for the Study of Collective Bargaining in Higher Education and the Professions


August 2015
The National Center E-Note is an electronic newsletter providing news, updates and analysis concerning events and issues of interest to our constituency groups.
Save the Date: April 3-5, 2016 for 43rd Annual Conference on Collective Bargaining and Labor Relations in Higher Education
The 43rd Annual Conference of the National Center for the Study of Collective Bargaining in Higher Education and the Professions will take place on April 3-5, 2016 at the CUNY Graduate Center.  Additional details concerning the 2016 conference will be announced in future E-Notes and will be featured on our website.
Webcasts from the 42nd Annual Conference Are Now Available
Pursuant to the National Center's educational and research mission, below are links to webcasts of four presentations from our April 2015 annual conference concerning civility and academic freedom, collective bargaining for contingent faculty, the perspectives of reporters covering higher education, and the Affordable Care Act.   We encourage you to inform your colleagues about the availability of the webcasts as well as the podcasts previously posted on our website
The webcasts can be accessed by clicking the hyperlinks below: 
Tom C. Hogan, Professor, Pennsylvania State University School of Labor and Employment Relations
Risa Lieberwitz, Professor, Cornell ILR and AAUP General Counsel
Frederick P. Schaffer, CUNY General Counsel and Senior Vice Chancellor for Legal Affairs, Moderator     
Gary Rhoades, University of Arizona
Susan J. Schurman, Rutgers University
Valerie Martin Conley, Ohio University
Steven Greenhouse, former N.Y. Times Labor Reporter, Moderator
Steven Greenhouse, former N.Y. Times Labor Reporter
Peter Schmidt, Chronicle of Higher Education Senior Writer
Colleen Flaherty, Inside Higher Ed Reporter
Theresa Monta�o, NEA National Council for Higher Education, Moderator    

John Abraham, AFT Benefits Department Director
Maria Maisto, President, New Faculty Majority
John H. Gross, Ingerman Smith LLP
Larry Singer, Senior Vice President, Segal|Sibson, Panelist and Moderator

We thank Becca Pulliam from Please Repeat the Question Productions and Hunter College's ICIT Department for their quality production.  

