Unionization and Collective Bargaining in Higher Education William A

Hunter College

From the SelectedWorks of William A. Herbert

2017

Everything Passes, Everything Changes: Unionization and Collective Bargaining in Higher Education William A. Herbert, CUNY Hunter College Jacob Apkarian, York College

This work is licensed under a Creative Commons CC_BY-ND International License.

Available at: https://works.bepress.com/william_herbert/33/ HIGHER EDUCATION

Everything Passes, Everything Changes Unionization and Collective Bargaining in Higher Education

by William A. Herbert and Jacob Apkarian

William A. Herbert is ollective bargaining and tary recognition by institutions, rather executive director of the unionization in higher edu- than by legal mandate. The National National Center for the Study of Collective Bar- cation has a long history. In Labor Relations Board (NLRB) declined gaining in Higher Education 1936, Teachers Union Local jurisdiction over private nonprofit and the Professions at C Hunter College, City 5 President Charles J. Hendley criticized educational institutions for many years. University of New York. a speech by Teachers College Dean Wil- In the public sector, a long and largely liam F. Russell for his opposition to the unstudied history of union organizing Jacob Apkarian is an unionization of college professors and led to informal agreements and some assistant professor primary and secondary teachers. The ex- written contracts without the existence in the Department of Behavioral Sciences change occurred a few months following of enabling legislation, primarily with at York College, City a campus strike by elevator operators local governments. University of New York. and porters that was supported by fac- McCarthyism in all its manifesta- ulty and students. tions in the 1940s to the early 1960s Hendley insisted that teachers had impaired associational activities on every right to form a union to improve campuses, including efforts to enforce Herbert and Apkarian in their their working conditions: “The Dean academic freedom and tenure (Schrecker portrait of unionization in higher ridicules collective bargaining by teach- 1986). Resistance to unionization in education follow the story from ers, but he and other educational ad- the academy over the years came from its earliest days to today ministrators will have to learn to adjust another source: faculty who viewed themselves to it” (Hendley 1936). collective bargaining as inconsistent with • Unionization in American universities Some of the earliest contracts on professional status and autonomy. stretches back to the 1930s. Attempts by campuses date back to the 1940s. How- For decades, private colleges and university employees attempting to organize have a complex and tangled history. ard University entered into an agreement universities have had divergent views with United Federal Workers of America, and approaches to unionization and col- • Since 2003, the percentage of the higher education workforce that is unionized has Congress of Industrial Organizations lective bargaining. For example, Cornell remained relatively constant at about 16 (CIO), in April 1946 for a bargaining University opposed a 1968 amendment percent to 18 percent. unit of nonfaculty staff, and United to New York law that made that state’s • In addition to faculty and graduate students’ Public Workers of America, Local 555, collective bargaining law applicable efforts to unionize, other groups—non–tenure CIO, negotiated agreements for teach- to nonprofit educational institutions, track faculty, postdoctoral researchers, and service workers—have attempted to organize ers at vocational schools. CIO unions claiming collective bargaining would and been met with institutional resistance and negotiated faculty contracts at Howard be disruptive and would increase costs. mixed success. University and Fisk University during Other institutions, such as New York • The results of the 2016 election will negatively the same period (Cain 2014). University and Union College, affirma- affect current campus unions and impair future efforts at unionization. Higher education collective bargain- tively supported the legislation. The bill ing in that era was the result of volun- was introduced a year after the end of a

