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Unionization at Private Colleges and Universities
By Leo Welch

Can faculty members at private colleges and universities form and belong to a union? The answer, based on the 1980 U.S. Supreme Court decision ruling in a National Relations Board v. Yeshiva University case, was no! The ruling stated that faculty were considered "management" and therefore not eligible to be members of a collective bargaining unit. That decision not only ended union organizing campaigns, but also resulted in desertification of most faculty unions at private institutions.

Since that decision in 1980 the National Labor Relations Board (NLRB) in Washington, D.C. has ruled against over 20 union organizing attempts in the private sector.

The winds have now changed since a December 20, 2014 ruling by the NLRB rejected claims of Pacific Lutheran University, in Washington, that its full-time, non-tenure track faculty are managerial employees and therefore are not eligible to form a collective bargaining unit. The Pacific Lutheran University administration cited the NLRB v. Yeshiva University decision that essentially ruled out faculty unions at private colleges and universities based on their role as manager.

The NLRB looked at five areas of shared governance or managerial role of the faculty. They were:

  • Curriculum
  • Enrollment management
  • Finance
  • Academic policy
  • Faculty hiring, promotion and tenure
The NLRB gave "greater weight" to the first three and gave "lesser weight" to the last two.

The NLRB decision was based on the fact that faculty rarely or never exercise any real authority over enrollment management or institutional budgets or finances. The institution must provide evidence that faculty have real decision making authority rather some mention in a document such as a faculty handbook.

The two areas of lesser significance included in academic policy are grading, the syllabus, course content, and scholarship. Faculty also have the ability to make recommendations on faculty appointments, promotion and tenure. The final authority, however, usually rests with the president and or the board. The NLRB decision stated that "over the 30-plus years since Yeshiva was decided the university model of delivering higher education has evolved considerably. Colleges and universities are increasingly run by administrators, which has the effect of concentrating and centering authority away from faculty". This is not news to most faculty who view their slice of the shared governance pie continuing to be diminished.

The second major claim by Pacific Lutheran was the reference to NLRB v. Catholic Bishop of Chicago (1979), in which the unionization of lay teachers in a Catholic high school was prohibited because it could infringe on religious freedom. The NLRB ruling stated that "Faculty members who are not expected to perform a specific role in creating or maintaining the school's religious educational environment are indistinguishable from faculty at colleges and universities which do not identify themselves as religious institutions and which are indisputably subject to the board's jurisdiction." Additional statements from the NLRB rejected Pacific Lutheran's religious freedom argument. The bottom line was that there was no right to block collective bargaining based on religious grounds.

The religious argument has been to put forward by three other Catholic institutions, Manhattan College, St. Xavier College, IL and Duquesne University. Recent decisions by the NLRB have remanded these cases back to regional NLRB offices to compare the religious freedom argument to Pacific Lutheran University and the NLRB v. Catholic Bishop. All three cases involve collective bargaining rights for adjunct faculty.

Apparently, religious institutions want it both ways. St. Louis University, a Catholic university, claims it was not a religious institution when it wanted to build a new basketball arena, and succeeding in getting taxpayer money to help fund the project. I wonder what the claim would be if faculty wanted to unionize?

Another example was when I was contacted by a staff member for Notre Dame who complained about salary and working conditions and wanted to unionize. I called an organizer who stated, "The Pope supports unions in the Philippines but not in the South Bend." End of story.