for the Study of Collective Bargaining in Higher Education and the Professions
The National Center E-Note is an electronic newsletter providing news, updates and analysis concerning events and issues of interest to our constituency groups.
October 2014 Edition Contents:
1. National Center's 42nd Annual Conference on April 19-21, 2015 in NYC
2. Proceedings, Webcasts and Podcasts Available from 2014 Conference
3. Adjunct Faculty Union Certified at College of Saint Rose
4. California College of the Arts Adjuncts Vote in Favor of Unionization
5. Objections to Election by Laguna Coll. of Art and Design Remain Pending
6. Representation Petitions Filed for Adjunct Faculty at Burlington and Champlain
7. Adjunct Faculty Organizing Campaigns Underway at the University of Minnesota
and Saint Michael's College
8. Trial Ordered in Age Discrimination Lawsuit by Clark College Adjunct
9. California PERB Dismisses ULP against Cal. State Univ. (East Bay)
10. NH PELRB Orders Fragmentation Election for CCSNH Faculty
11. Washington PERC Denies UW Motion to Stay Obligation to Maintain the
Status Quo During Pendency of a Representation Petition
14. Donate to Support the National Center's Work and Mission
12. New Member Joins the National Center Board of Advisors: DeWayne Sheaffer
13. New National Center Intern: Hunter College Student Michael Cardenas
15. Submit Articles to the Journal of Collective Bargaining in the Academy
16. Future Programs of Interest
|National Center's 42nd Annual Conference on April 19-21, 2015 in NYC|
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. Précis of proposed papers and workshop trainings should be submitted electronically to email@example.com by October 17, 2014.
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
Affinia Dumont: 150 East 34th Street, NY, NY, 10016
Affinia Shelburne: 303 Lexington Avenue, NY, NY, 10016
Room Rate: $289/night
|Proceedings, Webcasts and Podcasts Available from April Conference|
|The Proceedings of the National Center's 41st Annual Conference are now available on-line. Click here for Conference Proceedings. We thank Eastern Illinois University Vice President for Academic Affairs Jeffrey Cross, Dean Allen Lanham and Institutional Repository Librarian Todd Bruns for their efforts.|
We have also posted three webcasts and seven podcasts of panel discussions from the 41st Annual Conference. Click here for Podcasts and Webcasts. The webcasts are from the following panels:
Social Media and Academic Freedom under Garcetti with Frederick Schaffer, Vice Chancellor, Legal Affairs, CUNY; Theresa Chmara, former General Counsel, AAUP; Marjorie Heins, Director, The Free Expression Policy Project; Author, Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge; and moderator Liesl Zwicklbauer, Director, Employee Relations, SUNY.
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.
The webcasts were produced by Hunter College's Institutional Computing and Information Technology Department with the assistance of Becca Pulliam from Please Repeat the Question Productions. The podcasts were produced by Becca Pulliam from Please Repeat the Question Productions with the assistance of Charlie Spatz.
Adjunct Faculty Union Certified at College of Saint Rose
|College of Saint Rose, Case No. RC-133447|
On September 22, 2014, the National Labor Relations Board (NLRB) conducted a vote count following a mail-ballot election among part-time faculty paid by the course at the College at Saint Rose. The representation petition sought all part-time non-tenured and non-tenure-eligible, undergraduate and graduate faculty including: Adjunct Instructors, Adjunct Professors, Adjuncts, Adjunct Faculty, Adjunct Lecturers, Clinical Supervisors and Student Teaching Supervisors.
Of the 312 faculty members eligible to vote, 175 voted in favor of union representation by SEIU Local 200 with 61 voting against representation. 19 additional ballots were challenged or voided.
As the result of the election, the NLRB on September 30, 2014 certified SEIU Local 200 to represent the following adjunct faculty unit at the College of Saint Rose:
All Adjuncts employed by The College of Saint Rose. Adjuncts are defined as those employees who are hired to teach one or more courses of at least one or more credits to graduate or undergraduate students at the College and are paid a stipend for such teaching. The fact that an employee who serves as an Adjunct also has full-time or part-time employment at the College in another capacity shall not cause that employee to lose status as an Adjunct unless expressly excluded in the exclusion listing below.* Excluded: All other employees who are not Adjuncts, tenured and tenured-track faculty, full-time faculty, clinical supervisors who are not Adjuncts, student teaching supervisors who are not Adjuncts, speech pathologists who are not Adjuncts, and supervisors, managerial employees, confidential employees, and guards, as defined by the Act, whether or not they have teaching responsibilities. *The bargaining and representational obligation to any such dual status employee shall extend only to the employment of such employee as an Adjunct and not as to any other employment such individual may have with the College.
