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ACE Asks NLRB to Defer to Supreme Court Decision on Faculty Unionization

July 09, 2012


​In a brief filed July 6​ with the National Labor Relations Board (NLRB), ACE said the board should adhere to a U.S. Supreme Court ruling that faculty members are managerial employees and thus ineligible for collective bargaining.

The brief was one of several filed in Point Park University v. Communications Workers of America (CWA), in which the private Pennsylvania university challenged a 2003 decision by faculty members to be represented by a local chapter of the CWA.

Point Park maintains that because its full-time faculty members are managers, they are not allowed to unionize under the 1980 Supreme Court ruling, NLRB v. Yeshiva University. That decision held that private college faculty members play a substantial role in managing their institution—especially because of their control over the curriculum and course selection—and therefore are ineligible for the collective bargaining rights available to other college employees. (States determine whether public college and university faculty members may unionize.)

Point Park faculty and the organizations filing briefs in their support say the role of “faculty as manager” has declined in recent years and is no longer a relevant designation.

The NLRB originally ruled that Point Park’s full-time faculty members do not fall within the exclusion for managerial employees. However, the U.S. Court of Appeals for the District of Columbia Circuit reversed that decision nearly six years ago, sending the case back to the NLRB for review. The appeals court asked the board to identify and explain which of the relevant factors set forth in Yeshiva are significant in deciding whether faculty members are managers. The NLRB invited third parties to submit briefs addressing that question as well as seven others.

ACE’s brief argues that the Yeshiva decision remains valid and that shared governance is still the general rule at institutions: Research confirms that faculty still have influence over areas such as curriculum, the establishment of teaching standards, academic performance and standards for promotion and tenure. The brief adds that "it bears emphasizing that Yeshiva remains the law of the land" until the Supreme Court overturns it or Congress amends relevant provisions of the National Labor Relations Act.

Joining ACE in the brief are the Association of American Universities, the Association of Independent Colleges and Universities of Pennsylvania, the College and University Professional Association for Human Resources, the Council of Independent Colleges and the National Association of Independent Colleges and Universities.

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