Social Media in Labor Relations and Student Contact: Best Policies, Practices and Training with Henry Reichman, Vice President, AAUP;  Michael T. Loconto, Associate Director of Labor and Employee Relations, Harvard University; Nicole Kendall, Associate Professor, Department of Teaching and Learning, Tennessee State University, Tennessee Education Association/NEA; and moderator Jeffrey Cross, Associate Vice President for Academic Affairs, Eastern Illinois University. 

MOOCs: Impact on the Future of Pedagogy with Shanna Smith Jaggars, Assistant  

Director, Community College Research Center, Columbia University;  Nicholas 

Anastasopoulos, Mirick O'Connell, Worcester, Massachusetts; Jeffrey R. Young,

Technology Editor, The Chronicle of Higher Education; Fellow, Berkman Center for Internet and Society; and David Bergeron, Vice President, Postsecondary Education,

Center for American Progress.

Please mark your calendars for our 42nd Annual Conference, which will take place on April 19-21, 2015 at the CUNY Graduate Center 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 [email protected] by October 17, 2014.    

Conference Locations:

Sunday, April 19, 2015, CUNY Graduate Center: 365 5th Avenue, NY, NY, 10016

Monday-Tuesday, April 20-21, 2015, CUNY Graduate Center: 365 5th Avenue, NY, NY, 10016

Conference Hotels:

Affinia Dumont: 150 East 34th Street, NY, NY, 10016

Affinia Shelburne: 303 Lexington Avenue, NY, NY, 10016

Room Rate: $289/night  

Guest Commentary by Nicholas DiGiovanni, Jr.

I.  The Recess Clause

Article II, Section 2, Clause 3 of the United States Constitution states:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

2.  The Supreme Court's Decision

In addressing this matter, and applying it to the facts of the case, the Court held that:

The phrase "Recess of the Senate" is ambiguous but can be and will be interpreted broadly to include both inter-session and intra-session recesses.

The phrase in Article II, Section 2, Clause 3 regarding "vacancies that may happen" during the Recess includes both vacancies that arose prior to the Recess but continue to be in existence during the Recess as well as those that actually arise during the Recess itself.

As to what constitutes a valid Recess for purposes of the President's appointment power, the Court decided that a recess that was not long enough to require the consent of the House of Representatives is not long enough to trigger the Recess Appointment Clause. The Court concluded that a break of more than three days but less than ten days is presumptively not a valid recess. As to how long a recess must be to allow Presidential recess appointments, the Court essentially deferred to the Senate and indicated that the Senate is in recess when it says it is.  As long as the Senate under its own rules retains the capacity to transact Senate business, then it is in session. In the instant case, throughout much of the time period in question, the Senate was deemed to be "in session" even though its sessions were pro forma. This was because the Senate said it was in session and had retained the power to conduct business. While there were short breaks between these pro forma sessions, they were too short to constitute a Recess under the Constitution. Thus, the President in this case, making the appointments within a three day period between the pro forma sessions, lacked the power to make such appointments because those three day periods were too short to constitute a Constitutional Recess.

In dealing with the first issue - whether the term "recess" is limited to breaks between sessions of Congress only or whether it has a broader meaning - the Court's majority opinion, written by Justice Stephen Breyer, addressed the linguistic issue of the word's meaning and the context in which it appears in the Constitution. First, Justice Breyer explained that the Founding-era dictionaries defined the word "recess" much as we do today as simply "a period of cessation from usual work."  Thus, any break in the Senate's business could conceivably, without more, be considered a recess. Recognizing that the word "the" in the phrase "the recess" might suggest that the phrase refers to the singular only, and thus to a single break separating formal sessions of Congress, Justice Breyer still noted that "the word can also refer 'to a term used generically or universally,' and "reading 'the' generically in this way, there is no linguistic problem applying the Clause's phrase to both kinds of recess."

