An Odd Twist: Might a Response to Janus Make Adjunct Organizing Easier in New York State?

Like most contingent workers, adjunct faculty are hard to organize and mobilize. The Janus v. AFSCME ruling will no doubt make organizing public sector adjuncts into union membership yet more difficult. However, a new law in New York State, intended to cushion public employee unions against the ramifications of Janus, has extraordinarily favorable implications for engaging the tens of thousands of part-time higher education workers across far-flung CUNY and SUNY campuses. Ironically, one provision of the new law in particular may make the prospect of organizing adjuncts more feasible in a post-Janus environment.

While public employee unions are not allowed to bargain for a closed shop, many states authorize them to collect an agency fee from non-members for the services they provide. The intent of the Janus v. AFSCME case, whose ruling we expect any day, is to end that practice. Regardless of the specifics of the decision, the likelihood that the Court will strike down agency fees in some way has precipitated action among unions that had taken a casual attitude toward getting workers to sign membership cards. Many New York State unions have been engaged in months-long membership drives. They have also sought legislative relief. In New York, recently enacted legislation contains language that will actually drastically increase union contact with heretofore largely isolated and difficult to organize contingent faculty at CUNY and SUNY, and perhaps beyond.

Unlike private sector faculty, generally both full and part time faculty in the public sector have been able to organize, contingent on the same state laws as all other public-sector employees.[i] But whether in the private or public sector, organizing in higher education is difficult. College professors teach, but also conduct research, an often-solitary craft and one that does not always occur at the worksite. It is hard for an organizer or member-leader to know when and where they will be able to find a college professor. Notwithstanding these difficulties, full time college faculty at least have a stable relationship with the institution that employs them.

This is not the case, however, for adjunct faculty. Decades ago, most “adjuncts” were professionals brought in to teach a course in their areas of expertise – think of a lawyer who enjoys teaching a course here and there or a journalist who wants to share her craft with students.  Following trends in much of the labor market, however, universities have come to rely on “adjunct” faculty as their core teaching force. The American Association of University Professors reported that by 2015, some 70% of university teachers nationally were contingent; that is, they have no guarantee of continuous employment – a striking anomaly, compared with both tenured faculty and most unionized public employees.[ii] Adjunct literally means supplementary, but in the 21st century, the supplementary has become the center. All the difficulties of full-timer organizing are compounded.

Right now, even though workers in these titles do a majority of the teaching at CUNY and SUNY, the message they get from their employer from their first day of hire is that they are marginal to the operation – a fifth wheel. Adjunct professors are hired by a department and then sent to HR to fill out the requisite forms and get an ID.[iii] They are less likely than full time hires to attend an orientation. They might or might not be told about their eligibility for health benefits or how sick time works. They often are not told how to apply for unemployment compensation over the summer. At some point they might receive a key to the staff bathroom. Most of what they learn about the job – and maybe their rights – is from co-workers, and therefore in an ad hoc way. They are not told systematically what union represents them. There is no speedy notification to the union of their existence, and since they are on campus only sporadically, it may be months (or longer) before a union activist or organizer can eventually track them down and ask them to sign a membership card. Mostly, they sign up; but unless that rep is an extraordinarily good organizer, or there is a departmental co-worker who takes an unusual interest in new colleagues, that is likely to be the extent of their commitment to the union. Now, that may change.

Historically, the New York State Budget bill, passed yearly at the start of April, has been a vehicle for much peripheral legislation that might otherwise get chewed up in the state’s torturous political quarrels. This spring, unions used this vehicle to make signing up members easier and relieve them of certain obligations toward non-members – so-called “free riders,” who hope to secure the benefits of membership without paying their fair share of the union’s costs.[iv] Another provision of this legislation in particular has extraordinarily favorable implications for organizing workers who, though they may be long-time employees, are contractually considered temporary and must be continually re-hired.

The legislation, part RRR of the 2018 Budget bill, has three components.[v] One modifies public employee unions’ “Duty of Fair Representation” which, in labor law generally, requires unions to treat all workers it represents the same: everyone, member or not, receives the same bargained compensation and working conditions. Those benefits of simply working in a represented workplace will remain, but now unions will have the option not to represent non-members in grievance hearings (often related to unpaid suspensions or firings) which can consume a large part of unions’ financial resources and attention. As a result of this provision, each union will assess which path to take: continue to represent those who do not contribute to the union in the hopes of recruiting them in the near future, or cease to represent them, in theory incentivizing them to join. Whether, in the long run, choosing the latter path and creating second-class citizens (some rights but not others) will be beneficial to unions and their members is unclear, but it will certainly impose potential costs on non-members and may cause some to calculate that paying dues is “worth it.”[vi] A second provision makes it harder for existing members to revoke their membership and stop paying dues. Similar to the “maintenance of membership” provisions of union membership during World War II, union membership cards are now allowed to stipulate yearly windows during which members may withdraw from the union.[vii]

The third provision will make union contact with new workers – potential members – easier, and thus facilitate signing them up. While some New York unions had already bargained for the ability to meet with incoming workers at HR orientations, the new legislation mandates this, albeit in somewhat altered form. Within 30 days of employment or “reemployment” (or transfer into a new bargaining unit), the employer must provide the representing union with the name, address, job title, employing agency, department or other operating unit, and work location of the employee.[viii] Within an additional thirty days, the employer, “shall allow a duly appointed representative of the employee organization that represents that bargaining unit to meet with such employee for a reasonable amount of time during his or her work time without charge to leave credits… provided however that arrangements for such meeting must be scheduled in consultation with a designated representative of the public employer.” The phrase “without charge to leave credits” means on paid time, whether in an actual orientation setting or otherwise. Although this meeting may come as late as sixty days after employment begins, it seems reasonable to assume that most NYS public employers will decide that the least disruptive method is to add these meetings to first day orientations.

