In a significant victory for their client, Ford & Harrison attorneys Arnold Perl and Kathryn Pascover recently convinced the D.C. Circuit Court of Appeals that the National Labor Relations Board (NLRB) failed to adequately explain its determination that faculty members of an academic institution are covered by the National Labor Relations Act (NLRA).
In a significant victory for their client, Ford & Harrison attorneys Arnold Perl and Kathryn Pascover recently convinced the D.C. Circuit Court of Appeals that the National Labor Relations Board (NLRB) failed to adequately explain its determination that faculty members of an academic institution are covered by the National Labor Relations Act (NLRA).
See Point Park University v. NLRB (August 1, 2006). Accordingly, the court remanded the case to the Board so that it can either explain its decision as required by applicable law or reconsider its determination.
In the trial of this case, which was handled by another law firm, the NLRB Regional Director determined that faculty members of Point Park University are professional employees, entitled to unionization under the NLRA, rather than managerial employees, who would not be entitled to unionize under the Act. The Board affirmed the Regional Director’s Decision and Direction of Election and denied the University’s Petition for Review. The D.C. Circuit remanded, holding that the Board failed to adequately explain why the faculty’s role at the University is not managerial and follow the requirements under applicable U.S. Supreme Court and D.C. Circuit law.
The U.S. Supreme Court first held that faculty members at colleges and universities may be managerial employees exempt from the NLRA’s coverage in
NLRB v. Yeshiva University (1980). In
Yeshiva, the Court held that the Board must consider the faculty’s authority in academic and non-academic matters such as: curriculum, course schedules, teaching methods, grading policies, matriculation standards, admission standards, size of the student body, tuition to be charged, and location of the school. Subsequently, in
LeMoyne Owen College (2004), a case also handled by Mr. Perl and Ms. Pascover, the D.C. Circuit held that the Board must, when applying the
Yeshiva test to varied factual situations, explain “which factors are significant and which less so, and why…” In
Point Park, the D.C. Circuit noted that this determination requires an “exacting analysis” of the faculty member’s duties in the context of the academic institution in question.
Here, the Board adopted the Regional Director’s decision with limited discussion. The Regional Director’s decision was 108 pages long with 59 pages of factual findings and 16 pages of legal analysis that identified and relied upon a host of factors, but failed to identify which of the Yeshiva factors were significant and which were not. The D.C. Circuit noted that some of the findings “suggest that the faculty are managerial employees, while others suggest they are not.”
The court held that the Board’s determination was not entitled to deference because the Board failed to adequately explain its reasoning, noting that the court cannot “fill in critical gaps in the Board’s reasoning.” Accordingly, D.C. Circuit remanded the case for further proceedings consistent with the decision.
Employers' Bottom Line:
The court's decision appropriately demands that the Board identify which factors it considered significant, which less so, and why in its application of the multi-factor test articulated in Yeshiva and upon which the Board relied in determining that Point Park's faculty members are covered by the NRLA. A fact-specific decision is essential in ensuring that the Board has analyzed the factors and not simply reached a summary conclusion.
If you have any questions regarding this decision or labor related issues in general, please contact the Ford & Harrison attorney with whom you usually work or Mr. Perl,
aperl@fordharrison.com, 901-291-1541, or Ms. Pascover,
kpascover@fordharrison.com, 901-291-1528.