Bates College in Lewiston got a boost from the National Labor Relations Board in its quest to split a proposed union into two groups. Steve Collins/ Sun Journal

Bates College got a boost from the National Labor Relations Board in its quest to split a proposed union into two groups.

In a 2-1 vote among board members hearing the appeal, the federal agency agreed Friday to consider Bates’ argument that staff members and faculty members who are neither tenured nor on tenure-track should be in separate unions, if they want to be in a union at all.

The full five-member board has not decided the issue. The members considering Bates’ appeal merely set aside a regional director’s ruling that went against Bates so that the full panel can review the legal questions involved.

The dissenting member, Lauren McFerran, who chairs the panel, backed a regional director’s decision to allow the more than 600 employees involved to belong to the same union.

McFerran is a Democrat while the two members who backed Bates’ position were appointed by President Donald Trump. The two remaining members of the board are both Democrats appointed by President Joe Biden.

More than 30% of Bates workers filed paperwork in October to clear the way for a secret vote among eligible employees to decide if they want to be represented by the Maine Service Employees Association, part of the Service Employees International Union.

The union votes cast in January have been impounded and will be counted after the agency rules on the issues it is reviewing. It is unclear how long that might take.

Jeff Young, a lawyer for the union, said that despite the setback this month, the union remains confident the full board will agree with its stance.

He said he agrees that combining faculty and staff is “a novel issue” for the NLRB, but he’s not sure why it is worth exploring given how rarely it happens.

“It’s an issue that doesn’t need to be decided,” Young said.

In an email to Bates employees after the ruling, the college president, Clayton Spencer, said, “We have maintained consistently that the regional director’s decision to include faculty and staff in the same bargaining unit was both unprecedented under the NLRB’s own legal standards and impractical as a framework for collective bargaining.”

She said the two groups involved have “sharp differences in the nature of their work” and each group operates under “distinctive terms and conditions.”

The labor board said in its March 18 ruling that the college’s request “raises substantial issues warranting review” by all the members of the panel in Washington.

The ruling said members would look at the college’s argument that in higher education there should be an exception to “the long-standing principle that a petitioned-for wall-to-wall unit is presumptively appropriate.”

Young said if the presumption is thrown out in this case, the union thinks it will still win because the facts at Bates show that the faculty and staff share “a community of interests” that meet the standard definition of who can be in a union together.

In a separate victory for the union, the board rejected a request from Bates to overturn a regional director’s ruling that it could not present more evidence because it missed a filing deadline last fall.