NATIONAL CENTER
for the Study of Collective Bargaining in Higher Education and the Professions
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June 2020
Our June 2020 newsletter includes an announcement of National Center webinars over the next two months and an update of confirmed panels and speakers for our annual national conference to be held on October 19-20.

In the newsletter, we also report on a new University of Michigan neutrality and card check policy, a decision sustaining a retaliation claim against Florida Polytechnic University, a finding that the University of Pittsburgh submitted an inaccurate eligibility list in response to a faculty representation petition, and an NLRB decision rejecting jurisdiction over retaliation claims challenging the terminations of two faculty members at Bethany College. Lastly, the newsletter includes information about upcoming conferences and events by other institutions and organizations that might be of interest to you along with links to articles in the current volume of the Journal of Collective Bargaining in the Academy.

As always, if you have comments or story ideas please email us.
Save the Dates for Summer Webinars
UPCOMING SUMMER WEBINARS

Save the dates for these upcoming webinars in July and August. Information about registration will be circulated in the near future.

July 24: 1:00-3:00 PM EST
National Inter-Union Academic Labor Webinar
This webinar will be open only to faculty, graduate assistants, post-doctoral scholars and union representatives. It has been organized by the National Center in association with AAUP, AFT, NEA and SEIU.

Featured speakers:

Gary Rhoades , Professor, Educational Policy Studies and Practice Director, Center for The Study of Higher Education, University of Arizona
Rebecca Givan , Vice President, Rutgers AAUP-AFT
Anne McLeer , Director, Higher Education and Strategic Planning, SEIU Local 500
Paul Ortiz , President, University of Florida Chapter, United Faculty of Florida
Andrew Sako , President, Faculty Federation of Erie Community College, NYSUT
Scott Jaschik, Editor, Inside Higher Ed, Moderator

July 30: 12:00-2:00 PM EST
Administrators-Only
COVID-19, Reopening, and Collective Bargaining Webinar
This webinar will be open only to administrators and institutional representatives. It has been organized by the National Center for the Study of Collective Bargaining in Higher Education and the Professions, Hunter College in association with the Academy of Academic Personnel Administrators.

Featured speakers:
Daniel Greenstein, Chancellor, Pennsylvania State System of Higher Education
Lili Palacios-Baldwin, Deputy General Counsel, Tufts University
Judi Burgess, Director of Labor Relations, Boston University
Thomas H. Riley, Executive Director of Labor, University of Illinois System
Missy A. Matella Associate General Counsel, University of Oregon
Paul Carland, General Counsel, Seminole State College

August 20: 12:00-1:30 PM EST
Legal Update on Higher Education Law
This webinar is our annual legal update panel, which will examine issues and cases over the past year including legal subjects related to the pandemic.

Featured speakers:

Aaron Nisenson , Senior Legal Counsel, AAUP
Christian Gobel , SEIU Law Fellow
Henry Morris Jr. , Arent Fox LLP
Michael Loconto , College Counsel, Curry College, Moderator
National Center's 2020 Annual Conference: October 19-20, 2020
The National Center's 47th annual conference has been rescheduled to October 19-20, 2020 in New York City. We are working on contingency plans that will allow us to hold an in-person conference, a blended conference, or a fully virtual conference.

Please fill out this short survey to help us develop the best format and design for the conference. Your input is very important right now in helping us plan.

The conference agenda will include some of the panels on inequality, collective bargaining, and higher education we had developed for the original conference agenda , with additional analysis related to the pandemic's impact.

Paid registrations for our 2020 conference will be applied to the rescheduled conference in October and to our ongoing webinar series.

Stay informed about the October 19-20 conference by visiting our website and our monthly newsletters, as conference plans may change.
TIAA is a sponsor of the National Center's 47th annual conference with additional funding provided by AFT, SEIU, and The Standard Insurance Company.
Conference Keynote Speaker: Steven Greenhouse
Keynote Speaker: Steven Greenhouse

Steven Greenhouse, the former New York Times labor and workplace correspondent, will be the keynote speaker at our rescheduled annual conference in October.

