[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
EXPANDING THE POWER OF BIG
LABOR: THE NLRB'S GROWING
INTRUSION INTO HIGHER EDUCATION
=======================================================================
JOINT HEARING
before the
SUBCOMMITTEE ON HEALTH,
EMPLOYMENT, LABOR, AND PENSIONS
and the
SUBCOMMITTEE ON HIGHER EDUCATION
AND WORKFORCE TRAINING
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. House of Representatives
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
HEARING HELD IN WASHINGTON, DC, SEPTEMBER 12, 2012
__________
Serial No. 112-68
__________
Printed for the use of the Committee on Education and the Workforce
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COMMITTEE ON EDUCATION AND THE WORKFORCE
JOHN KLINE, Minnesota, Chairman
Thomas E. Petri, Wisconsin George Miller, California,
Howard P. ``Buck'' McKeon, Senior Democratic Member
California Dale E. Kildee, Michigan
Judy Biggert, Illinois Robert E. Andrews, New Jersey
Todd Russell Platts, Pennsylvania Robert C. ``Bobby'' Scott,
Joe Wilson, South Carolina Virginia
Virginia Foxx, North Carolina Lynn C. Woolsey, California
Bob Goodlatte, Virginia Ruben Hinojosa, Texas
Duncan Hunter, California Carolyn McCarthy, New York
David P. Roe, Tennessee John F. Tierney, Massachusetts
Glenn Thompson, Pennsylvania Dennis J. Kucinich, Ohio
Tim Walberg, Michigan Rush D. Holt, New Jersey
Scott DesJarlais, Tennessee Susan A. Davis, California
Richard L. Hanna, New York Raul M. Grijalva, Arizona
Todd Rokita, Indiana Timothy H. Bishop, New York
Larry Bucshon, Indiana David Loebsack, Iowa
Trey Gowdy, South Carolina Mazie K. Hirono, Hawaii
Lou Barletta, Pennsylvania Jason Altmire, Pennsylvania
Kristi L. Noem, South Dakota Marcia L. Fudge, Ohio
Martha Roby, Alabama
Joseph J. Heck, Nevada
Dennis A. Ross, Florida
Mike Kelly, Pennsylvania
Barrett Karr, Staff Director
Jody Calemine, Minority Staff Director
SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS
DAVID P. ROE, Tennessee, Chairman
Joe Wilson, South Carolina Robert E. Andrews, New Jersey
Glenn Thompson, Pennsylvania Ranking Member
Tim Walberg, Michigan Dennis J. Kucinich, Ohio
Scott DesJarlais, Tennessee David Loebsack, Iowa
Richard L. Hanna, New York Dale E. Kildee, Michigan
Todd Rokita, Indiana Ruben Hinojosa, Texas
Larry Bucshon, Indiana Carolyn McCarthy, New York
Lou Barletta, Pennsylvania John F. Tierney, Massachusetts
Kristi L. Noem, South Dakota Rush D. Holt, New Jersey
Martha Roby, Alabama Robert C. ``Bobby'' Scott,
Joseph J. Heck, Nevada Virginia
Dennis A. Ross, Florida Jason Altmire, Pennsylvania
SUBCOMMITTEE ON HIGHER EDUCATION AND WORKFORCE TRAINING
VIRGINIA FOXX, North Carolina, Chairwoman
John Kline, Minnesota Ruben Hinojosa, Texas
Thomas E. Petri, Wisconsin Ranking Minority Member
Howard P. ``Buck'' McKeon, John F. Tierney, Massachusetts
California Timothy H. Bishop, New York
Judy Biggert, Illinois Robert E. Andrews, New Jersey
Todd Russell Platts, Pennsylvania Susan A. Davis, California
David P. Roe, Tennessee Raul M. Grijalva, Arizona
Glenn Thompson, Pennsylvania David Loebsack, Iowa
Richard L. Hanna, New York George Miller, California
Larry Bucshon, Indiana Jason Altmire, Pennsylvania
Lou Barletta, Pennsylvania
Joseph J. Heck, Nevada
C O N T E N T S
----------
Page
Hearing held on September 12, 2012............................... 1
Statement of Members:
Andrews, Hon. Robert E., ranking member, Subcommittee on
Health, Employment, Labor, and Pensions.................... 4
Foxx, Hon. Virginia, Chairwoman, Subcommittee on Higher
Education and Workforce Training........................... 5
Prepared statement of.................................... 7
Hinojosa, Hon. Ruben, ranking member, Subcommittee on Higher
Education and Workforce Training, prepared statement of.... 8
Roe, Hon. David P., Chairman, Subcommittee on Health,
Employment, Labor, and Pensions............................ 1
Prepared statement of.................................... 3
Statement of Witnesses:
Hunter, Walter C., Esq., shareholder, Littler Mendelson, P.C. 24
Prepared statement of.................................... 26
Moreland, Michael P., vice dean and professor of law,
Villanova University School of Law......................... 13
Prepared statement of.................................... 15
Sweeney, Christian, deputy director, organizing department,
AFL-CIO.................................................... 18
Prepared statement of.................................... 21
Weber, Peter M., dean of the graduate school, Brown
University................................................. 9
Prepared statement of.................................... 11
Additional Submission:
Mrs. Foxx: National Review article dated Aug. 1, 2011,
``National Labor Relations Bias''.......................... 52
Mr. Hunter: additional information submitted for the record.. 58
Miller, Hon. George, senior Democratic member, Committee on
Education and the Workforce:
Maggie M. Williams, assistant professor, William Paterson
University, prepared statement of...................... 57
Rokita, Hon. Todd, a Representative in Congress from the
State of Indiana: IRS instructions on tax exempt status.... 49
EXPANDING THE POWER OF BIG LABOR:
THE NLRB'S GROWING INTRUSION
INTO HIGHER EDUCATION
----------
Wednesday, September 12, 2012
U.S. House of Representatives
Subcommittee on Health, Employment, Labor, and Pensions
Subcommittee on Higher Education and Workforce Training
Committee on Education and the Workforce
Washington, DC
----------
The subcommittees met, pursuant to call, at 10:03 a.m., in
room 2175, Rayburn House Office Building, Hon. David P. Roe
[chairman of the Health, Employment, Labor, and Pensions
subcommittee] presiding.
Present from Health, Employment, Labor, and Pensions
Subcommittee: Representatives Roe, Wilson, Thompson, Walberg,
DesJarlais, Rokita, Bucshon, Roby, Heck, Andrews, Kucinich,
Kildee, and Holt.
Present from Higher Education and Workforce Training
Subcommittee: Representatives Foxx, Kline, Roe, Thompson,
Bucshon, Heck, Andrews, Davis and Miller.
Staff present: Katherine Bathgate, Deputy Press Secretary;
Adam Bennot, Press Assistant; Casey Buboltz, Coalitions and
Member Services Coordinator; Molly Conway, Professional Staff
Member; Ed Gilroy, Director of Workforce Policy; Benjamin Hoog,
Legislative Assistant; Amy Raaf Jones, Education Policy Counsel
and Senior Advisor; Marvin Kaplan, Workforce Policy Counsel;
Barrett Karr, Staff Director; Ryan Kearney, Legislative
Assistant; Krisann Pearce, General Counsel; Alex Sollberger,
Communications Director; Linda Stevens, Chief Clerk/Assistant
to the General Counsel; Alissa Strawcutter, Deputy Clerk; Loren
Sweatt, Senior Policy Advisor; Aaron Albright, Minority
Communications Director for Labor; Tylease Alli, Minority
Clerk; Jody Calemine, Minority Staff Director; John D'Elia,
Minority Staff Assistant; Celine McNicholas, Minority Labor
Counsel; Richard Miller, Minority Senior Labor Policy Advisor;
Megan O'Reilly, Minority General Counsel; Julie Peller,
Minority Deputy Staff Director; and Michael Zola, Minority
Senior Counsel.
Chairman Roe. A quorum being present, the joint hearing of
the Subcommittee on Health, Education, Labor, and Pensions and
the Subcommittee on Higher Education and the Workforce Training
will come to order.
I would like to thank my colleague from North Carolina, Dr.
Foxx, the chairwoman of the Subcommittee on Higher Education
and Workforce Training for agreeing to hold this joint hearing
on Expanding the Power of Big Labor--The NLRB's Growing
Intrusion Into Higher Education. Today, we will have opening
statements from the chairman and the ranking members of each
subcommittee. With that, I recognize myself for my opening
statement.
Good morning, everyone. Thank you for being here. I would
like to thank our guests for being with us today. We have a
distinguished panel of witnesses, and we look forward to their
testimony. We continue to learn a great deal through this
committee's oversight of the National Labor Relations Board. We
have learned that the NLRB is utterly determined to advance a
culture of union favoritism regardless of the costs imposed on
workers and employers, or the damage inflicted on its own
credibility.
We have learned a growing number of courts are rejecting
the NLRB's policies. Just last week, a federal judge stopped an
NLRB effort to overturn the will of Arizona voters who moved to
protect workers' rights to a secret-ballot union election. The
courts have also thrown out the board's ambush election scheme,
as well as its plan to force employers to promote unionization
in their workplace.
And the federal court of appeals rightly ruled against the
NLRB's attempt to dictate the dress code for Starbucks
employees. Without question, the NLRB's activist agenda is out
of step with the needs and priorities of middle class
Americans. Approximately 23 million workers are struggling to
find full-time jobs, while roughly one out of every two college
graduates are unemployed or underemployed.
Perhaps dissatisfied with its efforts to reshape America's
workforce, the NLRB is now exploring actions that could bring
significant changes to the private higher education
institutions. In 2004, a decision known as Brown University
restored labor practice governing graduate students that had
been in place for decades, which viewed graduate assistants as
students and not employees under the National Labor Relations
Act.
Now, without any new facts or compelling reason, the board
is reconsidering that decision and contemplating whether to
abandon policies that have helped advance the learning
experience of graduate students nationwide. The board has also
invited legal briefs to reexamine whether the university
faculty are considered employees under the National Labor
Relations Act or, instead, fall under the law's managerial
exception.
According to leaders in the higher education community,
approximately 90 percent of 4-year institutions have faculty
boards that play a critical role in institutional governance.
The board's decision could upset how a vast majority of
institutions are managed across the country. Perhaps the most
disturbing is the NLRB's growing challenge to religious
freedom.
Over the last year, the NLRB applied an invasive test to
determine whether three Catholic universities were, quote--
``religious enough'' to be exempt from the federal labor law.
It is simply unacceptable to allow the NLRB to judge whether a
private academic institution has sufficient religious
character. A court has outlined a clear standard to determine
whether federal labor law applies to an institution that
professes a religious faith, a standard that adheres to Supreme
Court precedent and the First Amendment.
It is time the NLRB applied the court standard and ended
the uncertainty facing religious institutions. I suspect some
of our colleagues will decry today's hearing, and suggest that
we are sounding the alarm over a crisis that doesn't exist.
Again, I would ask my colleagues to consider what we have
learned over the past 2 years.
The NLRB has its agenda clear. Routine cases involving a
single workplace have been hijacked in order to impose sweeping
changes on all workplaces. It would be foolish to consider each
of these issues in isolation. Instead, they should be viewed in
the broader context of NLRB's activist agenda. The board's
ambush election scheme would leave graduate students,
struggling to keep up with their studies and the demands of
their professors, just 10 days to decide whether they want to
join a union.
Imagine university administrators bargaining with numerous
unions within their faculty, each representing a different
department of professors' teaching degrees in biology,
business, chemistry, et cetera. Yet that is precisely the
chaotic environment schools could face if the board's specialty
health care decision governs our higher education system. This
cannot be what Congress intended when it adopted the National
Labor Relations Act to promote the general welfare and the free
flow of commerce.
Today's hearing will closely examine these issues as to
whether they serve the best interests of our nation's students,
colleges and universities. And I look forward to the
discussion.
I now recognize my distinguished colleague, Mr. Andrews,
the senior Democratic member of the subcommittee, for his
opening remarks.
[The statement of Dr. Roe follows:]
Prepared Statement of Hon. David P. Roe, Chairman,
Subcommittee on Health, Employment, Labor, and Pensions
Good morning, everyone. I would like to thank our guests for being
with us today. We have a distinguished panel of witnesses and we look
forward to their testimony.
We continue to learn a great deal through this committee's
oversight of the National Labor Relations Board. We have learned the
NLRB is utterly determined to advance a culture of union favoritism,
regardless of the costs imposed on workers and employers or the damage
inflicted on its own credibility.
We've learned a growing number of courts are rejecting the NLRB's
policies. Just last week, a federal judge stopped an NLRB effort to
overturn the will of Arizona voters who moved to protect workers' right
to a secret ballot union election. The courts have also thrown out the
board's ambush election scheme as well as its plan to force employers
to promote unionization in the workplace. And a federal appeals court
rightly ruled against the NLRB's attempt to dictate the dress code of
Starbucks employees.
Without question, the NLRB's activist agenda is out-of-step with
the needs and priorities of middle class Americans. Approximately 23
million workers are struggling to find full-time jobs, while roughly
one out of every two college graduates are unemployed or underemployed.
Perhaps dissatisfied with its efforts to reshape America's workforce,
the NLRB is now exploring actions that could bring significant changes
to private higher education institutions.
In 2004, a decision known as Brown University restored labor
practice governing graduate students that had been in place for
decades, which viewed graduate assistants as students and not employees
under the National Labor Relations Act. Now, without any new facts or
compelling reason, the board is reconsidering that decision and
contemplating whether to abandon policies that have helped advance the
learning experience of graduate students nationwide.
The board has also invited legal briefs to reexamine whether
university faculty are considered employees under the National Labor
Relations Act or instead fall under the law's managerial exception.
According to leaders in the higher education community, approximately
90 percent of four-year institutions have faculty boards that play a
critical role in institutional governance. The board's decision could
upset how a vast majority of institutions are managed across the
country.
Perhaps most disturbing is the NLRB's growing challenge to
religious freedom. Over the last year, the NLRB applied an invasive
test to determine whether three Catholic universities were ``religious
enough'' to be exempt from federal labor law. It is simply unacceptable
to allow the NLRB to judge whether a private academic institution has
sufficient religious character. A court has outlined a clear standard
to determine whether federal labor law applies to an institution that
professes a religious faith, a standard that adheres to Supreme Court
precedent and the First Amendment. It is time the NLRB applied the
court's standard and ended the uncertainty facing religious
institutions.
I suspect some of our colleagues will decry today's hearing and
suggest we are sounding alarms over a crisis that doesn't exist. Again,
I would ask my colleagues to consider what we have learned over the
last two years. The NLRB has made its agenda clear. Routine cases
involving a single workplace have been hijacked in order to impose
sweeping changes on all workplaces. It would be foolish to consider
each of these issues in isolation. Instead, they should be viewed in
the broader context of the NLRB's activist agenda.
The board's ambush election scheme would leave graduate students--
struggling to keep up with their studies and the demands of their
professors--just 10 days to decide whether they want to join a union.
Imagine university administrators bargaining with numerous unions
within their faculty, each representing a different department of
professors teaching degrees in biology, business, or chemistry. Yet
that is precisely the chaotic environment schools could face if the
board's Specialty Healthcare decision governs our higher education
system.
This cannot be what Congress intended when it adopted the National
Labor Relations Act to promote the general welfare and the free flow of
commerce. Today's hearing will closely examine these issues and whether
they serve the best interests of our nation's students, colleges, and
universities.
I look forward to our discussion, and will now recognize my
distinguished colleague Rob Andrews, the senior Democratic member of
the subcommittee, for his opening remarks.
______
Mr. Andrews. Thank you, Mr. Chairman. Thank you, Chairwoman
Foxx. And, colleagues, good morning. Thank you to the witnesses
for their preparation for this morning's hearing.
In the weeks in which we have been back in our districts, I
have had a chance to travel and listen to a lot of my
constituents. And the other day I was with a doctor that has a
radiology practice; he does a very large number of MRIs and CAT
scans. And he is having a difficult time finding properly
trained people to work in the radiology practice.
I was with a man who started a company that does a lot of
installation of solar panels. And they had 600 people working
for them 2 years ago. They have about 350 people working for
them now because the value of tax credits and subsidies for
solar energy has fallen in the New Jersey marketplace and they
are looking for a way to regenerate those customers.
I met a number of people who graduated from schools of
education, very high-quality schools of education, including
Villanova, who are substitute teaching because they can't find
their first full-time teaching job because a lot of our public
schools have budgets that are under pressure. And our private
and charter schools are facing similar pressure, as well.
As the chairman said, there are 23 million Americans
looking for full-time work. And I get the distinct sense that
what our employers, what our constituents, want us to do is to
spend more time working together to find solutions to create
the environment in which entrepreneurs and businesses can
create good opportunities for those 23 million people. That is
not what we are doing today.
In the context of that great national problem, we are going
to be talking about whether a graduate assistant should be able
to bargain collectively on campus, or not; whether college
faculty are more properly regarded as managerial or as
employees on a college campus; and the very important question
of the scope of religious freedom, and how to balance that
against the workplace rights of employees.
These are significant questions. I don't mean to, in any
way, minimize them. But I think that only here, in this city
and this institution, would these be regarded as the compelling
questions on which the committee should spend its time this
morning. Now again, these are important questions and I am
delighted that we have witnesses that are very well-versed in
helping us understand these questions.
But I guess I would also point out that as important as
these questions are, they are also premature. It is likely that
the National Labor Relations Board will render decisions in
these three areas in the next few months. And some of us will
agree with those decisions, and others of us will disagree with
those decisions. And there are remedies available, irrespective
of our position, if we disagree with the decision.
If we disagree with the decision, there is an appellate
process up through the courts. There is a political process in
the presidential election, that each one of us is engaged in
rather intensely, to elect the person who will have the right
to nominate the next NLRB members. And then there is the
process within the board itself of litigating and arguing the
cases.
And again, I mean no implication that the questions we are
facing this morning are insignificant. They are significant,
they should be looked at. But I think that the choice of agenda
that the majority continues to pursue is not only diversionary
but counterproductive. The country wants us to get to work to
create an environment where entrepreneurs and businesses can
create opportunities for the American people.
That is not what we are doing this morning. Having said
that, I will happily engage in a discussion about these
important issues this morning. I thank the witnesses and my
colleagues for this opportunity.
Chairman Roe. I thank the gentleman for yielding.
I will now recognize Dr. Foxx, chairwoman of the Higher
Education and Workforce Training, for her opening statement.
Mrs. Foxx. Thank you, Mr. Chairman. Good morning. And
thanks to our witnesses for joining us for this joint
subcommittee hearing.
This hearing comes at an appropriate time, as the debate
over rising college costs rightly continues to garner national
attention. President Obama has traveled the country in recent
months promising students and families that his administration
is working to lower college costs.
This past weekend, the president told an audience in
Florida, quote--``Millions of students are paying less for
college today,'' thanks to federal actions. But contrary to the
president's comments, the College Board's Trends in College
Pricing publication shows published in-state tuition and fees
at public 4-year institutions have increased 25 percent over
the last 3 years, from $6,591 during the 2008-2009 academic
year to $8,244 last year.
Similar trends can be seen in private and 2-year degree
programs. Clearly, the rhetoric doesn't match the reality. In
an effort to find real solutions to the college cost dilemma,
the Subcommittee on Higher Education and Workforce Training has
held hearings to explore ways states and institutions can help
keep college within reach for students.
