Aug. 2, 2006

Professors: Managers or Employees?

Ever since 1980, professors at private colleges have had a difficult time forming unions. That’s the year that the U.S. Supreme Court ruled that faculty members at Yeshiva University couldn’t unionize because they had so much power that they were managerial employees.

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A federal appeals court ruling Tuesday is the latest to consider attempts by faculty unions (or would-be unions) to win the legal right to collective bargaining. The ruling — involving the faculty union at Point Park University — didn’t offer a definitive opinion on whether faculty members at the Pittsburgh institution could unionize.

The three judge panel of the U.S. Court of Appeals for the District of Columbia Circuit criticized the National Labor Relations Board for the way it gave the go-ahead for a union. The appeals court said that while the NLRB official who considered the case offered evidence to show that Point Park faculty members had less authority than those of Yeshiva 25 years ago, he also offered contradictory evidence, and failed to sufficiently explain the NLRB’s rationale. The ruling returns the case to the NLRB, which could offer a more detailed analysis of why a union should be allowed, or could reverse itself.

The case has assumed an importance well beyond Point Park. A number of college groups — the American Council on Education, the Association of Independent Colleges and Universities of Pennsylvania, the Council of Independent Colleges, and the National Association of Independent Colleges and Universities — weighed in on behalf of Point Park and against the union. They argued that the NLRB has failed to enforce the Yeshiva decision and has thus incorrectly allowed some faculty unions to be created.

Edward A. Brill, a lawyer for those groups, called Tuesday’s decision “an important victory” and said that the standards set by the appeals court would lead to the defeat of the Point Park professors’ union and to more clarity over the rights of private colleges not to engage in collective bargaining. Brill said that some at the NLRB have been using “an inappropriately high standard” for deciding whether employees are managerial, and that this decision could change that.

But officials of the Point Park union — which is affiliated with the Communications Workers of America — had the opposite prediction. They said that there was so much evidence in the record to back their claims that they are not managers that Tuesday’s ruling was not an obstacle, and would lead to stronger backing by the NLRB for the union, because any comparison of their situation and those of Yeshiva professors in 1980 would show that today’s Point Park professors have far less control.

“When I read the Yeshiva decision, I kept thinking to myself, ‘the Yeshiva faculty complained?’ ” said Soren Hogsgaard, a professor of public administration who heads the faculty union. “If we had all the things they had, we would be very, very happy.”

Full-time faculty members at Point Park filed a petition with the NLRB to form a union in 2003, and when the administration objected, the board held hearings. A regional director of the NLRB backed the union’s argument with a 2004 ruling that cited many ways in faculty members at the university lacked authority or had lost authority. The ruling noted, for example, that Point Park had changed from a college to a university and instituted merit pay programs for professors without faculty approval. The ruling also noted that some key governance committees lack faculty representatives, that some curricular recommendations that emerged from faculty committees were ignored, and that the administration made policy changes dealing with the curriculum (on online education, for example) without faculty approval.

While the decision noted areas where faculty members do have considerable authority, the totality of governance left the NLRB believing that faculty members were not managerial, and were thus eligible for collective bargaining.

The appeals court ruling did not accept or reject the NLRB’s recounting of the relative power of faculty members and administrators. Rather, the court faulted the NLRB for not explaining which examples were most relevant. The NLRB director’s decision didn’t “explain which factors are significant and which less so, and why,” the appeals court said. The appeals court ordered the board to reconsider the case.

Point Park released a statement saying that officials hoped to continue to work in a “spirit of collaboration” with faculty members. The statement did not address the specific points made in the NLRB ruling and a spokeswoman said that the university would not elaborate on the statement.

Much of the faculty discontent that led to the union drive took place under the presidency of Katherine Henderson, who has been on sabbatical this year and announced plans to leave the top position. Paul Hennigan, who has been serving as acting president and who will assume that position on a permanent basis in the fall, has thus far established much more collegial relations with professors.

Hogsgaard, the faculty union leader, said that while he was pleased with Hennigan’s performance so far, that did not take anything away from the need for a union. “I think he’s a fair player,” Hogsgaard said of the incoming president. But he added that union-management relations need not be adversarial.

And Hogsgaard, who has taught at Point Park for 32 years, said faculty members shouldn’t have to rely on a president’s good will for fair treatment because that president won’t be there forever. “Administrators come and go,” he said.

Brill, the lawyer for the groups opposing the union, said that much of the evidence cited in the NLRB ruling lacked appropriate context. “The evidence might have shown that the faculty approved 9 out of 10 courses and that there was an explanation for why they didn’t approve that one course,” he said, but the NLRB focused on the exception and not the “vast majority of cases.” Brill said that the “sense of perspective was off” in the NLRB’s review of the case, which did not emphasize the “substantial authority” of faculty members on academic issues.

The higher education groups he represents are less concerned about whether Point Park’s faculty is unionized, he said, than about “the erosion” of the Yeshiva ruling, if faculty unions are able to avoid it. On the question of whether faculty life has changed since Yeshiva, Brill said that while there have no doubt been changes, “the underlying rationale” of the decision remains valid today.

Some recent history backs Brill’s claim that a scolding from a federal appeals court about insufficient analysis can prompt the NLRB to change its mind. In 2004, the same appeals court ordered the NLRB to reconsider its finding that faculty members at LeMoyne-Owen College were entitled to unionize. As in the Point Park case, an NLRB regional director found distinctions between the treatment of faculty members at LeMoyne-Owen and at Yeshiva, and as in the Point Park case, the appeals court said that the NLRB hadn’t done a good enough job of explaining itself.

When the NLRB returned to the case, it found that the LeMoyne-Owen faculty members were managerial (although one NLRB member disagreed).

Should Tuesday’s ruling — or future rulings in the case — be appealed, those involved may find a high-level jurist quite familiar with the issues. The author of the ruling by the appeals court in the LeMoyne-Owen case has since received a promotion. He’s John Roberts, chief justice of the Supreme Court.

— Scott Jaschik

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