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This page provides a short overview of the common challenges that academic workers face when they seek unionization. It then describes the special legal and ideological challenges that some faculty and graduate students face in their bids to form higher education unions. It concludes with a primer on strategies that academic workers have used to overcome some of these challenges.
Faculty that have chosen to organize with the AAUP have enjoyed resounding success in recent years. In the 2015-16 academic year, contingent and tenure line faculty at Plymouth State University, the College of Southern Nevada, the AFI Conservatory, and Emerson College Los Angeles joined the AAUP's family of unionized chapters. In addition, the AAUP has partnered with the American Federation of Teachers to support successful faculty unionization campaigns at Northern Illinois University, the University of Illinois at Chicago, and the University of Oregon, as well as a graduate employees union at Portland State University. The AAUP-CBC continues to support faculty collective bargaining in campaigns across the country.
In the climate of higher education today, more and more faculty are looking to the AAUP-CBC to support them in unionization. Here are some of the challenges that faculty members and the AAUP-CBC face in their efforts to build the academic union movement.
All academic organizing campaigns share some common obstacles. First and foremost, it is important to recognize that administrations have the initial advantage against faculty seeking to form a union. They have well-developed communications channels with the faculty, as well as the financial resources to hire outside lawyers and consulting firms to help them out-maneuver faculty organizers. Administrations can also combine their legal and public relations strategies with other internal efforts to neutralize faculty support for a union. Sudden pay raises after years of stagnant salaries is just one example of such tactics. Another widespread (and, unfortunately, often successful) tactic involves spreading misinformation about a union’s negative impact on shared governance, faculty autonomy, and the quality of the university by posting so-called “fact sheets.” Some administrations go so far as to support an anti-union committee of faculty who organize against the union.
After recognition, employers can still use their vast financial resources to mount legal challenges against the newly formed union. Two recent cases involving AAUP unions illustrate the possible strategies that recalcitrant administrations can use against their employees.
At the University of Illinois Chicago (jointly organized with the AAUP and the AFT), the tenure- and non-tenure-track faculty successfully filed for recognition with the state labor board in the spring of 2011. Almost immediately, the university’s legal team filed a suit, claiming that the new union was illegitimate because tenure- and non-tenure-track faculty should be in separate unions. The UIC administration lost two appeals on this case before eventually winning in the Illinois appellate court. While the faculty could have appealed this ruling, they opted to resubmit authorization cards for the two units (one tenure-track, one non-tenure-track) and move on to bargaining. As a result of the UIC administration’s tactics, the union was not finally recognized until June 28, 2012.
The administration at Bowling Green State University took a different approach to stifling faculty unionization. Soon after the AAUP chapter won its recognition election in October of 2010, it had to turn its attention to SB 5, a statewide bill that would have stripped public-sector workers of their collective bargaining rights. The bill’s language specifically targeted faculty members using language eerily similar to that of the 1980 US Supreme Court decision National Labor Relations Board v. Yeshiva University, which held that faculty at Yeshiva, a private institution in New York City, were managers and therefore not entitled to bargain collectively. Later, the faculty discovered that Bowling Green’s own general counsel had written this language into the bill. After massive popular resistance to SB 5, it was placed on the November ballot as a referendum. Unsurprisingly, the administration dragged its feet at the bargaining table until it saw the results of the November vote. Fortunately, SB 5 was defeated, and the administration had no alternative but to accept that the union was there to stay.
In each of these cases, the faculty succeeded by using the best tool at its disposal—face-to-face organizing. Successful unionization drives are built on hundreds (sometimes thousands) of conversations in office visits, over coffee, and in other social venues. A grassroots organizing drive can build majority support among faculty members and, in turn, defeat an administration with superior resources but inferior public support.
At UIC, members led a fast-paced campaign in 2012 to re-collect authorization cards in the event that the appeals court ruled against them (it did). In only six weeks, the members collected nearly all of the signatures they needed. By the time of the court’s ruling, they re-filed with even higher numbers of approval than they had the year before.
At BGSU, members of the AAUP-affiliated Faculty Association built up union membership and went door-to-door in the community to GOTV (get out the vote!) against SB 5. Their organizing efforts increased their power on campus and helped defeat the legislation that would have allowed their administration to legally un-recognize their union.
Regardless of the legal or ideological challenges that faculty face in their bid to unionize, success boils down to organizing a strong majority of faculty in support of the union.
Academic organizing in the United States has expanded since the late 1960s in places where the law provides (or provided) a framework of enforceable rules for unions to win recognition and exercise collective bargaining rights. For example, following are some of the states that have passed legislation that recognizes and grants bargaining rights to public sector faculty unions: New York, New Jersey, Pennsylvania, Massachusetts, Rhode Island, Michigan, California, Connecticut, Minnesota, Illinois, and Ohio. In the private-sector, faculty formed unions under the provisions of the National Labor Relations Act, which does not apply to public-sector faculty. This unionization was dealt a blow by the Supreme Court’s 1980 Yeshiva decision and subsequent National Labor Relations Board decisions, which found that many faculty, particularly those on the tenure track, were “managers” who had no right to unionize under the NLRA. However, a 2014 National Labor Relations Board decision in Pacific Lutheran University opened the door to unionization for contingent faculty by ruling that in order for faculty to be deemed managers ineligible for collective bargaining rights, the administration must prove that faculty exercise “actual authority” or that faculty recommendations must “routinely become operative without independent review by the administration." This has led to an increase in unionization of contingent, or non-tenure-track, faculty, though tenure-track faculty have still generally been classified as managers.
