Last week, the NLRB invited interested parties to submit briefs in a case involving a group of college faculty seeking union representation.  At issue in the case is whether the faculty members are an appropriate unit for bargaining. 

The NLRB asks that those filing briefs address one or more of eight different questions.  The questions can be found in the invitation (pdf) to submit briefs.  Most of the questions, however, arise out of the U.S. Supreme Court’s 1980 decision in NLRB v. Yeshiva University.  The Court in that case held that a bargaining unit was not appropriate because it contained certain professors with duties that were managerial in nature.  The NLRB has traditionally treated managerial employees like supervisors, and excluded them from bargaining units.

The decision to issue the invitation for briefs was not unanimous.  Two members, Hayes (R) and Flynn (R) (prior to his resignation), dissented from the decision to solicit additional briefing.  The dissenting members argued that the case had been pending with the NLRB since 2007, and additional briefing would only further delay resolution of the case.  Moreover, they noted that the union that sought to represent the faculty members had not submitted a brief during that time, and that there was already amicus briefs on file from various organizations.

Because the NLRA doesn’t apply to public employees, it is labor professionals at private colleges and universities who will want to take note of this development.  The NLRB’s action suggests that it may announce new rules that could have a material impact on the ability of college professors of various rank and/or tenure status to seek union representation.  Those interested in filing a brief must do so  by July 6, 2012.