NATIONAL CENTER
for the Study of Collective Bargaining in Higher Education and the Professions
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September 2019
Welcome to the latest issue of the National Center's monthly newsletter.

With the new school year underway, we want to share with you some recent research-based stories concerning collective bargaining and unionization. We also want to encourage you to register for the National Center's regional conference to be held at California State University, Long Beach on December 6-7, 2019.

This month's newsletter includes reports on adjunct faculty unionization efforts at Elon University in North Carolina and Santa Fe College in Florida. It also discusses a recent proposed decision and order concerning graduate assistants at the University of Pittsburgh, the new proposed NLRB rule to exclude graduate assistants from coverage under the National Labor Relations Act, a new bargaining unit of Washington state attorneys, efforts by yoga instructors to unionize, and much, much more.

Scroll down to see all of the featured stories, keep up-to-date and get informed. And, as
always, if you have comments or story ideas please email us or contact us via Twitter.
National Center Regional Conference, December 6-7, CSU Long Beach

Regional Conference on Higher Education
Collective Bargaining and Labor Relations
 
T he National Center will be holding a regional conference in California on December 6-7, 2019 at California State University, Long Beach.

Keynote Speaker : Ruben J. Garcia , Professor of Law and Co-Director of the Workplace Law Program at the University of Nevada, Las Vegas, William S. Boyd School of Law. Professor Garcia is a specialist in labor and employment law, law and social change, immigration policy, and international human rights law.

Register now for the regional conference.

Below is a list of currently confirmed panels for the regional conference: Additional panels will be announced in the coming months.

Plenary: Preventing Sexual Harassment in Higher Education with Frazier Benya, Senior Program Officer, Committee on Women in Science, Engineering, and Medicine, National Academies of Sciences, Engineering and Medicine, Sharon Inkelas, Professor and former Chair of the Linguistics Department, University of California, Berkeley, Ana Avendano, President, Minga Strategies and former Assistant to the AFL-CIO President, and Karen Stubaus, Vice President for Academic Affairs, Rutgers University, Moderator.
 
Do Adjunct Faculty Have Academic Freedom? with Kristen Edwards, Lecturer in History and Political Science, Notre Dame du Namur University and Stanford University Continuing Studies, Deirdre Frontczak, Lecturer and member, Faculty Council at Santa Rosa Junior College, Edward Inch, Provost and Vice President for Academic Affairs, California State University, East Bay, and Henry Reichman, Chair AAUP Committee on Academic Freedom and Tenure, Professor Emeritus of History, California State University, East Bay, and author of The Future of Academic Freedom , Panelist and Moderator.
 
Best Practices in Investigating and Responding to Disciplinary Issues with V. Jesse Smith, Representation Specialist, California Faculty Association, Missy A. Matella, Associate General Counsel, University of Oregon, and Andrea Dooley, Arbitrator, and Kenneth Mash, President, APSCUF, Moderator.

Community Colleges: Student Centered Funding Formula and Reemployment Preferences for Part-Time Faculty with Eric Kaljumagi, President, CCA, Kindred Murillo, Superintendent/President, Southwestern College, Leticia Pastrana, Imperial Valley College, and Bill Scroggins, President/CEO Mt. San Antonio College, Moderator.

Academic Workers and Immigration Status with Sandip Roy, President, UAW Local 4123, Alli Carlisle, Chief Negotiator, UAW Local 2865, Joseph J. Jelincic III, Senior Manager of Systemwide Labor Relations/Collective Bargaining Specialist, California State University, Natasha Baker, Hirschfeld Kraemer LLP, and Gary Rhoades, Professor and Director, Center for the Study of Higher Education, University of Arizona, Moderator.

The Old Wolf, Again: Latinx Faculty Negotiations, Recruitment, Retention, and Racism in the Academy with Martha Garcia, President, Imperial Valley Community College, John Halcon, Member, Board of Trustees, Palomar Community College, Elsa Dias, Colorado Community College, Jose Cintron, California State University Sacramento, and Theresa Montaño, California State University Northridge, California Faculty Association, Moderator.
 
