Collective Bargaining - Law and Higher Education
Collective bargaining involves the practice of negotiating salaries, benefits, and other terms and conditions of employment between employers and the representatives of their employees. In the bargaining process, employees select their sole bargaining representatives according to state and/or federal procedural requirements. Although some organizations are referred to as employee associations instead of unions, the terms association and union are used interchangeably for the purposes of this entry, because both groups represent their members when negotiating labor contracts. This entry presents a brief history of collective bargaining in the United States that identifies and discusses key federal legislation related to collective bargaining along with relevant cases related to negotiations in higher education. The entry concludes by identifying current key issues in collective bargaining in higher education.
Collective bargaining in the United States had a limited history in the private sector dating back to before the industrial revolution. Even so, a major development, the National Labor Relations Act (NLRA) of 1935, also known as the Wagner Act, which guaranteed the rights of private citizens to organize, form unions, and bargain collectively in the private sector and established the National Labor Relations Board (NLRB) to oversee unionization and labor relations in the private sector. In 1947, Congress enacted the Taft-Hartley Act and in 1959 the Landrum-Griffin Act, each amending the NLRA. These acts served to clarify which groups fell under the auspices of the NLRA’s authority, allowed the federal government through the judicial system the ability to issue injunctions against prohibited union and management activities, and established requirements for union governance. Collective bargaining in the public sector began a generation after the passage of the NLRA.
Public sector collective bargaining is subject to state laws and is not regulated by the NLRA. As of 2009, 34 states require collective bargaining, while at least 3 expressly prohibit the practice. Individual states set requirements for the recognition of the exclusive representatives for employees for the purpose of collective bargaining. States may also identify specific areas that are subject to mandatory bargaining, such as terms and conditions of employment; areas that are prohibited from bargaining (referred to as management rights); and permissive areas that may be bargained subject to mutual agreement. Of course, as with bargaining in K–12 educational systems, faculty, nonprofessional employees on the support staff, and maintenance workers cannot be members of the same bargaining unions, insofar as they do not share a common community of interest. Accordingly, this entry focuses on the rights of faculty and, as noted, teaching assistants and researchers.
Federal employees gained the right to form unions and engage in collective bargaining after President Kennedy authorized the practice in 1962 via Executive Order 10988. Unionization of public school teachers began about the same time but made great strides starting in the 1970s. Employees in public colleges and universities began collective bargaining in the late 1960s with the majority of the movement in two-year community colleges. While collective bargaining and union membership have been in decline in the private sector largely due to the loss of manufacturing jobs, in education, public and private, K–12 and postsecondary, there appears to be growth in union representation and collective bargaining where the practice is not prohibited by law.
Collective bargaining at private institutions of higher education has a more recent history due mostly to the view of the NLRB that faculty occupy supervisory or managerial positions that are ordinarily exempt from participating in negotiations. Further, in National Labor Relations Board v. Yeshiva University (1980) the Supreme Court classified faculty members in private institutions of higher education as managerial based on the input or influence that they have with regard to the employment of other faculty, tenure, economic decisions, and self-governance.
In light of the orders of the NLRB and the Supreme Court, it appears that the greater the influence and the higher the level of ability to engage in self-government that faculty members have, the less likely they are to be able to organize to engage in collective bargaining. At the same time, Yeshiva impacted public institutions in some states, causing the dissolution of existing faculty unions.
In 1997, the NLRB revisited the classification of higher education faculties at private institutions as management in a dispute from the University of Great Falls, allowing its faculty to organize and bargain collectively. Three years later, in 2000, the NLRB found that the faculty at Manhattan College had the right to organize and bargain collectively. In both instances the NLRB considered the actual influence of faculty members on employment and fiscal decisions. The NLRB granted both faculties the right to organize and bargain, because it was convinced that the majority of recommendations that faculty members made were advisory rather than dispositive in the decision-making processes on their campuses.
Key legislation from the 110th Congress and not yet introduced in the 111th Congress is the National Right-to-Work Act, a law that seeks to prohibit the requirement that workers be union members as a condition of employment in all states. According to the U.S. Department of Labor, 23 states have rightto- work laws and constitutional amendments as of January 2009. The National Right-to-Work Act would repeal some federal laws that allow dismissal for nonpayment of dues or lack of union membership and would apply to all states meaning mandatory union membership could not be a condition of employment. Although this proposed law focuses specifically on unions, its impact on collective bargaining would be immediate. Educators at colleges and universities would be wise to keep abreast of the status of this law as the 111th Congress addresses labor issues.
