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


 
May 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.

May 2014 Edition Contents:

1.   Podcasts from the Annual Conference are now available;

2.   Northwestern University NCAA Football Update; 

3.   Election Ordered in Seattle University Contingent Faculty Case;

4.   NLRB To Revisit Scope of Protections for Workplace E-Mail Use;

5.   University of Kansas Approves Revised Social Media Policy;
 
6.   First Faculty Contracts Reached in Maine, Illinois and New York City;

7.   UConn Recognizes UAW as Representative of Graduate Assistant Unit;

8.   Contingent Faculty at Northeastern University, Howard University and Maryland 
      Institute College of Art Vote for SEIU Representation;

9.   NEA Certified to Represent Rhode Island Community College Adjuncts;

10.  Wisconsin Update: Court of Appeals Upholds Constitutionality of Act 10;
 
11.  Strike Leads to Suspension of Dues and Agency Fee Deductions for Nassau   
       Community College Adjunct Faculty Association;     
 
12.  Save the Date! April 19-21, 2015 for the 42nd Annual Conference in NYC;

13.  Donate to Support the National Center's Work and Mission;

14.  Submit Articles to the Journal of Collective Bargaining in the Academy;

15.  Recent Publications and Future Programs of Interest.

Podcasts from the Annual Conference Are Now Available
Recordings of the following panels from the National Center's annual conference last month are now available as podcasts on our website: The Future of Higher Education; The Impact of Contingent Faculty on Higher Education Results; Trends in Labor-Management Issues at Historically Black Colleges and Universities; Labor Perspectives on the Organizing of Contingent Faculty; International Perspectives on Non-Tenure Track Faculty.  The podcasts were produced by Becca Pulliam from Please Repeat the Question Productions. Click Here to Listen to Podcasts.  Other podcasts and webcasts will be posted in the near future.

Northwestern University NCAA Scholarship Football Player Update
During the first plenary at our annual conference, NYU Law Professor Sam Estreicher and former NLRB Chairman Wilma Liebman discussed the decision by an NLRB Regional Director that concluded grant-in-aid scholarship football players at Northwestern University were employees under the National Labor Relations Act and entitled to representation for purposes of collective bargaining. Click Here for Daily Labor Report Article. 

Since the annual conference, an election was conducted on April 25, 2014 by the NLRB and the ballots were impounded pending the outcome of Northwestern University's Request for Review of the Regional Director's decision. 

The representation petition, the Regional Director's decision and the representational election conducted among Northwestern University's grant-in-aid scholarship football players has received wide media attention and commentary.  On one level, the case is symptomatic of the accelerating national focus on collective bargaining and questions of representation in higher education.  At the same time, the issues being litigated in Northwestern University are reflective of growing disagreements and concerns about the nature of collegiate sports.  Indeed, the NLRB case might become a catalyst for changes in college sports that are unrelated to collective bargaining.

The prominence of the case led the United States House of Representatives Committee on Education and the Workforce to hold a May 8, 2014 hearing concerning the potential consequences of allowing college scholarship players to have the right to representation for purposes of collective bargaining.  Click here for Hearing Webcast Part 1 and Click here for Hearing Webcast Part 2.
  

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?

 

2. Insofar as the Board's decision in Brown University, 342 NLRB 483 (2004), may be
applicable to this case, should the Board adhere to, modify, or overrule the test of employee status applied in that case, and if so, on what basis? 

 

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?

 

Election Ordered in Seattle University Contingent Faculty Case

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 UniversityManhattan 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.

 

NLRB to Revisit Scope of Protections for Workplace E-Mail Use 
The NLRB has issued a notice and an invitation for the filing of briefs in Purple Communications that strongly indicates that it will be revisiting the question of whether private sector employees who use their employer's computer equipment to communicate via e-mail regarding work also have a statutory right to use the equipment for electronic communications concerning protected concerted activities under the National Labor Relations Act (NLRA).  In 2007, the NLRB ruled in Register Guard that employees did not have that statutory right because the right of association guaranteed by the NLRA was outweighed by the employer's state common law personal property interest in its equipment.

The following is the most interesting and technologically sophisticated question posed by the NLRB in Purple Communications:

4. Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to be struck between employers' rights and employees' Section 7 rights to communicate about work-related matters? If so, how?

In light of the ubiquity of workplace-related electronic communications in higher education generated from employer-owned and faculty-owned equipment, the final outcome in Purple Communications might have significant implications for faculty and administrators at unionized and non-unionized private colleges and universities.

University of Kansas Approves Revised Social Media Policy
Important issues surrounding electronic communications in higher education are, of course, not limited to private sector institutions and faculty.

On May 14, 2014, the University of Kansas Board of Regents issued a revised social media policy for faculty and university staff.  The revised policy expresses the Board's support for academic freedom, incorporates and recognizes that the First Amendment provides certain protections for public employees who speak on issues of public concern. Click here for Revised UK Policy.

 

The revised policy states it is applicable to online activities such as social networking, blogs and wikis but it is inapplicable to "e-mail sent to a known and finite number of individuals" or to what it references as "non-social sharing or networking platforms such as Listserv and group or team collaboration worksites."  The technological distinctions in the revised policy do not factor in the ability of social networks to be limited to a finite group of individuals through privacy settings, and that an e-mail is prone to wide distribution beyond designated recipients.

