Legal Watch: Academic Labor Unions: The Legal Landscape

By Donna R. Euben

Within the past few months, the National Labor Relations Board (NLRB), which governs collective bargaining in the private sector, has issued two decisions affecting the rights of faculty members and graduate assistants to bargain collectively under the National Labor Relations Act (NLRA). One of the decisions found faculty members at Manhattan College eligible to unionize; the other enabled graduate assistants at New York University to bargain collectively. In so ruling, the board has created more favorable conditions in private-sector colleges and universities for academics who seek to bargain collectively.

Whether professors are "employees" and eligible to bargain collectively if they so choose under the NLRA is a determination made on a case-by-case basis at each college or university. In 1970 the NLRB first exercised its jurisdiction over private not-for-profit institutions of higher learning, finding faculty members at various colleges and universities "employees" covered by the NLRA. Almost all of the faculty unionization efforts in the private sector ceased in 1980, however, when the United States Supreme Court ruled in NLRB v. Yeshiva University that professors at that institution had sufficient influence in university governance to be categorized as managerial employees and were therefore not covered by the NLRA.

But in June 2000 the NLRB upheld the findings of one of its regional directors that faculty members at Manhattan College, a Roman Catholic institution in Riverdale, New York, are employees (not managers) because they exercise "advisory, not actual, governance authority." The director’s ruling relied on a number of findings, including that (a) various curricular committees were made up primarily of department chairs and deans, not faculty members; and (b) the college senate lacked "majority" faculty representation, and its powers were merely advisory. Despite the legal victory, the numerous delays in holding the election contributed to Manhattan College professors’ rejecting union representation in a faculty-wide election.

In October 2000 the NLRB ruled that New York University graduate assistants are "employees" under the NLRA and therefore eligible to unionize. The board found that the NYU graduate assistants "perform services under the control of the Employer, and they are compensated for these services by the Employer." In so ruling, the board clearly rejected the argument of the NYU administration that allowing graduate assistants to unionize violates academic freedom. The board found that the administration’s concern about infringement of academic freedom because of graduate student unionization turned "largely on speculation" and that "[s]uch conjecture does not . . . establish infringement."

The board’s reasoning on academic freedom mirrored that of the amicus brief that the AAUP filed in the case. The Association argued in its brief that the administration’s predictions of the demise of academic freedom are a "doomsday cry" based on "mere speculation" because, based on the experience of unionized faculty members, unionization is not only consistent with academic freedom and shared governance, but also can enhance those professional values. (A copy of the NLRB decision is available online at <www.nlrb.gov>; a copy of the AAUP brief is available) In the end, a majority of NYU graduate teaching assistants voted to unionize, with a total vote count of 619 to 551.

These recent decisions may be a sign that the current board’s reading of federal labor law will be less restrictive of collective bargaining in the private-sector academy and more understanding of the principles, values, and economics of higher education than prior boards’ interpretations. At the same time, the courts, not the board, may have the last word in these cases, because decisions may be appealed. So the legal landscape may continue to shift in this area of private-sector academic unionization.

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