The webcasts will be posted on our website in the near future, joining the 11 podcasts previously posted. Click here to access podcasts: 
The History of Collective Bargaining in Higher Education 
Ellen Schrecker, Professor of History Emeritus, Yeshiva University
Derryn W. Moten, Professor of Humanities, Alabama State University
Ernst Benjamin, former AAUP General Secretary
Donna Haverty-Stacke, Associate Professor, History, Hunter College, Moderator 
The Impact of Collective Bargaining and Local Appropriations on Faculty Salaries and Benefits at U.S. Community Colleges 
Stephen Katsinas, University of Alabama Education Policy Center
Clive Belfield, Queens College, CUNY, Research Affiliate, C.C. Research Center
Fred Floss, Professor, SUNY Buffalo State. Senior Fellow, Fiscal Policy Institute
DeWayne Sheaffer, Long Beach City College & NEA NCHE, Moderator
Scorecards, Performance Based Metrics and Faculty Compensation
Alan D. Phillips, Vice President of Administration & Finance, Northern Illinois Univ.
Mark Smith, Higher Education Policy Analyst, National Education Association
Jonathan Blitz, Faculty Union Bargaining Team Member, Eastern Illinois University
Jeffrey M. Lax, Chair, Kingsborough Community College, CUNY, Moderator
Ins and Outs of Faculty Salary Structures and Wage Equity
Michael N. O'Malley, Senior Vice President, Sibson Consulting
Pierre Joanis, Associate Vice President for Human Resources, Bucknell University
Rex Fuller, Provost & VP for Academic Affairs, Eastern Washington University
Michael Conlin, United Faculty of Eastern President, Eastern Washington University
John W. Curtis, Director, Research, American Sociological Association, Panelist & Moderator
Faculty Diversity and Retention: Best Practices
Anthony Browne, Chair, Africana & Puerto Rican/Latino Studies, Hunter College
Carlos Medina, Chief Diversity Officer, SUNY
J. Phillippe Abraham, Vice President for Professionals, United University Professions
Rose Campbell, Faculty Administrator, Florida A & M University
Mark Hauber, Acting Associate Provost for Research, Hunter College
John T. Rose, Dean for Diversity, Hunter College, Moderator
Electronic Privacy in Higher Education
Jason Walta, Senior Counsel, National Education Association
Jill L. Rosenberg, Partner, Orrick, Herrington & Sutcliffe LLP
Frederick Lane, Author & Attorney
Raymond L. Haines, Associate Vice Chancellor for Employee Relations, SUNY, Moderator
Student Evaluation of Teaching in Higher Education
Philip B. Stark, Professor & Chair, UC Berkeley Department of Statistics
John A. Centra, Professor Emeritus, Syracuse University & Former Research Psychologist, Educational Testing Service
Alexandra Matish, Associate Director, Academic Human Resources, Univ. of Michigan
Lillian MacNell, North Carolina State University Graduate Student, 2016
Jamie Dangler, VP for Academics, Chief Negotiator, UUP, Moderator
Postsecondary Minority Serving Institutions: Labor Relations and 
Collective Bargaining
Robert White, Alabama State University Professor of History
Daniel Wims, Provost and Vice-President for Academic Affairs, Alabama A & M Univ. 
Quintlon Ross, NEA Uniserv Director, Alabama Education Association
Sasha Tarrant, Assistant Professor, History, Brazoport College, TX Faculty Association
Lynda Villanueva, Vice President, Academic & Student Affairs, Brazosport College
Joyce Moy, Director, CUNY Asian American Asian Research Institute, Moderator
Impact of Pacific Lutheran on Collective Bargaining at Catholic Colleges and Universities
Nicholas P. Cafardi, Dean Emeritus & Professor of Law, Duquesne University
Michael P. Moreland, Vice Dean & Professor of Law, Villanova University Law School
Maryann Parker, Associate General Counsel, SEIU
Clayton Sinyai, Director, Catholic Employer Project
David L. Gregory, Dorothy Day Professor of Law, St. John's University School of Law, Moderator
Sexual Assaults on Campus: What Is To Be Done?
Coleen Chin, Senior Attorney, U.S. Department of Education, Office of Civil Rights
Michelle Kiss, Director of Special Projects, Academic Affairs, California State Univ. 
Elizabeth Davenport, United Faculty of FL/AFT/NEA President, FL A&M University
Sabrina Sanders, Assistant Director, Student Programs, California State University 
Alexandra Matish, Associate Director, Academic Human Resources, University of Michigan, Moderator
Graduate Assistants: Special Issues and Challenges in Collective Bargaining
Kerr Ballenger, United Faculty of FL-FSU-Graduate Assistants United President
Margaret E. Winters, Provost & Senior VP for Academic Affairs, Wayne State Univ.
John D. Vander Weg, Associate Provost for Academic Personnel, Wayne State Univ. 
Peter Chester, Director, Labor Relations, University of California
Carl J. Levine, Levy Ratner, P.C.
Adrienne Eaton, Past President, Rutgers AAUP-AFT and Professor, Labor Studies & Employment Relations, Moderator 
Point Park Recognizes Newspaper Guild As Faculty Representative
Point Park University, NLRB Case No. 06-RC-012276

Following a decade long legal fight by Point Park University to have its faculty declared managerial under the National Labor Relations Act based on the holding in NLRB v. Yeshiva University, 444 U.S. 672 (1980), the school recently agreed to voluntarily recognize the Newspaper Guild as the exclusive representative of a bargaining unit
that includes its faculty.

On July 21, 2015, the Point Park University filed a motion with the NLRB requesting the termination of all further proceedings because it has voluntarily recognized the Newspaper Guild as the representative for the following bargaining unit: 

All full-time faculty, Conservatory of Performing Arts teaching artists, Natural Sciences and Engineering Technology laboratory associates, Director of the Library, Head of Graduate Studies in COPA, and Executive Director of the Innocence Institute; excluding the President, Vice Presidents, Associate and Assistant Vice Presidents, Deans, Department Chairs, Program Director, Applied Corporate Communications; Program Director, Cinema and Digital Arts; Program Director, Master of Science in Engineering Management; Program Director, Master of Business Administration, and all office clerical employees, part-time faculty, non-professional employees,
managerial employees and guards, other professional employees and supervisors as defined in the Act. 

