Attempts to unionize professors at private colleges -- already made difficult by a two-decade-old U.S. Supreme Court decision -- suffered two legal blows in February.
In one case, Elizabeth Kinney, a regional director of the National Labor Relations Board in Chicago, ruled against professors at the University of St. Francis who had sought to form a union. Using the Supreme Court precedent established in a 1980 case involving Yeshiva University, Ms. Kinney found that the professors at St. Francis, a Roman Catholic institution in Joliet, Ill., were managers, and were therefore exempt from federal labor law.
In two recent cases at private colleges, faculty members were able to convince labor-board officials that they were different from the professors at Yeshiva and were insufficiently involved in setting policy to be considered managers. The St. Francis professors, who had affiliated with the University Professionals of Illinois, made that same argument, but Ms. Kinney rejected it.
Jon Nadler, a field director for the union, said the faculty members would appeal the decision. “They don’t have that degree of control,” he said of the professors. “The governance structure in place is not really functional. It’s like a democracy where one person, the president, has all the votes, plus one.”
In the other setback to unionization efforts at private colleges, a federal appeals court in Washington, D.C., ruled against the NLRB in a separate case involving the University of Great Falls, a Roman Catholic institution in Montana. The labor board, in a decision heralded by union leaders, had previously ruled that professors there did not meet the Yeshiva test, were not managers, and could unionize. The university asked the appeals court to review the case.
Religious Status
In its unanimous ruling, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit never even considered the question of whether the professors were managers. In the opinion, written by Judge David B. Sentelle, the court concluded that the university was a religious institution and that the labor board therefore lacked jurisdiction over it under the National Labor Relations Act. The appeals court said that the labor board should not, as it has done in the Great Falls case and others, “troll through the beliefs” of an institution to determine whether the college is “sufficiently religious.”
Instead, the board should ask three simple questions about the college: Does it hold itself out to the public as a religious institution? Is it nonprofit? And is it religiously affiliated?
The three-prong test, based on a related case, was suggested by Gene C. Schaerr, a Washington lawyer who filed a friend-of-the-court brief on behalf of a coalition of religious colleges. He called the case important for all religiously affiliated institutions, and said it “makes clear that the vast majority of them would be exempt from the law.”
“In the past, the board would undertake a crucifix-by-crucifix analysis of their religiosity to decide if it was religious enough to warrant an exemption,” said Mr. Schaerr.
David J. Strom, a lawyer for the American Federation of Teachers, the national affiliate of the Great Falls faculty union, said the decision could affect many institutions, although the labor board has not yet decided whether to appeal the ruling. “Anyone thinking about an organizing effort at a religious institution has to review this decision with care,” he said.
While these rulings hamper faculty unionization efforts at private colleges, the movement to organize teaching assistants at private institutions gained more momentum in February when an NLRB regional director ruled that Columbia University’s teaching and research assistants can form a union. An election is being planned for March, but Columbia has not yet decided whether it will appeal the decision.
The 52-page decision by Celeste J. Mattina, a regional director for the labor board in New York City, relied heavily on the precedent set in the New York University case. The one blow to the union there was that Ms. Mattina expanded the bargaining unit to include teaching and research assistants at the Health Sciences Campus. She also ruled that undergraduate teaching assistants would be part of the bargaining unit, a move that could affect about 80 students.
http://chronicle.com Section: The Faculty Page: A12
