On September 12, Littler Shareholder Walter Hunter outlined a number of concerns facing higher education institutions in light of recent National Labor Relations Board developments. Testifying before the House Subcommittees on Health, Employment, Labor, and Pensions (HELP) and Higher Education and Workforce Training, Hunter discussed various NLRB decisions and initiatives that he said are particularly problematic for the unique settings of our colleges and universities.

Opening the joint hearing, HELP Chairman Phil Roe (R-TN) asserted that the Board is “exploring actions that could bring significant changes to higher education institutions.” To this end, the hearing focused on the Board’s reexamination of its jurisdiction over graduate students, university faculty, and religious institutions.

Hunter – co-chair of Littler’s higher education practice group – emphasized that colleges and universities have a deep respect for the collective bargaining process where appropriate, but “will fiercely protect academic freedom, teaching, learning and research.” He touched upon several recent Board actions that would be detrimental in the university setting.

For example, Hunter explained how the Board’s reconsideration of its 2004 decision in Brown University, (pdf) in which the agency held that graduate student assistants are not statutory employees subject to the NLRA – is misguided. On June 22, 2012, the Board granted review in two cases – New York University, Case 2-RC-23481 and Polytechnic Institute of New York University, Case 29-RC-12054 – that present the question of whether graduate student assistants are employees eligible to collectively bargain under the NLRA. The Board also invited legal briefs asking whether it should modify or overrule the Brown decision. Hunter testified that the 2004 decision was “well-reasoned and correctly decided,” and that overturning it would be a “terrible mistake.” Hunter argued that collective bargaining is not the proper model to address the interests of grad students, which already are robustly presented and debated in the university setting.

Hunter next discussed the Board’s recent invitation for input on whether university faculty members are employees covered under the NLRA or are managerial employees excluded from coverage, as was established by the case NLRB v. Yeshiva University. Hunter agreed with federal court precedent cautioning the Board not to interfere with the delicate governing structure of universities. According to Hunter, “there is no need to revisit Yeshiva,” as the principles established by that case still hold true. Specifically, among other core factors, faculty play a critical role in the governance of a university, including deciding major academic policies such as curriculum, course offerings, teaching methods, matriculation standards, and tenure requirements, in contrast to the hierarchical management-employee relations in private industry.

Another concern Hunter raised was that university confidentially, respectful conduct, and social media policies could be jeopardized by recent Board stances. According to Hunter, to promote learning, colleges establish policies and codes of conduct aimed at preventing violence and fostering an atmosphere of respect and congeniality. Recent Board rulings, however, have found that many such policies can be interpreted as overbroad and thus in violation of the NLRA. Hunter discussed instances in which terminated employees who engaged in behavior that would ordinarily be considered egregious and against company workplace conduct policies were reinstated with backpay because the Board held that the policies cited by the employers were technically overbroad. Hunter argued that to promote a safe and supportive learning environment, universities should be free to institute and enforce policies promoting civility and respect among faculty, staff and student behavior without fear of reprisal. Similarly, in the interests of safety, universities should be able to establish and enforce reasonable rules governing who accesses their campuses without running afoul of the NLRA.

The Board’s controversial rule on expedited election procedures – which was suspended in May following a federal court ruling that the Board lacked a quorum to issue the rule -- also drew sharp criticism from Hunter. He said:

requiring higher ed employees to vote in a union election eighteen days after a petition has been filed is completely inconsistent with what a university is all about. Universities are places where people make informed decisions after carefully studying the relevant factors and arguments involved in a thoughtful way. Whatever the purpose may be of scheduling an election eighteen days after a petition, the effect will be that employees will be less informed when they make their decision.

Hunter’s testimony also touched on the Board’s decision in Specialty Healthcare, which makes it easier for unions to certify “micro” bargaining units. Hunter explained that this decision is a “fundamental shift in what has been settled law for decades,” and if applied to the university setting, would raise costs, decrease the institution’s efficiently, and could result in unfair treatment of employees in discrete groups. For example, universities could be faced with hiring additional labor relations staff, and establishing and administering multiple payrolls, personnel policies, and employee benefits programs for faculty members in multiple departments.

Under panel questioning, Hunter was asked whether there was any major difference between state laws allowing public university employees to unionize and the NLRA. Christian Sweeney, Deputy Organizing Director of the AFL-CIO, had claimed during the hearing that many public universities – such as the University of California at Berkeley – allow graduate students to form unions without backlash. In response, Hunter explained that the biggest difference between the private and public sector was the right to strike. Most state laws prohibit the right to strike, Hunter said, so public institutions do not face this threat.

Finally, Hunter emphasized that the shared governance process works well in the university setting and is a much more appropriate model for addressing the challenges facing students and faculty than a collective bargaining model. Hunter said that if a union were to become the grad students’ representative, it would be the exclusive bargaining representative as a matter of law, thus precluding faculty members from directly dealing with students on many issues. Hunter explained that this could be particularly problematic when a union’s interest is not aligned with those whom it represents.

During the hearing, AFC-CIO Representative Sweeney also argued that “concerns over the impact of collective bargaining on the educational mission of universities are not well founded.” He said:

at NYU, the only private university ever to have had a contract for TAs and RAs, the union and the university reached an agreement to allay the administration’s concerns about collective bargaining’s intrusion into matters of academic judgment, the contract states, “[d]ecisions regarding who is taught, what is taught, how it is taught and who does the teaching involve academic judgment and shall be made at the sole discretion of the University.”

Hunter refuted this assertion, however, by forwarding to the Committee publicly available documents demonstrating that NYU actually terminated its relationship with the union for its failure to honor this contractual language. In 2005, NYU sent a letter to the UAW letter that criticized the union for failing to honor its commitment to protect academic decision making.

Hunter’s letter to the Committee (pdf) demonstrated that the concerns expressed by private universities at the hearing – that grad student unions would improperly attempt to intrude into academic affairs – was actually borne out by the NYU experience.

Other Concerns

Dr. Peter M. Weber, Dean of Brown University Graduate School, agreed that defining graduate students as employees would damage the mentor/mentee relationship. He claimed that doctoral training is costly to his university, as it would be less expensive to simply hire instructors to perform the same tasks. However, he noted that the purpose of the program is to teach the graduate students how to teach, as this is the goal of many doctoral students. Having graduate students collectively bargain would “wreak havoc on academic freedom” and completely change the dynamics between students and instructors, Weber said.

In her opening statement, Subcommittee on Higher Education and Workforce Training Chair Rep. Virginia Foxx (R-NC) agreed with this position, stating that the graduate student experience is primarily educational, not economic in nature.

Dr. Michael P. Moreland, Vice Dean and Professor of Law at Villanova University School of Law, criticized what he perceived as the Board’s unlawful exertion of jurisdiction over religious-affiliated schools. According to Moreland, the Board’s “substantial religious character or purpose” test is at odds with the U.S. Supreme Court’s three-part test for determining whether a religious educational institution is exempt from the Board’s jurisdiction. Under that test, such an institution is exempt if it: (1) holds itself out to students, faculty and the community as providing a religious educational environment; (2) is organized as a nonprofit; and (3) is religiously affiliated.

A full list of the hearing panelists and links to their written testimony can be found here