Legal Standpoint: If Faculty Collective Bargaining Comes to Your Campus

By Lawrence White    //    Volume 20,  Number 5   //    September/October 2012

Notwithstanding recent public assaults on labor unions by elected officials in Wisconsin, Ohio, and other states, the number of faculty members who belong to labor unions is rising both in absolute terms and as a percentage of the professoriate as a whole. And that number may grow even faster if the Obama administration has its way.

According to a report released earlier this year by Hunter College’s National Center for the Study of Collective Bargaining in Higher Education and the Professions, close to 50,000 more faculty members belong to a union today than five years ago, when the center conducted its last national survey. Certified collective bargaining units now represent about 370,000 faculty members, one-quarter of all faculty nationwide.

For the past 30 years, most union organizing efforts among faculty members have taken place at public institutions. The National Labor Relations Act governs collective bargaining in the private sector and generally relieves employers from the obligation to bargain with “managerial employees.” In National Labor Relations Board v. Yeshiva University, decided in 1980, the Supreme Court held that faculty members, because “[t]heir authority in academic matters is absolute,” exercise managerial discretion and therefore do not possess the statutory right to unionize. While a private institution can decide voluntarily to recognize a faculty union, it is more common for organizers to seek statutory certification—and for certification to be contested on the ground that faculty members are managerial employees with no statutory right to bargain collectively.

Public institutions, by contrast, are covered for collective-bargaining purposes, not by federal law, but by state public-sector employment laws, many (if not most) of which permit collective bargaining by faculty members at state or community colleges.

A few months ago, the National Labor Relations Board, in a case involving union organizing efforts at Point Park University, a private institution in Pittsburgh, suggested it might be prepared to reconsider the legal status of faculty under federal labor law. A federal appellate court had asked the NLRB in 2006 to provide detailed reasons why the Yeshiva precedent did not preclude the faculty’s unionizing efforts at Point Park. In an order issued in May, the NLRB invited the university and the faculty to file briefs addressing whether, due to what the NLRB termed “developments in models of decision making in private universities,” federal law should be interpreted more liberally to allow union organizing efforts by faculty members at private institutions. Commentators expect the NLRB ultimately to answer the question affirmatively.

If the nation suffers through prolonged economic hard times, and if higher education budgets continue to shrink at the same alarming rate the sector has witnessed over the last three years, we may see more collective bargaining campaigns and union chapters on campuses. From a legal perspective, trustees should be aware of two consequences.

First, if a union is certified, it becomes the faculty’s exclusive agent for purposes of negotiating wages and working conditions. Deciding what qualifies as a “working condition” can involve sensitive boundary-setting between the union and the faculty senate. An institution with a unionized faculty can unwittingly get into trouble and commit an unfair labor practice by raising working-condition issues with faculty members other than duly designated union representatives.

Second, at periodic intervals—perhaps every three to five years—union and management must hammer out the terms of a new collective-bargaining agreement. While negotiations rarely become contentious enough to require board intervention, bargaining takes time and may distract members of the two bargaining teams from other institutional priorities.

Many institutions, including my own, are stronger and better because of the contributions made by faculty unions. Regardless of how board members and legal counsel may feel about unions, more union activity is likely in the immediate future. If unionizing efforts come to your campus, your trustees, senior administrators, and labor counsel should understand the legal principles that apply when faculty members, collectively, have organizing rights protected by statute.

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