The Association Factionalized

At this juncture, collective bargaining emerged as a major issue with the AAUP. Although it had long proudly maintained that its services were available to all professors whether or not they were members, the advent of agency shops (requirements that employers withhold membership dues from all employees represented by the bargaining unit) raised a serious question whether sanctions that would necessarily accompany these new arrangements were not incompatible with academic freedom and tenure rights. A declaration by Committee A that the AAUP should incorporate "in any agency shop or compulsory dues check-off arrangements provisions designed to accommodate affirmatively asserted individual conscientious objection to such an arrangement with any representative" did not resolve the issue. (Ibid., pp. 213-24.)

A Chairman of Committee Z voiced considerable concern about the extent to which a shift to an adversarial relationship with administrators might interfere with the annual salary survey, one of the Association's unique contributions to the world of higher education. And Committee T had now to contend with claims that it was "nonsense" for AAUP members to think that they could simultaneously "function as part of the governing structure of academic institutions and at the same time act as the collective bargaining agent for the faculty." Universities would be "foolish to permit the unions, through the faculty, to sit on both sides of the bargaining table." Certainly the advent of collective bargaining on a campus would provide a convenient pretext for its administration or governing board to deny any further validity for the principle of "shared authority," long a basic AAUP policy. (Ibid.) Despite the publication of such reservations during the hectic summer of 1971, the Council which met that fall voted on October 30 to commit the AAUP to "pursue collective bargaining, as a major additional way of realizing the Association's goals in higher education, and will allocate such resources and staff as are necessary for a vigorous selective development of this activity beyond present levels." Collective bargaining, however, was "not to be pursued to the detriment of basic programs," especially the labors of Committees A, T, and Z, for which "the need among the profession as a whole" appeared greater than ever. Indeed, collective bargaining as an Association activity would be "salutary," the General Secretary wrote, stating the sense of the Council, as it enhanced traditional AAUP programs, and would "be injurious to the degree that it impedes them."

Out of a budget of approximately $1,800,000 for 1972, funds totaling no more that $245,000, including "what can be charged to general overhead," would be set aside for CB activity. (This amounted to an increase from 12% of the 1971 Association budget to 21% for 1972. And the approval of the General Secretary, following deliberate staff assessment of the situation, would be required prior to each instance of AAUP-sponsored collective bargaining.) On May 5, 1972, the Annual Meeting, by a 373-54 vote,, endorsed the Council's CB position. (AAUP Bulletin, Winter, 1971, pp. 511-12, March, 1972, pp. 46-54, December, 1972, p. 135, and Summer 1973. p. 146.)

By 1972 no AAUP chapter expressing interest in gaining certification from the General Secretary as a collective bargaining agent of the Association, "and appearing to have the resources," had failed to obtain the necessary permission. The "extraordinary circumstances" required in 1966 to accomplish this had, it seemed, existed in all instances. Committee A had not decided that an agency shop arrangement, in itself, would not violate academic freedom, provided some accommodation was included for conscientious objectors. And Committee N was considering proposing an alteration in the policy of eschewing strikes except in cases where AAUP principles of academic freedom and governance had been "flagrantly" violated, without any prospect of correction by "rational methods." (AAUP Bulletin, Summer 1971, pp. 203-204, and Spring 1972, pp. 46-47.)

Sanford Kadish, the retiring president of the Association, pondered these events in his farewell address to the 1972 Annual Meeting. Pointing out that faculty members were "the essence of the university enterprise, as well as its employees," he warned that "a radical imbalance in the direction of the employee role tends to create problems for the theory of the profession" long held by the AAUP. Strikes, for example, deliberately harmed "the educational mission, although temporarily, in order to promote the personal employee interest, in contradiction to the service ideal of subordinating personal interest to the advancement of the purposes of the university. Its use, therefore," Kadish warned, "tends to impugn all our claimed entitlements.... Moreover, the process [of collective bargaining] ... tends to remit issues which faculty should themselves determine to outside agencies, such as state and federal boards, and union bureaucracies." And the entire process led to political, rather than academic, decision-making. Only if collective bargaining excluded "external, non-academic control," and buttressed, rather than displaced, "traditional faculty self-government," could it be "absorbed, though with some strain, into an acceptable theory of the profession." And this, Kadish suggested, was an unlikely outcome. (Ibid., Summer 1972, pp. 120-25.)

