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NLRB Rules Academic Counselor And Clinical Counselor Are Able To Join Teachers Union
The Chicago High School for the Arts is a preparatory visual and performing arts high school. The teachers are unionized and the union wanted to add the School’s Clinical Counselor and Academic Counselor to the teacher’s union. Confidential and managerial employees are excluded from the National Labor Relations Act’s (NLRA) jurisdiction and therefore cannot be members of a union. The case was brought before the National Labor Relations Board to determine whether these two employees were confidential or managerial employees.
The School asserted that the School’s Clinical Counselor is a managerial employee under the NLRA and therefore should be excluded from the union. The School argued that the Clinical Counselor is a member of the School’s leadership team and is responsible for formulating and effectuating the department’s work plan related to student academic growth and emotional health. The School said the Clinical Counselor develops the calendar for student services to the School’s outside clinical group, provides training to this outside group, and develops and effectuates mental health and safety protocols for the School.
The union, on the other hand, asserted that the Clinical Counselor does not possess any managerial responsibilities. She does not and has not formulated or effectuated any academic growth or emotional health plans, there is no “department” for which the Clinical Counselor acts in any managerial capacity, and the union has undisputed testimony that the Clinical Counselor does not develop, control, or maintain the outside clinical group’s calendar or activities for the students. The union showed that the Clinical Counselor does not develop or effectuate safety protocols or plans for the School, but rather the deans perform these functions.
Managerial employees are those who formulate and effectuate management policies. These employees are excluded from the NLRA because they are aligned with management, and an employer is entitled to the undivided loyalty of its members. In evaluating whether an employee is managerial, the job title is not controlling. The analysis is done on a case-by-case basis by examining their actual job responsibilities, authority, and relationship to management.
The NLRB determined that the Clinical Counselor supports students with emotional and social needs, but she does not have any responsibilities regarding student behaviors on a regular basis. She is usually only involved if there is an emergency and when there is a mental health concern. She has no responsibilities for a student’s IEP or 504 Plan—case managers perform those functions. Outside clinicians who work with students on mental health issues do not report in any manner to the Clinical Counselor. The Clinical Counselor only attends leadership meetings about 25% of the time, and the main focus is for each participant to talk about priorities for the upcoming week. There have never been discussions of collective bargaining to date. The Clinical Counselor testified that she has never been told by the School that she was part of the administrative team (comprised of the principal, assistant principal, and deans), and she does not consider herself to be an administrator.
The NLRB found that the overwhelming evidence was that the Clinical Counselor’s decision-making is limited to the routine discharge of professional duties in projects to which she has been assigned. She is not conferred managerial status. As such, the Clinical Counselor should not be excluded from the union.
The School asserts that the School’s Academic Counselor is a confidential employee under the NLRA and therefore should be excluded from the union. The School argues that the Academic Counselor is part of the School’s leadership team and assists and acts in a confidential capacity to persons who formulate, determine, and effectuate management policies with regard to labor relations. The Academic Counselor assists with revising the School’s schedules with regard to the workday for teachers, the student day, and instructional time. The School asserts that the Academic Counselor is responsible for making recommendations that impact teacher performance evaluations.
The union, on the other hand, asserts that the Academic Counselor does not assist or act in any confidentiality capacity to any member of management or anyone who formulates labor relations policies. The Academic Counselor testified, and the Interim Principal acknowledged, that the evidence showed that the Academic Counselor neither possessed nor is given any information or knowledge of teacher work schedules, what subjects teachers will be teaching, or what will and will not impact teacher evaluations. The Academic Counselor’s participation in leadership meetings consists of attendance, and there is not any discussion during these meetings about bargaining with the union, scheduling changes, workday changes, or teacher evaluations.
Confidential employees are excluded from bargaining units because they assist and act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations. Confidential employees, in the course of their duties, have regular access to confidential information concerning the employer’s labor management policies and negotiations.
The NLRB determined that helping students pick courses and balancing student enrollment in classes did not constitute tasks that would render the Academic Counselor a confidential employee. The Academic Counselor does not select which courses will be offered, and the teachers make recommendations directly to the principal and assistant principal as to what they want to teach. The Academic Counselor’s undisputed testimony demonstrates that she receives no private or advanced information on the class or teacher schedules. While the Academic Counselor collects recommendations from teachers in each department, the principal and assistant principal makes all final department structuring and course selection decisions without her knowledge or input. Collective bargaining, labor relations, teacher evaluations, schedule changes, and workday changes have not and currently are not being discussed at leadership meetings. Like the Clinical Counselor, the Academic Counselor has never been told she was part of the administrative team and does not consider herself to be an administrator. The Academic Counselor’s mere access to personnel or statistical information is not enough to consider her a confidential employee, and some teachers in the union have equal and earlier access to the same teacher scheduling information.
The NLRB found that the School failed to sustain its burden to show that the Academic Counselor should be excluded from the union.
The Chicago High School for the Arts and Chicago Teachers Union, Local 1, AFT/IFT, AFL-CIO (March 17, 2023) 13-RC-311310.
Note: This case shows the fact-intensive analysis that is required in determining whether an employee is eligible to join a school’s teachers union. Here, the NLRB focused on the employees’ actual job responsibilities, authority, and relationship to management.