30 PERSPECTIVES ON WORK / 2017 faculty strike at St. John’s University and bargaining agreement, according to respect to union density and collective at a time when the American Federation Current Population Survey (CPS) data bargaining on campus. One clear exam- of Teachers (AFT) had established affi li- (Hirsch and MacPherson 2017). This ple of sector differences relates to the ates on certain New York campuses. fi gure does not include faculty in the question of whether graduate students In 1970, Cornell successfully per- thirty-fi ve new collective bargaining who receive compensation for teaching suaded the NLRB to reverse itself and to units created in 2016 and other new or research have a protected right to begin to assert jurisdiction over repre- faculty units without a fi rst unionize and be represented sentation issues at nonprofi t educational contract. Figure 1 displays For decades, in collective bargaining. institutions. Cornell’s arguments were a geographic breakdown private colleges and Teaching assistants and supported by some private institutions of newly created faculty research assistants at public and opposed by others. The effect of units in 2016, based on universities have institutions in states with Cornell’s victory was to preempt the data from National Center had divergent views public sector collective bar- application of New York’s statute, a law for the Study of Collective and approaches to gaining laws have engaged more protective of employee collective Bargaining in Higher Edu- in negotiations for almost rights than the National Labor Rela- cation (Herbert 2016). unionization and 50 years. There is a general tions Act, to nonprofi t institutions. The Last year, 15.7 per- collective bargaining. recognition under those NLRB’s assertion of jurisdiction trig- cent of all workers at laws that students who gered many organizing efforts by faculty, colleges and universities receive payment for teaching or research administrative staff, and blue-collar were covered by a collective bargain- are a part of academic labor and are en- workers at private institutions across the ing agreement, according to CPS data titled to bargain over their compensation country. (Hirsch and MacPherson, 2017). This and benefi ts. A procedural framework for compares to only 11.9 percent among all A 2012 National Center analysis unionization and collective bargaining U.S. workers, according to Hirsch and of survey data found more than 64,000 on public college campuses was not MacPherson, or 12 percent, according graduate student employees in bargain- established until passage of state public to the U.S. Bureau of Labor Statistics ing units at public institutions (Berry sector collective bargaining laws in the (2017). and Savarese 2012). Since then, new 1960s and 1970s. The enactment of de The overall rate of workers covered units were established at Portland State jure mechanisms led to unionization and by collective bargaining agreements in University, the University of Connecti- collective bargaining agreements on pub- higher education has remained relatively cut, and Montana State University. lic sector campuses involving the trades stable over the past decade, although The size of the graduate student and buildings and grounds workers, as there appears to be a slight decrease employee bargaining unit at Oregon well as clerical, food service, public safe- in coverage during the past few years. State University doubled through the ty, and academic labor. The workforce Figure 2 displays the percentage of all accretion of additional graduate em- covered, the composition of the bargain- workers in higher education covered by ployees. In Minnesota, where state law ing units, and the mandatory subjects of collective bargaining agreements going defi nes a separate graduate assistant unit negotiations vary from state to state. back to 2003, using CPS data. at the University of Minnesota, 62 percent of the employees who participated Current Collective Bargaining Graduate Assistants and Postdocs Figures in Higher Education in a 2012 election voted against union Differences in the interpretation and representation. In 2016, 20.3 percent of postsecondary scope of the NLRA and public sector A related recent development teachers were covered by a collective laws have resulted in disparities with in higher education is collective

