National Center E-Note
National Center for the Study
of Collective Bargaining in Higher Education and the Professions
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The National Center E-Note is an electronic bulletin providing news, updates and analysis concerning events and issues of interest to our constituency groups.
June 2014 Edition Contents:
1. New Podcasts from the Annual Conference Are Now Available
2. Call for Papers and Proposed Workshops for 42nd Annual Conference
3. New Certifications of Adjunct Faculty Bargaining Unit Representatives
4. Other Proposed Adjunct Faculty Bargaining Units
5. NLRB Region 29 Director Finds NY Charter Schools Subject to NLRA
6. Supreme Court Rules in Favor of College Administrator's First Amendment Claim
7. North Carolina State Association Permits College Athletes to Join
8. Donate to Support the National Center's Work and Mission
9. Submit Articles to the Journal of Collective Bargaining in the Academy
10. Recent Publications and Future Programs of Interest
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New Podcasts from the Annual Conference Are Now Available
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Two additional podcasts from the National Center's annual conference are now posted on our website:
The Future of Pensions in Academia with Timothy Lane, TIAA-CREF, John Abraham, AFT, Neil Tudiver, CAUT, Mark Brossman, Schulte Roth & Zabel and moderator Brian Duffy, Acting Associate Provost, Hunter College, CUNY;
Collective Bargaining Results Regarding Contingent Faculty with Holly Lawrence, MSP/MTA/NEA, Richard Nettell, University of Hawaii Professional Assembly, John Bryan, University of Massachusetts and moderator Lisa Bonick, Director, Academic Labor Relations, Rutgers University.
The recently posted podcasts join the other podcasts available on our website: a) The Future of Higher Education; b) The Impact of Contingent Faculty on Higher Education Results; c) Trends in Labor-Management Issues at Historically Black Colleges and Universities; d) Labor Perspectives on the Organizing of Contingent Faculty; e) International Perspectives on Non-Tenure Track Faculty. Click Here to Listen to All of the Podcasts.
The podcasts were produced by Becca Pulliam from Please Repeat the Question Productions. Webcasts of other panel presentations from the annual conference will be posted in the near future.
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Call for Papers and Proposed Workshops for 42nd Annual Conference
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The National Center has issued a Call for Papers and Proposed Workshops for our 42nd Annual Conference that will take place on April 19-21, 2015 in New York City. The theme of next year's conference will be Thinking about Tomorrow: Collective Bargaining and Labor Relations in Higher Education. Click here for Call for Papers and Proposed Workshops Pr�cis of abstracts and proposed workshop trainings should be emailed to [email protected] by October 17, 2014.
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New Certifications of Adjunct Faculty Bargaining Unit Representatives
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Over the past two months, the National Labor Relations Board (NLRB) has issued five private sector certifications following representation elections involving non-tenure track faculty at Maryland Institute College of Art, Howard University, Mills College, Northeastern University and San Francisco Art Institute.
Background
The duty to engage in collective bargaining in higher education commences with an institution voluntarily recognizing a union as the exclusive representative of a specified group of employees, or upon the certification by the NLRB or a state labor relations agency of a union as the exclusive representative of a defined unit of employees. A certification includes a description of the at-issue collective bargaining unit.
Frequently, the composition of faculty bargaining units differ from institution to institution. Such differences have existed since the beginning of collective bargaining in higher education.
The ultimate shape, size and composition of a bargaining unit are oftentimes the result of practical compromises reached by the parties, during the processing of a representation petition, over the identity of specific titles and which titles would constitute an appropriate unit for negotiations. A party's position concerning unit composition can also be tactically-based, aimed at impacting the outcome of the representation election. Following certification, the composition of a unit is subject to modification by mutual agreement of the parties during the course of collective bargaining.
Compositional differences in faculty bargaining units also stem from the distinct legal standards applied in determining an appropriate bargaining unit in the private sector under the National Labor Relations Act (NLRA) and the respective standards applied by labor relations agencies that administer state collective bargaining laws. The different standards and precedents result in some bargaining units being limited to faculty members on a particular campus, while other negotiating units may include faculty on all campuses within a statewide university system.
