for the S tudy of C ollective B argaining in 
H igher E ducation and the P rofessions
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February 2017
The National Center E-Note is a monthly electronic newsletter containing research and analysis relevant to unionization and collective bargaining in higher education and the professions.

1.     Reminder: Register for the National Center's 2017 Annual Conference
 Reminder: Register for National Center's 2017 Annual Conference 
National Center Conference
March 26-28, 2017

Creating Solutions in Challenging Times
You can register  online or by mail for the National Center's 44th Annual conference at the CUNY Graduate Center

Early conference registration and hotel reservations are strongly encouraged.  
The 2017 conference is underwritten with a grant from  TIAA.   
Pre-Register for Workshops and Panel on Lincoln, Labor, and Race
Pre-registration is required for the conference's interactive workshop trainings, and special panel discussion on Lincoln, Labor, and Race.  Early pre-registration is recommended. 
The workshops will be held on Sunday, March 26, 2017 from 1:30 p.m.-5:45 p.m 
The panel on Lincoln, Labor, and Race will be held on Monday, March 27, 2017 from 3:45 p.m.-5:15 p.m.

Pre-register here for Workshop Training on Unionization and Collective Bargaining for Administrators with Nicholas DiGiovanni, Morgan, Brown & Joy, LLP, Karen   Stubaus, Vice President, Academic Affairs & Administration, Rutgers University, and Margaret E. Winters, Wayne State University.  This session is restricted to university and college administrators only and the session is closed to the media.
Pre-register here for  Workshop Training on Unionization and Collective Bargaining for Academic Labor with David Cecil, United Academics, AFT-AAUP Executive Director, University of Oregon, Deborah Williams, NEA Faculty Association President and Lead Negotiator, Johnson County Community College, Larry Alcoff, SEIU, and moderator and facilitator, Phadra Williams, NEA. T
his session is restricted to academic labor and labor representatives and the session is closed to media.

Pre-register here for  Workshop Training on Financial Data Analysis with Howard Bunsis, Chair, AAUP Collective Bargaining Congress, Professor, Accounting, Eastern Michigan University, Bradley Wells, California State University Associate Vice Chancellor for Business & Finance, and moderator Jeffery Frumkin, Associate Vice Provost and Senior Director, Academic Human Resources, University of Michigan.

Pre-register here for  Workshop Training on Interest Based Bargaining in Higher Education  with Shelly Chabon, Vice Provost Academic Personnel and Leadership Development, Portland State University, Janet Gillman, State Conciliator, Oregon Employment Relations Board Conciliation Services, Pam Miller, Immediate Past President PSU-AAUP, Leanne Serbulo, Former Vice President Collective Bargaining and Current Bargaining Team Member, PSU-AAUP and Phil Lesch, Executive Director, PSU-AAUP, and moderator Liesl K. Zwicklbauer, Assistant Vice Chancellor for Employee Relations, State University of New York.

Pre-register here for  Workshop Training on Effective Use of Social Media in Higher Education  with Ken Mash, APSCUF President, Kathryn Morton, APSCUF Communication Director,  Jamie Tanner, Employee Relations Manager, Valdosta State University and Chairman, CUPA-HR's Southern Region Board of Directors, and moderator Sheryl Barton, MSCF Negotiations Team Member. 
Pre-register here  for  Lincoln, Labor, and Race  with  Harold Holzer, Jonathan F. Fanton Director, Roosevelt House Public Policy Institute, Hunter College,  Edna Greene Medford, Chair, Howard University Department of History  James Oakes, Distinguished Professor, CUNY Graduate Center. 
Yale University: Commentaries on the NLRB RD's Micro-Units Decision
Yale University, NLRB Case Nos. 01-RC-183014, 01-RC-183016, 01-RC-183022, 01-RC-183025, 01-RC-183031, 01-RC-183038, 01-RC-183039, 01-RC-183043,

On January 25, 2017, NLRB Regional Director John J. Walsh issued a Decision and Direction of Election concerning the representation petitions filed by UNITE-HERE seeking to represent graduate student teaching fellows in nine separate departmentally-based bargaining units. 

In his decision, Regional Director Walsh rejected Yale's arguments that the at-issue graduate students are not employees for purposes of the National Labor Relations Act (NLRA).  He also found that the petitioned-for departmentally based bargaining units were appropriate under the standards set forth in the NLRB Boar's decision in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011). Details concerning the manual elections for the nine bargaining units have not yet been announced.

The subject of micro-units in higher education was recently discussed in an article by Barnett Horowitz published in the recent issue of the Journal of Collective Bargaining in the Academy. 

Following issuance of the Yale University decision, we asked two experienced attorneys in the field of higher education collective bargaining to provide commentary from their distinct perspectives:  Nicholas DiGiovanni, Jr., Morgan, Brown & Joy
, and Carl J. Levine, Levy Ratner, P.C.  Both Mr. DiGiovanni and Mr. Levine will be participating in this year's annual conference, and we thank them for their continued support for, and participation in, National Center activities.
Comments on Yale University Decision from Region One  
On January 25, 2017, the Regional Director for Region One of the NLRB issued his decision in the Yale University cases. UNITE HERE has filed petitions to represent teaching fellows in nine different departments of the University (English; East Asian Language and Literature; History; History of Art; Political Science; Sociology; Physics; Geology and Geophysics; and Mathematics).

The number of teaching fellows in the nine units ranged from a low of 18 in Sociology to a high of 64 in Political Science, with most departments having between 20-30 such fellows.

Yale opposed the petitions on the grounds that: 1) such teaching fellows are not statutory employees, despite the Trustees of Columbia University decision. 364 NLRB No. 90 (2016) because Columbia University was wrongly decided and, alternatively, that the Yale teaching fellows were distinguishable from those at Columbia; and 2) even if they are statutory employees, the proposed department units were inappropriate. Yale contended that the smallest appropriate unit would instead be one that included all teaching fellows, university-wide.

