What Happens After August 31st?
August 21, 2017
Dear Colleagues,
As we approach the August 31st expiration of the Agreement everyone is understandably anxious given the fact the parties remain very far apart.
How far apart are we? The Administration has reduced its demands from about $10.1 million a year to about $9.25 million. The AAUP has made offers of concessions that exceed $3 million. The AAUP has worked diligently to find a path to agreement and will continue to do so, but the enormity of the Administration’s demands makes this very difficult. Of course the financial piece is important, but what it represents is critical —the Administration’s desire to fundamentally change the nature of the University.
So, what will happen if there’s no tentative agreement by August 31? Unfortunately, there are no simple answers. The outcome depends on the Administration’s choices on September 1.
In this communication we review what we know and what we don’t know and conclude with what our rights might be under different scenarios.
Interpreting the Administration’s August 9th statement
On August 9th the Administration gave us some indications of what they might or might not do if there’s no agreement by August 31st:
To provide context, in the forty-year history of our union the parties always agreed to extend the existing Agreement while continuing to negotiate. These extensions were accompanied by jointly-authored statements that indicated the commitment of both parties to reach agreement. Their August 9 statement means that the Administration now considers the historical practice unacceptable.
In the same communication the Administration said that if there is no new agreement by August 31st:
So, what does this very lawyerly statement mean? What are the long-standing precedents under the National Labor Relations Act? According to the American Bar Association
Thus under the National Labor Relations Act the expiration of an Agreement does not mean the employer can stop negotiating with the recognized union. Nor can the employer fire employees or cut off or alter existing terms and conditions of employment.
Under the Act once the contract expires, the union may take actions to pressure the employer to accept its demands up to and including striking. Though empowered to strike under such circumstances, unions are not obligated to do so and can take many other steps to pressure the employer. While the employer is empowered to lock out the union employees once the contract expires, this is almost unheard of in the higher education context (only one such example exists).
Impasse
If the parties reach a point where any further bargaining would be futile—a situation called impasse—the employer can implement its final offer. This does not mean that there is a contract in place. The union may strike or take other steps to pressure the employer to alter its position and thus return to the table. In the meantime, the employer’s last offer remains in place.
Interest Arbitration
Another possible scenario is that we find a formula for interest arbitration both sides can agree to. The AAUP offered a proposal that would have had the following consequences:
The Administration rejected this proposal and said they would only agree to interest arbitration if the AAUP moves to within $1.5 million of their position. Given that the administration is still demanding over $9 million in concessions and has shown very little willingness to move off of their concessionary demands, the Administration’s counteroffer is tantamount to an offer for us to capitulate.
Yeshiva Decision and the NJ State Constitution
All of the rights listed above are normally enforceable through the National Labor Relation Board. If the administration were to violate any of them, the normal remedy would be to file an unfair labor practice charge against them with the Board. The legal situation for us is, however, less clear. In their 1980 Yeshiva decision the Supreme Court found that under certain circumstances full-time faculty were “managerial employees” and thus not protected by the National Labor Relations Act. What is clear is that adjunct faculty are not affected by the Yeshiva decision and any actions relating to them are protected under the National Labor Relations Act.
Regardless of Yeshiva, the New Jersey State Constitution specifies that all private employees have the right to bargain collectively (Article I, Section 19: “Persons in private employment shall have the right to organize and bargain collectively.”).
Whether the Yeshiva decision and/or Article I, Section 19 would apply to our specific circumstances is an open question.
The Importance of Attending the August 31st Chapter Meeting
As we stated above, we are trying our best to reach agreement by August 31st, but if we cannot, we will brief you on our next steps at the Chapter meeting on August 31st at 12:00 p.m. in the BLC Theater.
August 21, 2017
Dear Colleagues,
As we approach the August 31st expiration of the Agreement everyone is understandably anxious given the fact the parties remain very far apart.
How far apart are we? The Administration has reduced its demands from about $10.1 million a year to about $9.25 million. The AAUP has made offers of concessions that exceed $3 million. The AAUP has worked diligently to find a path to agreement and will continue to do so, but the enormity of the Administration’s demands makes this very difficult. Of course the financial piece is important, but what it represents is critical —the Administration’s desire to fundamentally change the nature of the University.
