Updated Feb. 24, 2020, at 1:12 p.m.
The National Labor Relations Board ruled in favor of Elon University's non-tenure track faculty members’ right to form a union on Feb.19. This decision ends the year-long legal back-and-forth between the university and the faculty union, Elon Faculty Forward.
In 2019, 112 of the 238 eligible non-tenure track faculty members voted to unionize, and the union was certified later that year by the regional NLRB.
Under the 1935 National Labor Relations Act, once the regional director certified the union, collective bargaining negotiations would take place, but this process was delayed by the university’s objection, officially titled “Request for Review.” The request was also filed in 2019 and claimed that non-tenure track faculty roles are managerial, which would not allow the non-tenure track faculty members to be represented by a union.
On Feb. 19, the NLRB decision affirmed the acting regional director’s decision in 2019 that the petitioned for faculty members — which include visiting faculty, limited-term faculty and adjunct faculty — are not managerial employees.
Two inquiries needed to determine managerial status of employees. The first inquiry, whether a faculty body “exercises effective control” over decision making, was not the “determining factor” in the case according to the final decision document. The second inquiry was whether the non-tenure track faculty, based on the faculty’s “structure and operations,” is included in the managerial faculty.
The final decision stated Elon University did not meet “its burden” to prove that non-tenure track faculty members are structurally included in the university’s faculty bodies, and the NLRB affirmed the union’s right to organize.
Eric Fink, associate professor of law at Elon Law, said following the NLRB decision, both parties “now have the duty” to begin bargaining. However, if the university is still not satisfied with the decision, it can refuse to bargain, according to Fink.
The decision to refuse to bargain would be an unfair labor practice, Fink said, which would allow the union to file unfair labor practice charges, similar to charges filed against the university previously. From there, the university can assert that the decision made by the NLRB was incorrect, which can be appealed to the labor board and a federal appeals court. The University of Southern California followed a similar path in 2017 when the university refused to bargain with a union.
The next steps in the process are up to the university’s decision, Fink said.
“Do they, at this point, decide they'll accept the board's decision and bargain, or do they still maintain that some or all of these teachers are in fact managers and they want to get it to an appellate court, so then they would take that refuse to bargain, unfair labor practice route,” Fink said.
Mark Iwinski, adjunct assistant professor of art and a member of the union, said he was surprised to see a decision so early, but is excited to see what will happen next.
“I think it’ll be to the benefit of the university and the students,” Iwinksi said. “I’m excited about it, very excited. It kind of came out the blue, and the fact that it was so decisive was also something that I wasn’t expecting, so this is more than what one could have hoped for.”
In an email to all faculty and staff, Provost Aswani Volety said the university is carefully reviewing the decision made by the NLRB.
“We are carefully reviewing this very complex decision and will consider all available options in support of our collaborative model of shared governance before making a decision about next steps,” Volety wrote. “As always, we remain committed to working with all faculty with respect, transparency and collegiality.”
A university spokesperson declined to comment further on the ruling.
Iwinski said the union hopes to begin bargaining soon. Their requests include changes in salary, the ability to be part of retirement and health care programs, research funding for adjunct faculty and longer, more stable contracts.
“Elon has a philosophy that’s inclusive and progressive on so many levels,” Iwinski said. “Negotiating and bargaining with the adjuncts is going to, in a sense, make that very visible to the community. It’s going to say ‘Hey we’re, we’re matching our actions to our philosophy.’”
Unpacking the decision
To certify the union originally, acting regional director Scott Thompson used a precedent set in a former case involving Pacific Lutheran University in 2014. Based on this case, the board evaluated non-tenure faculty members’ participation in five areas — academic programs, enrollment management policies, finances, academic policies and personnel policies and decisions — to determine whether or not non-tenure faculty are managerial positions, as the university “Request for Review” stated.
Thompson determined that because non-tenure track faculty members did not make up a majority of any of the shared governance committees, “there was no danger” that there would be any non-tenure track faculty members who could also act similarly to university administration.
The NLRB decided to adopt a proposed framework that combined the Pacific Lutheran Standard and standards from the University of Southern California case to conclude in the final decision that because non-tenure faculty members are unable to serve on nine out of 14 academic committees, they are not structurally included in the university and cannot be considered managers.
According to the final decision, no non-tenure track faculty members sit on the long-range planning committee, strategic planning committee or the budget committee. Only five of the university’s 14 standing committees allow non-tenure adjuncts — considered “faculty” rather than “teaching faculty” in regards to membership — to serve. Academic Technology and Computing, Admissions, Athletics, Religious and Spiritual Life and Student Life all allow faculty seats to be filled by any faculty member, including non-tenure track faculty members.
The decision also said that the university did not prove any non-tenure track faculty have served or currently serve on any working group or advisory committee. Faculty meetings allow all faculty to attend. However, only faculty teaching 18 credit hours or more may vote on any decision at the meeting, such as a previous decision on the creation of the engineering major or the creation of new permanent faculty positions.
Non-tenure track faculty also only have the opportunity to serve on the academic council as the representative dedicated to limited term or adjunct faculty — which is a non-voting position elected by “part-time faculty” — or as one of the three at-large members elected every three years. Only two representatives have ever served in the limited term position: Leigh Ann Whittle and Billy Summers, who currently serves in this position.