United Faculty of Florida, Spring 2009
January 8, 2009
WHAT DO USF'S FINANCES LOOK LIKE?
Leroy Dubeck regularly works for the National Education Association, analyzing institutional budgets, and it was on one such assignment, reviewing USF’s reports to the State of Florida (at the request of UFF!), that he noted that USF had $ 240 million in "unrestricted net assets." It was that observation that brought USF’s unrestricted assets to the attention of the university community.
Leroy Dubeck is Professor of Physics at Temple University, former president of the U.S. Chess Federation, author of the National Education Association's "Budget Handbook," and co-author of the American Association of University Professor's handbook on "College and University Budgeting: An Introduction for Faculty and Academic Administrators". And he is visiting Florida this month.
He will be speaking at USF about "The USF Audited Budget Statement and Beyond" on Thursday, January 22, at 2 pm at USF-Tampa, at Marshall Center 2001 (A), followed by a panel discussion. The presentation is free, open to the public, and sponsored by the USF Faculty Senate, the USF Student Government, and the USF Chapter of the UFF. Everyone with a stake in the future of USF is strongly encouraged to attend.
A REVISED STUDENT ACADEMIC GRIEVANCE POLICY
The Board of Trustees have approved two regulations that split issues of academic integrity (regarding cheating and plagiarism) from disruption of academic processes. The university has revised the student academic grievance policy to match those regulations changes (including addressing suspensions from internship programs where appropriate). One change faculty should note in particular is that students still have the burden of proof in most academic grievances (e.g., when they think a grade is unfair), but instructors have the burden of proof when the issues is academic integrity. The standard is the preponderance of evidence, not proof beyond a reasonable doubt.
Note: Students must talk to instructors as the first step of an academic grievance; if there is cheating or plagiarism, instructors or the department should FIRST apply its judgment. If a student files a grievance, consequences such as an "FF" grade may be overturned if the student wins, but faculty and departments should first take the steps they think are appropriate and let the chips fall where they may.
Here are the links to the regulations and policy:
January 14, 2009
THE RISING WINDS
It was only recently (see the
June 12, 2008 UFF Biweekly article) that while public universities were being crunched, private universities were in the gravy. But last November, both Brown and Cornell announced hiring freezes for non-faculty positions; they anticipated declines in enrollment, endowment losses, and less donor support. Dartmouth, which gets a third of its revenue from its endowment, lost 5 % of its endowment and cut its budget by 10 %. Harvard's soap operatic announcements seem to culminate with losses of perhaps 30 % (but stay tuned), and Harvard was freezing salaries and suspending searches. Now even the Ivy League was bleeding red ink.
Meanwhile, Dana College was giving up on trying to lay off tenured faculty and is now trying to cut off their pensions. The University of Texas ordered 4,000 layoffs from Galveston Island, blaming Hurricane Ike. Anticipating a cut of $ 66 million, California State University Chancellor Charles Reed threatened to restrict admissions for fall, 2009. Maryland’s system was cut 3 % despite enrollment growth, and instituted a faculty hiring freeze and will cut course offerings in fall. Nevada cut 8 % last year and was anticipating another 14 % cut. The Chronicle of Higher Education reported that "expensive but popular programs [like nursing instruction] are being reduced despite widespread work-force shortages." At the annual meeting of the Modern Language Association, participants heard that job listings for historians had fallen 15 %, for foreign language 20 %, and for English and literature 22 %. But on an upbeat note,
the board of the University of North Carolina-Charlotte voted 8-0 to spend $ 45.3 million to bring Division I-AA football to Charlotte by 2013.
Outside of academia, the situation is grim. The official unemployment rate last month was 7.2 %, but the total for people looking for work or having given up was 13.5 %. Unemployment among those with college degrees reached 3.7 %. The Wall Street Journal reported that 40,000 truckers employed by YRC Worldwide, Inc., would soon vote on a Teamsters-bargained pay cut of 10 %, and that a teachers' union in Maryland and a firefighters' union in Arizona had agreed to skip pay raises this year. And Motorola, Federal Express, and Eastman Kodak are no longer contributing to employee pension funds.
BATTENING THE HATCHES
"Higher education, compared with many other sectors of the municipal market, is normally more insulated from near-term budget shortfalls caused by recessions," wrote Moody’s in October. "However, the potential impacts of the combined credit freeze and recession on some colleges and universities will be significant if current trends persist."
Education consultant Laurence White wrote that the crunch is hitting the colleges and universities where it hurts: cutting endowments and parental investments for college, while shutting down credit for both institutions and parents. Notice that this is on top of a national contraction – or we should say, an acceleration of the longstanding national contraction – of state funding of universities.
Tuition hikes were on the table. For example, on November 20, Florida Governor Charlie Crist presented "a comprehensive proposal to reform our state university system" that included giving university trustees the power to raise tuition (former Governor Bob Graham was not appeased, and will continue his suit to keep the state government from dictating tuition policy). But there are limits: if the students do not have the money, they must borrow it or drop out. The 2008 FastWeb Student Loan Survey found that nearly half of all applicants for private student aid are rejected; even more remarkable, while a sixth of the students surveyed borrowed money from family or friends, a seventh borrowed money from...credit card companies.
The thoughtful reader might pause to reflect on recent scandals in student aid loans – and on Secretary of Treasury Henry Paulsen’s November 12 statement said that bailout money will go to student lenders.
An alternative was to tighten our belts. Critics have been complaining about perks – like free laptops and new recreational facilities – that colleges and universities used to market themselves to prospective students and parents. The latest Campus Computing Project said that nearly half of surveyed public universities have cut their IT budgets and about half have outsourced e-mail accounts for students.
Belt-tightening often involves pay freezes, pay cuts, and layoffs. A survey of about 200 institutions conducted by the Chronicle of Higher Education and Moody's reported that about a tenth had laid off employees and a fourth were thinking of doing so. Only 5 % had imposed total hiring freezes on faculty, but 40 % had imposed partial freezes and 60 % had imposed freezes on non-faculty hiring.
