Collective bargaining and the professoriate: What the law says

AS COLLEGE AND UNIVERSITY PROFESSORS, WHO ARE we? What do we have in common with each other, what makes us different from those who earn their living in other ways, and where do we fit in the social hierarchythat implicit ordering that some call "social class" and others, "social status"?

In the United States, these questions are not entirely personal or social; they are also legal. The law often draws lines between groups of people in setting out the eligibility rules for public rights and programs. In so doing, the government commonly uses criteria, such as occupational groupings or income levels, that are salient to Americans' conception of social class. When eligibility lines parallel class lines, the legal system becomes a locus for debates over class.l In areas ranging from First Amendment law to the law of collective bargaining, professors have taken a public stand on the nature and status of professorial work. For some purposes, professors present themselves as having little in common with ordinary workers. In the First Amendment sphere, for example, professors have invoked the ideal of academic freedom to gain protections for their speech and beliefs that are the envy of other workers. But for other purposes, professors have downplayed some of the unique features of academic life in order to safeguard their legal rights.

That effort failed when it came to collective bargaining rights in the private sector. In 1980 the U.S. Supreme Court held in National Labor Relations Board v. Yeshiva University that the degree of control that Yeshiva's full-time faculty exercised over academic matters made them "managerial" employees and excluded them from all rights under the federal law of collective bargaining.2 That decision has been widely followed: post- Yeshiva, the typical college or university faculty at a private institution has been held to have managerial powers.

Why did the Court classify professors as managers-which is hardly how they see themselves? Did the Court do something unusual in restricting professors' bargaining rights in this way? Or were professors merely the unlucky vanguard of what has become a more sweeping judicial restriction of collective bargaining rights? 3

Supervisors, Professionals, and Managers

WITH FEW EXCEPTIONS, COLLECTIVE BARGAINING FOR private-sector employees is governed by the National Labor Relations Act (NLRA), a statute enacted in 1935 and amended in important ways in 1947. (State, county, and municipal employees are covered by state law rather than the NLRA.) Section 7 of the NLRA gives employees two vital workplace rights: the right to form and join labor unions for the purpose of collective bargaining and the right to engage in other concerted activity for mutual aid and protection. To have these rights under the NLRA, one must be an "employee." The 1935 statutory definition was broad-within covered industries, no group of employees was excluded.

But in America, statutes do not always mean what their plain language says. The president of the company is an "employee"-he receives a salary and can be fired by the board of directors. Did Congress in 1935 really mean to say that the president of the company could join a union and bargain with the board of directors? If not, then the word employee must carry with it, at least in this context, a more complex meaning than meets the untutored eye.

The use of employee in the collective bargaining context could be said to imply that employees negotiate against some other group of people who are not employees-call them "management." Indeed, members of Congress were especially concerned that the boundaries between "labor" and "management" be respected under the statute. A system of labor relations could be designed in several ways to deal with this problem of boundary maintenance. The law could simply deny certain upper-level employees the right to bargain, and in so doing, legally declare that these employees must align themselves with the interests of their superiors in company management. Alternatively, the law could allow upper-level employees to negotiate with management on their own behalf, but take steps to ensure that they remain allied with upper management in any conflicts between management and ordinary workers. For example, the law could deny upperlevel employees the legal right to honor the picket lines of striking ordinary workers. The first alternative sees upper-level employees as having a single, fixed status: they are part of management. The second alternative sees upper-level employees as having a dual status: they are workers in relation to management and managers in relation to workers below them in the social hierarchy. The task of interpreting the NLRA is in the hands of the National Labor Relations Board (NLRB), the administrative agency charged with enforcing the statute, and ultimately of the courts. Which of these alternatives would they follow? When industrial foremen tried to organize in the 1940s, the NLRB had a hard time deciding whether supervisors should be permitted to engage in collective bargaining. If supervisors were part of management, the thinking went, then allowing supervisors to bargain would seem to undermine the boundaries between labor and management. But did lower-level supervisors have sufficient power to justify denying them the right to bargain? If some supervisors can bargain and others cannot, where do you draw the line? The NLRB waffled for several years. When the question reached the Supreme Court in 1947, the Court held in favor of supervisors' organizational rights.4 The decision was close (5 to 4), and barely survived long enough for its print to dry. A conservative Congress overrode a presidential veto in 1947 to enact the Taft-Hartley Act, one of the provisions of which was a clear exclusion of supervisors from protection under section 7 of the NLRA. Congress adopted the single-status alternative: supervisors are deemed part of management, plain and simple.5

