|Register Now for the National Center's 42nd Annual Conference on April 19-21, 2015 at the CUNY Graduate Center in New York City|
The National Center's 42nd Annual Conference 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.
Early registration is highly recommended.
Click here for conference brochure.
Click here for conference registration form .
Click here for credit card payment of conference fees
The conference will include panels and interactive workshops on: civility and academic freedom; the NLRB's recent Pacific Lutheran University
decision; negotiating about tenure track faculty, contingent faculty and graduate assistants; first contracts at the University of Oregon, Georgetown University and Tufts University; the use of financial data; faculty salary schedules and pay equity; effective contract administration; sexual assaults on campus; and many more important topics.
Locations, Events and Hotels for 42nd Annual Conference
Conference Locations and Events:
Sunday, April 19, 2015, CUNY Graduate Center: 365 5th Avenue, NY, NY, 10016 (reception, research panels and workshops)
Sunday, April 19, 2015, Heartland Brewery-Empire State Building: 350 5th Avenue, New York, NY 10118 (buffet dinner, open bar)
Monday-Tuesday, April 20-21, 2015, CUNY Graduate Center: 365 5th Avenue, NY, NY, 10016 (continental breakfast, panels, lunch and workshops)
Please note the new locations for the Sunday, April 19th events are the CUNY Graduate Center and the Heartland Brewery.
Affinia Dumont: 150 East 34th Street, NY, NY, 10016
Affinia Shelburne: 303 Lexington Avenue, NY, NY, 10016
Room Rate: $289/night.
Click here for hotel reservation information.
|NLRB Issues Major Decision Refining Legal Standards Concerning Private Sector Faculty Labor Representation and Collective Bargaining|
On December 17, 2014, the National Labor Relations Board (NLRB) issued an important decision in Pacific Lutheran University (Pacific Lutheran) that has broad implications for the future of collective bargaining in private sector higher education.
In its decision, the NLRB tackled two major and long-standing issues. The first is the proper standard to be applied by the NLRB when determining whether to assert jurisdiction over religiously affiliated colleges without interfering with the free exercise of religion under the First Amendment. The second issue is the appropriate burden of proof on a private sector institution that asserts that its faculty are managerial for purposes of the National Labor Relations Act (NLRA) due to their role in shared governance, and are therefore unprotected under the NLRA .
While the case involved a petition seeking to represent a unit of contingent faculty at the university, the decision will impact the collective bargaining rights of tenured-track and contingent faculty at other private sector schools of higher education.
The decision and its impact will be the subject of discussion at the National Center's 2015 annual conference on April 19-21, 2015 at the CUNY Graduate Center in New York City.
NLRB Jurisdiction Concerning Religiously Affiliated Schools
The first issue examined in Pacific Lutheran concerning the standards for determining whether to assert jurisdiction over a religious college or university stems from the Supreme Court's decision in NLRB v. Catholic Bishop of Chicago (Catholic Bishop), 440 U.S. 490 (1979).
Over the past decade, certain religious colleges and universities have objected to the NLRB asserting jurisdiction regarding faculty representation and collective bargaining on the grounds that enforcement of the provisions of the NLRA constitutes a violation of the Free Exercise Clause of the First Amendment under Catholic Bishop. The following is a list of cases pending at the NLRB where an objection to jurisdiction on religious grounds has been asserted: Manhattan College, Case No. 2-RC-023543; Saint Xavier University, Case No. 13-RC-022025; Islamic Saudi Academy, Case No. 05-RC-080474; Duquesne University of the Holy Spirit, Case No. 06-RC-080933; Saint Xavier University, Case No. 13-RC-092296; and Seattle University, Case No. 19-RC-122863.