The Point Park University case had been a closely watched because it had the potential for clarifying the factors the NLRB would apply in determining the managerial status of faculty at private sector institutions. During the processing of the Newpaper Guild's representation petition, which was filed on October 20, 2003, an election was conducted resulting in the certification of the Newspaper Guild as the representative of a bargaining unit that included faculty and other professional staff.  A federal appeals court, however, later remanded the case to the NLRB for it to provide a clearer explanation concerning the application of the factors under Yeshiva University. During the pendency of the case, however, the NLRB issued its decision in Pacific Lutheran University, 361 NLRB No.157 (2014) clarifying its analysis and application of the factors under Yeshiva University.
Barnard College and UAW Enter Into Neutrality Agreement and Election Stipulation Concerning Adjunct Bargaining Unit 
Barnard College, NLRB Case No. 02-RC-154022
On July 16, 2015, Barnard College and the UAW entered into two agreements  
relating to a UAW petition pending at NLRB Region 2 seeking to represent the college's full-time and part-time adjunct faculty: a stipulated election agreement before the NLRB, and a separate neutrality agreement concerning the conduct of the college and the union during the representation election campaign. 

Stipulated election agreements are common at the NLRB and public sector labor relations agencies when the parties are able to agree upon the scope of the bargaining unit and the mechanics of the election.  An election agreement sets the date, time and
method for the election, the appropriate unit, and eligibility requirements to vote.   

Neutrality agreements are not uncommon in representation cases.  In the past few years, neutrality agreements have been entered into concerning representation matters at schools such as the University of Connecticut and Washington University.  Neutrality agreements provide the parties with an opportunity to define their respective rights and responsibilities during the course of an organizing campaign and establish a contractual mechanism for enforcement of those provisions that incorporates use of an arbitrator to determine any alleged breaches of the agreement.     
Barnard-UAW Stipulated Election Agreement
Under the stipulation, the parties agreed to a mail ballot election commencing on September 14, 2015 with the vote tally taking place on October 2, 2015 with respect to to the following agreed-upon bargaining unit: 
The following off-ladder officers of instruction who teach classes at Barnard College on a full- or part-time basis: Included: All Adjunct Assistant Professors,  Adjunct Associate Professors, Adjunct Professors, Adjunct Associates, Adjunct Senior Associates, Adjunct Lecturers, Adjunct Visiting Assistant Professors,  Adjunct Visiting Professors, Guest Artists, Laboratory Associates, Senior Activist Fellows, Senior Scholars, Distinguished Fellows, Anna Quindlen Writers in Residence, Distinguished Artists in Residence, Term Assistant Professors, Term  Associate Professors, Term Professors, Term Assistant Professors of Professional Practice, Term Lecturers, and Term Senior Lecturers. Excluded:  Assistant Professors of Professional Practice, Associate Professors of Professional Practice, Professors of Professional Practice, Associates, Lecturers, Senior Associates, Senior Lecturers, Post Doc Fellows, Post-Doctoral Research  Associates, Graders, Teaching Assistants, Research Professors, Research Scholars, and Research Scientists, and guards, and supervisors and managerial employees as defined in the Act. Faculty hired for full time positions by the full-time hiring process who are temporarily on a reduced schedule for personal reasons shall be considered full-time.
Eligibility to vote in the mail ballot election is limited to those employees who taught at least one class in the Fall or Spring semesters during the the 2014-2015 academic year including those employees who did not work due to illness, vacation or who were temporarily laid off. 
Barnard-UAW Neutrality Agreement
The second agreement reached between Barnard College and the UAW requires the college to: a) "maintain a policy of neutrality" including refraining from advising "employees concerning how they should respond or vote during the organizing campaign"; b) "communicate its position of neutrality to the broader College community and encourage supervisors to act in accord with the policy"; and c) refrain from disparaging the union or its representatives.   

