Friday, September 23, 2016

And the University of Minnesota faculty organizing drive drags on, or, bananas aren’t apples, but they are more like apples than like airplanes

When I taught labor relations last winter, the union organizing drive among University of Minnesota faculty was a very timely topic. After having been away for the summer, some of the students from that class asked whether faculty were unionized yet. But the answer brings to life one of the realities of union organizing in the United States—it’s a slow process. SEIU Local 284 filed a petition seeking an election with the State of Minnesota’s Bureau of Mediation Services (BMS) on January 20, 2016. Over 34 weeks later, an election is not yet in sight.

In any union representation election, the election unit needs to be defined. That is, what jobs are included and excluded from what will be the bargaining unit if the union wins. This definition is initially presented by the union when requesting an election, but an employer can object on the basis of there not being a “community of interest” among all of the included workers. A major sticking point in the faculty organizing drive is whether the bargaining unit should only include tenured and tenure-track faculty (the University’s position) or should also include full-time and part-time instructors (“contract faculty”) (the union’s position). In other words, the University asserts that regular faculty and contract faculty do not share a community of interest whereas the union argues that they do. Undoubtedly, regular and contract faculty have things in common (an educational focus, instruction, academic achievement as a position requirement) and not (tenure versus annual contracts, sharply different degrees of research responsibilities). So where to draw the line?

Unfortunately, an already-slow process has been made worse by the curious choice of the Minnesota legislature to enshrine the University of Minnesota bargaining units in state law over 30 years ago. It’s clear that tenured and tenure-track faculty are in what the law defines as Unit 8. But what about contract faculty? The University claimed that they are in the “Academic Professional and Administrative Staff” unit (Unit 11) by law, so there is nothing for BMS to decide. The union claimed that the law is so old that contract faculty are new positions that need to be classified by BMS. Over multiple objections by the University, BMS agreed with the union. So a lengthy hearing was held last spring, and BMS finally issued its ruling earlier this week.

In its ruling, BMS largely sided with the union and placed contract faculty into Unit 8 along with regular faculty (although extension faculty were excluded because they are not located on the Twin Cities campus). So unless the University is successful in an appeal, an election will occur some day and will uniquely include regular and contract faculty in the same unit. But that’s still a ways off because (a) the University will probably appeal, and (b) there still needs to be more hearings over excluding supervisors (which could include me as department chair) and determining whether instructors who teach minimal classes are real employees and therefore included. So again, union organizing can often be a lengthy process.

So what about the BMS ruling? How could they put regular and contract faculty together? If this occurred in the private sector, my guess is that they wouldn't have been placed together because they would have been seen as having distinct communities of interest. But in the private sector (and probably in most states), nothing is pre-specified so the National Labor Relations Board (NLRB) could put them together, or keep them separate. What the University seemingly failed to appreciate in this case is that Minnesota law has already limited the bargaining units. So BMS really wasn't deciding whether faculty and instructors go together, it was really deciding whether instructors go with faculty or go with the “everything else leftover” professional and administrative unit that also includes accountants, cartographers, athletic trainers, and over 300 other job titles. The university kept arguing that instructors aren’t faculty. But BMS ruled that they are even less like accountants and athletic trainers. Or the way I’ve bastardized it, bananas aren’t apples, but they are more like apples than like airplanes.

So whether or not this ruling makes it more or less likely that the faculty will vote to unionize remains to be seen. And if the faculty do unionize, it will undoubtedly be an interesting case study of how to include regular and contract faculty interests in bargaining and representation. In the meantime, the events of this year clearly illustrate how this can be a drawn-out process. And at a broader level, this also illustrates why legislators should be careful not to overly prescribe matters and to instead craft laws in ways that are flexible and adaptable.

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