Still, not everyone is suffering. The Career College Association's Annual Higher Education Investment Conference focused "on the growing profitability and market share of for-profit colleges." Inside Higher Ed reported a study by the brokerage firm Stifel Nicolaus, which concluded that for-profits grow nearly twice as fast during economic downturns than upturns. "While many experts have predicted that this recession, like previous ones, will result in higher college enrollments over all as laid-off workers return to school for retraining, many public and private institutions will be hard-pressed to accommodate them because their other sources of financing will be squeezed," reported Inside Higher Ed. For-profits, on the other hand, seem to be improving their financing.
USING ONE'S HEAD
Lawrence White wrote, "As is always true in periods of financial stringency, labor malaise will affect workplaces. The number of employee grievances and employment-related lawsuits will grow, and collective bargaining will become more contentious. Any executive-compensation arrangement that could be characterized as excessive will be questioned." Gary Rhoades, General Secretary of the American Association of University Professors, wrote that the AAUP has been receiving an unusual number of reports of problems, and that "This is not the first time in our history that administrators and policy makers have claimed that we cannot afford to engage in shared governance, to maintain a wide range of academic programs, to increase the number of tenure-track faculty and the security of faculty in contingent positions, and even to maintain tenure." But notably, some administrators chose to show their solidarity with university employees by sharing the pain:
Stanford’s president and provost each took a 10 % pay cut, and when Wilberforce University employees were put on involuntary furloughs, president Patricia Hardaway put herself on furlough as well.
Not everyone was convinced that belt-tightening was the right prescription. Chronicle of Higher Education writer Goldie Blumenstyk asked "What would Warren [Buffet] do?" She quoted Ronald G. Ehrenberg, director of the Higher Education Research Institute at Cornell University saying, "This is a great time to be hiring faculty if you have the money." And she added, "Protecting the endowment at the expense of a new or continuing transformative program could be a mistake." "You may have to raid the endowment for a year or two," says John S. Griswold, director of the Commonfund Institute, "Taking the shock to the endowment is better than taking it in the operating budget."
This may be a good time to recall a financial tracking system implemented by Oregon State University several years ago. As Inside Higher Ed explained in 2007, "On Oregon State's budget reporting Web site, users can track expenditures, transaction by transaction, by clicking through the various budget lines in an academic department or administrative office, from the president's on down...Budgeted monies, actual expenditures, and available balances are displayed for individual line items." Inside Higher Ed suggested that "The site offers an intriguing approach for colleges responding to increasing pressure to demonstrate fiscal accountability and transparency." Inside Higher Ed quoted the site's designer explaining that the primary difficulties were political, not technical, and "I think of it as sort of a struggle to change the culture. This is the kind of information that in most institutions is closely held and is really not broadly disseminated."
Charles Miller, who headed the Secretary of Education's Commission on the Future of Higher Education, said, "We have this thing going on in the world where information's just going to be widely available, which is why when universities resist having that data available they're just fighting a long-term trend."
With that last thought in mind, we invite everyone in the USF community to join the movement towards transparency and attend Leroy Dubeck's presentation on USF's financial statements and budget. Thursday, January 22, at 2 pm, in Marshall 2001 on USF-Tampa campus.
January 29, 2009
LEROY DUBECK AT USF
Last Thursday, the USF Faculty Senate, the USF Student Government, and the UFF sponsored a public talk by Leroy Dubeck, author of the NEA's "Budget Handbook," and co-author of the American Association of University Professor's handbook on "College and University Budgeting." Last year, when Dr. Dubeck read USF's
2007 audited Financial Statement, he found $ 240 million in "unrestricted net assets" on page 7, on which the Statement read, on page 8, "Unrestricted net assets are available to the University for any lawful purpose of the University."
UFF raised the issue of this buffer for hard times with the administration and then in
this Biweekly. And the subject has attracted attention ever since, most recently in the Provost's January 20 letter to the faculty, where he listed general areas where unspecified funds from these unrestricted net assets would be allocated.
At his presentation, Dubeck emphasized that the only officially confirmed financial statements are embedded in audit reports. Institutions generate many documents, including budgets, but the documents that reflect what actually happens are the audited financial statements made by the institution, published and in USF's case, submitted to and audited by the State of Florida.
USF's statements go back only to 2003, and there are two reasons for this. First, such statements are governed by the Government Accounting Standard Board (GASB), which overhauled its standards in 2002, making comparisons before and after 2002 problematic. Second, Florida's State University System was overhauled (twice!) early this decade. It is only in the last decade that USF has had local control over its assets. The result is that we have relatively little history to go on.
Dubeck directed our attention to four classes of assets:
What does that mean? Dubeck tended to suggest that "unrestricted" meant what the Financial Statement said it meant – after all, that is the report that the Board of Trustees and its delegate (the university administration) submitted to the state government, so presumably they stand behind their own report.
- "Net investment in capital plans." This consists of the value of buildings and similar objects, and is usually computed by subtracting debt and depreciation from the initial cost. These are assets, but not readily convertible to cash.
- "Restricted nonexpendable." This is essentially endowment money. Typically, an institution can only use the interest, and typically cannot use the principal to address a fiscal crisis.
- "Restricted expendable." These consist of indirect funds (overhead) from external grants, gifts for specific purposes, capital appropriations for state purposes, and so on. Again, there are strings attached to this money.
- "Unrestricted." These are resources that the Board can use for "any lawful purpose" per USF's own Financial Statement of 2008.
Dubeck warned that one has to be careful with how language is used. One can "commit" or "designate" funds for a particular purpose, but such commitments and designations can often be changed. His example was that if he decided to designate some of his savings towards purchasing a new car, and if the economy subsequently soured, he could change his mind. Similarly, the Board could commit or designate funds and then, if circumstances changed, the Board could change its mind.
Exhibit A was the $ 240 million in unrestricted net assets reported on the table on page 7 of the Financial Statement. But there were other exhibits as well. One of the most important lies in the history of the unrestricted net assets.
USF is surrounded by a cluster of "component units" (e.g., the USF Foundation) that raise, handle, and spend money. As of the end of the fiscal year 2003, the university had $ 117 in unrestricted net assets while the "component units" had $ 59 million more. At the end of the fiscal year 2007 – in the last audited statement – the university had $ 240 million in unrestricted net assets and the "component units" had $ 88 million more. The recent 2008 statement, as yet unaudited, reports $ 240 million in unrestricted net assets, and $ 79 million more in the component units; it is Dubeck's interpretation that all three hundred-odd million dollars are available in a crisis.
