National Labor Relations Board v. Yeshiva University (1980) stands out as perhaps the U.S. Supreme Court’s most significant ruling on whether faculty members may organize and bargain collectively with officials representing their private colleges and universities. In Yeshiva, a closely divided Court affirmed that because fulltime faculty members at a private university exercised what it described as absolute authority in helping to establish guidelines with regard to such academic matters as scheduling classes, selecting teaching methods, setting grading policies, determining teaching loads, establishing pay scales and benefits packages, and deciding who is awarded tenure, promotion, and sabbaticals, they essentially exercised managerial duties. The controlling consideration in this case is that the faculty of Yeshiva University exercises authority that in any other context unquestionably would be managerial. Thus, consistent with general principles of labor law that managers or supervisors and regular employees should not be in the same bargaining unit because they represent significantly different communities of interest, faculty were not entitled to the protections afforded by the National Labor Relations Act (NLRA) with regard to forming collective bargaining units. In light of the impact that Yeshiva had on labor relations for faculty members in higher education, this entry reviews the case in detail.
Facts of the Case
The litigation in Yeshiva traces its origins to the fall of 1974, when the Faculty Association at Yeshiva University filed a petition with the National Labor Relations Board (NLRB), the federal body governing private-sector labor relations. The association filed its petition in an attempt to gain recognition as the exclusive bargaining representative for full-time faculty members at the religiously affiliated private university. University officials opposed the petition, arguing that the faculty members were not employees within the meaning of the NLRA. University officials maintained that because faculty members were policy-setting employees, their status was more closely associated with that of managers, so they were not permitted to engage in bargaining. Nevertheless, the National Labor Relations Board directed university officials to conduct an election under its supervision in which voters selected the Faculty Association as its bargaining representative. After university officials refused to recognize or bargain with the association, the NLRB filed suit over its refusal.
The Second Circuit denied the National Labor Relations Board’s petition to enforce its order on the basis that because the full-time faculty members served as managers, they were not employees within the meaning of the NLRA. The court did not review their status as supervisors. (Managers and supervisors are terms with significantly different legal meanings.)
The Supreme Court’s Ruling
On further review, the Supreme Court affirmed in favor of the university. Writing for the majority in the Court’s five-to-four judgment, Justice Powell began his review by noting that because employees who perform supervisory and managerial functions are generally excluded from an entitlement to participate in collective bargaining, the question was whether the full-time faculty members at Yeshiva University were covered by the NLRA. After reviewing the facts of the dispute as outlined above, the Court began its substantive analysis with the observation that there was no evidence that Congress addressed whether it intended the NLRA to cover full-time faculty members in higher education. However, the Court was quick to add that the absence of clear congressional direction denied the NLRB jurisdiction over the dispute. In fact, the Court acknowledged that the National Labor Relations Board began to assert jurisdiction in higher education for the first time in 1970, finding that because fulltime faculty members were professional employees, they were covered by the NLRA.
As part of its rationale, the Supreme Court acknowledged that university officials did not challenge the status of faculty members as professional employees under the NLRA. Instead, university officials based their claim on the allegation that faculty members were managerial or supervisory employees who were not covered by the NLRA. According to the NLRA, professional employees are those whose work is predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work. These efforts also involve the consistent exercise of discretion and judgment in their performance, are of such a character that the output produced or the results accomplished cannot be standardized in relation to set periods of time, and require knowledge of an advanced type that is customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning as opposed to general academic education, apprenticeships, or training in the performance of routine mental, manual, or physical processes. The Court itself, relying on its own precedent, defined managerial employees are those who “formulate and effectuate management policies by expressing and making operative the decisions of their employer” (p. 882).
In contrast, the act defines supervisors as individuals with authority who, in the interest of the employer, must exercise independent judgment in hiring, transferring, suspending, laying off, recalling, promoting, discharging, assigning, rewarding, or disciplining other staff or to direct them in their duties. Interestingly, insofar as the Second Circuit limited its judgment to the status of faculty as managerial, rather than supervisory, employees, the Court focused its holding in the same way.
The Supreme Court then turned to the statutory definition of managers as individuals who apply independent professional judgment in establishing policies and acting on behalf of their employers, finding that this placed faculty members within the managerial structure. To this end, without even considering the concepts of academic freedom and academic abstention that go to the heart of intellectual endeavors at American colleges and universities, the Court described the “controlling consideration” as whether the faculty members engaged in duties that in other contexts would have been treated as managerial. The Court reached this position in positing that this was so, because faculty members exercised what it described as nearly absolute power over academic affairs vis-à-vis the matters identified above, such as promotion and tenure decisions, selecting methodologies, and the like.
At the heart of its opinion, then, the Supreme Court rejected the National Labor Relations Board’s assertion that the decision- making authority of faculty members was not managerial in the ordinary sense of the word because they exercised independent professional judgment in engaging in routine academic tasks. Further, the Court rebuffed the notion that the faculty members may have been acting in their own interests rather than those of the university in pointing out that if this were the case, then the National Labor Relations Board might have opened a Pandora’s Box that would have created more problems than it would have solved. In fact, in again acknowledging the role that faculty members play in academic governance, the Court maintained that it had no choice but to affirm the order of the Second Circuit.
As author of a strongly worded dissent, Justice Brennan argued that the National Labor Relations Board’s enforcement order was consistent with the terms of the National Labor Relations Board, and thus he and his three colleagues would have reversed in its favor. They were convinced that Congress had intended to permit collective bargaining by faculty members in higher education. They also argued that faculty in higher education differ significantly from managers in other work settings, because individual faculty members do not represent the interests of the administration in the same way that managers in an industrial setting represent the interests of their employers.
Yeshiva has had a long-term impact on labor relations with regard to faculty bargaining in private colleges and universities in the United States. In the wake of Yeshiva, then, the number of faculty unions on private campuses is less than in public institutions of higher education and is likely to remain so at the federal level, unless or until the Supreme Court or Congress intervenes to change this situation. Of course, as reflected in subsequent litigation on faculty unions, nothing forbids states from granting faculty members, especially those in private colleges and universities, the right to bargain collectively with officials of their universities.
Charles J. Russo
See also Unions on Campus
Gregory, D. L., & Russo, C. J. (1990). Overcoming NLRB v. Yeshiva University by the implementation of Catholic labor theory. Labor Law Journal, 41(1), 51–64.
Metchick, R. H., & Singh, P. (2003). Yeshiva and faculty unionization in higher education. Labor Studies Journal, 28(4), 45–65.
Nagle, P. (1994). Yeshiva’s impact on collective bargaining in public-sector higher education. Journal of College & University Law, 20, 383–403.
Russo, C. J. (1990). Yeshiva and public education: A tempest in a teapot. Record in Educational Administration and Supervision, 11(1), 90–93.
National Labor Relations Act, 49 Stat. 449, as amended, 61 Stat. 136, 73 Stat. 519, 29 U.S.C. §§ 151 et seq. (2008).
National Labor Relations Board v. Yeshiva University, 444 U.S. 672 (1980).