ORGANIZATION AND BARGAINING WITH ADJUNCT, PART-TIME AND NONTENURED FACULTY
March 3 - 5, 2004
Atlanta, GA
John B. Wolf1
Rutgers, The State University of New Jersey
New Brunswick, NJ
I.
Who Are These People?
A.
Adjuncts
B.
Non-Tenure Track Faculty
II
Special Challenges in Organizing Campaigns
A.
Oral Solicitation
B.
Distribution of Literature
C.
E-Mail
D.
Union Access to Company Property
E.
First Amendment Issues Involving Access to Property
F.
Union Access to University Mail Systems
G.
Union Access to Names, Addresses and Telephone Numbers
of Prospective Bargaining Unit Members
III
Community of Interest and Bargaining Unit Configurations
IV
Job Security for Adjuncts, Part-Time Faculty and Non-Tenure Track Faculty
A.
Define What is Meant by Job Security
B.
Non-Tenure Track Clinical Positions
C.
Course Assignments
D.
Tenure Quotas
E.
Retirement Policies; Transition Incentives
F.
Define What is Meant by “Just Cause”
This paper highlights some of the legal issues and practical considerations applicable to
organizing campaigns, negotiations and contract administration with adjunct faculty and other
1
The author is grateful for the research performed by Barbara McManus, Legal Assistant, and by Ted
Eisenberg, Esq., managing partner of Grotta, Glassman and Hoffman, Roseland, N.J. that contributed to this paper.
The views expressed are those of the author and not those of Ms. McManus, Mr. Eisenberg or Rutgers, The State
University of New Jersey.
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non-tenure track faculty. Special challenges confront unions in organizing campaigns because
these employees often are part-time and spend little time on campus. Colleges and universities
are faced with the challenge in negotiations of being asked, indeed pressured, to agree to terms
that impair the flexibility provided by the use of adjunct, part-time and non-tenure track faculty.
I.
Who Are These People?
A. Adjuncts
Adjuncts, known by various titles, constitute a diverse group of positions in higher
education. Most are part-time employees and may also be graduate students, even
teaching assistants, at the same institution. These positions now are a focus of both
organized labor and the national AAUP. The cover story (AThe New Academic
Labor System@) in the January-February, 2004 issue of Academe discusses this part
of the higher education work force. See also AAUP Policy Statement on Contingent
Appointments and the Academic Profession, November 9, 2003, available at
www.aaup.org/statements and “Standards of Good Practice in the
Employment of Part-Time/Adjunct Faculty,” AFT website at
www.aft.org/high__ed/parttime
B.
Non-Tenure Track Faculty
Non-tenure track faculty often are full-time employees with single or multi-year
appointments. Non-tenure track faculty often are full-time regularly appointed
employees and, thus, may be regarded exactly like tenure track faculty, except with
respect to eligibility for academic tenure. In other institutions, there are other
significant differences between non-tenure track and tenure track faculty. Nontenure track faculty appointments may be used in a variety of areas where either there
is no expectation of scholarship or where maximum flexibility in deployment of
faculty is desired. They often are appointed in clinical practice areas in medicine,
pharmacy, nursing, and law; and in business and the performing arts.
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II.
Special Challenges in Organizing Campaigns
Because adjuncts and other non-tenure track faculty often are not regular employees,
there are special challenges for unions seeking to organize them. Accordingly, the following
issues may be more prominent in campaigns to organize these employees than in campaigns to
organize regularly appointed employees.
