View from Across the Bargaining Table

As adjunct numbers grow, campus lawyers must be prepared to deal with their demands when negotiating contracts, two lawyers told their peers.
June 28, 2011

SAN FRANCISCO -- At many gatherings of faculty members, particularly those of the part-time variety, adjunct instructors argue that they're on the defensive, fighting for minimal rights and their share of declining resources -- and fighting off indignities -- as the low men and women on the totem pole of higher education.

But it all depends on where you sit. At a session Monday at the annual meeting of the National Association of College and University Attorneys, two lawyers advised their colleagues about the challenges and best approaches for colleges and universities as they try to craft policies to deal with the burgeoning number of part-time instructors. Their suggested best practices mixed sympathy for the adjuncts' plight -- recommending less costly ways to give them more respect -- with suggestions for how to avert unionization and manage protests during contentious negotiations.

Even as the number of adjuncts has grown, little consistency has emerged among universities on policies for employing them. But enough universities have now worked on contracts for part-time faculty that some examples have emerged, said Nicholas DiGiovanni, a Boston lawyer who specializes in labor and employment matters affecting colleges and universities.

The lawyers on the panel urged colleges to think about their policies toward adjuncts before negotiating a new contract, explaining common demands from adjuncts and their unions and possible ways to deal with them.

“At one time, these folks might have been viewed as independent contractors,” DiGiovanni said. But now that 72 percent of adjuncts have worked at the same institution for at least six years, that has changed, he said. “They end up with many of the same issues other employees have, but theirs are somewhat unique.”

Adjuncts’ numbers have burgeoned in the past decade, and at an increasing number of campuses they have organized or unionized -- sometimes on their own and sometimes in conjunction with full-time faculty. The panel tried to give college lawyers an idea of what sorts of demands they might face when negotiating contracts with adjuncts and how best to manage them.

At two employment law sessions Monday, the possibility of unionization was present in many conversations about labor and contract issues. The National Labor Relations Board, currently dominated by Democratic appointees, is likely to use federal rules to make union organizing easier, said Richard Paul, a California lawyer who specializes in employment law, at an overview of issues in the field at the second session Monday. Universities will have to be ready to deal with that reality when it’s time to negotiate contracts, and adjuncts and graduate students are likely to be at the forefront.

Colleges and universities that would prefer to avoid dealing with unionized adjuncts should familiarize themselves with adjuncts' problems and requests, and perhaps find common ground before organizing or negotiations begin, the lawyers at the session on adjuncts said.

“In retrospect, I wish we had paid more attention and time to adjuncts before they organized,” said Miles Postema, the vice president and general counsel at Ferris State University, in Michigan, where negotiations have often been contentious. (During his portion of the presentation, Postema showed photos of professors and adjuncts picketing on campus and distributing union literature.)

DiGiovanni laid out adjuncts’ concerns, focusing on issues such as pay, benefits and working conditions, but extending to their sometimes contentious relationship with full-time faculty and the sense that they are “outliers” who feel alienated, “living in an academic wilderness.”

He stopped short of recommending that universities give in to adjuncts’ demands on salary, benefits and job security. But he urged institutions, before and during contract negotiations, to show respect to part-time faculty, including perhaps reconsidering how they structure pay and health insurance.

Pro-rated salaries, which would pay adjunct instructors the same amount of money per course as a tenure-track professor earns, are the ultimate goal for many adjuncts’ groups. Many universities counter that professors who have or are seeking tenure are paid for far more than teaching. Still, the perception of the disparity continues, “and it’s a very real one,” DiGiovanni said.

But in an era of shrinking budgets, increasing pay or benefits substantially is not an option for many institutions, he acknowledged. Instead, he suggested smaller, symbolic adjustments: tuition benefits at least for faculty, if not their family members; money to pay for professional development; or a pension plan, which allows universities to add a benefit while keeping control of the cost. Colleges should consider their policies on how they assign adjuncts to courses, notify them early of what they will be teaching, and think about paying a cancellation fee if the course is canceled for lack of enrollment, he said.

But should those gestures fail, Postema said universities should also be aware of how their policies would affect union activity if the negotiations end in a strike, and consider how they will communicate with employees during a vote to unionize.

He disputed some of adjuncts' key complaints, including lack of job security, pointing out that since many adjuncts have been teaching at the same university for years, they shouldn't say their situation is entirely uncertain. His presentation included an overview of union tactics: at Ferris State, adjuncts handed out ramen noodles to students with fliers promoting their position.

Though he stopped short of saying that officials should discourage unionization, he said that they should review their policies on access to campus grounds, distributing literature and solicitation, all of which are tactics used by unions to protest during negotiations. And, he said, colleges should work to communicate with adjuncts or faculty who are voting to unionize.

“Most universities aren’t very good at communicating with employees during organizing activity,” he said. During negotiations, Ferris State has taken a low-key approach, he said, holding back from responding to many union demands and statements. The current contract negotiations have been continuing since January or February, and he said he is not taking part in the discussions.

DiGiovanni took a more conciliatory approach, offering suggestions that could be used before or during both organization and unionization. The adjuncts’ concerns can be understandable, he said.

“In many institutions, they’re teaching 40, 50, 60 percent of the courses, and in many institutions you can’t even find their name on the directory,” he said. To redress those issues, he emphasized remedies that cost little or nothing: office space, directory listings, orientation sessions for new faculty and other ways to demonstrate respect. Places to work and meet with students are frequent issues in contract negotiations, he said.

“That’s a continuing issue at the table,” DiGiovanni said. “These are the kind of things that are simple. In many cases they don’t even cost anything, but they could go a long way toward meeting the concerns that adjuncts have.”


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