Another important issue concerning faculty unit composition under state public sector collective bargaining laws is whether non-tenure track faculty should be placed in the same unit with tenured and tenure-track faculty or in a separate unit. In New York, certified faculty bargaining units frequently include both tenure-track and contingent faculty, while in Illinois a state court ruled that Illinois state law required separate units.
In the five recent private sector certifications issued by NLRB, the representation of tenured and tenure-track faculty was not at issue. This is largely due to the fact that, unlike precedent in many public sector jurisdictions, tenured and tenure-track faculty in the private sector have been treated by the NLRB as managerial since the Supreme Court's decision in NLRB v. Yeshiva University, 444 U.S. 672 (1980), and are thereby excluded from NLRA legal protections. The decision in NLRB v. Yeshiva University, however, does not preclude a private institution from voluntarily recognizing a union to represent a combined unit or a separate unit with tenured and tenure-track faculty. In addition, the NLRA permits the creation of a multiemployer bargaining unit for the purpose of an industry association negotiating with a union to reach a group contract, which can standardize terms and conditions of employment.
Comparison of Recent NLRB Certifications
A comparison of the unit descriptions in the recent NLRB certifications exemplify the variations that can exist in the composition and size of adjunct faculty bargaining units in higher education. The certifications have differences concerning the titles covered, the means for determining unit inclusion, and the geographic scope of the units. Some units include both full-time and part-time adjunct faculty, while others are limited to part-time adjuncts. The units at Maryland Institute College of Art and Howard University are defined within a specific municipality with the certification concerning Howard University expressly excluding adjunct employees at the school's medical, dentistry, nursing and law schools. In contrast, the unit at Northeastern University covers adjunct faculty at two specifically named campuses and at the law school.
Maryland Institute College of Art: May 7, 2014 Certification of SEIU Local 500
All part-time faculty employed by the Employer in Baltimore, Maryland,
including all those teaching at least one class, workshop, or seminar; and including all part-time faculty teaching in the School for Professional and Continuing Studies but Excluding: All other employees, full-time faculty, pro-rata faculty, graduate students, teaching assistants, artists in residence, critics in residence, visiting artists, visiting critics, full-time staff whose adjunct teaching is not compensated additionally for teaching administrators, administrators who have teaching responsibilities, managers, guards, and supervisors as defined in the Act.
Howard University: May 8, 2014 Certification of SEIU Local 500
All part-time faculty employed by the Employer in Washington, D.C., teaching at least one credit-earning class, lesson, or lab; but excluding all other employees, full-time faculty, graduate assistants, clinical fellows, teaching fellows, teaching assistants, research assistants, full-time staff whose part time teaching is not compensated additionally for teaching, administrators, administrators who have teaching responsibilities, all employees of the Howard University Schools of Dentistry, Medicine, Nursing & Allied Health Sciences, Pharmacy and Law, and managers, guards and supervisors as defined by the Act.
Mills College: May 22, 2014 Certification of SEIU Local 1021
All full-time and part-time non-tenured and non-tenure track employees including Artists in Residence, Scholars in Residence, Writers in Residence, Assistant Professors of Practice, Associate Professors of Practice, Professors of Practice, Instructors, Lecturers, Visiting Artists, Visiting Assistant Professors, Visiting Associate Professors, Visiting Professors, Visiting Writers, and Director of Pre-Nursing Services; excluding all tenured faculty, tenure-track faculty, Distinguished Endowed Chairs, Director of Writing Center, Visual Resources Curators, Pro-Rata Faculty, Artist Lecturers, Individual Lesson Instructors (Private Music Instructors, Ensemble Directors, Instructors in Athletics and Recreation), Administrators, all other non-faculty employees, managers, guards, and supervisors as defined in the National Labor Relations Act
Northeastern University: May 27, 2014 Certification of SEIU CTW, CLC
All part-time graduate, undergraduate faculty (adjunct, lecturers or instructors) employed by Northeastern University to teach at least one credit-bearing course in a degree granting program, at Northeastern University's campuses located at 360 Huntington Avenue, Boston, Massachusetts and 89 Broad Street, Boston, Massachusetts, including hybrid and blended courses, and the Law School, who are compensated on a per course basis, but excluding all tenured or tenured track faculty, visiting or contract faculty, faculty that teach only online courses and courses at any other Northeastern University campus, and all other employees, whether or not they have teaching as part of or in addition to any other of their responsibilities including, deans, provosts, professionals and non-professional employees, administrators, department chairs, graduate assistants, graduate students, research assistants, clinical fellows, teaching fellows, athletic coaches, academic advisors, maintenance employees, clerical employees, clinical nurses whose primary duties are performed away from the 360 Huntington Avenue and 89 Broad Street, Boston, Massachusetts campuses, managers, confidential employees, guards and supervisors as defined by the Act.