People may disagree about what a "crisis" is, but Dubeck was only interested in legal restrictions, and these funds appear to be effectively at the disposal of the board and the administration.
In addition, Dubeck noted that in the "Compensated Absences Payable" (for annual and sick leave) section, while the state pays only for the leave used or paid during the year, the university reports all outstanding leave as liabilities. Because the Statement says "The University expects the liability to be funded primarily from future appropriations," Dubeck argued that the money for leave is not tied up and therefore could be treated as additional usable assets: in 2007, the University reported $ 59 million of leave liability. Altogether, that's nearly $ 380 million available for a crisis as of summer, 2007.
WHERE DO WE GO FROM HERE?
Faculty Senate President Larry Branch announced that on Wednesday, January 21, the provost had convened the USF System Annual Strategic Budget Planning Process, which is charged with preparing an annual balanced operating budget "through a transparent, engaged process" while articulating with the strategic plans and the missions of the components of the system, finding funding sources (and efficiencies), and providing for growth while maintaining the financial integrity of the system and "the public trust through developing a clear understanding of revenue and expenditure patterns across the USF system." The operating principles included "openness and transparency," "mutual trust and respect," "customer service commitment," "training to assist people in working effectively," and "treating information as a resource."
The panelists viewed this initiative as a positive step for two reasons. First, the university and the community will benefit by involving and empowering its constituents. Just as panelists were glad that Dubeck's presentation brought the Student Government, Faculty Senate, and UFF together, and just as they hoped that they could build on these new connections, they also hoped that the new budget planning process will bring more collaboration and cooperation into the budgetary process.
You will need that collaboration and cooperation, advised Dubeck, who noted (as Provost Wilcox had in his January 20 letter) that President Obama's stimulus plan included money for higher education. Federal funding proposals under consideration ranged from $ 15 billion for higher education construction to $ 80 billion to states for various educational purposes, not to mention more money for the NSF, the NIH, and the Department of Energy. Most money will be funneled through the states, although some of it will come directly from the federal government. But money will not rain on USF, said Dubeck: we will need to lobby for our share. USF needs to have a committee that looks at the budget and can effectively advance USF's cause. "You cannot overlook this," said Dubeck, who urged the panelists and the audience to organize to get a share of the stimulus money.
An occasion is historic only in retrospect. The economic downturn, the public debate over USF's budget, and the new stimulus plan arrive together at a moment of realization. As several panelists said, we are all in the same boat. There was a consensus that building (as the new budget committee's charge put it) "a premier research university with state, national, and global impact" requires active involvement by all the players in the entire process. If USF succeeds, then this presentation will likely be remembered as a landmark in USF's transition; if USF fails, it will be remembered as a poignant might have been.
USF people first encountered Dubeck when he gave an invited talk about institutional finances at the joint Higher Education Conference of the National Education Association and the American Federation of Teachers. As Dubeck is one of the NEA's roving financial experts, UFF promptly asked the NEA if he could look at some statements from Florida universities and community colleges, and the NEA kindly obliged.
While Dubeck is a professor of physics at Temple University, he is also author of the NEA's "Budget Handbook," co-author of the American Association of University Professor's handbook on "College and University Budgeting," and he has lent his financial expertise to Temple's Board of Trustees, to the American Association of University Professors, to the U.S. Chess Federation, to various state education associations and the American Council of Education, as well as the NEA.
"Money," wrote Emma Lathen, "has a strange and powerful effect on human behavior." Anyone with Dubeck's experience will have a few Lathenesque stories to tell, and Dubeck had a few. For example...
Hopefully, Dubeck's visit, as a result of a cooperative effort of the Student Government, the Faculty Senate, and UFF, and the new Strategic Budget Planning Process, will lead to a more transparent and rational budgetary process.
- A university administration that sent a hundred layoff notices to employees, including tenured faculty, when the administration pled poverty. When Dubeck was sent in to look at the audited financial statements, he found that there weren't any (!). Nevertheless, Dubeck found about $ 100 million of grant overhead squirreled away in a foundation.
- A university administration that countered Dubeck's analysis with a claim that Dubeck overstated the university's unrestricted net assets by $ 50 million. It turned out that it was the financial statement itself that was in error.
February 12, 2009
THE EDUCATIONAL FUNDING SITUATION
The UFF Senate met over the January 31 / February 1 weekend, and the meeting opened with a Legislative Session Briefing by two guests from the Public Policy Advocacy office of the Florida Education Association (UFF is affiliated with the FEA, which is the state union representing K-20 teachers in Florida). The guests started the discussion of the primary issue of the UFF Senate meeting: the state budget. The Special Session of the legislature had ended, and the guests described the result of the Special Session's efforts to plug a $ 2.3 billion hole in the budget. In particular, they reported that the cut to higher education was kept to the 4 % cut that the governor had already held back. Since other agencies were cut more (up to 12 %), this was regarded as a relief. But the respite may be short, for the state may soon be facing another shortfall of as much as four billion dollars.
Part of the problem is the economy. A primary proximate cause of the crisis was the collapse of the housing market, accompanied an implosion of available credit. According to the Center for American Progress, as of January, we are in the worst new homes sales market since the Census Bureau started collecting homes sales data in 1963. Meanwhile, the values of all homes have fallen 13.6 % in the last year – the largest drop since the Federal Reserve started collecting that data in 1952 – and home equity as a share of home values has fallen to 44.7 % (from about 60 % at the beginning of this decade).
All this has hit Florida's state funding very hard, for a lot of state revenue comes from taxes on "growth," i.e., house sales and the like. While there are usually about fifty thousand houses for sale in Florida, now there are about three hundred thousand, an excess that analysts expect will take a year (or longer) to sell off. "Growth" is a major source of Florida’s income, for as USF Professor Gary Mormino told the New Yorker, "Florida, in some ways, resembles a modern Ponzi scheme. Everything is fine for me if a thousand newcomers come tomorrow" (see
the abstract posted by The New Yorker). Newcomers are no longer coming, and Florida's growth rate has fallen from second in the nation in 2005, to 47th.
But another part of the problem is the package of $ 18 billion in tax exceptions, exclusions, and miscellaneous cuts enacted during Governor Jeb Bush's terms in office. Not only did he leave the revenue system in a shambles before departing for a job advising Lehman Brothers (!), he left behind a mindset against tax reforms of any kind, which has contributed to the paralysis in Tallahassee.
