This article appeared in the August 9, 2010 issue of LFU News.

Yeshiva: What does it mean?

There have been many questions, opinions, and pieces of misinformation about the Supreme Court "Yeshiva" ruling floating around Longy for months now, so we will take a moment here in LFU News to explain and put everything in context. The "Yeshiva" ruling refers to a Supreme Court (SC) decision made on February 20, 1980 in a case called National Labor Relations Board v. Yeshiva University, 444 U.S. 672 (1980).

In this case, the full-time faculty of certain schools within Yeshiva University formed a Union that was certified by the National Labor Relations Board (NLRB) through the same voting process we went through here at Longy. Following the certification, the University refused to bargain with the Union. The Union then filed unfair labor practices charges against the University for failure to bargain. The NLRB ordered the University to bargain and sought enforcement in the Court of Appeals. The University argued that these full-time faculty members were actually managerial employees and not entitled to unionize under the National Labor Relations Act. The Court of Appeals agreed with the University. The NLRB took the appeal to the Supreme Court which agreed with the Court of Appeals and issued a short opinion explaining their decision.

Since then, this SC case has been one of the main precedents used by the NLRB to decide whether private sector employees who wish to form a union are considered "managerial" or not. There have also been many other subsequent NLRB cases that further clarify the details of the SC Yeshiva decision and what it means for the unionization of faculty at private sector schools of higher education.

Before getting into the subsequent case law, it's important to note that the Supreme Court was quite simple and straightforward in its decision. In section V of the decision the SC writes:

• "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."

This is the crux of the determination. In the case of Yeshiva, the faculty, according to the SC, had extensive, pervasive and essentially absolute control. In fact, the SC went on to further explain that they certainly did not mean to imply that this would apply to all private sector schools of higher education or more generally to all "professional" employees:

• "We certainly are not suggesting an application of the managerial exclusion that would sweep all professionals outside the Act in derogation of Congress' expressed intent to protect them...Only if an employee's activities fall outside the scope of the duties routinely performed by similarly situated professionals will he be found aligned with management."
  

Since Yeshiva, the NLRB has ruled on a number of cases that further elucidate the decision, making it clear that the determination of faculty "managerial" status requires that the faculty have a pervasive and high degree of control — as explained in the Yeshiva ruling — and relies on an examination of a wide variety of parameters. In particular, the simple facts that faculty may (1) sit on numerous school committees, (2) make curricular recommendations, (3) manage the content of their own classes, (4) have a Faculty Forum, and (5) make other administrative recommendations, do not in and of themselves, individually or together, make a case for the faculty being "managerial". A careful examination of the extent and breadth of control in comparison with other cases that have been decided since Yeshiva is required to make the determination whether a faculty is in fact "managerial".

Some of these NLRB cases include (in chronological order) Bradford College v Milk Wagon Drivers and Creamery Workers Union, 1-RC-17300 (April 30, 1982).Florida Memorial College v. United Faculty of Florida, 12-UC-53 (September 20, 1982); Kendall School of Design v. Kendall Faculty Association, 7-UC-226 (April 14, 1986);St. Thomas University v. St. Thomas University Faculty Association, 12-RC-6955 (April 25, 1990); andUniversity of Great Falls v. Montana Federation of Teachers, 19-RC-13114 (November 8, 1997).

In each of these cases, the NLRB made detailed comparisons to the criteria in Yeshiva, and to other cases that referred to Yeshiva, to determine that the employees were not managerial. The St. Thomas case, for example, refers to Bradford College:

• "By contrast, in Bradford College, 261 NLRB 565 (1982), the Board held that the faculty members were nonmanagerial where governance documents indicated that they had substantial authority, but where in practice they had little. The Board found that the faculty did not effectively determine teaching loads, salaries, budget, the filling of administrative positions, faculty evaluations, or certain faculty personnel actions...The Board concluded: 
• 'In sum, while the faculty and division chairs have the written right to make recommendations, the record shows that such recommendations were often ignored or reversed by the president, by the academic dean, or by both with respect to curriculum, admission policies, graduation of students, course loads, course scheduling, grading of students, faculty hiring or retention, tuition, and faculty salaries.'"
  

When one reads these cases, it becomes very clear that the situation at Longy is very different from the Yeshiva criteria and, in virtually every regard, is similar to all the cases that have been decided in favor of the union in question. Therefore, when you hear someone say something to the effect of, "You can't have committees, because now you have a Union," the appropriate response is "poppycock!" In the schools that were the subject of every NLRB decision made in favor of a union in the past 30 years, union members participated extensively in numerous committees. Furthermore, our accrediting organizations, NASM and NEASC, both require extensive faculty participation in the governance of the school through committees for successful accreditation.

Bottom line is that the Union in no way inhibits our right to be involved in the governance of Longy. In fact, it enhances and supports that right, because now we are entitled to negotiate the terms and conditions of our employment and to obtain a legally binding (aka not "at will") contract for the first time in the history of the school. Come join our ranks as we work toward a successful future for the School, for the students and for ourselves!