In Pacific Lutheran, the NLRB adopted a new two-step test for deciding a jurisdictional objection made by a college or university under Catholic Bishop. Under that test, an institution objecting to NLRB jurisdiction over a petitioned-for unit of faculty must meet a threshold requirement of demonstrating that it holds itself out as providing a religious educational environment. To satisfy that burden, the institution has to present contemporary evidence such as "handbooks, mission statements, corporate documents, course catalogs" and material on the institution's website that demonstrate it provides a religious educational environment.
If the institution meets that threshold requirement, it "must then show that it holds out the petitioned-for faculty members themselves as a performing a specific role in creating or maintaining the college or university's religious educational environment, as demonstrated by its representation to current or potential students and faculty members, and the community at large." To meet that burden, the institution will have to present evidence of public representations that faculty perform a specific religious function. Relevant evidence would include "job descriptions, employment contracts, faculty handbooks, statements to accrediting bodies, and statements to prospective and current faculty and students" articulating the faculty's specific role in the provision of a religious educational environment.
Following its application of the new jurisdictional test to the evidence in the record, the NLRB concluded that Pacific Lutheran had presented sufficient evidence to meet the threshold requirement that it holds itself out as providing a religious educational environment. However, the NLRB found that it will assert jurisdiction over the question of representation of contingent faculty at Pacific Lutheran because the school did not demonstrate it holds out the faculty members as performing any religious function. Instead, Pacific Lutheran's public pronouncements "emphasize a commitment to academic freedom, its acceptance of other faiths and its explicit deemphasis of any specific Lutheran dogma, criteria or symbolism."
Yeshiva University Revisited: Modified Evidentiary Standards for Determining Managerial Status of Faculty at Private Sector Colleges and Universities
The second major component of the Pacific Lutheran decision was the reexamination of the standards it will apply in determining whether faculty at a private college or university are managerial employees within the meaning of NLRB v. Yeshiva University, 444 U.S. 672 (1980) (Yeshiva University).
It should be recalled that during the decade after Yeshiva University, the National Center closely monitored the application and impact of the decision on unionization at private sector institutions through a series of "Yeshivawatch" articles by former National Director Joel M. Douglas and Thomas E. Matteoli. The research in those articles revealed that in the first seven years following the decision, fifty-five institutions relied on Yeshiva University to seek to terminate a collective bargaining relationship. In that period, a total of twenty faculty units were decertified and another five voluntary agreed to a certification withdrawal.
The NLRB in Pacific Lutheran has now refined the applicable burden of proof that a university or college must satisfy to obtain a finding that its faculty are managerial under Yeshiva University. Under the modified standards, when applying Yeshiva University the NLRB will examine the record to determine whether faculty, in fact, actually exercise control or make effective recommendations over core decision-making as part of shared governance concerning five subject areas: academic programs, enrollment management policies, finances, academic policies, and personnel policies and decisions. The NLRB made clear that it will give greater weight to the first three areas than the last two.
A party asserting the managerial status of faculty will now have to prove that faculty have actual authority through presentation of "specific evidence or testimony regarding the nature and number of faculty decisions or recommendations in a particular decision-making area, and the subsequent review of those decisions or recommendations, if any, by the university administration prior to implementation, rather than mere conclusory assertions that decisions or recommendations are generally followed." To prove faculty make "effective recommendations," a party will have to demonstrate that the recommendations are "almost always" followed by university administrators or routinely become operative without independent review by the administration.
In refining the applicable standards, the NLRB made specific findings concerning changes in the structure of higher education since Yeshiva University with colleges and universities "increasingly run by administrators, which has the effect of concentrating and centering authority away from the faculty in a way that was contemplated in Yeshiva, but found not to exist at Yeshiva University itself."
Applying the refined standards to the record evidence, the NLRB concluded that Pacific Lutheran had not met its burden of proof of demonstrating that the at-issue contingent faculty are managerial employees because their involvement in decision-making was insufficient to show actual control or effective recommendations concerning the primary and secondary decision-making areas.
