Navigating Troubled Waters at the NLRB

The author of an AAUP amicus brief on private-sector faculty unions explains the legal and political constraints on effective NLRB protection of the right to collective bargaining.
By Risa L. Lieberwitz

Since the US Supreme Court’s infamous NLRB v. Yeshiva University decision in 1980, faculty members at private colleges and universities have confronted major roadblocks to unionization. Yeshiva labels most tenure-track faculty as “managerial,” excluding them from the right to unionize under the National Labor Relations Act (NLRA). Now, more than thirty years later, the National Labor Relations Board (NLRB) has signaled its interest in opening greater possibilities for faculty unionization. In the pending case of Point Park University, the NLRB has taken the unusual step of inviting amicus briefs to guide it in considering how to interpret Yeshiva. I found this invitation tantalizing and exciting, particularly in my role in drafting an amicus brief on behalf of the AAUP. The NLRB’s willingness to consider new interpretations of legal precedents reflects its liberal character under the Obama administration. At the same time, though, the NLRB’s independence and authority are constrained by Congress and the courts.

Institutional tensions between the NLRB and the legislative and judicial branches are long-term problems. But some of the recent difficulties reflect the current downward spiral of politics, including overt hostility by Republicans in the Congress toward the NLRB. The board has struggled to function through the political wrangling that has left it with fewer than its full five-member complement. The fight culminated in the recent legal showdown over President Obama’s January 2012 recess appointments. The NLRB’s current lightning-rod status is all the more significant for academia as it has important implications for the eventual outcome of the Point Park University case.

The NLRB and the Courts

The NLRB is the independent federal agency with responsibility for enforcing the National Labor Relations Act. It carries out this function through processes that protect employee rights and enable employees to choose whether to be represented by a union. The fieldwork of the NLRB is done in its regional offices located throughout the United States. The five-member board is an appellate body reviewing regional office decisions in representation cases and decisions by administrative law judges in unfair labor practice cases. Board members are nominated by the president and confirmed by the Senate for five-year terms.

The NLRA itself creates the strained relationship between the NLRB and the federal courts. On the one hand, Congress gave the NLRB authority to make national policy by interpreting the NLRA. Labor organizations file petitions in a regional office of the NLRB to hold an election in a described group or “bargaining unit” of employees of a particular private-sector employer. If the union receives a majority vote, the NLRB officially certifies the union as the exclusive bargaining representative of the employees. Individuals or groups claiming that employers or unions have committed unfair labor practices must file a charge with an NLRB regional office, not in the courts. On the other hand, the NLRB has no enforcement power. Individuals, unions, employers—and even the NLRB—seeking to enforce decisions by the five-member board must go to one of the twelve federal circuit courts of appeals. As the various circuit courts decide cases presenting similar legal issues, they may reach differing conclusions about whether the NLRB has correctly interpreted the NLRA.

In general, the circuit courts tend to be more politically conservative than the NLRB. Although the courts repeat the mantra that they defer to the NLRB’s expertise on national labor policy, they often refuse to enforce the NLRB’s decisions because they disagree with the board’s interpretation of the NLRA. When two or more circuit courts of appeals disagree over the board’s interpretation, it becomes more likely that the US Supreme Court will grant review of a case raising that legal issue.

The Impact of Yeshiva

The tension between the NLRB and the courts has had a devastating impact on attempts by faculty members at private institutions to unionize. In 1976, tenure-track and tenured faculty members at Yeshiva University voted to unionize, but the administration refused to bargain with the union. The administration argued that the faculty were excluded from coverage of the NLRA as “managerial employees,” because of their significant control over academic matters such as curriculum content, degree requirements, and academic programs. The NLRB rejected this argument, agreeing with the union that such faculty duties are part of the academic profession, which includes faculty academic freedom and autonomy in decisions about teaching, research, and collegial relations.

