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August 2016
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.

11.   University of Central Florida: DFR Claim Against UFF Dismissed

13.   2016 Podcast Conference Podcast: The Impact of Faculty Unit Composition
Save the Date: March 26-28, 2017 
The National Center's 44th Annual Conference at the CUNY Graduate Center in New York City
Call for Papers, Presentations, and Workshops for 2017 Conference
The National Center has issued a Call for Papers, Presentations and Workshops for
our 2017 annual conference. The deadline for the submission of proposals is September 30, 2016.  Submissions should be made via email to this address:

We also welcome proposals by scholars on other topics as well as with respect to recently published books relevant to labor relations and collective bargaining.   
Columbia University: NLRB Rules for Graduate and Research Assistants 
Trustees of Columbia University, NLRB Case No. 02-RC-143012

In a 3-1 decision, the National Labor Relations Board (NLRB) on August 23, 2016 ruled that graduate and undergraduate teaching assistants and graduate research assistants at Columbia University are employees entitled to the rights guaranteed by the National Labor Relations Act.  In reaching its decision, the NLRB majority overturned a 2004 decision in Brown University, 342 NLRB 483 (2004) where the NLRB Board had found that graduate student assistants were not employees under section 2(3) of the National Labor Relations Act (NLRA). 

Another case concerning teaching and research assistants at the New School remains pending at the NLRB.  In that case, the UAW seeks to represent all student employees who provide teaching, instruction or research services.  It is unclear why the NLRB chose not to decide that the New School case together with the Columbia University case.

The Columbia University decision is very significant for higher education.   It sets the legal stage for a new round of representation petitions to be filed on behalf of graduate teaching and research assistants at many private sector campuses.  It also sets the stage for representational efforts by undergraduate teaching assistants at other institutions.  The results of those representation cases will likely lead to new collective bargaining relationships on private sector campuses. 

There are already organizing efforts taking place among graduate and research assistants throughout the country.  In some cases the organizing is taking place on campuses like Duke University and the University of Chicago where adjunct faculty were successful in unionizing over the past few years.  At Cornell University, the issuance of the decision will result in the implementation of the May 16, 2016 agreement for a non-NLRB procedure to determine the majority status of Cornell Graduate Students United/NYSUT/AFT. 

Over the next year, and the years to follow, the Columbia University decision will be the subject of extensive commentary and analysis.  It might also be the subject of future litigation before the NLRB and in federal court.  Unionization and collective bargaining issues concerning teaching and research assistants on college campuses will certainly be hot topics at the National Center's March 26-28, 2017 conference. 
Seattle University: NLRB Declines Jurisdiction Over Theology Faculty
Seattle University, NLRB Case No. 19-RC-122863

On August 23, 2016, the NLRB issued an important decision relating to adjunct faculty unionization efforts at Seattle University and other religiously-affiliated colleges and universities. 

SEIU filed a representation petition on February 20, 2014 seeking to represent all non-tenure track faculty at Seattle University with the exception of those who teach law and nursing.  During the processing of the petition, the NLRB issued its decision in Pacific Lutheran University, 361 NLRB No. 157 (2014).  In Pacific Lutheran University, the NLRB adopted a two-part test to determine whether it should assert jurisdiction over a question of representation at a religiously-affiliated school and avoid the First Amendment concerns set forth in the United States Supreme Court decision in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979).  Under the Pacific Lutheran University two-part test, the agency first determines whether the university or college holds itself out as providing a religious educational environment.  In the second part of the test, the agency examines whether the at-issue faculty are held out by the university or college as performing duties in furtherance of the institution's religious mission.

In applying the Pacific Lutheran University two-part test in Seattle University, the NLRB concluded that the "vast majority" of the at-issue faculty "are not hired to advance the religious goals of the institution."  At the same time, the NLRB found that the university demonstrated that contingent faculty employed in the Department of Theology and Religious and in the School of Theology and Ministry are held out as performing responsibilities to further the institution's religious mission. 