Collective Bargaining in the Post-Janus Age with J. Felix De La Torre, General Counsel, California Public Employment Relations Board, Kerianne Steele, Weinberg, Roger & Rosenfeld, and Timothy G. Yeung, Sloan Sakai Yeung Wong LLP.

Best Practices in Preparing for Bargaining Impasses with John Swarbrick, Former Associate Vice Chancellor, Labor and Employee Relations, California State University, Brian Young, Senior Labor Relations Representative, California State University Employees Union, Jackson E. Parham, Attorney, Atkinson, Andelson, Loya, Ruud & Romo, Carolyn Richie, Field Representative, California Federation of Teachers, Douglas W. Otto, Attorney at Law and Trustee, Long Beach City College, Valerie Hollins, Senior Labor Relations Representative, California School Employees Association, and Loretta van der Pol, Director, California State Mediation and Conciliation Service, Moderator.

Bargaining for the Common Good in Higher Education with Mia McIver, President, University Council, AFT, Peter Chester, Executive Director, Labor Relations, University of California, Will Surbrook, Vice Chancellor, Human Resources, San Diego Community College District, and Theodore Curry, Associate Provost, Associate Vice President, Michigan State University, Moderator (panel in formation).
Elon University: SEIU Certified to Represent Adjunct Faculty Unit
Elon University, NLRB Case No. 10-RC-231745

On September 3, 2019, NLRB Acting Regional Director Scott C. Thompson issued a decision concerning Elon University's exceptions to a Hearing Officer's report recommending that the university's election objections be rejected and that SEIU be certified to represent a unit of the university's adjunct faculty. The Acting Regional Director also certified SEIU as the exclusive representative for the adjunct faculty unit at Elon University following a mail ballot election in which 112 faculty voted in favor of representation and 68 voted against in a unit of approximately 283 employees.

The following is the at-issue unit:

Including: All limited term, visiting, and adjunct faculty employees at Elon University teaching at least one credit-bearing undergraduate course in the Employer’s College of Arts and Science, School of Communications, School of Education, or Martha & Spencer Love School of Business.

Excluding: All other employees, all tenured and tenure-track faculty, all continuing track faculty, all lecturing track faculty, all employees teaching online courses only, staff with faculty rank, all administrators (including those with teaching assignments), managers, and supervisors as defined by the Act.

Elon University has filed with the NLRB a Request for Review seeking to challenge the Acting Regional Director's decision, order, and certification of SEIU to represent the adjunct faculty.
Santa Fe College: PT Adjunct Faculty Vote Against Unionization
Santa Fe College, FPERC Case No. RC-2018-046

On September 19, 2019, the Florida Public Employees Relations Commission tallied the ballots concerning a petition filed by SEIU seeking to represent approximately 636 adjunct faculty at Santa Fe College in Florida. The tally of ballots demonstrated that 257 faculty voted against union representation and 167 voted in favor.

The following is the at-issue unit at Santa Fe College:

Included: All part-time adjunct faculty employed by Santa Fe College who teach, co-teach, or team teach one or more courses (whether credit-bearing or non-credit-bearing) at any of the following locations: Northwest Campus, Andrews Center, Blount Center, Davis Center, Kirkpatrick Center, Perry Center, or the Watson Center, in addition to part-time adjunct faculty who teach one or more clinical courses and/or one or more online courses offsite.

Excluded: All tenured and tenure-track faculty, full-time faculty, employees covered by an existing collective bargaining agreement, full-time employees of the College who also teach a class as an adjunct instructor, community outreach instructors, instructors who teach corporate training seminars, administrators, guards, all supervisory, managerial, and confidential employees, and all other employees of Santa Fe College.
Columbia College Chicago: Faculty Unit Seeks Certification Amendment
Columbia College Chicago, NLRB Case No. 13-AC-248521

The Columbia Faculty Union has filed a petition with the NLRB seeking to amend its certification to represent 50 part-time faculty at Columbia College Chicago to reflect the union's recent affiliation with the Illinois Federation of Teachers, AFT.

The following is the part-time faculty bargaining unit represented by the Columbia Faculty Union:

Included: All part-time faculty members at Columbia College Chicago.