The incoming president of the Association was much more favorably inclined toward the CB experiment. He declared in rebuttal to Kadish that he did not believe that the AAUP's new position on collective bargaining conflicted with its longstanding principles. Indeed, the "central purpose" of participation by the Association in collective bargaining was "to gain recognition of AAUP principles of academic freedom and tenure, faculty participation in university governance, and shared authority in the allocation of resources.... Faculty power, yes; but for the professional principles we wish to protect and promote." (Ibid., p. 117.)

In October 1972, the Council approved publication of a Committee N "Statement on Collective Bargaining" which superseded the Statement of Policy on Representation of Economic and Professional Interests, approved by the Council and amended in 1969. The new document was endorsed by the 1973 Annual Meeting. Affirming a "pressing need" in the world of higher education for "a specialized model of collective bargaining" reflecting AAUP standards, while at the same time strengthening "the influence of the faculty in the distribution of an institution's economic resources," the 1973 statement set forth four goals for chapters attaining faculty representative status: (1) to "promote the economic and professional interests of the faculty as a whole; (2) to establish democratic structures for faculty governance; (3) to obtain explicit guarantees of academic freedom and tenure;" and (4) to create procedures for consideration of faculty problems and grievances open to all. Affirmatively asserted conscientious objections to compulsory dues were to be accommodated, and strikes were to be called at supported "only in extraordinary situations which ... flagrantly violate academic freedom or the principles of academic government...." (Ibid., Winter 1972, p. 423, and Summer, 1973, pp. 148, 167.)


Strikes

A rash of strikes and faculty boycotts of classes during the middle 1960s, many in support of student demonstrations of various kinds, impelled AAUP leaders to formulate a position on the subject. As an interim measure, following the announcement of "what was probably the first major faculty strike against a university administration in the United States," which occurred at St. Johns University in New York, the Executive Committee announced, in a statement issued by the General Secretary, that the Association did not "endorse a strike against an academic institution;" did not, however, consider a refusal of a professor to cross a picket line maintained by colleagues to be "a violation of professional ethics," but upheld the right of professors also in such circumstances to "continue to meet their classes;" and asserted "that it is not a violation of professional responsibility for a faculty member to refuse to teach the classes of a colleague who has been dismissed in violation of accepted principles of academic freedom and tenure." (AAUP Policy Documents and Reports, 1977 ed., p. 58.)

In May, the Council agreed with the Executive Committee, maintaining that "no strike or work stoppage should be called or supported" by AAUP chapters engaged in collective bargaining. But the haste with which these statements had been adopted influenced the Council to appoint a committee further to examine the subject of faculty strikes. The ensuing committee report was published in 1968. It retreated from a no strike position; holding, instead, that although such an action was "inappropriate as a mechanism for the resolution of most conflicts within higher education," circumstances might arise in which flagrant violations of academic freedom or the principles of academic government were "so resistant to rational methods of discussion, persuasion, and conciliation, that faculty members may feel impelled to express their condemnation by withholding their services...." They should do so, however, only if a controlling agency appeared "inflexibly bent on a course which undermines an essential element of the educational process." (Ibid., pp. 57-59.)

Participation in strikes by professors did not "by itself constitute grounds for dismissal or for other sanctions" against them. The Association would defend all "members of the profession who are inadequate or unacceptable," or who were denied due process. Yet a resort to strikes as ordinary mechanisms "for the resolution of conflicts with administrations or governing boards imperils the faculty's just claim to partnership in the government of the institution, by implying acceptance of the status of mere employees." Moreover, a strike was "a witness of failure." It risked "creating deeper rifts" between those whose relationship "should be one of mutual trust." And insofar as it was designed to advance the personal interests of professors, it might appear to contradict "the dedication of the faculty to the educational interests of the students." (Ibid.)

"We emphatically reject," the Council-approved 1968 statement declared, "the industrial pattern which holds the strike in routine reserve for use whenever economic negotiations reach an impasse." Nor should professors strike "in support of claims of against the institution of another trade union," or to "dramatize" a political position. Only "positive educational objectives," combined with "cumulative grievances or some precipitate act of tyranny," justified strikes. (Ibid.)