More importantly, we have seen how federal intervention in
higher education, no matter how well-intentioned, often leads
to additional institutional expenses; costs that trickle down
to students in the form of higher tuition and fees. Today, we
are here to discuss actions by President Obama's National Labor
Relations Board that would not only infringe upon academic
freedom, but could also have serious implications for college
costs.
As my colleague, Dr. Roe, mentioned, the NLRB has a
reputation for advancing expensive, job-destroying changes to
federal labor policies that undermine the rights of workers and
employers. And just as the NLRB's specialty health care
decision and ambush election scheme threaten to make it more
expensive to run a business and restrict employee choice, the
board's efforts to expand authority over private post secondary
institutions would make it more difficult for colleges to offer
a high-quality education at an affordable price.
Should the NLRB succeed in its attempts to expand big
labor's influence over faculty at private institutions, a host
of potential consequences could arise. A proliferation of union
contracts on college campuses would severely limit an
institution's flexibility, potentially putting union bosses in
charge of everything from how professors are evaluated for
tenure to the subject matter and number of courses each faculty
member may teach.
Costly labor disputes would severely strain institutions'
budgets, leading to a dramatic rise in legal or other expenses,
less diverse course offerings and, again, tuition increases.
And my colleague from New Jersey has said this is maybe not the
most important issue that we could be dealing with today. But I
would say, as somebody who has spent a lot of time in higher
education, it is not a broken system.
It is looked at by the world as the best system in the
world. And I am just not sure why the administration is focused
on working to change something that isn't broken. Above all,
the NLRB's activism in America's higher education system would
have a detrimental effect on students who, in addition to
costlier tuition, would likely face reduced academic
opportunities.
I am particularly concerned about the board's effort to
promote the unionization of graduate student assistants. The
opportunity to work as a graduate assistant is priceless.
Students get to spend one-on-one time with their professor,
assist on special projects, and develop important relationships
and references that will serve them well when they begin
looking for a career; all the while, earning a little extra
money to put toward tuition and living expenses.
And as someone who went through that system myself as a
graduate assistant, and who hired lots of graduate assistants,
I understand the value of the system, again, as it currently
works. For years, the NLRB recognized that graduate students
have a primarily educational, not economic, relationship with
their respective universities. Their responsibility as students
is to learning and completing their degrees.
The cost and uncertainty associated with the proliferation
of unionization among graduate students could force
institutions to curb, or even shut down, graduate student
assistant programs. In closing, I would like to reiterate that
we all share the goal of helping to ensure more students have
access to an affordable post secondary education. Congress has
a responsibility to closely monitor federal actions that might
hamper that goal by contributing the problem of soaring
tuition, and even compromising education quality.
I look forward to a productive discussion with our
witnesses, and I yield back.
[The statement of Mrs. Foxx follows:]
Prepared Statement of Hon. Virginia Foxx, Chairwoman,
Subcommittee on Higher Education and Workforce Training
Good morning, and thank you to our witnesses for joining us for our
joint subcommittee hearing.
This hearing comes at an appropriate time as the debate over rising
college costs rightly continues to garner national attention. President
Obama has traveled the country in recent months promising students and
families that his administration is working to lower college costs.
This past weekend, the president told an audience in Florida ``millions
of students are paying less for college today'' thanks to federal
actions.
But contrary to the president's comments, the College Board's
Trends in College Pricing shows published in-state tuition and fees at
public four-year institutions have increased 25 percent over the last
three years, from $6,591 during the 2008-2009 academic year to $8,244
last year. Similar trends can be seen in private and two-year degree
programs.
Clearly the rhetoric doesn't match reality. In an effort to find
real solutions to the college cost dilemma, the Subcommittee on Higher
Education and Workforce Training has held hearings to explore ways
states and institutions can help keep college within reach for
students. More importantly, we have seen how federal intervention in
higher education, no matter how well intentioned, often leads to
additional institutional expenses--costs that trickle down to students
in the form of higher tuition and fees.
Today we are here to discuss actions by President Obama's National
Labor Relations Board that would not only infringe upon academic
freedom, but could also have serious implications for college costs. As
my colleague Dr. Roe mentioned, the NLRB has a reputation for advancing
expensive, job destroying changes to federal labor policies that
undermine the rights of workers and employers. And just as the NLRB's
Specialty Healthcare decision and ambush elections scheme threaten to
make it more expensive to run a business and restrict employee choice,
the board's efforts to expand authority over to private postsecondary
institutions would make it more difficult for colleges to offer a
quality education at an affordable price.
Should the NLRB succeed in its attempts to expand Big Labor's
influence over faculty at private institutions, a host of potential
consequences could arise. A proliferation of union contracts on college
campuses would severely limit an institution's flexibility, potentially
putting union bosses in charge of everything from how professors are
evaluated for tenure to the subject matter and number of courses each
faculty member may teach.
Costly labor disputes would severely strain institutions' budgets,
leading to a dramatic rise in legal or other expenses, less diverse
course offerings, and, again, tuition increases.
Above all, the NLRB's activism in America's higher education system
would have a detrimental effect on students, who, in addition to
costlier tuition, would likely face reduced academic opportunities. I
am particularly concerned about the board's efforts to promote the
unionization of graduate student assistants. The opportunity to work as
a graduate assistant is priceless--students get to spend one-on-one
time with their professors, assist on special projects, and develop
important relationships and references that will serve them well when
they begin looking for a career--all while earning a little extra money
to put toward tuition and living expenses.
For years, the NLRB recognized that graduate students have a
primarily educational, not economic, relationship with their respective
universities. Their responsibility, as students, is to learn and
complete their degree. The costs and uncertainty associated with a
proliferation of unionization among graduate students could force
institutions to curb or even shut down graduate student assistant
programs.
In closing, I would like to reiterate that we all share the goal of
helping to ensure more students have access to an affordable
postsecondary education. Congress has a responsibility to closely
monitor federal actions that might hamper that goal by contributing to
the problem of soaring tuition and even compromising education quality.
I look forward to a productive discussion with our witnesses. With
that, I now yield back.
______
Chairman Roe. I thank the gentlelady, the chairman, for
yielding back.
And I recognize Mr. Andrews again.
Mr. Andrews. I ask unanimous consent that my colleague, Mr.
Hinojosa's, statement be put in the record. He is the ranking
member of the Higher Ed Subcommittee. He is otherwise engaged
this morning, but sends his regards and his statement.
[The statement of Mr. Hinojosa follows:]
Prepared Statement of Hon. Ruben Hinojosa, Ranking Member,
Subcommittee on Higher Education and Workforce Training
Chairman Roe and Ranking Member Andrews, I expect today's joint
HELP and Higher Education and Workforce Training Subcommittee hearing
will focus largely on the National Labor Relations board's (NLRB)
position and application of the National Labor Relations Act (NLRA) to
faculty and graduate students employed by private universities of
higher education, and the exemption from NLRA requirements for
religious institutions of higher education.
It's important to note that this hearing will mark the Committee's
eighth hearing during the 112th Congress, that the majority examines
the work of the NLRB. Once again, I have no doubt that my colleagues on
the other side of the aisle will use this hearing to attack the rights
of American workers and disparage the National Labor Relations Board's
(NLRB). Today, the majority will attempt to undermine the NLRB's work
in areas related to higher education.
As Ranking Member of the Subcommittee on Higher Education and
Workforce Training, I believe that these committee hearings should
serve as an opportunity for this committee to discuss some of the most
pressing issues in higher education.
The rising cost of a college and graduate school education, the
poor working conditions and paltry wages of thousands of graduate
teaching assistants who work tirelessly to educate our students and the
dramatic increase of non-tenure track ``contingent faculty'' on our
nation's college campuses, should all be of great concern to this
committee.
In the past decade or so, the nature of the higher education
workplace has changed significantly. Colleges and universities are
relying heavily on graduate teaching assistants and adjunct faculty to
teach courses, administer and grade exams, and supervise laboratory
sessions.
A study by the AFL-CIO, entitled ``Teachers and College
Professors--Trends in the Profession,'' found that colleges and
universities have begun to shift more and more of the burden of actual
teaching onto graduate teaching assistants in efforts to cut costs.
According to the Bureau of Labor Statistics, there are currently
110,130 Americans who are employed as graduate teaching assistants, and
the median annual salary for graduate teaching assistants is just
$31,230. In response to increased workloads and low compensation, it is
no surprise that graduate assistants have sought to exercise their
right to organize and collectively bargain.
To make matters worse, the Republican 112th Congress has made the
cost of a graduate degree more expensive. The Budget Control Act of
2011, for example, eliminated graduate students' eligibility for
subsidized student loans. Prior to July 1, 2012, the federal government
paid the interest on some loans for graduate students with financial
need. Beginning this past July, interest will accrue while the student
is in school, increasing the levels of debt for graduate students.
In closing, I urge this committee to do more to create jobs and
assist the millions of unemployed and underemployed American workers
who are trying desperately to find good family-sustaining jobs and get
back on track. Attacking the rights of American workers, including the
rights of graduate teaching assistants who are striving to finish their
degrees and provide for their families, is simply unacceptable,
especially at a time when Americans need Congress' help to access good
jobs and improve their lives.
Thank You!
______
Chairman Roe. Without objection, so ordered.
Pursuant to committee rule 7-C, all members of both
subcommittees will be permitted to submit written statements to
be included in the permanent hearing record. Without objection,
the hearing record will remain open for 14 days to allow
statements and other questions for the record and other
extraneous material referenced during the hearing to be
submitted for the record.
The lighting system, just very brief, many of you probably
know this. It is a 5-minute time limit. I am not going to gavel
you down right in the middle of a sentence, but please try to
wrap it up. You will see a green light, and then an amber light
which means you have a minute left. And then the red light
means I will be reaching for the gavel. And I will try to keep
myself within the 5-minute time limit.
I would like to introduce our very distinguished panel.
First is Dr. Peter Weber, the dean of Brown University graduate
school in Providence and also a chemistry professor. I have got
cold sweats thinking about that, Dr. Weber. Dr. Michael
Moreland is the vice-dean and professor of law at Villanova
University school of law in Villanova, Pennsylvania. Welcome.
And Mr. Christian Sweeney is a deputy organizing director of
the American Federation of Labor Congress of Industrial
Organizations in Washington. Welcome. And Mr. Walter Hunter is
an attorney, and shareholder of Littler Mendelson, PC in
Providence, Rhode Island.
And I will now allow Dr. Weber to start your testimony.
Thank you.
STATEMENT OF DR. PETER M. WEBER, DEAN,
BROWN UNIVERSITY GRADUATE SCHOOL
Mr. Weber. Does this thing work?
Chairman Roe. Yes.
Mr. Weber. Chairman Roe, Chairwoman Foxx, Ranking Member
Andrews, Ranking Member Hinojosa in absentia, and subcommittee
members, thank you for your invitation to participate in this
hearing. It is an honor to appear before you today.
I am Peter Weber, professor of chemistry, dean of the
graduate school of Brown University. As the senior academic
officer of Brown's graduate school, I am responsible for
assuring Brown's standards in graduate education. The current
educational model has made American universities global leaders
in education. I am quite certain that defining Brown's doctoral
students as employees would damage the very fabric of graduate
education at Brown University and many private institutions of
higher learning.
Brown University has 51 Ph.D. programs, and awards some 200
doctor of philosophy degrees annually. A Brown Ph.D. education
prepares graduate students for careers as academicians and as
researchers and, more generally, as highly-trained experts in
all manner of fields. The degree requirements are established
by the faculty of each graduate program following disciplinary
customs.
Central to all fields is the preparation of a dissertation,
a written account of novel scholarship produced by the
candidate. Additionally, teaching is an integral requirement in
virtually every degree program, for several reasons. First,
many of our doctoral students study for academic careers, where
teaching will be part of their professional lives.
Secondly, teaching skills are also valued in many
professional careers outside of academia. And third, research
has shown that graduate students who train in teaching enhance
their research skills. For these reasons, training and teaching
is an important and integral aspect of Brown's doctoral
education.
At Brown, teaching is considered equivalent to a course.
Brown Ph.D. students receive a guarantee of 5 years of
financial support, which includes a stipend, tuition remission,
health insurance and fees. While the exact level of the
stipends vary from program to program, most programs exceed the
support levels specified by the graduate school.
The stipend is the same for all students enrolled in the
program, and does not vary if the student exclusively takes
courses while on a fellowship or serves as a research or
teaching assistant. There is no line-designated salary in the
student support budget of the graduate school.
Let us examine the difference between the academic nature
of our teaching assistantship program and an alternative cost-
driven approach, to instruction. If Brown wanted to staff
courses with individuals who already possess a Ph.D., it could
do so for a small fraction of the cost of graduate students on
teaching assistantships.
In other words, we could engage fully-trained adjunct
faculty to satisfy Brown's teaching needs for a fraction of the
cost of our graduate student financial aid program if our goals
were merely to purchase instructional services. But that is not
our goal. Instead, we wish to provide our Ph.D. candidates the
opportunity to learn the art of teaching.
This approach to doctoral training is costly to Brown, but
it is enormously beneficial to all our students. Our undergrad
students benefit from enthusiastic assistants who care deeply
about their academic fields. And the doctoral students receive
mentorship from their faculty advisors and a preparation that
enables their academic and professional careers.
I am a scientist by profession, not a lawyer or a labor
relations expert. I do not know much about the National Labor
Relations Act or about the duty to bargain. What I do know is
that in private universities such as Brown engaging in
collective bargaining about the core of the academic curriculum
would wreak havoc with academic freedom. It makes no sense for
a university like Brown to have to bargain over the terms and
conditions of service by students who teach or research as an
integral part of their academic training.
Are we to bargain about course selection, course content,
course length, the number of exams or papers in a course, the
year in which a student serves as an assistant? What if a
student performs poorly as a teaching assistant? Are we to
bargain over the just cost for the discipline imposed?
These are very legitimate concerns when one contemplates
that a curriculum may be transformed into a job merely because
that curriculum requires students to learn how to teach and
engage in academic research. For these reasons, I respectfully
oppose the prospect of calling students employees in Ph.D.
programs such as the ones at Brown University.
This concludes my prepared testimony. Thank you for the
opportunity to share my opinions with you. I look forward to
any questions members of the subcommittees may have.
[The statement of Mr. Weber follows:]
Prepared Statement of Peter M. Weber, Dean of the Graduate School,
Brown University
Chairman Roe, Chairwoman Foxx, Ranking Member Andrews, Ranking
Member Hinojosa and Subcommittee Members, thank you for your invitation
to participate in this hearing. It is an honor to appear before you
today.
My name is Peter Weber. I am Professor of Chemistry and Dean of the
Graduate School at Brown University. As the senior academic officer of
Brown's Graduate School, I am responsible for assuring Brown's
standards in the delivery of graduate education, for guiding the
school's growth, and for identifying ways to recruit the strongest
students as Brown expands and strengthens its nationally recognized
graduate programs. I am quite certain that defining Brown's graduate
students as ``employees'' would damage the fabric of graduate education
at Brown University and institutions like it.
I believe that it is both shortsighted and naive to suggest that
students whose academic program requires teaching and research as a
condition for the receipt of the Ph.D can be regarded as employees
without destroying the educational model that has shaped Brown and so
many other private institutions of higher learning. Our current
educational model has made American universities global leaders in
education, attracting students from around the world.
Let me tell you about Brown University, where I have taught since
1989. Brown has 51 Ph.D. programs and awards some 200 Doctor of
Philosophy degrees annually. A Brown Ph.D. education prepares graduate
students for careers as academicians and researchers and, more
generally, as highly trained experts in all manner of fields. The Ph.D.
curricula and degree requirements are established individually by the
faculty leading each graduate program and take into consideration
disciplinary customs and developments.
Central to all fields is the preparation of a dissertation, a
written account of novel scholarship produced by the candidate.
Additionally, teaching is an integral requirement in virtually every
degree program, for several reasons. First, many of our doctoral
students study for academic careers, where teaching will be part of
their professional lives. Learning to teach as a doctoral candidate
prepares the students for these academic careers. Secondly, teaching
belongs to the so-called transferrable skills, that is, skills that are
of value in many professional careers within and outside of academia.
Third, research has shown that graduate students who train in teaching
enhance their research skills. For all these reasons, training in
teaching is an important and integral aspect of Brown's doctoral
education.
The training is done as the students assist professors teaching
courses at Brown. In limited instances, students receive the honor of
being appointed as a teaching fellow, which enables them to design and
teach their own course, the syllabus of which is developed in close
consultation with a faculty advisor. Teaching is so critical to the
graduate education curriculum that it is considered equivalent to a
course. If a student fails to perform adequately in his or her teaching
role, the student can be terminated from the Ph.D. program itself.
Therefore, if a graduate student ordinarily would take four courses in
a semester, he or she would take only three if serving as a teaching
assistant. If a student fails to perform adequately in his or her
teaching role, the student can be terminated from the Ph.D. program
itself.
Similarly, training in research happens in Brown laboratories and
offices as graduate students pursue the discovery of knowledge
alongside faculty mentors. Doctoral students may also be appointed as
fellows or proctors. During a fellowships semester, students devote
themselves fully to their course studies or to the preparation of a
thesis. A proctorship is defined to be a non-instructional, academic
position intended to foster the professional development of graduate
students. These can include, for example, helping to edit academic
journals, curating museum exhibitions, or developing programs in the
student's area of academic specialization. Like teaching and research
assistantships, all proctorship positions are part of the academic
training of doctoral students.
Candidates who are enrolled in Ph.D. programs at Brown receive a
guarantee for five years of financial support, which includes a
stipend, tuition remission, health insurance and fees. Doctoral
students also receive financial support for four summers during their
studies. While the exact level of the stipends varies from program to
program, most programs exceed the support level specified by the
Graduate School. The stipend is the same for all students enrolled in a
program, and does not vary if the student exclusively takes courses
while on a fellowship, or serves as a research assistant, a teaching
assistant or as a proctor. There is no line designated ``salary'' in
the student support budget of the Graduate School.
At Brown, we do not consider teaching, research or proctorships to
be ``jobs.'' That concept is so foreign to our academic mission that
characterizing our Ph.D. candidates as ``employees'' would irrevocably
alter the essence of our programs. Graduate students do not apply for a
job at Brown; they apply for admission as students. Teaching experience
is not usually an important criterion for admission, as preference is
given to academic performance during the undergraduate studies. Once
admitted, students receive training in research and teaching as part of
their academic experience.
Let us examine the difference between the academic nature of our
teaching assistantship program and an alternative, cost-driven approach
to undergraduate instruction. If Brown wanted to staff courses with
individuals who already possess a Ph.D., it could do so for a small
fraction of the cost of graduate students on teaching assistantships.
In other words, we could engage fully-trained adjunct faculty to
satisfy Brown's teaching needs for a fraction of the cost of our
graduate student financial aid program, if our goal were merely to
``purchase'' instructional services. But that is not our goal. Instead,
we wish to provide our Ph.D. candidates the opportunity to learn the
art of teaching as part of their doctoral education.