HIGHER EDUCATION 31 bargaining for post-doctoral researchers. precedent and concluded that Columbia Between September 1, 2016, and At least seven institutions have negotiat- University’s graduate and undergradu- May 31, 2017, unions have been certi- ed contracts applicable to post-doctoral ate teaching and research assistants are fi ed following NLRB elections to rep- scholars. statutory employees under the NLRA resent new student assistant bargaining In the private sector, the employee and therefore entitled to the full rights of units, with an aggregate of more than status of teaching and research assis- association guaranteed by that law. 5,600 employees, at American Uni- tants under the NLRA has been subject The NLRB’s 2016 decision led to versity, Brandeis University, Columbia to NLRB oscillations over the decades. a new wave of unionization efforts at University, Loyola University Chicago, Unionization efforts by these student private colleges and universities. Tufts University, and Yale University. employees have been strongly opposed Graduate assistants at Yale successfully Representation is also being pursued by by many private institutions. argued before an NLRB regional direc- student employees at the University of After years of confl ict, New tor that they should be permitted to Chicago, the University of Pennsylvania, York University in 2014 recognized a unionize by department, an effort that Boston College, Cornell University, Har- graduate assistant union following a resulted in eight newly certifi ed collect- vard University, and The New School. non-NLRB election, which led to the ive bargaining “micro-units.” Figure 3 Institutional opposition to student successful negotiation of a contract. In compares the electoral outcomes at Yale assistant unionization by some private August 2016, the NLRB reversed prior by department. colleges continues. At Duke University, the preliminary tally of ballots of partic- ipating graduate assistants showed that Figure 1. New faculty collective bargaining units in 2016. 63 percent voted against representation, an outcome that led to the withdrawal of the petition. Columbia University, Yale University, and Loyola University Chicago have fi led challenges to the certifi cations at their institutions, while American University, Brandeis University, and Tufts University have not. It is probable that one or more of the challenges will lead to a future swing of the NLRB pendulum concerning the statutory status of graduate assistants once the Senate confi rms nominations to fi ll vacancies on the NLRB Board.

Faculty Unionization

The Y factor: Yeshiva Another major difference in higher education labor relations between the public and private sectors concerns the right of tenure-track faculty to unionize. Four Figure 2. Percentages of workforce covered by collective bargaining agreement in higher education. decades ago, the Supreme Court ruled that faculty at Yeshiva University were 25% managerial personnel and not entitled

20% to the rights under the NLRA because of their role in making mission-related 15% decisions through shared governance (NLRB v. Yeshiva University 1980). In 10% the wake of the Yeshiva decision, the 5% unionization of tenure-track faculty at private institutions diminished consid- 0% erably.

2003 — 2004 — 2005 — 2006 — 2007 — 2008 — 2009 — 2010 — 2011 — 2012 — 2013 — 2014 — 2015 — 2016 — A 2012 National Center survey found a total of only 77 private sector