Mr. Greenhouse will be analyzing labor's response to the pandemic in the context of the historical and contemporary themes set forth in his exceptional book Beaten Down, Worked Up: The Past, Present, and Future of American Labor (2019). His book traces U.S. labor history from the 20th Century up to and including the first two decades of the 21st Century. The book was published last year by Knopf.
Conference Plenary: The Student Debt Crisis
The Student Debt Crisis: History, Consequences, and Post-Pandemic Solutions with Elizabeth Tandy Shermer, Associate Professor, Loyola University Chicago, Caitlin Zaloom, Associate Professor of Social and Cultural Analysis, New York University, Jennifer Mishory, Senior Fellow and Senior Policy Advisor, Century Foundation, and Suzanne Kahn, Deputy Director of the Great Democracy Initiative and Education Program at the Roosevelt Institute.

Professor Zaloom is the author of the new book titled Indebted: How Families Make College Work at Any Cost, published by Princeton University Press. Professor Shermer is working on an up-coming book examining the history of the student debt industry.

Jennifer Mishory and Suzanne Kahn are co-authors of a paper titled Bridging Progressive Policy Debates: How Student Debt and the Racial Wealth Gap Reinforce Each Other . Suzanne Kahn also recently authored another paper titled A Progressive Framework for Free College .
Confirmed October Conference Panels
The following is a list of other confirmed panels for the October 19-20, 2020 conference:

Panel: Growth in Union Density Among Academic Labor, 2012-2019 with Jacob Apkarian, Assistant Professor of Sociology, Department of Behavioral Sciences, York College, CUNY and National Center Affiliated Researcher, Joseph van der Naald,
Graduate Student Researcher, Program in Sociology, Graduate Center, CUNY and National Center Affiliated Researcher, and William A. Herbert, Distinguished Lecturer and National Center Executive Director, Moderator and Presenter.

Panel: Affirmative Action in Higher Education, Post-Pandemic with Cara McClellan, Assistant Counsel, NAACP Legal Defense and Educational Fund, Risa Lieberwitz, General Counsel, AAUP and Professor of Labor and Employment Law, Cornell University School of Industrial and Labor Relations, Victor Goode, Associate Professor, CUNY Law School, and Lili Palacios-Baldwin, Deputy General Counsel for Labor, Employment & Litigation, Tufts University, Moderator.

Panel: Negotiating for Part-Time Faculty Equity with Will Silvio, President, Berklee College of Music Faculty Union, Jay Kennedy, Berklee College of Music Vice President for Academic Affairs/Vice Provost, Darryl Wood, NYSUT Labor Relations Specialist, Dia M.Carleton, Chief Human Resources Officer, SUNY Oneonta, and Beth Margolis, Gladstein, Reif & Meginniss, LLP, Moderator.

Retirement Plan Trends and the COVID-19 Pandemic with Christina Cutlip, TIAA, Senior Managing Director | Institutional Relationships, Facilitator, Steven Kronheim, Managing Director & Associate General Counsel, TIAA, Patricia McConnell, Levy, Ratner, PC, and Susan E. Bernstein, Schulte, Roth & Zabel LLP.

Panel: Higher Education Funding After the Pandemic with Fred Floss, Professor and Chair, Department of Economics and Finance, SUNY Buffalo State University and Fiscal Policy Institute, Senior Fellow, Thomas Anderson, Executive Director, Union of Part-Time Faculty, AFT Local 477, AFL-CIO, Thomas L. Harnisch, Vice President for Government Relations, State Higher Education Executive Officers Association (panel in formation).

