In 1980, the U.S. Supreme Court effectively ended faculty collective bargaining at private colleges and universities by ruling in National Labor Relations Board v. Yeshiva University that faculty members are part of “management” and therefore ineligible to be represented by labor unions.
To put the decision in context: Public and private institutions are covered by different labor laws. The National Labor Relations Act governs the relationship between private-sector employers and employees and is enforced by the National Labor Relations Board (NLRB) in Washington, D.C. Jurisdiction over public-sector employees is typically vested in publicemployment- relations boards under laws enacted by state legislatures. In most states, faculty at public institutions are allowed to negotiate collectively. The National Labor Relations Act and Yeshiva apply only to private employers—for our purposes, private colleges and universities.
In more than 20 cases decided between 1980 and the end of last year, the NLRB applied Yeshiva and ruled against faculty members at private institutions who wanted to be represented by labor unions. But recently, in a startling decision titled Pacific Lutheran University and Service Employees International Union, Local 925, the NLRB did an abrupt about-face on Yeshiva and concluded that faculty members “simply do not, and in fact cannot, control or effectively control relevant decision-making” at their institutions, meaning that they are not managerial employees and are therefore entitled to unionize. The decision is both practically and conceptually significant and worth a careful read.
The decision is significant in practical terms because it substantially liberalizes the standard for permitting faculty collective bargaining. Under the revised test, the NLRB will look at faculty participation in five discrete areas of institutional governance to determine whether faculty members exercise managerial powers that make them ineligible for collective bargaining. Three areas—curriculum, enrollment management, and finances—are given “greater weight” than the other two. The two areas of lesser significance are academic policy in areas such as grading, syllabus and course content, and research; and faculty hiring, promotion, and tenure—areas, ironically, in which faculty are traditionally accorded much greater managerial deference.
It is a wholly unexpected typology. At most private colleges and universities, the faculty exercises its broadest decision-making authority in realms the NLRB now deems to be of secondary importance. Faculty rarely if ever exercise authority over enrollment management or institutional finances, and yet those areas will now be given “greater weight” when the NLRB determines whether faculty exercise “actual—rather than mere paper—authority.” Pacific Lutheran thus makes it easier for faculty members to prove that they are not managers and therefore entitled to engage in collective bargaining.
On the conceptual level, Pacific Lutheran radically challenges assumptions about shared governance that have dominated legal thinking for more than a generation. “Over the 30-plus years since Yeshiva was decided,” says the NLRB, “the university model of delivering higher education has evolved considerably. … [C]olleges and universities are increasingly run by administrators, which has the effect of concentrating and centering authority away from the faculty.” That passage, which may seem to many higher education administrators an acknowledgment of humdrum truth, may prove controversial in faculty circles. Although faculty union proponents prevailed at the NLRB, faculty members who support traditional principles of shared governance may view Pacific Lutheran as a pyrrhic victory built on a model that departs from those principles.
The NLRB’s decision in Pacific Lutheran is one of the most provocative higher education decisions to come from the NLRB in many decades. It will trigger lively debate at many private institutions about the appropriate faculty role in institutional governance. It will also enliven discussion about the benefits and drawbacks of collective bargaining for faculty after more than a third of a century during which Yeshiva effectively prohibited union campaigns for faculty at private institutions.