Put together, the FEA's Public Policy Advocacy office noted that state revenues fell from $ 27 billion in 2005 – 2006 to $ 24 billion in 2007 – 2008, and forecasts that the revenues this year will be $ 22 billion, with about the same next year, assuming no policy changes. Closer to home, Florida Education Finance Program (FEFP) funding for K-12, which was 60 % of the state budget twenty years ago, has fallen to 48 % of the state budget; UFF President Tom Auxter observed that this decline was the joint accomplishment of Governor Bush and his predecessor, Governor Lawton Chiles, as well as the Republican and the preceding Democratic legislatures that served with them.
The situation is rather dire. Retention is falling: about a seventh of all university faculty leave each year, and in the K-12 system, about half of all new teachers drop out within five years. Meanwhile, news from other states show what can happen: Nevada cut its university appropriation by 35 % and Arizona State furloughed its entire work force. We cannot take for granted that our state government will not be tempted to take similar steps.
The focus during most of the meeting was on what to do. Since we are educators, the focus turned to educating our fellow Floridians about the situation.
UFF WILL FIGHT THE CUTS
The primary focus was on Tallahassee. The FEA presented a legislative program, and outlined a plan to sell it to the legislature. Central to the program is increasing revenue, and the selling plan is to have educators across the state contact their legislators, either by phone or email, or even by attending rallies or helping lobby legislators in Tallahassee (UFF will support the travel of members, non-members, and those outside the bargaining unit who want to participate; details at the end of this article).
One proposal very reluctantly advanced was to institute tuition increases.
During the last few decades, higher education has increasingly come to be regarded more as a consumer commodity than as a public good, and politicians have become less willing to apply public funding for colleges and universities. Many academics – some of whom remember the opportunities they had when young, opportunities now being denied the coming generation – are very wary of burdening students who are already carrying unprecedented debts from student loans.
But with support from those very students, many academics are seeing tuition increases as the only mechanisms for fending off disaster, at least in the short term. The UFF has joined the Florida Student Association, the Florida Chamber of Commerce, and the Council of 100 in advocating tuition hikes, along with substantial increases in need-based financial aid. "Across the U.S., Florida has one of the worst proportions of aid going to students who struggle to pay for college," UFF President Tom Auxter wrote, adding that if a plan advanced by Governor Charlie Crist is approved, "...that situation will dramatically improve within a few years."
But this is a band-aid, and the FEA (like many others) believe that Florida must clean up its taxation system. The battering ram is a proposal for a one-cent sales tax hike for the next three years; this would probably generate at least $ 3.5 billion a year, which would be dedicated to K-20 education. Despite its disadvantages (the sales tax is rather regressive), it has the advantage of simplicity and thus can serve as a "conversation changer": if the honorable representative dislikes this proposal, does the honorable representative have a better idea?
To press the point, the FEA is launching a campaign, which will include a Make Our Schools a Priority Rally at the University of Central Florida on Saturday, February 28 (the rally has
a website); the FEA (including the UFF) will be asking educators to phone and email legislators on February 28 to emphasize the point. The legislature's regular session opens on March 3, and President Auxter said that legislators are now preparing for the session, and he said that this is a good time to contact legislators to let them know what is actually happening at schools, colleges, and universities. Auxter said that many legislators are actually unaware of the realities, and if teachers do not give them first-hand accounts of the situation, they may rely more on abstract and ideologically-driven position statements generated by anti-tax and anti-government activists and lobbyists.
For those who are interested, information on how to communicate with representatives (using only personal computers and phones – or by old-fashioned mail or dropping by their local offices) is available on-line. The FEA maintains
a page on Effective Lobbying Techniques ; the contact information for Florida legislators is also on-line,
with a page for senators and
a page for representatives. In addition, UFF will send activists to participate in the February 28 rally in Orlando, and also in two events in Tallahassee in March (a rally in early March, and a lobbying visit on March 18). For those interested in participating, UFF will support the travel of any UFF member, UFF non-member,
or friend outside the bargaining unit: contact UFF Chapter President
Sherman Dorn if interested.
February 26, 2009
TALLAHASSEE AND THE BUDGET
Governor Charlie Crist's budget for the fiscal year 2009 – 2010 proposes to raise K-12 spending per pupil to $ 7,044 – just under the $ 7,126 for 2007 – 2008, but an improvement over the estimated $ 6,860 for this fiscal year. A description of the budget is posted
on-line. Here are some highlights.
The Governor's education proposal is outlined in a
Success for Every Student page, and there is a table with the leading numbers at
a agencies page, with the leading education numbers at
education / other page.
- The total is $ 66.5 billion, of which $ 40.4 billion are various trust fund expenditures, $ 23 billion are General Revenue expenditures, with the lottery and PECO making up the rest. That is not quite right: if you look at the budget itself (posted
on-line) you will see, scattered like sequins, allocations from expected funds from the American Recovery and Reinvestment Act.
- $ 21.5 billion of state money is for education (and another ten billion more from other sources). No state employee layoffs or furloughs are recommended, but flex-time and telecommuting are encouraged. The state's group health insurance rates are going up, but the governor proposes that the state cover the increase.
- K-12 education gets $ 18.3 billion via the Florida Education Finance Program (FEFP), which is a mix of state and local money (now more local than state). Crist proposes $ 2.8 billion for implementing class size reduction as mandated by the 2002 constitutional amendment.
- The governor proposes no further cuts in the State University System's operating budget of $ 3.6 billion (over $ 2.4 billion in state money and over $ 1.1 billion in money from students) (the remaining billion dollars in state money for education goes to the community colleges). He also proposes a base tuition increase of 5 %, with authorization for a 10 % tuition differential. He proposes $ 90 million in unspecified Public Education Capital Outlay (PECO) (building) projects for the university, which is $ 56 million less than the Board of Governors had hoped for.
One interesting correlation. On the Success for Every Student page, there is a chart of FEFP allocations per student since 1990, showing an apparently steady increase. But using the Consumer Price Index to correct for inflation, the picture looks more like a slow decline from 1990 to 2003 (producing a net decline of about 4 %), and then an increase from 2003 to 2008 of over 15 %. That's about the amount going into implementing the 2002 class size amendment. Then skip back to the top of the Success for Every Student page, and notice the boast that, "Quality Counts 2009, Education Week’s national report card on public schools, recently ranked Florida’s public elementary and secondary schools 10th in the nation. This ranking is an improvement from 2008, when Florida was ranked 14th, and from 2007 when Florida was ranked 31st." This is the sort of improvement one would expect after a major innovation that takes years to implement.