Multiple rights are involved in organizing campaigns. Campaigns involve labor law
issues (state or federal), property right issues, public access and public forum issues, and free
expression issues. The intersection of these issues can be complex. Generally, however, the
following principles apply to union solicitation, distribution of literature and access to employer
property:
$ Employers may prohibit oral solicitations only during
work time
$ Employers may prohibit distribution of literature both
during work time and in work areas (even when
employees are not working)
$ Employers are not required to allow non-employee
access to their property unless there are no other means
of accessing the employees
$ Rules must be enforced in a non-discriminatory manner
A
Oral Solicitation
In Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), the Supreme Court
balanced an employer=s property interest and the need to ensure uninterrupted
work with the employee=s interests in seeking to gain support for a union. The
NLRA does not prevent an employer from making and enforcing reasonable rules
about the conduct of employees on company time. Therefore, an employer may
prohibit union oral solicitation by employees during working hours, provided that
the rule is enforced in a non-discriminatory manner (that is, applying to all
solicitations, not just union-related solicitations). However, the Court also stated
that an employer generally may not prohibit union solicitation by employees
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outside of working hours, although on company property.
B.
Distribution of Literature
In Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962), the NLRB distinguished
between solicitation and distribution, stating that solicitation is only oral and
impinges upon the employer=s interests only to the extent it occurs on work time,
whereas distribution of literature may raise problems with littering the employer=s
premises and a hazard to work operations whether it occurs on work time or nonwork time. Accordingly, a no-distribution rule properly can extend to work areas
even on non-work time. However, a no-distribution rule that applies to non-work
times in non-work areas is presumptively invalid. The Board conceded that while
allowing employees to distribute literature in a non-work area is an intrusion upon
an employer=s property rights, the intrusion is necessary in order to balance
employee and employer rights.
C.
E-Mail
The distinctions between employees= rights to speak to their colleagues versus
distribute literature about union activities become increasingly hard to draw in the
context of e-mail communications which share characteristics of both solicitation
and distribution. Under Stoddard-Quirk, while an employer may not prohibit
solicitation in work areas, the employer may prohibit distribution of literature
there. Therefore, assuming e-mail constitutes a work area, the permissible
restriction on its use will depend on whether e-mail is considered solicitation or
distribution. At least some e-mail messages sufficiently carry the indicia of oral
solicitation to warrant the same treatment as traditional oral solicitation. An
example of such solicitation is when two employees have an interactive e-mail
Aconversation@ in real time regarding the union=s organizing campaign, or some
collective grievance, when both employees are not on work time. Pratt &
Whitney, 1998 NLRB G.C.M. LEXIS 51, *17 (1998).
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E-mail communications have been compared with other means of communication.
E-mail messages, unlike telephone calls, do not have to be sent or read on
working time and their postings do not hinder an employee from receiving workrelated communications. E-mail can be saved, read and responded to later, when
the employee is not occupied by work. E-mail is unlike physical mail because the
latter requires a workforce to handle, sort, and deliver the messages while e-mail
does not. Despite arguments likening non-work e-mail to litter and complaints
that non-work e-mail may clog and slow e-mail systems, it has been said that there
is no danger that an e-mail system will run out of space if union communications
were allowed. Prudential Insurance Co. of America, 2002 NLRB LEXIS 551, *16
(2002)
Because employers cannot prohibit solicitation in work areas during non-work
times, and because e-mail may be considered, at least in part, a solicitation taking
place in a work area, a blanket prohibition on non-business related e-mail use may
be unlawful. See Pratt & Whitney, supra. However, legitimate business concerns
may justify some restrictions. For example, in TXU Electric, 2001 NLRB
G.C.M. LEXIS 74, *13 (2001), an employer permitted personal use of the e-mail
system, but limited the permissible length of the messages, attachments to
messages and the number of employees to which any particular e-mail could be
sent. While a blanket policy would be unlawful, the limiting policy here was
facially lawful because it narrowly addressed the employer=s legitimate business
concerns - to forestall significant interference with its use of the e-mail system while adequately balancing employees= rights.
Employers cannot maintain restrictive e-mail policies which discriminate against
union activities. Thus, the widespread use of e-mail for a variety of personal
reasons will make uniform enforcement of Abusiness use only@ e-mail policies
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difficult. See In E.I. du Pont de Nemours & Co., 311 NLRB 893, 919 (1993).