|California College of the Arts Adjuncts Vote in Favor of Unionization|
California College of the Arts, Case No. 32-RC-134175
On October 3, 2014, the National Labor Relations Board (NLRB) conducted a vote count following a mail-ballot election among adjunct faculty at the California College of the Arts. Of the 365 faculty members eligible to vote, 181 voted in favor of union representation by SEIU Local 1021 with 113 voting against representation. 18 additional ballots were challenged or voided.
|Objections to Election by Laguna Coll. of Art and Design Remain Pending |
Laguna College of Art and Design, Case No. Case 21-RC-128268
As we reported in the August E-Note, the results of a mail ballot election conducted by the NLRB among a unit of 94 part-time faculty at Laguna College of Art and Design, 35 cast ballots in favor of representation by SEIU Local 721, CTW/CLC and 32 voted against representation. There was also one voided ballot and 2 challenged ballots.
Following the election, Laguna College of Art and Design filed objections alleging
that during the election, supervisors engaged in active and highly visible support for unionization including sending out pro-union emails that reasonably tended to interfere with the employees' exercise of their free choice. The representation case remains pending at the NLRB awaiting a decision by the Acting Regional Director concerning the college's objections to the election.
|Representation Petitions Filed for Adjunct Faculty at Burlington and Champlain Colleges|
Burlington College, Case No. 01-RC-138050
A representation petition was recently filed by SEIU seeking to become the exclusive
representative of the following bargaining unit at Burlington College:
Including: All part-time graduate and undergraduate faculty (adjuncts, lecturers or instructors) employed by Burlington College at its Main or Woodworking campuses who teach at least one credit bearing course (including hybrid and blended courses) in a degree-granting program and who are compensated on a per course basis. An employee works for the College in another capacity who also teaches at least one credit-bearing course identified above and is compensated per course shall not cause that employee to lose status as a bargaining unit member unless expressly excluded in the exclusion listing below.
Excluding: All tenured or tenure-track faculty; full-time faculty; visiting or contract faculty; deans, provosts, administrators, program coordinators, department chairs, graduate assistants, graduate students, athletic coaches, and faculty who teach only online courses, courses at campuses other than the Main or Woodworking Campuses, non-degree granting courses, and/or courses as a teaching supervisor; all other employees who are not compensated additionally for teaching; and managers, confidential employees, guards and supervisors as defined by the Act.
Champlain College, Case No. 01-RC-138052
Another representation petition was recently filed by SEIU seeking to become the exclusive representative of the following bargaining unit at Champlain College:
Including: All part-time graduate and undergraduate faculty (adjuncts, lecturers or instructors) employed by Champlain College at its Main Campus, 251 South Willard Street, Burlington, currently teaching at least one credit-bearing course (including hybrid and blended courses) in a degree-granting program and who are compensated on a per course basis. An employee works for the College in another capacity who also teaches at least one credit-bearing course identified above and is compensated on a per-course basis shall not cause that employee to lose status as a bargaining unit member unless expressly excluded in the exclusion listing below.
Excluding: All tenured or tenure-track faculty; full-time faculty; visiting or contract faculty; deans, provosts, administrators, department chairs, graduate assistants, graduate students, athletic coaches, and faculty who teach only online courses, courses at campuses other than the Main Campus, nondegree granting courses and/or courses as a teaching supervisor; all other employees who are not compensated additionally for teaching; and managers, confidential employees, guards and supervisors as defined by the Act.
|Adjunct Faculty Organizing Campaigns Underway at the University of Minnesota and Saint Michael's College|
According to a media report, SEIU Local 284 has commenced an organizing drive among adjunct faculty at the University of Minnesota. Click here for article
. Another SEIU campaign is under way at Saint Michael's College in Vermont, according to a newspaper report
. Click here for article.
|Trial Ordered in Age Discrimination Lawsuit by Clark College Adjunct|
|Scrivener v. Clark College, Case No. 89377-2 |
The State of Washington Supreme Court has reinstated an age discrimination lawsuit brought by adjunct Kathryn Scrivener who alleges that Clark College, located in Vancouver, Washington, denied her a tenure track faculty appointment because of her age. Click here for decision.
The decision in Scrivener v. Clark College provides an opportunity to highlight certain issues relating to discrimination claims. Under federal and state laws, and many collective bargaining laws, private and public sector institutions of higher learning are prohibited from discriminating against an individual for being in a particular protected class or retaliating against an individual for engaging in legally protected activities.
The federal Age Discrimination in Employment Act of 1967 (ADEA) and the laws in many states prohibit private sector and public sector employers from discriminating based on an individual's age. The State of Washington Law Against Discrimination prohibits discrimination against any individual because they are within the 40-70 age range.
