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

September 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.

16.    Meet Our Newest Research Interns: Amrika Ballyran and Nick Brennan

     Save the Date, April 3-5, 2016 for 43rd Annual Conference 
Our Future is Now 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.  

The theme of the conference will be Our Future is Now in Higher Education.  A call for papers, presentations and workshops along with additional conference details will be circulated in the near future. 
Proceedings from the 42nd Annual Conference Now Available
The National Center is pleased to announce that the proceedings from this year's annual conference are now available on-line. Click here for conference proceedings.
We thank the staff of Eastern Illinois University's Booth Library for their work in posting the proceedings. 
Webcasts and Podcats from the 42nd Annual Conference
Consistent with our educational and research mission, the National Center recorded  over a dozen panel presentations at our April 2015 conference for later use as webcasts and podcasts.  The webcasts and podcasts are now available on our website. 

They represent a sampling of the quality presentations made at the conference on  topics
including civility and academic freedom, contingent faculty, the perspectives of reporters covering higher education, the Affordable Care Act, faculty salary structures, faculty diversity and retention, the impact of NLRB's Pacific Lutheran University decision and electronic privacy.

Please inform your colleagues about the availability of the webcasts and podcasts.
  We thank Becca Pulliam from Please Repeat the Question Productions and Hunter College's ICIT Department for their quality production.
Call for Articles from the Journal of Collective Bargaining in the Academy
                                                             Journal of CBA Logo  

The National Center's Journal of Collective Bargaining in the Academy (JCBA) is accepting submissions from scholars, practitioners and students for its next scheduled edition.  JCBA is the National Center's peer review on-line journal co-edited by Jeffrey Cross, Associate Vice President for Academic Affairs, Eastern Illinois University, and Steve Hicks, Associate Professor of English, Lock Haven University of Pennsylvania.  It is hosted by the Booth Library. Click here for submissions to the Journal of Collective Bargaining in the Academy.  
Urbana-Champaign Adjunct Faculty Salary Increase ULP Dismissed
Board of Trustees of the University of Illinois, IELRB Case No. 2015-CA-0006-S

On August 20, 2015, the Illinois Educational Labor Relations Board (IELRB) issued a decision dismissing an unfair labor practice charge filed by the Campus Faculty Association, Non-Tenure Track Local 6546, AAUP, IFT-AFT, AFL-CIO (CFA).  CFA represents approximately 473 contingent faculty at the University of Illinois, Urbana-Champaign.  The charge alleged that the university violated the Illinois Educational Labor Relations Act when it failed to give CFA bargaining unit members the raises received by other university employees that went into effect August, 2014.   

CFA was certified by IELRB on July 8, 2014 as the exclusive representative for the contingent faculty unit at the University of Illinois, Urbana-Champaign.  Prior to the certification, the university had announced a merit-based salary program of 2.5%, effective in August 2014.  On August 4, 2014, the university announced that it would not unilaterally grant salary raises under the program to CFA bargaining unit members because it was legally obligated to maintain the status quo until a first contract was reached through negotiations with CFA.  In response, CFA filed an unfair labor practice charge alleging that the university failed to negotiate in good faith by freezing the wages of bargaining unit members and by reducing the salaries of bargaining unit members in retaliation for seeking union representation.

A core tenet of public and private sector collective bargaining law is that an employer may not unilaterally modify the status quo with respect to terms and conditions of employment for members of a bargaining unit during the course of negotiations for a first contract.  In general, an adjudicatory finding concerning what constitutes the status quo is determined by a factual examination of relevant past practices. 

In IELRB's August 20, 2015 decision dismissing CFA's charge, it found that the university had not unilaterally changed the status quo when contingent faculty members were not given the 2014 salary increases.  In reaching that conclusion, IELRB reasoned that the "well-established past history at the University, including in other bargaining units at UIUC and in other units represented by the Union, is that employees in newly established bargaining units do not receive salary/wage increases until negotiations for the initial collective bargaining agreement are completed."  Lastly, IELRB ruled that "there is no specific evidence that the University's failure to grant the non-tenure track bargaining unit faculty members the 2014-2015 salary/wage increase was improperly motivated."
Pennsylvania State System of Higher Education Temporarily Enjoined
from Requiring Faculty to Obtain Criminal Background Checks
APSCUF v. PASSHE, Docket No. 407 MD 2015