32 PERSPECTIVES ON WORK / 2017 Results from Yale GSE Elections

faculty bargaining units, and those with Figure8 3. PercentageDepartmental of voting for and against unionizationUnits at Certified,Yale University based on 1NLRB Dismissed data. tenure-track faculty all predated the Yeshiva decision (Berry and Savarese 0% 20% 40% 60% 80% 100% 2012). Although the NLRB in 2014 History of Art increased the evidentiary burden for History demonstrating managerial status of English faculty, there has not been an upsurge East Asian Languages in unionization efforts by tenure-track For Mathematics faculty at private institutions. Against Sociology In 2016, only four petitions were pending at the NLRB seeking to repre- Political Science sent tenure-track faculty. One resulted in Geology and Geophysics the certifi cation of a collective bargaining Physics representative, and three were dismissed for different reasons (Herbert 2016). In May 2017, a unanimous NLRB affi rmed the dismissal of a petition 2016). One of the oldest of those cases, aggregate of 1,546 faculty members. 1 involving Marywood University, fi nding fi led in October 2010, involves adjunct This compares to nine new tenure-track the tenure-track faculty to be managerial faculty at Manhattan College. public sector faculty units, with a com- personnel. Efforts by some institutions bined total of 2,060 faculty members. Substantial growth in adjunct to expand the “Y Factor” to include The increase in public sector faculty unionization adjunct faculty involved in committee bargaining units represented only a 2.1 The largest area of recent union density work have been unsuccessful. percent increase over the number of such growth in higher education concerns New public collective bargaining units in 2012. non–tenure track faculty at private and units with tenure-track faculty continue public institutions (Herbert 2016). This to grow. The past few years have seen Unit Composition: Combined or growth is directly related to a systematic newly certifi ed or recognized public Separate? shift in higher education, which now sector tenure-track faculty bargaining relies heavily on lower paid and precari- A fundamental issue is whether non– units in Florida, Illinois, Michigan, ously employed adjunct faculty for class- tenure track faculty should be placed Missouri, Nevada, New Hampshire, room instruction. In many ways, the in a bargaining unit with tenure-track Ohio, and Oregon. shift is analogous to the fi ssured work- faculty or in a separate unit. A related The R factor: Religiously afﬁ liated places in other industries (Weil 2014). issue is whether full-time and part-time institutions Last year, twenty-two new non– non–tenure track faculty should be in a A 1979 Supreme Court decision has tenure track bargaining units were cer- combined unit. Whether a combined or been the source of another legal ob- tifi ed in the private sector, with an separate faculty unit is appropriate is a stacle that has impeded private sector aggregate of 3,700 faculty members. question of law to be determined by a faculty unionization (NLRB v. Catholic Sixty-eight percent of the new units in- labor relations agency unless the issue is Bishop of Chicago 1979). In that case, cluded both full-time and part-time non– resolved between the parties. the Supreme Court concluded that the tenure track faculty. Only fi ve units were The unit composition issue is largely NLRB should decline jurisdiction over composed solely of part-time non–tenure moot in the private sector because most questions of representation concerning track faculty, and two consisted of only tenure-track faculty are outside NLRA parochial school faculty to avoid full-time non–tenure track faculty. These protections under Yeshiva. As early as potential First Amendment issues. newly created units represent a remark- 1973, the NLRB ruled that adjunct and This precedent has been the basis for able 28.5 percent increase over the num- part-time faculty should be excluded litigation by religiously affi liated ber of private sector units found in the from a bargaining unit of tenure-track institutions seeking to stop faculty National Center’s 2012 survey (Berry faculty because of confl icts caused by unionization. and Savarese 2012). Future acceptance substantial differences between the two A National Center study identi- of faculty micro-units would naturally groups. The reasoning in those earlier fi ed nine cases pending last year where lead to a greater proliferation of new decisions was applied last year by an an institution argued that the NLRB bargaining units. NLRB regional director in ordering should not assert jurisdiction over In the public sector in 2016, three separate units for full-time and part-time faculty unionization efforts because of new non–tenure track units were created, faculty at the Minneapolis College of the school’s religious affi liation (Herbert composed of part-time faculty, with an Art and Design.

HIGHER EDUCATION 33 The same issue in the public sector help advocate for improving the work- found on LexisNexis and Westlaw and can lead to a different result depending ing conditions of adjunct faculty, as government data. on the state where the institution is was demonstrated a few years ago at Of the 20 strikes, 55 percent located and the evidence presented at the University of Illinois at Chicago. involved faculty or student employ- a hearing. In 2015, the Pennsylvania Tenure-track faculty at other institu- ees. In September 2016, Long Island Labor Relations Board added adjunct tions may choose not to emulate that University imposed a very unusual and faculty at Temple University to an approach, believing that their own unsuccessful lockout of faculty that existing unit of full-time faculty. New working conditions should be prioritized ended following protests. Faculty strike York’s Public Employment Relations at the expense of the adjunct faculty. authorization votes at California State Board reached very different conclusions Distinctions and disparities between University, Barnard College, and Ithaca in 2016 and 2017 on the placement of groups of employees in a bargaining unit College led to agreements. In addition, adjunct faculty at two community col- can lead to internal disputes during the Yale graduate assistants conducted a leges. In both cases, the adjunct faculty bargaining process. hunger strike in April and May 2017 were placed in separate units rather seeking to compel the commencement of than being added to existing full-time Strikes in Higher Education bargaining. Table 1 lists the strikes and the lock out on campuses since 2012. faculty units, as the colleges urged. The In 1994, the National Center identified New York decisions were predicated on 163 faculty strikes that took place in Looking Ahead a precedent dating back to 1968, which higher education since 1966 (Annun- found that differences between the facul- ziato 1994). The past four years have The specific effect that labor law has on ty groups mandated separate units. seen a much smaller number of higher workplace collective action has been de- Reasonable people can differ over education strikes. We have identified bated for decades. In higher education, whether combined or separate faculty 20 strikes and one lockout in higher however, little question exists that legal units enhance or impair collective education since January 2013, based on developments have directly affected the negotiations. Tenure-track faculty can information gathered from news reports scope and size of unionization, particu-

Table 1. Strikes and a lockout in higher education, January 2013–May 31, 2017.