The fate of the Yeshiva faculty union changed once the case entered the courts. The Second Circuit Court of Appeals disagreed with the NLRB and held that the faculty were managerial employees as they were “in effect, substantially and pervasively operating the enterprise.” In 1980, a closely divided Supreme Court affirmed the court of appeals, holding in a five-to-four decision that faculty autonomy over academic matters— including curriculum, teaching methods, grading policies, and student admissions—are managerial duties carried out by the faculty in the interest of the university. The court’s holding relied to a lesser extent on the faculty role in appointment, tenure, and promotion decisions. As managerial employees, the court concluded, faculty “must be aligned with management” and the university administration “is entitled to the undivided loyalty of its representatives.” The “faculty’s professional interests—as applied to governance at a university like Yeshiva—cannot be separated from those of the institution.”

While acknowledging that “shared authority” governance in universities differs from management practices in typical industrial settings, the Yeshiva majority did not even mention the term academic freedom. With this omission, the majority failed to recognize that faculty self-governance is part of academic freedom, which protects the faculty’s independence from the administration. By ignoring academic freedom as the source of shared governance, the court erroneously described faculty authority over academic matters as managerial power delegated by the administration and conditioned on faculty alignment with the administration’s interests. In contrast, the four dissenting justices emphasized that “the notion that a faculty member’s professional competence could depend on his undivided loyalty to management is antithetical to the whole concept of academic freedom.” Faculty and the administration may agree on the general goal of offering a high-quality education but still diverge over “exactly how to devote the institution’s resources to achieve those goals.”

Yeshiva put the kibosh on faculty unionization in private colleges and universities that operate through shared governance. The same terms and conditions of employment that ensure academic freedom and independence from the administration are the vehicles for the court’s decision that faculty members are aligned with and part of management. This notion places the faculty in an untenable position. To gain rights to unionize as professional employees under the NLRA, faculty must show that they do not have authority over basic academic matters. They are forced, in effect, to argue that they do not have the right to engage in faculty governance, which is a fundamental norm of the academic profession.

As a result of Yeshiva, unionization in private universities has been limited to non-tenure-track faculty or small colleges where faculty have less autonomy in their work (though faculty at some private institutions who were already unionized before 1980 remain so today). By contrast, more than thirty state publicsector collective bargaining laws provide faculty rights to unionize at public institutions. Currently, 93 percent of the more than 350,000 unionized higher education faculty are employed in public institutions. The public-sector experience teaches that the existence of faculty unions has not resulted in conflicted loyalties. Rather, collective bargaining is consistent with shared governance: both are democratic processes to represent faculty interests concerning terms and conditions of employment, including academic freedom and faculty control over academic matters. From this vantage point, faculty governance can be seen as a spectrum with multiple types of faculty collective bodies, including faculty senates, councils, and unions. By themselves, though, faculty senates and councils have become increasingly stymied in dealing with university administrations that are not obligated to bargain.

The NLRB Asserts Itself

Currently pending before the NLRB is the Point Park University case, which has turned into a showdown between the NLRB and the courts. In 2004, in an NLRB-conducted election at Point Park University, a small private university in Pittsburgh, the faculty voted overwhelmingly to unionize. As would be expected, the Point Park administration argued that faculty members are managerial employees excluded from NLRA rights to unionize and bargain collectively. The litigation of this case has extended over a decade, with the case bouncing between the regional office, the NLRB, and the District of Columbia Circuit Court of Appeals. The case boils down to a familiar confrontation between the NLRB and the courts. Here, the appeals court has remanded the case to the NLRB, ordering the board to justify its conclusions that the Point Park faculty are not managerial employees under Yeshiva and that the university violated the NLRA in refusing to bargain with the faculty-elected union. The NLRB invited the public to file amicus briefs to guide it in considering how to interpret Yeshiva, now more than thirty years after the Supreme Court’s decision.

In its invitation to file briefs, the NLRB posed questions that highlight the potential for expanding faculty unionization by reassessing the factors considered in determining managerial status under Yeshiva. Drafting the amicus brief on behalf of the AAUP, I relished the opportunity to advocate for faculty rights to unionize. Yet writing the brief also presented the quandary of how to argue within the institutional limits of the NLRB’s relationship with the courts. From the perspective of the AAUP and other faculty organizations, Yeshiva ignores academic freedom and inaccurately views the faculty’s interests as aligned with those of the administration. Even so, to be helpful and persuasive to the NLRB, the amicus brief must recognize that the DC circuit expects the board to faithfully apply Yeshiva as the legal precedent. How to thread that needle?

