National Center E-Note
National Center for the Study
of Collective Bargaining in Higher Education and the Professions


 
March 2014
Greetings!

The National Center E-Note is an electronic bulletin providing news, updates and analysis concerning events and issues of interest to our constituency groups.

We look forward to seeing you at our 41st annual national conference on April 6-8, 2014 at the CUNY Graduate Center in New York City.


The National Center's annual conference is underwritten by a grant from TIAA-CREF with additional funding from Segal/Sibson 

Conference Workshops on Negotiations, Mediation and Arbitration
We have organized a number of practical workshops for this year's conference aimed at enhancing the skills and understanding of practitioners regarding collective negotiations, mediation and arbitration. 

The first workshop, moderated by Arbitrator/Mediator Howard Parish, will provide attendees with an introduction to these subjects.  Other workshops will focus on practical negotiating skills, interest-based bargaining, best practices in mediation, and tools for winning at arbitration.  Presenters at those workshops will include: Commissioners Conrad Bowling and Julie Kettler from the U.S. Federal Mediation and Conciliation Service; and Arbitrators/Mediators Richard A. Curreri and Ira Lobel.  A complete list of workshop presenters is available at http://www.hunter.cuny.edu/ncscbhep/assets/files/second%20draft%203%20panels%202014%20smaller.pdf.

If you plan on attending any of these practical workshops, please e-mail your workshop choices to: national.center@hunter.cuny.edu.

Continuing Legal Education (CLE) Designated Sessions at Conference
Attendees at the national conference will be eligible for continuing legal education credit for the following designated sessions:

1. Legal Issues in Higher Education: Year in Review;

2. Social Media and Academic Freedom under 
Garcetti;

3. Who Owns On-Line Curriculum and Content? A Primer on Intellectual Property;

4. Ethics in Higher Education: Perspectives from Attorneys and Clients;

5. Introduction to Fundamentals of Negotiations, Mediation, and Arbitration;

6. Tools and Insights for Winning at Arbitration.

NLRB To Revisit Yeshiva Factors for Determining Managerial Status and the Standards for Deciding Whether a School is Exempt from Its Jurisdiction based on Religious Affiliation 

The National Labor Relations Board (NLRB) has indicated that it will be examining two important issues relating to faculty unionization in the private sector in a representation case involving contingent faculty at Pacific Lutheran University. 

 

On February 10, 2014, the NLRB issued a notice in Pacific Lutheran University 

soliciting briefs to respond to specific questions relating to whether that university is exempt from NLRB jurisdiction because of its religious affiliation under NLRB v. Catholic Bishop of Chicago (1979) and whether contingent faculty at that university are managerial under NLRB v. Yeshiva University (1980).  A copy of the notice containing the questions to be briefed is accessible at http://www.nlrb.gov/cases-decisions/invitations-file-briefs. 

 

The issue of whether a university is subject to the religious exemption under Catholic Bishop of Chicago is already pending before the NLRB in representation cases involving contingent faculty at Manhattan College, Saint Xavier University and Duquesne University.  While amicus briefs were filed in those cases, they were not solicited by the NLRB as it did in Pacific Lutheran University.

 

The NLRB questions in Pacific Lutheran University concerning the factors to be applied under Yeshiva are identical to a similar 2012 solicitation of briefs in Point Park University, which remains pending before the NLRB.  Unlike the 2012 solicitation, however, no NLRB Board member dissented from the request for briefing in Pacific Lutheran University. The renewed request for briefing on the appropriate application of the Yeshiva factors is indicative of the deliberative approach being taken by the NLRB Board with respect to the important issues under consideration.