Panel: Contingent Faculty, Job Security, and Academic Freedom with Carl Levine, Levy Ratner P.C., Keila Tennant, Associate General Counsel and VP for Labor Relations, The New School, Sonam Singh, former Unit Chair, BCF-UAW Local 2110 and Barry Miller, Senior Policy Advisor on Labour Relations, Office of the Provost, York University, Moderator.
 
Panel: Reasonable Accommodations for Faculty and Teaching Assistants with Jamie Daniel, former AAUP National Field Service Representative , Alexandra (Sascha) Matish, Associate Vice Provost for Academic and Faculty Affairs and Senior Director, Academic Human Resources, University of Michigan, Laura Yvonne Bulk, President, Canadian Union of Public Employees, Local 2278, PhD Candidate, Rehabilitation Sciences, The University of British Columbia , John Rose, Dean for Diversity, Hunter College, and Barbara Aloni, Disability & Productivity Consultant, The Standard Insurance.

Panel: Collective Bargaining from All Sides: Unionism, the Faculty Senate, Contingent Faculty, and Academic Administration with Jon E. Bekken, Albright College, David Hamilton Golland, Governors State University, Nelson Ouellet, Université de Moncton, Naomi R Williams, Rutgers University, and Theodore Curry, Associate Provost, Associate VP, Michigan State University, Moderator and Commentator.

Panel: Mass Incarceration and Higher Education with Patrick Mitchell, Board Member, Community College Association, CTA, NEA, Michelle Jones, Doctoral Student, New York University, and Bidhan Chandra Roy, College of Arts and Letters, California State University, Los Angeles, Participant and Moderator (panel in formation).

Panel: LGBTQ Labor Issues in Higher Education After Bostock v. Clayton County with Barbara J. Diamond, Diamond Law, Portland, Oregon, Mellissa Sortman, Director of Academic Human Resources, Michigan State University, and Elizabeth S. Hough, Counsel to the President, United University Professions (panel in formation).
Research on COVID-19 and Collective Bargaining
The National Center is conducting a research project to examine the use of collective bargaining in higher education during COVID-19 crisis.

To assist with our research, we request that you upload a copy of labor-management agreements that have been reached on your campus over the past three months in response to the pandemic.
University of Michigan: Regents Adopts Neutrality and Card Check Policy

The resolution is an extraordinary university statement of values and policies concerning unionization and collectively bargaining in higher education. It is a reminder that institutions do not have to wait for remedial labor legislation to adopt procedures to expand collective workplace rights on campus.

Under the resolution, the university “recognizes and supports the fundamental right of its employees to form unions and bargaining collectively." More significantly, the Board of Regents has directed that university officials and supervisors remain neutral and not express an opinion concerning any organizing efforts by university employees. It also prohibits threats, intimidation, discrimination, or retaliation against employees relating to their position on the issue of union representation.

In addition, the resolution modifies the standards and procedures for determining unit composition and whether a union has majority support among employees in the at-issue unit. Instead of relying on the Michigan Employment Relations Commission (MERC) to determine what is an appropriate unit, through application of a community of interest standard, the University of Michigan will now accept a union’s proposed bargaining unit as long as it is “reasonable.” 

Any dispute between the university and a union concerning the reasonableness of a proposed unit will be resolved through binding arbitration rather than by MERC. This new policy regarding bargaining unit composition might set the stage for campus-based or departmental bargaining units, rather than university-wide units.

Lastly, the new resolution requires the university to certify a union to represent a bargaining unit following a card check conducted by a third party, rather than an election. The use of card check procedures has a long history , particularly in the public sector. 

Pursuant to the resolution, the university must take all necessary steps to enforce the new policies. It will be interesting to see whether other institutions follow the lead of the University of Michigan by taking concrete steps to demonstrate their recognition and support for the rights of university workers to unionize and to engage in collective negotiations.
Florida Polytechnic Univ.: Professor Disciplined for Protected Activity
Florida Polytechnic University, FPERC Case No. CA-2019-044

On May 21, 2020, Florida Public Employees Relations Board (FPERC) affirmed a hearing officer's decision finding that Florida Polytechnic University engaged in an unfair labor practice by disciplining Professor Melissa Morris in retaliation for her union activity including her testimony in an earlier unfair labor practice case against the university. The hearing officer found that the evidence established that the university manufactured reasons for disciplining Morris following her testimony in the earlier case.

