House Republicans Denounce Federal Labor Board's Actions as Threatening Colleges

Rep. Virginia Foxx of North Carolina, chair of one of the two subcommittees that held the hearing, said the NLRB was seeking to expand its authority over private colleges in ways that will "make it more difficult for colleges to offer a quality education at an affordable price."
September 12, 2012

The National Labor Relations Board appeared to undergo trial in absentia before Congress on Wednesday, as Republican members of the House of Representatives held a hearing to accuse the board of encouraging the unionization of private-college employees in ways that threaten college affordability and academic freedom.

Throughout the highly polarized proceedings, members of the Republican majority assailed several of the labor board's recent actions dealing with private colleges as part of a campaign to give unions more control over such institutions. Democratic House members accused their Republican counterparts of fretting over nonexistent problems, arguing that the witnesses on hand had not produced any evidence to back allegations that a board dominated by President Barack Obama's appointees was making decisions that would erode academic freedom or cause tuition to climb.

Rep. Robert E. Andrews, a Democrat from New Jersey, protested that many of the questions being asked at the hearing were "premature" because the board has not yet rendered decisions related to many of the matters being discussed. Considering the many other problems the nation faces, he said, "the choice of agenda that the majority continues to pursue is not only diversionary but counterproductive."

The National Labor Relations Board itself was not represented at the hearing, which was jointly held by Committee on Education and the Workforce's Subcommittee on Higher Education and Workforce Training and Subcommittee on Health, Employment, Labor, and Pensions, which oversees the NLRB. Nancy Cleeland, a spokeswoman for the board, declined to comment on the proceedings.

What, if anything, will come from the hearing remains unclear. Alexandra H. Sollberger, a spokeswoman for the House education committee, said in an e-mail that Congress is not considering any legislation dealing with NLRB oversight of unionization at private colleges. (Public colleges' unions are governed by state law.) Ms. Sollberger added, however, that the committee "will certainly be watching these issues closely" to decide if "future oversight efforts or legislative activity is necessary."

But Wednesday's hearing at least made abundantly clear how leading House Republicans feel about several of the NLRB's recent actions: its refusals to grant three religious colleges exemption from its oversight; its decision to reconsider a 2004 ruling denying graduate assistants at private colleges the right to unionize; and its decision to rethink its standards for determining which faculty members at private colleges are employees who can collectively bargain or managers ineligible for union representation.

In beginning the proceedings, Rep. Phil Roe, a Republican from Tennessee and chairman of the labor subcommittee, characterized the NLRB as "utterly determined to advance a culture of union favoritism" and "now exploring actions that could bring significant changes to private higher-education institutions." So many private colleges involve faculty members in their shared governance, he said, an NLRB decision to reclassify many such faculty members as employees "could upset how a vast majority of institutions are managed across the country."

Rep. Virginia Foxx, a Republican from North Carolina and chairwoman of the higher-education subcommittee, accused the current NLRB as having "a reputation for advancing expensive, job destroying changes to federal labor policies that undermine the rights of workers and employers," and of seeking to expand its authority over private colleges in ways that will "make it more difficult for colleges to offer a quality education at an affordable price."

"Should the NLRB succeed in its attempts to expand Big Labor's influence over faculty at private institutions," Representative Foxx predicted, the result will be "a proliferation of union contracts" that would seriously limit private colleges' flexibility, "potentially putting union bosses in charge of everything from how professors are evaluated for tenure to the subject matter and number of courses each faculty member may teach."

Warnings From Witnesses

Among the four witnesses who testified was only one labor advocate: Christian Sweeney, deputy director of the AFL-CIO's organizing department. He argued that he has been successful in his efforts to organize college employees, prevailing in 11 out of 12 attempts to get such workers to vote to unionize over the past 14 years, because "thousands of workers in higher education have very real workplace concerns that they want to address through the democratic process of collective bargaining."

"The notion that the NLRB or 'Big Labor' is somehow pushing its way into academia is misguided," Mr. Sweeny said. "In fact, the opposite is true. Workers in academia are reaching out to unions in large numbers."

On the other side of the issue, House members heard from Walter C. Hunter, who represents colleges in labor negations as co-chairman of the higher-education practice group of the Littler Mendelson law firm; Michael P. Moreland, vice dean of the law school at Villanova University, which is Roman Catholic; and Peter M. Weber, a professor of chemistry and dean of the graduate school at Brown University, the focus of the board's 2004 decision denying collective-bargaining rights to graduate assistants at private colleges.

