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

October 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.

October 2015 Edition Contents:


    April 3-5, 2016: National Center's 43rd Annual Conference 
Our Future is Now in Higher Education

The National Center's 2016 annual conference will take place on April 3-5, 2016 at the CUNY Graduate Center.  The theme of the conference is Our Future is Now in Higher Education.  Click here for Call for Papers, Presentations and Workshops.

Plenary Sessions:

The History, State, and Future of Shared Governance with Larry Gerber, Professor of History, Auburn University, and Barbara Lee, Senior Vice President for Academic Affairs, Rutgers University with moderator Scott Jaschik, Insider Higher Education (panel in formation)

Friedrichs v. CTA: What the Future May Bring with Ruben Garcia, Professor of Law, William S. Boyd School of Law, and Charlotte Garden, Associate Professor of Law, Seattle University School of Law with moderator Frederick P. Schaffer, General Counsel and Senior Vice Chancellor for Legal Affairs, CUNY. (panel in formation)

Further details concerning our 2016 conference will be announced in future E-Notes, and on our website. The conference is being underwritten by a grant from TIAA-CREF with additional support from Segal/Sibson.  
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 our peer review on-line journal.  It is 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.  The journal is hosted by the institutional repository of Booth Library, Eastern Illinois University.

The purposes of the journal are to advance research and scholarly thought related to academic collective bargaining, and to make relevant and pragmatic peer-reviewed research readily accessible to practitioners and to scholars in the field.  Submissions are encouraged from a wide community of scholars and practitioners including, but not limited to, college and university professors, graduate students, administrators, union leaders, and others with an interest in collective bargaining in the academy.   
Moraine Valley Comm. Coll. Faculty Leader's Discharge Found Unlawful
Moraine Valley Community College, IELRB Case No. 2014-CA-0017-C
The Illinois Educational Labor Relations Board (IELRB) issued a decision on September 18, 2015, which affirmed an administrative law judge decision finding that Moraine Valley Community College violated sections 14(a)(1) and (3) of the Illinois Education Labor Relations Act when it retaliated against former Moraine Valley Adjunct Faculty Organization (MVAFO) president Robin Meade by terminating her for engaging in union activity.


In 2012, Robin Meade was an adjunct faculty member at the college, and MVAFO president.  In her capacity as MVAFO president, Meade was asked to submit a letter in support of the college's reapplication for membership in the League for Innovation in the Community College (LICC). MVAFO surveyed its unit membership in January and February, 2013 concerning whether the college was innovative toward the adjunct faculty.  The survey found that 58.4% of the participants were of the opinion that the college was not innovative toward the adjunct faculty, with some commenting that they were not treated with respect.

On August 20, 2013, a letter was sent to LICC by Meade stating that she had refused the college's request to support its reapplication.  In the letter, which was drafted
with other union representatives, Meade criticized the college's treatment of adjunct faculty as a "disposable resource" and stated that adjunct faculty "are considered a separate, lower class of people...." Two days after the letter was sent, Meade received a termination notice citing the content of her letter as the reason for her discharge.  

In response to the termination, an unfair labor practice charge was filed with IERLB alleging that the college had violated the Illinois Education Labor Relations Act by terminating Meade for protected union activity.  In addition, Meade commenced a federal lawsuit alleging that the discharge violated her free speech rights under the First Amendment.   

IELRB Decision and Analysis

In its decision, IELRB reaffirmed the broad scope of protections under the Illinois education collective bargaining law, and other similar statutes, for statements made as a part of union activity.  When statements are made by an employee in her or his role as a union official, those statements are entitled "to an extremely high degree of protection" and the employer has "a very heavy burden" of demonstrating that they are unprotected because they were deliberately or maliciously false. The breadth of protections for union-related speech underscores the very real legal problems that can result when colleges and universities overreact to speech and activities by union representatives.

Remedial Order

The rights IELRB found violated were collective rights guaranteed by the Illinois Education Labor Relations Act: to be free from interference, coercion and retaliation for engaging in protected union activities.  As a result, the college was ordered to cease and desist from retaliating against employees aimed at discouraging membership in their union and from interfering with the exercise of rights guaranteed by the statute.  With respect to Meade, the college was ordered to offer her full and unconditional reinstatement, to make her whole for all loses resulting from her termination with interest at a rate of 7%, and to expunge the institution's records of any reference to the discharge. Lastly, the college was ordered to post a notice informing the unit membership that it will abide by the IELRB decision and order, and to inform the agency's Executive Director within 35 days of the steps it has taken to comply with the order.

