U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

75–773 PDF 2012

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 

( 

Available via the World Wide Web: 

www.gpo.gov/fdsys/browse/committee.action?chamber=house&committee=education 

or 

Committee address: http://edworkforce.house.gov 
(II) 

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN KLINE, Minnesota, Chairman 

Thomas E. Petri, Wisconsin 

Howard P. ‘‘Buck’’ McKeon, California 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Joe Wilson, South Carolina 

Virginia Foxx, North Carolina 

Bob Goodlatte, Virginia 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Scott DesJarlais, Tennessee 

Richard L. Hanna, New York 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Trey Gowdy, South Carolina 

Lou Barletta, Pennsylvania 

Kristi L. Noem, South Dakota 

Martha Roby, Alabama 

Joseph J. Heck, Nevada 

Dennis A. Ross, Florida 

Mike Kelly, Pennsylvania 

George Miller, California, 

Senior Democratic Member 

Dale E. Kildee, Michigan 

Robert E. Andrews, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Dennis J. Kucinich, Ohio 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

David Loebsack, Iowa 

Mazie K. Hirono, Hawaii 

Jason Altmire, Pennsylvania 

Marcia L. Fudge, Ohio 

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 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Scott DesJarlais, Tennessee 

Richard L. Hanna, New York 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Lou Barletta, Pennsylvania 

Kristi L. Noem, South Dakota 

Martha Roby, Alabama 

Joseph J. Heck, Nevada 

Dennis A. Ross, Florida 

Robert E. Andrews, New Jersey 

Ranking Member 

Dennis J. Kucinich, Ohio 

David Loebsack, Iowa 

Dale E. Kildee, Michigan 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Rush D. Holt, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Jason Altmire, Pennsylvania 

SUBCOMMITTEE ON HIGHER EDUCATION AND WORKFORCE TRAINING 

VIRGINIA FOXX, North Carolina, Chairwoman 

John Kline, Minnesota 

Thomas E. Petri, Wisconsin 

Howard P. ‘‘Buck’’ McKeon, California 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania 

Richard L. Hanna, New York 

Larry Bucshon, Indiana 

Lou Barletta, Pennsylvania 

Joseph J. Heck, Nevada 

Rube ́n Hinojosa, Texas 

Ranking Minority Member 

John F. Tierney, Massachusetts 

Timothy H. Bishop, New York 

Robert E. Andrews, New Jersey 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

David Loebsack, Iowa 

George Miller, California 

Jason Altmire, Pennsylvania 
(III) 

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. Rube ́n, 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 

(1) 

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. 
2 

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 
3 

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. 
4 

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 fulltime 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 
5 

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,’’ 
6 

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. 
7 

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 
8 

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. Rube ́n 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, 
9 

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 vicedean 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. 
10 

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. 
11 

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. 
12 

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 
13 

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 reli-
14 

gious 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 institu-
15 

tional 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 
16 

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 caseby-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. 
17 

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 hardnosed 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 
18 

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. 
19 

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 
20 

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 postdoc 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 topranked 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:] 
21 

1 Brown University, 342 NLRB 483 (2004). 

2http://latimesblogs.latimes.com/lanow/2012/09/ucla-professor-arraigned-on-charges-infatal-2008-lab-fire.html . 

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

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 
22 

3 Joe Berry, Reclaiming the Ivory Tower (Monthly Review Press, 2005) at p. 5. 

4http://www.aaup.org/NR/rdonlyres/7C3039DD-EF79-4E75-A20D-6F75BA01BE84/0/ 

Trends.pdf, U.S. Department of Education, IPEDS Fall Staff Survey. 5http://the-scientist.com/2012/08/01/opinion-the-postdoc-challenge/. 

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

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. 

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 
23 

6 In the latest National Research Council study, Berkeley had the highest number of topranked 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. 8http://www.2110uaw.org/gsoc/NYU—2110—contract.pdf . 

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

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

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 
24 

9http://www.aaup.org/AAUP/pubsres/policydocs/contents/statementcolbargaining.htm, 

(September 10, 2012). 

of higher education. Collective bargaining is an effective instrument for achieving 

these objectives.9

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 re-
25 

search, 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. Col-
26 

leges 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 consistentlyenforced, 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: 
27 

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 
28 

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’ 
29 

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 Memorandum14 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 
30 

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. 

4Point 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 11See, 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). 12Memorandum OM 12-59 at 8. 13 358 N.L.R.B. No. 93 (2012), 14GC 12-04 15Specialty 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— 
31 

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. 
32 

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 
33 

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. 
34 

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. 
35 

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. 
36 

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 pro-
37 

grams 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 
38 

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 
39 

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 per-
40 

cent 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? 
41 

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—— 
42 

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—— 
43 

Mr. MILLER. It just doesn’t include graduate students or postdocs 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 
44 

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 
45 

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. 
46 

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? 
47 

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? 
48 

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:] 
49 

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 
50 

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. 
51 

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:] 
52 

National Labor Relations Bias 

A mis.l!uidtJ law wllbla ,bt pmidmt's ullion jHlnJ"ing 

BY ROBERT VERBRUGGEN 

T ,,~N.lioIIal ~ R.I .. ioN &-I hat bocomo • 

ponisao n,..., of "to, After It)'iIlJ-4tld fa;I"''-''' desIror_-t.Ik>I ....... I«riord.;. "...r oll<d<" 

~ 

IqjsIoIiool. I"rai4oaI Obomo IUm<d 'war ""'" .... __ .. I!)wanI .. NUB, .......... ror ............ o.ut>or" ___ . 

