With the publication of the recent volume of the Journal of Collective Bargaining in the Academy, Steve Hicks's term as a co-editor has ended .  Mr. Hicks has served as a co-editor since the journal's third volume, and the National Center thanks him for his many important contributions.

 

We are pleased to announce that Gary Rhoades will be replacing Mr. Hicks as a co-editor.  Mr. Rhoades is a Professor and Director of the University of Arizona's Center for the Study of Higher Education, and a former AAUP General Secretary.  He is the author of Managed Professionals (1998, SUNY Press) and Academic Capitalism and the New Economy (with Sheila Slaughter, 2004, Johns Hopkins University Press).  He is currently working on a new volume tentatively titled Managing to be Different:  

From Strategic Imitation to Strategic Imagination.

J anus v. AFSCME, United States Supreme Court, Case No. 16-1466

The United States Supreme Court has scheduled  oral argument in Janus v. AFSCME for 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.

An agency fee requirement is a form of union security, first introduced in the private sector, and held to be constitutional in the public sector in  Abood v. Detroit Board of Education, 431 U.S. 209 (1977).  However, in majority decisions written by Supreme Court Justice Samuel Alito over the past few years, the Supreme Court has questioned the constitutionality of mandating non-members to pay an agency fee for representation by a certified or recognized union in the public sector.

If the plaintiff in  Janus is fully successful before the Supreme Court, Abood will be reversed and the open shop will become a federal constitutional mandate for the first time.  Such a ruling  would mean that a public sector union certified or recognized as the exclusive representative of a bargaining unit will be obligated to represent non-members for free, and will still be subject to duty of fair representation claims by dissatisfied non-members. 

 

Both before and following the Janus decision it is important for scholars and practitioners to examine the statutory, decisional, and practical history of public sector collective bargaining statutes, including those that did not originally include an agency fee obligation for non-members.

In this article, we highlight public policy approaches taken by Florida and California that might be followed in other states following the Janus decision.

 

Florida

 

Since 1974, the public sector collective bargaining law of Florida, an open shop state, has included a provision that modifies the exclusive representation model by not requiring an incumbent union to process or arbitrate grievances by non-members.  Section 447.401 states "that certified employee organizations shall not be required to process grievances for employees who are not members of the organization."  

 

In Polk Education Association (McDonald),19 FPER ¶24111 (1993), the Florida Public Employment Relations Commission ruled that a union did not violate its duty of fair representation by revoking an employee's membership, returning his dues, and refusing to process a grievance with respect to events that preceded the employee joining the union. 

As the decision demonstrates, the Florida statute grants public sector unions wide discretion as to whether to provide representation concerning a grievance by non-dues-paying unit members. The law does not bar a union from choosing to pursue a grievance by a non-member or seeking to intervene in an arbitration when the outcome might have unit-wide consequences.

By narrowing the exclusive representation model, the Florida model lessens the financial burden on a union in an open shop state with respect to non-members but it is not without its critics.  See, Dennis O. Lynch, Incomplete Exclusivity and Fair Representation: Inevitable Tensions in Florida's Public Sector Labor Law, 37 U. Miami L. Rev. 573 (1983). 

A potential means for expanding on the Florida model would be amendments to public sector collective bargaining laws that explicitly provide that a union is not required to represent a non-member during disciplinary interrogations and hearings, during meetings with supervisors, or with respect to the pursuit of statutory workplace claims. 

The Florida model of modified exclusive representation is more conservative in approach than the members-only model of unionization being advocated by some scholars and practitioners. See, Charles J. Morris, The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace (2005, Cornell University Press)(examining members-only unions under the National Labor Relations Act). Under that model, the union would not represent non-members in collective bargaining or in contract enforcement. One problem with the adoption of a members-only model is that a public employer might grant to non-members the same or greater level of benefits than those negotiated by the union. The public employer's grant of such benefits would undermine the value of unionization even though the employer's action might be subject to statutory or constitutional challenge.

California

 

Another model that might be emulated in other jurisdictions  is the California law enacted last year relating to union access to new employee orientations and information about employees in a bargaining unit.  