Excluded: All other employees, Full-time Faculty, artists-in-residence, and Columbia College Chicago graduate students' part-time faculty members teaching only continuing education, music lessons to individual students or book and paper marking classes, Columbia College Chicago full-time staff members, teachers employed by Erickson Institute, The YMCA or Adler Planetarium, and other individuals not appearing on the Columbia College Chicago payroll, managers and confidential employees, guards, and supervisors as defined in the Act.
University of Pittsburgh: New Election for Graduate Assistants
University of Pittsburgh, Case Nos. PERA-C-19-95-W PERA-R-17-355W
 
On September 18, 2019, Pennsylvania Labor Relations Board Hearing Officer Stephen A. Helmerich issued a proposed decision and order finding that the University of Pittsburgh engaged in unfair labor practices with respect to the April 15-18, 2019 on-site election involving a unit of graduate assistants employed by the university. The election was conducted to determine whether a majority of the graduate assistants wanted USW representation.

Hearing Officer Stephen A. Helmerich found that the university engaged in an unfair labor practice when Department Chair of Chemical Engineering Steven Little circulated an email to department graduate assistants on the the third day of the election stating that he "was actually a little surprised to see that only 81 students from the School of Engineering (whole school) have voted so far." The Hearing Officer concluded that the email created the inference that the university was closely monitoring graduate assistant voting by department, utilizing voter information that was being documented by university poll watchers during the election.

The Hearing Officer found that the university also engaged in unfair labor practices based on statements maintained on the university's website that were a "substantial departure from the truth" concerning the potential consequences of unionization and the potential scope of collective bargaining following unionization.

Based on the totality of the university's unfair labor practices, the Hearing Officer proposed a new election because the university's actions "potentially affected a large enough pool of eligible voters for the affect on the election to be manifest due to the extreme narrowness of the result."

The following is the at-issue graduate assistant unit at he University of Pittsburgh:.

All full-time and regular part-time professional employes who are graduate students on academic appointment who serve as teaching assistants, teaching fellows, graduate student assistants and graduate student researchers and excluding graduate students on fellowship and traineeship, management level employes, supervisors, first level supervisors, confidential employes, and guards as defined in the Act.
NLRB Proposes Rule to Exclude Graduate Assistants from Unionization
On September 20, 2019, the National Labor Relations Board (NLRB) announced that it plans to commence rulemaking relating to the question of whether student assistants paid to perform work such as teaching and research are employees under the National Labor Relations Act (NLRA). The Notice of Proposed Rulemaking was scheduled to be published today in the Federal Register.

The purpose of the proposed rule is to overturn the NLRB's 2016 decision in Columbia University, which held that graduate and undergraduate assistants at that institution are employees under the NLRA based on the common law definition of employee.

Rather than wait for a future case to reexamine the employee status issue on a particular campus, the NLRB has chosen a procedure that would usurp Congress's role in determining which classes of individuals should be excluded from coverage under the NLRA as Congress did in the Wagner Act of 1935 and the Taft-Hartley Act of 1947.

Since the NLRB’s 2016 Columbia University decision, there have been 15 graduate assistant representation elections at private institutions: Harvard University, Columbia University, American University, Cornell University, Yale University, The New School, Georgetown University, Loyola University Chicago, University of Chicago, Brandeis University, Tufts University, Boston College, Washington University, Duke University, and Brown University. At three institutions, the graduate assistants voted against union representation.

Currently, there are five private universities with contracts with a graduate assistant union: New York University, American University, Brandeis University, The New School and Tufts University. The aggregate total of graduate assistants at those five institutions is approximately 3,500.
 
There are also four private institutions with a certified or recognized graduate assistant union where the parties are currently engaged in collective bargaining for a first contract: Harvard University, Columbia University, Brown University, and Georgetown University. There is a fifth, Loyola University Chicago, which has refused to commence negotiations The total aggregate number of represented student assistants at these five schools is approximately 12,000.

The NLRB's rulemaking process provides the agency with an opportunity to examine the empirical evidence and experiences surrounding graduate assistant unionization in the private and public sectors. The best empirical evidence are the terms of the collective bargaining agreements reached at the 5 private institutions as well as the 32 public institutions with graduate assistant unions. The total aggregate of graduate assistants represented at public institutions is approximately 66,000, which includes recently certified units that are still in negotiations for a first contract.

