From Aaron Nisenson, AAUP Senior Counsel

Dear Colleague:

As you may have heard, there were three major developments from the National Labor Relations Board late last semester that positively affect the faculty’s ability to organize unions. In December the NLRB published decisions expanding the organizing rights of faculty members and allowing the use of employers’ email systems for union organizing, and issued new rules for union elections. I’m writing today to give you as an AAUP member information about these developments and their significance.

The NLRB

The National Labor Relations Board, or NLRB, is an independent federal agency created by Congress in 1935 to administer the National Labor Relations Act (NLRA), the primary law governing relations between unions and employers in the private sector. The act guarantees the right of private sector employees to organize and to bargain collectively with their employers, and to engage in other protected concerted activity with or without a union, or to refrain from all such activity. (The unionization rights of public-sector faculty members are governed by state, and sometimes local, law.) In recent years, however, the courts and the NLRB have defined most tenure-line faculty at private institutions as “managerial” employees who were not necessarily entitled to the protections of the act, and they have also exempted faculty at religious institutions from the act’s protections.

Organizing Rights of Private-sector Faculty

In Pacific Lutheran University, the NLRB modified the standards in two key tests used to determine the eligibility of faculty members at private-sector higher education institutions to unionize under the NLRA.

First, it addressed whether certain institutions and their faculty members are exempted from the NLRA due to their religious activities. The board ruled that in order to qualify for a religious exemption, the university must both hold itself out as “providing a religious educational environment” and also hold out the faculty members seeking to unionize as “performing a specific role in creating or maintaining the school’s religious educational environment.” The board found that the faculty must be “held out as performing a specific religious function,” such as integrating the institution’s religious teachings into coursework or engaging in religious indoctrination (emphasis in original). This would not be satisfied by general statements that faculty must support religious goals. This new standard should expand the number of faculty who have the legally protected right to unionize at private-sector religious institutions.

Second, the board created a new standard for determining whether faculty members are managers and thus are excluded from the protection of the act. Under the new standard, the board will “examine the faculty’s participation in the following areas of decision making: academic programs, enrollment management, finances, academic policy, and personnel policies and decisions,” giving greater weight to the first three areas. The board emphasized that to be found managers, faculty must in fact have actual control or make effective recommendations over policy areas, rather than mere “paper authority.” This new standard should simplify the determination of whether faculty are managerial employees and ultimately expand the number of private-sector faculty members who have the legally protected right to unionize.

For a more detailed discussion of this case, including the amicus brief submitted by the AAUP, see http://www.aaup.org/news/nlrb-decision-strengthens-organizing-rights-private-sector-faculty-members.

Use of Email for Union Organizing

In Purple Communications, the NLRB significantly expanded the right of employees at private-sector institutions to use their employers’ e-mail systems for union organizing and other activities. The board ruled that employees who are given access to their employer’s e-mail system for business purposes must also be allowed to use that system on non-working time to engage in a wide range of protected communications, including union support and comments critical of the employer’s employment-related policies and management decisions.

More information is at http://www.aaup.org/news/expanded-right-use-e-mail-union-organizing.

Election Rules

Finally, in December the NLRB issued revisions to union election rules that should vastly simplify and expedite the election process. Previously, the results of elections could be tied up for years in pointless litigation, delaying the results of a democratic process, a situation that would be intolerable in any other context. Under the new rules, the parties may file documents electronically; the time frames for identifying issues, providing documents, and making arguments are shortened; and the number of issues that can be litigated prior to holding an election are reduced. Cumulatively, these changes will likely reduce the time from the filing of a representation petition to the holding of an election to between ten and twenty days.

The new election rules also require that employers provide the union with personal e-mail addresses and phone numbers for employees. This is particularly important for reaching out to contingent faculty, who often perform most of their work off campus.

I hope you find this information helpful. Please let me know if you have any questions or comments.

Best wishes,
Aaron Nisenson
AAUP Senior Counsel

Additional Information on this can be found in a February article from Labor Notes- a progressive online labor magazine Private Sector Faculty Get Green Light to Organize