A Weaker 'Yeshiva'?

Point Park University on Monday announced that it was dropping legal appeals designed to prevent its full-time faculty from unionizing. The decision could be a sign that a December ruling by the National Labor Relations Board will make it more difficult for private colleges to fight off union drives for full-time faculty members.

And that would be a significant shift away from the 1980 U.S. Supreme Court ruling in NLRB v. Yeshiva University, a decision that has largely made unionization impossible for tenure-track faculty members at private colleges and universities, unless those colleges agreed.

In accepting the union, Point Park ended 12 years of legal battles to prevent collective bargaining by its faculty members, who voted in 2004 to be represented by the Newspaper Guild/Communications Workers of America. A statement by the university noted that a prior administration at Point Park started the effort to block the union. "The current administration at Point Park does not wish to spend any resources on a potentially costly legal battle with its full-time faculty. Therefore, the university will recognize the right of the full-time faculty to form a union and begin collective bargaining accordingly," said the statement.

As recently as May, however, the university was urging the NLRB to back off plans to apply its December ruling to Point Park. The decision by Point Park to drop its appeals follows the NLRB stating that it would apply the December ruling, which came in a case involving Pacific Lutheran University.

"This would be indicative that Pacific Lutheran raised the bar on what a university is going to have to prove to exclude full-time faculty from unionizing," said William A. Herbert, executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions. While it is possible that a private college could still win, the NLRB's ruling had made that process potentially long and expensive, with the outcome uncertain, he said. The decision by Point Park could illustrate how other colleges may consider "the judgment call about where they will spend their resources -- fighting unionization with lengthy hearings or on educational matters."

Peter McDonough, interim general counsel of the American Council on Education, said via email that "litigating for more than a decade is costly, and continuing to litigate for months or years longer obviously prolongs the expense. Of course, I do not know the factors that Point Park balanced in making its decision, but it strikes me that prudent use of financial resources had to be at the top of the list. I sense that Point Park's announcement today says more about that than it does about the Pacific Lutheran decision or the Yeshiva standard."

The Pacific Lutheran Ruling

The Pacific Lutheran ruling dealt with multiple issues raised by a drive to organize adjuncts at the university. (In a great irony of the case, while the adjuncts won the legal issues considered by the NLRB, they withdrew their request for unionization after uncontested votes showed them losing.)

Pacific Lutheran challenged the adjuncts' right to unionize in part because of the university's religious status and in part over definitions of faculty members as managerial employees who would be ineligible for collective bargaining. The religious aspect of the case isn't relevant to Point Park as the latter university is secular. But the section on whether faculty members are managerial had a big impact on Point Park and could have a big impact on other colleges as well.

In the Yeshiva ruling, the Supreme Court found that the structure of private higher education was not typical of corporate hierarchies, and that faculty members had substantial managerial authority such that they couldn't be considered simply to be employees. The question to consider when deciding whether faculty members are managerial isn't whether presidents and Boards of Trustees have final right of approval, but whether the faculty have "effective recommendation or control," the Supreme Court ruled.

The NLRB ruling in December noted that there has been some dispute over how to determine whether the faculty members at a particular college have managerial authority. Before naming the areas where faculty must control decision making to be managerial, the ruling said that the authority must be real. "The party asserting managerial status must prove actual -- rather than mere paper -- authority," the NLRB said. "A faculty handbook may state that the faculty has authority over or responsibility for a particular decision-making area, but it must be demonstrated that the faculty exercises such authority in fact."

The NLRB decision also endorsed the view offered by many professors that the power of the faculty has eroded considerably since the Yeshiva ruling.

"Indeed, our experience applying Yeshiva has generally shown that colleges and universities are increasingly run by administrators, which has the effect of concentrating and centering authority away from the faculty in a way that was contemplated in Yeshiva, but found not to exist at Yeshiva University itself. Such considerations are relevant to our assessment of whether the faculty constitute managerial employees," the NLRB decision said. "A common manifestation of this 'corporatization' of higher education that is specifically relevant to the faculty in issue here is the use of 'contingent faculty,' that is, faculty who, unlike traditional faculty, have been appointed with no prospect of tenure and often no guarantee of employment beyond the academic year."

Based on its analysis, the NLRB said that to determine whether faculty members have managerial authority, one must examine faculty control of academic programs, enrollment management policies, finances, academic policies, and personnel policies and decisions. The ruling stipulated that "greater weight" be given to the first three of those factors. That could be significant because many private college administrators say they defer to the faculty on academic programs, but not necessarily on enrollment policies and finances.

The union at Point Park expressed confidence that under this standard, faculty members there were not managers. And with Monday's announcement, the university indicated it would not contest that view.