The Regional Director permitted Yale to litigate the issue of whether the Yale teaching fellows were different from the graduate student employees in Columbia University through an offer of proof. The Regional Director found that Yale failed to demonstrate that its teaching fellows were sufficiently distinct form the student assistants found to be employees at Columbia.

The Regional Director also found that the nine petitioned-for units were appropriate for bargaining and ordered elections in each of the nine units.

While the employee status of graduate teaching and research assistants remains a controversial issue, the Yale University decision is much more noteworthy for the Regional Director's ruling on department units. Since 2011 and the issuance of its decision in Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 934 (2011), enforced sub nom Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir., 2013), the NLRB has issued a series of decisions authorizing elections in smaller units. The Board in Specialty Healthcare had held that when a petitioned-for unit consists of employees who are "readily identifiable"as a group and Board finds that the employees in the group share a community of interest, the Board will find the petitioned-for unit to be an appropriate unit, despite a contention that employees in the group could also be placed in a larger unit which would also be appropriate - or even more appropriate - unless the employer can demonstrate that employees in the larger unit share an "overwhelming" community of interest with those in the petitioned unit. Specialty Healthcare at 945-946.

Here, the Regional Director found that the teaching fellows in each department constituted a "readily identifiable" group, which simply meant that the description of the unit was sufficient to specify the group of employees the union seeks, despite claims that the teaching fellow classification is not specific to any one department but is common to all departments. The Board in Specialty Healthcare said that a union is not required to seek all employees in the same classification where the unit sought tracks some other line drawn by the employer, in this case, the department structure.

The Regional Director easily found a community of interest among the teaching fellows in any one department due to the facts that they work in the same department; share a common classification; and perform the same type of duties. There was functional integration since they all taught undergraduate courses offered by their respective departments.   They also had regular work-related contact with each other and were geographically close to one another.   They had the same pay and benefits and roughly worked the same hours.

While Yale claimed that organizationally academic departments were "neither administrative nor operational in nature," the Regional Director nevertheless found that the departments did constitute a meaningful administrative grouping. He rejected Yale's assertion that academic departments are merely attempts to divide up "multidimensional intellectual space" rather than an administrative line drawn by Yale itself.

Having found a community of interest among teaching fellows in a department, the Regional Director also found that Yale had not demonstrated that they shared an "overwhelming" community of interest with all teaching fellows university-wide. Significantly, the decision noted that, while there were certainly factors supporting a university-wide unit, "the community of interest factors do not overlap almost completely as required by Specialty Healthcare." Thus, there was no common immediate supervision of fellows in different departments. Hiring is exercised locally. Fellows in a department - even though they perform duties similar in nature to all fellows - have "meaningful unique qualifications, training and skills in the subject matter of their courses." There was also little evidence of work related contact between teaching fellows in different departments, and no evidence of permanent transfers between departments.

Noting that evidence of area practice and the history of bargaining in the industry can be relevant considerations, the Regional Director noted that only New York University currently has a unit of university-wide graduate teachers, and he completely rejected evidence of pattern bargaining among graduate teachers in the public sector and adjunct faculty at private sector institutions.

The long-range impact of this decision remains to be seen, but it raises fundamental issues not only for future graduate student employee petitions, but also for future units of adjunct faculty, contingent faculty, and even tenured/tenure track faculty. The decision is a boon to all unions in that it will allow the union to get its "foot in the door" in any college by focusing on a small department first and leveraging a successful campaign there into broader success over time. A union petitioning for all of the contingent faculty in an English department is probably going to be capable of establishing 1) a general community of interest among a "recognizable group" of employees and 2) while such faculty could very well fit into a larger college-wide unit, there would be a number of distinguishing factors that could echo what the Regional Director found in the Yale case. For example, organizationally, they would be based in a department, a line drawn by the administration, and probably in a separate physical location from other faculty. They would certainly have special skills that would differentiate them from, say, Physics department faculty. Teaching writing would be a unique skill that a biology faculty member would not necessarily possess. They would be separately supervised by a department chair, perhaps even more pointedly than the Yale teaching fellows. Thus, even though they would share similar community of interest factors with all faculty (common benefits, policies, functions, etc.), one can imagine a Regional Director easily saying that the community of interest factors "do not overlap completely."

For a union who might struggle to get 30% showing of interest to file a petition for, say, 300 faculty in a college, the Yale University decision opens the possibility of the union instead focusing first on a department of 10 faculty where they have particular support, easily achieving 30% for filing, winning an election in that small unit, and then gradually adding other department units over time. Indeed, while NLRA Section (c) (5) states pointedly that "extent of organization" cannot be a controlling factor in determining bargaining units, the Yale University decision - and indeed the entire line of Specialty Healthcare cases - does just that. Indeed, nowhere in the Yale University decision does the Regional Director even consider that statutory prohibition.

The result of all this will be a multiplicity of bargaining units for essentially the same classification of employees. An institution will be forced to potentially expend time, effort and money on multiple rounds of bargaining all of which will be dealing with the same type of employee - faculty. The possibilities of whipsaw bargaining, inconsistent bargaining platforms by the differing faculty unions and varying policies and benefits will become more likely.

But more important, these smaller department units will inevitably create a climate where harmonious labor relations may more easily break down due to the nuances of each department's bargaining goals, agendas, and personalities. In essence, the NLRB is setting up a scenario where labor peace is more likely to collapse to satisfy union organizing interests. While the Regional Director chose to ignore the public sector experience - where larger units are favored in order to promote efficiency of government and sound labor relations - the total breakdown of units into their smallest components, as these current cases suggest, cannot be good for harmonious labor relations. Reasonable minds can certainly differ on the scope of bargaining units, but the fact that employees doing the very same job for an employer can now be carved up into an array of separate units is a troublesome development.