The neutrality agreement sets forth the rights and responsibilities of the union and its representatives during the campaign: a reasonable number of union representatives will be permitted access to all public campus areas for the purpose of communicating
and meeting with employees and posting literature as long as the union does not disrupt college operations; college employees in the unit will be permitted to wear 
shirts, buttons, and other items expressing their position as to whether they want union representation; and the union agreed not to disparage the college or its representatives during the organizing campaign.   
Adjuncts at Comm. Coll. of Allegheny County Added to AFT Unit
Community College of Allegheny County, PERA-R-15-51-W 
Following a July 14, 2015 tally of ballots in a mail ballot election conducted by the Pennsylvania Labor Relations Board (PLRB), adjunct credit faculty at the Community College of Allegheny County have been accreted into the pre-existing bargaining unit represented by the AFT that includes all full-time teaching faculty, chairs, lecturers with one-year contracts, and division and department chairs.  Of the 802 eligible adjunct faculty subject to the representation petition, 394 voted in favor of AFT representation, 64 voted against, and one ballot was challenged.  
As a result of the election, the AFT has been certified by PLRB to represent the following enlarged bargaining unit:

All full-time teaching faculty (including temporary appointments of one academic year's duration), assistant librarians, athletic coaches, lecturers with one-year contracts, audio-visual specialists, division faculty advisors, division chairmen, department chairmen, counselors, laboratory technicians, audio-visual technicians, library technicians and adjunct credit faculty; and excluding head librarians, the assistant dean of students, director of admissions, director of placement, director of student activities, director of athletics, director of financial aid, director of evening division, director of continuing education, director of audio-visual, assistant director of admissions, assistant director of student activities, coordinator of student activities, campus presidents, deans, assistants deans of faculty, bookstore managers, all central office (headquarters) personnel, the director and assistant director of the Homewood/Brushton Center, management level employes, supervisors, first level supervisors, confidential employes and guards as defined in the Act.
Portland State University Sanctioned for ULP Concerning Email Access
Portland State University, OERB UP-013-14    
On April 17, 2015, the Oregon Employment Relations Board (OERB) issued a decision, in an unfair labor practice case filed by AAUP, finding that Portland State University violated Oregon's Public Employee Collective Bargaining Act when it announced that faculty members who participated in a strike would be denied continued access to the university's email system.  In Oregon, public employees have the statutory right to engage in lawful strike activity.  In the present case, the university made its announcement concerning continued email access two days before the faculty were scheduled to vote on whether to strike. OERB reasoned that the university's announcement "would naturally and probably chill these employees in exercising their statutorily guaranteed rights, including the strike 
authorization vote."  

More recently, on July 17, 2015, OERB granted AAUP's petition for representation  
costs associated with successfully pursuing the unfair labor practice charge. Portland State University was ordered to pay the amount of $2,583 in costs to AAUP.   
Illinois Federation of Teachers Certified to Represent Adjuncts at Kishwaukee College
Kishwaukee College, IELRB Case No. 2015-RC-0013-C

As the result of the processing of a representation petition, the Illinois Educational Labor Relations Board (IELRB) has certified the Illinois Federation of Teachers (IFT), effective July 17, 2015, as the exclusive collective bargaining representative for the following unit of adjunct faculty at Kishwaukee College:

Included:  All adjuncts (part-time) teaching faculty members currently teaching three (3) or more credit hours for two (2) consecutive academic semesters.

Excluded: All other employees of the employer, including but not limited to anyone who does not meet the definition of an educational employee under the Act.

During the processing of the petition, IFT submitted 80 authorization cards from adjunct faculty members in a unit comprised of 116 faculty.
First Contract Reached between Whittier and SEIU for Adjunct Unit
According to media reports, Whittier College and SEIU recently ratified a first contract for a bargaining unit comprised of adjunct faculty, which SEIU was certified by the NLRB to represent on December 30, 2013.  The new 3-year contract includes pay increases from $1150/credit hour to $1300/credit hour in Fall 2015, $1450 in Fall 2016, and $1550/credit hour in Fall 2016.  The agreement also includes a course cancellation fee of $300 if the course is cancelled within 21 days of the first class, protections concerning reappointment and evaluation, a just cause disciplinary provision and a professional development fund. Click here for IHE article.