Institution Unit Type Union Affiliate Date Length

University of Illinois, Springfield TT faculty AFT May 2017 6 days University of California Clerical workers IBT Jan 2017 1 day University of California, Los Angeles Skilled-trade workers IBT Jan 2017 5 days University of California, Los Angeles Skilled-trade workers IBT Nov 2016 1 day Harvard University Dining service workers UNITE HERE Oct 2016 20 days Pennsylvania State System of Higher Education TT and NTT faculty APSCUF Oct 2016 3 days Long Island University TT and NTT faculty AFT Sep 2016 12 days Green River College TT and NTT faculty AFT May 2016 3 days University of Illinois, Urbana-Champaign NTT faculty AFT-AAUP Apr 2016 3 days City College of San Francisco TT and NTT faculty AFT Apr 2016 1 day Rock Valley College FT NTT faculty AFT Sep 2015 4 days University of California Physicians, dentists, and podiatrists AFSCME Apr 2015 7 days Rhode Island School of Design Educational services NEA Apr 2015 5 days University of California Physicians, dentists, and podiatrists AFSCME Jan 2015 1 day University of Oregon Graduate teaching and research assistants AFT Dec 2014 8 days University of California Academic student employees UAW Apr 2014 2 days University of Illinois, Chicago TT and NTT faculty AFT-AAUP Feb 2014 2 days Bellingham Technical College NTT Faculty NEA Sep 2013 6 days Nassau Community College NTT Faculty AFA Sep 2013 5 days University of Illinois, Urbana-Champaign Educational services SEIU Mar 2013 3 days University of Illinois, Urbana-Champaign Accommodation and food services SEIU Mar 2013 3 days

