Why College Presidents Don’t Fear the NLRB

February 05, 2015

Three recent decisions by the National Labor Relations Board challenge lawmaking from the bench that has been hostile to faculty organizing at private universities ever since the decision in NLRB v. Yeshiva University, in 1980, established most tenure-track faculty members as part of "management."

The NLRB has required employers to permit the use of work email for union organizing and to provide organizers with email addresses and phone numbers for all employees; sharply restricted the litigation available to employers for delaying elections; and, in a December decision involving Pacific Lutheran University, created tough new tests for university employers wishing to claim that faculty members are either managers or religious functionaries exempt from NLRB oversight.

Great news, right? Here’s why I’m not celebrating just yet.

All NLRB cases involving private universities can be appealed by employers, at which point the cases move to the U.S. Court of Appeals for the District of Columbia Circuit. Essentially, for the past 15 years, the D.C. Circuit’s chief judge, David B. Sentelle (recently retired), and Judge Thomas B. Griffith, a former chief counsel at Brigham Young University, waged a virtual war on academic labor. In key cases, they refused to enforce NLRB decisions and substituted their own rulings for the judgment of the board.

In a 2002 decision, University of Great Falls v. NLRB, Sentelle forced the NLRB to give up its reasonable and lawful original test for colleges seeking a religious exemption from board oversight. In preceding years, the board had developed an explicit doctrine that religiously affiliated colleges were not automatically entitled to exemption from accountability under the National Labor Relations Act, but had to demonstrate a "substantial religious character" to be exempt. The 2002 decision caused ecumenical and largely secular institutions across the country to scramble to bolster their overt religiosity, initiatives that few parents or faculty members realized were driven not by spirituality but by managerial calculation.

Sentelle’s ruling substituted for the NLRB’s rigorous challenge a flimsy "test" that required the board to accept a religious employer’s self-characterization at face value. Essentially, any college requesting the exemption could have it. In 2009, Griffith confirmed the Great Falls decision, overturning the NLRB’s effort to exert its authority and consider individual cases on their merits.

Merrick B. Garland replaced Sentelle as chief justice in 2013, but both judges remain on the court (the latter as a part-time, semi-retired senior judge). It remains to be seen whether Sentelle’s home court will undo one of his more arbitrary legacies while he remains on the bench.

Earlier waves of tenure-track-faculty organizing had followed on the examples of militant sanitation workers, federal employees, and schoolteachers. In the 1970s, when they were still a majority among faculty members, quite a few tenured professors organized unions, albeit later and with a lot less enthusiasm than, say, schoolteachers. Even today, in right-to-work states across the country, state and municipal employees, including teachers, maintain powerful associations with substantial impact on their working conditions and salaries. There’s no reason that higher-education faculty members couldn’t do the same—except for their own disinclination to militance and their reluctance to do the hard work of organizing.

Over the past four decades, nearly all tenured faculty members, including those who are unionized, have maintained their own privileges and income by trading away those of others. As a result, they have shrunk into inconsequence. On many campuses, tenured faculty members no longer supply enough teaching to disrupt campus operations by their absence. That reflects the redefinition of tenure by our most privileged professors: Once it referred to a package of responsibilities and privileges uniting all career faculty members, including those whose focus was teaching. Now we have allowed tenure’s significance to erode into a set of special privileges for a minority, as if only those with research-intensive appointments deserve its protections.

Movements make law, not the other way around. Is there any likelihood that minor changes in law will spur solidarity within a group of people who almost universally treat tenure as a badge of distinction, rather than the ordinary condition uniting a profession? I don’t think so.

The consensus of labor scholars studying the sort of labor-hostile law that we see in the United States is that enabling law certainly matters, but not nearly so much as a commitment to a movement. If faculty members genuinely wanted to run our workplaces collectively, we’d make common cause with enough other employees to make it happen. Instead, the most privileged among us prefer to spend our time enjoying our privilege rather than doing the grubby work of governance. We would rather be academic-labor aristocrats with first dibs on the paper clips than democratically allied with fellow faculty members.

It is almost certainly the case for most of us with tenure that not only do we have the administrations we deserve, but we have the administrations that, more or less, we actually prefer. The law is certainly bad, and recent American labor history quite grim. But in my view, most of us hide passivity and reluctance to act behind willful misunderstanding of that law and history.

The Yeshiva decision isn’t as dumb as it used to be. When U.S. Supreme Court Justice John Paul Stevens provided the vote that saddled us with Yeshiva, it was laughable to claim, as did the 5-to-4 majority, that tenured faculty members were management and therefore exempt from the protections of the NLRA. It was particularly absurd since the ruling applied only to private colleges, while scores of major public universities were already unionized and remain so.

Today, though, it’s not as ridiculous to call tenure a lower-management tier. At most institutions, tenured faculty members hire, supervise, and fire the majority faculty—comprising those with the teaching-intensive appointments whom we’ve allowed to be cast out of the tenure stream—as well as graduate-student and staff labor.

The main academic administrative positions—chairs, academic deans, provosts—are still generally filled by tenured faculty members. It’s at least a reasonable courtroom claim to say that the modest ranks of tenured professors today often serve as direct supervisors and as the talent pool for academic management.

Marc Bousquet is an associate professor of English at Emory University.