Portside Date: December 23, 2014

Author: Scott Jaschik

Date of source: December 22, 2014

Inside Higher Ed

The National Labor Relations Board issued a ruling last week that could clear the way for much more unionization of faculty members at private colleges and universities.

The ruling rejected the claims of Pacific Lutheran University that its full-time, non-tenure track faculty members are managerial employees and thus are not entitled to collective bargaining. In doing so, the NLRB offered a set of standards for evaluating whether faculty members are managerial as described by the U.S. Supreme Court in its 1980 ruling in NLRB v. Yeshiva University, a decision that has largely made unionization impossible for tenure-track faculty members at private colleges and universities.

Last week's NLRB ruling suggested tools for evaluating whether private college faculty members have enough power to be considered managerial, and the standards set appear likely to be used by unions to say that faculty members at many private colleges -- even those on the tenure track -- aren't managerial, and are thus entitled to unionize.

Another part of the ruling said that just because a college is religious doesn't mean that its faculty members can't unionize. The NLRB said that a religious college would need to show that "it holds out the petitioned-for faculty members as performing a religious function. This requires a showing by the college or university that it holds out those faculty as performing a specific role in creating or maintaining the university’s religious educational environment." The NLRB then cited facts about Pacific Lutheran that suggest its adjuncts (those who were seeking unionization there) aren't performing religious work, and thus are entitled to unionization. That part of the ruling will now be applied to several other pending disputes over efforts to unionize adjuncts at religious colleges. And it may be difficult for those colleges to continue to block unionization.

The NLRB ruling (backed by three board members, with one member dissenting and one member concurring in part and dissenting in part) is almost certain to be challenged in court. Higher education associations (representing administrators) had urged the NLRB to do pretty much the opposite of everything that it did. Unions that represent faculty members are sure to fight to preserve the ruling, which could open up many private colleges to faculty unions. (Unionization at public colleges and universities is governed by state laws, some of which authorize collective bargaining in higher education and others of which do not.)

The ruling reflects an NLRB that -- with new appointees by President Obama -- is more friendly to unions than has been the case previously.

A New View of Yeshiva

The part of the ruling that could have the broadest impact on faculty members (both on the tenure track and off) deals with Pacific Lutheran's claim that its full-time adjuncts were managerial employees covered by the Yeshiva ruling. The NLRB rejected the idea that being a full-time faculty member alone makes one a manager at a private university.

In the Yeshiva ruling, the Supreme Court found that the structure of private higher education was not typical of corporate hierarchies, and that faculty members had substantial managerial authority such that they couldn't be considered simply to be employees. The question to consider when deciding whether faculty members are managerial isn't whether presidents and boards of trustees have final right of approval, but whether the faculty have "effective recommendation or control," the Supreme Court ruled.

The NLRB ruling last week noted that there has been some dispute over how to determine whether the faculty members at a particular college have managerial authority. Before naming the areas where faculty must control decision-making to be managerial, the ruling said that the authority must be real. "[T]he party asserting managerial status must prove actual -- rather than mere paper -- authority," the NLRB said. "A faculty handbook may state that the faculty has authority over or responsibility for a particular decision-making area, but it must be demonstrated that the faculty exercises such authority in fact."

The NLRB decision also endorsed the view offered by many professors that the power of the faculty has eroded considerably since the Yeshiva ruling and that the increased use of non-tenure-track faculty members has contributed to this erosion.

"Indeed, our experience applying Yeshiva has generally shown that colleges and universities are increasingly run by administrators, which has the effect of concentrating and centering authority away from the faculty in a way that was contemplated in Yeshiva, but found not to exist at Yeshiva University itself. Such considerations are relevant to our assessment of whether the faculty constitute managerial employees," the decision said. "A common manifestation of this 'corporatization' of higher education that is specifically relevant to the faculty in issue here is the use of 'contingent faculty,' that is, faculty who, unlike traditional faculty, have been appointed with no prospect of tenure and often no guarantee of employment beyond the academic year."

Based on its analysis, the NLRB said that to determine whether faculty members have managerial authority, one must examine faculty control of academic programs, enrollment management policies, finances, academic policies, and personnel policies and decisions. The ruling stipulated that "greater weight" be given to the first three of those factors. That could be significant because many private college administrators say that they defer to the faculty on academic programs, but not necessarily on enrollment policies and finances.

William A. Herbert, executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions, said via email that "the revised framework for determining managerial status set forth in Pacific Lutheran might spur a reexamination over whether tenure-track faculty at various private institutions are, in fact, managerial under Yeshiva based on the role that they currently play in campus decision-making."

This is in part, Herbert said, because "the NLRB emphasized that proof of managerial status under Yeshiva must include evidence that faculty have actual control or effective recommendations concerning the identified decision making areas. This will require specific evidence regarding the number and nature of faculty decisions or recommendations in those decision-making areas, and the scope and nature of administrator review prior to implementation.  For faculty recommendations to be considered effective, however, it must be shown that they 'almost always' are followed by administrators."

Terry Hartle, senior vice president of the American Council on Education, criticized the findings on managerial status. “The NLRB’s decision is troubling but not surprising. It is troubling because the facts in this case do not support the need to revisit the board’s long-held standards concerning managerial employees in a way that could have an enormous impact on colleges and universities," said Hartle in an email. "But it is not surprising given the NLRB’s current make-up. We and the other higher education organizations that signed our brief will continue to support Pacific Lutheran University in this case.”

The Service Employees International Union, which is seeking to organize the adjuncts at Pacific Lutheran, issued a statement praising the NLRB decision and saying that its logic could allow professors at many private institutions to unionize. “Today, institutions of higher learning look increasingly like big businesses because corporate boards and administrations have marginalized the most important job on campus -- teaching,” said SEIU President Mary Kay Henry. “We welcome the NLRB ruling as a step towards justice for faculty and the students they teach.”