Just a coincidence to think about while pundits debate whether we should water down the class size amendment for budgetary reasons...
Returning to the budget, the critical question is: what will the legislature do with Crist's budget proposal? "His plan relies heavily on hope and help from federal dollars in the economic stimulus package," wrote the Lakeland Ledger, which noted that while Governor Crist expects federal stimulus money to extend over the next few years, House Speaker Larry Cretul is unwilling to assume that there is any more stimulus money in planning the budget. While Crist did not raise taxes – a peremptory demand from the entrenched Republican leaders and pundits – he did raise a half billion in fees (notice the tuition hike), which won the budget some criticism from Senate Minority Leader Al Lawson, D-Tallahassee, who told the Ledger that, "At the same time Gov. Crist proposes to raise fees once again on the little guy, he remains reluctant to examine the basic issue of tax fairness, and he appears willing to allow certain well-heeled special interests to continue a free ride."
Crist's budget is only the starting point for a major fight over the future of Florida during the next few months. And if we are to influence the outcome, this is the time to act.
UFF IS SENDING THE LEGISLATURE A MESSAGE
The time to influence decisions, explained Sir Humphrey Appleby in Yes, Prime Minister, is when they are being made. That is why the Florida Education Association and its union locals (including the United Faculty of Florida) are gearing up for the coming legislative session.
The issue is educational funding, and how to pay for it. Governor Charlie Crist says that the stimulus plus a gambling agreement with the Seminole tribe may make both spending cuts and tax hikes unnecessary. Senator J. D. Alexander, R-Lake Wales, said that, "The governor said no taxes. And I take him at his word." On the other hand, Senator Nan Rich, D-Broward/Miami-Dade, said, "If you don't start raising the revenue now and saving for the future, this is all pointless."
But it is the legislation emerging at the end that matters, and that is what the FEA and the UFF plan to influence. And while the FEA lobbies politicians year-round, constituents can have a powerful effect on legislators:
Legislators often listen to faculty with a different ear than they listen to, say, lobbyists from the FEA. After all, FEA representatives are only providing second-hand information, while faculty speak from personal experience. And one complaining constituent often is typical of many constituents who feel similarly. Anticipating that legislators think along such lines, the United Faculty of Florida is asking members of the bargaining unit, and friends of the university, to join in a campaign to provide the legislature with a reality check.
- Legislators are elected by voters, not by politicians, pundits or bloggers. If they have ambitions for re-election or higher office, they must listen to constituents.
- The narrow stage occupied by politicians, pundits, and bloggers is pervaded by information processed through ideological or mercenary filters. Input from offstage constituents provides a valuable reality check for the sensible legislator.
First of all, the UFF will be sending people to Tallahassee and Orlando.
UFF will provide transportation for volunteers who would like to rally (loudly) on February 28, and/or talk (politely) to their legislators about the needs of education on March 18. Any UFF member, or UFF non-member who wants to help, is invited to join. Contact UFF Chapter President
- On Saturday, February 28, at 11 am, the FEA will conduct a Make Our Schools a Priority Rally at the University of Central Florida Arena. The rally has a website.
- On Wednesday, March 18, in the middle of Spring Break, the FEA will coordinate a short rally in the midst of an FEA Lobby Day in Tallahassee.
Of course, schedules being what they are, many people cannot participate. So UFF is asking members and friends to contact legislators; in fact, UFF will be setting up a phone bank on March 3, and we are inviting people to participate (if you are interested, again contact Sherman Dorn). One can also send letters, emails, or make phone calls on one's own (but one should use only personal mail, computers, or phones: do not use campus mail or university-owned equipment). The senators can be found via
the senators page, while representatives can be found via
the representatives page.
The primary issue that the FEA is addressing is funding, so FEA recommends that people describe how lack of resources is affecting them personally in their work. The FEA also recommends that people describe likely consequences of further cutbacks. Since there are more parents than teachers, legislators may be swayed more by consequences of cuts to students than by consequences of cuts to teachers.
The FEA maintains a site on lobbying (see the page on
Effective Lobbying Techniques). A letter or email should fit on one page (double-spaced) and should make one memorable point for the staffer who reads it; similarly, a phone call should be made with a message composed in advance, and that message should also be short and make one memorable point.
In numbers there is strength, and the FEA and its locals cannot win this fight without active support from the people it represents.
HOPEFULLY NOT IN NEWS OF THE WEIRD
Last week, former Associate Vice President Abdul Rao resigned from his non-tenured, administrative post in USF Health. Until recently, Dr. Rao was probably best known across the university for his proposal to charge principal investigators to process grant paperwork. Dr. Rao's final act at his post was something more befitting News of the Weird, with a stolen bike, a security tape that somehow found its way onto YouTube, a handyman who offered to take the fall, an interview with the victim to try to explain a "misunderstanding," a resignation accepted followed by an un-resignation not accepted, and, of course, the $ 50,000 settlement payout. About that settlement: the UFF is tempted to congratulate Dr. Rao for developing a most creative way to make (alleged) crime pay, but we know that the administration was trying to figure out how to separate itself from Rao without breaking a contract. And, being union folks, the chapter officers have to respect the administration when it fulfills its contracts.
If we were to ask for an explanation of Rao's behavior from Stanford business professor Robert Sutton, who has studied the costs of on-the-job bullying and wrote "The No Asshole Rule: Building a Civilized Workplace and Surviving One That Isn't" (2007), he might ask if Rao's disregard for the concerns of others was evident when he was originally hired. While the Asshole Rating Self-Exam
(ARSE) is not a validated prehiring screening assessment, it's worth a glance for anyone in a large organization -- for a sense of perspective, at least. We also recommend
Dr. Sutton's blog.
March 12, 2009
THE CAMPAIGN IS UNDERWAY
Florida's fiscal year runs from July 1 to June 30, and March and April are when the governor and the legislature work out their plans for the coming fiscal year. So that's when everyone who wants to influence the budget visits Tallahassee.