Following issuance of the Pacific Lutheran decision, a tally of the mail ballots was conducted by the NLRB Regional Director. The tally showed that 30 Pacific Lutheran University contingent faculty members voted in favor of union representation, 54 voted against representation and 38 ballots were challenged ballots. Following the vote tally, the representation petition was withdrawn by the petitioning union. As a result of the withdrawal, the NLRB decision will not be appealed, and the new standards will be applied in future faculty representation cases in the private sector including cases already pending at the NRLB including Point Park University, 06-RC-012276 and Seattle University, 19-RC-122863.
Potential Consequences of Pacific Lutheran
It is too early to make firm predictions concerning how Pacific Lutheran will effect faculty unionization and collective bargaining in the private sector. In 2012, the National Center found that only 7% of full-time faculty at private sector institutions are unionized, while the union density rate of faculty at public four-year institutions is 25%, and the rate at community colleges is 42%.
The final outcomes in the six pending cases before the NLRB where religious-based objections to jurisdiction have been made will provide a clearer picture concerning the import of Pacific Lutheran to religiously affiliated institutions. In the meantime, it is likely that the decision will cause some colleges and universities to have their statements and pronouncements carefully scrutinized for possible modifications if they intend on resisting NLRB jurisdiction on First Amendment grounds in future cases.
The impact of Pacific Lutheran should be greatest with respect to the managerial status issue under Yeshiva University. The revised legal standards set forth in Pacific Lutheran, along with the successful unionization efforts by contingent faculty at private institutions, has the potential for stimulating renewed efforts by private sector tenure track faculty to unionize. Whether that happens will depend on a number of factors including the extent to which the new change in the legal landscape impacts the interest and desire of faculty to assert rights under the NLRA. Finally, the decision may result in administrators at private institutions reexamining the actual practices of shared governance on their campuses.
|Court Affirms Agency Ruling that Iowa Early Separation Incentive Program is a Mandatory Subject of Negotiations|
|Bd. of Regents v. Iowa Pub. Empl. Rels. Bd., Case No. 13-1669
On December 24, 2014, the Iowa Court of Appeals rejected a challenge by the Iowa Board of Regents and the University of North Iowa (UNI) to a decision by the Iowa Public Employment Relations Board (PERB) concluding that portions of a 2012 Early Separation Incentive Program (ESIP) was a mandatory subject of negotiations under Iowa's Public Employment Relations Act.
The Iowa PERB decision was issued in response to a petition by UNI-United Faculty, which represents full-time and part-time faculty including adjunct faculty and librarians. The agency concluded that, on the whole, ESIP is a mandatory subject because it constitutes a procedure for staff reduction. Click here for Iowa PERB decision.
|California PERB Strikes Down LA Comm. College Directive Prohibiting Adjunct Faculty Member from Communicating with Other Faculty |
Los Angeles Community College District (Carlos E. Perez), Case No. LA-CE-5839-E
When the Los Angeles Community College placed faculty member Carlos E. Perez on administrative leave and directed him to take a fitness-for-duty examination, it ordered him to not contact "any members of the faculty, staff or students." Perez challenged the order in an unfair practice charge filed under California's Educational Employment Relations Act.
On December 24, 2014, the California Public Employment Relations Board (PERB) issued a decision concluding that the order to Perez constituted an unlawful interference with his statutory rights. The agency reasoned that the order was overbroad and would tend to chill Perez's statutory right to participate in various protected activities including discussing his working conditions with his co-workers or initiating a grievance. In reaching its decision, California PERB cited NLRB decisions concerning overbroad workplace policies and directives.
|Pace Professor's Employment Discrimination Claim Rejected on Appeal|
Gertner v. Pace University, Case No.14-237-cv
An appeal by Pace University professor David Gertner to the dismissal of his employment discrimination claim after an eight day trial was recently rejected by a federal appeals court. In his lawsuit, Gertner asserted that Pace discriminated against him in failing to promote him to full professor because of his Brazilian national origin.
