In a landmark decision last month, the National Labor Relations Board cleared away two major obstacles to higher education faculty organizing in Pacific Lutheran University, 361 NLRB No. 157 (2014) (PLU). The PLU decision – perhaps the most significant decision regarding faculty organizing in over 30 years – removes barriers to unions at religiously-affiliated institutions, and secures organizing rights for professors on private campuses.  It will allow faculty to unite on campuses across the country, fueling a vibrant movement that in the past two years alone welcomed over 6,000 university and college professors into the Service Employees International Union (SEIU). 

Adjunct and contingent professors, who are now the majority of faculty in this country, share the challenges facing workers across our new low wage economy. Despite high qualifications and long hours on the job, many professors live in poverty, cobbling together piecework for multiple employers.  The January 2014 Report from the House Committee on Education and the Workforce Democratic Staff, “The Just-In-Time Professor,” documents that the national median pay for a three-credit course is just $2,700. The report chronicles the hardships that result from working insecure jobs that provide neither benefits nor the basic tools of the teaching trade.  

{mosads}The plight of contingent faculty is a symptom of increasing corporatization in higher education and the national trend toward cutting back on investment in instruction, even as students take on heavier burdens of debt to pay skyrocketing tuition fees. Full and part-time faculty members at PLU and at many other campuses have been standing up to lead an effort to reset priorities at our nation’s colleges and universities. 

This case arose when full- and part-time contingent professors at the religiously-affiliated PLU filed a union petition in 2013.  The University fought the faculty’s campaign to join SEIU Local 925 and ultimately appealed the regional office’s decision allowing the union election to proceed. The Board’s decision on appeal, which reflects the input of many interested parties on all sides of the issue, modernized and improved labor law in two key areas.  PLU or other institutions with pending cases may choose to seek judicial review of the new tests.  Nonetheless, the Board’s careful, fact-based analysis will begin changing the landscape for higher education organizing immediately. 

First, the decision will make it easier for faculty to exercise their rights to form unions and collectively bargain at religiously-affiliated colleges and universities.  Consistent with the 1979 Supreme Court decision in Catholic Bishop, 440 U.S.  490 (1979), the Board will decline jurisdiction over a school that holds itself out as providing a religious educational environment only when the school also “holds out” its faculty as performing a specific employment role in “creating or maintaining” that religious environment. Few religiously-affiliated universities ask their professors to play such a role; PLU did not.  

Under the new test, religiously-affiliated universities and colleges that do not hold out professors as performing job-related religious roles will no longer be able to block and delay union campaigns with lengthy hearings and appeals.  University administrations will have a duty to meet with their faculty at the bargaining table once professors win their union.  

Second, acknowledging that the business of higher education has evolved since the 1980 Supreme Court decision in Yeshiva University, 444 U.S. 672, the Board adopted a new framework for determining when faculty are managers excluded from labor law protections.  This new framework will open up organizing opportunities at all private colleges and universities. 

The Board observed that the phenomenon of “corporatization” in higher education, documenting the trend toward cost-cutting and profit-making motivations, even at our country’s leading nonprofit institutions of higher education. In the Board’s own experience of applying the Yeshiva managerial test to faculty, it had become apparent that “colleges and universities are increasingly run by administrators.” 

The new Board framework will consider professors managerial employees only if they exercise actual, effective control over university policy in academic programs, enrollment management, and finances. The structure of university decision-making and the nature of the faculty’s employment relationship will be relevant considerations in determining whether faculty exercise actual and effective control in these areas. Under this framework, tenure-track faculty at many institutions may well enjoy bargaining rights under the Act. Notably, all five Board members agreed that none of the contingent faculty in the bargaining unit at PLU, even those who worked full-time, could be considered managers. 

This decision reflects the reality of the modern university, and opens the door for tens of thousands of professors to work together in unions to reform higher education and to open dialogue with universities and colleges that share their commitment to exceptional instruction. 

Let’s embrace this opportunity to walk higher education down the higher road. 

Scott is general counsel for the Service Employees International Union.