Why does SCU want to take the faculty unionization straight to the NLRB? Because they could reverse every unionization on every Jesuit and other “religious” university

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.

Posted in Santa Clara University

Tactics when confronting a Trump-appointee dominated NLRB: “three would-be unions withdraw petitions”

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

Posted in Santa Clara University

When Loyola University A&S faculty tried to unionize, religious-ness became an issue…

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

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).

Posted in Santa Clara University

Recent news on faculty unionization efforts

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.”
Posted in Santa Clara University

Just one quick thought on The OA

People who knew me back in 2010ish era knew that I liked Lost a lot until the last season. The opening scene with Desmond remains an all-time favorite piece of cinema.

I mentioned back then several times: the only way for them to have ended the show in a way that could be consistent with the spirit of the show was to go meta. The last scene had to pan the camera back and see the end of the take from the point of view of crew.  Then some of the actors could be decompressing later, and something small could hint that maybe the imaginary world of Lost had bled over into the real world of the actors.

So I was so pleased when the ending of The OA did that with panache. Without giving away the ending, which is worth watching a couple times, the meta labyrinth is now fully open, and the writers can go many ways. And like Istvan Banyai’s Zoom, the point of view can keep telescoping. That kind of meta ending has a long tradition in film. The final scene of Blazing Saddles of course is the perfect template (“Raisinets?”) but more in the idea of the real action ending up on the movie set. I guess one might say that Sunset Boulevard played with it (“Alright, Mr. DeMille I’m ready for my close-up“). I’m also partial to the flawed Irma Vep.


Posted in Book and film reviews

Recent reading: Pnin, Ancillary Mercy, The Other Wind, The Right and the Power

I use this blog partly to recall books and papers I have read, but lately I have not been taking the time, so now I have to play catch-up.  Here are three books I finished in last few weeks.

Pnin, by Vladimir Nabokov. I told my book group this was “awesome.” Many of them were ho-hum about it, enjoying the humor, definitely enjoying the writing, but wondering what was the point really? To me it was like a having a tour guide tell the rest of the group to take a break, and she was going to show me, just me, through the museum of literary fiction, step by step. I found as I went deeper into the novel, and started reading sections, paragraphs, alone, I was just just amazed by what Nabokov was doing. Especially once I got to the ending, where the whole thing loops around to Cremona, it was like the guide saying, “now you have to start all over, and notice what you missed, and try to see why you missed it and what it is doing.”

Ancillary Mercy, by Ann Leckie. I bought this, thinking it was the second in the trilogy, but after 50 pages I realized it was the third. Then of course I felt like I had saved time, and so could enjoy it more, if you know what I mean. Leckie I think is one of the few sci-fi writers who can pull off a novel primarily about emotions: very good stuff the relationships between Breq, crewmembers, others. The action such as it was and concepts (basically just AI) play second-fiddle to the evolving emotional understandings. One thing that makes no sense as I think about the trilogy (caveat only having read two) is that somehow all the AI ethics conferences and social scientists and humanists who think about these things… well, their work had been forgotten? Humans learned to bend space but the ethics of AI was still at Asimov level? I think Culture series does much better with that.

The Other Wind, by Ursula Le Guin. Her Earthsea series very good, very light reading. This one a little darker, and some gaps (I am not a huge Earthsea fan, so some of the sections seemed like shout-outs to fans), but overall enjoyable fantasy reading.

The Right and the Power, by Leon Jaworski. A neighbor was selling her books so I picked this up. Fascinating stuff. So timely, as the Mueller Report came out just as I finished reading. And Leslie and I watched All the President’s Men on Netflix- what a powerful, gripping movie, very daring in pacing and composition. The Deep Throat scenes the only misstep (they could have edited those out and movie would have been even better). Anyone who purports to care about Trump era make a regular habit of occasionally reading and watching thoughtful work on Watergate.

Posted in Book and film reviews

Treemendous performance of El Siquisiri

Ay, que sí, que sí y que no
Y el son jarocho bailamos
Ay, que sí, que sí y que no
Es decente en su nobleza
Ahora sí, mañana no

Posted in Music