Memo to University Community

March 18, 2005

Page 1

MEMORANDUM

TO:The University Community

FROM:Modesto A. Maidique, President

Mark B. Rosenberg, Provost & Executive Vice President

SUBJECT:Collective Bargaining: Background and Options

DATE:March 18, 2005

Following my March 5, 2005 report to you, we have had two more sessions with the United Faculty of Florida (UFF). In these meetings, the fiscal status of the University was clearly outlined by the University’s chief financial officer, Vivian Sanchez, and, today, the UFF put its economic offer on the table. In response to UFF’s proposed article on wages, the University’s negotiating team submitted a counter-proposal raising its original across-the-board increase in year one from two percent to three percent. Additionally, the University’s negotiating team took the extra step in presenting a draft Memorandum of Understanding on salaries in an attempt to ensure that faculty raises are not delayed further by prolonged negotiations. Given that we have reached the final stages of negotiations, I would like to clarify where we are and to identify the options that we have so that you have a better understanding of choices that we confront.

Where we are:

Our entire proposed contract has been presented. Where do we stand? We are in agreement on tenure guarantees, we have proposed the academic freedom language from the old contract, and we have a proposal on salary increases for a total of ten percent over the next three years.

We have proposed two grievance processes—one in the agreement and one through institutional policy and procedure. While the contract process can end in outside arbitration, the institutional process must end with a final determination from within the University. This process would be guaranteed by law during the life of the contract.

What is our salary offer? We are proposing to increase salaries by a total of 10% over the next three fiscal years. We are offering to raise salaries across the board by 3%, with another 1% coming through long-standing unit-based merit criteria for the remainder of this year. For the next two fiscal years, we are proposing across the board of 1% and merit of 2%. Since our salary proposal is tied to fiscal years beginning with the current 2004-05 fiscal year, all faculty would realize, at a minimum, a 4% across-the-board increase by November 1, 2005, with eligibility for merit raises, which would average 3%, byNovember 1, 2005. As I reported in the March 5, 2005 message, this offer represents a good faith statement by the Board to move the negotiations to completion.

I want to point out that our Board has approved some important new policies for the University community:

tuition fee waivers for eligible faculty and their families

sexual orientation language to the institution’s non-discrimination rule as a protected class

bereavement leave

increased access to the sick leave pool

same sex medical benefit stipends to offset the cost of health insurance.

Considerable discussion followed the March 7, 2005 meeting of the Board of Trustees. From its inception, the Board recognized the special role of faculty in that domain where the faculty are expected to excel— promoting the research and knowledge base of the University. Consider the following facts:

The Board initially and without reservation embraced academic freedom as a core tenet of its operating procedures

When, a year later, the chair of the Faculty Senate proposed changes to the academic freedom statement found in the Board’s operating procedures, the Board accepted these changes (Article VII—see attachment 1)

At a time when tenure has been questioned as a relic of the past, the Board embraced tenure as a key element in the faculty’s creative and research enterprise

The Board has never questioned either the process or indeed any of the recommendations that we have made concerning tenure and/or promotion

We presented to the Board and it approved in its entirety and without challenge a new undergraduate core curriculum—recognizing the faculty’s primacy in this critical dimension of our work.

In fact, as we have discussed the Board of Governor’s proposed strategic plan that may threaten existing and proposed new degree programs that are important to the faculty, our Board has urged us to “push back” as much as possible to protect faculty hopes and aspirations. Therefore, I am confident that the Board gives us a special role in the institution and in fact respects the basic tenets that bring us together as faculty.

The Board is determined to have greater consistency in human resources policies and procedures throughout the institution. It is determined to unify as much as possible the human resources system at FIU. We have worked closely with human resources professionals to make this happen and we believe strongly that this can be done while preserving traditional faculty values and culture. We will have a stronger institution with greater consistency and transparency when this initiative is completed.

The Board is proposing that some articles from the old collective bargaining agreement be placed in institutional policies and procedures. These policies and procedures could not be modified once they are agreed upon, and must be in place for the duration of the three-year agreement.

What is being claimed as “vacant” is in fact being incorporated into policies and procedures. We include here almost all past practice: promotion, assignment, evaluation, discipline, sabbatical, conflict of interest, and leave policies. You will recall that FIU senior academic administrators initiated the concept of 2/3 paid sabbaticals more than three years ago, as this was not available in the BOR-UFF Collective Bargaining Agreement. We have maintained this benefit in our proposed sabbatical policy outside of the agreement. We have no intent on deviating from most elements of past practice, as our recent announcement on sabbaticals should demonstrate. Attachment 2 outlines our approach.

Our proposed intellectual property policy and procedure is faculty friendly and rewards faculty enterprise. It is consistent with the best practice at top research institutions throughout the nation.

What are the options we face?

Option 1: Compromise Agreement: UFF and FIU can agree on the existing non-economic and economic proposals. The contract would require ratification by both UFF membership and the BOT.

Option 2: Impasse: If further agreement is not possible, impasse will be declared. All matters, economic and non-economic, go to a special magistrate who will make recommendations to the full Board for final resolution.

We are at the proverbial fork in the road. Compromise is the glue that allows for civic life, and community. To get us to this point, the Board has already departed from its best-case scenario for a modern 21st century organization. However, the core tenets of our academic enterprise are intact. Grievance procedures are proposed. Enhancements have been offered. Protections are provided. Salary proposals are not as robust as any of us would like, but past practice illustrates the willingness to recognize performance.