34 PERSPECTIVES ON WORK / 2017 larly with respect to academic labor. Loyola University Chicago, NLRB Case No. 13-RC-189548, References Certifi cation of Representative (Feb. 17, 2017). The results of the 2016 election American University, NLRB Case No. 05-RC-193768, Certifi ca- Marywood University, NLRB Case No. 04-RC-173160, Board make changes to the NLRB inevitable. tion of Representative (April 19, 2017). Decision (May 5, 2017). Annunziato, Frank. 1994. “Faculty Strikes in Higher Education: Minnesota College of Art and Design. NLRB Case No. 18-RC- Decisions by a newly constituted NLRB, 1966–1994,” National Center for the Study of Collective 182546, Decision and Direction of Election (October 26, Bargaining in Higher Education and the Professions 2016). along with the expansion of state open- Newsletter 22 (4). New York University, 205 NLRB 4 (1973). shop laws, will likely negatively affect Berry, Joe, and Michelle Savarese. 2012. “Contracts and NLRB v. Yeshiva University, 444 U.S. 672 (1980). Bargaining Agents in Institutions of Higher Education.” NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). unionization among faculty and other New York: National Center for the Study of Collective Bargaining in Higher Education and the Professions. N.Y. Lab Law §715. employees on campus. In the public Board of Higher Education of the City of New York. 2 N.Y. Laws of 1968, Ch. 890, Legislative Bill Jacket, New York sector, statutory changes in states such as NYPERB ¶3056 (1968). State Library. Telegram from Cornell University Counsel Neal R. Stamp to Acting Counsel to the Governor Michael Brandeis University, NLRB Case No. 01-RC-196695, Certifi ca- Whiteman, June 5, 1968; Letter from NYU General Coun- Wisconsin and Iowa, and efforts to make tion of Representative (May 10, 2017). sel Miguel de Capriles to Acting Counsel to the Governor the open shop a constitutional mandate, Cain, Timothy. 2014. Organizing the Professoriate: Faculty Michael Whiteman, June 10, 1968; and Letter from Union Unions in Historical Perspective [IHE Report]. Athens, GA: College President Harold C. Martin to Acting Counsel to are aimed at undermining unionization University of Georgia, Institute of Higher Education. the Governor Michael Whiteman, June 5, 1968. Cayuga Community College and County of Cayuga, 49 Pacifi c Lutheran University, 361 NLRB No. 157 (2014). and collective bargaining. In addition, NYPERB ¶3007 (2016). Schrecker, Ellen. 1986. No Ivory Tower: McCarthyism and the continued cuts to the staff and budgets of Columbia Daily Spectator. 1936. “Strike Ended at Teachers Universities. New York: Oxford University Press. College as Wage Settlement Is Concluded: Services Resumed Tompkins Cortland Community College et al. 50 NYPERB labor relations agencies will make them in Other Buildings,” 59 (98): 1. ¶4001 (2016). Cornell University, 183 NLRB 329 (1970). less effective in resolving labor disputes. Trustees of Columbia University, 364 NLRB No. 90 (2016). Duke University, NLRB Case No. 10-RC-187957 Tally of U.S. Bureau of Labor Statistics. 2017. Union Members: 2016 The denuding of de jure workplace Ballots (Feb. 24, 2017). (News Release, USDL-17-0107). U.S. Department of Labor, rights and protections will impair union- Employees of Temple University, 46 PPER ¶ 93 (2015). January 26. Hendley, Charles J. 1936. “School Teachers and the Labor U.S. House of Representatives, Special Subcommittee of the ization on campus and elsewhere. Such Movement: A Reply to Dean Russell’s Speech of July 23.” Committee on Education and Labor Hearings before the Charles James Hendley Papers, Box 3, Folder 45, TAM. Committee, Investigation of Teachers Union Local No. 555, changes will necessitate a shift in orga- 109. New York: Tamiment Library and Robert F. Wagner UPWA-CIO, 80th Congress, 2d Session. Labor Archive. nizing strategies. It is likely that such Weil, David. 2014. The Fissured Workplace: Why Work Became Herbert, William. 2016. “The Winds of Changes Shift: An So Bad for So Many and What Can Be Done to Improve shifts will result in a return to the more Analysis of Recent Growth in Bargaining Units and It. Cambridge, MA: Harvard University Press. disharmonious labor tactics that formed Representation Efforts in Higher Education.” Journal of Yale University, NLRB Case Nos. 01-RC-183014, 01-RC- Collective Bargaining in the Academy 8 (1). 183016, 01-RC-183022, 01-RC-183025, 01-RC-183031, the historical foundation for voluntary Hirsch, Barry, and David Macpherson. 2017. “Union Member- 01-183038, 01-RC-183039, 01-RC-183043, 01-RC- ship and Coverage Database from the CPS” [Data from 183050, Decision and Direction of Election (January 25, recognition and collective bargaining. Unionstat]. http://unionstats.gsu.edu/CPS 2017), and Tallies of Ballots (February 15 and 23, 2017).

NATIONAL December 1–2, 2017 West Coast Regional Higher Education California State Labor-Management Conference University, CENTER Long Beach • Unionization and Bargaining Regarding Adjunct Faculty for the Study of Collective • The Impact of Immigration Enforcement on Higher Education Bargaining in Higher Education • The Politics of Accreditation and the Professions • Strategies and Challenges in Higher Education Funding • Workshop Training: Collective Bargaining and Labor Relations for Administrators and Labor Representatives HUNTER • Current Labor-Management Issues at Community Colleges The City University of New York April 15–17, 2018 45th Annual Conference on Collective CUNY Graduate Center, Bargaining and Labor Relations in For more information, contact the 365 Fifth Avenue, National Center at (212) 481-7550 or New York City Higher Education and the Professions [email protected]

HIGHER EDUCATION 35