 

Under the policy, faculty and staff can be subject to progressive discipline for engaging in what the policy defines as improper use of social media.  In general, online academic activities are excluded from the definition of improper use of social media so long as the authorship is in accordance with "commonly accepted professional standards" and all applicable laws and university policies.  Another exemption under the policy's definition of improper social media is for "statements, debate or expressions made as part of shared governance and in accordance with university policies and processes, whether made by a group or individual employees."  It is unclear, however, whether this exemption is equally applicable to other faculty associational activities including union activity.

 

Lastly, the policy incorporates, as modified, certain legal principles from Supreme Court decisions including a test that balances an employee's interest in freedom of expression against the employer's interest in promoting the efficient performance of governmental services.  Under the balancing test, an employee's social media post may be unprotected if it impairs discipline or harmony among co-workers, is detrimental to close working relationships, impedes the performance of the speaker's official duties, interferes with the employer's operation or otherwise adversely affects the employer's ability to provide efficient services.

 

The terms of the revised policy at the University of Kansas reflect the objective difficulties that universities and colleges face in attempting to formulate a workplace social media policy.  While it is too early to know whether there will be a legal challenge to the terms of the revised policy, it is probable that the application of the policy to impose discipline will result in future disputes over the meaning and scope of academic freedom in our cyber age and its frenetic electronic culture.

 

First Faculty Contracts Reached in Maine, Illinois and New York City 
After a two-day faculty strike in February 2014, the Board of Trustees of the University of Illinois and the UIC United Faculty Local 6456, IFT-AFT, AAUP have executed separate first contracts for tenure track and non-tenure track faculty bargaining units as well as an addendum agreement regarding appointment adjustments for non-tenure track faculty.

The Maine Community Colleges System and the Maine State Employees Association Local 1989, SEIU, AFL-CIO, CLC have entered into their first collective bargaining agreement for a unit of adjunct faculty, following the 2010 certification of the union as the representative of the bargaining unit by the Maine Labor Relations Board.

A first contract has been reached between Kaplan International Centers-NYC and the Newspaper Guild of New York Local No. 31003 for a bargaining unit consisting of regularly employed full-time and regularly employed part-time ESL teachers at three facilities in New York City.

The National Center's next E-Note will include analyses of and links to these agreements.

UConn Recognizes UAW as Representative of Graduate Assistant Unit

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 negotiationsClick 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.

 

Contingent Faculty at Northeastern University, Howard University and the Maryland Institute College of Art Vote for SEIU Representation
According to an article in the Boston Globe, adjuncts at Northeastern University voted in favor of unionizing with SEIU as their collective bargaining representative during a recent mail ballot election conducted by the NLRB.  Click here for Boston Globe article.  
 
The NLRB has certified SEIU as the exclusive representative for contingent faculty bargaining units at Howard University and the Maryland Institute College of Art following elections at those schools.  The defined scope of these newly certified faculty bargaining units will be included in the next E-Note.

Lastly, representation petitions were recently filed with the NLRB for the certification of union representatives for new proposed adjunct bargaining units at Macalester College and Hamline University. Click here for article.  

NEA Certified to Represent Rhode Island Community College Adjuncts
Following a two-day election in April 2014 conducted by the Rhode Island State Labor Relations Board, NEA was certified as the exclusive representative of a bargaining unit of all adjunct faculty at the Community College of Rhode Island who teach 6 credits within 2 calendar years.  The unit excludes applied music and non-credit courses. Click here for the RI certification.

Wisconsin Update: Court of Appeals Upholds Constitutionality of Act 10
Laborers Local 236, AFL-CIO v. Walker:  On April 18, 2015, the United State Court of Appeals issued a decision upholding the constitutionality of challenged provisions of Wisconsin's Act 10 that prohibits the State and its localities from engaging in collective bargaining with non-public safety employees concerning topics other than base-wage increases, and separately prohibits municipal employers from bargaining with non-public safety employees about non-wage issues.  The Court of Appeals found that those provisions did not violate the right to petition and the right to freely associate under the First Amendment.  In reaching its decision, the Court of Appeals rejected the State's argument that Act 10 permitted, but did not obligate, local governments to negotiate over non-wage issues concerning non-public safety employees.  Click here for court decision.

Strike Leads to Seven Month Suspension of Dues and Agency Fee Deductions for Nassau Community College Adjunct Faculty Association

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.

 

Save the Date! April 19-21, 2015 for the 42nd Annual Conference in NYC

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.

 

Donate to Support the National Center's Work and Mission

On-line contributions to the National Center can now be made on our website. Donations enable the National Center to enhance its programming, publications and initiatives.  On-line contributions can be made at the Hunter College Foundation's website.  At the website, select the National Center for Collective Bargaining Fund in the "Give To" drop down menu.  Click here to Donate to the National Center. 

 

Submit Articles for Publication to the Journal of Collective Bargaining in the Academy (JCBA) 
Journal of CBA Logo
We encourage scholars, practitioners and students in the fields of collective bargaining, labor representation and labor  relations to submit scholarly articles to the National Center's 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. Click here for JCBA website. 
 
Recent Publications and Future Programs of Interest

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 Second Annual Colloquium on Abrasive Conduct in Higher Education will take place at the University of Denver on June 23 and 24, 2015.  The Colloquium is co-sponsored by Sibson Consulting, the Boss Whispering Institute, University of Denver Office of the Provost and Human Resources and the Office of Human Resources, Utah State University. Click here for Colloquium Brochure. 

New York University's 67th Annual Conference on Labor will be taking place on June 6-7, 2014 at NYU Law School, Vanderbilt Hall, 40 Washington Square South, New York City.  The two-day conference is entitled Title VII of the Civil Rights Act after 50 Years. Click here for Conference Brochure.
 

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.  

 

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