Faculty Unionization: Do faculty exercise managerial authority?

In today’s edition of Inside Higher Ed, we learned that the National Labor Relations Board (NLRB) is re-examining the issue of “whether faculty members at private colleges should be considered employees eligible for collective bargaining.”  This review could create some rules surrounding when faculty might be considered within the managerial exclusion within the National Labor Relations Act (NLRA).  Under Yeshiva (1980), the U.S. Supreme Court examined whether full-time faculty of Yeshiva University fall within the managerial exclusions within the NLRA.  The court said YES, so faculty were excluded from bargaining.  According to the Court, full-time faculty at Yeshiva exercise authority much like managerial authority.  The Court defined faculty authority as “absolute.”  The faculty “decide what courses will be offered, when they will be scheduled, and to whom they will be taught. They debate and determine teaching methods, grading policies, and matriculation standards. They effectively decide which students will be admitted, retained, and graduated.”  Thus, they are excluded from bargaining under the NLRA.

Today, many private colleges and universities do not operate like what the Court believed to be the case at Yeshiva in 1980.  One might argue that these schools don’t have the same meaning of shared governance as the Court described in Yeshiva; consequently, the exclusion should not apply (see the Point Park University case).  

The article also raises questions about whether all faculty should be classified in the same way.  Legally speaking, do they share a “community of interest”?  Should all faculty across ranks or distinctions by tenure eligibility or full/part-time fall within the same community of interest or are they distinct enough to separate off? 

This NLRB inquiry might generate more attention of social science researchers.  The NLRB and the lawyers working on this issue will rely on research.  While we know some aspects about working conditions of unionized faculty, there’s not that much research – relative to other topical areas impacting the law.  Thus, this legal inquiry might be reinvigorate our social science inquiry.  

Catholic colleges and the Patient Protection and Affordable Care Act

According to Inside Higher Ed, forty-three Catholic organizations, including the University of Notre Dame, filed suit against the federal government over mandated insurance plans requiring contraception coverage.  In 2010, the Patient Protection and Affordable Care Act was signed into law.  It requires certain preventive medical services.  When Health & Human Services announced its proposed rules in 2011, representatives of Catholic colleges and universities expressed concerns about the policies.  Recently, it even drew attention to criticisms of Jesuit-runned Georgetown University’s invitation of Secretary Kathleen Sebelius (which, not surprisingly, led to hecklers). 

While this suit isn’t the first major event on this matter, it appears that Catholic colleges and universities are taking more formal actions including some colleges eliminating student health insurance.  This case might provide us new or clarified constitutional understandings about religious liberties.  Of course, it could end up as an agency deference case (e.g., the Chevron standard) and the federal Administrative Procedure Act. 

To learn more about the reported conflicts between federal law and the Catholic doctrine (via Catholic colleges and universities), Kevin Theriot has a useful and accessible white paper on the topic.  

Unfriendly amendments...

There was a lot of coverage last year about anti-faculty union sentiment, particularly among Republican lawmakers (and, apparently, the governor of Wisconsin is still keen on dissolving faculty unions in his state).

Some more furtive attacks on higher education have been taking place, particularly as it relates to pension plans. Last year in Florida, the state legislature passed a law that ALL state employees (not just those in education) contribute 3% more to either the state pension plan or the ORP of their choice. This, in essence, was a pay cut and affected actual take-home pay. The United Faculty of Florida filed suit and a judge in Tallahassee ruled that it was an unconstitutional breach of contract. Of course, the state has appealed and the Florida Supreme Court will decide the issue in September. Should the decision stand, the 3% taken from employees paychecks from the past year will be returned with interest. Now, hold off on the Veuve Clicquot....Florida has had a statute on the books for several years that allows the legislature to re-examine the amount the state contributes to employees' pensions. So, though the mandatory withdrawal from employees' paychecks may cease, the amount deposited by the state in pension and ORP funds will decrease.

Louisiana is considering a similar bill, by which the state contribution to pensions will be decreased and the retirement age would be raised to 67. Particularly salient to the issue is the fact that Louisiana does not participate in Social Security, and pension plans are the only source of retirement state employees can count on. According to the Chronicle of Higher Education, Illinois is considering a similar plan to raise the retirement age, cut contributions, and, like Florida, pass the burden to the employees.