Taft-Hartley also made special provision for "professionals." Like ordinary workers, professionals were accorded the right to organize and engage in collective bargaining. But professionals were given greater rights to determine with whom they would organize. The NLRB generally has much latitude in selecting bargaining units-the actual groupings of employees who bargain collectively with the employer. The NLRB may choose any unit in which it deems the employees to have a "community of interest."6 But not for professionals. Under Taft-Hartley, professionals are given the right, by majority vote, to opt out of any proposed bargaining unit in which professionals and nonprofessionals are mixed. In exercising this right, professionals essentially determine their own status: they, rather than the NLRB's investigators, determine whether their working conditions have become sufficiently debased to break down the social lines that generally separate exalted professionals from ordinary workers.

After Taft-Hartley, one would have thought that any group of employees that Congress had chosen not to exclude from the statute could safely enjoy its section 7 rights. Not so. Statutes like TaftHartley, which aim to amend previous legislation, generally concentrate on reversing administrative or judicial interpretations of a previous statute with which Congress disagrees. Before the passage of Taft-Hartley, the NLRB had excluded "managers" from statutory coverage. Managers were employees who had authority over aspects of production and company administration, but who did not supervise employees. If the problem with supervisory bargaining was that it breached the solidarity of the management team, was not the same true of bargaining by other agents of management? Taft-Hartley said nothing about the bargaining rights of managers, but its silence is ambiguous. Silence might have meant approval of the NLRB's practice of forbidding bargaining by managers; it might have meant disapproval; or it might have meant neutrality. Ultimately, the Supreme Court decided the question. More than two decades later, the Court held-again by a 5 to 4 vote-that managerial employees, like supervisors, have no right to organize.7 The case involved buyers in a corporate purchasing department-fairly low-level managers-and thus made clear that the managerial exemption would reach deep into the ranks of administrative workers. Multiple Roles of Professors

IN THIS LEGALLY MANDATED CLASSIFICATION SCHEME what are college and university faculty? Are we ordinary workers? Supervisors? Managers? Professionals? The least secure among us-part-time, adjunct, and untenured faculty members in institutions that rarely grant tenure-might see ourselves as ordinary workers. But most of us see ourselves as professionals. To use the language of Taft-Hartley, we do work that is "predominantly intellectual and varied in character as opposed to routine"; our work involves "the consistent exercise of discretion and judgment in its performance," such that "the output produced or the result accomplished cannot be standardized in relation to a given period of time"; and our work requires "knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning."

That would be all well and good if the only choice the law offered was that between treating us as professionals or treating us as ordinary workers. But what about the possibility that professors are supervisors? After all, professors in many fields hire and fire technical staff and supervise graduate teaching and research assistants. We may see the supervisory work we do as merely a means of accomplishing our highly professional research and teaching goals. But if we kept accurate time sheets, we might be surprised at how much of our time goes into supervisory activities. And what about the possibility that professors are managers? Yes, we like to think of ourselves as primarily teachers and scholars. That is what we are trained for, and that is what we entered the academy to do. But what about all that time we spend reading admissions applications and hiring and tenure files? And what about the time we spend preparing for and attending faculty meetings and meetings of university-wide committees and governing bodies? Even assuming our teaching and research roles define us as professionals, can we not also be supervisors and managers? And if we are professionals who also manage and supervise, which legal rule applies to us-the one that allows us to bargain, or the ones that do not? From what standpoint should that question be answered? Based on the activities on which we spend most of our time? Based on the activities that constitute our main value to our institutions? Based on the activities that we view as most significant? Or based on some other criteria?

Faculty as Managers

THESE QUESTIONS DID NOT ARISE UNDER THE NLRA UNTIL 1970, when for the first time the NLRB determined that higher education's effect on interstate commerce was important enough to warrant the exercise of NLRB jurisdiction over colleges and universities. The NLRB deemed professors to be professionals and began recognizing faculty bargaining units. But the experiment with private-sector faculty unions was a short one.