Finally, for tenured faculty and Yeshiva University arguments, the Yale University decision also suggests a pathway for a union to sidestep Yeshiva and actually organize tenured/tenure track faculty more readily. If a union files a petition for a unit of, say, all tenured/tenure track faculty only in the Political Science department, the traditional arguments under Yeshiva - as interpreted by the Board in Pacific Lutheran University,
361 NLRB No. 157 (2014) -may be more difficult for a university to make, assuming a unit limited to the political science department alone is otherwise appropriate, as the Yale University decision would suggest. For example, in determining managerial status, the Board has laid heavy stress on the relative numbers of petitioned faculty serving on "managerial" committees, pointedly rejecting arguments that contingent faculty, for example, are managerial because, in part, they only constituted a small minority of faculty on important committees. Can the same argument be used in a case where the political science faculty may only have one or two representatives on managerial committees and thus cannot be deemed managerial? Time will tell, but, of course, with a new Republican administration coming into office and the makeup of the NLRB changing by the end of 2017, it is possible that a future Board may roll back or trim the sails of these department unit decisions in the years ahead.
New Opportunities for Organizing Academic Labor 
On January 25, 2017, in Yale University, the NLRB Region 1 Director, relying on Trustees of Columbia University, 364 NLRB No. 90 (2016) ( Columbia University). found that graduate student employees (GSEs) at Yale are statutory employees. This finding was not surprising. The Columbia University decision overturned Brown University, 342 NLRB 483 (2004) and returned the Board to its previous position articulated in New York University, 332 NLRB 1205 (2000), finding that GSEs at Columbia met the common law definition of employee and were entitled to the protections of the NLRA. The Columbia University decision has sparked the interest of GSEs at Yale University and other private universities throughout the country, leading to a flurry of new organizing campaigns, and litigation before the NLRB.

In Yale University, the NLRB Region 1 Director applied Specialty Healthcare and Rehabilitation Center of Mobile. 357 NLRB 934 (2011) ( Specialty Healthcare) to academic workers for the first time to approve nine micro-bargaining units, each covering an individual academic department. While units of academic workers sometimes exclude certain schools, or even departments, it is rare, though not unheard of, for such units to be comprised of less than a majority of instructors in a given classification. For example, AFM Local 802 organized the adjuncts at the New School's Jazz Program prior to ACT-UAW Local 7902 organizing the adjuncts in a unit covering every other school and program operated by the New School.
In Specialty Healthcare, the NLRB, after a 20 year hiatus, returned to a more deferential standard concerning which petitioned-for units would be approved as appropriate. Specifically, the Board held that a petitioner need only petition for an appropriate unit - and that such a unit would be approved even if there are other possible appropriate units, or even a more appropriate unit. The Board held that the burden was on the employer to show that a petitioned-for unit was not appropriate.
If Yale University is upheld on review, which is far from assured given the changes which are likely to come to the NLRB (and the federal courts) as a result of the recent presidential election, it is likely to have profound effects, not only for organizing among GSEs, but also among tenure-track and non-tenure track faculty.
In Pacific Lutheran University, 361 NLRB No. 157 (2014), the NLRB clarified and revised the rules set forth in Yeshiva University , 444 U.S. 672 (1980) concerning when faculty members are considered managers, and thus not covered by the protections of the NLRA. In reaching its decision, the Board explicitly referenced the increasing corporatization of the academy. 361 NLRB No. 157, slip op. at 19. The Board concluded that, henceforth, effective control of school-wide policy matters, particularly academic programs, enrollment and finances, would be given more weight in determining managerial status, than control over academic policies and personnel decisions. Id., slip op. at 14-17. It also suggested that the standard for establishing managerial status would be hard to meet for contingent faculty members. Id. at 20. Applying this new standard the Board approved a mixed unit of part-time and full-time contingent faculty, rejecting a claim that the full-time faculty at issue were managers. Since its issuance, and in reliance on the standards it announced, multiple such mixed units have been certified.To the extent that Pacific Lutheran University has led to an increase in organizing among full-time faculty, if Yale University is upheld, this trend is likely to continue and accelerate.

The ability to organize micro-units under Specialty Healthcare may, in some cases, provide unions with an organizational advantage. The decision to organize micro-units at Yale, in some but not all academic departments, was likely driven, at least in part, by the fact that the departments chosen had a greater density of union supporters. Assuming the union wins the elections, and prevails on any appeals, it seems likely that the union will use its successes as the basis for organizing additional departments. While such a strategy has certain drawbacks, e.g., the diminution of bargaining power that results from representing fewer of an employer's employees, it might prove useful in cases where union support varies considerably between departments or schools. Where employee status under the NLRA can otherwise be established, micro-units will allow unions to organize full-time contingent and tenure-track faculty in departments and schools which support union representation, providing an opportunity for them to prove their value to those who are initially more hesitant about supporting unionization.
The Yale University decision, and the option of organizing micro-units, may also be helpful to union organizers in cases where managerial status of full-time faculty (either contingent or tenure track) is at issue. At some institutions the norms and practices concerning governance vary between different departments and schools. For example, in Pacific Lutheran University, the employer apparently presented evidence that its Humanities Division had recently recommended a greater role in governance for full-time contingent faculty. The Board rejected this evidence to the extent that the employer had not shown that any greater role had actually been implemented. Id. at 21. However, had the evidence shown that they had in fact been given a greater role sufficient to establish managerial status, the union might have, nonetheless, been able to organize micro-units in the university's other divisions.  

