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Evaluations of Unionized College and University Faculty: A Review of the Laws

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Abstract

This article identifies key issues and provides administrative and faculty guidance on legal matters pertaining to unionized professors’ evaluations. To do so, the authors trail the fact patterns of a series of cases on evaluations of unionized faculty that have emerged over the last 30 years—with an emphasis on the cases from the last decade.

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Notes

  1. Complying with federal and state laws, the collective bargaining agreement serves as the controlling document.

  2. Some public institutions and higher education systems make clear distinctions between college and university faculty because those categories rest heavily on specific applications of collective bargaining agreement language and/or statutory provisions. In those instances, whether one is considered college faculty or university faculty may impact negotiable terms. Although we acknowledge the distinctions, for purposes of this paper, we refer to professors and faculty as inclusive of both college and university faculty since this paper draws on general administrative principles and legal rules to all higher education faculty. To simply our references to college and university faculty, for the remainder of this paper, we will simply state “college faculty” to include both college and university faculty.

  3. The courts’ references to “educational” sphere and objectives parallel what members of the higher education community would simply refer to as the “academic” sphere and objectives.

  4. The case cites to St. Paul Fire Fighters, Local 21 v. City of St. Paul (1983).

  5. In this case, three proposed changes to the faculty evaluation process were considered nonnegotiable. First, the implementation of a standardized evaluation form for tenure and promotion reviews was declared nonnegotiable. The form reflected a substantial change to the existing process. The standardized form would impact the outcome of the reviews because it would require consistent data across the candidates as well as for each candidate under review throughout the various review stages. Second, the designation of a department representative, who served as evaluator on the evaluation committee, was classified as nonnegotiable. The reconfiguration of the evaluation committee potentially impacts the evaluation outcome; thus, the change reflected a blended procedural/substantive matter that would likely impact the review. Third, the proposal included a change in the voting standards. Under the proposed procedures, a positive recommendation to the dean for tenure or promotion would be moved from supermajority (i.e. 2/3 vote) to simple majority (i.e. more than 1/2). Certainly, the voting qualification for the committee recommendation would alter the outcome of whom to recommend. Since these three issues resided on the procedural and substantive categories, an analysis of their impacts to matters for managerial decision-making was required. In doing so, the conclusion was that these three proposals amounted to changes to the review process because they could significantly impact the substantive nature of the evaluation determination.

  6. Although other forms of authority and dominant group power exist between these two extreme cases, this figure captures the general concept in which the two ends of the spectrum yield different levels of evaluation analyses.

  7. This case was a follow-up issue from the original suit against Keene State College, but it dealt with a different legal question.

  8. The interpretation of the “arbitrary” standard must first rely on the CBA. If silent, the interpretation is a question of law (i.e. the court, not fact finder), which the court applies common meanings; however, although this court does not discuss contract interpretation standards, industry custom and usage may also be applied to determine meaning.

  9. Similar to cases of civil rights discrimination under Title VII, the burden of persuasion rests with the plaintiffs-faculty/union. In this case, factual elements were unclear as to the arbitrary standard and the proof provided, so the case was sent back to the trial court for further clarification (Board of Trustees v. Keene State College Educ. Assn 1985).

  10. In Stiner v. University of Delaware (2004), the court held that a constitutional claim for violation of procedural due process could not proceed when a faculty member has not exhausted administrative channels for grievances within the institution.

  11. In this case, the grievant was appointed to teach in Salem State’s division of graduate and continuing education, but prior to the start of the term, two allegations of sexual harassment were filed. In response to those reports, the university did not allow the professor to teach in the scheduled term and suspended him indefinitely from teaching in that division. The dispute went to arbitration and the arbitrator favored the grievant-faculty member in determining that the university violated the collective bargaining agreement and awarded damages. The college moved for vacating the arbitrator’s decision, so the trial court did. The appellate court, however, disagreed and found the arbitrator’s decisions to be within his authority.

  12. As further support, the court even noted the arbitrator’s assertion that the department chair believed that “grievant’s publication record of a monograph, a book chapter, and a journal article was not sufficient for tenure and promotion in a Ph.D. granting department” (Toledo 2003, p. 591). The quality determination of the faculty evaluation rested with professionals in higher education, and academic deference was appropriate.

  13. The case revolved around a situation in which a faculty member’s contract was not renewed, and the nonrenewed faculty member sued his attorneys for malpractice. Nevertheless, the issues discussed addressed the role of annual evaluations on renewal decisions and the interpretation of the CBA.

  14. The exception is with CBAs that contain a zipper clause, which limits bargaining authority and generally precludes use of external evidence (see, e.g., Palm Beach Jr. College Bd. of Trustees v. United Faculty of Palm Beach 1985).

  15. At one time, de facto tenure did exist in New Jersey via state statute (see State and County College Tenure Act 2006) (applies to faculty who commenced employment prior to the 1973–1974 academic year).

References

Federal Statute

  • Health Care Quality Improvement Act, 42 U.S.C. §11133 (2006)

State Statute

  • State and County College Tenure Act, N.J.S.A. §§18A:60–1, et seq. (2006)

Federal Cases

  • U.S. Supreme Court: University of Pa. v. E.E.O.C., 493 U.S. 192 (1990).

