The National Center E-Note is an electronic newsletter providing news, updates and analysis concerning events and issues of interest to our constituency groups.
April 2015 Edition Contents:
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The 42nd Annual Conference at the CUNY Graduate Center in NYC
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Our 42nd annual national conference is only a few weeks away on April 19-21, 2015 at the CUNY Graduate Center in New York City. We look forward to greeting both new and returning attendees.
The conference theme is Thinking about Tomorrow: Collective Bargaining and Labor Relations in Higher Education. We have put together an ambitious conference agenda with panels and interactive workshops on many important and topical subjects including: 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; faculty salary schedules and pay equity; effective contract administration; sexual assaults on campus; and many other important topics. Click here for conference schedule. Conference Materials will be on Flash Drives: We will be distributing conference papers and powerpoints on flash drives at this year's conference. |
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Sign Up Now for Interactive Conference Workshops
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We strongly encourage conference registrants to sign up now for the conference workshops listed below. Click here to sign up for conference workshops. They are designed to enhance the practical skills of new and experienced labor representatives and administrators.
Collective Bargaining and Labor Relations for New Administrators and Labor Representatives with Conrad Bowling, FMCS Commissioner, Jeffrey Cross, Associate Vice President for Academic Affairs, Eastern Illinois University, Deborah Williams, NEA Faculty Association President and Lead Negotiator, Johnson County Community College and Alyssa Picard, Acting Director, AFT Higher Education, Moderator. Collective Bargaining and Labor Relations for Experienced Administrators and Labor Representatives with Joe Ambash, Fisher & Phillips, LLP, Thomas Olson, Commissioner, FMCS and Howard Parish, Arbitrator & Mediator, Panelist and Moderator. Effective Contract Administration for Administrators and Labor Representatives with Debra Gold, Labor Relations Specialist, NYSUT, Michael J. Lebowich, Proskauer Rose LLP and Brian Duffy, Acting Associate Provost, Hunter College, CUNY, Moderator.
Practices and Policies on Bullying and Harassment with Fran Sepler, Sepler and Associates, MN Lesley Burke-O'Flynn, Federation of Post-Secondary Educators Staff Representative, British Columbia, Canada, and Phadra Williams, Organizational Specialist, Office of Higher Education, NEA, Moderator. Workshop Training: Mindfulness and Stress Management for Negotiations and Labor Relations with Victor Goode, Associate Professor, City University of New York School of Law, Jeanne Anselmo, co-founder, Contemplative Urban Law Program, City University of New York School of Law Dmitri Norwood, Network Manager, AL A&M President, AL A&M University EA, Moderator. |
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Locations and Events for 42nd Annual Conference
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Conference Locations and Events:
Sunday, April 19, 2015: Reception, Panels & Workshops, 2:00 pm-5:45 pm
CUNY Graduate Center: 365 5th Avenue, NY, NY, 10016
Sunday, April 19, 2015: Buffet Dinner, 6:00 pm-9:00 pm
Heartland Brewery, Empire State Building: 350 5th Avenue, New York, NY 10118
Monday, April 20, 2015: Continental Breakfast, Panels, Workshops, Lunch & Reception, 7:45 am-6:00 pm
CUNY Graduate Center: 365 5th Avenue, NY, NY, 10016
Tuesday, April 21, 2015 Continental Breakfast, Panels, Workshops & Lunch
7:45 am-1:00 pm
CUNY Graduate Center: 365 5th Avenue, NY, NY, 10016
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SEIU Certified to Represent Part-Time Faculty Unit at Bentley University
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Bentley University, Case No. 01-RC-141995
Following a February 26, 2015 election, SEIU was certified by the National Labor Relations Board (NLRB) on March 9, 2015, to represent a part-time adjunct faculty unit that includes adjunct associate professors, adjunct lecturers, adjunct senior lecturers and adjunct instructors at Bentley University. Of the 229 faculty members determined to be in the unit, 108 voted in favor of unionization, 42 voted against, with two voided ballots and seven challenged ballots.
