A vote by faculty members to unionize at a small college in Montana may be a big breakthrough in efforts to organize professors at private institutions. It may also signal a shift in philosophy regarding private colleges by the National Labor Relations Board.
The voting, by professors at the University of Great Falls, took place in 1996, but the ballots were not counted until last month. The union won, 20 to 19. The labor board ruled that about 41 people were eligible to vote.
The count had been delayed while the administration challenged the faculty’s right to bargain collectively. In November, the N.L.R.B. ruled that professors at Great Falls were employees, not managers, and therefore were entitled to union representation.
The labor-board ruling is seen as significant by some observers because most efforts to unionize private-college faculty members have been stymied for 18 years, ever since the U.S. Supreme Court ruled that professors at Yeshiva University were not entitled to union representation.
In National Labor Relations Board v. Yeshiva University, the Court ruled, 5 to 4, that the professors had enough influence over university governance to be considered managerial employees, and so were not eligible to bargain under the National Labor Relations Act.
In the Great Falls case, the board’s 15-page decision affirmed an April 1996 ruling by John Nelson, director of its regional office in Seattle at the time. “I cannot conclude, on the record before me, that faculty as a whole, or even those faculty who sit on committees, are aligned with management as contemplated under Yeshiva,” he wrote.
The union’s margin of victory at Great Falls was only one vote -- and the university has contested it -- but some labor experts are paying more attention to the signal they saw from the N.L.R.B.: The board is more receptive to faculty unionization at private colleges. “If I were a union attorney, I’d be optimistic that this board is at least willing to re-examine the Yeshiva dogma,” said Joel M. Douglas, a professor of public administration at the City University of New York’s Baruch College and a former director of its National Center for the Study of Collective Bargaining in Higher Education and the Professions.
He said he was wary of reading too much into the board’s ruling, because Great Falls is a small institution. But he noted that the N.L.R.B.'s chairman, William B. Gould IV, has publicly criticized the Yeshiva decision. The board hasn’t been able to challenge it, Mr. Douglas said, because there has been a “complete paucity of cases in the pipeline.”
In a 1993 book, Agenda for Reform: The Future of Employment Relationships and the Law (M.I.T. Press), Mr. Gould wrote, “The Yeshiva decision does not bode well for reform of the workplace and the way in which workers’ functions are to be performed.”
He continued: “Most employees are not as far up the corporate ladder as the Court imagined university professors to be.”
Mr. Gould was not available for comment, but similar reasoning appeared in the N.L.R.B. regional office’s analysis of the situation at Great Falls. The ruling noted that administrators, not faculty members, made many key academic decisions.
Since the Supreme Court’s Yeshiva decision, the N.L.R.B. has been reluctant to grant new bargaining rights to professors at private colleges. In fact, the decision prompted many administrations to challenge existing faculty unions, which were stripped of their right to bargain at more than 20 institutions.
As a result, national unions shied away from trying to form new units at private institutions and, instead, focused on preserving the ones they already had at private institutions and organizing new ones at public universities.
A directory published by Baruch’s collective-bargaining center in 1995 reported that after Yeshiva, the labor board had granted bargaining rights to faculties at only three private, U.S. institutions: American University’s English Language Institute, Bradford College, and St. Thomas University. Only the professors at American subsequently voted to form a union, according to the directory.
Faculties at other private colleges have formed unions since Yeshiva, but they did so without a full-blown challenge by their administrations, and, as a result, never had to make their case before the labor board. For example, Delaware Valley College’s faculty union won certification in 1992, when the administration decided to allow unionization rather than let scheduled hearings before the labor board begin. Professors said they turned to bargaining after the governing board had ignored their recommendations on a series of hiring, promotion, and tenure decisions.
Delaware Valley is one of 18 private-college bargaining units represented by the American Association of University Professors. Of those, only three were certified after Yeshiva, and none of those had to face the labor board.
If the board’s philosophy has shifted, that may encourage more faculties at private institutions to take the gamble -- and it may persuade more national unions to cover the bet. A test case of how far the N.L.R.B. has moved may come from a case pending before its regional office in New York City. Hearings in that case, which involves Manhattan College, are to resume next week.
