January-February 2001

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Faculty Sidestep The Yeshiva Decision

When the U.S. Supreme Court ruled in 1980 that faculty at Yeshiva University, a private institution in New York City, were managers and therefore not entitled to bargain collectively, it effectively stunted the growth of unionization at private colleges and universities. But two decades later, organizing efforts are under way at several private institutions. The National Labor Relations Act (NLRA) provides for bargaining rights for employees, but not for managers, in the private sector. State laws govern bargaining at public colleges and universities.

Although the decision in National Labor Relations Board v. Yeshiva University was specific to that university and did not rule out the possibility that professors at other private institutions might be considered nonmanagerial, it discouraged many faculty groups from attempting to unionize and served as a precedent in subsequent cases. Some signs, however, indicate that this tradition is eroding, including two rulings by the National Labor Relations Board (NLRB), the administrative agency charged with enforcing the NLRA. A 1996 NLRB decision allowed faculty members to unionize at the University of Great Falls in Montana, and a 1999 ruling permitted them to do so at Manhattan College in New York. (See this issue’s Legal Watch column regarding unionization efforts at Manhattan College.)

But these rulings should not be construed as opening the gates for a flood of unionization, cautions Michael Mauer, director of the AAUP’s Department of Organizing and Services.

"While any legal decision upholding the right of faculty to engage in collective bargaining is to be applauded, each favorable decision of the NLRB and the courts has arisen out of the specific facts of the case before them. Until there is Supreme Court or congressional action to overturn the faulty reasoning of the Yeshiva decision, it will be an uphill battle for faculty activists seeking legal protection to unionize," says Mauer.

At the same time, Mauer says, even in the absence of explicit legal protections, AAUP chapters and other faculty groups—in the private and public sectors—have attained union recognition. "The increasing insistence by private sector faculty on their right to unionize is part of a growing movement in the United States. Employees and labor organizations are invoking the fundamental right to organize, independent of what legislators or courts may say at any given time," Mauer says.

Mike Lynch of the National Education Association (NEA) agrees that interest in unionization is growing. He is working with faculty at the Sage Colleges in Troy and Albany, New York, who filed a petition with the NLRB in October seeking certification of the Sage Faculty Association, an NEA affiliate, as their collective bargaining agent.

The Sage administration mounted a Yeshiva defense, arguing that faculty there are essentially managers. Lynch disagrees. "Administrators are now on all faculty governance committees, and the administration imposed a new faculty handbook," he says. He sees a pattern of this kind of administrative consolidation of power. "Faculty at private colleges are marginalized to the point where they’re looking outside the traditional governance structure," he says. "With or without collective bargaining, faculty associations are going to start popping up all over." Ironically, administrators determined to diminish faculty governance may make their faculties more likely to qualify for unionization under current law.