As a result of the latter determination, the NLRB ruled that it can assert jurisdiction over the question of representation concerning the majority of the contingent faculty at Seattle University without giving rise to First Amendment concerns.  However, it declined jurisdiction with respect to the faculty in the Department of Theology and Religious and in the School of Theology and Ministry, and ordered that those faculty members be excluded from the contingent faculty bargaining unit. 

The Seattle University decision is the first time that the NLRB since Pacific Lutheran University has utilized First Amendment concerns to carve out certain faculty from the scope of a faculty bargaining unit.  It will be interesting to see whether the NLRB will apply the same uniting approach in future cases involving another perennial issue in higher education: whether faculty are managerial under NLRB v. Yeshiva University, 444 U.S. 672 (1980).  If it adopts that approach, the agency could determine that some tenure track faculty are entitled to be in a collective bargaining unit under the National Labor Relations Act because they, unlike their colleagues, are not individually involved with the primary or secondary areas of institutional decision-making.
Saint Xavier Univ.: NLRB Declines Jurisdiction Over Religious Faculty 
Saint Xavier University, NLRB Case No. 13-RC-022025
On August 23, 2016, the NLRB issued a decision applying its holding in Seattle
University, 364 NLRB No. 84 (2016) to a representation petition filed by NEA in April 2011 seeking to represent a unit of part-time faculty at Saint Xavier University in Chicago.  During the processing of the petition, and well after the conduct of the representation election, the NLRB issued its decision in Pacific Lutheran University, 361 NLRB No. 157 (2014). 

In applying the Pacific Lutheran University two-part test to the factual record in Saint Xaiver University, the NLRB concluded the school holds itself out as providing a religious educational environment and holds out the part-time faculty in the Department of Religious Studies as performing a specific role in maintaining the school's religious educational environment.  As a result, the NLRB rejected the university's challenge to the assertion of jurisdiction over the entire part-time unit but ruled that the faculty in the Department of Religious Studies should be excluded from the bargaining unit.  The case has been remanded to the NLRB Regional Director who will presumably open and tally the impounded ballots from the 2011 election.
 Bentley University: First Contract Reached for Part-Time Adjunct Unit
Bentley University and SEIU have reached a 4-year first contract for a bargaining unit of part-time adjunct faculty.  In 2015, the NLRB certified SEIU as the exclusive representative of the unit composed of approximately 229 adjunct faculty members.

The minimum pay under the agreement for teaching an undergraduate course will be:
$5,600.00, effective July 1, 2016; $5,900.00, effective July 1, 2017; $6,200.00, effective July 1, 2018; and $6,500.00, effective July 1, 2019. 

The university has also agreed to establish a professional development fund and contribute $25,000.00 each year.  Adjunct faculty who have taught a minimum of six courses at the university will be eligible to apply for reimbursement related to "scholarship, civil engagement, artistic and or professional practice which will contribute to the improvement of teaching."

The agreement recognizes the right of adjunct faculty to have the same degree of academic freedom "as all other faculty members involved in teaching or scholarship."  Disputes concerning academic freedom will be resolved under the faculty manual, except in disciplinary cases where the issue will be determined through the agreement's grievance/arbitration procedure.  The article concerning discipline requires the university to have just cause to discipline, suspend or terminate an adjunct faculty member. 
Goucher College: New Vote Count to Include 10 Challenged Ballots
Goucher College, NLRB Case No. 05-RC-139478

The NLRB Board issued a decision on August 11, 2016 ordering a new vote count to include 10 ballots that had been challenged in a representation election concerning non-tenure track full-time, part-time and half-time faculty, and post-doctoral teaching fellows at Goucher College.  The original December 9, 2014 ballot tally found that 33 faculty had voted in favor of representation, and 33 had voted against.  The number of challenged ballots were sufficient to impact the outcome of the election. 

The substance of the NLRB decision focused on legal issues surrounding five challenged ballots cast by a post-doctoral teaching fellow and four visiting or replacement non-tenure track faculty subject to terminal agreements.  The NLRB majority rejected the challenges to the five ballots concluding that the positions of all five faculty members were unambiguously included in the stipulated election agreement.  In addition, the majority found that the college failed to demonstrate that visiting or replacement faculty were temporary employees who lacked a community of interest with other non-tenure track faculty in the unit.  In reaching that conclusion, the Board majority relied upon precedent to support the following principle: "In an academic setting, terminal contract faculty members who are not being rehired after the expiration of their current contracts share a community of interest during their employment with, and are properly included in, an overall faculty unit."

