7Orkshop #Urrent

7ORKSHOP$ #URRENT,ABOR2ELATIONS)SSUESIN(IGHER%DUCATION

7ILLIAM!(ERBERT %SQ 0ANEL#HAIR $ISTINGUISHED,ECTURER (UNTER#OLLEGE %XECUTIVE$IRECTOR .ATIONAL#ENTERFORTHE3TUDYOF#OLLECTIVE"ARGAININGIN(IGHER%DUCATION .9#

-AIREAD%#ONNOR %SQ ,AW/FFICESOF-AIREAD%#ONNOR 0,,# 3YRACUSE

0ETER$#ONRAD %SQ 0ROSKAUER2OSE,,0 .9#

University Petitions Filed/Election Results1

1. CASES PENDING AT THE REGIONAL OFFICE LEVEL

A. NOT BEING PROCESSED BY THE NLRB

CORNELL UNIVERSITY Private Election Procedure Negotiated by Parties Case Status: Open

On March 6, 2017, Graduate Students United, CGSU-AFT notified Cornell of its intent to file a petition. An election was held by manual ballot on March 27 and 28. As of March 29, the second of two days of voting, the ballot count was inconclusive: 856 votes in favor of the Union, 919 votes against representation, and 81 challenged ballots. The Union’s remains unresolved. Since the election, CGSU and the University have been in negotiations for a new agreement that would establish ground rules in that the Union wishes to proceed to a new election. CGSU recently presented the possibility of a new election to its membership in a referendum with three options: file objections to the original election with the arbitrator, agree to language amending the election agreement, or accept the results of the election hled last Spring. Voting on the referendum began on October 16, 2017. A decision by CGSU on how it will proceed is anticipated in January 2018.

B. BEING PROCESSED BY THE NLRB

UNIVERSITY OF PENNSYLVANIA Case No. 04-RC-199609 Case Status: Open

GET-UP UPenn filed a petition on May 30, 2017. Penn is represented by Ballard Spahr; the Union is represented by Willig, Williams & Davidson and Livingston Adler Pulda Meiklejohn & Kelly. A hearing was held in June 2017. Post-hearing briefs were submitted on July 14, and on December 19 a Decision and Direction of Election was issued by the Board scheduling a manual ballot election at a date and time to be determined. The bargaining unit was expanded by the Regional Director under the Board’s recent decision in PCC Structurals (overruling Specialty Healthcare) to include grad students in several schools at Penn who were excluded by the Union.

HARVARD UNIVERSITY Case No. 01-RC-186442 Case Status: Open

A petition was filed by Harvard Grad Students Union, HGSU-UAW, on October 18, 2016. Harvard is represented Morgan, Brown & Joy; the Union is represented by Segal Roitman and Livingston Adler Pulda Meiklejohn & Kelly. The vote was by manual ballot on November 16 and 17, 2016, pursuant to a Stipulated Election Agreement. Employee status was not challenged

1 Current as of Dec. 29, 2017. The panelists acknowledge with gratitude the work of Paul Salvatore and Steven J. Porzio, Esqs., Prokauer Rose LLP, for their work in compiling this summary. and litigated. All students providing instructional services at Harvard, including graduate and undergraduate students, were eligible to vote. The total number of eligible voters was 3,556. The vote was 1,272 for the union and 1,456 against; 314 ballots were challenged. An objections and challenges hearing was held beginning on February 22, 2017. On April 19, 2017, a hearing officer’s report, adopted by the Regional Director, was issued on the objections and challenged ballots, finding that Harvard had not complied with the voter list requirements and a new election was ordered in the event that upon issuance of a final tally of ballots the union did not receive a majority of the valid votes counted. Harvard appealed on May 3, 2017. On December 12, 2017 the Board issued a decision denying Harvard’s Request for Review of the Regional Director’s Decision and Direction of a Second Election. The case is now being processed in the Regional Office.

2. CASES PENDING BEFORE THE BOARD

YALE UNIVERSITY Case No. 01-RC-183014, et al. Case Status: Open

Unite-Here, Local 33, filed 10 representation petitions for departmental “microunits” on August 29, 2016. Yale is represented by Proskauer; the Union is represented by McCracken, Stemerman & Holsberry, and Livingston Adler Pulda Meiklejohn & Kelly. The petitoned-for teaching fellows were those providing instructional services in the following academic departments: History of Art, Mathematics, History, East Asian Languages and Literatures, Geology and Geophysics, Political Science, Physics, English, Sociology and Comparative Literature (which was later withdrawn). A 17-day hearing began on September 12, in which the principal issue litigated was the apporiateness of the 10 individual departmental units; Yale was not permitted to litigate fully the empoolye status of its teaching fellows. Four months later, the Regional Director directed 9 separate elections by manual ballot. (UNITE HERE did not request a mail ballot.) The elections were held on February 23, 2017. The Union won in 6 departments, and lst in 1 department (Physics); the outcomes in East Asian Languages and Literatures and Political Science were inconclusive due to determinative challenged ballots. Prior to a hearing to resolve the challenges in those two departments, UNITE HERE withdrew its challenges, resulting in additional wins for the union. A request for review is pending regarding the micro-unit issue; however in light of the NLRB’s December 15 decision in PCC Structurals, Inc., which overturned Specialty Healthcare, it is presently uncertain how the NLRB will proceed on that request.

BOSTON COLLEGE Case No. 01-RC-194148 Case Status: Open

A petition was filed by Boston College Graduate Employee Union – UAW (BCGEU-UAW) on March 3, 2017. Boston College is represented by Morgan, Brown & Joy, and the Union is represented by Livingston Adler Pulda Meiklejohn & Kelly. A Decision and Direction of Election was issued by the Regional Director on May 17, holding that the Boston College graduate students were entitlteld to an election on representation despite Boston College’s religious affiliation. However, given that the spring term had concluded by the time the decision

2 was issued, an election was deferred to September 12 and 13. In that election, 270 votes were cast for the Union, 224 votes against the Union, and 16 ballots were challenged. A Certification of Representative was issued on September 25. A request for review was filed with the Board and is still pending. On October 13, a Motion to Intervene and for Recusal by Board Member Kaplan was filed. The University filed an opposition on October 25, which has not yet been decided.

UNIVERSITY OF CHICAGO Case No. 13-RC-198325 Case Status: Open

On May 8, 2017, a petition was filed by Graduate Students United (GSU), AFT-AAUP. The University of Chicago is represented by Proskauer. The Union is represented by Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich. A hearing was held from May 22 to June 2. The parties agreed during the hearing to a manual ballot election during the fall quarter; initially the union proposed a mail ballot during the summer session. A Decision and Direction of Election was issued by the Regional Director on August 8, finding that the University of Chicago graduate students were employees as defined in Columbia University. The University filed a request for review on September 22. On October 12, a Motion to Intervene and for Recusal by Board Member Kaplan was filed. On October 19, the ballots were counted. The Union won, 1103 to 479, with 149 challenged ballots. A Certification of Representative was issued on October 27, 2017.

3. CASES IN WHICH NO APPEAL WAS TAKEN OR APPEAL WAS DENIED AND COLLECTIVE BARGAINING HAS COMMENCED

A. SCHOOLS REFUSING TO BARGAIN

THE TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK Case No. 02-RC-143012 Case Status: Closed

On December 17, 2014, the Graduate Students of Columbia (GWC) with the UAW filed a petition. Columbia is represented by Proskauer, and the Union is represented by Livingston Adler Pulda Meiklejohn & Kelly. Initially, the students were found not to be employees, and on February 6, 2015, the petition was dismissed. The Union appealed, and on March 13, 2015, the case was remanded for a hearing. An election was later directed and held on December 7 and 8, 2016. All student employees (graduate and undergraduate) who provided instructional services were eligible to vote, including those who had provided such services within the preceding year. A total of 4,256 students were determined to be eligible. The votes were counted on December 9. The Union won 1,602 to 623, with 647 cjhallenged ballots. On December 16, 2016, Columbia filed objections to conduct affecting the outcome of the election, and requested that the results be vacated and that a new election be held. The hearing officer recommended that the objections be overruled. The University filed exceptions to the hearing officer’s report. On December 18, 2017 the NLRB issued a its decision denying the University’s request for review and certified the unit.

3 LOYOLA UNIVERSITY OF CHICAGO Case No. 13-RC-189548 Case Status: Closed on 2/17/2017

A petition was filed on December 9, 2016 by SEIU. Loyola was represented by Franczek Radelet, and the union was represented by a legal representative from SEIU. An election was ordered for all full-time and regular part-time Graduate Assistants (PhD and Masters students) on the main campus, approximately 210 eligible voters in all. The vote was held by mail ballot, which were opened and counted on February 8, 2017. The union won by 71 to 49. There were no challenged ballots. The NLRB issued a decision that reversing the Regional Director’s finding with respect to the Department of Theology on the ground that it had a specific role in maintaining the University’s religious educational environment, applying Pacific Lutheran. However, because there were only 14 eligible voters in the Theology Department, the petitioner’s certification was unaffected. Following certification, Loyola filed a request for review of the Regional Director’s Decision and Direction Election, which was denied on July 6, 2017. Despite some initial confusion about its position, Loyola has refused to bargain, preserving its rights to challenge the certification in the Court of Appeals.

B. SCHOOLS BARGAINING WITH UNION

AMERICAN UNIVERSITY Case No. 05-RC-193768 Case Status: Closed 4/19/2017

A petition was filed by SEIU on February 24, 2017. No hearing was held. American University was represented by Kollman & Saucier. An election was conducted by mail ballot; the ballots were counted on April 10, 2017. Out of 761 eligible voters, only 252 votes were cast. The Union prevailed: 212 to 40, with 4 challenged ballots. A Certification of Representative was issued on April 19.

BRANDEIS UNIVERSITY Case No. 01-RC-196695 Case Status: Closed 5/10/2017

A petition was filed on April 12, 2017 by SEIU. Brandeis was represented by Morgan, Brown & Joy, and the Union was represented by Pyle Rome Ehrenberg. Only PhD students were eligible to vote; Masters students, all graduate students in the Rabb School of Continuing Studies, and graduate students receiving “University Prize Instructorships” were ineligible to vote. The election was held on May 2, by manual ballot. There were 219 eligible voters and 122 ballots were cast. The Union won 88 to 34, with 48 challenged ballots. A Certification of Representative was issued on May 10. Bargaining has commenced.

4 TRUSTEES OF TUFTS UNIVERSITY Case No. 01-RC-197023 Case Status: Closed 5/26/2017

On April 18, 2017 a petition was filed at Tufts University by SEIU. Tufts was represented by Morgan, Brown & Joy; the Union was represented by Pyle Rome Ehrenberg. No hearing was held. Voting was by mail and ballots were counted on May 18, 2017. There were 281 eligible voters. The Union won 129 to 84, with 8 challenged ballots. A Certification of Representative was issued on May 26, 2017. The University has stated that it is willing to negotiate with the union.

THE NEW SCHOOL Case No. 02-RC-143009 Case Status: Closed on 7/21/2017

The petition was filed on December 17, 2014 by Students at the New School – SENS UAW. The New School is represented by Clifton, Budd & DeMaria; the Union is represented by Livingston Adler Pulda Meiklejohn & Kelly. A hearing was held and a manual ballot election was directed. Eligible to vote were all students who provided instruction-related services or research services. The election, held on May 3 and 4, was won by the Union by a vote of 502 for representation and 2 votes against, with 89 non-determinative challenged ballots. A Certification of Representative was issued on July 28. The parties are in the process of negotiating a collective bargaining agreement.

4. CASES WHERE THE UNIVERSITY PREVAILED

DUKE UNIVERSITY Case No. 10-RC-187957 Case Status: Closed 3/7/2017

On November 10, 2016 a petition was filed at Duke University by SEIU. The Union was represented by Patterson Harkavy and Pyle Rome Ehrenberg; Duke University was represented by Proskauer. Employee status of Duke’s teaching and research assistants (in PhD programs) was litigated, as well as voter eligibility and election mechanics. The election was conducted by mail and ballots were opened and counted on February 23, 2017. All PhD students at Duke’s Durham and Beaufort campuses were eligible to vote. A one year look-back formula was used to determine eligibility. There were 2,298 eligible voters; the results of the election were 398 votes cast for representation by SEIU and 691 against; 502 ballots were challenged. Rather than proceed with a challenged ballot hearing, SEIU withdrew its petition on March 7.

5 GEORGE WASHINGTON UNIVERSITY Case No. 05-RC-188871 Case Status: Closed 5/4/2017

On November 28, 2016 a petition to represent all Resident Advisors was filed by SEIU at GWU. The University was represented by Morgan Lewis. A hearing was held in which the University challenged the RA’s employee status. The Regional Director concluded that the RAs were employees and directed an election. However, SEIU withdrew the petition prior to the scheduled election.

WASHINGTON UNIVERSITY IN ST. LOUIS CASE NO. 14-RC-206299 CASE STATUS: CLOSED 11/14/17

SEIU, Local 1 filed a petition on September 15, 2017. Wash U is represented by Proskauer; the Union is represented by George Suggs and SEIU, Local 1. The University filed a Motion to Stay the hearing on September 26, which was denied. A hearing was then held from September 27 to October 3. The University filed a request for review of the denial of its Motion to Stay, which was opposed by the Union. The Regional Director issued his Decision and Direction of Election on October 16, scheduling a vote on October 25 and 26. A request for review was filed by the University on October 16, and on October 17 a Motion to Intervene and for Recusal by Board Member Kaplan was filed. On October 24, the University’s request for review of the Regional Director’s Order denying a stay was denied by the Board. On October 26, the votes were counted; 174 ballots were cast for the Union and 216 against, with 174 challenged ballots (all but one of those challenges was asserted by the Union). On October 30, the University filed a request for review of the Decision and Direction of Election and a Renewed Motion to Stay all Proceedings on the Petition at the NLRB, which were denied as moot after the SEIU withdrew its petition on November 13.

6 HIGHER EDUCATION

Everything Passes, Everything Changes Unionization and Collective Bargaining in Higher Education

by William A. Herbert and Jacob Apkarian

William A. Herbert is ollective bargaining and tary recognition by institutions, rather executive director of the unionization in higher edu- than by legal mandate. The National National Center for the Study of Collective Bar- cation has a long history. In Labor Relations Board (NLRB) declined gaining in Higher Education 1936, Teachers Union Local jurisdiction over private nonprofit and the Professions at C5 President Charles J. Hendley criticized educational institutions for many years. Hunter College, City University of New York. a speech by Teachers College Dean Wil- In the public sector, a long and largely liam F. Russell for his opposition to the unstudied history of union organizing Jacob Apkarian is an unionization of college professors and led to informal agreements and some assistant professor primary and secondary teachers. The ex- written contracts without the existence in the Department of Behavioral Sciences change occurred a few months following of enabling legislation, primarily with at York College, City a campus strike by elevator operators local governments. University of New York. and porters that was supported by fac- McCarthyism in all its manifesta- ulty and students. tions in the 1940s to the early 1960s Hendley insisted that teachers had impaired associational activities on every right to form a union to improve campuses, including efforts to enforce Herbert and Apkarian in their their working conditions: “The Dean academic freedom and tenure (Schrecker portrait of unionization in higher ridicules collective bargaining by teach- 1986). Resistance to unionization in education follow the story from ers, but he and other educational ad- the academy over the years came from its earliest days to today ministrators will have to learn to adjust another source: faculty who viewed themselves to it” (Hendley 1936). collective bargaining as inconsistent with • Unionization in American universities Some of the earliest contracts on professional status and autonomy. stretches back to the 1930s. Attempts by campuses date back to the 1940s. How- For decades, private colleges and university employees attempting to organize have a complex and tangled history. ard University entered into an agreement universities have had divergent views with United Federal Workers of America, and approaches to unionization and col- • Since 2003, the percentage of the higher education workforce that is unionized has Congress of Industrial Organizations lective bargaining. For example, Cornell remained relatively constant at about 16 (CIO), in April 1946 for a bargaining University opposed a 1968 amendment percent to 18 percent. unit of nonfaculty staff, and United to New York law that made that state’s • In addition to faculty and graduate students’ Public Workers of America, Local 555, collective bargaining law applicable efforts to unionize, other groups—non–tenure track faculty, postdoctoral researchers, and CIO, negotiated agreements for teach- to nonprofit educational institutions, service workers—have attempted to organize ers at vocational schools. CIO unions claiming collective bargaining would and been met with institutional resistance and negotiated faculty contracts at Howard be disruptive and would increase costs. mixed success. University and Fisk University during Other institutions, such as New York • The results of the 2016 election will negatively the same period (Cain 2014). University and Union College, affirma- affect current campus unions and impair future efforts at unionization. Higher education collective bargain- tively supported the legislation. The bill ing in that era was the result of volun- was introduced a year after the end of a

30 PERSPECTIVES ON WORK / 2017 faculty strike at St. John’s University and bargaining agreement, according to respect to union density and collective at a time when the American Federation Current Population Survey (CPS) data bargaining on campus. One clear exam- of Teachers (AFT) had established affi li- (Hirsch and MacPherson 2017). This ple of sector differences relates to the ates on certain New York campuses. fi gure does not include faculty in the question of whether graduate students In 1970, Cornell successfully per- thirty-fi ve new collective bargaining who receive compensation for teaching suaded the NLRB to reverse itself and to units created in 2016 and other new or research have a protected right to begin to assert jurisdiction over repre- faculty units without a fi rst unionize and be represented sentation issues at nonprofi t educational contract. Figure 1 displays For decades, in collective bargaining. institutions. Cornell’s arguments were a geographic breakdown private colleges and Teaching assistants and supported by some private institutions of newly created faculty research assistants at public and opposed by others. The effect of units in 2016, based on universities have institutions in states with Cornell’s victory was to preempt the data from National Center had divergent views public sector collective bar- application of New York’s statute, a law for the Study of Collective and approaches to gaining laws have engaged more protective of employee collective Bargaining in Higher Edu- in negotiations for almost rights than the National Labor Rela- cation (Herbert 2016). unionization and 50 years. There is a general tions Act, to nonprofi t institutions. The Last year, 15.7 per- collective bargaining. recognition under those NLRB’s assertion of jurisdiction trig- cent of all workers at laws that students who gered many organizing efforts by faculty, colleges and universities receive payment for teaching or research administrative staff, and blue-collar were covered by a collective bargain- are a part of academic labor and are en- workers at private institutions across the ing agreement, according to CPS data titled to bargain over their compensation country. (Hirsch and MacPherson, 2017). This and benefi ts. A procedural framework for compares to only 11.9 percent among all A 2012 National Center analysis unionization and collective bargaining U.S. workers, according to Hirsch and of survey data found more than 64,000 on public college campuses was not MacPherson, or 12 percent, according graduate student employees in bargain- established until passage of state public to the U.S. Bureau of Labor Statistics ing units at public institutions (Berry sector collective bargaining laws in the (2017). and Savarese 2012). Since then, new 1960s and 1970s. The enactment of de The overall rate of workers covered units were established at Portland State jure mechanisms led to unionization and by collective bargaining agreements in University, the University of Connecti- collective bargaining agreements on pub- higher education has remained relatively cut, and Montana State University. lic sector campuses involving the trades stable over the past decade, although The size of the graduate student and buildings and grounds workers, as there appears to be a slight decrease employee bargaining unit at Oregon well as clerical, food service, public safe- in coverage during the past few years. State University doubled through the ty, and academic labor. The workforce Figure 2 displays the percentage of all accretion of additional graduate em- covered, the composition of the bargain- workers in higher education covered by ployees. In Minnesota, where state law ing units, and the mandatory subjects of collective bargaining agreements going defi nes a separate graduate assistant unit negotiations vary from state to state. back to 2003, using CPS data. at the University of Minnesota, 62 percent of the employees who participated Current Collective Bargaining Graduate Assistants and Postdocs Figures in Higher Education in a 2012 election voted against union Differences in the interpretation and representation. In 2016, 20.3 percent of postsecondary scope of the NLRA and public sector A related recent development teachers were covered by a collective laws have resulted in disparities with in higher education is collective

HIGHER EDUCATION 31 bargaining for post-doctoral researchers. precedent and concluded that Columbia Between September 1, 2016, and At least seven institutions have negotiat- University’s graduate and undergradu- May 31, 2017, unions have been certi- ed contracts applicable to post-doctoral ate teaching and research assistants are fi ed following NLRB elections to rep- scholars. statutory employees under the NLRA resent new student assistant bargaining In the private sector, the employee and therefore entitled to the full rights of units, with an aggregate of more than status of teaching and research assis- association guaranteed by that law. 5,600 employees, at American Uni- tants under the NLRA has been subject The NLRB’s 2016 decision led to versity, Brandeis University, Columbia to NLRB oscillations over the decades. a new wave of unionization efforts at University, Loyola University Chicago, Unionization efforts by these student private colleges and universities. Tufts University, and Yale University. employees have been strongly opposed Graduate assistants at Yale successfully Representation is also being pursued by by many private institutions. argued before an NLRB regional direc- student employees at the University of After years of confl ict, New tor that they should be permitted to Chicago, the University of Pennsylvania, York University in 2014 recognized a unionize by department, an effort that Boston College, Cornell University, Har- graduate assistant union following a resulted in eight newly certifi ed collect- vard University, and The New School. non-NLRB election, which led to the ive bargaining “micro-units.” Figure 3 Institutional opposition to student successful negotiation of a contract. In compares the electoral outcomes at Yale assistant unionization by some private August 2016, the NLRB reversed prior by department. colleges continues. At Duke University, the preliminary tally of ballots of participating graduate assistants showed that Figure 1. New faculty collective bargaining units in 2016. 63 percent voted against representation, an outcome that led to the withdrawal of the petition. Columbia University, Yale University, and Loyola University Chicago have fi led challenges to the certifi cations at their institutions, while American University, Brandeis University, and Tufts University have not. It is probable that one or more of the challenges will lead to a future swing of the NLRB pendulum concerning the statutory status of graduate assistants once the Senate confi rms nominations to fi ll vacancies on the NLRB Board.

Faculty Unionization

The Y factor: Yeshiva Another major difference in higher education labor relations between the public and private sectors concerns the right of tenure-track faculty to unionize. Four Figure 2. Percentages of workforce covered by collective bargaining agreement in higher education. decades ago, the Supreme Court ruled that faculty at Yeshiva University were 25% managerial personnel and not entitled

20% to the rights under the NLRA because of their role in making mission-related 15% decisions through shared governance

10% (NLRB v. Yeshiva University 1980). In the wake of the Yeshiva decision, the 5% unionization of tenure-track faculty at private institutions diminished consid- 0% erably.

2003 — 2004 — 2005 — 2006 — 2007 — 2008 — 2009 — 2010 — 2011 — 2012 — 2013 — 2014 — 2015 — 2016 — A 2012 National Center survey found a total of only 77 private sector

32 PERSPECTIVES ON WORK / 2017 faculty bargaining units, and those with Figure 3. Percentage of voting for and against unionization at Yale University based on NLRB data. tenure-track faculty all predated the Yeshiva decision (Berry and Savarese 0% 20% 40% 60% 80% 100% 2012). Although the NLRB in 2014 History of Art increased the evidentiary burden for History demonstrating managerial status of English faculty, there has not been an upsurge East Asian Languages in unionization efforts by tenure-track For Mathematics Against faculty at private institutions. Sociology In 2016, only four petitions were pending at the NLRB seeking to repre- Political Science sent tenure-track faculty. One resulted in Geology and Geophysics the certifi cation of a collective bargaining Physics representative, and three were dismissed for different reasons (Herbert 2016). In May 2017, a unanimous NLRB affi rmed the dismissal of a petition 2016). One of the oldest of those cases, aggregate of 1,546 faculty members. involving Marywood University, fi nding fi led in October 2010, involves adjunct This compares to nine new tenure-track the tenure-track faculty to be managerial faculty at Manhattan College. public sector faculty units, with a com- personnel. Efforts by some institutions bined total of 2,060 faculty members. Substantial growth in adjunct to expand the “Y Factor” to include The increase in public sector faculty unionization adjunct faculty involved in committee bargaining units represented only a 2.1 The largest area of recent union density work have been unsuccessful. percent increase over the number of such growth in higher education concerns New public collective bargaining units in 2012. non–tenure track faculty at private and units with tenure-track faculty continue public institutions (Herbert 2016). This to grow. The past few years have seen Unit Composition: Combined or growth is directly related to a systematic newly certifi ed or recognized public Separate? shift in higher education, which now sector tenure-track faculty bargaining relies heavily on lower paid and precari- A fundamental issue is whether non– units in Florida, Illinois, Michigan, ously employed adjunct faculty for class- tenure track faculty should be placed Missouri, Nevada, New Hampshire, room instruction. In many ways, the in a bargaining unit with tenure-track Ohio, and Oregon. shift is analogous to the fi ssured work- faculty or in a separate unit. A related The R factor: Religiously affi liated places in other industries (Weil 2014). issue is whether full-time and part-time institutions Last year, twenty-two new non– non–tenure track faculty should be in a A 1979 Supreme Court decision has tenure track bargaining units were cer- combined unit. Whether a combined or been the source of another legal ob- tifi ed in the private sector, with an separate faculty unit is appropriate is a stacle that has impeded private sector aggregate of 3,700 faculty members. question of law to be determined by a faculty unionization (NLRB v. Catholic Sixty-eight percent of the new units in- labor relations agency unless the issue is Bishop of Chicago 1979). In that case, cluded both full-time and part-time non– resolved between the parties. the Supreme Court concluded that the tenure track faculty. Only fi ve units were The unit composition issue is largely NLRB should decline jurisdiction over composed solely of part-time non–tenure moot in the private sector because most questions of representation concerning track faculty, and two consisted of only tenure-track faculty are outside NLRA parochial school faculty to avoid full-time non–tenure track faculty. These protections under Yeshiva. As early as potential First Amendment issues. newly created units represent a remark- 1973, the NLRB ruled that adjunct and This precedent has been the basis for able 28.5 percent increase over the num- part-time faculty should be excluded litigation by religiously affi liated ber of private sector units found in the from a bargaining unit of tenure-track institutions seeking to stop faculty National Center’s 2012 survey (Berry faculty because of confl icts caused by unionization. and Savarese 2012). Future acceptance substantial differences between the two A National Center study identi- of faculty micro-units would naturally groups. The reasoning in those earlier fi ed nine cases pending last year where lead to a greater proliferation of new decisions was applied last year by an an institution argued that the NLRB bargaining units. NLRB regional director in ordering should not assert jurisdiction over In the public sector in 2016, three separate units for full-time and part-time faculty unionization efforts because of new non–tenure track units were created, faculty at the Minneapolis College of the school’s religious affi liation (Herbert composed of part-time faculty, with an Art and Design.

HIGHER EDUCATION 33 The same issue in the public sector help advocate for improving the work- found on LexisNexis and Westlaw and can lead to a different result depending ing conditions of adjunct faculty, as government data. on the state where the institution is was demonstrated a few years ago at Of the 20 strikes, 55 percent located and the evidence presented at the University of Illinois at Chicago. involved faculty or student employ- a hearing. In 2015, the Pennsylvania Tenure-track faculty at other institu- ees. In September 2016, Long Island Labor Relations Board added adjunct tions may choose not to emulate that University imposed a very unusual and faculty at Temple University to an approach, believing that their own unsuccessful lockout of faculty that existing unit of full-time faculty. New working conditions should be prioritized ended following protests. Faculty strike York’s Public Employment Relations at the expense of the adjunct faculty. authorization votes at California State Board reached very different conclusions Distinctions and disparities between University, Barnard College, and Ithaca in 2016 and 2017 on the placement of groups of employees in a bargaining unit College led to agreements. In addition, adjunct faculty at two community col- can lead to internal disputes during the Yale graduate assistants conducted a leges. In both cases, the adjunct faculty bargaining process. hunger strike in April and May 2017 were placed in separate units rather seeking to compel the commencement of Strikes in Higher Education than being added to existing full-time bargaining. Table 1 lists the strikes and the lock out on campuses since 2012. faculty units, as the colleges urged. The In 1994, the National Center identified New York decisions were predicated on 163 faculty strikes that took place in Looking Ahead a precedent dating back to 1968, which higher education since 1966 (Annun- found that differences between the facul- ziato 1994). The past four years have The specific effect that labor law has on ty groups mandated separate units. seen a much smaller number of higher workplace collective action has been de- Reasonable people can differ over education strikes. We have identified bated for decades. In higher education, whether combined or separate faculty 20 strikes and one lockout in higher however, little question exists that legal units enhance or impair collective education since January 2013, based on developments have directly affected the negotiations. Tenure-track faculty can information gathered from news reports scope and size of unionization, particu-

Table 1. Strikes and a lockout in higher education, January 2013–May 31, 2017.

Institution Unit Type Union Affiliate Date Length

University of Illinois, Springﬁeld TT faculty AFT May 2017 6 days University of California Clerical workers IBT Jan 2017 1 day University of California, Los Angeles Skilled-trade workers IBT Jan 2017 5 days University of California, Los Angeles Skilled-trade workers IBT Nov 2016 1 day Harvard University Dining service workers UNITE HERE Oct 2016 20 days Pennsylvania State System of Higher Education TT and NTT faculty APSCUF Oct 2016 3 days Long Island University TT and NTT faculty AFT Sep 2016 12 days Green River College TT and NTT faculty AFT May 2016 3 days University of Illinois, Urbana-Champaign NTT faculty AFT-AAUP Apr 2016 3 days City College of San Francisco TT and NTT faculty AFT Apr 2016 1 day Rock Valley College FT NTT faculty AFT Sep 2015 4 days University of California Physicians, dentists, and podiatrists AFSCME Apr 2015 7 days Rhode Island School of Design Educational services NEA Apr 2015 5 days University of California Physicians, dentists, and podiatrists AFSCME Jan 2015 1 day University of Oregon Graduate teaching and research assistants AFT Dec 2014 8 days University of California Academic student employees UAW Apr 2014 2 days University of Illinois, Chicago TT and NTT faculty AFT-AAUP Feb 2014 2 days Bellingham Technical College NTT Faculty NEA Sep 2013 6 days Nassau Community College NTT Faculty AFA Sep 2013 5 days University of Illinois, Urbana-Champaign Educational services SEIU Mar 2013 3 days University of Illinois, Urbana-Champaign Accommodation and food services SEIU Mar 2013 3 days

34 PERSPECTIVES ON WORK / 2017 larly with respect to academic labor. Loyola University Chicago, NLRB Case No. 13-RC-189548, References Certifi cation of Representative (Feb. 17, 2017). The results of the 2016 election American University, NLRB Case No. 05-RC-193768, Certifi ca- Marywood University, NLRB Case No. 04-RC-173160, Board make changes to the NLRB inevitable. tion of Representative (April 19, 2017). Decision (May 5, 2017). Annunziato, Frank. 1994. “Faculty Strikes in Higher Education: Minnesota College of Art and Design. NLRB Case No. 18-RC- Decisions by a newly constituted NLRB, 1966–1994,” National Center for the Study of Collective 182546, Decision and Direction of Election (October 26, Bargaining in Higher Education and the Professions 2016). along with the expansion of state open- Newsletter 22 (4). New York University, 205 NLRB 4 (1973). shop laws, will likely negatively affect Berry, Joe, and Michelle Savarese. 2012. “Contracts and NLRB v. Yeshiva University, 444 U.S. 672 (1980). Bargaining Agents in Institutions of Higher Education.” NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). unionization among faculty and other New York: National Center for the Study of Collective Bargaining in Higher Education and the Professions. N.Y. Lab Law §715. employees on campus. In the public Board of Higher Education of the City of New York. 2 N.Y. Laws of 1968, Ch. 890, Legislative Bill Jacket, New York sector, statutory changes in states such as NYPERB ¶3056 (1968). State Library. Telegram from Cornell University Counsel Neal R. Stamp to Acting Counsel to the Governor Michael Brandeis University, NLRB Case No. 01-RC-196695, Certifi ca- Whiteman, June 5, 1968; Letter from NYU General Coun- Wisconsin and Iowa, and efforts to make tion of Representative (May 10, 2017). sel Miguel de Capriles to Acting Counsel to the Governor the open shop a constitutional mandate, Cain, Timothy. 2014. Organizing the Professoriate: Faculty Michael Whiteman, June 10, 1968; and Letter from Union Unions in Historical Perspective [IHE Report]. Athens, GA: College President Harold C. Martin to Acting Counsel to are aimed at undermining unionization University of Georgia, Institute of Higher Education. the Governor Michael Whiteman, June 5, 1968. Cayuga Community College and County of Cayuga, 49 Pacifi c Lutheran University, 361 NLRB No. 157 (2014). and collective bargaining. In addition, NYPERB ¶3007 (2016). Schrecker, Ellen. 1986. No Ivory Tower: McCarthyism and the continued cuts to the staff and budgets of Columbia Daily Spectator. 1936. “Strike Ended at Teachers Universities. New York: Oxford University Press. College as Wage Settlement Is Concluded: Services Resumed Tompkins Cortland Community College et al. 50 NYPERB labor relations agencies will make them in Other Buildings,” 59 (98): 1. ¶4001 (2016). Cornell University, 183 NLRB 329 (1970). less effective in resolving labor disputes. Trustees of Columbia University, 364 NLRB No. 90 (2016). Duke University, NLRB Case No. 10-RC-187957 Tally of U.S. Bureau of Labor Statistics. 2017. Union Members: 2016 The denuding of de jure workplace Ballots (Feb. 24, 2017). (News Release, USDL-17-0107). U.S. Department of Labor, rights and protections will impair union- Employees of Temple University, 46 PPER ¶ 93 (2015). January 26. Hendley, Charles J. 1936. “School Teachers and the Labor U.S. House of Representatives, Special Subcommittee of the ization on campus and elsewhere. Such Movement: A Reply to Dean Russell’s Speech of July 23.” Committee on Education and Labor Hearings before the Charles James Hendley Papers, Box 3, Folder 45, TAM. Committee, Investigation of Teachers Union Local No. 555, changes will necessitate a shift in orga- 109. New York: Tamiment Library and Robert F. Wagner UPWA-CIO, 80th Congress, 2d Session. Labor Archive. nizing strategies. It is likely that such Weil, David. 2014. The Fissured Workplace: Why Work Became Herbert, William. 2016. “The Winds of Changes Shift: An So Bad for So Many and What Can Be Done to Improve shifts will result in a return to the more Analysis of Recent Growth in Bargaining Units and It. Cambridge, MA: Harvard University Press. disharmonious labor tactics that formed Representation Efforts in Higher Education.” Journal of Yale University, NLRB Case Nos. 01-RC-183014, 01-RC- Collective Bargaining in the Academy 8 (1). 183016, 01-RC-183022, 01-RC-183025, 01-RC-183031, the historical foundation for voluntary Hirsch, Barry, and David Macpherson. 2017. “Union Member- 01-183038, 01-RC-183039, 01-RC-183043, 01-RC- ship and Coverage Database from the CPS” [Data from 183050, Decision and Direction of Election (January 25, recognition and collective bargaining. Unionstat]. http://unionstats.gsu.edu/CPS 2017), and Tallies of Ballots (February 15 and 23, 2017).

NATIONAL December 1–2, 2017 West Coast Regional Higher Education California State University, Labor-Management Conference CENTER Long Beach • Unionization and Bargaining Regarding Adjunct Faculty for the Study of Collective • The Impact of Immigration Enforcement on Higher Education Bargaining in Higher Education • The Politics of Accreditation and the Professions • Strategies and Challenges in Higher Education Funding • Workshop Training: Collective Bargaining and Labor Relations for Administrators and Labor Representatives HUNTER • Current Labor-Management Issues at Community Colleges The City University of New York April 15–17, 2018 45th Annual Conference on Collective CUNY Graduate Center, Bargaining and Labor Relations in For more information, contact the 365 Fifth Avenue, National Center at (212) 481-7550 or New York City Higher Education and the Professions [email protected]

HIGHER EDUCATION 35

!1.6/' 35+%.'

'%'/$'3 # $! " #! # "8*'3$'3509%#233%1/

1..185*+4#0&#&&+5+10#.813-4#5 *>25*'-''2'+6'&6,%$# #351(5*' 1..'%5+7'#3)#+0+0)1//104#0&5*' +)*'3&6%#5+101//104

'%1//'0&'&+5#5+10 '3$'35"+..+#/ <'"+0&41(*#0)'4*+=00#.94+41('%'053185*+0#3)#+0+0) 0+54#0&'23'4'05#5+10 ;1354+0+)*'3&6%#5+10 ! #!1. 35+%.' 7#+.#$.'#5 *>25*'-''2'+6'&6,%$#71. +44

<+435+%.'+4$316)*551916(13(3''#0&12'0#%%'44$9<'''25*#4$''0#%%'25'&(13+0%.64+10+01630#.1(1..'%5+7'#3)#+0+0)+05*' %#&'/9$9#0#65*13+:'&'&+5131(<'''213/13'+0(13/#5+102.'#4'%105#%5 5#$3604'+6'&6 # $! "

#$.' 23'2.#%'3+00'.. 0+7'34+598+5*3+00'..1..')'

<+4#35+%.'+4#7#+.#$.'+01630#.1(1..'%5+7'#3)#+0+0)+05*'%#&'/9 *>25*'-''2'+6'&6,%$#71. +44 Herbert: The Winds of Changes Shift: Recent Growth in Bargaining Units

The Winds of Changes Shift: An Analysis of Recent Growth in Bargaining Units and Representation Efforts in Higher Education

William A. Herbert1

Over the past four years we have seen a significant growth in unionization efforts and collective bargaining relationships in higher education. By far the biggest area of organizational and bargaining unit growth has been with respect to non-tenure track faculty, particularly at private non-profit colleges and universities including religiously affiliated institutions. The growth in private sector faculty representation and bargaining constitutes a major new shift in higher education. There has also been continued growth in the number of bargaining units in the public sector among tenured/tenure-track faculty, non-tenure track faculty, and graduate student employees.

In this article, we analyze a representative sample of data from the first three quarters of calendar year 2016 concerning bargaining unit growth and pending questions of representation in higher education with respect to faculty and student employees. The data covers 64 resolved or pending questions of representation in the period January 1 - September 30, 2016. The information concerning each question of representation comes from primary source materials and public information posted on websites of labor relations agencies. The analysis of the data will be considered within the context of legal doctrines raised in certain cases, and that have impacted faculty and graduate student employee unionization for decades. Data concerning bargaining units limited to professionals, administrative staff, classified staff, and security in higher education are not examined.

The five tables below set forth the data under analysis. Tables 1 and 2 present data concerning private sector tenured/tenure-track faculty units, and non-tenure track faculty respectively. Tables 3 and 4 include data with a similar breakdown among public sector faculty, and Table 5 presents data with respect to student employees in the private and public sectors. The Tables do not include questions of representation filed on or after October 1, 2016.

1 Mr. Herbert is Executive Director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions, Hunter College, City University of New York.

Published by The Keep, 2016 1 Journal of Collective Bargaining in the Academy, Vol. 8, Iss. 1 [2016], Art. 1

Each table includes the following: the state where the institution is located; the institution’s name; the national affiliation of the certified or petitioning union; whether the representation petition is pending, resulted in a certification, a dismissal or a withdrawal; the tally of ballots if an election was held; the legal defense, if any, raised in opposition to the petition; the unit size; and the unit composition. The size of each unit is based on the number of eligible voters permitted to participate in the representation election, the number of unit members referenced in an administrative decision, or the approximate number listed in the representation petition. The specific composition of each certified or proposed unit is set forth in the endnotes.

Tables 1 and 2 reveal that there have been 20 new certified private sector faculty bargaining units in the first nine months of 2016. This represents a remarkable 25.9% increase over the 77 private sector bargaining units identified by the National Center for the Study of Collective Bargaining in Higher Education and the Professions (National Center) in its 2012 Directory of U.S. Faculty Contracts and Bargaining Agents in Institutions of Higher Education (2012 Directory).2 One of the newly certified units includes a tenured/tenure-track faculty unit, and the remaining units are composed of non-tenure track faculty. Of the 19 private sector non- tenure track units, 63.2% are combined full-time and part-time faculty units, 26.3% are units of part-time faculty only, and 10.5% are full-time faculty units.

Table 1

Completed or Pending Cases Involving Private Sector Tenured/Tenure-Track Faculty in First Three Quarters of 2016 Unit State Institution Agent Status Tally Size Comp. CA Notre Dame de Namur SEIU Certified 35-6 61 FTi University MA Tufts University SEIU Dismissed (Y) 70 FT-PTii MT Carroll College AFT- Dismissed (CB; Y) 97 FT-PTiii NEA PA Marywood University NEA Dismissed; Pending 179 FT-PTiv (Y; CB)

Note: Legal Issues Raised: CB = Catholic Bishop; Y = Yeshiva

2 Berry, J. & Savarese, M. (2012) Directory of U.S. Faculty Contracts and Bargaining Agents in Institutions of Higher Education, pp. 58-59.

http://thekeep.eiu.edu/jcba/vol8/iss1/1 2 Herbert: The Winds of Changes Shift: Recent Growth in Bargaining Units

Table 2

Completed or Pending Cases Involving Private Sector Non-Tenure Track Faculty (FT, PT and FT/PT Units) in First Three Quarters of 2016 Unit State Institution Agent Status Tally Size Comp. CA Notre Dame de Namur SEIU Certified 148-11 208 PTv University CA Holy Names University SEIU Certified 63-17 142 PTvi CA University of Southern SEIU Certified 32-3 44 FT-PT vii California CA University of Southern SEIU Pending (Y) 113-127 337 FT-PT viii California (set aside) CA University of Southern SEIU Certified; 31-6 45 FT-PT ix California Pending (Y) IL Loyola College Chicago SEIU Certified; 142-11 326 FT-PT x Pending (CB) IL Loyola College Chicago SEIU Certified; 8-0 11 FT-PT xi Pending (CB) IL Northwestern University SEIU Pending 223-191 678 FT-PT xii IL Saint Xavier University NEA Certified (CB) 29-25 122 PT xiii IL Kaplan International Newspaper Certified 14-3 26 FT-PT xiv Guild MA Boston University SEIU Certified 135-36 282 FT-PT xv MA Bentley University SEIU Withdrawn3 155 PTxvi MA Brandeis University SEIU Withdrawn 228 PTxvii MD McDaniel College SEIU Certified 82-36 238 PTxviii MD Goucher College SEIU Certified 40-36 99 FT-PT xix NC Duke University SEIU Certified 174-29 296 FT-PT xx NY Ithaca College SEIU Certified 23-13 48 FTxxi NY Marist College SEIU Pending 154-165 549 PTxxii Rerun: 167-177

3 The withdrawn representation petitions at Bentley University and Brandeis University sought clarification of previously certified part-time faculty units.

Published by The Keep, 2016 3 Journal of Collective Bargaining in the Academy, Vol. 8, Iss. 1 [2016], Art. 1

Unit State Institution Agent Status Tally Size Comp. NY Wells College SEIU Certified 27-6 60 FT-PT xxiii

NY Manhattan College AFT-NEA Pending (CB) 400 PTxxiv MN Minn. Coll. Art & Design SEIU Certified (Y) 16-13 33 FTxxv MN Minn. Coll. Art & Design SEIU Certified 43-20 76 PTxxvi MO Saint Louis University SEIU Certified 89-28 156 FT-PT xxvii

PA Chatham University USW Withdrawn 380 FT-PT xxviii

PA Duquesne University USW Pending (CB) 50-9 88 PT xxix

WA Saint Martin’s University SEIU Certified; 63-34 129 FT-PT Pending (CB) xxx WA Seattle University SEIU Certified; 73-63 199 FT-PT xxxi Pending (CB, Y)

Note: Legal Issues Raised: CB = Catholic Bishop; Y = Yeshiva

The average of electoral tallies in Tables 1 and 2 show that 72.8% of faculty in the 24 private sector units who participated in representation elections voted in favor of unionization.4 The Service Employees International Union (SEIU) was the certified bargaining agent in 90% of the 20 recently certified private sector faculty units. Emblematic of the changes in faculty unionization was the certification of SEIU as the representative of a non-tenure track faculty unit at Duke University, the first new private sector faculty bargaining unit in a right-to-work state in a quarter of a century.

These figures, however, are subject to change as the result of pending administrative litigation. As Table 2 reveals, nine cases involving private sector institutions, including five with newly certified non-tenure track units, are the subject of current litigation before the NLRB

4 The Marist rerun tally, rather than the one from the overturned election, was used in calculating the average of electoral tallies.

http://thekeep.eiu.edu/jcba/vol8/iss1/1 4 Herbert: The Winds of Changes Shift: Recent Growth in Bargaining Units

concerning two legal doctrines to be discussed below. The results of that litigation may increase or decrease the total number of new bargaining units in the period under study.5

In addition, election results involving non-tenure track faculty at Marist College and the University of Southern California were set aside by the National Labor Relations Board (NLRB) based on findings that each institution engaged in improper conduct prior to the election that interfered with the faculty’s free choice. In both elections, the faculty voted against union representation. A subsequent rerun election at Marist resulted in the same outcome, which is being challenged. A new election at the University of Southern California has been blocked by a pending unfair labor practice charge. A vote in favor of unionization by non-tenure track faculty at Northwestern University has not resulted in a certification. In that case, the NLRB Regional Office is considering electoral challenges that can be outcome determinative. 6

The demonstrative growth in private sector non-tenure track faculty units and organizing effort is a clear manifestation of the substantial change in faculty composition. Bowen and Tobin summarized the data concerning the change in the following manner:

x In 1969, tenured/tenure-track faculty accounted for over three-quarters of all faculty (78.3 per cent); in 2009, tenured/tenure-track faculty accounted for just over one-third of all faculty (33.%). As many people have noted, the ratio simply flipped.

x Among non-tenure track faculty, both full-time and part-time staff have increased, but part-timers have increased faster (by over 400 percent between 1970 and 2003).7

The growth in private sector unionization among contingent faculty confirms an important 1973 observation by Ladd and Lipset: “The lower the tier of academe, in terms of security, income, prestige, and involvement in the graduate scholarly-research culture, the stronger the vote for unionization, as represented by a regular union body; the higher the level, the greater the likelihood of votes for ‘no representation,’ or for the least ‘union-like’ faculty organization on

5 The administrative litigation pursued by a university concerning one of the newly certified non-tenure track units was unsuccessful. See, University of Southern California, 365 NLRB No. 11 (2016). The NLRB Board decision did not alter the total number of new private sector faculty bargaining units listed in Tables 1 and 2. 6 Since October 1, 2016 three additional private sector faculty representation petitions were filed regarding contingent faculty at Augsburg College, University of Harford and the Institute of Culinary Education. SEIU was certified to represent a unit of 199 full-time and part-time non-tenure track faculty at Augsburg College after an 89- 70 vote in favor of representation. The full-time and part-time contingent faculty at the University of Hartford voted 278-230 for SEIU representation of a unit of 876 faculty. At the Institute of Culinary Education, an AFT-NEA affiliate was certified to represent a unit of 85 full-time and part-time ESL instructors after the instructors voted 38- 20 in favor of representation. These questions of representation are not included in Table 2. 7 Bowen, W. G. Tobin, E. M. (2016) Locus of Authority: The Evolution of Faculty Roles in the Governance of Higher Education, p. 152.

Published by The Keep, 2016 5 Journal of Collective Bargaining in the Academy, Vol. 8, Iss. 1 [2016], Art. 1

the ballot.”8 Another significant factor leading to the increase in contingent faculty unionization has been the alt-labor activism of organizations like the New Faculty Majority and the Coalition of Contingent Academic Labor, the coordinated nationwide faculty organizing campaigns by SEIU’s Faculty Forward, and organizing by other unions including AFT, NEA, and AAUP. A third factor that might have affected the growth in new private sector non-tenure track faculty units in 2016 was the NLRB’s modified representation case processing rules. The modified rules were aimed at expediting the resolution of questions of representation.

As Tables 3, 4 and 5 demonstrate, there has been slower growth in certified public sector bargaining units since January 1, 2016. Only 12 new public sector units were certified as the result of petitions filed during the period under study, along with the certified merger of two preexisting units at Wright State University.9 The 12 new units include 10 faculty units, one unit of department chairs, and one graduate student employee unit. One third of the new public sector units are in right-to-work states.

There has been only a 2.1% increase in public sector units over the 562 public sector bargaining units identified by the National Center in its 2012 Directory.10 AAUP, AFT, AFT- NEA, AFT-AAUP, and NEA constitute 83% of the selected bargaining agents for the 12 newly certified public sector units. Nine of the new units resulted from an election. The average of electoral tallies in Tables 3 and 4 shows that 73.3% of the unit members who voted supported unionization. 11

8 Ladd, E. C. & Lipset, S. M. (1973) Professors, Unions, and American Higher Education, p. 48. 9 An additional new public sector bargaining unit was formed in the fourth quarter of 2016 when an NEA affiliate was certified without an election to represent a unit of 373 tenured/tenure-track faculty at Southern Illinois University Edwardsville. During the same period, AAUP filed a petition seeking to represent a unit of approximately 87 full-time faculty at Santa Fe Community College. These two questions of representation are not included in Tables 3 and 4. 10 Berry, J. & Savarese, M. (2012) Directory of U.S. Faculty Contracts and Bargaining Agents in Institutions, of Higher Education,supra. 11 The showings of interest that formed the bases for public sector certifications without an election at Northern Illinois University and Cayuga Community College were not included in the average of electoral tallies. In both, the petitioning union was certified based on the submission of a showing of interest from over 50% of the at-issue bargaining unit.

http://thekeep.eiu.edu/jcba/vol8/iss1/1 6 Herbert: The Winds of Changes Shift: Recent Growth in Bargaining Units

Table 3

Completed or Pending Cases Involving Tenured/Tenure-Track Faculty (FT, PT and FT/PT Units) and Department Chairs at Public Colleges in First Three Quarters of 2016 Unit State Institution Agent Status Tally Size Comp. FL Tallahassee Community AFT-NEA Certified 139-22 185 FT College xxxii FL State College of Florida AFT-NEA Certified 75-24 107 FT xxxiii

FL Florida Polytechnic AFT-NEA Certified 38-6 50 FT-PT University xxxiv FL St. Petersburg College AFT-NEA Pending 370 FT xxxv

IL Northern Illinois AFT- Certified Cert. w/o 590 FT University AAUP Election12 xxxvi MA University of NEA Certified 17-8 35 Chairs Massachusetts Boston xxxvii MN University of Minnesota SEIU Pending 2,905 FT-PT xxxviii

NH Plymouth State College AAUP Certified 97-67 174 FT xxxix

NV College of Southern AAUP Certified 263-126 524 FT-PT Nevada xl OH Belmont College AFT Certified 28-3 32 FT xli

OH Wright State University AAUP Certified FT xlii Merged Unit13 Note: Legal Issues Raised: CB = Catholic Bishop Y = Yeshiva

12 The Illinois collective bargaining law permits certifications without an election like New York and some other states. See, Herbert, W. A. (2010/2011) Card Check Labor Certification: Lessons from New York, 74 Alb. L. Rev. 93. 13 This representation case resulted in an amendment to a certification to reflect the merger of full-time tenured/tenured-track bargaining units. Wright State University, 33 OPER ¶ 108 (2016).

Published by The Keep, 2016 7 Journal of Collective Bargaining in the Academy, Vol. 8, Iss. 1 [2016], Art. 1

Table 4

Completed or Pending Cases Involving Non-Tenure Track Faculty at Public Colleges and Universities in First Three Quarters of 2016 Unit State Institution Agent Status Tally Size Comp. FL Hillsborough SEIU Certified 339-189 1,006 PTxliii Community College MO Saint Charles SEIU Certified 108-66 333 PTxliv Community College NY Cayuga Community AFT-NEA Certified Cert. w/o 207 PTxlv College election NY Herkimer County SEIU Pending 108 PTxlvi Community College NY Tompkins- Cortland AFT-NEA Pending 250 PTxlvii Community College PA Beaver County USW Withdrawn PTxlviii Community College

Table 5

Completed or Pending Cases Involving Student Employees at Private and Public Colleges and Universities in First Three Quarters of 2016 Unit State Institution Agent Status Tally Size Comp. CT Yale University UNITE-HERE Pending 6 GSExlix CT Yale University UNITE-HERE Pending 24 GSEl CT Yale University UNITE-HERE Pending 23 GSEli CT Yale University UNITE-HERE Pending 9 GSElii CT Yale University UNITE-HERE Pending 14 GSE liii CT Yale University UNITE-HERE Pending 66 GSEliv CT Yale University UNITE-HERE Pending 55 GSElv CT Yale University UNITE-HERE Pending 60 GSElvi CT Yale University UNITE-HERE Pending 18 GSElvii CT Yale University UNITE-HERE Withdrawn 22 GSElviii

http://thekeep.eiu.edu/jcba/vol8/iss1/1 8 Herbert: The Winds of Changes Shift: Recent Growth in Bargaining Units

Unit State Institution Agent Status Tally Size Comp. IA Grinnell University UGSDW Certified 21-1 91 Student Dining Workers lix

MO University of Missouri NEA Pending 2,600 GSElx √+14 NY Columbia University UAW Pending 1,602- 4,256 GSElxi 623 NY New School UAW Pending 350 GSElxii NY Cornell University AFT-NEA Pending ++15 GSElxiii OR Portland State AFT-AAUP Certified Cert. 793 GSElxiv University w/o Election

Note: √+ = Court Litigation; √++ = Non-NLRB Recognition Procedure

The relative low level of recent growth in the public sector is attributable to various factors: the scope of pre-existing union density, the limited number of states with laws permitting bargaining on campus, and the erosion of collective bargaining rights in certain states. On the horizon is a pending public sector representation petition filed by SEIU seeking to represent a combined statutorily-defined unit at the University of Minnesota of approximately 3,000 tenured/tenure-track, and non-tenure track faculty.16

The comparative growth in private sector versus public sector bargaining units since January 1, 2016 is in stark contrast to the sectoral breakdown found by the National Center in 2012: 562 public sector faculty units and 77 private sector faculty bargaining units.17 The import of the recent rate of growth in the private sector is highlighted by the fact that one half of the

14 Coalition of Graduate Workers v. Univ. of Missouri, Cir. Ct., Boone Co., State of Missouri, Case #16BA- CV01634 the complaint is available at http://bloximages.newyork1.vip.townnews.com/columbiatribune.com/content/tncms/assets/v3/editorial/7/db/7dbd9f 6b-b7d2-54b9-83a3-47abe0390e6c/573496b5922e7.pdf. 15 Union-University Conduct Rules and Recognition Election Agreement (May 16, 2016) available at https://cornellgsu.files.wordpress.com/2016/05/code-of-conduct-tentative-agreement-signed.pdf. It is unclear whether the parties at Cornell have yet agreed on the size of the at-issue bargaining unit of graduate student employees. 16 University of Minnesota, Unit 8, Minneapolis, Minnesota, BMS Case No. 16PCE0644 (2016). 17 Berry, J. & Savarese, M. (2012) Directory of U.S. Faculty Contracts and Bargaining Agents in Institutions, of Higher Education, supra.

Published by The Keep, 2016 9 Journal of Collective Bargaining in the Academy, Vol. 8, Iss. 1 [2016], Art. 1

private sector units identified in the 2012 Directory were tenure-track legacy units that pre-dated the 1980 decision by the United States Supreme Court in NLRB v. Yeshiva University (Yeshiva),18 and the 1979 decision in NLRB v. Catholic Bishop of Chicago (Catholic Bishop).19

In Yeshiva, the Court ruled that the faculty at that private institution were managerial, and therefore without any rights under the National Labor Relations Act (NLRA), because their role in shared governance included formulating and effectuating managerial polices and making operative decisions for the institution. The Court in Catholic Bishop held that the NLRB cannot assert jurisdiction over a representation petition concerning lay teachers at a religiously-affiliated school when the assertion of agency jurisdiction created a significant risk of infringing on religious liberty protected by the First Amendment.

Following the Yeshiva decision, many private sector institutions refused to negotiate successor or initial agreements with incumbent unions representing tenured/tenure-track faculty. By the end of 1988, at least 23 faculty unions on private sector campuses were decertified based on Yeshiva.20 The specter of potential decertification efforts after the expiration of contracts altered the power dynamics at the negotiating tables and in labor relations for incumbent units of tenured tenure-track faculty that continue to be recognized following Yeshiva.

The legal doctrines enunciated in Yeshiva and Catholic Bishop stymied growth in private sector faculty unionization for many years, and continue to shape faculty representation issues in higher education today. An important legacy of Yeshiva is the chilling effect it has had on private sector tenured/tenure-track faculty. Without the protection of the NLRA, private sector faculty have no federal labor law protection against retaliation for engaging in otherwise legally protected associational activities. Simply put, a successful legal defense by an institution under Yeshiva results in the faculty being exempted from the “full freedom of association” promised by the NLRA.21

The chilling effect of Yeshiva extends to union strategies related to private sector tenured/tenure-track faculty. Table 1 lists only four completed or pending representation cases concerning private sector tenured/tenure-track faculty. This relatively small number of representation cases supports the conclusion that Yeshiva remains present in the institutional memory of faculty and faculty unions. Moreover, in 75% of the cases listed in Table 1 an NLRB Regional Director ruled that tenured/tenure-track faculty are managerial under Yeshiva.

18 444 U.S. 672 (1980). 19 440 U.S. 490 (1979). 20 “Yeshivawatch”-Year Nine, National Center Newsletter, Vol 16, No. 5 (Nov/Dec 1988). 21 29 U.S.C. § 151.

http://thekeep.eiu.edu/jcba/vol8/iss1/1 10 Herbert: The Winds of Changes Shift: Recent Growth in Bargaining Units

Tables 1 and 2 identify nine cases where religiously-affiliated institutions have raised a Catholic Bishop jurisdictional defense, and six cases where institutions have argued that faculty are managerial under Yeshiva. In contrast, Notre Dame de Namur University, a Catholic institution, chose not to assert Yeshiva or Catholic Bishop defenses in response to petitions seeking faculty unionization. The position taken by Notre Dame de Namur University underscores the legal reality that whether to assert a defense under Yeshiva or Catholic Bishop is left to the discretion of the institution responding to a representation petition.

Religiously-affiliated institutions have at their disposal a means for avoiding litigation over principled concerns concerning governmental entanglement with religious freedom under Catholic Bishop and, at the same time, showing respect for its faculty’s right to workplace association and collective bargaining. This can be accomplished through an agreement with a union that establishes a non-governmental procedure to resolve the question of representation, which can end in voluntary recognition of a faculty representative. There is precedent for this approach. As Duquesne University School of Law Dean Emeritus Nicholas P. Cafardi explained at the National Center’s 2015 annual conference, the Catholic Diocese of Pittsburgh in the 1970’s agreed to a non-governmental resolution of a question of representation involving lay faculty that led to stable labor relations over the decades.22

In Table 2, we identify four cases where institutions have attempted to use non-tenure track faculty’s involvement in shared governance to claim that they are managerial under Yeshiva.23 These cases highlight a potential legal consequence when contingent faculty are given an equal or a significantly larger role in shared governance on private sector campuses: it might result in exempting them under Yeshiva from the collective associational rights to unionize, engage in collective bargaining, and participate in other activities for mutual aid and protection, under the

22 Podcast, Impact of Pacific Lutheran on Collective Bargaining at Catholic Colleges and Universities, 42nd Annual National Conference of the National Center for the Study of Collective Bargaining in Higher Education and the Professions, April 20, 2015 available at http://silo.hunter.cuny.edu/xglL0KRt. David L. Gregory, who moderated the 2015 conference panel, recommended a broader adoption of the non-NLRB procedure in his subsequent article Is Religious Liberty the Ultimate Management Prerogative?: Some Reflections on Pacific Lutheran University and Service Employees International Union, Local 925, 33 Hofstra Lab. & Emp. L.J. 207, 239 (2016) (“Yet, a ‘grand compromise’ may be in order. Unions should seriously consider forgoing NLRB jurisdiction in return for voluntary recognition. Disputes would be resolved by a voluntarily agreed upon arbitrator. This alternative solution could satisfy the interests of both parties while also fully conforming to the social justice teachings of the Catholic Church.”) 23 In one of the University of Southern California cases listed in Table 2, the NLRB Board on December 30, 2016 denied the university’s request for review of a Regional Director’s decision, which had concluded that the at-issue contingent faculty were not managerial under Yeshiva despite the faculty’s involvement in shared governance. University of Southern California, 365 NLRB No. 11 (2016). The Board’s decision underscores the difficulty that colleges and universities face in trying to prove that their non-tenure track faculty are managerial. This is due, in part, to the nature of the faculty’s employment relationship.

Published by The Keep, 2016 11 Journal of Collective Bargaining in the Academy, Vol. 8, Iss. 1 [2016], Art. 1

NLRA. Nevertheless, the Yeshiva factor is frequently omitted when contingent faculty’s role in shared governance at private institutions is examined.

Even when unsuccessful, litigation concerning Yeshiva and Catholic Bishop defenses have historically delayed the electoral outcomes in representation cases. For example, the 2010 representation petition filed on behalf of Manhattan College non-tenure track faculty remains pending at the NLRB, with the election ballots impounded, based upon the institution’s jurisdictional objections under Catholic Bishop.

One university’s effort to defeat a non-tenure track faculty unionization effort based on Yeshiva and Catholic Bishop led to an important 2014 NLRB decision in Pacific Lutheran University (Pacific Lutheran).24 In Pacific Lutheran, the NLRB revised the standards and analyses it would apply to employer defenses under Yeshiva and Catholic Bishop. The Pacific Lutheran standards were not subject to judicial scrutiny because the petition filed by SEIU was withdrawn after a vote tally demonstrated that the faculty had voted 30-54 against union representation with 38 additional ballots challenged. The soundness and the application of the revised standards in Pacific Lutheran are the subject of challenges in eight pending cases identified in Tables 1 and 2.

In Pacific Lutheran, the NLRB revised the standards it will apply to Yeshiva defenses by increasing the burden of proof on a party asserting faculty managerial status. Under the new standards, specific proof must be presented demonstrating that faculty actually exercise managerial decisions or “make effective recommendations” concerning five specific areas: academic programs; enrollment management; finances; academic policy, and personnel policy and decisions. To demonstrate that faculty make effective recommendations, the NLRB requires proof be presented that the recommendations are “almost always followed by the administration.”

The NLRB in Pacific Lutheran adopted a two-step analysis with respect to whether it can properly exercise jurisdiction over a religiously affiliated institution under Catholic Bishop. The threshold issue to be determined when a religiously affiliated college raises a jurisdictional defense under Catholic Bishop is whether the institution holds itself as providing a religious educational environment. This can be demonstrated through statements on its website or in a mission statement, handbook, or course catalog along with other internal and public documents. If an institution meets its evidentiary burden concerning the threshold issue, it must then present evidence demonstrating that it holds out the at-issue faculty as performing a specific function in creating and maintaining the religious education environment. The faculty’s specific role can be

24 361 NLRB No. 157 (2016).

http://thekeep.eiu.edu/jcba/vol8/iss1/1 12 Herbert: The Winds of Changes Shift: Recent Growth in Bargaining Units

demonstrated through internal and public communications such as job descriptions, faculty handbooks, and comments made to current and future students and faculty.

The revised standards in Pacific Lutheran have not tempered institutions from invoking Yeshiva and Catholic Bishop, but their defenses have had mixed results. In 2016, the NLRB denied a request by an AFT-NEA affiliate for review of a Regional Director’s decision in Carroll College.25 In its decision, the NLRB found that the Regional Director had properly applied Pacific Lutheran standards in jurisdictionally dismissing the petition that sought to represent faculty at a small Catholic college in Montana. The Board declined, however, to review the challenge to the Regional Director’s alternative conclusion that the tenured/tenure-track faculty are managerial because of their role in shared governance under Yeshiva and Pacific Lutheran.

In University of Southern California,26 the Board affirmed a Regional Director’s application of the Pacific Lutheran standards in finding contingent faculty to be non-managerial under Yeshiva. In reaching its decision, the Board reemphasized that under Pacific Lutheran the “the nature of the faculty’s employment” is relevant for determining managerial status, and that managerial status can only be proven by evidence demonstrating that the at-issue faculty “actually exercise control” or make effective recommendations that are “almost always” followed by university administrators.

At Tufts Medical School, a Regional Director’s decision found the tenured/tenure-track faculty to be managerial, which resulted in the dismissal of the petition. A Regional Director’s decision finding Marywood University subject to NLRB jurisdiction and finding that the tenured/tenure-track faculty are managerial is the subject of pending petitions for review.

In two other 2016 decisions issued in Seattle University27 and Saint Xavier University,28 the NLRB sustained Catholic Bishop defenses with respect to faculty in departments who are held out as performing a religious function, and excluded those faculty members from the respective bargaining units. These cases might be a signal of a new NLRB departmental uniting approach in higher education representation cases.

25 NLRB Case No. 19-RC-165133 available at https://www.nlrb.gov/case/19-RC-165133. 26 365 NLRB No. 11 (2016). 27 364 NLRB No 84 (2016). 28 364 NLRB No. 85 (2016).

Published by The Keep, 2016 13 Journal of Collective Bargaining in the Academy, Vol. 8, Iss. 1 [2016], Art. 1

There were two noteworthy, but conflicting, 2016 decisions with respect to faculty unit composition. In Minnesota College of Art and Design, 29 an NLRB Regional Director found that part-time adjunct faculty should be in a separate bargaining unit from full-time ranked faculty, a majority of whom have five-year employment contracts. The Pennsylvania Labor Relations Board reached the opposite legal conclusion finding that part-time faculty at a community college belonged in the same bargaining unit with full-time faculty.30 The disparate findings are the result of differing philosophies and precedent of the two agencies when it comes to uniting issues.

Lastly, in Table 5, we set forth data concerning completed and pending representation petitions involving student employees in the private and public sectors. Since January 1, 2016, there have been only two new certified units, one in the private and one in the public sector. In August 2016, the NLRB issued its Trustees of Columbia University decision,31 holding that graduate and undergraduate assistants at that institution are employees covered under the NLRA. The decision reinstated the UAW’s representation petition that led to an election in which the student employees voted 1602-623 in favor of unionization. The vote is being challenged by Columbia University based on allegations of election misconduct, which are currently under investigation

A UAW representation petition seeking to represent graduate and undergraduate assistants at the New School is pending following a remand by the NLRB Board for further processing. At Cornell University, an agreement was reached with an AFT-NEA affiliate for a non-NLRB election concerning that school’s teaching assistants, graduate research assistants, graduate assistants, and research assistants. Another AFT-NEA affiliate has commenced litigation seeking a judicial determination that graduate assistants at the University of Missouri have the right to collective bargaining under the Missouri Constitution.

On the heels of the Trustees of Columbia University decision, UNITE HERE filed 10 petitions seeking to represent departmental bargaining units at Yale University with an aggregate number of 351 graduate and research assistants. One of the petitions, concerning 22 graduate

29 NLRB Case No. 18-RC-182596 (Sept. 23, 2016) available http://apps.nlrb.gov/link/document.aspx/09031d458220f39f 30 Beaver County Community College, 47 PPER ¶78 (2016). 31 Trustees of Columbia University, 364 NLRB No. 90 (2016). The Trustees of Columbia University decision reversed prior NLRB precedent holding that graduate and undergraduate assistants were not employees under the NLRA. New NLRB Board members confirmed by the Senate to fill current vacancies will likely result in a new majority that will ultimately reverse Trustees of Columbia University, constituting another NLRB flip-flop on the question of whether student assistants are employees entitled to the NLRA’s rights and protections.

http://thekeep.eiu.edu/jcba/vol8/iss1/1 14 Herbert: The Winds of Changes Shift: Recent Growth in Bargaining Units

students in the Comparative Literature Department, was later withdrawn. The remaining Yale cases remain pending before the NLRB Region 1 Director.

It is probable that the recent change in NLRB decisional law will lead to the filing of more petitions seeking to represent graduate and undergraduate student employees at private sector campuses. In the fourth quarter of 2016 petitions were filed seeking to represent graduate student employees at Harvard College,32 Duke University,33 and Loyola University Chicago.34 At Harvard, the graduate student employees voted 1272-1456 against unionization. That matter remains pending, however, as the NLRB determines 314 challenged ballots.35

In conclusion, the relevant data since January 1, 2016 demonstrate a strong growth in union representation on higher education campuses, and other collective organizational activities, by academic labor. The election tallies that led to the certifications show consistently strong faculty support for unionization. In future scholarship, the 2016 data will be merged into a much larger National Center dataset covering the four-year period beginning on January 1, 2013 for a more comprehensive analysis of the growth in faculty and student employee unionization since the National Center’s 2012 Directory.

Endnotes: Certified or Proposed Bargaining Unit Compositions

i All Full-Time Faculty and Full-Time Librarian Faculty (Tenured, Tenure-Track, and Non-Tenure Track) employed by the Employer. Excluded: All other employees. ii All tenured and tenure-track faculty including assistant professors, associate professors and professors employed by the Tufts University School of Medicine. iii All tenured and tenured track faculty employed by Carroll College. iv All full-time and regular part-time instructors, faculty, including assistant professors, associate professors employed by Marywood University. Excluded: All other employees including IHM Sisters, adjunct professors, guards and supervisors as defined in the Act.

32 See, President and Fellows of Harvard College, NLRB Case No. 01-RC-186442 available at https://www.nlrb.gov/case/01-RC-186442. 33 See, Duke University, NLRB Case No. 10-RC-187957 available at https://www.nlrb.gov/case/10-RC-187957. 34 See, Loyola University Chicago, NLRB Case No. 13-RC-189548 available at https://www.nlrb.gov/case/13-RC- 189548. During the same quarter, SEIU filed a petition seeking to represent approximately 109 resident advisors at George Washington University. See, The George Washington University, NLRB Case No. 05-RC-188871 available at https://www.nlrb.gov/case/05-RC-188871. 35 See, President and Fellows of Harvard College, NLRB Case No. 01-RC-186442 available at https://www.nlrb.gov/case/01-RC-186442.