Since the Recess Clause is ambiguous, the Court chose to read the term broadly against the context of historical usage, noting, for example, that many presidents had made recess appointments during intra-session periods.  However, the Court was then left with the question of how long a recess must be in order to fall within the Clause. Noting that there can be multiple arguments in favor of variable times, the Court determined as follows:

We therefore conclude, in light of historical practice, that a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause. We add the word "presumptively" to leave open the possibility that some very unusual circumstance - a national catastrophe, for instance, renders the Senate unavailable but calls for an urgent response - could demand the exercise of the recess-appointment power during a shorter break.

On the second question, regarding the scope of the phrase "vacancies that may happen during the recess," the Court again admitted that the word "happen" itself is susceptible to two constructions.  But again, using historical precedents and broad readings, the Court found that the term refers to both vacancies that come into existence during the recess but also those that occurred prior to the recess but are still in existence during the break.

On the third question regarding the length of the recess, the Court stated that "for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business." In the instant case, the Senate "met that standard." In the Court's eyes, the critical component of its decision on this point was whether the Senate had the "capacity" to transact business even if it did not.  For example, if the Senate left the Capitol, it would be unable to act no matter what it stated about its status.  In the instant case, even during the pro forma sessions, the Senate had retained the capacity to act.

Thus, in pro forma sessions, the Senate maintained the capacity to act, even if it said it was not going to transact any business. Therefore, it was considered to be "in session" and not in recess.  When President Obama made the at-issue recess appointments to the NLRB, it was between the January 3 and January 6, 2012 pro forma sessions.  Because the Senate was in session during those pro forma sessions, the appointments were made during a three-day recess. However, the Court ruled that three days were too short a time to bring a recess within the scope of the Clause, and, therefore, President Obama lacked the authority to make the 2012 appointments.

3. The Implications of Noel Canning on Other NLRB Cases

In the wake of Noel Canning, the immediate questions focus on the status of the many cases decided without a proper NLRB quorum, and the many appeals of decisions still pending in the circuit courts.  For example, there were 98 cases pending in the appellate courts regarding the Board's authority, according to General Counsel Richard Griffin.  See, Daily Labor Report, Bloomberg, BNA, Jul. 9, 2014.  The NLRB set aside 40 of these cases immediately and asked for remands on the rest to determine appropriate action. 

But beyond those cases on appeal, hundreds of decisions over the contested period were essentially rendered invalid as a result of the Court's decision. An excellent review of the implications of Noel Canning were described in The Impact of the Supreme Court's Noel Canning Decision-Years of Litigation Challenges on the Horizon for the NLRB,  G. Roger King and Bryan Leitch, Daily Labor Report, BNA, Jun. 26, 2014.  Among the cases are key decisions that marked departures from prior Board precedent. 

For example, in WKYC-TV, 359 NLRB. No. 30, (Dec. 12, 2012) the Board overturned 50 years of precedent and held that an employer's obligation regarding the check-off of dues continues as a part of the status quo after contract expiration.  In Banner Estrella Medical Center, 358 NLRB. No. 93, (July 30, 2012), the Board restricted employers from requiring general confidentiality agreements from employees when investigating internal matters.  In Alan Ritchey, Inc., 359 NLRB. No. 40, (Dec. 14, 2012), the Board held for the first time that during the period after union certification but before a first contract is concluded, the employer must give notice to a union and offer to bargain before initiating disciplinary action against an employee, particularly significant disciplinary decisions such as suspension and discharge.

While these and other cases no longer stand as binding NLRB precedent, employers can take small, and only limited, comfort from this result. The current make-up of the fully confirmed NLRB may still end up "re-establishing" the precedent that these cases marked.

The NLRB recently certified SEIU as the exclusive representative for a second bargaining unit of non-tenure track faculty at Northeastern University working in the pre-matriculation and/or non-degree granting programs.

Northeastern University: Certification of SEIU, CTW, CLC to represent the following unit:

Unit: All part-time faculty (adjunct, lecturers or instructors) employed by Northeastern University who are compensated on a per course basis to teach at least one course in a pre-matriculation and/or non-degree granting program within the College of Professional Studies in Global Pathways, NU Global, Foundation Year, United States Pathways Program and/or American Classroom, at Northeastern University campuses located at 360 Huntington Avenue, Boston, Massachusetts and 89 Broad Street, Boston, Massachusetts, 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.