The following is the description of the bargaining unit set forth in the stipulated election agreement between Goucher College and SEIU:

All full-time, part-time and half-time, non-tenure and non-tenure track faculty employed by Goucher College to teach at least one credit bearing classes, lessons or labs (including but not limited to Post-Doctoral Teaching Fellows) on its campus located at 1021 Dulaney Valley Road, Baltimore, Maryland 21204; but excluding all graduate and post graduate faculty and teaching fellows, all faculty in the Welch Graduate Studies Center, all tenure and tenure track faculty, all other employees whether or not they have teaching responsibilities, including but not limited to program directors, department chairs, graduate students, teaching associates, teaching assistants, librarians, registrars, deans, provosts, administrators, coaches, office clerical employees, managers, confidential employees, guards and supervisors as defined in the Act.
Marist College: NLRB Rules on Objections in Adjunct Faculty Election
Marist College, NLRB Case No. 03-RC-127374

The NLRB Board issued a decision on August 24, 2016 that determined election objections in a representation election conducted in June 2014 concerning a petition filed by SEIU seeking to represent a unit of adjunct faculty employed at Marist College.  The ballot tally on June 30, 2014 found that 154 faculty members voted in favor of unionization and 165 voted against representation.  There were, however, 87 challenged ballots that were sufficient to impact the election outcome. 

In its decision, the NLRB adopted the hearing officer's recommendations to sustain SEIU's challenges to ballots by 33 employees employed at Marist College with dual appointments as adjunct faculty and in other positions.  In reaching its decision the NLRB found that the parties intended in their stipulated election agreement to exclude dual-function adjuncts based on the phrase "all other employees whether or not they have teaching responsibilities."  As a result, those ballots will not be counted in a new  tally to be conducted by NLRB Region 3. The new tally will include 40 ballots that were the subject of unsuccessful challenges. 

The following is the bargaining unit description agreed to between SEIU and Marist College in a stipulated election agreement, dated April 28, 2014:

All adjunct faculty employed by the Employer who teach undergraduate and/or graduate level courses, who teach in the classroom and/or online, and who teach courses at either the Employer's Poughkeepsie, New York campus or its Fishkill, New York campus, and Student Teaching Supervisors; but excluding all other faculty, tenured and tenure eligible faculty, full-time faculty and faculty who only teach in the classroom at locations other than the Poughkeepsie Campus or the Fishkill Campus,
administrators, coaches, librarians, directors, managers, guards, supervisors and professional employees as defined in the Act, and all other employees whether or not they have teaching responsibilities.   
Northwestern Univ.: Revised Tally of Adjunct Faculty Ballot Count
Northwestern University , NLRB Case No. 13-RC-177943
In our July 2016 E-Note we reported on the July 19, 2016 vote count from the mail ballot election conducted by the NLRB concerning a representation petition filed by SEIU seeking to represent approximately 678 adjunct faculty at Northwestern University.  The tally showed that 210 adjunct faculty had voted in favor of representation, 146 voted against and an additional 134 ballots were challenged. 

On August 11, 2016, the National Labor Relations Board Region 13 issued a revised tally of ballots from the representation election at Northwestern University.  The revised tally shows that of the 414 ballots cast, 223 were in favor of union representation, 191 were against.  An additional 71 ballots were challenged, and four were voided.  The revised tally might have been the result of an agreement reached between the university and SEIU resolving a portion of the original challenges.  
A hearing concerning the remaining challenges was scheduled by the NLRB Region 13 Director to commence on August 23, 2016.