Compare Guard Publishing Co. d/b/a/ The Register-Guard, 2002 NLRB LEXIS
70, *6 (2002), an employer’s policy prohibited use of its communications systems
to solicit or proselytize for commercial ventures, religious or political causes,
outside organizations, or other non-job-related solicitations. Because this was a
non-discriminatory limitation on the use of the company’s equipment it was held
not a facially overbroad no-solicitation/no-distribution rule, but rather a valid limit
on the use of communications equipment. Similarly, in Adtranz, ABB DaimlerBenz Transportation, N.A., Inc., 331 NLRB at 291 (2000), the Board affirmed an
ALJ decision in which the ALJ concluded that an employer may prohibit all
personal use of its computers and e-mail system by employees so long as there is
no discriminatory enforcement.
D.
Union Access to Company Property
In NLRB v. Babcock & Wilcox, 351 U.S. 105 (1956), and Lechmere v. NLRB,
502 U.S. 527 (1992), the Supreme Court held that employers could not be
compelled to allow non-employee union access to company-owned parking lots
for distribution of union literature where (1) the employer did not discriminate
against the union by allowing other distribution, and (2) other channels of
communication were available to enable the union to reach the employees. Since
union organizers in these cases had other means of access to employees, access to
employer property was not required. See “Employer Solicitation Policies; Union
Versus Charity,” 1 DePaul Business & Commercial Law Journal 449 (Spring
2003)
From a practical standpoint, where colleges and universities have open campuses
and often permit the presence of vendors, limiting union representatives will
constitute unlawful discrimination. Lucile Salter Packard Children=s Hospital at
Stanford v. NLRB, 97 F.3d 583 (D.C. Cir. 1996). These principles have been
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applied in the public sector as well. California State Employees Association,
SEIU v. State of California, 22 CAPERC & 29034 (ALJ), aff=d 22 CAPERC &
29148 (PERB 1998)
E.
First Amendment Issues Involving Access to Property
In the public sector, there are First Amendment issues in addition to labor law
considerations. In Perry Education Association v. Perry Local Educators=
Association, 460 U.S. 37 (1983), the designated bargaining agent was granted
exclusive access to an interschool mail system which constituted a Anon-public
forum.@ The Supreme Court held that denial of access to the mail system by a
rival union was reasonable and not based on content but on the status of one union
as the exclusive representative. See also Old Bridge Board of Education, P.E.R.C.
No. 87-51, 12 NJPER 844 (& 17324 1986) (union and public employers may
negotiate over majority representative=s reasonable use of school mailboxes)
Certain types of government property must be made available for expressive
purposes under the public forum principles set forth in Perry. In “traditional
public forums” (“quintessential public forums” such as streets and parks) speech
cannot be restricted (except as to time, place and manner) unless a compelling
governmental interest can be demonstrated and the restriction is narrowly drawn.
A “designated public forum” is one that the government has opened to the public
for expressive activity. So long as the government retains the open character of
the public forum it is bound by the same standards applicable to a traditional
public forum. “Non-public forums” are those government places which have not
been, by tradition or designation, forums for public communication. The
government may reserve these places for their intended purposes and may impose,
in addition to time, place and manner restrictions, other reasonable regulations
that are content neutral. (460 U.S. at 45-46)
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Perry, however, does not apply to private property. In the private sector, the labor
law principles described above apply. See Babcock & Wilcox, Lechmere and
Salter, Lucile Packard Children’s Hospital, supra.
F.