Indeed, from a purely economic and employment point of view, it
would be rational for us to assign our most experienced doctoral
students--those, say, in the seventh year of study--to serve as
teaching assistants. But we do not. Why? Again, our goal is the
training and professional development of our doctoral candidates.
Learning how to teach is one of many aspects of professional
development that is completed within the timeframe recommended for
completion of the doctoral degree, which of course varies by
discipline. We do not seek to retain experienced teaching assistants
for employment purposes. Instead, we wish to confer degrees upon
successful completion of the academic requirements, which include
learning how to teach.
This approach to doctoral training is costly to Brown, but it is
enormously beneficial to all our students: our undergraduate students
benefit from enthusiastic assistants who care deeply about their
academic fields; and the doctoral students receive mentorship from
their faculty advisors and a preparation that enables their academic
and professional careers. Brown is proud of its ``university/college''
model, which views teaching and research as an integrated whole for all
students.
I am a scientist by profession, not a lawyer or a labor relations
expert. I do not know much about the National Labor Relations Act or
about the ``duty to bargain.'' What I do know is that in private
universities such as Brown, engaging in collective bargaining about
issues at the core of the academic curriculum would wreak havoc with
academic freedom. It makes no sense for a university like Brown to have
to bargain over the ``terms and conditions'' of service by students who
teach, research or serve as proctors as an integral part of their
academic training. Are we to bargain about course selection? Course
content? Course length? The number of exams or papers in a course? The
year in which a student serves as an assistant? The decision whether to
assign a student a teaching, research, or proctorship role, as opposed
to strictly taking courses? What if a student performs poorly as a
teaching assistant? Are we to bargain over the ``just cause'' for the
discipline imposed?
These issues are not mere speculation. They are very legitimate
concerns when one contemplates the notion that a curriculum may be
transformed into a ``job'' merely because that curriculum requires
students to learn how to teach and engage in academic research. For
these reasons, I respectfully oppose the prospect of calling students
``employees'' in Ph.D. programs such as the ones at Brown University.
This concludes my prepared testimony. I would like to thank you for
the opportunity to share my opinions with you and I am looking forward
to any questions Members of the Subcommittee may have.
______
Chairman Roe. Thank you, Dr. Weber.
Dr. Moreland?
STATEMENT OF DR. MICHAEL P. MORELAND, VICE DEAN AND PROFESSOR
OF LAW, VILLANOVA UNIVERSITY SCHOOL OF LAW, TESTIFYING ON HIS
OWN BEHALF
Mr. Moreland. Thank you, Chairman Roe.
Chairman Roe. Could you get your mic on?
Mr. Moreland. Sorry. Thank you, Chairman Roe, Chairwoman
Foxx, and Ranking Member Andrews and members of the
subcommittees. Thank you for the opportunity to discuss with
you today the issue of National Labor Relations Board
jurisdiction over religiously-affiliated colleges and
universities.
I think it is important to note at the outset what this
issue is not about. This issue is not about whether employee
unionization and mandatory collective bargaining are valuable
legal and policy objectives under the NLRA. Instead, this issue
is about the freedom of religious institutions from government
interference with regard to their religious mission.
I want to make three brief points in my testimony. First,
the NLRB's use of a substantial religious character test to
determine the scope of the religious exemption from the NLRA is
at odds with over 30 years' worth of Supreme Court and lower
court precedent. Second, intrusion by the NLRB into the
internal matters of religious institutions poses a threat to
religious freedom.
And finally, opposition to NLRB jurisdiction over
religiously-affiliated colleges and universities is not
inconsistent with support by churches of the rights of workers
to unionize. In the landmark case of NLRB v. Catholic Bishop,
in 1979, the Supreme Court held that there is a significant
risk of violation of the First Amendment if board jurisdiction
extended to church-operated secondary schools.
As the court noted, a variety of issues that the board is
routinely called upon to resolve in labor disputes, such as
charges of unfair labor practices, would raise serious First
Amendment questions if applied to religious schools. Since
Catholic Bishop, courts have extended their holding of the case
to cover a broad range of religiously-affiliated schools.
Then Judge Stephen Breyer noted in 1986 that the court in
Catholic Bishop did not limit its holding to primary and
secondary schools, and that the same entanglement problems that
the Court identified in Catholic Bishop are acutely present in
higher education. The board now, however, takes the position
that Catholic Bishop is limited to schools with a substantially
religious character, and that the board should determine on a
case-by-case basis whether a school has such a character.
In order to make this determination, the board considers
such factors as the involvement of the religious institution,
the daily operation of the schools, the degree to which the
school has a religious mission and curriculum, and whether
religious criteria are used for the appointment and evaluation
of faculty. But these are precisely the sort of intrusive
inquiries that the First Amendment precludes.
In University of Great Falls v. NLRB, the D.C. Circuit
rebuked the board, and articulated a three-pronged test to
determine whether a religious institution was exempt from board
jurisdiction to avoid the intrusive inquiry into the good faith
claims of a religious university that Catholic Bishop seeks to
avoid. First, the institution holds itself out to students,
community and faculty as providing a religious educational
environment. Two, the institution is organized as a non-profit.
And three, the institution is a religiously affiliated.
The board has yet to employ this clear three-pronged test
that appropriately balances religious freedom with the
objectives of the NLRA, which argues for codification of the
Great Falls test in the statute. As the D.C. Circuit explained,
the Great Falls test allows the board to determine whether it
has jurisdiction without delving into matters of religious
doctrine or motive and without coercing an educational
institution into altering its religious mission to meet
regulatory demands.
Most recently, three Catholic schools--Saint Xavier in
Chicago, Manhattan College, and Duquesne University in
Pittsburgh--have had claims for exemption from board
jurisdiction rejected by the board, and are now appealing those
decisions. In each instance, the schools clearly satisfy the
test in Great Falls.
As Justice Brennan argued in his concurring opinion in
Presiding Bishop v. Amos, determining whether an activity is
religious or secular requires a searching case-by-case
analysis. This results in considerable ongoing government
entanglement in religious affairs. And the prospect of
government intrusion raises concern that a religious
organization may be chilled in its free-exercise activity.
It is ironic that the 200-plus Catholic colleges and
universities in the United States, which have had a mission for
generations of teaching not merely Catholic theology but also
business, science, literature, medicine and law, are now
threatened with being put under the thumb of NLRB oversight for
it. It is ironic that Catholic colleges and universities,
especially in major urban areas, that have long provided an
education for both Catholics and non-Catholics are now told by
the board that opening their doors to all gives license to the
board to interfere with the schools' hiring and employment
practices.
It is ironic that Catholic universities embrace of academic
freedom now gives cause to the board to conclude that they are
not really religious institutions after all. I hasten to add
that the Catholic Church has long been an advocate for the
rights of employees to form unions and for economic justice.
Indeed, Mr. Sweeney's boss, Richard Trumka, is a graduate of
Villanova law school.
But there is nothing inconsistent with affirming the
objectives of unionization while insisting that religious
freedom requires that religious institutions be free of
government oversight of employment practices. Whatever one's
views about the scope of employee rights to unionize under the
NLRA, those claims must yield to the institutional freedom of
religious schools. And the constitutionally appropriate test is
simply whether the school holds itself out as a religious
institution, is a non-profit and is religiously affiliated.
Further and more intrusive inquiry into an institution's
mission by the government jeopardizes the religious freedom of
schools to live out their character as they see fit. Thank you.
[The statement of Mr. Moreland follows:]
Prepared Statement of Michael P. Moreland, Vice Dean and
Professor of Law, Villanova University School of Law
Chairman Roe, Chairwoman Foxx , Ranking Member Andrews, Ranking
Member Hinojosa, and Members of the Subcommittees: Thank you for the
opportunity to discuss with you today the issue of National Labor
Relations Board jurisdiction over religiously-affiliated colleges and
universities. I am the vice dean and a law professor at Villanova
University School of Law, where I teach and write on topics related to
law and religion. Before moving into law teaching, I was an attorney at
Williams & Connolly here in Washington and was Associate Director of
the Domestic Policy Council at the White House. I am testifying today
in my personal capacity.
I think it is important to note at the outset what this issue is
not about. This issue is not about whether employee unionization and
mandatory collective bargaining are valuable legal and policy
objectives under the National Labor Relations Act. Instead, this issue
is about the freedom of religious institutions from government
interference with regard to their religious mission.
I wish to make three points in my testimony. First, the NLRB's use
of a ``substantial religious character'' test to determine the scope of
the religious exemption from the NLRA is at odds with over 30 years'
worth of Supreme Court and lower court precedents. Second, intrusion by
the NLRB into the internal matters of religious institutions poses a
threat to religious freedom. Finally, opposition to NLRB jurisdiction
over religiously-affiliated colleges and universities is not
inconsistent with support by churches of the rights of workers to
unionize.
For many years following enactment of the National Labor Relations
Act in 1935, the National Labor Relations Board did not exercise
jurisdiction over nonprofit educational institutions at all. Trustees
of Columbia University in the City of New York, 97 NLRB 424 (1951). By
the 1970s, however, the NLRB was routinely exercising jurisdiction over
educational institutions, including religiously-affiliated
institutions, with only an exemption for schools that were ``completely
religious'' and offered instruction only in religious subjects. Roman
Catholic Archdiocese of Baltimore, 216 NLRB 249 (1975).
In the landmark case of NLRB v. Catholic Bishop of Chicago in 1979,
the Supreme Court held that the doctrine of constitutional avoidance
required that NLRB's jurisdiction not extend to parochial school
teachers because (1) there was a significant risk of violation of the
First Amendment if NLRB jurisdiction extended to ``church-operated''
secondary schools, and (2) there was no clear indication of
congressional intent in the NLRA to give the NLRB jurisdiction over
teachers in church-operated schools. 440 U.S. 490 (1979). ``In the
absence of a clear expression of Congress' intent to bring teachers in
church-operated schools within the jurisdiction of the Board,'' the
Court wrote, ``we decline to construe the Act in a manner that could in
turn call upon the Court to resolve difficult and sensitive questions
arising out of the guarantees of the First Amendment Religion
Clauses.'' 440 U.S. at 507. As the Court noted, a variety of issues
that the NLRB is routinely called upon to resolve in labor disputes,
such as charges of unfair labor practices, would raise serious First
Amendment questions if applied to religious schools:
The resolution of such charges by the Board, in many instances,
will necessarily involve inquiry into the good faith of the position
asserted by the clergy-administrators and its relationship to the
school's religious mission. 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. 440 U.S. at 502.
Since Catholic Bishop, courts have expanded the holding of the case
to cover a broad range of religiously-affiliated schools, not merely
those that are ``church-operated'' and not merely primary and secondary
schools. Then-Judge Stephen Breyer noted in his opinion in Universidad
Central de Bayanom v. NLRB that the Court in Catholic Bishop did not
limit its holding to primary and secondary schools and that the same
entanglement problems that the Court identified in Catholic Bishop are
present in higher education:
[T]o fail to apply Catholic Bishop [to colleges and universities]
is to undercut that opinion's basic rationale and purpose. The Court
there rejected the Labor Board's pre-existing distinction between
``completely religious schools'' and ``merely religiously associated
schools.'' In doing so, it sought to minimize the extent to which Labor
Board inquiry (necessary to make the ``completely/merely-associated''
distinction) would itself entangle the Board in religious affairs.
Under this rationale, therefore, we cannot avoid entanglement by
creating new, finely spun judicial distinctions that will themselves
require further court or Labor Board `entanglement' as they are
administered. * * * These ad hoc efforts, the application of which will
themselves involve significant entanglement, are precisely what the
Supreme Court in Catholic Bishop sought to avoid. 793 F.2d 383, 402
(1st Cir. 1986) (en banc) (Breyer, J., for half of an equally divided
court).
NLRB presently takes the position that Catholic Bishop is limited
to schools with a ``substantial religious character'' and that the
Board should determine on a case-by-case basis whether a school has
such a character. In order to make this determination, the Board
``considers such factors as the involvement of the religious
institution in the daily operation of the schools, the degree to which
the school has a religious mission and curriculum, and whether
religious criteria are used for the appointment and evaluation of
faculty.'' In re University of Great Falls, 331 NLRB No. 188 at 3
(2000).
But these are precisely the sort of intrusive inquiries that the
First Amendment precludes. As the Supreme Court noted in its plurality
opinion in Mitchell v. Helms, ``[I]nquiry into * * * religious views
required by a focus on whether a school is pervasively sectarian is not
only unnecessary but also offensive. It is well established, in
numerous other contexts, that courts should refrain from trolling
through a person's or institution's religious beliefs.'' 530 U.S. 793,
828 (2000).
The Religious Freedom Restoration Act, enacted in 1993, brings with
it a new factor for the NLRB to consider when attempting to exercise
jurisdiction over religious educational institutions. RFRA requires
that the government not substantially burden the free exercise of
religion (even if the burden results from a rule of general
applicability) unless the burden is necessary for the furtherance of a
compelling governmental interest and is the least restrictive means of
achieving that interest. Three years after RFRA was enacted, the
University of Great Falls challenged the NLRB's finding that it was not
exempt from recognizing a faculty union, stating that the NLRB's
exercise of jurisdiction would violate RFRA. NLRB responded by stating
that RFRA had no effect on its jurisdictional decisions because the
Board's practices in the wake of Catholic Bishop avoided creating a
substantial burden on the freedom of the exercise of religion. The NLRB
then evaluated the Great Falls under its Catholic Bishop standard and
concluded that it was not ``church operated'' within the meaning of the
holding of Catholic Bishop largely because the Catholic Church was not
involved directly in the day-to-day management or administration of the
school.
The D.C. Circuit, in an opinion that sharply rebuked the Board,
held that the NLRB's determination of a school's religious character
was an inappropriate and invalid way to make jurisdictional
determinations. University of Great Falls v. NLRB, 278 F.3d 1335 (D.C.
Cir. 2002). The D.C. Circuit articulated a three-pronged test to
determine whether a religious institution was exempt from the
jurisdiction of the NLRB that would avoid the intrusive inquiry into
the good faith claims of a religious university that Catholic Bishop
sought to avoid: (1) the institution ``holds itself out to students,
faculty and community as providing a religious educational
environment,'' (2) the institution ``is organized as nonprofit,'' and
(3) the institution ``is affiliated with, or owned, operated, or
controlled, directly or indirectly, by a recognized religious
organization, or with an entity, membership of which is determined, at
least in part, with reference to religion.'' 278 F.3d at 1347. The NLRB
has yet to employ this clear three-pronged test that appropriately
balances religious freedom with the objectives of the NLRA, which
argues for codification of the Great Falls test in the statute. As the
D.C. Circuit explained, the Great Falls test ``allow[s] the Board to
determine whether it has jurisdiction without delving into matters of
religious doctrine or motive, and without coercing an educational
institution into aletering its religious mission to meet regulatory
demands.'' Id. at 1345. In 2008, another institution, Carroll College,
successfully challenged the Board's exercise of jurisdiction over it
when the D.C. Circuit again held that a school met all three components
of the test set forth in Great Falls. Carroll College v. NLRB, 558 F.3d
568 (D.C. Cir. 2009). The Board, however, continues to adhere to its
own ``substantial religious character'' framework for evaluating the
religious exemption of colleges and universities from NLRB oversight.
Most recently, three Catholic schools--St. Xavier in Chicago,
Manhattan College, and Duquesne University in Pittsburgh--have had
claims for exemption from NLRB jurisdiction rejected by the Board and
are now appealing those decisions. In each instance, the schools
clearly satisfy the test in Great Falls. For instance, the NLRB
maintains that Manhattan College, while clearly holding itself out to
be a religious institution, does not meet the admissions, hiring, and
curriculum criteria that the NLRB thinks exempted institutions must
meet in order to be ``substantially religious.'' In response, the
Association of Catholic Colleges and Universities and the Association
of Jesuit Colleges and Universities have filed amicus briefs on behalf
of their sister institutions.
Cases addressing similar attempts by government to distinguish
which institutions are ``really'' religious and which are not come to
the same conclusion. For example, in Colorado Christian University v.
Weaver, the U.S. Court of Appeals for the Tenth Circuit (in an opinion
written by then-Judge Michael McConnell) held that a Colorado public
scholarship program that excluded students who attended ``pervasively
sectarian'' universities was unconstitutional. 534 F. 3d 1245, 1250
(10th Cir. 2008). In order to determine if a university was
``pervasively sectarian,'' the government was required to examine the
curriculum of the school and take into consideration whether, for
example, the students were required to attend religious services. But
such inquiries are precisely what the First Amendment prohibits, for
``[t]hese determinations threaten to embroil the government in line-
drawing and second-guessing regarding matters about which it has
neither competence nor legitimacy.'' 534 F.3d at 1265. As Justice
William Brennan argued in his concurring opinion in Presiding Bishop v.
Amos, ``[D]etermining whether an activity is religious or secular
requires a searching case-by-case analysis. This results in
considerable ongoing government entanglement in religious affairs.
Furthermore, this prospect of government intrusion raises concern that
a religious organization may be chilled in its free exercise activity.
While a church may regard the conduct of certain functions as integral
to its mission, a court may disagree.'' Corp. of Presiding Bishop of
Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 343
(1978) (Brennan, J., concurring in the judgment).
The Board's narrow view of what constitutes a religious institution
is at odds with the approach taken in other contexts, such as
employment discrimination law. Title VII exempts religious
organizations from the prohibition on discrimination based on religion,
and both EEOC's own guidance and cases such as LeBoon v. Lancaster
Jewish Community Center Ass'n, 503 F.3d 217 (3d Cir. 2007), hold that
the exemption for religious institutions from Title VII's prohibition
on discrimination based on religion is quite broad. As Judge Roth put
it in the Thrid Circuit's opinion in LeBoon:
First, religious organizations may engage in secular activities
without forfeiting protection under Section 702. * * * Second,
religious organizations need not adhere absolutely to the strictest
tenets of their faiths to qualify for Section 702 protection. * * *
Third, religious organizations may declare their intention not to
discriminate, as the LJCC did to the United Way and in its employee
handbook, without losing the protection of Section 702. * * * Fourth,
the organization need not enforce an across-the-board policy of hiring
only coreligionists. * * * We will not deprive the LJCC of the
protection of Section 702 because it sought to abide by its principles
of ``tolerance'' and ``healing the world'' through extending its
welcome to non-Jews. 503 F.3d 217 at 230.
It is ironic that the 200-plus Catholic colleges and universities
in the United States--which have had a mission for generations of
teaching not merely Catholic theology but also business, science,
literature, medicine, and law--are now threatened with being put under
the thumb of NLRB oversight for it. It is ironic that Catholic colleges
and universities, especially in major urban areas (such as Boston
College, Fordham, St. John's, Georgetown, Villanova, DePaul, Loyola-
Chicago, and Loyola-Los Angeles) that have long provided an education
for both Catholics and non-Catholics are now told by the Board that
opening their doors to all gives license to the NLRB to interfere with
the school's hiring and employment practices. It is ironic that
Catholic universities' embrace of academic freedom and inquiry now
gives cause to the Board to conclude that they are not ``really''
religious institutions. As the D.C. Circuit put it in Great Falls:
If the University is ecumenical and open-minded, that does not make
it any less religious, nor NLRB interference any less a potential
infringement of religious liberty. To limit the Catholic Bishop
exemption to religious institutions with hard-nosed proselytizing, that
limit their enrollment to members of their religion, and have no
academic freedom, as essentially proposed by the Board in its brief, is
an unnecessarily stunted view of the law, and perhaps even itself a
violation of the most basic command of the Establishment Clause--not to
prefer some religions (and thereby some approaches to indoctrinating
religion) to others. 278 F.3d 1335, 1346 (D.C. Cir. 2002).
