http://chronicle.com/daily/2000/06/2000061902n.htm
NLRB Lets Stand Decision Allowing Professors at a Private College to Unionize By COURTNEY LEATHERMAN
The National Labor Relations Board has let stand a decision by a regional labor official permitting professors at Manhattan College to bargain collectively, signaling a possible shift by the board toward favoring faculty unionization at private colleges.
But the same labor experts who see such a shift caution that a 20-year-old U.S. Supreme Court decision that involved Yeshiva University and that effectively squelched bargaining at private colleges still remains in force.
Ironically, the issue is moot for Manhattan's faculty, which voted overwhelmingly against collective bargaining. Faculty members voted 76 to 47 against the union, an affiliate of the New York State United Teachers and the American Federation of Teachers. The ballots, which were cast in December but impounded during the college's appeal, were counted last Thursday.
"The N.L.R.B. was with us all the way," said Robert (Chris) Kiernan, an English professor at Manhattan and secretary of the union, the Manhattan College Faculty Coalition. ""It's my own faculty that rejected it. We always knew that was a possibility, and it's such a terrible irony."
But not terribly surprising, said Brother Thomas J. Scanlan, president of Manhattan, who said he was "pleased with the outcome of the vote." As for the labor board's decision, he said: "It seems to me everyone at the N.L.R.B. strives to narrow the application of Yeshiva law, and that's why very frequently it ends up in court -- where it's then reasserted."
With the union's loss, the issue of collective bargaining at Manhattan won't reach the courtroom. But the big legal questions the case raised are what many labor experts and some professors at other private colleges were focusing on anyway, and the board's order keeps them alive. (See an article from The Chronicle, January 21.)
Some union organizers believed that the case could be a test for circumventing the 1980 Supreme Court case National Labor Relations Board v. Yeshiva University. The court found that professors at Yeshiva were managers and, therefore, could not bargain collectively. The decision was specific to the facts in the Yeshiva case, but over the years, the N.L.R.B. routinely found that faculties at any private college that came before it were managers.
Only the Supreme Court could overturn Yeshiva, but union organizers had hoped that cases like Manhattan would give the N.L.R.B. opportunities to see private-college faculty in a new light. In an 81-page decision, Daniel Silverman, the New York regional director, did. He concluded that Manhattan professors were "advisory," not managerial. Manhattan college administrators appealed his decision to the full board, saying that he had misinterpreted the facts in their case and had misinterpreted Yeshiva.
A three-member panel of the labor board disagreed. On June 9, the N.L.R.B. panel issued a one-sentence order denying the college's appeal of the regional-director's decision, finding that "it raises no substantial issues warranting review."
Issuing an order and not elaborating lets the board "have it both ways," said Nicholas Trott Long, a lawyer representing the University of Great Falls in a similar case pending before the labor board. By leaving intact the regional director's decision, he explained, the board suggests that its standards for judging such cases have changed. But by not explaining its decision, it keeps up the appearance of adhering to Yeshiva's doctrine of judging the facts of each case individually.
Mr. Long would not speculate about how the board's order might affect his case. But he said: "If one were a proponent of faculty organizing, the regional director's decision would certainly be encouraging. It finds that the faculty were not managerial, notwithstanding substantial evidence suggesting that they were."
While several union organizers were pleased with the decision, none were willing to call it precedential -- partly because the cases are so fact-specific and partly because the board said nothing in its order.
"If the N.L.R.B. issues a decision where they discuss the merits of a regional director's decision, that's got more weight," said Michael Mauer, a staff member in the American Association of University Professors' organizing department. "And if the federal court of appeals rules, that's got even more weight," he said. "So it's going to have to be some other case further down the road to give us something more definitive."
But Larry Gold, director of the A.F.T.'s higher-education department, thinks that's shortchanging the significance of the board's decision. "If the Supreme Court reversed Yeshiva, it would be best. If the courts were affirming the board, it would be better," he said. "But we faced many years when it was rare as could be that the board would accept arguments that private-college faculty didn't fall under the rubric of Yeshiva. The fact that it is now, is a positive thing."
Organizers at Seton Hall University who have been monitoring the Manhattan case were feeling positive about the order. Chris Berzinski, a field representative for the New Jersey Education Association, called the labor board's order "encouraging for the process under way at Seton Hall."
That case is still pending before a regional director of the labor board. And on June 8, the organizers' argument that the state Constitution guarantees them bargaining rights failed for a second time in court. The New Jersey Education Association, which represents the Seton Hall union, plans to appeal the case to the state Supreme Court.