And that's why Garcetti made us nervous...

Though it was decided in September, I recently came across a federal case out of Georgia in which a university employee's dismissal was upheld, based on the precedent set in Garcetti.

Some of the other contributors to this blog, particularly Neal Hutchens, have done a great job chronicling developments in higher education related to free speech and the principles borne from the Garcetti v Ceballos decision (a 2006 US Supreme Court case whereby the Court said speech made by a public employee in the course of the duties of his job are not protected).

In Anderson v. BOR Univ Sys of Ga (822 F. Supp. 2d 1342, 2011), the US District Court granted summary judgment to the university after an employee filed suit, claiming retaliation for his dismissal. He was a safety engineer at Georgia Southern University and fired because he repeatedly complained about unsafe environmental condititions at GSU and urged coworkers to make similar complaints. The court in this case looked at Pickering and Garcetti, as well as the fact that he was an at-will employee, and found that these statements were not protected.

Though Garcetti seemingly carved out an exception for higher education (and has been successfully applied in cases like Adams v. UNC Wilmington--a case out of the 4th Circuit in which a faculty member's speech as a pundit was deemed protected), I have not come across cases that deal with the speech of non-faculty university employees. Should this reach the appellate level, it will be interesting to see what standards come forth.

At-will employees comprise a huge sector of those working in higher education today. So should we infer that the director of judicial affairs who challenges upper-level administrators to re-examine alcohol policies would be unprotected? Or skilled craftsmen lobbying for a decent wage?

It is important that courts carve out exceptions for faculty speech, but in "whistleblower" cases such as this one, it is important to remember that non-faculty employees play a huge role in the administration and governance of universities--and should be granted similar protections to speak out on issues affecting our institutions.

50 States, 50 Different Licensure Requirements, 1 Big Headache

            Our readers over the next few months may notice a change at the blog. To maximize the amount of content we provide, some of the contributing editors have split posting responsibilities on a weekly or bi-weekly basis. We hope that this will facilitate more information getting posted for you, our reader. To get my week started off I wanted to talk about a new project that I’ve begun to work on at the University of Kentucky.

            The Department of Education recently issued new guidelines that stated that any institution offering distance education or educational programs outside of its home state has to be licensed by the state higher education licensing agency in any state it operates based on that state’s licensure regulations. Institutions have to be in compliance with these rules by 2014 or face loss of their federal financial aid funding. From a theoretical perspective this is a positive rule. The placing of distance education programs under the scrutiny of state regulators could help eliminate predatory programs that put students into debt without any real educational outcome. However, for traditional non-profit higher education seeking to broaden offerings through the use of technology and clinical programs that have students in practica in other states, this new regulation creates quite a headache. An institution has to research the licensure rules of all the states in which it has students. Some states might not require licensure based on the activity the institution conducts in its borders. Other states might. In addition, each state charges different fees and requires different information for an institution to be licensed. Faced with a mountain of paperwork and the potential for tens of thousand of dollars in fees, institutions will have to make tough decisions about where to get licensed and if they need to pull out of some states for financial reasons.

            The choices institutions will have to make in response to this regulation raise an interesting question about the government’s impact on higher education. If an institution has to pull out of a state because of these new regulations the cause is clearly the regulation itself. Is this right? Should the federal government, even indirectly, be able to have that impact on an institution of higher education? This is an interesting philosophical question and I welcome comments! In the meantime, institutions should, if they are not already doing so, work internally to see where they have students enrolled, what those state requirements are, and should start making decisions about how to approach this task. There are some organizations such as WCET (WICHE Cooperative for Educational Technologies) working on consortia or reciprocity agreements, but they are still in nascent form. Regardless of whether the solution is in a consortium or schools getting licensed on a state-by-state basis, this is an important issue that needs to be addressed in the coming months. At UK we are very much on top of the issue and are taking a systematic, institutionally driven approach to be in compliance by the deadline. If any of our readers have questions about UK’s approach I’d be happy to field them or to send them on to the point person for our effort.