Mr. Weber, the first to testify, said he was "quite certain" that an NLRB decision to reverse itself and define Brown's graduate assistants as employees "would damage the fabric of graduate education" there and at other private colleges, damaging the relationships between faculty members and their students. One likely outcome, he said, would be collective bargaining about the academic curriculum, which "would wreak havoc with academic freedom."

He asked: "Are we to bargain about course selection? Course content? Course length? The number of exams or papers in a course? The year in which the student serves as an assistant?"

Brown, he said, has an alternative to using graduate assistants: hiring fully-trained adjunct faculty members, with doctorates, to teach courses "for a fraction of the cost of our graduate-student financial-aid program." But, he said, such an approach would not meet the university's goal of providing Ph.D. candidates "the opportunity to learning the art of teaching."

Representative Roe accused the NLRB of reconsidering its Brown decision "without any new facts or compelling reason," and of "contemplating whether to abandon policies that have helped advance the learning experience of graduate students nationwide."

Rep. Todd Rokita, a Republican from Indiana, expressed faith that the free market will keep graduate workers at any given college from being treated poorly, because such students will be recruited away by colleges that offer them better treatment.

Mr. Moreland, of the Villanova law school, denounced the NLRB's recent decisions to deny religious exemptions from its oversight to three other Roman Catholic institutions: Duquesne University, in Pennsylvania; Manhattan College, in New York; and Saint Xavier University, in Illinois.

He argued that the NLRB is erring in investigating whether such colleges are of a substantially religious character and in making a case for concluding they are not if they provide substantial amounts of nonreligious instruction or educate large numbers of students of other faiths. Instead, he said, the NLRB should be abiding by federal court precedents that suggest private colleges should be exempt from its oversight if they hold themselves out as religious, are organized as nonprofits, and are connected to religious organizations.

"It is ironic that the 200-plus Catholic colleges and universities in the United States—which have had a mission for generations of teaching not merely Catholic theology but also business, science, literature, medicine, and law—are now threatened with being put under the thumb of NLRB oversight for it," Mr. Moreland said. "It is ironic that Catholic universities' embrace of academic freedom now gives cause to the board to conclude that they are not 'really' religious institutions."

Representative Roe called NLRB's test of whether a college is religious "invasive." Of all the NLRB actions that bother him, he said, "perhaps most disturbing is the NLRB's growing challenge to religious freedom."

Rep. Tim Walberg, a Republican from Michigan, protested that the decision of whether a college is religious should not be left to "an outside, arbitrary board."

Bowing Under Pressure?

Mr. Hunter, the lawyer who represents colleges in labor negotiations, described other areas where he sees the NLRB as intruding on private colleges' affairs. Among them, he said, the NLRB's efforts to allow union elections to take place on a faster time schedule result in "ambush elections," which deprive colleges of the right to articulate their positions and employees of their right to be fully informed. The board's efforts to block employers from controlling employees' use of social media threatens colleges' efforts to deal with social media-based threats to safety or the learning environment. And, he said, NLRB decisions to allow the establishment of "micro unions" representing only small shares of colleges' workers "could raise costs of administration, decrease efficiency, reduce effectiveness, and result in an unfair and inconsistent treatment of employees."

Several Democrats on hand for the hearing repeatedly challenged the premises underlying the hearing and the witnesses critical of the labor board. Among them, Rep. George Miller, a Democrat from California, argued that the assumption private colleges would deteriorate if their employees used unions to assert more control over the institutions was based on the false assumption that "all of the wisdom resides on the employer side" of the bargaining table.

Rep. Rush Holt, a Democrat from New Jersey, produced a graph that, he said, shows that tuition figures at colleges with unionized graduate assistants and researchers "are all over the map" and that whether graduate assistants are organized appears to have no bearing on tuition costs.

Representative Andrews, a ranking member on the labor subcommittee, repeatedly pressed the witnesses to offer any evidence that the unionization of private colleges' faculty members or graduate assistants threatens academic freedom, and seemed to give little weight to Mr. Weber's proffer of an e-mail from a Brown faculty member asserting that unionization hurts faculty-student relations. Arguing that the subcommittees should be tending to more pressing matters, such as the nation's budget crisis, he said, "This is a classic case of Nero fiddling while Rome burns."

"We are not fiddling while Rome burns," Ms. Foxx replied. "We are only looking at the issues."