In March 2014, the AAUP submitted an amicus brief (.pdf) to the National Labor Relations Board (NLRB), urging the NLRB to consider the full context when determining whether faculty at private colleges are managerial. The brief describes the significant changes in university hierarchical and decision-making models since the US Supreme Court ruled in 1980 that faculty at Yeshiva University were managerial employees and thus ineligible to unionize. That ruling has seriously hampered the ability of private-college faculties to engage in collective bargaining.
In this case faculty members petitioned for an election and voted in favor of representation by a union. The university challenged the decision to hold the election, claiming that some or all of the faculty members were managers and therefore ineligible for union representation. The NLRB Regional Director ruled in favor of the union and found that the faculty in question do not have enough managerial authority to be precluded from unionizing under Yeshiva. Pacific Lutheran asked the NLRB to overturn this ruling and cited the Yeshiva ruling to try to block unionization. The NLRB invited briefs (.pdf) from interested parties on the questions regarding whether university faculty members seeking to be represented by a union are employees covered by the National Labor Relations Act or excluded as managers. (The invitation to file briefs in this case raised questions similar to those raised by the NLRB in Point Park University, in which the AAUP also filed an amicus brief.) The amicus briefs in Point Park were filed in July 2012 and the briefs in Pacific Lutheran were filed in March 2014.
The AAUP amicus brief explained that during the three decades since NLRB v. Yeshiva University, the context in universities has changed in fundamental ways. Rather than relying on faculty expertise and recommendations, universities have increasingly relied on expanded administrations to make unilateral decisions, often influenced by considerations of external market forces and revenue generation. Administrators have become more top-down in managing the university, which undermines faculty recommendation and control over academic matters. A pattern has emerged of university administrators making unilateral decisions, without the approval of faculty governance bodies, on matters central to academic work. These changes in the distribution and exercise of authority in the university reveal a changed relationship between the administration and the faculty, one in which their interests are not aligned.
The AAUP brief urges the NLRB to consider, when determining the managerial status of faculty, factors such as the extent of university administration hierarchy, the extent to which the administration makes academic decisions based market-based considerations, the degree of consultation by the administration with faculty governance bodies, whether the administration treats faculty recommendations as advisory rather than as effective recommendations, whether the administration routinely approves nearly all faculty recommendations without independent administrative review, and whether conflict between the administration and the faculty reflects a lack of alignment of administration and faculty interests.