To da ••• ON",. IIu piKed \h,... _1< "" (/Ie NLRD. 

Du,inl • • "ng .... ion.1 ""' .... he ; .. ,,11«1 e,.i, lic<kor. 

who'd ...... 0<1 ... lOp 1o"'Y'" for IWO oflho ......... ....... 

........ ( .... s.rn.. E.r,pIorta bIl ......... ' U .... 0IId .... 

MLoClO), .. I ........ of !he Ioootd. H. ool«tcd Motk t1 ,..,.... ....., hod _ .. ""'"'" oid< Iobor _ ...,poy.. ..... , 11 ... .- .. hio otrodal NLRB '"" I"'" ~ __ .And 

ObIma.IIoot .... A> Solomon" cO1ft\' NLR!! ,,"')'Ct ... tho 

board'Ja-nl..-l. 

~pn:IIIIJIllyr,Iod.~ ... """'Iloeq,<_ iIItI "'" ........,. Mol HIeplIy dio<ri .. ~ ....... ........ 

i:ted, ..,):00-""'" piaol ill w.II;"""" SraIc ......... ~ ohooe 10 

<~ ... ,.j prodO><tior> in South Caroli .. ,. riah"l<I-work ,,"c, 

1 .. ,.0<1. And .... board II IIyi"ll to <MnF .... rules ~loJ 

.. loa .k<:,iono 00 ... «>R>po .... !love low Ii.,. 10 .,0111" 

oIIli ......... ........,.;_ 

",..,. _10 beyond 0D)'thina .... NI,.RB bas dono irI. .... 

pa>~ 8., !he cllmoo' behlvior of tho Nllianal Labor RoW ..... 

-.. II ... Iy 11M oula'mOl! Ia)lft' of .... IN< pn>bI.m: .... 

NrtionoI ......... ~1Mioao ...... la ...r.IiIiooo 10 cn:aIio& ...... 

~ _,..;m. ......... ~ -----~- ...... .... ...,....,.,... QlONPIion. die It)5 

I'Ji.IOIiooI viol., .. Ihl COfIotlMion. el'" .... NLRD .... 

110_10 l\uo:1i"" ... 11 ....... bntw;boo Or .... "' ...... '., __ • 

.-:I allows ac.b ~ Ie> _ "'" -.:I .... f\aporIIIy 

biIOed -;-. """*,,, Obo .... "'1 u"" abuMd .... NLRA ....... _ his ~ did. boo. .... NlM .. bIoik 

fOr ........ Il"-ld k..,...alcd. ............. _ . 

The NlRA i •• 100 k"""'" .. ,he WoJner AC!, .lIot Soft. 

Roben F. Wa&na" of New Yod<. ill ........,... aero.. ill ..-- -. pri __ cmploycn'" ~Iy -'"'" !Me-

.... ill Ioow ....,.deaII ... Ik .......... ~ n..,. <uuIiL 

Sor aartIpk. oRpIy no. .....ten ..... rial 10 ............. 0IIIy 

Il pot«III or \he "",,·form worIc fom: w .. "".",i!Cd, bu, 

otriI: .. WOK <Ii""",i ... ,.1>11 !hey were JIOWi"i more fn>quon!. 

Tho _cd justif><Ol"" tbr .... NlRA .... IIIaI strik .. Iood I I>iMm<I Ihc "... no... of~, ud ...... """""""'1 "'"'- _ aiviIw _ ........ Iy,.-.... ...... _ 

--_.' 
53 

would ..,..,.110 .. fix ,hal. In reality, of """"'" C>ngre$s ....,. 

p<>rtcd the 10 .. OS a ",'oy of tipping the po ....... hola_ IOW.rd 

unio .. and a"... ~ from management The NLRA ...... iust one 

orman~ N ... Deal laws tllol ~Iishcd this, 

Some of th.s. low. add ... ...,. .... 1 problems-until llIe 

NOl'Ti ... b Guardia Ao" for in".""., oourts oflen i,,"«1 

injuno'""" '0 end .bikes, """nliall~ foreing peopl.1O w<>n:. The NLRA.OOwevc, w:a, . mi ...... from lOp'o bottom, 

A . it was origiNlly .Nctcd, the NLRA defined ... eral 

'"unfoi, labor llf1oC'ion" for bu.i.......,., but """" for 

unions, (In 1947, 11>0 fin-Hartley Act added ........ for 

union •. ) SI>cKt of closing . plant enli ... I~. _n"ie",..,t could 

"" longer di""",,'"g. woO;~i"ll.uch 1001. as hirina, fir' 

ing, discipline. and promotion-from partioipoling in union 

oc,iviti ••. The ""Iy , iglliflCUl' excq>1ion, confumed in. 19)8 

Sup ... .". Court cue. "..... ""t on employer could hi ... "'!'I..,.. 

menl work.rs during ... rile . • r>d wa. u"",,", "" obligation 10 

f, ... the "'!'I..,.",..,IO to make room for ... tuming •• rikers. The 

strikers ....... <lill """,idoted compony .mployees, however, 

lnd hod 10 b< ... i ..... 1«1 wilen posilions opened up, 

FUr!her, Ill. "'" set up the .ystem tl\n>ugll which unions .... 