For a half century, there has been collective bargaining between public institutions and unions representing graduate assistants. While an NLRB rule will not impact public sector labor relations concerning graduate assistants, the experiences and case law in the public sector would help inform the NLRB's rulemaking.

A close examination of the empirical evidence and experiences by the NLRB would be fully consistent the dictum of Oliver Wendell Holmes, Jr.: “The life of the law has not been logic. It has been experience."
University of Washington: SEIU Files to Represent New Bargaining Unit
University of Washington, WPERC Case No. 132072-E-19

On September 3, 2019, SEIU filed a petition with the Washington Public Employment Relations Commission to represent a unit of 275 professional employees working in the University of Washington Institute for Health Metrics and Evaluation.
University of Washington: Court Rules Union Email Might Be Disclosable
SEIU Local 925, v. The University of Washington,
Washington Supreme Court, Case No.- 96262-6
 
In a recent unanimous decision , the Washington Supreme Court overturned a preliminary injunction issued by a lower court that prevented the release of union-related emails from an email system maintained by the University of Washington (UW). The injunction issued by the lower court was premised on a legal interpretation that union-related emails were not “public records” under the State of Washington’s public records access law.

In vacating the injunction, the Washington Supreme Court agreed with the petitioner Freedom Foundation that the “scope of employment” test relied upon by the lower court should be used to determine whether email records must be released from a public employee’s personal device but not to emails from a public employer's email system.

Because the wrong legal test had been applied, the lawsuit was remanded to the lower court to apply the proper legal test in determining whether the union-related emails should be released under the state public records law and to further consider the other arguments raised by the union against release of the emails.

Although the result in this case is not final, it does highlight important practical and privacy issues related to the use of employer email systems for the conduct of union-related activities. Recent public sector legislative measures in certain states have granted unions the right to use employer email systems, and the issue has been hotly litigated under the National Labor Relations Act. Far less attention has been applied to whether there should be a recognized labor relations privilege that would exempt union email communications from being disclosed under state or federal law.
Logan Community College: Laid Off TT Faculty Lawsuit Reinstated
Barrall v. Board of Trustees of John A. Logan Community College, Appellate Court of Illinois, Fifth District Case No. 5-18-0284

An Illinois state appellate court recently issued a decision reinstating a lawsuit brought by a group of laid-off tenured faculty against the John A. Logan Community College. In their lawsuit, the tenured faculty challenged the college's hiring of adjunct faculty to teach many of their classes shortly after the lay-offs.

The lawsuit is based on a community college rehiring preference provision of Illinois law, which states:

“For the period of 24 months from the beginning of the school year for which the faculty member was dismissed, any faculty member shall have the preferred right to reappointment to a position entailing services he is competent to render prior to the appointment of any new faculty member; provided that no non-tenure faculty member or other employee with less seniority shall be employed to render a service which a tenured faculty member is competent to render.” 110 ILCS 805/3B-5

In its decision reinstating the lawsuit, the state appellate court concluded that the phrase “employee with less seniority” includes all employees with less seniority including the recently hired adjunct teaching faculty. As a result, the appellate court found that the plaintiffs had stated a cause of action for statutory bumping rights with respect to the courses subsequently taught by the adjunct faculty.

The lawsuit has been remanded to the lower court to determine the merits of the lawsuit and a potential remedy.
Union Certified to Represent Washington State Attorneys
Washington State Office of the Attorney General, WPERC Case No. 131954-E-19

On September 16, 2019, the Washington Public Employment Relations Commission certified the Association of Washington Assistant Attorneys General/Washington Federation of State Employees to represent a unit of attorneys at the State of Washington Attorney General's office.