Arbitration

If strikes were not recommended in states where forbidden by law, what alternatives did faculty members in collective bargaining have? One obvious choice was compulsory arbitration. A joint subcommittee of the AAUP's Committees A and N published some guidelines. In instances involving collective bargaining, it asserted, arbitration might be "the preferred way" to resolve academic disputes and grievances, as well as "to avoid deadlocks or administrative domination." Noting that "resort to any body outside the institution ... for an official resolution of disputes in matters of faculty status, rights, and responsibilities poses a serious challenge to accepted notions of institutional autonomy," the subcommittee suggested, nevertheless, that "outside impartial review may well be useful" when administrators and trustees proved "unresponsive to Association standards and faculty actions." For arbitration was frequently less expensive than court action and obtained quicker results. Moreover, the rules and precedents of the judicial system frequently did not suit the peculiarities of the academic world. (AAUP Bulletin, Winter, 1972, pp. 399-412; Redbook, pp. 149-152.)

To be effective, however, the arbitration required (1) "sound internal procedures ... which enjoy the confidence of both faculty and administration," (2) "careful definitions of both arbitral subjects and standards to be applied to the arbiter," (3) "the selection of arbitrators knowledgeable in the ways of the academic world," including the "critical value of academic freedom," and (4) "appropriate weight" to be given at the arbitration hearing to AAUP standards. Even if all these safeguards were satisfied, the Association would "continue to challenge significant departures from elemental academic rights whether or not ... in a collective agreement or an arbitrator's award." (AAUP Bulletin, Summer, 1973, pp. 168-70; Redbook, pp. 149-152.)

The AAUP policy statement prescribed stages of arbitration, arbitral standards, and guidelines for the selection of arbitrators. Applied to cases of dismissal, binding arbitration ordinarily substitutes a jointly selected expert neutral party for the courts; hence administrators and trustees should recognize that "it is not a question of whether institutional officers will be subject to external review, but of what forum is best equipped to perform the task." Therefore, another joint subcommittee of Committees A and N recommended in 1983 that in cases where a governing board ruled for dismissal against a faculty committee's recommendation not to dismiss, the affected professor who had pursued the "traditional procedures .. be given the right to proceed to arbitration," even when a collective bargaining representative opposes doing so. (In the latter case, the appellant would pay the costs of arbitration normally assumed by the CB agent.) Procedures for this kind of arbitration should be carefully specified in advance and the decision should be based on the written record. (Redbook, pp. 149-152; Academe, Sept.-Oct. 1983, 15a-17a.)


In Recent Years

By the 1973 Annual Meeting, AAUP chapters served as bargaining agents in eighteen colleges and universities and three junior colleges, "with an aggregate faculty in these bargaining units of over 8,000." A full-time Director of Collective Bargaining had been added to the Washington Office. Committee N drafted a handbook of operating guidelines for CB chapters. And a subcommittee considered issues that surfaced as AAUP members gained experience in bargaining. Meanwhile, the chairman of Committee T delineated a list of new issues regarding "governance principles relating to and resulting from collective bargaining." Such issues would occupy most of that committee's time and staff support in the immediate future. A subcommittee of Committee N addressed issues arising out of the enactment of state laws concerning collective bargaining that appeared applicable to public institutions of higher education. Specific contract language, model legislation, and adjustments in the procedures of the National Labor Relations Board and state administrative agencies were recommended by the subcommittee variously to deal with such questions as the applicability of the duty to bargain, the scope of representation, the selection of representatives, the scope of the bargaining processes, violations of agreements, strikes, and the administration of the law. Their recommendations, declared law professors Robert Gorman and Matthew Finkin, were designed to show how "the particular needs of the profession and of institutions of higher education" could best be met through the collective bargaining process. (AAUP Bulletin, Summer, 1973, pp. 165-66 and 184, and Autumn, 1974, pp. 331-40.)