I hasten to add that the Catholic Church has long been an advocate
for the rights of employees to form unions and for economic justice.
But there is nothing inconsistent with affirming the objectives of
unionization while insisting that religious freedom requires that
religious institutions be free of government oversight of employment
practices. Indeed, as some commentators have noted, the collective
bargaining and labor dispute processes at the heart of NLRB
jurisdiction are in tension with what the Church holds out in its own
teaching. As one scholar has argued:
[B]ehind the bargaining process and a key factor in motivating the
parties to reach agreement is the availability of economic weapons and
the threat that they will be used. The presence of these weapons and a
corresponding ``area of labor combat'' is, as the Supreme Court has
said, part and parcel of the structure of the Act. Labor peace is
achieved under the Act by balancing the power of employers and
employees, directing both parties to bargain in good faith, and giving
each party wide discretion in the use of weapons should less
adversarial tactics fail.
This vision of the collective bargaining process is deeply
inconsistent with the Church's vision. For the Church, the animating
spirit in labor-management relations must be one of brotherhood and
cooperation. * * * Thus, for the Church, the collective bargaining
process is not one where the parties necessarily proceed from
antagonistic viewpoints and concepts of self-interest. To the contrary,
each party must try to understand the other's position, even put
themselves in the other's position, and genuinely seek reasoned
interchange and a harmonious outcome. The common good, not merely
common ground, should be the object of the negotiating process, and the
primary motivation for reaching agreement should be love, not fear.
Kathleen A. Brady. ``Religious Organizations and Mandatory
Collective Bargaining under Federal and State Labor Laws: Freedom From
and Freedom For,'' 49 Villanova Law Review 77, 121-22 (2004).
In conclusion, let me draw your attention to a recent case that I
think helpfully illuminates the debate over NLRB jurisdiction over
religious institutions. The United States Supreme Court held
unanimously earlier this year that the First Amendment grants religious
institutions immunity from discrimination claims with regard to
employment decisions about ``ministers,'' which includes a much broader
category of employees than merely ordained clergy. We can all agree
that employment anti-discrimination laws are important and valuable,
but, as Chief Justice Roberts wrote in his opinion for the Court, the
balance between religious freedom and ``the interest of society in the
enforcement of employment discrimination statutes'' has been decisively
struck by the First Amendment in favor of religious freedom. Hosanna-
Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694,
710 (2012). Similarly, we might have broad agreement about the
importance of the objectives of the NLRA, objectives that the Catholic
Church and many other churches embrace, but, when it comes to the
internal governance of religiously-affiliated colleges and
universities, the First Amendment--and a long line of Supreme Court and
court of appeals cases--strikes the balance on behalf of institutional
autonomy. Whatever one's views about the scope of employee rights to
unionize under the NLRA, those claims must yield to the institutional
freedom of religious schools, and the constitutionally appropriate test
is simply whether the school holds itself out as a religious
institution, is a non-profit, and is religiously-affiliated. Further
and more intrusive inquiry into an institution's mission by the
government jeopardizes the religious freedom of religiously-affiliated
schools to live out their character as they see fit.
______
Chairman Roe. I thank you.
Mr. Sweeney?
STATEMENT OF CHRISTIAN SWEENEY, DEPUTY ORGANIZING DIRECTOR,
AMERICAN FEDERATION OF LABOR--CONGRESS OF INDUSTRIAL
ORGANIZATIONS
Mr. Sweeney. Good morning. I want to thank Chairman Roe,
Ranking Member Andrews, Chairwoman Foxx, and Ranking Member
Hinojosa for the opportunity to testify before the committee
today. I serve as the deputy director of the organizing
department of the AFL-CIO.
I am grateful for the opportunity to address this hearing
because my own roots in the labor movement are in higher
education. I helped organize a union at the University of
California Berkeley when I was working as a graduate student
instructor while I pursued a Ph.D. in history. When I arrived
at Berkeley, TAs were making about $12,000 a year.
Many were faced with heavy workloads; teaching, grading and
running labs. We had serious concerns about the gaps in health
care coverage. Family health care was impossible to afford for
many student employees with children. At the same time, an
overwhelming majority of us were incredibly grateful to be
studying and working at such a fine institution.
We just wanted a way to have a serious conversation about
the issues we faced as university employees with the people who
established our terms and conditions of employment. Over the
course of several years, we built majority support for our
union and eventually won eight union representation elections
on each of the University of California campuses.
During the first contract negotiations, I served as the
president of our new local union. When we sat down to bargain,
we based many of our contract proposals on the best practices
that already existed within the university system itself.
Ultimately, we reached an agreement that addressed many of the
concerns we had about our rights as employees, increased wages,
and guaranteed health care for the first time.
The conditions that I faced as a teaching assistant were
not unique to the University of California. Today, over 100,000
people are employed as teaching and research assistants at
public and private universities across the United States. In my
years as an organizer assisting workers on campuses throughout
the country, I have heard remarkable stories about the
conditions these workers face.
One TA at a private university here in Washington told me
about how he severely injured his knee, but could not afford
the university's health insurance or the surgery to repair it.
On another campus, I heard complaints from a graduate student
employee of sexual harassment that she dared not raise for fear
of reprisals. She would have preferred to deal with that
problem through a quick union grievance procedure rather than
pursue slower, more public legal remedies.
Research assistants, as well, face very real workplace
issues in labs. Researchers regularly deal with carcinogens,
radioactive materials and extreme fire hazards. Recently, for
example, a lithium fire claimed the life of a researcher at
UCLA. The notion that the NLRB or big labor is somehow pushing
its way into academia is misguided.
In fact, the opposite is true. Workers in academia are
reaching out to unions in large numbers. In the 14 years that I
have been an elected leader and a staff person, I have worked
on 12 union representation elections in higher education with
20,000 eligible workers. Workers ultimately voted for
collective bargaining in 11 of the 12 elections.
The reason for this outcome is that workers in higher
education have very real workplace concerns that they want to
address through the democratic process of collective
bargaining. Universities today are relying increasingly in
contingent, short-term teachers and researchers. In 2009, only
24.4 percent of instructional staff in higher education were
full-time tenure-track members.
The sciences are also more heavily relying on contingent
researchers. In the past, a new Ph.D. might expect to work as a
post-doc for a year or 2. Now, 5, 7, even 10 years of low-paid
postdoctoral researcher positions is common. In the last
decade, thousands of postdoctoral researchers have organized
unions in California, New Jersey and Massachusetts.
In recent years, the most significant intrusion into higher
education by the NLRB, in my view, came in 2004 when the Bush
National Labor Relations Board stripped the right to form a
union under federal law from teaching assistants and research
assistants in private universities. All the TAs and RAs are
asking for now of the board is to return to their earlier
precedent and apply the common law.
Service compensation direction control are the three
factors that common law looks at to define who is an employee.
Do TAs and RAs meet these standards? I think the answer is an
unequivocal yes. They provide a valuable service--teaching and
research--that the universities rely on. They are compensated
for their work, and pay taxes on their wages.
And finally, universities control their work in the
classroom and the lab. Some would like to say that there are
too many unknowns to allow TAs and RAs the freedom to form
unions. But the reputation of the fine graduate programs at the
University of California Berkeley, Michigan, Wisconsin and
other schools provide evidence.
My own alma mater, I am proud to say, Berkeley, has more
top-ranked Ph.D. programs than any other university in the
country public or private. And that has not changed since we
first organized our union a little over 10 years ago.
Additionally, the concerns about academic judgment, as well,
can be relatively easily addressed.
Article 22 of the contract between NYU and the UAW stated
this is the only contract that existed in a private university.
Decisions regarding who is taught, what is taught, how it is
taught and who does the teaching involve an academic judgment,
and shall be made solely at the discretion of the university.
Some of our opponents would like to portray union activists
in these campaigns as insensitive to the special
characteristics of universities. Let me close by saying that
the people who form these kinds of unions have deep and lasting
commitments to higher education. In fact, Biddy Martin and
Robert Holub, the presidents of the University of Wisconsin and
the University of Massachusetts at Amherst, were both early
members of the Teaching Assistants Association, the Union for
Teaching Assistants at the University of Wisconsin.
And with that, I close. And thank you very much.
[The statement of Mr. Sweeney follows:]
Prepared Statement of Christian Sweeney, Deputy Director,
Organizing Department, AFL-CIO
My name is Christian Sweeney and I serve as the Deputy Director of
the Organizing Department of the AFL-CIO. I am grateful for the
opportunity to address this hearing because, while I have assisted
workers from many different industries in organizing unions, my own
roots in the labor movement are in higher education. I helped to
organize a union at my own university, the University of California,
Berkeley when I was working as a teaching assistant and an instructor
while I pursued a Ph.D. in history. When I arrived at Berkeley in the
late 1990's, TAs were making about $12,000 a year. Many of us faced
heavy workloads--teaching classes, grading papers, running labs--and
lacked an effective means to address this issue. Many TAs had serious
concerns about gaps in coverage in the university's health insurance
system. Family healthcare was impossible to afford for many student
employees with children. At the same time, the overwhelming majority of
us were incredibly grateful to be studying and working at such a fine
institution. Our problem wasn't with issues that we faced as students.
The quality of the faculty, labs, and library were all excellent. And
we were sensitive to the university's budget challenges. We just wanted
a way to sit down and have a serious conversation about the issues we
faced as university employees with the people who established our terms
and conditions of employment. Over the course of several years, we
built majority support for our union and eventually won eight union
representation elections on each of the University of California
campuses. During the first contract negotiations, I served as the
President of our newly constituted local union. When we sat down to
bargain, we based many of our contract proposals on best practices that
existed within the university system itself, but were not universally
implemented. Ultimately, we reached an agreement with the university
that addressed many of the concerns we had about our rights as
employees, increased wages, and guaranteed healthcare for the first
time.
The conditions that I faced as a teaching assistant were not unique
to the University of California. Today, over 100,000 people are
employed as teaching assistants and thousands more as research
assistants at public and private universities across the United States.
TAs make up about 20% of the instructional workforce in higher
education, and many rely on this employment as they pursue advanced
degrees in their fields of academic study.\1\ Faced with low pay for
teaching, many work additional jobs and rely on loans to make ends
meet. In my years as an organizer assisting workers on campuses
throughout the country, I have heard remarkable stories about the
conditions these workers face. One TA at a private university here in
Washington told me about how he severely injured his knee but could not
afford the university's health insurance or the surgery to repair it.
On another campus, I heard complaints from a graduate student employee
of sexual harassment that she dared not raise for fear of reprisals.
She would have preferred to deal with the problem through a quick union
grievance procedure rather than pursue slower, more public legal
remedies. Research assistants face very real workplace issues in labs.
Researchers regularly deal with carcinogens, radioactive materials, and
extreme fire hazards. In the last few years, for example, fire claimed
the life of a researcher at UCLA.\2\
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\1\ Brown University, 342 NLRB 483 (2004).
\2\ http://latimesblogs.latimes.com/lanow/2012/09/ucla-professor-
arraigned-on-charges-in-fatal-2008-lab-fire.html .
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The notion that the NLRB or ``Big Labor'' is somehow pushing its
way in the academia is misguided. In fact, the opposite is true.
Workers in academia are reaching out to unions in large numbers. There
was a wave of clerical workers and service and maintenance workers who
organized on campuses in the 1970's and 1980's. Today, we are seeing
sustained interest in organizing on the part of college and university
teachers and researchers. In the twelve years that I have been an
elected leader, and subsequently a union staff person, I have worked on
twelve union representation elections that resulted in over 20,000
employees obtaining representation in colleges and universities. Every
single one of those 12 organizing campaigns was started because workers
in those institutions reached out to the union for help in organizing.
Workers ultimately voted for collective bargaining in eleven of the
twelve elections. I am a good organizer, but I am not that good. The
reason for this outcome is that thousands of workers in higher
education have very real workplace concerns that they want to address
through the democratic process of collective bargaining.
In considering who has initiated organizing on college and
university campuses and whether real workplace concerns are moving
employees there to organize, it is worth bearing in mind that this is a
well-informed workforce with considerable access to information. The
faculty and graduate assistants who have organized and considered their
employment conditions, made a considered and informed decision to
engage in collective bargaining.
While there has been an upsurge in interest in organizing among
university employees, collective bargaining in higher education is
nothing new. The NLRB asserted jurisdiction over private, non-profit
universities forty years ago in Cornell University, 183 NLRB 329
(1971). Soon thereafter the Board approved units of faculty members and
it has continued to do so continuously since that time. See New York
University (``NYU''), 332 NLRB 1205, 1208 (2000) (citing cases). In
1999, the Board held that medical interns and residents were employees
protected by the Act. Boston Medical Center, 330 NLRB 152 (1999). In so
holding, the Board squarely rejected the argument that ``granting
employee status to employees who are also students would improperly
permit intrusion by collective bargaining into areas of academic
freedom.'' NYU, 332 NLRB at 1208. A year later, the Board unanimously
applied its holding concerning interns and residents to graduate
assistants at New York University. Collective bargaining by graduate
assistants has an even longer history in the public sector, dating back
to 1969 at the University of Wisconsin. See Brown University, 342 NLRB
483, 493 n. 1 (2004) (Members Liebman and Walsh dissenting). As Board
Member Liebman and Walsh observed in 2004, ``Collective bargaining by
graduate student employees is increasingly a fact of American
University life. Graduate student unions have been recognized at
campuses from coast to coast, from the State University of New York to
the University of California.'' Id. at 493.
A. Why Do Workers In Higher Education Want To Form And Join Unions?
University and college employees, especially teachers and
researchers, want to form unions because they need to protect their
interests as employees. There was time when getting a Ph.D. meant a
secure future as a faculty member. In 1970, 68 percent of new Ph.D.'s
found full-time tenure track jobs. By the 1980's that was down to 51
percent.\3\ Looking at the issue from the perspective of the percentage
of total instructional staff, in 1975, 55.4 percent of instructional
staff was full-time tenure track and full-time non-tenure track. By
2009, that number had shrunk to 39.5 percent and a mere 24.4 percent of
faculties were tenure track faculty, the faculty with the most
institutional stability.\4\
---------------------------------------------------------------------------
\3\ Joe Berry, Reclaiming the Ivory Tower (Monthly Review Press,
2005) at p. 5.
\4\ http://www.aaup.org/NR/rdonlyres/7C3039DD-EF79-4E75-A20D-
6F75BA01BE84/0/Trends.pdf, U.S. Department of Education, IPEDS Fall
Staff Survey.
---------------------------------------------------------------------------
As public funding for higher education has decreased, both public
and private institutions have come to rely increasingly on teachers and
researchers employed on a part-time and contingent basis who can be
hired relatively inexpensively. While this trend is well-known in the
humanities and social sciences, the sciences and engineering are also
more heavily relying on contingent researchers. In the past, some new
Ph.D.'s commonly worked as postdoctoral researchers for a year or two
before landing a faculty position. Today, that has changed. It is now
expected that almost all science and engineering Ph.D.'s will spend
five or more years in low paying ``post doc'' positions.\5\ In the last
decade, thousands of postdoctoral researchers have organized unions in
California, New Jersey, and Massachusetts.
---------------------------------------------------------------------------
\5\ http://the-scientist.com/2012/08/01/opinion-the-postdoc-
challenge/.
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B. Teaching and Research Assistants
Teaching and research assistants have been at the forefront of
union organizing in higher education for some time. TA and RA unions
have become increasingly common since they first began in the late
1960's. There is a new wave of organizing happening today, but many of
our best public research universities--Wisconsin, Michigan, Oregon,
Washington, the UC schools--have been organized for some time. The real
intrusion into higher education by the NLRB came in 2004 when the Bush
NLRB stripped the right to form a union under the federal law from TAs
and RAs at private universities.
Despite the extended experience with collective bargaining in
higher education, which is devoid of any evidence of interference with
the mission of colleges and universities, in 2004, the Board abruptly
reversed course and denied graduate assistants the protections of the
Act. Brown University, 342 NLRB 483 (2004). In dissent, Members Liebman
and Walsh described the majority's ``troubling lack of interest in
empirical evidence.'' Id. at 493. By 2004, that empirical evidence
consisted not only of a bargaining history at more than 20
universities, but studies demonstrating ``that collective bargaining
has not harmed mentoring relationships between faculty members and
graduate students.'' Id. at 493 n. 1, 499. The Board currently has
pending before it another case arising out of NYU in which it has been
asked to return to the position it articulated in 2000 that individuals
can be both students and employees covered by the Act. I believe this
is a sound position.
In this regard, I would encourage those seeking to understand this
issue to look at the experience in public universities. The work of
teaching assistants and research assistants at public and private
universities is virtually indistinguishable. Across the country,
teaching assistants and research assistants teach stand-alone courses,
grade papers and exams, lead discussion sections, conduct undergraduate
science laboratory classes, and serve as front-line researchers in
nearly every university research laboratory. Both public and private
universities rely heavily on their work. At Columbia University, when
TAs organized around 2000, more than half of the courses in the core
curriculum were taught by TAs. Similarly, at the University of
California, about 60 percent of classroom instruction is provided by
TAs. It is worth noting that UC Berkeley has more top-ranked graduate
programs than any other university.\6\ Likewise, other universities
with union TAs, like the Universities of Wisconsin and Michigan, have
more than their share of the very best Ph.D. programs. But you need not
rely solely on rankings of graduate programs. Peer reviewed research
has also demonstrated that an overwhelming majority of faculty believe
that collective bargaining by TAs and RAs has a positive or neutral
effect on mentor-mentee relationships.\7\
---------------------------------------------------------------------------
\6\ In the latest National Research Council study, Berkeley had the
highest number of top-ranked doctoral programs in the nation, based on
a regression analysis involving 20 criteria from more than 5,000
programs at 212 institutions. http://grad.berkeley.edu/admissions/#1
(September 9, 2012).
\7\ ``9 of 10 Professors Say Grad-Student Unions Don't Strain
Advisor-Advisee Ties,'' The Chronicle of Higher Education, November
1999.
---------------------------------------------------------------------------
Concerns over the impact of collective bargaining on the
educational mission of universities are not well founded. At NYU, the
only private university ever to have had a contract for TAs and RAs,
the union and the university reached an agreement to allay the
administration's concerns about collective bargaining's intrusion into
matters of academic judgment. Article XXII of the contract states,
``[d]ecisions regarding who is taught, what is taught, how it is taught
and who does the teaching involve academic judgment and shall be made
at the sole discretion of the University.'' \8\
---------------------------------------------------------------------------
\8\ http://www.2110uaw.org/gsoc/NYU--2110--contract.pdf .
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C. Faculty and Issues Arising Under the National Labor Relations Act
In addition to the status of teaching and research assistants, the
NLRB has also repeatedly considered two other issues related to the
application of the Act to faculty.
First, in NLRB v. Yeshiva University, 444 U.S. 672 (1980), the
Supreme Court held that the implied exemption from NLRA coverage for
so-called managerial employees applies as well to college faculty
members to the extent that the faculty exercises managerial authority.