On August 26, 2014, the District of Columbia Public Employment Relations Board (PERB) conducted a vote count following a mail-ballot election among part-time faculty paid by the course at the University of the District of Columbia.   The election was conducted from July 25, 2014 through August 22, 2014.  The eligible voter list was comprised of part-time faculty employed during the Fall 2013 semester, Spring 2014 semester, or Summer 2014 semester, who have a reasonable expectation of continued employment.

Of the 324 part-time faculty eligible to vote, 82 faculty members voted in favor of union representation by SEIU Local 500 with 25 voting against representation.  20 additional ballots were challenged or voided. The next step in the representation process will be the certification of SEIU Local 500 by PERB to represent the part-time faculty unit.

The original representation petition filed by SEIU Local 1021 in July 2014 seeking to represent a bargaining unit of adjuncts at California College of the Arts, which we reported on in the August E-Note, has been withdrawn.  SEIU Local 1021 has filed a new petition, which seeks certification to represent the following proposed unit of adjuncts: 

California College of the Arts, Case No. 32-RC-134175

All regular unranked faculty employed in the classifications of Lecturer, Senior Lecturer, Adjunct Professor and Senior Adjunct Professor in academic-degree granting programs employed by the Employer at its campuses in San Francisco, California and Oakland, California; excluding all ranked faculty (including ranked tenure/track faculty and ranked nontenured/tenure track faculty), all visiting faculty, all distinguished professors, all students and student-employees, all teaching and research assistants and fellows, all office and administrative employees, all administrators (including division directors, assistant directors, program chairs, program staff, deans and chairs including those who may have teaching assignments), all employees in non-degree granting programs (including library, pre-college, center for art and public life and office of special programs), all other employees, all volunteers, all other professional employees, confidential employees, independent contractors, and managerial employees, guards and supervisors, as defined in the National Labor Relations Act.

Niagara County Community College and its college faculty association have reached an agreement for a nine-year agreement for the period September 1, 2006-August 31, 2015.  Media reports state that faculty will receive a total of 13.5% increases and a 4 1/2% bonus over the period of the agreement.  These amounts will be addition to the 1.7% in increments received each year following the expiration of the agreement.

Click here for article.   Although the prior contract expired in 2006, the community college was required by law to continue all the terms of the expired agreement including the negotiated increments until a new agreement was reached pursuant to New York's Taylor Law, CSL 209-a.1(e).

The National Center has developed a Law Fellowship Program (LFP) for recent law school graduates interested in collective bargaining issues and a career in labor and employment law.  LFP will be of particular interest to recent law school graduates who want to research contemporary issues for up to a year on a volunteer basis, without a longer-term commitment, to further develop their legal knowledge and research skills.

Sean P. Moran and Joshua Greenfield are our first National Center Law Fellows. 

Sean Moran is a 2014 graduate of Albany Law School, Union University and sat for the July 2014 New York State Bar Exam. While in law school, he was a fellow at the National Office of the United States Department of Labor, Office of the Solicitor in Washington DC. He also participated in internships with the American Federation of Government Employees, Local 12, AFL-CIO and the New York State Public Employment Relations Board.

Josh Greenfield recently graduated from Albany Law School where he was a member of the Albany Government Law Review.  As a law student, he interned at the CBS labor and employment legal department and the New York State Public Employment Relations Board.  He is a published author in Albany Law School's Center for Judicial Process. As a Syracuse University undergraduate, he majored in Art History and remains interested in the arts and art law. 

Richard Boris

We extend our congratulations to former National Center Executive Director Richard Boris for his induction into the Hunter College Hall of Fame. Richard is a 1964 graduate of Hunter College.  For over a decade, Richard served with distinction as Executive Director of the National Center.  During his tenure, he successfully revitalized the center as an institution for research and training on collective bargaining and labor relations including organizing highly successful annual conferences.