Published by The Keep, 2016 15 Journal of Collective Bargaining in the Academy, Vol. 8, Iss. 1 [2016], Art. 1

v All part-time faculty, including Lecturers, Senior Lecturers, Assistant Librarians (part-time), Associate Librarians (part-time), Core Faculty, Part-time In-Residence faculty, Part-time teaching Professors Emeritus and Emerita employed by the Employer at its Belmont, California facility during the payroll period 2015-2016 academic year, including employees who did not work during that period because they were ill on vacation, or were temporarily laid off. Others permitted to Vote: Any part-time faculty in the above included-unit who were employed and taught one or more courses during the summer of 2015 and have a reasonable expectation of teaching one or more courses during the summer of 2016 may vote in the election but their ballots will be challenged since their eligibility has not been resolved. No decision has been made regarding whether the individuals are included in, or excluded from, the bargaining unit. The eligibility or inclusion of these individuals will be resolved, if necessary, following the election. Excluded: All other employees, full-time faculty, all administrators with faculty ranks, non-teaching faculty, Honorary Degree Holders, Deans, Presidents, Provosts, visiting faculty and visiting scholars, staff members that teach on a part-time basis, full-time and part-time exempt staff and non-exempt staff members, research employees, University officers and staff who hold faculty titles and/or teach, student-employees, University Emeritus and Emerita without part-time teaching duties, administrators, managerial employees, members of religious orders, trustees, other professional employees, confidential employees, and supervisors as defined by the Act (including Department Chairs and/or Program Directors who are supervisors as defined by the Act). vi All Adjunct Faculty (including Adjunct Instructors, Adjunct Professors, Adjunct Assistant Professors, Adjunct Lecturers, and Adjunct Professors), employed by the Employer. Excluded: All faculty members who are employed as ranked faculty, meaning all full-time and pro rata tenured faculty and tenure-track faculty and term faculty holding the rank of Instructor, Assistant Professor, Associate Professor, or Professor; Professors Emeritus, Professors Alumnus, Visiting Professors, Affiliate Professors, Kodaly Summer Institute faculty, Department Chairs, Directors, Assistant Directors, Academic Advisors, division directors, center directors, assistant directors, program and department chairs, program staff, Deans and Chairs including those who may have teaching assignments); graduate and undergraduate students and student employees, teaching and research assistants and fellows, all other faculty and other employees in non-degree granting programs (including extension or continuing education instructors, public programs, or other special programs), Individual Lesson Instructors (Individual Music Lesson instructors), Ensemble Directors, Instructors in Athletics and Recreation; also excluding all staff and administrator employees, officers and trustees of the University; members of religious orders who are employed by the University; teachers and other employees of Raskbob School; all other employees, all volunteers, independent contractors, managerial employees, professional and confidential employees, guards, and supervisors as defined in the National Labor Relations Act. Those eligible to vote in the election are employees in the above unit who were employed for teaching of one or more courses during the period beginning July 1, 2015 to the payroll period ending March 20, 2016. vii All full-time and part-time lecturers who are employed by the University of Southern California and who teach at least one class, section, lesson, or lab within the program known as the USC International Academy at the Employer's instructional facilities at the University Park Campus. Excluded: All tenured or tenure-track faculty; all visiting faculty; all faculty teaching at an academic unit other than the USC International Academy; all faculty regularly employed by the Employer at any location other than the University Park Campus; all faculty teaching online courses exclusively (regardless of location); all emeritus faculty; all registrars and librarians; all Athletic Department coaches; all graduate students; all post-doctoral scholars; all lab assistants, graduate assistants, clinical fellows, teaching assistants, and research assistants; all mentors who do not have teaching responsibilities; all department chairs; all administrators, including those who have teaching responsibilities; the President of the University; the Provost; all Associate Provosts, Vice Provosts, and Vice Presidents; all Deans, Vice Deans, Associate Deans and Assistant Deans, regardless of their faculty status; all non-faculty employees; all volunteers; and all managers, supervisors, and guards as defined in the Act. viii All full-time and part-time non-tenure track faculty who are employed by the University of Southern California, including those who also hold a position as a Program Director or Coordinator, and who teach at least one credit- earning class, section, lesson, or lab within the academic unit known as the USC Dana and David Dornsife College of Letters, Arts and Sciences at the Employer's instructional facilities at the University Park Campus. Excluded: All tenure or tenure-track faculty; all visiting faculty; all faculty teaching at an academic unit other than the USC Dana and David Dornsife College of Letters, Arts and Sciences; all faculty regularly employed by the Employer at any location other than the University Park Campus; all faculty teaching online courses exclusively (regardless of location); all emeritus faculty; all registrars and librarians; all Athletic Department coaches; all graduate students; all

http://thekeep.eiu.edu/jcba/vol8/iss1/1 16 Herbert: The Winds of Changes Shift: Recent Growth in Bargaining Units

post-doctoral scholars; all lab assistants, graduate assistants, clinical fellows, teaching assistants, and research assistants; all mentors who do not have teaching responsibilities;, all department chairs, regardless of their faculty status; the President of the University; the Provost; all Associate Provosts, Vice Provosts, and Vice Presidents; all Deans, Vice Deans, Associate Deans and Assistant Deans, regardless of their faculty status; all non-faculty employees; all volunteers; all other represented employees; and all managers, supervisors, and guards as defined in the Act. ix All full-time and part-time non-tenure track faculty who are employed by the University of Southern California and who teach at least one credit-earning class, section, lesson, or lab within the academic unit known as the USC Roski School of Art and Design at the Employer's instructional facilities at the University Park Campus or at the Graduate Fine Arts Building, located at 3001 South Flower Street, Los Angeles, California 90007. Excluded: All tenured or tenure-track faculty; all faculty whose primary teaching responsibilities are within an academic unit other than the USC Roski School of Art and Design; all faculty whose primary area of practice and/or scholarship is outside the following areas: ceramics, critical studies, design, intermedia, painting and drawing, photography, printmaking, or sculpture; all faculty regularly employed by the Employer at any location other than the University Park Campus or the Graduate Fine Arts Building; all faculty teaching online courses exclusively (regardless of location); all emeritus faculty; all registrars and librarians; all Athletic Department coaches; all graduate students; all post-doctoral scholars; all lab assistants, graduate assistants, clinical fellows, teaching assistants, and research assistants; all mentors who do not have teaching responsibilities; all department chairs, regardless of their faculty status; all administrators, including those who have teaching responsibilities; the President of the University; the Provost; all Associate Provosts, Vice Provosts, and Vice Presidents; all Deans, Associate Deans and Assistant Deans, regardless of their faculty status; all non-faculty employees; all volunteers; all other represented employees; and all managers, supervisors, and guards and defined in the Act. x All full-time and part-time graduate and undergraduate non-tenure-track faculty (Adjuncts, Adjunct Professors, Adjunct Instructors, Adjunct Lecturers, Accompanists, Instructors, Lecturers, Lab Instructors, Senior Lecturers, and Visiting Faculty) employed by Loyola University Chicago in academic programs housed at its Main campus, 1032 W. Sheridan Rd, Chicago, IL 60660, including the College of Arts & Sciences, the English Language Learning Program, and the Graduate School. Excluding: All tenured faculty, tenure-track faculty, distinguished service faculty, research faculty who are not teaching credit bearing courses, and emeritus faculty; all faculty in non-degree granting programs, unless expressly included above; all faculty teaching in programs housed or facilities and addresses other than those described above; all faculty teaching online courses only; employees who do not teach undergraduate or graduate level credit-earning courses or labs, unless expressly included above; the Water Tower Campus, the Health Sciences Campus, the Retreat and Ecology Campus, the Rome Campus, the Beijing Campus, the Vietnam Center; the School of Continuing and Professional Studies, the Marcella Niehoff School of Nursing, the Stritch School of Medicine, the Quinlan School of Business, the School of Education, the Corboy Law Center, the School of Social Work, the School of Communications, the Institute of Pastoral Studies, the Arrupe College, the Loyola University Museum of Art (LUMA), faculty paid benefits other than Loyola University Chicago (including governments and organizations); all administrators (including deans, directors, trustees, provosts, and chairs who may have teaching assignments); graduate students; athletic coaches; academic advisors, including those with teaching assignments;-all other employees employed by the University, including those who teach a class or course and are separately compensated for such teaching; and managers, confidential employees, office clerical employees, professional employees, guards and supervisors as defined in the Act. xiAll full-time and part-time English Language Learning Program I ESL faculty and team members (adjunct instructors, instructors, ESL professors, ESL teachers, and ESL tutors) employed by Loyola University Chicago in the English Language Learning Program at its Main campus, 1032 W Sheridan Rd, Chicago, IL 60660. Excluded: All tenured faculty and tenure-track faculty; all faculty only teaching in program or facilities other than those described above; all administrators, all other employees employed by the University, including those who teach a class or course and are separately compensated for such teaching; all managers, confidential employees, office clerical employees, professional employees, guards and supervisors as defined in the Act. xii All full-time and part-time graduate and undergraduate non-tenure-eligible faculty (including the follow titles: Adjunct Faculty, Adjunct Instructors, Adjunct Lecturers, Adjunct Assistant Professors, Adjunct Associate Professors, Adjunct Professors; Postdoctoral Fellows, Visiting Postdocs, Clinical Assistant Professors, Clinical Associate Professors, Clinical Professors, Artists-in-Residence, Instructors, Lecturers, Senior Lecturers, Distinguished Senior Lecturers, Visiting Faculty, Visiting Assistant Professors, Visiting Associate Professors,

Published by The Keep, 2016 17 Journal of Collective Bargaining in the Academy, Vol. 8, Iss. 1 [2016], Art. 1

Visiting Lecturers, Visiting Scholars, Visiting Professors, Research Assistant Professors, Research Associate Professors, Research Professors, Assistant Professors of Instruction, Associate Professors of Instruction, Professors of Instruction, and Weinberg College Advisors who hold teaching-track appointments) employed by Northwestern University and currently teaching at least one course at Weinberg College of Arts and Sciences, McCormick School of Engineering & Applied Sciences, Bienen School of Music, the School of Communication, the School of Education & Social Policy, Medill School of Journalism, and the Graduate School. Excluded: All tenured faculty, tenure-eligible faculty, emeritus faculty, research faculty who are not teaching courses, the Feinberg School of Medicine faculty, the Pritzker Law School faculty, the Kellogg School of Business faculty, the School for Professional Studies faculty, Northwestern in Qatar faculty, all faculty teaching only at the Chicago or Doha campuses, all administrators (including deans, directors, provosts, and chairs who may have teaching assignments); graduate students, athletic coaches, all other employees employed by the University, including those who teach a class or course and are separately compensated for such teaching, managers, confidential employees, office clerical employees, professional employees, guards and supervisors as defined in the Act. xiii All part-time faculty employed by the Employer at its campuses presently located at 3700 West 103rd Street, Chicago, Illinois and 18230 Orland Parkway, Orland Park, Illinois, who teach at least three credit hours per semester; but excluding all part-time faculty members in the School of Nursing, all music tutors, all student supervisors in the School of Education, independent contractors, confidential employees and managers, office clerical employees and guards, professional employees and supervisors as defined in the Act. xiv All full-time and part-time ESL teachers, substitute teachers and academic coordinators employed by the Employer in the Chicago metropolitan area. Excluded: All other employees including managers, guards and supervisors as defined in the Act. xv All non-tenured or non-tenure-track lecturers, senior lecturers, master lecturers, and instructors who are salaried (whether full-time, part-time, or half-time), and who teach at least one credit bearing course on the Charles River Campus of Boston University, including the Metropolitan College Prison Program. A non-tenured, salaried lecturer, senior lecturer, master lecturer, or instructor identified above working for the University in another capacity shall not cause that employee to lose status as a bargaining unit member unless expressly excluded in the exclusion listing below. Excluded: All professors (including full, associates, assistants and professors of the practice); faculty compensated solely on a per course basis; School of Medicine faculty; School of Dental Medicine faculty; School of Management faculty; Graduate School of Management faculty; School of Law faculty; deans; provosts; administrators; department chairs; associate chairs; post-docs; graduate assistants; graduate students; athletic coaches; lecturers, senior lecturers, master lecturers, or instructors who teach only courses at campuses other than Charles River (excluding the Metropolitan College Prison Program) or non-degree granting courses (including the Center for Professional Education); Director of the Writing Program, Director of the Health Communication Program, Chair of the Mechanical Engineering Course Review Committee and Chair of the Undergraduate Lab Safety Committee, Manager of the Global Hospitality Education Consortium; Director/Coordinator of the College of Communication Adjunct Writing Program; all faculty who teach exclusively in on-line programs; all other employees; and managers, confidential employees, guards and supervisors as defined by the Act. xvi Part-time adjunct faculty (including adjunct associate professors, adjunct lecturers, adjunct senior lecturers and adjunct instructors) employed by Bentley at its Main Campus, 175 Forest Street, Waltham, MA, teaching at least one credit-bearing graduate or undergraduate course (including hybrid and blended courses) and who are compensated on a per-course basis. An employee working for the University in another capacity who also teaches at least one credit bearing course identified above and is compensated on a per-course basis shall not cause that employee to lose status as a bargaining unit member unless their other capacity working for the University is expressly excluded. Excluding: All faculty who teach only exclusively online courses, courses at campuses other than the Main Campus, non-degree granting courses, or First-Year Seminar, Transfer Seminar, or Career Development Seminar courses; tenured or tenure-track faculty; full-time faculty; visiting faculty; deans; provosts; department chairs; graduate assistants; graduate students; including PhD candidates; managerial employees, confidential employees; guards and supervisors as defined by the Act. xvii All graduate and undergraduate non-tenure track faculty in the below-listed classifications employed by Brandeis University who are contracted to teach at least one credit-bearing or non-credit bearing course (including online, hybrid and blended courses and including Spring, Summer and Fall courses) at the College of Arts and Sciences, the Graduate College of Arts & Sciences, the International Business School, the Heller School for Social

http://thekeep.eiu.edu/jcba/vol8/iss1/1 18 Herbert: The Winds of Changes Shift: Recent Growth in Bargaining Units

Policy and Management, the Rabb School of Continuing Studies, English Language Programs, Gateway Scholars Programs, Summer Courses, or Justice Brandeis Semester, or who are contracted to teach courses in the Transitional Year Program: Adjuncts; Assistant Adjunct Professors; Associate Adjunct Professors; Adjunct Associate Professors; Adjunct Lecturers; Adjunct Professors; Adjunct Associate Professors of the Practice; Instructors; Senior Instructors; Lecturers; Senior Lecturers; Part-time Fellows; In-residence Writers, Poets, and Artists; Research Professors; Associate Research Professors; Assistant Research Professors; Professors, Assistant Professors and Associate Professors Outside the Tenure Structure; Professors and Associate Professors of the Practice who are not on multi- year contracts; Graduate Students who teach courses beyond their stipend and are compensated on a per-course basis; an employee working for the University in another capacity who also teaches a class or course identified above and is compensated on a per course basis is included within the unit, unless the employee is expressly excluded. Excluding: All full-time; salaried faculty; all faculty within the Tenure Structure; visiting faculty; all professors and associate professors of the practice on multi-year contracts; emeritus/a faculty; full-time fellows including Joshua A. Guberman, Kay, and Senior; University Prize Instructors who do not teach any other courses compensated on a per-course basis that is beyond their stipends; all employees who teach only Osher Lifelong Learning Institute courses, Justice Brandeis semester, English Language Program courses, Gateway Scholars Program courses, physical education courses, high school program courses, Summer Music Workshops, Summer Courses, and/or non-credit bearing courses; deans; provosts, associate provosts and assistant provosts; administrators; department chairs; full-time employees who teach courses and do not receive compensation beyond their salary for doing so; graduate students who teach only courses pursuant to a stipend; athletic coaches; all other employees, managers, confidential employees, guards and supervisors as defined by the Act. xviii All Adjunct Lecturers and Graduate Adjunct Lecturers paid by the class, teaching credit earning classes in face-to-face settings (on or off campus) at McDaniel College; Excluded: All other employees, including Adjunct Lecturers and Graduate Adjunct Lecturers who serve only as internship Supervisors, Adjunct Lecturers and Graduate Adjunct Lecturers who teach only on-line, managers, guards, and supervisors as defined in the Act xix All full-time, part-time and half-time, non-tenure and non-tenure track faculty employed by Goucher College to teach at least one credit bearing classes, lessons or labs (including but not limited to Post-Doctoral Teaching Fellows) on its campus located at 1021 Dulaney Valley Road, Baltimore, Maryland 21204; but excluding all graduate and post graduate faculty and teaching fellows, all faculty in the Welch Graduate Studies Center, all tenure and tenure track faculty, all other employees whether or not they have teaching responsibilities, including but not limited to program directors, department chairs, graduate students, teaching associates, teaching assistants, librarians, registrars, deans, provosts, administrators, coaches, office clerical employees, managers, confidential employees, guards and supervisors as defined in the Act. xx All full-time and part-time non-regular-rank faculty who teach undergraduate or graduate-level credit-earning courses or labs (including but not limited to the following titles: Adjunct Professors, Lecturing Fellows, Lecturers, Consulting Professors, Consulting Associates, Scholars in Residence, and Instructors) employed by Duke University in academic programs housed at its campus in Durham, North Carolina, including the Trinity College of Arts & Sciences, the Graduate School, and the Center for Documentary Studies; but excluding all regular rank faculty (including but not limited to tenured faculty, tenure-track faculty, Professors of the Practice, Clinical Professors, Research Professors, and Lecturers), distinguished service faculty, employees in research positions (Senior Research Associate, Research Associate, Senior Research Scholar, Senior Research Scientist, Research Scientist and Lab Administrator) who do not teach more than one credit-earning course during an academic year, Visiting Faculty who have full-time appointments in another educational institution and who teach exclusively at Duke for no more than two years, Post-Doctoral Associates, and emeritus faculty; all faculty at locations other than the facilities described above; all faculty teaching online courses only; employees who do not teach undergraduate or graduate-level credit- earning courses or labs; faculty at the Duke Divinity School, Duke Kunshan University, Duke-NUS Medical School, Fuqua School of Business, Nicholas School of the Environment, Pratt School of Engineering, Sanford School of Public Policy, Duke Law School, Duke University School of Medicine, Duke University School of Nursing, and Duke University Health System; faculty paid by entities other than Duke University (including governments and organizations); all administrators (including deans, directors, provosts, and chairs who may have teaching assignments); athletic coaches; all other employees employed by Duke University (including those who teach a class or course and are separately compensated for such teaching); curators; and managers, confidential employees, office clerical employees, professional employees, guards, and supervisors as defined by the Act.

Published by The Keep, 2016 19 Journal of Collective Bargaining in the Academy, Vol. 8, Iss. 1 [2016], Art. 1

xxi All limited-term faculty teaching with “Term” appointments on a full-time non-tenured and non-tenure track basis employed by the Employer at its Ithaca, New York Campus during the payroll period ending. Excluded: Full-time staff, tenured and tenure track faculty, full-time non-tenured and non-tenure track faculty teaching with “Notice” appointments, artist/writers/scholars in residence, deans (including associate and assistant deans), department chairs and managerial employees, confidential employees, guards and supervisors as defined by the Act and all other employees. xxii All adjunct faculty employed by the Employer who teach undergraduate and/or graduate level courses, who teach in the classroom and/or online, and who teach courses at either the Employer’s Poughkeepsie, New York campus or its Fishkill, New York campus, and Student Teaching Supervisors; but excluding all other faculty, tenured and tenure eligible faculty, full-time faculty and faculty who only teach in the classroom at locations other than the Poughkeepsie Campus or the Fishkill Campus, administrators, coaches, librarians, directors, managers, guards, supervisors and professional employees as defined in the Act, and all other employees whether or not they have teaching responsibilities. xxiii All non-tenured and non-tenure track faculty, including but not limited to those with the titles Lecturer, Visiting Lecturer, Visiting Assistant Professor, and Instructor who have taught at least one-credit hour since the beginning of the fall 2015 semester. Excluded: Managerial Employees (including Head Coaches and Head Athletic Trainers), confidential employees, guards and supervisors as defined in the Act, and tenured and tenure-track faculty, deans (including associate and assistant deans), provosts, and department chairs. xxiv All individuals employed as part-time faculty with an adjunct academic rank who teach a minimum of a three (3) credit college degree level course for a full semester (or the equivalent hours of a semester length course). Excluded: All other full and part-time employees, including visiting and full time faculty, regardless of teaching load, students who are employed by the College, and guards and supervisors as defined in the Act. xxv All full-time faculty who teach undergraduate or graduate-level credit-earning courses or labs at the Employer’s campus located at 2501 Stevens Avenue South, Minneapolis, Minnesota, including ranked faculty holding the titles of Assistant Professor, Associate Professor or Full Professor, pro-rata ranked faculty and visiting faculty. Excluded: All part-time faculty including those holding the titles of Adjunct Faculty or Adjunct Professor; administrators (including Deans, Directors, Provosts and Chairs who may have teaching assignments); Instructors who do not also serve as faculty members; Mentors who do not also serve as faculty members; faculty who teach exclusively on-line; Student Assistants at any level (including those teaching courses in addition to being paid a stipend); Adjuncts who are also employed by the Employer in an administrative role, all other employees at the Employer (including those who teach a class or course and are separately compensated for such teaching); managers, confidential employees, office clerical employees, guards and supervisors, as defined in the Act. xxvi All part-time faculty who teach undergraduate or graduate-level credit-earning courses or labs at the Employer’s campus located at 2501 Stevens Avenue South, Minneapolis, Minnesota, including but not limited to faculty holding the titles of Adjunct Faculty or Adjunct Professor. Excluded: All full-time faculty, including ranked faculty holding the titles of Assistant Professor, Associate Professor or Full Professor, pro-rata ranked faculty and visiting faculty; administrators (including Deans, Directors, Provosts and Chairs who may have teaching assignments); Instructors who do not also serve as faculty members; Mentors who do not also serve as faculty members; faculty who teach exclusively on-line; Student Assistants at any level (including those teaching courses in addition to being paid a stipend); Adjuncts who are also employed by the Employer in an administrative role; all other employees at the Employer (including those who teach a class or course and are separately compensated for such teaching); managers, confidential employees, office clerical employees, guards and supervisors, as defined in the Act. xxvii All full-time and part-time graduate and undergraduate non-tenure-track faculty, postdoctoral fellows, and graduate assistants who teach courses beyond their stipend and are compensated on a per-course basis, employed by Saint Louis University in its College of Arts and Science, School of Education, School of Social Work, Honors Program, or the School for Professional Studies of Saint Louis University who teach at least one credit-bearing course in a degree-granting program at the campus located at Grand Blvd and Lindell Blvd, Saint Louis City, also known as the Frost Campus. Excluded: All other employees: tenured faculty, tenure-track faculty, full-time and part-time staff who also teach as an adjunct, deans, associate deans, assistant deans, provost, vice provosts, assistant provosts, administrators, department chairs, graduate assistants who only teach courses pursuant to a stipend, graduate students, athletic coaches, persons teaching exclusively on-line courses, all persons employed by all other Colleges, Schools, or Programs not specified in the unit description above and faculty who teach non-

http://thekeep.eiu.edu/jcba/vol8/iss1/1 20 Herbert: The Winds of Changes Shift: Recent Growth in Bargaining Units

degree granting courses, office clerical employees, managers, confidential employees, guards and supervisors as defined by the Act. xxviii All full-time faculty and part-time faculty, including those who are also employed as non-instructional personnel. Excluded: All graduate school employees, office clerical employees, all other employees and guards, and supervisors as defined in the Act. xxix All part-time adjunct faculty employed by the Employer in the McAnulty College and Graduate School of Liberal Arts located in Pittsburgh, Pennsylvania; excluding all full-time faculty, graduate students, staff and administrators, office clerical employees and guards, other professional employees and supervisors as defined in the Act, and all other employees. xxx All full-time and part-time contingent faculty who teach at least one credit-bearing lab or class (including online classes) or one ESL class and who are employed by the Employer at its main campus in Lacey, Washington, or at its extension and satellite campuses, including but not limited to contingent faculty with the title of Instructor, English as a Second Language (ESL) Instructor, Educational Supervisor, Education Laboratory Instructor, Visiting Faculty, and Lecturer (Lecturer I, Lecturer II, Lecturer III). Excluded: All regular faculty, Provosts, Academic Deans, Professors, Assistant Professors, Associate Professors, Professors Emeriti, Librarians, nonprofessional employees, all other employees (whether or not they have teaching responsibilities), Summer Cultural Exchange employees who do not have teaching responsibilities outside their Summer Cultural Exchange duties, managerial employees, confidential employees, and guards and supervisors as defined in the Act. xxxi All non-tenure-eligible faculty employed by the Employer, including but not limited to all non-tenure-track instructors, senior instructors, adjunct faculty, senior adjuncts, lecturers, senior lecturers, legacy titles including but not limited to visiting professors, visiting assistant professors, and core lecturers; excluding all faculty teaching in the College of Nursing, all faculty teaching in the School of Law, all other employees, professors emeritus, tenure- track and tenured faculty, administrative faculty, full-time staff who are not compensated additionally for teaching, administrators, department administrators, program coordinators, program directors, directors, clinical professor series, library faculty, research faculty, research scientists/scholars, post-doctoral scholars/fellows, truly visiting faculty, distinguished professors, professors in residence, endowed chairs, campus clergy, deans, associate deans, department chairs, campus safety personnel, lab assistants, graduate assistants, teaching assistants, managers, guards, and supervisors as defined in the Act. xxxii Full-time Faculty, Counselors, and Librarian. Excluded: All managerial, administrative, supervisory, and confidential employees including, but not limited to, Executive Positions, Administrative Positions, Managerial Professional Positions, Classified Staff Professional Positions, and Classified Staff Positions. Also excluded are all Adjunct and Part-time Faculty positions. xxxiii All full-time employees in the lower division position classifications of instructor, associate professor, assistant professor, and professor. Excluded: All other employees of the State College of Florida Board of Trustees including program directors, librarians, advisors, department chairs, all employees of the Collegiate School, all faculty in the baccalaureate program, and all confidential and managerial employees. xxxiv All professional employees holding regular, visiting, provisional, research, affiliate, or joint appointments whose primary duties are teaching, research and service and those professional employees holding these appointments whose primary duties are in direct support of the University's educational and applied research mission, including the following classifications: Professor; Associate Professor; Assistant Professor; Instructor; Lecturer; Wellness Counselor; Librarian; Assistant Librarian; and faculty in the Florida Institute for Phosphate Research. Excluded: All other employees of the Florida Polytechnic University, including President; Vice President; Executive Vice President; Provost Vice Provost; General Counsel; Assistant General Counsel; other non-faculty administrative positions; employees serving as members of the Board of Trustees and managerial and confidential employees. xxxv All full-time instructional personnel, including librarians and guidance counselors. Excluded: President, assistants to the President, registrars, directors, deans, associate deans, coordinators, admissions counselors. xxxvi All full-time (0.51 FTE and above) tenured and tenure-track faculty employed at Northern Illinois University. Excluded: All adjunct, part-time and non-tenure faculty, retirees; students; faculty of the College of Law; and all

Published by The Keep, 2016 21 Journal of Collective Bargaining in the Academy, Vol. 8, Iss. 1 [2016], Art. 1

other supervisory, managerial, confidential and short-term employees as defined in the Illinois Educational Labor Relations Act. xxxvii Department Chairs xxxviii The Twin Cities Instructional Unit consists of the positions of all instructional employees with the rank of professor, associate professor, assistant professor, including research associate or instructor, including research fellow, located on the Twin Cities Campus: Tenure Track: Professors, Regents Professors, Associate Professors, Assistant Professor; Non-Tenure Track: Professors, Adjunct Professors, Adjunct Research Professor, Research Professors, Visiting Professors, Associate Professors, Adjunct Associate Professors, Research Associate Professors, Teaching Associate Professors, Visiting Associate Professors, Assistant Professors, Adjunct Assistant Professors, Research Assistant Professors, Teaching Assistant Professors, Visiting Assistant professor, Instructors, Adjunct Instructors, Lecturer, Senior Lecturer, Teaching Specialist, and Senior Teaching Specialist xxxix All tenured and tenure-track faculty including Chairs Excluded: Contract faculty, Clinical faculty, Research faculty, Assistant Directors and Directors. xl Faculty ("CC Instructor" and "CC Professor") "Counselor," and "Librarian" (both of which are tenure-eligible). "Emergency hires" who are in 1-year fixed-term positions. The legal requirement for inclusion into the unit was "academic faculty working .5 FTE or more, with an appointment length of six months or more. xli All permanent full time faculty members. Excluded: all administrative personnel and support staff. xlii All full-time tenured and tenured-track faculty, Senior Lecturers, Lecturers, Instructors, Clinical Assistant Professors, Clinical Instructors, and visiting faculty at Wright State University. Excluded: All department chairs and heads, deans, provosts, vice-presidents, the President, supervisors defined by Ohio Revised Code 4117.01 (F), all faculty within the Schools of Medicine and Professional Psychology other than those who are tenured or tenured- track, and all other employees not included above. xliii All part-time adjunct faculty employed by Hillsborough Community College (HCC) at its campuses (including Ybor, Brandon, Dale Mabry, Southshore, Plant City, The Regent, Tampa Electric Company Center, and MacDili Air Force Base Center, and locations established in the future) currently teaching at least one college-credit-bearing course (including hybrid and blended courses, online courses, and dual enrollment courses) and who are compensated on a per point basis by HCC, including any employee who meets these criteria and who also works for HCC in another capacity unless expressly excluded. Excluded: All tenured and tenure-track faculty, full-time faculty, visiting or contract faculty, academic advisors, deans, assistants to deans, provosts, coordinators, directors, dual enrollment adjuncts paid by Hillsborough County School Board, employees covered by an existing collective bargaining agreement (professional staff, non-instructional staff, supervisory staff, full-time faculty), administrators, accountants, IT technicians, counselors, athletic coaches, substitute faculty, faculty teaching Postsecondary Adult Vocational Programs (PSAV) certificate credit courses or non-degree granting courses, managerial, confidential employees, guards, and supervisors as defined by the Act. xliv All part-time faculty who teach at least one credit bearing course. Excluded: All full-time faculty; all Faculty Emeritus; faculty who have another position at the College that qualifies them for full-time status with the College; deans, administrators, department chairs; faculty who also serve in a supervisory, managerial or confidential role; individuals who teach courses only in the continuing education program; athletic coaches; all other employees, supervisors, managers, confidential employees, office clerical employees, professional employees, and guards. xlv All adjunct faculty. Excluded: All other employees. xlvi All Adjunct Faculty employed by Herkimer Community College. Excluded: All full-time faculty, all adjunct faculty with dual function status who hold any other full-time position at Herkimer Community College, all directors and supervisors, all employees represented by another certified or recognized employee organizations at Herkimer Community College xlvii Adjunct Instructors, Para-Professional Tutors, and Professional Tutors; Excluded: Full-Time Faculty, Student Employees, Managerial, Supervisory, and Confidential Employees and Faculty who exclusively teach TC3 courses through College Now or other concurrent enrollment programs for high school students. xlviii Regular Part-Time Faculty.

http://thekeep.eiu.edu/jcba/vol8/iss1/1 22 Herbert: The Winds of Changes Shift: Recent Growth in Bargaining Units

xlix All graduate students who are regular full-time and part-time Teaching Fellows, part-time Acting Instructors, and Associates in Teaching in the East Asian Languages and Literatures Department. EXCLUDED: All other employees, managers, supervisors and guards. l All graduate students who are regular full-time and part-time Teaching Fellows, Part-Time Acting Instructors, and Associates in Teaching in the English Department. Excluding all other employees, managers, supervisors and guards li All graduate students who are regular full-time and part-time Teaching Fellows, Graders, Part-Time Acting Instructors, and Associates in Teaching in the History of Art Department. Excluded All other employees, managers, supervisors and guards. lii All graduate students who are regular full-time and part-time Teaching Fellows, Graders, Part-Time Acting Instructors, and Associates in Teaching in the Math Department. Excluded: All other employees, managers, supervisors and guards. liii All graduate students who are regular full-time and part-time Teaching Fellows, Graders, Part-Time Acting Instructors, and Associates in Teaching in the Geology & Geophysics Department. Excluded: All other employees, managers, supervisors and guards liv All graduate students who are regular full-time and part-time Teaching Fellows, Graders, Part-Time Acting Instructors, and Associates in Teaching in the Physics Department. Excluded: All other employees, managers, supervisors and guards. lv All graduate students who are regular full-time and part-time teaching fellows, graders, part-time Acting Instructors, and Associates in Teaching in the History Department. Excluding All other employees, managers, supervisors and guards lvi All graduate students who are regular full-time and part-time Teaching Fellows, Graders, Part-Time Acting Instructors, and Associates in Teaching in the Political Science Department. Excluded: All other employees, managers, supervisors and guards. lvii All graduate students who are regular full-time and part-time Teaching Fellows, Graders, Part-Time Acting Instructors, and Associates in Teaching in the Sociology Department. Excluded: All other employees, managers, supervisors and guards. lviii All graduate students who are regular full-time and part-time Teaching Fellows, Part-Time Acting Instructors, and Associates in Teaching in the Comparative Literature Department. Excluding All other employees, managers, supervisors and guards. lix All full-time and regular part-time employees who regularly work in one or more of the following shifts: Afternoon Service/Utility, Baker’s Helper, Beverages, Cold Food Re-Stocker/Desserts & Bread, Cook’s Help, Custodian Lunch, Custodian Dinner, Deli, Dessert, Dish Line, Dish Line/Silverware Drop Attendant, Dish Machine Operator, Dishroom Floater, Dishroom Floater/Glasses, Dishroom Helpers, Dishroom Restocker, Dishroom Utility, Glasses, Grill Cook, Grill/Carver, Honor G Grill Clean Up Crew, Inventory Late, Pizza, Plat Du Jour, Pots and Pans, Salad & Soup, Sanitation/Spills, Sauté Cook, Silverware Sorter, Smoothie Attendant, Stir Fry Clean Up, Student Dishroom Leader, Student Leader Marketplace, Student Leader Trainee Dishroom, Veg Prep, Vegan/Halal, or Waffle Bar Attendant; excluding all regular full-time Custodians, Facilities Management Staff, Marketplace Cooks, Bakers, and Chefs, and guards and supervisors, as defined by the Act, and all other employees. lx Graduate Assistants, Graduate Teaching Assistants, Graduate Research Assistants, Graduate Instructors, Graduate Library Assistants, and Graduate Fellows. lxi All student employees who provide instructional services, including graduate and undergraduate Teaching Assistants (Teaching Assistants, Teaching Fellows, Preceptors, Course Assistants, Readers and Graders): All Graduate Research Assistants (including those compensated through Training Grants) and All Departmental Research Assistants employed by the Employer at all of its facilities, including Morningside Heights, Health Sciences, Lamont-Doherty and Nevis facilities. Excluded: All other employees, guards and supervisors as defined in the Act. lxii All student employees who provide teaching, instructionally-related or research services, including Teaching Assistants (Course Assistants, Teaching Assistants, Teaching Fellows, and Tutors), and Research Assistants

Published by The Keep, 2016 23 Journal of Collective Bargaining in the Academy, Vol. 8, Iss. 1 [2016], Art. 1

(Research Assistants and Research Associates), and Student Assistants 3 at the Parsons School. Excluded: All other employees, guards and supervisors as defined by the Act. lxiii Ithaca and Geneva Campus-based graduate students enrolled in the Graduate School who hold titles Under University Policy 1.3 as Teaching Assistants, Graduate Research Assistants, Graduate Assistants, and Research Assistants excluding Fellows. lxiv All Graduate Assistants employed by Portland State University, including Graduate Administrative Assistants, Graduate Research Assistants, and Graduate Teaching Assistants, but excluding supervisory and confidential employees.

http://thekeep.eiu.edu/jcba/vol8/iss1/1 24 (https://www.insidehighered.com)

Could postdoc unions be the next big thing in collective bargaining among academics?

Submitted by Colleen Flaherty on October 31, 2017 - 3:00am

The past few years have brought unprecedented attention to the working conditions of academics off the tenure track. With that attention has come increased unionization efforts among adjuncts [1] and graduate students on private campuses, following a major decision [2] from the National Labor Relations Board saying they’re employees entitled to collective bargaining.

Could postdoctoral unions grow in number for the same reasons? Some experts think so.

“It is likely that there will be increased unionization efforts by postdocs” going forward, said William Herbert, executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College of the City University of New York. “The reason is that they are another element of precarious work in higher education. Their working conditions have been the subject of various reports and raised concerns about postdoctoral salaries and the extent to which their appointments entail actual training.”

The National Academy of Sciences, National Academy of Engineering and Institute of Medicine, for example, in a 2014 report [3]urged major reforms to policies governing postdoctoral employment. Too often, the report said, postdocs are underpaid and undermentored and spend too long in these positions before moving on to something better and more permanent -- if at all.

That paper and others indicate “there’s a real need for change,” Herbert said. “One way of getting that change is through unionization.”

Postdoc Unions Across the U.S.

The National Postdoctoral Association has defined a postdoc as an individual “holding a doctoral degree who is engaged in a temporary period of mentored research and/or scholarly training for the purpose of acquiring the professional skills needed to pursue a career path of his or her choosing.” In other words, they’re supposed to be advanced, temporary trainees.

Within the last two decades, however, postdocs have become a plentiful, relatively inexpensive source of labor for the booming academic research enterprise. Not only is postdoctoral experience now expected in many fields, but Ph.D.s can land one postdoc after the next. The National Academies found that the number of postdoctoral researchers in science, engineering and health increased 150 percent between 2000 and 2012, “far surpassing” both the percentage increases in graduate students and in tenure and tenure-track faculty positions over the same period. Between 60,000 and 100,000 postdocs are estimated to be working in various research fields within the U.S. Those numbers are much smaller in the social sciences and humanities, but they’re growing, too. That rapid growth hasn’t translated to widespread unionization -- at least not yet. Currently there are just five postdoc unions in the U.S.: across the University of California system, established in 2008 in affiliation with the United Auto Workers; at the University of Massachusetts, formed in 2009, also with UAW; at Rutgers University, formed in 2009 in affiliation with the American Federation of Teachers and the American Association of University Professors; across the University of Alaska system, except first-, second- and third-year postdocs, in 2010 and affiliated with the AFT and AAUP; and within the University of Connecticut Health system, in affiliation with University Health Professionals (AFT). Connecticut differentiates between postdoctoral fellows and trainees, however, and only fellows are covered by the union contract.

The Connecticut union predates the California one, but the scope of the latter union -- thousands of postdocs at research universities across the state -- woke higher education in general up to the possibility of postdoc organizing. A first attempt at organizing, in 2006, fizzled out but the 2008 election was decisive. The union’s eventual first contract streamlined employment policies, included modest pay raises and increased employment protections and other benefits, demonstrating that these efforts could produce meaningful results.

According to one study [4]of the contract, the UC union established a wage scale that is in accordance with federal standards set by the National Institutes of Health, across all system campuses for all postdoctoral employees, with a minimum salary of $38,000. Prior to the contract, the common system salary scale started at $29,000. And indeed many universities' pay scales for postdocs lag the NIH standards. Standard health insurance for postdocs and their families also was included in the contract, in more generous terms than had been offered by the system since 2005. The contract also provided postdocs, for the first time, with no-cost life insurance coverage, accidental death and serious injury insurance, and short-term disability.

Subsequent contracts in California and elsewhere have built in on initial gains. In 2015, the Rutgers union voted to extend an earlier agreement through 2019. Updated improvements include a new minimum salary of $40,000 or a 2 percent pay increase, and a pay increase of more than 2 percent for each year of the contract after that. Increased support services for international scholars also were included.

A number of reports calling for reform to postdoc employment conditions have highlighted the lack of institutionwide policies [5] governing these workers; in many cases, for example, the amount of family leave or vacation or lack thereof to which a postdoc is entitled (or is aware they are entitled to) depends on the generosity of their principal investigator. In response to such criticisms, more campuses have opened central postdoctoral offices to inform researchers of their benefits and otherwise assist them.

Rutgers is one such institution; it recently opened an Office of Postdoctoral Affairs at its campus in Piscataway, N.J. Itzamarie Chevere-Torres, the office’s associate director, said the union and the office aren’t redundant, in that she often helps postdocs understand their major contractual rights. An institutional policy included in the contract, for example, is that no postdoc may work in that role for more than five years -- the limit recommended by the National Academies’ 2014 report.

The office also offers career development, something Jerome Kukor, graduate school dean, said it’s able to focus on because the contract clarifies so many other things.

Clarifying Things

“There was fuzziness within individual laboratories about whether postdocs were eligible for vacations or leaves of absence or family leave, and that’s all very clear now,” he said.

Echoing concerns voiced on other campuses, some wondered during Rutgers’s union drive whether collective bargaining with postdocs would negatively impact research efforts. If postdocs earned more, for example, would the principal investigators who paid their salaries through grants be forced to hire fewer fellows? Would the mentor-mentee relationship between postdocs and professors be fundamentally compromised? Kukor said that seven years into unionization, “this relationship has turned out to be a very good one for us.”

Labs are hiring postdocs at the same or higher rates than they were before, Kukor said, as postdocs -- who have few to no work-related obligations beyond research -- remain attractive employees. There have been no unfair labor practice complaints or grievances filed against the university by the postdoc union, either, Kukor said -- something of a surprise at Rutgers, where nearly all employees have long been unionized and have, at times, butted heads with management, in union parlance.

A significant item in the Rutgers contract is paid time off, separate from university holidays and bereavement. Full-time members of the unit get 15 days paid time per year. After four years, it’s 18 days. Faculty supervisors still have to approve the time off, but it can’t be “unreasonably” denied.

Unlike Herbert, Kukor said he didn’t foresee a wave of postdoc unionization, since there hasn’t been much movement since the initial cluster of drives around 2010. Just recently, however, a majority of postdocs at the the University of Washington filed union authorization cards, in anticipation of a union election.

Andrea Canini, an organizer with UAW who is currently assisting in the drive at Washington, said that “postdocs around the country see the gains bargained by [California system] postdocs and want to form unions and bargain for improvements with their employers.”

Michelle Tigchelaar, a postdoc in atmospheric sciences at Washington who favors unionization, said she and her colleagues were in fact inspired by their peers in California. And like them, postdocs at Washington are looking for clear, standard policies about their employment in which they’ve had some say. For the moment, she said, “decisions about our employment are made by individual departments and PIs.”

Preliminary issues of concern to union supporters include pay, especially considering the high cost of living in Seattle; Tigchelaar said many postdocs receive a salary equal to or less than the NIH- recommended minimum of $47,848. Paid parental leave and affordable child care are also central themes in organizers’ conversations with hundreds of postdocs, as are just cause for termination and strengthened grievance procedures.

What’s Ahead

A university spokesperson referred requests for comment to an Oct. 11 letter to the would-be union from President Ana Mari Cauce. In it, she expressed disagreement with the eligibility of some proposed members, such as acting instructors and lecturers, as those are faculty members by university policy. But of postdocs in general, Cauce said, “I respect your right to organize and will not interfere with that right.”

Herbert noted that all postdoc unions, established and proposed, are on public campuses. Part of that is culture; faculty and graduate student groups on many of the campuses were previously unionized. In any case, there’s no reason that postdocs can’t unionize on private campuses; they’re not students, so it would be hard for institutions to argue that they’re not entitled to collective bargaining under the National Labor Relations Act. At the same time, they’re not managers, so institutions can't argue that they’re subject to a legal precedent saying that tenure-track and tenured faculty members are managers and therefore not entitled to collective bargaining at private institutions. Herbert said institutions with a religious affiliation could argue that they are exempt from NLRB oversight, as they have in many non-tenure-track-union bids. However, the NLRB has in recent years narrowed the scope [6] of who qualifies as an employee who performs a religious function on a private campus. Tigchelaar, at Washington, said that however liminal, the “postdoc position is a critical component of the path to tenure,” and, therefore, “defining who gets to be a scientist.” Still, by entering a postdoc position, she said, “many of us elect to make significantly less than we could in industry, and in fast- growing cities this pay could be prohibitively low.” Unionization is, of course, one way to counter that.

She added, “When postdocs at other institutions see what is possible, they will want to make these kind of positive changes, as well.”

Unions [7] Faculty [8]

Source URL: https://www.insidehighered.com/news/2017/10/31/could-postdoc-unions-be-next-big-thing-collective- bargaining-among-academics?width=775&height=500&iframe=true

Links: [1] https://www.insidehighered.com/news/2016/01/15/does-new-crop-first-adjunct-union-contracts-include-meaningful-gains [2] https://www.insidehighered.com/news/2016/08/24/nlrb-says-graduate-students-private-universities-may-unionize [3] https://www.insidehighered.com/news/2014/12/11/new-report-argues-better-mentoring-pay-and-career-progression- postdocs [4] http://www.tandfonline.com/doi/abs/10.1080/00221546.2015.11777365 [5] https://www.insidehighered.com/news/2017/06/22/survey-parent-postdocs-reveals-lack-access-paid-parental-leave- pressures-return-work [6] https://www.insidehighered.com/news/2015/01/02/nlrb-ruling-shifts-legal-ground-faculty-unions-private-colleges [7] https://www.insidehighered.com/news/news-sections/unions [8] https://www.insidehighered.com/news/news-sections/faculty Current Labor Relations Issues in Higher Education

William A. Herbert, Esq. Distinguished Lecturer and National Center Executive Director Hunter College, City University of New York http://www.hunter.cuny.edu/ncscbhep 425 East 25th Street, Box 615 New York, New York 10010-2547 (212) 481-7550 (office) (518) 605-4402 (cell) [email protected] Follow Us: @HigherEd_CB

2012 Faculty Union Density Public Institutions with Faculty Units: 562 Private Institutions with Faculty Units: 77

2 The Growth in Union Density 2016-17

2016: New Faculty Units

4 Growth at Private Sector Institutions 2016-2017

28 Newly Certified Private Sector Faculty Units

27 Non-Tenure Track Units 1 Tenure Track Faculty Unit (2 being challenged)

FT: 2 PT: 5 FT-PT: 20 FT: 1

Number of Faculty: 5,862 Number of Faculty: 61

36.4% ↑ over 77 identified units in 2012 Fordham University: 905 NTT PT-FT Unit; Tally 456-28

6 Growth at Public Sector Institutions 2016-2017

Newly Certified Public Sector Bargaining Units

6 Non-Tenure Track Units 10 Tenure Track Faculty Unit

PT: 5 FT-PT: 1 FT: 7 FT-PT: 3 Chairs & Admin: 2

Number of Faculty: 2, 551 Number of Faculty: 2, 108

3.2% ↑ over identified units in 2012 Total Public Sector Faculty Increase in 2016: 4,659 Total Private Sector Faculty Increase in 2016: 5,923 December 2017 elections awaiting certification: Broward College: 1,669 NTT; Herkimer Co. CC.: 56 NTT 8 Student Employee Elections and Bargaining Units 2016-2017

Student Employee Unionization 2012 Data

Total Number of GSE in Bargaining Units in 2012: 64, 424

Source: 2012 Directory of U.S. Faculty Contracts and Bargaining Agents in Institutions of Higher Education

10 Student Employee Unionization 2016-2017

29 questions of representation involving student employees 7 newly certified bargaining units with a total of 7,439 employees 8 newly certified mini-units at Yale University under challenge 10 other certified units under challenge or pending petitions 3 petitions withdrawn: Washington University, Duke University, and George Washington University (RA’s); Voluntary recognition denied at Georgetown University

2012: 64,424 GSE in bargaining units 2016-2017: 7,439 GSE in newly certified bargaining units 2016-2017: 24,216 GSE in challenged or proposed units Potential ↑ of 40% of GSE in bargaining units

Student Employee Unionization: 2016-2017 Institution Affiliation Status Portland State U. AFT-AAUP Certification Without An Election Tufts University SEIU Tally: 129-84, Certification Brandeis University SEIU Tally: 88-34, Certification American University SEIU Tally, 212-40, Certification New School UAW Tally, 502-2, Certification Grinnell College IND Tally: 21-1, Certification for Student Dining Staff Columbia University UAW Tally: 1602-623; Certification Yale University UNITE- 8 certifications of micro-units by department under HERE Challenge at NLRB; NLRB rules in PCC Structurals Cornell University AFT-NEA Non-NLRB election held under Cornell-Union agreement; Initial GSE voted against representation (856-919) Harvard University UAW NLRB affirmed the decision to set aside election (1272- 12 1456) and hold a rerun about an agreed-upon GSE unit. Student Employee Unionization: 2016-2017 Institution Affiliation Status Loyola Chicago SEIU Tally 71-49; Certification under Challenge at NLRB Univ. of Chicago AFT-AAUP Tally: 1,103-479, GSE Certification under Challenge at NLRB Univ. of Chicago IBT Tally 67-13; Student Library Workers; NLRB ordered a hearing on one of the University’s election objections Penn State Univ. NEA Petition Pending before Pennsylvania Labor Relations Board Boston College UAW Tally: 270-224; Certification under Challenge Univ. of Penn. AFT Petition Pending before NLRB; RD applied PCC Structurals U. of Missouri NEA State Court Lawsuit Pending under Missouri Constitution U. of Pittsburgh USW Petition Pending before Pennsylvania Labor Relations Board Duke University SEIU Tally: 398-691, Petition Withdrawn George Wash. U SEIU Petition Withdrawn for Resident Advisors Washington U. SEIU Tally: 174-216, Petition Withdrawn 13 Georgetown U. AFT Request for Voluntary Recognition Rejected by University

CURRENT LABOR RELATIONS ISSUES IN HIGHER EDUCATION – CASES

Board of Higher Education of the City of New York, 2 NYPERB ¶3056 (1968)

Cayuga Community College and County of Cayuga, 49 NYPERB ¶3007 (2016)

Genesee Community College and County of Genesee, 24 PERB ¶ 3017 (1991)

Pacific Lutheran University, 361 NLRB No. 157 (2014)

Trustees of Columbia University, 364 NLRB No. 90 (2016)

PCC Structurals, Inc., 365 NLRB No. 160 (2017)

!"#$%&'$()

!"#$ %!"

!"#$%#&"'"%()$!##&!")!#&*#+, , !"-'.-$!/)#&)#&!")!(/.!#&*#+, , (!%&%$!##&)#--'!$)".,$&-)#, 0 1 1)2223 #!%1"-.,) 45#. "1)#*-,'#'"1&#*- &'()! !"

#!%1"-.,) 45#. "1)#*-,'#'"1&#*-

! "

# "

$ # " # # "

# # # "

! # % "

$ "

$ # # # "

$ # # "

& '# # ' ' # "

$ (

)

! -60 ) ) (0 , , . , , 0 77,89:;1! 6 6 6 0 "6 ) ,

6TFJTCZQFSNJTTJPOPG5IPNTPO3FVUFST - - - Reprinted with Permission ! !"#$%&'$()

1!-60) 0 6 6 <

=8>$ 06 ? @= >, = > 1

=7>$ ,A A 1

! , 6 , 06 1" 0 , 6A A , ,6 0 6 1

! 0 0 , A 6 , 66 6 1

$ 0 0 ,06 ? A 06 1

$ 6 ) ,B1, A , & 7;,73,79 8:,83,77,89:31$ 06 6,0 , 1+,B1,% , 8, 89:31 , 1+ 6 6 1

! 1+ 1! , 0 -60) , 5 7:,89:3, 6 1( , 6 <

! -C:728 D6 0 66 , 6 1E! 8F ? ? , 60 6 A 61$ 5 8,89:3, 61! 6 0 @ 0 1

( @, 00 6 6 < , 0 1!0 0 1

! 60 6 B <

& ! G,7H2 . 6

! !"#$%&'$()

) 6 ! F37 . 6 , 6 6 6 # ! 88H . 6 ! "6 8;2 . , I ! $ 8,222 . 6 ! 8,3G8 . : ! 8,7G; . : MM $ *'++, MM M M 81! 06 1! ,6 6, , , 1

71! , =" "6. . >, , 0 , , , 1

F1! 6 , ,, = >, 6, 6 , , 1

! @ 0 0 , 1$ 6 66 0 0, 0 A , 06 61! 6 , 1

$ ? 1$ 6 ,0 I 1! 6, , 0 06 6 6 1

$ 0, 0 , 6, 06 6 66 6 1! ? 1! B 6 ? 0 06 1

! " !"#$%&'$()

!(0 ) 6 6 0 6 1! ;HJ , , 1! 6 1 6 0 6 , 0 ) (0 1

! 0 16 6 0 0 , B , 1

*0 A 6 66 6 1 & 6 1 , , 1& 00 6 , 0 1 , , 0 6 1 & A 6 6 0 0 1 , , 0 1& 0 )(0 4 , , 6 6 0 6, , , , 6 1

! 6 6 6 0 6, ? 1! 6 = . - ) . % K8,) 1)28G:, ) . % ,) 1)28G9>1 6 1

$ 6, 6 6 1! 0 1) 6 666, 0 , 0 , , 6 6 0 ,A 0 A 0 1"6 I 1 , 0 , )(0 0 0 0 1 0 , 6, 06 ,A , 1* 6 , 1# , 0 1$ 6, 1

$6 1! 0 6 0 , A , 01 0 , 0 0

! # !"#$%&'$()

, , 01! 0 1! 6

111 , A = > 1!A , , 1

*, , 6 1

0 , , 0 @ & $, <

81#%% , 6 , , , , 6 , 6 , =" "6. . >, , 0 , = 6>, , , 6, 66 64 6 0 0 ) (0 6 , , = >, 6 , 6 , , , ,, A 6 0 , 6 , 0 , , , , , , , 6 ,0 , 0 4 %)!% 0 0 ,0 , I 0 B C7281:=>=8> 1

71#%% ,A 6 0 0 )(0 , A 66 , , = >, 6, 6 , , , ,,06 ,06 ,06 06 4%)!% 0 0 ,0 , I 0 B C7281:=>=8> 1

F1!)(0 ,0 , I )(0 1%<$ 6 9,89:3

)

? ) (0 1

! $ !"#$%&'$()

. 72; ! - 66 6 1! 6 1 6 ,! ) ,67G F8,89::<

! ! 1111$ A, 60 ,6 , , 1

! 0 6 )(0 1!! ) ,67G7H<

" ! 111! 6 , , ,111

! <

6 0 0 0 6 , 0 0 60 , 6 4

! B 6 6 , ? , 66 6 ,0 1

! < ? 0 1

! ! ) 67;73 , <

! 6 0 , 0 01 ! 0 6 1 66 0 0, 01* 66 60 6 1

6 , =$' ! -,6;><

111. 606 6 0 1

!)(0 0 6 6 1

0 0, 0 6 6 6 0 1 , 0 (0 , 6 1) ? )(0 0 1 ? 0

! % !"#$%&'$()

? (0 1

6 )(0 66 6 1

-) L7283! 1 6(1.1' 0 * 1

! &

!""#$%"&'(

!"#$!! "

!"#$"!% #&!%''$ "&& ("!#'&"))%!"&%* *!"#$"!% #&!%''$!%#&%(!"#$"* *!"#$"!% #&!%''$("!#'&"))%!"&%* + , ! ,!-./0 "$"&"*1 "!%*2& %&'&( ) !"

3/,3..3 * * *! 4 55,.3) #1 *" # 55,5.5! *#)6*( 4 55,50! *! 50,50 !4 * & 07 0885

&#1#1!9*'"%'"&%)) !"')&"1%$":* !%' ,'%"1* * *%1*)!2%!9;9$ )#)" ,1!"'%*'"%'"&%)) !"')&* +

"$"&" 1 "!% 2&

! "'<= > 4 44 ?4 @07 A 0885B.83/CD,& 4 > 4 4 = 4 . A58/- B3E-EC,2 + * > * 4"'< 4> * 4 > 44 , + + > > * 4 > * ? +> ," * + > + > 44 , + * .88> 4 4 F + 4 ,G

$% &%

6TFJTCZQFSNJTTJPOPG5IPNTPO3FVUFST - - - -Reprinted with Permission

! !""#$%"&'(

& ? ! 4! ! 4! ! 4B +*! 4C " +'< 4B"' * > ! 4 44 ,

' %

&! 4? "'<= 4 ,( *! 4? "'<= 4 > 4 * 44 4 ? * * H * + * + , . ) *! 4 "'< F4 G ? > * 4 4 4, 5 & * ! 4? "'<= 4 4 + +, 0

? *! 4 + ,&! 4? "'<= * 4 4 , / ' *! 4 "'< + 4+ > , - &! 4 "'< + ? )#& B)#&C 4 , I (*"'< *! 4 4 * 4 > , 7

& ! 4 JB3C ! 4 ! ! 4( " BF( " GCKB.C + KB5C K B0C , E

& & ! 4( " B! C * 4 *F4 4#*G J

&4 4 B C 4 ? ?4 +4+ + ) 35 , 38

) 35 F1+ ! GF4 4 + G ! , 33

&( " ?-- * 4+ , 3. * ! 4! ! 4 &( " ?3E5> B 3. C* + , 35

( .835.830 * 4 L/0*8.03 KL-8*7I0 " KL-I*5/3 " KL78*83- , 30 ( *

! !""#$%"&'(

H 4 3I 58 * 78M , 3/

* * F + G * 44* .835.830*LE-- B C L3*583B C ! , 3- "> + +F + G , 3I

( +* 4 +* 4 J +* + ? +! 4* 4+ * + * + * , * 4 +( " ?* ,( + *+ +,( )*& )* &""!( , 37

"> * H + 4F + G ,"> + +,& 4 + 4, 3E "> H + * * H + 4, .8 "> * + ! 4, .3

" 4 )+9 *1+ ! 4*2 & 1+ *F = > + 4+ 4*+ + + 4G , .. 9 + * > + 4 + 4 4, .5 9 ?*3EE8* ( " > 4> * + K?F > > ,G .0

" 4 * 4> * + + 4! 4,"> )' = ) & = ),"> * + * &""!( ,

& + ! 44 > ,1+ 4 4> * 44,( ++ > 4 K> + , ./ ( 4 + ! 4 * + & , .-

& F 4 4 ,G .I * F@D 4 + 4

! " !""#$%"&'(

+ + 4 4,G .7 4 * 4F + + N.8I,3 "* 4+ ,G .E

"+ J

# * * 4 4 ? * * H * * + * , 58

" * * ?4 * = 4 4 , 53 (* +* 44 ? + + 4? , 5.

& + , ( * "'<* > 44> 44 ,

* > B* C 44 , 55 & F4 G F ,G 50 & ?+ 44 4 J

@"D 4 + 4 * + !#+ ,

& + ,4 4 + + * H * ,

O+ ? 4 44 4 , ( 4 , * * ,( ++ 4 * + , * * + 4 ,

( ? 4 4 + + , * * + , ( + !#+ K * * 4 4 + 4* * * * 4 , 5/

! # !""#$%"&'(

& ,* *4> = 44 + + * * * ,O ?.88> + 4 ,

&! 4 F 4 *G 5- 4 5I , 57 " * * "41 * F 4 @+D + ,G 5E

+ * 4 * ! 4 4 ,& **1 F GF +@D 4 4 + *G 4 + 4 * , 08 # *1 = 4 ,' * + + + + * * 4 4 + *> +4 + 4> , *1 ,O +4 = * >! 4= * * F 4 ,G 03

+ * 44 > ,& 4 > * +** ( " 3EE8 > 46 > 4 ,' * ! 4( " + + 4! ( " 4 > * * ( " ,

& ! 4 4 44 * *? > * + +,& ! 4* + 44 * 4" 4 53*.83-*? 4 F4 4 G ( " ,O =4 4 * > ( " H 4 + = + 44 H 4 ( " > * 4+ + + ! 4 ,

"'<= 4 44 * * 4 > * ! 4= ? , +! 4= &( " )#&,&! 4 F 4*)#& 46 * ( " &

! $ !""#$%"&'(

( " P Q ,G 0. O+ 4 > * 4 * , 05 " 4 + 4* +4 )#& 44 ! 4,

" 4* "'<= * > * ? * ,

@07 0885D 53 58I8 3 5EE,7/ 0. 588E 30 58/3 55 585/ 5- 5857 0/ 58.8 07 58./ 0/ 58.8 0. 5858 0. 588E 5E 58.0 3. 58-7 33 58I/ 3. 58-7 0I 5883 0. 5858 . 58/- I 085. I 0800 07 58.5 I 085. E 58..

( 3 07 A0885B.83/C, . ? ,3*38*33*3.*35*30*3/*3-*3I, 5 ? ,5*/*-*I*7*E, 0 ? ,., / ? ,03E, - ? ,37, I ? ,.8, 7 ? ,.3, E ) (*< ?3A/, 38 .833.83-! *< ?5*" *N33,&.880.833! 4 4 , < ?.*" ,*N33,&3EI83EI.! " ! ! 4B! 4= 4C " ! ! 4( " * + F !"#* $ %

! % !""#$%"&'(

& " % 4 4 * ,G< ?0*" ,*N3,-B 4C, 33 $ ,*N35,&.880.833! 1+ ! ,< ?.*" ,*N35,& F1 ! G * H 4 H F " +,G< ?0*" ,R*N-,., 3. < ?3*A30, 35 $ ,K & *+ ,.*,3/, 30 < ?3*A3I,& .83/.83- * +*L/-*/57KL-5*E77KLI8*85.KL75*8-7,< ? 5*" ,RS*N3, 3/ < ?5*" ,RSNN3,3,.,., 3- < ?3*A-K< ?5*" ,RS*N0,.83/.8E3-* + 4LEE/355E, 3I & *+ 3E-EI, 37 < ?3*AA37*33K< ?5*" ,RS, 3E < ?3*A3., .8 < ?3*A35K& *+ 3*,535.B)+ CKEIE7B9 C, .3 %' '& *+ 3*,.8B"> $ 4 )+ ' ! 4CK< ?3*A33BF! > &""!( 4 4 GCK& *+ 3*, 383B! 4 4 > C, .. & *+ 3*,EIE7B9 C, .5 & *+ 3,E7, .0 & *+ 3*,II, ./ < ?5*" ,SK& *,38738E, .- < ?5*" ,R, .I "" *53 A58I8*53//B3EE7C, .7 $ *H 4% *3 A5EE,7/*5.53B3E-EC, .E %'( ) * *0. A588E*58.IB.88EC* %* *30 A58/3B3E73CK +*55 A585/B.888CK,&*5- A5857B.885CK ,- &*0/ A58.8*58/8B.83.C, 58 * 07 A58./* TTT B.83/C BH 4 C* H 4 ,- &*0/ A58.8*58/8B.83.CK4%"%* *0. A5858B.88E./%'( ) ( &*0. A588EK!012%*5E A58.0B.88-CK%"%* *3. A58-7B3EIECK+"-%* *33 A58I/B3EI7CK%"%* *3. A58-7B3EIEC, 53 !*0I A5883*5885B.830C, 5. %"%* *0. A5858*533.B 44 44 CK !*0I A5883* 5885B 4 * 4 * + + 4* 4* 4 + 4 4 +C, 55 . A58/-B3E-EC, 50 $ ,50-E, 5/ $ ,50-E50I8, 5- ) ? *3-, 5I I A085.B3EI0C, 57 I A0800B3EI0C, 5E *07 A58.5*,7EB.83/C, 08 I A085.*0800080/, 03 ) ? *3I, 0. ) ? *3E, 05 % "*E A58..B3EI-C,

' %&% U.837& , 4#,),$ + O ,

! &

!"#$%#&&#'

!!"#$ !%

!"#$%&" '&"(($)'&!"!(%' " %"( !%%"&!"*!+* "*!)$%&" '&"(($!)&"' "#$%* ("*!)$%&"' (",%'*("&!(-./*&0( %0& ("%!%%"&!"*("&!(.111*!#%& *!#(&"*0"2 2&3456 !'(27%((!*& ! %"89!((2%$8&:2%& ;8 &'()!!

..2.3$ *: ..266 *& ..246 *& & < 332363& *'%=*# < > 332353& *& > *% 9<+ + +& > 3323-.& * & * ! ? 3323/4& *"? & *!@ > 3A23.# >& > > *%@ > $ 63 51A-

!'(27%((!*& ! %"89!((2%$8&:2%& ;8

9? @? ? < B > <, * @ ? > < > 2 )>> < @ >@ 2#? (>> < < CDA3.12.6E*? >< <* < > < D61/23C>E >!2# ? * (DA31-DA31/*?? < > >> > < * > < !2

! >& E*>

! " #$ # !% & >& E*>

'!# & >& E*> @

"# $#

? F >?$& ,'*( -./*&@% @ ! *( .111*!#%& *!#(&"C&%!E ?) > C) E2?) ??$& & <C& <E<

6TFJTCZQFSNJTTJPOPG5IPNTPO3FVUFST- --- Reprinted with Permission ! !"#$%#&&#'

> *?& >$C& E*??& <?B ??< >? ,# !C!E??& >? < < ? ?& <2! < E* . ?? *?) ??B ??& < ?& ?> < >? < < > ? &%! ? >?$& & < % ! * !+C! E2

&%!F ?) , ??& << > ?& ?? & <?B >? ? ? <2&%! < ??& ? 2

?! < ?&%!,F < * @*??) , 2

9> ??! ,?&%!,F 2F > @ ?.4 < > , >?) , * 6 ? > ><F > ? 2&%! @?) , ) 3.*.//1*> @F : 63*.//.*?>>? <? > 2F * <*2

< ? *>> ?) , >>2? &%! F ?) ? *?? ? ' > ? ?@ >? < @ > < 29 ?) , * > ? > ?? * ( ! ( # 3 ? ? <?< > *? < D61.2ACE >?!*? <B ??< >? !?? < >? ? ? < @ ? > ? , ?@? ? <? < >2

" &%!,F ??) , ? , ( ! ( #

%./-5*? (? < < < ? 2' ? < <*DA3.12.6 >? (? < < > ? > >?!2? @ ? ( <? >? > <2&%! < ? ? @<@ ? < > >?!*B ? 2 @ *./G4* 5 D61/23C>E >?!?> > < >?!,@ H 2I?> >> <?> < <<@ ??&%! ?@ > ? J > (DA3.12.62?(< ?@><? <? > < < ?@ ? < ? * ??>> < * ?< > > (DA3.12.62

&%! (DDA31-A31/?? ? < > ?> > > < >? <, > > @

! !"#$%#&&#'

< > ? >? 2' &%!* @? >? ( > > > ) () @ <2 >? @ >? ( > < ?< ? < >? ,> ? <, <29? &%!, *?? *?>> @ (DDA31-A31/ < < <? > < ?!2 ?> < <*&%!,F *?) , >> ? ? ) > ?> ? < 2

%%%%%%%%

KKKKKK

63 5146 .G 31.1

# . 63 L5146C.//1E2 6 > D61.2.6CE2 3 .G L31.1C./-5EC J ? E2!? ? < ?* > ? < ??< >?!2 5 ./G422(?2-412

& #$# M61.-? 2 <'2%2$ @ 9 2

! "

1404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Pacific Lutheran University and Service Employees demonstrate that full-time contingent faculty members International Union, Local 925, Petitioner. Case are managerial employees. 19–RC–102521 I. PROCEDURAL HISTORY December 16, 2014 On April 11, 2013, the Service Employees Internation- DECISION ON REVIEW AND ORDER al Union, Local 925 (the Union) filed a petition seeking BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA, to represent a unit of all nontenure-eligible contingent HIROZAWA,JOHNSON, AND SCHIFFER faculty members employed by Pacific Lutheran Universi- ty (“PLU” or “the University”). The University chal- In this case, we reexamine two significant bodies of lenged the Union’s petition, arguing that PLU is a our case law pertaining to the collective-bargaining church-operated institution exempt from the Board’s rights under the National Labor Relations Act of faculty jurisdiction under NLRB v. Catholic Bishop of Chicago, members at private colleges and universities. First, we 440 U.S. 490 (1979), and that certain of its faculty—the reexamine the standard we apply for determining, in ac- full-time contingent faculty members in the proposed cordance with the Supreme Court’s decision in NLRB v. unit—are managerial employees who must be excluded Catholic Bishop of Chicago, 440 U.S. 490 (1979), when from the unit under NLRB v. Yeshiva University, 444 we should decline to exercise jurisdiction over faculty U.S. 672 (1980). Following a hearing, the Regional Di- members at self-identified religious colleges and univer- rector issued a Decision and Direction of Election reject- sities. Second, we reexamine our standard for determining both arguments on June 7, 2013.1 ing, in accordance with NLRB v. Yeshiva University, 444 In accordance with Section 102.67 of the Board’s U.S. 672 (1980), when faculty members are managerial Rules and Regulations, PLU filed a timely request for employees, whose rights to engage in collective bargain- review of the Regional Director’s decision. With respect ing are not protected by the Act. to the Board’s assertion of jurisdiction, PLU argued that, After careful consideration of applicable case law, as under the test articulated by the D.C. Circuit in Universi- well as the positions of the parties and amici, we have ty of Great Falls v. NLRB, 278 F.3d 1335 (2002) (herein- decided that we will not decline to exercise jurisdiction after “Great Falls”), it is exempt from the Board’s juris- over faculty members at a college or university that diction as a religious organization. claims to be a religious institution unless the college or Second, the University argued that its full-time contin- university first demonstrates, as a threshold matter, that it gent faculty members are managerial employees exclud- holds itself out as providing a religious educational envi- ed from coverage under the Act. It did not challenge the ronment. Once that threshold requirement is met, the standard articulated by the Regional Director, but argued college or university must then show that it holds out the that the Regional Director failed to apply that standard petitioned-for faculty members as performing a religious here. function. This requires a showing by the college or uni- On September 23, 2013, the Board granted the Univer- versity that it holds out those faculty as performing a sity’s request for review with respect to both issues.2 specific role in creating or maintaining the university’s The University and the Petitioner filed briefs on review. religious educational environment. Applying that test to the facts here, we find, with respect to the petitioned-for 1 The Regional Director directed an election in the following appro- unit of contingent (i.e., nontenure track) faculty at Pacific priate unit: Lutheran University (“PLU” or “the Employer”),that All full-time and regular part-time non-tenured contingent faculty em- although PLU has met the threshold requirement, it has ployed by the Employer on campus and off campus including in the failed to establish that it holds out its contingent faculty following classifications: instructor, lecturer, senior lecturer, visiting members as performing a religious function. According- faculty, clinical faculty, leave replacement faculty, professor emeritus/retired faculty, and resident faculty; excluding all other employees, ly, we will assert jurisdiction in this case. tenured faculty, administrative faculty, full-time staff who are not With respect to the managerial status of faculty mem- compensated additionally for teaching, administrators, department bers, after again taking careful consideration of our prec- administrators, administrators with teaching responsibilities, counse- edent and the positions of the parties and amici, we have lors, coordinators, campus clergy, deans, associate deans, campus safety personnel, lab assistants, graduate assistants, teaching assistants, decided to refine the standard by which we determine the managers, guards and supervisors as defined in the Act. managerial status of faculty pursuant to NLRB v. Yeshiva The RD found that there are approximately 176 employees in the pe- University. Below, we explain which factors are signifi- titioned-for unit. cant in assessing managerial status, and why, and the 2 The Board declined to grant review on the issues of: (1) whether weight to be accorded such factors. Applying that stand- there is a sufficient community of interests among the various classifi- ard here, we conclude that the University has failed to cations of faculty members in the petitioned-for unit; (2) whether the Regional Director’s eligibility formula is appropriate; and (3) whether