The following is the new state attorney bargaining unit in Washington:

All assistant attorneys general working for the Office of the Attorney General, excluding divisions chiefs, deputy attorneys general, the solicitor general, assistant attorneys general working in the labor and personnel division, special assistant attorneys general, assistant attorneys general who report directly to the attorney general, and assistant attorneys general deemed confidential as defined by RCW 41.80.005.
California Legislature Passes Adjunct Reclassification Bill
The California legislature has passed legislation, sponsored by the Association of Independent California Colleges and Universities, which will exempt adjunct faculty from state overtime laws by classifying them as being employed in a professional capacity. The intended purpose of the legislation is to end the practice of private colleges and universities treating adjunct faculty as hourly, non-exempt employees, including requiring them to use time cards, for the purpose of avoiding being subject to lawsuits alleging wage and hour violations.

The bill is pending before California Governor Gavin Newsom.
University of Rochester: Election Scheduled for Parking Attendants
University of Rochester , NLRB Case No. 03-RC-247625

The National Labor Relations Board has scheduled an election for September 27, 2019 concerning a petition by the International Association of Machinists and Aerospace Workers (IAM) seeking to represent a union of approximately 57 parking attendants at the University of Rochester.

The following is the at-issue bargaining unit:

I ncluded: All full-time and part-time parking attendants.

Excluded: All others defined by the Act.
Endicott College: Petition Filed to Represent Campus Police
Endicott College , NLRB Case No. 01-RC-248425

On September 18, 2019, the American Coalition of Public Safety filed a petition to represent a union of 11 full-time and part-time regular campus police at Endicott College. The following is the at-issue sought in the petition:

Included: All full-time regular and part-time regular Campus Police officers employed by the Employer.

Excluded: All Campus Police Sergeants, Campus Police Lieutenants, Campus Police Captains, Chief of Police, Aide to the Chief of Police, dispatchers and all other employees and supervisors.
National Endowment for Democracy: An Election Scheduled
National Endowment for Democracy , NLRB Case No. 05-RC-248082

The National Labor Relations Board Region 5 has scheduled a representation election on October 2, 2019 for employees at the National Endowment for Democracy. The election will determine whether a majority of the employees want to be represented by
the Office and Professional Employees International Union Local 2.

The following is the agreed upon unit for purposes of the election:

Included: All full-time and regular part-time Accountants, Accounting Assistants, Archivists, Assistant Digital Producers, Assistant Program Officers, Assistant Research and Outreach Officers, Assistants to the VP/Editors, Associate Editors, Audit Assistants, Auditors, Budget and Finance Compliance Officers, Compliance Systems Analysts, Deputy Editor and Digital Policy Specialists, Engineers, Event Project Managers, GMS Senior Project Officers, Grants Assistants, Grants Dispersement Specialists, Grants Officers, Help Desk Analysts, Jr. Systems Administrators, Librarians, Library Assistants, Logistics and Procurement Officers, Managing Editors, Office Services Assistants, Office Services Supervisors, Program Assistants, Program Officers, Program Planning Officers, Program Officers, Project Assistants, Project Managers, Project Officers, Public Affairs Coordinators, Public Affairs Officers, Senior Accountants, Senior Auditors, Senior
Grants Officers, Senior Program Officers, Senior Systems Engineers, Solutions Officers, Special Assistants to Regional Programs, Special Assistants to VP, and Travel and Logistics Coordinators employed by the Employer at its facility currently located at 1025 F Street, NW, Suite 800, Washington, DC 22408 who were employed by the Employer during the payroll period ending September 13, 2019.

Excluded: All other employees, managerial employees, temporary employees,
confidential employees, guards, and supervisors as defined by the National Labor Relations Act.

In addition, the parties agreed that the following individuals may vote in the election but their ballots will be challenged since their eligibility has not yet been resolved: Special Assistants to Deputy to the President; Special Assistants to COO; Program Coordinator Ian Cocroft; Digital Producer Michael Rudzinski; Financial Grants Accounting Officer Sarah Mazouz; Managing Grants Officers Alice Jobard, Sonia Pastushov-Pastein,
Claire Petry, and Andriy Yuzvenko; Program Officers Ahmed Ali, Natalie Kay, Sarah Lillibridge, Rudy Massamba, and William Wright; Research and Managing Editor Nicholas Benequista; Senior Manager, Digital Strategy Lyssa Walker-White; Senior Program Officers Enrique Bravo-Escobar, Fatima Hadji, Jessica Ludwig, Ahmad Majidyar, Dylan Myles-Primakoff, Christopher O’Connor, Aimel Rios Wong, Joanna Rohozinska Michalska, Elspeth Suthers, and Aung Maw Zin; and Senior Staff Accountant Narangarvuu Damdindor.
YogaWorks: Yoga Instructors Seek A Union Pose
YogaWorks, NLRB Case No. 29-RC-248154