So, what will happen if there’s no tentative agreement by August 31? Unfortunately, there are no simple answers. The outcome depends on the Administration’s choices on September 1.
In this communication we review what we know and what we don’t know and conclude with what our rights might be under different scenarios.
Interpreting the Administration’s August 9th statement
On August 9th the Administration gave us some indications of what they might or might not do if there’s no agreement by August 31st:
- What we have said is that we would not agree to an extension of the contract beyond that (August 31) date (—R. Stoto in 8/9 email to J. Halpern)
To provide context, in the forty-year history of our union the parties always agreed to extend the existing Agreement while continuing to negotiate. These extensions were accompanied by jointly-authored statements that indicated the commitment of both parties to reach agreement. Their August 9 statement means that the Administration now considers the historical practice unacceptable.
In the same communication the Administration said that if there is no new agreement by August 31st:
- (T)he long-standing legal precedent of the National Labor Relation Act regarding the rights and obligations after contract expiration will apply, including with respect to the obligation to maintain the status quo, and the continuing duty to bargain, and we will act accordingly.
So, what does this very lawyerly statement mean? What are the long-standing precedents under the National Labor Relations Act? According to the American Bar Association
- Unilateral changes in wages, hours, and other terms and conditions of employment after expiration of a collective-bargaining agreement are unlawful because these conditions generally survive expiration of the agreement. However, only those changes that are "material," "substantial," and "significant" violate the Act. The [Labor Relations] Board has also held that a small number of contractual provisions, including … union-security clauses, no-strike clauses (with limited exceptions), and arbitration clauses that establish terms and conditions of employment do not survive contract expiration.
Thus under the National Labor Relations Act the expiration of an Agreement does not mean the employer can stop negotiating with the recognized union. Nor can the employer fire employees or cut off or alter existing terms and conditions of employment.
Under the Act once the contract expires, the union may take actions to pressure the employer to accept its demands up to and including striking. Though empowered to strike under such circumstances, unions are not obligated to do so and can take many other steps to pressure the employer. While the employer is empowered to lock out the union employees once the contract expires, this is almost unheard of in the higher education context (only one such example exists).
Impasse
If the parties reach a point where any further bargaining would be futile—a situation called impasse—the employer can implement its final offer. This does not mean that there is a contract in place. The union may strike or take other steps to pressure the employer to alter its position and thus return to the table. In the meantime, the employer’s last offer remains in place.
Interest Arbitration
Another possible scenario is that we find a formula for interest arbitration both sides can agree to. The AAUP offered a proposal that would have had the following consequences:
- The elements of the new agreement already agreed to and elements of the old Agreement not in controversy would go into effect as of September 1.
- The elements not yet settled would follow the existing Agreement until there was a decision by the arbitrator, whose settlement would be retroactive to September 1st.
The Administration rejected this proposal and said they would only agree to interest arbitration if the AAUP moves to within $1.5 million of their position. Given that the administration is still demanding over $9 million in concessions and has shown very little willingness to move off of their concessionary demands, the Administration’s counteroffer is tantamount to an offer for us to capitulate.
Yeshiva Decision and the NJ State Constitution
All of the rights listed above are normally enforceable through the National Labor Relation Board. If the administration were to violate any of them, the normal remedy would be to file an unfair labor practice charge against them with the Board. The legal situation for us is, however, less clear. In their 1980 Yeshiva decision the Supreme Court found that under certain circumstances full-time faculty were “managerial employees” and thus not protected by the National Labor Relations Act. What is clear is that adjunct faculty are not affected by the Yeshiva decision and any actions relating to them are protected under the National Labor Relations Act.
Regardless of Yeshiva, the New Jersey State Constitution specifies that all private employees have the right to bargain collectively (Article I, Section 19: “Persons in private employment shall have the right to organize and bargain collectively.”).
Whether the Yeshiva decision and/or Article I, Section 19 would apply to our specific circumstances is an open question.
The Importance of Attending the August 31st Chapter Meeting
As we stated above, we are trying our best to reach agreement by August 31st, but if we cannot, we will brief you on our next steps at the Chapter meeting on August 31st at 12:00 p.m. in the BLC Theater.
