The United States Supreme Court has scheduled oral argument in Janus v. AFSCME for next Monday, February 26, 2018.  The case is a First Amendment challenge to an agency fee requirement under a public sector collective bargaining law requiring non-union members in a bargaining unit to pay a fee for the representation they receive in collective bargaining and in the administration of the contract.  A ruling in  Janus is expected to be issued by late June.

Last month, we highlighted the public policy approaches taken by Florida and California, which might be followed in other states following a ruling in Janus.  This month, we take a look at recently proposed legislation in other states relevant to the practical impact of a decision in Janus finding an agency fee to be unconstitutional under the First Amendment.

Massachusetts

In Massachusetts, House of Representative member Gerald Cassidy has introduced legislation, H1335, which would require payment of an agency fee by all non-members, and excludes all non-members who fail to pay an agency fee from the terms of a negotiated contract with the exception of negotiated cost of living allowances.  Under present state law, an agency fee can be imposed only after a contract has been negotiated requiring payment of the fee as a condition of employment.  M.G.L. Ch. 150E, Sec. 12.  In addition, the current  statute prohibits a union from discriminating against an employee on the basis of the employee's membership, non-membership, or agency fee status.

The proposal by Massachusetts Representative Cassidy to exclude non-members from most of the fruits of collective bargaining if they fail to pay the agency fee is an interesting variation on the members-only approach being advocated by some scholars.  Importantly, the proposal would not relieve a union from the obligation of administering grievances relating to cost of living increases, and providing other forms of representation in light of the non-discrimination provision under current Massachusetts law. 

On February 7, 2018, House Bill 1017 was introduced in the Maryland Legislature to expand the obligations of the State Department of Budget and Management, the University System of Maryland, Morgan State University, St. Mary's College of Maryland, and Baltimore City Community College to provide information to a certified union concerning new and current employee.  A similar bill was introduced in the Maryland Senate.

If enacted, the proposed amendment would require those public employers to provide a union the following information in electronic form within 30 days of the hiring of a new employee: name; position classification; bargaining unit; home and work site addresses where the employee receives interoffice or mail; home and work telephone numbers; work and personal e-mail addresses; and position identification number.   

The bill would also mandate that the same information be provided to the union for current employees at least every 120 days.  The proposed law would not eliminate the current opt-out provision in current law, which permits employees to object to the providing of the information.

According to a website post, Brookdale Community College voluntarily recognized the Brookdale Adjunct Faculty union on February 13, 2018 as the exclusive representative of approximately 450 adjunct faculty at the college.  The recognition took place after the union demonstrated majority support through signed authorization cards.   

Southwestern Michigan College, MERC Case No. R17 K-098

On  February 8, 2018, the Michigan Education Association was certified by the Michigan Employment Relations Commission to represent a unit of all full-time tenured and tenure-track instructional faculty at Southwestern Michigan College.  The certification followed a January 26, 2018 tally of ballots in a mail-ballot election in which 31 faculty voted in favor of representation and 23 voted against.  

The following is the new tenured and tenure-track faculty bargaining unit represented by the Michigan Education Association:

Included:  All full-time Instructional Faculty

Excluded:  Administrators, Adjunct Faculty, Advisers, Librarians, Counselors, Recruiter, and non-instructional staff.

Harvard College, NLRB Case No. 01-RC-186442

Following the NLRB's December 12, 2017 decision affirming the Regional Director's decision relating to an election conducted concerning a UAW petition to represent student employees at Harvard, a second tally to ballots was conducted on January 11, 2018.  Of the approximate 3,556 student employees in the proposed unit, 1,526 voted against representation and 1,396 voted in favor. 

Based on the NLRB's decision to set aside the first election on the grounds that Harvard failed to provide a complete voter eligibility list, a notice of election was issued on February 2, 2018 scheduling a second election.  The second election will take place on April 18, 19, and 20, 2018 at various campus locations. 

The following is the agreed upon voting unit:

Included: All students enrolled in Harvard degree programs employed by the Employer who provide instructional services at Harvard University, including graduate and undergraduate Teaching Fellows (teaching assistants, teaching fellows, course assistants); and all students enrolled in Harvard degree programs (other than undergraduate students at Harvard College) employed by the Employer who serve
as Research Assistants (regardless of funding sources, including those compensated through Training Grants). This unit includes students employed by Harvard University and enrolled in the Harvard Graduate School of Arts and Sciences, Harvard Business School, the Division of Continuing Education, Harvard Graduate School of Design; Harvard Graduate School of Education, the Harvard John A. Paulson School of Engineering and Applied Sciences, the John F. Kennedy School of Government at Harvard University, Harvard Law School, Harvard Divinity School, Harvard Medical School, the Harvard T.H. Chan School of Public Health, and Harvard College who were employed by the Employer during the payroll period ending March 12, 2018. Also eligible to vote are doctoral students who are not currently employed, but were employed in the bargaining unit for at least the Spring Semester of 2017 or the
Fall Semester of 2017, and who are not currently in their Dissertation Completion Year (or final year of their program)

Excluded:   All undergraduate students serving as research assistants, and all other employees, guards and supervisors as defined in the Act.