Impact of the IELRB Decision on Meade's First Amendment Claim 

On October 30, 2014, the United States Court of Appeals for the Seventh Circuit reinstated Meade's First Amendment lawsuit finding that "[t]he content of Meade's letter places it squarely among matters that are of public concern," and therefore subject to constitutional protections. In a recent post, Meade stated that her attorneys will now utilize the IERLB decision to support her motion for summary judgment before the United States District Court judge who is hearing her First Amendment lawsuit.  It is probable that Meade will argue in her motion that the final factual findings made by IELRB precludes the college from relitigating the question of its motivation in terminating her and other factual questions determined in the agency's decision.  Under a legal doctrine known as a collateral estoppel, a party cannot relitigate adverse factual determinations made in prior litigation so long as certain conditions have been met.  A favorable decision by the federal judge on Meade's motion for summary judgement might result in her winning the merits of her First Amendment claim without the necessity of a federal trial.     
Reinstatement of Pennsylvania Professor Denied Tenure Affirmed
East Stroudsburg University of Pennsylvania v. APSCUF, Case No. 85, C.D. 2015

The Commonwealth Court of Pennsylvania issued a decision on October 19, 2015 affirming an arbitration decision and award sustaining a grievance by East Stroudsburg University of Pennsylvania tenure-track assistant chemistry professor John Freeman. In his grievance, Freeman challenged the university's denial of his tenure application based on his lack of scholarly growth.  The grievance was processed to arbitration by Freeman's union, the Association of Pennsylvania State College and University Faculties.

The arbitrator found that the university violated the collectively negotiated tenure review procedures when the university president made her decision to deny Freeman's tenure application without first reviewing the recommendations of the university-wide tenure committee and the department chairperson, and after improperly consulting with the university provost concerning the application.  Based on the finding of procedural violations of the tenure review process, the arbitrator ordered that Freeman be reinstated to his faculty position with an opportunity to reapply for tenure, which would be determined by an independent official other than the university president or provost.

The court found that the arbitrator's finding that the president was contractually obligated to consider the recommendations of the university tenure committee and the department chairperson before making a tenure decision was rationally derived from the terms of the collective bargaining agreement. Similarly, the court concluded that the contract does not authorize the president to consult with individuals not specified in the negotiated tenure-review process, such as the provost. Finally, the court rejected the university's argument that the order directing the designation of a neutral to determine Freeman's reapplication for tenure violated Pennsylvania law or public policy.
Barnard College Contingent Faculty Vote for UAW Representation
Barnard College, NLRB Case No. 02-RC-145022

NLRB Region 2 conducted a tally of ballots on October 2, 2015 concerning the representation petition filed by the UAW to represent a bargaining unit of approximately 207 full-time and part-time contingent faculty at Barnard College. Of the 207 eligible faculty members, 114 voted in favor of unionization, 11 voted against, and one ballot was challenged.
On October 13, 2015, the NLRB Region 2 Director certified Barnard Contingent Faculty, UAW, Local 2110 as the exclusive representative for the following unit:

Included: The following off-ladder officers of instruction who teach classes at Barnard College on a full- or part-time basis: 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.

The parties could not agree on the inclusion or exclusion of employees in the title Visiting Assistant Professor, Visiting Associate Professor, Visiting Professor, and Tinker Visiting Professor in the bargaining unit. Accordingly, employees in the title Visiting Assistant Professor, Visiting Associate Professor, Visiting Professor, and Tinker Visiting Professor are neither included or excluded from bargaining unit.  
First Contract Ratified by Adjunct Faculty at Maryland Inst. Coll. of Arts
The SEIU-represented adjunct faculty unit at the Maryland Institute College of Arts on September 16, 2015 overwhelmingly  ratified a first contract for a three year period ending June 30, 2018.  Contract highlights include an increased salary scale based on teaching experience, a just cause standard for discipline, equal academic freedom rights as full time faculty, a comprehensive evaluation process, protection in reappointment for courses previously taught, and participation in a labor-management collaboration committee. A member of the adjunct faculty union bargaining team published an article in the Baltimore Sun concerning the first contract. 
Point Park Univ. and USW Reach Tentative Adjunct Faculty Contract
On July 7, 2014, the NLRB certified United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers Union (USW) to represent a unit of approximately 422 adjunct faculty at Point Park University.  The certification resulted from a tally of ballots on June 24, 2014 showing that 172 voted in favor of unionization, and 79 voted against. 

The following is the adjunct faculty unit description:

All adjunct faculty employed by the Employer at the following Pennsylvania locations: Point Park University Campus, Pittsburgh, Butler County Community College/Cranberry Branch, Cranberry Township, Canon-McMillan High School/ Canonsburg, ERT, Pittsburgh, Franklin Regional High School, Murrysville, GAI Consultants, Homestead, North Allegheny School District Central Administrative Office, Pittsburgh, Propel Braddock Hills High School, Forest Hills, Seneca Valley Senior High School, Harmony, Shady Lane School, Pittsburgh, PA, Upper St. Clair High School, Upper St. Clair, US Steel Corporation Mon Valley Works Training Hub, Duquesne; excluding all full-time faculty, graduate students, tenure-track faculty, tenured faculty, all other employees and guards, and supervisors as defined in the Act.