Union Access to University Mail Systems
The Federal Private Express Statutes prohibit carriage of union mail to University
employees over U.S. postal routes without payment of postage to the U.S. Postal
Service. Regents of the University of California v. Public Employment Relations
Board, 485 U.S. 589 (1988) Thus, union proposals over access to interschool
mail facilities have been held not subject to collective negotiations. Rockaway
Township Board of Education and Ramapo-Indian Hills Regional High School
Board of Education, unpublished decision, Superior Court of New Jersey,
Appellate Division, DKT. Nos. A-5542-89T5 and A-5535-89T1 (consolidated
cases) (March 25, 1991), affirming P.E.R.C. Nos. 90-107 and 90-104, 16 NJPER
321 and 313 (& 21132 and & 21129 1990) However, while sending union mail
through a school district=s mail system generally violates federal Private Express
Statutes, mailing union communications concerning joint labor-management
committees that administer school or employee benefits programs – as opposed to
bargaining over them - may be permitted. Fort Wayne Community Schools v.
Fort Wayne Education Association, 977 F.2d 358 (7th Cir. 1992), cert. den., 510
U.S. 826 (1993)
G.
Union Access to Names, Addresses and Telephone Numbers of Prospective
Bargaining Unit Members
This is an area where labor law intersects with privacy interests and public
records statutes. Thus, under federal labor law, it has been held that an
employer=s duty to bargain in good faith includes a duty to disclose to the union
bargaining unit names, but not home addresses. Grinnell Fire Protection Systems
v. NLRB, 272 F.3d 1028, 168 LRRM 2976 (8th Cir. 2001) Under a state right-toNational Association of College and University Attorneys
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know statute an aspiring union was entitled to names and campus addresses of
part-time faculty and, in addition, to campus telephone numbers and home
mailing addresses under state common law. Part-Time Faculty Chapter, Rutgers
Council of AAUP Chapters v. Rutgers, unpublished decision, Superior Court of
N.J., Appellate Division, DKT. No. A-432488T1 (April 6, 1990) Compare
Miami Valley Child Development Center v. SEIU/AFL-CIO, 170 LRRM 3012
(Ohio App. 2 Dist. 2002) (union not entitled to home addresses of employees of
Head Start Child Development Center)
While disclosure of home addresses ordinarily would constitute an invasion of
privacy, addresses of state-employed physicians who used home addresses as
their Aaddress of record@ were not exempt from disclosure under the California
Public Records Act. Lorig v. Medical Board, 92 Cal. Rptr. 2d 862 (App. 1 Dist.
2000) Similarly, names and mailing addresses of plumbers licensed by the
Department of Public Health were not personal information exempted from
disclosure under the State Freedom of Information Act. Chicago Journeymen
Plumbers= Local Union 130 v. Department of Public Health, 327 Ill. App. 3d 192,
761 N.E. 2d 1227 (App. 1 Dist. 2001)
III.
Community of Interest and Bargaining Unit Configurations
An appropriate bargaining unit must consist of employees who share a community of
interests. Factors considered in determining whether a community of interest exists are:
$
$
$
$
$
similarity of duties, skills, interests, and working conditions
similarity of wages, compensation system and benefits
organizational structure of institution
expressed desires of employees
history of past bargaining (if any)
See Developing Labor Law, The Third Edition, Patrick Hardin, ed, Bureau of
National Affairs, Wash., D.C. 1992, Chapter 11. An extensive discussion of the
community of interest adjunct bargaining cases is contained in “The Indentured
Servants of Academia: The Adjunct Faculty Dilemma and Their Limited Legal
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Remedies,” 74 Indiana Law Journal 513 (Spring 1999).
