Mort Tenzer, Political Science (ret.), University of Connecticut; Chair,Connecticut AAUP Committee R (Government Relations)
Many current faculty do now know that nearly forty years ago the National Labor Relations Board decided that faculty in private universities were protected by the National Labor Relations Act and were entitled to enter collecctive bargaining with their employers. Public university faculty were governed by the labor laws of their states, and many states, except in the South and Rocky Mountain West, had authorized such bargaining. In the decade after the NLRB's decision collective bargaining spread widely in the country and by 1979 eighty private and three hundred twenty public coleges and universities had adopted collective bargaining and some 130,000 faculty were unionized. This broad movement came to a sudden halt as a result of the U. S. Supreme Court's decision in NLRB v.Yeshiva University (1980). The court held that faculty were essentially mnagerial employees and thus not covered by the provisions of the act that assured organizing rights to all other types of employees. The court's decision, called the worst labor law decision by one Yale Law School proofessor, ignored the specific provision in the act that accorded "professionals" bargaining rights; it found that the provision barring "supervisors" from unions (to preclude "company unions") applied to faculty who had some managerial responsibilities in some institutions. Differences in rank were ignored as well: certainly instructors do not have the same roles in deciion-making as full professors, and yet the entire category of faculty were thus denied their rights.
The results of the decision were disastrous for the interests of faculty to negotiate their wages, salaries, and conditions of employment. Most private colleges that had collective bargaining agreements terminated them and the bargaining process as soon as possible and engaged in ruthless union-busting tactics at many places, such as the University of Bridgeport and Boston University. Organizing at public institutions slowed considerably as well, since many faculty seemed to believe that the Supreme Court had decreed that collective bargaining was inappropriate on all campuses.
The AAUP's organizing momentum was particularly affected because the NEA and AFT, whose bases were K-12 school teachers, had limited their organizing efforts mostly to public colleges and universities. The AAUP struggled vigorously but vainly in the early years after Yeshiva to have Congress overturn the decision. The former head of the NLRB, replaced by the Reagan administration, spoke at the AAUP annnual meeting in 1981 and pointed out that all that needed to be done was to have Congress add a phrase to the law where "supervisors" are denied bargaining rights that would say, "faculty in higher education shall not be considered supervisors or managers for the purpose of the Act." Despite the reluctance of the AFL-CIO to re-open the act for fear that some language hostile to labor's interests would be added, and the relative indifference of the NEA and AFT, we managed to get a bill introduced and a hearing held by the House of Representatives Post Secondary Subcommittee of the Labor and Education Committee. All the testimony favored our proposal to add the needed phrase, but our friends in both House and Senate advised us that prospects for passage were dim, and that Reagan would probably veto the bill if it did pass. The issue was allowed to die over the next decades as Congress and the Executive became even more conservative.
The climate of opinion about labor has changed in very recent years. The election of 2006 brought Democratic majorities in Congress unhindered by large numbers of southern Democrats who had joined Republicans to frustrate labor legislation in the past. Encouraged by the new majority, labor unions began pressing for their top priority, the Employee Free Choice Act, which would greatly enhance union organizing. The EFCA passed the House of Representaties last year 241 to 185, but failed to achieve cloture in the Senate by a vote of 51 to 48 in favor. Sixty votes are needed to break a "silent" filibuster, and only one Republican, Arlen Specter of Pennsylvania, voted for EFCA. With an enlarged majority in the Senate this year and the backing of the Obama administration-in contrast to the opposition and potential veto by President Bush - prospects for passage of EFCA have greatly improved.
Isn't it time to renew efforts to overcome the harmful effects of the Yeshiva decision on faculty rights and interests? We should first secure the agreement of the NEA and AFT to join in the effort. They have now had a couple more decades of dealing with higher education issues and are more sensitive to its concerns. A united front is necessary if Congress is to act in this area. The major labor unions promoting EFCA may be too far along in their efforts to agree to amend their bill at this point, but a friendly Senator might add a rider with our clause if the bill comes to the floor for debate and is not blocked by the cloture rule again. If this is not possible, we might return to the traditional method: find a Representative or Senator to introduce the bill, get co-sponsors, have hearings held, and see if the bill can pass on its own merits. There is a more liberal Congress than there has been since the days of LBJ, and we should take advantage of the opportunity to overrcome the obstacles to effective faculty organizing that were created by the Yeshiva decision.
