Faculty Unionization and the Continuing Contradiction of Yeshiva

It has been just shy of forty-five years since the US Supreme Court issued its 1980 decision in NLRB v. Yeshiva University, holding that most tenure-track and tenured faculty members at private colleges and universities are “managerial employees”—a category excluded from coverage and protection under the National Labor Relations Act (NLRA). As a result of that judi­cial decision, faculty unionization in private colleges and universi­ties ground virtually to a halt. In 2014, the National Labor Rela­tions Board (NLRB) decided the Pacific Lutheran University case, holding that Yeshiva should be interpreted in the context of the increasing corporatization of higher education since 1980. The Pacific Lutheran decision would thus open the door to expanded unionization of private college and university faculty, particularly for the growing ranks of non-tenure-track faculty.

Almost ten years after Pacific Lutheran, has the potential of the board’s decision been borne out? To address the current and potential future of private col­lege and university faculty unionization under Yeshiva and Pacific Lutheran, this article reviews the legal parameters created by both decisions and considers the changing economic, political, and social contexts of higher education, which have increased labor activism and the potential for further organizing on campus.

From Yeshiva to Pacific Lutheran

Any analysis of faculty unionization in private colleges and universities should begin with a comparison to public institutions. Although there is significant faculty unionization in higher education, almost all of it is in the public sector. As of January 1, 2024, according to data reported in the 2024 Directory of Bargaining Agents and Contracts in Institutions of Higher Educa­tion, unionization rates stood at 52 percent among all public two-year college faculty members and at 33 percent among faculty members in four-year public institutions, but only 8 percent of faculty members in private colleges and universities were unionized. This disparity is attributable primarily to the differences in collective bargaining laws applying to public- and private-sector employment. Public university faculty unionize under public-employee collective bargaining laws, which have been enacted in about two-thirds of the states. Private university faculty must rely on the NLRA, which creates the rights of private-sector employees to unionize, bargain collectively, strike, and engage in other protected concerted activity. After the NLRB asserted jurisdiction over nonprofit col­leges and universities in 1970, there was a significant upswing of union organizing among faculty members at private universities. Only a decade later, though, the US Supreme Court’s 5–4 decision in NLRB v. Yeshiva University found that most tenure-track and tenured faculty members at private colleges and universities have “managerial” status, which excludes them from rights to unionize and bargain collectively under the NLRA.

The Yeshiva court held that in “mature univer­sities,” faculty members’ collective autonomy in carrying out their work makes them managerial employees. In particular, the court focused on the collective faculty autonomy exercised over decisions involving the curriculum, teaching methods, grad­ing policies, and student admissions. The court relied to a lesser extent on the faculty role in appointment, tenure, and promotion decisions. The court majority’s justification for its decision was particularly disturb­ing. Reasoning that the only way employees could possess such autonomy would be through authority delegated by their employer, the five-member major­ity concluded that the university administration must have conditioned such delegated authority on the faculty’s aligning with management’s interests. The court concluded that “the controlling consideration . . . is that the faculty . . . exercise authority which in any other context unquestionably would be managerial.” The court found that the university administration “is entitled to the undivided loyalty of its representatives,” placing faculty members in a position similar to “supervisors” who are excluded from protection of the NLRA.

The court majority’s description of faculty members as managerial, however, does not hold up against the weight of the arguments in favor of finding that they are employees under the NLRA. First, the majority recognized that collective faculty authority is exercised through “the governance structure adopted by univer­sities like Yeshiva.” However, the evidence showed the Yeshiva administration’s pattern of taking unilateral actions in complete disregard for shared governance, leading the faculty to further their collective profes­sional interests through the more effective means of unionization. This evidence is consistent with the NLRB’s theory that the Yeshiva faculty were “employ­ees” who exercised collective autonomy in “academic governance” in the professional interest of the faculty, not in the institutional interests of the university. Moreover, as the four dissenting justices recognized, collective faculty authority in academic matters is part of academic freedom, not an expression of align­ment with the university administration. Further, the dissent described the increased divergence of faculty and administration interests as higher education had become big business.

By ignoring the centrality of academic freedom in establishing faculty independence from the adminis­tration, Yeshiva conditions faculty employee status under the NLRA on the faculty’s lack of collective power through shared governance. If collective faculty autonomy over policy matters makes faculty mem­bers managers, then a lack of such collective power becomes a condition of faculty “employee” status. As the AAUP has long recognized, however, shared gover­nance and collective bargaining should be understood as mutually reinforcing forms of collective action to further faculty professional interests independently from the university administration.