The following is the description of the newly certified faculty unit:
Including: Part-time adjunct faculty (including adjunct associate professors, adjunct lecturers, adjunct senior lecturers and adjunct instructors) employed by Bentley at its Main Campus, 175 Forest Street, Waltham MA, teaching at least one credit-bearing graduate or undergraduate course (including hybrid and blended courses) and who are compensated on a per-course basis. An employee working for the University 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 their other capacity working for the University is expressly excluded. Excluding: All faculty who teach only exclusively online courses, courses at campuses other than the Main Campus, non-degree granting courses, or First-Year Seminar, Transfer Seminar, or Career Development Seminar courses; tenured or tenure-track faculty; full-time faculty; visiting faculty; deans; provosts; department chairs, graduate assistants; graduate students, including PhD candidates; managerial employees, confidential employees; guards and supervisors as defined by the Act. |
NLRB Board Reverses Dismissal of UAW Representation Petitions Concerning Columbia University and New School Graduate Assistants
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Columbia University, Case No. 02-RC-143012
The New School, Case No. 02-RC-143009
The NLRB Board issued decisions on March 13, 2015 reversing and remanding decisions by NLRB Region 2 Director Karen P. Fernbach to dismiss representation petitions filed by UAW affiliates seeking to unionize graduate assistants and other students who provide instructional services at Columbia University and at The New School. Both petitions were filed as test cases aimed at having the NLRB Board reconsider and reverse its holding in Brown University, 342 NLRB 483 (2004) that graduate students were not "employees" for purpose of Section 2(3) of the National Labor Relations Act (NLRA).
In reversing Regional Director Fenbach's decisions, the NLRB Board concluded that the cases raise substantial issues under the NLRA, and cases should not have been decided without a hearing.
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| Northwestern Michigan Coll. Faculty Vote in Favor for Unionization |
Northwestern Michigan College, MERC Case No. R14 L-086
On March 23, 2015, the Michigan Employment Relations Commission (MERC) certified the Michigan Education Association (MEA) as the exclusive representative for the following faculty unit at Northwestern Michigan College:
All full-time and part-time regular appointment faculty members.
Excluding: Academic Chairs, Supervisors, Executives Adjunct Faculty, Substitutes, Temporary and all other employees.
MERC issued the certification following a March 12, 2015 tally of mail ballots concerning the MEA representation petition. Of the approximate 100 members of the petitioned-for faculty unit, 65 voted in favor of unionization, 16 against, and one ballot was found to be spoiled.
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Contingent Faculty at Roger Morris Univ. Vote for USW Representation
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Robert Morris University, Case No. 06-RC-145392
On March 17, 2015, the NLRB conducted a representation election concerning a petition by the the United Steelworkers (USW) to represent a unit of part-time/adjunct faculty members and part-time reference librarians employed by Robert Morris University. Of the 342 faculty members determined to be in the unit, 125 voted in favor of unionization, 67 voted against, with nine voided ballots and two challenged ballots.
The following is the description of the at-issue faculty unit:
Included: All part-time/adjunct faculty members and part-time reference librarians employed by Robert Morris University in the following classifications: part-time/adjunct faculty, staff - part-time/adjunct faculty, part-time/adjunct clinical instructor, university student teacher supervisor, and part-time reference librarian. Excluded: All other employees, including full-time faculty members, full-time library faculty, visiting or contract faculty, Rooney Scholars, guest lecturers, graduate students, graduate assistants and teaching assistants; staff; deans, provosts, administrators, program coordinators, program directors and department heads; members of the Board of Trustees; coaches; student workers; office clerical employees; police officers, public safety officers and guards; managerial employees; confidential employees; professional employees and supervisors as defined in the Act; and all other employees. |
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NJ Court Rejects Dismissal of Representation Petition Concerning Managers at Nine State Colleges
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State of New Jersey v. Council of New Jersey State College Locals, AFT
An intermediate New Jersey appellate court has overturned a decision by the New Jersey Public Employment Relations Commission (PERC) dismissing representation petitions for the unionization of approximately 600 managers at nine New Jersey state colleges and universities. The court concluded that PERC acted arbitrarily by dismissing the representation cases without conducting an investigatory hearing to gather evidence to determine whether the employees in the at-issue positions perform duties and functions that would make them subject to the statutory exclusion of "managerial executives." Click here for court decision. Unless the court decision is reversed, the cases will return to PERC for a hearing to determine the managerial status of each position.
