In an apparent nod to organized labor, the National Labor Relations Board announced this month that it will accept amicus briefs on the issue of whether university faculty members are employees who can organize a union or managerial employees who fall outside the protection of the National Labor Relations Act.
Executive Summary: In an apparent nod to organized labor, the National Labor Relations Board announced this month that it will accept amicus briefs on the issue of whether university faculty members are employees who can organize a union or managerial employees who fall outside the protection of the National Labor Relations Act.
Background
A NLRB regional director ruled nearly five years ago that Point Park University did not prove that its faculty members were managerial employees. In November 2007 the Board granted the University's request to review that decision. There had been no further action in the case, until the Board's May 22 invitation to file briefs.
This issue finds its origins in a 1980 U.S. Supreme Court decision, NLRB v. Yeshiva University. In Yeshiva, the Court ruled for the first time that a university's faculty effectively operated the institution and thus were managerial employees under the Act. The Court pointed out that the faculty's authority over academic matters was "absolute." It determined what courses would be offered, when they would be scheduled, and to whom they would be taught. Even though the university had a president and a board of trustees, the Court found that the overall authority of faculty members in the operation of the university rendered them managerial employees.
Point Park University
In October 2003, the union petitioned the NLRB to represent faculty members at Point Park University in Pittsburgh. The University sought to dismiss the petition, arguing under Yeshiva that its faculty members were managerial employees. After a hearing on the matter, the Board's regional director in Pittsburgh disagreed, and the union won its May 2004 representation election. In February 2005 the Board affirmed the regional director's decision in a summary four-page decision. But in August 2006 the U.S. Court of Appeals for the D.C. Circuit vacated that decision and remanded the case to the Board for a fuller analysis under Yeshiva.
The D.C. Circuit held that Yeshiva requires a detailed analysis of the faculty members' degree of control over academic matters, including "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." Furthermore, the court held that the Board's analysis must flesh out which factors are significant, which are less so, and why. The court found that neither the regional director nor the Board completed this analysis.
Following the court's remand, the regional director issued a supplemental decision in July 2007 again finding that the University's faculty members were not managerial employees. The University petitioned the Board for review of that decision, and the petition was granted in November 2007.
Nearly five years have gone by, and the Board has not issued a ruling on review. However, in a May 22, 2012 notice to the public, a divided Board invited amicus briefs on the issue. Republican Board Members Hayes and Flynn dissented to the notice. They pointed out that interested parties have had almost five years to submit briefs, and accepting more briefs will only further delay a decision in a case that has languished long enough.
The Bottom Line:
A number of associations representing colleges and universities filed amicus briefs after the Board granted the petition for review in November 2007. You know who did not file amicus briefs? Unions. Given the current makeup of the Board, it is not unreasonable to read the Board's May 22 notice as a signal to organized labor that now it can have its turn to make its case on this issue. We will continue to follow Point Park University as it goes before the Board for decision.
This Alert was prepared by Brian Kurtz, bkurtz@fordharrison.com, and Kathryn Pascover, kpascover@fordharrison.com, who are members of Ford & Harrison's Higher Education Practice Group. If you have questions about the Point Park case or any other higher education issues, please feel free to contact Brian or Kathryn directly or the Ford & Harrison attorney with whom you usually work.