Union organizing of professors at private colleges has largely been squelched since 1980, when the U.S. Supreme Court ruled in NLRB v. Yeshiva University  that faculty members at private institutions should be considered managerial employees ineligible for collective bargaining.
A rare breakthrough for such union drives came in 2005, when the National Labor Relations Board ruled that faculty members at Carroll University had the right to unionize.  But on Friday, in a ruling  that focused primarily on whether Carroll was entitled to be exempt from unionization because of its religious ties, the U.S. Court of Appeals for the District of Columbia Circuit reversed the NLRB ruling, effectively quashing the union drive.
The case has attracted considerable attention among labor experts and higher education groups because one of Carroll's arguments was that the NLRB erred in finding that the university's professors were not barred by Yeshiva from organizing. But once the appeals court determined that Carroll was exempt as a religious institution, it declined to consider the Yeshiva issues.
In the Carroll decision, the appeals court applied what it called a "bright line" test of whether the university is entitled to a religious exemption from collective bargaining. This three-pronged test is whether an institution describes itself as providing a religious education, is nonprofit, and is affiliated with a religious group. Carroll, as a Presbyterian liberal arts institution in Wisconsin, "easily" meets that test, the appeals court found.
The NLRB had applied a more stringent standard, which it said Carroll did not meet. In its analysis, the board noted that the Presbyterian Church has no administrative control over the college, nor do they own it; that the Presbyterian Church does not appoint trustees, the president or the faculty; that students are not required to have any religious beliefs or to attend church services; and that while students are required to take one religion course, the criteria for fulfilling that requirement are so broad that qualifying courses include "Literature in Black America" and "Playing Crazy: Cultural Constructions of Madness."
The distinction between these two tests of a college's religious nature matters to many institutions. While there are many colleges where the religious roots of an institution are so omnipresent that these institutions would pass the NLRB test, there are many others like Carroll that were founded by religious groups and still identify in some ways with the groups, but where church ties are much less visible.
The appeals court said that the NLRB test was a dangerous one because it could involve federal officials investigating religious practices and philosophies in ways that Congress and the Constitution found antithetical to religious freedom.
The faculty union at Carroll was organized by the United Auto Workers, but the UAW declined to comment on the decision. Carroll issued a statement  praising the decision and pledging to continue to work with professors. The university has consistently opposed the unionization effort.
The 'Yeshiva' Impact
Much of the legal discussion about Carroll's faculty has focused on the institution's religious status. But the case has also involved important skirmishing over the Yeshiva decision. (The NLRB has control only over unions at private institutions; state laws govern unionization at public institutions, which is why Yeshiva does not limit faculty unions at state institutions.)
Advocates for unionization have maintained for years that Yeshiva was incorrectly decided. But some have argued that, even if Yeshiva was correct, the degree of faculty autonomy and institutional control has so eroded at many institutions that there should be no presumption that private college faculties have managerial authority. The NLRB rulings on Carroll appeared consistent with that view; for example, a 2007 ruling  rejected Carroll's claims that the faculty were managers. The board noted that, even in academic matters, the administration "exercises substantial independent control."
The board added: "After discussing the faculty’s authority over hiring, tenure and promotion, budget matters, staffing levels, terms of employment, and structural changes, the acting regional director determined that the respondent’s faculty do not exercise managerial authority over non-academic matters. In this regard, he found it significant that the administration had recently changed the structure of the college from one to two schools despite faculty opposition, and had restructured the administration system without any input from the faculty."
Carroll objected to this analysis of whether its faculty members were managers. And it received backing in a brief filed in the case by the American Council on Education, the National Association of Independent Colleges and Universities, the Council of Independent Colleges, and the Wisconsin Association of Independent Colleges and Universities. The brief argued that the NLRB was improperly applying the Yeshiva decision. The traditions of shared governance, the brief said, mean that the faculty role is not diminished just because decisions are also made by administrations and boards. Further, the brief argued that the most important faculty role involves academic matters, and that the NLRB placed too much emphasis on the faculty role in non-academic matters.
The NLRB's approach to the case, the brief says, reflects a "departure from settled standards for analyzing the Yeshiva factors as it reflects a misunderstanding of the concepts of shared governance and the normal and appropriate roles of the stakeholders within institutions of higher education."
Union leaders who are focused on higher education, however, said that the NLRB had correctly decided the case. Many are hopeful that with the appointees President Obama will place on the board and in federal courts, Yeshiva will be questioned increasingly in the years ahead.
David Strom, general counsel of the American Federation of Teachers, issued this statement: "This ruling demonstrates just why we need better labor law in this country. The court suggests that the NLRB was 'trolling through the beliefs of the college,' but if anyone is trolling here, it is Carroll College. They took every opportunity they could to delay the process and used every tactic available to them until they found a winning argument that was never raised until the last possible moment and a friendly court to rule in their favor."