NLRB asks for amicus briefs: Are employees of private universities entitled to unionize?

NLRB asks for briefs in Point Park University’s long dispute with teachers

By Marcus Schwarz / Pittsburgh Post-Gazette

Are Point Park University professors labor or management?

That question is at the heart of a long-running dispute between the school and its faculty that could change the status of higher education employees nationwide.

In recent months, big-name higher education groups have entered the debate — arguing both for and against a union that officials at the Downtown university have resisted since faculty tried to organize in 2004.

Advocacy groups entered the fray after the National Labor Relations Board asked for amicus briefs on whether private university faculty are eligible to join unions.

The request could mean the board is considering developing new guidelines on how to distinguish whether faculty are managers or employees. Such guidelines could affect private university faculty across the country.

A gray legal precedent

In 1980, the U.S. Supreme Court decided that faculty members at Yeshiva University were managers not entitled to union representation because they shared governance over the university with administrators.

Since then, for the NLRB to find that a faculty is eligible to organize, the board must establish differences between the administrative power of the university faculty in question and that of the Yeshiva faculty, according to Stanford labor law professor William Gould IV, the NLRB chairman from 1994 to 1998.

Of the board’s request for briefs in the Point Park case, he said, “They might be looking for a case that would permit them to make findings that are different from the facts of Yeshiva.”

The Yeshiva case is not a blanket precedent against faculty unions but instead requires a case-by-case review of the powers of faculty, said Ellen Dannin, a labor law professor at Penn State University.

A long struggle

The conflict between Point Park University and its faculty is far from new. Faculty voted 49-14 in 2004 to join the Newspaper Guild of Pittsburgh. (Post-Gazette reporters are also members of this union.)

Point Park’s attempt to introduce a new faculty handbook without faculty input sparked professors to organize, said history professor Edward Meena, who is president of Point Park’s faculty assembly and active in the push for a union.

The old faculty handbook was frozen when the NLRB took up the case, but the turnover of administrators has made working without a collective bargaining agreement difficult, Mr. Meena said.

The old handbook, for example, was written before Point Park switched from having one provost to four deans, Mr. Meena said. It includes nothing about the powers of the new deans, who control the university’s four schools, Mr. Meena said. The administrative change was part of Point Park’s transition in 2004 from a college to a university.

In his role as faculty assembly president, Mr. Meena said he has often been involved in disputes between deans and faculty.

“The one thing I would always hear [from deans] was, well, it’s not in the handbook so I should be allowed to do this,” he said. “It’s all in the interpretation in the language of the old handbook.”

The NLRB ordered the university to bargain with the union, but Point Park sued the labor board–setting up a 2006 face-off in the U.S. Court of Appeals for the District of Columbia Circuit.

That case ended with the court sending the conflict back to the NLRB, demanding that it specify why Point Park faculty is allowed to organize under the National Labor Relations Act, which describes which types of employees can form unions.

“Every academic institution is different, and in determining whether a particular institution’s faculty are ‘managerial employees’ excluded from the act or ‘professional employees’ included in the act, the board must perform an exacting analysis of the particular institution and faculty,” the D.C. Circuit Court decision stated.

The regional NLRB director issued a new decision in compliance with the court, but in 2007 Point Park asked the board to review it.

Since then, a long delay occurred, in part because the board conducted almost no business from 2008 to 2010 when a deadlocked Congress failed to confirm presidential nominees.

Recently, President Barack Obama has used recess appointments to keep the board functioning, despite objections to their legality.

Board members also disagree with how to proceed with the Point Park case. Two Republican members of the five-member board dissented from the May request for briefs, arguing the board already had enough information. One of the dissenters, Terence Flynn, resigned at the end of May, after an investigation found he had leaked board documents.

Still, a majority rules on the NLRB, so, starting with the request for amicus briefs, the board is now getting back to the case.

What exactly the board is planning remains unclear. Members do not speak to the press about ongoing cases. But the questions in their request provide a view to their intentions. Respondents were to write about what information would be useful in determining whether professors are management or labor. One question also asked whether the structure of higher education governance has changed since the 1980 Yeshiva decision.