Most claims of workplace discrimination under federal and state laws are not brought based on direct evidence of discriminatory animus. It is well-recognized that proving an unlawful discriminatory motivation is difficult because discrimination is often accomplished through subtle means. As a result, the courts apply a burden-shifting analysis when sorting out circumstantial evidence of discrimination presented by a plaintiff. Under the burden-shifting analysis, the plaintiff has the initial obligation of presenting sufficient circumstantial evidence to establish an inference of unlawful employer motivation. If a plaintiff presents enough evidence to establish that inference, the burden of persuasion shifts to the employer to demonstrate that it was motivated by a legitimate non-discriminatory reason. Upon an employer presenting a non-discriminatory reason for its actions, a plaintiff must demonstrate that the reason given is a pretext for discrimination.
Frequently, a claim of discrimination is not determined by a jury, although motivation is a fact question. Instead, it is common for discrimination cases to be dismissed by a judge through a procedure known as summary judgment. While many labor law scholars have criticized the judiciary's broad use of the summary judgment procedure in employment litigation, it remains a very common procedure resulting in the dismissal of such claims. Summary judgment will be granted when a judge, after granting all reasonable inferences to the evidence favoring the plaintiff, determines that there is insufficient circumstantial evidence to create an inference of discrimination, or that there is insufficient evidence for plaintiff to meet her or his ultimate burden of proving unlawful discrimination. The granting of a summary judgment motion in favor of an employer results in the dismissal of the lawsuit, while the denial of summary judgment means that the case proceeds to trial.
Kathryn Scrivener was hired by Clark College in 1994 to be an adjunct instructor. Five years later, she was appointed as a full-time instructor in the English Department on a one-year contract, which was renewed multiple times. In 2006, at the age of 55, Scrivener's application to fill one of two available tenure-track positions in English Department was turned down. She was denied a tenure-track position after being one of four candidates interviewed by the college president and vice-president for instruction following referrals from the hiring committee. Instead, the college hired two other applicants who were under 40.
During the hiring process, the college president who was responsible for making the final hiring decisions gave a public speech. During the speech he expressed a "need for younger talent" in the college workforce stating that "74% of Clark College's workforce is over forty. And though I have great affinity for people in this age group, employing people who bring different perspective will only benefit our college and community." In addition, the college president had been on record advocating against experience as a criterion for the college level instructor position, had hired more people under 40 than those in the 40-70 age range, and had once allegedly mocked Scrivener with an impersonation of Jon Stewart from the Daily Show.
The college defended against Scrivener's age discrimination lawsuit by presenting evidence that 74% of its workforce are 40 or older, including the president and the interim vice-president. In addition, it claimed that the successful candidates were better suited for the college and the department and that the steering committee had found weaknesses in Scrivener's teaching including her exuberance, which it felt might alienate some passive students.
Washington Supreme Court Decision
After granting all reasonable interpretations to the evidence in favor of Scrivener's claim, the Washington Supreme Court found in Scrivener v. Clark that there was sufficient evidence to establish an inference that Scrivener was denied the tenure-track position because of her age, and created an issue of material fact as to whether the college's non-discriminatory explanation for its rejection of Scrivener was pretextual. Therefore, it reversed the grant of summary judgment to the college and remanded the case for a trial to determine the discrimination claim.
Although the decision did not finally decide the merits of Scrivener's age discrimination claim, it is worth highlighting some of the decision's implications. It shows that evidence of prioritizing youth over experience in the filling of tenure-track faculty vacancies can have adverse legal consequences for an institution. The decision also calls into question the prudence of practices granting or suggesting preferences based on age in job postings. Moreover, data in a future case might show that policies and practices favoring the hiring of younger applicants for tenure-track faculty positions has an adverse disparate impact on adjuncts and other applicants who are over 40.
|California PERB Dismisses ULP Against Cal. State Univ. (East Bay)|
The National Labor Relations Act (NLRA), and analogous public sector collective bargaining laws prohibit employers from retaliating based upon an individual engaging in protected concerted activities under the applicable law. The standards under the NLRA concerning what constitutes a protected concerted activity and what must be proven in a case alleging retaliatory animus is somewhat different from the standards applied under public bargaining collective bargaining statutes such as California's Higher Education Employer-Employee Relations Act (HEERA).
Like other forms of workplace discrimination and retaliation, claims of union animus are usually based upon circumstantial evidence rather than direct evidence. In circumstantial evidence cases concerning union animus, administrative agencies apply a burden-shifting analysis similar to the one applied in employment discrimination litigation.