Cornell Graduate Student United, NYSUT, AFT (CGSU) has announced plans to file objections concerning the conduct by Cornell University in an election conducted by the American Arbitration Association (AAA) in March 2017, which led to an inconclusive result.  The vote tally was 856 in favor of unionization and 919 against with 81 additional ballots challenged.  The objections could lead to the ordering of a new election.

The 2017 election was conducted pursuant to a May 2016 agreement between CGSU and Cornell University establishing a non-NLRB procedure for the unionization efforts by Cornell teaching assistants, graduate research assistants, graduate assistants, and research assistants.  

Under the agreement, the parties agreed that if the NLRB ruled that graduate students were employees for purposes of collective bargaining under the National Labor Relations Act, the issue of whether CGSU represented a majority of Cornell graduate student employees would be determined by an AAA election rather than one conducted by the NLRB.  

The Cornell University-CGSU agreement identified the scope of the bargaining unit, and the eligibility requirements for voting.  The university agreed to voluntarily recognize the union as the exclusive representative for the graduate student employees if majority status was demonstrated through the AAA election.  Under the agreement, the parties would "have the same rights and obligations with respect to union organizing" by graduate assistants as if the graduate assistants were deemed employees for purposes of the NLRA. 

The negotiated agreement also included guidelines and limitations concerning communications by administrators, faculty, and principal investigators with graduate assistants concerning the unionization drive.  Among the restrictions was a prohibition against captive audience meetings with graduate students about union representation, and a prohibition against communications to individual graduate students "advising them on joining or supporting the Union, the benefits or disadvantages of union representation, or to discourage protected concerted activity."

Pennsylvania State University, PERA R-17-40E   

 

On February 6, 2018, Pennsylvania Labor Relations Board Hearing Examiner Stephen A. Helmerich issued a decision concerning a petition filed by the Coalition of Graduate Employees, PSEA/NEA (CGE) seeking to represent a unit of approximately 4,000 full-time and regular part-time graduate student employees at Pennslylvania State University.  

During the processing of the petition, CGE clarified that it was seeking to represent four categories of graduate students: research assistants, teaching assistants, graduate assistants who perform academic or professional work for the university and graduate fellows/trainees.

During the multi-day hearing before Hearing Officer Helmerich, the university  contested the employee status of graduate assistants under Pennsylvania Public Employe Relations Act. 

In an earlier decision in Temple University, 32 PPER ¶ 32164 (2001),  the Pennsylvania Labor Relations Board had ruled that graduate students were employees if they satisfied certain criteria including receiving compensation for performing services. Based on that precedent, and the facts presented before him at the hearing, Hearing Officer Helmerich concluded that graduate students at Penn State were employees for purposes of collective bargaining, and found that there was a clear identifiable community of interest that made the following unit appropriate:  

   

Included:  All full-time and regular part-time professional employees who are graduate students on graduate assistantship or traineeship and who perform services as teaching assistants, research assistants, or administrative support assistants.

Excluded: Graduate students on fellowship, management level employes, supervisors, first level supervisors, confidential employees and guards as defined in the Act.

Based on his conclusions, Hearing Officer Helmerich ordered the university to submit to the agency within ten days a current list of the names and addresses of employees eligible for inclusion in the defined unit.  The university has a right to file exceptions to the Hearing Officer's decision.  The filing of exceptions will probably delay the scheduling of a representation election.  

There is pending legislation in two states to grant collective bargaining rights to graduate student employees at public institutions.

 

Maryland 

 

On January 18, 2018, Maryland General Assembly Delegates Korman, Frush, Healey, Jones, Moon, Pena-Melnyk, Sanchez, Tarlau, and A. Washington introduced House Bill 199 that would grant collective bargaining rights to graduate assistants at a state higher education system institution, Morgan State University, and St. Mary's College of Maryland.  The phrase "graduate assistant" includes those who are a teaching, administrative, or research assistant, or in a comparable position, a fellow, or a postdoctoral intern at one of those institutions. 

 

Hawaii

In Hawaii, Senate Bill 406 is pending that would grant collective bargaining rights to full-time graduate student assistants employed by the University of Hawaii but would deny such rights to part-time graduate student assistants at the university.

Boston College, NLRB Case No. 01-RC-194148

 

On February 08, 2018, the NLRB General Counsel  approved a request by the UAW to withdraw its petition seeking to represent a unit of graduate student employees at Boston College and for the revocation of the Certification of Representation issued on September 25, 2017 following a representation election held on September 12 and 13, 2017.  The union has announced an intention of seeking to persuade the college to grant voluntary recognition, and commence negotiations.  

As a result of the petition's withdrawal, Boston College's pending Request for Review of the Regional Director's Decision and Direction of Election has become moot. The college had argued that the Regional Director erred in asserting jurisdiction over the question of representation and challenged the standards articulated by the NLRB in Pacific Lutheran University, 361 NLRB No. 157 (2014) and Saint Xavier University, 365 NLRB No. 54 (2017) for determining jurisdiction over a religiously-affiliated institution.  The institution also argued that the NLRB's decision in Columbia University, 364 NLRB No. 90 (2016), finding graduate and research assistants are covered under the National Labor Relations Act, was wrongfully decided and should be reversed.   