The AAUP amicus brief focuses on the question posed by the board of whether it should consider changes in private university decision-making models since Yeshiva. Through this question we could lay out the nationwide reality of a systemic change in higher education: the increasing use of a corporate business model in the three decades since Yeshiva was decided. Our “Brandeis brief” (a legal brief based on social and economic data rather than solely on legal arguments) includes evidence showing the pervasiveness of the corporate, top-down decision-making model and market-based goals: the shocking expansion of the administrative hierarchy, attacks on tenure, administrators’ disrespect for faculty governance bodies, and university decisions driven by profit-making market activities.

We argued in the brief that this corporate model has resulted in increased division and conflict between managerial administrators and faculty members. Faculty remain committed to the fundamental concerns of the academic profession, including academic freedom and shared governance. University administrations, by contrast, have made structural changes that impose unilateral power from the top down, as occurred at Point Park University. The reality is far from the Supreme Court’s image of faculty interests aligned with the administration. As the Second Circuit Court of Appeals observed in its 1985 decision that Cooper Union faculty members are nonmanagerial professional employees, “[W]e would have to ignore the extensive evidence of conflict and of broad administrative authority to implement changes over faculty opposition in core academic areas such as curriculum to find that the Cooper Union faculty is ‘aligned with management.’”

What is the potential of Point Park University? An NLRB decision expanding the rights of faculty to unionize could make faculty governance stronger and more effective. Perhaps most important, recognizing the growing conflict of interest between faculty and university administrations could help tenure-track and tenured faculty see their common interests with the increasing ranks of non-tenure-track faculty. This recognition, in turn, would enable faculty to advocate more effectively with or without a union. If faculty members were able to unionize as nonmanagerial professional employees, they would have the power to obligate the administration to bargain collectively.

Another case pending before the NLRB could help faculty broaden alliances on campus. Only a month after inviting amicus briefs in Point Park University, the NLRB announced that it would reconsider whether graduate student research and teaching assistants at private universities are considered employees covered by the NLRA. This issue, which has been on a seesaw since the NLRB’s New York University decision in 2000, reveals the political nature of board member appointments. Until 2000, the NLRB took the position that graduate assistants are primarily students, a status that is incompatible with employee status under the NLRA. Like faculty members, graduate students at private institutions are thus treated differently from their counterparts at public-sector universities, where graduate student employee unionization has increased under state collective bargaining laws. The New York University decision opened a brief period of union activity in private universities by redefining graduate assistants as employees under the NLRA, but it was followed closely in 2004 by the NLRB’s decision in Brown University, which returned to the prior doctrine that excluded graduate assistants from NLRA coverage. These shifting decisions correspond with changes in board membership under the Clinton and Bush administrations. The current reconsideration of the issue in the consolidated cases of New York University and Polytechnic Institute of New York University was announced by the Obama board. Positive outcomes in the pending Point Park University and New York University cases could reinforce the potential for building faculty–graduate student alliances to advocate for common interests.

A Political Reality Check

The rightward shift in Congress has created a political climate that may militate against the NLRB’s using Point Park University and New York University to expand rights to unionize in private universities. The NLRB’s independence in interpreting the NLRA is constrained by the Senate’s power to confirm appointments to the five-member board and by congressional power of the purse. The current relationship between the NLRB and Congress is at an all-time low, in part as a result of the general hostility among the Republicans in Congress to federal agencies with a public-interest mission. But there is a particular hostility toward the NLRB’s enforcement of rights to unionize and bargain collectively, which can shift power from employers to employees. This hostility helps explain the failure to pass labor-law reform such as the Employee Free Choice Act of 2007 and 2009. Antiunion ideology is also behind Congress’s vitriolic attacks on the NLRB’s general counsel for issuing a complaint in 2011 against Boeing, which had moved its Dreamliner aircraft production for antiunion reasons from the West Coast to South Carolina. In September 2012, a House of Representatives committee hearing denounced the NLRB’s reconsideration of faculty and graduate student employee rights to unionize, with Representative Virginia Foxx, chair of the House Subcommittee on Higher Education and Workforce Training, decrying the NLRB’s “attempts to expand Big Labor’s influence over faculty at private institutions.”

