Michael Kevane

A few days ago, the Santa Clara University campus recreation unit sent an email to faculty and staff announcing that starting in the next academic year fees of $200 per year would be charged for use of the recreation facilities (gym, exercise room, courts, pool). These had been a free benefit of university employment. Faculty and staff were upset, and 100s of emails were shared, until 12 hours later when the university chief operating officer sent an email suspending the change.

The event was a lesson in poor management communication. Not lost on faculty and staff was the constant rhetoric of the university as an institution committed to the health and wellness of employees!

The action also tapped into a frustration with budget opacity.  I served in 2018-19 on an entity called the University Budget Council (UBC), part of our university’s shared governance system. The UBC in the past year did not discuss the recreation facility fee change. Should it have? The way the UBC worked ( it seemed from my first year of experience, and from talking with an earlier faculty representative) was to quickly vet modest changes from the previous year’s budget. Certain major unit heads (Provost for all academic units, IT, residence life, admissions, development) made a “pitch” for why they should get a possibly small increase (i.e. instead of 3% merit pool for salaries, a small increase to a 3.5% merit pool; or instead of 0% increase in budget for IT, a 1% increase). After 30 minutes of discussion in the UBC, these “pitches” were then adjudicated by Vice President for Finance Michael Crowley and his team, and a “compromise” was presented in followup meeting (about six meetings over the Fall quarter).

Informal practice has been to have no voting or UBC resolution of competing requests, instead the administration did that behind the scenes. I guess if major department heads really wanted to fight an allocation, they could push for a “constitutional crisis” and ask UBC to formally vote on their proposal. The UBC has no bylaws, though, so the mechanisms by which requests would be adjudicated have not been established (secret vote? who decides on wording of vote?). In any case UBC is part of the shared governance institution that in the end is advisory in that the Trustees ultimately decide on this “macro” budget.

I feel that my role in coming year as a member of UBC is to advocate within UBC and faculty senate for greater budget participation and transparency. Faculty and staff, for example, know next to nothing about the Athletics budget, for example. The administration will not, apparently, generate and share a university-wide report on adjunct salary structures, information that is crucial to addressing policy on compensation and unionization. The administration has embarked on extensive borrowing to fund large campus construction projects, but does not share “bad case” scenarios that might require drastic expenditure reductions.

The Faculty Senate voted a resolution several years ago to establish a long-term budget priorities committee. For three years the administration has contrived a variety of excuses for why this committee could not undertake its charge, even after agreeing in principle to the committee.  (Incidentally, want a model of what budget transparency can produce? See this white paper on football at San Jose State University.)

I also think the transparency issue was not so salient for faculty when university priorities seemed fully aligned with faculty priorities (during the 1990-2010 period?). As the administration has increasingly committed to a different path (increasing reliance on non-tenure track faculty, increased emphasis on elite athletics, greater investment in physical plant and student amenities over scholarship, gradual decline in “real” faculty salaries- that is, adjusted for Bay Area living costs) the questions about transparency become more important.

From Philip Miscimarra, current Trump-appointed chair of the NLRB, in his dissent (when he was minority) in both the Duquesne and the Loyola University cases of 2017:

Second, as explained in my separate opinion in Pacific Lutheran University, 361 NLRB No. 157, slip op. at 26–27 (2014) (Member Miscimarra, concurring in part and dissenting in part), when determining whether a religious school or university is exempt from the Act’s coverage based on First Amendment considerations, I believe the Board should apply the three part test articulated by the Court of Appeals for the District of Columbia Circuit in University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002). Under that test, the Board has no jurisdiction over faculty members at a school that (1) holds itself out to students, faculty and community as providing a religious educational environment; (2) is organized as a nonprofit; and (3) is affiliated with or owned, operated, or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion. Id. at 1343. In my view, Loyola University has clearly raised a substantial issue regarding whether it is exempt from the Act’s coverage under that three-part test. As stipulated by the parties, the University holds itself out to the public as providing a religious educational environment. Additionally, the University is organized as a nonprofit, and it is affiliated with the Catholic Church and the Society of Jesus. Accordingly, I would grant the University’s request for review because substantial questions exist regarding (i) whether the Board lacks jurisdiction over the University as a religiously affiliated educational institution, and (ii) whether the Pacific Lutheran standard is unconstitutional under the First Amendment. I would consider these jurisdictional and constitutional issues on the merits.

In a sign of how much things have changed, three unions withdrew petitions pending review by the board within the last week. In so doing, the unions said they’d rather continue to seek voluntary union recognition from their institutions — an unlikely prospect — than risk an unfavorable legal decision under the Trump-era NLRB.Graduate Students United, the American Federation of Teachers- and American Association of University Professors-affiliated union at the University of Chicago, “has decided to withdraw from the federal review process and pursue a direct path toward contract negotiations as part of a coordinated national movement to protect the legal status of private graduate employees,” it said in a statement Wednesday.Yale University’s graduate student union, affiliated with Unite Here, along with Boston College’s United Autoworkers-affiliated union, appear to be part of that coordinated movement: both withdrew their petitions from the board within the past few days as well.All three unions held successful union elections (in Yale’s case, eight departments voted for a union as part of a “micro-unit” strategy). But their institutions challenged the validity of their bids, and so their petitions went back to the NLRB for additional review.

Source: In blow to graduate student union movement on private campuses, three would-be unions withdraw petitions

The university administration argued for an exemption on grounds that university had a religious mission. NLRB board at the time rejected claim but apparently unexpectedly decided to exclude faculty in theology from the bargaining unit.

