A recent decision by the National Labor Relations Board (NLRB) has given the green light to the formation of a faculty union at a private, church-affiliated college in Wisconsin. The case is important not only because it may stimulate unionization drives at colleges and universities around the nation, but also because it highlights some of the glaring problems in the law governing labor relations for all kinds of workers.
Carroll College is a liberal arts college located in Waukesha, WI. While nominally affiliated with the Presbyterian Church, its religious ties are not much in evidence. An administrative decision in 2001 to divide the college into schools of liberal arts and professional studies led to considerable faculty dissension and ultimately a drive for unionization. Some professors felt that their interests would be better represented by a union, specifically the United Auto Workers.
After a sufficient number of faculty members had signed cards indicating that they wanted a union election, the NLRB announced that an election would be held in February. The election was duly held, but the ballots were not counted, pending an appeal by Carroll’s administration, which made two arguments. First, that mandatory collective bargaining would violate its First Amendment rights as a religious institution, and second that under the Supreme Court’s 1980 Yeshiva University decision, its faculty members were not under the jurisdiction of the NLRB because they aren’t “employees” in the meaning of the law.
The NLRB disagreed. It found that Carroll’s tenuous religious ties would not be affected by the unionization of the faculty, and that Yeshiva did not necessarily bar unionization of professors. The Supreme Court had ruled that because the Yeshiva faculty had considerable managerial roles, they fell outside the definition of “employee” in the National Labor Relations Act (NLRA) and therefore couldn’t unionize under the law. The NLRB considered several factors and held that because the Carroll faculty was less “managerial” than in Yeshiva, the professors should be considered employees.
Once the legal fighting was over, the ballots were counted. By 57 to 39, the union prevailed. The UAW has been certified as the bargaining representative for the Carroll faculty.
There are several reasons why the case is troubling.
First, why should the freedom for professors to seek union representation turn on the subjective determination of how “managerial” they are? In a free society, shouldn’t anyone be allowed to join a union and seek collective bargaining?
Second, now that the election has been held, what about the rights of those who voted against unionization? The problem is that under the NLRA, a certified union becomes the exclusive representative of all the workers. Those who didn’t want it must nevertheless accept its bargaining and representation. Individual bargaining is no longer permitted. In no other aspect of life are Americans forced to accept anyone else as their representative; why should the right of individual choice be extinguished just because a majority of workers wants a union?
Third, since the UAW has been designated as the faculty union, Carroll has a legal obligation to bargain with it “in good faith.” Under the principles of contract law, however, people are free to decline to bargain with anyone else. Bargaining isn’t really voluntary if one side is holding a gun, but the mandate to bargain or else face legal action by the government gives the union a .45 magnum.
Prior to the enactment of the NLRA in 1935, there were labor unions and there was collective bargaining, but instead of a complicated and authoritarian federal regulatory scheme, labor relations were governed by state law, usually just the common law principles of contract, property, and tort. The freedom of workers and employers to say “No” was protected. In attempting to aid unions, the NLRA destroyed the neutrality of the common law, which made no distinctions between categories of people.
Some of the Carroll faculty may be pleased at having union representation, but others will resent having to pay for services they don’t want, and to financially support a union that may use some of their money for political purposes they don’t approve of. “Workplace democracy” inevitably leaves some people dissatisfied.
In the opinion of the great constitutional scholar Richard Epstein, the NLRA should have been declared unconstitutional when it was challenged back in 1936. (It survived on a 5-4 vote, and only after Roosevelt had unveiled his “Court packing” plan.) Congress should clean up its mess by repealing it.
George Leef is the executive director of the John W. Pope Center for Higher Education Policy in Raleigh.