361 NLRB No. 157

Reprinted with Permission PACIFIC LUTHERAN UNIVERSITY 1405

On February 10, 2014, the Board issued a notice and status and indicia of professional status under the invitation to file briefs in this case to the parties as well Act? as the general public. The Board invited the parties and (10) Have there been developments in models of amici to address the following questions: decision making in private universities since the is- (1) What is the test the Board should apply under suance of Yeshiva that are relevant to the factors the NLRB v. Catholic Bishop, 440 U.S. 490 (1979), to Board should consider in making a determination of determine whether self-identified “religiously affili- faculty managerial status? If so, what are those de- ated educational institutions” are exempt from the velopments and how should they influence the Board’s jurisdiction? Board’s analysis? (2) What factors should the Board consider in de- (11) As suggested in footnote 31 of the Yeshiva termining the appropriate standard for evaluating ju- decision, are there useful distinctions to be drawn risdiction under Catholic Bishop? between and among different job classifications (3) Applying the appropriate test, should the within a faculty—such as between professors, asso- Board assert jurisdiction over this Employer? ciate professors, assistant professors, and lecturers or (4) Which of the factors identified in NLRB v. between tenured and untenured faculty—depending Yeshiva University, 444 U.S. 672 (1980), and the on the faculty’s structure and practices? relevant cases decided by the Board since Yeshiva (12) Did the Regional Director correctly find the are most significant in making a finding of manage- faculty members involved in this case to be employ- rial status for university faculty members and why? ees? (5) In the areas identified as “significant,” what PLU and the Union, and a broad range of interested parties evidence should be required to establish that faculty filed briefs in response to the Board’s invitation.3 We ad- make or “effectively control” decisions? (6) Are the factors identified in the Board case 3 The following interested parties filed briefs generally supporting law to date sufficient to correctly determine which the Employer: brief filed collectively by the Association of Catholic faculty are managerial? Colleges and Universities, Congregation for Mercy Higher Education, (7) If the factors are not sufficient, what addi- Lasallian Association of College and University Presidents, Association of Jesuit Colleges and Universities, Association of Benedictine Colleg- tional factors would aid the Board in making a de- es and Universities, and Association of Franciscan Colleges and Uni- termination of managerial status for faculty? versities (the following universities filed letters expressing support for (8) Is the Board’s application of the Yeshiva fac- brief filed by the Association of Catholic Colleges and Universities, et tors to faculty consistent with its determination of al.: Assumption College, College of Mount Saint Joseph, Duquesne University, Fairfield University, Saint Joseph’s University, and Saint the managerial status of other categories of employ- Leo University); Augustana College; the Beckett Fund for Religious ees and, if not, (a) may the Board adopt a distinct Liberty; brief filed collectively by the Cardinal Newman Society, Ben- approach for such determinations in an academic edictine College, Desales University, Holy Spirit College, John Paul the context, or (b) can the Board more closely align its Great Catholic University, Thomas Aquinas College, Thomas More College of Liberal Arts, Aquinas College, Ignatius-Angelicum Liberal determinations in an academic context with its de- Studies Program, University of St. Thomas Houston, and Wyoming terminations in non-academic contexts in a manner Catholic College; brief filed collectively by the General Conference of that remains consistent with the decision in Yeshiva? Seventh-Day Adventists, Association of Christian Schools Internation- al, California Association of Private School Organizations, Council for (9) Do the factors employed by the Board in de- Christian Colleges and Universities, Azusa Pacific University, and termining the status of university faculty members Brigham Young University; the Islamic Saudi Academy; the Lutheran properly distinguish between indicia of managerial Educational Conference of North America; and the National Right to Work Legal Defense and Education Foundation, Inc. The following interested parties filed briefs generally supporting the Union: AFL– an anonymous email survey was properly admitted into evidence and CIO; Catholic Scholars for Workers Justice; SEIU Local 925 and Ser- given appropriate weight by the Regional Director. Member Miscimar- vice Employees International Union; and the United Steel, Paper and ra would have granted review on these additional issues. Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service The Board has also granted review on the religious jurisdiction and Workers International Union, AFL–CIO/CLC. Not all amici addressed managerial status issues in a number of other cases. See Manhattan both issues. College, 02–RC–23543 (review. granted Feb. 16, 2011); Saint Xavier After the briefing period ended, the General Conference of Seventh- University, 13–RC–22025 (review. granted July 13, 2011); Islamic Day Adventists, Association of Christian Schools International, Cali- Saudi Academy, 05–RC–80474 (review. granted Aug. 17, 2012 on fornia Association of Private School Organizations, Council for Chris- question of Board’s jurisdiction over both teachers and non-teaching tian Colleges and Universities, Azusa Pacific University, and Brigham employees). A request for review remains pending before the Board in Young University (collectively) and the National Right to Work Legal Seattle University, 19–RC–22863. Defense and Education Foundation filed letters calling the Board's attention to recently issued case authority, and the Petitioner filed a 1406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dress first the issue of jurisdiction, and then turn to the man- Bend. In rejecting the schools’ arguments that the Reli- agerial status of the full-time contingent faculty. gion Clauses of the First Amendment prevented the II. BOARD JURISDICTION OVER RELIGIOUSLY AFFILIATED Board from asserting jurisdiction, the Board applied its UNIVERSITIES AND COLLEGES then-current policy to decline jurisdiction over religiously sponsored organizations only when they were “com- A. Introduction pletely religious, not just religiously associated.” See As demonstrated below, an examination of prior Board Catholic Bishop of Chicago, 220 NLRB 359, 359 (1975) and court cases demonstrates that the Board and the (quoting Roman Catholic Archdiocese of Baltimore, 216 courts have attempted to accommodate two competing NLRB 249, 250 (1975)). Finding that the schools did not interests when deciding whether the Board may assert fall within the “completely religious” exception, the jurisdiction over faculty members at religiously affiliated Board asserted jurisdiction. Id. The Seventh Circuit colleges and universities. One interest is the need to en- denied enforcement of the Board’s subsequent orders and sure that assertion of the Board’s jurisdiction, and the test found that the Board’s distinction between “completely the Board uses when deciding whether to assert jurisdic- religious” and merely “religiously associated” provided tion, do not violate the Free Exercise Clause and the Es- “no workable guide to the exercise of discretion.” Cath- tablishment Clause of the First Amendment to the Con- olic Bishop v. NLRB, 559 F.2d 1112, 1118 (7th Cir. stitution (“the Religion Clauses”). This consideration 1977). requires that the Board avoid any intrusive inquiry into The Supreme Court affirmed the Seventh Circuit’s de- the character or sincerity of a university’s religious cision. The Court explained that, if the Act granted the views. A decision to assert jurisdiction over faculty Board jurisdiction over lay teachers at church-operated members does not, however, involve only a considera- schools, the Court would be required to decide whether tion of concerns raised by the Religion Clauses. Also at that jurisdiction was permissible under the First Amend- issue is the effective implementation of Federal labor ment. NLRB v. Catholic Bishop, 440 U.S. 490 (1979) policy as embodied in the National Labor Relations Act (hereinafter “Catholic Bishop”). In keeping with its pru- and enforced by the Board. dential policy of constitutional avoidance, the Court first Section 1 of the Act declares that it is the policy of the looked to whether the Act authorized the challenged ex- United States to mitigate and eliminate disruptions to the ercise of jurisdiction before deciding whether the exer- free flow of commerce by “encouraging the practice and cise of jurisdiction in that case was constitutional. Id. at procedure of collective bargaining and by protecting the 501. exercise by workers of full freedom of association, self- Emphasizing “the critical and unique role of the teach- organization, and designation of representatives of their er in fulfilling the mission of a church-operated school,” own choosing, for the purpose of negotiating the terms id., the Court held that the Board could not assert juris- and conditions of their employment or other mutual aid diction over the petitioned-for lay teachers because to do or protection.” 29 U.S.C. Section 151. It is well settled so would create a “significant risk” that First Amend- that Congress vested in the Board the fullest jurisdiction- ment religious rights would be infringed. Id. at 502, 507. al breadth constitutionally permissible under the Com- The Court feared that Board jurisdiction would “neces- merce Clause. NLRB v. Reliance Fuel Oil Corp., 371 sarily involve inquiry into the good faith of the position U.S. 224, 226 (1963). Because we are charged with pro- asserted by the clergy-administrators and its relationship tecting workers’ exercise of their rights under the Act to to the schools’ religious mission” and that “[i]t is not the fullest permissible extent, we must carefully examine only the conclusions that may be reached by the Board any claims that a group of employees is excluded from which may impinge on rights guaranteed by the Religion our jurisdiction and thus not afforded any of the protec- Clauses, but also the very process of inquiry leading to tions of the Act, including the right to representation and findings and conclusions.” Id. at 502. The Court pre- collective bargaining. dicted that if the Act conferred jurisdiction over these B. Prior precedent teachers, the Board could not “avoid entanglement with In 1975, the Board asserted jurisdiction over units of the religious mission of the school in the setting of man- lay teachers at two groups of Catholic high schools. One datory collective bargaining.” Id. The Court concluded group of schools was operated by the Catholic Bishop of that “in the absence of a clear expression of Congress’ Chicago; the other by the Diocese of Fort-Wayne South intent to bring teachers in church-operated schools within the jurisdiction of the Board, [the Court] decline[d] to letter in response. Pursuant to Reliant Energy, 339 NLRB 66 (2003), construe the Act in a manner that could in turn call upon we have accepted these submissions. the Court to resolve difficult and sensitive questions aris- PACIFIC LUTHERAN UNIVERSITY 1407 ing out of the guarantees of the First Amendment Reli- In University of Great Falls, 331 NLRB 1663 (2000), gion Clauses.” Id. at 507. the Board once again found that a school did not have a After Catholic Bishop was decided, the Board deter- substantial religious character and, therefore, that the mined on a case-by-case basis whether a self-identified exercise of the Board’s jurisdiction would not present a religious school had a “substantial religious character” significant risk of infringing on that employer’s religious such that exercise of the Board’s jurisdiction would pre- rights. Id. at 1665–1666. The D.C. Circuit, however, sent a significant risk of infringing on that employer’s rejected both the Board’s conclusion and its analysis. First Amendment religious rights. Compare Jewish Day University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. School, 283 NLRB 757, 761–762 (1987) (declining ju- Cir. 2002). The court insisted that “[d]espite its protesta- risdiction where articles of incorporation stated that one tions to the contrary, the nature of the Board’s inquiry of its central aims was to teach religious subjects “in ac- boils down to ‘is [the university] sufficiently religious?’” cordance with the principles of the Jewish faith,” stu- Id. at 1343. dents spent 40 percent of their school day in Judaic stud- The court then proposed and applied a three-part test, ies courses in a school-established synagogue, Judaic which it drew largely from Judge Breyer’s decision in studies were integrated with general studies, and manda- Bayamon, under which the Board would assert jurisdic- tory prayer services were held each day) with Living- tion unless a college or university: (a) holds itself out to stone College, 286 NLRB 1308, 1310 (1987) (asserting students, faculty and the community as providing a reli- jurisdiction where property was owned by a church, the gious educational environment; (b) is organized as a church appointed one-half of college’s board of directors, nonprofit; and (c) is affiliated with, or owned, operated, and financial support was provided by the church; even or controlled, directly or indirectly, by a recognized reli- though the college’s purpose was primarily secular, gious organization, or with an entity, membership of teachers were not required to support the church, and the which is determined, at least in part, with reference to church was not involved in the daily administration of religion. 5 Id. The court found that its proposed test the college).4 “avoids the constitutional infirmities” of the Board’s In 1985, however, an evenly divided First Circuit de- substantial religious character test because it “does not clined to enforce the Board’s Order asserting jurisdiction intrude upon the free exercise of religion nor subject the over lay teachers at a self-identified religious university. institution to questioning about its motives or beliefs.” Universidad Central de Bayamon v. NLRB, 793 F.2d Id. at 1344. The test also “avoids asking how effective 383, 399–403 (1st Cir. 1985) (en banc), denying enf. to the institution is at inculcating its beliefs, an irrelevant 273 NLRB 1110 (1984). Then-Judge Breyer explained inquiry that permeates the NLRB proceedings below.” that the Board’s finding that the college was not “church Id. The court found that the University of Great Falls operated” was “legally unsupportable.” Id. at 399. Alt- satisfied this test because it “unquestionably holds itself hough the college was a self-sufficient institution that out to students, faculty, and the broader community as received no financial assistance from the Dominican Or- providing an education that, although primarily secular, der of the Catholic Church that founded it and was inde- is presented in an overtly religious, Catholic environ- pendent of the church, the Order continued to maintain ment.” Id at 1345. It also found that the school was a administrative control of the college, as both the presi- nonprofit institution that was affiliated with the Catholic dent and a majority of both the Board of Trustees and Church. Id. executive committee were required to be Dominican Since Great Falls, the Board has neither adopted nor priests. Likewise, the University held itself out to stu- rejected the D.C. Circuit’s approach. See, e.g., Salvation dents, faculty, and the community as a Catholic school, Army, 345 NLRB 550, 550 (2005) (assuming Great Falls its faculty regulations allowed discipline for “offenses to test governs the exercise of the Board’s jurisdiction over the Christian morality,” and students were required to religiously affiliated educational institutions, but finding take several theology courses, which were usually taught it unnecessary to apply because the employer did not by Dominican priests. Id. at 400. 5 The court fully adopted the first two prongs but did not determine 4 The Supreme Court’s holding in Catholic Bishop addressed one whether it would reach the full expanse of the third prong. Id. at 1343– subset of employees at one type of employer—teachers at church- 1344. It was undisputed that the University of Great Falls is “affiliated operated parochial schools. 440 U.S. at 507. The Board and the courts with . . . a recognized religious organization,” that is, the Catholic Or- subsequently applied the Court’s holding to faculty members at der of the Sisters of Providence, St. Ignatius Province. Therefore, the postsecondary religiously affiliated colleges and universities. See, e.g., court did not feel compelled to decide whether it would be sufficient Universidad Central de Bayamon v. NLRB, 793 F.2d 383, 401 (1st Cir. that the school be, for example, indirectly controlled by an entity the membership of which was determined in part with reference to religion. 1985); Trustee of St. Joseph’s College, 282 NLRB 65, 67–68 (1986). Id. at 1343–1344, 1347 fn. 2. 1408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD provide religious education and petitioned-for employees diction. PLU and these amici argue that the Great Falls were not teachers); Catholic Social Services, 355 NLRB test allows the Board to identify bona fide religious insti- 329, 329 (2010) (similar, except unit did include teachers tutions without engaging in an intrusive inquiry forbid- providing purely secular education). See also Carroll den by Catholic Bishop. College, Inc., 345 NLRB 254, 254 fn. 8 (2005) (finding The Petitioner and supporting amici, by contrast, argue it unnecessary to pass on court’s test where employer that the Board should adopt a “teacher religious func- conceded that it was subject to the Board’s jurisdiction tion” test which focuses on whether teachers in the pro- under Catholic Bishop), enf. denied 558 F.3d 568 (D.C. posed unit perform religious functions as part of their Cir. 2009).6 jobs. These parties argue that the Supreme Court’s focus C. New Standard in Catholic Bishop was on the nature of the employer- teacher relationship, rather than simply on the institution 1. Summary as a whole, and that the Court found that exercise of the As fully explained below, we take this opportunity to Board’s jurisdiction would raise serious First Amend- articulate a new test that is faithful to the holding of ment concerns because teachers play a “critical and Catholic Bishop, sensitive to the concerns raised by the unique” role in fulfilling the mission of a school de- parties and amici, and consistent with our statutory duty. signed to propagate a religious faith. They further argue Our consideration of prior cases, the arguments of the that, where teachers do not play a similarly “critical and parties and amici, and the Act lead us to conclude that unique” role in propagating a religious faith, exercise of the Act permits jurisdiction over a unit of faculty mem- the Board’s jurisdiction does not raise First Amendment bers at an institution of higher learning unless the univer- concerns. Under this “teacher religious function” test, sity or college demonstrates, as a threshold matter, that it the Union and supporting amici argue that PLU is subject holds itself out as providing a religious educational envi- to the Board’s jurisdiction. ronment, and that it holds out the petitioned-for faculty For the reasons discussed below, we adopt neither al- member’s as performing a specific role in creating or ternative and take this opportunity to articulate a new test maintaining the school’s religious educational environ- that is both faithful to the holding of Catholic Bishop and ment. Applying this test, and for the reasons discussed sensitive to the concerns raised by parties and amici. As below, we find that, although PLU holds itself out as discussed above, in crafting a new test for determining providing a religious educational environment, it does when to assert jurisdiction over faculty members at uni- not hold its contingent faculty out as performing a specif- versities which claim to be religious institutions, we must ic role in creating or maintaining that environment, in its avoid the potential for unconstitutional entanglement public representations to current or potential students and while, to the extent constitutionally permissible, vindicat- faculty members, or to the community at large. In these ing the rights of employees to engage in collective bar- circumstances, we will assert jurisdiction over the peti- gaining. First, our test must not impinge on a universi- tioned-for unit of contingent faculty members. ty’s religious rights and must avoid the type of intrusive 2. Positions of the parties inquiry forbidden by Catholic Bishop. Second, our deci- The University and the Petitioner, as well as all of the sion on whether to assert jurisdiction over faculty mem- amicus curiae, agree that the Board should discard the bers must give due consideration to employees’ Section 7 “substantial religious character” test. Suggestions for a rights to decide whether to engage in collective bargain- new test for the Board fall into two camps. PLU and ing. As explained above, Congress granted the Board the supporting amici urge the Board to adopt some version broadest jurisdiction constitutionally permissible under of the D.C. Circuit’s three-pronged Great Falls ap- the Commerce Clause and, pursuant to our responsibili- proach7 and find that PLU is exempt from Board juris- ties under the Act, we must ensure that we do not needlessly impair employees’ rights. 6 In Carroll College v. NLRB, the D.C. Circuit again rejected the As PLU and supporting amici point out, the Great substantial religious character test and reaffirmed its support for the Falls test avoids any intrusive inquiry into a university’s Great Falls test. The court explained that “focusing solely on a religious beliefs or actual practices. It requires an exam- school’s public representations as to its religious educational environ- ination only of a university’s public representations of ment—as opposed to conducting a skeptical inquiry into the actual influence exerted over the school by its affiliated religious institution— itself and of other objective, widely available evidence is also a more useful way for determining the school’s religious bona such as nonprofit status and formal affiliation. Although fides.” 558 F.3d at 573. 7 Some amici argue that the Board should adopt the Great Falls test should not be adopted because it is constitutionally problematic and in full, while others argue that the third prong of the Great Falls test could lead to unconstitutional denominational preference. PACIFIC LUTHERAN UNIVERSITY 1409 this approach may avoid constitutionally problematic versity which claims to be a religious institution is to inquiries, it overreaches because it focuses solely on the determine whether First Amendment religious rights nature of the institution, without considering whether the concerns are even implicated. We agree with the D.C. petitioned-for faculty members act in support of the Circuit that corroboration of a university’s claim that it is school’s religious mission. The Great Falls test could a religious institution cannot involve an inquiry into the deny the protections of the Act to faculty members who good faith of the university’s position or an examination teach in completely nonreligious educational environ- of how the university implements its religious mission. ments if the college or university is able to point to any To avoid such an impermissible inquiry, we adopt the statement suggesting the school’s—but not faculty’s— first part of the D.C. Circuit’s Great Falls test as an ini- connection to religion, no matter how tenuous that con- tial threshold requirement; that is, the Board will first nection may be. This approach goes too far in subordi- examine whether the university shows that it “holds itself nating Section 7 rights and ignores federal labor policy out to students, faculty, and community as providing a as embodied by the Act. religious educational environment.” Great Falls, 278 We also do not find the approach urged by the Peti- F.3d at 1343. tioner and supporting amici, the “teacher religious func- Appropriate evidence of how the university holds itself tion” test, to be entirely satisfactory. First, while we out as providing a religious educational environment agree that faculty members’ functions are key to our de- would include, but by no means be limited to, hand- termination of whether the Board can assert jurisdiction, books, mission statements, corporate documents, course the Petitioner’s proposed approach does not consider the catalogs, and documents published on a school’s website. teacher’s function in connection with how the college or Press releases or other public statements by university university holds itself out. That is, by examining only officials could also be relevant. A university’s contem- the teacher’s function, there is no link between that func- porary presentation of itself is likely to be more proba- tion and any religious educational environment it argua- tive than its founding documents and historical tradition.8 bly creates or maintains. Second, to the extent that amici Relying on an examination of these types of documents argue that the Board should examine whether faculty avoids intrusive inquiry into the university’s beliefs or members actually perform a religious function, the how it implements its religious mission. All of these “teacher religious function” test could result in the type sources involve information that the university freely of intrusive inquiry into a university’s religious beliefs provides to students, faculty, and the public, and provide and practices which was rejected by the Supreme Court an accurate, but nonintrusive, way for the Board to assess in Catholic Bishop. We believe that the proposed test a university’s assertion that it provides a religious educa- does not give sufficient consideration to the potential for tional environment. infringing on a university’s First Amendment religious This initial threshold requirement does not require any rights. particular showing of religious character and does not As explained below, we find that a better approach to impose a heavy burden on colleges and universities protecting employees’ rights while being sensitive to claiming to be religious institutions. It is appropriate to First Amendment concerns is struck by combining elements of both the Great Falls test and the proposed 8 Some universities may have been founded by churches or religious “teacher religious function” test. Specifically, under our orders and had a strongly religious conception of their mission, but, new test, we will not decline to exercise jurisdiction over over time, become so secularized, either formally or informally, that they no longer maintain any religious character. See generally James faculty members at a college or university that claims to Tunstead Burtchaell, The Dying of the Light: The Disengagement of be a religious institution unless it first demonstrates, as a Colleges and Universities from their Christian Churches (1998); threshold matter, that it holds itself out as providing a George M. Marsden, The Soul of the American University 263–428 religious educational environment. Once that threshold (1994). For example, in 1881, 80 percent of the colleges in the United States were church related and private. In 2001, only 20 percent had a requirement is met, the college or university must then connection to a religious tradition. See “Colleges and Universities with show that it holds out the petitioned-for faculty members Religious Affiliations” article in Education Encyclopedia – StateUni- themselves as performing a specific role in creating or versity.com. http://education.stateuniversity.com/pages/1860/Colleges- maintaining the college or university’s religious educa- Universities-with-Religious-Affiliations.html (last visited December 12, 2014). Other formally religious colleges have severed any relation- tional environment. ship with the religious community and continued as independent insti- 3. Threshold requirement: University must hold itself tutions, while others may have evolved so far from their religious roots that they can arguably be considered only “nominally” religious. See, out as providing a religious educational environment e.g., Marsden, supra at 276–296 (chronicling Vanderbilt University’s The first step in determining whether to assert jurisdic- disassociation from the Methodist Episcopal Church, South); see also tion over a unit of faculty members at a college or uni- Burtchael, supra at 819–851. 1410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD require a minimal showing at this stage, when the Board its religious nature, it is free to do so. We shall not, is determining not whether it has the authority to assert however, require such a showing. jurisdiction, but whether First Amendment concerns are 4. University must hold petitioned-for faculty members even potentially implicated with respect to the peti- out as performing a religious function in furtherance of tioned-for unit. In determining whether constitutional its religious mission issues are in play, we err on the side of being over- Once the university meets the threshold requirement of inclusive and not excluding universities because they are showing that it holds itself out as providing a religious not “religious enough.” Great Falls, 278 F.3d at 1343. educational environment, thus raising concerns under the This threshold requirement will, however, allow the Religion Clauses of the First Amendment, we will then Board to dismiss claims from universities that assert they examine whether the university holds out its petitioned- are religious organizations solely in an attempt to avoid for faculty members as performing a specific role in cre- the Board’s jurisdiction. If a university does not even ating and maintaining that environment. We find that present itself as providing a religious educational envi- the focus of our inquiry into whether there is a “signifi- ronment, it would appear to be highly unlikely that exer- cant risk” of infringement under Catholic Bishop, 440 tion of the Board’s jurisdiction would give rise to any U.S. at 502, must be on the faculty members themselves, risk of entanglement, and no First Amendment concerns rather than on the nature of the university as a whole. are implicated. Our statutory duty requires that we engage in an exami- The Great Falls test also requires that, in order to be nation of the specific employees in the petitioned-for unit exempt from the Board’s jurisdiction, the university be to determine if they are employees eligible for coverage organized as a non-profit. We agree with the D.C. Cir- under the Act in order to ensure that the petitioned-for cuit that non-profit status provides an objective way of employees are not improperly denied the opportunity to differentiating between a church or religion’s profit- vote on representation. As the Court stated in Catholic making ventures and its endeavors to carry out its reli- Bishop, “[t]he key role played by teachers in such a gious mission. 278 F.2d at 1344. As such, proof of such school system has been the predicate” for its concern status or lack thereof, may be relevant in an examination about “creat[ing] an impermissible risk of excessive gov- of how a university holds itself out.9 ernmental entanglement.” 10 440 U.S. at 501. According Finally, we do not adopt the third requirement of the to the court, if teachers play a “critical and unique role” Great Falls test, which, as discussed above, the court did in creating and sustaining a religious environment, the not fully endorse. See 278 F.3d at 1343–1344. We be- Board’s assertion of jurisdiction over them could result lieve that the inquiry described above is sufficient to de- in interference in management prerogatives and “open termine whether First Amendment concerns are raised, the door to conflicts between clergy-administrators and and we do not believe that the analysis will be improved by imposing an additional requirement that the university 10 The religious function of teachers has been recognized as the cen- be “affiliated with, or owned, operated, or controlled, tral focus of the jurisdictional test: NLRB v. Bishop Ford Central directly or indirectly, by a recognized religious organiza- Catholic High School, 623 F.2d 818, 822, 823 (2d Cir. 1980) (“[t]he tion, or with an entity, membership of which is deter- entire focus of Catholic Bishop was upon the obligation of lay faculty mined, at least in part, with reference to religion.” Fur- to imbue and indoctrinate the student body with the tenets of a religious faith”); NLRB v. St. Louis Christian Home, 663 F.2d at 64 (noting the ther, such a requirement might exclude from exemption a Catholic Bishop Court’s emphasis on the religious function of the peti- university that holds itself out as providing a religious tioned-for teachers). Many of the Board’s post-Catholic Bishop cases educational environment but is interdenominational or have also relied heavily on the function of petitioned-for teachers, and nondenominational. As some amici argue, such an out- not simply on whether the institution had a “substantial religious character” in deciding whether to assert jurisdiction. See, e.g., Livingstone come might amount to denominational preference, again College, 286 NLRB 1308, 1309 (1987) (Board asserted jurisdiction in contravention of the First Amendment. See Larson v. over college and explained that evidence showing faculty members Valente, 456 U.S. 228, 244 (1982) (“[t]he clearest com- were not required to conform to Church doctrine, were not prohibited mand of the Establishment Clause is that one religious from knowingly inculcating ideas contrary to the position of the Church, and could not be dismissed for engaging in conduct not in denomination cannot be officially preferred over anoth- harmony with the teachings of the Church was more important than the er”). To the extent that an employer wishes to argue that secular nature of the college’s mission and purpose); Trustee of St. its affiliation with a particular organization demonstrates Joseph’s College, 282 NLRB at 68 (Board declined to assert jurisdiction, relying “particularly [on] . . . the College’s requirement that facul-

9 ty members conform to Catholic doctrine and agree on hire ‘to promote A for-profit university claiming religious status might be analyzed the objectives and goals . . . of the Sisters of Mercy of Maine,’ not under the Board’s line of cases asserting jurisdiction over the opera- merely the objectives and goals of the College itself.”) (Emphasis add- tions of churches and other religious organizations that are “commer- ed.) cial in nature.” See fn. 19. PACIFIC LUTHERAN UNIVERSITY 1411 the Board.” Id. at 503. By contrast, where faculty mem- universities that do not claim any religious affiliations or bers are not expected to play such a role in effectuating connections. the university’s religious mission and are not under reli- We recognize that our examination of the actual func- gious control or discipline, the same sensitive First tions performed by employees could raise the same First Amendment concerns of excessive entanglement raised Amendment concerns as an examination of the universi- by the Court are not implicated. In these circumstances, ty’s actual beliefs, and we are again faced with the need it is appropriate for the Board to assert jurisdiction for to avoid “trolling” through a university’s operation to the same reasons that it is appropriate to assert jurisdic- determine whether and how it is fulfilling its religious tion over employees at other types of religious organiza- mission. To avoid this risk, we extend the “holding out” tions, that is, because assertion of the Board’s jurisdic- principle to our analysis of faculty members’ roles; that tion does not raise concerns under either the Free Exer- is, we shall decline jurisdiction if the university “holds cise Clause or the Establishment Clause of the First out” its faculty members, in communications to current Amendment. See, e.g., Catholic Social Services, 355 or potential students and faculty members, and the com- NLRB 929, 929–930 (2010) (asserting jurisdiction over munity at large, as performing a specific role in creating facility providing childcare services where an “ancillary” or maintaining the university’s religious purpose or mis- part of social services provided included “wholly secular sion. As the D.C. Circuit explained in Great Falls, the education” to a small number of children); Salvation Ar- “holding out” requirement eliminates the need for a uni- my, 345 NLRB 550, 552 (2005) (asserting jurisdiction versity to explain its beliefs, avoids asking how effective over resident advisors at facility providing prerelease the university is at inculcating its beliefs, and does not services to prisoners and probationers).11 “coerce[] an educational institution into altering its reli- Faculty members who are not expected to perform a gious mission to meet regulatory demands.” 278 F.3d at specific role in creating or maintaining the school’s reli- 1344–1345. gious educational environment are indistinguishable The focus is on whether faculty members are held out from faculty at colleges and universities which do not as having such an obligation as part of their faculty re- identify themselves as religious institutions and which sponsibilities. Although we will not examine faculty are indisputably subject to the Board’s jurisdiction. Both members’ actual performance of their duties, we shall faculty provide nonreligious instruction and are hired, require that they be held out as performing a specific fired, and assessed under criteria that do not implicate religious function. Generalized statements that faculty religious considerations. For the Board to assert jurisdic- members are expected to, for example, support the goals tion over such employees does no harm to the universi- or mission of the university are not alone sufficient. ty’s religious mission and does not impermissibly entan- These types of representations do not communicate the gle the Board in any of the university’s religious beliefs message that the religious nature of the university affects or practices. On the other hand, excluding such faculty faculty members’ job duties or requirements. They give members based solely on the nature of the institution no indication that faculty members are expected to incor- erases the Section 7 rights of an entire group of employ- porate religion into their teaching or research, that faculty ees who are indistinguishable from their counterparts at members will have any religious requirements imposed on them, or that the religious nature of the university will 11 As these and other cases show, the Board has long asserted juris- have any impact at all on their employment. This is es- diction over secular employees of nonprofit religious organizations pecially true when the university also asserts a commit- other than schools, as well as over nonteaching employees at religious ment to diversity and academic freedom, further putting institutions that have an educational component as part of their mission. See id. See also, e.g., Ecclesiastical Maintenance Services, 325 NLRB forth the message that religion has no bearing on faculty 629, 630-631 (1998) (unit of cleaning and maintenance employees of members’ job duties or responsibilities. Without a show- nonprofit contractor formed to assist the Roman Catholic Archdiocese ing that faculty members are held out as performing a of New York); Hanna Boys Center, 284 NLRB 1080 (1987), enfd. 940 specific religious function, there is no basis on which to F.2d 1295 (9th Cir. 1991), cert. denied 504 U.S. 985 (1992) (unit of clerical employees, recreation assistants, cooks, and child-care workers distinguish these employees from faculty members at at non-profit institution founded by Catholic priests); St. Elizabeth nonreligious universities or to exclude them from cover- Community Hospital, 259 NLRB 1135 (1982) (unit of service and age under the Act. maintenance employees at religiously affiliated nonprofit hospital), Member Johnson argues that a university’s commit- enfd. 708 F.2d 1436 (9th Cir. 1983); NLRB v. St. Louis Christian Home, 663 F.2d 60 (8th Cir. 1981), enfg. 251 NLRB 1477 (1980). Our ment to diversity and academic freedom can be conso- decision today is limited to addressing the requirements for units of nant with and part of a religious belief system, and spe- faculty members at colleges and universities. cifically the beliefs of Lutherans. This may be true, but requiring faculty members to comply with norms shared 1412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD by both a religion and by wider society does not support statements, without specificity as to how the requirement a finding that faculty members are held out as perform- affects actual job functions, will not suffice. ing any specific religious role. Although we are not ex- Part of the D.C. Circuit’s rationale for adopting a amining an institution’s beliefs or practices, or question- “holding out” requirement was that such a requirement ing a university’s religious identity, our examination of a would serve as an effective “market check” and discour- university’s public representations must show that it age wholly secular universities from falsely claiming to holds its faculty out as performing a specifically religious be religious institutions. See Great Falls, 278 F.3d at role, not a role that they would be expected to fill at vir- 1344. While holding itself out as creating a religious tually all universities.12 educational environment may attract some students, the Appropriate evidence to assess this requirement could same religious educational environment may dissuade include, but would not be limited to, job descriptions, other potential students from attending. Thus, the uni- employment contracts, faculty handbooks, statements to versity’s public representations can come at a cost. This accrediting bodies, and statements to prospective and cost, it is presumed, will dissuade institutions from false- current faculty and students. We will not seek to look ly claiming that it is religious merely to avoid the juris- behind these documents to determine what specific role diction of the Board. See id. petitioned-for faculty actually play in fulfilling the reli- Our “holding out faculty members” requirement serves gious mission of a school or to inspect the university’s as a similar market check, as representations that faculty actual practice with respect to faculty members. Nor will members perform a religious function will come at a cost we examine the specific actions of any individual teach- to the university. Analogous to students’ decision- er.13 Rather, we rely on the institution’s own statements making process, the representation that faculty members about whether its teachers are obligated to perform a must carry out a religious function might attract some religious function, without questioning the institution’s potential applicants for faculty positions but dissuade good faith or otherwise second-guessing those state- others from even applying. Great Falls, 278 F.2d at ments. If the evidence shows that faculty members are 1344. Hence, relevant to our inquiry of how the univer- required to serve a religious function, such as integrating sity presents the role of its teachers in creating or main- the institution’s religious teachings into coursework, taining its religious educational environment are docu- serving as religious advisors to students, propagating ments concerning the recruitment of future staff.15 Our religious tenets, or engaging in religious indoctrination or inquiry in this regard focuses on whether a reasonable religious training, we will decline jurisdiction. Likewise, prospective applicant would conclude that performance if the college or university holds itself out as requiring its of their faculty responsibilities would require furtherance faculty to conform to its religious doctrine or to particu- of the college or university’s religious mission.16 lar religious tenets or beliefs in a manner that is specifi- This limited “holding out” inquiry will not entangle cally linked to their duties as a faculty member, we will the Board, or reviewing courts, into the institution’s reli- decline jurisdiction.14 However, general or aspirational gious beliefs and practices. The Board will not “troll” through the beliefs of the school or examine the religious 12 Compare NLRB v. St. Louis Christian Home, 663 F.2d at 64 beliefs or practices of faculty members, students, admin- (church “may perceive its religious mission to include caring for unfor- istrators, or the institution itself. Instead, we will view tunate children, but the actual business of the Home and its employees does not involve a religious enterprise comparable to a church-operated school”). suggest that showing that faculty members are held out as being re- As examples of the extent to which commitments to diversity in ed- quired to proselytize or to indoctrinate students will be necessary to ucation and to academic freedom are indicative of broadly shared val- establish that faculty members are held out as performing a specific ues, see Bob Jones University v. U.S. Goldsboro Christian School, 461 religious function. These examples are intended only to demonstrate U.S. 574, 593 (1983) (Burger, C.J.) (“racial discrimination in educa- that there must be a connection between the performance of a religious tion violates a most fundamental national public policy, as well as the role and faculty members’ employment requirements. 15 rights of individuals.”); and Keyishian v. Bd. of Regents of the Univ. of We note that a relevant inquiry will be the extent to which the col- the State of NY, 87 S.Ct. 675, 683 (1967) (Brennan, J.) (“[o]ur Nation is lege or university holds itself out as respecting or promoting faculty deeply committed to safeguarding academic freedom, which is of trans- independence and academic freedom, versus focusing on religious cendent value to all of us and not merely to the teachers concerned”). identification and sectarian influence. 16 13 Our minimal requirements do not, of course, preclude a party We are again not convinced that requiring faculty members to from presenting additional evidence that it believes is relevant to support widely shared university values, such as a commitment to di- demonstrating that faculty members do or do not perform a religious versity and academic freedom, provides prospective applicants with function. any indication that they would be expected to perform any specific 14 This inquiry is not focused on the personally held beliefs or val- religious function that would differ from their functions at virtually any ues of faculty that are unrelated to the performance of their obligations university, or that the evaluation of their success in fulfilling these as faculty members. Also, by citing these examples, we do not mean to goals would be any different. PACIFIC LUTHERAN UNIVERSITY 1413 the school’s own statements.17 As the D.C. Circuit ex- Our new standard also addresses the concern that the plained in Great Falls, the “holding out” requirement substantial religious character test “limit[ed] the Catholic eliminates the need for a university to explain its beliefs, Bishop exemption to religious institutions with hard- avoids asking how effective the university is at inculcat- nosed proselytizing.” Great Falls, 278 F.3d at 1346. We ing its beliefs, and does not “coerce[] an educational in- recognize that an institution that does not require faculty stitution into altering its religious mission to meet regula- members to attend religious services or be a member of tory demands.”18 278 F.3d at 1344–1345. any particular faith may still hold out its faculty members The concern with respect to the Board’s assertion of as performing a religious function in the performance of jurisdiction over faculty members at religious universi- their academic responsibilities. Accordingly, to the ex- ties is that it entails excessive state interference through tent that the substantial religious character test resulted in regulation. See Universidad Central de Bayamon v. an impermissible denominational preference, the same NLRB, 793 F.2d at 403. In Catholic Bishop, the Supreme cannot be said of our new standard. Court agreed with the court of appeals that assertion of Moreover, we believe that the Supreme Court’s recent the Board’s jurisdiction could “impinge on the freedom decision in Hosanna-Tabor Evangelical Lutheran of church authorities to shape and direct teaching.” 440 Church & School v. EEOC, 132 S.Ct. 694 (2012), is in- U.S. at 496. If our examination shows that faculty mem- structive in determining whether an examination of em- bers are not held out as performing a religious function in ployees’ roles is permitted when the question presented support of the college or university’s religious mission, is whether employees of a religious organization are ex- however, the concern about impinging on the ability to empt from Federal law. There, in finding that a teacher’s shape and direct teaching is no longer present. As dis- discrimination suit was barred by Title VII’s ministerial cussed above, the Board’s assertion of jurisdiction in exception, the Court did not simply accept the school’s those circumstances does not affect the university’s reli- assertion that the teacher was a minister, but instead ex- gious rights or give rise to any potential First Amend- plored the teacher’s job functions and training. In doing ment concerns of entanglement.19 so, it noted that the school publicly held out the plaintiff as a minister, the school periodically reviewed her “skills 17 As discussed above, by this we mean not only oral statements to of ministry” and “ministerial responsibilities,” and her prospective and current students and faculty and to the public, but also statements contained on the school’s website and, for example, con- teaching a doctrine at odds with the religious faith of the institution, our tained in its handbooks, employment contracts, job descriptions, hand- new test would lead the Board to decline jurisdiction over disputes books, and other documents. about those dismissals so long as the university’s public representations 18 Requiring organizations claiming religious status to make some indicated that faculty members were expected to comply with (or at showing beyond that bare assertion is neither impermissible nor partic- least not openly contravene) certain tenets of a religion as a term and ularly uncommon. For example, in order to qualify as a religious non- condition of employment. Similarly, where a university’s public repre- profit organization and thus eligible for an exemption from taxation sentations indicate that faculty members accept ecclesiastical sources of pursuant to 26 U.S.C. Section 501 (c)(3), the Internal Revenue Service dispute resolution, and/or waive their right to dispute resolution in any (IRS) requires fairly detailed information with respect to an organiza- other forum, as a condition of employment, our test would again lead tion’s mission, goals, and organizational structure. Specifically, the IRS the Board to decline jurisdiction. reviews an organization’s articles of incorporation, financial books and Many religiously affiliated universities are not owned or operated di- records, and the minutes of the Board of directors, as well as other rectly by a church or by any other religious organization. As a result, brochures and publications, in order to determine if the organization any First Amendment concerns implicated do not concern interference qualifies for the religious exemption. See Internal Revenue Manual with a church’s operations. See Catholic Bishop, 440 U.S. at 503 (ex- Part 4 Chapter 76 Section 6. Available at http://www.irs.gov/irm/part4/i pressing concern that assertion of the Board’s jurisdiction would lead to ndex.html (last visited December 12, 2014). And to receive an exemp- conflicts between “clergy-administrators” and the Board). tion under Title VII, courts conduct a factual inquiry and weigh “[a]ll The Board has typically declined to assert jurisdiction where peti- significant religious and secular characteristics . . . to determine wheth- tioned-for employees are employed directly by a church unless the er the corporation's purpose and character are primarily religious.” church is engaging in operations that are, “in the generally accepted EEOC v. Townley Eng. & Mfg. Co., 859 F.2d 610, 618 (9th Cir. 1988). sense, commercial in nature.” The First Church of Christ, 194 NLRB See also EEOC v. Mississippi College, 626 F.2d 477, 485 (5th Cir. 1006 (1972) (asserting jurisdiction over unit of electricians and carpen- 1980). These inquiries are not impermissible examinations of the sin- ters because Church was engaged in commercial publishing enterpris- cerity of religious beliefs; they simply put an organization claiming es). See also St. Edmund’s High School, 337 NLRB 1260, 1261 (2002) religious status “to the proof of its bona fides as a religious organiza- (declining jurisdiction over unit of custodial employees where Church tion.” Larson v. Valente, 456 U.S. 228, 255 fn. 30 (1982) (discussing directly employed all petitioned-for employees); Riverside Church, 309 application of state law to organizations claiming exemption on reli- NLRB 806, 807 (1992) (declining jurisdiction over unit of service and gious grounds). maintenance employees of a church). Several Board Members have 19 Our test will not require or permit the Board decide any issues of questioned whether Riverside was decided correctly, but the case has religious doctrine. We will decline jurisdiction so long as the universi- not been overruled. See Ecclesiastical Maintenance, 325 NLRB at 629 ty’s public representations make it clear that faculty members are sub- fn.1; St. Edmund’s, 337 NLRB at 1261 fn. 2. In any event, the analysis ject to employment-related decisions that are based on religious consid- used by the Board in these cases is not affected by our decision today. erations. For example, if faculty members are subject to dismissal for 1414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

“job duties reflected a role in conveying the Church’s PLU offers undergraduate and graduate degrees at its message and carrying out its mission.” Id. at 707–708. campus in Tacoma, Washington. It consists of one col- In short, the Court found it appropriate, for the purposes lege and four schools: the College of Arts and Sciences, of applying Title VII’s ministerial exception, to evaluate the School of Arts and Communication, the School of the teacher’s functions to determine whether the excep- Business, the School of Education and Movement Stud- tion applied. ies, and the School of Nursing. During the 2012–2013 5. Conclusion academic year, PLU had a total enrollment of 3,473 students and employed about 180 tenured or tenure-track In conclusion, we find that, when a college or universi- faculty and 176 contingent faculty. ty argues that the Board cannot exercise jurisdiction over The current bylaws and articles of incorporation pro- a petitioned-for unit of faculty members because the uni- vide that PLU shall be managed by an independent board versity is a religious one, the university must first of regents. Of the 37 regents on the Board, 16 must be demonstrate, as a threshold requirement, that First ELCA congregants and 6 ministers of ELCA. The re- Amendment concerns are implicated by showing that it maining 15 regents can be of any religious affiliation or holds itself out as providing a religious educational envi- none. PLU’s president must be a member of a Christian ronment. Once that threshold requirement is met, the denomination with which the ELCA “has a relationship university must then show that it holds out the peti- of full communion.” The bylaws and articles of incorpo- tioned-for faculty members themselves as performing a ration do not impose religious requirements on any other specific role in creating or maintaining the college or administrative, staff, or faculty positions (with the excep- university’s religious educational environment, as tion of campus pastors). demonstrated by its representations to current or poten- According to PLU’s bylaws, its mission is “to educate tial students and faculty members, and the community at students for lives of thoughtful inquiry, service, leader- large. ship, and care for other persons, for their communities We will apply this new standard in this case and retro- and for the earth.”21 PLU’s purpose includes “establish- actively in all other pending cases, except those in which ing and maintaining within the State of Washington an an election was held and the ballots have been opened institution of learning of university rank in the tradition and counted, consistent with the Board’s established ap- of Lutheran higher education . . . .” The faculty hand- proach in representation proceedings.20 We also overrule book states, “[t]he university values as its highest priority prior Board decisions such as Jewish Day School, 283 excellence in teaching.” It describes PLU as “[s]teeped NLRB 757 (1987), and Nazareth Regional High School, in the Lutheran commitment to freedom of thought.” 283 NLRB 763 (1987), to the extent that they are incon- PLU’s religion department web page states that its “re- sistent with this decision or suggest that an analysis of ligion courses ask students to engage in the academic the nature of faculty members’ roles is not necessary in study of religion, not in religious indoctrination.” Ac- deciding whether the Board should assert jurisdiction. cording to PLU’s course catalog, “the study of religion at D. Standard Applied to Pacific Lutheran University PLU builds on the historic strengths of the Lutheran 1. Facts higher education and enhances global perspectives that PLU was founded in 1890 by Lutherans from the Pu- reflect our commitment to human communities and the get Sound area to help immigrants adjust and find jobs world. This discipline engages students in the scholarly and to serve the church and community. It is one of 26 study of sacred texts and practices, histories, theologies, colleges and universities affiliated with the Evangelical and ethics.” Lutheran Church in America (ECLA). PLU is organized Through its website, PLU advises prospective students as a not-for-profit corporation for education purposes, that “[t]here are also plenty of on-campus opportunities and it is exempt from Federal taxation pursuant to Sec- for students to grow their faith—including voluntary tion 501(c)(3) of the Internal Revenue Code. chapel, a vibrant campus ministries office and numerous organizations [religious groups and faith clubs] to help 20 In representation cases, the Board has recognized a presumption in nurture your spiritual life.” Neither students nor faculty favor of applying new rules retroactively, which is “overcome . . . are required to attend religious services or participate in where retroactivity will have ill effects that outweigh ‘the mischief of any of these activities; there is no evidence that faculty producing a result which is contrary to a statutory design or to legal and equitable principles.’” Crown Bolt, Inc., 343 NLRB 776, 779 (2004), 21 quoting Levitz Furniture Co. of the Pacific, 333 NLRB 717, 729 The Union introduced into the record the mission statements, (2001). No grounds exist to warrant only a prospective application of which are each similar to PLU’s, of the University of Washington, our new test. Central Washington University, and Western Washington University, all public, secular institutions. PACIFIC LUTHERAN UNIVERSITY 1415 are required to perform any functions in connection with the religion department) or Lutheranism in particular. any of these activities. Mailings to prospective students Glen Guhr, a lecturer in the music department who testi- mention the school’s Lutheran heritage, describing it as fied at the preelection hearing, indicated that when he calling for a commitment to academic excellence and was hired there was no discussion or requirement that he freedom. These materials emphasize that students from subscribe to any particular statement of religious beliefs, all backgrounds and religious traditions attend PLU. and no requirement that his course material should con- Although not referencing Lutheranism specifically, nor tain any religious component. Likewise, Michael Ng, a religion in general, PLU’s website, on a page directed at lecturer in PLU’s Department of Languages and Litera- admitted students, describes it as “a special place” and ture, testified that when he was hired he was not advised “close-knit community.” A specific reference to Luther- of any religious requirement. He was told that his per- anism on PLU’s website, appearing in a “Frequently sonal beliefs were not relevant to whether he is an excel- Asked Questions” section for prospective students, lent teacher.23 downplays the religious character of the school: 2. Analysis Q: Do you have to be a Lutheran to attend PLU? We find, for the following reasons, that although PLU A: Not at all. Students of all faiths-or of no faith- meets the threshold requirement of holding itself out as attend PLU . . . . creating a religious educational environment, it does not Q: What exactly is a Lute? hold out the petitioned-for contingent faculty members as A: Originally, I think a Lute was a nickname for performing a religious function in support of that envi- Lutheran. But that doesn’t mean you can’t be a Lute ronment. Accordingly, we will assert jurisdiction over if you aren’t Lutheran. I’m a Lute, you’re a Lute, the petitioned-for faculty members. were [sic] all Lutes. . . . PLU’s public representations generally emphasize a Q: Do I have to attend chapel? commitment to academic freedom, its acceptance of oth- A: No. . . . PLU was founded by Scandinavian er faiths and its explicit deemphasis of any specific Lu- immigrants, so Lutheran heritage is very important theran dogma, criteria, or symbolism. Neither Lutheran- to our school, but that doesn’t mean it will be forced ism specifically, nor religion in general, are featured on you... There are many religious opportunities that prominently on PLU’s website, and communications to are offered on and off-campus-for people of all potential and admitted students emphasize that students faiths. of all faiths, or no faith at all, are welcome at PLU. Nev- PLU’s faculty handbook begins by laying out its mis- ertheless, PLU holds itself out as a providing a religious sion and history, with a discussion of its Lutheran origins educational environment in statements to prospective and affiliation. There is no provision in the University’s students on PLU’s website , articles of incorporation, policies for disciplining or firing faculty if they do not bylaws, faculty handbook, course catalog, and other pub- hold to Lutheran values, and no hiring preference is giv- lications. These discuss its Lutheran heritage, and its en to Lutherans for faculty positions. No adherence to stated purpose, in its bylaws, to “establish[] and main- Lutheran doctrine or membership in a Lutheran congre- tain[] within the State of Washington an institution of gation is required for hiring, promotion, or tenure; nor learning of university rank in the tradition of Lutheran does it play any role in faculty evaluations or promo- higher education . . . , affiliated with the Evangelical Lu- tions.22 theran Church in America . . . .” The faculty handbook PLU’s part-time teaching contracts and faculty job discusses PLU’s history and concludes by stating, “the postings do not mention religion in general (excepting faculty of Pacific Lutheran University enjoy the support of a religious community committed to liberal learning at 22 The Faculty Constitution, in a section on individual rights and du- the service of a just, peaceful, and humane future.” PLU ties, says that an appointed faculty member “becomes a member of a also discusses its heritage in materials provided to pro- community of scholars who respect and uphold the principles of Lu- spective students, including a flyer entitled, “What’s In A theran Higher Education with certain rights and obligations. Preemi- Middle Name,” which “explain[s] what it means to at- nent among these is the obligation to uphold the objectives of the university and the right of academic freedom in order that the obligation of tend a Lutheran University and explains how Lutheran examining and interpreting special areas of instruction and may be theology underscores what a Lutheran University freely and thoroughly exercised.” In our view, this general and aspirational statement emphasizes the religious history and identity of the 23 We include this testimony in our consideration as evidence of school, but does not indicate that faculty members are expected to communications PLU made to prospective faculty members. perform any specific religious role. Nothing in the statement indicates that faculty members’ job responsibilities include any religious component. 1416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD does.”24 On its website, PLU describes for students how from all walks of life. We embrace this diversity as a they can “grow their faith,” by listing various opportuni- gift from God to be treasured. ties it makes available for students, including religious services and religious activities. PLU does not take into account a contingent faculty As discussed above, this threshold requirement does member’s adherence to Lutheranism, membership in a not require a rigorous showing of PLU’s religious char- Lutheran congregation, or knowledge of Lutheranism in acter. Accordingly, based on the above-cited evidence, making hiring, promotion, tenure, or evaluation deci- we find that PLU has met the initial threshold of showing sions. PLU’s contingent faculty job postings do not list that it holds itself out as providing a religious educational the need to serve any religious function or be or become environment. As a result, First Amendment concerns knowledgeable about the Lutheran religion. For in- surrounding assertion of the Board’s jurisdiction are stance, a posting for a full-time contingent faculty posi- raised, and we next determine whether PLU holds its tion—visiting assistant professor/instructor of computer faculty members out as performing a religious function. engineering—for the 2013–2014 academic year, stated An examination of the evidence concerning faculty that the applicant must be able to teach computer engi- members shows that PLU does not, in fact, hold them out neering courses, and that “[a] demonstrated commitment as performing any religious function in creating or main- to excellence in teaching, especially courses involving taining its religious educational environment. Although group projects and labs is essential. Preference will be PLU proclaims its Lutheran heritage in its bylaws, for given to candidates specializing in electronics (both ana- example, the section of the bylaws governing the faculty log and digital). Applicants with expertise in control is silent with respect to their role in fostering that herit- systems, robotics, or general signals/systems will also age. The same is true with respect to PLU’s articles of receive strong consideration.” The same is true with incorporation. And although the faculty handbook respect to the other job postings in the record for sssistant broadly covers issues such as the obligation of faculty professor positions in chemistry, biology, marriage and members to engage in academic advising and evaluate family therapy, and sociology. administrators, and sets forth instructional responsibili- PLU’s contingent faculty contracts likewise do not ties and course procedures, it does not require or encour- mention religion in general (excepting the religion de- age contingent faculty members to perform any religious partment) or Lutheranism in particular, though the con- function. Likewise, the Division of Humanities’ State- tracts do state that PLU requires the individual “to be committed to the mission and objectives of the Universi- ment of Principles and Best Practices Relating to Contin- 25 gent Faculty is silent regarding any religious function ty.” Further, contingent faculty members testified at served by contingent faculty members. the preelection hearing, without any rebuttal by PLU, Moreover, throughout its substantial website, PLU that there was no discussion about religion, in any con- does not indicate that its contingent faculty members text, during their interviews, no requirement that course play a role in advancing the Lutheran religion. And PLU material requires a religious component and no requirement that they perform any function in support of a reli- makes clear that it welcomes the diversity of its faculty 26 and the various perspectives they bring to its community gious educational environment. without referencing any religious function that they per- In short, there is nothing in PLU’s governing docu- form. This is encapsulated in PLU’s “What’s In A Mid- ments, faculty handbook, website pages, or other materi- dle Name” flyer: al, that would suggest to faculty (either existing or prospective), students, or the community, that its contingent We don’t fear those who are not like us because we faculty members perform any religious function. Ac- know that others have a perspective we might need to hear. We embrace diversity with great joy. On our 25 As discussed above, this type of representation does not com- campus we have professors, staff, and students of every municate the message that employees are expected to perform a specif- race, many nationalities, different Christian traditions, ic religious function and is not specifically linked to any job duties to be performed by the faculty. Indeed, the mission of the University as different faiths, or no faith. We do not see this as a stated in its bylaws as “educating students for lives of thoughtful in- weakness but as a great strength for it is in the inter- quiry, service, leadership, and care for others persons, for their commu- change of differing perspectives and ideas that most of- nities and for the earth” describes values that are emphasized by nonre- ten truth is found. At a Lutheran university you will ligious institutions as well. Similarly, the faculty handbook describes PLU “as steeped in the Lutheran commitment to freedom of thought”— find a great variety of people from many cultures and a core commitment shared by secular academic institutions. 26 The personnel policy in the faculty handbook assures faculty 24 PLU is also organized as an educational nonprofit and so is not members that they enjoy all rights of their individual contracts as well commercial in nature. as of “the law of the land.” PACIFIC LUTHERAN UNIVERSITY 1417 cordingly, although we find that PLU holds itself out as on behalf of PLU. They are therefore properly included providing a religious educational environment, we find in the proposed unit. that we may assert jurisdiction because PLU does not B. Yeshiva and Its Progeny hold its petitioned-for faculty members out as performing 1. The Yeshiva decision any religious function. More than 30 years ago, the Supreme Court found that III. MANAGERIAL STATUS OF FULL-TIME CONTINGENT the faculty of Yeshiva University were managerial em- FACULTY MEMBERS ployees, who are “excluded from the categories of em- A. Introduction ployees entitled to the benefits of collective bargaining The Petitioner seeks to represent a unit consisting of under the National Labor Relations Act.” 444 U.S. at all contingent (nontenure eligible) faculty employed by 674. In reaching this conclusion, the Court recognized PLU who teach a minimum of three credits during an that the “authority structure of a university does not fit academic term.27 Currently, their number stands at ap- neatly within the statutory scheme we are asked to inter- proximately 176. PLU claims that approximately 39 of pret.” Id. at 680. In contrast to the model of manage- these contingent faculty—those who are employed full ment-employee relations that developed in the hierar- time—are managerial employees and therefore excluded chical companies of industry, the Court explained that from the Act’s protections.28 The Regional Director “authority in the typical ‘mature’ private university is found that PLU did not prove that claim and therefore divided between a central administration and one or more included them in the proposed unit.29 As stated, PLU collegial bodies.” Id. As a result, the Court agreed with requested review, which the Board granted. The Board the Board that “principles developed for use in the indus- subsequently issued a notice and invitation to file briefs trial setting cannot be imposed blindly on the academic to assist the Board in reviewing its application of the world.” Id. at 681. Supreme Court’s decision in Yeshiva. Nonetheless, the Court observed that the “business” of Upon full consideration of the record, the briefs by the the university is education. Id. at 688. Drawing from its parties and amici, the Supreme Court’s decision in Ye- precedent, the Court defined managerial employees in a shiva, and the Board’s 30-plus years applying Yeshiva, university setting as those who “formulate and effectuate we have decided to revise our analytical framework for management policies by expressing and making opera- determining the managerial status of university faculty. tive the decisions of their employer.” Id. at 682, citing Ultimately, our analysis is designed to answer the ques- NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974). The tion whether faculty in a university setting actually or Court explained, managerial employees “must exercise effectively exercise control over decision making per- discretion within, or even independently of, established taining to central policies of the university such that they employer policy and must be aligned with management.” are aligned with management. In making this determina- Id. at 683. To determine whether an employee is tion, we will examine the faculty’s participation in the “aligned with management,” the Court held that an em- following areas of decisionmaking: academic programs, ployee must “represent[] management interests by taking enrollment management policies, finances, academic or recommending discretionary actions that effectively policies, and personnel policies and decisions, giving control or implement employer policy.” Id. (citations greater weight to the first three areas than the last two. omitted). The Court further observed that “the relevant This examination will be considered in the context of the consideration is effective recommendation or control university’s decision making structure and administrative rather than final authority.” Id. at 683 fn. 17 The Court hierarchy, as well as the nature of the employment rela- emphasized, “the fact that the administration holds a tionship of the faculty in issue. Applying this framework rarely exercised veto power does not diminish the faculty here, we conclude that the approximately 39 full-time effective power in policymaking and implementation.” contingent faculty do not exercise managerial authority Id. Agreeing with the court of appeals, the Supreme Court 27 Although the University maintains that all parties assumed that the found that the Yeshiva faculty “substantially and perva- regular faculty are managerial employees, in fact their status was nei- sively operate the enterprise.” Id. at 691 (quotations ther placed in issue nor discussed by either party. omitted): 28 By challenging the status of full-time contingent faculty only, the University effectively concedes that the part-time contingent faculty are not managerial. They decide what courses will be offered, when they 29 The Petitioner stated at the hearing that it would proceed to elec- will be scheduled, and to whom they will be taught. tion on any unit found appropriate. They debate and determine teaching methods, grading policies, and matriculation standards. They effectively 1418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

decide which students will be admitted, retained, and of university decision-making in which the faculty par- graduated. On occasion their views have determined ticipated. The breadth of this examination has been the size of the student body, the tuition to be charged, sweeping. See, e.g., University of Dubuque, 289 NLRB and the location of a school. 349, 353 (1988) (taking into account “the many different combinations and permutations of influence that render Id. at 686. Analogizing to the industrial model, the Court each academic body unique”). The Board has examined summarized the circumstances at Yeshiva: “the faculty de- faculty participation in decisions affecting, among other termines within each school the product to be produced, the things, curriculum, certificate/program/degree offerings, terms upon which it will be offered, and the customers who university/academic structure, graduation require- will be served.” Id. Given the “business” of the university, ments/lists, honors, university catalogues, admissions, the Court stated that “it is difficult to imagine decisions enrollment, matriculation, student retention, tuition, fi- more managerial than these.” Id. nances, hiring/firing, promotions, tenure, salary, evalua- In reaching its conclusion, the Court observed that Ye- tions, sabbaticals, teaching methods, teaching assign- shiva did not contest that the faculty were professionals ments, grading policy, syllabi, course size, course load, under Section 2(12) of the Act. Id. at 681. And it recog- course content, textbooks, academic calendar, and course nized that “[t]here may be some tension between the schedules. The Board never specifically addressed the Act’s exclusion of managerial employees and its inclu- relative significance of particular areas of decision- sion of professionals, given that most professionals in making, although it tended to give more weight to those managerial positions continue to draw on their special decisions deemed “academic” rather than “non- skills and training.” Id. at 686. But the Court found that academic” because, as the Supreme Court said, “academ- the interests of the faculty and their university often ic” decisions affect the “business” of the university.31 closely align. Such an alignment is particularly true for The Board also examined whether faculty participation “a university like Yeshiva, which . . . requires faculty in a particular area of decision-making amounted to ef- participation in governance because professional exper- fective control over that area, “whether individually, by tise is indispensible to the formulation and implementa- department consensus, through . . . committees, or in tion of academic policy.” Id. at 689. To allow the facul- meetings of the whole.” Lewis & Clark College, supra at ty at Yeshiva to unionize, the Court concluded, would 161. serve to divide the loyalties of the faculty. Id. at 688– Because innumerable permutations can result when 690. examining more than two dozen areas over which faculty The Court recognized the limit of its holding, however, may control or make effective recommendations, the acknowledging that its decision was only a starting point. Board’s decisions have been criticized as failing to pro- It observed that “employees whose decisionmaking is vide sufficient guidance regarding the importance and limited to the routine discharge of professional duties in relative weight of the factors examined. For instance, in projects to which they have been assigned cannot be ex- LeMoyne-Owen College v. NLRB, 357 F.3d 55 (2004), cluded from coverage even if union membership argua- denying enf. 338 NLRB No. 92 (2003) (not reported in bly involved some divided loyalty.” Id. at 690. In the Board volumes), the United States Court of Appeals for university setting, for instance, “professors may not be excluded merely because they determine the content of Boston University, 281 NLRB 798 (1986), affd. sub nom. Boston Uni- their own courses, evaluate their own students, and su- versity Chapter, AAUP v. NLRB, 835 F.2d 399 (1st Cir. 1987); Mary- pervise their own research.” Id. at 690 fn. 31. mount College, 280 NLRB 486 (1986); Kendall School of Design, 279 NLRB 281 (1986), enfd. 866 F.2d 157 (6th Cir. 1989); Cooper Union 2. Post-Yeshiva of Science & Art, 273 NLRB 1768 (1985), enfd. 783 F.2d 29 (2d Cir. Since the Court’s Yeshiva decision, the Board has is- 1986); University of New Haven, 267 NLRB 939 (1983); Lewis Univer- sued nearly two dozen published decisions addressing sity,265 NLRB 1239 (1982), enf. denied 765 F.2d 616 (7th Cir. 1985);College of Osteopathic Medicine, 265 NLRB 295 (1982); Puerto the managerial status of faculty at colleges and universi- Rico Junior College, 265 NLRB 72 (1982); Loretto Heights College, 30 ties. In those cases, the Board examined various areas 264 NLRB 1107 (1982), enfd.742 F.2d 1245 (10th Cir. 1984); Florida Memorial College, 263 NLRB 1248 (1982), enfd. 820 F.2d1182 (11th Cir. 1987); New York Medical College, 263 NLRB 903 (1982); Du- 30 LeMoyne-Owen College, 345 NLRB 1123 (2005); University of quesne University, 261 NLRB 587 (1982); Thiel College, 261 NLRB Great Falls, 325 NLRB 83 (1997), affd. 331 NLRB 1663 (2000), re- 580 (1982); Montefiore Hospital, 261 NLRB 569 (1982); Bradford versed on other grounds 278 F.3d 1335 (D.C. Cir. 2002; Elmira Col- College, 261 NLRB 565 (1982); and Ithaca College, 261 NLRB 577 lege, 309 NLRB 842 (1992); Lewis & Clark College, 300 NLRB 155 (1982). (1990); St. Thomas University, 298 NLRB 280 (1990); University of 31 See, e.g., Lemoyne-Owen College, supra, 345 NLRB at 1130– Dubuque, 289 NLRB 349 (1988); Livingstone College, 286 NLRB 1131; Livingstone College, supra, 286 NLRB at 1314. 1308 (1987); American International College, 282 NLRB 189 (1987); PACIFIC LUTHERAN UNIVERSITY 1419 the District of Columbia Circuit faulted the Board for operated the university by exercising extensive control failing to explain adequately how its disposition of the over decision-making and playing a “crucial role … in case was consistent with its precedent. Writing for the determining . . . central policies of the institution.” Ye- court, then-Judge Roberts observed, shiva University, supra, 444 U.S. at 679 (internal quotations omitted). This language clearly contemplates that The need for an explanation is particularly acute when managerial employees will have a significant breadth and an agency is applying a multi-factor test through case- depth of decision-making authority, which was borne out by-case adjudication. The open-ended rough-and- in Yeshiva itself. tumble of factors on which Yeshiva launched the Board For instance, in analyzing the breadth and depth of the and higher education can lead to predictability and in- Yeshiva faculty’s decision making, the Court observed, telligibility only to the extent the Board explains, in ap- “Only if an employee’s activities fall outside the scope of plying the test to varied fact situations, which factors the duties routinely performed by similarly situated pro- are significant and which less so, and why. . . . In the fessionals will he be found aligned with management.” absence of an explanation, the totality of the circum- Yeshiva, supra, 444 U.S. at 690. In the university con- stances can become simply a cloak for agency whim— text, professional faculty typically teach and research. or worse. As a result, “[i]t is plain . . . that professors may not be Id. at 61 (internal citations and quotations omitted). In excluded merely because they determine the content of Point Park University v. NLRB, 457 F.3d 42 (2006), deny- their own courses, evaluate their own students, and suing enf. 344 NLRB 275 (2005), the D.C. Circuit again criti- pervise their own research.” Id. at 690 fn. 31 (emphasis cized the Board: “The Regional Director . . . produced a added). While some areas of faculty decision-making 108-page decision with 59 pages of factual findings, and 16 involve policies largely limited to their own classrooms pages of legal analysis . . . . Yet nowhere in his lengthy de- and labs, others involve policies that have a greater effect cision did the Regional Director state, as we held in on the university as a whole. It is when faculty exercise LeMoyne-Owen that he must, which factors were ‘signifi- actual or effective decision making authority over poli- cant and which less so, and why.’” cies for the university as a whole that their interests begin to align with management, thereby creating the problem C. Analytical Framework for Determining Managerial of divided loyalty that the managerial employee excep- Status of University Faculty tion seeks to avoid. Id. at 690. Ultimately, the Court The Yeshiva Court established some basic markers— characterized as “[t]he controlling consideration in this faculty who determine the product to be produced, on case . . . that the faculty of Yeshiva University exercise what terms, and for whom are likely to be managerial, authority which in any other context unquestionably whereas faculty whose purview is limited to their own would be managerial.” Id. at 686. It found they did. “To academic affairs likely are not. But of course, most cases the extent the industrial analogy applies,” the Court con- fall somewhere along the spectrum between these two cluded, “the faculty determine the product to be pro- poles. Because the Court did not prescribe an analytical duced, the terms upon which it will be offered, and the framework to determine the status of faculty, it has been customers who will be served.” Id. left to the Board to devise such a framework, and that Accordingly, as detailed below, we too shall examine process continues today. We have thus undertaken to both the breadth and depth of the faculty’s authority at develop a more workable, more predictable analytical the university. In examining the breadth of the faculty’s framework to guide employers, unions, and employees authority, we will give more weight to those areas of alike. See, e.g., Gitano Distribution Center, 308 NLRB policy making that affect the university as a whole, such 32 1172, 1176 (1992). as the product produced, the terms on which it is offered, In defining this new approach, we are guided by Ye- and the customers served. In examining the depth of shiva. The Court’s overarching determination was that their authority, we seek to determine whether the faculty the faculty in question “substantially and pervasively” actually exercise control or make effective recommendations over those areas of policy; this inquiry will neces- 32 Our dissenting colleagues criticize our framework for being too sarily be informed by the administrative structure of the narrow in identifying managerial employees. In revisiting this issue, particular university, as well as the nature of the faculty’s we are mindful of the fundamental principle that “exemptions from 33 NLRA coverage are not so expansively interpreted as to deny protec- employment with that university. tion to workers the Act was designed to reach.” Holly Farms Corp. v. NLRB, 517 U.S. 392, 399 (1996); see also Chicago Metallic Corp., 273 33 The Board has long held that the party seeking to exclude employ- NLRB 1677, 1689 (1985), affd. in relevant part 794 F.2d 527 (9th Cir. ees as managers bears the burden of proving their managerial status. 1986)(supervisory status). 1420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1. Areas of university decision making mental choice for any university, and the ability to attract With an eye toward “the product to be produced, the and retain those students affects polices throughout the terms upon which it will be offered, and the customers university. In keeping with the industrial analogy, en- who will be served,” we organize our review of faculty rollment decisions are managerial when they directly decision-making into five general areas, which we fur- affect the customers who will be served by the universi- ther denote as either primary, i.e., more important as they ty—i.e., its students, without which the university cannot affect the University as a whole, or secondary, i.e., less sustain itself. important.34 Finances: The power to control or make effective recommendations regarding financial decisions—both a. Primary areas of decision making income and expenditure—is one of the hallmarks of Academic Programs: This decision making area covers managerial control across all industries. See, e.g., Gen- topics such as the university’s curricular, research, major, eral Dynamics Corp., 213 NLRB 851, 860 (1974). Fi- minor, and certificate offerings and the requirements to nancial decisions have broad effects across a university, complete successfully those offerings. These topic areas and are not localized in a professor’s classroom or lab. affect the very nature of an academic institution, reflect What the school charges for its services—net tuition (tui- its goals and its aspirations, and clearly fall outside the tion less financial assistance)—also sets the price point routine discharge of a professor’s duties. They effective- for its student-customers, and as any student (or parent) ly determine the university’s “product” and the terms knows, net tuition plays a significant role in determining upon which that “product” is offered to its students. Like which university a student will attend. any business, changes to this area may be made to pro- b. Secondary areas of decision making vide new products appealing to greater numbers of customers, to eliminate old products that are no longer ap- Academic Policy: This decision-making area covers pealing, or for other reasons. See, e.g., St. Thomas Uni- topics such as teaching/research methods, grading policy, versity, supra, 298 NLRB 280 (creation of law school). academic integrity policy, syllabus policy, research poli- Changes in any of these areas will often affect and neces- cy, and course content policy. They are areas addressed sitate a change to the university’s organization and struc- in Yeshiva, but are not as central to the institution’s offer- ture, such as the creation or elimination of a new division ings as the primary decision making area of academic or department. Thus, this decision-making area will nec- programs. While determinations of academic policy ap- essarily involve consideration of organizational and ply more broadly than the faculty’s classroom or research structural changes. project, they tend to be crafted more generally, giving the Enrollment Management: This decision-making area faculty latitude within their individual classrooms or re- dictates the size, scope, and make-up of the university’s search projects. As such, this decision making area does student body.35 The targeted student body is a funda- not demonstrate the same alignment with management interests as do the primary decision-making areas. See Montefiore Hospital & Medical Center, 261 NLRB 569, 572 fn. 17 Likewise, these policies do not have the same impact on (1982) (“we do not believe the Court intended to preclude the Board the product delivered as does control over academic pro- from requiring the party seeking to exclude either a whole class of grams. employees or particular individuals as managerial to come forward with Personnel Policy and Decisions: The Court in Yeshiva the evidence necessary to establish such exclusion”); cf. NLRB v. Ken- tucky River Community Care, 532 U.S. 706, 712 (2001) (burden of relied on control of personnel policy and decisions in proving supervisory status is on the party alleging such status). We making its managerial finding, albeit not “primarily.” have consistently applied this principle in faculty cases, see, e.g., Uni- 444 U.S. at 686 fn.23. Faculty control over personnel versity of Great Falls, above, 325 NLRB at 93, and we adhere to it policy, including hiring, promotion, tenure, leave, and today. 34 In accordance with the D.C. Circuit’s instruction that we develop a dismissal, goes beyond an individual faculty member’s standard that will lead to increased “predictability and intelligibility,” classroom or research project in that it affects the make- LeMoyne-Owen, 357 F.3d at 61, we have consolidated the numerous up of the academy. To that extent, it potentially impli- areas of decisionmaking into a much more manageable five. We un- cates the divided loyalty concern that underlies the man- derstand that faculty may not control or effectively recommend all aspects of a particular decision-making area. Nonetheless in keeping agerial exception. But this decision-making often only with the framework discussed in this decision, we will assess their indirectly implicates the product to be produced, the actual involvement in university decisionmaking when determining terms in which it is offered, and the customers sought. whether the faculty at issue are managerial employees as defined in Yeshiva. 35 Board and court decisions have variously used the terms “admis- difference in these terms as they relate to the considerations at issue sions,” “enrollment,” and “matriculation.” We perceive no significant here. PACIFIC LUTHERAN UNIVERSITY 1421

2. Actual control or effective recommendation that the dean of one school approved every one of 500 In order for decisions in a particular policy area to be faculty curriculum recommendations); College of Osteo- attributed to the faculty, the party asserting managerial pathic Medicine, supra, 265 NLRB at 297 (finding that status must demonstrate that faculty actually exercise faculty recommendations are “almost always followed by control or make effective recommendations.36 Yeshiva, the administration”); Livingstone College, supra, 286 444 U.S. at 683 fn. 17 (“the relevant concern is effective NLRB at 1310, 1313 (finding faculty recommendations recommendation or control”); American International generally approved by the administration and no evi- College, supra, 282 NLRB at 202 (“the faculty of the dence of faculty decisions countermanded); St. Thomas American International College exercises effective con- University, supra, 298 NLRB at 286 (finding faculty trol”); Point Park University, supra. committee recommendations not effective because rec- First, the party asserting managerial status must prove ommendations usually ignored or reversed by the admin- actual—rather than mere paper—authority. See Point istration); Elmira College, supra, 309 NLRB at 845, 850 Park University, 457 F.3d at 48 (emphasizing that the (finding that all curriculum recommendations were ap- Board must “look beyond self-serving descriptions of the proved, and that the creation of core curriculum without role of faculty or the administration of a university” to faculty vote several years earlier was isolated, remote, the “actual role of the faculty”). A faculty handbook and under different administrators); University of Great may state that the faculty has authority over or responsi- Falls, supra, 325 NLRB at 83 (finding Elmira College bility for a particular decision-making area, but it must distinguishable because “unlike here, there was clear evidence that faculty recommendations were generally be demonstrated that the faculty exercises such authority 38 in fact. We emphasize the need for specific evidence or followed”). Further, faculty recommendations are “ef- testimony regarding the nature and number of faculty fective” if they routinely become operative without inde- decisions or recommendations in a particular decision- pendent review by the administration. See Lewis and making area, and the subsequent review of those deci- Clark College, supra, 300 NLRB at 163 (1990)(finding sions or recommendations, if any, by the university ad- faculty are managerial despite administrative hierarchy ministration prior to implementation, rather than mere where recommendations are routinely approved by ad- conclusory assertions that decisions or recommendations ministration; to negate managerial status, there must be are generally followed.37 evidence that the administrators are relied on for their Second, to be “effective,” recommendations must al- independent review and recommendation); University of most always be followed by the administration. See Itha- Great Falls, 325 NLRB at 95–96 (finding that faculty are ca College, supra, 261 NLRB at 577, 578 (observing that not managerial where record is replete with evidence of recommendations “invariably . . . followed” and noting committee recommendations but vague or silent as to whether recommendations generally and routinely were 36 In those instances where a committee controls or effectively rec- approved by the administration or whether those recom- ommends action in a particular decision-making area, the party assert- mendations were independently reviewed and evaluated ing that the faculty are managers must prove that a majority of the by higher-ranking administrators).39 committee or assembly is faculty. If faculty members do not exert Finally, an evaluation of whether faculty actually exer- majority control, we will not attribute the committee’s conduct to the faculty. See, e.g., University of Great Falls, supra, 325 NLRB at 95. cise control or make effective recommendations requires 37 Member Miscimarra contends that we “disregard” faculty hand- our inquiry into both the structure of university decision- books and job descriptions as “mere paper authority.” That is not the making and where the faculty at issue fit within that case. Such evidence is, of course, relevant. But, for purposes of deter- structure, including the nature of the employment rela- mining managerial status, the actual practice of the faculty is much more probative. Conclusory statements, such as those appearing in handbooks and job descriptions, give the Board little upon which to 38 Our dissenting colleagues take issue with this “onerous” standard. make a sound judgment as to the faculty’s managerial status. As a But, as seen in the cases cited, the Board has regularly required a sub- result, the Board has often looked at the actual practice at the universi- stantial level of acquiescence in faculty recommendations in order to ty, and not merely the faculty’s paper authority. See, e.g., Bradford find those recommendations “effective.” College, 261 NLRB 565, 566 (1982); Thiel College, 261 NLRB 580, 39 Member Johnson argues that our inclusion of independent review 586 (1982); St. Thomas University, 298 NLRB 280, 286 fn. 48 (1990). is “serious error,” creating false dichotomies and making it effectively Cf. NLRB v. Bell Aerospace Co., 416 U.S. 267, 290 fn. 19 (1974) (“Of impossible for faculties at universities—places rich in dialogue—to be course, the specific job title of the employees involved is not in itself managerial employees. We have no such fears. The Board has exten- controlling. Rather, the question whether particular employees are sive experience applying this well-established standard. See, e.g., ‘managerial’ must be answered in terms of the employees’ actual job Yeshiva, supra, 444 U.S. at 683 fn. 17; DirectTV, 357 NLRB 1747, responsibilities, authority, and relationship to management.”) (Empha- 1747–1748 (2011). sis added.) A party seeking to exclude employees from the protection of the Act should be able to provide examples of purported managerial authority. 1422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tionship held by such faculty (e.g., tenured vs. tenure Indeed, our experience applying Yeshiva has generally eligible vs. nontenure eligible; regular vs. contingent).40 shown that colleges and universities are increasingly run by The Court in Yeshiva examined the authority structure administrators, which has the effect of concentrating and of the university to determine the faculty’s authority. It centering authority away from the faculty in a way that was described the nature of university decision-making, as it contemplated in Yeshiva, but found not to exist at Yeshiva observed it in 1980: University itself. 42 Such considerations are relevant to our assessment of whether the faculty constitute managerial The Act was intended to accommodate the type of employees. management-employee relations that prevail in the py- A common manifestation of this “corporatization” of ramidal hierarchies of private industry. In contrast, au- higher education that is specifically relevant to the facul- thority in a typical “mature” private university is divid- ty in issue here is the use of “contingent faculty,” that is, ed between a central administration and one or more faculty who, unlike traditional faculty, have been ap- collegial bodies. This system of “shared authority” pointed with no prospect of tenure and often no guaran- evolved from the medieval model of collegial deci- tee of employment beyond the academic year.43 sionmaking in which guilds of scholars were responsi- There are many important ways, besides their tenuous ble only to themselves. employment relationship, in which contingent faculty Id. at 680 (citations omitted). This system of collegial deci- differ from their tenured and tenure-eligible colleagues. sionmaking arose because universities required the profes- Contingent faculty are often employed in teaching- or sional expertise of the faculty in the formulation and im- research-only positions, with little to no support for fac- plementation of academic policy. Id. Nonetheless, the ulty development or scholarship, providing them with a Court recognized that not all universities were so organized, very different relationship to the university and its func- noting that its decision was only a “starting point” and actions. This relationship is reflected in the different man- knowledging that there “may be institutions of higher learn- 42 ing unlike Yeshiva where the faculty are entirely or predom- See Puerto Rican Junior College, 265 NLRB 72 (1982) (effective faculty influence declines as promotion evaluations ascend the adminis- inately nonmanagerial.” 444 U.S. at 866 fn. 31. trative hierarchy); Cooper Union of Science & Art, 273 NLRB 1768 Time appears to have confirmed the wisdom of the (1985) (faculty authority, although considerable, frequently made inef- Court’s decision to address only the case then before it. fective by administration decisions that exclude faculty or are made Over the 30-plus years since Yeshiva was decided, the over faculty opposition); St. Thomas University, 298 NLRB 280 (1990) (Division Chairperson Committee comprising dean of faculty and five university model of delivering higher education has division chairpersons is “effective buffer” between the faculty and top evolved considerably. As one commentator has ex- management and obviates the need to rely on the faculty’s provisional plained: judgment). See also, Benjamin Ginsberg, The Fall of the Faculty: The Rise of the All-Administrator University and Why it Matters, 28 (Ox- The rise of consumerism, a growing push for accounta- ford University Press, 2011); Jeffrey Brainard, Paul Fain & Kathryn bility and declining public support for education are Masterson, “Support-Staff Jobs Double in 20 Years, Outpacing Enroll- ment,” The Chronicle of Higher Education (April 24, 2009). contributing to what many call the ‘corporatization’ of 43 “[T]he increasing use of contingent faculty, to the point where the higher education. Nonprofit colleges and universities faculty itself can be described as contingent, clearly comprises a major are adopting corporate models, cutting costs and seek- component of a fundamental change in the nature of higher education 41 institutions and their role in a democratic society.” John W. Curtis & ing profit-making opportunities. Monica F. Jacobe, Consequences: An Increasingly Contingent Faculty, AAUP CONTINGENT FACULTY INDEX 15 (2006). The university pro- fessorate, once dominated by tenured or tenure-track faculty, now 40 In Yeshiva, the Court acknowledged the possibility “that a rational counts ever more nontenure eligible faculty among its members. See, line could be drawn between tenured and untenured faculty members, e.g., Adrianna Kezar & Daniel Maxey, THE CHANGING FACULTY AND depending upon how a faculty is structured and operates.” 444 U.S. at STUDENT SUCCESS 1 (2012) (“In 1969, tenured and tenure-track posi- 866 fn. 31. We do not draw such a line in this case. However, as the tions made up approximately 78.3% of the faculty and non-tenured Court’s observation recognizes, the structure of the university admin- track positions comprised about 21.7%. Forty years later, in 2009 these istration and the nature of the faculty’s employment relationship may proportions had nearly flipped; tenured and tenure-track faculty had well bear on whether the faculty in issue control or make effective declined to 33.5% and 66.5% of faculty were ineligible for tenure.” recommendations for specific areas of university decision-making. To (citations omitted)); Michael Klein, Declaring an End to “Financial that extent, both the structure of the university administration and the Exigency”?: Changes in Higher Education Law, Labor, and Finance, nature of the faculty’s employment relationship will be relevant to our 1971-2011, 38 J.C. & U.L. 221, 271 (2011–2012) (“Between 1995 and analysis. 2007, contingent faculty came to outnumber tenured faculty.”). Uni- 41 Rebecca Clay, The Corporatization of Higher Education: The In- versities are increasingly turning to this contingent workforce in part termingling of Business and Academic Cultures Brings Both Concerns because they are often paid less, helping to reduce costs, and because and Potential Benefits to Psychology, 39 MONITOR ON PSYCHOLOGY they also give the institutions flexibility to respond to fluctuations in 50 (2008). university and course enrollment. See, e.g., Klein, supra, at 272. PACIFIC LUTHERAN UNIVERSITY 1423 ner of their employment by the university.44 Their ap- ed to the survey) “represent 576+ total years of teaching, pointment and/or reappointment often depends on the 512+ of those at [PLU]. A range of 1-40 years at [PLU] discretion of a single administrator, “producing the kind was reported, with many of the respondents being long- of hesitancy regarding controversy or offense in teaching term affiliates.” Despite these, at time, lengthy tenures, and research that limits academic freedom.”45 As a re- nearly 30 percent of respondents said that they have nev- sult, contingent faculty “tend not to be involved in shared er been told of the actual duration of their appointment. governance” because of the precarious nature of their As a result, PLU has created a sizeable cadre of faculty, appointment.46 Given all of this, the net result of their who, despite their longevity, can be terminated at the end unique, temporary relationship frequently is “[a] diminu- of any given academic period. tion of the faculty voice.”47 Our inquiry, therefore, must Typically, PLU hires contingent faculty to replace reg- include an examination of whether the nature of the em- ular faculty who are on sabbaticals, in response to in- ployment in issue prevents those affected from helping creased enrollment demands, or while PLU seeks a re- shape the academy as a whole at their individual institu- placement for a tenured faculty member. PLU does not tions. accord all contingent faculty the same benefits as their In sum, where a party asserts that university faculty are tenure-track faculty colleagues and does not accord them managerial employees, we will examine the faculty’s support for their professional development or research participation in the following areas of decisionmaking: activities. According to the Spring 2011 survey, 56 per- academic programs, enrollment management, finances, cent of respondents said that PLU does not support their academic policy, and personnel policies and decisions, travel to professional meetings, 30 percent said they did giving greater weight to the first three areas than the last not have access to University-sponsored professional two areas. We will then determine, in the context of the development, 77 percent said they were not able to sub- university’s decision making structure and the nature of mit external research grant proposals with institutional the faculty’s employment relationship with the universi- support, and 45 percent said they were not regularly ty, whether the faculty actually control or make effective evaluated. Additionally, 29 percent had never had a dis- recommendation over those areas. If they do, we will cussion with their supervisor regarding expectations for find that they are managerial employees and, therefore, teaching, 52 percent had never had a discussion regard- excluded from the Act’s protections. We turn now to the ing expectations for university service, and 67 percent present case. had never had a discussion about expectations for schol- D. Full-Time Contingent Faculty at PLU arship. 1. Nature of contingent faculty employment relationship 2. Authority of full-time contingent faculty in University Governance The use of full-time contingent faculty at PLU is consistent with the national pattern described above.48 PLU Consistent with the national trend, the voice of full- employs over 350 faculty, approximately 50 percent of time contingent faculty in university governance is lim- whom are contingent. Contingent faculty are hired on ited both by their uncertain position within the university yearly contracts. Although these are yearly appoint- community as well as by restrictions specifically im- ments, a number of contingent faculty have been teach- posed on them by PLU. ing at PLU for decades. According to a spring 2011 sur- The faculty constitution states that that the “governing vey of contingent faculty by the PLU chapter of the body” of the faculty is the faculty assembly. The consti- American Association of University Professors (“Spring tution also creates the faculty committee system, which, 2011 survey”), contingent faculty of PLU (who respond- according to the faculty bylaws, consists of university committees and faculty standing committees that make 49 44 Curtis & Jacobe, suprafn. 43, at 7. recommendations to the faculty assembly. Faculty 45 Id. governance is generally organized in accordance with 46 Clay, supra fn. 41. PLU’s three divisions and four schools and their constit- 47 Curtis & Jacobe, supra fn. 43, at 16. uent departments.50 48 As we have indicated, in addition to full-time and part-time contingent faculty, the University’s faculty consists of “regular” tenure- eligible faculty, administrative faculty, and emeriti faculty. 49 Under the bylaws, both faculty and university committees are “Administrative” faculty status is given to the occupants of the fol- “standing” committees; for purposes of clarity, we will use “faculty lowing positions: the president, the provost/dean of graduate studies, standing committee” and “university committee” to distinguish be- the vice president for development and university relations, the vice tween the two. The faculty committee system also includes ad hoc president for finance and operations, the vice president for admission committees. and enrollment services, the vice president of student life/dean of stu- 50 PLU is composed of the division of humanities, the division of dents, and the academic deans. natural sciences, the division of social sciences, the school of arts and 1424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Divisions, Schools, and Departments: The record re- committees given that committee appointments last for 3 flects that these organizational units, among other things, years.52 originate curriculum revisions and revisions to academic Currently, the university committees cover topics such policies, establish graduation standards, determine stu- as: long-range planning, diversity, budget,53 retirement dent scholarship standards and recipients, and participate fund, strategic enrollment management, university me- in the selection of new faculty. Additionally, proposals dia, institutional animal care and use, and campus minis- for new majors, minors, departments, divisions, and try. Recommendations from university committees go to schools frequently originate here. These changes typi- the president’s council, which consists of the president, cally proceed through the faculty standing committee on provost, and vice presidents.54 These recommendations educational policies and, if necessary, the faculty assem- from the university committees appear to be purely advi- bly. Three divisions also elect their deans, and depart- sory. For instance, the University provost testified as ments elect their respective department chair.51 follows regarding the university budget committee: “The Full-time contingent faculty may participate at the de- word, advisory, is key. They don’t decide, but they offer partment level on various curriculum matters, but the an avenue for input to the administration.” In any event, extent of any actual participation was not explained by according to the provost’s testimony, none of the faculty PLU. Further, PLU failed to establish that full-time con- has a vote on the size of the student body, admissions tingent faculty have a vote on any of these matters within standards, retention standards, tuition and fees, or distri- their department or division or school. In the division of bution of financial aid. humanities, regular and contingent faculty recently voted Faculty Standing Committees: Faculty standing com- on a “Statement of Principles and Best Practices” for the mittees are created by the faculty assembly. Membership division, which appears to recommend giving full-time on faculty standing committees is limited to regular fac- contingent faculty voting privileges on all matters except ulty; contingent faculty are expressly barred from serv- personnel. The record does not indicate, however, that ing. the recommendation was ever implemented. And the The eight faculty standing committees cover faculty record does not demonstrate that the full-time contingent governance, educational policies, admission and reten- faculty have actually voted on any divisional matters. tion, rank and tenure, faculty affairs,55 campus life,56 Further, the record contains no evidence that full-time global education,57 and instructional resources.58 The contingent faculty in other divisions or schools have any right to vote within their respective divisions, schools, or 52 Additionally, as seen for the university budget committee, faculty constituent departments. membership on university committees is often drawn from faculty University Committees: University committees must be standing committees. As such, full-time contingent faculty would not be able to fill those seats. authorized by the faculty assembly, the president, and the 53 The provost testified that the university budget committee makes appropriate representative authority for non-faculty recommendations on tuition, among other things. members of the proposed committee. According to the The Regional Director found that the university budget committee handbook, the membership of each current university also counts faculty as a majority of its membership. This appears to be incorrect. Per the faculty handbook, its membership is: the president; committees include a mix of faculty, administrators and the provost; the vice president for finance and operations (chair); one students, but the faculty are not a majority on any com- member each from the educational policies faculty standing committee, mittee. The duration of a faculty appointment to a uni- faculty affairs faculty standing committee, and the instructional re- versity committee is 3 years. Full-time contingent facul- sources faculty standing committee; two budget heads selected by the president, one from the college of arts and sciences, one from the pro- ty were barred from serving on university committees fessional schools; two students; and two administrative staff. until 2013, when the faculty assembly voted to remove 54 There is no evidence that university committee recommendations that prohibition. There is no evidence, however, of full- are forwarded to the faculty assembly for consideration. 55 time contingent faculty currently serving on a university This committee recommends policy regarding faculty welfare, including scholarships and grants, faculty leaves, fringe benefits, retire- committee. And practically speaking, it is uncertain how ment, and salaries and advises the administration regarding faculty many full-time contingent faculty, who serve only 1-year concerns regarding allocation of budgetary funds. appointments, are even eligible to serve on university 56 This committee “consider[s] in a coordinated fashion matters pertaining to the academic and social aspect of campus life,” including the academic integrity policy. communication, the school of business, the school of education, and the 57 This committee “review[s] and oversee[s] off-campus curricular school of nursing. Divisions and schools may be further divided into matters related to global education programs and initiatives, to advise departments by subject matter. Deans head the three divisions and four the Executive Director of the Wang Center for International Programs schools; regular faculty serve as department chairs. on policies and procedures related to global education, and to advocate 51 The deans of the four schools are hired by PLU. with the Wang Center for global education across the campus.” PACIFIC LUTHERAN UNIVERSITY 1425 admission and retention committee “stud[ies] problems, have to go through the faculty assembly.62 Any matter recommend[s] policy, and, in general, represent[s] the concerning money, particularly compensation, goes di- faculty in matters dealing with admission, retention, stu- rectly to the administration without first going to the fac- dent academic status and policy recommendation and ulty assembly. formulation related to enrollment.” But as stated above, Faculty Assembly: Faculty assembly meetings are held the faculty does not vote on admission and retention mat- once a month during the academic year. Regular, admin- ters. The educational policies committee has jurisdiction istrative, and contingent faculty may attend. Attendance over, among other things: the academic calendar; chang- is typically over 100. The provost estimated that 80 per- es to degree requirements; design of courses, degrees, cent of the faculty attendees are tenure eligible and 20 majors, and minors; and the establishment of depart- percent are contingent, and possibly 10 to 11 administra- ments and divisions/schools.59 The tenure and rank tive faculty attend as well. The provost did not estimate committee may recommend procedures for granting ten- how many of the contingent faculty attendees are full ure, the requirements for promotion and rank, faculty time. He acknowledged that there may be faculty as- evaluations, and salary. And the governance committee sembly meetings where very few contingent faculty are has purview over changes to the faculty constitution and present. Of the contingent faculty members, only full- bylaws,60 faculty handbook,61 and the faculty governance time contingents have the right to vote in the assembly, system as a whole. Although the faculty handbook pro- and PLU has limited their right by excluding them from vides that the faculty shall recommended many proce- all personnel decisions.63 The record contains no evi- dures governing an array of subjects, some of these pro- dence, however, that full-time contingent faculty have cedures provide only a limited role for the faculty and actually ever voted or spoken in the faculty assembly. others prohibit their participation. Even further removed The provost testified it is unusual for the faculty as- are all contingent faculty because they cannot participate sembly to reject recommendations from faculty standing in the development of these recommendations at the fac- committees. He cited only one example—the 2013–2014 ulty standing committee level. academic calendar guidelines. The guidelines originated At the hearing, the provost emphasized that although with the educational policies committee and were re- the “vast majority” of committee determinations go to turned to the committee after rejection by the assembly. the faculty assembly, others do not. Curriculum and Afterward, the provost worked with the committee on course changes are automatically approved after going revisions. The revised guidelines were later approved by through the educational policies committee, unless there the assembly. is an objection; only then would the matter potentially E. The Regional Director’s Decision Applying Yeshiva and its progeny, the Regional Direc- 58 This committee “advance[s] the educational mission of the university with respect to information technology, learning spaces, the tor found that the Employer failed to carry its burden of library, and related services and resources.” demonstrating the managerial status of the full-time con- 59 The provost testified that the educational policy committee has an tingent faculty. The Regional Director emphasized that “absolutely” critical role to play in the curriculum revision process. the full-time contingent faculty cannot serve on the facul- 60 The faculty constitution lists several “rights and duties” that “are inherent in the faculty collectively.” These include: determination of ty standing committees, including the “powerful educa- degrees, certificates of merit, awards, and honors; establishment or tional policy committee” and the rank and tenure com- discontinuation of colleges, schools, institutes, and departments; formu- mittee.64 He noted that the typical year-to-year contracts lation and enactment of “educational policy which is the central concern of the university”; “requirements for admission to, and rank of, its 62 [the faculty’s] membership;” and establishment of its [the faculty’s] The record does not clearly indicate how often these matters be- own form of governance”; “formulation of courses of study”; “recom- come effective without faculty assembly approval. The record also mendation of requirements for admissions, academic status, and gradu- does not establish whether full-time contingent faculty have the right to ation, nomination of candidates for degrees”; “censure of any member object and thus force further consideration of the measure. But even if of the academic community”; and provision for a fair and impartial they have such a right, there is no evidence that any of the full-time contingent faculty ever exercised it. hearing in cases of faculty accused of professional misconduct. 63 61 The faculty handbook contains specific procedures governing an Although it is undisputed that the full-time contingent faculty can- array of subject areas. These include: instructional responsibilities not vote on personnel matters, the provost testified that they may vote (course load, office hours, grading, examinations, teaching evaluations, on procedures governing those actions. Before many of those policies registration, attendance); academic advising; academic integrity; hon- reach the faculty assembly, of course, they must pass through the rank orary degrees; faculty discipline and dismissal; recruitment and selec- and tenure faculty standing committee, from which contingent faculty are barred. tion of new faculty; review process for contingent faculty; compensa- 64 tion philosophy; reductions in teaching load; phased retirement; faculty As stated above, in March 2013, the faculty assembly voted to al- awards; and leaves of absence (sabbatical, regular, and special). low full-time contingent faculty to serve on university committees but not faculty standing committees. As correctly found by the Regional Director, no evidence was presented that they yet had done so. Of the 1426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of the full-time contingent faculty present an impediment According to PLU, under the Supreme Court’s Yeshiva to serving on such committees as the members are ap- test, “the controlling consideration . . . is that the faculty pointed for 3-year terms. The Regional Director found ... [may] exercise authority.” Yeshiva, supra, 444 U.S. that, in any event, the university and faculty standing at 686. It therefore is irrelevant, PLU argues, how a giv- committees are purely advisory because PLU failed to en issue comes to the faculty assembly for decision. It is meet its burden of demonstrating that recommendations the right to vote on these subjects that makes faculty from these committees were routinely approved without managerial under Yeshiva. PLU disputes the Regional independent review. Director’s attempt to distinguish the status of the full- The Regional Director also emphasized that the con- time contingent faculty on the basis that “no contingent tested contingent faculty constitute a small minority of faculty may vote in the assembly . ..on personnel mat- those who attend faculty assembly meetings and likely a ters.” Decision at 19. In fact, PLU argues, the faculty smaller minority of its voting body because not all the assembly, including full-time contingent faculty, votes contingent faculty who attend are eligible to vote. The on the criteria for tenure and promotion, and all faculty Regional Director took account of the absence of evi- personnel policies, including the level of compensation dence that any contingent faculty member ever partici- during sabbaticals, and the rules and guidelines to disci- pated in a vote of the faculty assembly, and of the rule pline or discharge faculty. that contingent faculty members may not vote in the assembly on personnel matters. The Regional Director 2. The Petitioner found that despite the pronouncements of PLU’s wit- The Petitioner agrees with the Regional Director that nesses, in practice, power resides in the faculty standing the full-time contingent faculty are not managerial em- committees, and Board law accords the actual practices ployees under Yeshiva. The Petitioner emphasizes that of faculty greater weight. See Cooper Union of Science the full-time contingent faculty do not have equal access and Art, 273 NLRB 1768 (1985). or participatory rights within the faculty governance sys- The Regional Director further found that, although the tem. This includes lack of participation in faculty stand- humanities division has taken a step towards granting ing and university committees, their minority status with- greater participation to the contingent faculty in its deci- in the faculty assembly, and limitations on what they can sion-making, PLU failed to produce evidence of any sig- vote. The Petitioner further argues that there is a clear nificant decisions having been made at the division level. institutional divide between contingent and regular facul- Moreover, the Regional Director observed that the lan- ty. At the school and division levels, some decisions guage in the division’s “Statement” regarding voting such as specific course offerings, course credit determi- rights for full-time contingent faculty was “purely aspira- nations, scheduling and hiring are made by department tional” and non-binding. As for departments, the Re- chairs. The Petitioner asserts that the record does not gional Director found that although contingent faculty demonstrate that full-time contingent faculty as a whole may sit in on faculty hiring interviews, no evidence was can participate across all divisions and schools in these presented regarding their roles and the record did not department decisions. Rather, full-time contingent facul- demonstrate that any recommendations flowing from the ty will always constitute a small, discrete minority with interviews were effective without independent review. lesser rights in the voting population. Their vote is dilut- F. Contentions of the Parties ed by the way that successful faculty proposals are crafted at the faculty standing committee level, from which 1. PLU they are barred. Moreover, they are barred from person- PLU argues that the “full-time contingent faculty are nel-related decisions, and PLU failed to show how it de- exempt under Yeshiva” as managerial employees be- termines whether an issue is personnel-related and thus cause they have the same voice and vote in the faculty whether full-time contingent faculty can vote. assembly on key academic policies as the regular tenure- eligible faculty. By having a voice and a vote in the faculty assembly, as in Yeshiva, PLU argues, these faculty members have the ability to determine admission criteria, curriculum, course offerings, grading procedures and many other matters related to academic policy and university governance. current faculty representatives on the university committees, there is no evidence that any are full-time contingent faculty. PACIFIC LUTHERAN UNIVERSITY 1427