Notably, the New Jersey public sector collective bargaining law, unlike the NLRA includes a specific definition concerning the managerial exemption to the right to unionize for purposes of collective bargaining.
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Mass. CERB Dismisses Petition to Add Department Chairs to the Faculty Unit at the University of Massachusetts
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Peer Mentors Added into RA Unit Represented by UAW at Univ. of Mass.
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University of Massachusetts, Amherst, Case No. SCR-14-3687
On February 20, 2015, the Massachusetts Commonwealth Employment Relations Board (CERB) granted a petition by the UAW to accrete the position of Peer Mentor into an existing bargaining of 416 Resident Assistants (RA) at the University of Massachusetts, Amherst. CERB determined that there was no difference in employee status between Peer Mentors and RAs because they: perform work for compensation and with supervision; currently they do not receive academic credit for their work; must attend trainings; are subject to discipline and discharge; and must sign a job description describing their terms and conditions of employment. In reaching its decision, CERB distinguished the NLRB's decision in Brown University, 342 NLRB 483 (2004) based on the lack of evidence in the record that the duties of Peer Mentors are a requirement for their degree or central to their education.
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SEIU Files to Represent All Lesley Univ. Full-Time and Part-Time Faculty and also Files to Represent Faculty at Webster University
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Lesley University, Case No. 01-LRC-148228
On March 16, 2015, SEIU filed a representation petition with the National Labor Relations Board (NLRB) seeking to be certified as the representative of a bargaining unit of approximately 165 full-time and part-time core faculty members employed at Lesley University. SEIU already represents a unit at Lesley University of approximately 701 adjunct faculty members.
The new SEIU petition seeks representation of the following unit:
Including: All full-time and part-time core faculty employed by Lesley University at its Cambridge, MA campuses, including, but not limited to, faculty with titles of Assistant Professor, Associate Professor, Instructor, or Professor, including National Faculty, Coordinators and Program Directors.
Excluding: Adjunct Faculty, Tenured Faculty, Deans, Associate Deans, Chairs, Division Directors, Provosts, University Professor, coaches, maintenance employees; and all other employees; and guards, confidential employees, managers, and supervisors as defined in the Act.
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Webster University, Case Nos. 14-RC-148986,14-RC-149539, 14-RC-149541 In the past week, SEIU has filed three representation petitions with the NLRB seeking to represent faculty at Webster University in St. Louis. It is probable that the representation petitions will be consolidated by that agency In Webster University, Case No. 14-RC-148986, SEIU seeks to represent approximately 510 faculty in the following proposed unit: Included: All adjunct faculty teaching at St. Louis, MO locations, including the following job classifications: Adjunct, Instructor, and Lecturer. Excluded: All other employees, including all faculty not teaching at St. Louis locations, graduate assistants, teaching assistants, Visiting Professors, exclusively online faculty, and tenure track faculty, including the following job classifications: Professor, Associate Professor, Assistant Professors; and managers, confidential employees, guards and supervisors as defined by the Act. In Webster University, Case No. 14-RC-149539. SEIU seeks to represent a proposed bargaining unit with approximately 2 faculty members: Included: All faculty with the title instructor employed by Webster University who teach at least one credit-bearing course, in a degree-granting program at the following
campuses in the St. Louis Metropolitan area: Gateway, Winghaven, Westport and St.
