Improving the Legal Landscape FOR UNIONIZATION AT PRIVATE COLLEGES AND UNIVERSITIES

By Lieberwitz, Risa L. | Academe, November/December 2015 | Go to article overview

Improving the Legal Landscape FOR UNIONIZATION AT PRIVATE COLLEGES AND UNIVERSITIES


Lieberwitz, Risa L., Academe


University and college faculty have a long history of acting collectively. Countering the stereotype of the individual researcher in the lab, the centennial of the AAUp reminds us of the organizational origins of faculty rights of academic freedom and shared governance. Throughout these one hundred years, faculty have organized and acted collectively to protect these rights through faculty senates, college and university committees, AAUp advocacy chapters, and unionization and collective bargaining.

Following the Us supreme Court's 1980 decision in NLRB v. Yeshiva University, new unionization was all but halted in four-year private colleges and universities. The Court held that faculty members' autonomy in carrying out their work makes them managerial employees, who are excluded from rights to unionize and bargain collectively under the National labor Relations Act (NlRA). In particular, the Court focused on collective autonomy exercised by tenure-track and tenured faculty over decisions involving the curriculum, teaching methods, grading policies, and student admissions. The Court relied to a lesser extent on the faculty role in appointment, tenure, and promotion decisions. Reasoning that the only way employees could possess such autonomy would be through authority delegated by their employer, the Court concluded that the university administration would condition such delegated authority on the faculty's aligning with management's interests.

Yeshiva, of course, was wrongly decided. As the dissenting justices recognized, faculty participation and autonomy in academic matters is part of academic freedom, not an expression of alignment with the university administration. The negative impact of Yeshiva has been widespread, creating almost insurmountable obstacles to unionization at private institutions, even as public university faculty gained rights to unionize and bargain collectively under state laws. With the growth of public-sector unionization, faculty and other public employees now face their own challenges in fighting legislation and litigation designed to weaken collective bargaining, but a recent decision by the National labor Relations Board (NlRB) has created greater possibilities for faculty unionization at private institutions.

PAciFic LutHeRAN DeCision

In December 2014, in Pacific Lutheran University, the NlRB modified the standards used to determine two important issues related to faculty rights to unionize in private colleges and universities. First, it created a new Although it cannot refuse to follow the supreme Court's decision, the board can reinterpret the legal standards used to apply the decision. The board explained the need for the new standard, specifically highlighting, as the AAUp had in our amicus brief, the increasing corporatization of the university. The NlRB recognized that since 1980, the growing ranks of administrators have increasingly imposed a business model on the university: "Indeed our experience applying Yeshiva has generally shown that colleges and universities are increasingly run by administrators, which has the effect of concentrating and centering authority away from the faculty."

Under the NlRB's new standard, a college or university claiming that faculty are managerial cannot rely on "paper authority" or make "conclusory assertions that decisions or recommendations are generally followed." The administration must prove that faculty exercise "actual authority" or that faculty "recommendations must almost always be followed by the administration" or "routinely become operative test for determining NlRA coverage of religiously affiliated institutions. The board stated that it would not assert jurisdiction over an institution that "holds itself out as providing a religious educational environment" and that "holds out the petitioned-for faculty members as performing a specific role in creating or maintaining the school's religious educational environment. …

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