Education Quarterly Reviews
Published: 05 July 2021
A Tale of Seven Cases – Faculty Unions in the United States – From Yeshiva To Elon: Is It Time to Review Yeshiva and the Positions of Church-Sponsored Colleges and Universities As Well?
Richard J. Hunter, Jr., Hector R. Lozada, John H. Shannon
Seton Hall University, USA
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Keywords: National Labor Relations Act, National Labor Relations Board, Managerial Employees, Religious Exemption, Contingent Faculty, Adjunct Faculty
This article is a summary discussion of the main issues faced by faculty at private, often church-sponsored, universities who sought to be represented by a union in collective bargaining with their employers. The discussion begins by tracing the origins of the rule that faculty at private universities are managers and not employees under the aegis of the National Relations Act in the Supreme Court case of Yeshiva University. The summary then follows developments over the years up to the most recent decision of the National Labor Relations Board that sanctioned the efforts of adjunct professors at Elon University to seek union representation. In examining these two book-end cases, the article discusses issues relating to the effect of the religion clauses of the First Amendment in the context of the National Labor Relations Board’s shifting views on the topic. Last, the authors discuss unionization in the context of church-sponsored colleges and universities. Is it now time for the Supreme Court to review its seminal decision in Yeshiva University and for church-sponsored colleges and universities to rethink their positions as well?
Ambash, J.W. (2015). Key NLRB decisions opens wide a door for faculty organizing. New England Journal of Higher Education (January 2015). Available: https://nebhe.org/journal/key-nlrb-decision-opens-a-wide-door-for-faculty-organizing/
Benedict, L. (2013). NLRA and religious colleges: the application of “Catholic Bishop” to higher education institutions. Journal of Collective Bargaining in the Academy, National Center Proceedings: Article 6. Available: http://thekeep.eiu.edu/jcba/vol0/issue8/6
Bixler, A.G. (1985). Industrial democracy and the managerial employee exception to the National Labor Relations Act. University of Pennsylvania Law Review, 133(2): 441-468.
Brown, H. & Kerrigan, S.V. (1995). The vehicle for protecting public employees’ constitutional rights. Baylor Law Review, 47(3): 619-682.
Carroll, D.C. (2018). The groundless clash of freedoms?: the religious freedom of the religiously affiliated university and the freedom of faculty to organize under the NLRA. University of San Francisco Law Review, 53(1): 1-41.
Churgin, B.M. (1999). The managerial exclusion under the National Labor Relations Act: are worker participation programs next? Catholic University Law Review, 48(2): 557-604.
Dailey, E., Porzio, S., & Salvatore, P. (2021). Recent labor victories for adjunct professors signal likely uptick in contingent faculty organizing. Proskauer Labor Relations (February 26, 2021). Available: https://www.jdsupra.com/legalnews/recent-labor-victories-for-adjunct-7124249
Daykin, W.L. (1958). Determination of appropriate bargaining unit by the NLRB: principles, rules, and policies. Fordham Law Review, 27(2): 218-235.
Denslow, K. (1981). NLRB v. Yeshiva University: the demise of academic collective bargaining. Mercer Law Review, 32(2): 907-932.
DiGiovanni, N. (2014). Recent developments at the National Labor Relations Board and the impact on colleges and universities. Journal of Collective Bargaining in the Academy, National Center Proceedings, Article 41 (April 2014). Available: https://thekeep.eiu.edu/cgi/viewcontent.cgi?article=1354&context=jcba
Flaherty, C. (2020). Barely getting by. Inside Higher Education (April 20, 2020). Available: https://www.insidehighered.com/news/2020/04/20/new-report-says-many-adjuncts-make-less-3500-course-and-25000-year
Garvey, J. (2020). Catholic colleges finally win independence from the federal labor board. America Magazine (February 6, 2020). Available: https://www.americamagazine.org/faith/2020/02/06/catholic-colleges-finally-win-independence-federal-labor-board
Gaul, C.M. (2007). Catholic Bishop revisited: resolving the problem of labor board jurisdiction over religious schools. University of Illinois Law Review, 2007: 1505-1542.
Germana, B.M. (1991). Protecting managerial employees under the National Labor Relations Act. Columbia Law Review, 91(2): 405-429.