The jurisdictional issue raised by Boston College will be the subject of a panel discussion at the National Center's 45th annual conference on April 15-17, 2018. The panel will include Charles J. Russo, Panzer Chair in Education and Research Professor of Law, University of Dayton; Michele Nelson, Iona College, Michael Moreland, Vice Dean and Professsor of Law, Villanova University School of Law, Jacob A. Bennett, Doctoral Student, Department of Education, University of New Hampshire with Gerald M. Cattaro, professor, Fordham University, Center for Faith Based Initiative.

University of Chicago, 13-RC-198325
 

On February 13, 2018, the NLRB General Counsel approved a request by AAUP-AFT to withdraw its petition seeking to represent graduate student employees (GSE) at the University of Chicago.  The withdrawal took place four months after AAUP-AFT was certified by the National Labor Relations Board to represent the GSE bargaining unit of 2,457.  

The following was the at-issue unit at the University of Chicago:

 

Included:  All graduate students who are full-time and regular part-time teaching assistants, research assistants, course assistants, workshop coordinators, writing interns, preceptors, language assistants, instructors, lecturers, lectors, and teaching interns in the School of Divinity, School of Social Services Administration, Division of Social Sciences, Division of Humanities, Division of Biological Sciences, and Division of Physical Sciences employed by the Employer at its campus in Chicago, Illinois. 

 

Excluded:  All other employees, managerial employees, guards, and supervisors as defined in the Act.

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-183043, and 01-RC-183050 

  

On February 12, 2018, the NLRB Region 1 Director approved the request by UNITE-HERE to withdraw eight petitions for departmentally-based micro-units of graduate student employees at Yale University.  The petitions were withdrawn following the issuance of certifications in 2017 making UNITE-HERE the exclusive representative of the eight bargaining units following representation elections.  

The withdrawal of the petitions by UNITE-HERE were expected in light of the NLRB Board ruling in PCC Structurals, Inc. 365 NLRB No. 160 (2017), which overruled S pecialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011) e nfd. sub nom. Kindred Nursing Centers East v. NLRB, 727 F.3d 552 (6th Cir. 2013) that had found micro-units of employees appropriate under certain circumstances.

University of  Pennsylvania, NLRB Case No. 04-RC-199609

On February 16, 2018, the Graduate Employees Together University of Pennsylvania (GET-UP UPENN,) an AFT affiliate, withdrew its petition at the NLRB seeking to be certified as the representative of a GSE unit at that institution. 

The withdrawal comes less than two months after NLRB Region 4 Director Dennis P. Walsh issued a Decision and Direction of Election, which concluded that the following was the appropriate unit:

Included: All graduate students who provide instructional services and/or perform research, including but not limited to Teaching Assistants, Teaching Fellows, Research
Assistants, Research Fellows and Pre-Doctoral Trainees employed by the
Employer in the following schools: Annenberg School for Communication,
Biomedical Graduate Studies, School of Design, Graduate School of Education,
School of Arts and Sciences, School of Engineering and Applied Science, School
of Nursing, School of Social Policy and Practice, and Wharton School;

Excluded: All other employees, educational fellowship recipients, office clerical employees, guards and supervisors as defined in the Act. 

Prior to the withdrawal of the representation petition by GET-UP UPENN, the university had continued its campaign against the unionization effort.  

One example of that campaign was a February 7, 2018 email from Dean of Engineering Vijay Kumar and Deputy Engineering Dean for Research and Innovation Kathleen Stebe to the department's doctoral students, which is reprinted below.  The email is a revealing exposition of values concerning the democratic unionization process and collective bargaining.  Whether the email's content was drafted by others and/or represents the institutional views of the university is unknown.

The email's wording and construct present a negative view of the republican framework created under American collective bargaining law to effectuate workplace democracy.  Under the workplace form of representational democracy, employees are given the right to choose a representative to speak and negotiate on their behalf with their employer.  In the email, Dean Kumar and Deputy Dean Stebe turn the republican framework on its head by creating a false duality between the union "winning" and graduate students "losing" their voice to advocate on their own behalf. 

The email presents the petitioned-for representative as a third party rather than as an association seeking to be certified to represent a bargaining unit following an

election.  In their view, an electoral result in favor of representation of graduate student employees would constitute a loss of freedom.  In addition, potential contractual results stemming from the representation, which are analogous to enacted laws by legislative representatives, are portrayed as being inherently oppressive.  

 

The workplace representation framework is very similar to the political one of electing legislators to represent electoral districts concerning laws and budgets.  Both were designed to insure stability.  In Federalist Papers No. 10, James Madision emphasized that a republican form of governance is necessary to avoid the instability resulting from factionalism caused by individuals or groups of individuals advocating for themselves.  It is troubling that deans at a major university in the 21st Century would seek to portray the fruits of a representative form of democracy as a form of oppression.