On June 27, 2017, California Governor Jerry Brown signed the new law into effect, which mandates public employers to grant certified or recognized unions with notice and access to new employee orientations.

The structure, time, and manner of access under the new law is subject to negotiations, and the law mandates the reopening of all existing contracts for the limited purpose of negotiating over the issue of access to new employee orientations. An impasse in negotiations concerning access is subject to resolution through compulsory interest arbitration. Either party can demand interest arbitration within 45 days after the first bargaining session or within 60 days after the initial request to commence negotiations, whichever comes first. 

The grant of statutory access to orientations provides public sector unions with a potential opportunity to explain to new employees the benefits of union membership, as well as the mission, history, and activities of the union.

The new California law also mandates public employers to provide the union representing a bargaining unit with the following information about all new and current employees in the unit:

The information concerning new employees must be provided within 30 days after a new employee commences employment or by the first pay period.  The information concerning all employees in the bargaining unit must be provided to the union at least every 120 days unless the parties have negotiated an agreement requiring more frequent or more detailed information. 

In enacting the new law, the California Legislature recognized that the ability of a public sector union to communicate with and represent bargaining unit members "is necessary to ensure the effectiveness of state labor relations statutes" and to ensure "harmonious public employment relations." 

California's new statutory grant of greater union access can help facilitate the breaking down of the personal distance and informational wall between public sector unions and bargaining unit members, and can lead to greater employee participation in collective activities concerning workplace issues.

Janus Panel Planned for the National Center's Annual Conference

Below are two commentaries relating to bargaining that has taken place under the new California law mandating union access to new employee orientations. The commentary by Kathy Sheffield was originally posted on the website of the California Faculty Association.

 

CFA and CSU Chancellor Reach Agreement on New Employee Orientation Requirements  
by Kathy Sheffield, Director of Representation, California Faculty Association

 

Effective July 1, 2017, California's Assembly Bill 119 went into effect, requiring the CSU, as well as other public employers in the state, to provide unions with information about new and current employees. The information includes home addresses, phone numbers, and other information useful for the union to reach represented employees. The law also provides that the information is not subject to the public records law, thus preventing misuse of employee data.

 

Further, the law requires the CSU to bargain with all of its bargaining units over participation in new employee orientations.  The law requires public employers to negotiate with unions over time, place, and manner for meaningful union access to new employees at their orientation or "onboarding," whether it happens "in person, online, or through other means."  

 

In its findings, the legislature declared, "In order for exclusive representatives to discharge their legal duties and communicate with public employees, it is necessary that public agencies provide information regarding those public employees to exclusive representatives." For unions, this expressly articulated legislative intent, along with other favorable provisions, provides a good framework for bargaining.

CFA is among the first unions in the state to complete its bargaining for new employee orientation and employee information.  The CFA-CSU Memorandum of Understanding can be viewed here.

 

The CFA-CSU agreement recognizes the diversity of "onboarding" practices for CSU faculty and provides for meaningful union access to new employees regardless of the orientation and onboarding they receive.  For example, at orientation events, CFA is provided up to 30 minutes in scheduled programs for new faculty.  CFA will be notified of scheduled appointments for onboarding, and will be able to meet with new employees at the scheduled times.  For drop-ins or appointments that CFA staff or member-leaders are unable to attend, the administration has agreed to supply CFA's membership packages on our behalf.

 

We look forward to a full implementation of the new law and to meeting all new employees in the bargaining unit.

 

Bargaining Leads to Agreements Under New California Law on Union Access to New Employee Orientations  

by Rene Castro, A ssistant Vice Chancellor for Employee and Labor Relations, California State University, Office of the Chancellor

 

Under the new law, the California State University (CSU) must provide each union with access to new employee orientations for the bargaining unit it represents. The union must be given no less than 10 days notice of the new employee orientation, except a shorter notice may be provided "where there is an urgent need critical to the employer's operations that was not reasonably foreseeable." (Govt. Code § 3356.)