  • 6th Circuit: David Wolcott Kendall Memorial Sch. v. N.L.R.B., 866 F.2d 157 (6th Cir. 1989).

  • D.C. Circuit: LeMoyne-Owen College v. N.L.R.B., 357 F.3d 55 (D.C. Cir. 2004).

  • D.C. Circuit: Point Park Univ. v. N.L.R.B., 457 F.3d 42 (D.C. Cir. 2006).

  • D.C. Circuit: University of Great Falls v. N.L.R.B., 278 F.3d 1335 (D.C. Cir. 2002).

State Cases

  • California: California Faculty Assn. v. Superior Ct. of Santa Clara County, 63 Cal.App.4th 935 (Ct.App. 6th Dist. 1998)

  • Delaware: Stiner v. University of Delaware, 2004 WL 1949545 (No. Civ. 02-312-SLR) (Aug. 27, 2004).

  • Florida: Florida Pub. Employees Council 79 v. Public Employees Relation Comm., 871 So.2d 270 (Fla.App. 1 Dist., 2004).

  • Florida: Palm Beach Jr. College Bd. of Trustees v. United Faculty of Palm Beach, 475 So.2d 1221 (Fla. 1985).

  • Hawaii: University of Hawaii Professional Assembly v. University of HI, 659 P.2d 720 (Haw. 1983).

  • Illinois: Board of Trustees v. Cook County College Teachers Union, Local 1600, 343 N.E.2d 473 (Ill. 1976).

  • Kansas: Kansas Bd. of Regents v. Pittsburg State Univ. Chapter, 667 P.2d 306 (Kan. 1983).

  • Maine: Board of Trustees v. Associated Colt Staff, 659 A2d 842 (Me. 1995).

  • Massachusetts: Board of Higher Educ. v. Massachusetts Teachers Assn., 814 N.E.2d 1113 (Mass.App.Ct. 2004).

  • Michigan: Central Mich. Univ. Faculty Assn v. Central Mich. Univ., 273 N.W.2d 21 (Mich. 1978).

  • Minnesota: St. Paul Fire Fighters, Local 21 v. City of St. Paul, 336 N.W.2d 301 (Minn. 1983). University Educ. Assn. v. Regents, 353 N.W.2d 534 (Minn. 1984).

  • New Hampshire: Board of Trustees v. Keene State College Educ. Assn., 493 A2d. 1121 (N.H. 1985).

  • New Hampshire: Board of Trustees v. Keene State College Educ. Assn., 531 A2d. 315 (N.H. 1985).

  • New Jersey: Association of N. J. State College Faculties, Inc. v. Dungan, 316 A.2d 425 (N.J. 1974).

  • New Jersey: Healy v. Fairleigh Dickinson Univ., 671 A.2d 182 (Superior Ct App. Div, NJ 1996).

  • New Jersey: Rutgers v. Rutgers Council of AAUP Chapts., 606 A.2d 822 (N.J.Super.A.D., 1992).

  • Ohio: American Assn. of Univ. Professors, Univ. of Toledo Chapt. v. University of Toledo, 797 N.E.2d 583 (Ct. Common Pleas 2003).

  • South Dakota: Yarcheski v. Reiner, 669 N.W.2d 487 (S.D. 2003).

  • Vermont: Hackel v. Vermont State Colleges, 438 A.2d 1119 (Vt. 1981) Vermont: In Re Grievance of Verderber, 795 A.2d 1157 (Vt. 2002).

Literature Cited

  • Arnold, G.B. (2000). The Politics of Faculty Unionization: The Experiences of Three New England Universities. Westport, CT: Bergin & Garvey.

  • Ashraf, J. (1997). The Effect of Unions on Professors’ Salaries: The Evidence Over Twenty Years. Journal of Labor Research 18(3), 439–450

    Article  Google Scholar 

  • Bannister, S.J. (2005). Low wages, long hours, bad working conditions: Science and Engineering Graduate Students should be Considered Employees Under the National Labor Relations Act. George Washington Law Review 74, 123–145

    Google Scholar 

  • Bixler, A.G. (1985). Industrial Democracy and the Managerial Employee Exception to the National Labor Relations Act. University of Pennsylvania Law Review 133, 441–468

    Article  Google Scholar 

  • Bodah, M.M. (2000). Significant Labor and Employment Law Issues in Higher Education During the Past Decade and what to Look for Now: The Perspective of an Academician. Journal of Law & Education 29, 317–331

    Google Scholar 

  • Connell, M.A., & Savage, F.G. (2001). The Role of Collegiality in Higher Education Tenure, Promotion, and Termination Decisions. Journal of College & University Law 27, 833–858

    Google Scholar 

  • Copeland, J.D., & Murry, J.W. Jr. (1996). Getting Tossed from the Ivory Tower: The Legal Implications of Evaluating Faculty Performance. Missouri Law Review 61, 233–327

    Google Scholar 

  • Dornbusch, S.M., & Scott, W.R. (1975). Evaluation and the Exercise of Authority. San Francisco, CA; Jossey-Bass, Inc.

