Key Legal Win in Adjunct Union Battle

January 28, 2008

Adjunct professors at Pace University -- who have been engaged in a long fight to unionize and negotiate a contract -- won a key battle on Friday when a federal appeals court rejected the New York university's attempt to limit the size of the bargaining unit.

The U.S. Court of Appeals for the District of Columbia upheld the actions of the National Labor Relations Board, which had ruled that the adjunct union should have as its members all instructors who met certain minimal teaching requirements (teaching three credit hours). The university had asked the court to restrict membership to those who met those requirements in at least one semester in any two of the previous three academic years -- a request that would have eliminated adjuncts from union membership in their first two years working at Pace.

The university argued that since the NLRB election in which the adjuncts voted to unionize was held under those limitations, the bargaining unit should be situated the same way, as new employees would not necessarily have the same interests as those working for a few semesters. The appeals court's ruling was almost entirely procedural -- and did not focus on the question of unit size. Instead, the court ruled that because Pace had failed to object to earlier rulings by the NLRB about the size of the bargaining unit, it could not do so now, when the university is engaged in protracted negotiations over a contract.

The university issued a statement that suggested it would not appeal the decision. "The circuit court determined the case on procedural grounds without reaching the merits. Now that the court has issued its decision, the university will continue bargaining in good faith with the newly expanded unit," the statement said.

The decision arrives at a time that some union members have been questioning that good faith -- and organizing protests to draw attention to the negotiations.

John Pawlowski, president of the Union of Adjunct Faculty at Pace, which is affiliated with the American Federation of Teachers, said he was "elated" by the court's decision and hoped it would speed negotiations. While he said that the university and the union have reached agreement on many minor issues, he said that little progress had been made on job security or salaries. The union wants to have protections so that adjuncts who have worked for specific numbers of semesters should be assured continued employment unless there are specific, justified reasons for not keeping them. Pace has declined to make such pledges -- and most universities with adjuncts say that they like having the flexibility to decide whom to hire from semester to semester.

Pawlowski said that argument was completely unfair to those doing the teaching, who risk losing jobs "on a whim." He said, "if they are hiring you for 10 semesters, you must be doing something right." Pawlowski said he has been teaching biology at the university, without job security, for 35 years.

As to the university's argument that new adjuncts wouldn't have the same interests as those employed a few semesters, Pawlowski said that the issues being negotiated -- salary, job security, benefits -- affect adjuncts from their first semester on the job. "This was just rhetoric to try to exclude some adjuncts," he said.

Eric Marshall, a labor relations specialist for New York State United Teachers, the AFT's division in New York State, said that it was hard to measure the impact of the decision globally, given that it was made on procedural grounds. But he said that if Pace's argument in favor of excluding new adjuncts had been accepted, adjunct unions would have been seriously hurt.

"That could theoretically allow an employer to determine the size of a bargaining unit and even to make the size zero," said Marshall, if a university simply didn't employ any adjuncts to the length of time necessary for them to become part of the bargaining unit. "It's absurd" to say that new adjuncts don't have the same interests as those who have been teaching, he added. All that Pace was trying to do, Marshall said, was to weaken the union because "the smaller the unit, the less power it would have."

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