[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\
---------------------------------------------------------------------------
    \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 .
---------------------------------------------------------------------------
    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/.
---------------------------------------------------------------------------
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 .
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
    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.]

                                 
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