Improving the Legal Landscape for Unionization at Private Colleges and Universities

Recent changes may provide new opportunities.
By Risa L. Lieberwitz

University and college faculty have a long history of acting collectively. Countering the stereotype of the individual researcher in the lab, the centennial of the AAUP reminds us of the organizational origins of faculty rights of academic freedom and shared governance. Throughout these one hundred years, faculty have organized and acted collectively to protect these rights through faculty senates, college and university committees, AAUP advocacy chapters, and unionization and collective bargaining.

Following the US Supreme Court’s 1980 decision in NLRB v. Yeshiva University, new unionization was all but halted in four-year private colleges and universities. The Court held that faculty members’ autonomy in carrying out their work makes them managerial employees, who are excluded from rights to unionize and bargain collectively under the National Labor Relations Act (NLRA). In particular, the Court focused on collective autonomy exercised by tenure-track and tenured faculty over decisions involving the curriculum, teaching methods, grading policies, and student admissions. The Court relied to a lesser extent on the faculty role in appointment, tenure, and promotion decisions. Reasoning that the only way employees could possess such autonomy would be through authority delegated by their employer, the Court concluded that the university administration would condition such delegated authority on the faculty’s aligning with management’s interests.

Yeshiva, of course, was wrongly decided. As the dissenting justices recognized, faculty participation and autonomy in academic matters is part of academic freedom, not an expression of alignment with the university administration. The negative impact of Yeshiva has been widespread, creating almost insurmountable obstacles to unionization at private institutions, even as public university faculty gained rights to unionize and bargain collectively under state laws. With the growth of public-sector unionization, faculty and other public employees now face their own challenges in fighting legislation and litigation designed to weaken collective bargaining, but a recent decision by the National Labor Relations Board (NLRB) has created greater possibilities for faculty unionization at private institutions.

Pacific Lutheran Decision

In December 2014, in Pacific Lutheran University, the NLRB modified the standards used to determine two important issues related to faculty rights to unionize in private colleges and universities. First, it created a new test for determining NLRA coverage of religiously affiliated institutions. The board stated that it would not assert jurisdiction over an institution that “holds itself out as providing a religious educational environment” and that “holds out the petitioned-for faculty members as performing a specific role in creating or maintaining the school’s religious educational environment.” This legal standard expands rights to unionize by faculty who are engaged in secular teaching. While an administration may easily prove the first prong based on its religious affiliation, the second prong requires proof of “university . . . communications to current or potential students and faculty members, and the community at large,” that faculty perform “a specific religious function” in the institution.

The NLRB, in Pacific Lutheran, also revisited the issue of defining managerial employees under Yeshiva. Although it cannot refuse to follow the Supreme Court’s decision, the board can reinterpret the legal standards used to apply the decision. The board explained the need for the new standard, specifically highlighting, as the AAUP had in our amicus brief, the increasing corporatization of the university. The NLRB recognized that since 1980, the growing ranks of administrators have increasingly imposed a business model on the university: “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.”

Under the NLRB’s new standard, a college or university claiming that faculty are managerial cannot rely on “paper authority” or make “conclusory assertions that decisions or recommendations are generally followed.” The administration must prove that faculty exercise “actual authority” or that faculty “recommendations must almost always be followed by the administration” or “routinely become operative without independent review by the administration.” In particular, the NLRB will require that the administration prove faculty “authority in fact” over “areas of policy making that affect the university as whole,” defined as academic programs, enrollment management, and finances. The NLRB will also consider the extent of faculty authority over academic policy and personnel policies and decisions.

New Opportunities

Where does Pacific Lutheran leave us on the application of Yeshiva? The NLRB’s new standard opens the door for increased unionization where shared governance has been undermined by corporatization. Certainly, administrators will be hard pressed to make any credible claim that non-tenure-track faculty are managerial, as they are often excluded from faculty governance. In view of the severe level of exploitation of many contingent faculty, especially those in part-time positions, it is not surprising that there has been a spike in adjunct faculty unionization over the past year.