The cases illustrate the case-by-case community of interest analysis and the awkward
and inconsistent configurations that result. Adjunct faculty typically are in their own
bargaining unit. Adjunct faculty who are hired semester by semester to teach
specialty courses and additional sections of commonly offered courses are
Aemployees@ under state labor law, but they do not share a community of interest
with full-time faculty. Vermont State Colleges Faculty Federation v. Vermont State
Colleges, 152 Vt. 343, 566 A.2d 955 (1989) Adjunct faculty, however, may be
represented in a separate bargaining unit by the same union that represents full-time
faculty. Vermont State Colleges Faculty Federation, AFT Local 3180 v. Vermont
State Colleges, 159 Vt. 619, 616 A2d 221 (1992) This is the case, also, at Rutgers
where the one AAUP bargaining unit includes all faculty (tenure track and nontenure track) and teaching assistants/graduate assistants, and a separate chapter
represents the part-time lecturer (i.e., adjunct) bargaining unit. See also Somerset
County College, P.E.R.C. No. 87-129, 13 NJPER 361 (& 18150 1987), aff=d NJPER
Supp.2d 185 (& 164 App. Div. 1988), aff=d S.Ct. Dkt. No. A-60 (1/24/89) (per
course instructors at New Jersey county college, many of whose primary occupations
were elsewhere, who commenced employment for at least their second semester
during a given academic year and who expressed a willingness to be rehired to teach
at least one semester during the next academic year, shared a sufficient community
of interest to constitute an appropriate unit for collective negotiations); State of New
Jersey and Council of New Jersey State College Locals, P.E.R.C. No. 97-81, 23
NJPER 115 (& 28055 1997) (statewide unit of approximately 2300 adjunct faculty
employed at seven state colleges and one state university in New Jersey who
commenced employment for at least their second semester within the past two
academic years and who expressed a willingness to be rehired shared a community of
interest and constituted an appropriate negotiations unit)
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Tenure track and non-tenure track faculty may share a community of interest and
be combined in the same bargaining unit. In Michigan Technological University, 6
MPER & 24074 (1993), a combined unit of tenure track and non-tenure track faculty
was held appropriate where job responsibilities were similar, both participated in
University governance, most fringe benefits were identical and there was day-to-day
contact and functional integration of their work. At Rutgers University, clinical track
and other non-tenure track faculty are in the same bargaining unit with regular tenure
track faculty. Compare Wright State University Chapter of AAUP and Wright State
University, 15 OPER & 1091 (H. Off. 1997). (Hearing Officer found petitioned for
unit appropriate consisting of full time tenured and tenure track faculty, but
excluding faculty in schools of medicine and professional psychology who are not
eligible for tenure, where university sought broader unit including non-tenure
eligible Afully affiliated@ faculty)
Mixed bargaining units with faculty and non-faculty also have been approved. In
Sandburg Faculty Association v. Illinois Educational Labor Relations Board, 248 Ill.
App.3d 1028, 618 N.E.2d 989, 188 Ill. Dec. 419, 144 LRRM 2543, 85 Ed. Law Rep.
79 (1993), a community colleges=s small campus environment supported enlarging
an existing collective bargaining unit of 50 faculty members and counselors to
include 45 non-faculty who performed secretarial, maintenance and security duties.
In Henry Ford Community College, Henry Ford Community College Administrators
Association and Henry Ford Community College, Federation of Teachers, AFT, 9
MPER & 27086 (1996), a newly created instructional technologist position whose
mission was to facilitate and promote instructional technology was functionally
integrated with faculty and, thus, shared a community of interest with the faculty
bargaining unit. In Grand Rapids Community College and Grand Rapids Community
College Faculty Association, 9 MPER & 27039 (1996), vocational-technical
instructional personnel at a laboratory preschool, whose duties were to supervise and
evaluate students seeking degrees in child development while they work with
National Association of College and University Attorneys
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children, were accreted to an existing faculty bargaining unit comprised of academic
instructors.
In Ocean County College and Ocean County College Faculty Association, D.R. No.
95-8, 21 NJPER 4 (& 26002 1994), a faculty unit was clarified to include
coordinator and director positions where their duties were an extension of faculty
functions and where positions were filled by faculty. Where the coordinator and
director positions were filled by adjunct faculty, the adjunct faculty union could
petition separately to include them in the adjunct bargaining unit.