Gottschalk, A., Jones, J., & Moschel, M. (2021). NLRB drops its “subgroup majority status” test to determine whether faculty are exempt managerial employees. Littler Publications (February 25, 2021). Available: https://www.jdsupra.com/legalnews/nlrb-drops-its-subgroup-majority-status-7398920/
Guerin, L. (2021). Unfair labor practices. Nolo. Available: https://www.nolo.com/legal-encyclopedia/unfair-labor-practices.html(last visited June 1, 2021).
Guiler, J.K., Kelly, M., Mills, C.P. (2018). Private college and university faculty: fish or fowl, management or union? American Journal of Management, 18(3): 33-41.
Halverson-Cross, K. (2017). Unionization and the development of policies for non-tenure track faculty. Journal of Collective Bargaining in the Academy, National Center Proceedings, Article 40 (March 2017). Available: https://thekeep.eiu.edu/cgi/viewcontent.cgi?article=1693&context=jcba
Hamilton, S. & Dumbacher, R.T. (2019). D.C. Circuit overrules National Labor Relations Board “subgroup minority status rule.” Hunton Labor blog (March 22, 2019). Available:
Herbert, W.A. & Apkarian, J. (2017). Everything passes, everything changes. Perspectives on Work: 30-85.
Hessick, A. (2019). The future of administrative deference. Campbell Law Review, 41(2): 421-434.
Hogler, R.L. (2020). Labor unions in the Trump administration: courts, Congress, and the National Labor Relations Board. Employee Responsibilities and Rights Journal, 32: 25-32.
Hudson, D.L. (2012). Who is a supervisory employee in employment discrimination cases- Vance v. Ball State University. Preview of United States Supreme Court Cases, 40: 108-110.
Julius, D.J. & DiGiovanni, Jr. N. (2019). Academic collective bargaining: status, process, and prospects. Academic Labor: Research and Artistry, 3: 127-183.
Kopp, M. (2018). Labor and employment- particular grounds for discharge: the Eighth Circuit draws the line for judicial deference to the NLRB. North Dakota Law Review, 93: 109-128.
Macri, N. (2014). Missing God in some things: The NLRB’s jurisdictional test fails to grasp the religious nature of Catholic colleges and universities. Boston College Law Review, 55(2): 609-639.
Mayer, G. & Shimabukuro, J.O. (2012). The definition of “supervisor” under the National Labor Relations Act. Congressional Research Service (July 3, 2012). Available:https://fas.org/sgp/crs/misc/RL34350.pdf
McCartin, J.A. (2018). Confronting the labor problem in Catholic higher education: applying Catholic social teaching in an age of increasing inequality. Journal of Catholic Higher Education, 37(1): 71-88.
McDowell, D.S. & Huhn, K.C. (1976). NLRB remedies for unfair labor practices. Philadelphia, Pa.: University of Pennsylvania Press.
Metchick, R.H. & Singh, P. (2004). Yeshiva and faculty unionization in higher education. Labor Studies Journal (January 1, 2004). Available: https://journals.sagepub.com/doi/abs/10.1177/0160449X0402800403
Moreland, M.P. (2019). Adjunct faculty unionization and religiously affiliated universities. Center for the Study of the Administrative State (CSAS) Working Paper 19-10, George Mason University Law School. Available: https://administrativestate.gmu.edu/wp-content/uploads/sites/29/2019/03/Moreland-Working-Paper-19-10.pdf
Olson, G.A. (2009). Exactly what is ‘shared governance’? The Chronicle of Higher Education (July 23, 2009). Available: https://www.chronicle.com/article/exactly-what-is-shared-governance/
Parker, M. & Park, S. (2015). The impact of Pacific Lutheran on collective bargaining at Catholic colleges and universities. Journal of Collective Bargaining in the Academy, 7: Article 3. Available: https://thekeep.edu/jcba/vol7/iss1/3
Perea, J.P. (2010). The echoes of slavery: recognizing the racist origins of the agricultural and domestic worker exclusion from the National Labor Relations Act. Ohio State Law Journal, 72(1): 95-138.
Rosen, P.B., Bloom, H.M., & Ryan, T.J. (2019). Labor board returns to pre-2014 test for determining if individual is an independent contractor. JacksonLewis.com (February 15, 2019). Available: https://www.jacksonlewis.com/publication/labor-board-returns-pre-2014-test-determining-if-individual-independent-contractor
Serritella, J.E. (1980). National Labor Relations Board v. Catholic Bishop of Chicago. The Catholic Lawyer, 25(3): 336-339.