On September 17, 2015, Commonwealth Court of Pennsylvania Judge Dan Pellegrini granted a preliminary injunction against the Pennsylvania State System of Higher Education (PASSHE), which was sought by the Association of Pennsylvania State College and University Faculties (APSCUF). The injunction prohibits
PASSHE "from requiring all PASSHE faculty members to obtain the [criminal] background checks, pending a contrary arbitration decision and/or a decision of the Pennsylvania Labor Relations Board determining whether the subject of background checks where not required by law is a managerial right." Click here for the injunction at p. 5

The lawsuit, along with the related unfair labor practice and grievance, filed by APSCUF challenges PASSHE's efforts to implement a state law concerning criminal background checks for college faculty who teach courses that include high school students or who have regular direct contact with minors.
Rock Valley College Faculty Association on Strike
Last Wednesday, a strike by the Rock Valley College faculty commenced after 
the college and the Rock Valley College Faculty Association, Local 6211, IFT-AFT were unable to agree upon terms for a successor contract to the  collective bargaining agreement that expired on June 30, 2015.  The Association represents a bargaining unit of approximately 160 faculty, librarians and clinical skills nursing instructors. The college is located in Rockford, Illinois and it is a part of the Illinois Community College System.  According to a media report, faculty from Harper College, Elgin Community College and Kishwaukee College joined the striking Rock Valley College faculty last week on the picket line. 

Over the weekend, the Rock Valley College faculty voted to reject a five year proposed deal developed with the assistance of a federal mediator aimed at ending the strike. The Rock Valley College Faculty Association stated that the proposal was rejected because it "still results in a large number of faculty, especially those with families, losing significant overall compensation (wages and benefits) over the course of the 5-year contract."  With the rejection of the potential terms of settlement, the college  announced its intention to implement its final offer, which it made on September 15, 2015.

The Rock Valley College Faculty Association had filed a notice on August 31, 2015 with the Illinois Education Labor Relations Board (IELRB) stating its intention to commence a strike. The notice filed with IELRB stated that the parties had participated in 26 negotiation sessions for a successor agreement since January 2015, and two sessions with a mediator from the Federal Medication and Conciliation Services. 
Calif. PERB Reinstates Claim by Comm. Coll. Adjunct Faculty Member
Eric Moberg v. Hartnell Community College Dist,  
California PERB Case No. SF-CE-2984-E
The California Public Employment Relations Board (PERB) issued a recent decision reversing the dismissal of an unfair labor practice charge filed by Hartnell Community College adjunct faculty member Eric Moberg.  PERB directed that a complaint be issued against the college under the California Educational Employment Relations Act (EERA).  The agency's general counsel originally dismissed the charge on the pleadings.  In his charge, Professor Moberg alleged that the college had violated EERA by terminating him on September 24, 2012 based upon his protected activities, and by failing to pay him wages owed pursuant to an expired contract of employment.

In its decision, PERB found that Moberg's alleged threat to file an unfair labor practice constituted a protected activity under EERA, which was known to college representatives.  The agency also found that Moberg's allegations, if proven, would be sufficient to demonstrate an inference of discrimination by the college based on his protected activity.  Among the alleged facts cited by PERB was the close temporal proximity of the college's adverse actions following Moberg's threat to file a charge,  the college's shifting justifications for its actions, and its post-termination investigation of Moberg.  Lastly, the agency found that Moberg had pled sufficient facts to set forth a claim of unlawful interference with protected activity based on the allegation that a college representative stated that she would decide who would represent Moberg at the investigatory meeting.

However, PERB found that Moberg had failed to allege sufficient facts, which if proven, to demonstrate that he had engaged in protected activity when he sought to be represented at a disciplinary interview by someone unaffiliated with his union, the exclusive representative of adjuncts at the college.  The agency ruled that while California public employees have the right to engage in concerted activity for purposes of collective bargaining or for purposes of mutual aid or protection, that right does not extend to non-union representation during an interrogation.  
Florida PERC GC Dismisses Charge by Miami-Dade College Professor
Isabel Del Pino Allen v. Miami-Dade College Board of Trustees,
PERC Case No. CA-2015-062

Florida Public Employees Relations Commission (FERC) General Counsel  Stephen A. Meck summarily dismissed an unfair labor practice charge filed by Miami-Dade College Professor Isabel Del Pino Allen, a member of United Faculty of Miami-Dade College, who had been terminated by the college.