The Court held that the exemption covered the faculty members at
Yeshiva, because their authority over University academic policy was
nearly absolute. In the thirty-plus years since Yeshiva was decided,
the Board has decided numerous cases involving the managerial status of
college faculty members, sometimes finding that the faculty members
have sufficient authority to be excluded from NLRA coverage, sometimes
finding that they do not. But I submit that as the Sixth Circuit stated
in a case interpreting Yeshiva, ``[T]he [managerial] exception must be
narrowly construed to avoid conflict with the broad language of the
Act, which covers `any employee,' including professional employees.''
Kendall Memorial School v. NLRB, 866 F.2d 157, 160 (6th Cir. 1989). As
the NLRB has noted, an overly broad application of the managerial
exception can result in the exclusion of an entire class of
professional employees from the coverage of the NLRA. University of
Great Falls, 325 NLRB 83, 93 (1997), aff'd, 331 NLRB 1663 (2000),
reversed on other grounds, 278 F.3d 1335 (D.C. Cir. 2002). This is
consistent with the Yeshiva majority's assertion that ``[w]e certainly
are not suggesting an application of the managerial exclusion that
would sweep all professionals outside the Act in derogation of
Congress' expressed intent to protect them.'' 444 U.S. at 690.
Some critics have also expressed concern about the impact of
faculty collective bargaining on academic freedom. This issue is
perhaps best answered by the American Association of University
Professors, which actively defends academic freedom.
The basic purposes of the American Association of University
Professors are to protect academic freedom, to establish and strengthen
institutions of faculty governance, to provide fair procedures for
resolving grievances, to promote the economic well-being of faculty and
other academic professionals, and to advance the interests of higher
education. Collective bargaining is an effective instrument for
achieving these objectives.\9\
---------------------------------------------------------------------------
\9\ http://www.aaup.org/AAUP/pubsres/policydocs/contents/
statementcolbargaining.htm, (September 10, 2012).
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The D.C. Circuit has recently called upon the Board to more fully
explain its analysis under Yeshiva. The Board is undertaking to do that
in Point Park University, which is on remand from the D.C. Circuit, and
has called for amicus briefs advising it on that matter.
Second, in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979),
the Supreme Court created an implied exemption from NLRA coverage for
primary and secondary school teachers at religious schools in order to
avoid a serious constitutional question under the First Amendment. The
Court did so on the grounds that teaching at that level would
inevitably involve some degree of religious instruction, no matter what
formal subject matter was being taught. The Board has extended Catholic
Bishop to exempt certain college teachers. The District of Columbia
Circuit Court of Appeals has questioned whether the Board's method of
determining a college's religious nature unduly intrudes upon the
college's right to freely exercise its religion. The Board has several
cases pending in which it should be able to articulate an application
of the Catholic Bishop consistent with the D.C. Circuit's understanding
of Catholic Bishop.
D. Conclusion
In the last thirty years American higher education has changed,
among the greatest of those changes has been the use of contingent
instructional and research staff. No one should be surprised that the
employees most impacted by those changes are coming together through
the democratic process of collective bargaining to make their votes
heard. Adjunct faculty, many of whom are paid as little as $1,500 for a
teaching a semester-long course, and graduate student employees are an
inexpensive way for many universities and colleges to close their
budget gaps. All these workers are asking for is a method to have some
small measure of say in their work lives. That is a right which we
afford to almost every private sector employee and universities have
not made the case for why they deserve a special exception. Collective
bargaining is a democratic and rational process that allows management
and workers to find common ground to make their workplaces better. By
its very definition it is flexible and there is no reason why workers
including teachers and researchers should be denied the right to
participate in collective bargaining.
______
Chairman Roe. Thank you, Mr. Sweeney.
Mr. Hunter?
STATEMENT OF WALTER HUNTER, SHAREHOLDER,
LITTLER MENDELSON, P.C.
Mr. Hunter. Chairman Roe, Chairwoman Foxx, Ranking Member
Andrews, thank you very much for having me here to testify. It
is a great honor.
My name is Walter Hunter. I am a shareholder in the law
firm of Littler Mendelson and co-chair of Littler's higher
education practice group. The views that I express today are my
own, but are based on 30 years' of experience in labor
relations; 22 as a labor attorney in private practice, and 8 as
Brown University's former vice president of administration.
I am not appearing today on behalf of Brown or Littler or
any client or any organization. First, let me say that I am
confident you will agree with me that higher education in
America is a national treasure. This noble enterprise promotes
learning, supports research and inspires creativity in ways
that are the envy of the world.
In the field of labor law, higher ed is also quite
different from private industry. Although you can expect
colleges and universities to fiercely protect academic freedom,
teaching, learning and research, my experience is that colleges
and universities have a very intense desire to promote positive
labor relations.
Colleges and universities may disagree with the positions
of organized labor on some issues, but they do so with a
profound sense of appreciation for the labor movement and the
collective bargaining process, where appropriate. There are a
number of NLRB issues that affect higher ed that concern me,
which are addressed in more detail in my written statement.
Grad student unions. As you know, in Brown University the
NLRB held that graduate student assistants who perform services
at the university in connection with their studies are not
statutory employees within the meaning of the act. I believe
that Brown was well-reasoned and correctly decided, and that
overruling Brown would be a terrible mistake.
Collective bargaining is an inappropriate model to resolve
broad academic issues with graduate students, such as class
size, financial aid, who, what, when and where to teach or
conduct research. Collective bargaining is also an
inappropriate model to govern the relationship between faculty
members and the students whom they mentor.
Revisiting Yeshiva. Last May, a divided NLRB invited briefs
from the public on what appears to be an effort to revisit the
Supreme Court's decision in Yeshiva that faculty are managerial
employees. The court made poignant observations that still hold
true in universities today. Faculty decide what courses will be
offered, when they will be scheduled, and to whom they will be
taught.
Faculty debate will determine teaching methods, grading
policies, matriculation standards. And after listening to
numerous other faculty responsibilities, the court went on to
say, quote--``When one considers the functions of a university,
it's difficult to imagine decisions more managerial than
these.''
I agree with the 7th Circuit Court of Appeals, which urged
the NLRB to exercise caution and not interfere with the
delicate balance of a college's governing structure. The court
noted that private colleges are plagued with reductions in
government support, spiraling costs and declining enrollments,
and must rely on faculty and the collegial decision-making
process to promote educational excellence within the bounds of
financial resources.
Social media and other policies. Colleges and universities
draft policies that promote safe, supportive, nurturing and
creative environments. To promote learning and academic
freedom, many college and university policies urge members of
the community to treat each other with courtesy, civility and
mutual respect. Some policies expressly incorporate those goals
into workplace nonviolence policies. Unfortunately, many of
these policies would be viewed as unlawfully over-broad by the
general counsel on the board.
Confidential investigations. The NLRB's recent Banner
Health System case held that an employer must establish a
specific, legitimate business justification for requiring
employees to maintain confidentiality during internal
investigations of employee complaints. This makes it more
difficult for colleges and universities to create an atmosphere
where students, faculty and staff feel comfortable reporting
incidents of harassment and discrimination. Colleges and
universities should be given wide berth to establish reasonable
confidentiality rules here.
Quickie elections. Requiring higher ed employees to vote in
a union election 10 or 18 days after a union petition has been
filed is just completely inconsistent with what a university is
all about. Universities are places where people make informed
decisions after carefully studying the relevant facts and
arguments.
Micro-bargaining units. The NLRB's Specialty Healthcare
decision regarding the appropriateness of bargaining units
represents a fundamental shift in what has been settled law for
decades. The proliferation of micro-units could raise costs of
administration, decrease efficiency, reduce effectiveness,
deprive employees of an effective choice, and result in unfair
and inconsistent treatment of employees.
Campus access rights. The board has issued decisions making
it difficult for universities to control access rights to their
campuses. Nothing is more important than the safety of
students, faculty and staff, and a university should be able to
set its own consistently-enforced, reasonable requirements
regarding the extent to which it will make its campus
accessible.
Thank you very much.
[The statement of Mr. Hunter follows:]
Prepared Statement of Walter C. Hunter, Esq., Shareholder,
Littler Mendelson, P.C.
I wish to thank Committee Chairman Kline, Committee Ranking Member
Miller, Subcommittee Chairwoman Fox, Subcommittee Chairman Roe, Ranking
Subcommittee Members Hinojosa and Andrews and Members of this Committee
for inviting me to testify before you on this important topic. It is a
great honor and privilege to appear before you today.
My name is Walter Hunter. I am a Shareholder in the law firm of
Littler Mendelson, P.C. and co-chair of Littler's higher education
practice group. With over 900 attorneys, Littler is the largest law
firm in the world dedicated exclusively to the practice of labor and
employment law. The views I express to you here today are my own. They
are based on thirty years of experience in labor relations--22 as an
attorney in private practice representing employers in many industries,
and eight years as an executive--Brown University's Vice President of
Administration from 2000-2008. I am not, however, appearing here today
on behalf of Brown, Littler Mendelson, any client or any organization.
As a labor lawyer with the unique perspective of having been a
former VP of Administration, I would like to share some of my views
regarding NLRB issues that may particularly affect higher ed.
First, I am confident that you will agree with me that higher
education in America is a national treasure. This noble enterprise
promotes learning, supports research and inspires creativity in ways
that are the envy of the world.
In the field of private sector labor law, higher ed is also quite
different from private industry. Although you can expect colleges and
universities to fiercely protect academic freedom, teaching, learning
and research, my experience is that colleges and universities have a
very intense desire to be leaders in the promotion of positive labor
relations. After all, colleges and universities educate the future
labor leaders of the world. Colleges and universities may disagree with
the positions of organized labor on some issues, but they do with a
profound sense of respect for the labor movement and the value of
unions to our society. They insist on advancing the cause of positive
labor relations and have a deep respect for the collective bargaining
process where appropriate.
There are a number of significant legal issues currently being
considered by the NLRB or the General Counsel in areas that have a
direct impact on private sector colleges and universities. Some of the
ones that are the most concerning to me are the following:
1. Grad Student Unions
As you know, in Brown University,\1\ the NLRB held that graduate
student assistants who perform services at a university in connection
with their studies are not statutory employees within the meaning of
Section 2(3) of the National Labor Relations Act, because they ``have a
primarily educational, not economic, relationship with their
university.'' The Board has announced its interest in revisiting this
question and has invited briefs on the question of whether the Board
should overrule Brown.
I believe Brown was correctly decided, and that overruling Brown
would be a terrible mistake. In Brown, the Board said that: ``imposing
collective bargaining would have a deleterious impact on overall
educational decisions * * * These decisions would include broad
academic issues involving class size, time, length, and location, as
well as issues over graduate assistants' duties, hours, and stipends.
In addition, collective bargaining would intrude upon decisions over
who, what, and where to teach or research--the principal prerogatives
of an educational institution * * * Although these issues give the
appearance of being terms and conditions of employment, all involve
educational concerns and decisions, which are based on different, and
often individualized considerations.''
This does not mean that graduate students would not have a voice,
because they do. Whether it is individually, through graduate student
councils or via other mechanisms for communication, the interests of
grad students are robustly presented and debated inside our colleges
and universities. However, for the reasons articulated by the Board in
its well-reasoned decision in Brown, I feel strongly that collective
bargaining is not the proper model to address these issues.
2. Revisiting Yeshiva
On May 22, 2012, a divided NLRB issued a Notice and Invitation to
File Briefs on a number of issues related to the Supreme Court's
decision in NLRB v. Yeshiva University.\2\ This invitation was issued
in connection with a case that began almost ten years ago involving an
effort by the Communications Workers Union to organize faculty at Point
Park University.\3\
The Union petitioned to represent faculty at Point Park University
in October, 2003. The University argued that under Yeshiva, its faculty
members are managerial employees and therefore exempt from bargaining.
The Board ruled against the University in 2005, but in August 2006 the
U.S. Court of Appeals for the D.C. Circuit vacated that decision and
remanded the case to the Board for a fuller analysis under Yeshiva.\4\
The D.C. Circuit remanded the case to the Board because it felt
that Yeshiva requires a detailed analysis of the faculty members'
degree of control over academic matters, including curriculum, course
schedules, teaching methods, grading policies, matriculation standards,
admission standards, size of the student body, tuition to be charged,
and location of the school. The Court instructed the Board to identify
which of the relevant factors set forth in Yeshiva are significant,
which are less so, and why.
Rather than limiting itself to the mandate of the D.C. Circuit and
examining the relevant facts in the Point Park University case, the
NLRB seems to be using this case as an opportunity to set the stage for
a revisit of Yeshiva itself. I believe that Yeshiva was properly
decided. The Court clearly understood that not every university is the
same, and the decision wisely left enough room for the Board to
conclude that faculty at some universities do not meet the managerial
standard. There is no reason to revisit the principles announced in
Yeshiva, however, because those principles have not changed over time.
The Supreme Court recognizes that higher education is unique. The
Court explained that ``the `business' of a university is education, and
its vitality ultimately must depend upon academic policies that largely
are formulated and generally are implemented by faculty governance
decisions.'' \5\ ``The Act was intended to accommodate the type of
management-employee relations that prevail in the pyramidal hierarchies
of private industry.'' \6\ The Court observed that ``in contrast,
authority in the typical `mature' private university is divided between
a central administration and one or more collegial bodies.'' \7\
The Court made poignant observations in Yeshiva which still hold
true at universities today:
They decide what courses will be offered, when they will be
scheduled, and to whom they will be taught. They debate and determine
teaching methods, grading policies, and matriculation standards. They
effectively decide which students will be admitted, retained, and
graduated. On occasion their views have determined the size of the
student body, the tuition to be charged, and the location of a school.
When one considers the function of a university, it is difficult to
imagine decisions more managerial than these. To the extent the
industrial analogy applies, the faculty determines within each school
the product to be produced, the terms upon which it will be offered,
and the customers who will be served. * * * The problem of divided
loyalty is particularly acute for a university like Yeshiva, which
depends on the professional judgment of its faculty to formulate and
apply crucial policies constrained only by necessarily general
institutional goals. The university requires faculty participation in
governance because professional expertise is indispensable to the
formulation and implementation of academic policy.\8\
To the extent that a factual inquiry reveals that a particular
university operates on a completely different model under which faculty
do not participate in such governance, Yeshiva allows for that factual
inquiry to yield a different result. However, my experience is that the
fundamentals described in Yeshiva are still true today. No revisit of
Yeshiva by the Board is necessary or appropriate.
It is also instructive to consider the wise counsel of the Seventh
Circuit Court of Appeals in NLRB v. Lewis University.\9\ The Court
decisively rejected the argument that the faculty's decisions were
merely exercises of their independent professional judgment rather than
as managers. The court urged the NLRB to exercise caution in applying
the managerial analysis so as not to interfere in the delicate balance
of a college's governing structure. The court noted that private
colleges are plagued with reductions in government support, spiraling
costs and declining enrollments, and must rely on faculty and the
collegial decision-making process to produce educational excellence
within the bounds of limited financial resources.\10\ I agree.
Many of those outside of higher ed fail to appreciate, or even fail
to respect the unique ways in which our colleges and universities
govern themselves. But this system of governance, unusual as it is, has
created the most amazing system of education in the world.
3. Social Media and Other Policies
The NLRB and the General Counsel's office have become very active
with respect to the interplay between communications through social
media and the Section 7 rights of employees. The NLRB's Office of the
General Counsel has been particularly active in its efforts to mold
policy in this area.\11\ I have significant concerns over what the
impact of future decisions in this area might have on colleges and
universities with respect to issues of safety and the maintenance of a
climate conducive to learning.
Colleges and universities treasure their environments. They work
hard to foster environments that are safe, collegial, engaging and
respectful. They publish policies that urge members of the community to
behave in a manner that engenders mutual respect, and treat each other
with courtesy and civility. Recognizing the incidence of violence in
the workplace, some policies expressly incorporate the goals of
civility, respect and integrity in their workplace non-violence
policies.
The Office of General Counsel Memorandum Number OM 12-59 examined a
number of social media policies, explaining why the felt certain
policies were unlawful. Some of the results are surprising, even
disturbing. For example, the Memorandum states that the Office found
unlawful an employer's instruction that ``[o]ffensive, demeaning,
abusive or inappropriate remarks are as out of place online as they are
offline.'' The rationale for the Office's position was that the
prohibition was ambiguous as to its application of Section 7. It
believes an employee might believe that the policy prohibits criticisms
of labor policies or treatment of employees.\12\
The Memorandum goes on to explain what employers would have to do
to promulgate policies satisfying the General Counsel's view of the
legal requirements. I believe universities and colleges would find the
instructions confusing. More importantly, I believe the focus here is
misplaced. Colleges and universities should be able to exercise their
judgment on how best to promote a safe, supportive, nurturing, creative
environment by publishing policies that promote these important values.
These policies do not chill Section 7 activity, and colleges and
universities would not use them to punish Section 7 activity.
4. Confidential Investigations
On July 30, 2012, in a ruling that affects both union and non-union
employers, the National Labor Relations Board held that an employer
must establish a specific legitimate business justification for
requiring employees to maintain confidentiality during internal
investigations of employee complaints. In Banner Health System d/b/a
Banner Estrella Medical Center,\13\ the Board, by a 2 to 1 majority,
held that an employer may not maintain a blanket rule prohibiting
employees from discussing ongoing investigations of employee
misconduct. According to the Board, such a rule violates Section 7 of
the National Labor Relations Act, which protects employees' rights to
engage in ``concerted activities'' for their mutual aid and protection,
regardless of whether the employees belong to a union.
The facts at issue in Banner Health System are straightforward. The
NLRB's general counsel alleged that the medical center's ``Interview of
Complainant Form,'' which included a general instruction that employees
making internal complaints not discuss their complaints with coworkers
during the ensuing investigation, violated Section 8(a)(1) of the Act.
The medical center's human resources consultant did not provide
employees with copies of the form during interviews, but instead used
it as a guide for conducting those interviews. As such, the human
resources consultant routinely--but not always--relayed the instruction
to complaining employees.
The Board rejected the employer's argument that the confidentiality
instruction was necessary to protect the integrity of its
investigations and found the employer's ``generalized concern''
insufficient to outweigh employees' Section 7 rights. Instead, the
Board concluded, in every investigation, an employer must identify a
specific need to protect witnesses, avoid spoliation of evidence or
fabrication of testimony, or prevent a cover-up, before instructing
employees to maintain confidentiality. Consequently, in the Board's
view, the employer's blanket instruction violated the Act.
Colleges and universities have solemn obligations to investigate
harassment and discrimination. They are required to have Title IX
coordinators, and they are required to maintain policies and an
atmosphere where students, faculty and staff feel comfortable reporting
incidents of harassment and discrimination. I can tell you from
personal experience that people reporting such activities are
invariably concerned about the confidentiality of their interviews, or
the confidentiality of the interviews conducted of other witnesses.
Certainly, the effectiveness of an investigation itself could be
compromised by an early disclosure. Colleges and universities should be
able to set their own policies about how to address such
confidentiality concerns consistent with their legal obligations under
numerous federal laws. This can be done with appropriate recognition of
the legitimate Section 7 concerns that may arise.
