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Professors began unionizing three decades ago, when the National Labor Relations Board first asserted its authority to arbitrate in academia. But administrators fought back, and in 1980 the Supreme Court handed them a sweeping victory in NLRB v. Yeshiva University. The court determined that because professors participate in shared governance, they are management, so they have no right to unionize. Since the ruling, organizing at some public schoolswhich fall under state labor lawshas continued. But at private institutions, the Yeshiva decision quashed faculty unionizing completely.
Recently, the NLRB chipped away at Yeshiva. In cases submitted for arbitration by the incipient unions at Manhattan and Manhattanville colleges in New York, the NLRB ruled that the faculties lacked managerial status, so Yeshiva did not apply. But it is unlikely that the NLRB would exempt the faculty at a major research university such as NYU from Yeshiva. Faculties that participate in governance have at least the appearance of management powers; a faculty organizing drive at NYU would entail a full frontal assault on Yeshiva.
But there's a wrinkle. Shared governancethe basis of Yeshivais increasingly a facade in the modern, corporate university. At NYU, for example, the elected 35-member Faculty Council is invited to comment on issues such as faculty benefits and affirmative action, but its opinions have no binding authority, which leaves it to function as a rubber stamp for the administration.
In the corporate university, "the Yeshiva decision has less validity," says labor lawyer Daniel Ratner. He cautions that it would be tough taking on Yeshiva in court. "The faculty would have all the accoutrements [of governance] that the NLRB and the Supreme Court found in Yeshiva," he says, "and you'd have to argue that these are not real."
Governance is a non-issue for adjuncts, who therefore have a relatively simple path to union certification: They face neither the faculty's hurdle of proving that they are employees rather than managers, nor GSOC's of proving that they are employees rather than students. They intend to apply to the NLRB this fall.
The administration is paying close attention to the adjunct drive, because compared to 1400 graduate teaching assistants, NYU's 3700 adjuncts would be a hugely powerful bloc. Since NYU's clerical and technical workers are already unionized, this would leave a small minority of NYU employees non-unionized.
Organizing the full-time faculty is a longer way off. "It really would take major bungling by the president or the deans to get us to the point where faculty unionization would be a real possibility," Professor Goodwin allows. "But if the university were to continue to rule arrogantly and unilaterally in more situations like GSOC and the presidential non-search, more people might start asking, 'Why don't we just start a union?' "
If the administration continues to ignore tenured faculty's concerns, some kind of organizing effort will certainly proceed. "Yeshiva should have been successfully challenged," Andrew Ross maintains, "And it will be, whether at NYU or somewhere else." But if Yeshiva holds up, a faculty strike would be illegal. NYU's AAUP chapter would have to rely on social protest: petitions, demonstrations, and teach-ins.
Then again, as Ross somewhat cryptically suggests, "Collective bargaining and unionization in this country have advanced by challenging the law, or violating the law in the name of a challenge to it. Conditions arise: You make history under conditions not of your own choosing."