On September 23, 2015, USW and Point Park University announced that they had reached a tentative first time contract.  In a joint statement, the parties stated that the agreement would provide "significant" wage increases and "improved job security" through August 1, 2019. The details of the agreement will not be disclosed until a ratification vote, which will take place via e-mail ballots according to the statement.  

Tentative Successor Agreement Reached Between IFO and Minnesota State Colleges and Universities System for FY 2015-2017
The Inter Faculty Organization (IFO) and the Minnesota State Colleges and Universities System have reached a successor tentative agreement for fiscal years 2015-2017.  The ratification vote by IFO members was conducted by electronic ballots, with the election poll ending on October 16, 2015. 
Univ. of Oregon and United Academics Reach 2015-2018 Contract
According to posts by United Academics, AAUP/AFT, AFL-CIO (UA), the University of Oregon and UA have entered into a new contract for the period of July 1, 2015 to June 30, 2018. The agreement is the successor to the parties' first contract that expired on June 30, 2015.

UA now represents the following combined faculty and research assistant bargaining unit:

All full-time and part-time research and instructional faculty employed by the University of Oregon, which includes tenure-related faculty, non-tenure-track faculty, adjunct faculty, post-retired or emeritus faculty, library faculty, and officers of research, including research assistants, research associates, and postdoctoral scholars, but excluding (1) all supervisors, including but not limited to the President, the Provost, Vice Presidents, Vice Provosts, Associate Vice Provosts, Assistant Vice Provosts, Deans, Associate Deans, Assistant Deans and Department Heads; (2) all Law School faculty; (3) all EC Cares faculty; and (4) all confidential employees.
Emerson Coll. LA Part-Time Faculty Seek to Join AAUP Represented Unit
The part-time faculty at Emerson College's Los Angeles center have requested voluntary recognition from the college to be added to an existing bargaining unit, represented by Affiliated Faculty of Emerson College-AAUP.  The following is the faculty bargaining unit currently recognized by Emerson College:  
All regular part-time teaching faculty employed during the academic year to teach at least one (1) course of no less than three (3) credits in the Day School or the Continuing Education Program at the College's Boston, Massachusetts campus, but excluding all full-time faculty, full-time faculty with fixed-term appointments, emeritus faculty, music lesson faculty, accompanists, graduate students, teaching assistants, academic deans, academic department chairs, administrators, staff employees, librarians, library employees, coaches, confidential employees, all other employees, guards and supervisors as defined in the Act.

If Emerson College rejects the request by its Los Angeles part-time faculty to be added to the existing unit, the union can seek to have those faculty members accreted through a grievance claiming that they are covered under the terms of the recognition clause in the collective bargaining agreement.  Alternatively, a unit clarification petition can be filed with the NLRB for a determination as to whether the Los Angeles part-time faculty should be included in or excluded from the existing unit.  Lastly, a representation petition can be filed for certification of a representative of a separate bargaining unit comprised of Emerson College part-time faculty in Los Angeles.
Election Ordered Concerning Temple PT Faculty Being Added to FT Unit
Temple University, Case No. PERA-R.14-400-E

Pennsylvania Labor Relations Board Hearing Examiner John Pozniak issued a decision on September 29, 2015 ordering an election among part-time faculty at Temple University's undergraduate schools and colleges concerning whether they wish to be included in the existing bargaining unit of full-time faculty and other professionals.  The decision was issued following six days of hearing after a representation petition was filed by the Temple Association of University Professionals (TAUP) on December 17, 2014 seeking to add approximately 1,040 part-time faculty to the TAUP-represented bargaining unit.  The current TAUP-represented bargaining unit includes approximately 500 full-time tenured faculty, 150 tenure-track faculty, 600 non-tenure track faculty, 25 librarians and 25 academic professionals.   

In directing an election, Hearing Officer Prozniak concluded that the part-time faculty share an identifiable community of interest with faculty in the existing unit because their teaching responsibilities, courses, campuses and classrooms are virtually identical to the full-time faculty.  In addition, he found they have nearly the same educational requirements as full-time faculty, they regularly interact with full-time faculty, and are subject to many of the same faculty policies.