The Board has put a fair agreement on the table. FIU can have both a collective bargaining agreement and strong policies and procedures working in tandem.

It is time to turn the page and put this chapter behind us.

Attachment 1: Academic Freedom and the Board of Trustees Operating Procedures

FloridaInternationalUniversity is dedicated to the transmission and advancement of knowledge and understanding. Academic freedom is essential to the achievement of these purposes. The University therefore supports and encourages freedom of inquiry for faculty members and students, to the end that they may responsibly pursue these goals through teaching, learning, research, discussion, and publication, free from internal or external restraints that would unreasonably restrict their academic endeavors.

The University shall protect faculty and students in their responsible exercise of the freedom to teach and to learn.

It is the policy of the FloridaInternationalUniversity to support and encourage full freedom within the law, of inquiry, discourse, teaching, research, and publication for all faculty. Members of the faculty are expected to recognize that accuracy, forthrightness, and dignity benefit their association with the University and their position as men and women of learning. They should not represent themselves, without authorization, as spokespersons for the University.

The University shall not penalize or discipline members of their faculties because of the exercise of academic freedom in the lawful pursuit of their respective areas of scholarly and professional interest and responsibility.

Attachment 2: Comparison of Articles and Policies and Procedures

ARTICLE vs. POLICY

  • The University and its unions are required to engage in good faith bargaining regarding terms and conditions of employment governing bargaining unit employees.
  • The law does not require that every term and condition of employment be contained in an article of a collective bargaining agreement. Many, if not most, terms and conditions are in employer policies.
  • Under the Board of Regents, many terms and conditions were contained in Board or University policy and were never in its collective bargaining agreements.
  • The Board of Trustees (BOT) bargaining philosophy is to place many terms and conditions of employment in Board of Trustees personnel policies in order to have consistency for all employees of the University.
  • The following chart clarifies the implications of this preference of policies over articles and addresses many misconceptions regarding this issue.[1]
  • As is evident from the chart, the key difference, then, between a term and condition being placed in an article or policy is the process for grieving or complaining about an alleged violation. The grievance of an article may—solely if the UFF decides—go to an outside arbitrator while the grievance of a policy in handled entirely within the University. Again, the right to appeal to an outside arbitrator regarding a violation of an article belongs to the UFF, not to the employee.
  • Further, in some instances, the Board’s philosophical preference has little or no impact on employee grievance rights
  • Discipline
  • Like the old contract, for tenure-earning and tenured faculty, discipline requires just cause
  • Faculty suspensions and terminations may be challenged through the grievance process for policies AND through an administrative hearing known as a Section 120.57 hearing
  • In addition, as under the old contract, tenured faculty have a choice: either the Section 120.57 hearing or grievance and arbitration within the contract.
  • Discrimination
  • Administration added sexual orientation as a protected category – an improvement from the old contract
  • Under the old contract Academic Affairs deferred to the expertise of EOP in any faculty grievance regarding discrimination
  • Similarly, any employee with a discrimination complaints can go to the EOP office and avail himself or herself of the EOP complaint procedure
  • Finally, any employee can avail themselves of the federal EEOP procedures and process for addressing discrimination concerns.

QUESTION / ARTICLE / POLICY
Must an article or policy be bargained with the union? / Any article containing a term or condition of employment that is considered a mandatory subject of bargaining must be bargained. / Any policy containing a term or condition of employment that is considered a mandatory subject of bargaining must be bargained.
The Administration has gone further and placed on the table policies that by law do not have to be bargained with represented employees.
Can an article or policy be changed unilaterally by the University or the BOT? / No. Once an article is agreed to as part of a ratified contract, it cannot be changed unilaterally during the term of the contract. / No. Once a policy has been bargained and adopted by the BOT, it cannot be changed unilaterally during the term of the contract.
What does the Administration have to do before it can change an article or policy? / The University would have to engage in bargaining with the union. / The University would have to engage in bargaining with the union.
All changes in personnel policies must go through the BOT approval process. The policy would first go before a committee of the Board for a recommendation, and then before the full Board for final approval. Both committee and full Board meetings are public meetings.
Can a change to an article or policy be implemented or applied to bargaining unit employees without bargaining? / No. / No.
Is the Administration legally obligated to comply with an article or policy? / Yes. / Yes.
What rights does a represented employee have if the University violates an article or policy? / The represented employee could file a grievance under the grievance procedure of the contract.
The union can appeal the grievance decision to an outside arbitrator. This decision is up to the union, not the employee.
The employee can pursue other remedies in court. / The represented employee could file a complaint under the grievance process for policies known as FAIR (Fast and Impartial Resolution),
The union does not have a role in the grievance of policies, although it can represent or assist employees in the process.
The employee can pursue other remedies in court.
How long is an article or policy in effect? / For the duration of the ratified contract, usually 3 years. / For the duration of the ratified contract, usually 3 years.

Office of the President

University Park.North Miami, FL33199.Tel 305-348-2111 . Fax 305-348-3660 .

Florida International University is an Equal Opportunity/Access Employer and Institution .TDD via FRS 1-800-955-8771

[1] The information on this chart is a synopsis of legal principles in the area of labor law that are generally applicable. It is not intended as a full exposition of labor law with its many exceptions and nuances.