FPERC ordered the university to rescind the disciplinary action against Morris and to pay reasonable attorney's fees to her union, United Faculty of Florida.
University of Pittsburgh: USW Objections Sustained by Hearing Officer
University of Pittsburgh, PLRB Case No. PERA-R-19-2-W

On June 25, 2020, Pennsylvania Labor Relations Board (PLRB) Hearing Officer Stephen A. Helmerich issued an order sustaining objections by the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC (USW) to the eligibility list submitted by the University of Pittsburgh in response to the USW petition seeking to represent a unit of full-time, regular part-time, and non-tenure track faculty and librarians.

The objections were filed following the dismissal of the USW's representation petition by the PLRB Secretary to the Board on the grounds that USW had failed to submit a sufficient showing of support based on the size of the university's eligibility list.

Following a hearing, PLRB Hearing Officer Helmerich concluded that the university's eligibility list was factually and legally inaccurate by including supervisory and managerial employees as well as casual employees without a sufficient community of interest with the full-time and regular part-time employees. Therefore, he ordered that the case be remanded to the PLRB Secretary of the Board to determine whether USW had submitted a sufficient showing of interest based on a revised eligibility list consistent with his decision.
Bethany College: NLRB Rejects Jurisdiction Over Retaliation Claims
Bethany College, 389 NLRB No. 98 (2020)

On June 10, 2020, the National Labor Relations Board issued a decision reversing an administrative law judge (ALJ) decision and dismissing an unfair labor practice complaint against Bethany College, located in Kansas, for its retaliation against two faculty members.

On October 31, 2018, the ALJ had ruled that Bethany College had engaged in an unfair labor practice by, inter alia , discharging faculty member Thomas Jorsch and refusing to renew the contract of faculty member Lisa Guinn in retaliation for engaging in protected concerted activities. Specifically, the ALJ found that Jorsch and Guinn were terminated in retaliation for Jorsch distributing to other faculty members an open letter he had sent to the college president concerning the fairness of the tenure process. 
 
The retaliatory motivation of Jorsch’s discharge was spelled out in the letter of termination, describing his open letter as a “blatant act of insubordination and was exacerbated by your choice to publicize the issues by sending copies of the letter to the Bethany College faculty and others.”
 
In addition, the ALJ found Bethany College had engaged in other unfair labor practices by maintaining a rule that prohibited faculty from discussing their workplace conditions with each other and by asking faculty to sign a non-disclosure agreement concerning a proposed tenure plan.  
 
In reversing the ALJ’s decision, the NLRB Board did not disturb the factual and legal conclusions underlying the findings of discrimination and retaliation. Instead, it reversed the ALJ on the grounds that the agency lacked jurisdiction to hear and determine a claim of discrimination and retaliation because of the school's religious affiliation under NLRB v. Catholic Bishop , 440 U.S. 490 (1979).
 
In reaching its decision, the NLRB rejected the legal standard announced and applied in Pacific Lutheran University, 361 NLRB 1404 (2014) for determining whether to assert jurisdiction over a religiously-affiliated institution because it was not consistent with prior federal appellate rulings in Carroll College v. NLRB, 558 NLRB 568 (D.C. Cir. 2009) and University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002)

Under those prior appellate decisions, in order to avoid potential entanglement in religious affairs in violation of the First Amendment, the NLRB should decline jurisdiction over a religious-affiliated institution when it (a) “holds itself out to students , faculty, and community as providing a religious educational environment”; (b) is “organized as a nonprofit”; and (c) is “affiliated with, or owned, operated, or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion.”

