National Labor Relations Board Clarifies Faculty’s Labor Status in Private Colleges

The end of 2014 was an interesting and important moment for faculty at private colleges.  Since the Yeshiva supreme court ruling in 1980, faculty at private colleges have been considered “management.”  New rules by the NLRB (National Labor Relations Board) bring significantly more clarity to what this means, and when it may apply.  Importantly, the new NLRB communication begins to clarify the difference between institutions that have effective shared governance (i.e., faculty are “managers”) and institutions that do not.  AAUP states the following:

The board explained that under the new standard, “where a party asserts that university faculty are managerial employees, we 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.” The board will give greater weight to the first three areas, as these are “areas of policy making that affect the university as whole.” The board “will then determine, in the context of the university’s decision making structure and the nature of the faculty’s employment relationship with the university, whether the faculty actually control or make effective recommendation over those areas. If they do, we will find that they are managerial employees and, therefore, excluded from the Act’s protections.”

The board emphasized that to be found managers, faculty must in fact have actual control or make effective recommendations over policy areas. This requires that “the party asserting managerial status must prove actual—rather than mere paper—authority. . . . A faculty handbook may state that the faculty has authority over or responsibility for a particular decision-making area, but it must be demonstrated that the faculty exercises such authority in fact.” Proof requires “specific evidence or testimony regarding the nature and number of faculty decisions or recommendations in a particular decision making area, and the subsequent review of those decisions or recommendations, if any, by the university administration prior to implementation, rather than mere conclusory assertions that decisions or recommendations are generally followed.” Further, the board used strong language in defining “effective” as meaning that “recommendations must almost always be followed by the administration” or “routinely become operative without independent review by the administration.” (Source: AAUP)

For more details, click here to read AAUP’s press release on this matter.