Faculty members may have varying degrees of authority within individual departments, divisions and schools, and they may have different rates of participation in university-wide governance committees. In some university subdivisions the facts may support a finding of managerial status, but not in others. The application of Specialty Healthcare to the academy, combined with the standards articulated in Pacific Lutheran University, allows for the possibility of organizing full-time faculty who do not meet the criteria for managerial status, even if others at the same institution do, thus providing new opportunities for organizing.
The continued corporatization of the academy, and favorable rulings by the NLRB that have applied the plain language of the NLRA has led to a surge of organizing activity at private colleges and universities. Working conditions have been eroded by the academy's ever increasing reliance on contingent labor which has led to a degradation of both wages and job security, as well as by the concomitant weakening of the structure and practice of academic freedom and governance. These trends have led to an increased need for collective representation and action, and an increased willingness by academic labor to organize.
It is likely that this groundswell in organizing in higher education will continue among part-time faculty as well as other groups including full-time contingent faculty, and student employees.  If the recent NLRB higher education decisions are ultimately upheld on review, they may also lead to an increase in organizing activity and unionization among full-time tenured and tenure-track faculty. 

At a time when the corporatization of the academy makes the need for collective representation more acute, the Board's recent decisions support the stated purpose of the NLRA, ". . . encouraging the practice . . . of collective bargaining and . . . protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing . . . ." 29 U.S.C. § 151. If upheld these decisions will serve to protect the interests of the academy by protecting the rights of those that labor there.   C4
Loyola University Chicago: GSE Vote in Favor of Unionization
Loyola University Chicago, NLRB Case No. 13-RC-189548

On January 9, 2017, NLRB Regional Director Peter Sung Ohr issued a Decision and Direction of Election concerning an SEIU petition seeking to represent graduate student employees at Loyola University College.  Regional Director Ohr rejected the university's argument that the NLRB should decline jurisdiction because the school is religiously affiliated, applying the standards outlined in Pacific Lutheran University,  361 NLRB No. 157 (2014).  A Notice of Election was issued ordering a mail ballot election and the tally to took place on February 8, 2017.
The tally of ballots demonstrated that of the 210 graduate student employees in the bargaining unit at Loyola University Chicago 71 voted in favor of SEIU representation, and 49 voted against.  
The following is the at-issue GSE bargaining unit:
Included:  All full-time and regular part-time Graduate Assistants consisting of PhD and Masters Students who serve as Teaching Assistants, Research Assistants, Program Assistants, and Fellowship Teachers in the Graduate School and matriculating in degree programs in the College of Arts and Sciences at Loyola University Chicago's Lakeshore and Water Tower campuses.

Excluded: All full-time and regular part-time Graduate Assistants in the Theology Department, all other employees, guards, professional employees and supervisors. C5 
Duke University:  Election Ordered for GSE Bargaining Unit
Duke University, NLRB Case No. 10-RC-187857

On January 18, 2017, NLRB Regional Director Claude T. Harrell, Jr. issued a Decision and Direction of Election concerning an SEIU petition seeking to represent graduate student employees at Duke University.  Regional Director Harrell rejected the university's arguments that the at-issue graduate students were distinguishable from the graduate students found to be employees in Trustees of Columbia University, 364 NLRB. No. 90 (2016), and that any election should be conducted on-site rather than by mail ballot.  

On January 20, 2017, a Notice of Election was issued for the conduct of a mail ballot election, with the tally scheduled to take place on February 24, 2017.  

The following is the at-issue bargaining unit:

Included: All PhD students in Duke University departments housed at its campuses in Durham and Beaufort, North Carolina, who are working toward PhD degrees offered by the Duke Graduate School and who are employed by Duke University to provide instructional services in undergraduate or graduate-level courses or labs (including, but not limited to, Teaching Assistants, Graduate Assistants, Instructors, and Graders) or to provide research services (including but not limited to Research Assistants and Graduate Assistants); who were employed by the Employer in the above described unit who: Receive a twelve month stipend and hold a unit position during the Spring 2017 semester, and/or Receive a ninemonth stipend and hold or have held a unit position during the Spring 2016, Fall 2016 or Spring 2017 semesters. 

Excluded: All students at Duke Kunshan University and Duke-NUS Medical School, all students not working towards PhD degrees offered by the Duke Graduate School and all other employees, guards and supervisors as defined in the Act. C6
NLRB General Counsel Issues Memorandum on Statutory Rights 
On January 31, 2017, NLRB General Counsel Richard F. Griffin, Jr. issued Memorandum GC 17-01, entitled General Counsel's Report on the Statutory Rights of University Faculty and Student in the Unfair Labor Practice Context.  The memorandum articulates how his office will apply the rulings in Pacific Lutheran University, 361 NLRB No. 157 (2014), Columbia University, 364 NLRB No. 90 (2016) and Northwestern University, 362 NLRB No. 167 (2015) in the investigation and prosecution of individual unfair labor practice claims of retaliation made against higher education institutions. 

In the report, the General Counsel states that his office will seek redress on behalf of an individual faculty member employed by a religious educational institution who alleges retaliation for having engaged in protected concerted activities when the evidence demonstrates that the school does not hold out that faculty member as performing a specific role concerning the school's religious education institution. 

An individualized approach will also be applied to discrimination claims by a faculty member with respect to managerial status under the standards of Pacific Lutheran University: "[W]e will conduct an individualized analysis of the asserted discriminatee's employment position to determine whether the individual exercised sufficient managerial authority so as to be deprived of employee status under the Act."

Another important aspect of the report is the General Counsel's approach to unfair labor practice charges filed by scholarship football players at Division I FBS private colleges and universities.  While the NLRB declined jurisdiction over the representation petition in Northwestern University without reaching the question of employee status of scholarship football players, the General Counsel concluded that they satisfy the standard for an employee under the National Labor Relations Act.  Therefore, the General Counsel intends on investigating, and potentially prosecuting, discrimination charges filed by scholarship football players.