San Francisco Art Institute: June 11, 2014 Certification of SEIU Local 1021
All non-tenured and non-tenure track Visiting Faculty; excluding all tenured faculty, tenure track faculty, administrators, all other non-faculty employees, managers, guards, and supervisors as defined in the National Labor Relations Act.
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Other Proposed Adjunct Faculty Bargaining Units
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Certifications concerning adjunct faculty units at other private sector institutions may be issued by the NLRB in the near future following the results of representation elections.
Hamline University: Case No. 18-RC-127335
A recent election was conducted by the NLRB concerning a representation petition filed by SEIU Local 284 seeking to represent a unit of non-tenure track facility at Hamline University. According to media reports, the adjunct faculty in the following defined unit voted in favor of unionization:
All regular part-time non-tenured and non-tenure eligible Adjunct Instructors, Adjunct Faculty, Instructors, Adjunct Professors, and Adjuncts employed by the Employer who teach undergraduate labs or credit-earning classes toward an academic degree on the Employer's St. Paul, Minnesota campus; excluding tenured faculty, tenure-track faculty, teaching track faculty (all regardless of faculty rank or appointment), all faculty who teach any course in the School of Law, all full-time faculty, all visiting faculty (including Visiting Assistant Professors), faculty librarians, graduate assistants, teaching assistants, deans, associate deans, assistant deans, department chairs, divisional representatives, program chairs, directors, associate directors, faculty who exclusively teach music lessons, faculty who exclusively teach online, faculty who exclusively teach graduate-level courses, faculty who exclusively provide individual student instruction (including, but not limited to, capstone, thesis, dissertation, independent study, practicum, or internship), faculty who exclusively teach a class or lab conducted primarily at some other campus(es) or location(s), all other staff members (whether or not they have teaching responsibilities), confidential employees, managerial employees, guards and supervisors as defined in the Act, and all other employees.
University of St. Thomas: Case No. 18-RC-129281
An election is being conducted by the NLRB in a representation case concerning the following unit of adjunct faculty at the University of St. Thomas:
Included: All part-time non-tenured and non-tenure-track faculty employed by the
University of St. Thomas to teach undergraduate-level labs or undergraduate level
credit-earning courses at the St. Paul and Minneapolis campuses located at
2115 Summit Ave., St. Paul, MN 55105 and 1000 LaSalle Ave., Minneapolis, MN
55403. The faculty in the unit include but are not limited to Adjunct Faculty,
Senior Adjuncts, Participating Adjuncts, Supporting Adjuncts, and Adjuncts.
Excluded: All other faculty, including tenured and tenure-track faculty; full-time
faculty; clinical faculty; limited term faculty; distinguished service faculty; visiting
faculty; faculty who are concurrently employed as full-time or tenured or tenure-track
faculty by another institution of higher education and are employed by the
University with respect to a joint program with another institution of higher
education; visiting scholars; music lesson faculty who exclusively teach music
lessons; and faculty who exclusively teach: a course or lab not conducted
primarily at the University's Minneapolis or St. Paul campuses, non-degree or
non-credit earning courses, graduate-level courses, courses in the School of Law
or the St. Paul Seminary School of Divinity, or online courses. Also excluded are
all graduate assistants, teaching assistants, deans, associate deans, assistant
deans, department chairs, divisional representatives, program chairs, directors,
associate directors, administrators, managers, supervisors, coordinators,
coaches, librarians, specialists, staff, confidential employees, guards, anyone
else excluded by the Act and all other employees, whether or not they have
teaching responsibilities.