5. Other Issues
There are several other issues before the Board that impact higher
education in important ways. They include procedures for representation
elections, bargaining unit composition and property access rights.
a. Representation Procedures.
When the National Labor Relations Board adopted a new rule in
December 2011 modifying certain NLRB election procedures, there was
substantial speculation about how these changes would be implemented,
and their practical effect. There have been legal challenges to these
rules, of course, and there have been announced intentions of
revisiting the issue, even if the rules are ultimately struck down. The
proposed rules raise many concerns, the most significant of which is
the expected timeline from petition to election.
General Counsel's Memorandum\14\ was designed to provide detailed
guidance to the NLRB's Regional Directors, who would be responsible for
implementing the new rule. Currently, the NLRB has a time target of
holding an election within 42 days after a petition is filed. The
General Counsel's memorandum does not officially change this 42day time
target, but the streamlined procedures would make it possible for an
election to be scheduled within 18 days after the petition is filed, or
even faster in some circumstances.
I believe requiring higher ed employees to vote in a union election
eighteen days after a petition has been filed is completely
inconsistent with what a university is all about. Universities are
places where people make informed decisions after carefully studying
the relevant factors and arguments involved in a thoughtful way.
Whatever the purpose may be of scheduling an election eighteen days
after a petition, the effect will be that employees will be less
informed when they make their decision. It deprives universities of
their rights to articulate their position, it deprives employees of
their rights to be fully informed and deprives employees who might be
opposed to the unionization effort to research the issue and discuss
the same with their colleagues.
b. Bargaining unit composition.
In August of 2011, the Board issued a decision in the case
Specialty Healthcare.\15\ In that case, the Board articulated a new
standard for determining the appropriateness of bargaining units of
employees. Specifically, the Board stated that groups of employees who
were ``readily identifiable as a group (based on job classifications,
departments, functions, work locations, skills, or similar factors)''
will be found appropriate, assuming they share a community of interest
as determined using the traditional criteria. Under the new standard,
such a group can only be placed in a larger unit with which it shares a
community of interest if the party seeking such placement can
demonstrate that the employees in the smaller group share ``an
overwhelming community of interest'' with the rest.\16\
This is one of the most significant NLRB decisions in years. It
represents a fundamental shift in what has been settled law for decades
and I believe could have a significant adverse impact on colleges and
universities. It could raise costs of administration, decrease
efficiency, reduce effectiveness and result in an unfair and
inconsistent treatment of employees.
c. Property rights
In The Research Foundation of the State University of New York at
Buffalo,\17\ the Board held that an employer, who did not own its
office building, violated the Act by having a union organizer arrested
for entering the employer's offices without permission. According to
the Board, although non-employee organizers are not entitled to engage
in organizing activity on the private property of others, an employer
has no right to exclude union representatives engaged in such activity
from areas in which it lacks a property interest. Because the private
employer did not actually own the property (the State of New York did),
it could not exclude the union organizer from its offices.
Nothing is more important than protecting the safety of students,
faculty and staff. It is the issue that keeps university executives up
at night. A university should be able to set its own requirements
regarding the extent to which it will make its campus accessible to
people from outside its community, or inside for that matter. Clearly
it may not discriminate against visitors based on union affiliation,
but consistently applied access rules are a fundamental university
prerogative and solemn responsibility.
endnotes
\1\ 342 NLRB 483 (2004)
\2\ 444 U.S. 672 (1980)
\3\ Case No. 6-RC-12276.
\4\ Point Park Univ. v. NLRB, 457 F.3d 42 (D.C. Cir. 2006)
\5\ 444 U.S. at 688
\6\ 444 U.S. at 680
\7\ Id.
\8\ Id at 686, 689
\9\ 765 F.2d 616 (7th Cir. 1985)
\10\ Id. at 625
\11\ See, NLRB Memorandum OM 12-31 (January 24, 2012), NLRB
Memorandum OM 11-74 (August 18, 2011) and NLRB Memorandum OM 12-59 (May
30, 2012).
\12\ Memorandum OM 12-59 at 8.
\13\ 358 N.L.R.B. No. 93 (2012),
\14\ GC 12-04
\15\ Specialty Healthcare, 357 NLRB No. 83 (2011).
\16\ Id.
\17\ 355 NLRB No. 170 (2010)
______
Chairman Roe. I thank all of the witnesses for staying
within the time limit. Y'all have maybe broken a record today,
so thank you for that.
I am going to start by just asking a few questions. One is,
I absolutely agree, Mr. Hunter, that our universities and
colleges are a national treasure, no doubt about it. And I
think the second thing, and I am living, breathing proof of it
myself, is that an affordable college education is absolutely
mandatory. And we are losing that.
We had a hearing, I guess, 5 or 6 weeks ago on the
affordability of higher education. And it is becoming out of
reach of even affluent families now. And young people graduate
from college with hundreds of thousands of dollars in debt. And
I don't think we can be successful as a nation if we don't
address that. I think that is a basic thing that as a factory
worker's son, as I was, I got a chance to go to a good college
and get a great education.
So I totally associate myself with your remarks about our
higher education system now. I also think that what Mr. Andrews
said to begin with was that today's hearing--I agree jobs are
important--but I think the First Amendment and religious
freedom is even more important. And liberty is more important,
I think, than a job. And I think the religious colleges need to
have that flexibility.
And I go back to the Catholic Bishop. And I am not a lawyer
either, Dr. Weber, so I had a little problem wading through all
this also. But I think the court did something really smart
there, was that they said we don't want to get into making that
definition. And later, a very clear definition was laid down
about what a religious institution is.
You only know how religious you are by what is in your
heart, and it is difficult to put a standard out there. But I
thought the court did a pretty good job. And would you comment
on that? And I think they were clear to stay out of that, and
to not get into that.
Mr. Moreland. I agree, Chairman Roe. The problem that the
board has gotten itself into is that by imposing this
substantial religious character test it requires that the board
comb through the school's curriculum and see how religious the
students are and what kind of theology requirements the school
has.
And the D.C. Circuit has continually rebuffed the board,
appropriately so, in saying that if the school holds itself out
as religious, is a non-profit, and is affiliated with a
recognized religious institution that should be sufficient for
purposes of an exemption under the First Amendment. I think
that is the Constitutionally-required and appropriate test.
Chairman Roe. And didn't the court also say--my son is a
Methodist, but he went to a Catholic school in Chicago, DePaul
University--that doesn't make it any less Catholic because he
was a Methodist and because maybe someone secular went there?
Am I also correct on that?
Mr. Moreland. I agree. As I pointed out, it is ironic that
Catholic schools, by admitting non-Catholics giving access to
education, especially in urban areas, to a lot of people who
wouldn't otherwise have a college education are now being
subject to board jurisdiction for the sake of the board saying
that they are not religious enough.
Chairman Roe. I think the other, it was difficult to deal
with. But whether a faculty was managerial, or not. And I think
the faculty--and, Dr. Weber, I want you to comment on this, on
the academic excellence of a university--the faculty has to
decide that. So in that way, they are managerial.
And you have to determine what is excellent in your
chemistry department. Or now, as you are the dean of all
graduate studies that faculty member has to do that in
cooperation with the other faculty members. Am I correct?
Mr. Weber. Yes, absolutely. The faculty that lead the
various graduate programs are determining the standards for the
academic programs, and so they are certainly in charge of
setting the academic guidelines. As a dean of the graduate
school, I always defer to the individual programs about the
academic content of their program.
Chairman Roe. And I think one of the other things, as a
medical student and as a resident and getting a postdoctorate
degree, I would have liked to have had more say in--what my
grades were. Unfortunately, my professors got to decide that.
I think micro-unions concern me, too, in a university. And
if one of you all--Mr. Hunter or whomever, Mr. Sweeney--want to
touch this, it doesn't matter. But I think that has a great
effect on how a university could function, again because I
think it forces the cost up. And we are in a situation now
where we can't have the costs go any higher than it currently
is.
And I know I looked at myself, until I finished all of my
training, as a student. I didn't feel like I was an employee of
anyone. And I chose to stay at a hospital that paid me less
than half of what the hospital would across the street, working
a lot more hours, because I thought my education would be
better. I was willing to make that sacrifice. And that is what
people do at fine universities, I think.
Mr. Hunter. Well, on the issue of Specialty Healthcare, I
really do think that is a major shift on what has been settled
law for decades. So what would the bargaining unit look like,
for example, involving graduate students? Would it be
humanities versus sciences? Would it be faculty working in
Smith Hall? Would it be French versus German?
You could have four different unions representing four
different units. You could have one union representing six
different units. And so what happens when you try to administer
all those different contracts? I mean, we have a number of
clients who have multiple employees with responsibility for
administering labor contracts. Because it takes more than one
when you have got four or five different units.
You might have multiple payrolls to administer. If a
university has to administer several payrolls and several
different types of employee benefit programs, even the software
that you purchase in order to handle that can be immensely more
expensive when you have various bargaining units and various
benefit programs, as opposed to something that is more
centralized
Chairman Roe. Ultimately, students pay. I will gavel myself
down.
And now I yield to Mr. Andrews.
Mr. Andrews. Thank you. I thank the witnesses for their
testimony.
Dr. Weber, you indicate that if graduate students engage in
collective bargaining that it could wreak havoc with academic
freedom. There are several dozen universities in America at
which graduate students are organized into unions, we have
heard Mr. Sweeney say.
Are you, or any other panel members, aware of specific
instances at those universities where academic freedom has been
impaired?
Mr. Weber. As you know, the public universities have
bargaining units that are well-defined by state laws. And it is
my understanding that the NLRB would fold this wide open if
private universities were to unionize. And so----
Mr. Andrews. But I am asking a different question. I am
asking, at places where there is collective bargaining for
graduate students, are you aware or is any other panelist aware
of instances where academic freedom has been impaired?
Mr. Weber. Let me read to you--give me a second--a
colleague who, before coming to Brown University, had been at a
university where there was unionization. And so she wrote me
this e-mail, and I read that to you. And I am kind of taking
parts.
She writes, ``As a stone liberal, I am usually very pro
union. But I am firmly in the camp that graduate students are
not employees.'' Again, this is a professor who has been at
both places. ``Unionization can change the dynamics of
relationships between grads and professors, especially those
faculty in administrative positions.''
``Lines at least temporarily get drawn and become
adversarial. Protests, or strikes, which happened at least once
while I was there, were stressful and disruptive.''
Mr. Andrews. Okay. That is the response to my question.
There is one. Are there any others that you have?
Mr. Weber. This is a long e-mail. Another fissure that can
develop is between graduate and undergrad----
Mr. Andrews. Well, that is one person giving another
reason. If the standard is going to be faculty opinions, hasn't
the AAUP, the American Association of University Professors,
who speaks for these professors, endorsed the idea of
collective bargaining for graduate students?
Do you think that their position represents the majority,
or the minority?
Mr. Weber. I cannot speak for every university. I am dean
at Brown University and I speak for Brown University, and I am
confident that many of our sister institutions are quite like
it. At universities like Brown, students are clearly students
and they are treated as such.
Mr. Andrews. No, I appreciate that is your opinion. I
respect it. But how about this? That when it comes to the
quality of a graduate program, Mr. Sweeney's testified that
peer reviews of the graduate programs at Berkeley, for example,
which is unionized, have scored very, very high, as is the case
with other of the UC systems, Wisconsin and others.
How is that these universities have scored high in the peer
review rankings of graduate programs if there is this terrible
corrupting effect of unionization of graduate students? How did
that happen?
Mr. Weber. I think the, well, first law--state laws curtail
the scope of the bargaining at a public institution, which is
one difference. And so we are looking here at the NLRB
considering private universities. So I don't think it is valid
to look at a public institution. I should----
Mr. Andrews. But your comments were really directed to
collective bargaining, not to particular law. Tell me why
collective bargaining hasn't corrupted and ruined those
graduate programs that are so highly rated that Mr. Sweeney
talked about.
Mr. Weber. You need to understand that the reputation of
universities is built over many decades.
Mr. Andrews. Mm-hmm.
Mr. Weber. The faculty that our universities are faculty
that have joined the university over many decades. The time
constant for change in graduate education is not immediate. And
so the rankings that Mr. Sweeney refers to are probably the
rankings of the NRC, which were data that was collected between
2001 and 2006. Some of that data goes back to the early 1980s.
Mr. Andrews. Is there any evidence that since 2006 the
reputation of the universities Mr. Sweeney cited has been
downgraded? Any evidence of that at all?
Mr. Weber. The NRC has not redone the ranking since then. I
would also argue that----
Mr. Andrews. Could I just give Mr. Sweeney a chance? You
have actually done this, and been a graduate student. Have you
ever witnessed an impairment of academic freedom at any
university that has collective bargaining?
Mr. Sweeney. No. And, in fact, I see it as an aid, as the
AAUP does. The AAUP, you know, supports collective bargaining
broadly in higher education, and is also, you know, one of the
premier organizations defending academic freedom.
If anything, in my experience it has been the case that a
contract actually insulates the mentor/mentee relationship, and
provides a little more security.
Mr. Andrews. Such as the NYU contract that you read from.
Mr. Sweeney. I agree completely. The----
Mr. Andrews. Thank you very much. My time has expired.
Chairman Roe. I thank the gentleman for yielding.
Dr. Foxx?
Mrs. Foxx. Thank you, Mr. Chairman. I would also like to
add to my opening comments my concern about the attack on
religious freedom. I do believe I mentioned that Mr. Andrews
said at the beginning that maybe this wasn't the most important
thing that we could be doing.
But I want to associate myself with the comments that the
chairman made that protecting religious freedom--which is the
first part of our First Amendment to the Constitution, and it
is no accident that it is in that place--is probably the most
important thing we could be doing in this Congress.
And so I am very pleased that that is a part of the issues
that we are dealing with today. And I particularly appreciate
Dr. Moreland's presentation in that regard. I would like to
come back to Dean Weber for a moment. And I want to thank you
again for your very good responses to the questions that you
have been asked.
And I want to say to you, if you would like to put into the
hearing today the e-mail that you were referring to, you are
welcome to do that. None of us would insist that you do that,
but if you would like to you are welcome to share that.
Does Brown pay its graduate assistants, Dr. Weber?
Mr. Weber. Does Brown pay its graduate--excuse me, like----
Mrs. Foxx. Are they compensated as graduate assistants?
Mr. Weber. So all our doctoral students receive full
tuition. They receive health insurance. They receive the health
fees, and they receive 5 years of a stipend. It is a generous
stipend; it is currently at a minimum of $24,000 per year. And
that is for all our graduate students, all our Ph.D. students
regardless of discipline.
So yes, they do. And full tuition at Brown.
Mrs. Foxx. And is this given to them? Is it considered
financial aid?
Mr. Weber. Absolutely. This is financial aid to the
students. This is not compensation for work. This is financial
aid.
Mrs. Foxx. Are some of your graduate students teaching
assistants and some not teaching assistants?
Mr. Weber. Yes, absolutely. We always have a fairly large
number of students who are appointed otherwise. So we have a
number of teaching assistants, but many students are not. Let
me give you an indication. A typical graduate student in
history, for example, would come in, first year, have a
fellowship.
Then be a teaching assistant for 3 years. And the fifth
year would be a fellowship again. In the fellowship years, the
student is pursuing courses and studying, pursuing research,
writing the dissertation.
Mrs. Foxx. And I would assume you probably have some who
are research assistants, as well as teaching. Or, I don't mean
in addition to. But some are research assistants?
Mr. Weber. Absolutely.
Mrs. Foxx. And some are teaching assistants?
Mr. Weber. Absolutely.
Mrs. Foxx. Okay. Trying to remember my days as a graduate
student.
So you consider the relationship with the graduate students
at Brown an educational relationship as opposed to an economic
or an employee relationship.
Mr. Weber. Yes, absolutely.
Mrs. Foxx. Okay, terrific.
Dean Moreland, I wonder if you would describe the
relationship that you have with employees or with graduate
assistants at your school. Do you consider that relationship to
be confrontational, or to be one of a mentor/mentee, or an
associational relationship?
Mr. Moreland. Well, I am vice-dean of a law school, which
is, as you know, a little different in terms of graduate
assistants and the like that Dr. Weber is involved with. But to
the larger point, I obviously don't speak on behalf of Catholic
higher education across the country. But I think it is fair to
say that Catholic universities do try to have, and strive very
much for a cooperative relationship.
And we take things like community very seriously at places
like Villanova. And I think one of the dangers of board
oversight that schools have pointed to is that it injects a
confrontational relationship between faculty, adjunct faculty,
and the administration that is of grave concern to Catholic
institutions which otherwise would not welcome.
Mrs. Foxx. Thank you, Mr. Chairman.
Chairman Roe. Thank you for yielding.
Mr. Kildee?
Mr. Kildee. Thank you, Mr. Chairman.
You know, work is work and compensation is compensation.
And when there is a difference of view on that very often
collective bargaining is a very good way of resolving that. My
dad did that in 1936 and 1937 when the sit-down strike took
place in Flint, Michigan.
By the way, Mr. Sweeney, my grandmother was a Sweeney. And
John Sweeney and I used to call each other cousin. But I taught
in a Catholic school. Loved the priests, loved the school, am
grateful to them, always will be grateful to them.
But at the same time, when I first started teaching I was
told the 5-hour day, taught five classes, Latin classes. And
then the second year, I was called in by a priest whom I have
great respect for. But he said, ``You know, maybe we didn't
tell you last year, but this is really a 6-hour school. And you
are going to teach a sixth hour this coming year, called
remedial Latin.''
That was for those who were flunking Latin in our regular
class, so it was a difficult class. And I had no recourse. And
I was happy to have the job. But you can see situations like
that arise. Would you like to make any comment on that? I
really had no choice. I am still grateful to them, but that was
another hour of my day that I had to be teaching.
Mr. Sweeney?
Mr. Sweeney. Before I went to graduate school, I actually
also taught at a Catholic high school in New York City. And so
I appreciate that, your experience as a teacher in a Catholic
school. And I am sensitive, of course, to the religious mission
of Catholic higher education.
In my experience, collective bargaining isn't anathema to
these other relationships. As workers and managers, there are
always relationships. Whether it is the mentor/mentee
relationship, or the relationship that you might have had to
the priest who was running the school where you taught.
And, in fact, collective bargaining if the rules are
spelled out clearly and the responsibilities of workers and
management are spelled out clearly, can actually protect those
other important relationships from anxiety, from problems. You
know, it is a problem when your mentor can determine whether or
not you can pay your rent or what kind of health insurance you
are going to have or, you know, those sorts of issues.
If you insulate those economic issues from these other
ones, you protect the incredibly important other relationships
that exist in the workplace.
Mr. Kildee. You know, I think what I know now--and having
spent 36 years here in Congress--that I certainly probably
would have said no, I am not going to teach that sixth hour. I
don't know. I was pretty hungry in those days. But you know, I
probably would have reminded them of Pius XI's Quadragesimo
Anno and Leo XIII's Rerum Novarum, right, which really outlines
the bargaining rights of all workers.
And I am just thinking about that. I again want to go back
and say I am grateful for the situation I had there, but still
at the same time realize that people have to be reminded that
there are certain rights you have to defend. And collective
bargaining is a great way to defend those rights.