“They like to get briefs from a lot of parties on issues that are far reaching,” Mr. Gould said. “The fact that they have asked for briefs on this indicates that they want to do something.”

National groups weigh in

The briefs responding to the request fit largely into two categories: Those siding with Point Park argued that administrators at that and other schools consider and act on faculty advice, while those siding with the union argued that faculty are often ignored when it comes to making decisions about hiring, program structures, course offerings and other university governance issues.

The Point Park University brief argued that the “faculty effectively controls numerous academic areas as well as some nonacademic areas.”

Areas include curriculum, admissions standards, hiring and grading systems, according to the brief. Faculty committees approve changes within these areas, the brief argued.

In a statement to the Post-Gazette, the university wrote, “Integral to our policy of shared governance, the university regards its faculty as critical decision makers to achieve academic excellence.”

But the union brief, which was co-filed with the AFL-CIO, disputed the claim that shared governance exists at Point Park, arguing that professors’ advice is ignored routinely.

“The president [then Katherine Henderson] informed faculty members that she was under no obligation to follow or implement their suggestions with regard to academic policy,” the union brief states. “She responded to the professors’ protests over this approach by bluntly stating, ‘This is not a democracy.’ ”

Mr. Meena said that the current president, Paul Hennigan, works with the faculty more than his predecessor, but that the faculty still needs a collective bargaining agreement to establish its powers in relation to those of the deans, who Mr. Meena said are often replaced.

The union’s lawyer, Joseph Pass, said in an interview that faculty members want a union “so that they have some voice in their working conditions and terms and salaries.”

Among the higher education advocacy groups weighing in is the American Association of University Professors. Its brief argued that the way private universities are managed has changed since the Yeshiva decision.

“Rather than relying on faculty expertise and recommendations, universities have increasingly relied on expanded administrations to make unilateral decisions, often influenced by considerations of revenue generation,” the brief stated.

Universities have increasingly adopted a “corporate model of management,” according to the AAUP. This model means that university presidents and other leaders often ignore professors in decision-making processes, the AAUP wrote.

Its brief also pointed out that in 1999 the NLRB had found the faculty of Manhattan College to be eligible for a union because they played a “fundamentally advisory” role with respect to making university decisions.

In another brief, the National Education Association advised the board to consider differences in organizational structures when determining whether faculty have the right to organize.

Point Park places “multiple layers of administration” between the faculty and those with real authority to make decisions, the NEA wrote.

But others argue that shared governance is alive and well at private universities.

“Shared governance is still the general rule at institutions today,” stated a brief filed by the American Council on Education, the National Association of Independent Colleges and Universities and other advocacy groups.

“Approximately 90 percent of four-year institutions currently have faculty governing boards that participate in institutional governance.”

The council’s brief also raises questions about the role of the board in the case, criticizing the NLRB’s request for amicus briefs as outside the bounds of the court’s order to identify the factors that made the Point Park faculty eligible to join a union.

Point Park University echoes that line of reasoning in its own brief. “There is simply no justification for this board to use this case as a vehicle for reversing or reinterpreting decades of settled and established precedent,” the university wrote.

An unclear future

It remains unclear when the board will decide the case. The NLRB does not release timelines for its cases, conduct hearings or operate in sessions that cover a specified period of time.

The case could be further delayed if Mr. Obama is not re-elected in November. If that happens, the board again will be thrown into limbo because a new president could appoint a new board chair and replace recess appointments, which expire late next year. The recess appointments also are being challenged in court.

Should the board again find Point Park faculty eligible to join a union, and should the university appeal that decision, the case could end up back in federal court — potentially setting up a reconsideration of Yeshiva. Mr. Pass, the union lawyer, said he expects both sides would appeal a decision in the opponent’s favor.

Although Mr. Gould, the Stanford scholar and former NLRB chairman, said he believed that the Yeshiva court had “exaggerated this idea of self-governance” within private universities, he said it was unlikely that the present U.S. Supreme Court would change the precedent.

“This Supreme Court doesn’t like unions, and they don’t like the National Labor Relations Act,” he said.

Marcus Schwarz:
First Published August 26, 2012 12:00 am

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