On December 16, 2014, the National Labor Relations Board (“NLRB”) decided Pacific Lutheran University, Case 19-RC-102521, changing long-held standards in two areas and broadening its reach over faculty members at religious colleges and universities.

The first issue involved when it is appropriate under the United States Constitution’s First Amendment protections for religious freedom for the NLRB to get involved in matters involving religious colleges and universities. Most recently, the NLRB followed a standard set forth in Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002), under which the NLRB could assert its jurisdiction unless the college or university: (1) held itself out to students, faculty and the community as providing a religious educational environment; (2) was organized as a nonprofit institution; and (3) was directly or indirectly affiliated with, or owned, operated, or controlled by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion.

In Pacific Lutheran, the NLRB found that the Great Falls test too broadly curtailed its jurisdiction. Now, in order to decline jurisdiction, the NLRB will first require the religious college or university to demonstrate that it holds itself out as providing a religious educational environment. If shown, the college or university must then show that it holds out the faculty members for whom NLRB intervention is sought as performing a specific role in creating or maintaining the college or university’s religious educational environment. Unless such an inquiry can be met, it is the NLRB’s position that its involvement in unionizing efforts by faculty will not create a significant risk of infringement on the college or university’s First Amendment rights.

The NLRB cautioned that the college or university would have to prove that the faculty members perform specific religious functions. Generalized statements that faculty members are expected to support the mission of the university are not sufficient. Instead, the faculty must be required to integrate the college or university’s religious teachings into their course work, serve as religious advisors to students, engage in religious indoctrination or religious training, or be required to perform similar duties.

Under this new standard, the NLRB will take jurisdiction over faculty employees even when a college or university can establish that it has a religious foundation. The NLRB applied this standard retroactively to Pacific Lutheran University, and found that it could exercise jurisdiction over Pacific Lutheran University’s contingent faculty. It noted that Pacific Lutheran’s faculty contracts only require a commitment to the mission and objectives of the University, but do not mention religion in general or Lutheranism in particular.

In addition, the NLRB in the Pacific Lutheran case set forth a new standard for determining when faculty members will be considered to be managerial employees, exempt from NLRB jurisdiction. To establish the exemption, the college or university will need to show that the faculty actually control or make effective recommendations in specific primary and secondary areas of decision-making defined by the NLRB.

Primary areas, according to the NLRB, include academic programs (e.g., what courses are offered and the requirements for successful course completion); enrollment management (the size and make-up of the student body); and finances. Secondary areas of decision-making include academic policy (teaching and research methods, grading policies, academic integrity policies, and course content policies) and personnel policies and decisions. A university or college seeking to show that its faculty members are managerial employees would need to point to specific evidence showing that faculty members have actual control over these matters, or make effective recommendations. The NLRB described effective recommendations as requiring a showing that the recommendations are almost always followed.

Under this newly-formulated standard, the NLRB found that Pacific Lutheran also fell short, and that its contingent faculty did not exercise sufficient managerial control to be exempt from NLRB jurisdiction. This decision opened the door for a union vote at the University, with a bargaining unit comprised of its contingent faculty.

What Does This Mean For You? This case shows that the NLRB is continuing to take broad approaches to expand its power, and is willing to apply its new standards retroactively. Its position on managerial employees in academia may show that the NLRB is willing to overhaul its analysis of managerial employees in other areas as well.

If you have questions about this case, or about any other labor or employment matter, please contact S. Whitney Rahman at (717) 509-7237 or at swr@blakingerthomas.com

This update should neither be construed as legal advice, nor as lobbying of any sort for or against any National Labor Relations Board rules or decisions.