The new law requires the CSU and the unions to "negotiate regarding the structure, time, and manner of the access of the exclusive representative to a new employee orientation." (Gov. Code § 3557.) "The failure to reach agreement on the structure, time, and manner of the access shall be subject to compulsory interest arbitration pursuant to this section."

 

While some negotiations are still underway, several unions that represent CSU employees have already reached agreement with the Chancellor's Office regarding the implementation of the new law.  The resulting memorandum of agreements (MOUs) reflect the parties recognition that many of our campuses have established orientation processes based on existing agreements and/or practices, including some arrangements that are more favorable than the law requires.  A key factor in the agreements reached to date is that while the negotiated agreements now establish a floor, each campus and their union chapters have the flexibility to arrive at mutually agreed upon campus-based approaches to the implementation of these system-wide MOUs.

 

Another element of the new law is the requirement that CSU provide the unions with the following information for all new hires: "the name, job title, department, work location, work, home, and personal cellular telephone numbers, personal email addresses on file with the employer, and home address of any newly hired employee within 30 days of the date of hire or by the first pay period of the month following hire...." (Govt. Code § 3558).   

 

Virtually all CSU collective bargaining agreements already provide employee information to the union in one manner or another and our approach has been for campuses to continue to provide such information pursuant to the terms of the collective bargaining agreements while simultaneously working with campus chapters to look at mechanisms to incorporate newly mandated information into existing practices.  Not surprisingly, a common goal of the parties going into negotiations regarding the implementation of the new law was to not disrupt what was already working.  Consequently, the parties specifically included language that reflects the spirit of cooperation intended by the parties and a recognition that the MOU was not intended to undermine or discourage campus and local union chapters from developing and/or maintaining mutually agreed upon campus-based practices.

 

The MOUs reached to date run through December 31, 2018, and will be extended automatically if the parties have not agreed to new terms.  However, consistent with the new law, the parties will go to interest arbitration if they are unable to reach agreement within 60 days of bargaining over a successor agreement for new employee orientations.

 

CSU has posted all of the bargaining unit specific MOUs on our website.

Seattle University, NLRB Case Nos. 19-CA-185605 and 19-RC-122863  

 

Following the NLRB's rejection of those arguments in  Seattle University, 364 NLRB No. 84 (2016), SEIU was certified on September 26, 2016 to represent the adjunct faculty unit after the tallying of ballots.  Thereafter, Seattle University refused to bargain resulting in SEIU filing an unfair labor practice charge, which resulted in the issuance of a complaint and a motion for summary judgment by the NLRB General Counsel in October and November 2016.   

 

On October 18, 2017, SEIU filed a motion with the NLRB seeking to remand the case to NLRB Region 19 in order for the Regional Director to approve its request to withdraw the underlying unfair labor practice charge.  Following SEIU's disclaiming of interest in representing the adjunct faculty unit, the case was closed by the NLRB Region 19 Regional Director on January 5, 2018. 

University of Chicago, NLRB Case No. 13-RC-198365

On January 18, 2018, the NLRB Board issued a decision denying a motion by the University of Chicago seeking reconsideration of the Board's December 15, 2017 decision granting, in part, the university's Request for Review of the Regional Director's Supplemental Decision and Certification of Representative. 

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

According to an article in the Harvard Crimson, NLRB Region 1 will be scheduling a 

The following is the agreed-upon student employee unit at Harvard:

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

University of South Florida, FPERC Case No. RC-2017-007  

 

On December 9, 2017, the Florida Public Employees Relations Commission (FPERC) issued a decision and order directing an election concerning a petition filed by SEIU seeking to represent a unit of part-time, non-tenure track faculty at the University of South Florida.  In its decision, FPERC rejected the university's argument that the part-time adjunct faculty are not entitled to unionize because they are designated as "temporary" under university regulations. The agency also rejected the university's argument that the adjunct faculty lack a community of interest under Florida's collective bargaining law.  