In a recent opinion, the United States Court of Appeals for the Second Circuit concluded that the trial court "properly granted judgment in favor of Pace, substantially
for the reasons stated in its thorough and well-reasoned January 7, 2014 order. Namely, the preponderance of the evidence did not show that Pace's legitimate, non-discriminatory reason for not promoting Gertner was a pretext for discrimination.
Based on the District Court's extensive findings, neither Pace's inconsistent
promotion standards, stray comments, imposition of an onerous course schedule, nor promotion of non-Brazilian faculty, either individually or collectively, established any discriminatory intent on the basis of Gertner's Brazilian national origin." Click here for court decision
|SEIU Certified to Represent Washington University Adjunct Faculty Unit|
Washington University, Case No.14-RC-141308
Following a January 5, 2015 tally of ballots, SEIU was certified by the NLRB on January 15, 2015 to represent a unit of non-tenure track and non-research track at Washington University. Of the approximate 404 faculty members determined to be in the unit, 138 voted in favor of unionization, and 111 voted against. Seven ballots were voided and 18 were challenged.
The following is the description of the unit certified by the NLRB:
All part-time non-tenured, non-tenure track and non-research track faculty who teach at least one credit bearing course (including lab instruction, independent study instruction, and co-teaching) in a degree-granting undergraduate program on the Danforth Campus in the following Schools: School of Arts & Sciences, Sam Fox School of Design and Visual Arts, and School of Engineering and Applied Science, but excluding all full-time faculty; faculty who have another position at the University that qualifies them for full-time status with the University; tenured, tenure track and research track faculty; deans, provosts, administrators, department chairs; faculty who also serve in a supervisory, managerial or confidential role; faculty who teach only online courses; faculty who teach only courses away from the Danforth Campus; faculty who teach only courses as a field supervisor; faculty who teach courses in a non-degree granting program; faculty who teach at the School of Business, School of Law, School of Social Work and/or School of Medicine; graduate students; graduate assistants; athletic coaches; all other employees, managers, confidential employees, office clerical employees, other professional employees, guards and supervisors as defined in the Act.
|NLRB Certifies SEIU to Represent an Adjunct Faculty Bargaining Unit at Saint Mary's College of California|
Saint Mary's College of California, Case No. 32-RC-139812
Following a December 29, 2014 tally of ballots, SEIU has been certified by the NLRB to represent a unit of adjuncts at Saint Mary's College of California. Of the approximate 427 faculty members determined to be in the unit, 204 voted in favor of unionization, and 64 voted against.
The following is the description of the unit certified by the NLRB:
All full-time and part-time adjuncts, adjunct professors, adjunct assistant professors, adjunct associate professors, adjunct instructors, lecturers, and visiting assistant professors employed by the Employer at its facility in Moraga, California; excluding tenured and tenure-track faculty, executive assistants, managers, assistant managers, independent contractors, administrators, graduate students, LEAP faculty, other employees who do not teach undergraduate or graduate credit-earning courses or laboratories, guards, and supervisors as defined in the Act. However, no agreement has been made regarding the eligibility or inclusion of employees in the above-included classifications who teach exclusively at the Employer's locations in Santa Clara, San Ramon, Oakland, and San Francisco, California. They are neither included in, nor excluded from the bargaining unit covered by this certification, in as much as the parties did not agree on their inclusion or exclusion and these individuals voted subject to challenge.
|SEIU Certified to Represent Unit at Dominican University of California|
Dominican University of California, Case No. 20-RC-140506
Following a December 29, 2014 tally of ballots, SEIU was certified by the NLRB on January 8, 2015 to represent a unit of adjuncts at Dominican University of California. Of the approximate 230 faculty members determined to be in the unit, 139 voted in favor of unionization, and 77 voted against. Three ballots were voided and another 11 challenged.
