The First Amendment to the U.S. Constitution, in part, prohibits Congress from enacting laws restricting the right of people to assemble peacefully. Consequently, the First Amendment has been interpreted as meaning that individuals are free to organize and join unions of their choosing. Unions are a collection of members who come together for the common purpose of engaging in collective bargaining or negotiations over terms and conditions of employment, such as wages, benefits, and other items for which bargaining is not prohibited by state or federal law. While the majority of public teachers in American K–12 schools belong to unions, this is not the case with regard to faculty members and other instructional staff members on the campuses of colleges and universities in the United States. This entry discusses issues associated with the status of unions on college and university campuses in both public and private institutions of higher learning.
Insofar as union leaders advocate the importance of organization and strength in numbers, labor organizers typically identify substandard working conditions, low wages, nonexistent or minimal benefits, and mistreatment of employees by employers to spark unionism in the work force. In this way, unions justify their activities as providing protection for their members from employers while negotiating benefits for workers that would otherwise be unattainable.
When organizers attempt to form unions, they must demonstrate that prospective members share a “community of interests” that, generally, includes common concerns over such matters as wages, work hours, benefits, qualifications, training and skills, and job functions. While the community of interests should be readily apparent for faculty members and other instructional personnel, as opposed to nonprofessional staff such as maintenance workers and office assistants, some view the advantages of this requirement as having to be balanced against the disadvantages of a proliferation of multiple smaller bargaining units that could reduce the strength of unions and their collective numbers.
The Negotiation Process
Once unions are organized, collective bargaining or negotiation practices vary greatly in education. The three primary types of union negotiations that have been prevalent in educational settings are meet-and-confer, good-faith bargaining, and bargaining during an unexpected crisis. The meetand-confer approach, which largely predated bargaining but still exists in some places today, amounts to a discussion between faculty and administration, with the latter largely setting contract terms. Most states with unions in higher education rely on the traditional model of goodfaith bargaining, which is characterized by mutual respect where each party approaches negotiations with the intent to resolve all issues equitably. The unexpected crisis is the beginning of the end for traditional collective bargaining due to the adversarial posturing of administrators and faculty, because in this approach neither party is willing to compromise or negotiate an equitable outcome.
A new type of negotiation has been in use recently, win-win. In win-win bargaining, each team looks at the available resources and agrees to terms that are amenable to both sides in a manner that is less confrontational, more collegial, and more professional than the tradition confrontational, zero-sum model of good faith bargaining that emerged from the industrial labor relations model. Because this model approaches compromise in its truest form, the results tend to be less stressful due to the commitment to arrive at settlements with which both sides can live.
Regardless of which model faculty members and their institutions adopt, they must bear in mind that some topics are mandatory subjects of bargaining, while other are permissible, and still others are prohibited from being the subject of negotiations, depending on state law. Academic abstention and faculty governance issues in higher education vary significantly from those of K–12 schools, and the distinctions between these three types of topics are readily blurred at colleges and universities. Typically, salary and benefits are mandatory topics of bargaining. Depending on the jurisdiction, other topics, such as placing limits on enrollment in classes and programs, may be permissible topics over which bargaining may take place. Prohibited topics of bargaining are those for which bargaining is forbidden by state law, such as setting tuition rates at public colleges and universities.
Evolution of Unions and Labor Law
As unions developed in the United States, initially in the private industrial relations sector, Congress enacted the National Labor Relations Act (NLRA), also known as the Wagner Act, in 1935. However, the NLRA affected only private industry’s ability to organize, form unions, and bargain collectively under the First Amendment. At the same time, the NLRA established the National Labor Relations Board (NLRB) to oversee union activities in private industry. Subsequently, Congress enacted the Labor-Management Relations (Taft-Hartley) Act of 1947 and the Labor-Management Reporting and Disclosure (Landrum-Griffin) Act of 1959. These laws amended the NLRA by clarifying which groups were covered by the NLRA, setting requirements for union self-governance, and allowing the federal government, through the judicial system, to issue injunctions against unions for prohibited activities.