Yeshiva put the kibosh on faculty unionization in private colleges and universities. Some private univer­sities continued to bargain collectively with faculty unions that were in place at the time Yeshiva was decided, and membership in these unions accounted for much of the remaining union density in private higher education after the ruling. Then, in 2014, more than three decades after Yeshiva was decided, an NLRB decision kindled hope for a revival of organiz­ing in private colleges and universities even under Yeshiva. In Pacific Lutheran, the board took seriously the Yeshiva court’s statement that context matters in determining employee status of faculty members. The court explained that the factors it relied on to determine managerial status provide “a starting point only, and that other factors not present here may enter into the analysis in other contexts.” As the AAUP highlighted in a 2014 amicus brief to the NLRB, the changing context of increasing corporatization should provide the board with the flexibility to reinterpret the legal standards used to apply Yeshiva. The board focused on this context, identifying the impact of a corporate business model on the university in its decision: “Indeed our experience applying Yeshiva has generally shown that colleges and universities are increasingly run by administrators, which has the effect of concentrating and centering authority away from the faculty.” The reality of diminishing faculty power led the NLRB to adopt a new standard to test whether faculty members are actually “managerial” as contemplated by the Yeshiva decision. Specifically, a college or university claiming that faculty members are managerial cannot rely on “paper authority” or make “conclusory assertions that decisions or recommen­dations are generally followed.” The administration must prove that faculty members exercise “actual authority” or that faculty “recommendations must almost always be followed by the administration” or “routinely become operative without independent review by the administration.” The administration’s burden to prove faculty “authority in fact” will apply, in particular, to “areas of policy making that affect the university as a whole,” defined as academic programs, enrollment management, and finances.

Pacific Lutheran created the potential for expanded unionization of private college and university fac­ulty, particularly among the non-tenure-track faculty whose ranks have grown enormously in the corporate university. Given the widespread practice of excluding faculty members on contingent appointments from participation in shared governance bodies, it would seem highly unlikely that university administrations could meet the burden of proving that such faculty members are “managerial” under either Yeshiva or the Pacific Lutheran standard that the NLRB used to interpret Yeshiva. Severely weakened shared gov­ernance in the corporatized university would seem to make it difficult for an administration to prove even that tenure-track and tenured faculty members have “actual authority” over university policymak­ing as described in Pacific Lutheran. In the age of corporatization, college and university governance has largely taken the form of a top-down, unilateral imposition on the faculty of policies created by the administration.

An expansion of “employee” status for faculty members under the Pacific Lutheran standard would, of course, be desirable in leading the way to more faculty unionization in private universities. Even this victory would be partial, though, as it is built on the underlying contradiction of Yeshiva, which conditions statutory rights to unionize and bargain collectively on the lack of other collective faculty governance power. Thus, under the best-case scenario as developed by Pacific Lutheran, faculty members can successfully claim protection as employees under the NLRA only by proving their collective weakness resulting from the absence of shared governance for any faculty members; the exclusion of a category of faculty from membership in shared gover­nance bodies, as is often the case for non-tenure-track faculty; or a pattern of unilateral administrative actions taken in disregard of shared governance bodies.

Pacific Lutheran's Impact

There is evidence that Pacific Lutheran has provided some impetus and support for increased unionization. In September 2024, the National Center for the Study of Collective Bargaining in Higher Education and the Professions published its 2024 Directory of Bargaining Agents and Contracts in Institutions of Higher Educa­tion, with data on 902 collective bargaining units in higher education through January 1, 2024. The direc­tory includes collective bargaining agreements covering tenured and tenure-eligible faculty, non-tenure-track faculty, and graduate student employees at public and private nonprofit colleges and universities. The analy­sis of the data by the directory’s authors, William A. Herbert, Jacob Apkarian, and Joseph van der Naald, shows significant union density in higher education institutions, at a 27 percent rate of faculty unioniza­tion, which reflects a 7.5 percent increase since 2012, when the center compiled its previous directory. As the study notes, since the number of faculty employed during that same period grew by 2.3 percent, there was a net 4.5 percent increase in the faculty unioniza­tion rate.

The center’s analysis shows that the distribution of faculty union representation across institutions reflects the ongoing impact of Yeshiva on faculty members in private-sector institutions, with union density in four-year private nonprofit institutions at only 8 percent. What is remarkable, though, is the high growth rate of faculty unionization in private institutions, at 56 percent since 2012, as compared with a 4 percent growth rate in public university faculty unionization in that same time period. Further, since 2012, “the majority of newly certified faculty bargain­ing units has been in the private sector, nearly doubling the total number of private sector units,” with almost three-quarters of those new units composed of only non-tenure-track faculty members.

As long as Yeshiva remains in place, the positive impact of Pacific Lutheran will be limited largely to faculty members holding contingent appointments, because university administrations will still be in a position to argue that shared governance bodies provide sufficient collective autonomy to make tenure-track and tenured faculty “managerial.” This was the case when a regional director of the NLRB used the Pacific Lutheran standard to conclude that tenure-track and tenured basic-science faculty members at the Tufts University Medical School are managerial based on their “authority [on committees] in the areas of academic programs, enrollment management, finances, academic policy, and personnel policy, coupled with their status as tenured and tenure-track faculty.”

