NLRB Hearing Updates
Frequently Asked Questions
Below are several frequently asked questions concerning the background and details of the NLRB hearing and collective bargaining process.
What occurred to begin the unionization legal process?
On Tuesday, February 16, 2024, Chatham received correspondence from a representative for the American Federation of Teachers – Pennsylvania (AFT PA), writing on behalf of Chatham Faculty United. The correspondence stated, in part: “…AFT PA hereby demands that Chatham University recognize AFT PA as the exclusive collective bargaining representative of all full time and regular part time Chatham University faculty members.” The letter also excluded from the requested bargaining unit the following categories of employees: “supervisors, non-teaching administrators, clerical employees, adjunct faculty members, and maintenance employees.”
Chatham chose to pursue the university’s legal right to an investigative hearing before the National Labor Relations Board (NLRB) on the appropriateness of the requested collective bargaining unit under the National Labor Relations Act (NLRA).
Why did Chatham seek a hearing with the NLRB?
It is Chatham’s position (as it was in 2016 when a demand to recognize an exclusive collective bargaining representative for the faculty was last raised) that, among other legal issues, Chatham’s full-time and regular part-time faculty are managerial employees, as that term is legally defined, because of their role in Chatham’s shared governance system and, therefore, are not an appropriate bargaining unit for collective bargaining representation.
Chatham believes that our faculty actively participate in the university's management through significant collaboration and control over important aspects of our academic life. They also play an integral role in managing the university regarding academic curriculum, academic policies, enrollment management (i.e., student admission process), personnel decisions, and the like —for example, the faculty-driven decision to return tenure to the university in 2022.
Furthermore, the union is seeking to include department chairs and program directors in the proposed bargaining unit alongside other faculty despite the supervisory role that department chairs and program directors exercise over other faculty and staff.
It is important and in the best interests of the Chatham community that any unionization process be conducted through proper legal channels and to ensure that all sides can make their cases before the NLRB and the larger Chatham community on the appropriateness of the proposed bargaining unit, the supervisory status of the department chairs and program directors, and the managerial status of tenure and tenure-track faculty.
Is it common for tenure and tenure-track faculty to constitute a bargaining unit and to have a collective bargaining representation at private colleges like Chatham?
No, with few exceptions, tenure and tenure-track faculty at private colleges in the US are not typically in a bargaining unit with collective bargaining representation. Tenure and tenure-track faculty at public universities may have collective bargaining representation since the applicable law regarding managerial status of public employees differs as compared to the NLRA, which is applicable to private universities.
Are there legal precedents for cases like this?
The legal precedents on the issue of whether faculty at private colleges and universities are managerial employees and therefore not eligible to have collective bargaining representation include, among other cases, NLRB vs. Yeshiva University, a decision of the US Supreme Court in 1980, and an NLRB ruling in 2014 involving Pacific Lutheran University.
In the Yeshiva University case, the US Supreme Court held that the faculty were managerial and, thus, not able to organize under the NLRA since the faculty either made the decisions or provided effective recommendations that were regularly followed by the University Administration regarding academic curriculum, academic policies and student admissions.
In the Pacific Lutheran University case, the NLRB identified 5 factors to analyze as to whether faculty were managerial and thus not able to organize under the NLRA, including whether the faculty made decisions and/or effective recommendations regarding academic curriculum, enrollment management (i.e., student admissions), finances, academic policies and personnel policies/decisions.
In addition, there are several cases in which department chairs and program directors have been determined to be supervisory, based on their job duties, and thus not eligible to be included in a bargaining unit with other tenure and tenure-track faculty.
What does the hearing process entail?
The hearing focuses on the appropriateness of the proposed collective bargaining unit under the National Labor Relations Act. AFT PA and Chatham Faculty United have proposed the following positions as part of the collective bargaining unit.
- Tenure & Tenure Track Faculty
- Visiting Faculty
- Instructors
- Lecturers
- Associate Deans
- Assistant Deans
- Department Chairs
- Program Directors
- Clinical or Program Coordinators
A Hearing Officer, under the direction of the NLRB Regional Director in Region 6 (Pittsburgh Region), oversees the hearing, which entails Chatham and AFT PA presenting witnesses and documentary evidence on whether faculty in the proposed positions are managerial and/or supervisory under the National Labor Relations Act and whether the above classifications share a community of interest with each other such that they are appropriately grouped together in a single bargaining unit.
Through the end of July, there will have been 27 days of hearing testimony (including the next hearing dates on July 25-26, 2024). To date, the parties have called six witnesses. Additional hearing dates will be scheduled in the upcoming months.
What law firm is Chatham using?
Chatham is working with Duane Morris, a law firm that Chatham has utilized for over 30 years to assist with labor and employment legal matters at the university.
Is it appropriate to incur legal fees during this time?
The reality is that there are always legal costs associated with unionization—for both the employer and union. For example, if Chatham had accepted the demand to recognize the proposed collective bargaining unit, there would have still been legal costs associated with contract negotiations. These negotiations (i.e., first contract negotiations) often take a long time, as recently illustrated by the University of Pittsburgh’s faculty union, which ratified a contract after 2.5 years of negotiations.
While Chatham would have preferred not to incur legal expenses at this time, the AFT PA’s demand for collective bargaining initiated a process that required a legal response (and associated costs to the university) in compliance with the law. As the NLRA does not allow managerial employees or supervisory employees to be included in a collective bargaining unit, Chatham was faced with a situation that requires legal counsel to help navigate the complex process under the NLRA. In addition, the issues raised in the NLRB proceeding and the ultimate outcome have implications far beyond Chatham for the AFT PA and private colleges everywhere.