Question
What
are the statutory considerations concerning unionization of faculty members
in the Tennessee Board of Regents system?
Answer
There
is no law prohibiting faculty unions.However,
the ability to collect dues through payroll deduction, to strike or to
collectively bargain are governed by state law.
Analysis
T.C.A.
Section 50-1-201, also known as the Tennessee Open Shop Law,provides
that: AIt is unlawful for any person, firm, corporation or association
of any kind to deny or attempt to deny employment to any person by reason
of such person=s membership in, affiliation with, resignation from, or
refusal to join or affiliate with any labor union or employee organization
of any kind.@Therefore, as a Aright-to-work@
state, enforced total unionization of the work force is prohibited.
Several
statues address state employee associations.T.C.A.
Section 8-23-204 provides for payroll deduction of membership dues and
benefit premiums to be made to an employee association which meets specified
criteria.For TBR faculty, subsection
(5) states:
(A)
Any professional education association whose active membership consists
of at least twenty percent (20%) of the total combined faculty as active
members may make an agreement for payroll deduction of dues .. if such
association has as a purpose and goal the elevation of the professional
status and socio-economic welfare of the members of the teaching profession,
or facilitation of cooperation among teachers and research scholars for
the promotion of higher education and research.Such
agreements shall be applicable to the teachers and faculty on the campuses
and institutions of ... the state university and community college system.Such
professional education associations must have existed for more than fifty
(50) years and have a total of five (5) or more chapters or affiliates
on the campuses and institutions of ... the state university and community
college system.
(B)
The provision of subdivision (a)(5)(A) requiring a professional education
organization to maintain at least twenty (20%) of the total combined faculty
as
Although
there are statutory provisions addressing employee associations, and employees
are free to join associations or unions, there is no statutory authority
for such associations to be recognized for the purpose of collective bargaining.The
Office of Attorney General has taken the position that Aabsent specific
legislative authority to do so, a public employer does not have the authority
to collectively bargain with its employees.@(Atty.
Gen. Op., December 28, 1978) Therefore, public employees do not have the
right to compel their employers to recognize their associations in any
manner or to engage in collective bargaining unless a statute has been
enacted giving them this right.Unlike
the statutes pertaining to elementary and secondary teachers, the statute
for state employees and TBR faculty does not provide for collective bargaining.
T.C.A.
Sec. 8-44-201 provides that any labor negotiations between representatives
of public employee union or associations and representatives of a state
or local governmental entity must be open to the public.This
statute does not confer recognition rights not otherwise provided by statute.Further,
Sec. 8-50-1001 states that representatives of associations meeting the
criteria of Sec. 8-23-204(a)(2) has access to state employees during, before
and after regular work hours, in nonwork areas and in areas open to the
public in state offices, facilities and grounds provided there is no interruption
to the routine of the workplace.Posting
of literature and distribution of literature in nonwork areas is permitted.
Finally,
while membership in a labor union or employee association is not prohibited,
a state employee who Aengages or participates in a work stoppage or who
authorizes or encourages a work stoppage commits gross misconduct, ...
and may be subject to immediate termination of employment.@Sec.
8-23-204(b)(1)A work stoppage is
defined as the Afailure to report for duty, the willful absence from one=s
position, the stoppage of work or the abstinence in whole or in part from
the full, faithful and proper performance of the duties of employment,
for the purpose of inducing, influencing or for the purpose of coercing
a change in conditions, compensation, rights, privileges or obligations
of employment, or of intimidating, coercing or unlawfully influencing others
from remaining in or from assuming public employment.@Sec.
8-23-204(b)(2)