The General Counsel's position on these issues will remain subject to litigation.  If a complaint is issued, the question of NLRB jurisdiction an employee status can still be litigated before an Administrative Law Judge, and the NLRB Board.

NLRB General Counsel Richard Griffin will be a speaking on March 28, 2017 during the National Center's annual conference as part of a panel reviewing court and administrative developments in higher education over the past year. C7
Nassau Community College: Administrators' Unit Certified 
Nassau Community College, NY PERB Case No. Case No. C-6410

On January 24, 2017, the New York State Public Employment Relations Board certified the Nassau Community College Administrator's Association as the exclusive representative of approximately 42 administrators employed by Nassau Community College. 

The following is the new certified administrators' unit at Nassau Community College:

Included: Assistant Dean, Academic Student Services; Assistant Director, Academic Affairs; Assistant Director, Student Financial Affairs; Assistant Director, Institutional Effectiveness; Assistant Director, Center for Workforce Development; Assistant Director, Facilities Management; Assistant Director, Affirmative Action/Equity Inclusion; Assistant to the Director, Lifelong Learning; Assistant to the Director, Information Technology; Assistant Vice President, Academic Affairs-Distance Education; Assistant Vice President, Information Technology; Assistant Vice President, Facilities Management; Associate Dean, Academic Affairs-Lifelong Learning; Associate Vice President, Student Financial Affairs; College Comptroller, Finance; Dean of Student Relations, Academic Student Services; Director of Financial Aid/Job Placement, Financial Aid; Director of Special Programs, Facilities Management; Director of Special Programs, Academic Student Services; Director of Special Programs, Office of the President; Director of Special Programs, Finance; Director of Special Programs, Student Financial Affairs; Director of Special Programs, Center for Workforce Development; Director of Special Programs, Information Technology; Director of Special Programs, Academic Student Services; Director of Special Programs, Academic Student Services/PE Complex; Director of Special Programs, Resource Development; Grant Advisor, Grants; and Grant Technician, Grants. Excluded: All others.C8
State of Washington: Bill to Increase TT Faculty in Community Colleges
A bill, HB 1168, has been introduced in the State of Washington Legislature aimed at increasing the percentage of full-time tenure track faculty at community and technical colleges.  If enacted, the bill would require the State Board for Community and Technical Colleges to create by July 1, 2017 a phased plan to reach the goal of having 70% of all faculty at community and technical colleges be full-time tenure track by 2023. The plan would include a means for the conversion of part-time faculty positions into full-time positions, and the plan would be developed in conjunction with the colleges, faculty unions and the Legislature. C9
State of Iowa: Proposed Bill Seeks to Severely Restrict Bargaining
Iowa State Senator Jason Schultz, and  Assembly Representative Dave Deyoe have introduced broad legislation,  HSB 84, in the Iowa Legislature to severely restrict the scope of Iowa's four-decade old public sector collective bargaining law.  
The legislation would make the following topics prohibited subjects of bargaining in higher education and other segments of Iowa's public sector : dues checkoff, payroll deductions for political action,  insurance, leaves of absence for political activities, supplemental pay, transfer procedures, evaluation procedures, procedures for staff reduction, release time, subcontracting public services, grievance procedures for resolving any questions arising under the agreement, and seniority and any wage increase, employment benefit, or other employment advantage based on seniority. Negotiations regarding salaries is limited to "base wages." In addition, it states that "[m]andatory subjects of negotiations specific in this subsection shall be interpreted narrowly and restrictively."
The bill would restrict the constitutional right to petition by prohibiting a union from lobbying a public employer's governing board when the public employer has appointed a bargaining representative.   The bill also includes a number of proposed changes to the representation process.  Among those changes is a mandatory retention and recertification election for each incumbent union prior to the expiration of a collective bargaining agreement.C10
Marist College: Exceptions Filed to Hearing Officer's Decision
Marist College, NLRB Case No. 03-RC-127374

Marist College has filed exceptions to the January 3, 2017 report and recommendations by NLRB Region 3 Hearing Officer Neale K. Sutcliff concerning challenged ballots in a rerun mail ballot conducted with respect to the SEIU petition seeking to represent adjunct faculty at Marist College.  The tally of ballots on October 31, 2016 found that 167 faculty members voted for representation, and 177 against.  There were, however, a total of 62 ballots challenged.  

In its exceptions, Marist College requests that the NLRB Board reconsider its prior decision, which affirmed the conclusion made in an earlier hearing officer's decision that dual function adjunct faculty were excluded from the agreed-upon bargaining unit.  The college also excepts to certain of the findings reached in the report and recommendations of Hearing Officer Sutcliff. C11
Ithaca College: Contingent Faculty Schedule A Strike Vote 
The full-time and part-time contingent faculty at Ithaca College are scheduled to vote on February 13 and 14, 2017 on whether to authorize a strike.  Both bargaining units are represented by SEIU. SEIU was certified to represent the part-time unit in June 2015, and certified to represent the full-time unit in May 2016.  Collective bargaining for first contracts with Ithaca College have, thus far, not resulted in an agreement on first contracts for the two contingent faculty bargaining units. C12
Central State University: Professor's Contract Claim Dismissed
Nnazor v. Central State University, Ohio Court of Appeals