The following is the description of the unit certified by the NLRB:
Unit: All Adjunct Professors, Adjunct Assistant Professors, Adjunct Associate Professors, Unranked part-time Faculty, and Term Adjuncts employed by the Employer at its San Rafael, California facility; excluding all other employees, employees who do not teach undergraduate or graduate level credit-earning courses or labs, Tenured Faculty, Tenure-Track Faculty, full-time Term Faculty, Administrators, Graduate Students, Executive Assistants, Managers, Assistant Managers, Independent Contractors, guards, and supervisors as defined by the Act.
|NLRB Certifies SEIU to be the Representative of a Part-time Faculty Unit at Otis College of Art and Design|
Otis College of Art and Design, Case No. 31-RC-139991
Following a December 30, 2014 tally of ballots, SEIU was certified by the NLRB on January 8, 2015 to represent a unit of adjuncts at Otis College of Art and Design. Of the approximate 225 faculty members determined to be in the unit, 139 voted in favor of unionization, and 77 voted against. One ballot was voided and another was challenged.
The following is the description of the unit certified by the NLRB:
Included: All Part-Time Faculty teaching in the undergraduate programs and graduate programs, including specifically all Lecturers and Senior Lecturers who are employed by Otis College of Art and Design and who teach at least one-credit-bearing class, lesson, or lab at the College's instructional facilities located at the following locations: 9045 Lincoln Boulevard, Los Angeles ("Elaine and Bram Goldsmith Campus"), 110 East 9th Street, Los Angeles ("Fashion Design Campus"), 1657 18th Street, Santa Monica ("Graduate Public Practice"), 10455 Jefferson Boulevard, Culver City ("Graduate Studios"), 6124 Wilshire Boulevard, Los Angeles ("Mid-Wilshire Studio").
Excluded: All other employees, including but not limited to: all Full-Time Faculty; all Adjunct faculty, specifically those ranked as Adjunct Assistant Professor, Adjunct Associate Professor, or Adjunct Professor; All instructors teaching only in the Continuing Education program; all Critics in Residence; all Visiting Artists and Scholars; all Professors Emeriti; all Area Heads; all Coordinators; all faculty teaching in locations other than the College's instructional facilities defined above; all
Administrative Academic Personnel, administrators, or others whose primary job is staff, whether or not they also have teaching responsibilities; all faculty teaching online courses exclusively (regardless of location); all deans, chairs, assistant chairs, directors, librarians; all class mentors who do not teach at least one credit-bearing class, lesson, or lab; all other represented employees, and all clerical employees, managers, guards, and supervisors as defined in the Act, as amended.
|Amended Petition Filed for the Representation of Faculty at California Institute of the Arts|
|California Institute of the Arts, Case No. 31-RC-144096|
SEIU recently filed an amended petition seeking to represent the following faculty unit at the California Institute of the Arts:
Included: All Regular Faculty, Technical Faculty, and Special Faculty, including but not limited to lecturers, adjunct faculty, visiting faculty, teaching associates, librarians, program directors or co-directors, and assistant or associate deans who are employed by the California Institute of Arts and who teach at least one credit-earning class, section, lesson, lab or workshop in a degree bearing program at the Institute's instructional facilities at the Main Campus located at 24700 McBean Parkway, Valencia, California 91355.
Excluded: All non-faculty employees, all faculty regularly employed by the Institute at any location other than the Main Campus; the President of the Institute, Provost, Associate Provost, Deans of each school, registrars; all visiting scholars and visiting artists; all faculty teaching online courses exclusively (regardless of location); all graduate students; all Music Ph.D. students; all lab assistants, graduate assistants, clinical fellows, teaching fellows, and research assistants; all mentors who lack teaching responsibilities; all volunteers; all other represented employees; and all managers, supervisors, and guards as defined in the Act.
|Representation Petition by Columbia University Graduate Assistants and Undergraduates Subject to NLRB Region 2 Director Order to Show Cause to Determine Whether to Dismiss Petition|
|Columbia University, Case No. 02-RC-143012|
On December 17, 2014, Graduate Workers of Columbia-GWC, UAW filed a representation petition with NLRB Region 2 seeking to represent a unit of approximately 2,800 student employees providing instructional services at Columbia University including graduate and undergraduate teaching assistants.