Louis Home. Excluded: All status and status-track faculty, adjuncts, lecturers, full-time staff who
also teach as an adjunct, deans, associate deans, assistant deans, provost, vice
provosts, assistant provosts, administrators, department chairs, graduate assistants,
graduate students, athletic coaches, and faculty who teach non-degree granting
courses; all other employees, managers, confidential employees, guards and
supervisors as defined by the Act. In Webster University, Case No.14-RC-149541, SEIU seeks to represent the following proposed unit: Included: All adjunct faculty employed by Webster University who teach at least one
credit-bearing course, in a degree-granting program at the following campuses in the St. Louis Metropolitan area: Gateway, Winghaven, Westport and St. Louis Home. Excluded: All status and status-track faculty, instructors, lecturers, full-time staff who
also teach as an adjunct, deans, associate deans, assistant deans, provost, vice
provosts, assistant provosts, administrators, department chairs, graduate assistants,
graduate students, athletic coaches, and faculty who teach non-degree granting
courses; all other employees, managers, confidential employees, guards and
supervisors as defined by the Act.
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NLRB Grants Review of a Penn. Charter School's Jurisdiction Objection
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The Pennsylvania Virtual Charter School, Case No. 04-RC-143831
On March 25, 2015, the NLRB Board granted a request by the Pennsylvania Virtual Charter School for review of a decision by an NLRB Regional Director concluding that the charter school was subject to NLRB jurisdiction. In the request for review, the charter school argues that it is exempt from NLRB jurisdiction because it is a Pennsylvania political subdivision within the meaning of section 2.2 of the National Labor Relations Act as a public school under Pennsylvania law and a part of that state's public education system.
Pending at the NLRB Board is another charter school case, Hyde Leadership Charter School - Brooklyn, Case No. 29-RM-126444, where a Regional Director ruled that a New York charter school and its employees are covered under the NLRA rather than New York's Taylor Law. In that case, the charter school argues that the NLRB has jurisdiction over charter school representation issues rather than the New York's Public Employment Relations Board despite the explicit provisions of New York's Charter School Act of 1998.
In 2012, the NLRB ruled in Chicago Mathematics & Science Academy Charter School, Inc. 359 NLRB No. 41 (2012) that an Illinois charter school was not a state political subdivision, and therefore was subject to the NLRA rather than the Illinois public sector collective bargaining law. It is well established that the Board does not assert jurisdiction over public schools created by state or local governments.
In determining whether a charter school is a political subdivision, the NLRB will first examine whether the school was created directly by the state or a public official. If so, the NLRB then considers whether the entity was created in such a manner as to constitute a department or administrative arm of the government. In Chicago Mathematics & Science Academy Charter School, Inc, the NLRB asserted jurisdiction because the charter school was found to have been created by private individuals, and the charter school was a private corporation that was not administered by school board members who are responsible to public officials or to the general electorate.
The question of whether the NLRB has jurisdiction over representation issues at charter schools is an important practical and legal one. As Richard D. Kahlenberg and Hally Potter demonstrate in A Smart Charter: Finding What Works for Charter Schools in Public Education (2014), the charter school idea was first proposed by AFT President Albert Shanker in 1988. Shanker's vision was for charter schools to be public innovative laboratories that would enhance the voice of teachers in providing public education.
Since 1988, forty-two states and the District of Columbia have enacted charter school laws but their provisions of these laws differ in many ways. Those differences include how charter schools are created, administered, managed, monitored and terminated. Some charter school laws include explicit provisions regulating collective bargaining and unionization, while others are silent.
The assertion of NLRB jurisdiction over representation issues at a charter school can preempt a state law enacted to regulate charter school labor relations. In contrast, the failure of the NLRB to assert jurisdiction over charter schools in states without a public sector collective bargaining law might mean that those school employees have no statutory right to seek unionization and collective bargaining.
The final outcomes in Pennsylvania Virtual Charter School and Hyde Leadership Charter School - Brooklyn at the NLRB might depend on whether that agency finds sufficient differences in the creation, administration and regulation of the charter schools in those states to the charter school system in Illinois. |
| The Journal of Collective Bargaining in the Academy |
In Memoriam: Victor Gotbaum and Larry Gold
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