The administrative decision rejected various arguments raised by the university in opposition to the petition.  Differences between part-time and full-time faculty, such as roles in shared governance, research and service requirements, workload and eligibility for tenure, were determined to be "minor" and "reflect the division of labor at a major university."  The hearing officer also rejected the university's contention that accretion would be inappropriate based on potential tensions that might arise between the full-time and the part-time faculty.
Cornell Graduate Students Affiliate with AFT and Harvard Graduate Students Partner with UAW
Graduate student assistants at Cornell University have voted in favor of their organization, Cornell Graduate Students United (CGSU), affiliating with the New York State United Teachers, AFT.  In announcing the affiliation, CGSU stated that its concerns include "stipends, workers' compensation, sixth-and seventh-year funding, and a voice in university affairs."

At Harvard University, the Harvard Graduate Student Union, which is seeking to unionize students at the Graduate School of Arts and Sciences, has entered into a  partnership with the UAW.  Harvard President Drew G. Faust has stated that the university  opposes graduate student unionization, contending that it is "not appropriate and is not what is represented by the experience of graduate students in the University." 

The recently announced alliances at Cornell and Harvard between graduate student organizations and national labor unions come at a time when the NLRB is considering a petition for review filed by the UAW seeking reconsideration of the holding in Brown University, 342 NLRB 483 (2004) that graduate students at private universities are not considered employees under the National Labor Relations Act (NLRA) and are not entitled to federal collective bargaining protections.
Adjunct Faculty Member Eric Moberg Wins Again at California PERB
Eric Moberg v. Cabrillo Community College District,
California PERB Case No. SF-CE-2994-E

In our September 2015 E-Note we reported on a decision by the California Public Employment Relations Board (PERB) reinstating an unfair labor practice charge filed by adjunct faculty member Eric Moberg against Hartnell Community College District (Hartnell), and directing that a complaint be issued against the college under the California Educational Employment Relations Act (EERA).

On September 17, 2015, California PERB handed Moberg another procedural victory when it reversed the dismissal of a separate but related unfair labor practice charge he filed against Cabrillo Community College District (Cabrillo).  In that charge, Moberg asserts that the Cabrillo withdrew a tentative offer of employment, placed him on an immediate paid leave, and decided to not offer him future employment, after it learned of his original charge against Hartnell.

In its decision, California PERB concluded that Moberg sufficiently plead a prima facie case of retaliation against Cabrillo but not for interference, under EERA. The four factors necessary to establish a prima facie case for retaliation are: (1) the employee exercised protected rights, (2) the employer had knowledge of the employee's exercise of those rights, (3) the employer took an adverse action, and (4) the employer acted adversely because the employee exercised protected rights.

In its decision, the agency found that Moberg had made sufficient allegations in his charge, which if proven, would demonstrate 
a prima facie case of retaliation against Cabrillo.  The school learned of the unfair labor practice charge against Hartnell from a Moberg e-mail, and then imposed adverse actions against him by withdrawing his tentative offer of employment, placing him on paid leave, and denying him all future employment.  The agency concluded that the close temporal proximity of the adverse actions after Cabrillo learned of the charge against Hartnell, and the alleged pretextual nature of Cabrillo's investigation into Moberg's credentials supported an inference by improper motivation by Cabrillo under EERA.   
Micropower Ordered to Negotiate Impact of Lay-offs with Back Pay
Micropower USA Corp. 363 NLRB No. 14 (2015)

On April 14, 2014, the NLRB certified New York State United Teachers (NYSUT), AFT, AFL-CIO as the exclusive representative of the following bargaining unit of teachers working for Micropower USA Corp.:

All full-time and regular part-time teachers employed by Respondent at its faciilty located at 137 West 25th Street, New York, New York, excluding all other employees and guards and supervisors as defined by the Act. 

Following layoffs on August 22, 2014, Micropower refused a demand by NYSUT for impact negotiations, resulting in the filing of an unfair labor practice charge.  The NLRB recently entered a default judgment against Micropower based on its failure to bargain collectively and in good faith with the NYSUT over the effects of its decision to lay-off bargaining unit employees. The NLRB ordered Micropower to bargain with NYSUT concerning its request to negotiate about the effects of the lay-off decision. In addition, it was ordered to make the employees whole for their losses, including back wages, resulting from the unfair labor practice.   
National Center Welcomes Risa Lieberwitz to the Board of Advisors
The National Center is pleased to announce that Risa Lieberwitz has joined our Board of Advisors. Professor Lieberwitz is a Professor of Labor and Employment Law in the Cornell University School of Industrial and Labor Relations (ILR), where she has been a professor since 1982. Risa is an associate in the Worker Institute at Cornell and a co-director of the Cornell University Law and Society minor. She currently holds an appointment as General Counsel of the American Association of University Professors (AAUP). Risa has also served as a member of AAUP Committee A on Academic Freedom and Tenure. She teaches a wide range of courses, including Labor and Employment Law, Constitutional Aspects of Labor and Employment Law, Employment Discrimination Law, Arbitration, and Theories of Equality and Their Application in the Workplace. Her research addresses these areas, with a current focus on academic freedom in higher education.
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