The following is the at-issue adjunct unit at Northwestern University:

Included: All full-time and part-time graduate and undergraduate non-tenure-eligible faculty (including the following titles: Adjunct Faculty; Adjunct Instructors; Adjunct Lecturers; Adjunct Assistant Professors; Adjunct Associate Professors; Adjunct Professors; Clinical Assistant Professors; Clinical Associate Professors; Clinical Professors; Artists-in-Residence; Instructors; Lecturers; Senior Lecturers; Distinguished Senior Lecturers; Visiting Assistant Professors in the Weinberg College of Arts and Sciences; Assistant Professors of Instruction; Associate Professors of Instruction; Professors of Instruction; and Weinberg College of Arts and Sciences Advisors who hold teaching-track appointments) employed by Northwestern University and have taught at least one credit bearing course in a degree granting program at Weinberg College of Arts and Sciences, McCormick School of Engineering & Applied Sciences, Bienen School of Music, the School of Communication, the School of Education & Social Policy, Medill School of Journalism, and the Graduate School.

Excluded: All tenured faculty, tenure-eligible faculty, emeritus faculty, Postdoctoral Fellows, Visiting Postdocs, All Other Postdoctoral Job Classifications, Visiting Faculty, Visiting Lecturers, Visiting Scholars, Visiting Associate Professors, Visiting Professors, Research Assistant Professors, Research Associate Professors, Research Professors, faculty in non-degree granting programs, the Feinberg School of Medicine faculty, the Pritzker Law School faculty, the Kellogg School of Business faculty, the School for Professional Studies faculty, Northwestern in Qatar faculty, all faculty teaching only at the Chicago or Doha campuses, all administrators (including deans, directors, provosts, and chairs who may have teaching assignments), other administrators and staff who have teaching assignments, faculty who are paid directly or indirectly by other entities including governments, other academic institutions and other organizations, graduate students, athletic coaches, all other employees employed at the University, including those who teach a class or course and are separately compensated for such teaching, managers, confidential employees, office clerical employees, and guards and supervisors as defined in the Act. Those eligible to vote in the election are employees in the above unit who were employed during the payroll period ending May 31, 2016, and who have taught at least one credit bearing course in a degree granting program in the Spring 2016, Winter 2016 or Fall 2015 quarters, and who were also active in the University's HRIS system as of May 31, 2016.
Ivy Tech CC: Adjunct Faculty's Sexual Orientation Claim Dismissed 
Hively v. Ivy Tech Community College, Case N o. 15-1720  (7th Cir. 2016)
The United States Court of Appeals for the Seventh Circuit issued an opinion on July 28, 2016 affirming the dismissal of a discrimination claim filed by adjunct faculty member Kimberly Hively against Ivy Tech Community College under Title VII of the Civil Rights Act of 1964.  In her lawsuit, Hively alleged that she had been the subject of unlawful discrimination based upon her sexual orientation when she was rejected for full-time positions over a five-year period. In the lower court, Hively had cited a statement in the College's employee handbook that it will not discriminate based on sexual orientation.  However, her lawsuit did not include a breach of contract claim premised on an alleged violation of the handbook.  
The federal appellate court in reaching its decision reaffirmed its construction of the prohibition against sex discrimination under Title VII to not include discrimination based on sexual orientation. Title VII does not explicitly prohibit discrimination based on sexual orientation unlike a number of state and local anti-discrimination statutes.  In arriving at its decision, the appellate court acknowledged that the United States Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcing Title VII, recently concluded that sexual orientation discrimination was a form of sex discrimination because it involves an employee being treated less favorably because of her or his sex.   The court, however, did not find the EEOC decision, and similar decisions by other federal appellate courts, to be sufficiently persuasive to reject its own precedent concerning the application of Title VII to claims of sexual orientation discrimination.  
Despite its holding dismissing the case, the court emphasized that "[i]t seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry."  
University of Central Florida: DFR Claim Against UFF Dismissed
Ramanlal v. United Faculty of Florida-University of Central Florida Chapter,
PERC Case No. CB-2016-012

The Florida Public Employees Relations Commission (PERC) issued a decision recently affirming the dismissal  of an amended charge by a faculty member 
Pradipkumar Ramanlal  at the University of Central Florida who alleged that the United Faculty of Florida violated the duty of fair representation when the union denied him representation at an arbitration hearing concerning his grievance.