Unless reversed on appeal, the Bethany College decision means that faculty at most religiously-affiliated institutions have no enforceable federal labor law protections for
collective activities in the workplace. Furthermore, without enforceable labor rights, institutions like St. Xavier University can terminate a decades-old faculty collective bargaining relationship following the expiration of a contract.

Nevertheless, faculty at religious-affiliated institutions might still have protections under state laws regulating private sector labor relations. Kansas has a labor law, K.S.A. 44-803, that grants private employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection and at least one federal appellate court has held that the First Amendment does not prohibit a state labor relations agency from exercising jurisdiction over labor relations between a parochial school and its lay teachers. See, Catholic High School Assn v. Culvert, 753 F.2d 1161 (2d Cir. 1985).
Journal of Collective Bargaining in the Academy, Vol. 11
Journal of CBA Logo
Below are links to articles that appear in Volume 11 of the Journal of Collective Bargaining in the Academy, our peer review multi-disciplinary journal co-edited by Jeffrey Cross, Eastern Illinois University (Emeritus), and Gary Rhoades, University of Arizona.

Op-Eds:



Articles:


Rodrigo Dominguez-Villegas, Laurel Smith-Doerr, Henry Renski, and Laras Sekarasih,





Practitioner Perspectives



We encourage scholars and practitioners in the fields of collective bargaining, labor relations, and labor history to submit articles for potential publication for Volume 12 of the Journal.

The Journal of Collective Bargaining in the Academy is supported, in part, by a generous contribution from TIAA and is hosted by the institutional repository of Eastern Illinois University.
NYU Labor and Center for Labor and Employment Law Events
Our friends at the NYU Center for Labor and Employment Law have announced the schedule for two important upcoming programs:


COVID-19 Challenges
for Workplace Safety & Dispute Resolution

Thursday, September 17, 2020
8:30am-12:00pm

The current pandemic raises new questions about the boundaries of employer obligations and employee rights regarding a safe workplace. How do we protect employee privacy and safety while also sustaining business and jobs during an economic crisis and expected rise in COVID related lawsuits? In addition, employers and workers, like all litigants, will need guidance on how to move claims to resolution in an increasingly virtual pandemic setting. Topics covered include Employment Dispute Resolution (Litigation, Arbitration & Mediation, Collective Bargaining) and Workplace Safety (OSHA, Worker's Compensation, State Tort Liability). Join the Webinar to explore these important issues.

 The NYU 73rd Annual Conference on Labor:
Pay Equity and Issues of Inequality at Work

DAY 1 – THURSDAY, OCTOBER 1

KEYNOTE ADDRESS: HON. EUGENE SCALIA (U.S. SECRETARY OF LABOR)


WHAT DO WE KNOW ABOUT WORKPLACE INEQUALITY?
Is Income Inequality Getting Worse and If So, Why?
Prof. Richard B. Freeman (Harvard)

Causes of Inequality in the Workplace
Prof. Matthew Bodie (St. Louis Univ. School of Law)

ADDRESSING GENDER PAY EQUITY ISSUES
Corporate Reporting Requirements, Shareholder Activism & State Law Approaches
Michael Delikat (Orrick)

EEOC Pay Disclosure Initiatives, Past and Future
David Lopez (Rutgers Law School; former GC, EEOC)

Role of Internal Audits: Pay Equity Claims
Joseph O’Keefe (Proskauer)

LUNCH: HON. CHARLOTTE BURROWS (COMMISSIONER, EEOC)

ADDRESSING WORKPLACE INEQUALITY
Joint Employer’ Issues
Prof. Michael C. Harper (Boston Univ.)

