Collective bargaining bill for faculty could spur constitutional clash with regents
Lawmakers may soon open the door for faculty at the Nevada System of Higher Education (NSHE) to collectively bargain under existing public employee bargaining laws — a move that an NSHE lobbyist signaled could spur a dispute over the board’s place in the Nevada Constitution.
AB224, sponsored by Assemblywoman Sarah Peters (D-Reno) and co-sponsored by 29 other lawmakers, would allow professional staff at NSHE’s eight institutions to collectively bargain under a 2019 law creating a framework for public employee bargaining at the state and local levels.
Though that law extended state bargaining rights to the system’s non-salaried classified employees, such as hourly workers, it did not address the vast remainder of unclassified staff, including professors, non-management administrators and graduate student employees.
The bill would close a legal loophole in public employee collective bargaining laws that puts faculty collective bargaining — including everyone from professors to professional staff to graduate students — under the purview of the Board of Regents, rather than the state.
Under both the current system and the one proposed by AB224, it is the regents who approve collectively bargained employment contracts. However, the bill would move disputes from the institutions and regents to the state Employee Management Relations Board, instead.
“NSHE professional employees are the largest group of public employees in Nevada who do not have collective bargaining authorized in statute,” Peters told the Assembly Government Affairs Committee during a hearing Thursday. “AB224 levels this playing field.”
The authority of the regents to approve collective bargaining agreements under the board’s internal code has existed for more than three decades, leading to existing agreements at Truckee Meadows Community College (TMCC), the College of Southern Nevada (CSN) and Western Nevada College (WNC).
Still, faculty advocates have argued for years that the current system places management — in this case presidents, the chancellor and the regents — in an unduly powerful role in disputes, tantamount to a CEO handling employee disputes.
“Collective bargaining in higher education is not really all about compensation,” Kent Ervin, president of the Nevada Faculty Alliance (NFA), told The Nevada Independent. “That's always important, but it's about working conditions, and faculty working conditions are student learning conditions.”
But while testifying in neutral on the bill at an initial hearing Thursday, NSHE lobbyist Alejandro Rodriguez told the Assembly Government Affairs Committee that the system had “serious concerns” over bill language that would step on the regents’ “constitutional autonomy.”
Unlike other education boards, the Board of Regents is baked into the original language of the state constitution as the governing body for the “state university,” an authority that has since extended over all the institutions in the Nevada System of Higher Education. However, that constitutional language has frequently put the board in conflict with the Legislature, especially as the board has historically challenged legislative authority over the board’s power.
Most recently, those disputes manifested as Ballot Question 1 in 2020, a failed constitutional amendment that would have removed regents from the constitution. Though narrowly rejected by voters, a similar measure, SJR7, is again working its way through the multi-year legislative constitutional amendment process.
Rodriguez also argued that the bill would diminish the “right to bargain” between faculty and the board, that it “substantially interferes” with existing bargaining agreements and creates a “slippery slope” by making a “second forum” through which employees could bargain outside the regents.
To solve the problem, he said, the board has called on lawmakers to gut the language of the bill and instead create a mandate that the regents have a “duty” to collectively bargain with professional employees and maintain board policy on that bargaining.
“While NSHE currently remains neutral on this bill, we reserve the right to oppose the measure if this version is not amended,” Rodriguez said.
The sudden call to overhaul the bill language came as a surprise, according to Ervin, who said regents had access to the specifics of AB224 “for months,” and only asked for major revisions on Wednesday night.
Still, an analysis presented by the Legislative Counsel Bureau’s (LCB) legal division Thursday suggested AB224 would likely pass constitutional muster, based on previous challenges to the regents’ authority in Nevada, as well as challenges to similar collective bargaining laws in other states.
Kevin Powers, general counsel with the LCB legal division, told the committee the regents were not a “fourth branch of government,” and that the board had only a “slice of sovereign power and constitutional autonomy.”
“By contrast, the Nevada Legislature holds all sovereign power of the people except where expressly limited by the Nevada Constitution,” Powers said. “Because the Nevada Legislature holds all that sovereign power, when there's a conflict between the Board of Regents and the Nevada Legislature, there’s any question on where the power lies, all doubts must resolve in favor of the power of the Nevada Legislature.”
To that end, Powers said the LCB legal office could not find any case in Nevada or elsewhere in which a court struck down the application of collective bargaining laws to university systems.
However, AB224’s path through the remainder of the legislative process could still be affected by an as-yet undefined financial impact on the state created by the bill. A similar 2021 effort by faculty was derailed after passing through an initial committee before it was assigned several fiscal notes, including a near-$340,000 estimated cost to the state’s Department of Administration stemming from anticipated new positions. The bill ultimately died in the Senate Finance Committee without an additional hearing.
Still, Ervin said the NFA remains “optimistic” about the latest effort, which is co-sponsored by 28 Democrats and two Republicans,
“Having been through this process twice before, we've worked out all the kinks and legislative process, and we just feel that this is the time and we have wonderful bipartisan support for AB224,” he said.
Correction: 3/10/23 at 7:55 a.m. - An earlier version of this article incorrectly stated that the Employee Management Relations Board would approve faculty contracts, rather than the Board of Regents.