Collective Bargaining in Academia – Analyzing the “Upswing”

1. Collective Bargaining in Academia – Analyzing the “Upswing” Kathi S. Westcott, Associate Counsel

2. Past, Present and Future! • History of Collective Bargaining in Higher Education • Potential Federal and State Law Changes • NLRA & EFCA • State Legislation • Faculty Organizing • Campaigns • Collective Bargaining Agreements • Contingent Faculty • Graduate Students • Primer on Management Conduct and Recent Cases

3. History of Collective Bargaining in Higher Education • Private sector = federal legal protection • National Labor Relations Act (NLRA) • 1935 NLRA granted legal recognition of and protections to private sector collective bargaining. • 1970 the National Labor Relations Board ruled that private colleges and universities were subject to the NLRA. • NLRB v. Yeshiva University (1980) • University of San Francisco (1982) • Brown University (2004)

4. History of Collective Bargaining in Higher Education • Public sector = state legal protection. • Over ½ of states have laws enabling faculty to engage in collective bargaining. • More than 90% of faculty in collective bargaining units work at public institutions. • Over 60,000 graduate students are represented by labor unions at 26 institutions – all but one are public.

5. AAUP Policy • In 1973 the AAUP issued its first statement on collective bargaining • Revised in 1993 and states: “[T]he Association promotes collective bargaining to reinforce the best features of higher education.” • 1973 Report on Arbitration of Faculty Grievances • 1988 Statement on Academic Government for Institutions Engaged in Collective Bargaining • 1991 statement on Dismissal Proceedings in a Collective Bargaining Setting Where Arbitration Substitutes for a Faculty Hearing

6. Status of Federal and State Laws • Employee Free Choice Act (EFCA) & Other Amending Proposals • EFCA Basics • Graduate Students • State Legislation • Wisconsin – lone positive • “Anti-EFCA” efforts • Transparency or “Open Government” Initiatives

7. Faculty Organizing - Campaigns • Economics, Furloughs and Salary Cuts • Not just about the money! • Bowling Green State University – serious concerns over changes in the role of faculty in governance. • University of Illinois at Chicago – serious concerns over crumbling infrastructure and movement away from serving traditional student base.

8. Faculty Organizing - Campaigns • Not just about the money! • Sinclair Community College – faculty salaries are not an issue (recent 6% raise), serious concerns of push towards non-tenured and part-time appointments as well as demands of secrecy in connection with faculty committee appointments. • LSU – contemplating organizing because of concerns about academic freedom and lack of an independent faculty voice.

9. Faculty Organizing – Collective Bargaining Agreements • More than just the money! • Oakland University – strike about university proposal to drastically increase term appointments and concerns about undermining faculty due process procedures. • University of Delaware – new contract provisions focused on strengthening and solidifying academic freedom protections.

10. Faculty Organizing – Collective Bargaining Agreements • More than just the money! • University of Florida – new contract provisions established new procedures for tenure and promotion process and returns much of the operational authority and control back to departments and colleges.

11. Contingent Faculty Organizing • Organizing Campaigns • 2009 – new bargaining units in Massachusetts, Michigan and Montana. • 2010 – new bargaining units in Michigan, reinvigorated campaigns in Illinois and Pennsylvania. • Collective Bargaining Agreements • Rhode Island – pay raise, seniority and job security. • New School – expanded leave rights and curricular decision making authority.

12. Graduate Students Organizing • Organizing Campaigns – Private • New York University • University of Chicago • Organizing Campaigns – Public • University of California • Ohio State University

13. Management Conduct (Permissible and Impermissible) • Permissible Conduct • Respond to questions. • Provide fact and opinion w/out threat or promise of benefit. • Conduct informational meetings (no captive audience). • Impermissible Conduct • Threaten, coerce or intimidate. • Discriminate or retaliate. • Question employees about intent or solicit employees views.

14. Guidance Based on AAUP Policy • Bargain in good faith without retaliating for collective action. • Recognize faculty as a professional body with the responsibility procedurally for judging their peers. • Support a due process structure that values academic freedom and shared governance.

15. Recent Collective Bargaining Cases • Fashion Institute of Technology – unilateral action by administration found to be illegal. • Fort Hays State University – unilateral action by administration, even before first contract, found to be illegal.

16. Closing Thoughts • Contingent and Full-time Collaboration • University of Northern Iowa. • For-Profit Schools • Art Institute of Seattle? • Kaplan University? • Focus on non-monetary issues during tough economic times!

17. www.aaup.org Kathi S. Westcott Email: kwestcott@aaup.org Phone: 202-737-5900 x115 Legal Issues in Higher Education