Two legal decisions issued back to back in different venues put a damper on efforts to win collective bargaining rights for faculty at private colleges, say labor advocates. The decisions don't entirely close the door on organizing, however.

In one decision, issued Feb. 12, University of Great Falls vs. National Labor Relations Board, the U.S. Court of Appeals for the D.C. Circuit overturned several NLRB rulings on the issue of whether faculty at the private, non-profit university in Montana could bargain. The court found that, because the university is owned by a religious order, the Sisters of Providence, the freedom of religion clause within the First Amendment placed the institution outside the reach of the NLRB's jurisdiction. Therefore the court vacated the board's first determination that faculty had a right to bargain and its second finding that the university was committing an unfair labor practice in refusing to bargain.

In the second decision, issued Feb. 14, an NLRB regional director in Chicago, Elizabeth Kinney, relied on the Yeshiva precedent, finding that faculty at the University of St. Francis in Illinois exercised managerial responsibilities and were therefore prohibited from bargaining. The faculty were represented before the labor relations board by the University Professionals of Illinois/IFT/AFT. UPI field representative Jon Nadler said the union will appeal the decision.

The faculty's right to bargain at the University of Great Falls has been in contention since Oct. 16, 1995, when the Montana Federation of Teachers first petitioned the NLRB to recognize it as the collective bargaining agent for UGF faculty. The university maintained then, as it does now, that the NLRB did not have jurisdiction because of its affiliation with the Sisters of Providence. University attorneys cited a 1979 Supreme Court case, NLRB vs. Catholic Bishop of Chicago, and the Religious Freedom Restoration Act of 1994 as the sources of governing law in this case.

After carefully exploring the question of how religious UGF is, the board found the university to be primarily secular in its purpose and function. It came to this conclusion following the initial hearing in 1996, after the university appealed the board's decision to allow an election in 1997, and again after the university refused to bargain in 1998.

The circuit court found that the precedent set in the Catholic Bishop Supreme Court case would rule for Great Falls. Even the act of carefully exploring whether the university was "sufficiently religious" violated the First Amendment, the court said, quoting the Supreme Court decision: "It is not only the conclusions that may be reached by the Board which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions."

Relying on another precedent, the court set a three-question test to determine whether an institution would be exempt: whether an institution holds itself out publicly as a religious institution, whether it is a non-profit, and whether it has a religious affiliation.

The effect of the ruling is to make unions "think long and hard before attempting to organize faculty at non-profit religious institutions," says David Strom, AFT legal counsel. He adds that the decision has no effect on private, non-religious colleges and certainly not on public institutions.

At St. Francis, the union announced the day after the NLRB decision came out that it would appeal. Inadequate governance has always been the primary issue for USF faculty, says UPI's Nadler. "The administration claims that faculty have a governance structure and they need to work within the system. In reality, there is an elaborate setup with a faculty assembly, different committees and different procedures. But when all is said and done," Nadler notes, "if the president doesn't want it," the president's vote carries the day.

AFT's Strom says Kinney's decision in St. Francis is entirely fact-specific and doesn't have general implications for private college organizing. The board looks at the questions of faculty responsibility on a case-by-case basis. "Even with a negative Yeshiva ruling, unions still have alternative ways of putting pressure on a university to bargain with the union. It is the union's job to convince the institution that it is in the university's best interest to recognize the union." [Barbara McKenna]

April 18, 2002