Apparently the dissenter was a Republican NLRB member, now appointed chair by Pres. Donald Trump. According to one news story, reported by Julie Whitehair:

Acting Chairman of the NLRB Philip Miscimarra disagreed with the NLRB’s overall ruling, citing three standards that should be used to determine if Loyola’s religious affiliation makes it exempt from the NLRB’s jurisdiction. The three-part test includes whether the university declares itself to provide a religious education, is a nonprofit and is owned by or affiliated with a religious organization.

I wonder whether Jesuit universities, which by and large are independent of the Jesuit religious order (they have independent boards) and which do not claim to provide religious education, would affirmatively declare that they do not meet this three part test (obviously they are non-profits).

A good proportion of non-tenure track faculty at Santa Clara University are trying to organize a unionization vote, with considerable resistance from the university. Last week at the Faculty Senate Council,. university counsel Bridget Colbert and Senior Associate Provost for Research and Faculty Affairs Amy Shachter for the first time to my knowledge came out explicitly and said the university was opposed to unionization. All kinds of rhetoric flew, including the trotting out and repeating in a mindless way their slogan “we are better working together.”  One slide had a list of 6 or 7 universities they claimed had “gone through the NLRB” but it turned out maybe only one actually concerned a faculty unionization vote. The duo claimed that the administration in 2018 had not “been aware” that there were any issues surrounding adjunct faculty justifying a unionization drive, and that once President Engh became aware of the issues he swiftly changed procedures, working conditions, and compensation. Several faculty pointed out that “take” was baloney (to use an old-fashioned metaphor).

The main issue right now seems to be that the union organizing committee thinks it has 30%+ signed union cards, but does not want to go to the NLRB to request a unionization vote because the university is sending many signals that it would use all the legal tactics available to then grind that process to a halt, including possibly asking the NLRB to revisit the Yeshiva and Pacific Lutheran precedents that brought religious-oriented institutions like SCU under the same standard as secular private universities, and also established that faculty were not prima facie managers just because the university said they were.

Other relevant stuff….

Recently, Nov 2018:

Full-time, non-tenure-track faculty members at Northeastern University have withdrawn a petition to form a union. The withdrawal came after Northeastern told the National Labor Relations Board (NLRB) that full-time, non-tenure-track faculty are managers, and therefore cannot form a union. Vaso Lykourinou, an associate teaching professor of chemistry and chemical biology, expressed concern that the current NLRB would not be favorable to faculty. “Going into the [NLRB] and having a hearing with the current climate in that board, we wouldn’t want that to become non-tenured faculty are managers, so therefore, that creates a precedent that they cannot unionize,” said Lykourino.

And this in March 2019:

In a unanimous opinion, a federal appeals court just rejected the National Labor Relations Board’s “subgroup majority status rule” for determining when college and university faculty members are to be deemed managers and therefore excluded from coverage under the National Labor Relations Act (University of Southern California v. NLRB). The rule, first articulated in the Board’s 2014 Pacific Lutheran decision, required that a faculty subgroup (e.g. nontenure faculty) seeking to organize must have majority control of any committee that made managerial decisions before the Board would find that subgroup to be managers. By rejecting the Board’s “subgroup majority status rule,” yesterday’s D.C. Circuit Court of Appeals decision dispensed with the Board’s reliance on “crude headcounts” and held that the proper test is for the Board to assess whether the faculty members at issue are “structurally included within a collegial faculty body to which the university has delegated managerial authority.” Colleges and universities should familiarize themselves with this decision and its potential impact on faculty bargaining units.

And should Jesuit university faculty participate in the Examen, possibly a cynical ploy to gather evidence demonstrating that faculty are part of the religious mission of university and thus exempt from unionization?

Another part of the ruling said that just because a college is religious doesn’t mean that its faculty members can’t unionize. The NLRB said that a religious college would need to show that “it holds out the petitioned-for faculty members as performing a religious function. This requires a showing by the college or university that it holds out those faculty as performing a specific role in creating or maintaining the university’s religious educational environment.” The NLRB then cited facts about Pacific Lutheran that suggest its adjuncts (those who were seeking unionization there) aren’t performing religious work, and thus are entitled to unionization. That part of the ruling will now be applied to several other pending disputes over efforts to unionize adjuncts at religious colleges. And it may be difficult for those colleges to continue to block unionization.

This is a nice article about effects of unionization and current trends:

In short, the unionization of adjunct faculty is among the most important recent developments shaping higher education. The increasing reliance on low-paid, part-time instructors has eroded the availability of tenure-track positions at many institutions.Moreover, the same desire for cost savings that has motivated colleges to rely heavily on adjunct faculty has led, at many institutions, to worsening working conditions for tenure-track faculty in the form of growing teaching loads, a lack of administrative support, and diminishing funds for research. Given these developments, it is possible that adjunct and tenure-track faculty may come together more often to unionize together, as happened recently at our university, Notre Dame de Namur.

And votes and eligibility can be hotly contested. At Northwestern it seems for example the organizing committee did not want to include some business school adjunct faculty:

The updated count, now 242 against and 231 in favor of unionization, is a win for the University, which strongly opposed the initial exclusion from the tally of faculty whose eligibility to vote was disputed. Provost Jonathan Holloway said in a news release that NU is “grateful” that the NLRB ensured “every voice was heard.” “We appreciate that our faculty participated in the process and acknowledge how close the election was in the end,” he said. The announcement ends a bitter dispute just over a year after NTE faculty filed a complaint with the NLRB accusing the University of unfair labor practices. Northwestern administrators had refused to bargain with the SEIU since federal officials certified the labor union as a representative of the non-tenured faculty in May 2017, arguing that the 25 votes were unreasonably excluded. The faculty and administration had disagreed over which faculty members were eligible to vote. Last month, the agency overturned its previous decision using a 2002 administrative rule, determining that the election’s rules “unambiguously” included 18 of the 25 employees, and that the remaining seven “should be included in the unit on community-of-interest grounds.”