A fundamental issue in any collective bargaining relationship is who is included and
who is not included in the bargaining unit. Concerns about the bargaining unit
configuration begin with the filing of a representation petition. If a bargaining agent
is elected and a contract eventually settled, issues still may arise in the future when
new positions are created and when existing positions are merged, realigned or
eliminated. In this regard, attention should be paid to the titles that are attached to
positions and to the clarity with which job responsibilities are defined.
While unions may use generously the term Afaculty member@ to apply to any person
who participates in instructional activity, there is no need for the institution to use a
title if it connotes privileges or responsibilities that do not apply. Thus, adjuncts and
other part-timers may be designated as Astaff” rather than Afaculty.@ In Rutgers
University, P.E.R.C. No. 91-81, 17 NJPER 212 (& 22091 1991), PERC permitted
negotiations by the union representing AVisiting Part-Time Lecturers@ (instructional
staff employees hired and paid by the course, known more commonly elsewhere as
“adjuncts” or “adjunct faculty”) over a proposal to change their title to APart-Time
Lecturer@ because no new title or duties would be created. Over time, the Astaff@
designation for PTLs has eroded at Rutgers. While the union representing these per
course instructors is called the Part-Time Lecturer Chapter of the Rutgers Council of
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AAUP Chapters, the contract contains the following language that serves to lessen
the distinction between the regular faculty and PTLs.
Departments shall advise PTLs of the campus location
where their mail, notices, and other communications will be
available. Departments are encouraged to consider PTLs to
be a part of the faculty and provide them with relevant
information, announcements, and communications,
including all communications addressed to AMembers of
the University Community.@
IV.
Job Security for Adjuncts, Part-Time Faculty and Non-Tenure Track Faculty
Any form of “just cause” protection including academic tenure, typically involves 3
things. First, it provides continued or permanent employment subject to termination only for
prescribed reasons. Second, it provides some form of pre-termination procedural safeguards.
Third, “just cause” protections in the collective bargaining context typically involve some form
of post-termination appeal. The focus in this section is on whether there should be job security
for adjuncts, part-time faculty and non-tenure track faculty and, of so, what it should look like.
Distinctions have been made between job security for non-professional employees and
academic tenure for faculty members. In negotiating over union demands for job security,
colleges and universities should consider whether there are educational policy reasons why job
security or academic tenure should not be within the scope of negotiations or, if they are, why an
institution might not agree to these demands.
A. Define What is Meant by Job Security
In the collective bargaining context, the parties can define their own terms and they
can qualify whatever job security provisions they create. If they do not clearly define
their terms, they leave the meaning, typically, to a neutral third party - an outsider who will apply his notion of justice based upon experiences that may or may not be
relevant to a higher education context. Job security should be considered in the
context of at least three different circumstances:



misconduct or bad behavior
conduct related to job performance
restructuring or reorganization (due to academic or budgetary needs)
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While unions would seek the same protections in all three situations, colleges and
universities have every right to seek to treat job security differently depending upon
the circumstances. Clearly, negotiated provisions that limit the issue in a posttermination dispute resolution forum to whether a college’s decision based on
honestly held reasons is better than provisions that permit a third party to decide
whether those reasons were justified. New Jersey Courts and New Jersey’s PERC
have addressed job security in higher education in a variety of contexts.
B. Non-Tenure Track Clinical Faculty Positions
In Rutgers University, P.E.R.C. No. 2000-83, 26 NJPER 209 (& 31086 2000), the
University refused to negotiate over the creation of non-tenure track clinical faculty
positions in nursing and pharmacy. PERC held that the University could act
unilaterally because this was a non-negotiable educational policy decision. PERC
said:
…given the University’s unfettered right to set criteria
for academic tenure, it cannot be forced to negotiate over
making academic tenure available to employees without the
requisite scholarship… In other words, if Rutgers decides that
academic tenure requires scholarship and that a particular
faculty title should not emphasize scholarship, then an
agreement to make that title tenure eligible would significantly
interfere with an educational policy determination.
