Collective Bargaining and the Professoriate: What the Law Says
Malamud, Deborah C., Academe
AS COLLEGE AND UNIVERSITY PROFESSORS, WHO ARE we? What do we have in common with each other, what makes us different from those who earn their living in other ways, and where do we fit in the social hierarchythat implicit ordering that some call "social class" and others, "social status"?
In the United States, these questions are not entirely personal or social; they are also legal. The law often draws lines between groups of people in setting out the eligibility rules for public rights and programs. In so doing, the government commonly uses criteria, such as occupational groupings or income levels, that are salient to Americans' conception of social class. When eligibility lines parallel class lines, the legal system becomes a locus for debates over class.l In areas ranging from First Amendment law to the law of collective bargaining, professors have taken a public stand on the nature and status of professorial work. For some purposes, professors present themselves as having little in common with ordinary workers. In the First Amendment sphere, for example, professors have invoked the ideal of academic freedom to gain protections for their speech and beliefs that are the envy of other workers. But for other purposes, professors have downplayed some of the unique features of academic life in order to safeguard their legal rights.
That effort failed when it came to collective bargaining rights in the private sector. In 1980 the U.S. Supreme Court held in National Labor Relations Board v. Yeshiva University that the degree of control that Yeshiva's full-time faculty exercised over academic matters made them "managerial" employees and excluded them from all rights under the federal law of collective bargaining.2 That decision has been widely followed: post- Yeshiva, the typical college or university faculty at a private institution has been held to have managerial powers.
Why did the Court classify professors as managers-which is hardly how they see themselves? Did the Court do something unusual in restricting professors' bargaining rights in this way? Or were professors merely the unlucky vanguard of what has become a more sweeping judicial restriction of collective bargaining rights? 3
Supervisors, Professionals, and Managers
WITH FEW EXCEPTIONS, COLLECTIVE BARGAINING FOR private-sector employees is governed by the National Labor Relations Act (NLRA), a statute enacted in 1935 and amended in important ways in 1947. (State, county, and municipal employees are covered by state law rather than the NLRA.) Section 7 of the NLRA gives employees two vital workplace rights: the right to form and join labor unions for the purpose of collective bargaining and the right to engage in other concerted activity for mutual aid and protection. To have these rights under the NLRA, one must be an "employee." The 1935 statutory definition was broad-within covered industries, no group of employees was excluded.
But in America, statutes do not always mean what their plain language says. The president of the company is an "employee"-he receives a salary and can be fired by the board of directors. Did Congress in 1935 really mean to say that the president of the company could join a union and bargain with the board of directors? If not, then the word employee must carry with it, at least in this context, a more complex meaning than meets the untutored eye.
The use of employee in the collective bargaining context could be said to imply that employees negotiate against some other group of people who are not employees-call them "management." Indeed, members of Congress were especially concerned that the boundaries between "labor" and "management" be respected under the statute. A system of labor relations could be designed in several ways to deal with this problem of boundary maintenance. The law could simply deny certain upper-level employees the right to bargain, and in so doing, legally declare that these employees must align themselves with the interests of their superiors in company management. …