"""'W'iud: Firsl,llIoy hal'<: 10 get 30 PO""'" of work ... in the 

''bargainin,g uni'" (typ""lIy, the wcd ...... given pl ... l) 10 

.igll cud •. Then, the NLRB 'up<n'i=. """""·baIl,,, eleclion, 

and if the union wi ... i, has tb< ri$h' 10 represen. the worl<.rs. 

(Altemoli.ely •• he union con gct.ig:fted cords ftom SO~' 

of work ... or>d ovoid on elo<.ion. but only if the company ....,1· 

un.arily rec<>gIIizes the union.) Th. compooy i. ~uired 10 

negotia .. in good failll wilh ill union "" a OO1\traCI; if ntgolia. 

,~ ralter, the wUoo may OIrike. 

The iolic bore il .imple .nd .... igl1'fQ<W1lrd: W. won' wort· 

ers to b< poid more and trealed be".r; the ... fore ..... 'It om> 

work ... willi the ",'eapons they need 10 gain COI>CCS1Iions ftom 

cmploya>. Unfortunately, it ...... ·1 un.il the 19So. 1110' Milton 

Friedman pro.cd the: =nomic fallacyofthi. plan. Yeo, un""" 

oftCJI manIIge to gel higher pay and bett..- _ing oonditiono 

for their rn<mbcrs. Bu, in re$pOI>$<, unionized bu$in .. se$ hi~ 

f.w..- worl: .... The worl<e:rs who I"m', hired by union co",. 

ponies to to ..,.,.lUlion companies-where their compe'i'ion 

driveo down .... geo--.>r rem.oin unempl~. In other words. 

in llIe private «<""" at lew. ,he goi., of unioniw;! worl:ers 

a .. n·t p i", for the: workil\i ci ...... whole; the( ... gains by 

....... _ ... at the c.<pcnse of others, ([n the public oo<tor, 

which ia no4 cov«ed b~ the NLRA, higher "'O$ClI.imply """'" 

from 1n1"'r-,) 

Ar>d economic. u.i<lc, the: NLRA 'yo,em invol .... . ,~m<II. 

<lous amount of coercion. Companies hi"" to nc:goIi.t< willi 

unions-wi,h ,he ,h", .. of. fe<lcnolly protec .. d . trike in the 

backgroor>d- whenever their employ..,. vote 10 mak. ,Item. 

Bu,inesses may no4 fi", wor\:..-. for union ao;ti.i,H:t, including 

'trikil\i, ... gordlno of whot the r.I ..... n. ",,"'noell .. y. Ar>d 

while the eurrenl case agains' llooing in.olves a f .... h ;"oc--

whelher componie, m.y fOClOr in loca llobor law. Ind past 

strikes wilen 6«:idinS whore 10 build DOw copaoity------dlt NLRA 

hq IoI\g bea> intapretcd 10 .".an IlIat • bu1intos ma~ "'" ""Ul 

down • unioni=! pi.." and roopet> il oomewbore eI .. (0 "run· 

Iway .hop") in rc'P""'< to llrik .. or uniOll demor>d •. If . 

union Ioo<>s.n el«'iOll, the NLRB ""'y decide the emploY'" 

" ... """" ...... , ..... "; ... ",,;,.,,.-

""lI"IIed in '"unf.ir lobor proc1iceo" and force ,he rompany to 

borgoin with the union anyway. 

W, "'" jUot .",ployers over ",hom the law &'2"" union. 

irnrnen.se po_. When. uni"" win. on elec'iOf'. """".rs who 

voted api ... it a ... fOl'ted to IC<Cf'lthe union as their""rnonop--

oly bupinintr agent, and .... forbidden 10 negoti ... their own 

cOlI"*"" witb lhe bu$incss. Dependil\i on ,tat. low and the 

:opecif'" '''H'',"''I, anti·union wcd ... ma~ . Iso bo •• 10 join the 

union or pay dues, Rigitl.(o.wort laws help in thi. regard, bu, 

they "" no1 sol.e the problem of ooacion-or>d llIe NLRA 

honned .ven lheoe laws "n,il the pouage of llIe T. /l.Hanley 

A •• , In • righ,·t".worl: at ... , worl<e .. at union.oops don', 

110,< to poy docs 01 join Ill. union. bu, they're >till bound by 

the union """,nrct .ven if they do nor wi'" '0 be. Se<n ditT",· 

onlly, lhey get to free.ride on union negoliating .tTort. w;,bou. 

poying their fair 'hare. 

MO$I of the: NLRA', etTect' ....... comrolctely f.,......,able, 

Union membership e'ploded, almo<1 triplin; in the t"" ynn 

following i" .,....ge. Ar>d the: IIw flil«l 10 oteornpliMI i", oup. 

posed gool ofcu".ilillil.tril:es: WorI: stoppages continued 10 

rise Ihrough 1937. f.n otT .. the: economy im~, 000 then 

ooar«!, rw:hing rheir on·\i.". high in 1943. 