    Google Scholar 

  • Education Commission of the States (2002). State-of-the-state addresses, 2002. Denver, CO: Author. Retrieved at http://www.ecs.org/html/statesTerritories/State_of_States2002.htm.

  • Hewitt, G.J. (2000). Graduate Student Employee Collective Bargaining and the Educational Relationship Between Faculty and Graduate Students. Journal of Collective Negotiations 29(2), 153–166

    Article  Google Scholar 

  • Hind, R.R. (1971). Analysis of a Faculty: Professionalism, Evaluation, and the Authority Structure. In J.V. Baldridge (ed.), Academic Governance: Research on Institutional Politics and Decision Making (pp. 264–292). Berkeley, CA: McCutchan Publishing Corporation.

    Google Scholar 

  • Holley, W.M., & Field, H.S. (1977). The Law and Performance Evaluation in Education: A Review of Court Cases and Implications for Use. Journal of Law & Education 6, 427–448

    Google Scholar 

  • Hustoles, T.P., & DiGiovanni, N. Jr. (2005). Negotiating a Faculty Collective Bargaining Agreement. Washington D.C.; National Association of College and University Attorneys.

    Google Scholar 

  • Johnson, A.B. (2000). Current Trends in Faculty Personnel Policies: Appointment, Evaluation, and Termination. Saint Louis University Law Journal 44, 81–112

    Google Scholar 

  • Julius, D.J. (2003). Graduate student unionization: Catalysts and consequences. Review of Higher Education 26(2), 187–216

    Article  Google Scholar 

  • Lee, B. (1987). Collective Bargaining and Employee Participation: An Anomalous Interpretation of the N.L.R.A.. Labor Law Journal 38(5), 274–286

    Google Scholar 

  • Lee, J.J. (2004). Tangles in the Tapestry: Cultural Barriers to Graduate Student Unionization. Journal of Higher Education 75(3), 340–361

    Article  Google Scholar 

  • Monks, J. (2000). Unionization and Faculty Salaries: New Evidence from the 1990s. Journal of Labor Research 21(2), 305–314

    Article  Google Scholar 

  • National Center for the Study of Collective Bargaining in Higher Education and the Professions (1998). 1998 Directory of Faculty Contracts and Bargaining Agents in Institutions of Higher Education. New York, NY; Author.

    Google Scholar 

  • National Center for the Study of Collective Bargaining in Higher Education and the Professions (2006). 2006 Directory of Faculty Contracts and Bargaining Agents in Institutions of Higher Education. New York, NY: Author.

    Google Scholar 

  • Maitland, C., & Rhoades, G. (2001). Unions and faculty governance. NEA 2001 Almanac of Higher Education, 27–33. Retrieved at http://www2.nea.org/he/healma2k1/images/a01p27.pdf.

  • Nagel, P. (1994). Yeshiva’s Impact on Collective Bargaining in Public Sector Higher Education. Journal of College & University Law 20, 383–403

    Google Scholar 

  • Pollack, S.D., & Johns, D.V. (2004). Graduate Students, Unions, and Brown University. Labor Lawyer 20, 243–256

    Google Scholar 

  • Rabban, D.M. (1990). Can American Labor Law Accommodate Collective Bargaining by Professional Employees? Yale Law Journal 99, 689–757

    Article  Google Scholar 

  • Rhoades, G. (1988). Managed Professionals: Unionized Faculty and Restructuring Academic Labor. Albany, NY: State University of New York Press.

    Google Scholar 

  • Rhoades, G. (2003). The Public Discourse of U.S. Graduate Employee Unions: Social Movements Identities, Ideologies, and Strategies. Review of Higher Education 26(2), 163–186

    Article  Google Scholar 

  • Rhoads, R.A. (2005). Graduate Employee Unionization as Symbol of and Challenge to the Corporatization of U.S. Research Universities. Journal of Higher Education 76(3), 243–275

    Article  Google Scholar 

  • Saltzman, G.M. (1988). Legal Regulation of Collective Bargaining in Colleges and Universities. The NEA 1998 Almanac of Higher Education 1998, 45–63

    Google Scholar 

  • Wollett, D.H. (1971). The Status and Trends of Collective Negotiations for Faculty in Higher Education. Wisconsin Law Review 1971(2), 2–32

    Google Scholar 

  • Zirkel, P.A. (1988). Academic Freedom of Individual Faculty Members. West’s Education Law Reporter 47, 809–825

    Google Scholar 

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Authors and Affiliations

  1. University of North Dakota, 231 Centennial Drive, MS: 7189, Grand Forks, ND, 58202, USA

    Jeffrey C. Sun

  2. College of Education, University of South Florida, Tampa, USA

    Steve Permuth

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  1. Jeffrey C. Sun
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Correspondence to Jeffrey C. Sun.

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Sun, J.C., Permuth, S. Evaluations of Unionized College and University Faculty: A Review of the Laws. J Pers Eval Educ 19, 115–134 (2007). https://doi.org/10.1007/s11092-007-9038-3

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