G. Application of the Analytical Framework65 includes a mix of faculty, students and administrators.66 We agree with the Regional Director that PLU has But there is no evidence that any full-time contingent failed to carry its burden of proving that full-time contin- faculty currently serve on this apparently advisory com- gent faculty are managerial employees. As more fully mittee. And the record fails to demonstrate that any of discussed below, the record fails to show that full-time the committee’s recommendations are submitted to the contingent faculty actually control or make effective rec- faculty assembly—where full-time contingents would ommendations in any of the primary or secondary areas presumably have a vote—before they go to the presi- of decision-making. dent’s council. Finally, there is no evidence that contingent faculty are 1. Areas of university decision making involved in decisions affecting PLU’s finances (budget, a. Primary areas tuition, financial aid, and related fiscal matters). Contin- As described, full-time contingent faculty have limited gent faculty have no vote on financial aid or tuition, and participation in decisions affecting academic programs there is no evidence of their involvement in other finan- (curricula, major and minor areas of study, and related cial decisions. As with enrollment management, PLU at academic requirements). These decisions originate in the most proved that contingent faculty could one day have a divisions, schools, and various academic departments vote on this apparently advisory university committee, within PLU. PLU has not shown that full-time contin- but no contingent faculty member has sat on this com- gent faculty have the right to vote on such matters at this mittee to date. And again, the record fails to demonstrate level, and there is no evidence that they have done so. that any recommendations from the university budget Further, proposals from divisions, schools, and their de- committee are submitted to the faculty assembly before partments are typically forwarded to the faculty standing they go to the president’s council. committee on educational policies for its review. The b. Secondary areas full-time contingent faculty likewise have no vote at this Decisions affecting academic policy (teaching and re- level because they are barred from serving on faculty search methods, grading policy, academic integrity, and standing committees. Of course, full-time contingent related areas) appear to proceed through PLU’s decision- faculty have a vote on academic matters in the faculty making process in a manner similar to academic pro- assembly, but even this involvement is limited. While grams. the faculty standing committee’s decisions on new de- Finally, the record indicates that contingent faculty grees, majors, minors, and programs must go through the play a limited role in deciding personnel policy and re- faculty assembly for approval, changes to degree related matters (e.g., hiring, promotion, tenure and leave). quirements, new courses, and other curriculum course Most notably, PLU specifically excludes contingent fac- changes do not require the consent of the faculty assem- ulty from voting on specific personnel decisions. In ad- bly unless there is an objection. dition, contingent faculty are excluded from the faculty We find no evidence that contingent faculty vote on standing committee on faculty affairs, which recom- enrollment management policies (the size, scope, and mends policies regarding faculty salaries, grants, leave, composition of the student body). Indeed, the provost fringe benefits, and retirement. However, at least some testified that none of the faculty, including regular facul- personnel policies—most notably, those that are con- ty, have the right to vote on the size of the student body tained in the faculty handbook—go through the faculty or admission and retention standards. At most, the rec- assembly, at which time full-time contingent faculty can ord shows that, as of 2013, full-time contingent faculty vote on them. are eligible for membership on the university committee Nonetheless, as we now show, even to the extent the responsible for enrollment management policies, which full-time contingent faculty have some involvement in these decision-making areas, PLU has not shown that 65 We reject PLU’s contention that this case should be remanded to determine the managerial status of the regular faculty. The burden of their involvement rises to the level of actual or effective proving managerial status is on PLU. If PLU’s argument is that the control. full-time contingent faculty are managerial employees because they 2. Actual control or effective recommendation have managerial authority comparable to that of the tenure-eligible faculty, then PLU had the burden of demonstrating that the regular As stated above, PLU established that full-time con- faculty are managerial employees. PLU did not raise that issue at the tingent faculty have voting privileges in the faculty as- hearing. Rather, it argued only that the full-time contingent faculty are managerial employees, and it agreed to exclude the regular faculty from 66 the unit without taking a position on their status. Of course, the full-time contingent faculty are not eligible to serve on faculty standing committee on admission and retention. 1428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sembly, although these voting privileges are limited in with that national norm. As the spring 2011 survey that they do not extend to specific personnel decisions. demonstrated, although many contingent faculty are em- Moreover, the record indicates that only about 20 percent ployed for years by PLU, their hold on their positions is of those faculty who actually attend any particular facul- tenuous, subject to yearly renewal. And many are not ty assembly meeting are contingent faculty, without even told of their basic rights and responsibilities relative specifying how many are full-time contingent faculty. to PLU. Finally, PLU has not even established that any full-time Our examination of the decision-making authority in contingent faculty member ever has cast a vote, or even this case leaves little doubt that the contingent faculty spoken, in the faculty assembly. simply do not, and in fact cannot, control or effectively But, even if there were such evidence, or evidence of control relevant decision-making within PLU. greater contingent faculty involvement in the assembly, a H. Conclusion closer review of the assembly reveals that it is little more We conclude that PLU has failed to prove that its full- than a conduit to transmit previously agreed-upon rec- time contingent faculty exercise managerial authority on ommendations to the administration. Consistent with behalf of their employer, PLU. In particular, we find that this conclusion, the only evidence PLU presented of the there is insufficient evidence that the full-time contingent faculty assembly vetoing any action concerned the 2013– faculty are substantially involved in decision-making 2014 academic calendar. But even in that case, the mat- affecting the key areas of academic programs, enrollment ter originated in the educational policies committee and management, and finances. Even in the secondary areas was referred back to that committee, which ultimately of academic policy and personnel policy or decisions, worked out a compromise with the provost, a compro- their decision-making authority is essentially limited to mise that the faculty assembly ultimately endorsed. matters concerning their own classrooms or departments. To the extent that policy may be formulated or effectu- To the extent full-time contingent faculty do have oppor- ated by faculty, that work appears to be done in the divi- tunities to participate in those areas of decision making, sions, schools, and departments, the faculty standing the record is clear that their involvement falls well short committees, and the university committees.67 However, of actual control or effective recommendation, given the PLU failed to present any evidence that full-time contin- university’s decision making structure. gent faculty vote on matters pending before their division, school, or department. Further, faculty standing ORDER committees exclude the contingent faculty altogether, This proceeding is remanded to the Regional Director precisely because of their contingent status. Moreover, for appropriate action consistent with this Decision and PLU now contends in its brief on review that the stand- Order. ing committees are only advisory bodies. And while contingent faculty may now vote in university commit- MEMBER MISCIMARRA, concurring in part and dissenting in tees, the record reflects that no contingent faculty mem- part. ber has yet served on a university committee. But even if “The values enshrined in the First Amendment plainly they did, they would be a minority on the university rank high in the scale of our national values.” NLRB v. committee as their membership is currently structured, Catholic Bishop of Chicago, 440 U.S. 490, 501 (1979) and such committees appear to be purely advisory in any (internal quotation marks omitted). In Catholic Bishop event. and other cases, the Board has had a challenging time Finally, the ability of the contingent faculty to control deciphering when First Amendment concerns warrant a or make effective recommendations regarding university finding that the Board must refrain from exercising juris- policy is inherently limited by the very nature of their diction over faculty members at certain religious schools employment relationship with PLU. As discussed, na- and universities.1 I join my colleagues in abandoning the tionwide, contingent faculty tend to have a limited voice in university governance, if they have a role at all. 1 NLRB v. Catholic Bishop of Chicago, supra (invalidating the PLU’s treatment of its contingent faculty is consistent Board’s policy of declining jurisdiction over institutions “only when they are completely religious, not merely religiously associated”);

67 University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) Although PLU presented evidence of an extensive committee sys- (invalidating the Board’s subsequent policy of declining jurisdiction tem, it now contends that these committees are just advisory because only over schools that have a “substantial religious character”); Univer- the faculty assembly makes the important votes. Yet the provost testi- sidad Central de Bayamon v. NLRB, 793 F.2d 383, 398 (1st Cir. 1985) fied, for example, that the educational policy committee plays a “criti- (en banc) (evenly divided court denied enforcement of Board order cal role” in curriculum revisions and that “the committee process works against a church-operated college “that [sought] primarily to provide its pretty well.” students with a secular education, but which also maintain[ed] a subsid- PACIFIC LUTHERAN UNIVERSITY 1429

“substantial religious character” test that the D.C. Circuit a judge would not understand its religious tenets and rejected in University of Great Falls v. NLRB, 278 F.3d sense of mission. Fear of potential liability might affect 1335 (D.C. Cir. 2002). However, for the reasons stated the way an organization carried out what it understood to in Member Johnson’s insightful separate opinion, I be- be its religious mission.” Corp. of Presiding Bishop of lieve the majority errs in holding the exemption afforded Church of Jesus Christ of Latter-Day Saints v. Amos, 483 to religious schools applies only if faculty members are U.S. 327, 336 (1987) (holding that Title VII’s exemption held out as “performing a specific role in creating or from prohibition against religious discrimination in em- maintaining their school’s religious educational envi- ployment for secular non-profit activities of religious ronment,” and I further believe the Board should simply organizations did not violate the Establishment Clause) embrace and apply the three-part test articulated by the (emphasis added). D.C. Circuit in University of Great Falls.2 In my view, I also believe we are poorly served here by devising a this test, applied here, compels the conclusion that Pacif- standard that differs from the three-part test already en- ic Lutheran University should be deemed exempt from dorsed by the D.C. Circuit in Great Falls, supra. The the Act’s coverage based on First Amendment considera- elements of that standard are understandable and relative- tions. ly straightforward, and each one serves a reasonable The majority addresses a second important issue: function. The Great Falls standard appears to be con- whether Pacific Lutheran’s contingent faculty members sistent with Catholic Bishop and other Supreme Court fall within the exemption applied to “managerial” em- cases, and it draws heavily on the en banc decision in ployees, which is governed by Yeshiva University v. Universidad Central de Bayamon, supra, authored by NLRB, 444 U.S. 672 (1980). Here, I agree with my col- then-Circuit Judge Breyer (who now sits on the Supreme leagues that the record fails to support a finding that the Court). Additionally, the Court of Appeals for the D.C. contingent faculty members are exempt managerial em- Circuit has squarely held that courts owe no deference to ployees. More generally—though subject to some quali- the Board’s interpretation of the exemption to be afford- fications described below – I agree with the framework ed religious educational institutions.3 Finally, not only outlined by the majority for determining whether faculty has the D.C. Circuit addressed the very question present- members are exempt “managerial” employees. ed here, every unfair labor practice decision by the Board A. The Religious Educational Institution Exemption may be appealed to the D.C. Circuit. 29 U.S.C. § 160(f). Thus, even if one disagreed with Great Falls, any at- Member Johnson’s dissenting opinion sets forth a tempt by the Board to chart a different path appears pre- commanding and comprehensive analysis of Catholic destined to futility.4 In any event, for the reasons set Bishop, Great Falls and related cases. I join in Member forth above and in Member Johnson’s thoughtful analy- Johnson’s conclusion that the standards articulated by the sis, I believe the Great Falls standard is appropriate and, majority suffer from the same infirmity denounced by the applying that standard, I would find that the Board clear- Supreme Court in Catholic Bishop and by the D.C. Cir- ly lacks jurisdiction over the faculty at Pacific Lutheran cuit in Great Falls: those standards entail an inquiry University. likely to produce an unacceptable risk of conflict with the Religion Clauses of the First Amendment. As the B. The Managerial Employee Exemption Supreme Court has explained: “The line [between reli- With some important qualifications, I agree with the gious and secular activities] is hardly a bright one, and framework—which is governed by Yeshiva, supra— an organization might understandably be concerned that 3 Great Falls, 278 F.3d at 1340–1341 (“As Catholic Bishop was de- iary religious mission”); NLRB v. Bishop Ford Central Catholic High cided on grounds of constitutional avoidance, we give no deference to School, 623 F.2d 818 (2d Cir. 1980) (reversing Board’s determination the NLRB’s application of this exemption to the National Labor Rela- that a religious school was outside the scope of Catholic Bishop merely tions Act.”) (citing Chevron U.S.A., Inc. v. Natural Resources Defense because it was operated by a private corporation rather than a religious Council, Inc., 467 U.S. 837 (1984)); see also NLRB v. Hanna Boys order, finding that First Amendment concerns are implicated in both Center, 940 F.2d 1295 (9th Cir. 1991) (“We review de novo the circumstances). Board’s purely legal conclusion that Catholic Bishop applies only to 2 Under the University of Great Falls test, the Board has no jurisdic- teachers in parochial schools.”). 4 tion over faculty members at a school that (1) holds itself out to stu- Of course, the Board’s interpretation of the Act, including the ex- dents, faculty and community as providing a religious educational emption applicable to religious educational institutions, is subject to environment; (2) is organized as a nonprofit; and (3) is affiliated with, review by various courts of appeals, not merely the D.C. Circuit, and or owned, operated, or controlled, directly or indirectly, by a recog- our resolution of particular issues—though contrary to the D.C. Cir- nized religious organization, or with an entity, membership of which is cuit—may be endorsed by other courts and ultimately upheld by the determined, at least in part, with reference to religion. 278 F.3d at Supreme Court. In the instant case, however, I believe the D.C. Cir- 1343. cuit’s interpretation in Great Falls is appropriate, in addition to being consistent with decisions by other courts and the Supreme Court. 1430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD outlined by the majority regarding factors that influence ence in “secondary” areas is substantial to a degree that whether faculty members are exempt “managerial” em- outweighs their lack of involvement in any “primary” ployees.5 I also generally agree with the distinction be- areas. tween three “primary” areas (academic programs, en- Finally, like my colleagues, I agree that the record in rollment management, finances) and two “secondary” the instant case is insufficient to establish that Pacific ones (academic policy, personnel policy and decisions). Lutheran’s full-time, contingent faculty members are However, I make the following additional observations. exempt “managerial” employees. However, as noted First, for reasons similar to those expressed in Member previously, I believe it is not necessary to reach this issue Johnson’s separate opinion, I believe the majority’s test because the record clearly establishes, in my view, that and its application of these factors – including the treat- Pacific Lutheran University should be considered outside ment of authority, control, and effective recommendation the Board’s jurisdiction based on its religious affiliation, – are too onerous and inflexible and would improperly and I would dismiss the election petition. confer “employee” status on some faculty members who C. Conclusion should be considered “managerial” employees under For these reasons, I concur in part and dissent in part. Yeshiva and its progeny. Second, I do not believe relevant documentation describing the role played by faculty members (for exam- MEMBER JOHNSON, dissenting. ple, faculty handbooks or position descriptions) can be Introduction freely disregarded by the Board as what the majority The story of this case fundamentally starts with—and calls “mere paper authority.” When the evidentiary rec- should end with—the Constitution. In 1979, on the ba- ord contains uncontroverted evidence—documentary or sis of avoiding a constitutional conflict, the Supreme otherwise—hat faculty members have “managerial” au- Court in NLRB v. Catholic Bishop of Chicago, 440 U.S. thority in one or more of the five areas of consideration, 490, soundly rejected the Board’s attempt to exert its the Board should not discount or disregard such evidence jurisdiction over lay teachers at “church-operated” based on a characterization that it is “self-serving.” schools. In the years since that landmark decision, the Third, I believe it is unrealistic and inconsistent with Board has occasionally attempted to push back against the Act to regard faculty members as “managerial” em- the Court’s decision, narrowly construing it in order to ployees only if their recommendations are “almost al- once more advance Board jurisdiction over religious ways” followed. Few managers in any work setting have schools. The courts of appeals, however, have refused to this type of overwhelming influence within their organi- go along for the same reason that Catholic Bishop origi- zations, even though they undisputedly qualify as “man- nally had, declining to enforce the Board’s attempted agerial” employees for purposes of the Act. expansions. See Carroll College v. NLRB, 558 F.3d 568 Fourth, as noted above, I believe the distinction be- (D.C. Cir. 2009); University of Great Falls v. NLRB, 278 tween “primary” and “secondary” factors is likely to be F.3d 1335 (D.C. Cir. 2002); Universidad Central de Ba- useful in most cases. However, there are many non- yamon v. NLRB, 793 F.2d 383 (1st Cir. 1986) (en banc) university contexts in which individuals who undisputed- (decision by then-Judge Breyer); NLRB v. Bishop Ford ly qualify as “managerial” have specialized responsibility Central Catholic High School, 623 F.2d 818 (2d Cir. in only one area, and not others. I believe the Board 1980). These courts found that the Board’s exercise of must allow for the same possibility in the university con- jurisdiction over teachers in religiously affiliated schools, text and find that faculty members, in some instances, colleges, and universities implicates the guarantees set may qualify as “managerial” employees when their influ- forth in the very first lines of the Bill of Rights, namely the promises to the American people that “Congress shall 5 Because I would find that Pacific Lutheran University is exempt make no law respecting an establishment of religion, or from the Act because of its religious affiliation, it is unnecessary for me prohibiting the free exercise thereof . . . .”1 Therefore, to reach the question of whether the faculty members at issue in this case (the University’s full-time contingent faculty) are exempt manage- these courts uniformly found the Board’s repeated at- rial employees. However, the majority does reach this issue (having tempts to assert jurisdiction prohibited under Catholic first decided to exercise jurisdiction); and because the Board has been Bishop. criticized for its application of Yeshiva’s various “managerial” factors—and specifically, for failing to state “which factors are significant 1 and which less so, and why,” LeMoyne-Owen College v. NLRB, 357 These guarantees are commonly referred to as “the Religion Claus- F.3d 55, 61 (D.C. Cir. 2004)—I join Member Johnson in reaching this es” of the First Amendment of the Constitution, and I adopt the same issue, and I generally agree with the framework articulated by the ma- phrase herein. jority, subject to the qualifications described in the text. PACIFIC LUTHERAN UNIVERSITY 1431

The majority decision today represents yet another ef- Act is one in which the Board does not have jurisdiction fort to push back against the Supreme Court’s mandate over lay teachers at parochial schools, that interpretation that we avoid striving for jurisdictional boundaries that should be followed. I see no need to attempt to color could violate the First Amendment. Although the major- outside the lines of the Court’s clear interpretive mandate ity announces its intent to “articulate a new test that is . . and equally clear result here, where we are presented . faithful to the holding of Catholic Bishop,” the majori- with a substantively identical scenario involving lay ty’s new test falls short in that goal in many regards. teachers at religious universities. This is not a hard ques- Most of these errors flow from a single source: misun- tion to resolve, especially given that we have no inherent derstanding the nature of the relationship between the expertise in deciding constitutional issues, which might Constitution and the Act. allow us to draw our own conclusions afield from Catho- The Act that we enforce is a very important statute. It lic Bishop’s teachings. Three court of appeals decisions embodies the national policy “to eliminate the causes of have drawn essentially the same conclusion: that the ju- certain substantial obstructions to the free flow of com- risdictional borders of the Act do not extend to faculty at merce [arising from industrial strife] and to mitigate and church-operated universities. So also should we. eliminate these obstructions when they have occurred” Accordingly, because the majority’s proposed test fails by means of “encouraging the practice and procedure of to avoid the possibility of conflict with the Religion collective bargaining and [] protecting the exercise by Clauses of the First Amendment, both by encroachment workers of full freedom of association, self-organization, on the religious freedom of church-operated universities and designation of representatives of their own choosing and by excessive government entanglement in the opera- . . . .” 29 U.S.C. § 151. But the Act, like every Federal tions of such universities, I cannot support this new for- statute, must bow to the supreme law of the United mulation. Rather, as explained below, I would adopt a States, the Constitution. There is where the majority test similar to that prescribed by the D.C. Circuit in takes its wrong turn. Great Falls in determining whether the Board may exer- Because of the overwhelming force of the Constitu- cise jurisdiction in these cases. Applying that test to the tion, the Supreme Court and lower courts have created circumstances presented here, I would find that the interpretive rules that keep federal statutes from constant- Board cannot assert jurisdiction over PLU’s petitioned- ly being drawn into direct conflict with the Constitution, for faculty members. I also point out that the Board can- and thus inexorably being supplanted or undermined on a not assert jurisdiction under any fair application even of regular basis. The underlying premise is that the Consti- its new test here, highlighting the inherent susceptibility tution’s framers intended—and successive Congresses of that test to fall prey to subjective results. typically intend—for the Constitution and subordinate Because I conclude that the Board cannot exercise ju- federal statutes to work hand in hand, rather than be reg- risdiction over ’PLU’s faculty, I would not ordinarily ularly pitted against one another, with the invariable re- reach the issue whether the contingent adjunct faculty sult of the statutes being systematically obliterated by the members in this case are managerial employees under the Constitution. One of these rules for statutory interpreta- Act. In light of the fact that the majority reaches this tion is the doctrine of constitutional avoidance, the basic issue, however, and because the majority creates and theory underpinning the decision in Catholic Bishop. then applies a whole new standard for determining man- That rule requires us to interpret the Act to avoid even agerial status of faculty members in a university setting, I the risk of a constitutional conflict. We should “decline will discuss the issue in part II, below. I do not disagree to construe the Act in a manner that could in turn call with the majority’s conclusion that these faculty mem- upon [a court] to resolve difficult and sensitive questions bers are not managerial employees, but their test for arising out of the guarantees of the First Amendment reaching that conclusion is off base. Religion Clauses.” 440 U.S. at 507. In other words, Analysis unless we can say that Congress clearly desired to start a I. fight between the Constitution and the Act, we should not interpret the Act to start that fight. A. There Is No Balancing Act Between The First As such a fight would be so ultimately one-sided, and Amendment And The NLRA: The Premise Underlying will simply result in the undermining of the Act, we The Majority’s New Standard Is Incorrect should not instigate it unless there is no other possible It is important to start with what the majority decision construction of the Act. The Court in Catholic Bishop, does right: it properly abandons the Board’s prior test indeed, has already given us the answer to this question. for deciding whether to exercise jurisdiction over teach- It determined that, because a possible construction of the ers at non-secular schools. That test, which required a 1432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD case-by-case determination whether an educational insti- And, then and only then, Catholic Bishop would require tution claiming a religious affiliation had a “substantial us to determine that the ensuing infringement of the Re- religious character,” unavoidably resulted in the exact ligion Clauses, both in the form of interfering with free “process of inquiry leading to findings and conclusions” exercise and in the form of entanglement, is constitution- with regard to the internal operations and tenets of reli- ally sustainable. We are commanded, in any situation in giously affiliated educational organizations that has con- which the rights protected by the Act could be interpret- cerned the courts. See Catholic Bishop, 440 U.S. at 502; ed as violating the Constitution, to determine whether Great Falls, 278 F.3d at 1341. In light of that fact, the there is a possible construction of the Act that would Board clearly needed to develop a new methodology for avoid such problems. reviewing these cases. Thus, it is unsurprising that none of the court cases cit- From that point forward, however, the majority em- ed in the majority decision enunciate that the courts are barks on an analysis that, in my view, not only fails to undertaking any sort of balancing or accommodation of adequately appreciate the constitutional issues at play these stated interests, contrary to the majority’s assertion. here but also underplays the courts’ significant concerns Rather, the courts’ focus appears to be ensuring that the with regard to Board entanglement in investigating the Catholic Bishop exemption is applied only to “bona fide methods in which religiously-affiliated educational insti- religious institutions.” Great Falls, 278 F.3d at 1344. tutions carry out their missions. Where bona fide religious institutions are not involved, We can begin with the very first sentence of the major- of course, the concerns raised by Catholic Bishop would ity’s analysis. The majority states that “an examination be completely inapplicable, since there would be no risk of prior Board and court cases demonstrates that the that the Board’s exercise of jurisdiction would implicate Board and the courts have attempted to accommodate constitutional concerns. Thus, their decisions amply two competing interests when deciding whether the show that the courts are not undertaking a balancing test Board may assert jurisdiction over faculty members at here but, rather, are following the constitutional avoid- religiously affiliated colleges and universities.” (Empha- ance prescription set forth in Catholic Bishop to its logi- ses added.) The two competing interests referred to in cal conclusion; i.e., if an institution is not, in fact, a reli- the preceding sentence are described as (1) an avoidance gious institution, there are no constitutional questions to of any impingement on a school’s religious rights, as be avoided.3 well as of “the type of intrusive inquiry forbidden by In any event, to the extent that any balancing is con- Catholic Bishop,” and (2) “Section 7 rights,” i.e., rights ceivably taking place, it is noteworthy that the courts under the Act. have concluded that “it is difficult to find any unusually Because the majority implicitly puts the Act on the strong interest arising out of the Labor Act itself that same footing as the Constitution, I can understand why it calls for jurisdiction” over religiously affiliated colleges comes up with two “competing interests” that it then and universities. See Universidad Central de Bayamon, must “accommodate” in, what is in effect, a balancing 793 F.2d at 403. This is not surprising, as there is almost test. But this implicit assumption is stark error. There is nothing in the text of the Act even recognizing the possi- no balancing test, because no federal statute commands bility of regulating activity connected to religiously- the gravitas of the Constitution. Simply stated, while the Act is of paramount importance in almost every other of Section 7 rights. It is hard to imagine that the majority would find scenario—it is dwarfed by the First Amendment’s pro- that the Act’s near deafening silence on religion (other than one excep- tection of religion. Instead of a balancing act of any tion for religious objectors, see above) could be construed as evincing “clear and unmistakable” intent by Congress to cover the faculty of kind, what Catholic Bishop and the doctrine of constitu- religious institutions. See, e.g., Catholic Health Initiatives, 360 NLRB tional avoidance establish is a warning for us: “make 689 (2014) (where "nothing in parties' agreements . . . addresses the absolutely sure the Act was intended to encompass reli- Union's right to request and obtain presumptively relevant information gious universities, and that the Act mandates your test of about those subjects," then union did not intend to waive bargaining rights). jurisdiction for teachers at those universities” before we 3 The majority's failure to incorporate the doctrine of constitutional impose it on religious universities. As Catholic Bishop avoidance into its analysis is demonstrated, for instance, by its attempt put it, we must find a “clear expression of an affirmative to analogize the Supreme Court's analysis in Hosanna-Tabor Evangeli- intention of Congress that teachers in [religious universi- cal Lutheran Church and School v. EEOC, 132 S.Ct. 694 (2012), with 2 the issues presented here. In Hosanna-Tabor, the Court was not faced ties]” should be covered by the Act. 440 U.S. at 504. with determining whether the Americans with Disabilities Act should be read in a particular manner in order to avoid constitutional questions. 2 This is at least the equivalent of the Board’s “clear and unmistaka- Rather, the Court decided the case by construing the ministerial excep- ble waiver” standard for determining whether there has been a waiver tion at issue as an affirmative defense, not a jurisdictional bar. Id. at 709 fn.4. PACIFIC LUTHERAN UNIVERSITY 1433 based beliefs. As I note in the Introduction, the Congres- —whether the institution holds itself out as providing a sionally-stated purpose of the Act was to eliminate ob- religious educational environment—appropriately en- structions to “commerce” by the means of Section 7 sures that the college or university in question is a bona rights and their exercise in collective bargaining. Teach- fide religious institution such that the Board’s exercise of ing connected with a religious belief system is not com- jurisdiction raises the possibility of violating the reli- monly thought of as commerce.4 See Catholic Bishop, gious clauses of the First Amendment. The majority has 440 U.S. at 504 (finding nothing in explicit text of Act adopted this prong from the D.C. Circuit’s Great Falls evincing clear intent to cover church-operated schools). decision and, for the reasons set forth in that decision and Moreover, as Catholic Bishop noted, the singular refer- as discussed further below, I agree that this is a reasona- ence to religion in the text of the Act as it stands today is ble threshold requirement to apply. a religious exemption allowing persons subscribing to a 1. The “specific role” test requires making the same religious belief to pay charitable contributions instead of “religious function” versus “secular function” distinction union dues, an exemption which came about when the that the constitution and courts have condemned overall jurisdictional exemption for nonprofit hospitals Unfortunately, the standard’s second prong—whether was repealed in 1974 and such hospitals thus fell under the institution holds its faculty members out to the public our jurisdiction.5 I would interpret this “religious objec- “as performing a specific role in creating and maintain- tor” exemption as evidence of congressional intent for ing” its “religious educational environment” —utterly the Act to steer well clear of infringing the Religion fails to avoid the significant constitutional concerns at Clauses. But, in any event, this one bare mention of reli- issue in Catholic Bishop. Indeed, this interpretation of gion is not an “affirmative intention of the Congress the jurisdictional bounds of our statute not only fails to clearly expressed” to take jurisdiction over religious uni- avoid the First Amendment questions, it plows right into versities, as Catholic Bishop would require. 440 U.S. at them at full tilt. As a result, under Catholic Bishop and 506. Accordingly, our analysis should really stop there the doctrine of constitutional avoidance, requiring a reli- with a finding of no jurisdiction. However, the majority gious institution to meet the burden of establishing this continues on, necessitating a discussion of all the prob- second prong of the test is improper. lems with the majority’s new test, most of which derive The Court has consistently frowned upon governmen- from this flawed foundation. tal inquiry into an institution’s religious identity, espe- B. The Majority’s New Standard Is Just As Guilty Of cially when the inquiry attempts to distinguish between Trolling Through Religious Beliefs As The Prior Stand- the “religious” and “secular.” Mitchell v. Helms, 530 ard Was U.S. 793, 828 (2000) (“inquiry into the recipient’s reli- I move on to faults with the specifics of the majority’s gious views required by a focus on whether a school is new test. I agree that the first prong of the new standard pervasively sectarian is not only unnecessary, but offen- sive”); Hernandez v. Commissioner of Internal Revenue, 4 The majority analogizes to other kinds of religiously-affiliated in- 490 U.S. 680, 694 (1989) (noting, in connection with a stitutions in justifying its jurisdictional approach, but as Catholic Bish- proposal requiring courts to distinguish between “reli- op and its progeny emphasize, schools involve special considerations. gious” and “secular” benefits and services, “that ‘perva- Even the outdated “substantial religious character” precedent cited by the majority recognizes this. See NLRB v. St. Louis Christian Home, sive monitoring’ for ‘the subtle or overt presence of reli- 663 F.2d 60, 64, 65 (8th Cir. 1981) (holding that “inquiry into the oper- gious matter’ is a central danger against which we have ation of the Home should not intrude on any activity substantially reli- held the Establishment Clause guards”); New York v. gious in character,” while noting “the actual business of the Home and Cathedral Academy, 434 U.S. 125, 133 (1977) (Litiga- its employees does not involve a religious enterprise comparable to a church-operated school”) (emphases added). tion between church and state “about what does or does 5 The exemption reads: "Any employee of a health care institution not have religious meaning touches the very core of the who is a member of and adheres to established and traditional tenets or constitutional guarantee against religious establish- teachings of a bona fide religion, body, or sect which has historically ment.”). Most recently, in Town of Greece, New York v. held conscientious objections to joining or financially supporting labor organizations shall not be required to join or financially support any Galloway, 134 S.Ct. 1811 (2014), the Supreme Court labor organization as a condition of employment; except that such upheld the constitutionality of prayer at the Town of employee may be required, in lieu of periodic dues and initiation fees, Greece’s monthly board meetings. In doing so, the Court to pay sums equal to such dues and initiation fees to a nonreligious rejected the view that only nonsectarian prayer should be charitable fund exempt from taxation under section 501(c)(3) of title 26, chosen by such employee from a list of at least three such funds, permissible, noting that the very act of sifting the “sec- designated in a contract between such institution and a labor organiza- tarian” from “nonsectarian” would be futile and unconsti- tion, or if the contract fails to designate such funds, then to any such tutionally entangle courts with religion. Id. at 1820. fund chosen by the employee." 29 U.S.C. § 169. 1434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

The prohibition on inquiries into religious beliefs also religiously affiliated schools are “indistinguishable from animated the Supreme Court’s decision in Corp. of the secular teachers” gives away the game that the majority’s Presiding Bishop v. Amos, 483 U.S. 327 (1987), uphold- test simply evaluates the “religiousness” of what PLU’s ing a religious exemption in Title VII as applied to the faculty do, or are held out as doing. This kind of line- firing of a janitor by a church-owned gymnasium. In that drawing has been repeatedly considered — and rejected case, the Court addressed the significant burden placed — by the courts.7 See, e.g., Bayamon, 793 F.2d at 398 on religions of applying a “secular versus religious activ- (answering in the affirmative the question “whether ity” test, stating: Catholic Bishop applies to a church-operated college--a college that seeks primarily to provide its students with a [I]t is a significant burden on a religious organization to secular education, but which also maintains a subsidiary require it, on pain of substantial liability to predict religious mission”). which of its activities a secular court will consider reli- The majority also errs fundamentally here by assuming gious. The line is hardly a bright one, and an organiza- a false dichotomy between “religious” and “secular” in- tion might understandably be concerned that a judge struction, for lack of better phraseology. The majority would not understand its religious tenets and sense of seemingly finds that if a belief is held widely by society mission. Fear of potential liability might affect the way at large as essentially a secular principle—the majority an organization carried out what it understood to be its uses the examples of “academic freedom” and “diversi- religious mission. (footnote omitted) ty” several times in its opinion—then, ipso facto, that principle cannot be part of a religious doctrine. Ergo, the Id. at 336. In other words, the very test proposed by the majority holds that such a secular principle cannot be majority imposes a significant burden, because it subjects part of a religious university’s religious mission and thus the religious organization to ongoing scrutiny of its beliefs. should not count at all to prove up a faculty’s “specific Requiring a university’s public expressions to demonstrate role in creating or maintaining” a religious educational performance of a “specific religious function” by the faculty environment, under the majority’s new test. But that is will likely consequently warp the expression of the universi- simply wrong. ty’s religious mission itself. The Supreme Court long ago in Many religions have a good deal of parallelism with Amos, above, recognized this type of pernicious “observer widely accepted secular principles for living a moral, effect” resulting from the imposition of a “secular vs. reli- just, and productive life.8 The phenomenon of parallel- gious activity” distinction upon the practices of religious institutions. The Board should recognize this also, and 7 The majority’s reliance on Hosanna-Tabor Evangelical Lutheran avoid creating a test that will act as a harmful mutagen to a Church & Sch. v. EEOC, 132 S.Ct. 694 (2012), for the proposition that religious university’s expressions of its own religion. its holding out factor inquiry into the teacher’s function is permitted, is Therefore, the majority should not attempt to differentiate misplaced. That case concerned the application of Title VII’s ministe- activities—or the publicly-held-out versions of those activi- rial exception, which necessarily involved determining whether the plaintiff had a proselytization function. Unlike the person in Hosanna– ties—as “secular” or “religious.” Tabor, we do not have to test PLU’s faculty members for a proselytiza- The majority’s test impermissibly requires the Board tion function. Indeed, as I explain in section B.3. below, Hosanna- to do just that—to judge the religiosity of the functions Tabor exposes another weakness of the majority’s test, arising where that the faculty perform. Here, the majority’s test holds the religion itself does not accept non-ecclesiastical sources of dispute resolution for disputes among its members. that the Board will exercise its jurisdiction over faculty 8 One can accept and understand the phenomenon of symmetry be- members, unless they are held out as “performing a spe- tween religions and secular principles of good conduct, with or without cific religious function.” Thus, in practice, the test will crediting the claims of any religion. There are many possible explana- require the very type of inquiry into religious beliefs that tions for this parallelism, for example: have led the courts to conclude that such jurisdiction x the carrying out by believers of God’s received wisdom inevitably raises the risk of impinging on First Amend- will, of course, result in morality, justice, and happiness, because the religion is the truth; or ment rights. It amounts to an analysis of what is “reli- x secular society’s own codes originated mostly from religious” as opposed to what is “secular,” thereby placing gious beliefs, so, of course, substantial parallelism be- the Board in the untenable position of deciding what can, tween the two will exist; or and what cannot, be deemed a sufficiently religious role x religions that do not encourage living a moral, just, and 6 or a sufficiently religious function. Tellingly, the ma- productive life will disappear over time because, of jority’s associated conclusion that faculty members at course, their followers will be disadvantaged and dwindle, as opposed to religions that do. (For example, there are few modern followers of the ancient Phoenician and Car- 6 As a corollary, my own inclusion, omission, or description of ex- thaginian god Baal, who reputedly required sacrifice of amples of religious beliefs herein is not intended to offend any reader. one’s children.) PACIFIC LUTHERAN UNIVERSITY 1435 ism, however it might have come about, is inescapable The majority disagrees, but effectively concedes the and readily observed. Take, for example, the Ten Com- point. The majority acknowledges that “norms shared by mandments. People who follow the Ten Commandments both [the] religion and by wider society” will never count are going to be considered by secular society as leading a to show that the faculty have a “specific religious role” more moral, just, and productive life than those who do under the new test. Thus, one sees that the majority is exactly the opposite. Indeed, those who do exactly the really translating “specific religious role” here to mean opposite will end up on the wrong end of the civil and “uniquely religious role.” This highlights the entangle- criminal justice system in the United States. But that ment problem that will be posed by measuring the “reli- does not transform, for example, “thou shalt not kill” gious uniqueness” of a belief. Moreover, to reiterate, from a religious to solely a secular belief unworthy of counting a belief as “religious” only if it is unique to a First Amendment consideration when the government religion’s believers will disqualify most religious tenets decides whether or not to exert control over the believer. from our consideration, in violation of free exercise. Contrary to the majority, “diversity” is a belief that can 2. The evidence that the majority references in deter- indeed be wholeheartedly consonant with and part of a 9 mining the existence of a “specific role in creating or religious belief system; so is “academic freedom.” The maintaining” a “religious mission” simply shows that the majority’s dismissal of the fact of religious and secular majority is applying its own subjective notions of parallelism in its test is a major mistake, “disqualifying” “religiousness” what could be large parts of a university’s religious mis- The second prong of the majority’s test also raises the sion from consideration for jurisdictional purposes. In inescapable question: what precisely is required to estab- the context of this case, as I discuss in section I.D. be- lish that faculty members are held out as serving a reli- low, it translates into a dismissive attitude toward PLU’s gious function, so that there is no risk of constitutional own arguments about its religious mission. conflict should the Board exercise jurisdiction? Im- portantly, the majority fails to squarely answer this ques- Being a mere Board member, I have no special place in determining which, if any, of these explanations is correct. But there can be many tion. However, the majority’s limited effort at clarifying reasons why parallelism exists between religions and what we regard as this vague standard of “specific religious function” re- “correct” principles of secular society. veals why the standard must fail under Catholic Bishop. 9 I will discuss “freedom of thought” a/k/a academic freedom as a re- The majority’s attempt, in this regard, is as follows: ligious perspective specifically within Lutheranism in section I.D. below, but here are three obvious examples of “diversity” as part of If the evidence shows that faculty members are re- religious doctrine. First, the concept of interdenominational tolerance is expressed today in many Christian churches through the idea of quired to serve a religious function, such as integrating ecumenism. Second, Unitarian Universalism, is open to any religious the institution’s religious teachings into coursework, or non-religious tradition: “In Unitarian Universalism, you can bring serving as religious advisors to students, propagating your whole self: your full identity, your questioning mind, your expan- religious tenets, or engaging in religious indoctrination sive heart. We are creating a force more powerful than one person or one religion. By welcoming people who identify with Atheism and or religious training, we will decline jurisdiction. Like- Agnosticism, Buddhism, Christianity, Humanism, Judaism, Earth- wise, if the college or university holds itself out as re- Centered Traditions, Hinduism, Islam, and more, we are embodying a quiring its faculty to conform to its religious doctrine or vision ‘beyond belief:’ a vision of peace, love, and understanding. We to particular religious tenets or beliefs in a manner that are building an action-oriented community, bridging races, religions, and creeds with a shared desire to make faith, religion, and spirituality is specifically linked to their duties as a faculty mem- verbs.” See http://www.uua.org/beliefs/welcome/index.shtml (last ber, we will decline jurisdiction. visited Nov. 22, 2014). Third, Islamic religious doctrine recognizes a long tradition of coexistence with other religions, even in Muslim- [Emphases added.] Therefore, to pass muster under the dominated nations. E.g., Bernard Lewis and Buntzie Ellis Churchill, majority’s test, it appears that it must be established that “Diversity and Tolerance in Islam,” Islam: The Religion and the People (FT Press, 2008) at 57–58 (“In the Ottoman Empire, until the 19th faculty engage in some type of religious indoctrination or century reforms, dhimmi communities, Jews and Christians of various proselytization, teach religion in a particular manner, be- churches, formed their own communities, under their own heads and lieve in the religion, engage in religious training, be in- subject to their own laws, administered by their own courts, in such structed to conform their behavior to what the religion re- matters as marriage and divorce, inheritance, and much else. This autonomy included education, jurisdiction of their own courts in civil quires, and perhaps insist on the institution’s use of specific matters and, even in some criminal matters, of a religious nature. Thus, words or phrases within its documents. This appears to be a Christian could be tried and punished by a Christian court for bigamy, the key and, indeed, the only touchstone of “religiousness” or a Jew by a Rabbinic court on a charge of violating the Sabbath, though these were in no sense offenses against the generally accepted laws of the state and of the society.”). 1436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD for the majority.10 The majority apparently believes that automatically creates an entanglement where the religion only proselytization, orthodoxy, and exclusion— at issue, like Lutheranism here, itself proscribes use of culminating in straightforward, unvarnished attempts to non-ecclesiastical authorities to resolve disputes among inculcate faculty and students with a unitary religious creed believers — count to show that faculty have a religious function. Even assuming that the majority’s formulation did not This is an oversimplified imagining —if not an outright require the Board to undertake a constitutionally prob- caricature—of all that a religion is and how a religion’s lematic inquiry into a religious institution’s manner of conception of its earthly mission may translate into a uni- effectuating its mission, however, the majority’s new versity environment, as I demonstrate with the specific ex- standard would nevertheless fail to avoid the significant ample of Lutheranism in section I.D., below. constitutional concerns raised in Catholic Bishop. The Here, looking to the majority opinion, it appears that “state/religion entanglement” problems at the heart of the the majority unfortunately relies on several of these indi- Supreme Court’s decision remain, regardless of whether cators to conclude that PLU does not hold out its faculty or not a particular teacher is held out as playing a specific as serving a religious function. To begin with, the se- role vis-a-vis the school’s religious mission. In other cond prong of the majority’s test assumes that religions words, many of the questions typically arising in cases typically ab initio would classify occupations (like facul- under the Act will thrust the Board into the prohibited ty) into “specific roles advancing or maintaining the reli- role of arbiting issues of religious doctrine. For example, gion,” which is simply not the way most religions work. as noted in Universidad Central de Bayamon,“the Cath- Although some religions that focus on active proselytiza- olic Bishop Court feared that a teacher’s filing of an un- tion might assign particular religious-specific advocacy fair labor practice charge might well force the Board to tasks to certain occupations, it is certainly not typical for decide the ‘good faith of the position asserted by the churches, let alone church-operated schools and universi- clergy-administrators and its relationship to the school’s ties, to do so. Most religions do not create specific “reli- religious mission.’” Id. at 401 (quoting Catholic Bishop, gious job descriptions” for each occupation, assigning 440 U.S. at 502). As the Second Circuit recognized in each type of professional or worker some task in advanc- NLRB v. Bishop Ford Central Catholic High School, ing the religion. Not every schoolteacher who is Catho- however, the Board’s possible entanglement in doctrinal lic, for example, is somehow assigned by Catholicism the matters with regard to investigating an unfair labor prac- duty to exist in society teaching straight Catholic doc- tice is “real and not theoretical” and does not necessarily trine. turn on the teacher’s specific role in furthering the More importantly, a religion’s own internal definition school’s religious mission. In that case, the court quoted of what it means to “serve a specific religious function” the Seventh Circuit’s decision in Catholic Bishop as fol- often will not conform to the majority’s stereotype of lows: what a religious function should be. By requiring the secular Board to evaluate, and pass judgment on, whether We are unable to see how the Board can avoid becom- the faculty is being held out as serving a sufficiently spe- ing entangled in doctrinal matters if, for example, an cific and sufficiently religious function, the majority has unfair labor practice charge followed the dismissal of a essentially repackaged the rejected “substantial religious teacher either for teaching a doctrine that has current character” test, which the majority ostensibly agrees in- favor with the public at large but is totally at odds with trudes on religious freedom. Under the Supreme Court’s the tenets of the Roman Catholic faith, or for adopting a holding in Catholic Bishop, the majority’s test, because it lifestyle acceptable to some, but contrary to Catholic inherently requires the Board to investigate and make moral teachings. The Board in processing an unfair la- findings with regard to the sufficiency of the religious bor practice charge would necessarily have to concern function proffered, raises a significant risk of excessive itself with whether the real cause for discharge was that entanglement on the part of the Board into a religiously stated or whether this was merely a pretextual reason affiliated university’s religious beliefs, motives, and mis- given to cover a discharge actually directed at union ac- sion. As a result, this test cannot pass muster. tivity. The scope of this examination would necessarily 3. The majority’s test will inevitably entangle the Board include the validity as a part of church doctrine of the in making religious distinctions and determinations in reason given for the discharge. general, and the Board’s assertion of jurisdiction itself Bishop Ford, 623 F.2d at 822 (quoting NLRB v. Catholic Bishop of Chicago, 559 F.2d 1112 (7th Cir. 1977)). It is 10 The majority asserts that there are other examples outside this difficult to see how the Court’s reasoning—that an inquiry framework, but provides none. by the Board into the school’s reasons for terminating a PACIFIC LUTHERAN UNIVERSITY 1437 teacher based on her lifestyle presents a significant risk of that the Lutheran Church attaches to the doctrine of in- excessive entanglement—can be squared with the majori- ternal dispute resolution and the degree to which that ty’s conclusion that, unless the faculty is held out as per- tenet compromised respondent’s religious function. If it forming a “specific religious function,” there is no possible could be shown that this belief is an obscure and minor risk of excessive entanglement.11 part of Lutheran doctrine, it would be much more plau- The majority’s conclusion that its test poses no risk of sible for respondent to argue that this doctrine was not excessive entanglement is indeed dumbfounding when it the real reason for her firing. If, on the other hand, the comes to religions that believe fundamentally that there doctrine is a central and universally known tenet of Lu- is no role for a civil institution like the Board in solving theranism, then the church’s asserted reason for her their disputes. Obviously, the Board inserting itself into discharge would seem much more likely to be nonpre- a religious educational institution of this nature to certify textual. But whatever the truth of the matter might be, bargaining representatives and then lodge and adjudicate the mere adjudication of such questions would pose unfair labor practice complaints against the institution— grave problems for religious autonomy: It would re- with remedies that include back pay, reinstatement, bar- quire calling witnesses to testify about the importance gaining costs, and attorneys’ fees12—is one of the most and priority of the religious doctrine in question, with a excessive levels of entanglement imaginable. This is not civil fact finder sitting in ultimate judgment of what the an academic concern, as the Supreme Court opined on accused church really believes, and how important that just such a situation in Hosanna-Tabor. belief is to the church’s overall mission. What religion was involved in Hosanna-Tabor that considered it a violation of religious doctrine for believ- [note quoted in full:] See The Lutheran Church- ers to turn to the civil court system for redress? Why, it Missouri Synod, Commission on Theology and Church was Lutheranism, and Justices Kagan and Alito noted Relations, 1 Corinthians 6:1-11: An Exegetical Study, that this particular belief could be characterized as a cen- p. 10 (Apr. 1991) (stating that instead of suing each tral part of Lutheran doctrine: other, Christians should seek “an amicable settlement of differences by means of a decision by fellow Chris- Hosanna-Tabor discharged respondent because she tians”). See also 1 Corinthians 6:1-7 (“If any of you has threatened to file suit against the church in a civil court. a dispute with another, dare he take it before the ungod- This threat contravened the Lutheran doctrine that dis- ly for judgment instead of before the saints?”). putes among Christians should be resolved internally without resort to the civil court system and all the legal 132 S.Ct. at 712–713 (Justices Alito and Kagan, concurring; wrangling it entails. [note omitted and set forth in full most italics added for emphasis). I cannot think of a better below] In Hosanna-Tabor’s view, respondent’s disre- passage than this to illustrate the inevitable clash with reli- gard for this doctrine compromised her religious func- gious freedom—and the pernicious effects on same—if we tion, disqualifying her from serving effectively as a take jurisdiction over a Lutheran university. Whether Lu- voice for the church’s faith. Respondent does not dis- theran doctrine considers me as a Board member too “un- pute that the Lutheran Church subscribes to a doctrine godly” to judge disputes among Lutherans (which is fine, I of internal dispute resolution, but she argues that this don’t take it personally), and thus whether the very act of was a mere pretext for her firing, which was really the Board adjudicating unfair labor practices is a violation done for nonreligious reasons. of Lutherans’ free exercise, is just the most basic example of the acute entanglement that would occur. Another example In order to probe the real reason for respondent’s fir- is the Bishop Ford scenario, also alluded to in Hosanna- ing, a civil court—and perhaps a jury— would be re- Tabor: whether a “legitimate business reason” for an em- quired to make a judgment about church doctrine. The ployee termination under the Wright Line doctrine is truly credibility of Hosanna-Tabor’s asserted reason for ter- part of PLU’s religious beliefs. It is not hard to imagine minating respondent’s employment could not be as- many others. As Justices Alito and Kagan describe, entan- sessed without taking into account both the importance glement is inevitable. There is no way the Board can avoid this problem, unless it (1) requires the petitioning union to 11 Of course, this line of reasoning supports the position, suggested have no Lutheran members in its PLU bargaining unit and by some amici, that the Board's exercise of jurisdiction over any em- (2) refuses to assume jurisdiction over unfair labor practice ployees of a bona fide religious organization raises the significant risk charges brought by PLU employees who happen to be Lu- of Constitutional concerns. See, e.g., Amicus Brief of General Confer- ence of Seventh-Day Adventists, et al., at p. 2 fn.2. That issue is not presented here, however, so I decline to reach it. 12 Pacific Beach Hotel, 361 NLRB 709 (2014). 1438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD therans, actions that would likely be impermissible as charitable purposes, and is used by other Federal agen- well.13 cies, such as the IRS, to make a similar determination. Because I have no reason to imagine that any of the Although I agree that nonprofit status is a straight- Supreme Court justices have changed their views since forward and objective assessment method, I find that it is Hosanna-Tabor on what Lutheran doctrine potentially not a necessary element in deciding whether the Board entails, the Supreme Court has all but decided this case. could assert jurisdiction over a school that claims reli- I would urge the majority to relent on this basis alone.14 gious ties. Therefore, in agreement with the majority, I For all the reasons set forth above, the majority’s test would consider nonprofit or for-profit status as relevant fails to avoid the constitutional pitfalls identified by the in the evaluation of the first prong—how the institution Supreme Court in Catholic Bishop and emphasized in holds itself out. In contrast, I find that the third prong of subsequent court decisions. the Great Falls test is a necessary separate factor for consideration. The description of affiliation and reli- C. The Great Falls Test is the Appropriate Standard to gious organization is necessarily quite broad in scope and Apply simply ensures that only bona fide religious institutions I conclude that, in place of the majority’s test, the invoke an exemption from the Board’s jurisdiction. Board should apply a test closely analogous to that for- Applying the Great Falls factors, I find that PLU mulated by the D.C. Circuit in University of Great Falls should be exempt from the Board’s jurisdiction. It is v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002), vacating 331 undisputed that PLU holds itself out to its students, facul- NLRB 1663 (2000). Under the bright-line Great Falls ty, and community as providing a religious educational test, an institution is exempt from the Board’s jurisdic- environment. PLU is organized as a not-for-profit organ- tion if it (a) holds itself out to students, faculty and com- ization for education purposes, is granted Federal tax munity as providing a religious educational environment; exemption as such, and is one of 26 colleges and univer- (b) is organized as a nonprofit; and (c) is affiliated with, sities affiliated with the Evangelical Lutheran Church in or owned, operated, or controlled, directly or indirectly, America. by a recognized religious organization, or with an entity, D. Even Under New Majority Standard, the Exercise of membership of which is determined, at least in part, with Board Jurisdiction is Not Appropriate Here reference to religion. This test properly leaves matters of religious identity in the hands of the institutions, their Even applying the majority’s new test, I find that the affiliated churches, and the relevant religious communi- Board should not assert jurisdiction over PLU’s faculty. ty, and requires examination of objective evidence of an As found and properly analyzed by the majority, it is institutions own statements. Most importantly, it allows indisputable that PLU holds itself out to students, faculty, the Board to identify bona fide religious institutions and the community as providing a religious educational without engaging in the type of intrusive inquiries Catho- environment. Contrary to the majority’s opinion, PLU lic Bishop and numerous other Supreme Court cases ex- has also broadly held out its faculty as performing a reli- pressly forbid. gious function as described on the face of its public doc- As fully addressed in Great Falls, and in part by the uments. Therefore, I conclude that we should not assert majority, the first prong of the test—whether the institu- jurisdiction. tion holds itself out as providing a religious educational Numerous public documents distributed by PLU reveal environment—is helpful as a proxy for sincerity because that its faculty are held out as performing an important religious identification will attract some potential stu- role in creating and maintaining PLU’s unquestionable dents but repel others, and will avoid constitutionally religious educational environment. PLU tells us that the problematic inquiries. The second prong—whether the Lutheran faith and heritage are central to PLU, and that institution is a nonprofit—is easy to determine, helpful in three core values of the Lutheran faith underpin PLU’s ensuring that the institution is organized for religious mission, values and what it does as an educational institution. The three cornerstones are vocation, the dialectic 13 Obviously, bestowing selective immunity to PLU from only Lu- between the right hand (religious matters) and left hand therans’ (and unions with Lutherans’) claims would constitute religious (secular matters), and academic freedom. Significantly, discrimination, if not a constitutional violation, against Lutheran em- these public documents reveal that PLU’s petitioned-for ployees themselves. 14 faculty has an essential role in upholding these Lutheran The majority’s “solution” of requiring publicity of the belief is in- 15 adequate. Forcing a religious university to engage in a dispute resolu- principles. tion process that potentially violates its beliefs is both an entanglement and free exercise issue regardless of whether or not it widely publicized 15 As seen herein, my application of the majority's test in order to de- those beliefs to faculty before a particular dispute occurred. termine whether the Board can exert its jurisdiction over PLU's faculty PACIFIC LUTHERAN UNIVERSITY 1439