In her charge, Professor Allen alleged that she was terminated for engaging in protected activity under Florida's public sector collective bargaining statute when she: exercised her contractual right of academic freedom by accusing colleagues of plagiarism; discussed the situation with the news media; and alleged that her colleagues had violated the Textbook Affordability Act.  She also alleged in her charge that the college was unlawfully subsidizing the salary of the United Faculty of Miami-Dade College President, who was on union leave with his salary being reimbursed by the union pursuant to the terms of the collective bargaining agreement.   
FERC General Counsel Meck dismissed the charge on the grounds that it failed to allege a prima facie violation of Florida's public sector collective bargaining law.  He concluded that the accusations Allen made against her co-workers and her comments to the news media did not constitute protected activities under that law.  With respect to Professor Allen's allegations concerning the union president's salary, General Counsel Meck noted that paid union release is a mandatory subject of bargaining, and the collective bargaining agreement included a provision regarding union leave. 
SEIU Petition to Represent Attorneys Dismissed by the Massachusetts Commonwealth Employment Relations Board 
Committee for Public Counsel Services, CERB Case No. WMAP-15-4647

The Massachusetts Commonwealth Employment Relations Board has dismissed a petition filed by SEIU Local 888 seeking to represent a bargaining unit of attorneys and administrative staff employed by the Committee for Public Counsel Services, a state agency responsible for supervising and coordinating public defender services.  Although the at-issue employees are public employees, the petition was dismissed because the at-issue state agency is not an employer for purposes of collective bargaining as defined by the Massachusetts' public sector collective bargaining law. 
UAW Files Request for Review with NLRB Setting the Stage for Potential Reversal of Brown University Concerning Graduate Assistants
The New School, NLRB Case No. 02-RC-13009

The Student Employees at the New School-SENS, UAW (UAW) filed a request with the NLRB Board on August 20, 2015 seeking review of the decision by NLRB Regional Director Karen P. Fernbach to dismiss a UAW petition to represent a unit of approximately 350 graduate student assistants at the New School. In her decision, Regional Director Fernbach ruled that at-issue students were not employees under the National Labor Relations Act (NLRA) based upon the ruling in Brown University, 342 NLRB 483 (2004). 

In the petition for review, the UAW argues that the Brown University decision should be reversed because it is inconsistent with prior precedent including the earlier unanimous decision in New York University, 332 NLRB 1205 (2000), which held that graduate student assistants are employees for purposes of collective bargaining and representation under the NLRA. The New School has opposed the UAW request for review.
NLRB Regional Director Rejects Manhattan College's Jurisdictional Claim
Manhattan College, NLRB Case No. 02-RC-023543

After the NLRB issued its decision in Pacific Lutheran University, 361 NLRB No. 157 (2014),  it remanded to the NLRB Region 2 Director the case involving the representation petition filed by the Manhattan College Adjunct Faculty, NYSUT/AFT/NEA/AFL-CIO (CFA) seeking to the represent the following contingent faculty unit at Manhattan College:

Included : All individuals employed as part-time faculty with an adjunct academic rank who teach a minimum of a three (3) credit college degree level course for a full semester (or the equivalent hours of a semester length course);

Excluded: All other full and part-time employees, including visiting and full time faculty, regardless of teaching load, students who are employed by the College, and guards and supervisors as defined in the Act.

In its remand, the NLRB directed the NLRB Region 2 Director to reconsider the college's jurisdictional objection to the petition by its contingent faculty in light of the revised standards set forth in Pacific Lutheran University for determining whether to decline jurisdiction over faculty members at self-identified religious colleges and universities.  

On July 26, 2015, Regional Director Karen P. Fernbach issued a supplemental decision and order rejecting Manhattan College's contention that the NLRB should decline jurisdiction over the representation case.  Regional Director Fernbach ruled that Manhattan College holds itself out as providing a religious educational institution but failed to prove that it holds out the petition-for contingent faculty as performing a specific role in maintaining that religious educational environment.  Fernbach reached the latter conclusion based upon evidence demonstrating that the at-issue faculty are not expected to advance the school's religious mission, only to respect and support it. She found no evidence that they were expected to further the college's mission by serving as religious advisors, by propagating the Catholic faith, by engaging in religious training or by conforming to the tenets of Catholicism in the course of their job duties.

Manhattan College filed a request on September 9, 2015 with the NLRB Board seeking review of Regional Director Fernbach's supplemental decision and order.  CFA has filed a statement in opposition to Manhattan College's request for review.  Until there is a resolution of Manhattan College's request for review, the ballots of the representation election conducted by the NLRB on February 16 to March 9, 2011 will remain impounded.
NLRB Board Finds Berklee Satisfied Its Duty to Bargain Impact
Berklee College of Music, 362 NLRB No. 178 (2015)

In both the private and public sectors, an employer is obligated to negotiate mandatory subjects of negotiations as well as the impact of a managerial decision concerning non-mandatory subjects.