What many did "'" f~ w .. the spread of""""plion 

through orgaItiud labor, Thi. iSl compl •• 0I0Iy-reW Robert 

FiI"h·. Solidaril)' for Sal. for on •• cell<11' $Ummal)' by • ~ 

uniOIl, lofti$' writer-bul tile bottom line i, thlt il'. c.lIed 

"monopoly" borpinin& for 0 reuon , When • ""ion doesn't 

foe<: compcri.ion ond i. en,iUcd 10 d .... from lhou .. nd. of 

work.rs, it ."""i,u,es • """,ive opportunily for organi=! 

crime. To ,hi. day, if you .... d 'hrough the FBI iooictmenl$ 

foliowin,g. mob 1:0\111. you'll ftoo I U.gationo of lobor rode. 

leering. 

F ...,.. ill inception, the NLRA faced co."i,utionol obol_ 

kngeo. Or.e in""lwd the q,..,'ion ofwh.ther Congrt:50 

hq the .u thoril~ to dictote how bu1i"..... int __ t with 

their_ .... 

The CoostitutiCHt giVCII Congrt:50 the rigl1, 10 ",guIOi. in."" 

" ... COInm<rCe, but during (000 .inee) the New Deal, Coni""" ,ook llIi. to mean il could regul". anything Ihat had 

.nything to do with inlon .... ~. The NLRA was one 

resul. of thi. intetprc .. tion: The employmen' policies of com· 

pani .. thot .... in....,lvod in in'ero"" cornrr>cn:e ore not the 

.. me thin.a .. in' ........ cornrnc«:e itself. and yel,he legislation 

di.toted the hiring procti«l of many lorge «>mpani .. tlrrough. 

""t the COItntry, 

At "'''''I, the Supn:me Court acquiesced to thi' lbuse of the 

cornmc"" power, [n 1937'. NUUJ ~ .I<,.u & LAugh/i" Slftl 

Corp<JNlri()l1, it ruled Ibol ".lthoIlgh ooti.ities moy be inlrast.te 

in cJwactcr when ~"Iely considon:d, if they Ito •• such a 

close '00 .ubstul1iol ",latiOll 10 intorSlO1< cornmcrt<: ""t thei, 

con'rol i, ...... 'i. 1 or appropriato '0 proteCI thol """""""" 

ftom burdens and ob.truc'ions. Congress cannot be rletIied the 

pow", 10 •• "",ise ,h •• control." Nev« mir>d ,ha, Congre" Ito$ 

Ih. aulhorily ""Iy '0 "rtgul ... " int ..... t. commer<:<:, not 10 

"protect [il) from burde .... and obo',,",'ions" 

The NLRA also rai ... Firatllmendmen, coneemo. While the 

Toft. Hanley Aor tMde ilck .. tha, emploY"" have ,he righllO 

opeol: their mind, company orr",ial. U11 still be puni,hed if 

" UOU,, ', to" 
54 

Ikir SIatm><IIU ... _ .. tllrtll:f.1nd t\Ia\ ItIlCmelltI 

IbM _~ by .... FincA_.." be ...... 1ICJIinot 

~io~_ 

In 1969'tlilAll. GUMI Pd.:c c.... the Suptemo Court 

",1011 IbM ..... _Io)u "",y COOIIIl>IIIIice '" hio cmpIoyta 

any or ~iI acncnl _itwo ... unionian and his """,iflC views 

I!Io<U' panloull. uRio .... Ion, •• the .. i. 1\0 ',hf'OI' of 

rqwi .. 1 Of r.:...:. Of prooniKofbenefit.'" (The Court ..... """,. 

i ... "' ........ i....-t """ .... NlAA by .... 1\11..llMtIey AoI.) No ~ ""'y ....... " pt«II« .... prcclJe _ .. "" lIel_ 

Wlionizl,;'" . ill II ........ _ if .... pr<di<tioIo iI 

~ .. objccti-e '"'" "''''''''''Y Ioio boJicf."' ......... abI' prot.bJe _ bcyaDd bioCODln>lor", ..... ""Y' __ 

""""'"'" doric;'" aIr-'Y ";wd • '" do ...... plant ....... 

"" ""ion;"'l;"'" " H~ .... y IIOl, """"","" ...... in "brink>· manslIip" Ofll\lk. __ ious oventalom<tllt. " 

Tbreato., ... gentlono, and boDoot pm:Ii .......... indeed 

diff....,.., !hinp-lftboy' .. oommWli"'I.~ okarly and tho IIIIIiorfyiat f_ ... ___ Out iII ..... .....-, 01 .... 

iry .... 't .... _ nIbo:r, _ lido "'"Pf .. .-10 the kpI 

1iDo .. ~ TIIIio_No.......,...do~...,. 

..,. 10..."...... .... ..........,;. -.....,.."" .......... _ 

unions try 10 pa;", Illes< .........."u .. IIn"l .... t""' ... 01 

promisoo, ond "'" tho NLRB oDII .... ......,. ... o.pooI<>d '" 

""" ilOUl 

The IIDoina taM ro*s .... sud> ....... A ..... pneraI """",. 