The Florida Education Association kicked off its campaign with a Make Our Schools a Priority Rally at the UCF Arena in Orlando on February 28, when six thousand teachers heard FEA President Andy Ford say, "Time and again, voters have gone to the polls to say they want education to be a priority. And (lawmakers) continue to ignore the will of the people...It's time to tell them, 'No more delays. Just do it.'" And Ford's predecessor, current Chair of the Broward county school board Maureen Dinnen said, "We cannot let our public school system be starved out of business." And Florida PTA president Karin Brown said, "Our legislators have actually said they haven't heard from our parents...We want our roar to be so loud, they'll hear us all the way down to Key West."
The legislative session opened on March 3, and was promptly greeted by a rally of more than a thousand students and faculty, mostly from FSU and FAMU, but with many visitors from the rest of the state. Governor Crist told the legislature that, "The strength of Florida’s economy is dependent upon a workforce able to compete in an increasingly global economy. Our 28 community colleges are already recognized as the number one in the U.S. and I am committed to giving our universities the resources they need to be among the best in the nation."
For the next few weeks, we will continue to press the issues: educational funding is the fastest way to pump money into the economy, faculty-student ratios are already disastrous as the universities continue to hemorrhage faculty, for many young (and not-so-young) Floridians the alternative to enrollment is unemployment, educational funding as a share of the state budget has been shrinking, and we can raise the necessary funding by ending tax loopholes and giveaways. For details, see
the UFF's Talking Points page.
Next up: the FEA is planning a Lobby Day on March 18, the Wednesday of Spring Break, in Tallahassee. UFF will arrange for transportation for anyone who would like to help UFF lobby legislators: for details, contact
ORGANIZING AGAINST THE WIND
In the beginning, unions were simply illegal. Legality crept in slowly, with little judicial and legislative steps, until finally Congress passed laws in the late 1920s and early 1930s legalizing picketing, strikes, and boycotts.
But the biggest fight of all was over the ability to organize, period. After all, if a union has organized a bargaining unit, and has established a relationship with management, both sides have learned to get along and neither has a particular interest in destroying the other. Unless some outside force (like a new CEO with something to prove) mandates a battle, union and management tend to concentrate on the quieter business of checks and balances.
The critical period runs from the beginning of the organizing campaign to the ratification of the first contract. Nowadays, about a fourth of all organizing campaigns see campaigners fired (about one-fifth of all pro-union activists are fired during this period) even though it is illegal to fire an employee for trying to organize a union. Half of all companies facing organizing campaigns threaten to shut down if the campaign succeeds (although only 1 % carry out the threat). And even if the campaign succeeds and the employees get union representation, the odds of getting a contract are just over one in two.
Nowadays, firms specialize in blocking organizing campaigns. In the bad old days, companies hired Pinkerton to bust heads; in this modern, more civilized era, companies hire men and women in power suits who are skilled in genteel menace and not breaking any laws – or rather, not breaking any laws the National Labor Relations Board is inclined to enforce. One law that the NLRB is apparently not inclined to enforce is the rather toothless law against firing employees who engage in union activities: approximately 30 % of all employers facing an organizing campaign fire employees for union activism. Apparently the threat of being forced to reinstate employees with back pay is an insufficient deterrent (see
a study by American Rights at Work for more depressing details).
Peremptory and unlawful dismissal is the most forceful of a palette of intimidation tools used by employers, so perhaps it is not surprising that even though 78 % of the public supports the right of union representation, and approximately sixty million American workers would like to join unions now, there are only 16.1 million union members in America. Many union activists are convinced that unions fail because their members are intimidated, and that is why there is a growing campaign for a new law.
The Employee Free Choice Act of 2007 was proposed to:
- Explicitly mandate that a union be "certified" to represent a "bargaining unit" of workers if a majority of those workers sign cards endorsing such representation.
- Explicitly mandate that if a newly certified union and the employer don't agree on a contract within ninety days, there is a procedure for mediation and, if necessary, binding arbitration.
- Impose more severe penalties for intimidation of and retaliation against employees.
In 2007 the Act passed the House but was filibustered in the Senate. See
the Biweekly's article at the time.
On March 10, the Act was again presented to Congress, sponsored by 40 senators and 220 representatives. Just like last time, the most controversial part is about certification.
At the American Federation of Teachers National Higher Education Issues Conference last week, AFT President Randi Weingarten argued that the issue wasn't over the secret ballot – employees retain the same access to the secret ballot that they had before – but what right the employer had to interfere with union organizing by using the ballot as a delaying device. And delay can be useful to an employer who uses a strategy of erosive intimidation.
- Under current labor law, if 30 % of the employees sign cards asking for a "representation election" by secret ballot on whether they will be represented by a union, such an election must be held. That doesn't change: employees retain their right to petition for an election.
- Under current law, if employees produce evidence that a majority desires to form a union, then the employer has the right to challenge that union, and a "representation election" by secret ballot must be held. This Employee Free Choice Act takes away this right from the employer, and instead says that if a majority of the employees sign cards asking for union representation, then they are to be represented by that union.
With a friendly president in office and a more Democratic Congress, the supporters of the Act are back. Many are convinced that the future of unions – and of the unions' creation, the American middle class – is at stake. During the past few decades, the American Middle Class has lost ground amidst a massive transfer of wealth from the Middle Class to the Upper Class. Horace Walpole's old notion of a Balance of Power seems to be coming back into fashion. "A rising tide lifts all boats only when labor and management bargain on relatively equal terms. In recent decades, most bargaining power has resided with management," complains a
petition by leading economists posted by the Economic Policy Institute ; their conclusion is that, "The Employee Free Choice Act is not a panacea, but it would restore some balance to our labor markets." For more on the act, see
the site maintained by the Political Economy Research Institute.
March 26, 2009
WE CAN HELP WITH LAYOFFS
UFF has just won an important arbitration case on layoffs, and this victory serves as important reminder of Aesop's moral that in union there is strength – and that contracts are especially important when times are hard.
UFF, with help from the Florida Education Association (which provided the lawyer and paid the bills), was able to defend an assistant professor at Gainesville and establish a precedent that will protect faculty in many universities, including USF.
