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does make some recommendations, but few are accepted by the administration. The administration maintains a high degree of control over all aspects of University operations and, therefore, faculty members are considered employees rather than managers. The faculty members would not be subject to the managerial employee exemption and the University would be subject to the NLRA.

The Judge noted that should the Board review this decision and decide that the religious institution exemption does not apply, the University’s actions in withdrawing recognition of the Union and changing the terms and conditions of employment without the Union’s consent would be a violation of the NLRA.

Saint Leo Univ. Inc. & United Faculty of Saint Leo, Nat'l Educ. Ass'n Florida Educ., Am. Fed'n of Teachers, Afl-Cio (Feb. 23, 2023) 2023 WL 2212789.

Note:

Administrative Law Judge decisions are not binding unless later adopted by the full Board. In this case, the Judge allowed the NLRB General Counsel to develop a full record during the hearing, arguing that the NLRB should abandon the Bethany College framework and return to a prior standard when considering whether the NLRB has jurisdiction over religious institutions. This signals that the full Board will likely consider this issue and may overturn the current framework outlined in Bethany College. LCW will monitor this case for future developments.

Jenai Howard, an associate in the San Francisco office, advises clients on education, labor and employment matters. Prior to joining LCW, Jenai worked as a Research Assistant for two Professors at Santa Clara University School of Law where she conducted various kinds of legal research and co-authored a Criminal Law casebook.

Kimberly Horiuchi, an associate in the Sacramento office, works primarily in the Firm’s Litigation practice group where she represents clients in employment litigation matters. She also focuses on providing trusted advice and counsel to organizations throughout the State and has extensive experience in conducting workplace investigations.