The Ohio Court of Appeals has affirmed the dismissal of a breach of contract action commenced by a professor and former Dean of Education at the Central State University. The complaint alleged a breach of contract when the professor's salary was unilaterally decreased from $94,000 to a base salary of $63,000 after he resigned as dean to to resume being a tenured full professor.  The appellate court found it was unnecessary to determine whether his position as dean was subject to a contract because of the resignation. Furthermore, it affirmed a ruling that the Ohio Court of Claims lacks jurisdiction over the contract breach claim premised on the terms of the collective bargaining agreement negotiated by AAUP with the university because the Ohio Court of Common Plea has exclusive jurisdiction over such claims.   C13
Northwest State Community College: Arbitration Award Upheld
Northwest State Community College v. Northwest State Community College Education Association, OEA/NEA, Ohio Court of Appeals
On December 27, 2016, the Ohio Court of Appeals  issued a decision affirming the denial of an application by Northwest State Community College to vacant an arbitration award that sustained a grievance pursued by the OEA/NEA affiliated support staff union. The grievance challenged the elimination of a bargaining unit position, Associate Director of Financial Aid, and the transfer of its responsibilities to another position outside of the the bargaining unit.  The arbitrator sustained the grievance based on the failure of the college to follow the negotiated procedures concerning job classifications and subcontracting. C14  
Oakton Community College: Age Discrimination Claims Survive 
Filipek v. Oakton Community College,  United States District Court, N.D., Ill.
A federal judge in Illinois has rejected an effort by Oakton Community College to have age discrimination claims dismissed.  The claims were brought under the federal Age Discrimination in Employment Act. challenging  a college policy that excludes individuals from being employed as part-time faculty if they are receiving benefits under the State University Retirement System.  The college argued unsuccessfully that the case should not be heard in federal court because the Oakton Community College Adjunct Faculty Association has an unfair labor practice charge pending before the Illinois Educational Labor Relations Board.
The subject of age discrimination in higher education will be explored by a panel at the National Center's annual conference on March 26-28, 2017.

Panel: Age Discrimination Issues in Higher Education (CLE)
Justin Mulaire, EEOC Supervisory Trial Attorney
Jason Walta, NEA Senior Counsel
Karen Bitar, Seyfarth Shaw LLP
John T. Rose, Dean for Diversity, Hunter College, CUNY, ModeratorC15 
Cayuga Community College: Violation of Duty to Negotiate Affirmed
Cayuga Community College, NY PERB Case No. U-32511

On January 24, 2017, the New York State Public Employment Relations Board issued a decision and order affirming a decision by an Administrative Law Judge finding that Cayuga Community College violated its duty to bargaining in good faith when it unilaterally reassigned work exclusively performed by employees in the unit represented by the Cayuga County Community College Educational Support Professionals to retirees hired on a part-time basis. C16
University of West Florida Board of Trustees: UFF Files Amended ULP
University of West Florida Board of Trustees,  FPERC Case No. CA-2016-054
The United Faculty of Florida (UFF) has filed an amended unfair labor charge to correct the deficiency found in its original charge which was dismissed by Florida Public Employees Relations Commission's General Counsel.  The original charge alleged that the University of West Florida Board of Trustees had altered the terms of the negotiated contract when it placed a tenured faculty member on a Performance Improvement Plan although the faculty member had received an unsatisfactory Sustained Performance Evaluation. C17 
Palm Beach State College: Petition for Security Officers Dismissed
Palm Beach State College Board of Trustees, FPERC Case No. RC-2016-039

On January 9, 2017, the Florida Public Employees Relations Commission issued a decision dismissing a representation petition filed by the National Association of Government Employees seeking to represent security officers at Palm Beach State College.  The petition was dismissed because the showing of interest filed demonstrated support for another union: the International Brotherhood of Police Officers. In addition, the showing of interest revealed that the petitioner might be seeking to represent a unit that included employees in other titles beyond security officers. C18
Culinary Institute of America: Representation Petition Filed by CFT
Culinary Institute of America, NLRB Case No. 20-RC-191793

On January 25, 2017, the California Federation of Teachers filed a representation petition seeking to represent a bargaining unit of approximately 25 full-time and part-time faculty employed by the Culinary Institute of America. C19
Suffolk University: SEIU Files Petition for Clerical and Technical Unit
Suffolk University, NLRB Case No. 01-RC-191721

On January 24, 2017, SEIU filed a representation petition seeking to represent a bargaining unit of approximately 350 regular part-time and full-time clerical and technical employees employed by Suffolk University in certain departments.  The following is the proposed non-faculty unit sought by SEIU:

