The NLRB Region One Director has ruled that Tufts Medical School professors are managers who are not covered by the NLRA

In 1980 a 5-4 Supreme Court decision held that the faculty of Yeshiva University in New York City were managers who therefore were not employees under the protection of the National Labor Relations Act.  This decision effectively called a halt to the robust union organizing in private higher education during the 1970s.  Many universities,whose faculties had unionized during organized labor's halcyon days of the late sixties and seventies, withdrew recognition from those unions.  Boston University comes to mind as a notable example.

It's not that managers in private organizations can't form labor unions.  But without the protections provided by the NLRA, they have no shield against being fired for doing so.  There is no way, short of raw power, that such a union can force the employer to recognize it as the employees' bargaining representative and to negotiate a labor contract.  Consequently, the Yeshiva decision led labor organizations such as the American Association of University Professors to cease organizing efforts in the private sector of higher education all together for a long time.

A few years ago in a decision involving Pacific Lutheran University, the Obama labor board announced a new test for determining if faculty members are in fact managers who are not covered by the NLRA.  Under the Pacific Lutheran test, while authority over academic decisions remains a factor, it is now overshadowed by impact upon the institution's fiscal decisions, an area where faculty typically have far less impact.  In other words, the Democrat-dominated board raised the bar for private universities wishing to avoid unionization of their full-time faculties.  (Of course, this is not even an issue where adjunct faculty units are concerned, and in fact organizing is proceeding apace among part-time contingent faculty across the country.)

Now, the NLRB's Region One Director has released a new decision which holds that the "basic science" faculty of Tufts University's medical school are in fact managers who cannot unionize under the umbrella of the NLRA.  Key facts are as follows:

The Executive Council is the decision-making body of the School of Medicine. Its purpose is to establish and implement policies for the school, primarily through the oversight of various standing committees and the creation of ad hoc committees. It also recommends to the University's Board of Trustees all candidates for degrees offered by the school. The Executive Council is composed of the Dean of the School of Medicine, the chairs of the four basic science departments, the chairs of the 20 clinical departments, the chair of the faculty senate, an academic dean or officer from each of the various teaching hospitals with which the School of Medicine is affiliated, the President and Provost of the University (who do not usually attend Executive Council meetings), the Dean of the Sackler School, one alumnus, and a student representative. The only member of the School of Medicine Executive Council who could possibly be one of the petitioned-for basic science faculty members would be the chair of Faculty Senate, but there is currently no basic science faculty member on the Executive Council. 

       The Faculty Senate, an elected body, represents the faculty of the School of Medicine and advises the Dean and School of Medicine Executive Council on matters of concern to the faculty. It may request information, communicate its positions, be informed at an early stage by the dean of any plans affecting the School of Medicine, and review and request reconsideration of certain actions of the Executive Council and standing and ad hoc committees. It may receive the financial information necessary to evaluate the budget of the School of Medicine and suggest budget priorities. Each 

clinical and basic science department elects one member to the Faculty Senate, and basic science faculty also have some at-large members. Total basic science representation is either seven members or 25 percent of the total Faculty Senate membership, whichever is greater. 

       Apart from the Faculty Senate, the bylaws give the entire faculty of the School of Medicine the right to establish, subject to trustee approval, educational objectives, the content and form of the curriculum, and the requirements for awarding of degrees. The bylaws give faculty the right to recommend promotion and degree certification of students to the Executive Council, to recommend admissions and disciplinary policies for students, to recommend appointments and promotions within the faculty, to elect members to the standing committees, to render advice to and petition the Dean on matters of concern, and to recommend revisions to the bylaws. 

Recalling that fiscal authority is a big stick in the Pacific Lutheran bundle, we can note that in the Tufts opinion the director seems to put heavy emphasis on the fact that newly hired faculty may receive up the $2 million in start-up funds for their research labs and that they are able to allocate these funds without the approval of anyone else.

These same faculty are then expected to fund their research activities by obtaining grants from outside agencies.  Ultimately, claims the board, faculty are expected to fund 60% of their own activities, salaries, etc.

While the director's lengthy decision covers many other factors, these two facts jump out at me as being the most significant, if not controlling.  Of course, this decision likely will be appealed to the Board in Washington, which remains in the hands of Democrats appointed by President Obama, it being customary for the political party occupying the White House to hold three of the five membership slots.  The Democratic majority may very well disagree with the director's interpretation of the Pacific Lutheran test.