Bolstering Union Power
Prof. Catherine Fisk (Berkeley Law School)

Role of Antidiscrimination & Equal Pay Litigation
Joseph Sellers (Cohen Milstein)

No-Compete Clauses as a Brake on Employee Wage Gains
Prof. Orly Lobel (Univ. of San Diego Law School)


DAY 2 – FRIDAY, OCTOBER 2

KEYNOTE ADDRESS: HON. JOHN F. RING (CHAIRMAN, NLRB)

RE-VISITING CORPORATE PURPOSE
Prof. Edward Rock (NYU School of Law)

REDUCING INCOME INEQUALITY THROUGH PROFIT SHARING
Prof. Joseph Blasi (Rutgers School of Management)

PAY EQUITY ISSUES IN THE SPORTS ARENA
Jeffrey Kessler (Winston Strawn)

LUNCH: EQUALITY INITIATIVES IN THE OFCCP
Craig Leen, Director (USDOL, OFCCP)

COMPARATIVE PERSPECTIVES
Wendi Lazar (Outten & Golden)
Littler Mendelson International Offices:
Hannah Mahon, London
Sari Springer, Toronto
Juan Carlos Varela, Caracas
Hironobu Tsukamoto (Nagashima Ohno)

PROFESSIONAL RESPONSIBILITY/
DIVERSITY, INCLUSION, ELIMINATION OF BIAS IN THE PRACTICE OF LAW
Speakers TBA

This event is seeking approval for New York State CLE credit. If approved, it will be appropriate for both experienced and newly admitted attorneys. In the past, this program has received approximately 11.5 hours of CLE credit, including 1.5 hours of ethics/professionalism.

REGISTRATION WILL OPEN IN MID-JULY AT

FOR INFORMATION, CONTACT: labor.center@nyu.edu
COCAL Biennial Conference Postponed
The Coalition of Contingent Academic Labor (COCAL) has postponed its 2020 biennial conference originally scheduled for August 7-9, 2020 in Queretaro City, Mexico. It is planning an online event for September.

COCAL is a network of North American activists working to improve higher education by improving the work environment of contingent academic laborers. They strive to achieve job reliability, better wages, academic freedom, and time and resources for academic research and professional development.

Details concerning the 2020 biannual conference is available here: https://cocalinternational.org/
Teaching Labor's Story: Resources for the Classroom and Beyond



TEACHING LABOR’S STORY
RESOURCES for the CLASSROOM & BEYOND
from the
LABOR AND WORKING-CLASS HISTORY ASSOCIATION
 
Announcement and Call for Submissions:
 
Teaching Labor’s Story (TLS) is a project of the Labor and Working-Class History Association (LAWCHA). Its on-line repository of chronologically organized materials is dedicated to providing teachers, labor educators, workers, and the public with resources that can be readily incorporated into existing curriculum.
 
Teaching Labor’s Story furthers LAWCHA’s mission to “promote public and scholarly awareness of labor and working-class history” and its commitment to “teaching labor history in the classroom, from K12 to colleges and universities.”
 
WHAT? Each TLS entry has two parts: 

·     A primary source carefully selected to reveal labor voices, experiences and actions during a commonly recognized historical era or event. Primary sources may be textual, visual, or audio. (length: 1-2 pages)

·     A custom-written teaching guide accompanies each primary source. Teaching guides follow a common template that includes a short essay that contextualizes and explains the source (highlighting both broad trends and noteworthy particularities); identifies the primary source’s connection to established history curriculum; and provides a brief glossary of terms, discussion or writing prompts, and suggests additional resources. (length 4-7 pages)
 
WHO?  Teaching Labor’s Story entries are written by labor history scholars. Each TLS entry is peer-reviewed. This ensures accessible, high quality teaching resources for users, and professional publishing opportunities for authors.
Interested in using TLS resources? Interested in writing a TLS entry?
LAWCHA.org and navigate to Teaching Resources page.
For more information: lawcha.tls@gmail.com
National Center for the Study of Collective Bargaining
in Higher Education and the Professions
Hunter College, City University of New York
425 E 25th St.
Box 615
New York, NY 10010
Copyright © 2020. All Rights Reserved.