An employee who is in the bargaining unit scope by virtue of the unit description
above, but who also teaches one or more graduate-level courses or has some
other responsibilities or appointment(s) with the University, shall be considered a
dual function employee, meaning that the employee is a member of the above described bargaining unit solely for purposes of teaching undergraduate-level
labs or undergraduate-level credit-earning courses on the Minneapolis or St. Paul
campus, and that only such work falls within the bargaining unit. Any and all
responsibilities and/or appointments other than teaching undergraduate-level
lab(s) or undergraduate-level credit-earning course(s) on the Minneapolis or St.
Paul campus are outside of the above-described bargaining unit..
Marist College: Case No. 03-RC-127374
An election is being conducted by the NLRB in a representation case concerning the following unit of adjunct faculty at Marist College who have taught at least one credit hour in any given semester in the twelve months preceding the date of eligibility to vote:
All adjunct faculty employed by the Employer who teach undergraduate and/or graduate level courses, who teach in the classroom and/or online, and who teach courses at either the Employer's Poughkeepsie, New York campus or its Fishkill, New York campus, and Student Teaching Supervisors; but excluding all other faculty, tenured and tenure eligible faculty, full-time faculty and faculty who only teach in the classroom at locations other than the Poughkeepsie Campus or the Fishkill Campus, administrators, coaches, librarians, directors, managers, guards, supervisors and professional employees as defined in the Act, and all other employees whether or not they have teaching responsibilities.
Macalester College: Case No. 18-RC-127249
There will not be an election in this case because the representation petition concerning a unit of college adjuncts at Macalester College was withdrawn earlier this month. Nevertheless, it is interesting to examine how the proposed unit was defined in that petition:
Included: All full and regular part-time non-tenured and non-tenure eligible faculty, including Adjunct Professors, Postdoctoral Fellows, Senior Instructors, Senior Lecturers, Visiting Assistant Professors and Visiting Instructors who are employed and teaching at Macalester's campus at 1600 Grand Avenue, St. Paul, MN, 55105. Excluded: All other faculty (including tenured and tenure-eligible faculty), Laboratory Instructors, faculty who teach exclusively online or at another location. Also excluded are all other employees, whether or not they have teaching responsibilities, including staff, administrators, directors, associate directors, managers, supervisors, guards, and anyone else excluded by the Act.
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Supreme Court Rules in Favor of College Administrator's
First Amendment Claim
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Last week, a unanimous Supreme Court in Lane v. Franks ruled that the First Amendment rights of Central Alabama Community College administrator Edward Lane were violated when he was terminated for providing truthful sworn testimony, pursuant to a subpoena, in a criminal investigation and trial concerning a state legislator's no-show job at the college.
The Supreme Court's decision is important for a number of reasons. The Court's decision limits the applicability of the rule first annunciated in Garcetti v. Ceballos that a public employee who engages in speech pursuant to official duties is unprotected against retaliation under the First Amendment. In Lane v. Franks, the Court found that although Lane testified under oath about facts he learned as part of his official administrative duties he was protected by the First Amendment because his truthful sworn testimony about those facts, compelled by a subpoena, was "outside the course of his ordinary job responsibilities." The Lane v. Franks decision, written by Justice Sonia Sotomayor, is also significant because it strongly reenforces core First Amendment principles and protections in the public sector, and finds that testifying about public corruption and the misuse of state funds is "a matter of significant public concern" under the First Amendment. Due to the nature of the issues before the Court, however, the decision did discuss an important unresolved issue left open by Garcetti v. Ceballos: whether or how the First Amendment exclusionary rule concerning speech pursuant to official duties applies to academic freedom. Click here for the Supreme Court's decision
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North Carolina State Association Permits College Athletes to Join
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Following in the wake of the NLRB Regional Director's decision in Northwestern University, finding that college grant-in-aid scholarship football players at Northwestern University were employees under the NLRA, the State Employees Association of North Carolina (SEANC) has announced a change in policy to permit athletes at North Carolina public colleges to join the association. SEANC's actions will not result in collective bargaining representation for the college athletes because North Carolina prohibits public sector collective bargaining, a legal position that has been found to be inconsistent with international freedom of association standards. Click here for ILO Committee Report Case No. 2460. Instead, SEANC can now lobby and advocate on behalf of college athletes who join the association as it does for employees working for state agencies.
