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Shared Governance and the NLRB’s New Rules on Faculty Unions

Shared Governance and the NLRB’s New Rules on Faculty Unions

Steven C. Bahls is the president of Augustana College in Rock Island, Illinois. He has written extensively about shared governance in higher education. His writings having been published in numerous scholarly law journals, as well as in Trusteeship, the Huffington Post, Inside Higher Ed, and the Chronicle of Higher Education. Read his previous guest post on the AGB Blog here and here.

The National Labor Relations Board (NLRB), in the recent case of Pacific Lutheran University (Case Number: 19-RC-102521), made it easier for faculty to unionize at private colleges and universities. At issue was whether institutions with religious affiliations were exempt from unionization and whether faculty could be considered as management, making them exempt from unionization. The PLU decision made it more difficult to claim either exemption.

Lawrence White provides an excellent analysis of the case in Trusteeship, in an article entitled “Can Faculty at Private Institutions Unionize?

Though the PLU case could very well be modified by federal courts, for the time being, the decision defines how the NLRB will act.

In a recent conversation, a colleague suggested that the PLU case should remind boards of the importance of shared governance. Perhaps. But a more nuanced set of takeaways is helpful:

  1. Avoiding a union is not the best reason to share governance. Sharing governance is best justified because it strengthens the quality of governance. It does so by helping create a “marketplace of ideas” to ensure better-informed decisions. When faculty, administrations, and boards are involved in the decision-making process, decisions are implemented faster and more effectively.

    Those institutions that suddenly agree to share governance to avoid faculty unions risk trivializing the real benefits of shared governance. When these institutions commit to shared governance for the wrong reason, it is less likely that they will be able to sustain the hard and sometimes frustrating work of truly sharing governance in a way that leads to better outcomes. And will these institutions sustain their commitment if the PLU case is modified by federal courts?
     
  2. Sharing governance with faculty does not ensure that faculty will be considered part of management, exempting them from the ability to create a union. The PLU case stated that the most important factors in determining whether faculty are management is whether they exercise managerial authority with respect to curriculum, enrollment management, and finances. In many cases, under systems of shared governance, faculties do exercise managerial authority in curriculum, but less authority in enrollment management and budgeting. Institutions that truly share governance in these areas should document how they do so meaningfully if their intent is to qualify for the management exception.
     
  3. Institutions with and without collective bargaining agreements have many more similarities than differences when it comes to shared governance. Collective bargaining agreements, generally speaking, govern terms and conditions of employment, while shared governance addresses how all governance decisions are made. Terms and conditions of employment for faculty are a subset of a much larger universe of decisions benefitting from shared governance. Most collective bargaining agreements specifically recognize the power and role of a faculty senate as an important part of the shared governance process.
Boards should commit to shared governance, not because of the PLU case, but because shared governance, effectively done, helps the institution more efficiently and sustainably fulfill its mission.

For more on shared governance, consider Steve Bahls' publication, Shared Governance in Times of Change.

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