A review of PLU’s documents reveals that the notion thought was a core issue of dispute that caused Lutheran- of vocation focuses on the sense of having a purpose in ism to come into being in the first place, as recounted by life. First, the Lutheran vocation is a calling to become PLU. I will answer how in the following simplified the best at a particular field or endeavor in order to use summary. said vocation to serve others and thereby to serve God. Martin Luther’s original problem was with the selling That concept is therefore a religious belief that is part of of indulgences by the Catholic church of the time, with Lutheran doctrine. Importantly, the belief in connecting the promise that indulgences themselves would expiate the pursuit of excellence to the divine has been a reli- sin. Luther believed that this idea was heresy, as a mat- gious concept long before Lutheranism, or the Act, exist- ter of biblical text and doctrine. In 1516, when the Pope ed.16 sent Dominican friar and papal commissioner Johann Second, a review of these documents reveals a reli- Tetzel to Germany to offer indulgences for the giving of gious belief in the power of a dialectic. The Lutheran alms to rebuild St. Peter’s Basilica in Rome, Luther felt dialectic seeks to understand religious matters in the con- compelled to write the 95 Theses. Under a long history text of secular pursuits and vice-versa through thoughtful of Catholic tradition, however, the Pope was essentially questioning. Both religious and secular realms are con- considered to be infallible on matters of Christian reli- sidered to be God’s creations (described as “the right gious interpretation. So, Luther, in opposing indulgenc- hand” and “the left hand”) and must interact with and aid es, eventually had to contest the deep-rooted tradition of one another to achieve truth. Although juxtaposition papal infallibility as well. Accordingly, he gradually between religious and secular may not immediately refined the idea that each person needed to come to their spring to mind as a religious doctrine, the Lutherans sin- own conclusions about what the Bible meant, rather than cerely believe it aids in the understanding of each realm relying on a decree from a central authority. Ergo, the toward the other. Conceptually, this is not too dissimilar Lutherans have a strong commitment to freedom of in- from a school taking an interdisciplinary approach to quiry i.e. academic freedom; as demonstrated, this con- teaching, presenting students with perspectives from var- cept inheres to the genesis of Lutheranism itself. Lu- ious fields of study on the same topic; this form of teach- ther’s idea of free inquiry was radical at the time, and ing is not uncommon. Regardless, the Lutheran belief in indeed, his challenge to papal authority resulted in his the dialectic is a religious belief, and PLU is set up and excommunication from the Catholic world within a few managed precisely that way so that its students can enjoy years after he wrote the 95 Theses, his first public ex- the supposed benefit of the dialectic. pression of problems with the indulgence issue.17 Finally, PLU’s documents show that academic free- As PLU’s evidence describes, these cornerstones of dom has been a fundamental principle of the Lutheran Lutheranism were initiated by Martin Luther and have faith since its inception and remains an essential compo- been present since the Reformation, as Luther gradually nent of PLU’s identity. At this point, the reader may broke from the Catholic Church, the sole Christian exclaim “how can academic freedom possibly be a reli- church at the time. From the onset, Luther consequently gious belief?” But, bear me out, because freedom of urged the nation to reform education for the sake of service, with a commitment to the advancement of members, without implicating the protections of the First Amendment, knowledge, thoughtful inquiry, and preparation of citi- necessitates an inquiry into the basic tenets of Lutheranism, in the first zens in service to the world. These three principles are place, and the faculty's communicated role in furthering these tenets, in repeatedly discussed and referred to in PLU’s publica- the second place. Again, I emphasize that this fact-based inquiry into the religious beliefs of Lutherans,as well as the ways in which PLU tions, including the Faculty Handbook, Course Catalog, represents that it uses its faculty members to further its religious mis- and PLU’s strategic plan, used with donors, alumni, and sion, is not permissible under Catholic Bishop. the public. A summary of PLU, entitled, “A Lutheran 16 For example, nearly 2,000 years before Lutheranism, the pagan University,” which was later updated and titled, “Core Greek goddess Areté represented the same ideals of excellence, and the divine command to strive for excellence, regardless of the difficulty of Elements in Lutheran Higher Education,” is used during the struggle. See, e.g., http://www.theoi.com/Daimon/Arete.html (pre- incoming faculty orientations and also for other members senting Xenophon’s account of Areté’s oration to Hercules on the of the campus community. The summary provides a meaning of life: “For of all things good and fair, the gods give nothing history of Lutheranism, explains the main elements of to man without toil and effort. If you want the favour of the gods, you must worship the gods: if you desire the love of friends, you must do the religion, including the three aforementioned, and good to your friends: if you covet honour from a city, you must aid that city: if you are fain to win the admiration of all Hellas for virtue, you 17 The History Channel, Martin Luther and the 95 Theses, must strive to do good to Hellas . . . and if you want your body to be http://www.history.com/topics/martin-luther-and-the-95-theses (last strong, you must accustom your body to be the servant of your mind, visited Nov. 24, 2014); see also Hillerbrand, Hans J., "Martin Luther: and train it with toil and sweat.”) (last visited Nov. 22, 2014). Indulgences and salvation," Encyclopædia Britannica, 2007. 1440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD connects these principles to the mission and work of of how a religion should express itself in a university PLU. The Faculty Constitution and Bylaws provides that environment, the majority finds that the faculty are, ipso each faculty member “ . . . becomes a member of a com- facto, not held out as performing a specific religious munity of scholars who respect and uphold the principles function. of Lutheran Higher Education with certain rights and In contrast, PLU tells us that it fulfills its Lutheran obligations. Preeminent among these is the obligation to mission precisely by avoiding a narrow focus on reli- uphold the objectives of the university and the right of gious indoctrination and orthodoxy. Vocation is a part of academic freedom . . . .” These Lutheran concepts are Lutheranism, and the school states in multiple ways that also expressed to current and prospective students and it strives for excellence in serving others so that ultimate parents in several ways, including mailings, speeches, service to God results. PLU opens its doors to non- ceremonies, and through PLU’s website. One page of Lutheran students and faculty, precisely because of its the website, specifically addressed as information for religious commitment to academic freedom. And Lu- parents, states, “PLU faculty and staff encourage stu- theranism assigns to faculty teaching secular subjects at dents to find their passion in life, and they help students PLU the specific role of being the secular representatives put that passion to good use—for themselves, their in a dialogue with the religious teachers in the school, in communities, and the world. We call this process the service of the dialogue which is part of Lutheranism’s pursuit of one’s vocation. It’s very much connected to core belief in finding the greater truth of life—part of PLU’s Lutheran heritage and broad educational philoso- Lutheranism’s self-defined religious environment. phy.” (Emphasis added.) The majority willfully ignores all that to declare that In sum, the evidence establishes that the work, mis- the concentration on vocation, the freedom of inquiry, sion, values and community of PLU flow from its Lu- and the work performed by faculty members teaching theran faith and heritage. PLU publicly explains its Lu- secular subjects is no different than what teachers at sec- theran values and tradition in Lutheran terms.18 The ular schools do, and thus is not nearly religious enough. mission statement is written in profoundly Lutheran lan- But, as described above in section B.1., the majority can- guage with specific meaning, incorporating specific not rely on a false dichotomy to discount evidence of a teachings of the Lutheran faith, incorporating the basic religious purpose simply because there might be a paral- tenets of the religion—vocation, dialectic and academic lel principle in a secular educational environment. Thus, freedom. Furthermore, PLU clearly holds out its faculty in regard to vocation, this is a Lutheran religious concept to be an important part of achieving its mission and (and no one disputes otherwise), regardless of whether or promoting the values of the faith practice. Here, PLU not people in secular society would consider it a given teachers educate students for a wide range of careers and that a university would teach students “to be the best they professional callings, and are not disciplined for advocat- can be.” Again, the majority’s failure to recognize the ing ideas contrary to Lutheran beliefs. religiosity of the Lutheran concept of vocation is an out- The failings of the majority’s new test are made mani- growth of its general failure to understand that parallel- fest by the majority’s dismissive treatment of the actual ism that occurs between religious and secular beliefs and record here. The majority’s analysis is too narrowly fo- does not diminish the religiosity of those religious be- cused on evidence of documented commitment of the liefs. faculty to indoctrination, orthodoxy, and exclusion. As a Similarly, the fact that academic freedom is also a result, the majority appears to require that, to meet its principle at wholly secular universities does not detract burden, there must be evidence establishing that the uni- from its indisputable religious significance for Lutherans. versity’s mission centers on blatant religious indoctrina- Here, requiring faculty to be Lutheran or conform to Lu- tion or proselytization , that the institution fails to grant theran values, or to teach a religious curriculum, would religious freedom or freedom of inquiry, and that the be inconsistent with Lutheran teachings, since they be- institution denies nonbelievers from participating on lieve that education should be open to all faiths and all campus as students and faculty members. Because PLU, disciplines are part of God’s calling, That PLU’s reli- in its literature, does not correspond to this crabbed view gious commitment to academic freedom may also happen to square with secular society’s current beliefs on 18 PLU’s mission is “to educate students for lives of thoughtful in- effective teaching is absolutely irrelevant and an inap- quiry, service, leadership, and care for other persons, for their commu- propriate analysis. Finally, the Lutheran juxtaposition in nities and for the earth.” That PLU’s mission statement does not men- dialogue between teachers of the overtly religious and tion God, religion, or Lutheranism does not make it any less Lutheran, given the three concepts described above, all of which are extensively the ostensibly secular may be a religious concept unique mentioned in materials held out to faculty and the general public. to Lutheranism, but it is easily understandable as a reli- PACIFIC LUTHERAN UNIVERSITY 1441 gious concept if one understands Lutheranism on its own rial employees and therefore excluded from the Act’s terms—which is the point. Lutheranism appears to be an protection. However, because the majority not only “interdisciplinary religion” in the sense that Lutherans reaches this issue but formulates a new test for determin- apparently believe that interaction with the secular world ing the managerial status of faculty members, it is neces- apparently enhances the understanding of religion (and sary that I express my significant concerns about both the even may cause some to reconsider whether the “secular majority’s formulation of this new standard and its meth- world” is really all that secular). It is not for me or the od for applying the new standard. majority to state whether that makes any sense; it is un- A. Primary vs. Secondary Areas of University deniably part of the religious mission of a Lutheran Decision Making school, and the majority should credit it as such. In their decision, my colleagues effectively detail the In short, PLU clearly holds itself out as providing a re- Supreme Court’s decision in NLRB v. Yeshiva Universi- ligious educational environment and holds its faculty ty, 444 U.S. 672 (1980), and how, in the intervening 30- members out as performing a specific role in creating and plus years, the Board has attempted, somewhat unsuc- maintaining PLU’s religious environment. Even the ma- cessfully, to effectuate the Yeshiva holding. As the majority concedes that faculty are required under the Facul- jority recognizes, the test developed by the Board over ty Constitution to “uphold the principles of Lutheran the years, which requires the examination of faculty par- Higher Education” and “to uphold the objectives of the ticipation in decision-making across virtually all areas in university and the right of academic freedom,” which which faculty members could have input, has resulted in includes all the religious aspects I have described above. “innumerable permutations” of analysis and, as a result, But the majority does not find these requirements to be has not proven productive. Particularly problematic, es- “specifically” religious enough. Id. With due respect to pecially to reviewing courts, has been the Board’s failure my colleagues in evaluating PLU’s evidence, I suggest to specifically address the relative significance and that the Lutherans might know a little bit more about weight to be afforded to the various factors considered. “specific” Lutheran precepts of education than we do.19 See, e.g., Point Park University v. NLRB, 457 F.3d 42, Accordingly, I respectfully disagree with my colleagues 50 (D.C. Cir. 2006); LeMoyne-Owen College v. NLRB, and find that, even applying their new test, the Board’s 357 F.3d 55, 61 (D.C. Cir. 2004). exercise of jurisdiction over the petitioned-for faculty The first part of the new majority test, in my view, rep- members is precluded. At the end of the day, my col- resents an admirable effort in addressing the problems leagues’ formulation and application of their new test that the Board has faced in attempting to apply the Yeshi- proves only one thing: If a secular government agency va holding, including providing guidance with regard to (1) mistakenly puts its own statute on the same footing as the relative weight to be afforded different factors. For the Religion Clauses of the First Amendment, (2) fails to the most part, I believe that the factors set forth will pro- understand that it cannot evaluate the religiosity of a be- vide effective guidance, both for the Board as well as for lief, (3) fails to understand that the existence of a parallel interested parties, in considering and resolving the issue secular justification does not cancel out the religiosity of of managerial status for faculty members. a religious belief, and (4) ultimately doesn’t understand Having said that, I do have a concern that, if applied how religions work in an university-educational envi- too inflexibly, the new division of areas of decision- ronment, that agency will find that its statute almost al- making into “primary” and “secondary importance could ways gives itself jurisdiction over faculty at religious fail to give adequate weight to certain instances in which institutions, with the effective power to ultimately regu- faculty members are effectively making decisions in are- late their instructional practices. But four wrongs don’t as affecting—to paraphrase Yeshiva—the university’s make a right, and I predict the courts will have to, once overall product, the terms upon which that product will again, reintroduce the Board to the doctrine of constitu- be offered and delivered, and the customers who will be tional avoidance. served by that product.20 Specifically, I am concerned II. that two of the areas currently afforded only secondary Because I would not assert the Board’s jurisdiction weight by the majority actually directly affect the cus- over PLU’s petitioned-for faculty, I would not reach the tomers of the university in such a way as to warrant pri- question of whether those faculty members are manage- mary consideration instead. First, I would caution that the majority test should pro- 19 It is undisputed that PLU did not originate any of these beliefs in vide greater flexibility in recognizing those areas of “ac- any manner that might imply they were simply artifices to avoid Board jurisdiction. 20 Yeshiva, 444 U.S. at 686. 1442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ademic policy” that, in fact, can significantly affect the Court remarked in Yeshiva, the “nature and quality of a university as a whole and, therefore, are entitled to sig- university depend so heavily on the faculty attracted to nificant weight in determining managerial status. For the institution.”25 Accordingly, the Board’s test should example, it seems clear that the grading policy can have a consider these factors of primary importance notwith- significant effect in attracting students as well as in re- standing that they are part of the majority’s “academic taining students. One can imagine a hypothetical gradu- policy” and “personnel policy and decisions” areas, ating college senior choosing between three law schools, based on evidence establishing their importance to uni- each of which has a different grading policy: one school versities and consumers. has traditional grades for all classes; another offers all its I have another concern about this first part of the ma- classes under a pass/fail system; and the third allows jority’s test—the majority does not really give guidance students to elect to take one class as a pass/fail grade per concerning how our regional directors and future Boards grading period.21 It cannot be disputed that schools pub- will decide the ultimate outcome based on the factors. licize their grading policies, that applicants take note of For instance, if no primary factors are established, but these policies, and that grading policies can be an im- one secondary factor is, is that sufficient to establish portant consideration for potential enrollees in choosing managerial status? If no primary, but two secondary between competing institutions.22 factors? Is one primary factor alone sufficient? It ap- Second, I would similarly caution that there will be pears that the majority finds no need to reach that issue, examples of “personnel policy and decisions” that should in light of their finding that the record does not establish be considered of primary importance. For example, the- that the faculty at issue actually control or make effective se include hiring policies that affect employment and recommendations in any of the primary or secondary hiring throughout the entire university, particularly per- areas of decision making. But the majority has decided sonnel decisions regarding faculty.23 With regard to fac- to create a comprehensive test here, and, therefore, the ulty hiring and tenure decisions, the quality of the faculty actual weighting of its factors, including what showing is is a significant factor in a university’s reputation and its sufficient to meet the majority’s test, is a rather large desirability to potential students.24 As the Supreme analytical question to be left unresolved, particularly if the hope is to provide predictability and guidance with 21 This is, of course, not a purely hypothetical situation: In general regard to how the Board will make these determinations terms, this was a consideration faced by students choosing between in the future. My own view would be that one primary Harvard, Yale, and Stanford law schools back in 1990. factor or two or more secondary factors should be suffi- 22 For example, the National Association for Law Placement’s directory of law schools, which is designed to help recruiters learn more cient. about students from particular law schools, include information about B. Actual Control or Effective Recommendation each law school’s grading systems. National Association for Law Placement, NALP Directory of Law Schools, Although I have minor concerns with the formulation http://www.nalp.org/nalpdirectoryoflawschools (last visited Nov. 14, of the first part of the majority’s test, my real objection is 2014); see also Silverstein, A Case for Grade Inflation in Legal Educa- to the manner in which the majority interprets, and then tion, 47 U.S.F.L. Rev. 487, 497–501 (2013) (describing how law schools differ from other graduate institutions in requiring a higher applies, the second part of the test. Specifically, by in- grade point average to remain in good standing and graduate, and not- creasing the burden of proof for what the Board consid- ing that “more prestigious schools tend to give better grades to their ers to be “effective” recommendations, and by failing to students than less prestigious schools”). consider the actual, diverse processes of university busi- 23 In finding managerial status, the Board has previously relied on the faculty’s involvement in faculty hiring and tenure decisions. See, ness operations and governance, the Board has raised the e.g., American Interational College, 282 NLRB 189, 201 (1986) (rely- bar for establishing managerial status of faculty to an ing additionally on the faculty’s influence in hiring, promotion, and tenure decisions); Boston University, 281 NLRB 798 (1986) (noting dedication to teaching); Forbes, Ranking America’s Top Colleges 2014, that the faculty played an effective role in recommending faculty hir- http://www.forbes.com/sites/carolinehoward/2014/07/30/ranking- ing, tenure, promotions, and reappointments). 24 americas-top-colleges-2014/ (last visited Nov. 14, 2014) (25% of a In published rankings of universities, methodologies usually in- university’s score based on student satisfaction, including student eval- clude consideration of faculty quality. See, e.g., U.S. News and World uations of professors); Money, How Money Ranked the Best Colleges, Report, How U.S. News Calculated the 2015 Best Colleges Rankings, http://time.com/money/3020573/methodology-short-moneys-best- http://www.usnews.com/education/best- colleges/ (last visited Nov. 14, 2014) (a third of a university’s score colleges/articles/2014/09/08/how-us-news-calculated-the-2015-best- based on quality of education including instructor quality). colleges-rankings (last visited Nov. 14, 2014) (20% of a university’s 25 Yeshiva, 444 U.S. at 689 fn. 27. score based on “faculty resources,” including professors’ educational background, class size, student-faculty ratio, and faculty full-time or part-time status; 25% of a university’s score based on other institution administrators’ assessment to account for intangibles such as faculty PACIFIC LUTHERAN UNIVERSITY 1443 unattainable height, one beyond the reach even of Are- University, 298 NLRB 280, 286 (1990) (faculty commit- té.26 tee recommendations were not effective where the com- The majority begins by citing the principle that “the mittees “met infrequently, and any recommendations party asserting managerial status must prove actual-- they have made regarding academic or nonacademic pol- rather than mere paper--authority.” This is an accurate icy have usually been ignored or reversed by the admin- recitation of well-settled Board law, and I have no disa- istration”). But, contrary to the majority’s suggestion, greement with the majority in this regard. the Board has not required that an administration must The majority then, however, states that “to be ‘effec- almost always” follow the recommendations of its facul- tive,’ recommendations must almost always be followed ty in order for those faculty to be acting in a managerial by the administration.’” (Emphasis added.) In support of capacity. I disagree strongly with the majority’s imposi- this statement, the majority cites six separate cases— tion of this new, overly onerous standard, which will none of which supports the majority’s position that this result in the under-recognition of faculty who actually act requirement, in fact, must be met in order to establish in a managerial capacity. that faculty members make effective recommendations. Further, in my view, the majority commits serious er- Let’s start with the specific quotation used by the majori- ror by establishing a false dichotomy between persuasive ty, which comes from the case College of Osteopathic faculty recommendations that are subject to independent Medicine & Surgery, 265 NLRB 295, 297 (1982). To be review — which, under their test, are not considered “ef- sure, the Board found that the record in that case estab- fective” for purposes of establishing managerial status— lished that faculty recommendations were almost always and persuasive faculty recommendations not subject to followed by the administration, and that, further, that the independent review—which may be used to establish faculty at issue established that they possessed the actual managerial status.27 It seems evident that a recommen- authority to make effective recommendations. But that is dation that is implemented, even after independent re- a different matter entirely than stating that such an exact- view, can still be considered “effective,” and reflective of ing standard must be met in order to establish that faculty managerial authority. For example, faculty members members make effective recommendations into im- could be making an effective recommendation, even if an portant academic and nonacademic matters. To use an independent review occurred, if the reviewer’s ultimate analogy, assume that a college maintains an honor roll. decision hinged on the persuasiveness of the faculty’s The college may be asked whether a particular student research, analysis, and advocacy.28 It is worth noting qualifies for the honor roll. Let’s say that student has a 3.99 grade-point average. If the college decides that the 27 The verbiage setting forth the standard confusingly cites two dis- group of students with 3.99 grade-point averages quali- tinct concepts in evaluating “effective” recommendation: that recom- fies for the honor roll, it does not follow from that deci- mendations must "almost always be followed" to be effective and that recommendations are effective if “they routinely become operative sion that students must have a 3.99 grade-point average without independent review.” (Emphasis added.) The first standard to qualify, nor does that decision shed much light on seems to say that, regardless of whether or not independent review what the “cutoff” for the honor roll actually is. Similar- takes place, so long as the faculty recommendations are followed a high ly, if it is determined that students with 2.75 grade-point percentage of the time (99%? 95%? 90%? Who knows?), there is effective recommendation. The latter standard says that, even if the recom- averages do not qualify for the honor roll, that does not mendations are followed 100% of the time, so long as the administra- tell us the fate of students who have, say, 3.5 grade-point tion undertakes an independent review before deciding, there is no averages. effective recommendation. The majority does not make clear how Similarly, it seems as though Board precedent pertain- these two standards are meant to be considered in tandem, and it seems likely that most of our field personnel and the regulated community ing to effective recommendation has delineated the ex- will find this hard to understand. tremes. Thus, it seems clearly established that when fac- 28 This rationale is equally applicable to the majority’s strange sug- ulty members make recommendations that are virtually gestion that if the administration and the faculty assembly engage in always followed by the administration, effective recom- feedback and dialogue before the faculty makes a recommendation, that the recommendation is advisory and not “effective.” That is, the major- mendation is established. It also seems clear that when ity’s assumption that dialogue or feedback constitutes independent faculty committee recommendations are routinely ig- review that negates the effectiveness of a recommendation ignores the nored or reversed, those faculty do not effectively rec- possibility that the administration could well be motivated or influenced ommend the decisions at issue. See, e.g., St. Thomas by the faculty’s recommendation in ultimately making a decision. In fact, it makes sense that feedback and dialogue would increase the effectiveness of a recommendation because the administration would 26 Areté, the aforementioned Greek Goddess of excellence (also of have more information on the faculty’s rationale and motivation for its virtue, goodness, and valor) was believed to dwell at a great height, recommendation and the faculty would have more opportunity to advo- close to the gods, on rocks unclimbable by most mortals. cate for its position. 1444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that, in most hierarchical operations, including universi- as. Significantly, the University has not shown any ties, levels of review are generally built into the decision- meaningful participation by the petitioned-for contingent making process. To conclude that the act of review in faculty at any level of administration. Although they and of itself strips away the extent to which the substan- may participate at the department level on various cur- tial managerial input of those individuals who actively riculum matters, PLU failed to explain exactly what that decided to develop and advocate for a certain policy participation involves, i.e, how participants decide and seems to utterly disregard the realities of decision- and vote on matters and to what extent the petitioned-for fac- policy-making in complex organizations. Here, I agree ulty are allowed to participate in that process. At most, with the majority that university environments are “plac- there is evidence that the division of humanities has rec- es rich in dialogue,” but that means we should establish ommended giving those faculty members voting privi- an “effective recommendation” standard to reflect this leges; there is no evidence, however, that this recom- fact. Accordingly, I would find that faculty members mendation was implemented. Contingent faculty are also effectively recommend policies where, historically and a expressly barred from the faculty standing committees, majority of the time, the faculty’s recommended actions which recommend policy on a variety of primary and are adopted and implemented without substantial change, secondary areas of decision-making. Furthermore, PLU regardless of whether another level of administration presented no evidence that any of the contingent faculty engaged in an “independent review” or whether the ulti- serve on a University committee, despite the fact that mate decision was the result of a collaboration between such “paper” authority has existed since 2013. Finally, faculty members and administrators.29 although contingent faculty have the right to vote in the C. Application of the Majority’s New Test to Determine faculty assembly, PLU did not provide specific evidence the Managerial Status of PLU Full-Time showing that any of those faculty members has actually Contingent Faculty ever voted or even spoken in the faculty assembly. Despite my disagreement with aspects of my col- Conclusion leagues’ formulation of the new test in this area, particu- For nearly four hundred years now, religious believers larly as concerns the establishment of “effective recom- have come to our shores because of their religion. Some mendations,” I would ultimately reach the same conclu- were fleeing their homelands because of religious perse- sion: that the full-time contingent faculty here do not cution by their rulers, and others were escaping from have managerial authority and thus are employees pro- outright religious wars. All left behind family or tected under the Act because PLU has provided no evi- friends, sometimes never to see their loved ones again. dence to establish, at minimum, that they have actual Their migration to America was rarely easy, and many control or input in any of the PLU’s decisionmaking are- lost their own lives trying to settle in the New World, early in our history. 29 The majority appears bent on downplaying or undermining any They came for a reason. They endured all the hardship potential influence that the full-time contingent faculty here could have. of that journey for that reason. They wanted to be free to See, e.g., fn. 25, supra. The majority notes that even if they have a vote determine, and to practice, their own relationship with on academic matters in the faculty assembly, it is limited involvement because while the faculty standing committee’s decisions on new de- God on their own terms, and to educate successive gen- grees, majors, minors, and programs must go through the faculty as- erations in those religious beliefs. The idea that impelled sembly for approval, “changes to degree requirements, new courses, them—of religious freedom, without state favoritism and other curriculum course changes do not require the consent of the toward or influence over religious beliefs—was so pow- faculty assembly unless there is an objection.” This distinction, however, is meaningless. Whether the faculty assembly has the right to erful that it became part of the very First Amendment in object to certain decisions, or that it has to officially approve decisions, the Bill of Rights in our Constitution. What the Found- both mean that it must independently review those decisions to either ing Fathers there declared to be inalienable rights in affirmatively decide that it will not object or that it will officially ap- 1789, justices and judges subsequently expanded and prove or reject them. The majority also seems to suggest that, because the contingent fac- refined over the course of our national history. ulty members serve one-year employment terms, the effectiveness or This arc of progress has moved only in one direction: potential influence of their votes and/or recommendations is dimin- toward more religious freedom and less state interference ished. This reasoning is inconsistent with how voting bodies work. To in religion. Today, it is inconceivable in the United analogize, the votes of politicians are not given less weight and their legislative work is not automatically ignored just because they serve States that a government agency would tell religious ed- time-limited terms. Rather, it seems more likely that the principal ucational institutions how they must define—and “hold effect that the contingents’ limited terms would have on the faculty out”— their religious traditions to the public, or else the assembly or committees on which they participate is that their voting agency will begin regulating them, just as it regulates interests might differ from those of regular or tenured faculty. secular bodies. Or, so it should be. PACIFIC LUTHERAN UNIVERSITY 1445

The issue posed is how the government should deter- lieve—and what it must express to the public—in order mine the line between what is Caesar’s and what is to be religious. God’s. Here, a religious order operates a university fol- Reverence for the Religion Clauses in the Constitution, lowing its religious tradition, and amply explains how and the values they embody, compels that conclusion. the educational instruction within that operation is in- The courts have already determined this several times spired by, and connected to, its religious faith. In such over. My colleagues err by not acknowledging the circumstances, and under the doctrine of constitutional courts’ expertise in constitutional interpretation and by avoidance, the government should tread with caution. not following their well-reasoned decisions. Whatever The state cannot substitute its judgment for the universi- the importance of a government statute, it cannot over- ty’s over what is “truly” religious, and whether some- come the idea of religious freedom, contained today in thing is “specifically religious enough” to qualify as reli- the First Amendment. Not in 1620 at Plymouth Rock, gious, in order to come to an opposite determination. In not in 1789, and not now. short, the Board cannot tell the religion what it must be- I respectfully dissent. NOTICE: This opinion is subject to formal revision before publication in the positions of the parties and the amici,3 the reasoning of bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any the Brown University Board, and the views of our dis- typographical or other formal errors so that corrections can be included in the senting colleague, who endorses Brown University (as bound volumes. well as advancing arguments of his own). For the reasons that follow, we have decided to over- The Trustees of Columbia University in the City of rule Brown University, a sharply-divided decision, which New York and Graduate Workers of Columbia– itself overruled an earlier decision, New York University, GWC, UAW. Case 02–RC–143012 332 NLRB 1205 (2000) (NYU). We revisit the Brown August 23, 2016 University decision not only because, in our view, the DECISION ON REVIEW AND ORDER Board erred as to a matter of statutory interpretation, but BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA, also because of the nature and consequences of that error. HIROZAWA, AND MCFERRAN The Brown University Board failed to acknowledge that the Act does not speak directly to the issue posed here, The threshold question before us is whether students which calls on the Board to interpret the language of the who perform services at a university in connection with statute in light of its policies. The Brown University their studies are statutory employees within the meaning Board’s decision, in turn, deprived an entire category of of Section 2(3) of the National Labor Relations Act. workers of the protections of the Act, without a convinc- Here, after a hearing directed by the Board, the Regional ing justification in either the statutory language or the Director applied Brown University, 342 NLRB 483 policies of the Act. (2004), where the Board found that graduate student as- As we will explain, our starting point in determining sistants were not employees within the meaning of Sec- whether student assistants are covered by the Act is the tion 2(3), and dismissed a petition filed by the Graduate broad language of Section 2(3), which provides in rele- Workers of Columbia-GWC, UAW, which seeks to rep- vant part that “[t]he term ‘employee’ shall include any resent both graduate and undergraduate teaching assis- 1 employee,” subject to certain exceptions—none of tants, as well as graduate research assistants. The Board 4 granted review in this case on December 23, 2015, and which address students employed by their universities. then issued a notice and invitation to file briefs, identify- The Brown University Board held that graduate assistants ing the primary issue presented, as well as subsidiary cannot be statutory employees because they “are primarily students and have a primarily educational, not eco- issues that would follow if Brown University were over- 5 ruled.2 We have carefully considered the record, the nomic, relationship with their university.” We disagree. The Board has the statutory authority to treat student assistants as statutory employees, where they perform 1 The petition defined the bargaining unit sought as follows: work, at the direction of the university, for which they Included: All student employees who provide instructional services, including graduate and undergraduate Teaching Assistants (Teaching Assistants, Teaching Fellows, Preceptors, Course Assistants, Readers 3. If the Board concludes that graduate student assistants, terminal and Graders): All Graduate Research Assistants (including those masters degree students and undergraduate students are statutory em- compensated through Training Grants) and All Departmental Re- ployees, would a unit composed of all these classifications be appro- search Assistants employed by the Employer at all of its facilities, in- priate? cluding Morningside Heights, Health Sciences, Lamont-Doherty and 4. If the Board concludes that graduate student assistants, terminal Nevis facilities. masters degree students and undergraduate students are statutory em- Excluded: All other employees, guards and supervisors as defined in ployees, what standard should the Board apply to determine whether the Act. they constitute temporary employees? 2 On January 16, 2016, the Board invited the parties and interested 3 Briefs were filed in support of the Petitioner by: American Asso- amici to file briefs addressing the following four issues: ciation of University Professors (AAUP); American Federation of 1. Should the Board modify or overrule Brown University, 342 Labor and Congress of Industrial Organizations (AFL-CIO); American NLRB 483 (2004), which held that graduate student assistants who Federation of Teachers (AFT); Ellen Dannin, Attorney; The General perform services at a university in connection with their studies are not Counsel of the NLRB; Individual Academic Professors of Social Sci- statutory employees within the meaning of Section 2(3) of the Nation- ence and Labor Studies (IAP); National Association of Graduate- al Labor Relations Act? Professional Students (NAGPS); Service Employees International Union and Committee of Interns and Resident, SEIU Healthcare 2. If the Board modifies or overrules Brown University, supra, what (SEIU-CIR); and United Steelworkers (USW). Filing in support of should be the standard for determining whether graduate student assis- Columbia were: American Council on Education (ACE), et al.; Brown tants engaged in research are statutory employees, including graduate University et al.; Higher Education Council of the Employment Law student assistants engaged in research funded by external grants? See Alliance (HEC); and National Right to Work Legal Defense and Educa- New York University, 332 NLRB 1205, 1209 fn. 10 (2000) (relying on tion Foundation (NRW). Leland Stanford Junior University, 214 NLRB 621 (1974)). 4 29 U.S.C. §152(3). 5 Brown University, 342 NLRB at 487.

364 NLRB No. 90

Reprinted with Permission 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD are compensated. Statutory coverage is permitted by I. OVERVIEW OF PRECEDENT virtue of an employment relationship; it is not foreclosed A. Board precedent prior to Brown University by the existence of some other, additional relationship The Board has exercised jurisdiction over private, that the Act does not reach. nonprofit universities for more than 45 years.9 During The unequivocal policy of the Act, in turn, is to “en- that time, the Board has permitted collective bargaining courag[e] the practice and procedure of collective bar- by faculty members at private universities and has had gaining” and to “protect[ ] the exercise by workers of full frequent occasion to apply the Act in the university set- freedom of association, self-organization, and designa- ting.10 The Board first considered the status of graduate tion of representatives of their own choosing.”6 Given student assistants in Adelphi University, 195 NLRB 639 this policy, coupled with the very broad statutory defini- (1972). There, the Board held that graduate assistants tions of both “employee” and “employer,” it is appropri- should be excluded from a bargaining unit of university ate to extend statutory coverage to students working for faculty members because they did not share a community universities covered by the Act unless there are strong of interest with the faculty. However, the Adelphi Board reasons not to do so.7 We are not persuaded by the did not address whether the student assistants were statu- Brown University Board’s self-described “fundamental tory employees. Two years later, the Board held that belief that the imposition [sic] of collective bargaining on certain university research assistants were “primarily graduate students would improperly intrude into the edu- students” and thus not statutory employees, observing cational process and would be inconsistent with the pur- that the relationship between the research assistants and poses and policies of the Act.”8 This “fundamental be- the university was “not grounded on the performance of lief” is unsupported by legal authority, by empirical evi- a given task where both the task and the time of its per- dence, or by the Board’s actual experience. formance is designated and controlled by an employer.” Thus, we hold today that student assistants who have a The Leland Stanford Junior University, 214 NLRB 621, common-law employment relationship with their univer- 623 (1974). For similar reasons, the Board dismissed sity are statutory employees under the Act. We will ap- representation petitions for house staff at teaching hospi- ply that standard to student assistants, including assis- tals in Cedars-Sinai Medical Center, 223 NLRB 251 tants engaged in research funded by external grants. Ap- (1976) and St. Clare’s Hospital, 229 NLRB 1000 plying the new standard to the facts here, consistent with (1977).11 the Board’s established approach in representation cases, In Boston Medical Center, 330 NLRB 152 (1999), the we conclude (1) that all of the petitioned-for student- Board overruled Cedars-Sinai and St. Clare’s Hospital assistant classifications consist of statutory employees; and held that interns, residents, and clinical fellows (2) that the petitioned-for bargaining unit (comprising (house staff) at a teaching hospital were statutory em- graduate students, terminal Master’s degree students, and ployees entitled to engage in collective bargaining with undergraduate students) is an appropriate unit; and (3) the hospital over the terms and conditions of their em- that none of the petitioned-for classifications consists of ployment. In so holding, the Board emphasized the temporary employees who may not be included in the broad scope of Section 2(3) and noted the absence of any unit. Accordingly, we reverse the decision of the Re- statutory exclusion for students or house staff. And, con- gional Director and remand the proceedings to the Re- trary to St. Clare’s Hospital, in Boston Medical Center gional Director for further appropriate action. the Board found that the policies of the Act would be

6 advanced by extending full statutory protection to house 29 U.S.C. §151. 12 7 Cf. NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706, staff. 711–712 (2001) (upholding Board’s rule allocating burden of proof to The Board first held that certain university graduate party asserting supervisory exception to Sec. 2(3), citing broad defini- assistants were statutory employees in its 2000 decision tion of “employee”). in NYU, supra. In NYU, the Board examined the statuto- 8 342 NLRB at 493. Under the Act, collective bargaining can never be “imposed” on employees by the Board; rather, the Act guarantees ry language of Section 2(3) and the common law agency employees full freedom of choice in deciding whether or not to seek union representation, based on majority support. See National Labor 9 See Cornell University, 183 NLRB 329 (1970). Relations Act, §§1, 7, & 9, 29 U.S.C. §§151, 157, 159. 10 See, e.g., Bradford College, 261 NLRB 565 (1982). 11 In St. Clare’s Hospital, the Board clarified Cedars-Sinai, observing that “national labor policy . . . preclude[d] the extension of collective-bargaining rights and obligations to situations such as the one” presented, which implicated predominantly academic, not economic, interests. 229 NLRB at 1002. 12 330 NLRB at 160. COLUMBIA UNIVERSITY 3 doctrine of the conventional master-servant relationship, vidual in question.”20 Disavowing the need for empirical which establishes that such a “relationship exists when a analysis, the Brown University majority instead relied on servant performs services for another, under the other’s what it perceived to be a fundamental tenet of the Act control or right of control, and in return for payment.”13 and a prerequisite to statutory coverage: a relationship In so doing, the Board determined that “ample evidence that is primarily economic in character, regardless of exists to find that graduate assistants plainly and literally whether it constitutes common-law employment. fall within the meaning of ‘employee’ as defined in Sec- In addition to its declaration that graduate assistants, as tion 2(3)” and by the common law.14 The Board’s inter- primarily students, were necessarily excluded from statu- pretation was based on the breadth of the statutory lan- tory coverage, the Brown University Board also articulat- guage, the lack of any statutory exclusion for graduate ed a policy rationale based almost exclusively on the assistants, and the undisputed facts establishing that the overruled decision in St. Clare’s Hospital, supra, finding assistants in that case performed services under the con- that the St. Clare’s Board had correctly “determined that trol and direction of the university for which they were collective bargaining is not particularly well suited to compensated. educational decisionmaking and that any change in em- The NYU Board also relied on Boston Medical Center phasis from quality education to economic concerns will to support its policy determination that collective bar- ‘prove detrimental to both labor and educational poli- gaining was feasible in the university context.15 In Bos- cies.’”21 That determination ostensibly was supported by ton Medical Center, the Board held that interns, residents several factors: (1) that the student-teacher relationship is and clinical fellows (collectively, house staff) at a teach- based on mutual academic interests, in contrast to the ing hospital were statutory employees entitled to engage conflicting economic interests that inform the employer- in collective bargaining with the hospital over the terms employee relationship; (2) that the educational process is and conditions of their employment.16 After 16 years, a personal one, in contrast to the group character of col- Boston Medical Center remains good law today—with lective bargaining; (3) that the goal of collective bargain- no evidence of the harm to medical education predicted ing, promoting equality of bargaining power, is “largely by the dissenters there—but NYU was overruled only a foreign to higher education”; and (4) that collective bar- few years after it was decided, by a sharply divided gaining would “unduly infringe upon traditional academ- Board’s 2004 decision in Brown University. ic freedoms.”22 B. Brown University The Brown University dissenters, in stark contrast, noted that “[c]ollective bargaining by graduate student In Brown University, the majority described NYU as employees” was “increasingly a fact of American univer- “wrongly decided,” and invoked what it called the “un- sity life” and described the majority’s decision as “woe- derlying fundamental premise of the Act,” i.e. that the fully out of touch with contemporary academic reality.” Act is “designed to cover economic relationships.”17 The 23 According to the dissenters, the majority had misap- Board further relied on its “longstanding rule” that the plied the appropriate statutory principles and erred “in Board will decline to exercise its jurisdiction “over rela- seeing the academic world as somehow removed from tionships that are ‘primarily educational.’” 18 In so decid- the economic realm that labor law addresses.”24 The ing, the Brown University majority rejected NYU’s reli- dissenters emphasized that the majority’s decision im- ance on the existence of a common-law employment properly disregarded “the plain language of the statute— relationship between the graduate students and the uni- which defines ‘employees’ so broadly that graduate stu- versity, stating that “[e]ven assuming arguendo” such a dents who perform services for, and under the control of, relationship existed, “it does not follow that [the graduate their universities are easily covered” and instead chose to assistants] are employees within the meaning of the exclude student assistants.25 This decision was based on Act.”19 That issue was “not to be decided purely on the “policy concerns . . . not derived from the Act at all,” basis of older common-law concepts,” but rather by de- reflecting “an abstract view of what is best for American termining “whether Congress intended to cover the indi- higher education—a subject far removed from the

13 332 NLRB at 1206. 20 14 Id., citing NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974). Id. 21 15 Id. at 489, citing 229 NLRB at 1002. Id. 22 16 Id. at 489–490. 330 NLRB at 164-65. 23 17 Id. at 493 (dissent of Member Liebman and Member Walsh). 342 NLRB at 483, 488. 24 18 Id. at 494. Id. at 488. 25 19 Id. at 491. Id. at 493. 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Board’s expertise.”26 Contrary to the majority, the dis- 1. Section 2(3) senters concluded, in line with the Board’s decision in Section 2(3) of the Act defines “employee” to “include NYU, that the terms and conditions of graduate-student any employee,” subject to certain specified exceptions.31 employment were adaptable to collective bargaining (as The Supreme Court has observed that the “breadth of illustrated by experience at public-sector universities and [Section] 2(3)’s definition is striking: the Act squarely at New York University itself) and that empirical evi- applies to ‘any employee.’”32 The “phrasing of the Act,” dence contradicted claims that “academic freedom” and the Court has pointed out, “seems to reiterate the breadth educational quality were harmed by permitting collective of the ordinary dictionary definition” of the term, a defi- 27 bargaining. nition that “includes any ‘person who works for another We believe that the NYU Board and the Brown Univer- in return for financial or other compensation.’”33 sity dissenters were correct in concluding that student The Court has made clear, in turn, that the “task of de- assistants who perform work at the direction of their uni- fining the term ‘employee’ is one that ‘has been assigned versity for which they are compensated are statutory em- primarily to the agency created by Congress to adminis- ployees. That view better comports with the language of ter the Act,’” the Board.34 Section 2(3) of the Act and common-law agency princi- None of the exceptions enumerated in Section 2(3) ad- ples, the clear policy of the Act, and the relevant empiri- dresses students generally, student assistants in particu- 28 cal evidence. lar, or private university employees of any sort.35 The II. DISCUSSION absence of student assistants from the Act’s enumeration A. The Brown University Board Erred by Determining of categories excluded from the definition of employee is 36 that, as a Matter of Statutory Interpretation, Student As- itself strong evidence of statutory coverage. Although sistants Could Not Be Treated as Statutory Employees Section 2(3) excludes “individuals employed . . . by any . . . person who is not an employer . . . as defined” in For reasons already suggested, the NYU Board was on Section 2(2) of the Act, private universities do not fall very firm legal ground in concluding that student assis- within any of the specified exceptions, and, indeed, as tants could be employees of the university within the previously noted, the Board has chosen to exercise juris- meaning of Section 2(3) of the Act, while also being stu- diction over private, nonprofit universities for more than dents—and thus permitting collective bargaining when 45 years.37 student assistants freely choose union representation.29 The Act does not offer a definition of the term “em- We now reaffirm that approach. Where student assis- ployee” itself. But it is well established that “when Con- tants have an employment relationship with their univer- gress uses the term ‘employee’ in a statute that does not sity under the common law test—which they do here— define the term, courts interpreting the statute ‘must in- this relationship is sufficient to establish that the student fer, unless the statute otherwise dictates, that Congress assistant is a Section 2(3) employee for all statutory pur- means to incorporate the established meaning’” of the poses. We do not hold that the Board is required to find workers to be statutory employees whenever they are particular questions and in a particular statutory context, renders its common-law employees, but only that the Board may interpretation unreasonable,” but finding no such issue presented be- and should find here that student assistants are statutory cause the “Board’s interpretation of the term ‘employee’ [was] con- employees.30 sistent with the common law”). See also Office Employees Int’l Union, Local No. 11 v. NLRB, 353 U.S. 313 (1957) (Board lacked discretion to refuse to assert jurisdiction over labor unions as employers, in face of 26 Id. at 497. clear Congressional expression in Sec. 2(2) of Act, defining “employ- 27 Id. at 499–500. er” to exclude “any labor organization (other than when acting as an 28 Leading scholars of labor law have long agreed with this view. employer)”). See, e.g., Michael C. Harper, Judicial Control of the National Labor 31 29 U.S.C. § 152(3). Relations Board’s Lawmaking in the Age of Chevron and Brand X, 89 32 Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891 (1984). B.U. L. Rev. 189, 222 (2009) (“In Brown, the Board majority departed 33 Town & Country Electric, supra, 516 U.S. at 90, quoting Ameri- from the most relevant precedent, effectively refused to engage any can Heritage Dictionary 604 (3d ed. 1992). available evidence, and disagreed with the dissenters and with the New 34 Sure-Tan, Inc., supra, 467 U.S. at 891, quoting NLRB v. Hearst York University decision in a way that vitiated any claim for special Publications, Inc., 322 U.S. 111, 130 (1944). deference to its expertise in labor relations.”). See also Catherine L. 35 Nor is the employee status of students mentioned anywhere else in Fisk & Deborah C. Malamud, The NLRB in Administrative Law Exile: the Act. Thus, “Congress has not directly addressed the precise ques- Problems with Its Structure and Functions and Suggestions for Reform, tion at issue” in this case. Chevron U.S.A., Inc. v. Natural Resources 58 Duke L. J. 2013, 2076–2077 (2009). Defense Council, Inc., 467 U.S. 837, 843 (1984). 29 New York University, supra, 332 NLRB at 1206. 36 See Sure-Tan, Inc., supra, at 891–892. 30 Cf. NLRB v. Town & Country Electric, 516 U.S. 85, 94 (1995) 37 See Cornell University, supra, 183 NLRB at 331–333, overruling (observing that “[i]n some cases, there may be a question about whether Trustees of Columbia University, 97 NLRB 424 (1951). the Board’s departure from the common law of agency with respect to COLUMBIA UNIVERSITY 5 term, with reference to “‘common-law agency doc- the intrinsic purpose and structure of the Act. No legisla- trine.’”38 Not surprisingly, then, the Supreme Court has tive history supports excluding student assistants from endorsed the Board’s determination that certain workers statutory coverage, nor does the design of the Act itself.46 were statutory employees where that determination 2. The Brown Board Did Not Adequately Consider the 39 aligned with the common law of agency. Other federal Text of Section 2(3) courts have done so as well.40 In accordance with the The Brown University Board insisted that Section 2(3) statute’s broad definition and with the Supreme Court’s of the Act must not be examined in isolation; rather, the approval, the Board has interpreted the expansive lan- Board must “look to the underlying fundamental premise guage of Section 2(3) to cover, for example, paid union of the Act, viz. the Act is designed to cover economic organizers (salts) employed by a company,41 undocu- relationships.”47 Certainly, the Supreme Court has sug- mented aliens,42 and “confidential” employees,43 among gested that, despite the centrality of common-law agency other categories of workers. principles to employee status under the Act, “[i]n doubt- The most notable instance in which apparent common- ful cases resort must still be had to economic and policy law employees were found not to be employees under the considerations to infuse [Section] 2(3) with meaning.”48 Act, in spite of the absence of an explicit statutory exclu- But we reject the Brown University Board’s claim that sion, is the exception that proves the rule. In Bell Aero- finding student assistants to be statutory employees, space, cited by the Brown University Board, the Supreme where they have a common-law employment relationship Court held that “managerial employees” were not cov- with their university, is somehow incompatible with the ered by the Act because Congress had clearly implied “underlying fundamental premise of the Act.” The Act is their exclusion by the Act’s design and purpose to facili- designed to cover a particular type of “economic rela- tate fairness in collective bargaining.44 As the Court tionship” (in the Brown University Board’s phrase)—an concluded, giving employee status to managers would be employment relationship—and where that relationship contrary to this purpose: it would place managers, who exists, there should be compelling reasons before the would be expected to be on the side of the employer in Board excludes a category of workers from the Act’s bargaining, and non-managerial employees in the same coverage. bargaining “camp,” “eviscerat[ing] the traditional dis- The fundamental error of the Brown University Board tinction between labor and management.”45 The exclu- was to frame the issue of statutory coverage not in terms sion of managers rested on legislative history, along with of the existence of an employment relationship, but rather on whether some other relationship between the em- 38 Town & Country Electric, supra, 516 U.S. at 94, quoting Nation- wide Mutual Ins. Co. v. Darden, 503 U.S. 318, 322–323 (1992). ployee and the employer is the primary one—a standard 39 Id. at 94–95 (rejecting employer’s argument that common law neither derived from the statutory text of Section 2(3) nor principles precluded Board’s determination that paid union organizers, from the fundamental policy of the Act.49 Indeed, in salts, were statutory employees, and holding that salts fell within reasonable construction of common law definition). 40 See, e.g., Lancaster Symphony Orchestra v. NLRB, 822 F.3d 563 46 Contrary to Columbia’s assertion, the fact that Congress has not (D.C. Cir. 2016), enfg. 357 NLRB 1761 (2011) (musicians in a regional enacted legislation to countermand the Board’s Brown decision carries orchestra are statutory employees); Seattle Opera v. NLRB, 292 F.3d little weight. One is not to infer legislative intent based on Congress’s 757, 761–762 (D.C. Cir. 2002), enfg. 331 NLRB 1072 (2000) (opera seeming acquiescence to an agency decision unless there is evidence company’s auxiliary choristers are statutory employees). The Board that Congress actually considered the precise agency action at issue. has consistently applied common-law principles in its application of Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, other concepts under the Act, including the Act’s broad definition of an 531 U.S. 159, 169–170, fn. 5 (2001). For this reason, we do not rely employer. See, e.g., Browning-Ferris Industries, 362 NLRB No. 186 today on the fact that Congress took no action to overrule the Board’s (2016) (test for joint-employer status). earlier decision in NYU. 41 Town & Country Electric, supra, 516 U.S. at 94 & 97–98 (com- 47 342 NLRB at 488. mon-law principles supported Board’s construction of the term “em- 48 Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass, 404 ployee” to include salts). U.S. 157, 168 (1971). 42 Sure-Tan, supra, 467 U.S. at 892 (observing that undocumented 49 Columbia also argues for our adoption of another, similar non- aliens are “not among the few groups of workers expressly exempted common-law standard: the “primary beneficiary” analysis used by the by Congress” from the definition of “employee” and that “extending courts in some Fair Labor Standards Act (FLSA) cases, including cases the coverage of the Act to [them] is consistent with the Act’s avowed involving the employee status of student interns. Because the FLSA purpose of encouraging and protecting the collective-bargaining pro- definition of a statutory employee is not tethered to the common law (as cess”). the Act’s definition is), and because the FLSA reflects policy goals 43 NLRB v. Hendricks County Rural Electric Membership Corp., 454 distinct from those of the Act, we are not persuaded that the “primary U.S. 170, 189–190 (1981). beneficiary” analysis should govern this case. For the same reason, we 44 NLRB v. Bell Aerospace Co., 416 U.S. 267, 275 (1974). are not persuaded by Columbia’s contention that the Department of 45 Id. at 284 fn. 13. Labor’s recent guidance regarding whether graduate research assistants are employees within the meaning of the FLSA bears on the separate 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spite of the Brown University Board’s professed adher- In sum, we reject the Brown Board’s focus on whether ence to “Congressional policies,” we can discern no such student assistants have a “primarily educational” em- policies that speak to whether a common-law employee ployment relationship with their universities.53 The Su- should be excluded from the Act because his or her em- preme Court has cautioned that “vague notions of a stat- ployment relationship co-exists with an educational or ute’s ‘basic purpose’ are . . . inadequate to overcome the other non-economic relationship.50 The Board and the words of its text regarding the specific issue under con- courts have repeatedly made clear that the extent of any sideration.”54 The crucial statutory text here, of course, required “economic” dimension to an employment rela- is the broad language of Section 2(3) defining “employ- tionship is the payment of tangible compensation. Even ee” and the language of Section 8(d) defining the duty to when such an economic component may seem compara- bargain collectively. It seems clear to us, then, that the tively slight, relative to other aspects of the relationship Act’s text supports the conclusion that student assistants between worker and employer, the payment of compen- who are common-law employees are covered by the Act, sation, in conjunction with the employer’s control, suf- unless compelling statutory and policy considerations fices to establish an employment relationship for purpos- require an exception. As we explain next, the relevant es of the Act.51 Indeed, the principle that student assis- considerations strongly favor statutory coverage. tants may have a common-law employment relationship B. Asserting Jurisdiction over Student Assistants Pro- with their universities—and should be treated according- motes the Goals of Federal Labor Policy ly—is recognized in other areas of employment law as 1. Overview of Federal Labor Policy well.52 Federal labor policy, in the words of Section 1 of the question of whether student assistants who have a common-law em- Act, is to “encourag[e] the practice and procedure of col- ployment relationship with their universities should be regarded as lective bargaining,” and to protect workers’ “full free- employees under the NLRA. dom” to express a choice for or against collective- 50 Our dissenting colleague observes that an “array of federal statutes and regulations apply to colleges and universities,” but he does not identify any statute or regulation that speaks directly (or even indirect- employee if the individual renders uncoerced services to a principal ly) to the key question here. That Congress is interested in supporting without being offered a material inducement”). As the Restatement and regulating postsecondary education, as it surely is, does not demon- explains, “[w]here an educational institution compensates student assis- strate a Congressional view on whether or how the NLRA should be tants for performing services that benefit the institution, . . . such com- applied to student assistants. pensation encourages the students to do the work for more than educa- Nor does our colleague identify any potential for conflict between tional benefits and thereby establishes an employment as well as an the Act’s specific requirements and those of federal education law— educational relationship.” Id., comment g. The Restatement illustrates with one possible exception, related to educational records, which we this principle with the following example: address below. See fn. 93, infra. That application of the Act in some A is a graduate student in biochemistry at university P. In order to specific respect might require accommodation to another federal law complete the degree requirements, A must work in a laboratory under cannot mean that the Board must refrain from applying the Act, at all, P’s auspices, either for pay or as a volunteer. A works in the laborato- to an entire class of statutory employers or statutory employees. Cf. ry of a professor, for which A is paid a yearly stipend and given full Sure-Tan, Inc., supra, 467 U.S. at 89–893, 903–904 (affirming Board’s tuition remission. The professor has secured grants to support the re- holding that undocumented workers were statutory employees under search that A is assisting. A is an employee of P. P is providing A with NLRA, but concluding that federal immigration law precluded award- significant benefits both in order to further A’s education and also to ing certain remedies for periods when workers were not legally entitled obtain A’s services on P’s funded research. to be present and employed in United States). See generally Vimar Id., illustration 10 (emphasis added). Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 533 53 The Brown University Board insisted that “there is a significant (1995) (“[W]hen two statutes are capable of co-existence … it is the risk, and indeed a strong likelihood, that the collective-bargaining pro- duty of the courts, absent a clearly expressed congressional intention to cess will be detrimental to the educational process” and announced that the contrary, to regard each as effective.”) (quotations omitted). 51 the Board would “decline to take these risks with our nation’s excellent See Town & Country Electric, supra, 516 U.S. at 88, 95 (although private educational system.” 342 NLRB at 493. The Board’s state- chief purpose of union salts seeking employment was to organize and ment—coupled not only with the absence of any experiential or empiri- form a union, not to benefit economically, they were nonetheless em- cal basis for it, but also with the remarkable assertion that no such basis ployees as they were both paid and controlled by the company with was required—strongly suggests that the Board acted based on little respect to ordinary workplace duties); Seattle Opera Assn., 331 NLRB more than its own view of what was best for private universities. “No 1072, 1073 (2000) (observing that while auxiliary choristers received one in Congress,” an academic critic of Brown University has written, some nonmonetary benefit in the form of personal satisfaction at their “would have wanted the Board to determine which workers may be involvement in the opera, which is characteristic of a volunteer rela- protected by the Act on the basis of mere suppositions without consid- tionship, they also received monetary compensation for their effort, and eration of how statutory or other goals would be served in practice by this fact, along with employer control, made them employees under the exclusion or coverage.” Michael C. Harper, Judicial Control of the Act), enfd. 292 F.3d 757 (D.C. Cir. 2002). National Labor Relations Board’s Lawmaking in the Age of Chevron 52 For purposes of employment law, student assistants cannot be fair- and Brand X, 89 B. U. L. Rev. 189, 220 (2009). ly categorized as “volunteers,” rather than employees. See Restatement 54 Mertens v. Hewitt Associates, 508 U.S. 248, 261 (1993) (emphasis of Employment Law §1.02 (“An individual is a volunteer and not an in original). COLUMBIA UNIVERSITY 7 bargaining representation. Permitting student assistants these points simply confirm that collective bargaining to choose whether they wish to engage in collective bar- and education occupy different institutional spheres. In gaining—not prohibiting it—would further the Act’s other words, a graduate student may be both a student policies. and an employee; a university may be both the student’s Although the Brown University Board held that student educator and employer. By permitting the Board to de- assistants were not statutory employees, it also observed fine the scope of mandatory bargaining over “wages, that, even assuming they were, the Board would have hours, and other terms and conditions of employment,” “discretion to determine whether it would effectuate na- the Act makes it entirely possible for these different roles tional labor policy to extend collective bargaining rights” to coexist—and for genuine academic freedom to be pre- to student assistants and that, in fact, it would “not effec- served. It is no answer to suggest, as the Brown Univer- tuate the purposes and policies of the Act to do so.”55 sity Board did, that permitting student assistants to bar- We disagree not with the claim that the Board has some gain over their terms and conditions of employment (no discretion in this area,56 but with the conclusion reached more and no less) somehow poses a greater threat to aca- by the Brown University Board, including its view that demic freedom than permitting collective bargaining by “empirical evidence” is irrelevant to the inquiry.57 We non-managerial faculty members, “[b]ecause graduate have carefully considered the arguments marshaled by student assistants are students.”59 That the academic- the Board majority in Brown University (as well as the employment setting poses special issues of its own—as arguments advanced here by Columbia and supporting the Board and the Supreme Court have both recog- amici, as well as our dissenting colleague), but find that nized60—does not somehow mean that the Act cannot they do not outweigh the considerations that favor ex- properly be applied there at all. tending statutory coverage to student assistants. 2. Applying the Act to Student Assistants Would Not The claims of the Brown majority are almost entirely Infringe upon First Amendment Academic Freedom theoretical. The Brown University Board failed to The Brown University Board endorsed the view that demonstrate that collective bargaining between a univer- “collective bargaining would unduly infringe upon tradi- sity and its employed graduate students cannot coexist tional academic freedoms,” citing the “right to speak successfully with student-teacher relationships, with the freely in the classroom” and a list of “traditional academ- educational process, and with the traditional goals of ic decisions” including “course length and content, higher education. Labor law scholars have aptly criti- standards for advancement and graduation, [and] admin- cized the Brown University decision as offering “no em- istration of exams.”61 Insofar as the concept of academic pirical support” for its claims, even though “those asser- freedom implicates the First Amendment, the Board cer- tions are empirically testable.”58 tainly must take any such infringement into account.62 The National Labor Relations Act, as we have repeat- But there is little, if any, basis here to conclude that treat- edly emphasized, governs only the employee-employer ing employed graduate students as employees under the relationship. For deciding the legal and policy issues in Act would raise serious constitutional questions, much this case, then, it is not dispositive that student-teacher less violate the First Amendment. relationship involves different interests than the employ- The Supreme Court has made clear that academic ee-employer relationship; that the educational process is freedom, in the constitutional sense, involves freedom individual, while collective bargaining is focused on the from government efforts “to control or direct the content group; and that promoting equality of bargaining power is not an aim of higher education. Even conceded, all 59 342 NLRB at 490 fn. 26. 60 See NLRB v. Yeshiva University, 444 U.S. 672, 680-681 (1980), 55 342 NLRB at 492 (emphasis added). citing Syracuse University, 204 NLRB 641, 643 (1973) (permitting law 56 However, in exercising this discretion, we tread carefully and with school faculty to vote separately from other university faculty members an eye toward the Act’s purposes. In Northwestern University, 362 on questions of representation, based on divergent professional inter- NLRB No. 167 (2015), we denied the protections of the Act to certain ests). In Syracuse University, the Board observed that in the “academic college athletes—without ruling on their employee status—because, world,” the “basic interests recognized by the Act remain the same, but due to their situation within and governance by an athletic consortium their interrelationship, the employer-employee relationship, and even dominated by public universities, we found that our extending coverage the employee-employee relationship, does not squarely fit the industrial to them would not advance the purposes of the Act. Here, conversely, model.” 204 NLRB at 643. we have no reason to believe that extending bargaining rights will not 61 342 NLRB at 490, citing St. Clare’s Hospital, supra, 229 NLRB at meaningfully advance the goals of the Act. 1003. 57 342 NLRB at 492–493. 62 Cf. NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979) 58 Catherine L. Fisk & Deborah C. Malamud, The NLRB in Adminis- (declining to construe Act as authorizing Board to exercise jurisdiction trative Exile: Problems with Its Structure and Function and Sugges- over lay faculty members at church-related schools, given serious First tions for Reform, 58 Duke L. J. 2013, 2076–2077 (2009). Amendment questions potentially raised). 8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of the speech engaged in by the university or those affili- lute”68—were excluded from the Act’s coverage, as ated with it.”63 No such effort is involved here. Neither managerial employees, on that basis. But the Court also the Brown University majority, nor the parties or amici in observed that not all university faculty members will be this case, have explained how the “right to speak freely managerial employees and that “professors may not be in the classroom” (in the Brown University Board’s excluded [from statutory coverage] merely because they phrase) would be infringed by collective bargaining over determine the content of their own courses, evaluate their “terms and conditions of employment” for employed own students, and supervise their own research.”69 If the graduate students, as the Act envisions.64 Brown University Board’s broad view of academic free- Further, the Supreme Court has explained that dom were correct, then it seems highly unlikely that the “[a]lthough parties are free to bargain about any legal Yeshiva Court could have contemplated collective bar- subject, Congress has limited the mandate or duty to bargaining by university professors (as, indeed, the Board gain to matters of ‘wages, hours, and other terms and has permitted for many years70) in the face of such an conditions of employment.’”65 Defining the precise con- obvious constitutional obstacle. tours of what is a mandatory subject of bargaining for 3. Empirical Evidence and the Board’s Experience Indi- student assistants is a task that the Board can and should cate That It Is Appropriate for the Board to Exercise Ju- 66 address case by case. That approach will permit the risdiction over Student Assistants Board to consider any genuine First Amendment issues If, historically, the Board had permitted student assis- that might actually arise—in a concrete, not speculative, tants to engage in collective bargaining, and if actual context.67 experience over the years had demonstrated both that In upholding that Board’s authority to exercise juris- collective bargaining rarely proved beneficial to students diction over faculty members at private universities— and that it seriously harmed the ability of private univer- provided that they are statutory employees—the Supreme sities to function effectively, then perhaps the Board Court has implicitly rejected the view that some unde- would have had grounds for deciding that the Act cannot fined need to preserve academic freedom overrides that productively be applied in the university setting. But that policies of the Act. In Yeshiva University, supra, the is not the case, because collective bargaining by student Court found that the full-time university faculty members assistants at private universities is historically uncom- there—whose “authority in academic matters [was] abso- mon. Neither administrative experience nor empirical evidence supported the Brown University Board’s deter- 63 University of Pennsylvania v. EEOC, 493 U.S. 182, 197 (1990) (emphasis in original) (rejecting university’s First Amendment chal- mination that extending statutory protection to student lenge to EEOC investigative subpoena under Title VII, seeking materi- assistants would be detrimental to the educational pro- als related to faculty-member tenure review process alleged to be dis- cess. criminatory). It is telling, moreover, that the Brown University 64 National Labor Relations Act, §8(d), 29 U.S.C. §158(d) (“[T]o bargain collectively is the performance of the mutual obligation of the Board gave no weight at all to the analogous experience employer and the representative of the employees to meet at reasonable of public universities with collective bargaining by stu- times and confer in good faith with respect to wages, hours, and other dent assistants or to private universities’ experience with terms and conditions of employment . . . but such obligation does not faculty bargaining, subjects we turn to below. The expe- compel either party to agree to a proposal or require the making of a concession.”). rience of student assistant collective bargaining at public 65 First National Maintenance Corp. v. NLRB, 452 U.S. 666, 674– universities provides no support for the fearful predic- 675 (1981) (footnotes omitted). tions of the Brown University Board. In the words of one 66 In this situation, as with other aspects of labor law, the “‘nature of scholar, “[t]here appear to be no major disasters that have the problem, as revealed by unfolding variant situations,’ requires ‘an evolutionary process for its rational response, not a quick, definitive arisen because of [graduate-student] unions,” and exam- formula as a comprehensive answer.”’’ Eastex, Inc. v. NLRB, 437 U.S. ples of collective bargaining in practice “appear to 556, 575 (1978), quoting Electrical Workers v. NLRB, 366 U.S. 667, demonstrate that economic and academic issues on cam- 674 (1961). pus can indeed be separated.”71 67 In Associated Press v. NLRB, 301 U.S. 103, 132-133 (1937), which involved the discriminatory discharge of an editorial employee, the Supreme Court upheld Board jurisdiction over a news-gathering 68 444 U.S. at 686. organization, despite arguments that it would violate the First Amend- 69 Id. at 690, fn. 31. ment freedom of the press. The Court found that Board’s reinstatement 70 See, e.g., Bradford College, 261 NLRB 565 (1982). See also Pa- order “in nowise circumscribe[d]” the First Amendment rights of the cific Lutheran University, 361 NLRB No. 157 (2014). Associated Press, observed that the “publisher of a newspaper has no 71 Judith Wagner DeCew, Unionization in the Academy: Visions and special immunity from the application of general laws,” and rejected Realities 98 (2003). See also Josh Rinschler, Students or Employees? the contention that because “regulation in a situation not presented The Struggle over Graduate Student Unions in America’s Private Col- would be invalid,” the Board could not exercise jurisdiction at all. leges and Universities, 36 J. College & University L. 615, 639–640 COLUMBIA UNIVERSITY 9