Public sector unionization began in 1959, when Wisconsin became the first state to allow its public employees to bargain. Another major push toward bargaining occurred in 1962, when President Kennedy signed Executive Order 10988 allowing federal employees to organize and engage in collective bargaining. Later in the same year, public school teachers, starting in New York City, engaged in activism leading to large-scale unionization among their ranks nationwide.
As labor law developed, the rights of public employees, including faculty members and other instructional staff at public institutions of higher education, to form unions and bargain collectively emerged largely under the aegis of state laws. To this end, jurisdictions that allow bargaining are free to set their own requirements for union recognition and bargaining practices. Moreover, rightto- work laws and state constitutions identify whether unions are permitted and whether collective bargaining is required. As unionization and collective bargaining have developed, three different workplace models have evolved.
The three different types of workplace models are closed shops, fair share or agency shops, and open shops. Although the Taft-Hartley Act of 1947 officially declared them to be illegal in 1947, closed shops continue to exist in some locations and industries; they are not present in educational workplaces. Because closed shops require union membership as a condition of employment, employers hire only union members to fill vacancies. Moreover, states with right-to-work laws explicitly prohibit these types of shops. Fair share or agency shops allow employers to hire individuals who are not union members but require nonmembers to pay a fair share of the costs associated with the bargaining process that provides them with salary and other benefits. Under this approach, nonmembers ask union officials for breakdowns of the percentages of union dues that are associated with bargaining. These individuals are then required to pay only the portion of dues used for negotiating salary, benefits, and other terms and conditions of employment; even so, fair share fees can cost nonmembers almost as much as union dues. The third model, open shops, does not require membership in unions or paying of any portion of union dues or fair share fees by nonmembers.
Fair Share Fees
In jurisdictions with the most common approach, fair share or agency shops, state laws and local policies have established the rules governing what can be included when setting fair share fees. These rules have been supplemented by the rulings in five U.S. Supreme Court cases, only one of which was set in higher education. In Abood v. Detroit Board of Education (1977) and Lehnert v. Ferris Faculty Association (1991), a case from higher education, the Supreme Court set the standards under which unions may charge fair share fees to nonmembers. Generally, such fees must be germane to collective bargaining activities, be justifiable, and not add significantly to the burdening of free speech. Further, in Chicago Teachers Union, Local No. 1, AFT, AFL-CIO v. Hudson (1991), the Court disapproved of a rebate system whereby nonmembers paid the full dues and received a rebate, because this system did not avoid the risk that nonmember funds might be temporarily used for improper purposes. In Davenport v. Washington Education Association (2007), the Court limited the use of fair share fees of nonunion members; affirmative authorization is now required before nonmember fees may be spent for political purposes. Most recently, in Ysura v. Pocatello Education Association (2009), the Court placed further restrictions on the ability of unions to spend the fair share fees of nonmembers in upholding a ban on public-employee payroll deductions for local political activities, because it advanced the State of Idaho’s interest in separating the operation of government from partisan politics.
Judicial Involvement in Faculty Unionization
The leading case on judicial involvement in faculty unionization, at least in private colleges and universities, is National Labor Relations Board v. Yeshiva University (1980). In Yeshiva, the Court held that faculty members in a private, religiously affiliated university did not have the right to organize and form unions, because they performed some duties that were considered managerial in nature. In so ruling, the Court forbade the NLRB from intervening in a labor dispute between faculty members and the university. Even so, in 1997 the NLRB decided that faculty members at the University of Great Falls had the right to form a union and bargain collectively. The NLRB reached the same result in 2000 in finding that faculty members at Manhattan College were entitled to form a union based on the small amount of influence that they exerted on management when making financial or employment decisions. In the same year, the NLRB was convinced that graduate teaching assistants and graduate researchers at New York University have the right to organize as a union and bargain collectively. Previously, because these two groups had been classified as students, not employees, they were forbidden from forming unions.