California State University (East Bay) (Liu), Case No. SF-CE-995-H
PERB Decision No. 2391-H
The California Public Employment Relations Board (PERB) recently issued a decision denying exceptions filed by Assistant Professor Wenjiu Liu and dismissing an unfair labor practice (ULP) complaint against California State University (East Bay). The complaint alleged that the university had violated section 3571(a) of HEERA by denying Liu tenure and a promotion, restricting him from the campus, and suspending and terminating him for engaging in the protected activity of filing grievances, participating in a grievance hearing, and filing an unfair practice charge. In his exceptions, Liu also challenged the order of the Administrative Law Judge (ALJ) deferring the allegations concerning his suspension and dismissal to arbitration and failing to find the subsequent arbitration decision repugnant to HEERA.
PERB concluded that the record demonstrated that the university's actions were motivated by a non-discriminatory reason, Liu's improper workplace conduct, which gave it cause to discipline him. It further found that Liu had failed to prove that the denial of tenure and a promotion were improperly motivated by his protected activity because he did not establish that the decision-makers were aware of his grievances. In the alternative, PERB concluded that even if Liu had demonstrated an inference of unlawful retaliation under HEERA, the record demonstrated that the university's decisions were performance-based in the areas of instructional achievement, academic achievement and university and community service. PERB also ruled there was no basis in the record to support Liu's contention that his exclusion from campus was motivated by his filing of the unfair labor practice charge. Lastly, PERB affirmed the ALJ's decision to defer portions of the complaint to arbitration, and affirmed the ALJ's finding that the arbitration decision was not repugnant to HEERA.
|NH PELRB Orders Fragmentation Election for CCSNH Faculty |
|A representation petition that seeks to remove a group of employees from an established bargaining unit and place them into a separate bargaining unit is commonly referenced as a fragmentation petition. |
Community College System of New Hampshire, Case Nos. E-0165-1 and E-0076-6, Decision No. 2014-219
On September 18, 2014, the New Hampshire Public Employee Labor Relations Board issued a decision ordering a mail-ballot election among the faculty of the Community College System of New Hampshire (CCSNH) to determine whether they wished to be fragmented from an existing bargaining unit with professional and operating staff and placed into their own new separate unit. The election stemmed from representation petitions filed by the incumbent union, State Employees' Association of New Hampshire, SEIU 1984 (SEA), for the purpose of representing CCSNH faculty in a separate unit. CCSNH initially opposed the fragmentation effort but later stipulated for "an election regarding whether the faculty shall remain in the current bargaining unit structure, a separate bargaining unit, any bargaining unit, and/or be represented by" SEA.
|Washington PERC Denies UW Motion to Stay Obligation to Maintain the Status Quo during Pendency of a Representation Petition|
After a representation petition has been filed, the employer has a duty to maintain the status quo concerning terms and condition of employment to avoid influencing the choice of the at-issue employees. Failure to maintain the status quo can result in an unfair labor practice charge and objections to an election.
University of Washington, Case No. 26163-E-13-3840
On December 24, 2013, the UW Housestaff Association filed a representation petition with the Washington Public Employment Relations Commission (PERC) seeking to represent the residents and fellows in ACGME-accredited programs at the University of Washington. Six months later, the university filed a petition with Washington PERC seeking a stay of its obligation to maintain the status quo in order to unilaterally increase the stipends received by residents and fellows in the petitioned-for bargaining unit. In a written decision, Washington PERC denied the university's petition concluding it lacked jurisdiction to grant such relief before an order dismissing the petition has been issued.
|New Member Joins Board of Advisors: DeWayne Sheaffer|
|New National Center Intern: Hunter College Student Michael Cardenas|
|Donate to Support the National Center's Work and Mission|
Submit Articles to the Journal of Collective Bargaining in the Academy
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, Eastern Illinois University, and Steve Hicks, Pennsylvania State Colleges and Universities Faculties. JCBA is hosted by the Booth Library, Eastern Illinois University. Click here for JCBA website.
Future Programs of Interest
Cornell ILR, in conjunction with Cornell Law School, will be hosting a panel discussion on October 30, 2014 in New York City concerning the Supreme Court's Hobby Lobby decision interpreting the federal Religious Freedom Restoration Act (RFRA) as providing new religious freedom rights to closely held corporations with respect to the ACA's contraceptive mandate. Click here for ILR program information.
The New York State Bar Association will be holding programs entitled Social Media and the Workplace: Labor and Employment Legal Issues on October 24, 2014 in Albany, New York and November 14, 2014 in Manhattan. Click here for Albany program information. Click here for Manhattan program information.
On December 11, 2014, the CUNY Women's Studies Speakers Series will be presenting SEIU President Mary Kay Henry at the CUNY Graduate Center in Manhattan from 6:30-8:30 p.m..
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