President and Trustees of Bates College, No. 01-RC-284384 (NLRB; request for review granted in part Mar. 18, 2022)

On May 13, 2022, the AAUP moved to file an amicus brief with the National Labor Relations Board (NLRB) to provide the AAUP’s views on a case in which a union proposed including college and university faculty members in a collective bargaining unit with staff. The AAUP’s brief explains that, under the National Labor Relations Act (NLRA), where the union’s proposed unit is given deference: (1) bargaining units that include faculty and staff employed at institutions of higher education are not categorically barred, provided that faculty members are given a mechanism to express their desires on the issue; (2) AAUP policy statements concerning academic freedom and shared governance do not preclude faculty members from deciding to be included in a unit with staff; and (3) the exclusion of tenured and tenure-track faculty from a proposed bargaining unit comprised of contingent faculty and staff does not imply that tenure-line faculty are not employees entitled to the full protections of the NLRA.

In October 2021, Maine Service Employee Association–SEIU Local 1989 filed a petition for a representation election with the NLRB, seeking to organize a bargaining unit consisting of all nontenured and non-tenure-track faculty and all staff employed by Bates College, a private liberal arts college located in Lewiston, Maine. Of the employees in the unit: 75–95 are contingent faculty (including visiting assistant professors, visiting lecturers, and faculty holding lectureships); approximately fifty are staff who meet the NLRB’s definition of “professional employees” (these include data analysts, athletic trainers, project managers, technology consultants, nurse practitioners, psychologists, nurses, and librarians); and the remainder are nonprofessional staff employees. Following a hearing, the NLRB’s regional director found the unit “appropriate” under the NLRA and ordered a representation election to take place. In accordance with the NLRA, the employees were divided into two voting groups: (1) a professional voting group consisting of all full-time and regular part-time professional employees, which includes faculty and professional staff; and (2) a non-professional voting group consisting of all other staff in the unit. Under the NLRB’s Sonotone procedure, the employees in the professional group were given a separate, two-question ballot allowing them to indicate whether they wished to be included in a single unit with the nonprofessional employees. The election was held, but the ballots have been impounded pending the NLRB’s resolution of the employer’s legal challenges to the unit’s composition. One of the employer’s main arguments is that faculty are too different from staff to be included in the same unit on account of the faculty’s interest in academic freedom and shared governance.

The AAUP’s amicus brief makes three main points. First, the brief explains that a bargaining unit including both faculty and staff can be appropriate under the NLRA, provided that the desires of faculty members are taken into account. Under the NLRA, the determination of whether the unit proposed by the union is “appropriate” for purposes of collective bargaining turns on whether the employees in the unit share a “community of interest.” As the brief explains, the NLRA “requires only that the unit be ‘appropriate,’” it need not be “the only appropriate unit, or the ultimate unit, or the most appropriate unit.”  As the AAUP’s brief observes, faculty and staff employed by colleges and universities generally have much in common, and in at least some instances these similarities can support a finding that they share a community of interest under the NLRA. While faculty and staff do have a number of differences, in this case the NLRB’s Sonotone election procedure provides protection for faculty’s distinctive interests, particularly since faculty are a majority of those eligible to vote in that election. Second, the brief explains that AAUP statements on academic freedom and shared governance do not support barring faculty from choosing to be included in a bargaining unit with staff. Rebutting the employer’s reliance on the AAUP’s 1940 Statement of Principles on Academic Freedom and Academic Tenure and the 1966 Statement on Government of Colleges and Universities, the brief states: “There is no merit to the suggestion that collective bargaining—regardless of whether it takes place in a unit combining faculty and staff, or in a unit comprised of faculty alone— necessarily conflicts with traditional institutions of shared governance” or academic freedom. In fact, faculty and staff share a basic common interest in preserving and advancing academic freedom and shared governance. Third, the AAUP’s brief explains that the union’s decision not to include tenure-line faculty in the unit does not mean that those faculty members are not protected by the NLRA.

UPDATE: In January 2023, the United States Court of Appeals for the District of Columbia Circuit issued a decision in AFL-CIO v. NLRB, 57 F.4th 1023 (D.C. Cir. 2023), vacating a rule issued by the Trump NLRB which required the automatic impoundment of ballots in a representation election due to the pendency or grant of a request for review. Consistent with that decision, the NLRB in March of 2023 repealed the automatic impoundment provision and granted the union’s motion to open and count the ballots in this case. When the vote was counted, the professional employees in the proposed unit voted (62 to 37) in favor of being included in the same unit with the nonprofessional employees. However, a majority of all employees in the unit voted against union representation. As a result, the NLRB did not issue a decision on the questions briefed by the AAUP.