On September 13, 2019, the International Association of Machinists and Aerospace Workers (IAM) filed a petition to represent 100 yoga instructors employed by YogaWorks in New York. The organizing effort was the subject of a recent New York Times article .

The following is the at-issue unit of yoga instructors:

Included: All regularly-scheduled teachers and teacher instructors.

Excluded: All Supervisors, office clerical, professionals, and guards as defined in the Act.
New Children's Museum: IBEW Files to Represent Employees
The New Children's Museum , NLRB Case No. 21-RC-248605

On September 20, 2019, IBEW filed a petition with the National Labor Relations Board seeking to represent a unit of 48 regular employees at the New Children's Museum in San Diego. The following is the unit that IBEW seeks to represent:

Included: All regular employees, including Senior Playworkers, Playworkers, Senior Teaching Artists, Teaching Artists, Senior Visitor Service Associates, Visitor Service Associates, Senior Coordinators, Coordinators, Graphic Designers, and Maintenance employees.

Excluded: Special Events Staff, Accountants, Accountant Assistants, Executive Assistants, Directors, Managers, Supervisors, Confidential employees, and Guards
National Center Research on Strikes in Higher Education
A recent study on strikes in higher education by National Center Executive Director Bill Herbert (Hunter College, CUNY) and National Center Affiliated Researcher Jake Apkarian (York College, CUNY) has been posted on ssrn: You've Been with the Professors: An Examination of Higher Education Work Stoppage Data, Past and Present. The study will be published later this year in the peer-reviewed Employee Rights and Employment Policy Journal.

The study analyzes work stoppage data in calendar years 2012-2018 involving academic and non-academic employees at higher education institutions. It contextualizes the recent data through a review of the history of unionization and strikes in the field of education along with faculty strike data for the period 1966-1994.

The researchers found that there was a total of 42 strikes and one lock-out involving faculty, graduate assistants, and non-academic employees in higher education during the seven-year period from 2012 to 2018. The largest number of strikes per annum was in 2018, which was more than double the number in 2017. Exactly one-half of all strikes during the seven-year period were by non-academic employees, one-third of the strikes by faculty, and one-sixth by graduate assistants. The states with the greatest number of strikes were Illinois, California, and Washington.

In 2012-2018, there was a total of 14 faculty strikes with an average of 2.0 per year. In comparison, there was a total of 172 faculty strikes with an average of 5.9 per year during the period 1966-1994. Non-tenure-track faculty were involved in 93% of all faculty strikes in 2012-2018, seven strikes with tenure-track faculty and six without.
Journal of Collective Bargaining in the Academy, Vol. 10
Journal of CBA Logo
The National Center's Journal of Collective Bargaining in the Academy, is a peer review multi-disciplinary journal co-edited by Jeffrey Cross, Eastern Illinois University (Emeritus), and Gary Rhoades, University of Arizona. The following are links to articles in Volume 10:

Op-Eds


Articles


Practitioner Perspectives 

Notes on the Same Side by Margaret E. Winters

We encourage scholars, practitioners, and graduate students in the fields of collective bargaining, labor relations, and labor history to submit research articles, op-eds, and practitioner perspectives for potential publication.The Journal is particularly interested in contributions related to collective bargaining and unionization issues in the post-Janus world.

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.
Job Posting: Law Firm Positions
The New York law firm of Ingerman Smith seeks applicants for two associate positions in the firm's Hauppauge, Long Island office. Both recent graduates and those with experience in commercial litigation, municipal law, education law, and/or labor law are invited to apply. Submit resumes to both  jhgross@ingermansmith.com, and msadowski@ingermansmith.com.
National Center for the Study of Collective Bargaining
in Higher Education and the Professions
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