Sowards, Robin

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Panel Handout: The Impact of Faculty Unit Composition on Collective Bargaining

Eastern Illinois University

Journal of Collective Bargaining in the AcademyVolume 0 National Center Proceedings 2016 Article 62September 2016Panel Handout: The Impact of Faculty UnitComposition on Collective BargainingRobin SowardsUnited SteelworkersFollow this and additional works at: http://thekeep.eiu.edu/jcbaPart of the Collective Bargaining Commons, and the Higher Education CommonsThis Proceedings Material is brought to you for free and open access by The Keep. It has been accepted for inclusion in Journal of Collective Bargainingin the Academy by an authorized editor of The Keep. For more information, please contact tabruns@eiu.edu.Recommended CitationSowards, Robin (2016) "Panel Handout: The Impact of Faculty Unit Composition on Collective Bargaining," Journal of CollectiveBargaining in the Academy: Vol. 0 , Article 62.Available at: http://thekeep.eiu.edu/jcba/vol0/iss11/62Optimal Bargaining through Amalgamated Faculty Units(NCSCBHEP 2016–04–05)Robin J. Sowards, Ph.D. (rsowards@usw.org), United SteelworkersBargaining for MissionThe issue of faculty bargaining unit composition arises primarily because of the (real or perceived)conTicts of interest between tenure-stream faculty and contingent faculty. Mixed units have amixed track record. As Joe Berry often points out, the very best contract language for contingentfaculty is in mixed units, but the very worst contract language for contingent faculty is also in mixedunits. So simply having a mixed unit guarantees nothing, but it does seem potentially to achievebetter results. In thinking about unit composition, then, we should pay attention both to the effectsof unit composition itself and to whatever other factors might be determine those effects.Community of InterestWe can get some insight into the factor that, in my view, crucially determines whether a mixed unitbargains effectively for contingent faculty—namely, union democracy—by looking carefully at howthe NLRB conceives of unit composition. Under the Act, the NLRB is empowered to determine whatunit is appropriate for collective bargaining, and it has returned to the question of exactly how to doso many times. One particularly illuminating passage comes from the 1962 Kalamazoo Paper Boxdecision, which had to do with whether a group of truckdrivers should be carved out of an existingproduction and maintenance unit and treated as having a distinct community of interest. In workingthrough how to determine the bargaining unit, the Board observed that it“must maintain the two-fold objective of insuring to employees their rights to self-organization and freedom of choice in collective bargaining and of fostering industrialpeace and stability through collective bargaining. In determining the appropriate unit,the Board delineates the grouping of employees within which the freedom of choicemay be given collective expression. At the same time it creates the context within whichthe process of collective bargaining must function. Because the scope of the unit isbasic to and permeates the whole of the collective-bargaining relationship, each unitdetermination, in order to further effective expression of statutory purposes, must havedirect relevancy to the circumstances within which collective bargaining is to take place.For, if the unit determination fails to relate to the factual situation with which the partiesmust deal, efacient and stable collective bargaining is undermined rather than fostered.”(Kalamzoo Paper Box 136 NLRB 10 1962)I’ll return to the question of what exactly would make faculty bargaining “efacient” momentarily, butarst I’d like to draw our attention to the Board’s emphasis on making unit determination decisions ina way that preserves workers’ right to (1) self-organization (i.e., free association), (2) individualfreedom of choice, and (3) “collective expression” of that individual freedom.The concern with the right to “self-organization” suggests that some deference is due to theworkers’ own decision about who they think should be included, which is just to say that there’s apresumption in favor of the petitioned-for unit and the employer must bear the burden of1Sowards: Panel Handout: The Impact of Faculty Unit Composition on CollectiPublished by The Keep, 2016demonstrating that the unit is not appropriate. The union side often has the view that unitcomposition questions really ought to end there and the government has little legitimate right tointerfere.The concern with individual “freedom of choice” seems a little odd since the Board is perfectlyhappy compelling a minority into representation and has, if anything, been stridently