Graduate Students and Adjunct Faculty
Two additional groups in higher education, graduate teaching assistants and graduate researchers, have asserted the right to organize and bargain collectively with some success. The earliest union of graduate students was formed in 1969 at the University of Wisconsin. Because state laws cover public employees, state agencies responsible for labor or state courts decide whether these groups are eligible to form unions and bargain collectively. Consequently, since the late 1990s there has been an increase in collective bargaining agreements between public universities and their graduate teaching and research assistants. This spread in collective bargaining among these groups is due in large part to the NLRB’s order involving New York University in 2000.
Collective bargaining typically requires full-time employment for membership in a union or employee association in both the public and private sectors. More specifically, in higher education, adjunct faculty members are not ordinarily covered by unions, because they are part-time employees. This classification may result in conflict, as some colleges and universities are moving toward part-time and adjunct faculty as a cost savings measure, because these adjunct faculty would be ineligible for benefits. In addition, institutions currently operating under collective bargaining agreements that include dismissal and reduction-in-force procedures may opt not to fill open full-time positions in favor of hiring less expensive adjunct faculty members.
In recent years, online education has become an issue related to faculty at institutions offering classes through this medium. These classes are becoming popular not only because they afford institutions larger pools of students without substantial increases in overhead, but also because they provide a more convenient way for many students to participate in higher education at both the graduate and undergraduate levels.
The Internet has clearly increased the availability of postsecondary education to a multitude of people. However, the lack of specific guidelines in many colleges and universities as far as the number of courses that individuals may teach, enrollment cap sizes, time dedicated to preparation of materials and actual online time, and even ownership of course content are all issues that may be subject to bargaining. Additionally, absent the direct contact with students, faculty members may have greater teaching loads than in traditional classes that must be addressed in negotiations. Faculty at all levels undoubtedly will not disagree with the value of enabling greater numbers of students to experience college educations, but they expect regulation, perhaps through bargaining, to ensure employment equity is maintained with regard to workload and commensurate compensation. Viewing online teaching and bargaining from this perspective is likely to garner support by unions and professional associations on campuses as labor contracts are negotiated and renegotiated. In fact, as the United States moves further toward an information economy and away from a manufacturing economy, the delivery of education via electronic devices and online programs may become even more prominent in bringing this means of learning into the forefront of collective bargaining.
In sum, as legislation and litigation continue to declare more groups of employees eligible to participate in collective bargaining, administration, faculty, graduate teaching assistants, and graduate researchers on college and university campuses need to remain up-to-date with respect to constitutional requirements, statutes, regulations, and case law associated with union representation.
Michael J. Jernigan
See also Unions on Campus
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- U.S. General Accounting Office. (2002, September). Collective bargaining rights: Information on the number of workers with and without bargaining rights. Report to Congressional Requestors, U.S. Senate, GAO-02-835. Washington, DC: Author.
- Employee Free Choice Act of 2007, S. 1041, H.R. 800. 110th Congress (2007–08). Retrieved January 25, 2009, from http://www.govtrack.us
- U.S. Department of Labor. (2009). State right-to-work laws and constitutional amendments. Retrieved January 25, 2009, from http://www.dol.gov/esa/whd/ state/righttowork.htm
- Labor-Management Relations Act (Taft-Hartley Act), Pub. L. No. 80-101 (1947).
- Labor-Management Reporting and Disclosure Act (Landrum-Griffin Act), Pub. L. No. 86-257 (1959).
- Manhattan College and Manhattan College Faculty Coalition, New York State United Teachers a/w American Federation of Teachers, AFL-CIO. NLRB Case 2-RC-21735 (November 9, 1999). Retrieved January 25, 2009, from http://www.nlrb.gov/shared_ files/Regional%20Decisions/1999/2-RC-21735.pdf
- National Labor Relations Act (Wagner Act), 29 U.S.C. §§ 151-169 (1935).
- National Labor Relations Board v. Yeshiva University, 444 U.S. 672 (1980).
- National Right-to-Work Act. H.R. 697, S. 1301. 110th Congress (2007–08). Retrieved January 25, 2009, from http://www.govtrack.us
- New York University and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO. NLRB Case 2-RC- 22082 (October 31, 2000). Retrieved January 25, 2009, from http://www.nlrb.gov/shared_files/Board%20Decisions/332/332-111.pdf
- University of Great Falls and Montana Federation of Teachers, AFT, AFL–CIO, Petitioner. NLRB Case 19-RC-13114 (November 8, 1997). Retrieved January 25, 2009, from http://www.nlrb.gov/shared_files/Board%20Decisions/325/3253.pdf