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Faculty Collective Bargaining Rights

Columbia University, 364 NLRB No. 90 (August 23, 2016)

Echoing arguments made by the AAUP in an amicus brief,  the National Labor Relations Board held that student assistants working at private colleges and universities are statutory employees covered by the National Labor Relations Act. The 3–1 decision overrules a 2004 decision in Brown University, which had found that graduate assistants were not employees and therefore did not have statutory rights to unionize. In this case the AAUP filed an amicus brief with the Board arguing that extending collective bargaining rights to student employees promotes academic freedom and does not harm faculty-student mentoring relationships, and instead would reflect the reality that the student employees were performing the work of the university when fulfilling their duties. In reversing Brown, the majority said that the earlier decision “deprived an entire category of workers of the protections of the Act without a convincing justification.” The Board found that granting collective bargaining rights to student employees would not infringe on First Amendment academic freedom and, citing the AAUP amicus brief, would not seriously harm the ability of universities to function. The Board also relied on the AAUP amicus brief when it found that the duties of graduate assistants constituted work for the university and were not primarily educational.

University of Southern California v. National Labor Relations Board, No. 17-1149 (D.C. Cir. March 12, 2019)

On March 12, 2019, the District of Columbia Circuit Court of Appeals issued a decision in this case. On December 28, 2017, the AAUP submitted an amicus brief, written primarily by AAUP General Counsel Risa Lieberwitz, to the US Court of Appeals for the DC Circuit urging the court to uphold the NLRB’s determination that non-tenure-track faculty at USC are not managerial employees. The brief supported the legal framework established by the NLRB in Pacific Lutheran University and describes in detail the significant changes in university hierarchical and decision-making models since the US Supreme Court ruled in 1980 that faculty at Yeshiva University were managerial employees and thus ineligible to unionize under the National Labor Relations Act. In its decision, the DC Circuit Court generally upheld the Pacific Lutheran University framework, but found that the board erred when it held that the “subgroup” of non-tenure-track faculty in the proposed unit must constitute a majority of a university committee to exercise managerial control.

Janus v. American Federation of State, County, and Municipal Employees, Council 31, 138 S. Ct. (2018)

On June 27, 2018, the United States Supreme Court overruled a 41 year precedent, Abood v. Detroit Board of Education, 431 U.S. 209 (1977) and held that it is unconstitutional to collect agency fees from un-consenting nonmembers. For over four decades the court had repeatedly found constitutional the agency-fee system under which unions could charge an agency fee to public employees represented by those unions but who don’t want to be union members. This system was applied in twenty-two states and across thousands of labor agreements covering millions of employees. The majority’s decision (written by Justice Alito) overturned this precedent on the theory that collection of agency fees from nonmembers “violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.” The court did not delay the effective date of its decision and therefore public unions and employers generally cannot collect agency fees from nonmembers after June 27, 2018. The court did recognize that certain fees could be collected from nonmembers but only if the nonmember “clearly and affirmatively consents before any money is taken from them.”

Duquesne University v. National Labor Relations Board, 947 F.3d 824 (D.C. Cir. 2020)

On January 28, 2020, in a case in which the AAUP filed an amicus brief, the United States Court of Appeals for the District of Columbia Circuit (the “DC Circuit”) issued a decision finding that adjunct faculty did not have the right to unionize at a religiously affiliated university under federal labor law. Duquesne University v. National Labor Relations Board, 947 F.3d 824 (D.C. Cir. 2020) (“Duquesne”). The core issue was whether in applying federal labor law, the National Labor Relations Act (NLRA), to the faculty, the NLRB and the Courts would risk interfering in the religious affairs of Duquesne, thereby violating the Religion Clauses of the First Amendment. The NLRB used the test it set forth in Pacific Lutheran University, 361 NLRB 1404 (2014)(“Pacific Lutheran”), and found there was no danger of unconstitutional entanglement because the faculty in question did not perform a specific role in creating or maintaining Duquesne’s religious educational environment. The amicus brief supported the NLRB test and pointed to the AAUP’s limitations clause as an example of how a comparable test has been applied in higher education. However, in a 2 to 1 decision, the DC Circuit rejected the Pacific Lutheran test, and applying a narrower bright-line test held that the NLRB did not have jurisdiction and therefore the adjunct faculty could not unionize under the NLRA.

United Academics of Oregon State University v. Oregon State University, CA No. A174198 (Or. Ct. of App.)

On March 16, 2021, the AAUP submitted an amicus brief in the Oregon Court of Appeals explaining that “shared governance” did not protect an administration’s distribution of material violating Oregon’s union neutrality law. The appeal arose from an Oregon Employment Relations Board decision finding that Oregon State University had violated a state law requiring neutrality in union organizing drives by authoring FAQs and distributing them to faculty. The university and an amicus brief submitted in support of its case argued that the FAQs were protected by shared governance. The AAUP amicus brief explains the importance of shared governance, that it establishes a system for faculty participation in shared decision making, and that the university FAQs did not constitute shared governance.

President and Trustees of Bates College, No. 01-RC-284384 (NLRB; request for review granted in part Mar. 18, 2022)

On May 13, 2022, the AAUP moved to file an amicus brief with the National Labor Relations Board (NLRB) to provide the AAUP’s views on a case in which a union proposed including college and university faculty members in a collective bargaining unit with staff. The AAUP’s brief explains that, under the National Labor Relations Act (NLRA), where the union’s proposed unit is given deference: (1) bargaining units that include faculty and staff employed at institutions of higher education are not categorically barred, provided that faculty members are given a mechanism to express their desires on the issue; (2) AAUP policy statements concerning academic freedom and shared governance do not preclude faculty members from deciding to be included in a unit with staff; and (3) the exclusion of tenured and tenure-track faculty from a proposed bargaining unit comprised of contingent faculty and staff does not imply that tenure-line faculty are not employees entitled to the full protections of the NLRA.

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