resistant tomembers-only unions that would seem to facilitate individual “freedom of choice” (see Dick’sSporting Goods NLRB Case No. 6-CA–24821). So probably the issue they have in mind here is morethe concern that there will be a tyranny of the majority at the bargaining table, where the interestsof a minority within the bargaining unit are not pursued at the table because they conTict with thoseof the majority. The variant of this problem that is probably more common in mixed faculty units isthe situation in which a more privileged minority (tenured faculty) advances its interests at theexpense of a less privileged majority (contingent faculty). But it’s essentially the same problem, andit’s a problem that every majoritarian democratic procedure faces: it is not clear at all why anyindividual’s autonomy should be abrogated merely because they are on the losing end of a vote(see, e.g., Robert Paul Wolff, In Defense of Anarchism).Amalgamated Faculty UnitsOne obvious solution to this problem is to give up on majoritarianism, for example by adopting theview that decisions should be made by consensus. This approach, of course, has the danger that itcan prevent decisions being made at all, as many people discovered during Occupy’s large generalassemblies. The problem is one of scale: reaching consensus with 10 people is often feasible,whereas reaching consensus with 10,000 is probably impossible. (There’s a long tradition ofinterest in problems of scale in political philosophy, going back to Aristotle’s Politics, but the issuetends to be under-estimated in current political thinking.) So the traditional way to mitigate theproblems of majoritarianism in a union is to delegate tasks to committees, who are charged withchewing through potential conTicts, reaching consensus, and bringing the resulting proposalsbefore the larger body for a vote.Of course that only works if the committees are composed of individuals who embody the variousinterests that might conTict over the issues the committee considers. Nothing in the NLRA or theLMRDA really compels that representativeness. To the extent that the Board can create conditionsapproximating consensus decision-making, it does so through choosing bargaining units in whichthe interests of individuals are relatively homogeneous.From that point of view, it seems obvious that tenure-stream faculty and contingent faculty shouldbe in different units. Indeed, it might even make sense to petition for separate micro-units of tenure-stream and contingent faculty for each academic unit (e.g., schools or colleges), invoking SpecialityHealthcare (357 NLRB 83), in order to limit the heterogeneity resulting from the differencesbetween pure and applied sciences, say, or academic and professional programs. Each unit wouldelect its own leadership, and thus be able to advocate directly for its own interests.But this leaves out the Board’s other concern in the passage I quoted earlier with the “collectiveexpression” of those individual interests. In general, the framework of the US legal system has realdifaculties with anything collective, difaculties that have all sorts of absurd results ranging fromtreating corporations as if they are individual legal persons to treating unions as “bargainingagents” rather than just the members of the union acting collectively. The law, in other words, isincapable of imagining interests that would genuinely be collective, rather than individual.2Journal of Collective Bargaining in the Academy, Vol. 0, Iss. 11 [2016], Art. 62http://thekeep.eiu.edu/jcba/vol0/iss11/62But the interests of faculty—especially their fundamental obligation to the mission—are collectiveinterests. It is exactly for this reason that they can only effectively pursue those interests when theycome together as a union. This consideration pulls us in exactly the opposite direction of the desireto defend against a tyranny of the majority or minority: if the faculty as a whole has fundamentallycollective interests, then the faculty should all be in a union together. In short, both autonomy andsolidarity are indispensable elements.To satisfy both horns of this dilemma, I believe that the optimal solution is for the union to organizeas separate units but then to amalgamate into a single local with the same afaliate (or whatevercorresponding structure a particular afaliate’s structure makes possible). Especially if all of theunits organize in parallel, there’s nothing preventing them from deliberating together, bargainingtogether, and acting in solidarity. The unity of the faculty would thus be a matter of internal unionstructure, and where conTicts existed they could be addressed without any group feelingdisenfranchised since each unit would have their own elected ofacers. The