Here, Columbia, its supporting amici, and our dissent- management defined rights concerning courses, course ing colleague defend the Brown University decision, content, course assignments, exams, class size, grading echoing the claim that permitting collective bargaining policies and methods of instruction, as well as graduate by student assistants will harm the educational process. students’ progress on their own degrees.76 This is not to These arguments are dubious on their own terms. Our suggest a prescription for how individual collective- skepticism is based on the historic flexibility of collec- bargaining agreements should resolve matters related to tive bargaining as a practice and its viability at public the protection of academic freedom and educational pre- universities where graduate student assistants are repre- rogatives. Rather, these agreements show that parties sented by labor unions and among faculty members at can and successfully have navigated delicate topics near private universities. the intersection of the university’s dual role as educator As the Brown University dissenters observed, and employer. “[c]ollective bargaining by graduate student employees is Other scholars, whose studies were cited in the Brown increasingly a fact of American university life.”72 Recent University dissent,77 confirm that view. Based on their data show that more than 64,000 graduate student em- survey-based research of public universities, they reject ployees are organized at 28 institutions of higher educa- the claim, for example, that collective bargaining will tion, a development that began at the University of Wis- harm mentoring relationships between faculty members consin at Madison in 1969 and that now encompasses and graduate students.78 More recent survey-based re- universities in California, Florida, Illinois, Iowa, Massa- search found “no support” for the contentions that gradu- chusetts, Michigan, Oregon, Pennsylvania, and Washing- ate student unionization “would harm the faculty-student ton.73 At these universities, to be sure, collective bar- relationship” or “would diminish academic freedom,” gaining is governed by state law, not by the National and observed that “[d]espite the NLRB’s focus on the Labor Relations Act.74 Even so, the experience with potential negative effects on academic outcomes, gradu- graduate-student collective bargaining in public universi- ate students themselves have likely been more concerned ties is of relevance in applying the Act, as the closest with the basic terms and conditions of employment.”79 proxy for experience under the Act.75 Although Columbia presented the testimony of an aca- By way of example, as AFT notes in its amicus brief, demic economist to address this study, its expert simply the University of Illinois, Michigan State University, and maintained that the study could not “rule out harm or Wayne State University include language in their gradu- benefit” to the faculty-student relationship from collec- ate-assistant collective-bargaining agreements giving tive bargaining. When the best analytical evidence offered by Columbia suggests merely that neither harm nor (2010) (“[E]vidence from public institutions as well as from NYU benefit from collective bargaining can be ruled out, the during the period it had a graduate student union, suggests that unioni- dire predictions of the Brown University Board are un- zation does not result in the sky falling.”). dercut. 72 342 NLRB at 493 (dissent of Members Liebman and Walsh). The dissenters cited a body of scholarly literature examining this development. Id. at fn. 1. See Neal H. Hutchens & Melisa B. Hutchens, 76 Agreement by and between the Board of Trustees of the Universi- Catching the Union Bug: Graduate Student Employees and Unioniza- ty of Illinois and Graduate Employees’ Organization IFT/AFT 6300 tion, 39 Gonzaga L. Rev. 105, 106–107 (2004); Daniel J. Julius & (August 16, 2012—August 15, 2017), available at Patricia J. Gumport, Graduate Student Unionization: Catalysts and http://www.ahr.illinois.edu/geo.pdf; Collective Bargaining Agreement Consequences, 26 Review of Higher Education 187, 191–196 (2002); between Michigan State University and The Graduate Employees Un- Grant M. Hayden, “The University Works Because We Do”: Collective ion, Local 6196, AFT-Michigan/AFL–CIO (May 2015—May 2019), Bargaining Rights for Graduate Assistants, 69 Fordham L. Rev. 1233, available at https://www.hr.msu.edu/documents/contracts/GEU2015- 1236–1243 (2001). See also DeCew, supra, Unionization in the Acad- 2019.pdf; Collective Bargaining Agreement between Wayne State emy at 89-110. University and The Graduate Employees Organizing 73 J. Berry & M. Savarese, Directory of U.S. Faculty Contracts and Committee, AFT (May 2015—February 2018), available at Bargaining Agents in Institutions of Higher Education (2012). See also http://provost.wayne.edu/pdf/geoc_contract_2015–2018_w_toc.pdf. Daniel J. Julius & Nicholas DiGiovanni, Jr., Academic Collective Bar- 77 342 NLRB at 499-500. gaining: On Campus Fifty Years, Center for Studies in Higher Educa- 78 Julius & Gumport, supra, Graduate Student Unionization: Cata- tion, Research & Occasional Paper Series: CSHE 4.13 at 5 (April lysts and Consequences, 26 Review of Higher Education at 201, 209; 2013), available at www.cshe.berkeley.edu/publications. Gordon J. Hewitt, Graduate Student Employee Collective Bargaining 74 Sec. 2(2) of the Act excludes “any State or political subdivision and the Educational Relationship between Faculty and Graduate Stu- thereof” from the definition of “employer.” 29 U.S.C. §152(2). dents, 29 J. Collective Negotiations in the Public Sector 153, 159–164 75 Cf. Management Training Corp., 317 NLRB 1355, 1357 (1995) (2000). (holding that Board will exercise jurisdiction over employers without 79 Sean E. Rogers, Adrienne E. Eaton, and Paula B. Voos, Effects of considering extent of their control over purely economic terms and Unionization on Graduate Student Employees: Faculty-Student Rela- conditions of employment and citing “successful and effective bargain- tions, Academic Freedom, and Pay, 66 Industrial & Labor Relations ing” in public sector “where economic benefits play a small role”). Rev. 487, 507 (2013). 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Columbia and supporting amici point to a few individ- The notion that the parties themselves can resolve, ual examples arising from the 28 public universities and through the bargaining process, many of the latent con- 64,000 represented public university student assistants, flicts suggested by Columbia and amici (as well as by along with NYU on the private side, in which, they con- our dissenting colleague)—and hence forge successful tend, collective bargaining by student assistants has bargaining relationships—is not a theoretical one. The proven detrimental to the pursuit of the school’s educa- experience at New York University is a case in point. tional goals. They note the occurrences of strikes and Even after Brown University issued, NYU continued— grievances over teaching workload and tuition waivers. after a brief interruption—to voluntarily recognize its Similarly, they point to grievances over classroom as- graduate assistants union and successfully negotiated signments and eligibility criteria for assistantships. But collective-bargaining agreements with that union. labor disputes are a fact of economic life—and the Act is Both the original and successor agreements at NYU intended to address them. addressed such matters as stipends, pay periods, disci- Columbia and its supporting amici suggest that collec- pline and discharge, job posting, a grievance-and- tive-bargaining demands would interfere with academic arbitration procedure, and health insurance—nearly all decisions involving class size, time, length, and location, familiar mandatory subjects of bargaining across the pri- as well as decisions concerning the formatting of exams. vate sector, which appear to have been successfully They also worry that disputes over whether bargaining is adapted to a university setting.83 The agreements also required for such issues may lead to protracted litigation incorporate a “management and academic rights” clause, over the parties’ rights and obligations as to a given is- which would tend to allay fears that collective bargaining sue, for example, over the propriety of a university’s will attempt to dictate academic matters. 84 In the most change in class or exam format, thus burdening the time- recent agreement, in effect from September 1, 2014, to sensitive educational process. However, to a large ex- August 31, 2020, the clause preserved the university’s tent, the Board’s demarcation of what is a mandatory right to “determine . . . qualifications . . . and assignment subject of bargaining for student assistants, and what is of graduate employees; to determine the processes and not, would ultimately resolve these potential problems.80 criteria by which graduate employees’ performance is Moreover, there is no good reason to doubt that unions evaluated; . . . to schedule hours of work; . . . to deter- and universities will be able to negotiate contract lan- mine how and when and by whom instruction is deliv- guage to delineate mutually satisfactory boundaries of ered; . . . to introduce new methods of instruction; . . . their respective rights and obligations.81 Indeed, faculty and to exercise sole authority on all decisions involving members have successfully negotiated collective- bargaining agreements that address terms and conditions on Academic Freedom and Tenure, available at of employment at private universities while contractually https://www.aaup.org/file/1940%20Statement.pdf. ensuring academic freedom for decades.82 83 The evidence all seems to suggest that the bread-and-butter economic concerns reflected in the NYU collective-bargaining agreement are what drive American graduate students to seek union representa- 80 Indeed, decisions concerning management’s right to control its tion. See, e.g., Julius & Gumport, supra, Graduate Student Unioniza- fundamental operations and to produce a product of its choosing are tion: Catalysts and Consequences, 26 Review of Higher Education at issues of concern to manufacturing employers as well. Collective bar- 196 (“[D]ata show that the unionization of these individuals is driven gaining does not limit such a management right normally, unless the fundamentally by economic realities.”); Gerrilynn Falasco & William J. parties consent to it. See First National Maintenance v. NLRB, 452 Jackson, The Graduate Assistant Labor Movement, NYU and Its After- U.S. 666, 677–679 (1981). However, in a common feature of collective math: A Study of the Attitudes of Graduate Teaching and Research bargaining across economic sectors, employers must, and do, routinely Assistants at Seven Universities, 21 Hofstra Labor & Employment L. J. address incidental operational impacts based on their agreements with 753, 800 (2004) (“Overwhelmingly, the respondents from the seven unions. For example, an employer chooses the amount and type of universities surveyed indicated that the most important issues to them product it produces, but an employer must bargain about employees’ were wages and health insurance”). hours of work and must operate within whatever work-hours constraint 84 Collective-Bargaining Agreements between NYU and Internation- it agrees to. al Union, UAW, AFL-CIO and Local 2110, Technical Office and Pro- 81 Notably, the NYU graduate assistants union, voluntarily recog- fessional Workers, UAW, Sept. 1, 2001-Aug. 31, 2005, and Sept. 1, nized by that university after the Board overruled its NYU decision, has 2014-Aug. 31, 2020, Art. XXII. See Brown University, supra, 342 given the university control over academic matters in the parties’ col- NLRB at 499 (dissent) (discussing agreement). The cited clause would lective-bargaining agreement. seem to confirm the view of one scholar that the “historical develop- 82 As AAUP notes in its amicus brief, many of its unionized faculty ment of professional norms of academic freedom creates a strong po- chapters’ collective-bargaining agreements expressly refer to and quote tential for faculty and GAs [employed graduate students] to find com- the AAUP’s 1940 Statement of Principles on Academic Freedom and mon interests in carrying out the core functions of the university.” Risa Tenure, which provides a framework that has proven mutually agreea- L. Lieberwitz, Faculty in the Corporate University: Professional Iden- ble to many unions and universities. See 1940 Statement of Principles tity, Law and Collective Action, 16 Cornell J. L. & Public Policy 263, 326 (2007) (discussing events at Cornell). COLUMBIA UNIVERSITY 11 academic matters . . . decisions regarding who is taught, nation of assistantship positions. However, bargaining what is taught, how it is taught and who does the teach- over staffing levels is a core concern of employees, and ing.” 85 standard fare for collective bargaining. Fulfilling one’s Moreover, to the extent disputes nonetheless do arise, obligation to bargain about job loss or staffing levels, or the process of resolving such disputes over the bounda- the effects thereof, has not proven unduly burdensome to ries of parties’ rights and obligations is common to near- countless other unionized workplaces.88 Similarly, Co- ly all collective-bargaining contexts in which manage- lumbia and amici, as well as our dissenting colleague, ment seeks to act in some way it believes is important to also raise the specter of strikes (and lockouts), and the its business, including critical sectors such as national impact they might have on the educational trajectory of security and national defense. Not long after Brown students and on their considerable investment in their University was decided, for example, the Board observed education; but the problems raised by strikes are com- that “for over 60 years, in times of both war and peace, mon to nearly all industries in which the Board accords the Board has asserted jurisdiction over employers and employees bargaining rights.89 employees that have been involved in national security Moreover, we cannot give credence to the dissent’s and defense,” and that the Board could “find no case in speculation that, among other things, the provisions of which our protection of employees’ Section 7 rights had the Act might negatively interfere with university confi- an adverse impact on national security or defense.”86 dentiality practices or standards of decorum, for example Similarly, in the acute care hospital sector, the Boston by authorizing abusive language by student assistants Medical Center Board, supra, recognized house staff at directed against faculty. The Act’s provisions pertaining teaching hospitals as statutory employees, and the to document production and the boundaries of protected Board’s experience since that decision has provided no conduct are, and always have been, contextual. The support for one dissenting member’s prediction that Board evaluates such claims in light of workplace stand- “American graduate medical education [would] be irrep- ards and other relevant rules and practices. arably harmed”87 if the Board asserted jurisdiction over Moreover, while focusing on a few discrete problems house staff. that may arise in bargaining—without considering the These critical sectors have proven able to effectively likelihood that they would both actually occur and not be integrate collective bargaining, with its occasional dis- amenable to resolution by bargaining partners acting in putes and attendant delays, into their modes of doing good faith—Columbia and amici neglect to weigh the business. We have no reason to doubt that the higher- education sector cannot do the same. Indeed, some of 88 See, e.g., St. Anthony Hospital Systems, 319 NLRB 46, 47 & 50 the practical concerns raised by Columbia and amici (1995) (discussing a hospital’s duty to bargain with nurses’ union over seem to be generic complaints about the statutory re- staffing levels). 89Strikes may affect the operations of an employer—especially in in- quirements inherent in a collective-bargaining relation- dustries where the provision of goods and services may be time- ship, rather than education-specific concerns. For exam- sensitive. However, these already include many sectors where collec- ple, it is posed as problematic by amici that a university tive bargaining has long been a staple of workplace life, such as those may have to bargain, at least as to effect, over the elimi- involving caring for hospital patients, maintaining critical infrastruc- ture, publishing newspapers, unloading billions of dollars in overseas freight, and teaching students in college or pre-college settings (as in 85 We recognize that part of the ostensible reason NYU decided to the case of unionized faculty in private schools). In all of these situa- withdraw recognition from its union of student assistants was the rec- tions, strikes pose the possibility of a disruption with significant costs, ommendations of two university committees, which cited the union’s given the value and/or time-sensitivity of the goods and services in- filing of grievances that were perceived as threatening to undercut volved. Yet, the Act permits collective bargaining in these sectors; and NYU’s academic decisionmaking. We need not decide whether this indeed, employers have incorporated the risks of economic conflict into perception was accurate or whether it would hold true over time and at their negotiation strategies and modes of doing business. The Board’s other universities where student assistants organized. That employees experience demonstrates that parties grasp the seriousness of recourse may invoke their Sec. 7 rights to a greater or lesser degree has no bear- to economic weapons, and do not do so lightly or without the convic- ing on whether the Act should be interpreted to grant them those rights. tion that their position is worth fighting for. There is no reason to set We note, in any case, that the NYU collective-bargaining relationship universities apart, where the Act otherwise points toward coverage. was new, that the collective-bargaining agreement was untested, and Our dissenting colleague points to the potential for unique conse- that ultimately the university appears to have prevailed in grievance- quences to student assistants in the event of a work stoppage, such as arbitration proceedings in its assertion of its academic prerogatives. loss of academic credit and tuition waivers. As we have noted, the Act 86 Firstline Transportation Security, 347 NLRB 447, 453 (2006) (re- permits collective bargaining—and permits parties to decide for them- jecting argument that Board should decline to assert jurisdiction over selves what risks to take—even where there is a potential for economic privately-employed airport security screeners, on national-security disruption. However, to the extent a work stoppage cannot be avoided, grounds). parties will frequently resolve a strike or lockout on terms that address 87 Boston Medical Center, supra, 330 NLRB at 182. questions pertaining to vested rights and other such matters that arose because of the work stoppage. 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD possibility of any benefits that flow from collective bar- the Act, there may be significant turnover or other gaining, such as those envisioned by Congress when it changes involving affected employees. It goes without adopted the Act. In this connection, it is worth noting saying that the resolution of cases under the Act, both that student assistants, in the absence of access to the representation and unfair labor practice cases, before the Act’s representation procedures and in the face of rising Board and the courts can be time-consuming. However, financial pressures, have been said to be “fervently lob- this is simply not a basis on which to deny the Act’s pro- bying their respective schools for better benefits and in- tections to student assistants. The alternative—to deny creased representation.”90 The eagerness of at least some coverage because of the effects of procedural delays— student assistants to engage in bargaining suggests that would seem to countenance the denial of the Act’s cov- the traditional model of relations between university and erage to large groups of employees whose tenures are student assistants is insufficiently responsive to student short or industries where there is a rapid pace of assistants’ needs. That is not to say collective bargaining change.92 will necessarily be a panacea for such discontent, but it In sum, there is no compelling reason—in theory or in further favors coverage by the Act, which was designed practice—to conclude that collective bargaining by stu- to ameliorate labor unrest.91 dent assistants cannot be viable or that it would seriously Finally, we disagree with the suggestion of our dissent- interfere with higher education. We have put supposi- ing colleague that the Act’s procedures are ill suited here, tions aside today and have instead carefully considered because student assistants have finite terms and because the text of the Act as interpreted by the Supreme Court, the academic world may experience a fast pace of devel- the Act’s clearly stated policies, the experience of the opment in fields of study, and thus because, in the time it Board, and the relevant empirical evidence drawn from takes for the Board to resolve a question arising under collective bargaining in the university setting. This is not a case, of course, where the Board must accommodate 90 David Ludwig, Why Graduate Students of America Are Uniting, the National Labor Relations Act with some other federal The Atlantic, available at statute related to private universities that might weigh http://www.theatlantic.com/education/archive/2015/04/graduate- against permitting student assistants to seek union repre- students-of-the-world-unite/390261/. See also Rachel Bernstein, Ivy League Graduate Students Push for Unionization, Science, available at sentation and engage in collective bargaining. Finding http://www.sciencemag.org/careers/2015/04/ivy-league-graduate- student assistants to be statutory employees, and permit- students-push-unionization (“Graduate students’ concerns include inadequate health insurance, high prices for dependent coverage on 92 In cases involving seasonal workplaces or those with significant student health insurance policies, and insufficient child care and family turnover, the Board has held elections even though, when there have leave support.”). Indeed, some scholarship suggests that universities been employer challenges, bargaining may not begin until well after the are actively seeking to derive greater profit from instructional and election. In this connection, the Board generally presumes that new research activities, and to lower their teaching costs. Such endeavors— employees support the union in the same proportion as those who vot- to lower labor costs to increase profit—are hallmarks of the sort of ed. See generally NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. economic dynamic in which, historically, employees’ bargaining rights 775, 779 (1990). Otherwise, it would be difficult for employees in any have played an important countervailing role. See generally The Cor- workplace with high turnover to ever achieve representation, because poratization of Higher Education, 39 Monitor on Psychology 50 the nature of administrative adjudication, as well as the provision of (2008), available at http://www.apa.org/monitor/2008/12/higher- due process to an employer’s challenges to certification may delay a ed.aspx. final ruling on certification. Conversely, when an employer's operation 91 Indeed, it is important to note the policy judgment embodied in the is seasonal in nature or otherwise involves peaks and valleys in em- Act: that collective bargaining can help avert workplace unrest that ployment, the Board retains the discretion to adjust the election date to may occur in the absence of a process for employees to choose repre- ensure that a representative group of employees will be able to express sentation, bargain collectively, and resolve disputes peacefully. See their choice concerning representation. See, e.g., Tusculum College, NLRB v. Insurance Agents’ International Union, 361 U.S. 477, 488 199 NLRB 28, 33 (1972) (adjusting date of election to the beginning of (1960) (good-faith bargaining “may narrow the issues, making the real the fall semester to ensure that a representative complement of the demands of the parties clearer to each other, and perhaps to themselves, petitioned-for faculty would have an opportunity to express their wish- and may encourage an attitude of settlement through give and take.”). es). The Act is designed to lessen conflict by channeling disputes into struc- In unfair labor practice cases, remedies are commonly applied after tured negotiations and reflects the judgment of Congress that collective affected individuals have ceased working for an employer. But reme- bargaining, with its occasional attendant workplace conflicts such as dies are tailored to address the violation of the Act relative to the con- strikes and lockouts, is a right to be accorded broadly and across many text in which they are applied. Backpay or other monetary remedies industries. may still be appropriate even after an individual is no longer in an It is noteworthy that at NYU, graduate assistants struck after the employment relationship with a respondent. Other remedies, such as in Board reversed its NYU decision and the school withdrew recognition a bad-faith bargaining case, involve the unit as a whole, and thus may from their union. Without the protection of the Act, student assistants be implemented in the future, notwithstanding the turnover of individu- lacked recourse to the orderly channels of bargaining and instead chose al employees. Notice-posting requirements ensure that future comple- to resort to more a disruptive means of resolving their dispute with the ments of employees are aware of any violations and provide assurances University. that the violations will not continue in the future. COLUMBIA UNIVERSITY 13 ting them to seek union representation, does not conflict III. APPLICATION TO THIS CASE with any federal statute related to private universities, as We now apply our holding to the facts of this case. far as we can discern. Certainly the Brown University For the reasons that follow, we conclude (1) that all of Board cited no statutory conflict, nor have the parties and the petitioned-for student-assistant classifications consist 93 amici in this case. Our conclusion is that affording of statutory employees; (2) that the petitioned-for bar- student assistants the right to engage in collective bargaining unit (comprising graduate students, terminal gaining will further the policies of the Act, without en- Master’s degree students, and undergraduate students) is gendering any cognizable, countervailing harm to private an appropriate unit; and (3) that none of the petitioned- higher education. for classifications consists of temporary employees who Accordingly, we overrule Brown University and hold must be excluded from the unit by virtue of the limited that student assistants who have a common-law employ- length of their employment. ment relationship with their university are statutory em- A. Statement of Facts ployees entitled to the protections of the Act. Columbia is a nonprofit postsecondary educational in- 93 Where a party does not actually raise a supposed conflict between stitution located in New York City. Columbia’s major the Act and another federal statute, the Board is not required to consid- sources of annual revenue include tuition (net revenue of er the issue. Can-Am Plumbing, Inc., 350 NLRB 947, 947–948 (2007). $940 million in 2015, nearly a quarter of operating reve- For his part, our dissenting colleague takes us to task for failing to nue) and government contracts and grants ($750 mil- accommodate the Act with the “broad range of federal statutes and 94 regulations [that] apply to colleges and universities,” which “govern, lion). among other things, the accreditation of colleges and universities, the Graduate students at Columbia are selected by the fac- enhancement of quality, the treatment of student assistance, gradu- ulty of the academic departments into which they are ate/postsecondary improvement programs, and the privacy of student accepted on the basis of academic performance, as records.” But our colleague does not explain how any one of these education statutes and regulations bears on the specific issue posed in demonstrated by educational background and standard- this case or how the Board should accommodate the Act to them—short ized test scores. In general, Ph.D. candidates spend five of not applying our statute at all to student assistants. That alternative, to nine years of study within their discipline, during of course, is disfavored, unless a conflict between two federal statutes which they take coursework, as well as prepare a doctor- is truly irreconcilable. See Lewis v. Epic Systems Corp., 823 F.3d 1147, 1157 (7th Cir. 2016) (rejecting asserted conflict between NLRA al thesis, that the candidates develop with guidance of and Federal Arbitration Act). There is no such conflict here, as we faculty or in connection with their laboratory work. Dur- have already explained. See fn. 50, supra. ing their enrollment, candidates are subject to various That an industry or economic sector is governed in certain respects academic requirements, including timely progress toward by other federal laws, in addition to being covered by the NLRA, cannot mean that the Board must determine, in the abstract, whether the a thesis and proficiency in coursework. Most Ph.D. can- general policies of those other laws might be better accomplished if the didates are required to take on teaching duties for at least Act did not apply, notwithstanding the absence of any exemption from one semester as part of their academic requirements, alt- coverage in the statutory text or the legislative history. It is far too late hough many departments require additional semesters of in the day—45 years after the Board’s decision in Cornell University, 95 supra—to argue that the Act cannot safely be applied to private univer- teaching as a condition for obtaining a degree. sities. The supposed conflicts our colleague conjures would seem to Columbia fully funds most Ph.D. student assistants, arise, for example, in cases where the Board applies the Act to universi- typically providing tuition and a stipend, for at least their ty faculty members, but there is no suggestion in our case law that an actual conflict has ever arisen (or even been raised by a university employer). 94 See Consolidated Financial Statements, The Trustees of Columbia Our colleague identifies one specific, potential conflict between the University in the City of New York, available at NLRA and federal education law related to the disclosure of education- http://finance.columbia.edu/files/gateway/content/reports/financials201 al records, where Sec. 8(a)(5) of the Act, which grants unions the right 5.pdf. Tuition and government grants are the second and third largest to information necessary for carrying out their collective-bargaining revenue streams. Columbia, which operates a hospital, earned the most duties, conceivably could require a disclosure that the Family Educa- revenue, approximately $1 billion, from patient care. tional Rights and Privacy Act (FERPA) might otherwise prohibit. Any A substantial portion of the tuition revenue comes from students in such conflict can and should be addressed in the particular factual set- graduate and professional programs, including law and business. How- ting in which it arises. Suffice it to say that the Act recognizes that a ever, the approximately 8500 undergraduates at Columbia, paying union’s right to information may, in a particular context, be subordinat- approximately $25,000 in base tuition per semester, generate about ed to a legitimate confidentiality interest. See, e.g., Olean General $376 million in tuition revenue, of which only $148 million is offset by Hospital, 363 NLRB No. 62, slip op. at 7–8 (2015) (considering state grant aid from Columbia. See Columbia University, Institutional Grant laws protecting patient confidentiality). See generally Detroit Edison Aid by School, 2014–2015, available at Co. v. NLRB, 440 U.S. 301 (1979). http://www.columbia.edu/cu/opir/abstract/opir_institutional_grant_aid_ 1.htm. 95 There is some variation as to the specifics of degree program requirements and the nature of student assistant duties across schools and programs at Columbia. 14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD first 5 years of study. In most students’ second through undergraduates in their junior or senior years. Under- fourth year, taking on teaching or research duties is a graduates serve in the Teaching Assistant III classifica- condition for full receipt of such funding. For most tion. They are responsible for grading homework and Ph.D. candidates, the first and fifth years are funded running laboratory or problem sections that are ancillary without a condition of service. In students’ sixth year to large classes within the School of General Studies and and beyond, teaching-based support may be available. Columbia College. Research-based financial support, unlike teaching sup- The category of Instructional Officers also includes port, frequently comes in whole or in part from sources classifications of Preceptors and Readers (sometimes outside the University. Grants from government or other referred to as “Graders”). Preceptors are graduate assis- outside entities, generally to support a specified research tants who teach significant undergraduate courses with task, often cover research assistants’ financial awards. high levels of independence. These positions are gener- However, the University will make up any shortfall if ally available only to graduate students far along in their outside grants provide a level of funding that falls below studies because they require the highest level of teaching the standard graduate funding package. ability. Preceptors hold office hours, design and grade Terminal Master’s degree students (as opposed to all exams and assignments in their courses, and assign those who earn the degree as an intermediate step toward final grades to their students. Readers/Graders are Mas- earning a Ph.D.) typically earn their degrees in shorter ter’s degree students who are appointed to grade papers time periods and do not prepare a thesis. They receive under the direction of a course instructor. Finally, very little financial aid, although some take on teaching Course Assistants, who are not Instructional Officers and duties for which they receive compensation. do not receive semester-long appointments, assist faculty The nature of teaching duties for a teaching assis- with administering classes by performing clerical tasks tantship varies. Columbia’s teaching assistants, known that may include proctoring exams, printing and collect- as Instructional Officers, fall into various subsidiary cat- ing homework, answering students’ questions, and occa- egories, which involve varying levels of discretion and sionally grading assignments. involvement in course design. Undergraduate, Master’s Research Officers generally participate in research degree, and Ph.D. student assistants can all serve in funded by outside entities. The research grants specify teaching assistant roles, with some similarities in their the nature of the research and the duties of the individu- duties, although Ph.D. teaching assistants may take on als working on the grant. The revenue from the grant the most advanced duties. Notably, some Instructional beyond the amounts allotted to research assistantships Officers teach components of the core curriculum, which goes to Columbia’s general operating expenses. Gradu- is Columbia’s signature course requirement for all un- ate Research Assistants in Ph.D. programs must both dergraduate students regardless of major. Instructional comply with the duties specified by the grant and simul- Officers generally work up to 20 hours per week, and taneously carry out research that they will ultimately they are typically appointed for one or two semesters at a present as part of their thesis.96 Departmental Research time. Assistants, by contrast, are Master’s degree students and Instructional Officers include the specific classifica- are appointed and funded by the University and provide tions of Teaching Fellows and Teaching Assistants. research assistance to a particular department or school Teaching Fellows are doctoral students in the Graduate within the University. School of Arts and Sciences, while Teaching Assistants Teaching and research occur with the guidance of a may be either doctoral or Master’s degree students and faculty member or under the direction of an academic perform similar functions outside the Graduate School of department. In the teaching context, poor performance Arts and Sciences. Teaching Fellows and Teaching As- by an instructional officer is addressed through remedial sistants spend 15–20 hours a week undertaking a wide training, although in one instance poor performance re- range of duties with respect to a course. Their duties sulted in the University’s removal of a student’s teaching may include grading papers and holding office hours, duties, and the cancellation of his stipend. leading discussion or laboratory sessions, or assuming B. Application of the Revised Section 2(3) Analysis most or all the teaching responsibilities for a given For the reasons that follow, we conclude that the peti- course. Columbia maintains other, specialized teaching- tioned-for student-assistant classifications in this case97 assistant funding as well. Instructional officers who participate in the Teaching Scholars Program, a category 96 Training grant recipients are subject to slightly different condi- that includes Ph.D. students who are somewhat advanced tions, and are discussed below. in their studies, teach courses that they have designed for 97 As reflected in its petition, the Union here seeks to represent: COLUMBIA UNIVERSITY 15 comprise statutory employees: individuals with a com- Here, the University directs and oversees student assis- mon-law employment relationship with Columbia Uni- tants’ teaching activities. Indeed, the University pos- versity. At the hearing before the Regional Director, sesses a significant interest in maintaining such control, Columbia seemingly conceded98 that, if the Board were as the student assistants’ work advances a key business to adopt the common-law test, the petitioned-for individ- operation of the University: the education of undergrad- uals—with the exception of students operating under uate students. The record shows that teaching assistants training grants—were employees under the Act. In its who do not adequately perform their duties to the Uni- brief to the Board on review, however, Columbia argues versity’s satisfaction are subject to corrective counseling that research assistants are not common-law employees, or removal. citing the Board’s decision in Leland Stanford, supra. Instructional officers receive compensation in ex- With respect to teaching assistants, Columbia confines change for providing services to the University. Receipt itself to arguing that the common-law test should not be of a full financial award is conditioned upon their per- the standard of statutory employment (a position we have formance of teaching duties. When they do not perform rejected). Below, we begin by examining the common- their assigned instructional duties, the record indicates law employment status of Columbia’s student assistants they will not be paid. For instance, after one assistant, generally. We then address arguments specific to the Longxi Zhao, was removed from his teaching assis- status of Columbia’s research assistants and overrule tantship, his stipend was cancelled. In his termination Leland Stanford because its reasoning cannot be recon- letter, the University indicated that, “[T]his termination ciled with the general approach we adopt today. is effective immediately. As a result, you will no longer 1. Instructional Officers99 receive a salary for this position.” This letter, in connection with the explicit conditioning of awards on perfor- Common-law employment, as noted above, generally mance of teaching duties, demonstrates that the Universi- requires that the employer have the right to control the ty offers student assistants stipends as consideration for employee’s work, and that the work be performed in ex- fulfilling their duties to perform instructional services on change for compensation.100 That is the case here. the University’s behalf. Although the payments to Ph.D. student assistants may All student employees who provide instructional services, including be standardized to match fellowship or other non-work graduate and undergraduate Teaching Assistants (Teaching Assistants, based aid, these payments are not merely financial aid. Teaching Fellows, Preceptors, Course Assistants, Readers and Grad- ers): All Graduate Research Assistants (including those compensated Students are required to work as a condition of receiving through Training Grants) and All Departmental Research Assistants this tuition assistance during semesters when they take employed by the Employer at all of its facilities, including Morning- on instructional duties, and such duties confer a financial side Heights, Health Sciences, Lamont-Doherty and Nevis facilities. benefit on Columbia to offset its costs of financial aid, 98 At the hearing, Columbia’s counsel stated, “If the Board finds that even if it chooses to distribute the benefit in such a way students who provide services to their institutions are employees based on common law test of employment, if you will, then our position that equalizes financial aid for both assistants and non- would be that the graduate research assistants and the teach- assistant students. Indeed, in semesters where a student ing assistants would be considered employees and part of an appropri- assistant would normally be required to work as a condi- ate bargaining unit, but that the students on training grants are simply tion of funding, he or she may opt not to work only if he not employees because they’re not employed in a University position, that they’re simply supported by the Government to be students and or she finds a source of outside fellowship aid. Also, the they don’t provide a service to the University.” stipend portion of the financial package given to assis- 99 This category encompasses the Teaching Assistants, Teaching Fel- tants is generally treated as part of university payroll and lows, Preceptors, and Readers/Graders named in the petition. Course is subject to W-2 reporting and I-9 employment verifica- assistants, a classification named in the petition, do not appear to be Instructional Officers and are not appointed on a semester-long basis. tion requirements. The increments of their employment—they may work in less-than- Even though it is unnecessary to delve into the ques- semester-long intervals—may raise questions about their eligibility. tion of whether the relationship between student assis- However, we leave such determinations to the Regional Director in tants and their universities is primarily economic or edu- determining an eligibility formula (as we discuss, infra) in the first instance. cational—we have overruled the Brown University 100 See, e.g., Seattle Opera, supra, 292 F.3d at 762 (“[T]he person standard—the facts in this case do not suggest a primari- asserting statutory employee status [under the Act] does have such ly educational relationship, but rather, simply point to the status if (1) he works for a statutory employer in return for financial or other compensation … and (2) the statutory employer has the power or right to control and direct the person in the material details of how such compensates student assistants for performing services that benefit the work is to be performed.”) (emphasis in original). Accord Restatement institution . . . such compensation encourages the student to do the of Employment Law §1.02 (2015) (“Where an educational institution work for more than educational benefits and thereby establishes an employment as well as an educational relationship”). 16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD difficulty of the analytical exercise required by the prior And, the fact that teaching may be a degree require- approach. ment in many academic programs does not diminish the While overlooked by the Brown University Board, importance of having students assist in the business of there is undoubtedly a significant economic component universities by providing instructional services for which to the relationship between universities, like Columbia, undergraduate students pay tuition.104 Indeed, the fact and their student assistants. On average, private nonprof- that teaching assistants are thrust wholesale into many of it colleges and universities generate a third of their reve- the core duties of teaching—planning and giving lec- nue from tuition, and 13 percent from government grants, tures, writing exams, etc., including for such critical contracts and appropriations.101 Columbia, for example, courses as Columbia’s Core Curriculum—suggests that generates nearly a billion dollars in annual tuition reve- the purpose extends beyond the mere desire to help in- nue and over a half-million in government grants and culcate teaching skills. contracts.102 We have no difficulty, then, in finding that all of the Teaching assistants frequently take on a role akin to petitioned-for classifications here comprise statutory that of faculty, the traditional purveyors of a university’s employees—with the possible exception of research as- instructional output. The teaching assistants conduct sistants. That issue, as we explain next, is more compli- lectures, grade exams, and lead discussions. Significant cated in light of Board precedent. portions of the overall teaching duties conducted by uni- 2. Student Research Assistants versities are conducted by student assistants. The dele- As indicated, Columbia argues that student research gation of the task of instructing undergraduates, one of a assistants have no common-law employment relationship university’s most important revenue-producing activities, with the University. It relies on Leland Stanford’s de- certainly suggests that the student assistants’ relationship termination that certain externally-funded research assis- to the University has a salient economic character. tants were not employees.105 That holding was later ap- While Columbia’s pool of student assistants consists of plied by the NYU Board in finding that some research enrolled students who were selected based on the Uni- assistants in that case were not statutory employees, even versity’s academic admissions process, this fact is not as it reversed the overall exclusion of student assistants inconsistent with an economic relationship. Students from the Act’s protections.106 Applying our holding to- pre-selected for their academic proficiency would natu- day regarding the employment status of student assis- rally tend to constitute a labor pool geared toward the tants, we find that core elements of the reasoning in Le- endeavor of teaching or researching in a university set- land Stanford are no longer tenable. We further find ting, and their usage as instructors and researchers that, under the common-law test discussed in our deci- achieves the efficiency of avoiding a traditional hiring sion today, research assistants at Columbia are employ- process for these jobs.103 ees under the Act. In Leland Stanford, the student research assistants re- 101 See National Center for Education Statistics, Postsecondary Rev- enues by Source, available at ceived external funding to cover their tuition while they http://nces.ed.gov/programs/coe/pdf/Indicator_CUD/coe_cud_2015_06. essentially went about pursuing their own individual ac- pdf. 102 See Consolidated Financial Statements, The Trustees of Colum- student assistants are more costly to a university than an employee bia University in the City of New York, available at hired in the free market is not self-evidently true. http://finance.columbia.edu/files/gateway/content/reports/ finan- 104 As the American Association of University Professors, an organi- cials2015.pdf. 103 zation that represents professional faculty—the very careers that many The claim that universities could more inexpensively hire adjunct graduate students aspire to—states in its brief, teaching abilities ac- faculty to perform the duties also does not establish that the relationship quired through teaching assistantships are of relatively slight benefit in is primarily educational. Indeed, it is unclear that using students in the attainment of a career in higher education. While the evidence does these roles is more costly to a university. As previously noted, a uni- suggest that graduate research assistantships dovetail more strongly versity that makes use of an existing pool of student labor garners the with the career/educational goals of graduate students than teaching efficiency benefit of avoiding costly labor searches. Moreover, the assistantships, it is by no means clear that education overshadows eco- financial packages offered to graduate students are dictated in part by nomics in the case of research assistants either. the need to be competitive with other schools also seeking to attract top 105 Supra, 214 NLRB at 623. graduate students. Although it may pay student assistants more com- 106 See NYU, supra, 332 NLRB at 1209 fn.10, citing Leland Stan- pensation than it would need to pay to attract an employee hired on the ford, supra (“[W]e agree that the Sackler graduate assistants and the open market, a university also receives the benefit of making itself few science department research assistants funded by external grants more attractive in recruiting graduate students. Compensation to a are properly excluded from the unit [because] [t]he evidence fails to student assistant is offset, then, by the benefits of hiring students. Thus, establish that the research assistants perform a service for the Employer because it fails to account for all the benefits that accrue to a university and, therefore, they are not employees as defined in Section 2(3) of the by using its graduate students to fill assistantships, the argument that Act.”). COLUMBIA UNIVERSITY 17 ademic goals in a manner of their own choosing. They ship existed, we now overrule it, alongside Brown Uni- were not subject to discharge for failure to perform satis- versity, as inconsistent with the approach adopted today, factory work, but would at worst receive a non-passing which better reflects the language and policies of the grade for their coursework. Further, the Board conclud- Act.109 ed, the award the research assistants received was not The premise of Columbia’s argument concerning the correlated to the nature or quantum of services they ren- status of its research assistants is that because their work dered. The Board also contrasted the student research simultaneously serves both their own educational inter- assistants with non-student research associates who were ests along with the interests of the University, they are employees. The student researchers received none of the not employees under Leland Stanford. To the extent fringe benefits that these non-student employee research Columbia’s characterization of Leland Stanford is cor- associates received. And these non-student research as- rect, we have now overruled that decision. We have re- sociates already had their academic degrees, were under jected an inquiry into whether an employment relation- the direction of their department, and were subject to ship is secondary to or coextensive with an educational discharge. relationship. For this reason, the fact that a research as- In view of these facts, the Stanford Board found that sistant’s work might advance his own educational inter- the externally-funded research assistants were “primarily ests as well as the University’s interests is not a barrier to students,” and concluded that their relationship with the finding statutory-employee status.110 university was not one of employment because it was Nonetheless, it remains the case that if a student re- “not grounded on the performance of a specific task search assistant is not an employee under the common- where both the task and the time of its performance is law test, we would not normally find the assistant to be designated and controlled by an employer [but] [r]ather it an employee under the Act. But there is nothing about is a situation of students within certain academic guide- the nature of student-assistant research that would auto- lines having chosen particular projects on which to spend matically imply an absence of the requisite control under the time necessary.”107 the common-law test. It is theoretically possible that Leland Stanford thus, in many respects, focused upon funders may wish to further a student’s education by the absence of the common-law features of employment effectively giving the student unconditional scholarship of the externally-funded research assistants. It contrasted aid, and allowing the student to pursue educational goals the research assistants with non-student, employee re- without regard to achieving any of the funder’s own par- search associates who worked under the direction of their ticular research goals. But where a university exerts the department, and it noted that the work performed by the requisite control over the research assistant’s work, and externally-funded research assistants was largely done at specific work is performed as a condition of receiving the students’ own discretion and for their own benefit. It the financial award, a research assistant is properly treat- also observed that these student research assistants could ed as an employee under the Act. not be disciplined in a traditional sense. Their researcher The research assistants here clearly fall into this latter status, and presumably their aid award, was not termina- category of common-law employees. The research of ble based on a failure to meet any obligations of the Columbia’s student assistants, while advancing the assis- grant, undermining a claim that the aid was compensa- tants’ doctoral theses, also meets research goals associat- tion. ed with grants from which the University receives sub- However, the Leland Stanford decision arguably sug- stantial income.111 The research assistants here work gested that the mere fact that the performance of a task under the direction of their departments to ensure that that advanced a student’s personal educational goals could negate an employment relationship. It described 109 Our dissenting colleague contends that the longstanding nature of the status of the research assistants as akin to “the situa- the Board’s Leland Stanford precedent favors leaving its holding—that tion of all students,” who work on academic projects, and research assistants are not statutory employees—untouched. However, as we have already explained, we believe that the better view is that suggested the importance of the fact that they were “sim- student assistants, including research assistants, should be regarded as ultaneously students” as well as researchers.108 Because employees under the Act. Leland Stanford thus relied in part on the existence of a 110 In this respect, our decision is entirely consistent with other em- student relationship in determining employee status, ra- ployee-status decisions under the Act involving individuals who work, at least in part, to advance personal interests. See fn. 39–41, supra. ther than determining whether a common-law relation- 111 One can conceive of countless employment situations where the employee gains personally valuable professional experience and skills 107 214 NLRB at 623. while simultaneously performing a valuable service for his or her em- 108 Id. ployer. 18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD particular grant specifications are met. Indeed, another standing the grantor’s statement that the grant aid is not feature of such funding is that the University typically salary, it is a form of compensation. receives a benefit from the research assistant’s work, as it C. Student Assistants in the Petitioned-for Unit Share a receives a share of the grant as revenue, and it is relieved Community of Interest of any need to find other sources of funding for graduate We now turn to the question of whether the petitioned- students under a research grant; thus it has an incentive for unit is a unit appropriate for collective bargaining. to ensure proper completion of the work in accordance Columbia argues that the petitioned-for unit is inappro- with the grant. Further, a research assistant’s aid pack- priate because it groups undergraduate and Master’s de- age requires fulfillment of the duties defined in the grant, gree student assistants together in the same unit with notwithstanding that the duties may also advance the Ph.D. assistants. According to Columbia, differences in assistant’s thesis, and thus the award is compensation. pay and benefits, duties, and remunerative interests Students, when working as research assistants, are not demonstrate the absence of a community of interest. We permitted to simply pursue their educational goals at disagree. their own discretion, subject only to the general require- The first and central right that Section 7 of the Act ment that they make academic progress, as they would be grants employees is “the right to self-organization, to in semesters where they were under some form of finan- form, join, or assist labor organizations, to bargain col- cial aid other than a research grant.112 lectively through representatives of their own choosing The funding here is thus not akin to scholarship aid . . . .” Section 9(b) provides that “[t]he Board shall de- merely passed through the University by a grantor with- cide in each case whether, in order to assure to employ- out specific expectations of the recipients. Because Co- ees the fullest freedom in exercising the rights guaran- lumbia directs the student research assistants’ work and teed by this Act, the unit appropriate for the purposes of the performance of defined tasks is a condition of the collective bargaining shall be the employer unit, craft grant aid, we conclude that the research assistants in this unit, plant unit, or subdivision thereof.” As recognized case are employees under the Act.113 by the Supreme Court, Section 9(a) “suggests that em- Columbia argues that, even if research assistants gen- ployees may seek to organize ‘a unit’ that is ‘appropri- erally are common-law employees, the research assis- ate’—not necessarily the single most appropriate unit.”114 tants funded by a specific form of grants known as train- In other words, “[m]ore than one appropriate bargaining ing grants present unique circumstances and lack the unit logically can be defined in any particular factual characteristics of common-law employment. However, setting.”115 the record shows that Columbia, which receives revenue In making the determination of whether the proposed from these training grants, is charged with ensuring that unit is an appropriate unit, the Board's “focus is on research assistants thereunder receive appropriate train- whether the employees share a ‘community of inter- ing within a formalized program (consistent with the est.”’116 In determining whether employees in a pro- funder’s goal of having a well-trained workforce in bio- posed unit share a community of interest, the Board ex- medical and behavioral research), and accordingly it amines: oversees and directs the research assistants who receive the grants. Additionally, research assistants often receive [W]hether the employees are organized into a separate funds from research and training grants simultaneously. department; have distinct skills and training; have dis- Further, participation in specific training activities is a tinct job functions and perform distinct work, including requirement for receipt of training grants; thus, notwith- inquiry into the amount and type of job overlap between classifications; are functionally integrated with 112 Stanford found that the fact that the university equalized financial the Employer's other employees; have frequent contact packages for research assistants and other graduate students suggested with other employees; interchange with other employ- that funding for research assistants was financial aid and not compensation. 214 NLRB at 622. As previously discussed, we do not believe 114 American Hospital Assn., 499 U.S. 606, 610 (1991) (emphasis in that Columbia’s practice to distribute the benefits it receives from stu- original). See also Specialty Healthcare & Rehabilitation Center of dent-assistant labor, in order to equalize aid packages, demonstrates Mobile, 357 NLRB 934, 942 (2011), enfd. 727 F.3d 552 (6th Cir. that funding for an assistantship is not compensation, given that the 2013). research work assigned in a given semester is a requirement for receipt 115 Country Ford Trucks, Inc. v. NLRB, 229 F.3d 1184, 1189 (D.C. of aid. Cir. 2000) (quoting Operating Engineers Local 627 v. NLRB, 595 F.2d 113 Indeed, in NYU, the Board upheld the Regional Director’s deter- 844, 848 (D.C. Cir. 1979)). mination that those research assistants who were “assigned specific 116 Specialty Healthcare, supra, 357 NLRB at 942, quoting NLRB v. tasks and . . . [who] work[ed] under the direction and control of the Action Automotive, Inc., 469 U.S. 490, 491 (1985). faculty member,” were employees eligible for inclusion in the unit. See NYU, supra, 332 NLRB at 1221 fn.51. COLUMBIA UNIVERSITY 19

ees; have distinct terms and conditions of employment; though some of the assistantships undertaken by Ph.D. and are separately supervised.117 students may involve advanced duties, in many cases Further, to honor the statutory command to maximize their roles are similar to those of Master’s and under- employees’ freedom in choosing a representative, the graduate assistants who fill related positions. And even Board has held that a petitioner's desire concerning the when the Ph.D. assistants take on more advanced roles, unit “is always a relevant consideration.”118 Although there is often still an overlap of job duties with Master’s 121 Section 9(c)(5) of the Act provides that “the extent to and undergraduate student assistants. which the employees have organized shall not be control- Further, all student assistants work under the direction ling,” the Supreme Court has made clear that the extent of the University. Most are appointed on a semester-long of organization may be “consider[ed] . . . as one factor” basis and are paid in part through a tuition remission and in determining if the proposed unit is an appropriate in part via a bimonthly stipend. Although it is the con- unit.119 We thus consider the unit expressed in the peti- tention of our dissenting colleague that the “broad array” tion to be a factor, although not a determinative one. of employees within the unit militates against its appro- In Specialty Healthcare and Rehabilitation Center of priateness, we note that the Act countenances broad units Mobile,120 the Board held that a unit is appropriate if the where there are factors establishing a community of in- employees in the proposed unit constitute a readily iden- terest. For example, the Board has held, consistent with tifiable grouping and share a community of interest. the Act’s text, that similarly situated employees can form 122 Here, the proposed unit consists of a readily identifiable an appropriate employer-wide unit. We find under grouping of employees: all student employees who pro- these circumstances that differences in level and type of 123 vide instructional services and all research assistants at compensation and some differences in the nature of Columbia University’s campuses. We further find that work assignments, do not negate the shared community the employees in the unit share a community of interest of interest of employees in the petitioned-for unit, given and agree with the Regional Director who, in concluding the many other relevant similarities. the unit was appropriate, found substantial similarities Columbia also argues that, because they are in shorter- among the types of work of all the student assistants in term degree programs geared toward rapid graduation the proposed unit. She noted that they work in similar and job-market entry, Master’s and undergraduate stu- settings (in labs and classrooms at the same university) dent assistants are less likely to be concerned with issues and serve similar functions with respect to the Universi- of housing costs, quality of health care, and availability ty’s fulfillment of its teaching and research mission. of dependent health coverage. Assuming the veracity of Thus, the petitioned-for unit of student assistants per- Columbia’s speculation regarding Master’s and under- forming instructional services and research services pro- graduate students’ likely priorities, it is nonetheless the vide supplemental educational services to the faculty and case that classifications in a unit need not have complete the University and therefore constitute a readily identifi- identity of interests for the unit to be appropriate. While able grouping of employees within the University’s op- Master’s and undergraduate assistants may, arguably, erations that share a community of interest. While Columbia argues that there are some dissimilari- 121 Notably, a Columbia Vice-Provost testified to “considerable simi- ties, such as differences in the difficulty and independ- larity” between the teaching duties of a Master’s degree teaching assistant and a Ph.D. appointed as a teaching fellow, ostensibly a higher- ence of work assignments, as well as in pay and benefits, difficulty position. The record also indicates that, while Ph.D. assis- among the categories of student assistants, we find that— tants take on the most advanced and independent teaching assignments, although there might potentially be other appropriate unit there are various types of discrete teaching duties, such as grading and groupings among these student assistants—the peti- leading discussion sections, that are performed by both undergraduate/Master’s student assistants and Ph.D. assistants. tioned-for classifications share a sufficient community of 122 Sec. 9(b) provides, inter alia, that: “The Board shall decide in interest to form an appropriate unit. We note that all of each case whether . . . the unit appropriate for the purposes of collective the student assistants here are performing a supplemental bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof.” 29 U.S.C. 159(b). See also Hazard Express, Inc., 324 educational service. That is, their duties are functionally NLRB 989 (1997) (finding appropriate a unit including “drivers, dock- integrated into a system designed to meet the university’s workers, and helpers and excluding clericals); Jackson’s Liquors, 208 teaching and research missions in non-faculty roles. Al- NLRB 807, 808 (1974) (“not[ing] that the employerwide unit, being one of the units listed in the Act as appropriate for bargaining, is pre- 117 sumptively appropriate”). Specialty Healthcare, supra, 357 NLRB at 942 (quoting United 123 See Los Angeles Water & Power Employees’ Assn., 340 NLRB Operations, Inc., 338 NLRB 123, 123 (2002)). 1232, 1236 (2003) (difference in pay not controlling as to unit determi- 118 Marks Oxygen Co., 147 NLRB 228, 230 (1964). 119 nation in light of other similarities); Four Winds Services, 325 NLRB NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438, 442 (1965). 632, 632 (1998) (same). 120 357 NLRB at 946. 20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD have some different priorities from those of Ph.D. assis- However, the determination is not based on the nature tants, there are also overarching common interests. For of an employee’s tenure in a vacuum; rather, the nature most student assistants, there will be a shared desire to of the alleged temporary employees’ employment must successfully balance coursework with job responsibili- be considered relative to the interests of the unit as a ties, as well as a shared desire to mitigate the tuition and whole. The practice of excluding temporary employees opportunity costs of being a student. Additionally, all from a unit merely recognizes that, “as a general rule,” student assistants are likely to share a desire to address employees of a defined, short tenure are “likely” to have policies affecting job postings, pay periods, stipend dis- divergent interests from the rest of the unit.127 bursement, and personal health insurance coverage. Stu- Here, Columbia argues that undergraduate and termi- dent assistants also have common interests in developing nal Master’s assistants in the petitioned-for unit are guidelines for discipline and discharge and establishing a “temporary” in the sense that they are employed for rela- grievance-and-arbitration procedure. While Ph.D. assis- tively short, finite periods of time, averaging only about tants, as longer-term students, may be somewhat more two (not necessarily continuous) semesters of work. concerned with certain types of remuneration, such as However, all the employees in this unit, which we find to housing subsidies, their interests are certainly not at odds be an appropriate, serve finite terms. Although the Ph.D. with those of the shorter-term employees. Indeed the student assistants typically serve for the longest periods, unit’s overarching interest in addressing issues pertaining all the classifications perform similar duties in (not nec- to one’s simultaneous employment and enrollment as a essarily continuous) semester increments.128 Thus, in student provides ample basis on which to pursue a com- some sense, one could argue that all the student assistants mon bargaining agenda. here are temporary. Yet the Board has made clear that Therefore, applying traditional community of interest finite tenure alone cannot be a basis on which to deny factors to these facts, we conclude that the petitioned-for bargaining rights, because “[i]n many employment rela- unit is an appropriate unit. 124 tionships, an employee may have a set tenure and, in that D. None of the Petitioned-for Classifications Contain sense, may not have an indefinite departure date . . . . To Temporary Employees Who Must Be Excluded From the extend the definition of ‘temporary employee’ to [all] Unit such situations, however, would be to make what was intended to be a limited exception swallow the whole.”129 Columbia argues that certain classifications must be Therefore we must look beyond the finite tenure of the excluded from the unit because they comprise temporary student assistants at issue, and consider whether and to employees, who may not be included in the unit. We what extent their tenure affects their community of inter- reject this argument. est with the unit or their ability to engage in meaningful In its analysis of whether an employee should be ex- bargaining.130 cluded from a unit as a “temporary employee,” the Board Further, we find that Master’s and undergraduate stu- focuses on “the critical nexus between an employee's dent assistants’ relatively short tenure, within the context temporary tenure and the determination whether he of this unit, does not suggest a divergence of interests shares a community of interest with the unit employ- that would frustrate collective bargaining.131 In Manhat- ees.”125 To determine whether an alleged temporary employee shares a community of interest, the Board exam- 127 Id. ines various factors, including “whether or not the em- 128 Indeed, to exclude Master’s and undergraduate student assistants ployee’s tenure is finite and its end is reasonably ascer- here who share a community of interest with the unit as a whole might tainable, either by reference to a calendar date, or the undercut the integrity of the overall bargaining unit, because these completion of a specific job or event, or the satisfaction employees perform not-readily differentiable work compared to Ph.D. student assistants, and thus could easily be utilized as substitutes for of the condition or contingency by which the temporary bargaining unit employees. See generally Outokumpu Copper Frank- 126 employment was created.” lin, Inc., 334 NLRB 263, 263 (2001) (temporary employees who worked work side-by-side at same jobs under same supervision as other 124 We stress that the bargaining relationship here pertains only to employees were properly included in unit). 129 Boston Medical, supra, 330 NLRB at 166. undergraduates’ employment relationship and does not interfere with 130 any other role the university may play with respect to students’ aca- To the extent that cases like San Francisco Art Institute, 226 demic or personal development. Since undergraduate student assistants NLRB 1251 (1976), suggest that the mere fact of being a student in share a community of interest with the other student assistants, they are short-term employment with one’s school renders one’s interests in the appropriately included in the same unit. employment relationship too “tenuous,” such cases are incompatible 125 with our holding here today and are overruled. Marian Medical Center, 339 NLRB 127, 128 (2003). 131 126 Id. This case is distinguishable from Goddard College, 216 NLRB 457, 458 (1975), cited by the dissent. In that case there was a significant difference in employment expectations between the visiting pro- COLUMBIA UNIVERSITY 21 tan College, 195 NLRB 65, 65–66 (1972), the Board who are carried over from one semester to another).135 found that faculty members on terminal contracts shared Because the University’s employment of Master’s and a community of interest with their colleagues for the du- undergraduate student assistants is regularly recurring, ration of their employment and were therefore properly with some carryover between semesters, and their indi- included in a faculty bargaining unit.132 The Board has vidual tenures are neither negligible nor ad hoc, we be- never held that, regardless of community of interest with lieve that as a group, they, together with the Ph.D. assis- the broader unit, arguably temporary employees should tants, form a stable unit capable of engaging in meaning- be denied bargaining rights altogether.133 If, under the ful collective bargaining.136 specific circumstances of a case, alleged temporary em- Accordingly, we find that none of the petitioned-for ployees possess a sufficient interest in bargaining over classifications consists of temporary employees who terms and conditions of employment to allow for suc- should be excluded from the unit by virtue of their finite cessful and stable collective bargaining on their behalf, tenure of employment. they are permitted to bargain collectively within an ap- E. Voting Eligibility Formula propriate unit.134 There remains the issue of which of the employees in Here, even the Master’s and undergraduate student as- the petitioned-for unit—some of whom, on account of sistants typically serve more than one semester—and intermittent semester appointments, may not be eligible thus their tenure is not so ephemeral as to vitiate their to vote under the Board’s traditional eligibility date ap- interest in bargaining over terms and conditions of em- proach—should nonetheless be permitted to vote because ployment. Indeed, a semester at Columbia is not some of their continuing interest in the unit. In this connec- insignificant or arbitrary period of time spent performing tion, although it does not fully address the eligibility a task, but rather it constitutes a recurring, fundamental question, the Petitioner has suggested in its brief that unit of the instructional and research operations of the student assistants who have been appointed for at least University. And notwithstanding the length of any indi- one semester should be deemed eligible. vidual assistant’s tenure, the University will continuously We observe that the unique circumstances of student employ groups of Master’s and undergraduate student assistants’ employment manifestly raise potential voter assistants to perform research and instructional duties eligibility issues. The student assistants here tend to across semesters (and, although the precise composition work for a substantial portion of their academic career, of these groups will differ from semester to semester, but not necessarily in consecutive semesters; thus, during there will typically be some individual student assistants any given semester, individuals with a continuing interest in the terms and conditions of employment of the unit fessors, who typically worked at the university less than a year, and tenured faculty. The question there was whether it would be appropri- may not be working. The Board has long recognized that ate to combine individuals with a long-term relationship to an employer certain industries and types of employment, particularly with those whose long-term interests lay elsewhere. Here, as we have those with patterns of recurring employment, may neces- noted, all the employees—both the allegedly temporary Master’s and sitate rules governing employee eligibility. The Board undergraduate assistants, as well as the Ph.D. assistants—serve finite periods in semester increments, during which they perform similar services to the University. Further, as student assistants working during 135 We are not, as the dissent suggests, establishing a special rule for academic semesters, they will share common interests in addressing student assistants. Rather, we are applying relevant principles concern- issues unique to their status, such as those involving the balancing of ing the establishment of units of employees, including some with rela- work and academic obligations. See Goucher College, 364 NLRB No. tively short, finite tenures, to the particular circumstances of student 71, slip op. at 2 & fn. 7 (2016) (finding that terminal-appointment fac- assistants. The question we must ask before denying a category of ulty should be included in unit because they share a community of employees the right to bargain collectively is whether their tenure pre- interest with nontenure faculty “that is more significant than whether or cludes meaningful bargaining. Otherwise, to deny bargaining rights not they have a reasonable expectation of reappointment”). Also, un- merely because one has a short tenure, would be antithetical to the Act. like the visiting faculty in Goddard, most student assistants possess a The evidence here indicates that meaningful bargaining is possible long-term goal of achieving employment elsewhere, as opposed to within such a unit. Notably, student assistant collective bargaining at cultivating a permanent relationship with the University. public universities sometimes involves units of students without exclu- 132 See also Rensselaer Polytechnic Institute, 218 NLRB 1435, 1437 sions based on expected duration of employment; yet there is no evi- (1975). dence that this has proven an impediment to effective bargaining. See, 133 See Kansas City Repertory Theatre, 356 NLRB 147, 147 (2010) e.g., Collective Bargaining Agreement between Michigan State Univer- (“The logical consequence of the Employer's argument is that tempo- sity and The Graduate Employees Union, Local 6196, AFT- rary or intermittent employees cannot exercise the rights vested in Michigan/AFL–CIO (May 2015—May 2019), supra. employees by Section 9 of the Act. However, no such exclusion ap- 136 Cf. Kelly Bros. Nurseries, 140 NLRB 82, 85 (1962) (category of pears in the definition of employees or elsewhere in the Act.”). seasonal employees properly included in a bargaining unit where the 134 See Manhattan College, supra, at 65–66. employer relied on these employees to serve over recurring production seasons, and where there was some employee holdover from season to season). 22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD attempts to strike a balance between the need for an on- ther appropriate action consistent with this Decision and going connection with a unit and concern over disenfran- Order. chising voters who have a continuing interest notwith- Dated, Washington, D.C. August 23, 2016 standing their short-term, sporadic, or intermittent employment.137 Setting such rules on a pre-election basis by use of eligibility formulas also serves the efficiency ______goal of avoiding protracted post-election litigation over Mark Gaston Pearce, Chairman challenges to individual voters. Such eligibility formulas attempt to include employees who, despite not being on the payroll at the time of the ______election, have a past history of employment that would Kent Y. Hirozawa, Member tend to signify a reasonable prospect of future employment.138 We have traditionally devised these formulae by examining the patterns of employment within a job or ______industry, and determining what amount of past employ- Lauren McFerran, Member ment serves as an approximate predictor of the likelihood of future employment. For example, in a case involving adjunct faculty, the (SEAL) NATIONAL LABOR RELATIONS BOARD Board noted the importance of “prevent[ing] an arbitrary distinction” which disenfranchises employees with a con- MEMBER MISCIMARRA, dissenting. tinuing interest in their employment within the unit but In this case, my colleagues decide that college and who happen not to be working at the time of the elec- university students are “employees” for purposes of col- tion.139 In the particular circumstances of that case, the lective bargaining under the National Labor Relations Board looked at factors including whether adjuncts had Act (NLRA or Act) when serving in a variety of academ- signed teaching contracts and the extent to which they ic assistant positions. An assortment of student positions had actually taught over previous semesters.140 are involved here: the petitioned-for bargaining unit in- Here, the record contains data concerning the average cludes all “student employees” who engage in “instruc- number of semesters worked relative to a student assis- tional services,” including “graduate and undergraduate tant’s time enrolled at the University, as well as data Teaching Assistants,” “Teaching Fellows,” “Preceptors,” concerning typical patterns of work over the academic “Course Assistants,” “Readers,” and “Graders,” plus career of a Ph.D. student assistant. But neither the Re- “Graduate Research Assistants” and “Departmental Re- gional Director nor the parties have specifically ad- search Assistants.” No distinctions are drawn based on dressed what an appropriate formula would be under subject, department, whether the student must already these circumstances. Having determined the appropriate possess a bachelor’s or master’s degree, whether a par- unit, we therefore remand this case and instruct the Re- ticular position has other minimum qualifications, gional Director to take appropriate measures, including whether graduation is conditioned on successful perfor- reopening the record, if necessary, to establish an appro- mance in the position, or whether different positions are priate voting eligibility formula. differently remunerated. As a result of today’s decision, 1 ORDER all of these university student assistant positions are made part of a single, expansive, multi-faceted bargain- The Regional Director’s Decision is reversed. The ing unit. proceeding is remanded to the Regional Director for fur- I believe the issues raised by the instant petition require more thoughtful consideration than the Board ma- 137 See Steiny & Co., 308 NLRB 1323, 1325 (1992); Trump Taj Ma- hal Casino, 306 NLRB 294 (1992). jority’s decision gives them. In particular, my colleagues 138 See Trump Taj Mahal Casino, supra, 306 NLRB at 296 (reiterat- ing Board’s obligation to be “flexible in . . . devis[ing] formulas . . . to 1 For ease of reference, I use the terms college and university inter- afford employees with a continuing interest in employment the opti- changeably. For the same reason, I use the term student assistants to mum opportunity for meaningful representation”). refer to all types of students encompassed within the petitioned-for 139 C.W. Post Center, 198 NLRB 453, 454 (1972). bargaining unit—i.e., all “student employees” who engage in “instruc- 140 Id. See also Steiny, supra, 308 NLRB at 1326 (articulating for- tional services,” including “graduate and undergraduate Teaching As- mula for construction work that accounts for non-continuous work sistants,” “Teaching Assistants,” “Teaching Fellows,” “Preceptors,” patterns). “Course Assistants,” “Readers,” and “Graders,” as well as “Graduate Research Assistants” and “Departmental Research Assistants.” COLUMBIA UNIVERSITY 23 disregard a fundamental fact that should be the starting tive bargaining in the workplace. Rather, it is a recogni- point when considering whether to apply the NLRA to tion that for students enrolled in a college or university, university students. Full-time enrollment in a university their instruction-related positions do not turn the academ- usually involves one of the largest expenditures a student ic institution they attend into something that can fairly be will make in his or her lifetime, and this expenditure is characterized as a “workplace.” For students, the least almost certainly the most important financial investment important consideration is whether they engage in collec- the student will ever make. In the majority of cases, at- tive bargaining regarding their service as research assis- tending college imposes enormous financial burdens on tants, graduate assistants, preceptors, or fellows, which is students and their families, requiring years of preparation an incidental aspect of their education. If one regards beforehand and, increasingly, years of indebtedness college as a competition, this is one area where “winning thereafter. Many variables affect whether a student will isn’t everything, it is the only thing,” and I believe win- reap any return on such a significant financial invest- ning in this context means fulfilling degree requirements, ment, but three things are certain: (i) there is no guaran- hopefully on time.5 tee that a student will graduate, and roughly 40 percent The Board has no jurisdiction over efforts to ensure do not;2 (ii) college-related costs increase substantially that college and university students satisfy their postsec- the longer it takes a student to graduate, and roughly 60 ondary education requirements. However, Congress has percent of undergraduate students do not complete de- certainly weighed in on the subject: an array of federal gree requirements within four years after they commence statutes and regulations apply to colleges and universi- college;3 and (iii) when students do not graduate at all, ties, administered by the U.S. Department of Education, there is likely to be no return on their investment in a led by the Secretary of Education. My colleagues disre- college education.4 gard the Board’s responsibility to accommodate this ex- I respect the views presented by my colleagues and by tensive regulatory framework. In addition, I believe col- advocates on all sides regarding the issues in this case. lective bargaining and, especially, the potential resort to However, Congress never intended that the NLRA and economic weapons protected by our statute fundamental- collective bargaining would be the means by which stu- ly change the relationship between university students, dents and their families might attempt to exercise control including student assistants, and their professors and ac- over such an extraordinary expense. This is not a com- ademic institutions. Collective bargaining often produc- mentary on the potential benefits associated with collec- es short-term winners and losers, and a student assistant in some cases may receive some type of transient benefit 2 U.S. Department of Education, National Center for Education Sta- as a result of collective bargaining pursuant to today’s tistics (NCES), The Condition of Education 2016, Undergraduate Re- decision. Yet there are no guarantees, and they might tention and Graduation Rates (excerpted at end up worse off. Moreover, I believe collective bar- https://nces.ed.gov/fastfacts/display.asp?id=40) (last visited Aug. 5, 2016). The NCES reports that the “6-year graduation rate for first- gaining is likely to detract from the far more important time, full-time undergraduate students who began their pursuit of a goal of completing degree requirements in the allotted bachelor's degree at a 4-year degree-granting institution in fall 2008 time, especially when one considers the potential conse- was 60 percent. That is, 60 percent of first-time, full-time students who quences if students and/or universities resort to economic began seeking a bachelor's degree at a 4-year institution in fall 2008 completed the degree at that institution by 2014.” Id. weapons against one another. I also believe that the 3 Dr. Peter Cappelli, Will College Pay Off?, p. 18 (Public Affairs Board’s processes and procedures are poorly suited to 2015) (hereinafter “Cappelli”). See also Complete College America, deal with representation and unfair labor practice cases Four-Year Myth: Make College More Affordable—Restore the Promise involving students. Add these up, and the sum total is of Graduating on Time, pp. 4, 6 (2014) (http://completecollege.org/wp- content/uploads/2014/11/4-Year-Myth.pdf) (reporting that only 36 uncertainty instead of clarity, and complexity instead of percent of students attending flagship 4-year college bachelor degree programs graduate on time); Danielle Douglas-Gabriel, Why So Many 5 The expression “winning isn’t everything, it’s the only thing” is Students Are Spending Six Years Getting a College Degree, Washing- commonly attributed to legendary football coach Vince Lombardi, who ton Post, Dec. 2, 2014 (https://www.washingtonpost. was the head coach for the Green Bay Packers from 1959 to 1967. com/news/wonk/wp/2014/12/02/why-so-many-students-are-spending- However, it appears to have been originated by Henry Russell (Red) six-years-getting-a-college-degree/) (last visited Aug. 5, 2016). Sanders, who was the head coach of the University of California, Los 4 University coursework may result in various personal benefits even Angeles (UCLA) Bruins football team from 1949 to 1957. See Wik- if students fail to earn a degree. However, there is little doubt that the ipedia, Winning isn’t everything; it’s the only thing financial return on the investment required to attend college requires (https://en.wikipedia.org/wiki/Winning_isn%27t_everything;_it%27s_t graduation. See, e.g., Cappelli, p. 48 (“The biggest cost associated with he_only_thing) (last visited Aug. 5, 2016). Red Sanders also referred going to college, though, is likely to be the risk that a student does not to the rivalry between UCLA and the University of Southern California graduate on time or, worse, drops out altogether. There is virtually no (USC) and famously stated: “Beating [USC] is not a matter of life or payoff from college if you don’t graduate.”). death, it’s more important than that.” Id. 24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD simplicity, with the risks and uncertainties associated sity, 204 NLRB 641, 643 (1973); see also Yeshiva, 444 with collective bargaining—including the risk of break- U.S. at 680. down and resort to economic weapons—governing the The Board has an uneven track record in its efforts to single most important financial decision that students and apply the NLRA to colleges, universities and other edu- their families will ever make. cational institutions. In Yeshiva, the Board summarily For these reasons, I agree with former Member Brame, rejected the university’s position that its faculty members who stated that the Board resembles the “foolish repair- were managerial employees who were exempt from the man with one tool—a hammer—to whom every problem Act. The Supreme Court reversed, finding that the facul- looks like a nail; we have one tool—collective bargain- ty members constituted managerial employees and that ing—and thus every petitioning individual looks like the Board’s conclusions were neither consistent with the someone’s ‘employee.’” Boston Medical Center Corp., Act nor rationally based on articulated facts. 444 U.S. at 330 NLRB 152, 182 (1999) (Member Brame, dissent- 686–691. ing). Accordingly, as explained more fully below, I re- In NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 spectfully dissent. (1979), the Supreme Court rejected the Board’s exercise DISCUSSION of jurisdiction over lay faculty members at two groups of Catholic high schools, concluding that to do so would The Board here changes the treatment that has been af- give rise to “serious First Amendment questions” involv- forded student assistants throughout the Act’s history of ing church/state entanglement and that there was insuffi- 80 years, with the exception of a four-year period that cient evidence Congress intended that “teachers in was governed by the Board’s divided opinion in New church-operated schools should be covered by the Act.” York University (NYU).6 Prior to NYU, the Board in Id. at 504–507; see also Pacific Lutheran University, 361 Adelphi University7 and The Leland Stanford Junior Uni- NLRB No. 157 (2014).10 versity8 held that various student assistants could not be In Boston Medical Center, a divided Board found that included in petitioned-for units. After NYU, the Board interns, residents and fellows at a teaching hospital were similarly held that various student assistants were not employees under the Act.11 However, the majority did employees in Brown University.9 not change the status of university student assistants, I disagree with my colleagues’ decision to apply the whom the Board had previously determined not to be Act to college and university student assistants. In my employees.12 And as noted previously, except for the view, this change is unsupported by our statute, and it is four-year period governed by NYU,13 the Board has con- ill-advised based on substantial considerations, including sistently held that university student assistants are not those that far outweigh whether students can engage in employees,14 most recently in Brown University,15 where collective bargaining over the terms and conditions of the Board reaffirmed that a student assistant’s relation- education-related positions while attempting to earn an ship with a university is “primarily educational.” Brown, undergraduate or graduate degree. 342 NLRB at 487. The Supreme Court has stated that “the authority structure of a university does not fit neatly within the statutory 10 Cf. Northwestern University, 362 NLRB No. 167 (2015) (declin- scheme” set forth in the NLRA. NLRB v. Yeshiva Uni- ing to exercise jurisdiction over grant-in-aid scholarship football play- versity, 444 U.S. 672, 680 (1980). Likewise, the Board ers without reaching the question of “employee” status under the has recognized that a university, which relies so heavily NLRA). on collegiality, “does not square with the traditional au- 11 330 NLRB at 159–165. Members Hurtgen and Brame dissented. Id. at 168–170 (Member Hurtgen, dissenting); id. at 170–182 (Member thority structures with which this Act was designed to Brame, dissenting). cope in the typical organizations of the commercial 12 The majority in Boston Medical explained that hospital interns, world.” Adelphi University, 195 NLRB at 648. The ob- residents and fellows—referred to as “house staff”—were materially vious distinction here has been recognized by the Su- different from students, including student assistants: preme Court and the Board: the lecture hall is not the [W]hile house staff possess certain attributes of student status, they are factory floor, and the “industrial model cannot be im- unlike many others in the traditional academic setting. Interns, residents, and fellows do not pay tuition or student fees. They do not take posed blindly on the academic world.” Syracuse Univer- typical examinations in a classroom setting, nor do they receive grades as such. They do not register in a traditional fashion. Their education 6 332 NLRB 1205 (2000). and student status is geared to gaining sufficient experience and 7 195 NLRB 639, 640 (1972). knowledge to become Board-certified in a specialty. 8 214 NLRB 621(1974). Id. at 161 (footnote omitted). 9 342 NLRB 483 (2004). 13 332 NLRB at 1205. 14 See fns. 7-9, supra. 15 342 NLRB at 483. COLUMBIA UNIVERSITY 25

I agree with the Board majority’s reasoning in Brown. 1. The Financial Investment Associated With a Uni- There, the Board considered whether “graduate student versity Education, and the Mistake of Making Academic assistants who are admitted into, not hired by, a universi- Success Subservient to the Risks and Uncertainties of ty, and for whom supervised teaching or research is an Collective Bargaining and the Potential Resort to Eco- integral component of their academic development” nomic Weapons. Given the critical importance of higher should be deemed employees under the Act. Brown, 342 education, I believe the time is long past when the ques- NLRB at 483. The Board majority held that these indi- tion of whether to apply the NLRA to students can ap- viduals were not “employees,” based on the conclusion propriately be decided based on the standard lines of that “graduate student assistants, who perform services at division that are commonplace in matters that come be- a university in connection with their studies, have a pre- fore the Board. Many parties tend to favor union repre- dominately academic, rather than economic, relationship sentation and collective bargaining generally, and one with their school.” Id. The Board majority stated that can reasonably expect many of these parties to support the “fundamental premise of the Act” was “to cover eco- union representation and collective bargaining for uni- nomic relationships,” and the majority recognized “the versity student assistants. Likewise, when some parties simple, undisputed fact that all the petitioned-for indi- tend to oppose union representation or collective bar- viduals [were] students and must first be enrolled at gaining, it is unsurprising when they oppose these things Brown” before they could be graduate assistants. Id. at for student assistants as well. The Board’s role should be 488. The majority emphasized that the work done by different. We administer a statute enacted by Congress graduate assistants was “part and parcel of the core ele- that was adopted with a focus on conventional workplac- ments of the Ph.D. degree.” Id. In the case of most doc- es, not universities. For this reason, as noted above, the toral students who provided instruction, for example, the Board and the courts have recognized that unique issues majority observed that “teaching is so integral to their arise in applying the NLRA to academic work settings, education that they will not get the degree until they sat- even when dealing with college and university faculty. isfy that requirement.” Id.; see also Leland Stanford, 214 Moreover, the NLRB has no regulatory authority over NLRB at 621, 622 (student research assistants who re- efforts to ensure that undergraduates and graduate stu- ceived stipends to perform research projects were not dents at colleges and universities satisfy their degree re- employees, since the research was “part of the learning quirements. And the Board should not ignore the fact process” and a step leading to the “thesis and . . . to- that, for the vast majority of students, attendance at a ward[s] the goal of obtaining the Ph.D. degree”). The college or university has a paramount goal—to obtain a Board majority in Brown concluded it was likely that degree—and this goal, if attained, is usually achieved at collective bargaining would impermissibly interfere with enormous expense. Neither should the Board disregard academic freedom and be “detrimental to the educational the unfortunate reality in the United States that many process.”16 The majority explained: students never receive their degree.18 Imposing collective bargaining would have a deleteri- I believe my colleagues—though armed with good in- ous impact on overall educational decisions by the . . . tentions—engage in analysis that is too narrow, exclud- faculty and administration. These decisions would in- ing everything that is unique about the situation of col- clude broad academic issues involving class size, time, lege and university students. In particular, my colleagues length, and location, as well as issues over graduate as- disregard what hangs in the balance when a student’s sistants’ duties, hours, and stipends. In addition, collec- efforts to attain an undergraduate or graduate degree are tive bargaining would intrude upon decisions over who, governed by the risks and uncertainties of collective bar- what, and where to teach or research—the principal gaining and the potential resort to economic weapons by prerogatives of an educational institution . . . .17 students and universities. What hangs in the balance has Apart from my belief that the Board correctly ad- 18 College graduation rates in a significant number of other countries dressed these issues in Brown, I especially disagree with are higher than in the United States (although it appears difficult to several aspects of my colleagues’ opinion to the contrary. obtain recent data that permit a reliable comparison). See, e.g., Institute of Education Sciences, National Center for Education Statistics, Youth 16 Brown, 342 NLRB at 493. Indicators 2011 (identifying 12 countries having higher college gradua- 17 Brown, 342 NLRB at 490. Cf. Yeshiva, 444 U.S. at 686 (recog- tion rates than the United States among first-time college students, and nizing that academic freedom applies not only to the clash of ideas 11 countries having lower rates) (https://nces.ed.gov/pubs2012/ among faculty but also to debate concerning “which students will be 2012026/chapter2_23.asp and https://nces.ed.gov/pubs2012/ admitted, retained, and graduated”). 2012026/figures/figure_23.asp) (last viewed Aug. 1, 2016); Cappelli, p. 29 (“[T]he United States has among the worst [college] graduation rates of any country.”). 26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD immense importance, and it does not come cheap for the which is “‘applying the general provisions of the Act to great majority of undergraduate and graduate students the complexities of industrial life.’” Ford Motor Co. v. and their families. As one commentator has explained, NLRB, 441 U.S. 488, 496 (1979) (quoting NLRB v. In- “college is for many people the biggest financial decision surance Agents, 361 U.S. 477, 499 (1960); NLRB v. Erie they will ever make,” it “makes more demands on our Resistor Corp., 373 U.S. 221, 236 (1963)); see also cognitive abilities than most of us will ever see again in NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266-267 our lives,” and the “biggest cost associated with going to (1975) (“The responsibility to adapt the Act to changing college . . . is likely to be the risk that a student does not patterns of industrial life is entrusted to the Board.”). graduate on time or, worse, drops out altogether. There The instant case does not involve “industrial life.”23 is virtually no payoff from college if you don’t gradu- Yet this only serves to reinforce the inappropriateness of ate.”19 “blindly” imposing collective bargaining and the rest of My colleagues ignore these considerations, and they the NLRA on students in “the academic world.” Syra- disclaim any responsibility to address anything other cuse University, 204 NLRB at 643; see also Yeshiva, 444 than the need to promote collective bargaining. In their U.S. at 680; Adelphi University, 195 NLRB at 648. The words: Board has applied the NLRA to college and university We have put suppositions aside today and have instead faculty members, which has presented its own challeng- carefully considered the text of the Act as interpreted es, as noted previously. The best interests of students, by the Supreme Court, the Act’s clearly stated policies, however, necessarily revolves around whether they ob- the experience of the Board, and the relevant empirical tain the education that costs so much in time and money evidence drawn from collective bargaining in the uni- and means so much to their future. The Board has no versity setting. This is not a case . . . where the Board expertise regarding these issues, and Congress did not must accommodate the National Labor Relations Act adopt our statute to advance the best interests of college with some other federal statute related to private uni- and university students. This makes it inappropriate to versities that might weigh against permitting student summarily dismiss concerns in this area as being “not assistants to seek union representation and engage in dispositive.” collective bargaining.20 Even more objectionable is my colleagues’ statement that the instant case involves no need to “accommodate Regarding examples where bargaining involving student the National Labor Relations Act with some other federal assistants (according to Columbia University and other par- statute related to private universities that might weigh ties) “has proven detrimental to the pursuit of the school’s against permitting student assistants to seek union repre- educational goals,” my colleagues state that “labor disputes sentation and engage in collective bargaining.”24 This is are a fact of economic life,” and “the Act is intended to ad- contrary to Southern Steamship Co. v. NLRB, 316 U.S. dress them.”21 They conclude: 31, 47 (1942), where the Supreme Court stated that “the The National Labor Relations Act . . . governs only the Board has not been commissioned to effectuate the poli- employee-employer relationship. For deciding the le- cies of the [Act] so single-mindedly that it may wholly gal and policy issues in this case, then, it is not disposi- ignore other and equally important Congressional objective that the student-teacher relationship involves dif- tives.” ferent interests than the employee-employer relation- Regarding the need to accommodate other “Congres- ship; that the educational process is individual, while sional objectives,” id., there is no shortage of federal collective bargaining is focused on the group; and that mandates applicable to colleges and universities that, to promoting equality of bargaining power is not an aim borrow my colleagues’ words, “might weigh against of higher education. Even conceded, all these points permitting student assistants to seek union representation simply confirm that collective bargaining and educa- and engage in collective bargaining.” Again, a broad tion occupy different institutional spheres.22 range of federal statutes and regulations apply to colleges I disagree with this analysis because it is contrary to what the Supreme Court has stated repeatedly is the 23 When the NLRA was adopted, Congress contemplated that the “‘primary function and responsibility of the Board,’” Act would primarily apply to industrial plants and manufacturing facilities. Sec. 1 of the Act refers to “industrial strife or unrest” and sets forth a policy to encourage “practices fundamental to the adjustment of 19 Cappelli, pp. 8, 26, 48 (emphasis added). See also fns. 2-3, supra industrial disputes,” and the Supreme Court has acknowledged that the and accompanying text. “Act was intended to accommodate the type of management-employee 20 Majority opinion, supra, slip op. at 12 (emphasis added). relations that prevail in the pyramidal hierarchies of private industry.” 21 Majority opinion, supra, slip op. at 10 (emphasis added). Yeshiva, 444 U.S. at 680. 22 Majority opinion, supra, slip op. at 7 (emphasis added). 24 Majority opinion, supra, slip op. at 12. COLUMBIA UNIVERSITY 27 and universities, with significant involvement by the U.S. rent Board law, if applied to university students, would Department of Education, led by the Secretary of Educa- require the disclosure of confidential witness statements tion. Relevant laws include, among many others, the (absent proof that the witnesses required protection from Higher Education Opportunity Act, enacted in 2008,25 retaliation in the particular circumstances presented),30 which reauthorized the Higher Education Act of 1965,26 and Board law would prevent university officials from and the Family Educational Rights and Privacy Act routinely requesting nondisclosure of matters discussed (FERPA), enacted in 1974.27 These statutes govern, in investigatory interviews involving student assistants.31 among other things, the accreditation of colleges and universities, the enhancement of quality, the treatment of records are protected as education records under FERPA,” although student assistance, graduate/postsecondary improvement disclosure without the student’s consent is permitted in certain circum- programs, and the privacy of student records. In 2015, a stances). FERPA regulations indicate that “education records” do not include records relating to employees of an educational institution, but task force created by a bipartisan group of U.S. Senators this exclusion applies only if employment-related records “[r]elate reviewed the Department of Education’s regulation of exclusively to the individual in that individual’s capacity as an employ- colleges and universities and recommended, among other ee.” 34 CFR § 99.3 (defining “education records”). According to the things, that the Department’s regulations “be related to U.S. Department of Education, the employment-related records of “graduate student teaching fellows/assistants,” whose appointments are education, student safety, and stewardship of federal contingent on being students, constitute “education records” subject to funds” and “not stray from clearly stated legislative in- FERPA’s nondisclosure requirements. See Department of Education, tent.”28 The extensive federal regulation of colleges and Letter of technical assistance to American Federation of Teachers re: universities focuses on access, availability, affordability disclosure of information on teaching assistants, available at: http://www2.ed.gov/policy/gen/guid/fpco/ferpa/library/aft.html (Aug. and effectiveness, all of which relate to the ability of 21, 2000) (last viewed Aug. 3, 2016) (hereinafter “Dept. of Education, students to satisfy educational objectives. This supports AFT letter”). In short, if a student complains about sex harassment by my view that collective bargaining—and especially the a student assistant, which may result in academic suspension or expul- resort to economic weapons between and among student sion, for example, it appears clear that FERPA confidentiality requirements would apply to the investigative records, possibly including assistants, faculty members, and administrators—is like- witness statements, directly contrary to NLRB law potentially requiring ly to substantially affect the educational process, separate their disclosure. See fns. 30-31, infra. Because of FERPA’s privacy from any impact on the economic interests of student requirements, there will undoubtedly be additional conflicts with assistants. NLRB disclosure obligations in other contexts, including union information requests to which employers must respond under NLRA Sec. Furthermore, it is already clear that current Board law, 8(a)(5). See Dept. of Education, AFT letter, supra (information re- if applied to university student assistants, may contradict quested by union representing public university student assistants can- federal education requirements. For example, FERPA not be disclosed without the student assistants’ consent); see also broadly restricts the disclosure of educational records, http://www2.ed.gov/ 29 policy/gen/guid/fpco/ferpa/library/josephambash.html (Feb. 25, 2002) including student disciplinary records. However, cur- (last viewed Aug. 3, 2016) (teaching assistants’ hours of work, stipend, length of contract, employment category, and selection for layoff are 25 Pub. L. 110–315 (2008). educational records protected from disclosure by FERPA). 26 Pub. L. 89–329 (1965). The Higher Education Act of 1965 was Even before the Board majority decided to apply the NLRA to stu- reauthorized in 1968, 1972, 1976, 1980, 1986, 1992, 1998, and 2008. It dent assistants and thus create inconsistencies with other federal regula- was extended through 2015, and reauthorization bills remain pending in tions applicable to colleges and universities, the Board’s interpretation Congress. See U.S. News University, House Approves Five Bipartisan of the NLRA was contrary to other federal agency requirements and Bills to Improve Higher Education Act (July 15, 2016) (https://www. recommendations. For example, the Board’s disclosure requirements usnewsuniversitydirectory.com/news/paying-for-school/house- applicable to workplace investigations and witness statements conflict approves-five-bipartisan-bills-to-improve-higher-education-act/) (last with guidance from the Equal Employment Opportunity Commission viewed July 28, 2016). (EEOC) regarding precisely the same issues. See American Baptist 27 Pub. L. 93–380 (1974). FERPA has been amended multiple times Homes of the West d/b/a Piedmont Gardens, 362 NLRB No. 139, slip since its initial passage and may be found in its current form at 20 op. at 12–13 (2015) (Member Johnson, dissenting in part); Report of U.S.C. § 1232g. the Co-Chairs of the EEOC Select Task Force on the Study of Harass- 28 Task Force on Federal Regulation of Higher Education, Recali- ment in the Workplace, available at: brating Regulation of Colleges and Universities, pp. 2, 4 (2015) http://www.btlaborrelations.com/wp-content/uploads/2016/06/eeoc- (http://www.help.senate.gov/imo/media/ report-on-sexual-harassment.pdf (June 2016) (last viewed Aug. 4, Regulations_Task_Force_Report_2015_FINAL.pdf) (last visited Aug. 2016) (noting “strong support” from stakeholders “for the proposition 5, 2016). The Senate Committee on Health, Education, Labor, and that workplace investigations should be kept as confidential as is possi- Pensions also held a hearing on February 24, 2015 devoted to the Task ble,” but also observing that “an employer’s ability to maintain confi- Force’s report. See http://www.help.senate.gov/hearings/recalibrating- dentiality . . . has been limited in some instances by decisions of the regulation-of-colleges-and-universities-a-report-from-the-task-force- National Labor Relations Board,” and concluding that the “privacy of on-government-regulation-of-higher-education (Feb. 24, 2015) (last both the accuser and the accused should be protected to the greatest viewed July 28, 2016). extent possible, consistent with legal obligations”). 30 29 See http://www2.ed.gov/policy/gen/guid/fpco/brochures/postsec. See Piedmont Gardens, supra, 362 NLRB No. 139. html (last viewed Aug. 3, 2016) (indicating that “student disciplinary 31 See Banner Estrella Medical Center, 362 NLRB No. 137 (2015). 28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

My colleagues apparently agree that “promoting equal- stated in NLRB v. Insurance Agents’ International Un- ity of bargaining power is not an aim of higher educa- ion, 361 U.S. 477, 487–489 (1960), employers and un- tion.”32 It is also clear that collective bargaining by stu- ions in collective bargaining “proceed from contrary dents is not the focus of the numerous federal laws and and to an extent antagonistic viewpoints and concepts regulations that apply to colleges and universities. These of self-interest. . . . The presence of economic weapons laws and regulations are designed, directly or indirectly, in reserve, and their actual exercise on occasion by the to enhance the quality of education, to strengthen equal parties, is part and parcel of the system that the Wag- access to higher education, and to eliminate potential ner and Taft-Hartley Acts have recognized.”33 obstacles to academic success. There is no reasonable When the Board transplants our statute into the univer- justification for the Board’s failure to acknowledge the sity setting and places students in a bargaining relation- overriding importance of these non-employment issues ship with the university, experience demonstrates that we for college and university students. cannot assume bargaining will be uneventful. Collective Nor can the Board freely disregard the fact that the po- bargaining may evoke “extraordinarily strong feelings” tential resort to economic weapons is part and parcel of and give rise to a “sharp clash between seemingly irrec- collective bargaining. Therefore, applying our statute to oncilable positions,” and when parties resort to various university student assistants may prevent them from tactics in support of their respective positions, “such tac- completing undergraduate and graduate degree require- tics are indeed ‘weapons,’” and “[n]obody can be con- ments in the allotted time, which is the primary reason fused about their purpose: they are exercised with the they attend colleges and universities at such great ex- intention of inflicting severe and potentially irreparable pense. It is not an adequate response to summarily dis- injury, often causing devastating damage to businesses miss this issue, as the majority does, with the common- and terrible consequences for employees.”34 As the court place observation that “labor disputes are a fact of eco- stated in NLRB v. Wire Products Mfg. Corp., 484 F.2d nomic life.” For the students who may find themselves 760, 765 (7th Cir. 1973), “[t]he strike is a potent eco- embroiled in them, labor disputes between universities nomic weapon which may, and often is, wielded with and student assistants may have devastating consequenc- disastrous effect on its employer target.”35 es. Conventional work settings feature many examples of 33 Id., slip op. at 9 (Member Miscimarra, dissenting in part) (empha- constructive collective-bargaining relationships. Like- sis in original and emphasis added). wise, one cannot assume that all or most negotiations 34 Id., slip op. at 10 (Member Miscimarra, dissenting in part). involving student assistants at universities would result 35 My colleagues refer to what they characterize as “empirical evidence” that, in their view, suggests collective bargaining involving in strikes, slowdowns, lockouts, and/or litigation. How- student assistants has been undertaken successfully at public universi- ever, there is no doubt that economic weapons and the ties (where bargaining is typically governed by state public sector labor threatened or actual infliction of economic injury are laws, which generally restrict or eliminate the right to strike) and at a central elements in collective bargaining to which resort private university on a non-NLRB-supervised basis (New York Univer- sity). My colleagues state that certain agreements provide for “defined may be made when parties are unable to reach agree- rights concerning courses, course content, course assignments, exams, ment. As I stated in American Baptist Homes of the West class size, grading policies and methods of instruction, as well as grad- d/b/a Piedmont Gardens, 364 NLRB No. 13, slip op. at 9 uate students’ progress on their own degrees,” and according to the (2016) (Member Miscimarra, dissenting in part), one majority, this shows that “parties can and successfully have navigated delicate topics near the intersection of the university’s dual role as must “differentiate between what one would prefer to see educator and employer.” Majority opinion, supra, slip op. at 9. Co- in collective bargaining, and what role Congress contem- lumbia University and other parties have identified cases where bar- plated for economic weapons as part of the collective- gaining by student assistants “has proven detrimental to the pursuit of bargaining process.” I elaborated as follows: the school’s educational goals,” with “strikes and grievances over teaching workload and tuition waivers” and “grievances over classroom What one hopes to see in any collective-bargaining assignments and eligibility criteria for assistantships,” but my col- dispute is its successful resolution without any party’s leagues dismiss these examples as “labor disputes” that are merely a resort to economic weapons. But what Congress in- “fact of economic life.” Majority opinion, supra, slip op. at 10. I disagree with my colleagues’ selective attachment of significance tended was for the Board to preserve the balance of to the examples of peaceful negotiations involving student assistants— competing interests—including potential resort to eco- none of which involves economic weapons permitted under the nomic weapons—that Congress devised as the engine NLRA—and with their summary discounting of examples that go the driving parties to resolve their differences and to enter other way. In my view, what should be controlling here are two unas- sailable propositions: collective bargaining under the NLRA involves into successful agreements. As the Supreme Court the potential use of leverage through threatened or inflicted economic injury; and even among parties that negotiate in good faith with the best 32 Majority opinion, supra, slip op. at 7. intentions, disputes involving resort to protected economic weapons by COLUMBIA UNIVERSITY 29