The Graduate Workers of Columbia-GWC, UAW petition defines the proposed unit in the following manner.
Included: All student employees who provide instructional services, including
graduate and undergraduate Teaching Assistants (Teaching Assistants, Teaching
Fellows, Law Associates, Preceptors, Instructors, Listening Assistants, Course
Assistants, Readers and Graders): All Graduate Research Assistants (including those
compensated through Training Grants) and All Departmental Research Assistants
employed by the Employer at all of its facilities, including Morningside Heights, Health
Sciences, Lamont-Doherty and Nevis facilities.
Excluded: All other employees, guards and supervisors as defined in the Act.
The representation petition was filed as the NLRB Board is in the process of reconsidering its decision in Brown University, 342 NLRB 483 (2004) where it concluded that graduate assistants are not employees for purposes of section 2(3) of the National Labor Relations Act. The reconsideration is taking place in the context of the NLRB's review of last year's decision by a Regional Director in Northwestern University, who concluded that Northwestern scholarship football players were covered under the NLRA. In the Regional Director's Northwestern University decision, he explicitly distinguished the applicable facts and law from those in Brown University. As a result, the NLRB Board in Northwestern University might not revisit Brown University. Instead, the representation petition filed by the Graduate Workers of Columbia-GWC could be the vehicle for the NLRB's reconsideration of Brown University.
On January 12, 2015, NLRB Regional Director 2 Karen P. Fernbach issued an Order to Show Cause ordering the Graduate Workers of Columbia-GWC, UAW to file an offer of proof by January 20, 2015 as to why its petition should not be dismissed based upon Brown University and identifying any facts it intends to present during a hearing that support its position and would distinguish its petition from Brown University. Pursuant to the order, Columbia University has until January 27, 2015 to respond to the petitioner's offer of proof. It is probable that the action by Regional Director Fernbach will expedite the processing of the representation petition and result in an earlier final NLRB decision.
|Representation Petition by Student Employees at the New School Also Subject to an NLRB Region 2 Director Order to Show Cause |
New School, 02-RC-143009
On December 17, 2014, Student Employees at The New School - SENS/UAW filed a representation petition with NLRB Region 2 seeking to be certified as the collective-bargaining representative for the following unit of employees at the New School in New York City:
Included: All student employees who provide teaching, instructionally-related or research services, including Teaching Assistants (Course Assistants, Teaching Assistants, Teaching Fellows, and Tutors); and Research Assistants (Research
Assistants and Research Associates)
Excluded: All other employees, guards and supervisors as defined by the Act.
On January 12, 2015, Regional Director Karen P. Fernbach issued an Order to Show Cause ordering SENS/UAW to file an offer of proof by January 20, 2015 as to why the petition should not be dismissed based upon Brown University and identifying any facts it intends to present during a hearing that support its position and would distinguish its petition from Brown University. Pursuant to the order, the New School has until January 27, 2015 to respond to the petitioner's offer of proof. Like her action in the case involving Columbia University, the order to show cause by Regional Director Fernbach will probably expedite the processing of the representation petition and result in an earlier final NLRB decision.
|The National Center Welcomes Our Two New Law Student Interns for the Semester: Liliya Perelman and Raabia Qasim|
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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 articles to the National Center's Journal of Collective Bargaining in the Academy. The journal is an open access, peer-review on-line publication. It is edited by Jeffrey Cross, Eastern Illinois University, and Steve Hicks, Association of Pennsylvania State Colleges and University Faculties. The journal is hosted by the Booth Library, Eastern Illinois University. Click here for Journal website.
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