.. I'. ~ -. Boeina .. talli .... mode ........... public 

__ uplicitJy 1)'ioI .......... plant'. Iri~ 0( >trikor 

.-,.nlbol, ..tDk ,"",<COed by the Fin! ~_ 

tMt tbo -...-_', like IIIIioao. Some cin:uMo or .. 

......... .....,.,-. ...... dooidod "'''''''''PkIdY .... the_o( _ .. tomaIIt .. n*-.1IoIt othm ...... lIOl. fGr.u..plo, 

i. III oftoft-.cited 1963 .......... Fifth cmit Iliowtd-. 

........ in whodl 0 <:an>pItI)' "modo 1\0 bonco about itJ oppooi. 

lion 10 .... UIIion"1O be 1IIOd .. "bocklfOUll'l" in • caH, To 'hio 

dooy, .... "dmoi' spli'" tuo t>Ot bmI rcooIved. and 1110 NLRR 

.Ibwo ....... ltItommII'" be wtd ill .... taOS it ban.. .. pnI- .... 01 wind! tim1'1 the _ io Iototted ill. 

so,......"... ... 1tfI ........ fio>o line. To kcqo....n... 

ftuao ~..,. 110 ... '" __ ~ ........... 

IoormIid .rr... ... .........-. _ ClIO _lode plant ..... 

inp" Iootjobo. But !lac __ """"'" be ~ .. 

""-"tho)' _.....,..! 0YCrlyhea1cd. lost thoy ai..,=d. ibili~ 10 0 dioaimi ... li<>n olaim. Aonc:rioan ~ whooe wodor1...,~ onioIoiriDllIovo ",waIcIo _ thoy..,. 

O "".-..IheNLRA 

_~

.... boca ...... IDenbIe"'.,....;· Io _il_~wriIIIII 

in ~ ..... Ao die Supremo Cowt ...... pili .. 

Ccoota:r- "did .... _II die -""";bIo wit 0(..,..,1" 

In,.....;.. and unmiolokoblo Iotoptao...:ll incident thol would 

<on.ululll OIl ""flU- lobo< """,ice.." Wh;"b is to "y, II filled 10 

olTct.....".....,. 0 way 10 predict which oflheir IOIiono 'II'OUId 

"lefbe~ illopl 

Of .......... """" .... qio!Mi"ClnndI_o'" tho! foib 

When the law is unclear, the NLRB makes 

policies up as it goes along. 

10 Ihe duision 10 Ioootc Ihe DOW _~1 olKwhoro--oO>d .-dia& IOlbo __ -'. lhio _1IoeiIItI_· --' '" iaopJiodJ)' _ doot .... Vail _Id _ oddj. 

t"-I ...,.t .... ~ of I'uhIre torik ... " Bociq. of-. 

denies tho! itt _IS W<R ~ .. fIInba .. ys !boy 

ore pro1"<1cod by lbo "rot Ammdmenl I,', ... y 10 take lIooi ... • •• ide. WorI< ... 01 !he: Wuhin&ton 

pimn .... oId" 1971, 19119, 1995,200S,OtIdlOOt,OtIdit""",1d 

be i-...: ... upeot .... «>mpOIIy to ip>Cl<* IboI focI .. okcidint """"'" to ur-I. The """'I*'l' otr ...... __ ...... 1)1 -m. tIM: __ D.n Iho ........... 10 diod uplicitly <CftMd Iho 

000tic0I 

~ 

0( SIrilitIc wido 0 """"""'"' of loot "'"'" opp<o<1IMI- _ 0fJ'II0bIy ~ willi" .... n,hIlO .... te. 

... !Ii"""' .... cmpIoyea from o~erciti ... it. The low i .... lf, 

wk;"h """ceu 0 '"rlglol" 10""\11 down ........ C1nJ'1oyo,'0 open_ 

lions without focin,ony «<ISO<j1lOllCU, io .... pnlbl ..... 

Even in .............. ~ .. dewthat _k io protUtod by .... 

t·i ... A"'""" ........ tkal ~ .... Itill be bold apU>st m 

empJoyu ........ IhoNutA. Typ;cally."'_~ 

."" .... --.. .. "'--..._vo, .. __ ..,;· _"n;,.,~, __ ""_"""",,,,,_';" 

nodal .,.;~ I .... : If" ~ .. ys it fond, 

discipliDOd, ..... fIotod 10 ~ • • WO<\<er f ... iDoompctmce, 

how """ on omplcrye<I rrn_o <>thawi .. ? 

Often, cmploy<a .-1 10 onti"",ion 010 .......... """" by 

10 <I .... y fOlbid _ !hi ...... meI ollow otben, Il00 ...... 

~don'.IIo..,.poIic:y ... ...rCIKC.So,~'-

IheNUB,> ~-'(_ 6,.. .......... pM. 

pneraI ~ !bol _Id ....... 011 ....... braDdIe$ .. _ 

ouIo;<><I'" rrn.w by fc6enI ........ 