That is just my comment for the day, and thank you, Mr.
Sweeney.
Mr. Sweeney. I wholeheartedly agree. And going back to the
mentor/mentee relationship, to pick up on something that Mr.
Andrews said earlier that has been echoed by Chairwoman Foxx
and Chairman Roe about the importance of preserving what is
great about higher education in America.
You know, there are peer review studies. You know, both
rankings of graduate programs, there are wonderful graduate
programs at the universities represented here. But there are
also peer reviewed studies about what, in fact, faculty members
at schools that have unions for teaching assistants and
research assistants say about that.
And there is actually some research going on right now at
Rutgers that is going to update those studies. But the ones
that exist say that nine out of ten faculty members who were
surveyed on this question said that the relationships were
neutral or positive in the union context.
So just saying that there is real evidence that we can know
that says the sky isn't falling
Mr. Kildee. Thank you very much.
And thank you, Mr. Chairman.
Chairman Roe. I thank the gentleman for yielding.
Mr. Walberg?
Mr. Walberg. Thank you, Mr. Chairman. Thanks to the panel
for your insights and for being with us today.
Mr. Moreland, in your testimony in discussion of the
substantial religious character test, and how the NLRB chose to
disregard 30-plus years of court precedent in the cases of the
three religious universities. Could you go into a little
further detail of what process they went through, if that was
evident in any way, in dealing with the question of religious
enough and what that looks like?
What did that process look like? What aspects of the
school's religious nature did they consider, or do they
consider now as they move forward? And how did they arrive at
that decision?
Mr. Moreland. What the regional officer does--and this is
shown, for instance, in appendices to some of these circuit
court cases that have come down the last several years--is
inquire about the nature of the curriculum, about whether
students of only that faith are admitted, the extent of the
theology requirement, things like that.
And as Judge Breyer, in the 1st Circuit case I quoted from,
in 1986, and as D.C. Circuit cases have held continuously, it
is precisely that kind of inquiry, that kind of combing through
a university's mission to figure out whether it is
substantially religious enough. That it is precisely that
inquiry that the NLRB or any government agency has neither the
legitimacy nor the competency to undertake.
Mr. Walberg. So really it is not so much a process as just
simply a philosophical look at trying to find ways to assure
themselves that this is not just simply a religious
institution, a religious liberty case. And so for the purposes
of change agentry or what have you, they will make that
decision arbitrary and disregard case law in the process.
Mr. Moreland. That is certainly the concern, and has been
the concern with the Saint Xavier in Chicago, the Duquesne and
Manhattan College cases that have come to the fore in the last
year and a half or so.
Mr. Walberg. It would certainly be my concern as a
legislator that in the area of religious liberty, First
Amendment freedoms and opportunity, that an outside arbitrary
board is going to determine what is religious enough, and that
is a precedent and maybe a precipice, even more so. There is a
danger in falling over. Let me move on. Mr. Hunter, as I
understand the collective bargaining process, both parties
negotiate wages, they negotiate benefits, they negotiate
working conditions; all sorts of things that go into the
process. There are some excellent universities in my home state
of Michigan. I won't sing any fight songs right now, but some
excellent schools that offer a wide range, very wide range, of
graduate programs. Could a university really be expected to
reach agreements tailored towards all of the requirements. And
the requirements are many as far as students and what they
expect needed to satisfy all conditions involved with receiving
a graduate degree. Is that a doable thing? Is it possible? And
what would be the size of the load that they are expected to
determine in the process of making those agreements?
Mr. Hunter. One of the things you are addressing here is,
you know, what are mandatory subjects of bargaining and what
would be covered at the table. One of the things that is good
about the shared governance process at universities that exists
where we don't have unions representing the graduate students
is that everything is on the table. And you don't have to have
this concern over whether there is a strike threat or some
arbitration if there is a disagreement; that the shared
governance process works better than the collective bargaining
model.
So what would be covered in a contract? Another principle
that we have to deal with if there is a union present is that
if a union represents individuals, it represents employees. It
is the exclusive representative with respect to all wages,
hours and working conditions.
Direct dealing isn't permitted between the organization and
those, quote--``employees.'' So, for example, in situations
where you would be able to work one-on-one--a faculty member
dealing with two students, a department dealing with three
students--in the absence of a collective bargaining
relationship that direct dealing is perfectly permissible.
In the presence of a collective bargaining----
Mr. Walberg. And unique needs can be met with each student.
Mr. Hunter. Needs can be met individually with each
student, and address their needs as would be appropriate for
the institution and those students. Now, clearly, a union can
waive its right to insist that there not be direct dealing. But
as a matter of law, direct dealing with students, if they were
deemed to be employees, on wages, hours and working conditions
wouldn't be permissible absent waiver or absent having the
union involved in that discussion.
And sometimes the interests of the union might not be
aligned with the interests of the people who are trying to work
out a deal with their university.
Mr. Walberg. Thank you.
Mr. Sweeney. May I jump in on----
Mr. Walberg. I think my time has expired.
Chairman Roe. I thank the gentleman for yielding.
Dr. Holt?
Mr. Holt. Thank you, Mr. Chairman.
As one who greatly values America's marvelous system of
higher education, and someone who has been involved in it both
as student and professor, and someone who has looked intently
at the evidence of the benefits of collective bargaining, I am
very interested in this personally.
I was a grad student in physics at NYU more decades ago
than I would like to think. But after that time, when Yale and
other places began to organize, I had a V-8 moment where I hit
myself in the forehead and said, ``Wow, I could have had a
union.'' It was not because I found a malevolent environment
there, as a teaching assistant. It was not that I wanted to
engage in adversarial confrontational relations with the
employer.
But it was simply that I thought it would be beneficial to
teaching assistants such as I had been to have the university
pay attention to not simply the educational well-being of the
TA and grad students, but also all of those other interests and
those other aspects of the work. They should have been
considered and subject to review, and they were not.
So, you know, it is not, as my colleague, Mrs. Foxx, was
saying, a choice between either an economic relationship or an
educational relationship. And further, as someone who later
served as an officer in a local chapter of the AAUP, where our
paramount principle that we worked on all the time was
defending academic freedom, I don't understand some of the
questions or accusations that are being made here today.
Let me just--I have eaten up most of my time for
questioning, so let me quickly get to a couple of points. Mr.
Sweeney, is it an issue that would argue against organizing
that some of the funding comes from work-study or federal
grants?
Mr. Sweeney. No, it is not. And the funding sources for how
people in universities are paid come from a variety of sources;
tuition, grants, et cetera. The clerical worker who works in a
lab is entitled to collective bargaining. I don't think anyone
is suggesting that they are not. Their funding for that
position comes from various sources, as well.
Mr. Holt. Again, Mr. Sweeney, what do decisions of the IRS
about the taxability of the pay for a TA, for example, a
teaching assistant, what do those decisions--how do those
decisions bear on this discussion?
Mr. Sweeney. Sure. So as was the case in my experience in
California, it has been the case in the universities where I
have been working as an organizer, teaching assistants--when
they are paid for teaching assistant work--are subject to the
IRS tax code and subject to Social Security and all the other
taxes that are paid on wages. As opposed to when they are truly
on a fellowship in a student role, and not providing service in
return for their work.
Mr. Holt. Mr. Andrews was asking the panelists if they
could point to examples, evidence, of a deterioration in
academic freedom that came in those places, now becoming many,
that are organized. Let me ask for evidence of a different
charge, which has to do with tuition increases. Is there
evidence that tuition has gone up in those places that have
been organized?
Mr. Sweeney. Yes. So a rise in tuitions is a concern of
everyone. Rising tuitions are, you know, a problem in higher
education across the board, both in places where workers are
organized and in places where workers are not organized. With
only about 15 percent union density in higher education, I
think you can pretty safely say these two issues are not
coupled.
Mr. Holt. Yes. I actually have here a graph of a number of
universities--Rutgers, Oregon State, Michigan, University of
Rhode Island, University of Kansas, University of Illinois
Chicago--that are organized, plotted by their tuition increases
year by year. And they are all over the map. There is nothing
to suggest--there happen to be a few that have lower tuition
increases than average.
Most of them, more of them, have that. But there is nothing
that suggests there is a pattern that is driving tuition up.
Mr. Sweeney. No, no evidence that I have ever seen.
Mr. Holt [continuing]. Organizing.
Mr. Sweeney. Yes. Universities are complicated financial
institutions.
Mr. Holt. Well, it is a complicated question.
Mr. Sweeney. Yes.
Mr. Holt. And I certainly believe there is good will on
both sides here.
I thank the chair.
Chairman Roe. I thank the gentleman for yielding.
Dr. Heck?
Mr. Heck. Thank you, Mr. Chairman. And thanks all the panel
members for being here today.
Mr. Hunter, public institutions allow graduate students and
professors to unionize under state law. Is there a difference
between the law governing these institutions, such as
California public universities that Mr. Sweeney mentioned, and
what would be proposed, or allowed, under the NLRA?
Mr. Hunter. Well, yes, there are a number of differences.
First, typically, and under state labor relations laws, there
is no right to strike. Most states prohibit individuals who are
employed under their state labor laws from striking. Some
states have more specific criteria what is a subject of
bargaining, or not.
For example, I believe in California class size is a
mandatory subject. Whereas in New York, class size is excluded.
That is, there are some things that are identified by states as
covered, some things that are not. But a major difference,
public versus private, is the right to strike.
Mr. Heck. So while state laws may be more proscriptive,
under the NLRA the doors are wide open as to what may be put
onto the table in organizing at a private institution.
Mr. Hunter. Actually, I think it can go both ways. In some
cases, they will explicitly include things as covered under
bargaining, and some situations they will specifically exclude
it. Some states take a much harder line toward strikes in the
public sector; double fines, fining the unions in those
circumstances. And other states don't have those similar kinds
of penalties.
Mr. Heck. You also expressed concerns over the NLRB's
position on social media policies that it feels are overly
broad. You expressed concerns about the impact of this on
safety in the campus climate. Are there other areas where this
issue could come into play that concerns you, and how about
rules that regard this type of workplace conduct?
Mr. Hunter. I think the rules in social media, and also in
workplace conduct, are quite troublesome. The board, in a
number of cases, has ruled that employers have had overbroad
rules regarding workplace conduct. Or have reinstated people
engaged in fairly outrageous workplace conduct because of the
argument that it was covered--that the rule itself was
overbroad.
I have seen cases, I have one right now, where an employee,
in 2001, was terminated for something that could otherwise have
been a terminable offense. But it was pursuant to an overbroad
rule. Since he was terminated for, let us say, an appropriate
reason, but pursuant to an overbroad rule, the board ordered
reinstatement of that employee. The initial back pay demand in
that case was $1.6 million.
He had worked for them for 3 months, did something that he
could have been terminated for. But because the rule was
technically overbroad, there was an order of reinstatement. I
am concerned that universities ought to be able to have broad
rules that govern conduct in the workplace; promoting civility,
promoting respect. And to say that a rule at a university that
says we want you to treat each other with civility and respect,
and try to foster a collaborative environment.
Because that, arguably, has a chilling effect on
individuals who might be engaging in concerted activity, that
rule itself is viewed as overbroad. And in an era when we are
concerned about workplace violence, we are concerned about
campus climate, when we are concerned about having an
atmosphere at a university where people feel free to discuss
things and do it in an open way, to not be able to have just a
general rule that says we want people to treat each other with
respect strikes me as something that doesn't make sense.
Mr. Heck. Thank you.
Thank you, Mr. Chairman. I yield back.
Chairman Roe. I thank the gentleman for yielding.
Ranking member of the full committee, Mr. Miller?
Mr. Miller. Thank you very much. We have dictators that
have laws that say you can't disrespect the state, and you can
go to jail for life. I don't think we want to do that.
Dr. Weber, let me ask you a question. You say should Brown
have to bargain over the terms and conditions of service by
students who teach, research, serve as proctors. Are we to
bargain about course selection, course content, course length,
the number of exam papers in a course, the length of a course,
the year in which a student serves as an assistant? And are we
to argue over just cause for discipline imposed?
Your answer is no, right?
Mr. Weber. I suggest we should not----
Mr. Miller. So if you lengthen, if you double, the length
of the course.
Mr. Weber. Excuse me?
Mr. Miller. If you double the length of the course, no
bargaining? If you double the number of papers, no bargaining?
If you double the exams, no bargaining? If you cut the
proctorships in half, no bargaining?
Mr. Weber. See, there is a wide spectrum of activity. So--
--
Mr. Miller. I understand that. I am just asking you what
happens in those instances.
Mr. Weber. Yes, there should be no bargaining. The----
Mr. Miller. There should be no bargaining. If you cut the
course in half, if you double the assignment of the graduate
student during the time that they are teaching or they are
reading papers or grading exams?
Mr. Weber. So the university has general rules that limit
the----
Mr. Miller. But I am asking, you don't want to bargain over
this. What happens when you do that, and then I have other
responsibilities as a graduate student?
Mr. Weber. So as the dean of the graduate school, we have
the rule that teaching assistants are not to work more than 20
hours per week.
Mr. Miller. When you change it?
Mr. Weber. Excuse me?
Mr. Miller. What if you change it? Say it is 40 hours.
Mr. Weber. No, we do not change it. So----
Mr. Miller. No, no, no. You haven't changed it. What
happens when you do change it?
Mr. Weber. So okay, graduate school policies are decided in
the graduate council at Brown University. And the graduate
council----
Mr. Miller. What happens when you change those policies
arbitrarily?
Mr. Weber. We do not change them arbitrarily.
Mr. Miller. Oh, oh, oh. Okay. So all the reasonable people
sit on that side of the table.
Mr. Weber. Oh, no, no, no, no.
Mr. Miller. Whoa, whoa. Wait a minute, wait a minute. You
are dealing with people here who are graduate students and
post-docs who have run all of the obstacles to get to that
position in life. In some cases, they are working in nationally
competitive labs from the National Foundation, or others.
But they would go crazy if they had a union. But you would
never go crazy if you have all of the power in the
administration of the graduate school.
Mr. Weber. So again, the policies are determined by----
Mr. Miller. No, no. I just want to know what you think
about these people who you have awarded these fellowships to,
who you have awarded these teaching positions to, who you have
awarded the assistant positions to, to the post-docs, that
somehow they can't manage the issues of just cause, or they
couldn't manage the length of a course where there is another
way to do it.
So only the academy knows the right way.
Mr. Weber. No, no. Please let me explain now. The----
Mr. Miller. You have explained it. You said it all resides
there.
Mr. Weber. No, no. What I am saying is, there are bodies in
the university that take care of policies for graduate school.
And these bodies----
Mr. Miller. Yes, I understand all that.
Mr. Weber [continuing]. Have strong----
Mr. Miller. It just doesn't include graduate students or
post-docs with any authority.
Mr. Weber. No. That is what I was trying to say. These
students are----
Mr. Miller. The grad students have a majority on the
boards?
Mr. Weber. The graduate students are strongly represented
on these bodies. So the graduate students, we have a strong
graduate student governing body. They send representatives to
committees at the universities that set policies for graduate
education. We have student representation even on----
Mr. Miller. Mr. Sweeney. Mr. Sweeney. Thank you.
Mr. Sweeney, I just want to know about these people that
were the post-docs at UC Berkeley. In fact, we had husband and
wife post-docs, and the wife at Stanford was getting the pay
increase mandated by the National Science Foundation. And
Berkeley was withholding it because they were going to use it
to underwrite foreign students. But other than that, it was a
great decision made.
Mr. Sweeney, do these people lose their minds when they get
a union?
Mr. Sweeney. No, generally it works out pretty okay.
Mr. Miller. They have a huge stake in this system in terms
of their professional success, do they not?
Mr. Sweeney. Absolutely.
Mr. Miller. And years of investment.
Mr. Sweeney. Yes, certainly.
Mr. Miller. And academic achievement.
Mr. Sweeney. Certainly.
Mr. Miller. And sacrifice.
Mr. Sweeney. Yes.
Mr. Miller. But somehow, if they got a union, they would
just bring down the very institution on which their
professional success ultimately is dependent.
Mr. Sweeney. I don't believe that that would be the case.
And certainly evidence shows that it is not.
Mr. Miller. Well the evidence shows a lot of other things
in terms of how arbitrary the institutions were being with
these students prior to the establishment of a bargaining unit.
Mr. Sweeney. Absolutely. Certainly in any system where
power is held by one side there are going to be problems. What
collective bargaining does is, it gives us a democratic way to
address those issues and come to mutual agreement on both sides
of the table. And that is why thousands of people want it.
Mr. Miller. Well, the fact here is--I mean, you know, this
obviously works for Brown University, and it is a great
institution. But you have decided that that this is all
academic, has nothing to do with being an employee. That is a
little bit like Microsoft deciding all their employees were
independent contractors until they were told they are not
independent contractors, they are employees and you have
obligations to them.
But you have arranged this in that fashion. But again, the
suggestion is that all of the wisdom resides on the employer
side of this academic experience. And I just think it is
fraught with peril in terms of the respect and the dignity of
these students who have achieved this position. And a
suggestion that somehow they wouldn't act responsibly and we
couldn't deal with these issues that are part of their everyday
life just doesn't hold water here.
Thank you.
Chairman Roe. Okay. I thank the gentleman for yielding.
Mrs. Roby?
Mrs. Roby. Thank you, Mr. Chairman.
Mr. Hunter, I have a couple questions for you. Thank you
all for being here today. The 2001 survey of higher education
governance asked respondents, including two private faculty
governance bodies, to evaluate how their powers have changed
over the past two decades.
And 92 percent of private faculty governance bodies
responded if they had the same or more power now. Additionally,
86 percent of respondents from private institutions felt the
main representative body of faculty either implemented or made
policy decisions. Almost 90 percent of faculty had
determinative or joint authority with the administration on
content of the curriculum.
Almost 70 percent had determinative or joint authority on
faculty appointments. And 61 percent had determinative or joint
authority on tenure decisions. When compared to the 1970
American Association of University Professors survey, one
author found that faculty participation in governance of
academic matters increased over time.
So my question to you is, do these findings weigh for or
against a finding that faculty are managers under Yeshiva?
Mr. Hunter. Well, I think they clearly weigh toward the
conclusion that faculty are managerial. It also argues that
there isn't a huge shift in the governance by faculty over the
past decades, as has been suggested in some circles. You know,
when I talk to my clients who are presidents of colleges or
general counsels of colleges, what they say is that, in fact,
the participation by faculty are more robust than ever.
That if you are an administrator, by the way, in a
university, you know what it is like to do your job, and what
it is like to do it in collaboration with faculty that have
substantial input, authority, power over matters that are
essentially the essence of what the university does.
The other thing about whether they are managerial or not--
assuming first, with respect to those statistics that you gave,
that there are other institutions where the facts went in the
other direction--Yeshiva allows for factual inquiry to address
that. There is no need to revisit Yeshiva. Because if they are
not managerial, they are not managerial.
But the principles announced in Yeshiva still hold true. So
I think the statistics that you just gave indicate that, in
fact, faculty are managerial. And when you look at what they
do, it is what universities do.
Mrs. Roby. Thank you. And the NLRA protects professional
employees' rights to unionize, but not managerial employees. So
what is the genesis of, and rationale behind, the managerial
exception?