Nicholas Trott Long, the lawyer for the University of Great Falls, agrees that the case sends a signal, but he says it was the wrong signal. The labor board made a mistake and “gave an absolutely tortured reading of the evidence to reach the conclusion it reached,” he said, calling the decision “an attempt by the board to essentially eviscerate” Yeshiva.
Other observers and labor lawyers are skeptical of turning one case, or even two, into a trend. The only thing the Great Falls case proves, they say, is that the faculty successfully argued that it had no managerial rights, not that the labor board is more receptive to unionization at private colleges.
“The cases are very fact-driven,” explained one labor lawyer, who asked not to be identified. All that the Great Falls decision indicates, he said, “is what the N.L.R.B. thought of Great Falls.”
Perry M. Robinson, an official of the American Federation of Teachers who handles higher-education issues, agrees. Since 1980 there has been almost no rhyme or reason to the board’s application of the Yeshiva decision, he said, adding that figuring out how the N.L.R.B. will treat any particular faculty case has depended mainly on the membership of the board.
Besides, observers have noted, it was the Supreme Court, not the labor board, that made Yeshiva into law. Changing that would take more than a philosophical shift by the board. It would take a new Supreme Court case.
It’s not clear whether the Great Falls case will go that far. Last month, administrators there filed an objection with the labor board about the way it counted the union ballots. The university argued that because some of the professors who voted for the union had since left the institution, their votes should not count. Depending on how the board responds, the case could end up in federal court.
Penny Hughes-Briant, an education professor at Great Falls and a union organizer, said she was disappointed that the university’s latest move would drag out the case even more. But she and other union supporters had decided some time ago that they were in for the long haul, she said. “The primary reason we decided to unionize was because over the last few years, we have lost the ability to communicate effectively with the administration.”
She and other faculty members turned to the Montana Federation of Teachers for help after a new president had begun making widespread changes. Frederick W. Gilliard changed the institution’s name from the College of Great Falls and pushed it toward liberal arts and away from specialized training for non-traditional students, said Ronald O. Haverlandt, a sociology professor at Great Falls and another of the union organizers. Many professors supported the changes, but Dr. Haverlandt and other critics complained that the new policies had been “imposed” on the faculty.
Moreover, he said, Great Falls had already tried to be a liberal-arts institution once and had struggled financially as a result, awarding no faculty-salary increases for seven years. It was only when the institution found its niche -- serving non-traditional students -- that it regained its financial health, he said. “We had a lean structure, ready for the 21st century,” he added.
Dr. Gilliard said he knew that some professors had been upset by the changes he set in motion, but that they had not been specific about their reasons for unionizing. He said that salaries had been frozen for the current academic year, but that in each of the previous three years, professors had received raises. Noting the close vote to unionize, he said, “There’s hardly a consensus.”
The president said professors had come and gone from the institution since the ballots were cast. “It’s really a different faculty at this point, many of whom are already mentioning decertification” of the new union, he said.
If Great Falls doesn’t turn out to be a test case, some professors at Manhattan College believe that their institution will be. The faculty union and the administration there will resume hearings this month before the N.L.R.B.'s New York City regional office. A lawyer for the university, Shelley Sanders Kehl, said she could not comment on the case, and no administrators could be reached for comment last week.
But Joseph J. Fahey, a professor of religious studies at Manhattan and a leader of the union movement, said faculty members had taken up collective bargaining because they felt more and more removed from academic decision-making. He noted that five deans and the provost were among those who vote on the faculty promotion-and-tenure committee.
As a result, he argued, professors don’t even have authority over who their colleagues will be, let alone over larger management issues.
Dr. Fahey said that about two-thirds of the 160 full-time faculty had signed ballots petioning for a union election. The college refused to allow one, he said, and the case has proceeded.
He said that what the professors really want is to hold an election, not to take the case to the Supreme Court. But if it goes that far, he said, the Great Falls decision bodes well for him and his colleagues. “We could be the test case that breaks the back of Yeshiva.”
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