The American Association of University Professors has joined other advocates of academic labor in urging the National Labor Relations Board to abandon the assumption that faculty members at private colleges have too much influence on the management of their institutions to join unions.
In briefs submitted to the NLRB last week in a case involving the attempted unionization of adjunct instructors at Pacific Lutheran University, in Tacoma, Wash., the AAUP and AFL-CIO both argue that changes in the higher-education landscape over recent decades have left most colleges’ faculties with little say over their institutions’ affairs.
The AAUP’s brief urges the NLRB, in deciding whether faculty members at a college are managerial employees, to consider factors such as the extent to which the college’s administration is hierarchical, how much the administration consults with the faculty, how much weight the administration gives faculty recommendations, whether the administration and faculty appear to have conflicting interests and loyalties, and the extent to which the administration makes academic decisions based on market-based considerations or a desire to generate revenue.
On the other side of the issue, the American Council on Education has been joined by other associations that represent college administrations in challenging the idea that faculty power has eroded significantly since the U.S. Supreme Court weighed in on the unionization of private-college faculty members in a landmark 1980 decision, National Labor Relations Board v. Yeshiva University (444 U.S. 672). That ruling has stifled efforts to unionize the faculties of private colleges because it held that faculty members with substantial roles in the management of their institution were ineligible for the collective-bargaining rights available to other college employees.
Questioning the Board’s Reach
The council’s brief criticizes the NLRB for even raising questions related to the management power of faculty members. It notes that the board raised many of the same questions in 2012 in another case still pending before it, involving the unionization of faculty members at Point Park University, in Pittsburgh. In both the Pacific Lutheran and Point Park cases, the council’s brief argues, the federal labor board is “improperly reaching outside” the issues presented by the case records to consider a range of questions related to the board’s application of Yeshiva.
Many of the briefs submitted to the NLRB in the Pacific Lutheran case and posted online as of Friday, the deadline for their submission, echo the briefs submitted in connection with the Point Park case. Any NLRB decision significantly expanding how the board defines its authority over private colleges almost certainly will be challenged in federal courts.
Pacific Lutheran has cited Yeshiva to try to block the unionization of its non-tenure-track instructors, arguing that the full-time contingent instructors who would be included in the proposed union election are managerial employees with full voting rights in the university’s Faculty Assembly. It is asking the NLRB to overturn a regional director’s holding that Pacific Lutheran’s full-time contingent faculty members do not possess enough managerial authority there to be precluded from unionizing under Yeshiva.
Service Employees International Union Local 925, which is attempting to unionize contingent faculty members at Pacific Lutheran as part of a broader SEIU campaign to organize adjunct faculty members throughout entire metropolitan areas, argues in its brief that the labor board’s regional director was correct in finding that contingent faculty members there lacked managerial status. Its brief argues that Pacific Lutheran “maintains a clear institutional divide between contingent and regular faculty” and that its contingent faculty members “do not exercise effective control or authority over academic or nonacademic matters.”
Although full-time contingent faculty members are allowed to vote in Pacific Lutheran’s Faculty Assembly, they account for only a small fraction of its active members and are not allowed to vote on any personnel-related matters or to serve on standing faculty committees.
Debate Over Shared Governance
The AAUP brief questions whether any faculty members at any private college can be presumed to have much say in their institution’s affairs. It argues that several trends in higher education since the Yeshiva ruling, including the rapid expansion of university administrations and the share of faculty members who lack tenure, have weakened shared governance and “led to established patterns of administrators’ unilateral actions on academic and nonacademic matters.”
“Administrators have made it increasingly clear that they will consult with faculty when they please, fail to consult with faculty when they please, accept or reject faculty input and recommendations when they please, and even dissolve faculty-governance bodies when they please,” the AAUP brief says.
The brief from the American Council on Education and other associations of college administrators rejects such a bleak assessment of faculty power. It argues that under Yeshiva what matters is that faculty members get to make recommendations, and “it is irrelevant whether the faculty’s decisions are potentially subject to veto by administrators or the trustees or whether in exceptional circumstances the faculty’s input was rejected or ignored.”
“Shared governance is still the general rule at institutions today,” says the council’s brief, which also was signed by the Association of American Universities, the Association of Governing Boards of Universities and Colleges, the College and University Professional Association for Human Resources, the Council of Independent Colleges, the Independent Colleges of Washington, and the National Association of Independent Colleges and Universities.
Much of the back and forth in the briefs submitted in connection with the Pacific Lutheran case focus on a First Amendment question at issue in three other cases pending before the NLRB: whether the college is religious enough in nature that its religious freedom would be infringed by the federal labor board’s oversight that faculty unionization would bring. Pacific Lutheran introduces a new layer to the long-running debate because the institutions in the other three cases—Duquesne University, in Pittsburgh; Manhattan College, in New York; and Saint Xavier University, in Illinois—are all Roman Catholic.
Like the other colleges opposing faculty-unionization efforts on religious-freedom grounds, Pacific Lutheran argues that the NLRB should exempt from its jurisdiction any religiously affiliated college that is nonprofit and holds itself up as providing a religious educational environment.
The regional NLRB director’s decision to examine how religious Pacific Lutheran is, and his conclusion that it is not of “substantial religious character,” represented both an inappropriate federal intrusion into the college’s affairs and a misunderstanding of Lutheran education, the university’s brief argues. “The task of a Lutheran University,” it says, “is to provide the best possible education, not an education with a cross on it.”
