On June 30, 2014, the United States Supreme Court issued its decision in Harris v. Quinn striking down on First Amendment grounds a provision of a collective bargaining agreement between the State of Illinois and SEIU requiring domestic health care workers in a state-wide bargaining unit, who are not union members, to pay an agency fee to SEIU for the costs associated with the union's representation.  Click here for the Harris v. Quinn decision.  

In finding that the contract provision violated the First Amendment, the majority in Harris v. Quinn criticized and distinguished a 1977 Supreme Court decision that upheld an agency fee arrangement in the public sector, as well as certain earlier private sector precedent.  The Harris majority concluded that the 1977 decision was inapplicable because the Illinois domestic heath care workers were not "full-fledged public employees" despite the state law that defined them as public employees. Instead, the Supreme Court found that the employees were "quasi-public employees" because the private individual who receives the home care has authority over key aspects of the employment relationship with the domestic worker even though many other core terms of employment including salary and benefits are set and paid for by the State of Illinois.     

It is significant that Harris is the first decision by the Supreme Court to find that the First Amendment requires a "right to work" legal regime for a bargaining unit of employees. The decision means that non-union members in bargaining units of employees determined to be "quasi-public employees" can now have a contractual right to benefits under a negotiated agreement and a First Amendment right to refuse to contribute to the cost of the representation that resulted in those benefits. Moreover, under other legal principles the non-contributing employees in a bargaining unit cannot be treated disparately by the union or under the terms of the contract. 

While the ruling in Harris is narrow, because it is limited to bargaining units of "quasi-public employees," the majority's extensive criticism of prior case law concerning agency fee arrangements may resurface in possible future legal challenges to other similar contractual and statutory arrangements.  For example, the ruling might be determined to be applicable to collective bargaining agreements with public-private partnership entities in higher education and the professions.  

Lastly, it is important to highlight an aspect of Harris that has received less attention but will have relevance in future cases concerning First Amendment protections for union activities in the public sector.  In reaching its decision, the majority found that union-related speech seeking increases in salaries for an entire bargaining unit concerns a matter of public concern for purposes of the First Amendment.  Under the majority's analysis, public employees who engage in collective activity for purposes of improving working conditions for the entire unit may have greater constitutional protections against retaliation than an employee who acts alone solely for her or his own self-interest.  It remains to be seen, however, whether this constitutional incentive favoring collective action will impact the scope and nature of public sector labor relations around the country.

The Illinois Educational Labor Relations Board (IELRB) and the National Labor Relations Board (NLRB) have issued certifications of exclusive representatives for new bargaining units of non-tenure track faculty at the following universities: University of Illinois at Urbana-Champaign, Point Park University and Hamline University.   As a result of the certifications, the duty to engage in collective bargaining attaches, and the parties will now begin the next major step in their respective relationships: negotiating a first contract.

University of Illinois at Urbana-Champaign: July 8, 2014 IELRB Certification of Campus Faculty Association (CFA), AFT-IFT, AAUP to represent the following public sector unit:

Included: All full-time (i.e., employees who have .51 or greater appointment as a faculty member) nontenure track faculty with respect to educational employees employed at the Urbana-Champaign campus or employed in units located outside Urbana-Champaign which report administratively to the Urbana-Champaign campus.

Excluded:  All faculty members of the College of Law and the College of Veterinary Medicine, all tenure and tenure-track faculty, the Professor Emeritus in the College of Agricultural, Consumer & Environmental Sciences, the Principal Scientist - Director of Central Facilities (Materials Research Laboratory) as a supervisory employee, the Director of the Undergraduate Portuguese Language Program as a supervisory employee, the Director of the Masters of Accountancy Science Program as a supervisory employee, and all other University employees, including but not limited to all other supervisory, confidential, managerial, craft and short-term employees as defined in the Illinois Educational Labor Relations Act. 

Point Park University:  July 7, 2014 NLRB Certification of United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO to represent the following private sector unit:

Unit: All adjunct faculty employed by the Employer at the following Pennsylvania locations:

Point Park University Campus, Pittsburgh,
Butler County Community College/Cranberry Branch, Cranberry Township,
Canon-McMillan High School/ Canonsburg,
ERT, Pittsburgh, Franklin Regional High School, Murrysville,
GAI Consultants, Homestead,
North Allegheny School District Central Administrative Office, Pittsburgh,
Propel Braddock Hills High School, Forest Hills,
Seneca Valley Senior High School, Harmony,
Shady Lane School, Pittsburgh, PA,
Upper St. Clair High School, Upper St. Clair,
US Steel Corporation Mon Valley Works Training Hub, Duquesne;  

excluding all full-time faculty, graduate students, tenure-track faculty, tenured faculty, all other employees and guards, and supervisors as defined in the Act.  

Hamline University: June 27, 2014 NLRB Certification of SEIU, Local 284 to represent the following private sector unit:

Unit:  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.

An employee who is an eligible voter by virtue of the unit description above, but who also has some other responsibilities or appointment(s), 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 labs or credit-earning classes on the St. Paul campus toward an academic degree, and that only such work falls within the bargaining unit. Any and all responsibilities and/or appointments other than teaching an undergraduate lab or credit-earning class on the St. Paul campus (e.g., graduate-level course, online course, course not toward academic degree, course held at Minneapolis campus or otherwise off-campus, teaching music lesions, and/or individual student instruction) are outside the above-described bargaining unit.