Included: All regular part and full time clerical and technical employees employed by Suffolk University in Boston Massachusetts in the following departments holding the following job titles: Titles: Administrative Services Coordinator Administrative Services Manager Academic & College Advisor Academic Advisor Academic and Research Advisor Academic Coach Conditional Transfers Academic Computing Specialist Admin Coordinator Administrative Assistant Administrative Associate Administrative Coordinator Administrative Services & Systems Manager Admission Coordinator Admission Counselor Admission Systems Coordinator Admissions Assistant, Admissions Supervisor Alt-Text Specialist Annual Fund Officer Applications Administrator Assessment & Tech Admin Assistant Accounts Payable Manager Assistant Budget Director Assistant Bursar Assistant Director Assistant Director, Major Gifts Assistant Manager Assistant Registrar Assistant to the Director Assistant TV Studio Manager Associate Bursar Associate Director Associate Registrar Business Analyst Business Assistant Classroom Technology & Media Specialist I Classroom Technology & Media Specialist II Clerk Clinical Coordinator CMS Administrator Collection Services Manager Collection Services Specialist Coordinator Meta Data Specialist Counselor Data Coordinator Desktop Support Specialist Desktop Support Technician I Desktop Support Technician II Digital Imaging Assistant Directors (non supervisory) Enrollment Marketing Manager Enterprise Systems Administrator Evening Supervisor Financial Aid Asst Front of House Manager Front-End Website Developer Gallery Director, Help Desk Tech 2 Information Security Officer Instructional Technologist International Study Advisor IT Project Manager Job Site Manager Laboratory Coordinator Laboratory Manager Library Assistant Major Gifts Officer Manager Manager Accounts Payable/Special Projects Manager/Web Services Managing Editor, Salamander Marketing Copywriter/Editor Media Coordinator Media Lab Coordinator Media Services/Audio Visual Specialist Medical Assistant Modern Theatre Operations Coordinator Network Engineer Office Coordinator Office Manager Office Services Coordinator Operations Coordinator Operations Manager Outreach Specialist Payroll Assistant Pc Specialist Photographer/Photo Content Manager Program & Site Coordinator Program Administrator Program Advisor Program Assistant Program Coordinator Program Development Coordinator Program Director Program Manager Project Manager Purchasing Analyst Records Manager Reference Assistant Registrar's Assistant Research Analyst Researcher Secretary Senior Accountant Senior Administrative Associate Senior Assistant Director Senior Associate Director Senior Budget Analyst Senior Computer Specialist Senior Gift/Reporting Specialist Senior Grants Administrator Senior Graphic Designer Senior Integrated Designer Senior Mail Clerk Senior Network & Telecom Engineer Senior Payroll Coordinator Senior Program Coordinator Senior Program/Analyst Senior Registrar's Assistant Senior Systems Administrator Senior Writer/Editor Service Desk Representative Social Media Strategist Sr. Administrative Associate Staff Assistant Staff Assistant/Job Coach Student Accounts Representative Study Abroad Advisor Supervisor Systems Administrator Technical Assistant Technology Assistant Technology Support Specialist Telecommunications Coordinator Theatre Assistant Theatre Department Coordinator Tutor TV Studio Manager University Records Manager Web Apps Developer Web Developer I Web Editor Web PC Specialist Weekend Circulation Assistant Welcome Center Coordinator Woodshop/Fabrication Lab Manager Departments: Academic Advising Accounting Accounts Payable Services Advancement Advertising/PR/Digital Media Athletics Biology Budget Office Bursar's Office Business Law Career Development Center CAS - Dean's Office CAS - Support Services Center for Academic Access and Opportunity Center for Learning & Academic Success Center for Teaching and Scholarly Excellence Chemistry Chemistry Communications & Journalism Controllers Office Counseling, Health & Wellness Ctr for Community Engagement Ctr for Executive Education Dean of Students' Office Dean's Office - Law School Development Disability Services Diversity Services Donor Relations and Advancement Communications Economics Electrical Engineering English Enrollment Management Enterprise Applications External Relations Facilities Operations Finance Government Graduate Admissions Graduate Admissions Office Health Administration History Information Systems / Operations Management Information Technology Services Infrastructure Services Institute for Public Service Institutional Research & Assessment Instructional Technology Services International Programs & Services IT Governance, Project Management Office, Web Services Law Academic Services Law Admissions Law Career Services Law Clinical Programs Mail Services Management & Entrepreneurship Marketing & Communications Math & Computer Science McNair Program Moakley Center for Public Management Moakley Law Library Network & Telecommunications Services New England School of Art & Design Office of Research and Sponsored Programs Orientation & New Student Programs Payroll Office Performing Arts Program Philosophy Physics Political Research Center Provost's Office Psychology Public Affairs Office Public Affairs Office Purchasing Services Registrar's Office Residential Life and Housing Sawyer Business School Sawyer Library SBS Graduate Business Programs Sociology Strategy & International Business Student Financial Aid Student Leadership Student Success Student Success Student Success Advising Support Services -Law Technology Support Services Theatre Arts-Academics Theatre Operations Undergraduate Academic Advising Undergraduate Admissions Office Univ Police & Security University Marketing University Media Services University Media Services Upward Bound World Languages & Cultural Studies.

Excluded: all managerial employees; professional employees; confidential employees; guards and supervisors as defined by the Act.

A notice of election was issued on February 6, 2017 scheduling a manual on-site election on March 2, 2017 concerning a unit of all regular part and full time clerical and technical employees employed by Suffolk University in the departments and job classifications set forth in List A, who were employed by the university during the payroll period ending February 5, 2017. C20  
Comm. Coll. System of NH: Faculty Decertification Election Ordered
Community College System of New Hampshire, NHPELRB Case No. E-0165-3

On January 6, 2017, the New Hampshire Higher Education Union, IBEW 2320, filed a petition with the New Hampshire Public Employee Labor Relations Board (NHPELRB) seeking to decertify State Employees' Association of New Hampshire, SEIU Local 1984, as the exclusive representative of faculty employed by the Community College System of New Hampshire.  The most recent collective bargaining agreement for the faculty unit expired on June 30, 2015. 

On January 25, 2017, NYPELRB issue a decision rejecting a contract bar defense raised by the incumbent union, and ordered the scheduling of a secret ballot decertification election.

The following is the at-issue community college faculty bargaining unit:

Included:  Community College Instructor, Community College Assistant Professor, Community College Associate Professor, and Community College Professor.

Excluded:  All positions listed in the Certification of Representative and Order to Negotiate, PELRB Decision. No. 2011-074; all positions listed in the Certification of Representative and Order to Negotiate, PELRB Decision No. 2010-210; and supervisory and other positions excluded as a matter of law
Dominican University: Petition Filed to Represent Engineers
Dominican University, NLRB Case No. 13-RC-192184

On January 31, 2017, the International Union of Operating Engineers Local 399, AFL-CIO filed a representation petition with the NLRB seeking to represent a unit of 4 full-time and regular part-time stationary engineers and chief engineer.  Excluded from the proposed unit are office clerical, professional employees, managers, guards and supervisors as defined by the National Labor Relations Act.  The petition was withdrawn on February 8, 2017. C22
Now Available: 2016 Conference Webcasts and Podcasts
Below are links to webcasts and podcasts from the National Center's 43rd annual national conference, which took place on April 3-5, 2016.  We thank Hunter College's ICIT Department and Becca Pulliam from Please Repeat the Question Productions for their production assistance.