In his grievance, Ramanlal challenged the university's grant of a discretionary salary increase to a colleague while denying a similar increase to him.  Ramanal presented his grievance to the university at the first two steps of the grievance procedure.  At the third step, the United Faculty of Florida examined the grievance and determined that it lacked merit under the parties' collective bargaining agreement.  The union's decision was made after it conducted a formal hearing during which Ramanlal presented his arguments in support of the grievance.  Following the hearing, the union deliberated on the grievance's merit, and provided Ramanlal with a written explanation for its decision to deny him representation at the arbitration citing the applicable contract language.

In affirming the dismissal of Ramanlal's duty of fair representation charge, Florida PERC reaffirmed that a union has wide discretion in administering the contract grievance process, and it can refuse to process non-meritorious grievances as long as the decision is not arbitrary, discriminatory or in bad faith.  The agency found that the record demonstrated that the union had not violated its duty of fair representation because it carefully examined the merits of the grievance at a formal hearing, engaging in extensive deliberations, and provided Ramanlal with its analysis in writing.      
Rowan Univ.: Physician Resident Dismissal Not Subject to Arbitration 
In Matter of State of New York and Rowan University, Docket No. SN-2015-030 

The New Jersey Superior Court Appellate Division issued a decision on July 26, 2016
affirming a decision of the New Jersey Public Employment Relations Commission (PERC) to stay the arbitration of a grievance against Rowan University School of Osteopathic Medicine by a second year resident challenging his dismissal from the residency program.  

The resident was dismissed from the program after school officials concluded that he intentionally performed an unnecessary surgical procedure on patients to gain experience.  The resident challenged the dismissal under the just cause provision of the collective bargaining agreement for the school's interns, residents and fellows.  The university refused to process the grievance, and ultimately filed a request with PERC to stay the arbitration of the grievance.  In 2015, PERC stayed the arbitration on the grounds that an arbitrator should not be allowed to review the judgment made concerning the resident's performance and whether he should remain the program. PERC concluded:  "We decline to allow an arbitrator to second-guess the University's medical and academic judgment of the performance of a resident physician and suitability for continuing in the program. We find that, under these circumstances, the University's academic freedom interests predominate and the Act cannot be applied to permit binding arbitration to frustrate those interests."

In affirming PERC, the New Jersey appellate court found that the stay was appropriate because the decision to dismiss was an academic and medical judgment, and an arbitration of the decision "would significantly interfere with the policies of protecting academic freedom and ensuring the proper training of doctors."   
2016 Conference Podcast: The Impact of Faculty Unit Composition
Click here for a podcast of the panel discussion from our 2016 conference on the impact of faculty unit composition on collective bargaining. The panelists are: 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; and Kenneth Doxsee, Vice Provost for Academic Affairs, University of Oregon.  The panel moderator is Deborah Cooperstein, Adelphi University AAUP Chapter President.
2016 Conference Podcast: America's Public Regional Universities: Collective Bargaining Matters
Click here for a podcast of the panel discussion from our 2016 conference entitled America's Regional Public Universities: Collective Bargaining Matters.  The panelists are: Stephen Katsinas, Director and Professor, University of Alabama Education Policy Center; Theodore Curry, Associate Provost, Associate Vice President, Academic Human Resources, Michigan State University; and Fred Floss, Fiscal Policy Institute Senior Fellow.  The panel moderator is Gail Brooks, Vice Chancellor, Human Resources Emerita, CSU, Interim Vice-President Human Resources CSU, Fullerton.
2016 Conference Podcast: Higher Education Issues at Public
Sector Labor Boards

Click here for a podcast of the panel discussion from our 2016 conference on higher education issues at public sector labor boards.  The panelists are: Marjorie Wittner, Chair, Massachusetts Commonwealth Employment Relations Board; John Winerius, Chairperson, New York State Public Employment Relations Board; and Adam Rhynard, Member, Oregon Employment Relations Board.  The panel moderator is Phillip Maier, Arbitrator and Mediator.
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.    
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