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

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

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 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)

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.

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

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

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.

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.

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.

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.

Contingent Faculty Organizing  Organizing Campaigns 2009 – new bargaining units in Massachusetts, Michigan and Montana – 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.

Graduate Students Organizing  Organizing Campaigns – Private New York University University of Chicago  Organizing Campaigns – Public University of California Ohio State University

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.

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.

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.

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!

Legal Issues in Higher Education   Kathi S. Westcott Phone: x115