(26 NJPER at 212)
PERC noted, however, that other forms of job security may be negotiable.
Compare Wright v. Board of Education of City of East Orange, 99 N.J. 112, 491
A.2d 644 (1985) (statutory tenure provision for school custodians does not preempt all negotiations over custodial tenure); Plumbers and Steamfitters v.
Woodbridge Board of Education, 159 N.J. Super. 83, 386 A.2d 1369 (1978) (job
security is a term and condition of employment; tradesman without statutory
tenure may negotiate job security and protection from unfair or unwarranted
dismissal)
C.
Course Assignments
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Articulating clearly reasons why job security interferes with the development or
implementation of educational goals or policies is necessary to avoid becoming
burdened with job security provisions that limit an institution’s flexibility to hire
and retain the most qualified personnel to teach, and to assign to particular courses
the most appropriate individuals. In Rutgers University, P.E.R.C. NO. 91-812, 17
NJPER 212 (& 22091 1991), PERC held that a union proposal that part-time
lecturer appointments come from a list of existing PTLs was negotiable because
the proposal included an exemption that would allow the University to deviate
from the list for educational policy reasons. PERC said:
Rutgers has an uncontested right to decide what
courses to offer, how many sections of a particular
course will be offered, when they will be offered,
and whether VPLs will teach them. But the
question of whether Rutgers can agree to have a
pool of qualified lecturers available to teach offered
courses implicates job security.
In deciding whether a particular proposal
predominately involves educational policy or job
security, we must weigh the nature of the term and
condition of employment against the extent of its
interference with that policy.
*
*
*
To examine the limits of negotiability in this area,
we must distinguish between the decisions to hire,
reappoint and assign. Rutgers has a prerogative to
hire employees. But once hired, those employees
may be protected by a job security provision which
affords their employer an opportunity to evaluate
their performance before tenure is granted…
Whether or not the employees have negotiated job
security, Rutgers must also retain its prerogative to
assign particular teachers to particular courses.
*
*
*
It [the union’s proposal] does not restrict Rutgers=
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right to deviate from the list for major educational
policy reasons. It is a limited job security provision,
providing a right to be considered for continued
employment to those who have already taught at
least two semesters, but preserving Rutgers= right
to deviate from the list for major educational policy
reasons. Those reasons include judgments about
academic qualifications and thus the sentence does
not prevent the employer from appointing from off
the list and does not significantly interfere with the
determination of governmental policy.
(17 NJPER at 214 and 216)
Accord, Rutgers, The State University, 6 NJPER 546 (& 11277 PERC 1980) (while
job tenure and seniority are negotiable in the abstract, whether proposal concerning
job security of coadjutant faculty might interfere with University=s ability to assign
best suited individuals to teach particular courses required evidentiary hearing).
D. Tenure Quotas
Tenure quotas and long range staffing plans are examples of broad-based policies
that impact job security of individual employees but that, nevertheless, have been
held to be outside the scope of collective negotiations. In Association of New Jersey
State College Faculties v. Dungan, 64 N.J. 338, 316 A.2d 425, 85 L.R.R.M. 2625
(1974), resolutions of the Board of Higher Education regarding tenure policies at the
State Colleges and County Colleges were challenged by faculty unions as having
been promulgated without collective negotiations. The policies addressed the
balance between tenured and non-tenured faculty; criteria for reappointments
conferring tenure; and standards of performance warranting tenure. The Court held
that the policies involved major educational policy issues and were not subject to
collective negotiations even though the granting of tenure involved consequences to
individual faculty members. In State of New Jersey (Stockton State College),
P.E.R.C. No. 76-33, 2 NJPER 147 (1976), the College adopted a Ten-Year Faculty
Staffing/Tenure Plan that dealt with the issue of the proportion of tenured faculty to
non-tenured faculty. The union sought to negotiate these proportions and
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specifically argued that tenure was a form of job security and that the plan had
significant consequences for individual faculty members. PERC rejected the union's
argument and held that the Plan was not negotiable. PERC said:
The Council [union] notes that tenure as a concept was
originally created to provide job security - an aspect of the
job which intimately affects the public employee. The
Stockton Tenure Plan, however, by imposing quotas on
tenure, is a means of denying job security. The Council
concludes that as the Plan constitutes a prior determination
as to job security, it affects the terms and conditions of
employment and should be a required subject for
negotiations...
