The question recently posed by the National Labor Relations Board -- whether the 80 or so full-time faculty members at Point Park University have a right to unionize -- has captured the attention of the largest umbrella of unions in the United States, and of all the major faculty unions.
On Friday, the AFL-CIO and all three major faculty unions (one acting with the AFL-CIO), urged the National Labor Relations Board to let the Point Park professors unionize, and to reconsider the way a 1980 Supreme Court decision -- NLRB v. Yeshiva University – has largely blocked collective bargaining for private college faculty members.
Also on Friday, the American Council on Education and five other organizations that represent college administrations (most of them representing presidents, and one representing human resources officers) filed their own brief. In that document, they argued that the Yeshiva ruling should stand, and should continue to bar private college faculty unions. (States determine whether public college and university faculty members may unionize, with some permitting collective bargaining for faculties and others barring it.)
The Yeshiva ruling found that faculty members there were effectively managerial employees, ineligible for collective bargaining, because of their role in shared governance. Specifically, the Supreme Court cited the degree of control of faculty members over the curriculum.
The briefs focus on a range of issues. The one from the college organizations, for instance, accuses the NLRB of overstepping its authority by asking for public comment on the Yeshiva decision and its applicability. Only the Supreme Court can revise Yeshiva, the brief argues, and the NLRB cannot treat the issue as a regulatory review.
But one of the central issues on which the colleges and unions differ isn’t about collective bargaining alone. It’s about whether faculty rights at private colleges have changed in the 30-plus years since the Yeshiva ruling. And the briefs demonstrate the sharply differing ways administrators and faculty leaders view developments over governance issues in recent years.
‘No Significant Developments’
The brief filed by the American Council on Education has a section with the heading: "There have been no significant developments in private universities’ decision-making models since Yeshiva."
Since Harvard University adopted the "shared governance" model in 1826, that approach has "been utilized at most private colleges and universities," the brief says. "Shared governance is still the general rule at institutions today." While the brief notes that administrators may have more control in budget areas, it says that faculty members remain the drivers of policy in areas such as the curriculum, teaching standards, academic performance and tenure and promotion standards.
The brief cites the 2001 "Survey of Higher Education Governance" and a 2003 survey by the Center for Higher Education Policy Analysis as finding that faculty governance systems remain widely in place and are maintaining or expanding power at private colleges. Faculty members at these institutions perceive that they control curricular matters, the brief says.
In another section of the brief, the college associations warn against drawing conclusions about the state of faculty power by noting periodic instances in which faculty preferences don't carry the day. The brief notes that NLRB rulings have warned against "mechanical application" of Yeshiva, and also that there may be legitimate reasons for college administrations to make decisions in areas typically thought of as faculty-controlled.
"[T]he fact that the faculty’s authority in certain areas may be circumscribed by fiscal or other long-range policy concerns does not diminish the effective power in policymaking and implementation," the brief says.
Joining the ACE in the brief were the Association of American Universities, the Association of Independent Colleges and Universities of Pennsylvania, the College and University Professional Association for Human Resources, the Council of Independent Colleges and the National Association of Independent Colleges and Universities. (Three of those groups -- the AAU, the ACE and CUPA-HR -- have some public member institutions that have faculty unions.)
The briefs filed by the various union groups focus at length on the ways they argue that faculty power at Point Park (and at many private colleges) has changed since the Yeshiva ruling, and especially in recent years.
The brief from the National Education Association, for example, quotes from the Yeshiva ruling that faculty "authority in academic matters is absolute. They decide what courses will be offered, when they will be scheduled, and to whom they will be taught…. On occasion their views have determined the size of the student body, the tuition to be charged, the location of a school…."
The NEA brief contrasts that vision of faculty power with what the association says is the reality today.
"While both Yeshiva and [NLRB] decisions after Yeshiva have rested on a strong a view of the ‘shared governance’ university, the landscape of higher education is changing rapidly. Universities ever less frequently resemble the collegial institutions referenced in Yeshiva. As institutions of higher education have become increasingly similar to large businesses, power over both academic and non-academic decision-making has become more centralized in administrative bodies, with a corresponding reduction in faculty authority.”
The NEA cites books such as Benjamin Ginsberg's The Fall of the Faculty: The Rise of the All-Administrator University and Why it Matters (Oxford University Press), as reflecting a new reality. “[F]aculty recommendations are not implemented in many areas deemed important in Yeshiva — if, indeed, professional advice in these areas is sought from faculty at all,” says the NEA brief.
The NEA brief and those filed by other faculty groups also note the increasing reliance in higher education on adjunct faculty members, and a rapid increase in online education programs -- and suggests that both trends "create a disconnect between many faculty members and their employing institution’s governance structures."
The AFL-CIO brief (which also was joined by the American Federation of Teachers, and the Newspaper Guild, the latter of which is seeking to represent the Point Park professors) also focuses on the apparent differences between Yeshiva University in 1980 and most private colleges today.
Yeshiva University in 1980 had "almost total reliance on the faculty when it came to framing academic policy." As a result, the AFL-CIO argues, the standard set by the case was that faculty members are managerial when the administration functions as "the executive arm of the faculty."
Then the brief raises questions about whether this is the case today. It notes the growth in administration positions, the view of many college administrators that department chairs are administrators, and the sense of administrators (in the AFL-CIO’s views) that they need not follow faculty advice. “To the extent that the administration formulates academic policy without faculty advice -- or, even more tellingly, contrary to faculty advice – the administration’s actions conclusively demonstrate that faculty members’ role in formulating academic policy is at most merely advisory and thus not managerial.”
The brief then outlines changes at Point Park that it demonstrates are far from the standard set in Yeshiva. In says that its academic units were reorganized without faculty input and that the leaders of each unit were selected by the president, not the faculty. The brief says that there are 20 administrators – not faculty members -- who make decisions about academic matters.
And the brief cites academic programs -- including sports and arts and entertainment -- that were created “unilaterally” by the administration, and other academic policy decisions (changing degree requirements) made independently of the faculty. (A brief filed by Point Park maintains that it has always had a strong tradition of shared governance that makes a faculty union inappropriate, and that faculty members remain central to decision-making at the university.)
A brief from the American Association of University Professors stressed the extent to which the erosion of faculty power that union advocates at Point Park have cited reflects broad trends.
“The application of a corporate model of management has resulted in significant changes in university institutional structure and distribution of authority. There has been a major expansion of the administrative hierarchy, which exercises greater unilateral authority over academic affairs,” the AAUP brief says.
It adds: “This organizational structure stands in stark contrast to the Yeshiva majority’s description of the university as a collegial institution primarily driven by the internal decision-making authority of its faculty. Further, university administrators increasingly are making decisions in response to external market concerns, rather than consulting with, relying on, or following faculty recommendations. Thus, university decision-making is increasingly made unilaterally by high-level administrators who are driven by external market factors in setting and implementing policy on such issues as program development or discontinuance, student admissions, tuition hikes, and university-industry relationships. As a result, the faculty have experienced a continually shrinking scope of influence over academic matters.”
It is unclear when the NLRB will rule on the Point Park union issue or the way Yeshiva should be interpreted. Observers of the board said that the relatively short time the board gave for briefs suggests a desire for speedy action. And the NLRB currently has an Obama-appointed majority that is seen as sympathetic to labor.
However, any ruling by the board that favors faculty unions at private colleges and universities would almost certainly be appealed by university groups to federal courts. So while the NLRB has taken a step in the direction of making it possible for private colleges to unionize, years of litigation would probably precede any such collective bargaining (and that litigation might not favor the union position).