First, the facts. Last summer, the University of Gainesville administration announced a 6 % across-the-board cut of all units, leaving the units to decide how to cut costs. The administration sent out a memo saying that most of the "layoff units" would be the colleges, like the College of Liberal Arts & Sciences. That college has been cut a lot lately, and one of those cuts was a layoff from the Department of African and Asian Language & Literature. The Chair and the Dean decided that Vietnamese instruction would go, and that the assistant professor who taught the courses would be laid off.
There is a problem: Article 13 of the Collective Bargaining Agreement of the UFF-University of Florida contract requires that layoffs occur within a "layoff unit," and roughly by seniority. In particular, non-tenured employees of that unit with less than five years of continuous service would be laid off before non-tenured employees with more than five years of continuous experience. This is not language that the union made up and imposed on the university: this is language that union and management agreed to and signed off on.
Nevertheless, the assistant professor (who was due to come up for tenure) got a layoff notice saying that the "Vietnamese Language Area" was being shut down, and as she was the only employee in this alleged unit, she was being laid off. This is a hoary old trick – the "Vietnamese Language Area" is not a unit for reasons we will see in just a moment, but the important points are:
The grievance process goes through two "steps." If the issue is still not equitably resolved during these steps, union may choose to take the case to "arbitration," which means that both the union and the administration present their cases (including evidence and witnesses) to an impartial third party, in this case a lawyer chosen from a list approved by both sides.
- The assistant professor was a member of the UFF when she received her layoff notice, which meant that she was entitled to union representation in a grievance, and that the union would represent her.
- She went to the union quickly, for a grievance must be filed within thirty days of the time she knew or should have known that her contractual rights were being violated.
UFF had argued all along that creating a "Vietnamese Language Area" for the purpose of laying off a particular employee was a violation of the contract, which says that a layoff unit "may be at an organizational level." (After all, even the administration's memo had said that the college was the layoff unit.) In addition, as this assistant professor had been at UF for six years, and there were non-tenured faculty in the same department for less than five, she should not have been laid off.
The arbitrator agreed with UFF: "The evidence shows that UF has a well-defined organizational structure for both administration and academics. ... No where [sic] in these documents is Vietnamese identified as any kind of organizational unit." As to whether the administration may invent a layoff unit that is not an organizational level, the arbitrator issued a warning to over-clever lawyers: "It is a well-established arbitral principle that an interpretation that tends to nullify or render meaningless any part of the contract should be avoided based on the general presumption that the parties do not write into their CBA words that are intended to have no effect."
In other words, when bargaining, both sides understood that they were talking about organizational levels as layoff units.
One thing that the arbitrator did not get into is whether the Department and the College had even considered (or looked up) the contract when making decisions about layoffs. It would not be too surprising if Gainesville's senior administration had supported a policy decision made in ignorance – they are nothing if not obstinate – but it is possible that a lot of grief could have been avoided if the responsible administrators had consulted the contract.
The arbitrator instructed UF to let the assistant professor apply for tenure. Arbitration rulings set precedents, so as the language of the UF and USF contracts are both grandfathered from the old contract with the Board of Regents, the ruling applies to us, too.
If you are thinking that this victory took a lot of commitment, time and money, you are right.
The United Faculty of Florida will bargain for the best collective bargaining agreement we can secure for all of us, but you need to be a member of UFF for the union to represent you in a grievance. Join today by downloading the form at
- First, UFF could represent the assistant professor because she was a member of the union when she got her layoff notice. If she had not been a member, she could have filed a grievance and gone through the arbitration process, but she would have had to pay all of the expenses herself, and they could have run well over $ 20,000.
- Second, UFF could get support, legal advice, and legal representation because we are a union local in the Florida Education Association. It was the FEA's lawyer, Tom Brooks, who represented the union at the arbitration hearing.
- And it is the UFF members who ultimately shoulder the burden and pay the bills.
WHAT A DIFFERENCE A YEAR MAKES
by Jerry Notaro
Last year’s joint NEA-AFT Conference in Washington, D.C., Building Alliances for Higher Education and the Public Good, was upbeat and exhilarating. Workshop sessions focused with topics we in Academia are universally concerned about: Quality Distance Education, Free Speech, Retaining Tenure, Grant Opportunities, etc.
This year’s AFT Higher Education Conference in Miami Beach, Generating Power: Mobilizing the Union to Revitalize Higher Education, was a "whole 'nother show." The giddy pleasure of electing a real education president has faded quickly.
For the first time in years, NEA, FEA, AFT, and AAUP leaders met there to strategize survival techniques. The very basic strength in numbers and putting our past differences between us aside prevailed. This time workshops prepared members for heightened political action, increased accountability, and what to do until the money arrives. Even the Plenary Session was titled The National Financial Crisis and Public Higher Education.
In Dean Baker’s excellent Polishook Lecture, The Causes of the Economic Crises and the Role of Higher Education in the Recovery, the message was that the numbers are in folks, and it is even worse than we thought. The catch phrase for the weekend was Academic Capitalism, with constant reminders that although the American Recovery and Reinvestment Act offers a glimmer of hope, it had better work because there will be no Stimulus 2.0. In other words, things really are as bad as it seems and the time is ripe for union activism to surge, for members to roll up their sleeves and help with Higher Education’s very survival.
THE RALLY IN TALLY
On March 18, students and faculty from all over Florida went to Tallahassee to Rally in Tally for education. The main event was 2.6 million pennies the Florida Education Association collected to represent the 2.6 million students whose futures were at stake, and to call for a temporary one-cent sales tax dedicated to education.
The FEA had planned to place all 15,000 pounds of pennies on the capitol steps, but officials publicly worried that the steps were built over a parking garage whose ceiling might not be able to hold the weight of two elephants – or, for that matter, a hundred politicians and supporters in a group photo. So the penny event was held at a nearby plaza.
There was a variety of reactions. Governor Crist, who has said that he doesn't like the penny sales tax, was not in town for the rally, but he later met with presidents of the student governments of the universities. Some legislators expressed support, while others tried more overtly to change the subject from taxes to who-to-cut-instead-of-education, or blaming the school boards, or even proposing that new revenue streams be put on the ballot of fall, 2010 (assuming we can wait 'til then).
As for the stimulus money, it seems that Florida is one of three states that has been underfunding education recently and must apply for a waiver to get funding. Apparently, someone in Washington doesn't think Tallahassee is serious about education. The FEA is determined to make Tallahassee get serious...