In general, this legislation doesn’t “fix” the Janus problem – most unions expect some percentage of their members to leave – but, in an unusual twist, the requirement for meetings with “employed and reemployed” should make organizing and mobilizing CUNY and SUNY adjunct professors and other so-called part-timers much easier. Getting adjunct professors in a room together is a chance to get new members, but it is also a new opportunity to build collective power – again, to organize and mobilize.

CUNY and SUNY have to allow the union to meet with these workers, and to pay them for it. The most obvious path for CUNY and SUNY to fulfill this legal obligation is to invite these workers to the same orientations that full-time staff routinely attend. That would not only facilitate the required meetings but send a message of welcome from their employer they now hardly ever receive. Regardless, even if it is on the 60th day, even if management resists, at some point dozens or even hundreds of workers will be in a room together, seeing their co-workers across the campus for the first time, engaging in collective bonding. At their best, these meetings will keep the “Know Your Rights” section brief and move quickly to “building power to improve our wages and working conditions.”

But, actually, rights under this new legislation are even better for contingent employees. Contractually, after their first hire, all part-timers are temporary workers with specified lengths of employment.[ix] As contingent employees, when that period ends, they have no mandated right of return. (This is why Adjunct faculty are eligible to receive unemployment compensation.[x]) Although they are in a union, beyond the specific term of employment they are effectively “at will” employees. It is, of course, an outrage that in a supposedly social-democratic city in a wealthy blue state, and from institutions that claim to be vehicles of social mobility, the majority of the university faculty is treated (and, in most cases, paid) as though they worked at a low road employer like McDonalds. But precisely because of this contractual treatment, part-timers perpetually fit into the category of “reemployed” workers for whom the legislation mandates paid time meetings with the union.[xi]

So, we expect that these mandated paid-time meetings will include every “new” worker and every “reemployed” worker – meetings in some cases of a hundred or more long-time members and potential members in which we can plan, organize, mobilize, instill confidence, build solidarity, find potential activists, and engage members in a fight for a living wage and an end to contingent status.

We expect that the lawyers in CUNY and SUNY Labor Relations will seek to sabotage the letter of the law. No doubt there will be fights over its implementation, and likely case law will emerge. However, our interpretation is the most direct reading of the legislation. The application to adjuncts who are often rehired twice a year is striking, but there may also be applications for other CUNY and SUNY employees and beyond: perhaps substitute and non-tenure track appointments in school districts. The potential list may indeed be expansive. Unions in states like California, which have passed comparable legislation to New York, should comb their laws for similar interpretations. And for states considering new anti-Janus legislation, there is an opportunity to make organizing contingent public-sector workers like adjuncts easier by passing similar language. In New York, every union representing contingent workers should closely examine how renewal-of-work language is framed in their contracts. To the extent that we now have a tool to regularly meet with the most far-flung and the most oppressed, we must seize this opportunity.

Author Bios

Luke Elliott-Negri is active in the labor movement and is a PhD candidate in sociology at the CUNY Graduate Center.

Marc Kagan has spent years in the labor movement, especially at TWU Local 100, and is a PhD student in labor history at the CUNY Graduate Center.


NOTES

[i] In 1980, the Supreme Court’s NLRB v. Yeshiva University overturned an earlier NLRB decision, holding that private sector professors are “managerial” and thus ineligible for unionization. This ruling all but ended full time faculty unionization in the private sector, though in recent years, private sector adjunct faculty, who clearly have no managerial decision-making duties, have unionized in far greater numbers. Some full-time faculty unions remain from the pre-Yeshiva era, such as the Long Island University Faculty Federation at Brooklyn LIU.
[ii] American Association of University Professors Research Office, “Trends in the Academic Labor Force,” March 2017. Retrieved June 6th, 2018: https://www.aaup.org/sites/default/files/Academic_Labor_Force_Trends_1975-2015.pdf
[iii] Numerically, the second largest group of PSC part-timers are Graduate Student-Workers, whose “hiring” is by admissions letter.
[iv] Of course, this is political speech, and as such is funded by that portion of member dues specifically set aside for political activities and additional monies contributed by members to “political education” funds.
[v] NYS S. 7509—C; A. 9509—C; Retrieved June 6th, 2018: http://nyassembly.gov/2018budget/enacted_bills/A9509C.pdf
[vi] A good analysis of the debate on how easing DFR requirements will affect union members, and whether unions should take this step, can be found at Kate Bronfenbrenner, Chris Brooks, Shaun Richman, “After Janus, Should Unions Abandon Exclusive Representation,” In These Times, May 25, 2018. Retrieved June 6th, 2018: http://inthesetimes.com/working/entry/21168/janus_unions_exclusive_representation_labor_right_to_work_supreme_court
[vii] Whether this provision will be struck down by a Janus decision, or will face immediate legal challenge based on its wording, is unclear.
[viii] A recently passed California law provides this information and also cell phone number and personal email address. Retrieved June 6th, 2018: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB119
[ix] Depending on the job title, the overall duration of their employment at CUNY and SUNY, and the amount they work, that length of employment might be a semester, a year (i.e., two semesters), or three years.
[x] See Colleen Flaherty, “Adjuncts Included in Unemployment Guidance,” Inside Higher Ed, January 10th, 2017. Retrieved June 6th, 2018: https://www.insidehighered.com/quicktakes/2017/01/10/adjuncts-included-unemployment-guidance
[xi] At whatever time their employment is renewed.

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