WboD Ihe Irw is ..... Ioor, die NlRB mak .. policies "I' .. it 

aoeo .Ion,. 5«, r ... e:um"I., .... "'w IIIliorHIoctIon ",I .. : 

The NlRA _', ..-il')l Ibo ......... ' ofti .... on tmplo)w 

_ 100 ... to ~ lor ... ckctioG, ... Ihe NLJ.D .... 10 

duide, Odd "' ..... ito mind • wilL 0... would lie fi&bl1O 

tat .... Ihe ,...,.,.,..aI noJo.-whicII .....w muIt ;" prq:.ratioa 

Ii ....... low ...... do)'l, ~.;" 1Odoy'o -... 0( 

"""""'.o-io 0 bod policy, on<! that iI'.1 cMnte .. dnmo!io 

!hat c... ..... obould be .wolved. l1ut in 193'. Cona;reosdlooo 

1o doltpte election pro«dura 10 ,he NlRB, ond unlil c...- ..... tlKidco 10do i .. job, the NLRD oon ond will do what._ 

~ pleuea. 

Si1o<c .. Toft·H.,lcyAtI, .... LRB·._i-e~_ 

beoto bcoodod by ill ...... 1 -" who ............. NLRB ............. .-1 _ ... I'ft*C1*W her- .... ~ wt.::. 

Ihe -'" "'-' m ••• <=ompIoio1, the NUUI,.... ..... judi. 

<101 -. decid;" whetbor Ihe .11e&<d ...... , violated !be 

NLRA ond alabliohi ... precedonu that ",ide fiollRd.d.iona. 

Liko ..... 1 jud;ci.l bodi .. , tile NLRII """ bo 0 ...... 10<1 "" 

.ppuI-bu1 Ihe -..1 ....... . yo! .... ,i,,", tho boosd. fa ... 

--. 
55 

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.’’ 
56 

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—Godgiven 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 
57 

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:] 
58 

Littler 

- '- "'--

September 26, 2012 

VIA EMAIL 

Honorable Phil Roe 

Chairman 

SUbcommittee on Health, Employment, Labor and Penslons 

Committee on Edocatlon and the Workforce 

2181 Rayburn House Office Building 

Washington, D.C. 20515-6100 

HOI1Ofabie Virginia Foxx 

Chairwoman 

Subcommittee on Higher Education and Workforce Training 

committee on Education and the Wortforce 

2181 Rayburn House Office Building 

Washington, D.C. 20515-6100 

Ultlot ..... dtlaon, p.e. Ono FI ....... Plau 

S\liIon~ 

RI02903 

U.S.A 

W ... 'C. H ..... <1(11.~._t424 dUd 

<01.&2'.2500"",10 

'Ol.4r.1.n691 .. whunto<Ol_.oom 

Re: September 12, 2012 Joint SUbcommittee Hearing - Additional Evidence 

Dear Olalrman Roe and O1alrwoman R»ox: 

1 would like to thank you and Members «the subcommittees for the opportunity to share my 

views regarding NlR8 Developments Affecting Institutions of Higher Education,w I hope that 

members of the subcommittees found the testimony of all of the witnesses helpful. 

I am writing to submit two exhibits for your consideration to set the record striIight with respect; 

to an assertion made during the heC!ring that the collective bargaining agreement at N't\J 

effectively pl"evented attempted Intrusions into matters of academic Judgment. The attached 

exhibits demonstrate that this was not the case. Indeed, NYU withdrew reoognltlon of the 

union because the union was unable to abide by Its commitment to refrain from such Intrusions. 

Durirlg the hearing, Mr. Sweeney pointed to the former collective bargaining agreement at NYU 

to support his view that collective bargaining will not Intrude Into academic issues at prtvate 

universities. He testified as follows: 

--

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 
59 

Honorable Phil Roe 

Honorable Virginia Foxx 

September 26, 2012 

Page 2 

contract states, ~[d]edsions 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.· 

The problem, hoIYever, is that there Is more to this story. The union did not abide by this 

commitment and tried repeatedly to Intrude into academic matters. The attached 

Recommendatlon from the Faculty AdvIsory Committee on Academic Pr1or1t1es-, obtained from 

the NYU website, summarizes the problem well: 

The Committee is concerned that the United Auto Workers has filed grievances 

over Issues that have threatened to impede the academic declslon-makJng 

authority of the facu!ty over such issues as: the staffing of the undefgraduate 

curriCulum; the appropriate measures of academic progress of studlffltS; the 

optimal design of support packages for graduate students; and the conditions 

and te!"ms of fellowships (as opposed to graduate assistantships). The 

Committee Is also worried by the willingroess of the United Auto Workers to take 

such Issues to arbitration and by the nature of the arbitration process, in which 

an outside arbitrator, who rarely has prior experience with the environment of 

unlvefsitles, makes decisions that are legally binding on departments and 

programs. Although no case InvoMng academic decision making has been 

decided In the favor of the United Auto Workers, this result was only achieved by 

a combination of vigilance and good fortune, and there are no assurances that 

the results will be the same In the future. Had any of the cases beeI1 decided 

differently, the ability of faculty to staff the curriculum and to design and 

implement programs in accordance with their best academic Judgment would 

have been Impaired. 