 

The case of Pacific Lutheran University is before the NLRB on a university request for review of a decision and direction of an election by a NLRB Regional Director who rejected the claim that the faculty were managerial and that the school was exempted from NLRB jurisdiction.  In the Regional Director's decision, he concluded that the following unit of approximately 176 contingent members was appropriate for collective bargaining:

 

All full-time and regular part-time non-tenured contingent faculty employed

by the Employer on campus and off campus including in the following

classifications: instructor, lecturer, senior lecturer, visiting faculty, clinical

faculty, leave replacement faculty, professor emeritus/retired faculty, and

resident faculty; excluding all other employees, tenured faculty,

administrative faculty, full-time staff who are not compensated additionally

for teaching, administrators, department administrators, administrators

with teaching responsibilities, counselors, coordinators, campus clergy,

deans, associate deans, campus safety personnel, lab assistants,

graduate assistants, teaching assistants, managers, guards and

supervisors as defined in the Act.

 

Predictions concerning the ultimate outcome in any litigated case is inherently speculative.  Nevertheless, a recalibration of the Yeshiva factors by the NLRB in Pacific Lutheran University regarding managerial status might result in a nationwide resurgence in organizing efforts by tenure track faculty at private universities. Similarly, NLRB rulings that it has jurisdiction over Pacific Lutheran University, Manhattan College, Saint Xavier University and/or Duquesne University, which are sustained by the courts, have the potential for a new growth in private sector collective bargaining with respect to contingent faculty working at schools with religious affiliations.

 

Single-Campus Bargaining Unit for Contingent Faculty Affirmed by NLRB
In University of La Verne, the NLRB recently affirmed a Regional Director's decision finding a bargaining unit limited to part-time faculty working on the university's main campus was appropriate for purposes of collective bargaining.  In affirming the decision, the NLRB rejected the university's contention that the appropriate bargaining unit was contingent faculty working on all of school's ten campuses.  

Meeting Scheduled on Proposed NLRB Representation Rule Changes
The NLRB will be holding a public meeting on April 10 and 11, 2014 to hear comments concerning proposed changes to the NLRB's representation procedures. The proposed changes, if finally adopted, would be applicable to representation cases involving faculty working for private sector higher education institutions. The NLRB meeting will take place in the Margaret A. Browning Hearing Room (Room 11000), 1099 14th Street NW., Washington, DC.

University of New Hampshire and UNH Lecturer United - AAUP Headed to Collective Bargaining

In December 2013, the UNH Lecturer United - AAUP filed a representation petition with the New Hampshire Public Employee Labor Relations Board (PELRB) seeking to represent a bargaining unit of lecturers on the Durham and Manchester campuses of the University of New Hampshire.  During the processing of the petition, the parties stipulated to the parameters of the proposed bargaining unit.  Such stipulations are not unusual in representation cases where the parties want an expedited resolution without unnecessary litigation.  Consistent with the stipulation, the PERLB Executive Director on January 7, 2014 issued an order defining the bargaining unit as:

 

All contracted non-tenure track faculty who are appointed as and hold the title of "Lecturer" whose primary responsibility is teaching at UNH's Durham and/or Manchester campuses.  Excluded: Adjuncts and Visiting Faculty.

 

According to media reports, an election conducted by PERLB resulted in a 141 to 23 vote in favor of union representation.  After the UNH Lecturer United - AAUP is certified, the university and the union should begin negotiations for a first contract.  

 

Community College System of New Hampshire and State Employees' Association of New Hampshire, SEIU, Local 1984 Enter Into First Contract for Adjunct Faculty Bargaining Unit
The Community College System of New Hampshire (CCSNH) and the State Employees' Association of New Hampshire, SEIU, Local 1984 (Association) have entered into their first contract for a bargaining unit consisting of all adjunct faculty "who have taught at least five semesters in the last five years or who have currently begun their fifth semester of teaching and have taught four semesters within the last five years."  