At the national level, three organizations, the National Education Association (NEA), American Federation of Teachers (AFT), and American Association of University Professors (AAUP), in addition to many local groups, represent the majority of organized faculties at public and private colleges and universities. During the surge of unionization at colleges and universities in the 1960s, both the NEA and AFT were able to associate with higher education faculties. The AAUP represents only higher education faculties and has no ties to elementary or secondary education. Although the AAUP was started in 1915 in order to protect academic freedom, during the 1970s it began pursuing collective bargaining for higher education faculties. The first faculty to unionize at a public institution was that of the U.S. Merchant Marine Academy in 1967, which affiliated itself with the AFT. During the 1970s, the proliferation of community colleges led to an increase in unions on campuses across the United States. Yet, faculty members in other institutions of higher learning were less active, in part because of the impact of Yeshiva.
On campuses with unions, regardless of whether they are public and private, individuals select their representatives by secret ballots. Election results at public colleges and universities are reviewed by their state labor boards for certification, and boards recognize the election winners as the sole representatives for collective bargaining. The NLRB reviews and certifies votes before recognizing bargaining representatives. However, change may be in the offing with regard to the selection of unions, as Congress is considering a bill that would eliminate elections when employees choose whether to organize a union. Under the proposed Employee Free Choice Act (EFCA) that has already passed in the House and may make its way to the Senate in the 111th Congress, employees would sign cards indicating their desire to form a union rather than engage in secret ballots. If the EFCA is enacted into law, it may have a significant impact on labor relations on campuses, because it may make it easier for unions to form. It certainly bears watching to observe whether the EFCA becomes law.
American Association of University Professors. (2009). History of the AAUP. Retrieved February 5, 2009, from http://www.aaup.org/AAUP/about/history
Epstein, R. A. (2005). Breaking down the ivory sweatshops: Graduate student assistants and their elusive search for employee status on the private university campus. St. John’s Journal of Legal Commentary, 20, 157–197.
Kerchner, C. T., & Mitchell, D. E. (1988). The changing idea of a teachers’ union. Philadelphia, PA: Falmer Press.
Palmer, S. (1999). A brief history of collective bargaining in higher education. Retrieved January 27, 2009, from http://members.home.net/eoozycki/HECollectBar.html
Russo, C. J. (2002). Right-to-work and fair share agreements: A delicate balance. School Business Affairs, 68(4), 12–15.
Russo, C. J. (2007). Supreme Court update: Unions, fair share agreements, and the first amendment. Education and the Law, 19(3–4), 237–244.
Russo, C. J., Gordon, W. M., & Miles, A. S. (1992). Agency shop fees and the Supreme Court: Union control and academic freedom. Education Law Reporter, 73, 609–615.
Saltzman, G. M. (2001). Higher education collective bargaining and the law. In National Education Association, The NEA 2001 almanac of higher education (pp. 45–58). Retrieved January 27, 2009, from http://www2.nea.org/he/healma2k1/images/a01p45.pdf
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
Abood v. Detroit Board of Education, 431 U.S. 209 (1977).
Chicago Teachers Union, Local No. 1, AFT, AFL-CIO v. Hudson, 501 U.S. 1230 (1991).
Davenport v. Washington Education Association, 127 S. Ct. 2372, 2383 (2007).
Employee Free Choice Act of 2007, H.R. 800, 110th Congress (2007–08). Retrieved May 28, 2009, from http://www.govtrack.us/congress/bill.xpd?bill=h110-800
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).
Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991).
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, 29 U.S.C. §§ 151 et seq.
National Labor Relations Board v. Yeshiva University, 444 U.S. 672 (1980).
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
Ysura v. Pocatello Education Association, 129 S. Ct. 1093 (2009).