solution, in other words,is to put joining together in the hands of academic workers themselves, rather than leaving it up tothe Board to fret about potential variations in interests.Of course, with separate units administrators could insist on bargaining with each unit separately,seeking to divide and conquer. But a divide and conquer strategy would be ineffectual as long asthe units are all amalgamated in the same local union. The only effect would a dramatic loss in the“efaciency” of bargaining that the Board expressed concern about in Kalamazoo. Having to re-bargain the same issues, and potentially end up with slightly different arrangements from oneacademic unit or one group of faculty to the next, obviously creates all sorts of administrativeheadaches. And while bargaining with a uniaed faculty would obviously give the faculty moreleverage at the table, the faculty’s leverage at the table also gives administrators of good willleverage of their own to push their own constituencies to accede to the faculty demands that wouldfacilitate carrying out the institutional mission. So big, uniaed bargaining would beneat both sidesof the table.In two words, then, the optimal arrangement involves both decentralized decision-making andaggregated action and bargaining.Regional BargainingOf course this optimal arrangement may not be feasible in particular circumstances, and strategicdecisions are always hemmed in by what the Board in Kalamzoo refers to as the “factual situationwith which the parties must deal,” such as the situations we’ve faced in our faculty organizingcampaigns in Pittsburgh. For example, when we started organizing at Duquesne University we wereconscious of the fact that we’d probably end up in a protracted legal battle, so we chose just toorganize the part-time faculty in the Liberal Arts in order to clear the legal hurdles out of the wayand then to expand across campus. At Point Park University and Robert Morris University the full-time faculty were already organized, so we chose to organize the faculty who were yet unorganized.By contrast, at Chatham University we’ve been able to organize all faculty together from thebeginning, and at the University of Pittsburgh the group that approached us included faculty at allranks from the very beginning—a happy circumstance since, when we looked into the relevantpublic-sector labor laws, it turned out that we were legally obligated to organize all faculty at allcampuses into a single unit, thanks in part to the Pennsylvania Employee Relations Act’s ofacialpolicy against unit “fragmentation” (and also thanks to a 1990 PLRB decision specifying anappropriate unit that was essentially wall to wall except that it excluded faculty in the School ofMedicine). 3Sowards: Panel Handout: The Impact of Faculty Unit Composition on CollectiPublished by The Keep, 2016So circumstances will often dictate our options to some extent, but they don’t necessarily tie ourhands. Our strategy for overcoming the rather complex array of circumstances in Pittsburgh is toamalgamate all of these units into one city-wide higher education local across employers. Bringingfaculty together on a metro scale, while maintaining all of the separate units, offers countlessadvantages, even beyond the obvious gains in leverage and solidarity. Administrators need notworry that they will be at a competitive disadvantage in relation to other institutions in the citybecause standards can be bargained that encompass the whole city, a crucial consideration whenthe marjority of faculty (contingent faculty) are part of a regional labor market. This also opens upvarious win-win opportunities, including offering health care for all faculty through a city-wide trustmanaged by the union, then using the dramatic increase in scale to negotiate lower health carecosts than any individual employer could manage. Both administrators and faculty ultimatelybeneat from such economies of scale.In the long run, unionists should start talking about how we might form inter-union regionalcouncils in particular sectors, like higher education, who engage in coordinated bargaining at aregional level, perhaps facilitated through CLCs. Keeping such arrangements localized has thepotential to Ty under the radar of some kinds of unhelpful inter-union politics, while also cultivatinga movement-oriented ethos that we are going to need if we want to enact the systemic change forwhich workers in all sectors are clamoring.4Journal of Collective Bargaining in the Academy, Vol. 0, Iss. 11 [2016], Art. 62http://thekeep.eiu.edu/jcba/vol0/iss11/62

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Panel Handout: The Impact of Faculty Unit Composition on Collective Bargaining

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