The role of collective bargaining in the affairs of the Association bulked so large by 1982 that the presidential address dealt entirely with it. Admitting that "to some degree" the institution of formal bargaining had brought about "a shift on many campuses from collegial to adversary relationships between faculty and administration," and that "the fears that our membership outside of collective bargaining would decline" had "come to pass," Robert Gorman asserted, nevertheless, that "contrary to the fears of a decade ago, the participation of the AAUP in collective bargaining has not diminished our influence in higher education but rather has enhanced it." It had also made an "enormous contribution" to the Association itself by providing a mechanism by which a growing number of faculties shaped institutional regulations in personnel and educational matters, by "promoting the economic interests of the professorate," by rendering "essential AAUP principles ... fully enforceable as part of the contract rules prevailing in court cases and arbitration proceedings," and by bringing into the Association "tens of thousands of new AAUP members," including new leaders for the Council and the committees, as well as of significant payments of dues to help provide "financial support of the full range of Association programs." (Academe, September-October 1982, 1A-4A.)

Although collective bargaining chapters embraced roughly sixty percent of the total AAUP membership, Professor Gorman noted also, approximately seventy-eighty percent of the full time faculty members on American campuses were not engaged in CB activity. This "large constituency" still needed the protection and the unencumbered voice of the AAUP and remained its largest potential source of members. The AAUP stood for "the advocacy of principles rather than the advocacy of self-interest." And its methods were "reason, reflection, conciliation, persuasion." The AAUP approach "must be preserved," or the Association itself would disintegrate. Professor Gorman regarded it "as an absolutely indispensable condition of exploring avenues of joint activity with the other two national faculty associations that AAUP principle and programs remain strong and inviable.... Indeed, a cardinal objective of any join discussions should be the common adoption of Association principles and the commitment to the growth of Association programs ... which make us distinctive...." (Ibid.)


Bifurcation

Within the next several years there occurred a serious movement within the Association toward national affiliation (reflecting arrangements inherent in certain state or local "joint ventures") wit other higher education organizations.

There followed an extended debate within the Executive Committee concerning bifurcation of the Association into a Committee A segment and a CBC segment. Virtually forgotten throughout these discussions was the "third arm" of the Association, the Assembly of State Conferences. Certainly, if Committee A represented an investigatory, analytical, legalistic and philosophic approach to the protection of academic freedom, tenure, governance, prerogatives, and professional standards, and if the CBC along with Committee N represented primarily an economic approach, then it was the ASC and the state conferences, functioning in many jurisdictions where no higher education collective bargaining existed, which best exemplified the political approach. In the end the bifurcation plan was abandoned.

Unions, a writer in Academe maintained, had emerged in American higher education because they were the only way "to substitute ... government by law for government by men, ... to establish a "limiting unilateral managerial power," they had extended "the administrators alleged financial exigency as a justification for draconian measures, collective bargaining agreements could "make proposals, taking instead the form of binding statutes." (Academe, May-June 1984, pp. 29-34.)

Unions also "generally stimulated more collective faculty assertion of rights in ... governance." By requiring formalized arrangements, they brought hidden motives and intrigues into the open and facilitated democratic processes on campus. "In a collective bargaining framework, administrators," it was declared, must "act more like political leaders than hierarchical authorities, ... essentially the role which they have been assigned in the conception of the ideal university." In summary, they promoted, "as much as anything we are likely to devise, ... authentic self-government." (Ibid.)

These assertions stand unchallenged in Association literature today and the use of collective bargaining as an additional instrument to defend the professorate continues.


Yeshiva

A damaging setback for collective bargaining in higher education occurred in the Yeshiva decision of the U.S. Supreme Court. Scarcely a decade after the National Labor Relations board had announced that it would henceforth exercise jurisdiction over private colleges and universities with annual incomes from all sources of one million dollars, a step which had helped to lead the AAUP and other faculty organizations into collective bargaining in the private sector, a five-to-four majority of the Supreme Court sustained a 1978 New York federal court's contention that professors in independent institutions of higher education were "managerial employees" who could not therefore exercise the right to bargain collectively under the National Relations Act of 1935 with a management of which they were also representatives. The argument by AAUP attorneys "that faculty decisions are generally endorsed by the administration not because the faculty are 'managers' but rather because of the faculty's special competence as 'professional employees' (who are covered by the National Labor Relations Act)" was rejected by the Court, which according to a future president of the AAUP had demonstrated "little understanding of the role of faculty in college and university governance." Although the Yeshiva decision held that organizing and bargaining were not affirmatively protected by federal law on private campuses, it did not invalidate existing contracts or attempts to construe state laws governing collective bargaining at public colleges and universities. Nevertheless, the AAUP, one of its leaders announced, would seek to overturn the Yeshiva decision by obtaining a "congressional amendment" of the National Labor Relations Act specifically to "include faculty members within its coverage." (Academe, May 1980, pp. 188-197.)