 

In reaching its decision, FPERC found the university's regulation was insufficient to deny adjunct faculty the right to unionize under the collective bargaining rights guaranteed by the Florida state constitution and Florida's public sector collective bargaining law.  In addition, the agency found that the facts in the record demonstrated that the adjunct faculty had a reasonable expectation of continued employment.  Lastly, it found that SEIU had met its burden of demonstrating that the proposed unit was appropriate, with the agency citing its recent decisions defining adjunct faculty bargaining units at Broward College and Hillsborough Community College.

 

The following is the adjunct faculty unit found to be appropriate at the University of South Florida:

 

Included: All part-time non-tenure-track faculty (including adjunct faculty, adjuncts-contingent, adjunct, adjunct instruct, skilled craftsman, IntoIPathways, instructor,

instructor I, instructor II, and hourly employee) employed by the University of South Florida at its Tampa Campus, St. Petersburg Campus, and Sarasota-Manatee Campus, who is teaching at least one college-credit-bearing course, including any

employee who also works for the University in another capacity unless expressly excluded.

 

Excluded: All other faculty, including tenured and tenure-track faculty, full-time faculty, visiting or contract faculty, faculty who are currently part of existing bargaining unit, all administrations (including academic advisors, deans, assistants to deans, provost, directors, coordinators, can department chairs), student services advising generalist, athletic coaches, all faculty teaching at the College of Nursing, Morsani College of Medicine, College of Public Health, School of Physical Therapy, School of Biomedical Sciences, and College of Pharmacy, all other employees who are not compensated additions for teaching, managers, confidential employees and supervisors.

NYSBA Labor and Employment Section Annual Meeting: January 26, 2018

National Center Executive Director Bill Herbert will be chairing a panel entitled

Current Labor Relations Issues in Higher Education at the annual meeting of the New York State Bar Association's Labor and Employment Section in New York City on January 26, 2018.  The other panelists will be Mairead E. Connor, a union-side attorney, and Peter D. Conrad, Proskauer Rose LLP.

The panel will explore the legal issues that impact unionization efforts by faculty, graduate students and post-docs under federal and state labor laws.  In addition, the panel will address  Janus v. AFSCME, a case pending before the U.S. Supreme Court, and its potential impact on public sector organizing in higher education.  

 

LERA Boston Chapter Winter Meeting: February 1, 2018

 

On February 1, 2018, National Center Executive Director Bill Herbert will be participating in a panel discussion entitled Back to School: Campus Organizing Revisited as part of the LERA Boston Chapter Winter Meeting in Wellesley, Massachusetts.  The other presenters will be Michael Rutherford, Director, of Employee Relations at the University of Massachusetts, and Karen Rosenberg, UAW Region 9A International Representative.  

Lexington Books recently published an interesting new book The Integration of the UCLA School of Law, 1966-1978 by Miguel Espinoza.  The book describes how a group of law professors at UCLA, including the late Leon Letwin, developed an admissions program, the Legal Education Opportunity Program, that resulted in an expansion of minority students at the school and helped to integrate the legal profession after graduation.  

Online conference registration has begun for the February 10, 2018 annual meeting of the California-AAUP that will take place at Pepperdine University. 

The conference theme is Building and Strengthening Shared Governance: Challenges & Solutions.  The keynote speaker will be Theresa Montaño, Vice President, California Teachers Association, Professor of Chicana/Chicano Studies, CSU Northridge, and former member of the National Center's Board of Advisors.  Her subject will be Faculty Resistance & Voice: Shared Governance in Troubling Times.

The conference will include four panels tied with the theme of building and strengthening shared governance:

• Efforts to Improve Shared Governance at Private Universities
• CSI CSU: Death by Executive Order.  A Cautionary Tale of the Attempted Murder of Shared Governance
• Guided Pathways:  Challenges and Solutions for Shared Governance
• The $48 Fix: Reclaiming the California Master Plan for Higher Education

Registration has begun for the Bargaining for the Common Good in Higher Education Convening that will take place on February 22-24, 2018 at Rutgers University.  It will "bring together leaders from higher education and health care unions, student groups, racial justice and other community organizations from across the country to strategize about how to transform contract negotiations into broader community fights and how to wage inspiring common good campaigns."  For more information, contact Marilyn Sneiderman at  msneiderman@gmail.com .