From The President: Bad-Faith Bargaining

By Cary Nelson

As the AAUP moves toward implementation of its restructuring plan and the creation of a traditional 501c(5) labor union, we should ask ourselves how we can further enhance the effectiveness and visibility of those parts of our organization that are involved in  collective bargaining.

Our collective bargaining leaders have long recognized that we need a mechanism to identify and draw public attention to institutions that consistently deny employees the right to engage in collective bargaining, as well as institutions that bargain in bad faith. We have a well-known and widely respected mechanism for dealing with violations of academic freedom and tenure that prove irresolvable—censure—but no comparable way to highlight instances when administrations resist negotiations or simply ignore basic bargaining rights. Thus, for example, we have never censured an administration that refuses to honor an employee group’s expressed wish for union representation. We do not even have an effective way to condemn an administration that withdraws recognition of an existing union, let alone a convincing mechanism for publicizing an institution’s history of unfair labor practices.

Encouraged by conversations with our collective bargaining leaders, and supported by our general secretary, I propose that we inaugurate an “Antiunion Warning List,” to be published in Academe and on our Web site and to be publicized in press releases. Because we seek to promote good union principles everywhere, the listed institutions need not be limited to ones dealing with AAUP locals or bargaining drives. Nor need the problems identified be limited to faculty collective bargaining. Graduate student and staff complaints would also be considered. We could thus support redress of violations of fundamental bargaining rights in higher education communities across the country. The list would encourage reform and warn prospective faculty, staff, and students that the institutions listed might not provide acceptable working environments.

Although many issues must be settled before we could move forward with such a plan, it is possible to suggest some preliminary steps. A committee would have to evaluate reports of unacceptable bargaining practices. It would need to have some staff support and be able to gather information and input from all parties to a dispute, though in many instances independent agencies like the National Labor Relations Board would have already decided that labor practices there were unfair. In that case, our union would focus on publicizing antiunion hostility. The committee could seek, however, to resolve conflicts before adding an institution’s name to the list. Membership on the committee need not be limited to AAUP members, though that is a matter for discussion. Some formal process could take place at the annual meeting, ranging from a vote by the executive committee of the Collective Bargaining Congress to list an institution to issuance of press releases by the full congress.

Once formed, the committee would need to draft and seek wide agreement on a detailed statement of principles identifying the practices that would justify inclusion on the warning list. Case-review procedures would also be drafted and disseminated. We would need mechanisms to ensure that the committee had sufficient independence to be insulated from political pressures to add institutions to the list. Simply bargaining aggressively would not qualify an institution for inclusion, but clear and prolonged resistance to negotiation might well merit attention, as would a history of repeated unfair labor practices or clear evidence that union activists had been dismissed in retaliation for their activism. The “Antiunion Warning List,” a provisional name that may be changed, would not deal with the same issues that Committee A on Academic Freedom and Tenure does and would not, therefore, compete with either the censure list or the sanction list of the Committee on College and University Governance. Yet the committee handling complaints could learn from Committee A’s long and distinguished history and from our many policy documents and reports, even though the CBC would be unlikely to duplicate all of Committee A’s procedures.

Producing such a guiding document and achieving consensus about it would take some time. Meanwhile, we would need to draft budget estimates for alternative ways of implementing this process. We would not inaugurate the list until restructuring has taken place. But it is reasonable to expect that a 501c(5) labor union, which would be responsible for administering the list, will want to behave like a union, albeit one with an AAUP emphasis and flavor.