Mr. Hunter. The genesis of that is actually a matter of
court decisions, rather than it being explicitly written into
the act. But it came about as a result of board and court
rulings that managerial employees, like supervisory employees,
are in positions where we shouldn't be concerned about a
divided loyalty between what that individual does on behalf of
the institution as opposed to what that individual might be
interested in doing with respect to the union.
Mrs. Roby. And just so we are clear, the difference between
a manager and a professional employee, can you state that for
the record? And are they mutually exclusive? In other words,
can faculty be both professional employees and managers?
Mr. Hunter. Absolutely. Faculty are professional, and they
are also managerial. They are not mutually exclusive at all.
The managerial aspect involves whether they are acting on
behalf of, or in the authority of, the institution with respect
to the essence of what it does. Professional employees might
provide guidance, might provide information that a different
body or a different organization might take into account.
But managerial employees actually do it, either jointly
with other organizations or individuals within the institution.
Or by themselves, on their own independent authority.
Mrs. Roby. Thank you so much.
Mr. Chairman, I yield back.
Chairman Roe. I thank the gentlelady for yielding.
Mrs. Davis?
Mrs. Davis. Thank you, Mr. Chairman. I appreciate your all
being here. I am sorry I missed some of that discussion.
I had a meeting recently with a number of young post-docs
at one of our universities, some of our public universities.
And obviously, by California law, they are covered on these
issues. But I think what really impressed me was that we work
so hard to have young people who are interested in stem
education.
You know, we are working so hard on scientific discovery
and keeping students engaged, and hoping that they are going to
be able to receive an NIH grant at some point. And when you
talk to these students, you know that there are many, many
other things that these bright men and women can do. And yet
they stay, and they work hard as a post-doc or as a teaching
assistant because they really believe what they are doing.
And the one thing they know is that they could do and make
a whole lot more money is in the financial system or otherwise.
What they shared is that despite the fact that some people
think that they shouldn't be collective bargaining or in
unions, that they feel that they get support there that they
don't get on their job, necessarily, because they really are
toiling in many, many cases.
Could you comment on that? Because there is a value issue
here in terms of what we as a society decide that we are going
to support. And some of that support for a lot of these
students is the fact that they know they are not getting what
they could get if they decided to go elsewhere, but they feel
that they are going to, you know, cure cancer, they are going
to do amazing things for this country.
Mr. Sweeney. Sure, if I----
Mrs. Davis. Where does this fit in this discussion?
Mr. Sweeney. Yes. So I had the honor to work with some of
the postdoctoral researchers in the University of California
system when they organized. And, you know, post-docs are such
an integral part of research and science and engineering and
other fields. The one thing I would say is that I think that as
important and as passionately as we all feel about the
educational research work that is happening in these
institutions, a big part of the impetus to form unions is to
deal with some of the more mundane--pay, health care. You know,
does the offer of a job really mean a job--those sort of basic
kinds of things that workers deal with across the board.
You know, these folks, the post-docs, aren't even students
anymore. They have gotten the terminal degree in their field.
They are, you know, beyond that point. So, you know, they are
the kinds of issues that people want to deal with in all kinds
of workplaces. You know, the question of, there has been some
discussion today about bargaining over academic matters.
That is not really at the core of what this impetus is. It
is really a question of, you know, can we have a little say,
can we have some small measure of democracy and dialogue about
how we pay the rent and, you know, get health care for our
kids, and, you know, those sorts of things.
The situation of post-docs, I think, is very, very
interesting. It used to be the case that this was a relatively
short-term position that people would have for a pretty short
period of time before moving into a faculty job or moving into
industry. That deal is over. There is an increased reliance on
postdoctoral researchers. And so now the standard is that
people are doing these jobs for a much longer period of time.
And so what might have been a relatively temporary position
is now one that you hold for a while. So the workers have an
interest in, say, well, you know, if I am going to do this for
5, 7, 10 years. That is about the time that the average job, in
the economy, for a professional, can last. So, you know, what
the health care is going to be, what the pay is, really
matters.
You know, making $35,000, $40,000 a year for a couple of
years with an advanced degree doesn't sound like a terrible
deal if you are on the younger side. Although, you know, these
folks have been in grad school for a while.
Mrs. Davis. And if I may, as that has changed and is
changing, and it becomes more significant, should we anticipate
that they are going to be causing more trouble for the
university and for the communities in which they work?
Mr. Sweeney. Yes, I think that is the important part. And I
am happy to be here talking about the NLRB. The important part
is that one of the good things the National Labor Relations Act
does is it provides a system to deal with these matters in a
systematic and rational way so that employers' workers can sit
down and bargain as equals.
So that there isn't disruption, that there aren't
conflicts, and that the power relationships are equalized in
some small measure.
Mrs. Davis. I don't know if anybody else wanted to comment.
Do you think that because this is changing for a lot of the
post-docs that they are going to cause more problems? Do you
think that it is inherent in that situation? Anybody? No?
Okay, thanks.
Chairman Roe. Thank you for yielding?
Mr. Rokita?
Mr. Rokita. Thank you. I thank the both chairs for holding
this hearing. And I thank the witnesses for their preparation
for the discussion. I had to leave in the middle. I apologize
about that, but I heard it start off.
A quick question for Mr. Sweeney. Not to be antagonistic,
but who, in your opinion, do you think a university exists for?
What group of people, the students or the teachers? What is the
primary purpose?
Mr. Sweeney. I think universities are places for research
and learning and teaching. I think they exist for the public at
large.
Mr. Rokita. For the public at large. But----
Mr. Sweeney. I think everybody benefits from that.
Mr. Rokita. People matriculate. The public at large doesn't
matriculate. Students matriculate. At least from the private
sector setting. Let us talk about private universities. I mean,
it seems to me that is what a university is for, to Chairman
Foxx's opening statement.
And it seems to me, when you talk about parity in
bargaining, we are talking about graduate students who, by
definition, are intelligent, capable human beings. And there
are a lot of them. So it seems to me, in that situation, there
would be parity. And I read your testimony, I understand where
you are coming from.
And that the free market otherwise can determine--if they
are being treated that badly a university that treats them
well, ethically, would more than welcome them. Because why?
Because they need that research that you talk about. And we may
differ on what the primary function of a university is, but
that research needs to be done. And I think the free market
private sector, working as equals, can easily take care of
that.
I mean, we are not talking about uneducated folks or
anything like that, that might need the NLRA of the 1930s to
help.
Mr. Sweeney. I would offer that nurses who engage in
collective bargaining, other teachers who engage in collective
bargaining, lots of workers engage in collective bargaining are
intelligent and rely on collective bargaining to arrive at a
fair process.
Mr. Rokita. They may rely----
Mr. Sweeney. And I would also say that----
Mr. Rokita. Just let me--coming back to your point, they
may rely on it. That doesn't mean it is right or that it is
needed.
Moving onto something I found on the IRS Web site last
night, the IRS gives you a tax exempt status under 501(c)(3) of
the code for churches and religious organizations if the
organization is organized and operated exclusively for
religious, educational, scientific or other charitable
purposes. Net earnings may not inure to the benefit of any
private individual shareholder if no substantial part of its
activity may be attempting to influence legislation, if the
organization doesn't intervene in political campaigns, and if
the organization's purposes and activities don't violate
fundamental public policy.
So that is one part of government; defining what a
religious institution is. Dr. Moreland, is it right to have
another part of government--i.e., the NLRB, or even under some
kind of skewed interpretation of the NLRA--to define a
religious institution or a religious organization any
differently?
Mr. Moreland. That is part of my concern, obviously, is
that in the IRS context the definition of a religious
organization is quite broad. In the EEOC context it is a little
more complicated. It actually is a division among the circuits.
But at least on one approach, the EEOC's definition of a
religious organization that is exempt under Title VII from the
prohibition on religious discrimination.
So a Methodist church can favor Methodists in hiring. That
is also a very broad definition of a religious institution. And
the concern in the NLRB context is that this substantial
religious character test is too intrusive and too narrow. And
that has been the source of the recent controversy.
Mr. Rokita. And even so, isn't it the fact that if there is
some legitimate government interest to somehow take a different
tack on defining what a religious organization is, doesn't the
First Amendment still trump all that, seeing that it is in the
Constitution?
Mr. Moreland. Absolutely. That is right. And surely that
was the view of the Supreme Court in 1979, when it interpreted
the NLRA in a way to avoid collision with the First Amendment
and the way in which the D.C. Circuit has been rebuffing the
board in its attempts to exercise jurisdiction over religious
universities.
Mr. Rokita. Thank you. And in your testimony, you say that
the NLRB has yet to employ the clear, three-pronged test laid
out in Great Falls. Do you have an opinion as to why?
Mr. Moreland. I think that the board wants to exercise
jurisdiction as capaciously as it can. And the Great Falls test
would mean that it couldn't exercise its jurisdiction over
religiously-affiliated colleges and universities in almost any
context.
Mr. Rokita. And is your testimony that you have never seen
the board act like this in your professional career, except for
this administration, President Obama's administration?
Mr. Moreland. It is extremely disturbing, the way in which
the board has not taken the lead of the Supreme Court and the
D.C. Circuit with regard to its own jurisdiction on this issue.
Mr. Rokita. Thank you very much.
Chairman, I yield and would ask for unanimous consent to
enter the IRS document into the record.
[The information follows:]
------
Chairman Roe. Without objection, so ordered. I thank the
panel and all the witnesses in our panel for a great and lively
discussion.
And I will now yield to Mr. Andrews for any closing
remarks.
Mr. Andrews. I would like to thank you and the gentlelady
from North Carolina for staging the hearing.
Yesterday, one of the major credit rating services
indicated that if the Congress doesn't address some huge fiscal
issues confronting the country very soon, it may well cause a
downgrade in the country's credit rating. Which would raise the
interest rates on home mortgages and auto loans and business
loans and all kinds of other things.
So we are several weeks, several months, away from the
entire Internal Revenue Code essentially expiring. We are at a
point where, once again, we are coming up against the country's
debt ceiling, probably in the first quarter of 2013. We are
facing an across the board spending cut in defense and in many
domestic programs I think people widely agree is unwise the way
it is being done.
So here is another day that we are spending, of the few
days that we are going to spend here between now and election
day, and we choose to focus this morning, again, on an
interesting set of questions. But questions I think are way
outside the mainstream of what the country's worried about.
The title of the hearing is Expanding Big Labor's Power:
The NLRB's Growing Intrusion Into Higher Education. You look at
the premises behind that title is that there is a growing
intrusion into higher education. Now, as far as I can tell the
intrusion is that three matters are pending before the board
that they are going to decide one way or another in the next
couple months.
So we spent the morning talking about how we would react if
the decisions came out a certain way, but there haven't been
any decisions yet. The problem, apparently, that would be
exacerbated by this is that the crown jewel of American higher
education would be severely tarnished if there was an outbreak
of collective bargaining on college campuses across the
country.
I ask, and would hope the record would be kept open to
supplement this--I ask the panel for one specific factual
incidence of where there has been an impairment of academic
freedom when there has been collective bargaining. We heard
none. We heard various people's opinions that collective
bargaining was good or bad. Dr. Weber, in this context, doesn't
approve of it. Mr. Sweeney does.
The person whose e-mail, read by Dr. Weber, doesn't approve
of it. The American Association of University Professors does.
That is all interesting. It is the way democracy works. But
there is not a shred of factual evidence on the record from
this hearing this morning, not an iota, of any interference
with academic freedom on any campus where there has been
collective bargaining.
So the intrusion, evidently, is that the board is going to
make a couple decisions of which we don't know the outcome, and
that some people have the opinion that collective bargaining by
grad students is a bad thing. And others have an opinion that
it is a good thing. Again, I appreciate the preparation of the
witnesses. But I think that this is a classic case of Nero
fiddling while Rome burns.
This country has significant economic problems. We can
debate all day whose fault it is. I don't think the public
wants that. I think the public wants us to work together to
create an environment where entrepreneurs and businesses can
create jobs. This hearing is an example of not doing that.
It is also an example, frankly, of good faith and excellent
preparation by the witnesses, for which we are profoundly
grateful. My quarrel is not with you, it is with our own
institution which seems to be fiddling while Rome burns. It
seems to me Rome needs to be regenerated and rebuilt, America
needs to be regenerated and rebuilt. This is not the way to do
it.
I yield back.
Chairman Roe. I thank the gentleman for yielding.
Dr. Foxx?
Mrs. Foxx. Thank you, Mr. Chairman. I also want to thank
our witnesses for being here today and for the excellent
presentations that you have made and the materials you have
submitted. I have learned a lot from this hearing.
As someone who has spent a great deal of her life in
education, I like to think of myself as a lifelong learner and
someone who loves to read and to expand my knowledge. And you
have done a lot to help me do that today. I think you have done
a lot to help others learn a great deal about not just the
issue of collective bargaining, but also the threats to our
First Amendment rights, the threats to our rights in general.
I share the concern about the state of our economy in this
country. I think Republicans are just as concerned, even more
concerned, than our colleagues on the other side of aisle about
the report by Moody's, the threats by Moody's. But the
Republican-led House has done a great deal to respond to the
economic threats that are facing our country.
Unfortunately, we have been brought to this point by the
bad policies of the Obama administration and the Democrats who
are in charge of the Senate. We have sent lots of bills over to
them to deal with the problems, the economic problems, and
nothing has been done. The administration absolutely refuses to
deal with the threats that are facing us.
And so I believe we have done a lot on our side of the
aisle. I think part of the reason we have gotten into this
situation--and, Mr. Chairman, I would like to submit an article
I do not have with me today. But an article that came out
months ago, I believe, in National Review, about the problems
with the NLRA. I read that article when it came out many months
ago.
[The information follows:]
------
Mrs. Foxx. This law has haunted us, and has created
problems for us from its very beginning. And I think that often
the problems that we face in this country are things that creep
up on us because we don't deal with them at the time that we
see them. And I think there is an expression that my husband
loves from Barney Fife. ``You should nip it in the bud.''
And I think if we did more of that in the Congress we would
be a lot better off. We have allowed this problem to fester
since the NLRA was adopted. I am not an attorney, but the
article made a lot of sense to me. And I think we are not
fiddling while Rome burns; we are looking at the issues, we are
looking at the threats to our Constitution that have been
established by this administration.
And, in fact, we probably should do a lot more to deal
particularly with the threats to our First Amendment. Because
if we can erode our constitutional values, if we can erode our
rights--God-given rights--then anything else can be taken away
from us. So I don't think this is fiddling while Rome burns. I
think it is dealing with the issues that are before us.
And if we don't deal with those, the economic situation is
not going to matter much. So I thank you all again for coming.
I thank you for the excellent education you have given me. And
I hope that other people have done that. And I would say to
you, you will probably all be glad to go back to the academic
setting and say, ``A pox on all your houses.''
Thank you very much.
Chairman Roe. I thank the gentlelady for yielding.
Just one comment on the ranking member's closing statement
is, we passed over 30 jobs bills that are sitting over in the
Senate. The Senate has not passed a budget in over 3 years. The
iPad did not exist when the U.S. Senate passed its last budget.
That is ridiculous, and that is what we are dealing with here
in this Congress.
We could have energy independence in this country in less
than 10 years, which I think is one of the most important
issues we are dealing with in this country. I think energy
independence will bring back manufacturing to America, and we
won't pass a Keystone pipeline to bring Canadian oil into this
country to help lower energy prices.
If you want a stimulus package, every 25 cents that
gasoline goes up a gallon takes 35 cents--$35 billion, excuse
me--out of the consumer's pocket. So if gasoline prices were
the same as they were in January of 2009 we would have $700
billion in every person's pocket in this country so they could
determine how they want to spend the money.
No, this was not wasted time. And I very much appreciate
all of you all who came and prepared these remarks. I have
learned a lot, and I agree, Mr. Hunter, with your comment. And
there is no question I would not be sitting in this seat right
here today if it weren't for a great, affordable college
education. There is no question about it.
I took advantage of it. And the next time I go to college,
I want to go to Brown where I get a stipend and where I don't
have any tuition. I also might add, too, I think we had three
issues that we were listening to today. One is about the
collective bargaining rights among TAs and our graduate
students. And we have heard lots of opinions, as Mr. Andrews
said.
Secondly, about whether the professors. And thirdly, this
issue which, to me, is about individual religious liberty and
freedom. That is a huge First Amendment right. It is in my
district, it is across America. We have seen this debate occur
in the health care arena with contraception in Catholic
hospitals and Catholic universities. It is a very important
issue.
And I also think there have been some graduate students
here. And certainly, most of us have been there. And it is a
privilege to go to school, and I selected where I went for
several reasons, as many students do. Is it affordable? Can I
afford to go there? Can I get the quality of education? And I
can tell you what I was interested in. I was interested in
taking that 4 years--or, in my case, 7 years, almost 8, that I
was learning to be a physician and specialize--to use every
minute I could to learn everything I could.
Now, when we talk about toiling, I think working every
other night for 2 years, that was toiling. And I wouldn't
recommend that to anybody. But that is what I did when I was
getting my education. And I think all of these fine
universities that you all are representing today do that. I
think the NLRB, the other part is debatable about whether you
can organize or not. But I just put it very bluntly. They need
to butt out about whether there is substantial religious
character at a religious college.
If it is a Milligan College or Notre Dame, or whatever,
they need to butt out of that. And the courts have been very
good at separating church and state in this country for 220
years, and I am glad they have. And there is a clear test in
the Great Falls test about what is appropriate. And I think we
should stick with that.
So I want to thank you all for all being here. And
certainly all the folks that asked the questions.
And this meeting is adjourned.
[Additional submission of Mr. Miller follows:]
Prepared Statement of Maggie M. Williams, Assistant Professor,
William Paterson University
I attended Columbia University from 1993 to 2000 as a Masters and
PhD student in Art History. I am currently a tenured Assistant
Professor at William Paterson University in New Jersey, where I am a
member of AFT Local 1796.
Beginning in 1994, I worked as a research assistant, teaching
assistant, or instructor nearly every semester that I attended
Columbia. My supervisors were assigned by the department, and my hours
and duties were determined by the faculty member to whom I was
assigned. I was paid either an hourly wage or a lump sum payment, which
was taxed by federal, state, and city governments. I also did not have
any maternity leave or health care coverage.
While I was working as an instructor, I attended my first union
meeting. I had very little understanding of how unions functioned, and
I went to the meeting to gather information. I learned that my status
as a paid employee of the university offered me the right to organize
under the National Labor Relations Act.
Over the next few years, I spoke to thousands of my fellow teaching
and research assistants, all of whom were paid employees of the
university. A clear majority of them signed cards saying that they
wanted to form a union. We held a legal union election in 2002, but
Columbia University fought to have our voices silenced. The ballots
from that election were never counted; they were destroyed--probably
shredded or incinerated. I was shocked to see something like that
happen in a democratic country.
I went on to become a Professor of Art History in the public
sector, where my right to join a union was well established. For more
than 25 years, the AFT has successfully represented faculty in New
Jersey's colleges and universities. Employees of institutions of higher
learning--both public and private--have expressed their desire to
organize for nearly 3 decades. To deny their right to do so now would
be unconscionable.
______
[Additional submission of Mr. Hunter follows:]
------
[Whereupon, at 11:51 a.m., the subcommittees were
adjourned.]