Morgan, Brown & Joy scored a significant victory April 5, 2016, on behalf of Tufts University when the Regional Director for Region One of the National Labor Relations Board found that the tenured/tenure-track Basic Science faculty at Tufts School of Medicine were all managerial and/or supervisory employees and therefore had no right to unionize under the National Labor Relations Act. Nicholas DiGiovanni and Damien DiGiovanni represented the University in the hearing at the Board’s regional office in Boston.
The SEIU, Local 509 had filed a Petition for Representation with the NLRB seeking to represent a unit of about 70 tenured/tenure-track Basic Science faculty at the Medical School. The University took the position that such faculty were managerial or supervisory under the U.S. Supreme Court’s 1980 ruling in NLRB v. Yeshiva University. In Yeshiva, the Court had ruled that faculty at colleges and universities may be excluded from the right to unionize because collectively they exercise significant authority with regard to academic matters such as establishing the curriculum, approving courses, deciding on student policy and enrollment issues, and effectively controlling which faculty members are retained, promoted and tenured. Due to the fact that such faculty effectively “manage” the institution, they were not entitled to the protections of the NLRA. However, a college or university must put forth sufficient evidence to establish such status when a union files a petition seeking to represent a unit of faculty.
In the Tufts’ case, the Regional Director found that the authority of the Basic Science faculty in five key decision-making categories was “sufficient in breadth and depth” to support a determination that they are all managerial employees. Those five areas – outlined in the NLRB’s previous decision in Pacific Lutheran University, 361 NLRB No. 157 (2014) – include control over academic programs; enrollment management; finances; academic policy; and personnel matters. For example, the faculty at the Medical School had the power to approve new degree programs; to merge degree programs and to approve new courses to the curriculum at the Sackler School of Graduate Biomedical Sciences, part of the Medical School, and the Masters of Biomedical Science program. They also had the power to decide who would be admitted to the School and to set student policies. They also had significant decision-making authority over the School’s financial matters due to the fact that they have complete discretion with respect to the expenditure of millions of dollars of start-up funding and bridge funding that they receive from the University and from grantors to fund their individual labs. They are expected to obtain grants to fund their labs and such grants “ultimately bring in millions of dollars to the University through indirect recovery costs, money that impacts the School’s budget well beyond the confines of their individual labs.”
The faculty set the academic policies of the School, such as credit for prior courses, lab rotation requirements; grading policies and thesis committee requirements. Finally, the Basic Science faculty were found to make effective recommendations on promotion and tenure applications, with the administration following the faculty committee’s recommendations in 27 out of 29 cases since 2003.
Finally, the Board also found that the faculty who run their individual labs – as most do – were statutory supervisors over dozens of employees who work in the labs and thus the Regional Director also excluded such faculty from the Act for that additional reason. Among other things in this regard, the faculty had complete control over whom they wish to hire and what the salary of the new hire should be. This includes dozens of lab assistants, research assistants and post-docs among others that the faculty member virtually hires independent of University oversight with funds from their grants; start-up money or bridge funding.
In light of all this, the Regional Director found that the petitioned faculty members were all excluded as managerial employees and additionally in many cases, as supervisors, and accordingly, dismissed the SEIU’s Petition.