The board’s approach in Pacific Lutheran was more firmly established by the approval of the powerful DC Circuit Court of Appeals, which in a 2019 decision generally upheld the NLRB’s Pacific Lutheran test for determining managerial status. However, the court did limit one aspect of that test in a way that may strengthen university employers’ claims that non-tenure- track faculty members are managerial. In the case of University of Southern California, the NLRB applied the Pacific Lutheran test and found that full-time and part-time non-tenure-track faculty members in two colleges within USC were employees, not managers. To reach this conclusion, the board relied on the fact that the non-tenure-track faculty constituted a minor­ity of the members on university committees, which meant that they did not have “effective control” over those committees. On appeal by USC, the DC circuit’s decision in 2019 approved the Pacific Lutheran frame­work, including its “high bar for effective control[, which] is necessary to avoid interpreting the managerial exception so broadly that it chips away at the NLRA’s protections.” However, the court rejected the NLRB’s use of the non-tenure-track faculty’s minority status on a faculty governance committee to determine that the “subgroup” of non-tenure-track faculty members did not exercise “effective control” on the faculty com­mittee. Instead, the court applied a two-pronged test, stating that “the focus should be [on] whether the faculty body writ large exercised effective control, and whether the particular subgroup seeking certification was included in that faculty body.” In relation to the latter inquiry, the board could consider whether the non-tenure-track faculty members have no actual mana­gerial role because of a substantial difference in the interests between them and the tenure-track and ten­ured faculty members on the committee or because of low participation on the committee by the non-tenure-track faculty members resulting from their “tenuous employment relationship.” In its Elon University decision in 2021, the NLRB applied this two-pronged test to determine whether a “subgroup” of faculty members were managerial. The board decided that the non-tenure-track faculty members in that case were not managerial based on the second prong of the test, finding that they “are not structurally included in the Employer’s managerial bodies.”

With this restriction on the application of the Pacific Lutheran test, the DC circuit and, subsequently, the NLRB may have handed university administrations a way to argue more plausibly that non-tenure-track faculty members are managerial if they participate to any degree in shared governance. Thus, the court’s approach both respects and weakens the Pacific Lutheran test for managerial status. On a positive note, the DC circuit explicitly upheld the NLRB’s “high bar” that the university administration must meet to estab­lish that faculty members are managers excluded from the NLRA. This maintains the Pacific Lutheran stan­dard, which requires the university administration to prove that a faculty governance body exercises “effec­tive control” over policy decisions. However, college and university administrations may attempt to avoid a finding of non-tenure-track faculty “employee” status by appointing a small number of non-tenure-track faculty members to a faculty governance committee. The union will then have to prove that the non-tenure-track faculty members’ participation does not give them “effective control” in policy decisions. As a result of these legal hurdles, pursuing unionization through the NLRB may entail an extended uphill legal battle even for faculty members on contingent appointments.

Future Potential for Unionization

Current economic, social, and political conditions and recent external attacks on higher education—including legislative edicts restricting curriculum and teach­ing and congressional inquiries attacking faculty and undermining academic freedom—have added to the harsh impact of ongoing corporatization. As a result of the labor model of the corporate university, more than two-thirds of US faculty members now hold con­tingent appointments, AAUP analysis of federal data shows. At the same time, top-down management by corporatized administrations has weakened collective faculty governance in bodies such as faculty senates.

These repressive conditions, however, have spurred increased faculty organizing and activism and cre­ated a context for new alliances between faculty and students. In public colleges and universities, faculty and graduate employee unions have engaged in strike activity with demands for economic, racial, and gender equity. In private colleges and universities, increased labor activism and unionization has been aided in some important ways by expanded legal interpreta­tions of the NLRA. The hard-won legal recognition of graduate teaching and research assistants as employ­ees under the NLRA has led to recent growth in the unions representing these workers. Overcoming the legal hurdles created by Yeshiva, faculty members on contingent appointments have increasingly succeeded in forming unions at private institutions, supported to some extent by the board’s Pacific Lutheran decision. And at a number of private colleges, faculties have pushed for voluntary recognition of their unions—efforts that recently succeeded at Bennington College and the California College of the Arts.

The current hard political times for higher educa­tion are a reminder that organizing is essential to the fight against censorship and economic, racial, and gen­der inequality—and to the fight for academic freedom, equity, democratic governance, and the public mission of higher education. Faculty members must continue organizing for these goals however they can, including through shared governance, AAUP advocacy chapters and collective bargaining chapters, and other social justice organizations. Faculty activism is increasing in all these types of organizations as academic workers push back against institutional and political repression and inequality.

These are not mutually exclusive forms of organiz­ing; in many cases, they can be mutually beneficial in ways that strengthen the potential of both shared governance bodies and faculty unions and build new alliances. Organizational forms can also evolve, as when an advocacy chapter builds sufficient power to successfully demand that a university voluntarily rec­ognize and bargain collectively with the chapter as a faculty union. Taking this broader view of organizing and unionization can put legal obstacles such as those posed by Yeshiva into perspective. With or without support from the law, faculty members can continue to organize to accomplish their collective goals. We should continue to fight for positive interpretations of the law that support the right of all faculty members to unionize and bargain collectively. But the legal obstacles should not be viewed as insurmountable bar­riers to organizing toward our common goals.

Risa L. Lieberwitz is professor of labor and employment law in the Cornell University School of Industrial and Labor Relations. Her email address is [email protected].