Of course, determining that student assistants are “em- ! Lockouts. The university could implement a lock- ployees” and have the right to be represented by a union out, which would require student assistants to under the NLRA does not mean they will choose to be cease working, and all remuneration would be represented. Likewise, as stated above, I am not predict- suspended. ing that most negotiations involving student assistants ! Loss, Suspension or Delay of Academic Credit. If will involve resort to economic weapons. Nonetheless, a student assistant ceases work based on an eco- in this particular context, I believe collective bargaining nomic strike or lockout, it appears clear they and its attendant risks and uncertainties will tend to de- would have no entitlement to credit for require- tract from the primary reason that students are enrolled at ments that are not completed, such as satisfactory a university—to satisfy graduation requirements, includ- work in a student assistant position for a pre- ing in many cases the satisfactory completion of service scribed period of time. For example, if a particu- in a student assistant position. And in some cases in- lar degree required two semesters of service as a volving student assistants, it is predictable that break- Teaching Assistant, and a student assistant could downs in collective bargaining will occur, and the result- not satisfy that requirement because of a strike or ing resort to economic weapons may have devastating lockout that persisted for two semesters, it appears consequences for the students, including, potentially, clear the student assistant would not be entitled to inability to graduate after paying $50,000 to $100,000 or receive his or her degree. more for the opportunity to earn a degree.36 ! Suspension of Tuition Waivers. In the event of a Now that, with today’s decision, student assistants are strike or lockout where the university suspended employees under the NLRA, what economic weapons are tuition waivers or other financial assistance that available to student assistants and the universities they was conditioned on the student’s work as a student attend? They would almost certainly include the follow- assistant, students would likely be foreclosed from ing: attending classes unless they paid the tuition. ! Strikes. Student assistants could go on strike, Thus, the student assistant’s attendance at universi- which would mean that Teaching Assistants, ty could require the immediate payment of tuition, Teaching Fellows, Preceptors, Course Assistants, which averages $32,410 annually at private uni- Readers, Graders, Graduate Research Assistants versities.38 and Departmental Research Assistants would ! Potential Replacement. In the event of a strike, the cease working, potentially without notice, and the university would have the right to hire temporary university could suspend all remuneration.37 or permanent replacements. If permanent replacements were hired during an economic strike, one or both parties arise with regularity under our statute. I have no this would mean that even if a student uncondi- quarrel with the notion that colleges and universities should construc- tionally offered to resume working at the end of tively engage with their students, including student assistants, in a variety of ways. Yet I believe such engagement need not necessarily the strike, the university could retain the replace- take the form of collective bargaining under the NLRA and instead may ments, and the student assistant would not be rein- take place (and, I am sure, has taken place and is taking place) “without stated unless and until a vacancy arose through the the intervention of the Board enforcing a statutory requirement.” First departure of a replacement or the creation of a new National Maintenance Corp. v. NLRB, 452 U.S. 666, 681 fn. 19 (1981). 36 The College Board reports that average annual tuition and fees at a position. Here as well, one would expect that the private four-year college total $32,410, which means that four years’ student would be required to pay full tuition in or- worth of average tuition and fees total $129,640 at private universities. der to be permitted to attend classes, without re- See https://bigfuture.collegeboard.org/pay-for-college/college- gard to whatever tuition waiver or other financial costs/college-costs-faqs (last viewed July 29, 2016). If a college career stretches to six years, which is the most common time period used to aid was previously provided in consideration of evaluate whether incoming students will graduate from a four-year the student’s services as a student assistant. Simi- college (see fn. 3, supra and accompanying text), average tuition and larly, any failure to satisfy degree requirements as- fees at a private university would total $194,460. These figures do not sociated with a student assistant’s work as a stu- include additional expenditures for room, board, and other living expenses. dent assistant would preclude attainment of the 37 In the event of a strike or lockout, an employer under the NLRA degree. has the right to discontinue all wages and other forms of remuneration, with the sole exception of those wages or benefits that have already for the employer,” absent proof that the benefits in question were “ac- accrued, the payment of which does not depend on the performance of crued,” which means “due and payable on the date on which the em- work. See Texaco, Inc., 285 NLRB 241, 245 (1987) (“[A]n employer ployer denied [them].”). See also Ace Tank & Heater Co., 167 NLRB is not required to finance a strike against itself by paying wages or 663, 664 (1967). similar expenses dependent on the continuing performance of services 38 See fn. 33, supra. 30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

! Loss of Tuition Previously Paid. If a student assis- ! Witness Statement Disclosure. In the above extant paid his or her own tuition (again, currently ample, witness statements submitted by your son averaging $32,410 per year at a private universi- or daughter about sexual harassment by a student ty)39 and only received a cash stipend as compen- assistant must be disclosed to the union, unless (i) sation for work as a student assistant, there appears the university can prove that the statement’s sub- to be little question that the student’s tuition could mission was conditioned on confidentiality, and lawfully be retained by the university even if a (ii) even then, the statement must be disclosed un- strike by student assistants persisted for an entire less the university can prove that your son or year, during which time the student was unable to daughter needs protection, or other circumstances satisfy any requirements for satisfactory work in outweigh the union’s need for the witness state- his or her student assistant position. ment.41 ! Misconduct, Potential Discharge, Academic Sus- ! Invalidating Rules Promoting Civility. The uni- pension/Expulsion Disputes. During and after a versity will be found to have violated the NLRA if strike, employees remain subject to discipline or it requires student assistants to maintain “harmoni- discharge for certain types of strike-related mis- ous interactions and relationships” with other stu- conduct. Correspondingly, there is little question dents.42 that a student assistant engaged in a strike would ! Invalidating Rules Barring Profanity and Abuse. remain subject to academic discipline, including The university cannot adopt a policy against “loud, possible suspension or expulsion, for a variety of abusive or foul language” or “false, vicious, pro- offenses. In such cases, I anticipate that parties fane or malicious statements” by student assis- will initiate Board proceedings alleging that stu- tants.43 dents were unlawfully suspended or expelled for ! Outrageous Conduct by Student Assistants. The NLRA-protected activity, even though nothing in university must permit student assistants to have the Act permits the Board to devise remedies that angry confrontations with university officials in relate to an individual’s academic standing, sepa- grievance discussions, and the student assistant rate and apart from his or her “employment.” cannot be lawfully disciplined or removed from his or her position even if he or she repeatedly It is also a mistake to assume that today’s decision re- screams, “I can say anything I want,” “I can swear lates only to the creation of collective-bargaining rights. if I want,” and “I can do anything I want, and you Our statute involves wide-ranging requirements and ob- can’t stop me.”44 ligations. For example, existing Board cases require em- ! Outrageous Social Media Postings by Student As- ployers subject to the NLRA to tolerate actions by em- sistants. If a student assistant objects to actions by ployees that most reasonable people would find objec- a professor-supervisor named “Bob,” the universi- tionable, and it is unlawful for employers to adopt overly ty must permit the student to post a message on broad work rules to promote respect and civility by em- Facebook stating: “Bob is such a nasty mother ployees. Therefore, parents take heed: if you send your fucker, don’t know how to talk to people. Fuck teenage sons or daughters to college, the Board majori- his mother and his entire fucking family.”45 ty’s decision today will affect their “college experience” ! Disrespect and Profanity Directed to Faculty Su- in the following ways: pervisors. The university may not take action ! Non-Confidential Investigations. If your son or against a student assistant who screams at a pro- daughter is sexually harassed by a student assistant fessor-supervisor and calls him a “fucking crook,” and an investigation by the university ensues, the a “fucking mother fucking” and an “asshole” when university will violate federal law (the NLRA) if it routinely asks other student-assistant witnesses to 41 See, e.g., Piedmont Gardens, supra, 362 NLRB No. 139. These keep confidential what is discussed during the uni- disclosures, though required by the NLRB, may also directly conflict versity’s investigation.40 with nondisclosure obligations under FERPA. See fn. 29, supra. 42 See, e.g., William Beaumont Hospital, 363 NLRB No. 162 (2016); 2 Sisters Food Group, 357 NLRB 1816 (2011). 39 See fn. 33, supra. 43 See Flamingo Hilton-Laughlin, 330 NLRB 287 (1999); Lafayette 40 See, e.g., Banner Estrella Medical Center, supra, 362 NLRB No. Park Hotel, 326 NLRB 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999); 137. These disclosures, though required by the NLRB, may directly Cincinnati Suburban Press, Inc., 289 NLRB 966, 975 (1988). conflict with nondisclosure obligations under the Family Educational 44 See United States Postal Service, 364 NLRB No. 62 (2016). Rights and Privacy Act (FERPA). See fn. 29, supra. 45 See Pier Sixty, LLC, 362 NLRB No. 59 (2015). COLUMBIA UNIVERSITY 31

the student assistant is complaining about the the filing of a ULP charge, which is investigated by one treatment of student assistants.46 of the Board’s regional offices, which decides whether to The above examples constitute a small sampling of the issue a complaint, and if complaint issues, this is fol- unfortunate consequences that will predictably follow lowed by a hearing before an administrative law judge, from the majority’s decision to apply our statute to stu- with posthearing briefing in most cases. After the judge dent assistants at colleges and universities. The primary issues a decision, parties have the right to file exceptions purpose of a university is to educate students, and the to that decision with the Board (in other words, they may Board should not disregard that purpose in finding that appeal), with further briefing by the parties. Ultimately, student assistants are employees and therefore subject to the Board renders a decision, which may be appealed to a all provisions of the NLRA. federal court of appeals. In addition, when the Board has 2. The Board’s Processes and Procedures Are Incom- found a violation and has ordered backpay and other re- patible with Applying the Act to University Student Assis- medial measures, there are additional compliance pro- tants. Another frailty associated with applying the ceedings handled by the Board’s regional offices, which NLRA to student assistants at universities relates to the can result in additional hearings before administrative cumbersome and time-consuming nature of the Board’s law judges, additional posthearing briefs, supplemental processes and procedures, which makes those processes decisions by the judges, and further appeals to the Board and procedures especially ill suited to students in a uni- and the courts. In spite of everyone’s best efforts, this versity setting. lengthy litigation process consumes substantial time and The Board has engaged in well-publicized efforts to too often causes unacceptable delays before any Board- expedite the handling of representation cases, and in ordered relief becomes available to the parties. Unfair 2014 the Board issued an election rule that dramatically labor practice cases may easily be litigated for three to revised the Agency’s representation-case procedures. five years before the Board issues a decision, and some See 79 Fed. Reg. 74, 308 (2014) (Election Rule). How- cases take even longer. See, e.g., CNN America, Inc., ever, notwithstanding the Board’s commitment to resolve 361 NLRB No. 47 (2014) (alleged ULPs requiring 82 representation cases as quickly as possible, doing so has days of trial, more than 1,300 exhibits, more than 16,000 sometimes proven difficult in cases involving colleges transcript pages, and more than 10 years of Board litiga- and universities. In part, these difficulties and resulting tion, and the case still remains pending on appeal); delays are owing to the fact that the religious affiliation Dubuque Packing Co., 287 NLRB 499 (1987), remanded of a college or university may entirely preclude the sub nom. UFCW Local 150-A v. NLRB, 880 F.2d 1422 Board’s exercise of jurisdiction.47 However, even when (D.C. Cir. 1989), on remand 303 NLRB 386 (1991), representation cases involve universities that are not reli- enfd. in relevant part sub nom. UFCW Local 150-A v. giously affiliated, Board proceedings may still involve NLRB, 1 F.3d 24 (D.C. Cir. 1993), cert. granted 511 U.S. significant time, and the filing of election-related unfair 1016 (1994), cert. dismissed 511 U.S. 1138 (1994) (alleged ULPs requiring 13 years of Board and court litiga- labor practice charges may delay scheduled elections for 49 months or years under the Agency’s “blocking charge” tion). doctrine.48 In the time it takes a typical NLRA case to be litigated The Board’s handling of alleged unfair labor practices and decided by the Board and the courts, the academic (ULPs) takes even more time. Our procedures require world may experience developments that dramatically change or even eliminate entire fields of study. Moreo- ver, not only does a student assistant’s position have a 46 See Plaza Auto Center, Inc., 360 NLRB No. 117 (2014). 47 See, e.g., Seattle University, 364 NLRB No. 84 (2016) (represen- fixed duration, but the student status of the individual tation proceedings involving religiously affiliated university where representation petition was filed February 20, 2014, and the Board’s 49 Sec. 10(j) of the NLRA authorizes the Board’s General Counsel to decision issued on August 23, 2016); St. Xavier University, 364 NLRB initiate proceedings in federal district court seeking interim injunctive No. 85 (2016) (representation proceedings involving religiously affili- relief in certain cases, but the ultimate resolution of those disputes does ated university where representation petition was filed April 12, 2011, not occur until the Board’s disposition on the merits (subject to further and the Board’s decision issued on August 23, 2016); Duquesne Uni- appellate review). Moreover, the General Counsel is necessarily selec- versity, Case 6-RC-80933 (representation proceedings involving reli- tive when evaluating whether particular cases warrant efforts to seek giously affiliated university where representation petition was filed Sec. 10(j) relief, and there is no certainty that such relief, when sought, May 14, 2012 and remains pending before the Board). See generally will be granted by the court. See, e.g., Osthus v. Ingredion, Inc., Case Pacific Lutheran University, 361 NLRB No. 157 (2014). No. 16-CV-38-LRR, 2016 WL 4098541 (N.D. Iowa July 28, 2016) 48 The Board’s treatment of delays associated with blocking charges (denying Sec. 10(j) petition on the basis that the Board “failed to meet was not materially changed in the Election Rule. See 79 Fed. Reg. at its burden to demonstrate that irreparable injury is likely to occur ab- 74,455–74,456 (dissenting views of Members Miscimarra and John- sent injunctive relief”). son). 32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD occupying that position may itself come to an end long simultaneously a student but already had his doctoral before a Board case affecting him or her is resolved. degree,” id. at 640 fn. 8. Similarly, in Leland Stanford Students generally attend university for the purpose of Junior University, 214 NLRB at 621, the Board again doing something else—i.e., to obtain post-graduation concluded that student research assistants “are primarily employment, or to go on to post-doctoral or other post- students [and] not employees.” Id. at 623. Even during graduate studies. Moreover, it is not uncommon for stu- the brief period when the Board considered student in- dents to change majors, and faculty members also come structors to be employees under the Act, the Board ad- and go. In these respects, treating student assistants as hered to precedent holding that student research assis- employees under the NLRA is especially poorly matched tants are not Section 2(3) employees. See NYU, 332 to the Board’s representation and ULP procedures.50 NLRB at 1209 fn. 10 (applying Leland Stanford and 3. Other Considerations Undermine the Appropriate- finding that student research assistants were not employ- ness of the Petitioned-For Bargaining Unit. I believe the ees); see also Brown, 342 NLRB at 483 (graduate student Board should find that student assistants are not employ- assistants, including research assistants, are not employees for purposes of Section 2(3) of the Act. Therefore, I ees under Section 2(3) of the Act). need not reach whether the bargaining unit sought in the The facts regarding the research officers here differ in instant case is an appropriate bargaining unit. Nonethe- no material respect from those of the student research less, I will address two considerations that render the assistants in Leland Stanford, NYU, and Brown. Here, as petitioned-for unit particularly problematic. in each of those cases, the students perform research as Preliminarily, however, I address an issue that is prior part of their progress towards a degree and are primarily to appropriate-unit considerations: the majority’s deci- students. Accordingly, based on a line of precedent that sion to reject not only Brown University but an unbroken, remained unbroken for more than 40 years, I believe the decades-old line of precedent holding that research assis- Board cannot reasonably find that research assistants are tants are not employees under Section 2(3) of the Act. employees for purposes of the Act. Research assistants are graduate students, usually in the Turning to appropriate-unit considerations, I believe hard sciences, who conduct research projects funded by the Board cannot find that the broad array of student as- private institutions or the government, and Columbia sistants here share a sufficient community of interests to requires this research to be directly related to the research warrant their inclusion in a single bargaining unit. The officer’s dissertation. The Board has consistently de- Petitioner seeks to represent all “student employees” who clined to find student research assistants to be employees engage in “instructional services,” including “graduate under the Act. In Adelphi University, the Board declined and undergraduate Teaching Assistants,” “Teaching Fel- to include graduate student research assistants in a unit of lows,” “Preceptors,” “Course Assistants,” “Readers,” regular faculty on the basis that the research assistants “Graders,” “Graduate Research Assistants” and “De- were “primarily students,” 195 NLRB at 640, and it dis- partmental Research Assistants.” The students within the tinguished student research assistants from a research various classifications in the petitioned-for unit vary con- assistant deemed eligible in another case who “was not siderably in terms of their duties, levels of responsibility, remuneration, and expected length of service. Although 50 At various points, my colleagues analogize student assistants to in- I would decline jurisdiction over the entire proposed unit termittent workers, “seasonal” workers, and “workforces . . . with sig- on the basis that student assistants are not “employees,” nificant turnover.” These analogies fail to reflect substantial differ- and therefore I need not and do not reach or analyze the ences that exist between conventional employees whose work may be sporadic and student assistants. Even if conventional employees per- various issues relating to whether the proposed unit is form sporadic work, their employment most often contemplates that appropriate, the evidence in the record demonstrates that they will remain in the workforce, often in the same line of work and what various student officers do and how they are remu- with the same employer. Student assistants nearly always occupy their nerated vary enormously. positions on a short-term basis, with plans to permanently abandon their status as student assistants to complete their education, graduate, For example, some student assistants teach, and re- and obtain other positions. (My colleagues admit as much, noting that search assistants perform research. Course assistants do “student assistants possess a long-term goal of achieving employment neither: they perform clerical duties, such as filing and elsewhere.” Majority opinion, supra, slip op. at 21 fn. 131). This is copying, to help faculty administer courses. Generally, merely one additional reason that the Act is such an imperfect fit for student assistants. See Saga Food Service, 212 NLRB 786, 787 fn. 9 doctoral students have greater autonomy and responsibil- (1974) (finding a unit comprised solely of part-time student cafeteria ity in performing their instructional duties than do mas- workers would not “effectuate the purposes of the Act” “[i]n view of ter’s degree candidates and undergraduates. Some doc- the nature of their employment tenure and our conclusion that their toral students serve as preceptors, fully designing and primary concern is their studies rather than their part-time employment”). implementing their own courses. By contrast, non- COLUMBIA UNIVERSITY 33 doctoral students predominantly grade papers or provide faculty in academia). The Board has recognized that tutoring to their fellow students in laboratory or discus- short-term or finite employment may not be conclusive sion sections. as to temporary status, but it may nonetheless require a Course assistants perform work that is intermittent in finding that certain members of a petitioned-for unit do nature, and they are paid from Columbia’s casual payroll. not share a community of interests with the rest of the Remuneration for master’s degree students and under- unit. Compare Boston Medical Center, 330 NLRB at graduates is awarded only during the semesters that the 166 (finding appropriate a unit of house staff, where all students actually perform duties as student assistants. By employees in the proposed unit were generally employed contrast, doctoral students receive the same funding dur- by the employer for 3 to 7 years) with Goddard College, ing the entire time spent pursuing their degree, whether 216 NLRB 457, 458 (1975) (excluding from a unit of they are performing duties as a student assistant during a full-time faculty visiting faculty who generally stay for certain semester or academic year or not. In contrast to only one semester or one year). Regarding the peti- the intermittent tenure of the course assistants, doctoral tioned-for unit in this case, I do not believe the Board can students generally must spend at least one year teaching, appropriately recognize a single bargaining unit that and sometimes multiple years, in order to obtain their combines course assistants who work a few intermittent degree. Undergraduate and master’s degree students are hours with doctoral candidates who may teach for several not required to serve as student assistants in connection years. with their degree requirements. CONCLUSION In view of these and other fundamental dissimilarities, There is a remarkable, life-changing procedure availa- I believe the petitioned-for unit would likely be inappro- ble for those fortunate enough to undergo it. During this priate under any community-of-interest test, including procedure, the participants remain awake, they are close- the one stated in Specialty Healthcare.51 ly evaluated while answering complex questions for an The second consideration that, in my view, undermines extended period of time, and they are monitored while the appropriateness of the petitioned-for unit relates to performing other tasks as directed, which includes inter- the Board’s treatment of temporary employees, who are acting with others. This life-changing procedure is generally excluded from petitioned-for bargaining units. enormously expensive, and many individuals receive Here, I disagree with my colleagues’ evaluation of the financial assistance while undergoing it. The procedure student assistants “as a group” and their application of a is so demanding that many participants never complete special rule to all of them—namely, that their tenure “is it. Yet, research shows that successful completion of the not so ephemeral as to vitiate their interest in bargaining procedure improves the rest of the person’s life. It pro- over terms and conditions of employment.”52 This duces substantially more opportunities, higher compensa- standard inappropriately deviates from the Board’s exist- tion, enhanced satisfaction, and greater upward mobility ing principles pertaining to temporary employees by cre- both for the participants and for future generations. ating a special rule for them. See, e.g., Fordham Univer- This describes the role played by colleges and university, 214 NLRB 971, 975 (1974) (rejecting creation of a sities in the United States. My colleagues apply a dis- special rule for temporary employee status governing torted and highly selective lens to this life-changing procedure. Dismissing everything else as “not dispositive,” 51 See Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934, 942 (2011) (citing, among the factors the Board must ex- they conclude that some participants satisfy the defini- amine to determine if a unit is appropriate, “whether the employees are tion of an “employee” because (i) they perform tasks as organized into a separate department; have distinct skills and training; directed, and (ii) they receive financial assistance. Even have distinct job functions and perform distinct work, including inquiry more erroneous, in my view, is the notion that public into the amount and type of job overlap between classifications; . . . have distinct terms and conditions of employment; and are separately policy favors taking participants who are trying to com- supervised”) (citations omitted); see also NYU, 332 NLRB at 1205 fn. plete this life-changing procedure and—while it is being 5, 1209 fn. 10 (excluding research assistants funded by external grants conducted—having them engage in collective bargain- and students who acted as graders and tutors from a unit of graduate ing, which is governed by leverage and the potential assistants). Specialty Healthcare does not govern the appropriateness of the pe- clash of economic interests. It will wreak havoc titioned-for unit in this case because there is no argument that the peti- to have economic weapons wielded by or against partici- tioned-for unit inappropriately excludes other putative employees. In pants during this expensive procedure, especially since any event, however, I would not apply Specialty Healthcare for the the weapons include strikes and lockouts—which reasons stated in my dissenting opinion in Macy’s, Inc., 361 NLRB No. 4, slip op. at 31–33 (2014) (Member Miscimarra, dissenting). can stop the procedure in its tracks—and the permanent 52 Majority opinion, supra, slip op. at 21. replacement of the participants themselves! 34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

The Board has a responsibility to acknowledge the The question here is not whether colleges and universi- enormous complexity, demands and benefits associated ties should constructively engage their students, includ- with every student’s potential graduation from a college ing student assistants, in a variety of ways.57 The ques- and university. In particular, I believe my colleagues tion is whether Congress intended—and whether our improperly focus on the NLRA and “wholly ignore other statute can be reasonably interpreted—to make the and equally important Congressional objectives,”53 espe- NLRA govern the relationship between students and cially the overriding importance of facilitating each stu- their universities merely because students may occupy a dent’s satisfaction of degree requirements. Given the variety of academic positions in connection with their importance of this policy objective—which is reflected education. As noted above, for most students including in numerous federal statutes and regulations governing student assistants, attending college is the most important education, and as to which the Board has no expertise—I investment they will ever make. I do not believe our believe the Board cannot reasonably apply our statute to statute contemplates that it should be governed by bar- student assistants at colleges and universities “without a gaining leverage, the potential resort to economic weap- clear expression of an affirmative intention of Con- ons, and the threat or infliction of economic injury by or gress.”54 No such evidence of Congressional intent ex- against students, on the one hand, and colleges and uni- ists. versities, on the other. “The ‘business’ of a university is education,”55 and For these reasons, and consistent with the Board’s pri- students are not the means of production—they are the or holding in Brown University, I believe the Board “product.” Their successful completion of degree re- should find that the relationship between Columbia and quirements results from the combined commitment of the student assistants in the petitioned-for unit in this faculty, administrators, and the students’ own academic matter is primarily educational, and that student assis- efforts. It is true that the Board has asserted jurisdiction tants are not employees under Section 2(3) of the Act. over faculty members in private, non-exempt colleges Accordingly, I respectfully dissent. and universities, notwithstanding the significant differ- Dated, Washington, D.C. August 23, 2016 ences that exist between the academic and industrial worlds.56 In my view, however, obstacles to fitting the square peg of the NLRA into the round hole of academia ______become insuperable when the petitioned-for “employees” Philip A. Miscimarra, Member are university student assistants.

53 Southern Steamship Co. v. NLRB, 316 U.S. at 47. NATIONAL LABOR RELATIONS BOARD 54 Catholic Bishop, 440 U.S. at 504. 55 Yeshiva, 444 U.S. at 686. 57 See fn. 35, supra. 56 C.W. Post Center, 189 NLRB 904 (1971) (faculty members are professional employees who may bargain collectively). NOTICE: This opinion is subject to formal revision before publication in the Background bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. The Employer manufactures steel, superalloy, and tita- 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. nium castings for use in jet aircraft engines, airframes, industrial gas turbine engines, medical prosthetic devic- PCC Structurals, Inc. and International Association es, and other industry markets. The Employer’s opera- of Machinists & Aerospace Workers, AFL–CIO, tion in the Portland, Oregon area consists of three “profit District Lodge W24. Case 19–RC–202188 and loss centers” located within approximately a 5-mile December 15, 2017 radius of one another. Petitioner and Employer agree ORDER GRANTING REVIEW AND REMANDING that these three centers comprise the entire Portland op- BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE, eration. As described by the Regional Director, the MCFERRAN,KAPLAN, AND EMANUEL manufacturing process is the same at all three facilities. That process involves two stages. The first or “front The Employer requests review of the Regional Direc- end” stage involves creation of the casting. In this stage, tor’s Decision and Direction of Election, in which the production employees create a wax mold of the custom- Regional Director found that a petitioned-for unit of ap- er’s product, “invest” the mold by alternately dipping it proximately 100 full-time and regular part-time rework into a slurry and into sand until a hard ceramic shell is welders and rework specialists employed by the Employ- formed around the wax, and then melt the wax away to er at its facilities in Portland, Clackamas, and Milwaukie, leave the empty ceramic shell, into which liquid metal is Oregon, comprise a unit appropriate for collective bar- poured to create the casting. The second stage (some- gaining.1 The Employer contends that the smallest ap- times referred to as “back end”) involves inspecting and propriate unit is a wall-to-wall unit of 2565 production reworking the casting. The employees in the petitioned- and maintenance employees in approximately 120 job for unit are welders who work in the “back end” stage of classifications. For the reasons stated below, we grant the production process, primarily repairing defects in the review, clarify the applicable standard, and remand this metal castings. The exception is the one rework special- case to the Regional Director for further appropriate ac- ist/crucible repair employee, who appears to work in the tion consistent with this Order.2 “front end” or casting portion of the manufacturing pro- Today, we clarify the correct standard for determining cess. whether a proposed bargaining unit constitutes an appro- To determine the appropriateness of the petitioned-for priate unit for collective bargaining when the employer unit, the Regional Director applied the standard set forth contends that the smallest appropriate unit must include in Specialty Healthcare. As a Board majority explained additional employees. In so doing, and for the reasons its standard in that decision, when a union seeks to repre- explained below, we overrule the Board’s decision in sent a unit of employees “who are readily identifiable as Specialty Healthcare & Rehabilitation Center of Mobile, a group (based on job classifications, departments, func- 357 NLRB 934 (2011) (Specialty Healthcare), enfd. sub tions, work locations, skills, or similar factors), and the nom. Kindred Nursing Centers East, LLC v. NLRB, 727 Board finds that the employees in the group share a F.3d 552 (6th Cir. 2013), and we reinstate the traditional community of interest after considering the traditional community-of interest standard as articulated in, e.g., criteria, the Board will find the petitioned-for unit to be United Operations, Inc., 338 NLRB 123 (2002).3 an appropriate unit” for bargaining. Specialty Healthcare, 357 NLRB at 945–946. If the petitioned-for 1 The Regional Director determined that an additional employee unit is deemed appropriate, the burden shifts to the pro- designated in the petition as a rework specialist/crucible repair employee may vote subject to challenge. Discussion of the Regional Direc- ponent of a larger unit (typically the employer) to tor’s analysis and findings herein relates to the petitioned-for rework demonstrate that the additional employees the proponent welders and rework specialists. seeks to include “share ‘an overwhelming community of The election was held on September 22, 2017. The tally was 54–38 interest’” with the petitioned-for employees, “such that in favor of the Petitioner, with two challenged ballots, a number insufficient to affect the result. there ‘is no legitimate basis upon which to exclude cer- 2 We do not rely on the Regional Director’s citations to Guide Dogs tain employees from’” the petitioned-for unit because the for the Blind, Inc., 359 NLRB 1412 (2013), a decision that included traditional community-of-interest factors “‘overlap al- two members whose appointments were subsequently found invalid by most completely.’” Id. at 944 (quoting Blue Man Vegas, the Supreme Court. See NLRB v. Noel Canning, 134 S.Ct. 2550 (2014). 3 Additionally, for the reasons stated by former Member Hayes in LLC v. NLRB, 529 F.3d 417, 422 (D.C. Cir. 2008)). his dissenting opinion in Specialty Healthcare, we reinstate the standard established in Park Manor Care Center, 305 NLRB 872 (1991), for ties. See Specialty Healthcare, 357 NLRB at 948–950 (Member determining appropriate bargaining units in nonacute healthcare facili- Hayes, dissenting).

365 NLRB No. 160

Reprinted with Permission 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Applying the foregoing standard, the Regional Direc- Regional Director also based his community-of-interest tor first concluded that the employees in the petitioned- finding on evidence that the petitioned-for employees for unit are readily identifiable as a group on the basis share many of the same terms and conditions of em- that the employees in the proposed unit are welders in ployment, even though all production employees share related job classifications who repair manufacturing de- the same terms and conditions. Thus, all production em- fects in metal castings. ployees, including the petitioned-for employees, work The Regional Director further concluded that the peti- similar hours, are paid on the same wage scale, receive tioned-for rework welders and rework specialists share a the same benefits, are subject to the same employee community of interest amongst themselves under the handbook and work rules, wear similar attire and protec- traditional criteria. In this regard, however, he found that tive gear (steel-toed shoes, safety glasses and hearing two factors weigh against a community-of-interest find- protection), work under the same safety requirements, ing. First, the unit sought by the Petitioner does not con- and participate in ongoing training regarding harassment, form to an administrative grouping or department within safety, and other matters. the Employer’s organizational structure, and the employ- Turning to the second step of the Specialty Healthcare ees in the proposed unit are scattered throughout numer- analysis, the Regional Director rejected the Employer’s ous departments in the Portland operation. Second, the contention that the rest of the production and mainte- petitioned-for employees do not share common supervi- nance employees share an “overwhelming community of sion. Rather, employees with a variety of job titles report interest” with the petitioned-for employees and must to each production supervisor, and no production super- therefore be included in the unit. He acknowledged that visor oversees only the petitioned-for employees. Thus, functional integration weighs in favor of finding an rework welders and rework specialists testified that their overwhelming community of interest between the peti- immediate supervisors “also supervise rework grinders, tioned-for employees and the rest of the production em- visual dimensional inspectors, x-ray shooters and read- ployees: rework welders and rework specialists function ers, and florescent penetrant inspectors.” as part of an integrated production process, repairing Notwithstanding these two factors adverse to the pro- defects identified by other employees and working in posed unit, the Regional Director found that a number of “rework teams” that include employees in other job clas- factors favor a finding that the petitioned-for employees sifications. He also recognized that the petitioned-for share a community of interest with one another, includ- unit does not track departmental lines and the employees ing shared skills, training, certification requirements, and therein are not separately supervised. But he concluded in-house training requirements. He also found that the that the Employer did not carry its burden to establish petitioned-for rework welders and rework specialists are that the smallest appropriate unit is a wall-to-wall pro- functionally integrated amongst themselves because they duction and maintenance unit. In this regard, he deter- all perform the same work: repairing defects in metal mined that shared terms and conditions of employment castings.4 As for employee contact, the Regional Direc- constituted a neutral factor: on one hand, all of the Em- tor found that rework welders and rework specialists ployer’s production and maintenance employees are sub- work either in open-air chambers or in booths, and the ject to the same policies and rules, work similar hours, booths are adjacent to one another.5 While evidence of are paid under the same wage structure, receive the same temporary interchange with employees outside the pro- benefits, and wear the same attire and protective equip- posed unit was inconclusive, and such interchange ap- ment; on the other hand, the welders are paid at the high pears minimal, the Regional Director found permanent end of the pay scale, and they use distinctive welding and interchange within the petitioned-for unit in that all re- metalwork equipment. Further, the Regional Director work specialists were previously rework welders.6 The found that the welders’ distinct qualifications and training, their performance of distinct job duties, their limited 4 Rework specialists perform additional tasks as well: training re- contact with other employees, and the lack of significant work welders and providing other project support. Rework specialists interchange across proposed-unit lines all weigh against outrank rework welders. Applicants for rework specialist positions are a finding that the petitioned-for employees share an required to be step 6 rework welders—the highest rework-welder step—with a minimum of 5 years’ experience at step 6. overwhelming community of interest with the remainder 5 The Regional Director made no findings regarding the location of of the production and maintenance employees. the open-air chambers or whether they are adjacent to other open-air chambers or to the welding booths. are paid near the high end of the wage scale, to move into nonwelding 6 Approximately 55 of the petitioned-for welders previously held positions other than managerial positions. other positions with the Employer. However, it is rare for welders, who PCC STRUCTURALS, INC.3

In its request for review, the Employer contends that Second, Congress contemplated that whenever unit Specialty Healthcare was wrongly decided. Alternative- appropriateness is questioned, the Board would conduct a ly, the Employer argues that even under the Specialty meaningful evaluation. Section 9(b) states: “The Board Healthcare standard, the petitioned-for employees are shall decide in each case whether, in order to assure to not a readily identifiable group, and they share an over- employees the fullest freedom in exercising the rights whelming community of interest with the remainder of guaranteed by this Act, the unit appropriate for the pur- the production and maintenance employees. In arguing poses of collective bargaining shall be the employer unit, that the Board should overrule Specialty Healthcare, the craft unit, plant unit, or subdivision thereof.”9 Referring Employer contends that in Specialty Healthcare, the to the “natural reading” of the phrase “in each case,” the Board effectively abdicated its duty to determine an ap- Supreme Court has stated that propriate unit on a case-by-case basis as required by Sec- tion 9(b) of the Act; that it gave controlling weight to the whenever there is a disagreement about the appropri- extent of union organizing in making unit determina- ateness of a unit, the Board shall resolve the dispute. tions; that the Specialty Healthcare standard results in Under this reading, the words “in each case” are syn- the proliferation of fractured bargaining units because it onymous with “whenever necessary” or “in any case in ignores the importance of shared interests among peti- which there is a dispute.” Congress chose not to enact tioned-for and excluded employees; and that it does not a general rule that would require plant unions, craft un- adequately consider the Section 7 rights of excluded em- ions, or industry-wide unions for every employer in ployees. every line of commerce, but also chose not to leave the decision up to employees or employers alone. Instead, Discussion the decision “in each case” in which a dispute arises is A. The Board’s Role in Determining Appropriate to be made by the Board.10 Bargaining Units Third, the language in Section 9(b) as it now exists re- The National Labor Relations Act (NLRA or Act) and sulted from intentional legislative choices made by Con- its legislative history establish three benchmarks that gress over time, and the history of those changes reveals must guide the Board in making determinations regard- an increasing emphasis on the role to be played by the ing appropriate bargaining units. Board in determining appropriate bargaining units. The First, Section 9(a) of the Act provides that employees earliest versions of the Wagner Act legislation, intro- have a right to representation by a labor organization duced in 1934, did not contain the phrase “in each case,” “designated or selected for the purposes of collective nor did they state that the Board must “assure to employ- bargaining by the majority of the employees in a unit ees the fullest freedom in exercising the rights guaran- appropriate for such purposes.”7 Thus, questions about teed by this Act.” The initial wording simply stated: unit appropriateness are to be resolved by reference to “The Board shall determine whether eligibility to partici- the “purposes” of representation, should a unit majority pate in elections shall be determined on the basis of the choose to be represented—namely, “collective bargain- employer unit, craft unit, plant unit, or other appropriate ing.”8 grouping.”11

7 Sec. 9(a) (emphasis added). The Supreme Court has indicated that Sec. 9(a) “suggests that employees may seek to organize ‘a unit’ that is whole of the collective-bargaining relationship, each unit determina- ‘appropriate’—not necessarily the single most appropriate unit.” Amer- tion, in order to further effective expression of the statutory purposes, ican Hospital Assn. v. NLRB, 499 U.S. 606, 610 (1991) (emphasis in must have a direct relevancy to the circumstances within which collec- original; citations omitted). See also Serramonte Oldsmobile, Inc. v. tive bargaining is to take place. For, if the unit determination fails to NLRB, 86 F.3d 227, 236 (D.C. Cir. 1996) (the NLRB “need only select relate to the factual situation with which the parties must deal, effi- an appropriate unit, not the most appropriate unit”). cient and stable collective bargaining is undermined rather than fos- 8 As the Board observed 55 years ago: tered. As we view our obligation under the statute, it is the mandate of Con- Kalamazoo Paper Box Co., 136 NLRB 134, 137 (1962) (emphasis gress that this Board “shall decide in each case . . . the unit appropriate added; internal footnotes omitted). 9 for the purpose of collective bargaining.” In performing this function, NLRA Sec. 9(b) (emphasis added). 10 the Board must maintain the two-fold objective of insuring to employ- American Hospital Assn. v. NLRB, 499 U.S. at 611 (emphasis ees their rights to self-organization and freedom of choice in collective added). See also id. at 614 (Sec. 9(b) requires “that the Board decide bargaining and of fostering industrial peace and stability through col- the appropriate unit in every case in which there is a dispute.”). 11 lective bargaining. In determining the appropriate unit, the Board de- See, e.g., S. 2926, 73d Cong. § 207 (1934), reprinted in 1 NLRB, lineates the grouping of employees within which freedom of choice Legislative History of the National Labor Relations Act, 1935 (herein- may be given collective expression. At the same time it creates the after “NLRA Hist.”) 11 (1949). See also S. 2926, 73d Cong. § 10(a) context within which the process of collective bargaining must func- (1934), reprinted in 1 NLRA Hist. 1095 (“The Board shall decide tion. Because the scope of the unit is basic to and permeates the whether eligibility to participate in a choice of representatives shall be 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

When reintroduced in 1935, the legislation added a In 1947, in connection with the Labor Management statement that unit determinations were “to effectuate the Relations Act (Taft-Hartley Act or LMRA), Congress policies of this Act.”12 When reported out of the Senate devoted further attention to the Board’s unit determina- Labor Committee, the legislation stated that the Board tions. The LMRA amended Section 7 so that, in addition “shall decide in each case” the appropriateness of the to protecting the right of employees to engage in protect- unit.13 Regarding this language, a House report stated: ed activities, the Act protected “the right to refrain from any or all of such activities.”16 The LMRA also added Section 9(b) provides that the Board shall determine Section 9(c)(5) to the Act, which states: “In determining whether, in order to effectuate the policy of the bill . . . , whether a unit is appropriate . . . the extent to which the the unit appropriate for the purposes of collective bar- employees have organized shall not be controlling.”17 A gaining shall be the craft unit, plant unit, employer unit, House report—although recognizing that the Board pos- or other unit. This matter is obviously one for determi- sesses “wide discretion in setting up bargaining units”— nation in each individual case, and the only possible explained that this language workable arrangement is to authorize the impartial governmental agency, the Board, to make that determi- strikes at a practice of the Board by which it has set up nation.14 as units appropriate for bargaining whatever group or groups the petitioning union has organized at the time. In the final enacted version of the Wagner Act, Section 9(b) Sometimes, but not always, the Board pretends to find stated that the Board’s unit determinations “in each case” reasons other than the extent to which the employees were “to insure to employees the full benefit of their right to have organized as ground for holding such units to be self-organization, and to collective bargaining, and other- appropriate. . . . While the Board may take into consid- 15 wise to effectuate the policies of this Act.” eration the extent to which employees have organized, this evidence should have little weight, and . . . is not to determined on the basis of employer unit, craft unit, plant unit, or other be controlling.18 appropriate unit.”). 12 See S. 1958, 74th Cong. § 9(b) (1935), reprinted in 1 NLRA Hist. Finally, the LMRA also amended Section 9(b) to state—as 1300 (“The Board shall decide whether, in order to effectuate the policies of this Act, the unit appropriate for the purposes of collective bar- it presently does—that the Board shall make bargaining unit gaining shall be the employer unit, craft unit, plant unit, or other unit.”). determinations “in each case” in “order to assure to employ- 13 See S. 1958, 74th Cong. § 9(b) (1935), reprinted in 2 NLRA Hist. ees the fullest freedom in exercising the rights guaranteed by 2291 (emphasis added). The full provision stated: “The Board shall [the] Act.”19 decide in each case whether, in order to effectuate the policies of this Act, the unit appropriate for the purposes of collective bargaining shall This legislative history demonstrates that Congress in- be the employer unit, craft unit, plant unit, or other unit.” Id. See also tended that the Board’s review of unit appropriateness H.R. 7937, 74th Cong. § 9(b), reprinted in 2 NLRA Hist. 2850 (same); would not be perfunctory. In the language quoted above, H.R. 7978, 74th Cong. § 9(b), reprinted in 2 NLRA Hist. 2862 (same). Section 9(b) mandates that the Board determine what The Senate report accompanying S. 1958 explained: “Obviously, there can be no choice of representatives and no bargaining unless units for constitutes an appropriate unit “in each case,” with the such purposes are first determined. And employees themselves cannot additional mandate that the Board only approve a unit choose these units, because the units must be determined before it can configuration that “assure[s]” employees their “fullest be known what employees are eligible to participate in a choice of any freedom” in exercising protected rights. Although more kind.” S. Rep. 74-573, at 14 (1935), reprinted in 2 NLRA Hist. 2313 (emphasis added). The language remained unchanged when adopted by the Senate. See S. 1958, 74th Cong. § 9(b) (1935), reprinted in 2 16 NLRA Sec. 7 (emphasis added). See also H.R. Rep. 80-245, at 27 NLRA Hist. 2891 (version of S. 1958 passed by the Senate and referred (1947), reprinted in 1 NLRB, Legislative History of the Labor Man- to the House Committee of Labor). The same language was contained agement Relations Act, 1947 (hereinafter LMRA Hist.) 318 (1948) (“A in H.R. 7978, 74th Cong. § 9(b) (1935), reprinted in 2 NLRA Hist. committee amendment assures that when the law states that employees 2903 (version of Wagner Act legislation reported by the House Com- are to have the rights guaranteed in section 7, the Board will be pre- mittee on Education and Labor). vented from compelling employees to exercise such rights against their 14 H.R. Rep. 74-969, at 20 (1935), reprinted in 2 NLRA Hist. 2930 will . . . . In other words, when Congress grants to employees the right (emphasis added). to engage in specified activities, it also means to grant them the right to 15 S. 1958, 74th Cong. § 9(b) (1935), reprinted in 2 NLRA Hist. refrain from engaging therein if they do not wish to do so.”). 3039 (emphasis added) (Senate-passed bill reported by the House 17 NLRA Sec. 9(c)(5). Committee on Education and Labor). The same language was con- 18 H.R. Rep. 80–245, at 37 (1947), reprinted in 1 LMRA Hist. 328 tained in the version adopted by the House, see S. 1958, 74th Cong. § (emphasis added), citing Matter of New England Spun Silk Co., 11 9(b) (1935), reprinted in 2 NLRA Hist. 3244, in the version adopted by NLRB 852 (1939); Matter of Botany Worsted Mills, 27 NLRB 687 the Conference Committee, see H.R. Rep. 74-1371, at 2, reprinted in 2 (1940). NLRA Hist. 3253-3254, and in the version that was enacted. See 49 19 NLRA Sec. 9(b) (emphasis added). See, e.g., S. 1126, 80th Cong. Stat. 449, S. 1958, 74th Cong. § 9(b) (1935), reprinted in 2 NLRA Hist. § 9(b), reprinted in 1 LMRA Hist. 117; H.R. 3020, 80th Cong. § 9(b), 3274. reprinted in 1 LMRA Hist. 244–245. PCC STRUCTURALS, INC.5 than one appropriate unit might exist, the statutory lan- Thus, in Wheeling Island Gaming,21 where the Board guage plainly requires that the Board “in each case” con- applied its traditional community-of-interest test, the sider multiple potential configurations—i.e., a possible Board indicated that it “employer unit,” “craft unit,” “plant unit” or “subdivision thereof.” never addresses, solely and in isolation, the question It is also well established that the Board may not certi- whether the employees in the unit sought have interests fy petitioned-for units that are “arbitrary” or “irration- in common with one another. Numerous groups of al”—for example, where functional integration and simi- employees fairly can be said to possess employment larities between two employee groups “are such that nei- conditions or interests “in common.” Our inquiry— ther group can be said to have any separate community though perhaps not articulated in every case— of interest justifying a separate bargaining unit.”20 How- necessarily proceeds to a further determination whether ever, it appears clear that Congress did not intend that the the interests of the group sought are sufficiently distinct petitioned-for unit would be controlling in all but those from those of other employees to warrant the estab- 22 extraordinary cases when the evidence of overlapping lishment of a separate unit. interests between included and excluded employees is The required assessment of whether the sought-after overwhelming, nor did Congress anticipate that every employees’ interests are sufficiently distinct from those petitioned-for unit would be accepted unless it is “arbi- of employees excluded from the petitioned-for group trary” or “irrational.” Congress placed a much higher provides some assurance that extent of organizing will burden on the Board “in each case,” which was to deter- not be determinative, consistent with Section 9(c)(5); it mine which unit configuration(s) satisfy the requirement ensures that bargaining units will not be arbitrary, irra- of assuring employees their “fullest freedom” in exercis- tional, or “fractured”—that is, composed of a gerryman- ing protected rights. dered grouping of employees whose interests are insuffi- B. The Board’s Traditional Community-of-Interest Test ciently distinct from those of other employees to consti- is an Appropriate Framework for Unit Determinations tute that grouping a separate appropriate unit; and it en- To ensure that the statutory mandate set forth above is sures that the Section 7 rights of excluded employees met, the Board traditionally has determined, in each case who share a substantial (but less than “overwhelming”) in which unit appropriateness is questioned, whether the community of interests with the sought-after group are employees in a petitioned-for group share a community taken into consideration. of interest sufficiently distinct from the interests of em- C. The Specialty Healthcare Standard Improperly De- ployees excluded from the petitioned-for group to war- tracts from the Board’s Statutory Responsibility to Make rant a finding that the proposed group constitutes a sepa- Appropriate Bargaining Unit Determinations rate appropriate unit. Throughout nearly all of its histo- The Board majority in Specialty Healthcare described ry, when making this determination, the Board applied a its decision as a mere clarification of preexisting stand- multi-factor test that requires the Board to assess ards for determining appropriate bargaining units. How- whether the employees are organized into a separate ever, we believe the majority in Specialty Healthcare department; have distinct skills and training; have dis- substantially changed the applicable standards. Indeed, the Board majority itself in Specialty Healthcare referred tinct job functions and perform distinct work, including 23 inquiry into the amount and type of job overlap be- to the decision as implementing “changes in the law.” tween classifications; are functionally integrated with In any event, it is not essential to our decision today to the Employer’s other employees; have frequent contact determine whether Specialty Healthcare changed or with other employees; interchange with other employees; have distinct terms and conditions of employment; 21 355 NLRB 637 (2010). 22 Id. at 637 fn. 2 (quoting Newton-Wellesley Hospital, 250 NLRB and are separately supervised. 409, 411–412 (1980) (emphasis in Wheeling Island Gaming)). In New- ton-Wellesley Hospital, the Board commented on a proposed “disparity United Operations, Inc., supra, 338 NLRB at 123. of interests” test that would “require not a showing of similarities among employees in a classification to support a separate unit but in- 20 Trident Seafoods, Inc. v. NLRB, 101 F.3d 111, 120 (D.C. Cir. stead a showing of a disparity of interests among employees in different 1996). See generally Kindred Nursing Centers East, LLC v. NLRB, 727 classifications which would preclude a combination of those classifica- F.3d 552, 558–559 (6th Cir. 2013); Mitchellace, Inc. v. NLRB, 90 F.3d tions into a single broader unit.” 250 NLRB at 411. The Board then 1150, 1157 (6th Cir. 1996); Bry-Fern Care Center Inc. v. NLRB, 21 observed that “the test of ‘disparateness’ . . . is, in practice, already F.3d 706, 709 (6th Cir. 1994); NLRB v. Hardy-Herpolsheimer, 453 encompassed logically within the community-of-interest test as we F.2d 877, 878 (6th Cir. 1972). historically have applied it.” Id. at 411–412. 23 Specialty Healthcare, 357 NLRB at 947. 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD merely clarified then-existing standards. Regardless of group and share a community of interests among them- how they are characterized, the Board majority in Spe- selves, this inward-looking inquiry is controlling, regard- cialty Healthcare did three things that have affected the less of the interests of excluded employees, except for Board’s bargaining-unit determinations since Specialty the rare instance where it can be proven that the excluded Healthcare was decided. employees share an “overwhelming” community of in- First, in Specialty Healthcare, the majority overruled terests with employees in the petitioned-for unit.28 As Park Manor Care Center, supra, which set forth the noted previously, we believe this aspect of Specialty standard for determining appropriate bargaining units in Healthcare undermines fulfillment of the Board’s re- non-acute healthcare facilities.24 sponsibility to “assure” to employees “in each case” their Second, the majority in Specialty Healthcare estab- “fullest freedom” in the exercise of Section 7 rights, as lished that the “traditional community-of-interest ap- stated in Section 9(b) of the Act. Moreover, by extin- proach” would thereafter apply to unit determinations in guishing scrutiny of the interests that excluded employ- such facilities rather than the so-called “pragmatic” test ees have in common with those in the petitioned-for unit described in Park Manor. 357 NLRB at 937-941. except in the rare case where the employer can satisfy its Third and most significantly, although the majority in burden of proving that excluded employees share an Specialty Healthcare nominally was considering unit “overwhelming” community of interests with employees questions specific to non-acute healthcare facilities,25 the in the proposed unit, Specialty Healthcare created a re- Specialty Healthcare decision applied to all workplaces gime under which the petitioned-for unit is controlling in (except acute care hospitals) whenever a party argues all but narrow and highly unusual circumstances. that a petitioned-for unit improperly excludes certain In these respects, Specialty Healthcare detracts from employees. Although the majority purported to apply the what Congress contemplated when it added mandatory traditional community-of-interests standard as exempli- language to Section 9(b) directing the Board to determine fied in Wheeling Island Gaming,26 the Specialty the appropriate bargaining unit “in each case” and man- Healthcare standard discounts—or eliminates altogeth- dating that the Board’s unit determinations guarantee to er—any assessment of whether shared interests among employees the “fullest freedom” in exercising their Sec- employees within the petitioned-for unit are sufficiently tion 7 rights. Most importantly, the enumeration of po- distinct from the interests of excluded employees to war- tential unit configurations in Section 9(b) demonstrates, rant a finding that the smaller petitioned-for unit is ap- inescapably, that Congress intended that the Board “in propriate.27 This aspect of Specialty Healthcare is obvi- each case” would carefully consider the interests of all ous from the majority test itself, under which, if the peti- employees. This is evident from the fact that the types of tioned-for employees are deemed readily identifiable as a bargaining units mentioned in Section 9(b), to be evaluated by the Board in each case, include “the employer 24 As noted above, we reinstate Park Manor Care Center. See supra unit, craft unit, plant unit, or subdivision thereof.” In fn. 3. Prior to issuing its decision in Specialty Healthcare, the Board contrast with this language, Specialty Healthcare gives issued an invitation to the public to file briefs addressing the Park all-but-conclusive deference to every petitioned-for Manor standard and various questions regarding appropriate-unit determinations in non-acute healthcare facilities (which were potentially “subdivision” unit, without attaching any weight to the distinguishable from acute care facilities, in which bargaining-unit interests of excluded employees in potential “employer,” determinations are governed by the Board’s 1989 healthcare rule, 54 “craft,” “plant,” or alternative “subdivision” units, unless Fed. Reg. 16336–16348 (1989)). See Specialty Healthcare, 356 NLRB the employer proves the existence of “overwhelming” 289 (2010). However, Specialty Healthcare swept far beyond this narrow issue to encompass appropriate-unit determinations in all industries. 28 The majority in Specialty Healthcare announced the following test 25 See fn. 24, supra. for making appropriate-unit determinations: 26 357 NLRB at 944–946. The majority’s claim that it was merely [W]hen employees or a labor organization petition for an election in a clarifying and not changing the traditional community-of-interests test unit of employees who are readily identifiable as a group (based on appeared to be necessitated by the fact that then-Chairman Liebman job classifications, departments, functions, work locations, skills, or was in the majority in both Wheeling Island Gaming (where the Board similar factors), and the Board finds that the employees in the group applied the traditional community-of-interest standard) and Specialty share a community of interest after considering the traditional criteria, Healthcare (where, as explained in the text, we believe the Board sub- the Board will find the petitioned-for unit to be an appropriate unit, stantially changed the traditional standard). despite a contention that employees in the unit could be placed in a 27 Indeed, no sooner did the Specialty Healthcare majority opinion larger unit which would also be appropriate or even more appropriate, quote the “sufficiently distinct” standard from Wheeling Island Gaming unless the party so contending demonstrates that employees in the than it set about quibbling with that standard. See Specialty larger unit share an overwhelming community of interest with those in Healthcare, 357 NLRB at 945 (“Of course, that language leaves open the petitioned-for unit. the question of what degree of difference renders the groups’ interests ‘sufficiently distinct.’”). 357 NLRB at 945–946 (emphasis added). PCC STRUCTURALS, INC.7 interests shared between petitioned-for employees and impossible burden of proving that “employees inside and those outside the petitioned-for “subdivision.” The dis- outside [the] proposed unit share an overwhelming crepancy between what Section 9(b) requires, on the one community of interest.”31 It is the Board’s responsibility hand, and what Specialty Healthcare precludes, on the to determine unit appropriateness based on a careful ex- other, is reinforced by Section 9(c)(5), added to the Act amination of the community of interests of employees in 1947, where Congress expressly states that “[i]n de- both within and outside the proposed unit. The Board termining whether a unit is appropriate . . . the extent to reaffirmed this approach in Wheeling Island Gaming,32 in which the employees have organized shall not be control- which it recognized that the Board’s task is to examine ling.” We believe Specialty Healthcare effectively “whether the interests of the group sought are sufficiently makes the extent of union organizing “controlling,” or at distinct from those of other [excluded] employees to war- the very least gives far greater weight to that factor than rant establishment of a separate unit.”33 And in Wheeling statutory policy warrants, because under the Specialty Island Gaming, the Board quoted with approval from Healthcare standard, the petitioned-for unit is deemed Newton-Wellesley Hospital, a decision in which the appropriate in all but rare cases. Section 9(b) and Board found it unnecessary to adopt a proposed “dispari- 9(c)(5), considered together, leave no doubt that Con- ty of interests” test that would “require not a showing of gress expected the Board to give careful consideration to similarities among employees in a classification to sup- the interests of all employees when making unit determi- port a separate unit but instead a showing of a disparity nations, and Congress did not intend that the Board of interests among employees in different classifications would summarily reject arguments, in all but the most which would preclude a combination of those classifica- unusual circumstances, that the petitioned-for unit fails to tions into a single broader unit” on the basis that such a appropriately accommodate the Section 7 interests of test “is, in practice, already encompassed logically within employees outside the “subdivision” specified in the the community-of-interest test as we historically have election petition. applied it.”34 We reject as implausible the Specialty Having reviewed the Specialty Healthcare decision in Healthcare majority’s statement that they were merely light of the Act’s policies and the Board’s subsequent restating and clarifying the Board’s traditional test. Yet, applications of the “overwhelming community of inter- as indicated above, we need not conclusively determine est” standard, we conclude that the standard adopted in whether Specialty Healthcare changed or merely clari- Specialty Healthcare is fundamentally flawed. We find fied the Board’s traditional community-of-interest stand- there are sound policy reasons for returning to the tradi- ard governing appropriate-unit determinations. We tional community-of-interest standard that the Board has merely hold that when it is asserted that the smallest ap- applied throughout most of its history, which permits the propriate unit must include employees excluded from the Board to evaluate the interests of all employees—both petitioned-for unit, the Board will no longer be con- those within and those outside the petitioned-for unit— strained by the extraordinary deference that Specialty without regard to whether these groups share an “over- Healthcare affords to the petitioned-for unit. Rather, whelming” community of interests. In making this find- applying the Board’s traditional community-of-interest ing, we especially rely on the following considerations. factors, the Board will determine whether the petitioned- First, we agree with the view expressed by Chairman for employees share a community of interest sufficiently (then-Member) Miscimarra in his dissent in Macy’s, distinct from employees excluded from the proposed unit Inc.,29 that Specialty Healthcare constituted an unwar- to warrant a separate appropriate unit; and the Board may ranted departure from the standards that have long gov- find that the exclusion of certain employees renders the erned the Board’s appropriate-bargaining-unit determina- petitioned-for unit inappropriate even when excluded tions.30 Despite reciting the traditional test and claiming employees do not share an “overwhelming” community that it was merely clarifying that test, the majority in of interest with employees in the petitioned-for unit. Specialty Healthcare clearly held that “[w]hen the peti- Second, although the Board in Specialty Healthcare tioned-for unit contains employees readily identified as a stated that its decision was “not intended to disturb” rules group who share a community of interest” among them- developed by the Board regarding particular industries,35 selves, an employer opposing this unit as inappropriate subsequent decisions have demonstrated that petitioned- because it excludes certain employees bears the next-to- 31 357 NLRB at 946. 29 361 NLRB 12 (2015), enfd. 824 F.3d 557 (5th Cir. 2016), rehear- 32 355 NLRB at 641–642. 33 ing denied 844 F.3d 188 (5th Cir. 2016), cert. denied 137 S.Ct. 2265 355 NLRB at 637 fn. 2 (emphasis in original). 34 (2017). 250 NLRB at 411–412. 30 Macy’s, supra at 42 (Member Miscimarra, dissenting). 35 357 NLRB at 946 fn. 29. 8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD for units are deemed controlling under Specialty Fourth, applying the historical community-of-interest Healthcare even when a broader unit is clearly com- standard rather than the “overwhelming” community-of- pelled by industry standards. Thus, in Macy’s, supra, a interest requirement will ensure that the Board does not Board majority, over then-Member Miscimarra’s dissent, unduly limit its focus to the Section 7 rights of employ- found appropriate a unit limited to employees in the ees in the petitioned-for unit, while disregarding or dis- store’s cosmetics and fragrances department—one of 11 counting the Section 7 rights of excluded employees ex- sales departments in Macy’s Saugus, Massachusetts cept in the rare case when excluded employees share store—notwithstanding the Board’s longstanding rule “overwhelming” interests (i.e., interests that “‘overlap that favors storewide units in the retail industry.36 In DPI almost completely’”) with petitioned-for employees.41 Secuprint,37 the Board majority, over then-Member John- All statutory employees have Section 7 rights, including son’s dissent, found appropriate a unit consisting of pre- employees that have been excluded from the petitioned- press, digital press, offset bindery, digital bindery, and for unit. And the two core principles at the heart of Sec- shipping and receiving employees—excluding the press tion 9(a)—the principles of exclusive representation and operators and feeder-tenders at the heart of the employ- majority rule—require bargaining-unit determinations er’s functionally integrated production process—even that protect the Section 7 rights of all employees. Hence- though the smaller unit contravened the Board’s “tradi- forth, the Board’s determination of unit appropriateness tional” rule that press and prepress employees should will consider the Section 7 rights of employees excluded ordinarily be included in the same “lithographic unit.”38 from the proposed unit and those included in that unit, As this history shows, the Specialty Healthcare “over- regardless of whether there are “overwhelming” interests whelming community of interest” standard has effective- between the two groups. We believe this corrects the ly superseded the Board’s traditional industry-specific imbalance created by Specialty Healthcare, which makes rules governing appropriate unit determinations, despite “the relationship between petitioned-for unit employees the Specialty Healthcare majority’s claim to the contra- and excluded coworkers irrelevant in all but the most ry.39 exceptional circumstances.”42 Even if Specialty Third, we find that Sections 9(b) and 9(c)(5), consid- Healthcare permits the Board to consider the interests of ered together, strongly favor applying the traditional employees excluded from the petitioned-for unit, we be- community-of-interest standard when making bargaining lieve the overwhelming community-of-interest standard unit determinations, without giving the petitioned-for unduly limits the Board’s discretion when evaluating unit unit an artificial supremacy that substantially limits the appropriateness, and nothing in the Act imposes such a Board’s discretion when discharging its statutory duty to requirement on the Board. Thus, we find that consider- determine unit appropriateness.40 In short, the Board’s ing the interests of excluded employees along with those role “in each case” should be to undertake a broader and in the petitioned-for unit, without the “overwhelming” more refined analysis, and to play a more active role, community-of-interest requirement, better effectuates the when determining whether or not a proposed unit is “ap- policies and purposes of the Act, which requires the propriate” than is allowed under the Specialty Healthcare Board to “assure to employees the fullest freedom in standard. exercising the rights guaranteed by [the] Act.”43

36 See, e.g., May Department Stores Co., 97 NLRB 1007, 1008 41 Specialty Healthcare, supra at 944 (quoting Blue Man Vegas, su- (1952) (calling the “storewide unit” in the retail industry “the optimum pra at 422). unit for the purposes of collective bargaining”). 42 Id. at 948 (Member Hayes, dissenting). See also Cristal USA, 37 362 NLRB No. 172 (2015). Inc., 365 NLRB No. 82, slip op. at 1–2 (2017) (Chairman Miscimarra, 38 See, e.g., AGI Klearfold, LLC, 350 NLRB 538, 540 (2007) (citing dissenting); DTG Operations, supra, 357 NLRB at 2129-2130 (Mem- cases dating back to 1956). ber Hayes, dissenting); Northrop Grumman Shipbuilding, supra, 357 39 Because we have overruled Specialty Healthcare, those decisions NLRB at 2020-2023 (Member Hayes, dissenting). Further, the possi- applying Specialty Healthcare—Macy’s, supra; DPI Secuprint, supra; bility that excluded employees may seek separate representation in one DTG Operations, Inc., 357 NLRB 2122 (2011); and Northrop Grum- or more separate bargaining units does not solve the problem caused by man Shipbuilding, Inc., 357 NLRB 2015 (2011)—are no longer prece- the failure to give reasonable consideration to their inclusion in a larger dential. unit. The Act’s requirement that the Board “assure to employees the 40 As recited in the text, the Act and its legislative history indicate fullest freedom” in exercising protected rights requires the Board “in that Congress requires the Board to undertake a twofold inquiry. First, each case” to consider the interests of all employees—whether or not the Board “shall decide in each case whether” the appropriate unit they are included in the petitioned-for unit—so the Board can “decide” “shall be the employer unit, craft unit, plant unit, or subdivision there- whether the unit should be the “employer unit, craft unit, plant unit, or of.” NLRA Sec. 9(b) (emphasis added). Second, when making such a subdivision thereof.” NLRA Sec. 9(b). decision, the Board must determine which of these groupings “assure[s] 43 Sec. 9(b). to employees the fullest freedom in exercising the rights guaranteed by [the] Act.” Id. (emphasis added). PCC STRUCTURALS, INC.9

We recognize that several reviewing courts have indi- ious courts of appeals have upheld Specialty Healthcare cated that the Specialty Healthcare standard on its face as a permissible interpretation of the Act, the reviewing articulated a permissible standard regarding unit appro- courts have indicated that the community-of-interest test priateness. In most of these cases, however, the courts requires the Board to evaluate shared interests both with- expressly relied on the Specialty Healthcare majority’s in and outside the petitioned-for unit as an essential part recitation of traditional community-of-interest principles, of the first step of the Specialty Healthcare analysis, they attached weight to the claim that the Board was not where the Board determines whether the petitioned-for abandoning those traditional principles, and they relied employees share a community of interests. Of particular heavily on the broad deference that courts afford to the note in this regard is the recent decision of the Second Board when interpreting the Act.44 Moreover, when var- Circuit in Constellation Brands, U.S. Operations, Inc. v. NLRB, 842 F.3d 784 (2d Cir. 2016). In Constellation 44 See, e.g., FedEx Freight, Inc. v. NLRB, 839 F.3d 636, 637 (7th Brands, the Regional Director only considered the com- Cir. 2016) (holding that the “statutory criterion for whether a union can munity of interests shared among the employees within represent a unit of workers is whether the unit is ‘appropriate’ for col- the petitioned-for group before shifting the burden to the lective bargaining, 29 U.S.C. § 159(a), which . . . requires a determination that the members of the unit have common employment con- employer to demonstrate that additional employees cerns—a ‘community of interest’—different from the concerns of the shared an overwhelming community of interest with that company’s other employees”) (emphasis added); Nestle Dreyer's Ice group. Although the Second Circuit upheld the Specialty Cream Co. v. NLRB, 821 F.3d 489, 495 (4th Cir. 2016) (construing the Healthcare framework, it disapproved of the Regional first step of the community-of-interests test to require “examining the community-of-interest factors to determine that the included employees Director’s incomplete community-of-interest analysis at share a community of interest and are unlike all the other employees the the first step of that framework, and the court remanded Employer would include in the unit”) (internal quotations omitted). the case to the Board to apply a construction of Specialty See also Macy’s Inc. v. NLRB, 824 F.3d 557, 568–569 (5th Cir. 2016) Healthcare that requires the Board, at the first step of the (rejecting argument that Specialty Healthcare looks solely and in isolation at whether employees in petitioned-for unit have interests in com- analysis, not only to assess the shared interests among mon with one another); NLRB v. FedEx Freight, Inc., 832 F.3d 432, employees within the proposed unit, but also to explain 441 (3d Cir. 2016) (relying on Specialty Healthcare’s recitation of the why employees outside the proposed unit “have mean- community-of-interest test in finding that the Board “does not look only ingfully distinct interests . . . that outweigh similarities” at the commonalities within the petitioned-for unit” but asks “whether the employees are organized into a separate department . . . [and] have with the included employees. The court stated: distinct skills and training”); Rhino Northwest, LLC v. NLRB, 867 F.3d 95, 100–101, 103 (D.C. Cir. 2017) (concluding that Specialty Our sister circuits have accepted the Specialty Healthcare did not depart from prior precedent, but affirming appropri- Healthcare framework based on the understanding that ateness of bargaining unit where distinctions between petitioned-for it requires the Board to ensure, at step one, that em- and excluded employees “concerning wages, hours, training, supervi- ployees are not inappropriately “excluded [from a bar- sion, equipment, and physical working conditions—[were] significant”). We note that the D.C. Circuit in Rhino Northwest (867 F.3d at gaining unit] on the basis of meager differences.” To 101) cited and relied on its prior decision in Blue Man Vegas, supra, properly apply this framework, the Board must analyze where the court recited the traditional community-of-interest factors as at step one the facts presented to: (a) identify shared in- including “whether, in distinction from other employees, the employees terests among members of the petitioned-for unit, and in the proposed unit have different methods of compensation, hours of work, benefits, supervision, training and skills; if their contact with (b) explain why excluded employees have meaningful- other employees is infrequent; if their work functions are not integrated ly distinct interests in the context of collective bargain- with those of other employees; and if they have historically been part of ing that outweigh similarities with unit members. a distinct bargaining unit.” Blue Man Vegas, supra at 421 (internal quotations omitted; emphasis added). The Board’s decision in Specialty Healthcare itself was enforced by the Court of Appeals for the Sixth Circuit in Kindred Nursing Centers assessment. However, we do not base our decision to overturn the East, supra, where the court found that Specialty Healthcare did not Specialty Healthcare standard on our position that Specialty Healthcare change the extant standard and did not constitute an abuse of discretion is statutorily prohibited. Rather, we base today’s decision on the poli- by the Board. Nevertheless, nothing in Kindred Nursing Centers sug- cies reflected in the Act and its legislative history, the Board’s experi- gests that the Sixth Circuit considered whether Specialty Healthcare ence in applying the pre—and post–Specialty Healthcare standards, improperly limits the Board’s statutory role, contrary to the Act and its and our conclusion that the Act is best served by having the Board legislative history, by affording too much deference to the petitioned- determine unit appropriateness in each case without favoring or disfa- for unit in derogation of Sec. 9(b)’s requirement that the Board “in each voring the bargaining unit described in the petition. case” undertake a broader and more refined analysis, play a more active Consistent with our return to the traditional community-of-interest role, and consider the Section 7 rights of excluded as well as included standard that the Board applied prior to Specialty Healthcare, the Board employees when determining an appropriate unit. See Macy’s, supra, will continue to apply existing principles regarding bargaining units 42 fn. 58 (Member Miscimarra, dissenting). While several courts of that the Board deems presumptively appropriate, and nothing in today’s appeals have concluded that the Specialty Healthcare standard reflects decision changes or abandons those principles. a permissible construction of the Act, we respectfully disagree with that 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Constellation Brands, 842 F.3d at 794 (quoting Nestle of interests with employees excluded from the peti- Dreyer’s Ice Cream Co. v. NLRB, 821 F.3d 489, 500 (4th tioned-for unit, the Act does not compel the Board to Cir. 2016)) (emphasis in original).45 disregard the interests of the excluded employees in all In sum, the Board’s prior approach, to which we return but those rare instances when the different employee today, permits the Agency to undertake a more vigorous groups share an “overwhelming” community of interests, assessment of unit appropriateness, regardless of whether merely because excluded employees were omitted from an “overwhelming” community of interest exists between the petition. excluded employees and those in the petitioned-for unit. Finally, although the Board overrules Specialty Regardless of whether Specialty Healthcare is permissi- Healthcare and will no longer apply the “overwhelming ble, we believe abandoning the “overwhelming” com- community of interests” standard when determining munity-of-interest standard better serves the Board in whether an appropriate bargaining unit must include em- carrying out its responsibility to make unit determina- ployees excluded from the petitioned-for unit, the Board tions that assure to employees their “fullest freedom” in retains the discretion—after engaging in an appropriate exercising their rights under the Act. This approach review of employee community of interests—to approve comports better with the statutory language set forth in the unit described in the petition, provided that the unit’s Section 9(a), 9(b) and 9(c)(5). Obviously, the Act does appropriateness is supported by the record and that the not compel the Board to give extraordinary deference to petitioned-for unit will help to assure employees their the petitioned-for unit. Likewise, when the record estab- fullest freedom in exercising rights protected by the Act. lishes that petitioned-for employees share a community Nothing in today’s decision disfavors the unit configuration sought by a petitioner or described in a representa- 45 Although the Second Circuit in Constellation Brands held that the tion petition filed with the Board. Rather, we merely Board erroneously applied the Specialty Healthcare standard (specifi- require that the Board undertake an examination of unit cally, the first step of the Specialty Healthcare analysis), we believe the appropriateness “‘in each case’ in which a dispute arises” Board’s error in Constellation Brands (i.e., the failure to consider over that issue,46 taking into consideration the interests of whether the interests of petitioned-for employees were sufficiently distinct from the interests of excluded employees) is inherent in the employees both within and outside the petitioned-for Specialty Healthcare standard itself. Numerous Board decisions unit, in light of the policies and purposes of the Act. demonstrate that Specialty Healthcare does not permit consideration of the interests of employees excluded from the petitioned-for unit (except D. The Regional Director’s Decision Illustrates the Defi- in the rare instance where employers can prove such employees have an ciencies in the Specialty Healthcare Standard “overwhelming community of interests” with the petitioned-for em- Turning to the case before us, the Regional Director’s ployees). In case after case applying the Specialty Healthcare standard, the Board has conducted precisely the type of analysis that the Second analysis under the first step of the Specialty Healthcare Circuit has deemed a misapplication of that standard. Thus, it appears standard focused on the interests shared among employ- that—in Constellation Brands and other cases—the Board has applied ees within the petitioned-for group, without examining Specialty Healthcare precisely the way the Specialty Healthcare major- whether those interests were distinct from the interests of ity intended, which means the standard itself is the problem. See, e.g., DTG Operations, supra, 357 NLRB at 2126 (finding that employees in excluded employees. It was not until after he had shifted the petitioned-for unit share a community of interest based solely on the the burden to the Employer to demonstrate an “over- shared interests of employees within the proposed unit); Northrop whelming community of interest” that the Regional Di- Grumman Shipbuilding, supra, 357 NLRB at 2017 (same); Macy’s, rector considered whether the unit employees’ interests supra, 361 NLRB at 19–20 (same); DPI Secuprint, supra, 362 NLRB No. 172, slip op. at 4–5 (same); Yale University, 365 NLRB No. 40 are distinct from those of other production employees. (2017) (denying review of Regional Director’s decision to direct nine The Regional Director’s failure to perform a full com- separate elections in nine petitioned-for units of teaching fellows in munity-of-interest analysis at step one of the Specialty nine different academic departments, based on his findings that teach- Healthcare test is precisely the flaw that the Second Cir- ing fellows within each separate academic department share a community of interest among themselves and that the University failed to show cuit identified in Constellation Brands, supra. Contrary that the smallest appropriate unit must include all teaching fellows, to the Second Circuit’s discussion in that case, however, despite evidence that all teaching fellows “share common duties, hours, we believe the problem is not in the way the Specialty wages, and health care benefits” and that the Graduate School of Arts Healthcare standard is being applied, but in the standard and Sciences “exerts significant centralized control” over the Teaching 47 Fellows Program). In any event, regardless of whether the first step of itself. Despite its rote recitation of the traditional test, the Specialty Healthcare standard permits or requires the Board to the Specialty Healthcare majority shifted to the employer consider the interests of employees outside the petitioned-for unit, it is the burden with respect to the critical part of the analy- clear that Specialty Healthcare has created significant confusion and uncertainty regarding this important issue (reflected in the above cases, 46 among others), which is an additional consideration that supports aban- American Hospital Assn. v. NLRB, 499 U.S. at 611 (quoting Sec. doning the Specialty Healthcare standard. 9(b)). 47 See supra fn. 57. PCC STRUCTURALS, INC.11 sis—whether employees in the proposed unit share a community of interest with employees in the petitioned-for community of interest sufficiently distinct from the inter- unit. We make clear today that the Board, when determin- ests of employees excluded from that unit to warrant a ing unit appropriateness, is not constrained by whether or separate bargaining unit—while also imposing on the not an “overwhelming” community of interest exists be- employer a nearly insurmountable burden, thus effective- tween petitioned-for employees and those excluded from ly foreclosing meaningful unit determinations.48 that unit. Finally, where applicable, the analysis must con- Accordingly, having overruled Specialty Healthcare, sider guidelines that the Board has established for specific we reaffirm that the community-of-interest test requires industries with regard to appropriate unit configurations. the Board in each case to determine E. Response to the Dissent whether the employees are organized into a separate Most of our dissenting colleagues’ objections have department; have distinct skills and training; have dis- been effectively addressed above. However, some of tinct job functions and perform distinct work, including their contentions warrant the following observations. inquiry into the amount and type of job overlap be- First, there is no merit in our dissenting colleagues’ tween classifications; are functionally integrated with statement that today’s decision constitutes “de facto the Employer’s other employees; have frequent contact rulemaking without the legally-required public participa- with other employees; interchange with other employ- tion,” “unprincipled corner-cutting,” or “hypocrisy” be- ees; have distinct terms and conditions of employment; cause we have not invited amicus briefing. Preliminari- and are separately supervised. ly. the Supreme Court has clearly stated that “the choice between rulemaking and adjudication lies in the first in- United Operations, supra, 338 NLRB at 123. In weighing stance within the Board’s discretion,” and the “Board is both the shared and the distinct interests of petitioned-for not precluded from announcing new principles in an ad- and excluded employees, we take guidance from the Second judicative proceeding.”49 Obviously, the Board decided Circuit’s decision in Constellation Brands. Thus, we agree Specialty Healthcare without engaging in rulemaking, with the Second Circuit that the Board must determine and with extremely rare exceptions, the Board has whether “excluded employees have meaningfully distinct strongly favored case adjudication over rulemaking. The interests in the context of collective bargaining that out- Board has similar discretion with respect to whether to weigh similarities with unit members.” Constellation invite briefing prior to adjudicating a major issue. We Brands, supra at 794. Having made that determination— respectfully disagree with our dissenting colleagues’ applying the Board’s traditional community-of-interest fac- statements that the Board maintains a “routine practice to tors recited above—the appropriate-unit analysis is at an solicit and accept amicus briefing in significant cases” or end. Parties who believe that a petitioned-for group im- a “tradition of inviting amicus briefing in cases . . . where properly excludes employees whose interests are not suffi- the Board is considering reversing significant precedent.” ciently distinct from those of employees within the proposed In the past decade, the Board has freely overruled or dis- group will, of course, introduce evidence in support of their regarded established precedent in numerous cases with- position in the pre-election hearing. However, at no point out supplemental briefing. See, e.g., E. I. du Pont de does the burden shift to the employer to show that any addi- Nemours, 364 NLRB No. 113 (2016) (overruling 12- tional employees it seeks to include share an overwhelming year-old precedent in Courier-Journal, 342 NLRB 1093 (2004), and 52-year-old precedent in Shell Oil Co., 149 48 The Regional Director’s Decision and Direction of Election in the NLRB 283 (1964), without inviting briefing ); Graymont instant case also illustrates the confusion that Specialty Healthcare has created with respect to specific community-of-interest factors. Among PA, Inc., 364 NLRB No. 37 (2016) (overruling 9-year- these, the test asks whether petitioned-for employees are functionally old precedent in Raley’s Supermarkets & Drug Centers, integrated with the employer’s other employees. The Regional Director 349 NLRB 26 (2007), without inviting briefing); Loomis correctly described this factor, but in applying it in the first step of his Armored U.S., Inc., 364 NLRB No. 23 (2016) (overrul- analysis, he only determined that the petitioned-for welders are functionally integrated with each other. He concluded that they are because ing 32-year-old precedent in Wells Fargo Corp., 270 they fulfill the same functions within the production process— NLRB 787 (1984), without inviting briefing); Lincoln essentially restating his rationale for concluding that the unit is readily Lutheran of Racine, 362 NLRB No. 188 (2015) (overrul- identifiable as a group. This is precisely the sort of misconception ing 53-year-old precedent in Bethlehem Steel, 136 NLRB Specialty Healthcare invites by eliminating, or at least appearing to eliminate, from the first step of the analysis consideration of the inter- 1500 (1962), without inviting briefing); Pressroom ests of employees in the petitioned-for group in contradistinction from Cleaners, 361 NLRB 643 (2014) (overruling 8-year-old those of employees excluded from that group, and by relegating that consideration to the “overwhelming community of interest” analysis at 49 NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974). the second step of the Specialty Healthcare test. 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD precedent in Planned Building Services, 347 NLRB 670 extensive rewriting of its representation-election proce- (2006), without inviting briefing); and Fresh & Easy dures should be retained, modified or rescinded.54 Neighborhood Market, Inc., 361 NLRB 151 (2014) Second, our dissenting colleagues greatly exaggerate (overruling 10-year-old precedent in Holling Press, 343 today’s ruling by asserting that abandoning Specialty NLRB 301 (2004), without inviting briefing). It is ironic Healthcare represents a “radical new approach,” nor are that our colleagues cite Specialty Healthcare as an ex- they correct that the Board is departing from the princi- ample of the Board soliciting briefs before making “dra- ple that a proposed unit need only be an appropriate unit matic changes to rules of general applicability governing and need not be the most appropriate unit.55 As stated one of the Agency’s core functions.” The Board did so- previously, nothing in today’s decision provides for the licit briefs in Specialty Healthcare,50 but the questions Board to reject an appropriate petitioned-for bargaining posed in the notice and invitation to file briefs in Special- unit on the basis that a larger unit is more appropriate. ty Healthcare focused primarily on the standard for de- Our decision merely underscores that the Act requires the termining appropriate units in nursing homes and other Board “in each case” to decide whether the petitioned-for nonacute healthcare facilities.51 Although the Board also unit is appropriate.56 When evaluating unit appropriate- noted that it was considering whether any revision of the ness, as the Act requires, the Board will consider differ- standard applicable to nonacute healthcare facilities ent unit configurations identified in the statute (i.e., “the “should apply more generally,”52 the decision that subse- employer unit, craft unit, plant unit, or subdivision there- quently issued made “changes in the law”53 affecting of”), and nothing in today’s decision precludes the possi- employers in all industries. In any event, as we recently bility that, in a given case, multiple potential bargaining stated, “[n]either the Act, the Board’s Rules, nor the units may be appropriate. We merely hold that, when a Administrative Procedures Act requires the Board to petitioned-for unit excludes certain employees, the Board invite amicus briefing before reconsidering precedent.” will consider the possibility that excluded employees UPMC, 365 NLRB No. 153, slip op. at 10 (2017). Final- must be part of an appropriate unit, without regard to ly, our dissenting colleagues obviously have no blanket whether or not an “overwhelming” community of inter- commitment to “notice . . . and public participation.” ests exists between the petitioned-for employees and Just this past week, Members Pearce and McFerran dis- those excluded from the unit. sented from a request for information that merely asked Third, our colleagues suggest that abandoning the interested members of the public whether the Board’s “overwhelming” community-of-interest standard will “maximize” the ability of employers “to manipulate the 50 See Specialty Healthcare, 356 NLRB at 289 (Notice and Invita- unit sought in the petition.” As noted above, we believe tion to File Briefs). the “overwhelming” community-of-interest standard un- 51 Id. Indeed, the “rationale” for the Board’s solicitation of briefs in duly limits the Board’s discretion when evaluating unit Specialty Healthcare focused primarily on considerations relevant to bargaining-unit determinations in long-term and other nonacute appropriateness. And under the standard we return to healthcare facilities. Thus, the Board’s solicitation of briefs stated: today, the Board obviously retains the discretion—after The long-term care industry in the United States, indeed around the engaging in an appropriate review of employee commu- world, has undergone a radical transformation in the past 20 years in nity of interests—to approve the unit described in the the face of an aging population, changing consumer preferences relating to the form and location of long-term care, and a more general petition. Again, nothing in today’s decision confers upon restructuring of the provision of health care, most importantly, a drastic employers the ability to “manipulate” the Board’s deter- reduction in the average length of stays in acute care hospitals. As the minations regarding unit appropriateness, nor does to- Henry J. Kaiser Family Foundation reported in 2007, “Over the past 20 day’s decision disfavor the unit sought by the petitioner. years, nursing home care has changed a great deal.” Moreover, “[t]here has been a proliferation of facility-like residential alternatives to nursing homes.” Indeed . . . the Board did not resolve the question of ap- 54 See 82 Fed. Reg. 58784-58790 (2017) (NLRB Notice and Request propriate units in long-term care facilities when it engaged in rulemak- for Information, Representation-Case Procedures) (dissenting views of ing ultimately limited to acute health care facilities in 1989 because of Members Pearce and McFerran). “evidence of rapid transition in the industry.” In addition, employment 55 Sec. 9(a) provides that majority support in favor of union repre- in long-term care has experienced dramatic growth in the last 20 years sentation for the purposes of collective bargaining must exist in “a unit and that trend is projected to continue. Finally, long-term care employ- appropriate for such purposes.” It is well established that such a unit ees have demonstrated a persistent interest in invoking the statutory need not be the most appropriate unit. However, the plain language of process for obtaining representation, filing almost 3000 petitions under Sec. 9(b) makes clear that the Board has the responsibility “in each Section 9 of the Act during the last decade. case” to determine unit appropriateness. Specifically, Sec. 9(b) states: Id. at 290 (footnotes omitted). “The Board shall decide in each case whether, in order to assure to 52 Id. at 291. employees the fullest freedom in exercising the rights guaranteed by 53 Specialty Healthcare, 357 NLRB at 947. this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof.” 56 Sec. 9(b). PCC STRUCTURALS, INC.13