Pacific Lutheran allows tenure-track and tenured faculty greater flexibility in using a variety of tactics to achieve effective faculty governance. The NLRB’s new legal standard puts administrations in a box that may work in the faculty’s favor. Where corporatization has reduced collective faculty autonomy through unilateral decision making by the administration, faculty may have rights to unionize as professional employees under the NLRA, moving from “collective begging” to collective bargaining. If the institution claims that the faculty are excluded as managers from NLRA coverage, the administration must prove that collective faculty authority is genuine, independently exercised, and controlling. Either route leads to increased collective power for faculty.

Pacific Lutheran reveals the importance of having a broad vision of governance that includes faculty committees, faculty senates, and unions, with the potential for the coexistence of these bodies. Faculty should unionize where it is effective; they should rely on faculty senates and other advocacy groups where they are most effective. Faculty governance can coordinate among these institutional models to support individual and collective faculty interests broadly.

The Path Ahead

Traveling these routes toward strengthened faculty governance will not be easy. The legal landscape will remain precarious as challenges to the NLRB’s Pacific Lutheran standards eventually make their way into the federal circuit courts of appeals. One or more circuit courts may refuse to enforce the NLRB’s new standards based on disagreement with the board’s interpretation of the NLRA. Given the controversial nature of the board’s holdings in Pacific Lutheran, the US Supreme Court could eventually grant review in a case applying the NLRB’s interpretation of Yeshiva, its religious institution jurisdictional test, or both.

Apart from legal challenges, perhaps the greatest challenge will come in building faculty activism. Decades of Yeshiva and corporatization have created objective conditions that encourage faculty to view themselves as self-interested entrepreneurs in institutions with increasingly privatized and commercialized missions. Organizing around countervailing values of strong shared governance in support of the university’s public mission will require significant faculty time and energy. The challenge of defining common interests will be compounded at institutions splintered between tenure-track and tenured faculty, on the one hand, and non-tenure-track faculty, on the other. It will be essential, though, to create a unified faculty that serves everyone’s interests, rather than allow corporatization trends to divide faculty ranks further. For example, a unified faculty could prioritize moving non-tenure- track faculty to tenure-track positions. Such organizing and alliances hold the greatest potential for collectively opposing corporatization through effective faculty governance.

Faculty can also build alliances with students to resist corporatization. In a brief window from 2000 to 2004, the NLRB considered graduate assistants to be employees covered by the NLRA. A more conservative NLRB closed that window in the 2004 Brown University decision, which returned to earlier doctrine that considered graduate assistants to be primarily students and therefore excluded from NLRA coverage. The current board, under the Obama administration, has signaled an interest in changing that doctrine yet again. If the NLRB redefines graduate assistants as employees, faculty and graduate assistants could find common interests in their expanded potential for unionization.

If faculty choose to unionize, administrations should, but may not, respect their rights. Recently, Point Park University in Pennsylvania recognized the union as the exclusive bargaining representative of the full-time tenure-track and tenured faculty, although this came only after the former administration had opposed the union, based on a Yeshiva claim, for more than a decade after the faculty had voted for the union. Faculty should be prepared for pushback by administrators against faculty organizing, with employer tactics that include both cooptation and coercion. Administrators will assert that their status as former faculty members themselves aligns their interests with the current faculty. The administration will likely attempt to reinforce the status divisions among faculty ranks. Those who are most vulnerable—contingent faculty and tenure-track faculty who have not yet been tenured—will be most sensitive to negative reactions by deans, provosts, and other administrators. Faculty in precarious positions should be able to rely on their tenured colleagues to take public stances and leadership roles that advance collective faculty interests. At the same time, as a social movement, faculty organizing should build and maintain democratic governance structures that encourage broad-based participation by all faculty.  

Risa L. Lieberwitz is professor of labor and employment law in the Cornell University School of Industrial and Labor Relations and an associate of the Worker Institute at Cornell. She is general counsel of the AAUP. Her e-mail address is [email protected].