The American Association of University Professors’ Center for the Defense of Academic Freedom and the National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College published a new report analyzing and comparing academic freedom provisions included in collective bargaining agreements from 45 higher education institutions. The report calls for the development of a nationwide training program for higher education on the principles of academic freedom set forth in the 1940 Statement and on incorporating those principles into collective bargaining agreements.
Topics:
Academic Freedom & Employee Speech | Collective Bargaining | Faculty & Staff
Opinion Affirming in Part and Vacating in Part. The California Faculty Association (CFA), the bargaining unit representing faculty at California State University, filed an unfair labor practice charge with the California Public Employment Relations Board (PERB) following the university’s decision to change the student vaccination policy. PERB concluded that (1) the policy had reasonably foreseeable effects on faculty health and safety that triggered a duty to bargain and (2) the university’s failure to bargain violated the California Higher Education Employer-Employee Relations Act (HEERA). On appeal, the court agreed with PERB’s conclusion that the university had a duty to bargain, noting that the existence of accommodation processes for immuno-compromised faculty did not eliminate this duty. However, the court rejected PERB’s conclusion that the university violated HEERA, finding no substantial evidence that the university had implemented the policy prior to CFA filing its charge with PERB. The court reasoned that “implementation” requires concrete steps to carry out a decision, and mere adoption of a policy was insufficient.
Topics:
Collective Bargaining | Faculty & Staff | Governance | Shared Governance
National Labor Relations Board (NLRB) General Counsel (GC) Memo re: Remedying the Harmful Effects of Non-Compete and “Stay-or-Pay” Provisions that Violate the National Labor Relations Act (NLRA). The memo, which was issued to all field offices, expands upon the GC’s May 2023 memo and reaffirms the position that overbroad non-compete agreements are unlawful because they chill employees from exercising their rights under Section 7 of the NLRA, which protects employees’ rights to take collective action to improve their working conditions. The second part of the GC’s memo sets forth the proposed framework for assessing the lawfulness of “TRAP” provisions that limit employee mobility, the remedies that will be sought in enforcement actions before the Board, and the circumstances under which the GC may decline to issue a complaint against preexisting “stay-or-pay” arrangements.
Topics:
Collective Bargaining | Faculty & Staff | Fair Labor Standards Act (FLSA) & Categorization of Employees
National Labor Relations Board (NLRB) General Counsel (GC) Memo re: Clarifying Universities’ and Colleges’ Disclosure Obligations under the National Labor Relations Act (NLRA) and the Family Educational Rights and Privacy Act (FERPA). The memo notes that private colleges and universities may have obligations under the NLRA to provide a collective-bargaining representative with information about student-workers, which is otherwise protected under FERPA. The memo provides guidance on the process by which institutions should respond to information requests, including to determine whether requested information is covered by FERPA, the duty to “offer a reasonable accommodation in a timely manner and bargain in good faith with the union toward a resolution of the matter,” and to abide by any agreements reached regarding furnishing records. The memo also counsels that institutions covered by FERPA might also include a FERPA consent form “in paperwork to be completed by a student-employee upon onboarding of employment,” and provides a suggested FERPA Template Consent Form.
Topics:
Collective Bargaining | Faculty & Staff | Fair Labor Standards Act (FLSA) & Categorization of Employees | Family Educational Rights and Privacy Act (FERPA) | Privacy & Transparency
National Labor Relations Board (NLRB) Final Rule on Representation—Case Procedures: Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships. The Board’s Fair Choice-Employee Voice 2024 Final Rule rescinds and replaces April 2020 amendments concerning treatment of petitions for Board-conducted representation elections during the pendency of an unfair labor practice charge, and after an employer’s voluntary recognition of a union as an employee majority-supported collective-bargaining representative. The 2024 Final Rule, thus, “return[s] the law” regarding both blocking charge policy and the voluntary-recognition doctrine “to that which existed prior to the adoption of the April 2020 rule.” It also rescinds an amendment governing construction industry-specific petitions for a Board-conducted representation election. The Final Rule is effective September 30, 2024.