Six years after the Supreme Court's Yeshiva ruling, the National Labor Relations Board dealt faculty union organization at private institutions a further blow, ruling in October 1986 that faculty members at Boston University were not entitled by law to engage in collective bargaining. After 157 days of hearings, and having accumulated 21,820 pages of testimony, the Board, in reinforcing its Yeshiva position, cited "the collegial managerial authority consistently exercised by the faculty" at Boston University. Thus during a period in which "academic interest in unions is rapidly growing," the NLRB and federal courts continue to combine to raise obstacles to formal bargaining. (Chronicle of Higher Education, Oct. 8, 1986, pp. 13 and 18, and Nov. 12, 1986, p. 2. For discussions of a 1987 NLRB decision revoking faculty bargaining rights at Fairleigh Dickinson University and a similar 1986 decision limiting the CB rights of teachers at St. Joseph's College, a parochial school, as well as a brief summary of issues raised by the exclusion of over fifteen hundred professors at the University of Pittsburgh, a public institution, from CB rights, see Academe, Sept.-Oct. 1987, pp. 3, 35, and 60-62.)

The Association endorses congressional action to override the Yeshiva decision, by amending Section 2 (11) of the National Labor Relations Act to exempt faculty members from being designated as "managerial or supervisory employees" solely because they participate in decisions regarding educational policies. Committee R continues to conduct the campaign.


Current AAUP Collective Bargaining Policy

The Current Association policy on collective bargaining, printed in the Redbook on pages 145 and 146, differs little from the statement in 1974. A revised introduction still emphasizes bargaining as "an effective instrument" for promoting the historic purposes of the AAUP in the areas of economic freedom and governance. The presence of "institutions of faculty governance on a campus, "the policy statement reads, does "not preclude the need for or usefulness of collective bargaining," which can be employed to extend and strengthen the effectiveness both of AAUP principles and of the faculty voice in the allocation of institutional resources." And faculty strikes, formerly approved "only in extraordinary situations are now viewed in abnormal circumstances as "a necessary and unavoidable means of dispute resolution."

The AAUP adheres to the commitment made by the Council in 1968 to come to the assistance of those "who are singled out for punishment on grounds which are inadequate or unacceptable or who are not afforded all the protection demanded by the requisites of due process." One technique in such cases is arbitration; another is utilization of available grievances procedures. (Redbook, p. 146. Cf. AAUP Bulletin, Summer 1973, p. 167 with Academe, Sept. Oct. 1983, p. 14a.)

A recent article, "The Grievance Process in a Collective Bargaining Setting" by Karen E. Lindberg (Academe, May-June 1986, pp. 20-24), written by an experienced grievance officer involved in collective bargaining at Eastern Michigan University for over a decade, generalized that good record keeping is vital, as are the development of clear criteria by faculty bodies for appointment, tenure, and promotion, and effective training of people to deal with grievances on behalf of the bargaining agent. Rotation of faculty grievance officers is discouraged; rather, suggests the author, such positions should be "stabilized." Whenever possible, problems should be addressed internally, rather than taken to arbitration, and evaluation procedures should include full disclosure of guidelines used and judgments rendered.

Grievance procedures should be included in any collective bargaining agreement. Late in 1987 AAUP Committees N and T approved a joint "Statement on Academic Government for Institutions Engaged in Collective Bargaining" that stressed "a contractually enforceable foundation to an institution's collegial governance structure" could "contribute significantly to the well-being of the institution." For collective bargaining should assure effective traditional forms of shared governance," by contributing to problem solving on campus in three ways. First, "communication" between faculty and administrators might be improved by formal negotiation procedures. Second, "consensus" on school policies and procedures could be reached by the same route. And third, "equitable implementation of established procedures" could be secured by formal bargaining. Thus, "by specifying and assuring the faculty role in institutional decision making, bargaining governance, operating under a contract which includes a grievance procedure, may uphold and reinforce the 1966 Statement on Government of Colleges and Universities. (Academe, Nov.-Dec. 1987, pp. 25-26.)


