The National Labor Relations Board is seeking amicus briefs to help it decide whether full-time, non-tenure-eligible contingent faculty members at Pacific Lutheran University (PLU) are excluded from the National Labor Relations Act’s (NLRA) coverage as “managerial employees.”

The issue arose when the NLRB Region 19 regional director granted an SEIU election petition seeking to represent PLU’s contingent faculty. PLU challenged the regional director’s decision before the Board, contending that its contingent faculty have a right equal to that of any tenured professor to vote on all issues in the faculty handbook, and are therefore “managers” who fall outside the SEIU’s reach.

PLU relies upon the Supreme Court’s nearly 35-year-old precedent in NLRB v. Yeshiva University, which has long been a shield for universities seeking to avoid faculty unionization. In Yeshiva, the Court opined that tenured and tenure-track full-time faculty were managerial employees because they “in effect, substantially and pervasively operate the enterprise.” The Court noted in particular that the Yeshiva faculty exercised absolute authority in academic matters; through meetings and committees, determined curriculum, grading systems, admissions standards, and course schedules; and made recommendations to university administration regarding faculty hiring, tenure, sabbaticals, termination and promotion, most of which were implemented. The effect of Yeshiva on the ability of faculty to unionize cannot be ignored.

In what may be an indicator that the NLRB is hoping to revisit Yeshiva (and force the federal courts to do so as well), it is seeking guidance before it decides the fate of the SEIU’s election petition at PLU. Among the Board’s questions to amici are:

• May the Board adopt a distinct approach for determining managerial status in an academic context?

• Since Yeshiva, have there been changes to customary university operations, in particular, to how universities make decisions that the Board should consider in analyzing faculty managerial status?

• Can the Board draw inferences about certain job classifications within a university faculty depending on the faculty’s structure and practices?

This one is worth watching, especially since it follows on the heels of the NLRB’s invitation for amicus briefs in the similar Point Park University matter (briefs have already been submitted in that matter, but a decision is pending). We are monitoring both dockets and will keep you updated.