By Darrell R. VanDeusen
In 1980, the Supreme Court held that faculty members at private universities typically cannot organize and form a union under the National Labor Relations Act. NLRB v. Yeshiva University,444 U.S. 672 (1980). Whether this is the view of the Obama NLRB will be vetted in the coming months as interested parties have filed amicus briefs with the Board in Point Park Univ., No. 6-RC-12276, a representation case challenging whether faculty members are managerial employees outside the protection of the Act.
The case started with 2003, when the Newspaper Guild/CWA filed a petition to represent full-time faculty at Point Park. Despite Yeshiva, a regional director found the faculty were employees and ordered an election, which the union won. The University refused to bargain in order to test the validity of certification. The Board then found Section 8(a)(1) and 8(a)(5) violations (Point Park Univ., 344 NLRB 275 (2005)), and the University appealed. The D.C. Circuit remanded, holding that the regional director and Board did not sufficiently explain their decisions in light of Yeshiva. Point Park Univ. v. NLRB,457 F.3d 42 (D.C. Cir. 2006).
In response, by a 3-2 vote (including members there by recess appointment), the Obama Board asked for amicus briefs from interested parties about the continuing validity of Yeshiva. Over dozen groups responded, including the AAUP, the NEA, and the AFL-CIO, as well as business interests. Point Park has challenged whether there was even a quorum when the Board voted on May 22, 2012 to invite the submission of briefs.
The joint AFL-CIO/Newspaper Guild brief states that “[a]fter nine years of litigation, encompassing 20 days of hearings spanning three months, two Regional Director reports running to some 171 pages between them and a trip to the D.C. Circuit, the Board is no closer to determining whether the full-time faculty of Point Park University are ‘managerial employees’ under Yeshiva than it was when the hearings closed in early 2004.” In other words, it’s business as usual at the Board.