areas, many institutions may lack the experience needed to adequately respond to the myriad of issues that an organizing campaign can bring. We urge you to consult one of our attorneys today to begin this important discussion.  

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