In 1980 the Supreme Court ruled in the Yeshiva case, another 5 to 4 decision, that professors can be simultaneously professionals and managers-and that their status as managers controls and excludes them from the right to bargain.8 The Court reached this conclusion by looking only at the faculty's role in management:

The controlling consideration in this case is that the faculty of Yeshiva University exercise authority which in any other context unquestionably would be managerial. Their authority in academic matters is absolute. They decide what courses will be offered, when they will be scheduled, and to whom they will be taught. They debate and determine teaching methods, grading policies, and matriculation standards. They effectively decide which students will be admitted, retained, and graduated. On occasion their views have determined the size of the student body, the tuition to be charged, and the location of the school. When one considers the function of a university, it is difficult to imagine decisions more managerial than these. To the extent the industrial analogy applies, the faculty determines within each school the product to be produced, the terms upon which it will be offered, and the customers who will be served.

Given the Court's approach, it would not have made any difference whether each faculty member spent only a fraction of his or her time involved in these managerial matters. The Court saw professors only in administrative terms, and characterized them as "representatives" of their institutions, bound to them by a duty of undivided loyalty. To make matters worse, managerial status is far from exalted; the Court classified professors as legally equivalent to buyers in a corporate purchasing department. The picture the Court painted thus bears little resemblance to how academics see themselves-as teachers and scholars who shoulder incidental and often unwelcome administrative responsibilities.

That the Court's image of the professoriate so deviates from our perception of ourselves should come as no surprise, considering the Court's approach. The Court did not see itself as having the job of painting an accurate picture of the nature of professorial work taken as a whole. Its narrow focus was on the managerial interests of the university as an institution-more specifically, on the university's need for the complete loyalty of those who play a role in its management. All that was relevant to the Court about faculty work was the contribution professors make to managing the university. Yeshiva conceded that faculty members are professionals but argued that the professional status of professors is legally irrelevant. The Court agreed. Under the Yeshiva doctrine, when professionals are also managers, their managerial status alone determines their legal status.

Totality of Professors' Work

THE DISSENTING OPINION IN THE YESHIVA case took a more comprehensive view of the totality of professorial work. The dissent observed that management activities play only a small role in academic life-as reflected in the fact that "[f]aculty members are judged by their employer on the quality of their teaching and scholarship" rather than on the quality of their administrative work. Furthermore, the dissent argued that professors participate in university governance in a manner that distinguishes them from, rather than identifies them with, nonfaculty managers:

The premise of a finding of managerial status is a determination that the excluded employee is acting on behalf of management and is answerable to a higher authority in the exercise of his responsibilities. Yeshivas faculty, however, is not accountable to the administration in its governance function, nor is any individual faculty member subject to personal sanction or control based on the administration's assessment of the worth of his recommendations. When the faculty . . . participates in university decision making on subjects of academic policy, it does not serve as the "representative of management."

Moreover, the dissent argued that the faculty exercises its power and influence purely in "its own professional interest." The dissent thus saw professors in the same light as other professionals. It just so happens that faculty members exercise their professional judgment across a wider range of institutional activities. And professors have nothing in common with managers, because their only duty is to themselves.

While the dissent correctly recognized that faculty members do not act as the agents of university administrators, it fell short of capturing the nature of faculty governance. Even if the faculty comes into the governance process concerned mostly with "its own professional reputation," it often leaves the process understanding that its reputation rests on the fiscal and legal health of the university-matters the dissent claimed as the exclusive responsibility of pure administrators. And the faculty, even when it disagrees with the administration, purports to be speaking in the interest of "the university" (which is, after all, the employer) rather than in the narrow self-interest of the faculty alone.

The dissent also erred in claiming that faculty members bring purely "professional" expertise to governance tasks. When a biology professor reviews candidates for tenure within her own department, she uses much the same professional expertise that she relies on in her academic work. The same cannot be said when members of a law school faculty form a committee to design a new building, or when members of a liberal arts faculty sit on a university-wide committee to revise the institution's employee benefits structure. Faculty members are appointed and retained for their particular academic expertise. But in the course of their careers, they are asked to develop new skills-including some generic administrative skills.