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NLRB Region 29 Director Finds NY Charter Schools Subject to NLRA
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When the New York State Legislature enacted the the Charter Schools Act of 1998, establishing the rules and procedures for the creation, regulation and termination of charter schools in New York, it defined charter schools as public schools and mandated that all charter schools and charter school employees be subject to New York's public sector collective bargaining law and other state law provisions.
On May 28, 2014, NLRB Region 29 Director, on a representation petition filed by the Hyde Leadership Charter School - Brooklyn, concluded that that the charter school is not a "state or political subdivision thereof" and therefore is subject to NLRA jurisdiction rather than New York's collective bargaining law. In reaching his conclusion, the Regional Director relied upon prior NLRB decisions in Chicago Mathematics & Science Academy and in Pennsylvania Cyber Charter School finding charter schools in Illinois and Pennsylvania to be subject to the NLRA. The United Federation of Teachers, the union seeking to represent the charter school teachers, has filed a Request for Review of the Regional Director's Decision with the NLRB Board. If the NLRB Board denies review or affirms the Regional Director's decision many provisions in the Charter Schools Act of 1998 intended to regulate New York charter schools will be preempted, and therefore null and void.
In earlier decisions, the NLRB concluded that research foundations at two public universities were subject to the NLRA. The analysis and conclusions in those higher education cases and in its charter school decisions may be relevant in future cases concerning representation on public university campuses and facilities for those working for entities that are public-private partnerships between a university and a company or foundation.
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| Donate to Support the National Center's Work and Mission |
Submit Articles to the Journal of Collective Bargaining in the Academy
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 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. |
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Recent Publications and Future Programs of Interest
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The following recent publications and upcoming programs might be of interest to you:
The National Center for Education Statistics (NCES) has issued its Condition of Education 2014 report. The NCES report includes specific data relating to faculty in higher education. The report finds that full-time faculty in higher education increased by 42% in the period 1991-2011, while part-time faculty increased 162% during the same twenty year period. The steepest percentage increase occurred at private for-profit schools,1,400%, with faculty in public institutions increasing by 64% and faculty at private nonprofit institutions increasing by 83%. The number of faculty working at private for-profit institutions in 2011 represented 9% of all faculty employed by colleges and universities nationwide. With respect to faculty salaries, NCES reports that the average faculty salary in academic year 2012-13 for full-time instructional faculty on 9-month contracts was $77,300 with average salaries ranging from $53,400 for lecturers to $108,300 for professors. Click here for the full Report
The Rockefeller Institute of Government at the State University of New York has issued a report entitled States Go Global: State Government Engagement in Higher Education Internationalization. The principal investigators for the report are Jason E. Lane, Taya L. Owens and Patrick Ziegler. The report examines the motivations underlying states engaging in the internationalization of their colleges and universities. Click here for the Report
Cornell University's School of Industrial and Labor Relations (ILR) has announced a new series of online labor and employment law programs that will examine the organizing of graduate students, wellness programs under the Affordable Care Act, and the future direction of the NLRB with new General Counsel Richard Griffin. Click here for ILR Program information
On October 21-22, 2014, Faculty Bargaining Services, the Australian Higher Education Industrial Association and Universities & Colleges Employers Association will be holding a conference in Vancouver, B.C., entitled In Pursuit of Institutional Success and Sustainability: Directions for Our Academic Workforce, for leaders and administrators involved in academic and labor negotiations on behalf of institutions of higher education. Click here for Conference information
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National Center for the Study of Collective Bargaining in Higher Education and the Professions
425 E 25th St.
Box 615
New York, NY 10010
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