The readirless of the United Auto Workers to grieve Issues of academic declsionmaking and the nature of the arbitration process leads the Committee to 

conclude that It Is too risky to the future academiC progress of NYU for It to have 

graduate assistants represented by a un;on that has exhibited little sensitivity to 

academiC values and traditions. The Committee therefore recommends that NYU 

not re-enter Into negotiations with the United Auto WorKers and that it replace 

the current contract with more appropr1ate arrangem(!l1ts for govemlng Its 

relationship with graduate stud(!l1ts and providing them the support and respect 

they deserve. 

The University had proposed to the union a new paradigm that would have ~provIded graduate 

studtmts with representation over economic Issues, while protecting the integrity of the 

academic declsion-maldng process that Is essential to graduate assistants' primary role as 

students.- The union was unable to embrace this paradigm. Accordingly, NYU lawfully 

withdrew recognition of the union via the attadled August, 2005 letter, also copied from the 

NYU website. 
60 

HOOOfabie Phil Roe 

H()f!O«Ib/e VIrginia F<»oc 

September 26, 2012 

Page 3 

The attached evidence, therefore, establishes that the NYU ooIlectiv1:! bilrgaining agreement did 

not, In fact, prevent the union from attempting Intrusions into academic decision making. 

Indeed, it was the union's repeated grievances over Issues that threatened to Impede the 

academic dedsion-makJng authority of the faOJlty that triggered a withdrawal of recognition. 

Thank. you for your attention. 

Sincerely, 

~~ WCH:plm 

Attad1ments 
61 

RECOMMENDATION FROM THE FACULTY ADVISORY COMMITIEE ON 

ACADEMIC PRIORITIES 

(April 26, 2005) 

NYU's Provost, David McLaughlin, charged the Faculty Advisory Committee on 

Academic Priorities with providing the University Administration with advice on the 

issue of NYU's maintaining or withdrawing recognition of the United Auto Workers in 

representing graduate assistants. 

The Committee framed its discussions in tenns of academic mission and goals, 

asking what is in the best long-tenn academic interest of the university as a whole and of 

its graduate programs. Over the past two decades NYU has become one of the leading 

research and teaching universities in the country, charactcrized by an impressive flow of 

facully and student talent to all of its schools and a corresponding improvement in 

program quality. The question Ihe Committee posed is whether, with respect to this 

Academic Trnjectory, iT is heller TO moinToin recogniTion or withdraw recog nition of the 

United Auto Workers, and if the latter, whether there is an alternative arrangement that 

would better serve the needs of students and the university. 

In addressing this question, the Committee began with an overarching 

assumption: it is of fundamental importance to faculty, departments and programs that 

NYU be able to attract outstanding graduate students and create conditions in which they 

can flourish academically while at NYU; that which promotes these elements is to be 

encouraged, and that which inhibits them discouraged. 

The Committee believes thaI the environment in which this mission is best 

achieved is one in which faculty across NYU's diverse departments and schools have the 

fl exibility to tailor programs that are in the best academic interests of their students, and 

one that also emphasizes the mentoring relationship between faculty and students. Again, 

that which promotes these elements is to be encouraged, and that which inhibits them 

discouraged. 

The Committee judges there to be compelling reasons for preserving and indeed 

improving the conditions in the current union contract that deal with stipend levels, health 

care coverage, sick leave, posting of positions, work loads, and grievance procedures. 

These conditions are diret:tly related to the university's ability to attract top graduate 

students and help ensure their success. The Committee recognizes, moreover, that the 

process of negotiating a union contract facilitated progress on a number of these matters. 

The Committee also observes, however, that a traditiona! employee/emp!oyer 

relationship should not be at the core of srudents' relationship with the university; 

educational and intellectual matters art. Graduate srudents make vital contributions to the 

university in their roles as teaching assistants, graduate assistants, and research assistants, 

but graduate students should be regarded, first and foremost, as students, apprentice 
62 

researchers, and trainees of their faculty mentors rather than employees. Similarly, 

assistantships should be regarded, first and foremost, as part of their professionallraining. 

The Committee is concerned that the United Auto Workers has filed grievances 

over issues thaI have Ihreatened to impede the academic decision-making authority of the 

faculty over such issues as: the staffing of the undergraduate curriculum; the appropriate 

measures of academic progress of students; the optimal design of support packages for 

graduate students; and the conditions and terms of fellowsh ips (as opposed to graduate 

assistantships). The Committee is also worried by the willingness of the United Auto 

Workers 10 take such issues to arbitration and by the nature of the arbitration process, in 

which an outside arbitrator, who rarely has prior experience with the environment of 

universities, makes decisions that are legally binding on departments and programs. 

Although no case involving academic decision making has been decided in the favor of 

the Uniled A UIO Worker<:, this result was only slI;hievoo by ~ combination of vigilance 

and good fortune, and there are no assurances that the results will be the same in the 

future. Had any of the eases been decided differently , the ability of faculty to starr the 

curriculum and to design and implement programs in accordance with their best academic 

judgment would have been impaired. 