Topics:
Collective Bargaining | Faculty & Staff
National Labor Relations Board, General Counsel Memorandum re: Section 10(j) Injunctive Relief and the Supreme Court in Starbucks Corp. v. McKinney. In the memorandum, the General Counsel wrote that “while the Supreme Court’s decision in Starbucks Corp. provides a uniform standard to be applied in all Section 10(j) injunctions nationwide, adoption of this standard will not have a significant impact on the Agency’s Section 10(j) program.” The General Counsel’s intention will remain “to aggressively seek Section 10(j) injunctions where necessary to preserve the status quo and efficacy of Board final orders.”
Topics:
Collective Bargaining | Faculty & Staff
Opinion vacating and remanding. In 2022, following an investigation, Starbucks terminated several employees who invited local news media into a Memphis Tennessee store after hours and without store managers’ knowledge to discuss their unionization efforts. The union filed charges with the National Labor Relations Board, and the Board issued a complaint and sought a preliminary injunction to reinstate the terminated employees. The district court granted the injunction, applying the Sixth Circuit’s “reasonable cause” standard for injunctive relief under Section 10(j) of the National Labor Relations Act, which permits temporary relief when the district court finds it “just and proper,” and the Sixth Circuit affirmed. The Supreme Court vacated and remanded, holding that the proper standard for a preliminary injunction under section 10(j) is the traditional four-part test articulated in Winter v. Natural Resources Defense Council (U.S. 2008). While the Court noted that Congress may alter the plaintiff’s burden for securing injunctive relief, it held that “because nothing in §10(j)’s text overcomes the presumption that traditional equitable principles govern, district courts considering the Board’s request for a preliminary injunction must apply the Winter framework, which embodies those traditional principles.”
Topics:
Collective Bargaining | Faculty & Staff
Memorandum granting Defendants’ Motions to Dismiss. Plaintiff, a former tenured professor at the University of Scranton, brought contract claims against the University and a breach of duty of fair representation claim against his union after he was terminated in 2022 for refusing to sign a COVID-19 vaccination attestation as required by the University’s return-to-campus policy. The court dismissed as time-barred his contract claims against the University, finding plaintiff’s attempt to reassert his allegation of lack of due process in a second complaint filed with the union after it had previously informed him it would not pursue his grievance did not toll the statute of limitations. It dismissed his breach of fair representation claim against the union, finding insufficient factual allegations that its actions were arbitrary, discriminatory, or in bad faith. It dismissed his claim that his termination violated the University’s Faculty Handbook, noting (1) that because the Faculty Handbook also contained the union’s complaint and grievance process the claim is a “hybrid” claim under the Labor Management Relations Act and (2) his fair representation claim against the Union had failed to state a nonconclusory claim.
Topics:
Campus Police, Safety, & Crisis Management | Collective Bargaining | Coronavirus | Employee Discipline & Due Process | Faculty & Staff
Memorandum from the General Counsel (GC) of the National Labor Relations Board (NLRB) on Securing Full Remedies for All Victims of Unlawful Conduct. The memo offers guidance to Regional Directors to “seek full make-whole remedies for all employees harmed as a result of an unlawful work rule or contract term, regardless of whether those employees are identified during the course of the unfair labor practice investigation.” It notes, “[t]he remedy of mere recission of an overbroad, unlawfully promulgated, or unlawfully applied rule or contract term does not expunge discipline imposed under those unlawful provisions or retract related legal enforcement action, and thus fails to make impacted employees whole.” If further advises that in seeking settlements, Regions should seek information about which employees, if any, were disciplined or subject to legal enforcement actions to include them in settlement agreements or urge the Board to ensure that all such employees receive make-whole relief.
Topics:
Collective Bargaining | Faculty & Staff