In Berklee College of Music, the NLRB Board recently reversed an Administrative Law Judge's decision, and it concluded that the school had not engaged in an unfair labor practice concerning negotiations over the impact of a new student population minimum for courses. 

In 2012, the college announced a new guideline for the fall semester establishing a five student minimum for most courses. The Berklee Faculty Union demanded impact bargaining over the new standardized minimum, and the parties met twice in early September 2012.  At the second meeting, the union explained its objections and the college articulated its reasons for adopting the changes.

According to the NLRB Board, however, the union failed to test the college's intent to bargain.  It noted that the union did not request information about the new class size minimum, and it did not seek the scheduling of additional bargaining sessions with the college. Under the facts and circumstances of the case, the NLRB found that the college had satisfied its obligation of providing the union with a meaningful opportunity to negotiate the impact of the change.
NLRB To Accept Electronic Signatures in Representation Cases
A recent  NLRB administrative change offers yet another clear example how technology is changing labor relations.  On September 1, 2015, NLRB General Counsel Richard Griffin issued a guidance memorandum approving the use of electronic signatures in a showing of interest submitted in support of a representation petition.  

In Memorandum GC 15-08, General Counsel Griffin concluded: 

"Regional Directors should accept electronic signatures as a means to support a showing of interest where, as with handwritten signatures, the electronic signature method chosen by the party provides the Regional Director with prima facie evidence  (1) that an employee has electronically signed a document purporting to state the employee's views regarding union representation and (2) that the petitioner has accurately transmitted that document to the Region. As is the law now with respect to handwritten signatures, the documents submitted by the parties are presumed to be valid.

If plausible evidence is submitted in a timely fashion that gives the Regional Director
reasonable cause to conclude that the showing of interest may be of questionable authenticity, then the Regional Director should conduct a further administrative investigation. As with investigations of handwritten signatures, that investigation may include taking affidavits both from the petitioner and from individual employees regarding the authenticity of their electronic signatures."
 National Center Welcomes Dr. Karen Stubaus to Board of Advisors
The National Center is pleased to announce that Dr. Karen R. Stubaus has joined our Board of Advisors.  Karen is Vice President for Academic Affairs and Administration at Rutgers, a position she has held since January 2013.  She serves as the responsible university administrative officer at Rutgers for a broad array of academic, budgetary, and strategic matters across the university's three geographical campuses in New Brunswick, Newark, and Camden, as well as for Rutgers Biomedical and Health Sciences (RBHS), a new Rutgers entity created effective July 1, 2013 with the integration of most of the University of Medicine and Dentistry of New Jersey into Rutgers.  Karen has assumed a leadership role in the development and implementation of the first New Brunswick Campus Strategic Plan in over two decades, as well as in the implementation of the university-wide strategic plan.  She is responsible for faculty and academic labor relations and provides the interface between Academic Affairs and General Counsel's Office on all faculty matters. Throughout her career Karen has been a leader in increasing the diversity of the faculty and in promoting women's leadership at all levels of the institution. A Phi Beta Kappa graduate of Douglass College, Karen received her Ph.D. in seventeenth-century American History from Rutgers.  She teaches whenever she is able in the School of Arts and Sciences Department of American Studies and in the Department of Women's and Gender Studies.  Her favorite course is "Death and Dying in American History," which her students note "is not nearly as grim as expected."
Meet Our Newest Research Interns: Amrika Ballyran and Nick Brennan
Amrika Ballyram is an economics major at Hunter College, who will be graduating at the end of the Fall 2015 semester.  Amrika has extensive experience working with data analysis and conducting research.  She plans to pursue a career filled with number crunching and to complete a graduate program in the field of statistics.  She has interned previously with the Washington Center for Internships and Academic Seminars in Washington D.C., Hunter College's Roosevelt House for Public Policy, the New York City Department of Corrections and for the New York State Assemblywoman, Nily Rozic.

Nicholas Brennan is a Hunter College graduate student pursuing a Master's in British and American Literature. Nick's penultimate academic objective is to defend the centrality of the court fool's marginality within Shakespearean drama. As a research intern at the National Center he intends to develop an understanding of working conditions, labor relations and collective bargaining at institutions of higher education.  He hopes that his internship experience will provide him with tools to be a future leader who fosters equitable environments both intellectually and economically hospitable toward the search for truth and meaning in life.
 Call for Papers from NEA's Thought & Action Journal
The NEA's Thought & Action journal has issued a call for papers for a special Spring 2016 issue entitled In Order to Form a More Perfect Union.  Click here for NEA's Call for Papers.
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National Center for the Study of Collective Bargaining in Higher Education and the Professions 
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