NLRB’s pro-union ruling attacks private higher education

American labor unions are in serious decline and the National Labor Relations Board (NLRB) has become nothing more than a legal enforcer for panicked union bosses. A recent example is the December 2014 decision in Pacific Lutheran University (discussed in this article which includes the link to the case) that may force more private-sector higher education faculty to accept unionism if they want to work.

Faculty unionism at private-sector colleges and universities is subject to the National Labor Relations Act (NLRA) as interpreted and imposed by the NLRB. Ever since the Supreme Court’s 1980 Yeshiva decision (which said that higher education faculties are “managers” within their respective institutions and therefore cannot unionize), private-sector academics have been protected against compulsory unionism.  

Moreover, faculty at religiously-based colleges and universities have been exempted from compulsory unionism by the freedom of religion component of the First Amendment. The details of that exemption were outlined by the Supreme Court in Catholic Bishop of Chicago (1979).

Pacific Lutheran changes all of that.

Regarding the First Amendment, the Obama majority dispensed with rules for determining religious exemption established by the D.C. Circuit in a 2002 case (Great Falls v. NLRB) and invented a new criterion: Are faculty at a religion-based school held out as “performing a specific role in creating or maintaining the school’s religious educational environment?” The Board thus granted itself the right to define what is or is not part of a “religious educational environment.” It also granted itself the right to determine whether or not a faculty function is “uniquely religious” as opposed to merely being a value of a religion that is widely shared even by faculty at secular schools.

Court precedents kept the NLRB from getting into the constitutionally forbidden game of deciding what is or is not sufficiently religious to deserve exemption from unionization under the NLRA. Bureaucrats should not override such decisions to promote their pro-union agenda. 

Next, the Board considered whether Pacific Lutheran faculty perform functions that are sufficiently managerial to give them Yeshiva protections.

The majority invented a new test to answer that question. It considered five areas of university decision-making: (a) academic programs, (b) enrollment management, (c) finances, (d) academic policy and (e) personnel policies and decisions. It arbitrarily asserted that the first three are of “primary” and the last two are of “secondary” importance. Yet, at most colleges and universities, the last two are the primary managerial functions of faculties. The first three—which programs to offer, how big they should be, and how to pay for them—are areas usually left to the schools’ administrators.

In each of the five areas the majority set a high standard for what constitutes faculty managerial control. The faculty must have “effective” control, which means that the administration must give in to what the faculty wants.

What this case means is that at private, even religious colleges, if enough faculty members say they want to unionize, the NLRB will hold an election and certify the union as the exclusive bargaining representative for all if the majority votes for the union. While only adjunct faculty were involved in this case, the decision is a step toward capturing all faculty members.

I hope (and expect) the Board’s Pacific Lutheran ruling to be overturned on judicial review. If not, it will have bad effects. In fact, we are already seeing some effects of that decision, such as the walkout of adjunct instructors at Seattle University who demanded that the school give in to unionization and the NLRB sided with them. (On the other hand, the adjuncts at Pacific Lutheran have withdrawn their unionization petition.)

There are good reasons for serious higher education faculty to want to be union-free. Core academic values in higher education include free association, open inquiry, academic promotion based on the merits of a faculty member’s research and teaching, collegiality, and academic governance shared by faculty and administration.

The record of higher education faculty unions since the early 1970s reveals that they are in frequent conflict with such principles. Specifically, as I explained in this Pope Center article, exclusive representation and union security are affronts to freedom of association in academia.

As I wrote there, “If fifty percent plus one of the members vote to have, say, the National Education Association be their representative…all of the members must accept the NEA union’s representation ‘services’ whether they want them or not….This violates the right of each faculty member to freedom of association.”

Unionization of the faculty also undermines effort. The administration must adhere slavishly to the collective bargaining agreement, which treats all faculty members alike, whether excellent or indolent. Faculty unions turn higher education into something more like an industrial assembly line than an intellectual enterprise.

Academics who do not take seriously the enterprise of seeking and communicating knowledge and wisdom have a comparative advantage in paper-pushing and academic politics. Unable, as many of them are, to distinguish themselves in research and teaching, they seek refuge in the pursuit of equal pay for unequal work. They do less of academic value, but they insist on the same pay, promotion, and perks as their more productive colleagues.

What about collegiality and shared governance? The NLRA is based on the assumption that labor (faculty) and management (administration) are enemies. Administrators are regarded as predators, the faculty their prey. As Nicholas Burbules puts it in the Chronicle of Higher Education:

[The union model] begins with a presumption of conflicting interests that need to be negotiated through concessions on both sides. Faculty members and administrators are defined as “workers” and “management,” even though the faculty is made up of professionals, not workers, and administrators have very limited abilities to “manage” tenured professors. These negotiations are often deeply adversarial, including open hostility, suspicion, and accusations of bad faith. The union mantra that only a written contract is binding is based fundamentally on a presumption of mistrust.

And, by the way, what is collegial about faculty strikes?

Finally, it isn’t even true that unionization means that faculty members will earn appreciably more. Research shows that the effect of faculty unions on pay is statistically insignificant.

American higher education is not doing well. A January 16, 2015 Wall Street Journal article, “Test Finds College Graduates Lack Skills for White-Collar Jobs,” outlined deficiencies in critical thinking, analytical reasoning, document literacy, writing and communication. Faculty unions will inevitably stifle the discovery procedure that is necessary to find remedies. Higher education needs innovation, but innovation threatens people who have sinecures.

Unions have long opposed free trade in goods and services. Faculty unions are just as likely to oppose the free trade in ideas that is crucial for academic innovation. The apparatchiks in the NLRB may think that facilitating unionization in higher education is a good idea, but from personal experience, I say that they are mistaken.