Stabile, S.J. (2013). Blame it on Catholic Bishop: the question of NLRB jurisdiction over religious colleges and universities. Pepperdine Law Review, 39(5): 1317-1346.
Starich, M. (2018). Recent NLRB developments signal key shift for unionization rights on campus. Campus Legal Advisor, 18(6): 1-3.
Bethany College. (2021). Heritage and traditions. Available: https://www.bethanylb.edu/heritage
Catholic Labor Network (2021). Catholic Higher Education. Catholic Labor.org. Available:https://catholiclabor.org(last visited June 3, 2021).
Colleges of Distinction. (2021). Duquesne University: profile, highlights, statistics. Available: https://collegesofdistinction.com/school/duquesne-university/(last visited June 4, 2021).
Elon University. (2021). Elon University: profile, rankings, and Data. Available: https://www.usnews.com/best-colleges/elon-university-2927(last visited June 4, 2021).
Faegre Drinker (2019). Keeping with tradition: NLRB clarifies three-step approach to bargaining unit determinations. faegerdrinker.com (October 25, 2019). Available: https://www.faegredrinker.com/en/insights/publications/2019/10/keeping-with-tradition-nlrb-clarifies-three-step-approach-to-bargaining-unit-determination(last visited June 2, 2021).
National Labor Relations Board. (2021). National Labor Relations Act – National Labor Relations Act. Available: https://www.nlrb.gov(last visited June 4, 2021).
Pacific Lutheran University. (2021a). Pacific Lutheran Profile. Available: https://www.pu.edu(last visited June 4, 2021).
Pacific Lutheran University (2021b). Pacific Lutheran Profile (Washington Times.com.). Available: https://www.washingtontimes.com/topics/pacific-lutheran-university/(last visited June 4, 2021).
Society for Human Resources (SHRM) (2021). Collective bargaining agreement: what employee categories are excluded from the bargaining unit? SHRM.org (November 6, 2017), Available:
https://www.shrm.org/resourcesandtools/tools-and-samples/hrqa/pages/excludedfrombargainingunit.aspx(last visited June 2, 2021)
United States Conference of Catholic Bishops (2021). Themes of Catholic social teaching. USCCB.org (last visited June 3, 2021).
Yeshiva University (2021). Yeshiva University Profile. Available: https://yeshiva.edu(last visited June 4, 2021).
Higher Education Employer-Employee Relations Act. (1979). California Code of Regulations, Title 8, Section 32010.
National Labor Relations Act. (1935). 29 U.S.C. Sections 151-169.
American League of Professional Baseball Clubs and Association of National Baseball League Umpires. 180 NLRB No. 190 (December 15, 1969).
Bethany College and Thomas Jorsch and Lisa Guinn. 369 NLRB No. 98 (June 10, 2020).
Boeing Company. (2019). 368 NLRB No. 67 (September 9, 2019).
Carroll College v. NLRB. 558 F.3d 568 (United States Court of Appeals for the D.C. Circuit, 2009).
Duquesne University v. NLRB. 947 F.3d 824 (United States Court of Appeals for the D.C. Circuit, 2020).
Elon University and SEIU. Case 10-RC-231145 (February 19, 2021).
Lemon v. Kurtzman. 403 U.S. 602 (United States Supreme Court, 1971).
Meeks v. Grimes. 779 F.2d 417 (United States Court of Appeals for the Seventh Circuit, 1985).
National Labor Relations Board v. Catholic Bishop. 440 U.S. 490 (United States Supreme Court, 1979).
NLRB v. USC. U.S. App. LEXIS 7203 (United States Court of Appeals for the D.C. Circuit, 2019).
NLRB v. Yeshiva University. 444 U.S. 672 (United States Supreme Court, 1980).
Pacific Lutheran and SIEU. 361 NLRB No. 157 (December 16, 2014).
University of Great Falls v. NLRB. 278 F.3d 1335 (United States Court of Appeals for the D.C. Circuit, 2002).
Wisconsin v. Yoder. 406 U.S. 205 (United States Supreme Court, 1972).