Pasadena Area Community College Found to Have Violated Duty to Bargain By Unilaterally Imposing Trimester Schedule 

Pasadena Area Community College District, Cal. PERB Case No. LA-CE-5776-E

The California Public Employment Relations Board (PERB) ruled on July 30, 2015 that the Pasadena Area Community College District violated California's Educational Employment Relations Act when it unilaterally implemented a trimester calendar.  In prior years, the school's academic calendar was based on two semesters with winter and summer intersessions. The unilateral change was implemented while the school was in negotiations with the faculty union and the issue of changing the school schedule was on the bargaining table. California PERB concluded that the change was negotiable because it altered the starting and ending dates of the academic year thereby having a generalized effect on faculty working hours.
Hawaii Governor Vetoes Bill to Grant Collective Bargaining Rights to Graduate Student Assistants
On July 13, 2015, Hawaii Governor David Y. Ige vetoed a bill to amend Hawaii's
Public Employment Relations Act to grant full-time and part-time graduate student assistants at the University of Hawaii the right to engage in collective bargaining concerning their terms and conditions of employment.  The bill would have mandated that the university meet and confer with the incumbent unions at the university to reach agreement on the scope of negotiable items for the graduate student assistants, and report back to the legislature with their findings and recommendations, and proposed legislation.

Among the objections set forth in Governor Ige's veto message was the bill's failure to place the graduate assistants into an existing bargaining unit or to create a new separate bargaining unit and to provide an impasse resolution such as interest arbitration or a strike.  In addition, Governor Ige objected to the bill's meet and confer requirement because it is inconsistent with the concept that collective bargaining is between an employer and the exclusive representative selected by a group of employees for purposes of negotiations.  Lastly, Governor Ige stated that graduate student assistants are primarily students, and that granting them the right to engage in collective bargaining would result in significant cost increases.   
NLRB Rejects Petition Over Northwestern Scholarship Football Players
Northwestern University, NLRB Case No. 13-RC-1212359

In a unanimous decision, dated August 17, 2015, the NLRB Board declined jurisdiction over a petition that had sought representation of Northwestern University football players who receive grant-in-aid scholarships, and dismissed the representation petition.  In this closely watched higher education case, the NLRB Region 13 Director had found, in a March 26, 2014 decision, that grant-in-aid scholarship players were employees under Section 2(3) of the National Labor Relations Act (NLRA), and directed the holding on an election, which took place on April 25, 2014.

In this week's decision, the NLRB Board concluded that even if the at-issue scholarship players were employees under the NLRA, it would not effectuate the policies of that law to assert jurisdiction in what the NLRB described as a novel and unique case involving college football players. The NLRB Board explained:

"Our decision [to decline jurisdiction] is primarily premised on a finding that, because of the nature of sports leagues (namely the control exercised by the leagues over the individual teams) and the composition and structure of [NCAA Division I Football Bowl Subdivision (FBS)] (in which the overwhelming majority of competitors are public colleges and universities over which the Board cannot assert jurisdiction), it would not promote stability in labor relations to assert jurisdiction in this case."

In declining jurisdiction, the NLRB Board noted that it has never heard a prior case involving college athletes or a representation petition seeking a unit of a single college team or a group of college teams.  In addition, the NCAA's uniform rules, regulations and standards regarding collegiate sports results in "a substantial degree of [NCAA] control over the operations of individual member teams, including many of the terms and conditions under which the scholarship players (as well as walk-on players) practice and play the game." 

While the Northwestern University case was pending, some speculated that the NLRB intended to utilize the case to reconsider the question of whether graduate student assistants were employees under the NLRA because the NLRB had solicited briefs to address the following question:

"Insofar as the Board's decision in Brown University, 342 NLRB 483 (2004), may be applicable to this case, should the Board adhere to, modify, or overrule the test of employee status applied in that case, and if so, on what basis?"

In its August 17, 2015 decision, however, the NLRB Board distinguished the college football players from graduate student assistants in Brown University and New York University, 332 NLRB 1205 (2000) because the at-issue players are undergraduates who receive sports scholarships and their extracurricular football activities are generally unrelated to their studies.  Lastly, it expressly chose not to determine whether the at-issue players were employees under the NLRA.
Representation Petition for New School Student Employees Dismissed
The New School, NLRB Case No. 02-RC-13009

Following a hearing concerning a representation petition filed by the UAW to represent a unit of approximately 350 student employees at the New School, NLRB Region Director 2 Karen P. Fernbach has administratively dismissed the petition concluding that the at-issue students were not employees under the National Labor Relations Act (NLRA) based upon the holding in Brown University, 342 NLRB 483 (2004).  In Brown University, the NLRB concluded that graduate student assistants had a predominately academic relationship with the school, rather than an economic relationship. 

