By Nicholas Gleichman
In its analysis, the National Labor Relations Board restructured its standard for evaluating when to assert jurisdiction over colleges and universities holding themselves out as religious institutions. See N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). Additionally, the Board considered the level of control that faculty members need to exert before being exempted from protection under the act as managerial employees. See N.L.R.B. v. Yeshiva University, 444 U.S. 672 (1980). In a 3-2 decision, the Board majority developed new frameworks responsive to the concerns raised by union amici. On the Catholic Bishop religious exemption, the Board will now decline jurisdiction only if the school “holds itself out” “(1) as “providing a religious educational environment”, and (2) that “the petitioned-for faculty members perform a specific role in creating or maintaining the school’s religious educational environment”. 361 N.L.R.B. No. 157 at 5. The Board majority found that it could assert jurisdiction in PLU because the faculty played no specific role in creating or maintaining the religious educational environment. Ibid. On the Yeshiva managerial exclusion, the Board adopted a framework that asks whether faculty “actually control or make effective recommendations” in five areas: “academic programs”, “enrollment management”, “finances”, “academic policies”, and “personnel policies and decisions”. Id. at 20. Although two Board members disagreed with aspects of the Board majority’s new approach, all five Board members agreed that the PLU contingent faculty members are not managerial employees. Id. at 28.