Supreme Ct. May Prohibit Faculty Unionizing

Professors at public universities are not necessarily entitled to bargain collectively with their employers over their workloads, according to a decision of the Supreme Court last month.

With only Justice John Paul Stevens dissenting, the 8-1 decision reversed a previous judgment of the Supreme Court of Ohio.

At stake was a law passed in 1993 that aimed to increase the number of hours spent in the classroom by professors at Ohio's state universities.

To achieve this goal, the law barred state-school professors from engaging in collective bargaining over their workload.

Jonathan Alger, counsel for the American Association of University Professors (AAUP), which opposes the Ohio law, says that employees of the state--including professors at state schools--generally have the right to collective bargaining.

"The state law attempted to mandate increased teaching loads without a corresponding decrease in other responsibilities," Alger says.

The AAUP was successful in its original suit, decided by the Ohio Supreme Court. The Court ruled that preventing professors from exercising their right to collective bargaining violated both the state and federal Constitutions.

Ohio's Central State University then challenged this decision. On March 22, the U.S. Supreme Court announced its judgment in the case of Central State University v. American Association of University Professors, Central State University Chapter.

The Supreme Court found that the Ohio law does not violate the U.S. Constitution because it passes the rational basis test.

According to Alger, this is a low threshold for judging measures that establish exceptions to federal law--in this case, the employees' right of equal protection.

But the Supreme Court sent the matter back to Ohio for a re-consideration of whether the original legislation that bars collective bargaining is in violation of state law.

Alger says Ohio's existing statutes protect the right of employees to participate in decisions affecting the terms and conditions of their employment.

At privately owned Harvard, by contrast, faculty members are not unionized and do not engage in collective bargaining, says Merry B. Touborg, director of communications for the Office of Human Resources.

"Our collective bargaining units are made up of staff, [many of whom do belong to unions], not faculty," Touborg says.

Friendly Professor of Law at Harvard Law School Paul C. Weiler, an expert in the field of academic labor who has been at Harvard for twenty years, says he cannot remember there ever being a movement by the faculty to unionize.

Neither can Elizabeth Doherty, assistant dean for academic planning in the Faculty of Arts and Sciences, or Elaine Bernard, who directs the Trade Union Program at the John F. Kennedy School of Government.

Even if Harvard professors wanted to organize, they would not enjoy the right to do so under any law.

For private institutions, the relevant labor legislation is the National Labor Relations Act (NLRA), which protects the right of employees to engage in collective bargaining.

But a Supreme Court ruling in 1980, known as the Yeshiva decision, established that professors at private universities are not really employees because they often participate inadministrative decisions at the institutions wherethey teach.

Under Yeshiva, Bernard and Weiler explain,faculty at private schools are not consideredemployees and are thus not entitled to NLRAprotections.

Bernard says that for a coalition of Harvardprofessors to engage in collective bargaining, theadministration would have to volunteer torecognize it as the voice of the faculty.

"Employers tend to resist unionization,"Bernard says. "We're a democracy in word, not inpractice."

Weiler speculates that Harvard faculty have notmade attempts to organize because they seethemselves as "relatively speaking, prettywell-off."

"There hasn't been that need felt," Weilersays.

He also notes that Harvard is "much moredepartmentalized" than other schools.

This means faculty who serve in anadministrative capacity tend to participate inpolicy-making at the highest levels.

"Certainly at HLS," Weiler says, "the schoolitself makes decisions for itself."

Doherty, whose duties include faculty issueswithin the FAS, says workloads vary fromdepartment to department.

A glance at the course catalogue confirms thatwhile faculty in most humanities departments teachfour courses per year, economic professors tend toteach three, and most faculty in the naturalsciences offer only two courses per year.

According to Doherty, decisions about teachingloads and other duties--including serving oncommittees, evaluating theses, running labs andtutoring students--are made at the departmentallevel.

Because departments are run by members of thefaculty, professors enjoy a large measure ofresponsibility for determining what is required oftheir themselves and their colleagues.

Despite the apparent contentment at Harvardamong professors, Alger stresses the potential forfaculty to engage in collective action--aninformal way for professors to exert pressure inthe absence of an express right to collectivebargaining.

What concerns the AAUP, Alger says, is that"workload decisions, which affect the quality ofeducation, ought to be made by academicadministrators and faculty, not statelegislators.

Under Yeshiva, Bernard and Weiler explain,faculty at private schools are not consideredemployees and are thus not entitled to NLRAprotections.

Bernard says that for a coalition of Harvardprofessors to engage in collective bargaining, theadministration would have to volunteer torecognize it as the voice of the faculty.

"Employers tend to resist unionization,"Bernard says. "We're a democracy in word, not inpractice."

Weiler speculates that Harvard faculty have notmade attempts to organize because they seethemselves as "relatively speaking, prettywell-off."

"There hasn't been that need felt," Weilersays.

He also notes that Harvard is "much moredepartmentalized" than other schools.

This means faculty who serve in anadministrative capacity tend to participate inpolicy-making at the highest levels.

"Certainly at HLS," Weiler says, "the schoolitself makes decisions for itself."

Doherty, whose duties include faculty issueswithin the FAS, says workloads vary fromdepartment to department.

A glance at the course catalogue confirms thatwhile faculty in most humanities departments teachfour courses per year, economic professors tend toteach three, and most faculty in the naturalsciences offer only two courses per year.

According to Doherty, decisions about teachingloads and other duties--including serving oncommittees, evaluating theses, running labs andtutoring students--are made at the departmentallevel.

Because departments are run by members of thefaculty, professors enjoy a large measure ofresponsibility for determining what is required oftheir themselves and their colleagues.

Despite the apparent contentment at Harvardamong professors, Alger stresses the potential forfaculty to engage in collective action--aninformal way for professors to exert pressure inthe absence of an express right to collectivebargaining.

What concerns the AAUP, Alger says, is that"workload decisions, which affect the quality ofeducation, ought to be made by academicadministrators and faculty, not statelegislators.