We conclude that Stockton State College should be free, in
the exercise of its educational responsibilities... to
determine those tenure limits which will encourage
maximum flexibility in educational programs and
maximum utilization of pedagogical skills. The extent to
which tenure and the unique protections accorded its
recipients is regulated by the instant tenure ratio policy has
profound implications for the quality of the Stockton State
College educational program. Such decisions should not be
subject to the mandatory negotiations process and we so
find.
(2 NJPER at 149)
E.
Retirement Policies; Transition Incentives
In University of Medicine and Dentistry of New Jersey v. AAUP, 223 N.J. Super.
323, 538 A.2d 840 (App. Div. 1988), aff’d 115 N.J. 29, 556 A.2d 1190 (1989), the
Court balanced the interests of the University against those of the faculty and held
that the University’s interests in deploying faculty and allocating faculty resources
predominated even where faculty members were required to retire, losing their tenure
and their jobs. The Court held that whether to force a tenured professor to retire at
age 70 was a non-negotiable subject. The Appellate Division said:
we find that dominant concern underlying the decision to retire
an individual at age 70 is how the institution can best achieve
its mandated educational purpose. It implicates important tradeoffs between the desire of an individual to continue working and
the expertise which he provides versus an institution’s need to
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bring in new faculty, to deploy its faculty in different academic
areas and to open up tenure and promotional positions in order
to retain its current faculty and to afford equal employment
opportunities… Nothing could be more germane to the
educational goals of an institution of higher education than the
vitality of that institution as reflected in its ability to hire, retain
and deploy its faculty. (223 N.J. Super. at 334-336)
F.
Define What is Meant by “Just Cause”
As noted earlier, if there needs to be a form of job security for adjunct, part-time
faculty or non-tenure track faculty, the goal is to secure a standard by which the
employer can make judgments about professional performance and about
programmatic needs that cannot be second-guessed by those not accountable for the
quality of the institution=s academic enterprise. Accordingly, the following
formulations of “just cause” provide limitations that preserve institutional flexibility
and that limit the authority of a third party neutral.

where the job is not being performed safely and
effectively, or where there is substantial objective
evidence of poor job performance. Greenwood v.
State Police Training Center, 127 N.J. 500, 509-511
(1992).

a real cause or basis... as distinguished from an
arbitrary whim or caprice - that is, a cause or
ground that a reasonable employer, acting in
good faith... would regard as a good and
sufficient reason...
Fried v. Aftec, Inc., 246 N.J. Super. 245,
255-256 (App. Div. 1991)

a reason pertaining to the leadership, performance or ability of an
employee to discharge his/her duties that the employer reasonably
believes calls into question the fitness of an employee for a particular
job;

a legitimate business concern that the employer genuinely subjectively
believes;

a fair and honest reason supported by substantial evidence;
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
a legitimate academic, economic or business reason that is not
arbitrary;

a reason that, given all of the applicable facts and circumstances, is fair
and reasonable.
An excellent review of tenure from a legal and administrative viewpoint, with a
discussion of the reasons why tenure can be terminated, was prepared by Thomas P.
Hustoles, frequent NACUA speaker and partner with Miller, Canfield, Paddock and
Stone, P.L.C., Kalamazzo, Michigan, for the 12th Annual Legal Issues in Higher
Education Conference at the University of Vermont, 2002.
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