Role and Functions of Committee N and the CBC

The primary responsibility of Committee N, established by Council action in 1970, is to propose and to monitor AAUP policies regarding collective bargaining. The basic policy in this regard, adopted in 1973 and revised in 1984, asserts that "Collective bargaining is an effective instrument for achieving the objectives of the Association, by assuring the faculty an effective voice in decisions which vitally affect its members' professional well-being." (Redbook, 143, 145.)

CB chapters of AAUP are enjoined in this policy to "protect and promote the professional and economic interests of the faculty as a whole in accordance with the established principles of the Association," uphold "full participation by the faculty" in institutional governance, "obtain explicit guarantees of academic freedom and tenure," and establish "clearly defined procedures" for resolving problems and considering grievances of "any affected individual or group" in the institution.

"Affirmatively asserted conscientious objection" to compulsory dues requirements should be accommodated by CB chapters. Disputes should be settled by "discussion, persuasion, and accommodation within a climate of mutual concern and trust." Recommended devices for achieving such settlements are "mediation, fact-finding, or arbitration." Where agreement cannot be reached, however, "the Association recognizes that resort to economic pressure through strikes or other work action may be a necessary and unavoidable means of dispute resolution." Participation in such a work action "does not by itself constitute grounds for dismissal or for other sanctions against faculty members." The AAUP will apply its policies, especially those requiring due process, to all efforts to impose sanctions, and will "protect the interests" of professors whose punishments are based on "inadequate or unacceptable" grounds, "or who are not afforded all the protection demanded by the requisites of due process." (Redbook, 143-146.)

The operational arm of the Association in Committee N areas of responsibility is the Collective Bargaining Congress. Formed in 1973 and composed of dues-paying CB chapters of the AAUP, it holds two major assemblies annually, one in early December and the second in June at the time and place of the Annual Meeting of the Association. It considers purposes, structures, and work of the AAUP and supports local CB chapters in their efforts to incorporate Association policies into legally binding contracts with administrations and governing boards.

Grants to support AAUP collective bargaining activities are separately listed in the annual budgets of the Association. Funds thus provided are administered by a CB grant committee chaired by the chairperson of the CBC and consisting of two additional members of the CBC executive committee and the chairperson of committee N. A statement on "Procedures and Criteria for CB Grants," was approved by the Council in November 1984 and confirmed two years later. It provides that requests for grant or loan assistance "may be initiated by chapter officers or other appropriate officials through consultation with a professional officer involved in the collective bargaining program" and shall be made in writing to the Director of Collective Bargaining. Such requests "shall include information about the financial condition of the Chapter and a description of the activities to be supported by the requested funds." Applications for loans, which are interest-free for up to three years, will include plans for repayment. "In unusual circumstances," a professional officer of the AAUP may commit up to $250 from grant funds without approval of the grant committee.

Upon receipt of a request for a grant or a loan, the Director of Collective Bargaining will consult the CB grant committee. Proposed expenditures to support litigation will be referred for comment to the legal staff and General Counsel. Commitments of more than $10,000 in one year will be referred for comment to the Secretary-Treasurer. Commitments for more than one year shall only be made upon prior approval of the Executive Committee of the Council. In November of each year, Committee N will provide the Executive Committee a current list of grants and loans authorized for the year. Normally, no more than 50% of these funds will be committed prior to the Annual Meeting each year.

Grants and loans from the CB fund of the AAUP will be made for three purposes: (1) "to assist in defraying the extraordinary or unanticipated costs incurred by an organized chapter or unit; (2) to support an organizing campaign; or (3) to support a special project, such as a workshop or a special publication." Committee N is to supply the Executive Committee of the Council, annually during October, a statement of its priorities for the coming year, "including the expected use of the funds allocated by the Council to the grant and loan budget."

Agreements of organizational affiliation between non-AAUP faculty groups and the Association must be approved by the Council. Such agreements are carefully scrutinized by both the appropriate staff people and members of the Council and must incorporate all vital elements of AAUP policy. Voting rights at AAUP meetings will normally be proportional to dues payments, although services are available to all professors, regardless of membership affiliation.

Special services available to AAUP collective bargaining chapter include national staff or experienced CBC negotiating assistance, legal aid, political advice and assistance specially adapted to bargaining needs, and a CB Information Center which provides the following forms of help:




Return to:
   Index to Ferris, "The AAUP Tradition"
   Tennessee Conference Home Page