Included: All part-time non-tenured and non-tenure-eligible, undergraduate

and graduate faculty employed by The College of Saint Rose including:

Adjunct Instructors, Adjunct Professors, Adjuncts, Adjunct Faculty, Adjunct

Lecturers, Clinical Supervisors and Student Teaching Supervisors.

Excluded: All tenured and tenure-eligible faculty, full-time faculty, part-time

faculty who also have other full or part-time employment at the college,

members of all supervisory or advisory boards at the college including the

Board of Trustees and the Board of Associates regardless of whether they

have teaching responsibilities, all other employees regardless of whether they

have teaching responsibilities including but not limited to administrators and

assistant/associate administrators, directors and assistant/associate directors,

coaches, librarians and assistant/associate librarians, managers and

assistant/associate managers, clerical, guards, and supervisors, as defined by

the National Labor Relations Act.

The University of Hawaii Professional Assembly (UHPA) and the State of Hawaii have reached a tentative two-year successor agreement.  What is particularly interesting about this recent agreement is that it was reached one year prior to the July 1, 2015 expiration of the parties' current contract.  The tentative agreement includes annual 4% increases for university faculty and lecturers. The agreement is subject to a ratification vote by UHPA members, who have until August 25, 2014 to vote. The agreement was announced at a joint press conference held by Hawaii Governor Neil Abercrombie and UHPA leaders.  Click here for a webcast of the press conference. 

Click here for UHPA News Release.   

The tentative agreement reached between the University of California and the UAW for the bargaining unit of over 13,000 graduate assistant employees has been ratified.  The new agreement succeeds the 2010-2013 collective bargaining agreement   Click here for UC Statement.  Click here for UAW Statement.   Click here for 2010-2013 UC-UAW Agreement.  

The NLRB has handed down two recent unfair labor practice decisions involving post-secondary institutions.  

In Columbia College Chicago, 360 NLRB No. 122 (2014), the NLRB ruled that the college violated sections 8(a)(5) and (1) of the National Labor Relations Act (NLRA) when it refused to negotiate with the union representing a part-time faculty unit over the effect of a change to the rollover system for scheduling courses.  Under the prior system, part-time faculty members were assigned up to three courses and received a course cancellation fee if a course was cancelled for insufficient enrollment.  The college unilaterally changed that system in 2011 by decreasing the maximum number of initial courses assigned to part-time faculty thereby lessening the likelihood that a part-time faculty member would receive a class cancellation fee. The decision highlights the duty to negotiate the effect or impact of a decision affecting terms and conditions of employment even when the obligation to negotiate the employer's actual decision was waived, as in this case, by the terms of the management rights clause in the parties' contract.

In the second case, Laurus Technical Institute, 360 NLRB No. 133 (2014), the NLRB ruled that a private for-profit post-secondary technical school in Georgia violated section 8(a)(1) of the NLRA by maintaining an overly broad no-gossip policy and by terminating an employee for violating that policy. The at-issue policy stated in part, that "[e]mployees that participate in or instigate gossip about the company, an employee, or customer will receive disciplinary action."  The NLRB found that the policy would reasonably chill employees in the exercise of their rights under section 7 of the NLRA to engage in collective activities for mutual aid and protection. 

The NLRB decision in Laurus Technical Institute is a reminder that the right of association granted by the NLRA is applicable in private employment whether or not the employees are represented by a union or are seeking to obtain such representation.  Furthermore, the decision reinforces an important aspect of contemporary private sector labor law: a broad policy in a workplace, whether unionized or not, that restricts employee communications or associations is subject to challenge through the filing of an unfair labor practice charge with the NLRB.

Please mark your calendars for our 42nd annual conference that will be taking place on April 18-21, 2015 in New York City. The theme of the 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 proposed papers and workshop trainings should be submitted electronically to the National Center by October 17, 2014.

The following are recent publications and upcoming programs that might be of interest to you:

The TIAA-CREF Institute has issued a June 2014 report entitled Strategic Utilization of Adjunct and Other Contingent Faculty authored by Paul J. Yakoboski and Jean E. Foster.  The report was based on TIAA-CREF 2014 client forum panel discussions and interviews with administrators in higher education. The report focuses on best practices in the utilization of contingent faculty.  Click here for TIAA-CREF Institute Report. 

The Center for Economic and Policy Research (CEPR) has published a report entitled Regulation of Public Sector Collective Bargaining in the States written by Milla Sanes and John Schmidt.  The report summarizes the scope of public sector collective bargaining rights in the 50 states and the District of Columbia for teachers, firefighters and police.  Although the report does not include an analysis of collective bargaining rights and duties applicable at public sector universities and colleges, it does highlight the inherent complexity of studying and comparing state public sector laws and precedent concerning collective bargaining.  Click here for CEPR Report. 

On August 4-6, 2014, the Coalition of Contingent Academic Labor (COCAL) will be holding its eleventh conference 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 registration. 

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 registration.  

On November 10-12, 2014, the Education International (EI) Higher Education and Research Conference will take place in Accra, Ghana.  At the conference, representatives of EI's higher education and research affiliates will discuss key trends and effective strategies concerning  the rights of academic and general staff working in colleges and universities around the world.  Click here for conference information.