If a probable UAW petition for review is granted by the NLRB Board, it will set the stage for the NLRB to reconsider the question of whether graduate student assistants are employees under the NLRA, and therefore have collective bargaining rights. 
Seattle Univ. Found Subject to NLRB Jurisdiction in 3rd RD Decision
Seattle University, NLRB Case No. 19-RC-122863

On August 17, 2015, the NLRB Region 19 Director issued his third decision concerning Seattle University's legal objections concerning the petition filed by SEIU seeking to represent a unit of all university non-tenure eligible contingent faculty except for those teaching in nursing. At the hearing, SEIU amended the petition to exclude other specific titles.
Following issuance of the NLRB's decision in Pacific Lutheran University, it remanded Seattle University to the Regional Director to reexamine the university's jurisdictional objection under NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979) and its assertion that full-time non-tenure track faculty are managerial under NLRB v. Yeshiva University, 444 U.S. 672 (1980). In Pacific Lutheran University, the NLRB refined the standards it will apply in determining whether to assert jurisdiction over a religiously-affiliated institution, and clarified the factors it will consider in deciding whether faculty are managerial under the National Labor Relations Act.  
After the remand, the NLRB Regional Director issued his first supplemental decision.  In the decision, the Regional Director ruled that the NLRB can properly assert jurisdiction without violating the First Amendment based upon the standards articulated in Pacific Lutheran University.  Additionally, he rejected the university's contention that the full-time contingent faculty members are managerial. 
On June 12, 2015, the NLRB Board granted Seattle University's Request for Review of the NLRB Region 19 Director's March 3, 2015 supplemental decision and order, and directed that the Regional Director reopen the record to permit the parties to present supplemental evidence in light of the NLRB decision in Pacific Lutheran University.  On July 10 and 13, 2015, the hearing was reopened and additional evidence presented.
Following the reopened hearing, the Regional Director issued his second supplemental decision limited to examining Seattle University's jurisdictional argument premised on NLRB v. Catholic Bishop of Chicago. The Regional Director found that the university holds itself out as providing a religious educational environment but failed to present sufficient evidence that the petitioned-for adjunct faculty were held out as a performing a religious function.  The Regional Director found no evidence that the at-issue faculty members were required to function as religious advisors, propagate the university's religious views, engage in religious training or conform to religious tenets as part of their employment.  In support of his conclusion, the Regional Director cited to job postings, appointment letters and the testimony of adjunct faculty witnesses. Lastly, the Regional Director concluded that the university does not hold out its faculty teaching theology or faculty at the School of Theology and Ministry as performing a specific religious function.
Iowa Court Upholds Decision Finding Graduate Student Fee Reimbursement Proposal to be Mandatorily Negotiable
Board of Regents, State of Iowa v. Iowa Public Employment Relations Board,
Case No. CVCV049496
On July 31, 2015, Iowa District Court Judge Karen A. Romano issued a decision upholding a February 25, 2015 final ruling by the Iowa Public Employment Relations Board (PERB) finding that a fee reimbursement proposal made by the union representing University of Iowa graduate students constituted a mandatory subject of negotiations under the Iowa Public Employment Relations Act.  Judge Romano concluded that Iowa PERB's finding that the fee reimbursement proposal constituted supplemental pay, one of seventeen mandatorily negotiable subjects under Iowa's public sector collective bargaining statute, was not irrational, illogical or wholly unjustifiable.
The Journal of Collective Bargaining in the Academy

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The Journal of Collective Bargaining in the Academy is the National Center's peer review on-line journal co-edited by Jeffrey Cross, Eastern Illinois University, and Steve Hicks, Associate Professor of English at Lock Haven University of Pennsylvania. We encourage scholars, practitioners and students in the fields of collective bargaining, labor representation and labor relations to submit articles for publication in future issues of our on-line journal, which is hosted by the Booth Library, Eastern Illinois University. Click here for Journal of Collective Bargaining in the Academy.
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