Private-sector faculty who are considered managers and public-sector faculty in states without enabling legislation are not automatically covered by any legal framework for forming unions. Importantly, this is not the same as saying that these faculty members do not have the ability to unionize. The Yeshiva decision is often mischaracterized as making unionization illegal for such faculty. Legal limitations such as Yeshiva or the lack of enabling state legislation for public-sector faculty do not make unionization illegal—they take away the employer’s legal obligation to recognize and give bargaining rights to a union. An employer may voluntarily recognize the union and its rights to collective bargaining, even though such instances are rare (see below).
Another legal challenge to faculty and graduate students seeking to form unions is “right to work” legislation. “Right to work” legislation makes it much more difficult for unions to become financially secure, thus limiting their political influence and their ability to defend the faculty they represent. These laws allow employees to benefit from negotiated union contracts and services such as representation in grievances without requiring them to pay agency fee—a portion of money remitted to the union for the purposes of sustaining the contract and collective bargaining activities. “Right to work” and other anti-union legislation may exempt employers from the obligation to collect dues on behalf of the union, meaning that unions must devise their own methods for collecting dues from their memberships. States that have “right to work” laws on their books are often called “right to work states” in shorthand.
Attempts have been made to challenge agency fee nationally. In 2016, the Supreme Court issued a decision in Friedrichs v. California Teachers Association that rejected attempts by anti-union forces to render agency fee unconstitutional in the public sector. The court upheld an appellate court decision that found agency fee constitutional without addressing the substantive arguments in the case. However, since the Court was equally divided, it could revisit the issue. While advocates of right to work laws point to an individual employee’s right to choose whether or not to pay the union, such arguments avoid the real intent of “right to work”—eroding the financial stability of unions by allowing free riders.
These legal restrictions have been implemented and maintained specifically to limit the power of faculty members and unionized employees. There is no doubt that these legal obstacles severely restrict faculty access to unionization. In today’s higher education workplace, a disempowered faculty will give administrations a freer hand to erode academic freedom, job security, compensation, and benefits.
For private-sector faculty who are considered managers and public-sector faculty in states without enabling legislation your best option may be a voluntary recognition campaign. Winning voluntary recognition means persuading your administration to recognize the statutory rights of the bargaining unit you present if and when you demonstrate majority support from that bargaining unit. As you might have guessed, there are not many presidents or boards that openly welcome a faculty union on campus because administrations today prize management control and “flexible” decision making.
Winning voluntary recognition is not a matter of making good arguments to the administration, but a matter of organizing a strong majority of faculty to publicly support unionization. An AAUP advocacy chapter is one possible starting point for a voluntary recognition drive. A well-organized chapter could potentially secure payroll deduction for its members, obtain a list of faculty on campus, develop an office visit campaign to reach them, and build steadily toward majority support for unionization. Because they lack legal protections, voluntary recognition drives are risky, especially for contingent faculty who have little recourse in the event of retaliation.
If you are a faculty member in a “right to work” state, you should understand that maintaining your union will be more challenging because “right to work” laws aim to reduce the financial security of unions. Without the ability to collect fair share fees from non-members, the union will have to continuously organize new members. The positive result can be, of course, a stronger union and more activist union. Regardless of whether the union can collect fair share money, it is always best to organize towards having a strong majority of faculty as supportive, active union members.
A final yet still challenging path for those faculty members seeking unionization where there is no statute is to attempt to change state law. It is worth remembering that other groups of employees have won successful drives to change the law and win bargaining rights.
If successful unionization drives depend on a hard-won majority of faculty or graduate student support, ideological divisions within the academic workforce can threaten that success.
For graduate student employees, the first challenge is often to debunk the assumption that a graduate assistant’s work is part of an apprenticeship and not an exchange of work for compensation. It is worth pointing out that this assumption can be shared by both faculty and graduate student employees.
Building a graduate student employee union requires solidarity with both faculty and other graduate student employees. The experience of AAUP graduate student employee unions is a testament to the importance of building alliances across campus around a shared awareness of their work.
Since our inception, URI's faculty union has been one of our strongest supporters. Their extensive experience has meant that we've had excellent mentors to turn to for advice and direction when we've needed guidance, and we've always managed to settle any disputes between our members and the faculty in house, without having to go into arbitration. We are proud to have such a positive relationship with the faculty at URI.—Danielle Dirocco, president of the University of Rhode Island's Graduate Assistants United (AAUP)
Another ideological division that can hamper the success of academic unions is the belief that tenured and tenure-track faculty members are entitled to different workplace rights. The AAUP Collective Bargaining Congress believes that unions are stronger when they build solidarity between tenure-stream faculty and contingent faculty.
All full-time faculty members at the University of Illinois at Chicago, both inside and outside the tenure system, are represented by UIC United Faculty, which is currently in negotiations for a first contract. In accordance with Illinois law, these negotiations will produce two collective bargaining agreements: one for tenure-system faculty, and one for non-tenure-system faculty. Believing that in most matters, from pay to pensions, the interests of all full-time faculty are one and the same, we have appointed a single bargaining committee, composed of tenure-system and non-tenure-system faculty, to negotiate the two agreements.—Scott McFarland, a lecturer at University of Illinois at Chicago and the vice president of UIC United Faculty (AAUP-IFT/AFT)
Overcoming ideological divisions and working together is a key component to a successful organizing drive. Only when faculty realize their shared goals amidst a transforming higher education workplace can they most effectively protect the faculty voice and the quality of education on campus.
Academic Collective Bargaining, eds. Ernie Benjamin and Michael Mauer. New York: MLA, 2006, particularly “A Primer on Academic Organizing,” by Patrick Shaw and “Graduate Assistants’ Bargaining,” by Patricia J. Gumport and Daniel J. Julius.