After it granted Northwestern University's Request for Review, the NLRB issued a May 12, 2014 notice and an invitation for briefs to address one or more specific issues including whether it should apply, modify or overrule its decision in Brown University, where it held that graduate students are not employees under the NLRA, and therefore not entitled to the statutory federal right to engage in collective bargaining.  

The following is the full set of issues posed by the NLRB in Northwestern University:  

1. What test should the Board apply to determine whether grant-in-aid scholarship

football players are "employees" within the meaning of Section 2(3) of the Act, and

what is the proper result here, applying the appropriate test?

3. What policy considerations are relevant to the Board's determination of whether

grant-in-aid scholarship football players are "employees" within the meaning of

Section 2(3) of the Act and what results do they suggest here?

4. To what extent, if any, is the existence or absence of determinations regarding

employee status of grant-in-aid scholarship football players under other federal or

state statutes or regulations relevant to whether such players are "employees" under

the Act?

5. To what extent are the employment discrimination provisions of Title VII, in

comparison to the anti-discrimination provisions of Title IX of the Education

Amendments Act of 1972, relevant to whether grant-in-aid scholarship football

players are "employees" under the Act?

6. If grant-in-aid scholarship football players are "employees" under the Act, to what

extent, if any, should the Board consider, in determining the parties' collective bargaining obligations, the existence of outside constraints that may alter the ability

of the parties to engage in collective bargaining as to certain terms and conditions of employment? What, if any, should be the impact of such constraints on the parties'

bargaining obligations? In the alternative, should the Board recognize grant-in-aid

scholarship football players as "employees" under the Act, but preclude them from

being represented in any bargaining unit or engaging in any collective bargaining, as

is the case with confidential employees under Board law?

An NLRB Regional Director has issued a decision and notice of election in Seattle University concerning a representation petition filed by SEIU for a bargaining unit composed of all non-tenure-eligible contingent faculty at that university with the exception of nursing and law school faculty.  In the decision, the Regional Director rejected the school's argument that it is not subject to the NLRB's jurisdiction because it is a religious institution pursuant to the United States Supreme Court's decision in NLRB v. Catholic Bishop of Chicago (1979).  The Regional Director found that Seattle University does not have a substantial religious character because faculty are not subject to a religious requirement, and the school is independent and receives no funding from the Catholic Church or the Society of Jesus, which founded the school.  

The Regional Director in Seattle University also rejected the university's argument that the contingent faculty should be deemed managerial under NLRB v. Yeshiva University (1980).  While two contingent faculty members are members of the school's 19 member Academic Assembly, the Regional Director found that it was an insufficient fact for a managerial finding under Yeshiva because the Assembly by-laws mandate that a majority of the Assembly be comprised of tenured faculty.   

As mentioned in the National Center's March 2014 E-Note, there are already a number of other representation cases pending at the NLRB involving contingent faculty at institutions of higher education where the religious exemption issue has been asserted: Pacific Lutheran University, Manhattan College, Saint Xavier University and Duquesne University.  In addition, the proper application of the Yeshiva factors for determining managerial status under Yeshiva is under consideration by the NLRB in Pacific Lutheran University and Point Park University.

On April 11, 2014, the University of Connecticut and the Graduate Employee Union-UAW entered into a neutrality/card check agreement concerning union representation of graduate students, research assistants and teaching assistants, collectively referred to as graduate assistants. The agreement states that the parties acknowledge that the question of whether graduate assistants are employees for purposes of collective bargaining is unresolved under Connecticut state law and that the issue should be clarified through legislation. 

In the absence of such legislation, the parties agreed that graduate assistants are employees for purposes of collective bargaining and that all graduate assistants belong in a single collective bargaining unit.  The agreement provides that whether the Graduate Employee Union-UAW had majority support would be determined through a count of written authorization cards by the Connecticut State Board of Labor Relations.  In addition, the University of Connecticut agreed that, following verification of majority status, it would voluntarily recognize Graduate Employee Union-UAW as the exclusive representative of the bargaining unit. 

Under the agreement, the University of Connecticut agreed to remain neutral on the question of unionization and committed that its senior administrators would not engage in any efforts to influence the decision by the graduate assistants concerning unionization.  In addition, the agreement states that certain issues defined as academic matters would not be the subject of negotiations. Click here for the UConn-UAW agreement. 

Following the submission of authorization cards by the Graduate Employee Union-UAW to the Connecticut State Board of Labor Relations, the agency found that a majority of the graduate assistants favored union representation.  As a result, the University of Connecticut recognized the Graduate Employee Union-UAW as the representative of the graduate assistant bargaining unit.

Following a strike in September 2013 by contingent faculty at Nassau Community College, the New York State Public Employment Relations Board recently ordered a seven-month suspension of dues and agency shop fee deductions for the Adjunct Faculty Association under the anti-strike provisions of New York's Taylor Law.  The decision was issued after the Association withdrew its answer, and did not deny the allegations set forth in the strike charge.

Please mark your calendars for the 42nd Annual Conference that will be taking place on April 18-21, 2015 in New York City.  Look for updates in future E-Notes and on our website.

The following recent publications and future programs might be of interest to you:  

The University of Pennsylvania's Center for Minority-Serving Institutions has issued a report comparing appropriations for Historically Black Colleges and Universities in four states. Click here for HBCU Funding Report. 

The University of Texas College of Education's Center for Community College Student Engagement has issued a special report entitled Contingent Commitments: Bringing Part-Time Faculty Into Focus. Click here for Special Report.  

The Coalition of Contingent Academic Labor (COCAL) will be holding its eleventh conference on August 4-6, 2014 at John Jay College, CUNY, New York City.  The conference will include plenaries, forums and workshops dealing with issues faced by contingent faculty in higher education in the United States, Canada and Mexico. Click here for Conference Brochure. 

The transcript and audio recording of a forum held in October 2013 concerning contingent faculty at SUNY New Paltz is now available at the website of United University Professions.  Click here for SUNY New Paltz Forum.