The three year agreement contains a management rights clause that includes a provision concerning privatization. The association rights clause grants the Association a right to utilize CCSNH's electronic communications systems for internal Association business. The agreement also includes: a tiered salary schedule and hourly compensation rate for clinical preparation and student assessment; an article regarding academic freedom and professional responsibility; a just cause provision concerning dismissal during the term of an appointment; intellectual property provisions; and a meet and confer provision relating to future interpretations of the Affordable Care Act as it relates to adjunct faculty.  The complete CCSNH-Association agreement is available at http://www.seiu1984.org/files/2013/10/CCSNH-Adjunct-CBA-9.25.2013-6.30.2016.pdf.

Maryland Legislature Considering Legislation to Grant Collective Bargaining Rights at Community Colleges
Bills have been introduced in the Maryland Legislature to grant collective bargaining rights to faculty and other employees working for all community colleges. The proposed law would reserve one collective bargaining unit for full-time faculty and reserve a second unit for part-time faculty.  The text of the proposed legislation, HR490/SB749, is available at http://mgaleg.maryland.gov/2014RS/bills/hb/hb0490f.pdf.

Recent Publications of Interest
The following recent publications might be of interest to National Center constituency groups:

The Harvard University Electronic Communications Policy Task Force has issued its report and recommendations with respect to appropriate university policies regarding confidentiality and access to electronic communications sent, received and stored on university computer systems. The Task Force report is available at 
http://www.harvard.edu/sites/default/files/content/ECPTF_Final_Report_2_25_14_b.pdf

The United States Treasury Department has issued a fact sheet describing proposed final regulations of the Internal Revenue Service to implement employer responsibilities under the Affordable Care Act for 2015.  The fact sheet states with respect to adjunct faculty:  "Based on the comments we received, the final regulations provide as a general rule that, until further guidance is issued, employers of adjunct faculty are to use a method of crediting hours of service for those employees that is reasonable in the circumstances and consistent with the employer responsibility provisions. However, to accommodate the need for predictability and ease of administration and consistent with the request for a 'bright line' approach suggested in a number of comments, the final regulations expressly allow crediting an adjunct faculty member with 2 1/4 hours of service per week for each hour of teaching or classroom time as a reasonable method for this purpose."  The fact sheet is available at http://www.treasury.gov/press-center/press-releases/Documents/Fact%20Sheet%20021014.pdf.  The proposed final regulations are available at https://www.federalregister.gov/articles/2014/02/12/2014-03082/shared-responsibility-for-employers-regarding-health-coverage.

The Department of Professional Employees, AFL-CIO recently published a fact sheet entitled Professionals in the Contingent Workforce.  The fact sheet examines issues relating to the use of contingent faculty in higher education in the context of the rise of other professionals engaged in contingent and alternative work arrangements. The fact sheet with charts is available at: http://dpeaflcio.org/wp-content/uploads/Professionals-in-the-Contingent-Workforce.pdf.  

Submit Articles to the National Center's Journal of Collective Bargaining in the Academy (JCBA) for Publication
Journal of CBA Logo
As part of our effort to fulfill the mission of advancing the study of collective bargaining and labor relations in higher education, the National Center publishes the Journal of Collective Bargaining in the Academy (JCBA). JCBA is an open access, peer-review online publication.  It is edited by Jeffrey Cross from Eastern Illinois University and Steve Hicks from the Pennsylvania State Colleges and Universities Faculties, and it is hosted by the Booth Library, Eastern Illinois University. 
 
We encourage scholars, practitioners and students in the field of collective bargaining, labor representation and labor relations to submit scholarly articles for publication in JCBA.  
 
Register Early for the Annual Conference 
We encourage you to register early for the annual conference, and to book your hotel reservations.

We look forward to seeing you next month in New York City.
 
Sincerely,

 

William A. Herbert, Executive Director
Michelle Savarese, Administrator 

National Center for the Study of Collective Bargaining in Higher Education and the Professions 
national.center@hunter.cuny.edu | http://www.hunter.cuny.edu/ncscbhep
Hunter College, City University of New York
425 E 25th St.
Box 615
New York, NY 10010

Copyright 2014. All Rights Reserved.