Martha Kanter, Distinguished Visiting Professor of Higher Education, Steinhardt Institute of Higher Education Policy NYU; David Bergeron, Senior Fellow, Center for American Progress; Lynette Nyaggah, Community College Association CTA-NEA President; and Stephen Katsinas, Director and Professor, University of Alabama Education Policy Center, Moderator.
LGBT Issues in Higher Education Labor Relations
Rosemary DiSavino, Senior Trial Attorney, U.S. Equal Employment Opportunity Commission; Sean Robinson, Morgan State University Associate Professor of Higher Education; Rachel V. See, National Labor Relations Board; Elizabethe C. Payne, Interim Director, LGBT Social Science and Public Policy Center, Roosevelt House, Visiting Associate Professor, Hunter College, CUNY and Director, The Queering Education Research Institute, Moderator. 
Negotiating Over Technology in Contracts and Curriculum: Copyright or Copyleft?
Gary Rhoades, Professor and Director, Center for the Study of Higher Education, University of Arizona; Greg Saltzman, E. Maynard Aris Professor of Economics and Management, Albion College; Michael W. Klein, Executive Director, N.J. Association of State Colleges and Universities; and Richard Novak, Vice President for Continuing Studies and Distance Education, Rutgers University, Moderator.
Friedrichs v. CTA: What the Future May Bring
Cynthia Estlund, Catherine A. Rein Professor of Law, New York University School of Law; Charlotte Garden, Seattle University School of Law Associate Professor;  Ruben Garcia, University of Nevada, Las Vegas Professor of Law; and Frederick Schaffer, General Counsel and Senior Vice Chancellor for Legal Affairs, CUNY, Moderator
The History, State, and Future of Shared Governance
M. Brian Blake, Executive Vice President for Academic Affairs and Provost, Drexel University; Larry G. Gerber, former chair of the American Association of University Professors' Committee on College and University Governance; Barbara Lee, Senior Vice President for Academic Affairs, Rutgers University; and Scott Jaschik, editor, Inside Higher Ed, Moderator.
America's Public Regional Universities: Collective Bargaining Matters
Stephen Katsinas, Director and Professor, University of Alabama Education Policy Center, Presenter ; Theodore Curry, Associate Provost, Associate Vice President, Academic Human Resources, Michigan State Univ., Commentator; Fred Floss, Fiscal Policy Institute Senior Fellow, Commentator; and Gail Brooks, Vice Chancellor, Human Resources Emerita, CSU, Interim Vive President Human Resources CSU, Fullerton, Moderator.
Higher Education Issues at Public Sector Labor Boards
Marjorie Wittner, Chair, Massachusetts Commonwealth Employment Relations Board; Adam Rhynard, Oregon Employment Relations Board member; John Winerius, NYS Public Employment Relations Board Deputy Chair; and Phillip L. Maier, Arbitrator and Mediator, Moderator.
Graduate Assistants, Unionization, and Negotiations
Michael Eagen, Director and Counsel, University of Connecticut Office of Faculty and Staff Labor Relations; Kenneth Lang, UAW Region 9A International Representative 
Raymond L. Haines, Associate Vice Chancellor for Employee Relations, State University of New York; and James Castagnera, Associate Provost/Legal Counsel for Academic Affairs, Rider University, Moderator.
Faculty as Mandatory Reporters under Title IX
Coleen Chin, Senior Attorney, U.S. Department of Education, Office of Civil Rights; John T. Rose, Dean for Diversity, Hunter College, City University of New York; Yael Wepman, Director of EEO & Title IX Coordinator, St. John's University; and Jeffery Frumkin, Associate Vice Provost and Senior Director, Academic Human Resources, University of Michigan, Moderator
Title IX, Academic Freedom and Due Process
Risa Lieberwitz, Professor, Labor and Employment Law, Cornell ILR, AAUP General Counsel; Rana Jaleel, UC Davis, Committee W; Suzanne B. Goldberg, Executive Vice President for University Life, Columbia University; and Peter Schmidt, Chronicle of Higher Education Senior Writer, Moderator.
The Impact of Faculty Unit Composition on Collective Bargaining
Robin Sowards, Organizer and Researcher, United Steelworkers, and Vice President, New Faculty Majority; Loretta Ragsdell, City Colleges of Chicago Contingent Labor Organizing Committee Vice President and Grievance Chair/IEA/NEA; James Burkel, Senior Academic Labor Relations Representative, University of Michigan; Kenneth Doxsee, Vice Provost for Academic Affairs, University of Oregon; and Deborah Cooperstein, Adelphi University AAUP Chapter President, ModeratorC23    
The Journal of Collective Bargaining in the Academy

Journal of CBA Logo  
The Journal of Collective Bargaining in the Academy (JCBA) is the National Center's peer review 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.  The most recent volume of JCBA is available here.
We encourage scholars, practitioners, and graduate students in the fields of collective bargaining, labor representation, labor relations, and labor history to submit articles for potential publication in future JCBA volumes.  C24 
Murphy Institute Program: Organizing the Academic Precariat
Our friends and colleagues at the Murphy Institute and the Scholars Strategy Network (NYC Chapter) recently announced  a half-day program. to take place on March 24, 2017, 12:00-6:00 p.m. examining unionization and the working conditions of adjunct faculty in higher education. It will take place at the Murphy Institute, 25 East 43rd St. 18th floor in Manhattan.   C25
Labour Relations Conference for University and College Management
Our friends at the Australian Higher Education Industrial Association (AHEIA), University and College Employers Association (UCEA), and Faculty Bargaining Services (FBS) have announced that the 3rd International Academic Labour Relations Conference for University and College Management will be taking place on May 1-5, 2017 in Sydney, Australia.
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