Furthermore, the dissent overstated the case when it argued that the university administration exercises no control over faculty administrative activity because participation in faculty governance goes uncompensated. The power faculty members are least likely to wield is the authority to set their own salaries and perquisites. Faculty members cannot (or at least should not) be fired for taking unpopular administrative positions. But punishment through the paycheck or through more subtle forms of institutional reprisal happens, though it is hard to detect and to deter. At an institution like Yeshiva, then, faculty members are involved in the enterprise of university management. That we call our role "governance" rather than "management" reflects both real differences between collegial and bureaucratic organizations and real gaps between the administrative roles of faculty and nonfaculty administrators. But our reluctance to be legally categorized as managers does not stem mostly from these differences. It stems, instead, from the fact that we see our administrative work as a necessary but undesirable appendage to our real professional work as scholars and teachers. Yeshiva feels wrong because it permits the managerial tail to wag the professional dog.

The Yeshiva decision did not hold that all or even most university faculties have sufficient managerial authority to render them ineligible for section 7 rights. Indeed, in some respects the Yeshiva faculty seemed to exercise far broader control than is common for university faculties. The NLRB and the courts thus seemed to have room to distinguish other cases from Yeshiva based on their facts. Instead, however, the NLRB and the lower courts have applied the holding of Yeshiva to all but the least collegial colleges and universities. And this trend has not bent to changes in higher education. As the Yeshiva dissent perceived in 1980, market pressures are causing universities to become "big businesses." For example, university medical centers now face the competitive threat of managed health care, and the business community plays a growing role in shaping the agenda of scientific research at universities. Finally, the Yeshiva decision has had influence well beyond the confines of the NLRA. State statutes exclusively control labor relations in public universities, and neither state courts nor state legislatures are bound to follow Yeshiva's analysis. But in some instances, they have done so, and excluded faculties from bargaining rights as a result.9

Yeshiva and Other Professionals

IF IT IS ANY CONSOLATION, WE ARE NOT ALONE. YESHIVA'S influence has reached beyond university professors to other categories of professionals-for example, lawyers employed as public defenders in Illinois.10 Indeed, we are sitting pretty compared to the latest victims of the Supreme Court's restriction of bargaining rights: licensed practical nurses In 1994 the Court held in NLRB v. Health Care dr"Retirement Corporation of America-yet another 5 to 4 decision-that licensed practical nurses are supervisors, and therefore lack bargaining rights, if they direct the activities of less skilled employees (nurses' aides, for example) in the course of patient care.11

The Yeshiva decision was dispositive in the nurses' case by analogy. Just as the Court rejected the claims in Yeshiva that professors engage in university governance in their own interest and exercise professional rather than managerial judgment, the Court rejected the nurses' claim that they supervise patient care (rather than supervising employees in the conventional sense) and exercise professional rather than supervisory judgment in doing so. Indeed, the magnetic pull of the Yeshiva decision was so strong that it overcame the fact that in Yeshiva itself the Court had observed approvingly that in the health-care setting the NLRB "asks in each case whether the decisions alleged to be managerial or supervisory are `incidental to' or `in addition to' the treatment of patients."

The disqualification of professionals who supervise other employees in the course of performing their professional work poses a significant threat to the unionization of all professionals. Doctors, whose encounters with managed care have drawn them to the labor movement in increasing numbers, routinely supervise nurses and paraprofessionals in caring for patients. Lawyers routinely supervise paralegals and secretaries; architects supervise draftspeople; engineers supervise technicians. As demands of economy and efficiency are made on professionals, they have no choice but to delegate work to nonprofessionals. The norms of professional conduct demand that professionals retain ultimate control over their product and therefore supervise those to whom they delegate work. Under these circumstances, professionals are also supervisors almost by definition. For this reason, the logic of the Court's decisions in the Yeshiva and Health Care cases threatens to make section 7 rights for professionals the exception rather than the rule.

Professors are thus hardly unique in their lack of collective bargaining rights. As the NLRB and the courts extend the Court's Health Care approach to other groups of professionals, professors will probably be among the least aggrieved of professionals. Whatever one calls faculty involvement in institutional governance, professors at least have a voice in managing their institutions. The same can hardly be said of nurses and most other professionals.

