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Regional Director Issues First Post-Pacific Lutheran Decision

It did not take long for the fallout from the NLRB’s Pacific Lutheran University decision to begin. That decision, issued on December 16, 2014, announced new standards for (1) exercise of NLRB jurisdiction over religiously-affiliated colleges and universities; and (2) determining the managerial status of faculty members under the Supreme Court’s 1980 decision in Yeshiva University. In the first decision among a number of cases remanded by the Board for consideration in light of Pacific Lutheran, the NLRB Regional Director in Seattle ruled on March 3 that the Board had jurisdiction over Seattle University and that full-time contingent faculty members were not managerial employees. He ordered that the ballots in the case, which had been impounded pending the Board review, be opened and counted.

The Regional Director found, based on the record already made in the case, that the university held itself out to the public as a Jesuit Roman Catholic institution providing a religious educational environment, thus satisfying the first part of the new Pacific Lutheran test. As in Pacific Lutheran, however, the Regional Director held that the university did not hold out the petitioned-for faculty members as performing a religious function. A general statement in the faculty handbook that “each member of the faculty is expected to show respect for the religious dimension of human life” was found insufficient, where there was not evidence that faculty members were required to serve as religious advisors to students, propagate the tenets of the Society of Jesus, engage in religious training, or conform to the tenets of Catholicism in their job duties.

In determining that the full time contingent faculty members were not managerial employees, the Regional Director found that they lacked authority to actually control or effectively recommend decisions affecting university policy in the three primary or two secondary areas of authority identified by the Board in Pacific Lutheran. He found that that the Academic Assembly exercised authority in the primary area of academic programs, but had no say in enrollment management and only a minimal authority over finances—the other two primary areas. Most importantly, tenured faculty made up a majority of the Assembly, and no contingent faculty served on the Program Review Committee, which reviewed all proposals for curricular change, and there was no evidence that they had a significant role on other committees.

The result in Seattle University is not surprising, given the stringent test announced in Pacific Lutheran for excluding religiously-affiliated schools from Board jurisdiction, and the limited role that contingent faculty have in governance of most colleges and universities. Further guidance can be expected as Regional Directors decide a number of other cases remanded by the Board for consideration under the Pacific Lutheran standards, including at least one case involving the managerial status of tenured faculty.

 

© 2019 Proskauer Rose LLP.

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About this Author

Edward A. Brill, Labor & Employment Attorney, Proskauer Law Firm
Partner

Edward A. Brill is a partner in the Labor & Employment Law Department.

He is the former co-head of the firm’s Appellate Practice Group, which was honored in 2011 by Law 360 as one of the five nationwide “Appellate Groups of the Year,” and by the National Law Journal with a spot on its “Appellate Hot List.”

Ed devotes a significant amount of time to representing educational institutions, including Columbia University, New York University, Yale University and Polytechnic Institute. He has served as lead...

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Paul Salvatore, Proskauer, New York, Real Estate Lawyer, Construction
Partner

Paul Salvatore is a member of Proskauer’s Executive Committee and former co-chair of its global Labor & Employment Law Department, named by The American Lawyer as one of the top U.S. practices and recipient of the Chambers USA 2012 Award for Excellence. He is widely recognized as a leading U.S. labor and employment lawyer in such publications as Chambers (Band 1), US Legal 500 (Leading Lawyer) and Superlawyers. In 2010, The National Law Journal selected Paul as one of "The Decade's Most Influential Lawyers" – one of only three in the labor and employment law field. He is a member of the College of Labor and Employment Lawyers.

Paul negotiates major collective bargaining agreements in several industries, including real estate and construction. In 2012, he represented The Related Group in the negotiation, with 18 New York City construction unions, of a landmark project labor agreement (PLA) for Hudson Yards on Manhattan’s West Side.  

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