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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. 

The case arose from a decision of the Oregon Employment Relations Board (ERB) finding that Oregon State University committed an unfair labor practice (“ULP”) by authoring and distributing FAQs to OSU employees. Based on a ULP filed by United Academics of Oregon State University, a collective bargaining chapter of the AAUP, the ERB found that the university’s FAQs violated OSU’s statutory obligation of neutrality in union organizing drives. The ERB’s factual findings describe OSU’s conduct of writing many of the questions, including the initial set of twenty-seven questions and some subsequent questions, while presenting them as faculty-initiated questions; soliciting faculty questions; and making substantive edits in questions that the OSU administration received from faculty but failing to disclose that the administration had made such changes. Further, the ERB’s findings reveal that the OSU administration’s manipulation of the questions and responses advanced a position against unionization. Therefore, the ERB found that OSU had violated the Oregon neutrality statute and committed a ULP.

OSU appealed the ERB’s decision to the Oregon Court of Appeals. In opposing the ERB ruling, OSU and an amicus brief filed by the six public universities argued that shared governance protected its actions. The universities’ amicus brief, emphasizing the importance of shared governance and relying on the AAUP’s 1966 Statement on Government of Colleges and Universities, argued that the ERB decision would result “in a chilling effect on shared governance and the Public Universities’ ability to openly communicate and share information with their faculty.”

The AAUP amicus brief sought to assist the court in evaluating the claim that the ERB decision would threaten the system of shared governance in universities. The AAUP agreed with the universities that “shared governance is essential to the maintenance of academic freedom and the free exchange of ideas and knowledge that lie at the heart of higher education.” The brief explained that the AAUP’s 1966 Statement on Government describes the system of institutional decision-making shared by the three “components” of governance: the governing board; the president (which also encompasses the administration); and the faculty, through the faculty’s governance bodies or “agencies.” The amicus brief contrasts a true shared governance system and OSU’s conduct in creating and disseminating its FAQs.

OSU’s conduct in creating and disseminating the FAQs departs from any semblance of shared governance. OSU’s FAQs were not part of the shared governance system of deliberation and consultation among and within governance bodies of the three components (faculty, administration and governing board). Rather, OSU unilaterally created the FAQs and disseminated them directly to individual faculty members and even to some non-faculty employees through a top-down process that was highly orchestrated and tightly controlled by the administration. Further, OSU’s FAQs were not open and honest communications, an element that is essential to creating clearly structured and meaningful shared governance. To the contrary, OSU created the FAQs without disclosing that the OSU administration controlled both the questions and the answers.

The brief concludes that the court should reject OSU’s attempt to cloak their conduct in the mantle of shared governance.