The latest political clash concerns the Obama administration’s appointments to the NLRB. Since 2008, Senate Republicans have taken actions to keep Obama from appointing liberal board members. Through a combination of filibusters and refusals to consider the president’s nominees, the Senate has kept the NLRB in a state of instability. The most recent controversy followed President Obama’s January 2012 recess appointments of three board members—two Democrats and one Republican. These appointments brought the NLRB to five members for the first time since April 2010. Employers challenged Obama’s authority to make these appointments. In Noel Canning v. NLRB, the DC circuit court held that the recess appointments were unconstitutional because they were not made during an intersession recess. The court went further to hold that a president can make recess appointments only to fill vacancies that occurred during that intersession recess. The Supreme Court has granted the NLRB’s petition to review these holdings and to decide whether the president had the power to make recess appointments when the Senate convened every three days in pro forma sessions. A Supreme Court decision that the recess appointments were unconstitutional would invalidate all NLRB decisions during that period, as these would have been made without a quorum.

In summer 2013, with Noel Canning pending before the Supreme Court, the NLRB risked losing its quorum of three members when the appointment of the board’s chair, Mark Pearce, ended. Without Pearce, the board would have been left with only two members, Democrats Sharon Block and Richard Griffin, both holding recess appointments challenged in Noel Canning. Faced with this possibility, Obama understandably sought a political solution. In February 2013, he submitted nominations to the Senate for all five seats on the NLRB, including a reappointment of Pearce, renominations of Block and Griffin, and nominations of two management-side attorneys. Even with this proposed political compromise, Senate Republicans threatened a major battle. In response, Obama offered a resolution accepted by the Republicans, substituting the nominations of Democrats Kent Hirozawa and Nancy Schiffer for Block and Griffin. On July 30, 2013, Senate confirmation votes brought the board back to its full five members.

Weighing All the Factors

In the recent controversies, members of Congress have condemned the NLRB as overly partisan. A House committee issued a staff report in December 2012 titled President Obama’s Pro-Union Board: The NLRB’s Metamorphosis from Independent Regulator to Dysfunctional Union Advocate. While this report should be dismissed as overblown rhetoric, it is worth remembering that such attacks mischaracterize what the NLRB was created to do. An NLRB that functions honestly to interpret and enforce the NLRA is not a “neutral” institution. It is an agency that protects and enforces workers’ rights to organize into unions that advocate for their interests. In reality, the NLRB has been a moderate agency even under the most liberal administrations. The Obama board has incurred the wrath of Congress simply for adopting rules that expedite elections and that require employers to post a notice of employee rights under the NLRA. Even such moderate measures can have a meaningful impact on employees’ lives. Yet federal courts have held that the NLRB overstepped its authority in adopting these rules.

Unfortunately, the ongoing fights in Congress and the courts may create battle fatigue. The pending Supreme Court decision in Noel Canning and the confrontations in the Senate over the NLRB nominations may make the board hesitant to strike out in bold directions. Even with its current majority of former labor-side attorneys, the board may be cautious about pushing the boundaries of the law, including its interpretations of faculty rights to unionize. Recognizing this possibility can serve as a useful reminder that faculty members can organize and have organized without support from the NLRA. Academic freedom and faculty governance came about because faculty members demanded them through collective action in the early 1900s. Since that time, faculty senates and other collective forms of governance have continued to function. It is still up to faculty to envision the goals of collective action and make them a reality.


Risa L. Lieberw itz 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 a member of the AAUP’s Committee A on Academic Freedom and Tenure. Her e-mail address is [email protected].