New Board Decision Could Mean Bargaining Rights for University Faculty

By Michael Poupore

In December of 2014, the NLRB upheld union rights for a group of full-time contingent faculty members at Pacific Lutheran University in Tacoma, Washington. Pac. Lutheran Univ., 361 N.L.R.B. No. 157 (Dec. 16, 2014).  The decision departed from the general rule that faculty at private universities are not protected under the National Labor Relations Act because they constitute managerial employees. Alexandra Bradbury, At Last, Private Sector Faculty Get Green Light to Unionize, Labor Notes (Feb. 11, 2015),  The ban on faculty unionization dates back to N.L.R.B. v. Yesheva University, a contentious 1980 Supreme Court decision which held that faculty were managerial employees because of their role in administrative decision making, and thus could not unionize.  N.L.R.B. v. Yeshiva Univ., 444 U.S. 672, 688-89 (1980) (5-4 decision).  In its December decision, the Board established a new framework for testing managerial status, and it held that because Pacific Lutheran’s faculty did not exercise sufficient control over academic, enrollment, and financial decisions, they did not qualify as managerial employees. Pac., 361 N.L.R.B. at 25.  This decision could open up collective bargaining power to faculty who have been waiting since 1980 for the right to unionize.