NLRB: Faculty at religious universities have right to unionize

Faculty members at religious colleges and universities have the right to unionize if they aren’t responsible for creating or maintaining the religious educational environment, according a decision from the National Labor Relations Board. 

The board said religious colleges of universities must show that faculty members perform a religious function in order to claim exemption from employee rights to unionize. In this case, Pacific Lutheran University in Tacoma, Wash., a religious school, failed to prove its teachers perform religious functions. 

Brian Hayes, a shareholder in the D.C. office of Ogletree Deakins, said NLRB's decision treads too close to some constitutional boundaries.

"The First Amendment prohibits the government under the free exercise clause from becoming enmeshed in religious matters," he said. "[The decision] injects the government too much in determining or making judgements about the religious character of an institution." 

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In its ruling Friday, the NLRB also granted contingent faculty members of private colleges and universities the right to unionize. 

Siding with Service Employees International Union (SEIU) Local 925, which filed a petition to represent all non-tenure track employees at Pacific Lutheran University, the board rejected the university’s claims that its employees are considered managerial staff and therefore not eligible to bargain collectively.

The decision revises the framework of determining the managerial status of university faculty under NLRB v. Yeshiva University, a 1980 decision that keeps tenured faculty members at private colleges and universities from unionizing. 

But the board said faculty participation in making decisions regarding academic programs, enrollment management policies, finances, academic policies and personnel policies should be used to determine if faculty members have managerial status. The standards could be used in the future to argue that certain tenured faculty have the right to unionize. 

The SEIU called the board’s decision, which recognized the increasing “corporatization” of private colleges and universities, a victory for faculty and students. 

“Today, institutions of higher learning look increasingly like big businesses because corporate boards and administrations have marginalized the most important job on campus — teaching,” SEIU International President Mary Kay Henry said in a statement. “We welcome the NLRB ruling as a step towards justice for faculty and the students they teach.”