Religious Colleges and Professors' Roles

The other claim made by Pacific Lutheran against efforts to unionize adjuncts there was based on the First Amendment separation of church and state. In the past few years, union organizing of adjuncts has increased substantially at both public and private colleges. Some religious colleges have recognized adjunct unions, but a number have objected, saying that -- based on a Supreme Court decision blocking the unionization of lay school teachers at a Roman Catholic high school -- collective bargaining could infringe on the religious freedom of religious colleges. Any inquiries into how religious a college is, or how religious are the duties performed by faculty members, would also infringe on religious freedom, according to this argument.

Faculty leaders involved in unionization efforts have noted that the adjuncts seeking collective bargaining are focused on wages, benefits and job security, not the religious nature of their employers. And these faculty leaders have noted that the adjuncts they seek to represent teach composition and mathematics and a range of courses, but typically not theology.

Notably, the religious colleges that have made this argument are not "statement of faith" institutions, where all students and faculty members must pledge to abide by certain religious standards. Rather, these colleges (most of them Catholic) are institutions that educate many students of different faiths than their own, employing instructors of many faiths.

In its new ruling, the NLRB said that it is not enough to simply assert that a college is religious.

"Faculty members who are not expected to perform a specific role in creating or maintaining the school’s religious educational environment are indistinguishable from faculty at colleges and universities which do not identify themselves as religious institutions and which are indisputably subject to the board’s jurisdiction. Both faculty provide nonreligious instruction and are hired, fired, and assessed under criteria that do not implicate religious considerations," the decision said. "For the board to assert jurisdiction over such employees does no harm to the university’s religious mission and does not impermissibly entangle the board in any of the university’s religious beliefs or practices. On the other hand, excluding such faculty members based solely on the nature of the institution erases the Section 7 [collective bargaining] rights of an entire group of employees who are indistinguishable from their counterparts at universities that do not claim any religious affiliations or connections."

The decision went on to acknowledge that "our examination of the actual functions performed by employees could raise the same First Amendment concerns as an examination of the university’s actual beliefs, and we are again faced with the need to avoid 'trolling' through a university’s operation to determine whether and how it is fulfilling its religious mission. To avoid this risk, we extend the 'holding out' principle to our analysis of faculty members’ roles; that is, we shall decline jurisdiction if the university 'holds out' its faculty members, in communications to current or potential students and faculty members, and the community at large, as performing a specific role in creating or maintaining the university’s religious purpose or mission."

In the case of Pacific Lutheran, the NLRB said it does not have the right to block collective bargaining based on religious grounds. "Neither students nor faculty are required to attend religious services or participate in any of these activities; there is no evidence that faculty are required to perform any functions in connection with any of these activities. Mailings to prospective students mention the school’s Lutheran heritage, describing it as calling for a commitment to academic excellence and freedom. These materials emphasize that students from all backgrounds and religious traditions attend PLU," the decision said.

"PLU’s public representations generally emphasize a commitment to academic freedom, its acceptance of other faiths and its explicit deemphasis of any specific Lutheran dogma, criteria, or symbolism," the decision added.

Such an analysis may not help the other religious colleges seeking to block unions as they too recruit -- as students and faculty members -- people of a variety of faiths (or no faith).

Pacific Lutheran officials issued a statement in which they strongly implied that they will appeal in federal court to reverse the NLRB decision. The statement said that the NLRB ruling "appears to radically depart from at least 30 years of precedent" in the way it views instructors at a religious college. The statement also noted that Pacific Lutheran pays its non-tenure-track instructors well above the levels offered at many similar institutions, and that all full-time faculty members (not just those on the tenure track) participate in faculty governance. The statement indicated that Pacific Lutheran cannot appeal until after ballots in the union election are counted.

A Dissenting View

One of the NLRB members, Harry I. Johnson III, issued a dissent to the ruling, focusing on the religious freedom issues. He argued that any effort by a government agency to determine whether employees of a religious college are engaged in a religious role amounts to telling that college how it should interpret its religious role.

"The issue posed is how the government should determine the line between what is Caesar’s and what is God’s. Here, a religious order operates a university following its religious tradition, and amply explains how the educational instruction within that operation is inspired by, and connected to, its religious faith. In such circumstances, and under the doctrine of constitutional avoidance, the government should tread with caution," Johnson wrote.

He added: "The state cannot substitute its judgment for the university’s over what is 'truly' religious, and whether something is 'specifically religious enough' to qualify as religious, in order to come to an opposite determination. In short, the board cannot tell the religion what it must believe — and what it must express to the public — in order to be religious."

Revived, Union-Sympathetic NLRB

Last week's decision was the type of pro-union ruling that many unions have been hoping for since President Obama took office. But during President Obama's first term, his nominees to the NLRB were blocked. When he made "recess appointments" -- which bypass Senate confirmation requirements -- the administration was sued and the rulings made by those appointees have been challenged as unconstitutional as a result of the nature of the appointments.

But last year a Senate compromise cleared the way for confirmation of NLRB nominees whose rulings -- while possible to challenge on their merits -- aren't going to face legal challenges because of the NLRB nomination process.

And the new NLRB -- with members more supportive of union rights than were those appointed by President Bush -- is why advocates for collective bargaining for teaching assistants at private universities are pushing for the board to review their cases now.

Current NLRB policy -- set when Republican appointees controlled the board -- says that teaching assistants should be viewed primarily as students, not employees, and are thus not eligible for collective bargaining. The United Auto Workers, which is seeking to represent TAs at both Columbia University and the New School, last week asked the NLRB to consider the issue again, and to recognize collective bargaining rights for teaching assistants.