BY ERNST BENJAMIN
This is a guest post by Ernst Benjamin, a contributor to the January-February issue of Academe. Benjamin served as AAUP general secretary from 1984 to 1994 and 2006 to 2008. He also has served as AAUP director of research, chair of the AAUP Collective Bargaining Congress, and president of the Wayne State University AAUP chapter. He is coeditor of Academic Collective Bargaining.
The December decision of the NLRB to restore a protected right to bargain to some faculty in private institutions has special significance for the AAUP in the light of my historical observations in the current issue of Academe, firstly that: “The 1970 decision of the National Labor Relations Board (NLRB) to take jurisdiction over collective bargaining of employees of private, nonprofit employers was especially important to the AAUP because of the organization’s relative strength at single-campus, four-year independent colleges and universities” and secondly that the Supreme Court’s 1980 “decision in NLRB v. Yeshiva (that) denied faculty a protected right to bargain in private universities . . . was inimical to not only faculty bargaining but also the core principles of the Association. In the words of Justice William Brennan’s dissent, ‘The notion that a faculty member’s professional competence could depend on his undivided loyalty to management is antithetical to the whole concept of academic freedom.’” Moreover, I wrote, the Yeshiva decision “disproportionately impaired the development of AAUP bargaining because the AAUP was more competitive at private than at public universities owing to the concern of many faculty members at the latter institutions for the political support of organized labor and the difficulty of organizing statewide systems. The consequent need to focus on public-sector organizing reinforced the argument in favor of joint ventures with AFT and NEA, with their attendant difficulties.”
The partial reversal of Yeshiva may therefore to some extent restore the opportunity for AAUP to draw again on our unique advantages in organizing full-time, private university faculty. But, because these advantages derive from our role in establishing professional standards and shared governance, and because the December NLRB decision partially reversing the Yeshiva decision is specifically limited to situations in which the faculty do not have demonstrable and effective decision-making with respect to academic policy, the decision also re-opens the tension between faculty governance and collective bargaining that, as my historical essay documents, long delayed AAUP entry into collective bargaining.
The historical debate turned especially on the issue of exclusive representation: “Clyde Summers argued that collective bargaining and exclusive representation were not essential to the establishment of appropriate rules and reiterated the long-standing view that exclusive representation would undercut effective shared governance. Jack Barbash countered that exclusive representation would not preempt individual faculty speech and that exclusive representation and bargaining would provide the basis for written contractual rights for the faculty. Further, he argued, “the very administrators who are attacking union methods are themselves actively contributing to making a factory-type operation out of the university.”
My essay argues that we have, in the public sector, been able to overcome this unnecessary dichotomy and combine shared governance regarding academic policy with collective bargaining regarding employment policy. The December NLRB decision, however, though affording private sector faculty expanded opportunities and choices, may still by requiring a demonstrated lack of effective faculty governance as a condition of the right to bargain impose some difficult choices between governance and bargaining including the subordination to management on academic matters that Justice Brennan decried. It may, therefore, be helpful to review more closely how we have managed to combine shared governance and bargaining in the public sector to see if we can find ways around the unacceptable choice with which private sector faculty may be confronted.
Note: A fuller discussion of this topic may be found in the January-February issue of Academe in “How Did We Get Here?”, an essay by Ernst Benjamin.
Among the AAUP’s central missteps in the matter of higher education collective bargaining in the early 70s was its failure to honor its pledge of support to the AAUP-SUNY Council which was a major contender in the battle for representation of the State University of New York’s faculty and professional staff.
One of the United University Professions’ founders, the Chair of the AAUP-SUNY Council, Dr. Leland C. Marsh, met with AAUP’s Bertram Davis at Dupont Circle in D.C. to ask for support. The AAUP national headquarters office even had on its wall a framed article on academic freedom by Prof. Marsh which had been published in The National Observer. The General Secretary pledged $25,000 to the effort to found an AAUP union in SUNY — money that was desperately needed by Prof. Marsh and that handful of AAUP SUNY Council leaders as he was on the road to all corners of the state while also teaching a full load, just as Arthur Lovejoy traversed the nation in the early days of the Association.
The check never came, of course, and the SUNY AAUP leaders went unsupported by national AAUP in their efforts. When no clear winner emerged in the collective bargaining agent election, the SUNY AAUP Council threw its votes in with another contending group to secure the majority in a coalition. Prof. Marsh went on to become the first Chief Negotiator of the new union’s agreement with the State of New York and made academic freedom the first article of the United University Professions contract. Prof. Marsh devised language which entered the contract with protections much stronger than even the AAUP 1940 Statement because it guaranteed extra-mural speech protection as well, and would thus likely survive a Garcetti challenge.
Soon thereafter, the UUP became an AFT-affiliated union. Twenty years later, the AAUP and the UUP entered into a formal relationship similar to that with CUNY’s PSC, where AAUP pledged “noli me tangere” in UUP’s affairs in exchange for a guaranteed payment agreement. Those “thirty pieces of silver” purchased AAUP Presidential appointments to national AAUP Committees and the “right” of UUP Presidents to hand-pick rather than elect the delegates to the AAUP Collective Bargaining Congress. It also purchased AAUP’s silence when SUNY faculty approached AAUP for assistance in defending their academic freedom in the face of UUP’s refusal to do so (e.g., cf. the Grabowski case at SUNY-Buffalo).
Indeed, in an effort to stoke the “relationship”, AAUP even granted UUP’s President its Sumberg Award — congratulating the union which had accepted contracting out in its agreement with NYS, a clause which an earlier AAUP General Secretary had supported in writing to the then UUP President when a UUP/AAUP/NYS Conference member wrote to the Association for guidance. Symbolically, academic freedom is no longer the first article of the union’s contract, relegated for some time now to number nine.
The AAUP-UUP “relationship” fell apart, nonetheless, not too many years ago, but rumor has it that behind the scenes AAUP leaders are still hoping to find a way to get a cut of the treasury of UUP. Indeed, AAUP leaders already have a formal agreement with AFT to let AFT use AAUP “gravitas” to organize “joint” unions with joint agency fees — unions which are then apparently administered by AFT field staff from trade or school union backgrounds, whose understanding of the intricacies of higher education academic freedom is often dubious at best.
Further, the current AAUP administration even gutted the treasury of the Assembly of State Conferences in support of collective bargaining efforts. It is thus no surprise that the advocacy chapter membership of the Association is down in numbers and dropping further still.
It remains to be seen just what “thirty pieces of silver” from union bosses will not buy from the leadership of the “centennial AAUP”. Dewey and Lovejoy are turning in their graves.
“The AAUP is dead. Long live the AAUP!”