Finally, we do not find persuasive our dissenting colleagues’ insistence that the Board must retain the “over- MEMBERS PEARCE AND MCFERRAN, dissenting. whelming” community-of-interest standard because the It is a foundational principle of United States labor law Board, applying this standard, has found petitioned-for that, when workers are seeking to organize and select a bargaining units inappropriate in some cases. This does collective-bargaining representative, and have petitioned not rectify the fundamental problem of the Specialty the Board to direct an election to that end, the role of the Healthcare standard. On its face, the “overwhelming” Board in overseeing this process should be conducted community-of-interest standard requires deference to the with the paramount goal of ensuring that employees have petitioned-for bargaining unit unless excluded and in- “the fullest freedom in exercising the rights guaranteed cluded employees share an “overwhelming” community by” the Act. Thus, as numerous courts of appeals have of interests, and this prevents the Board from entertain- acknowledged, the “initiative in selecting an appropriate ing the possibility that the smallest appropriate unit must unit [for bargaining] resides with the employees.” FedEx include certain excluded employees even absent an Freight, Inc. v. NLRB, 816 F.3d 515, 523 (8th Cir. 2016), “overwhelming” community of interests. We believe quoting American Hospital Assn. v. NLRB, 499 U.S. 606, this is contrary to what Congress intended, as prescribed 610 (1991). When workers seeking a representative have in the Act. In any event, we believe the Act’s policies selected a bargaining unit in which they seek to organize, and purposes are better served by overruling Specialty the role of the Board in reviewing that selection is to Healthcare and abandoning the “overwhelming” com- determine whether the selected unit is an appropriate one munity-of-interests standard. under the statute not the unit the Board would prefer, or ORDER the unit the employer would prefer. Part of ensuring workers the “fullest freedom” in exercising their right to The Employer’s Request for Review of the Regional organize is acknowledging that they can, and should— Director’s Decision and Direction of Election is granted within the reasonable boundaries that the statute deline- as it raises substantial issues warranting review with re- ates—be able to associate with the coworkers with whom spect to whether the petitioned-for unit is an appropriate they determine that they share common goals and inter- unit for bargaining. Accordingly, this case is remanded ests. to the Regional Director for further appropriate action With these principles in mind, this case should present consistent with this Order, including reopening the rec- no difficult issues for the Board. The Union has filed a ord, if necessary, and analyzing the appropriateness of petition to represent a bargaining unit of 102 welders at the unit under the standard articulated herein, and for the an advanced manufacturing plant in the Portland, Oregon issuance of a supplemental decision.57 area. The welders are a group of highly-skilled, highly- Dated, Washington, D.C. December 15, 2017 paid employees performing a distinct function. These workers have gone through specialized training and certi- ______fications unique to their positions. They do not signifi- Philip A. Miscimarra, Chairman cantly interchange with other employees, but instead perform distinct work that no other employees are qualified to do. They are readily identifiable as a group and ______represent two clearly delineated job classifications within Marvin E. Kaplan, Member the Employer’s organizational structure. The 102 workers in this unit would constitute a significantly larger- than-average bargaining unit when compared to other ______recently certified units. William J. Emanuel, Member Despite these largely uncontested facts, the Employer objected to the proposed unit, claiming that the only appropriate unit in which these workers should be able to (SEAL) NATIONAL LABOR RELATIONS BOARD choose a representative would have to include all 2,565 employees who work in production and maintenance at 57 As evidenced by our remand, we express no opinion with respect to whether the petitioned-for unit is appropriate. Also, contrary to the the petitioned-for facilities. The Regional Director cor- dissent, our remand does not require a choice between the petitioned- rectly rejected the Employer’s contention, and directed for unit and an all-inclusive production and maintenance employee unit. an election among the welders. The workers voted 54 to We note that the Petitioner expressed a willingness at hearing to repre- 38 for the Union, and the Employer sought review of the sent an alternative unit including some non-welder employees if the petitioned-for unit was found inappropriate. Regional Director’s decision with the Board. 14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

The Regional Director’s decision was unquestionably been specifically rejected by the federal courts— correct—these 102 workers clearly share a community of including the remarkable assertion that the Specialty interest under any standard ever applied by the Board.1 Healthcare framework is contrary to the National Labor Nonetheless, the majority nullifies the Direction of Elec- Relations Act. The majority mistakenly insists that the tion for the unit of welders and orders the Regional Di- Board cannot retain Specialty Healthcare and then rector to reconsider, under more favorable terms, the adopts a new standard that is inferior to Specialty Employer’s argument that welders should not be able to Healthcare in every important respect, including con- bargain collectively unless they can win sufficient sup- sistency with the statute. port from all 2565 production and maintenance employ- As reflected by its favorable reception in the federal ees. Instead of performing its statutory duty to affirm courts, the Specialty Healthcare framework—itself based these workers’ choice to organize in an appropriate unit on an earlier decision of the U.S. Court of Appeals for and allowing them to commence the collective- the District of Columbia Circuit—represented a major bargaining process with their employer, the Board’s new- improvement to the Board’s approach in this area. It ly-constituted majority seizes on this otherwise straight- brought greater clarity and predictability to unit determi- forward case as a jumping off point to overturn a stand- nations, while vindicating the goals of federal labor ard that has been upheld by every one of the eight federal law. There is simply no justifiable reason—certainly not appellate courts to consider it. The newly-constituted a change in the Board’s membership alone—to reverse Board majority makes sweeping and unwarranted chang- course and abandon a doctrine that has been so widely es to the Board’s approach in assessing the appropriate- accepted and praised. For the reasons that follow, we ness of bargaining units when an employer asserts that dissent. the unit sought by the petitioning union must include I. additional employees. Without notice, full briefing, and Before addressing the serious shortcomings of the ma- public participation, and in a case involving a manifestly jority’s decision, we marvel at the majority’s hypocrisy appropriate unit, the majority overturns Specialty in denying briefing on such a critical issue.2 A key con- Healthcare & Rehabilitation Center of Mobile, 357 tention of today’s majority decision is that the Board’s NLRB 934 (2011). In its place, the majority adopts an Specialty Healthcare framework allegedly provides too arbitrary new approach that will frustrate the National little process by the Board in examining petitioned-for Labor Relations Act’s policies of ensuring that employ- units. Yet, that professed care and concern for process is ees enjoy “the fullest freedom in exercising” their right wholly absent from the majority’s consideration of to self-organization and of expeditiously resolving ques- whether and how to reverse Specialty Healthcare. The tions of representation. The majority’s new approach majority not only breaks with the Board’s tradition of will bog down the Board and the parties in an administra- inviting amicus briefing in cases such as this one where tive quagmire—a result that the majority apparently in- the Board is considering reversing significant precedent, tends. but it fails to even grant the parties their traditional op- The majority’s rejection of the Specialty Healthcare portunity to brief the issue following the Board’s grant of framework reflects a failure to engage in the sort of rea- review. The choice to issue such a momentous deci- soned decision-making demanded of the Board and other sion—fundamentally changing the Board’s unit determi- administrative agencies. First, the majority follows a nation process—without allowing any additional input is flawed process. It seizes on a case that does not fairly completely inconsistent with the Board’s practices, and present the issues that the majority decides—including, with principles of reasoned decisionmaking. Instead, the most obviously, the resurrection of a standard once ap- majority has undertaken a dramatic overhaul of the plied only in non-acute healthcare facilities (a far cry Board’s jurisprudence through a process carefully calcu- from the workplace involved here). And, in a sharp lated to avoid public input. break with established practice, the majority completely Until today, inviting briefing over whether to reverse excludes the public from participating in this case involv- precedent in the representation-case context—as the ing the reversal of significant Board precedent. Board did in Specialty Healthcare itself3—has been a Second, in discarding the Board’s judicially-approved approach, the majority relies on arguments that have 2 Member Pearce and Member McFerran voted to issue a notice and invitation to file briefs, but the majority disagreed. 1 Indeed, welders-only units in this exact industry have been ap- 3 357 NLRB at 934, citing Specialty Health Care & Rehabilitation proved by the Board in the past. See, e.g., Mallinckrodt Chemical Center of Mobile, 356 NLRB 289 (2010) (notice and invitation to file Works, 162 NLRB 387 (1966). briefs). The notice was issued on December 22, 2010, and the Board’s decision issued on August 26, 2011 – reflecting careful consideration of PCC STRUCTURALS, INC.15

Board norm. Indeed, as we clarify in dissent to Boeing— majority diminish the fact that inviting briefs has become another decision flipping longstanding precedent rushed an established Board norm—and the majority tellingly out without public input—it has become the Board’s rou- cites no recent case in which the Board refused to seek tine practice to solicit and accept amicus briefing in sig- briefing over objections from a member.6) It has also nificant cases.4 In the representation-case context specifically, over the past decade the Board has consistently 22, 2012), available at https://www.nlrb.gov/sites/default/files/attach invited amicus briefing whenever it is contemplating ments/basic-page/node-3252/ntc_02-rc-23481_nyu_and_polytechnic_ reversing precedent.5 (None of the cases cited by the notice___invitation.pdf (whether the Board should modify or overrule its decision in Brown University, 342 NLRB 483 (2004), in which it held that graduate assistants who perform services at a university in the issues decided and the arguments presented by the parties and the connection with their studies are not statutory employees under the public. NLRA); UGL-UNICCO Service Co., 357 NLRB 801 (2011) (whether The majority acknowledges, as it must, that the Specialty Health the Board should modify or overrule its decision in M.V. Transporta- Care Board invited briefing—but implies that the public did not, in tion, 337 NLRB 770 (2002), concerning the bargaining obligations of a fact, have advance notice of the ultimate scope of the Board’s decision successor employer with an incumbent union); Lamons Gasket Co., 357 because the notice “focused primarily on the standard for determining NLRB 739 (2011) (whether the Board should reconsider its decision in appropriate units in nursing homes and other nonacute healthcare facili- Dana Corp., 351 NLRB 434 (2007), concerning whether, and how ties.” But the notice and invitation specifically invited the public to long, employees and other unions should have to file for an election address two questions that made it plain that the Board was contemplat- following an employer’s voluntary recognition of a union); Dana ing a change in appropriate-unit jurisprudence generally: Corp., 351 NLRB 434 (2007) (whether the Board should modify its (7) Where there is no history of collective bargaining, should the recognition bar doctrine as articulated in Keller Plastics Eastern, Inc., Board hold that a unit of all employees performing the same job at a 157 NLRB 583 (1966), Smith’s Food & Drug Centers, 320 NLRB 844 single facility is presumptively appropriate in nonacute healthcare fa- (1996), and Seattle Mariners, 335 NLRB 563 (2001)). cilities[?] Should such a unit be presumptively appropriate as a gen- Indeed, the Board has invited amicus briefing even on representation eral matter[?] cases which merely raise unusual jurisdictional issues. See, e.g., Tem- ple University Hospital Inc., Case 04–RC–162716, Notice and Invita- (8) Should the Board find a proposed unit appropriate if, as found in tion to File Briefs (filed Dec. 29, 2016), available at American Cyanamid Co., 131 NLRB 909, 910 (1961) [a case outside https://apps.nlrb.gov/link/document.aspx/ 09031d45822fb922 (whether the nonacute healthcare industry], the employees in the proposed unit the Board should exercise its discretion to decline jurisdiction over the are “readily identifiable as a group whose similarity of function and employer and extend comity to a unit certified by the Pennsylvania skills create a community of interest”[?] Labor Relations Board); Chicago Mathematics and Science Academy 356 NLRB at 290 (emphasis added). Notably, a dissenting member Charter School, Inc., Case 13–RM–001768, Notice and Invitation to objected specifically to the scope of the questions on which briefing File Briefs (filed January 10, 2011), available at was invited, arguing that the case involved only a nonacute healthcare https://www.nlrb.gov/sites/default/files/attachments/basic-page/node- facility and that a broader decision would be inappropriate. Id. at 293- 3253/chicago_mathematics_brief.pdf (whether an Illinois charter 294 (dissent of Member Hayes). The majority responded, defending school should fall under the jurisdiction of the NLRB or the Illinois the breadth of the questions it had posed. Id. at 291. Educational Labor Relations Board); Firstline Transportation Security, 4 The Boeing Company, 365 NLRB No. 154, slip op. at 31–33 347 NLRB 447 (2006) (whether the Board should assert jurisdiction (2017) (Member McFerran, dissenting in part). over a private company contracting with the Transportation Security 5 See, e.g., Columbia University, 364 NLRB No. 90 (2016) (whether Administration for passenger and baggage screening). the Board should modify or overrule its decision in Brown University, 6 The majority asserts that there are “numerous” cases where the 342 NLRB 483 (2004), in which it held that graduate assistants who Board “has freely overruled or disregarded established precedent . . . perform services at a university in connection with their studies are not without supplemental briefing.” But the six decisions the majority cites statutory employees under the National Labor Relations Act); Miller & are easily distinguishable from this one. Anderson, Inc., 364 NLRB No. 39 (2016) (whether the Board should None of those cases—E. I. du Pont de Nemours, 364 NLRB No. 113 adhere to its decision in Oakwood Care Center, 343 NLRB 659 (2004), (2016); Graymont PA, Inc., 364 NLRB No. 37 (2016); Lincoln Luther- which disallowed inclusion of solely employed employees and jointly an of Racine, 362 NLRB No. 188 (2015); Loomis Armored U.S., Inc., employed employees in the same unit absent consent of the employers, 364 NLRB No. 23 (2016); Pressroom Cleaners, 361 NLRB 643 and if not, whether the Board should return to the holding of M. B. (2014); and Fresh & Easy Neighborhood Market, Inc., 361 NLRB 151 Sturgis, Inc., 331 NLRB 1298 (2000), which permits the inclusion of (2014—was a representation case involving the wholesale reconsidera- both solely and jointly employed employees in the same unit without tion of the standard governing one of the Agency’s core statutory func- the consent of the employers); BFI Newby Island Recyclery, 362 NLRB tions: to determine an appropriate unit for bargaining. Moreover, in No. 186 (2015) (whether the Board should adhere to its existing joint none of these cases did the Board reach out to decide an issue that was employer standard as articulated in TLI, Inc., 271 NLRB 798 (1984), not even presented in the case; here, the majority resurrects the empiri- enfd. mem. 772 F.2d 894 (3d Cir. 1985), and Laerco Transportation, cal community-of-interest standard for nonacute healthcare facilities, 269 NLRB 324 (1984), or adopt a new standard); Purple Communica- which the Employer plainly is not, absent any relevant request or brief- tions, Inc., 361 NLRB 1050 (2014) (whether the Board should sustain ing. an election objection and overrule its decision in Register Guard, 351 Additionally, in Loomis and Lincoln Lutheran, amicus briefs were NLRB 1110 (2007), enfd. in relevant part and remanded sub nom. actually filed requesting, respectively, that the Board reverse or adhere Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009), and adopt a to extant Board precedent. rule that employees who are permitted to use their employer’s email for Further, Du Pont and Lincoln Lutheran were the culmination of work purposes have the right to use it for Sec. 7 activity, subject only to long-running discussions of the precedent they ultimately overruled. In the need to maintain production and discipline); New York University, Du Pont, the Board accepted a remand from the United States Court of Case 02–RC–023481, Notice and Invitation to File Briefs (filed June Appeals for the District of Columbia Circuit for the express purpose of 16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD been the Board’s typical practice in representation cases, quoting Burlington Truck Lines v. United States, 371 to decide first whether to grant review, and if review is U.S. 156 (1962). But in resurrecting Park Manor, the granted, to then allow more extensive briefing by the majority has examined no relevant data, articulated no parties on the issues on which the Board grants review. satisfactory explanation, and established no rational con- See Board’s Rules and Regulations Section 102.67(c)-(i). nection between the facts found in this adjudication and But here, the majority grants review and reverses prece- the choice to return to the “empirical or pragmatic com- dent in one fell swoop, without even providing the par- munity of interests” approach. ties an opportunity to file briefs on whether and how to There is no rational reason for the majority to engage change the applicable legal standard. As a consequence, in such unprincipled corner-cutting. No court has so the sum total of briefing to the Board on whether Spe- much as questioned the validity of Specialty Healthcare. cialty Healthcare should be overruled, amounts to less And there is no justification for violating Board norms to than 10 pages of the Employer’s brief requesting Board rush out a decision now. A new Board majority would review and virtually no input from the petitioning Union have had ample opportunity to reconsider Specialty on the issue. Healthcare without acting contrary to the Board’s proce- The majority then decides an issue obviously not pre- dural norms and principles of reasoned decisionmaking. sented in this case (albeit addressed in Specialty In a case such as this—involving dramatic changes to Healthcare): the standard for determining an appropriate rules of general applicability governing one of the Agen- bargaining unit in nonacute health care facilities, such as cy’s core functions—it is unconscionable for the Board nursing homes. In Specialty Healthcare, the Board— to refuse to solicit briefs from interested parties.7 It is a overruling Park Manor Care Center, 305 NLRB 872 dereliction of the duty we owe to the parties and the la- (1991)—held that traditional community-of-interest con- bor-management community. In Specialty Healthcare, siderations would apply in such settings (as in other in- which today’s decision overrules, the Board issued an dustries) and rejected the application of the special test invitation to file briefs, and then received at least a dozen that Park Manor had crafted solely for nonacute health substantive briefs filed by the Board’s stakeholders. The care facilities, the so-called “pragmatic or empirical Board received briefs from the Chamber of Commerce, community of interests” approach. The Specialty the Coalition for a Democratic Workplace, the American Healthcare Board correctly described the Park Manor Hospital Association, the American Healthcare Associa- approach as “both confusing and misguided,” explaining tion, the Retail Industry Leaders Association, the Rank- that it mistakenly focused on the outdated and inapplica- ing Member of the Senate Health, Education, Labor, and ble rulemaking record leading to the Board’s 1989 Pension Committee and colleagues, the AFL–CIO, the Health Care Rule, which was limited to acute care facili- Service Employees International Union, the International ties. 357 NLRB at 939. Today, in a case involving sole- Union of Operating Engineers, the United Steelworkers, ly welders in the aerospace industry, the majority resur- and others. The Board granted extensions of time for rects the Park Manor approach—with no notice to the briefing and allowed for supplemental briefs to respond public, no briefing, and no evidentiary record. The ma- to issues raised in the first round of briefing. But here, jority’s approach is not legitimate adjudication, but de the Majority rejected our express request to solicit input facto rulemaking without the legally-required public par- from our stakeholders who will be affected by the ticipation. An administrative agency like the Board Board’s decision. Does the majority think that the public “must examine the relevant data and articulate a satisfac- has nothing to add to our deliberations? tory explanation for its action including a ‘rational con- The Supreme Court has made clear that Board adjudi- nection between the facts found and the choice made.’” cation is subject to the Administrative Procedure Act’s Motor Vehicle Mfrs. Assn. of U.S., Inc. v. State Farm (APA) requirement that an agency engage in “reasoned Mutual Auto Insurance Co., 463 U.S. 29, 43 (1983), decisionmaking.” Allentown Mack Sales & Service v. deciding between two conflicting branches of precedent. See E. I. du 7 The view expressed by Member Pearce that it is appropriate to Pont de Nemours and Co. v. NLRB, 682 F.3d 65, 70 (D.C. Cir. 2012). provide for public briefing on the subject of reversing the Specialty Lincoln Lutheran, in turn, was the culmination of a 15-year dialogue Healthcare legal standard applicable to a massive swath of the Agen- with the United States Court of Appeals for the Ninth Circuit about cy’s caseload, ironically finds support in his new colleagues’ recent Bethlehem Steel. See WKYC-TV, Inc., 359 NLRB 286, 286 (2012) testimony during their Senate confirmation process. He agrees with (discussing history). and embraces their sentiments on the importance of public input to the Finally, as already pointed out, in none of these cases did the Board Board’s decisional process. In that regard, one of his colleagues refuse to request briefing over the objection of one or more Board pledged to “seek public input where appropriate,” and described case members. adjudication as “a long process, but when it’s done right it results in These six cases thus stand in sharp relief from the present case. good decisions.” PCC STRUCTURALS, INC.17

NLRB, 522 U.S. 359, 374 (1998). “Not only must an the Employer's other employees; have frequent contact agency’s decreed result be within the scope of its lawful with other employees; interchange with other employ- authority, but the process by which it reaches that result ees; have distinct terms and conditions of employment; must be logical and rational.” Id. To be sure, the “Board and are separately supervised. is not precluded from announcing new principles in an adjudicative proceeding and . . . the choice between Specialty Healthcare, 357 NLRB at 942–943, 945 (quoting rulemaking and adjudication lies in the first instance United Operations, Inc., 338 NLRB 123, 123 (2002)). within the Board’s discretion.” NLRB v. Bell Aerospace The Board then clarified that, in cases in which a Co., 416 U.S. 267, 294 (1974). But the Supreme Court party contends that a petitioned-for unit containing em- has left open the possibility that in some “situations . . . ployees readily identifiable as a group who share a the Board’s reliance on adjudication would amount to an community of interest is nevertheless inappropriate abuse of discretion or a violation of the Act.” Id. This because it does not contain additional employees, the case, along with some others issued this month by the burden is on the party so contending to demonstrate majority, are clear examples of abuse of discretion. that the excluded employees share an overwhelming Without good reason, the majority has failed to “solicit[ ] community of interest with the included employees. the informed views of those affected in industry and la- Specialty Healthcare, 357 NLRB at 934. By clarifying bor before embarking on a new course” and has made no the standard to be used where a party contends that a effort to acquire the “relevant information necessary to petitioned-for unit is not appropriate because it does not mature and fair consideration of the issues.” Id. at 295. contain additional employees, Specialty Healthcare The majority’s deficient process, predictably, has led to a serves the statutory purpose of assuring to employees the manifestly deficient decision. fullest freedom in exercising the rights guaranteed by the II. Act, reduces unnecessary litigation and advances the In Specialty Healthcare &Rehabilitation Center of Act’s policy of expeditiously resolving questions con- Mobile (Specialty Healthcare), supra, affd. sub nom. cerning representation, permits employers to order their Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d operations with a view toward productive collective 552 (6th Cir. 2013), the Board reviewed and clarified its bargaining should employees choose to be represented, standards for making unit determinations when a repre- and leads to more predictable and consistent results. sentation petition is filed and the parties cannot agree on Specialty Healthcare, 357 NLRB at 945–946, enfd. in an appropriate unit in which to conduct an election to pertinent part, Kindred Nursing Centers East, LLC v. determine whether the employees wish to be represented NLRB, 727 F.3d at 561, 563. for purposes of collective bargaining with their employ- To date, employers have challenged the validity of er. FedEx Freight, Inc., 816 F.3d at 522. The Board Specialty Healthcare in eight different circuits, raising reiterated that its initial inquiry remains the same: to ex- arguments echoed by today’s majority. Nevertheless, amine the petitioned-for unit to determine if it is appro- every one of those circuits has upheld Specialty priate. Id. at 522, citing Specialty Healthcare, 357 Healthcare. See Kindred Nursing Centers East, LLC v. NLRB at 941. NLRB, 727 F.3d 552 (6th Cir. 2013); FedEx Freight, Inc. The Board articulated a two-step test for determining v. NLRB, 816 F.3d 515 (8th Cir. 2016); Nestle Dreyer’s whether the petitioned-for unit is an appropriate unit. Ice Cream Co. v. NLRB, 821 F.3d 489 (4th Cir. 2016); NLRB v. FedEx Freight, Inc., 832 F.3d 432, 440 (3d Cir. Macy’s, Inc. v. NLRB, 824 F.3d 557 (5th Cir. 2016) , 2016). In the first step, the Board evaluates whether the cert. denied, 137 S.Ct. 2265 (2017); NLRB v. FedEx petitioned-for employees are readily identifiable as a Freight, Inc., 832 F.3d 432 (3d Cir. 2016); FedEx group and applies the traditional criteria to analyze Freight, Inc. v. NLRB, 839 F.3d 636 (7th Cir. 2016); whether the petitioned-for employees share a community Constellation Brands, U.S. Operations, Inc. v. NLRB, of interest. This traditional community-of-interest analy- 842 F.3d 784 (2d Cir. 2016); Rhino Northwest, LLC v. sis examines: NLRB, 867 F.3d 95 (D.C. Cir. 2017). But, apparently, eight is not enough for the majority. Instead, the majority today overturns Specialty [W]hether the employees are organized into a separate Healthcare, and purports to return to the status quo ante. department; have distinct skills and training; have dis- But that is not what the majority does. Instead, the ma- tinct job functions and perform distinct work, including jority adopts a radical new approach that purportedly inquiry into the amount and type of job overlap be- focuses on the Section 7 rights of employees outside the tween classifications; are functionally integrated with petitioned-for unit. As we explain below, this new ap- 18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD proach will frustrate the Act’s policies and entangle the bly argue that the Board is not deciding in each case Board and the parties in a process that encourages unnec- whether the unit is appropriate. essary litigation and undermines the Act’s goal of expe- The majority also claims that Specialty Healthcare ditiously resolving questions concerning representation. contravenes Section 9(c)(5) by making the extent of or- III. ganizing controlling. The majority appears to reason that this is so because, in its view, the petitioned-for unit will The majority offers few factual and legal arguments in always be deemed appropriate under Specialty support of its decision. Most prominent is the unfounded Healthcare, except in the “rare” case where the employer assertion that the test articulated in Specialty Healthcare can demonstrate that additional employees outside the is somehow contrary to the National Labor Relations unit share an overwhelming community of interest with Act. the petitioned-for employees. First, the majority contends that Specialty Healthcare However, the courts have uniformly rejected the ma- contravenes Section 9(b)’s requirement that the Board jority’s position. Section 9(c)(5) of the Act provides that decide “in each case” the appropriate unit in which to “[i]n determining whether a unit is appropriate for the conduct an election. Citing various language that Con- purposes specified in subsection (b) the extent to which gress considered in enacting the Wagner and the Taft the employees have organized shall not be controlling.” Hartley Acts, the majority claims that Section 9(b) calls The Supreme Court has construed this language to mean for the Board to make a more robust unit determination that although “Congress intended to overrule Board deci- than Specialty Healthcare allows. sions where the unit determined could only be supported However, the majority’s claims of statutory infirmity on the basis of the extent of organization, . . . the provi- fail as they ignore authoritative Supreme Court precedent sion was not intended to prohibit the Board from consider- and misstate what Specialty Healthcare actually pro- ing the extent of organization as one factor, though not vides. The Supreme Court has already reviewed Section the controlling factor, in its unit determination.” NLRB 9(b)’s “sparse legislative history” and construed the stat- v. Metropolitan Life Insurance Co., 380 U.S. 438, 441– utory language, and has concluded that all Section 9(b) 442 (1965). In other words, as the Board noted in Spe- requires in relevant part is that when there is a dispute cialty Healthcare, “the Board cannot stop with the obser- over the unit in which to conduct the election, the Board vation that the petitioner proposed the unit, but must pro- must resolve it. American Hospital Assn. v. NLRB, 499 ceed to determine, based on additional grounds (while U.S. at 611, 613. It certainly does not preclude the still taking into account the petitioner’s preference), that Board from evaluating the appropriateness of a unit pur- the proposed unit is an appropriate unit.” Specialty suant to broadly applicable principles. Indeed, the Court Healthcare, 357 NLRB at 942. has expressly stated that the “requirement that the Board Specialty Healthcare plainly does not permit the Board exercise its discretion in every disputed case cannot fair- to find a petitioned-for unit appropriate based only on the ly or logically be read to command the Board to exercise extent of organization. Rather, under Specialty standardless discretion in each case.” Id. at 612. Healthcare, the Board must apply the multifactor, tradi- Consistent with this guidance, Specialty Healthcare tional community-of-interest test to determine whether requires the Board to exercise its discretion to determine the petitioned-for employees constitute an appropriate whether the petitioned-for unit is appropriate. Thus, un- unit—aside from the fact that the union has organized the der Specialty Healthcare, the Board cannot direct an unit. See Kindred Nursing Centers East, LLC v. NLRB, election in a petitioned-for unit when that unit is disputed 727 F.3d at 564–565 (Specialty Healthcare does “not by an employer without first concluding, among other assume” that the petitioned-for unit is appropriate, but things, that (1) the petitioned-for employees are readily instead mandates application of the community-of- identifiable as a group; (2) the petitioned-for employees interest test to find that there are substantial factors es- constitute an appropriate unit under the traditional com- tablishing that the petitioned-for unit is appropriate aside munity of interest test; and (3) the employer fails to show from the fact that the union has organized it). The Board that the employees it seeks to add to the unit share an does not apply the overwhelming community-of-interest overwhelming community of interest with the petitioned- standard until after it has determined that the petitioned- for employees. See Rhino Northwest, LLC v. NLRB, 867 for employees are readily identifiable as a group and F.3d at 101 (rejecting employer’s claim that the Specialty share a community of interest under the Board’s tradi- Healthcare framework has caused the Board to abdicate tional test. See Rhino Northwest, LLC v. NLRB, 867 its statutory duty to decide the appropriateness of a pro- F.3d at 101 (Specialty Healthcare does not give control- posed unit “in each case.”). The majority cannot plausi- ling weight to the extent of employees’ organization be- PCC STRUCTURALS, INC.19 cause it does not apply the overwhelming community of Thus, contrary to the majority’s unsupported asser- interest standard until after the proposed unit has been tions, the outcome of a unit determination under Special- shown to be prima facie appropriate under the Board’s ty Healthcare is neither foreordained nor coextensive traditional community of interest analysis). Accord: with the extent of organizing. Instead, the courts have Nestle Dreyer’s Ice Cream Co. v. NLRB, 821 F.3d at uniformly found that the Board’s approach correctly pro- 495–497.8 vides an individualized inquiry into the appropriateness Nor does Specialty Healthcare impose a “next-to- of the unit, consistent with what the Act requires. impossible burden” on nonpetitioning parties. The ma- IV. jority’s claim to that effect is empirically false, as the The majority also argues that Specialty Healthcare courts have recognized. See Rhino Northwest, LLC v. “constituted a[] departure from the standards that have NLRB, 867 F.3d at 101 (both before and after Specialty long governed the Board’s appropriate bargaining-unit Healthcare, the Board and its Regional Directors have determinations”. This argument—like the majority’s rejected proposed units); NLRB v. FedEx Freight, Inc., statutory claims—has been uniformly rejected by every 832 F.3d at 444 (“the Board has been clear that it will not reviewing court to consider the question. approve ‘fractured’ units or arbitrary segments of em- Repeating then-Member Miscimarra’s dissent in Ma- ployees.”); FedEx Freight, Inc. v. NLRB, 816 F.3d at cy’s Inc., 361 NLRB 12, 32–44 (2014), the majority 525–526 (same). Thus, there are numerous examples of claims that Specialty Healthcare departs from precedent the Board’s Regional Directors rejecting units proposed because it permits the Board to narrowly focus the ap- by petitioners.9 The Board has also rejected a number of propriate unit analysis on interests that employees in the proposed units in published cases.10 petitioned-for unit share while discounting—or eliminating altogether—any assessment of whether those shared 8 The majority is also simply wrong in claiming that Specialty Healthcare deems the petitioned-for unit “controlling . . . even when a interests are sufficiently distinct from the interests of the broader unit is clearly compelled by” industry-specific guidelines or excluded employees to warrant a finding that the peti- standards, in contravention of Specialty Healthcare’s pledge that it was tioned-for unit is appropriate. But Specialty not intended to disturb rules developed by the Board regarding particu- Healthcare’s community of interest analysis at step one lar industries. Then-Member Miscimarra made precisely the same claim in Macy’s, Inc., 361 NLRB 12, 40–42 (2014), and the Fifth Cir- did not just examine the interests of the petitioned-for cuit squarely rejected it. See Macy’s Inc. v. NLRB, 824 F.3d at 570 CNAs in isolation; it contrasted them with those of other (“even if a store-wide unit were presumptively appropriate in the retail employees. See Specialty Healthcare, 357 NLRB at industry—a contention to which the Board strenuously objects . . .—the application of Specialty Healthcare to the retail context would not mark a deviation from Board precedent” because “‘the suggestion that there (Mar. 12, 2012); Allied Blending & Ingredient, Inc., 25–RC–155188 is only one set of appropriate units in an industry runs counter to the (July 21, 2015); Loyola Marymount University, 31–RC–118850 (Jan. statutory language and the main corpus of [Board] jurisprudence, which 15, 2014); Lotz Trucking, 25–RC–165041 (Dec 24, 2015); Faurecia holds that the Board need find only that the proposed unit is an appro- Emissions Control Technologies USA, LLC, 09–RC–139624 (Nov. 24, priate unit, rather than the most appropriate unit, and that there may be 2014); MHM Services, 04–RC–100225 (April 22, 2013) ; Keystone multiple sets of appropriate units in any workplace.’”) (citation omit- Automotive Industries, 32–RC–137319 (Jan. 23, 2015); First Student, ted). Thus, even where the Board has declared certain units to be pre- Inc., 21–RC–089564 (Oct. 24, 2012); BFI Waste Services LLC, 15– sumptively appropriate, a union is not required to petition for one of RC–-165961 (Jan. 6, 2016); Woods Maintenance Services 31–RC– those units. See Macy’s, Inc., 361 NLRB at 27–28 fn.65. And, as 132303 (Nov. 7, 2014); Becker College, 01–RC–081265 (June 22, shown, when a union petitions for a unit that is not presumptively ap- 2012); Ritz-Carlton Hotel Co. 20–RC–187862 (December 6, 2016); propriate, the Board does not assume that the petitioned-for unit is Down to Earth Landscaping, Inc., 04–RC–076495 (April 6, 2012); appropriate, but rather applies the traditional community-of-interest test IKEA US East, LLC, 01–RC–176529 (June 16, 2016); Curtis Bay En- at step one to determine if the petitioned-for unit is appropriate. Ac- ergy, Inc., 05–RC–137563 (Oct. 27, 2014); United Way Community cordingly, the Board in no way deems the petitioned-for unit “control- Services, 27–RC–169883 (Mar. 17, 2016). 10 ling.” See, e.g., Odwalla, Inc., 357 NLRB 1608 (2011) (rejecting peti- 9 For example, Regional Directors have frequently concluded that tioned-for unit of route sales drivers, relief drivers, warehouse associ- nonpetitioning parties had met their burden of showing that additional ates, and cooler technicians because merchandisers shared an over- employees share an overwhelming community of interest with peti- whelming community of interest with the petitioned-for employees); tioned-for employees. See, e.g., Benteler Automotive Corp., 25-RC- Bergdorf Goodman, 361 NLRB No. 11 (2014) (rejecting petitioned-for 135839 (October 28, 2014); Dyno Nobel, Inc., 19-RC-075260 (March unit of women's shoe sale associates because they do not share a com- 29, 2012); Golden State Overnight Delivery Service, 31-RC-185685 munity of interest); K&N Engineering, Inc., 365 NLRB No. 141 (2017) (Nov 4, 2016); Jawanio, NJ, 22–RC–084183(Aug. 9, 2012); PHS/MWA (in ruling on determinative challenges, Board reversed RD and rejected Aviation Services (WENCOR), 21–RC–184349 (Oct. 20, 2016); Weyer- petitioner’s claim that maintenance techs should not be included in houser NR Company, 06–RC–079980, (June 11, 2012); Alternative stipulated unit absent a showing that they share an overwhelming Mechanical, LLC, 19–RC–070030 (Jan. 11, 2012); NYC 2-Way Inter- community of interest with employees in the stipulated unit; Board national, Ltd., 29–RC–063657 (Nov. 17); GKN Aerospace Monitor, found the stipulated unit was inappropriate in the first instance, and Inc. 29–RC–062580 (Mar. 9, 2012); General Dynamics Land Systems, therefore it need only be shown that the maintenance techs shared a 19–RC–076743 (May 31, 2012); General Electric Co., 14–RC–073765 community of interest to merit inclusion). 20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

942-943 (noting the CNAs’ distinct training, certifica- The majority claims that Specialty Healthcare consti- tion, supervision, uniforms, pay rates, work duties, shifts tutes a departure from precedent for the additional reason and work areas).11 that it imposes on nonpetitioning parties (mostly em- It is thus not surprising that the courts have uniformly ployers) the new, heightened burden of proving that the rejected the majority’s contention. As the Eighth Circuit employees it seeks to add to the petitioned-for unit share explained in affirming Specialty Healthcare, Specialty “an overwhelming community of interest” with the peti- Healthcare’s test “does in fact compare the interests and tioned-for employees before those employees will be characteristics of the workers in the proposed unit with added to unit. However, as the Board explained in Spe- those of other workers . . . [ and] . . .[t]he precedents re- cialty Healthcare, the Board and the courts had consist- lied on by the Board in Specialty Healthcare make clear ently required a heightened showing from the party argu- that the Board does not look at the proposed unit in isola- ing for the inclusion of additional employees in a unit tion.” FedEx Freight, Inc. v. NLRB, 816 F.3d at 523. that satisfies the traditional community of interest test. Similarly, the Fifth Circuit found the precise claim “un- Specialty Healthcare, 357 NLRB at 944. Citing the D.C. convincing,” noting that the Board’s community-of- Circuit’s decision in Blue Man Vegas, LLC v. NLRB, 529 interest test articulated in Specialty Healthcare “does not F.3d 417, 421 (2008), the Board noted “Although differ- look only at commonalities within the petitioned-for ent words have been used to describe this heightened unit,” and “conform[s] to established precedent.” Macy’s showing, in essence, a showing that the included and Inc. v NLRB, 824 F.3d at 568–569. See also NLRB v. excluded employees share an overwhelming community FedEx Freight, Inc., 832 F.3d at 440 (holding that Spe- of interest has been required.” Specialty Healthcare, 357 cialty Healthcare’s initial community-of-interest test is NLRB at 944.13 “in line with Board precedent.”); Constellation Brands, Not surprisingly therefore the courts have also unani- U.S. Operations, Inc. v. NLRB, 842 F.3d at 792 (“Step mously rejected the claim, repeated by the majority to- one of Specialty Healthcare expressly requires the RD to day, that the overwhelming community-of-interest test at evaluate several factors relevant to ‘whether the interests of the group sought were sufficiently distinct from those employer has established that the excluded employees share an over- of other employees to warrant the establishment of a sep- whelming community of interest. 357 NLRB 934,945, fn. 28. The arate unit.’”) (citation omitted).12 Board’s reason for allocating the burden as it did was because it is consistent with the Board’s obligation to first consider whether the petitioned-for unit is appropriate, it parallels the Board’s jurisprudence 11 The majority also notes that Specialty Healthcare overruled Park when a unit is presumptively appropriate, and because the employer is Manor Care Center’s test for determining appropriate bargaining units in full, and often near-exclusive, possession of the relevant evidence. in non-acute healthcare facilities. That is true but irrelevant, for this The majority’s decision eliminates that burden allocation, without case does not involve a nonacute healthcare facility and therefore this addressing the reasons for doing so discussed in Specialty Healthcare, case would not have been governed by Park Manor even had the Board and replaces it with an amorphous inquiry into whether employees in never decided Specialty Healthcare. the petitioned-for unit share an unspecified level of community of 12 The majority claims that there have been instances where the Spe- interest with the excluded employees. cialty Healthcare test has been misapplied. Even assuming that is true, We also note in passing that although the majority claims that the it does not warrant throwing the baby out with the bath water and over- Board denied the employer’s request for review of the Regional Direc- turning it. Indeed, in Constellation Brands, the Second Circuit upheld tor’s decision to direct nine separate elections in Yale University, 365 the Specialty Healthcare test, notwithstanding that it found that the test NLRB No. 40 (2017), the Board in fact merely denied the employer’s had been misapplied in that case. See Constellation Brands, U.S. Op- request for extraordinary relief (expedited review and a stay or im- erations, Inc. v. NLRB, 842 F.3d at 787. See also Nestle Dreyer’s Ice poundment of ballots). As the majority is well aware, the merits of the Cream Co. v. NLRB, 821 F.3d at 499 (“We need not . . . hold that an Employer’s request for review remain pending before the Board. application of the Specialty Healthcare standard will never run afoul” 13 Because the use of slightly varying verbal formulations to describe of the Act in order to uphold it). Parties who believe that the test has the standard applicable in this recurring situation did not well serve the been misapplied by a Regional Director may file a request for review Act’s purposes, the Board took the opportunity to clarify that when with the Board; and parties who believe that the Board has misapplied employees or a labor organization petition for an election in a unit of the test—or failed to correct Regional Director misapplications—may employees who are readily identifiable as a group (based on job seek review in an appropriate court of appeals via the well-established classifications, departments, functions, work locations, skills, or technical 8(a)(5) procedure. The majority distorts the holding of these similar factors), and the Board finds that the employees in the group cases—that explicitly upheld the Specialty Healthcare analysis—to share a community of interest after considering the traditional support its decision to reverse Specialty Healthcare. The majority fails criteria, the Board will find the petitioned-for unit to be an appropri- to appreciate that the issue of whether the employees have a distinct ate unit, despite a contention that employees in the unit could be community of interest under the community-of-interest test in step one placed in a larger unit which would also be appropriate or even more of the Specialty Healthcare analysis does not answer the question of appropriate, unless the party so contending demonstrates that employ- whether the only appropriate unit includes employees who were not in ees in the larger unit share an overwhelming community of interest the petitioned-for unit, which is the question in step two. On that ques- with those in the petitioned-for unit. Specialty Healthcare, 357 NLRB at tion, the Board in Specialty Healthcare stated—and the circuit courts 945. The D.C. Circuit recently concluded that it was “fitting” for the have unanimously affirmed—that the relevant question is whether the Board to do so. Rhino Northwest, LLC v. NLRB, 867 F.3d at 100. PCC STRUCTURALS, INC.21 step 2 constitutes a departure from precedent. Writing As we show below, (A) the majority’s approach is infor the Seventh Circuit, Judge Posner noted, ‘“over- consistent with the statute and will frustrate the Act’s whelming community interest’ is not the invention of the policies; (B) Specialty Healthcare does not impair the Specialty Healthcare case; one can find it in two 40– Section 7 rights of employees outside the petitioned-for year–old NLRB cases . . . . Moreover, ‘overwhelming’ unit; and (C) the majority’s approach will entangle the appears to be treated by the NLRB as a synonym for ‘in- Board and the parties in an administrative quagmire. appropriate, . . . for ‘truly inappropriate,’ . . . and for A. ‘clearly inappropriate—terms that pull the sting of The majority’s approach is plainly inconsistent with the ‘overwhelming.’” FedEx Freight, Inc. v. NLRB, 839 statute and will frustrate the Act’s policies. In Section 1 F.3d at 638. Similarly the Sixth Circuit concluded that it of the Act, Congress declared it to be the policy of the is “just not so” that the overwhelming community of United States to “protect[] the exercise by workers of full interest standard represents a material change in the law. freedom of association, self-organization, and designa- Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d tion of representatives of their own choosing, for the at 561 (“The Board has used the overwhelming- purpose of negotiating the terms and conditions of their community-of-interest standard before, so its adoption in employment[.]” The first and central right set forth in Specialty Healthcare II is not new.”) And after conduct- Section 7 of the Act is the employees’ “right to self- ing an independent review of the relevant precedent, the organization.” As the Board has explained, “A key as- D.C. Circuit recently stated that the “‘overwhelming pect of the [Section 7] right to ‘self-organization’ is the community of interest’ formulation . . . encapsulate[s] right to draw the boundaries of that organization—to decisions that, in our words, ‘conform[ed] to a consistent choose whom to include and whom to exclude.” Special- analytic framework’”, leading the court to “join seven of ty Healthcare, 357 NLRB at 941 fn. 18. The majority’s our sister circuits in concluding that Specialty Healthcare approach flies in the face of Section 9(a)’s instruction that worked no departure from prior Board decisions.” Rhino representatives need be designated only by a majority of Northwest, LLC v. NLRB, 867 F.3d at 100–101.14 employees in “a unit appropriate” for collective bargain- V. ing, not in “the most appropriate” unit. The majority’s In lieu of Specialty Healthcare, the majority advocates approach breaches Section 9(b)’s command that the that when the parties cannot agree on the unit in which to Board’s unit determinations “assure to employees the conduct an election, the Board should not focus on the fullest freedom in exercising the rights guaranteed by” the Section 7 rights of employees who seek to organize in Act, i.e., that of self-organization and collective bargain- the petitioned-for unit, but must instead consider the ing.15 The majority ignores the Supreme Court’s authori- statutory interests of employees outside the unit, as advanced by the employer. In the majority’s view, in other 15 Indeed, the legislative history of 9(b) shows that Congress used words, the statutory right of employees to seek union the language “fullest freedom” to refer to the ability of employees to representation, as a self-defined group, is contingent on organize in a unit with co-workers who share a community of interest and that the Board should be limited in its discretion to find that only a the imputed desires of employees outside the unit who larger unit is appropriate. The Labor Management Relations Act have expressed no view on representation at all—with (LMRA or Taft-Hartley) of 1947 amended Sec. 9(b) of the NLRA to the employer serving as their self-appointed proxy. Of include the relevant language—that the Board’s unit determination course, the extent of employees’ freedom of association decisions shall protect the fullest freedom of employees’ right to organize. The language originated with the draft legislation from the Senate (which, by definition, includes the freedom not to associ- Committee on Labor and Welfare. The Committee report explains that ate) is not a matter for employers to decide. As the Su- the purpose of the amendments to 9(b) was “to limit the Board’s discre- preme Court has made clear, the Board is entitled to tion in determining the kind of unit appropriate for collective bargain- “giv[e] a short leash to the employer as vindicator of its ing.” Senate Report No. 105 on S. 1126, reprinted in 1 NLRB, Legisla- tive History of the Labor Management Relations Act, 1947 (LMRA employees’ organizational freedom.” Auciello Iron Hist.) 431 (1948). To effectuate that policy, the LMRA would amend Works, Inc. v. NLRB, 517 U.S. 781, 790 (1996). the NLRA to provide greater protection for professionals and craft units to organize separately. In Congresses’ view, the Board’s protection of the right to organize by subsets of employees had been inadequate. 14 The Board’s decision in Specialty Healthcare has also been criti- Accordingly, the central rationale for the relevant statutory language cized for facilitating a proliferation of micro-units that would wreak was to limit the Board’s discretion in finding less than employer-wide havoc in the workplace. Like other criticisms of the decision, this has units inappropriate. On the Senate floor, Senator Taft, the chief spon- been proven baseless, and the majority tellingly does not invoke this sor of the LMRA, stated that the purpose of the amendment to 9(b) was canard to justify overturning Specialty Healthcare. Indeed, Specialty to give “greater power to the craft unions to organize separately.” 2 Healthcare has not driven down the median size of bargaining units. LMRA History 1009 (1948). Therefore, the majority decision— See www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/ arguing that the Board must more thoroughly consider the interest of median-size-bargaining-units-elections. excluded employees in order to protect all employees’ fullest free- 22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tative interpretation of Section 9(c)(5) to the effect that ments of the Act and need not look to alternative units.” the Board may consider the extent of organization in mak- (internal cites omitted)). ing unit determinations, so long as it is not the controlling The majority’s approach stands well-settled principles factor. And its approach fails to acknowledge that pursu- on their head. First, under the majority’s approach, even ant to Section 9(c)(1), the unit described in the petition if the petitioned-for unit is appropriate under the Act, the “necessarily drives the Board’s unit determination.” Board may not direct an election in that unit if the Board Overnite Transportation Co., 325 NLRB 612, 614 (1998). concludes that another unit would be more appropriate. It is because of the foregoing statutory language that Until today, the Board had refused to do precisely that. the Board and courts have long recognized that employ- See Overnite Transportation Co., 322 NLRB at 725 (re- ees are not required to seek what the Board would con- quiring the Board to decide which is the best or most sider to be the most appropriate unit. See, e.g., NLRB v. appropriate unit “would stand on its head the statutory FedEx Freight, Inc., 832 F.3d at 439 (in upholding Spe- concept of an appropriate unit. We do not believe that cialty Healthcare, the Third Circuit notes that the “Su- Congress intended such an outcome, especially since preme Court has held that section 9(a) ‘implies that the Congress set forth more than one appropriate unit in Sec- initiative in selecting an appropriate unit resides with the tion 9(b).”) (emphasis in original); Montgomery Ward & employees’ and that ‘employees may seek to organize ‘a Co., Inc., 150 NLRB 598, 601 (1964) (“the issue here is unit’ that is ‘appropriate’—not necessarily the single simply whether [the petitioned-for unit] is appropriate in most appropriate unit.’”); FedEx Freight, Inc. v. NLRB, the circumstances of this case, and not whether another 816 F.3d at 523 (noting the “‘longstanding principle’ of unit . . . would also be appropriate, more appropriate, or unit determination under the community of interest test most appropriate.”). 16 that ‘the Board need only certify ‘an appropriate’ bar- Second, as previously discussed, the majority decision gaining unit, rather than ‘the most appropriate’ one’”) disregards the Board’s decades-old policy, approved by (citations omitted). In fact, until today, the Board’s “de- the Supreme Court, that the petitioner’s desire is always clared policy” was “to consider only whether the unit a relevant consideration.17 Relatedly, the majority casts requested is an appropriate one, even though it may not aside extant Board law that, when a proposed unit de- be the optimum or most appropriate unit for collective scribes employees readily identifiable as a group who bargaining.” Overnite Transportation Co., 322 NLRB share a community of interest, “both the Board and 723, 723 (1996); Black & Decker Mfg Co., 147 NLRB courts of appeals have necessarily required a heightened 825, 828 (1964). Even prior to Specialty Healthcare, it showing to demonstrate that the proposed unit is never- was black letter law that once the Board determines that theless inappropriate because it does not include addi- the petitioned-for unit is appropriate, the Board’s inquiry tional employees.” Specialty Healthcare, 357 NLRB at ends. See, e.g., Boeing Co., 337 NLRB 152, 153 (2001) 944, citing Blue Man Vegas, LLC, v. NLRB, 529 F.3d at (“The Board’s procedure for determining an appropriate 421. The majority rejects this existing framework and unit under Section 9(b) is to examine first the petitioned- replaces it with an open-ended inquiry that provides no for unit. If that unit is appropriate, then the inquiry into standard for uniformly evaluating whether a petitioned- the appropriate unit ends.”); Wheeling Island Gaming, for unit is appropriate and no guidance to employees Inc., 355 NLRB 637, 637 fn. 2 (2010); Metropolitan Life interested in bargaining collectively.18 Insurance Co., 156 NLRB 1408, 1415 (1966) (“[T]here is no reason to compel a labor organization to seek repre- 16 And as explained below, by expanding the nature of the Board’s sentation in a larger unit than the one requested unless unit inquiry, the majority’s approach clearly frustrates “the Act’s policy the smaller requested unit is itself inappropriate.”). See of expeditiously resolving questions concerning representation.” Northeastern University, 261 NLRB 1001, 1002 (1982). FedEx Freight, Inc. v. NLRB, 816 F.3d at 523 (“The 17 See Marks Oxygen Co. of Alabama, 147 NLRB 228, 230 (1964). Board explained well before Specialty Healthcare that See, e.g., Rhino Northwest LLC v. NLRB, 867 F.3d at 99–100; Mc- ‘[i]n deciding the appropriate unit, the Board first con- Mor-Han Trucking Co., Inc., 166 NLRB 700, 701 (1967); E. H. siders the union’s petition and whether that unit is appro- Koester Bakery Co., Inc., 136 NLRB 1006, 1012 (1962). 18 The majority claims that we greatly exaggerate the scope of to- priate.’ If the Board concludes that the petitioned for day’s ruling when, according to the majority, it is merely returning to unit is ‘an appropriate unit,’ it has fulfilled the require- the pre-Specialty Healthcare analysis. But the majority’s assertion that the Board will neither favor nor disfavor the petitioned-for unit is simply irreconcilable with cornerstone principles that have guided the dom—is in significant tension with the legislative history of the statuto- Board’s unit determination decisions for decades: that the desire of the ry language on which it purports to rely and subverts the basic princi- petitioner is always a relevant consideration and that there is a height- ples underlying employees’ freedom of association. ened showing required of a party arguing for the inclusion of additional employees in a petitioned-for unit that satisfies the traditional commu- PCC STRUCTURALS, INC.23

The majority simply misunderstands that Congress as in this case, they constitute an appropriate unit under neither intended to maximize the Board’s free choice in the Board’s traditional community-of-interest test. selecting the unit in which to conduct the election, nor B. maximize the employer’s ability to manipulate the unit Contrary to the majority, Specialty Healthcare respects sought in the petition. Rather, it was the intent of Con- the Section 7 rights of employees outside the petitioned- gress to facilitate employee free choice in this regard.19 for unit to organize. Employees outside the petitioned- Furthermore, the majority’s approach falls apart in for unit have the right, as well as the opportunity, to or- practical application. The facts of this case are a clear ganize and to encourage their coworkers to do the same. illustration. As noted above, the petitioned-for unit in- And those workers’ statutory rights remain firmly intact cludes 102 welders, who voted 54 to 38 to bargain collec- whether or not the petitioned-for employees unionize. tively with the Employer. But the Employer contends Cf. Laidlaw Waste Systems, Inc. v. NLRB, 934 F.2d 898, that the only appropriate unit is all 2,565 of the produc- 900 (7th Cir. 1991) (certification of unit of drivers, tion employees. If the Employer is correct that, in order which excluded mechanics, protected the rights of both to safeguard the fullest freedom of all employees in all the groups; mechanics subsequently organized under the possible unit configurations, the only appropriate unit is banner of a different union). all 2,565 production employees, the only way that the The majority disputes this and appears to be of the welders can secure a representation election is if there is view that the excluded employees may wish to be in- an adequate showing of interest among that larger unit. cluded in the petitioned-for unit, and that the Specialty This would mean that the welders would need 770 em- Healthcare test somehow violates their supposed right to ployees to sign authorization cards in the short period of such inclusion. Thus, the majority asserts, “[T]he possi- time that the Board affords petitioners to satisfy the bility that excluded employees may seek separate repre- showing- of-interest-requirement when the Board directs sentation in one or more separate bargaining units does an election in a significantly larger unit than initially not solve the problem caused by the failure to give rea- sought by the petitioner. See NLRB Casehandling Man- sonable consideration to their inclusion in a larger unit.” ual (Part Two) Representation Proceedings, Sections But, the majority’s argument is without foundation. 11023.1, 11031.1 (Jan. 2017). That is, obviously, a The majority points to no case in which employees claim daunting undertaking for the welders who voted to bar- that their interest in being included in a unit has been gain collectively. Does the majority truly believe that this ignored. Nor is there any evidence in this case that when is the intent of the Act? It certainly is contrary to the the Union filed its petition it excluded employees who Act’s underlying policy—to protect and facilitate em- sought admission, or that any employees outside the peti- ployees’ opportunity to organize unions to represent tioned-for unit displayed any interest in collective bar- them20—to make it so difficult for a readily identifiable gaining or self-organization. 21 In any event, as the Su- group of employees to obtain union representation when, preme Court recognized long ago, individuals who fall within the Act’s broad definition of “employee” have “no nity of interest test. In failing to reconcile these inconsistencies, the majority fails to satisfy the legal standard that an agency may depart statutory right to be included in collective-bargaining from its precedents only “provided the departure is explicitly and ra- units under § 9(b).” NLRB v. Action Automotive, Inc., tionally justified.” See Kindred Nursing Centers East, LLC v. NLRB, 469 U.S. 490, 497–498 (1985) (emphasis added).22 727 F.3d at 560, citing State of Mich. v. Thomas, 805 F.2d 176, 184 Specialty Healthcare also fully protects the Section 7 (6th Cir. 1986). 19 See Federal Electric Corp., Western Test Range, 157 NLRB 1130, rights of the excluded employees to refrain from engag- 1132 (1966) (In effectuating 9(b)’s mandate that the Board make unit determinations which will assure to employees the fullest freedom in 21 If Congress believed that, even absent any evidence that the non- exercising rights guaranteed by the Act, i.e., the rights of self- petitioned-for employees seek to exercise their Sec. 7 rights, the Board organization and collective bargaining, the Board has “emphasized that must include them in the unit in order to protect their rights to organize the Act does not compel labor organizations to seek representation in and bargain collectively, Congress would have mandated elections in the most comprehensive grouping of employees unless such grouping employer-wide units in all cases. But Congress did no such thing. constitutes the only appropriate unit.”); Mc-Mor-Han Trucking Co., 22 Nor, contrary to the majority’s fleeting suggestion, does Specialty Inc., 166 NLRB 700, 701 (1967) (“[I]t is not the Board's function to Healthcare undermine the principles of majority rule and exclusive compel all employees to be represented or unrepresented at the same representation. After all, if employees outside the petitioned-for unit time or to require that a labor organization represent employees it does are shown to have an overwhelming community of interest with the not wish to represent, unless an appropriate unit does not otherwise petitioned-for employees such that there is no legitimate basis for ex- exist.”); FedEx Freight, Inc v. NLRB., 816 F.3d at 523 (rejecting em- cluding them (see Blue Man Vegas, LLC v. NLRB, 529 F.3d at 421), ployer’s contention that the Board must consider other possible units Specialty Healthcare mandates that they be included in the unit. And if before determining whether the union’s proposed unit is appropriate). a majority of the totaled ballots from both groups are for representation, 20 See American Hospital Assn. v. NLRB, 499 U.S. at 609, 613. the petitioner will be their exclusive representative. 24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing in union activity. These employees have the right to Relations Act for rejecting” a petitioned-for unit. FedEx refrain from organizing a union and to encourage their Freight, Inc. v. NLRB, 839 F.3d at 637. coworkers to do the same. In fact, it would appear that The majority claims that today’s decision does not in- in cases where the petitioned-for employees outnumber crease the opportunity for employers to manipulate the the excluded employees, it is the majority’s approach unit, but that is manifestly incorrect. First, the majority that would put those employees’ rights to refrain from discards the clarity that Specialty Healthcare provided to union activity at risk by potentially requiring them to be the Board’s unit determination jurisprudence. Then, the included in the unit even though neither they nor the peti- majority exacerbates the confusion by eliminating the tioned-for employees seek their inclusion.23 consideration that the Board has traditionally given to the C. petitioned-for unit. The majority’s new approach provides no basis to distinguish between cases where the The majority’s approach will also entangle the Board excluded employees share a sufficient community of and the parties in an administrative quagmire. In cases interest to render the petitioned-for unit inappropriate such as this where there are numerous possible units be- versus merely finding that a larger unit would be more tween that petitioned for by the Union and the all- appropriate. The vagueness of the majority’s test should encompassing alternative unit proposed by the Employer, be fatal to its adoption. Even worse, the majority under- the majority’s approach would seemingly require the cuts the central purpose of the Act by failing to provide Board to consider other possible permutations before employees seeking to organize any confidence in predict- selecting the unit in which to conduct the election. And ing whether they can bargain collectively with their em- to the extent the majority is truly concerned with the Sec- ployer without wasteful and time-consuming litigation tion 7 rights of employees outside a petitioned-for unit over the contours of the unit. The unmistakable conse- (as opposed to simply improving an employer’s chances quence of the majority’s amorphous test is to make unit of defeating the union by enlarging the unit), the majori- determination more unpredictable, more frequently a ty’s approach would appear to mandate an inquiry into subject of litigation, and more subjective. The more sub- whether employees outside the petitioned-for unit—and jective the standard is the greater the opportunity to liti- which group(s) of such employees—seek to be included gate the appropriateness of the unit, and, consequently, in the petitioned-for unit. For how else can the Board the greater the opportunity to delay and frustrate employ- decide, as now required by the majority, which unit best ees’ right to organize. assures to all employees—both those inside the peti- It is no wonder that the Board has never followed the tioned-for unit and those outside the petitioned-for unit— majority’s untenable approach. the fullest freedom in exercising their rights? Needless to say, such an approach will lengthen hear- VI. ings—imposing costs on the Government and the par- Turning to the facts of this case, we agree with the Re- ties—and delay resolution of the question of representa- gional Director that the petitioned-for unit—which, as tion, even though no party has requested that the Board previously noted, is comprised of 102 highly-skilled, consider those other units and even though the peti- highly-paid welders, who perform distinct work and who tioned-for unit is an appropriate unit in which to conduct occupy two specific job classifications (rework welders the election. And it flies in the face of the well- and rework specialists) out of approximately 120 job established principle that the Board is to consider only classifications in PCC’s manufacturing operation— whether the petitioned-for unit is an appropriate unit, not constitutes an appropriate unit for the purposes of collec- whether it is the most appropriate unit. The majority tive bargaining.24 The unit is appropriate under Specialty certainly provides no persuasive reason for empowering Healthcare, because the welders are readily identifiable an employer to argue that the interests of excluded em- as a group25 and share a distinct community interest,26 ployees render the petitioned-for unit inappropriate. The petitioning employees would understandably view with 24 The Regional Director permitted a third classification occupied by skepticism any employer claim that it was seeking to add a single employee—the rework specialist/crucible repair employee--to employees to the petitioned-for unit at those employees’ vote subject to challenge because there was insufficient evidence to resolve its unit placement. request—rather than to ensure the employer “a better 25 As the Regional Director correctly found, the 102 welders are chance of winning the election” in a larger unit, which is readily identifiable as a group because they occupy the only two job obviously “not a reason recognized in the National Labor classifications that share the function of repairing manufacturing defects in metal castings. 26 We agree with our colleagues that the Regional Director did not 23 See Macy’s, Inc. v. NLRB, 824 F.3d at 566 (rejecting claim that explicitly address at step one of the Specialty Healthcare analysis Specialty Healthcare will undermine employee rights). whether the petitioned-for employees’ share a distinct community of PCC STRUCTURALS, INC.25 and PCC has not shown that the more than two thousand As some of PCC’s most highly-paid employees, the employees whom it seeks to add to the unit share an welders also share a distinct community of interest in overwhelming community of interest with the petitioned- wages. PCC’s wage scale has pay grades between 5 and for welders. 20, with the welders all occupying grades 15, 16, and 18. The highly-skilled nature of the welders’ work (as The welders testified that their compensation was in the demonstrated by the high qualifications and training re- range of roughly $30/hour, approximately twice that of quired) strongly supports finding the welders’ interests to employees at the bottom of PCC’s pay scale earning be distinct from those of their less-skilled coworkers. $14.21/hour. As the Regional Director found, only a The two classifications in the petitioned-for unit are the small number of PCC employees are paid at the welders’ rework welder, the entry-level welding position, and the high rate. rework specialist, the most experienced welders. Even at The welders’ distinct functions and lack of interchange the entry level, the rework welder job description re- with other production and maintenance employees fur- quires that the applicant qualifications include advanced ther supports finding their community of interest to be welding skills. Most of the witnesses testified that they distinct from other employees. The role of the rework had completed a community college curriculum in weld- welders and rework specialists is to weld metal to fix any ing prior to being hired for their position. In order to be castings defects. This work takes place at the “back end” hired, the rework welders have to pass a visual welding of PCC’s production process, after a full-scale wax ver- certification examination by demonstrating their welding sion of the desired casting is created; a ceramic shell is skills to the weld examiner and complete a 120 hour ini- placed around the wax mold and the wax is melted out; tial certification class. But that is not the end of their metal is poured into the ceramic shell to create the final training; next, the welders undergo intensive on-the-job casting; and the metal casting is inspected for defects. training, over multiple years, to obtain the requisite certi- No other employees do the metal welding work to fix fications, to maintain their certifications, to work with defects, ever. And once qualified, trained and paid as specific alloys, and to advance through PCC’s pay grades welders, it is extremely rare for welders to transfer into and steps. Ultimately, to be eligible for a position as a other nonmanager employee positions. Moreover, weld- rework specialist, an employee must have a minimum of ers only perform non-welding work if the welding work 5 years in step 6 as a rework welder. is so slow that they would otherwise be sent home. And Moreover, the welders’ self-training and evaluating even when the welders perform less-skilled, nonwelding structure unquestionably supports a finding that their work, they are still paid at the welders’ wage rate. interests are distinct, even from their coworkers occupy- There are a number of other considerations that also ing other job classifications with whom they may share demonstrate the distinct role of welders in the workplace. nominal supervision. Once on the job, the training of Welders work apart from other employees in their own welders is done by other welders. The initial welding open air chambers or welding booths. They also use certification examination is administered and reviewed by the weld examiner, who is also a rework specialist. Services, 313 NLRB 1307, 1308-1309 (1994). Previously, the Board There are designated welding training coordinators who has found that welders in the aerospace industry are an appropriate craft facilitate the training at the various facilities. Again, unit. See, e.g., Boeing Airplane Co., 124 NLRB 689 (1959); CNH America, 25–RC–116569, (2014) (not reported in Board volumes) those training coordinators are rework specialists, whose (Member Miscimarra dissenting, stating that “the Board has not found a job descriptions—as corroborated by hearing testimo- craft unit of welders to be appropriate since 1955 except in the aero- ny—specifically list responsibility for training rework space industry.”) (emphasis added). Here, PCC is in the aerospace welders. Although the welders may share paper- industry: it manufactures airplane engines and frames. Accordingly, the petitioned-for unit is a presumptively appropriate craft unit under supervision with employees in other classifications, one the Board’s long-standing jurisprudence, explicitly noted and incorpo- welder testified that he only interacted with his non- rated by Specialty Healthcare. 357 NLRB at 940, fn. 16, citing welder supervisor regarding vacations and administrative Mallinckrodt Chemical Works, 162 NLRB 387 (1966). Finding an matters. 27 appropriate craft unit here is particularly apt given that the Regional Director should and did consider whether welders were so functionally integrated with other employees as to lose their separate identity. See interest. However, for the reasons discussed below, we conclude that American Cyanamid, 131 NLRB 909, 910 (1961). See E.I. Dupont de the record fully supports a finding that the welders share a community Nemours, 162 NLRB 413, 419 (1966) (explaining that integration of a of interest distinct from the diverse array of the employer’s other pro- manufacturing process is a factor to consider, “[b]ut it is not in and of duction and maintenance employees. itself sufficient to preclude the formation of a separate craft bargaining 27 Member McFerran further notes that the self-training and evaluat- unit, unless it results in such a fusion of functions, skills, and working ing structure is a telltale feature of highly-skilled craft units, which are conditions between those in the asserted craft group and others outside presumptively appropriate under the Act. See generally, Burns and Roe it as to obliterate any meaningful lines of separate craft identity.”). 26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD their own unique tools of their craft. In addition, they petitioned-for unit share an overwhelming community of perform the only job function with an engineer among interest with the petitioned-for employees. The Regional management employees (the welding engineer) specifi- Director carefully considered PCC’s argument that the cally dedicated to their work. Finally, while the welders only appropriate unit was all 2565 production and may not exist as a department on PCC’s organization maintenance employees, thoroughly analyzed whether chart, the welders themselves provided consistent, unre- the excluded employees shared an overwhelming com- butted testimony that they regularly had welders-only munity of interest with the welders, and, in our view, meetings and that they considered themselves and were correctly determined that they did not. Accordingly, for considered by colleagues to be a stand-alone department. the reasons discussed, we would find that the Regional For all these reasons, it is clear that the welders share a Director properly certified the unit of rework welders and distinct community of interest from their less skilled, specialists and would uphold the election results. lower paid coworkers who perform different functions VII. throughout PCC’s production and maintenance process. In sum, the majority has done a serious disservice to It is also more than reasonable to conclude, as we do, the labor-management community and the Agency itself that the many strong characteristics favoring the welders’ by casually discarding—without briefing—precedent that community of interest are not overcome by their func- is so central to workers’ rights and to one of the Agen- tional integration with other production and maintenance cy’s core functions. The shortcomings in the majority’s employees.28 At most, the welders were shown to some- process of denying stakeholder input are exceeded only times communicate with other employees about their by the shortcomings in their decision. Not only does the work or, on rare occasions, to work in teams on quality Majority’s radical new approach contravene the Act, but control issues. But this evidence does not demonstrate a its unmistakable consequences will frustrate employees’ fusion of functions, skills, and working conditions be- rights to self-organization and needlessly delay resolu- tween the welders and the more than two thousand pro- tion of questions concerning representation. duction and maintenance employees who PCC seeks to Accordingly, we dissent. add to the unit. Dated, Washington, D.C. December 15, 2017 Turning to the second step in the Specialty Healthcare analysis, we agree with the Regional Director that PCC failed to demonstrate that employees excluded from the ______Mark Gaston Pearce, Member 28 The majority criticizes the Regional Director’s decision because it considered whether the employees in the petitioned-for unit were functionally integrated with each other, rather than with other production and maintenance employees. But the Regional Director’s inquiry was ______whether the welders were an appropriate unit, even though there was Lauren McFerran, Member not a unified welding department on PCC’s organizational chart. In such circumstances, it was appropriate for the Regional Director to look at whether the welders were functionally integrated with each other to determine whether they shared a community of interest, despite the fact NATIONAL LABOR RELATIONS BOARD that they worked out of different departments according to PCC’s organizational chart.