The readiness of the United Auto Workers to grieve issues of academic decisionmaking and the nature of the arbitration process leads the Committee to conclude that it is 

too risky to the future academic progress of NYU for it to have graduate assistants 

represented by a union that has exhibited little sensitivity 10 academic values and 

traditions. The Commillee therefore recommends that NYU not re-enter into negotiations 

with the United Auto Workers and that it replace the current contract with more 

appropriate arrangements for governing its relationship with graduate students and 

providing them the support and respect they deserve. 

The Comminee urges the university to formulate a set of basic principles 

concerning its relationships with graduate students, incl uding principles that commit the 

university, its schools, its programs, and its fac ulty to: 

(1) the highest possible standards of teaching and research; 

(2) compelitiveand predictable financial aid, health insurance, and other support 

to enable students to concentrate on their academic work and flourish at NYU; 

(3) honest and open discussions in good faith on all matters of common concern 

and processes that ensure fa ir resolutions of disputes; 

(4) opportunities for graduate students, individually and collectively, to have a 

voice in the educational issues that directly arrect them. 

A commitment 10 the above principles will help ensure thai the university is able 

to continue to attract outstanding students and maintain conditions in which they can 

fulfill their potential. The principles should be applicable to all graduate students at the 

university, not just those in the departments and schools governed by the current union 

contract, and should be publicly disseminated. The documenl articulating these 

principles should also contain instructions and guidance to schools and departments on 
63 

Specific matters governed by the current contract (for example, minimum stipend levels 

for graduate assistants, posting of assistantship positions, etc.) as well as matters of 

importance to graduate students that cannot be addressed in a union contract governing 

gTaduate assistants, either be<:ause they concern all graduate students (for example, 

housing) or because they are not part of wages and benefits (for example, teacher-training 

programs). Finally, graduate students themselves must be involved in the university and 

school processes going forward that consider how best to implement the above basic 

principles and how best to address other matters of graduate student concern. 

Members of the Faculty Advisory Commillee on Academic Priorities 

Jess Benhabib 

Department of Economics-FAS 

Ned Block 

Department of Philosophy-FAS 

Sylvain Cappell 

Mathematics- Courant 

Craig Calhoun 

Department of Sociology-F AS 

Suzanne Carothers 

Department of Teaching and LearningSteinhardt 

Gloria Cornui 

Department of Biology-FAS 

Richard Foley 

FAS Dean 

Robert Grossman 

Department of Radiology-Medicine 

Jonathan Hay 

Institute of Fine Arts 

David Heeger 

Psychology and Neural Science-FAS 

Ralpb Katz 

Department of Epidemiology & Health 

Promotion-Dentistry 

Paul Light 

Wagner 

Deoorab Padgett 

Social Work 

Gail Segal 

Department of Graduate Film-Tiseh 

Lanra Slatkin 

Gallatin 

Lee Sproull 

Information Systems and ManagementStem 

Richard Stewart 

L,w 

Catherine Tamis-LeMonda 

Applied Psychology-Steinhardt 

Jane Tylns 

Department of ltalian-FAS 

Srinivasa Varadhan 

Mathematics-Courant 
64 

NEW YORK UNIVERSITY Ap</>W.-....,. ..... ,..,.. __ 

Asooclote CenerJI ~ 

.nd Oi_ oILabot ReI"ion> 

U ...... HoI ..... Bob .. Ubr.ry 70 W.shlngton $q.> .... South NewYo<l<.NY 10011·1091 

leIephone:Ull) »&.1257 

Faa;m;)e: (111) »5·.lO43 

..... <>oo.noI.n...,....e<lI 

Via Electronic Mail 

Ms . Blizabeth Bunn, Secretary-Treasure r 

International union, VAW 

8000 East Jefferson Avenue 

Detroit, MI 48214 

Dear Ma . Bunn: 

Auguat 5, 2005 

We are disappointed by the United Auto Workera' August 4th 

r esponse to our letter. As it signals to us the conclusion of 

sny eftor t s - formal or informal - to reach an agreement that 

would be the basia for a new paradigm in our relationship, we 

want to take a moment to respond to that letter. In signing an agreement with the United Auto Workers in 

2001 and forgoing our right to take this matter to court, we took a leap of faith. We took the risk that you intended to 

abide by the l anguage of your March 1st, 2001 letter and the 

contract that followed to ensure academic decision-making was 

honored in the context of the agreement. Unfortunately, 8S 

demonstrated by UAW grievances over who can teach and how many 

y .... rs grlldm.t .... t"tl'mr.'" can take to complete their IItudiea, our leap of f aith was not rewarded. We would be remiss if we 

did not learn from this experience and avoid making the same 

mistake twice. 

In :pite of this history, in the offer we outlinsd in the 

August 2 letter, New York University moved farther than any 

other private university in the na t ion . OUr proposal offered 

a new paradigm, a paradigm that would have provided graduate 

asaistants with union representation on economic iasues, while protecting the integrity of the academic decision-making 

process that is essential to graduate assistants' primary role 

as students. We regret that the United Auto Workera is unable to 

embrace this new paradigm, and continues to resort to a traditional employer/employee labor model, which has proven to 

be ill-suited for an academic environment. We thought this 

was an opportunity to achieve a new partnership between the 
65 

[Whereupon, at 11:51 a.m., the subcommittees were adjourned.] 

Æ