Bias Toward Management

I HAVE TAKEN CARE TO POINT OUT THAT ALL OF THE KEY Supreme Court decisions that have influenced the legal status of the professoriate were decided by votes of 5 to 4, over vigorous and cogent dissents. I do not mean to suggest that 5 to 4 decisions are less binding than 9 to 0 decisions, or that the Court routinely reevaluates 5 to 4 decisions when its membership changes. Why, then, harp on the fact that all of the cases that brought us to this juncture were decided by a single vote? Because the Court's decisions reflect the cultural difficulty of answering the questions with which this article began-particularly in the context of legal decision making. Should professors be treated as professionals or as managers? If our self-image and the way others in our society perceive us are the criteria, clearly we are professionals. But the law need not take this approach. It is perfectly legitimate for legal decision makers to answer such questions with reference to the purposes of a statute-even when the result is culturally jarring. But when the legal answer and the cultural answer so clearly conflict-as they do when one asks whether professors are professionals or managers-it behooves those in the legal system to think hard about whether their conclusion is in fact dictated by the purposes of the statute. Here, it is not.

The cases I have discussed focus on the conflict between collective bargaining and management's prerogative to run its enterprise without undue interference with core management functions. But protecting management interests is not the purpose-or at least not the sole purpose-of federal labor law.

The law also seeks to ensure that employees who have been granted the right to organize be permitted to exercise that right.l2 When the Court declared professors managers and nurses supervisors, the management role of these employees was placed in the forefront of the analysis-suggesting that the Court was treating the preservation of management prerogatives as the statute's dominant concern. Had the Court permitted protection of employee rights to be its dominant concern, its decisions would have been far more harmonious with cultural understandings of the work of nurses and professors. And had the Court seen the statute as having dual purposes that must be held in equipoise, it would have done more to work out a compromise-perhaps by adapting section 7 rights to the circumstances of professionals who supervise or manage, instead of eliminating those rights altogether. When conflicting statutory purposes are resolved in a way that needlessly causes social and legal identities to conflict, something has gone wrong. And so it has in the case of collective bargaining and the professoriate.

Notes

1. An example of this dynamic is laid out in my forthcoming article, "Engineering the Middle Classes: Class Line-Drawing in New Deal Hours Regulation," Michigan Law Review 96, no. 8 (1998). See also my "Class-Based Affirmative Action: Lessons and Caveats," Texas Law Review74 (1996): 1847.

2. National Labor Relations Board v. Yeshiva University, 444 U.S. 672 (1980).

3. The best extended treatment of the issue of professorial bargaining is found in two articles by David M. Rabban: "Distinguishing Excluded Managers from Covered Professionals under the NLRA," Columbia Law Review 89 ( 1989): 1175, and "Can American Labor Law Accommodate Collective Bargaining by Professional Employees?" Yale Law Journal99 (1980): 689.

Packard Motor Car Co. v. NLRB, 330 U.S. 485 (1947). 5. Under Taft-Hartley, the term supervisor is defined as follows: "The term 'supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, dis

charge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of merely routine or clerical nature, but requires the use of independent judgment." 29 U.S.C. section 152 (11). 6. In practice, this power is exercised by accepting or refusing a bargaining unit proposed by a union.

NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974).

8. The Court's opinion was written by Justice Powell, who also wrote the majority opinion in BellAerospace. The Court did not address whether professors are supervisors, since finding them to be managers was sufficient to oust them from section 7 rights. The Court did note, however, that faculty members at Yeshiva "play a predominant role in faculty hiring, tenure, sabbaticals, termination and promotion," and that these decisions "have . . . supervisory characteristics." 444 U.S. at 864 n. 23.

9. See Patrick Nagle, "Yeshiva's Impact on Collective Bargaining in Public-Sector Higher Education," Journal of College and University Law 20 (1994).

10. Chief Judge of the Sixteenth Judicial Circuit v. Illinois State Labor Relations Board, 178 Ill.2d 333, 687 N.E.2d 795 (1997). 11. 511 U.S. 571 (1994).

12 See James Atleson. Values and Assumption in American Labor Law Amherst: University of Massachuetts Press, 1983).

Deborah Malamud is professor of law at the University of Michigan. She teaches in the fields of labor and employment law and civil rights and has written on race and class in the law. She is a member of the AA UPs Committee on Litigation.

Copyright American Association of University Professors Nov/Dec 1998
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