Uncommon Sense

The Newsletter of the United Faculty of Florida, USF Chapter

(an FEA [AFT & NEA] affiliate)

Volume 10, Number 3 Winter, 2003

The Voice of the University Professional

The Contract

For a quarter century, faculty of the Florida State Universities had a contract, the Collective Bargaining Agreement, that regulated the terms and conditions of employment. Bargaining and defending this contract has been the primary mission of the United Faculty of Florida ever since.

However faulty, this system was better than the alternative of having no contract. The contract pro-tected tenure, academic freedom, due process, bene-fits, sabbaticals... Indeed, all respectable concerns use contracts. All businesspeople know that contract law makes business possible. And yet a Board of Trustees that claims to be business-minded seems to be trying to do without a contract altogether.

January 7, 2003

On January 7, two things happened.

The contract expired.

The Board of Trustees of USF gained full legal powers, according to the reorganization legislation passed in 2001, and according to the new Board of Governors (created by Amendment # 11 for the Florida State University System), which decreed that the Boards of Trustees had all the powers that they would have gotten under the reorganization legis-lation. (It is not clear this was legal, and, of course, they can change their minds and take charge them-selves.)

UFF’s Position

The union’s position is simple. Neither the reor-ganization nor Amendment # 11 change the fact that the union has represented faculty for 27 years, and thus whoever is the legal employer of USF faculty must bargain contracts with the union.

First, the obligations. Typically, if Company A buys Company B, but leaves it intact (i.e., does not merge operations or some such), then Company A assumes all of Company B’s contractual obligations. It’s like a lease: if you buy an apartment building, and a tenant holds a lease, they still hold the lease. This is the situation here: USF is still the same university it was, and so the legal employer assumes the same obligations that the Board of Regents had.

Second, the life of the contract. If the employ-ees of an institution has a union (like USF), then a new contract is negotiated every few years. Each new contract is set to expire at some time, but with the legal presumption is that a new contract will be negotiated. If the employer refuses to negotiate to the point that an old contract expires without a re-placement, the old contract doesn’t go away: bad faith is not rewarded under law. The contract’s terms and conditions remain until a new contract is legally in force.

So here is the union’s unchanging position, which it has consistently maintained all along. USF is still USF, the union is still the union, and the contract’s terms and conditions remain in force until lawfully replaced by a new contract.

The Board’s Position

The Board (or at least its various administration spokespeople) has taken a variety of positions, or lack thereof. Before Fall, 2002, there were vague reassurances and solemn vows that, for example, there would be no attempt at “union-busting.” (To “union-bust” is to try, by legal or illegal means, to decertify that union as the bargaining representative for the employees.) The vows grew more vague and less reassuring until early Fall, 2002, when President Genshaft and General Counsel R. B. Friedlander told the Faculty Senate that they did not know what would happen on Jan. 7, and so could not even discuss bargaining with the union informally. This statement was reiterated before the Faculty Senate and in formal letters to UFF.

After Jan. 7, everything changed. USF Administrators told faculty bodies (and the press) that the contract no longer existed. On Jan. 13, President Genshaft sent a long Q & A letter to many faculty and staff describing the Administration’s legal position --- and representing it as an authoritative pronouncement. The main point was that the Board does not recognize the union or the contract, and will now undertake to govern the university unilaterally.

Legal Machinations

UFF regards the Administration’s actions as illegal and evidence of bad faith. The Administration probably doesn’t see things that way. So we are in for a protracted legal battle.

UFF has already taken steps. UFF twice petitioned the state commission overseeing such matters (the Public Employees Relations Commission) to resolve the dispute, and the commission twice declined because the controversy “was not ripe.”

Since commissions and courts are not entirely predictable, UFF set up a fall-back position and collected petitions (those “Collective Bargaining Authorization” cards over 1,000 USF faculty signed last Fall) to start the process of certifying UFF as the faculty representative ... should things come to that. The state commission has approved these petitions, which means, if all else fails, UFF can force an election at USF to provide faculty with the opportunity to vote on whether UFF represents them.

Meanwhile, UFF still seeks a less messy resolution. Roy Weatherford, President of the USF Chapter of UFF, has sent several formal letters to Genshaft, asking to start bargaining. In her latest response, she says that she is willing to start bargaining ... once UFF is certified.

So Genshaft seeks a fight. She had signalled this before, by refusing to negotiate proposed rules changes, and again Dec. 18, when the Administration informed UFF that USF would not honor six scheduled course reliefs as required by the contract. (Some union work, like handling grievances, bargaining, etc., is very labor-intensive, and the union had won some “course reliefs” for faculty doing this work. Each course relief is one course off for one semester.) This seriously inconvenienced five union leaders, hindered union operations – and actually began the fight that the Administration sought on an issue they hoped would not concern most faculty.

On a grander scale, if the contract is to be made to disappear, it must be displaced by something. The Administration concocted a collection of personnel rules (without consulting the Faculty Senate or UFF) (another contractual violation!) that would greatly reduce faculty rights and protections. After facing an outburst of criticism, the Administration announced that the rules were merely temporary, and would be replaced by more permanent rules later.

Now here’s the question: what are these new rules for? After all, the Administration knows that UFF can ask faculty to vote for certification. UFF won the two elections in the past. Why promulgate such draconian new rules, especially if they make many faculty nervous?

One theory was advanced at the Nov. 20 Faculty Senate meeting by Chapter President Roy Weatherford. When the Board is compelled to bargain, what is the status quo from which bargaining begins? Is it the contract or the new rules? The Administration might prefer to start bargaining from the new rules, thus negating decades of progress in faculty rights and protections at one swoop.

Of course, one might more charitably regard the new rules not as a disruptive gadget to undermine the union’s negotiating position, but as a compromise between the fantasies of an irresponsible Board and the tinkering of a nervous Administration. But the effect, and the danger, is the same, and either way, UFF will continue to fight.