April 9, 2009
ARBITRATION HEARING APRIL 24 ON INVOLUNTARY ANNUAL LEAVE
Last May, at a special meeting of the Faculty Senate, President Genshaft announced a Budget Reduction Proposal. Among the nickel-and-dime items was the closure of USF for three days during the Winter Break of 2008, and the imposition of involuntary annual leave on all employees assigned to work during that time.
Article 17, Section 9, of the Collective Bargaining Agreement (see the
current contract ) does not enable the administration to impose involuntary annual leave. And there is no precedent for this action (the administration can always close a university, but past practice has not been to demand that salaried employees cough up annual leave because of the closure). So the Chapter and our Grievance Chair (Dr. Mark Klisch, our vice president, who is a salaried employee) filed a joint grievance.
A grievance is a formal complaint that the contract has been violated. Any employee who is a victim of a violation of the contract may file a grievance, but only an employee who was a union member AT THE TIME OF THE ALLEGED VIOLATION may be represented by the union in the grievance process. (In addition, the chapter may file a grievance on its own behalf on any violation of the contract.) A grievance must be filed within thirty days of the time the grievant knew or should have known of the violation.
First, a grievance goes through two steps. The first step usually consists of an attempt to quietly resolve the issue, and, if that doesn't work, a Step 1 hearing before a representative of the President. If that doesn't work, next is a Step 2 hearing before a representative of the Board of Trustees. If the matter still has not been resolved to the grievant's satisfaction, the union may choose to take the case to arbitration, to be heard by a neutral third party. Notice that it is the union's decision whether to go to arbitration.
After UFF lost in the Step 2 hearing on involuntary annual leave, the union decided to try arbitration. And so on April 24 at 9 am, eleven months after President Genshaft's announcement of imposed annual leave, both sides will present their cases before a neutral arbitrator.
Dr. Klisch and statewide UFF Executive Director Ed Mitchell are both confident that USF acted in violation of the collective bargaining agreement by attempting to force employees to take annual leave on specific days. The arbitrator has the authority to restore annual leave to in-unit employees if USF is found to have violated the Collective Bargaining Agreement. We expect to know of a decision within two months.
THE VERDICT ON WARD CHURCHILL
Ward Churchill seems to be the most colorful figure in the current round of academic freedom cases. A prolific writer and extravagant commentator, he is the sort of faculty member an attention-hungry school on the make would want – and the sort of faculty member that a timid administrator would fear.
Shortly after 9/11, when Churchill was chairman of the Ethnic Studies Department at the University of Colorado at Boulder, he wrote a commentary on how "a few more chickens – along with some half-million dead Iraqi children – came home to roost in a very big way at the twin towers of New York's World Trade Center," remarking that "...[i]f there was a better, more effective, or in fact any other way of visiting some penalty befitting their participation upon the little Eichmanns inhabiting the sterile sanctuary of the twin towers, I'd really be interested in hearing about it." Few noticed this piece of purple prose until Churchill expanded it into a book, and then the ruckus began. (See the
Biweekly's June 7, 2007 article.)
The University of Colorado proved to be on the timid and fearful side of the spectrum, and after legislators and the governor publicly demanded Churchill's head, the university obliged. It is impolitic to fire a tenured academic for insensitive commentary, but as Robert Penn Warren wrote, there is always something: "There is always the clue, the cancelled check, the smear of lipstick, the footprint in the canna bed, the condom on the park path, the twitch in the old wound, the baby shoes dipped in bronze, the taint in the blood stream." Churchill had left many such clues in his career. A committee of five faculty investigated seven "allegations" and concluded (among other things) that he had plagiarized a pamphlet, mishandled the work of others, and falsified and fabricated evidence (particularly misrepresenting sources). As for sanctions, four recommended suspension without pay for two to five years, and one voted in favor of dismissal. The university fired him.
Of course, he sued. His predicament should not be taken lightly, and not just because some politicians hoped that his dismissal would send a message to pointy-headed professors everywhere. He is such a flamboyant figure that one can forget the emotional cost of going through such a confrontation, but a glance at Books-in-Print shows that his intimidating stream of memorably titled books ends with "Pacifism as Pathology", published April, 2007. But he was committed, for he testified that "...I want restitution and acknowledgment the entire process under which I was terminated from the university was fraudulent."
The jury deliberated for a day and a half, ultimately deciding in Churchill's favor and awarding him $ 1 in damages. This was a compromise between five jurors who wanted to award more and one who didn't want to award anything, and it has puzzled observers who tend to read policies and principles into compromises. Still, Churchill's lawyer is confident that the university will have to pay his fee and rehire his client.
This case may affect several potential academic freedom cases on the horizon. An ironic example is UC Berkeley Law Professor John Yoo, who wrote some strange memos for Bush's Department of Justice on the use of torture. A recent thread of court decisions (from Garcetti v. Ceballos to Hong v. Grant) suggests that academic freedom may not protect such memos, so perhaps Yoo should have to answer for them before a university committee. On the other hand, there is a certain air of whose-ox-is-gored in these decisions. Yoo is supported by Harvard Law professor Alan Dershowitz, who readers may remember played a substantial role in Norman Finkelstein's tenure denial (another academic freedom issue, involving a book written by Finkelstein attacking Dershowitz). Meanwhile, Bard College has just fired Joel Kovel, one of the noisier advocates for a secular Palestine. If the next few cases suggest that the wind is shifting,
administrators may be less inclined fire noisy professors in order to appease politicians and pundits.
Boston College and the University of Nebraska cancelled appearances by William Ayers, and legislators had a fit when Richard Dawkins appeared at the University of Oklahoma. There are two ways to take this. First, when politicians and pundits try bully tactics over a visit by a mere village atheist like Richard Dawkins, it's time for an uncompromising defense of academic freedom. On the other hand, the University of Oklahoma didn't bend, so perhaps the wind is shifting. But even if so, social winds do not turn of their own accord, so it is indeed time for an uncompromising defense of academic freedom.
April 23, 2009
THE EMPLOYEE FREE CHOICE ACT II: BACK TO THE FUTURE
The Employee Free Choice Act (EFCA) has several provisions, and the most controversial is probably a change in the way unions are certified.
Currently, if employees within a natural "unit" with a common private employer wish to unionize, they draw up a petition (consisting of cards) and ask fellow employees to sign. If at least a third of the employees sign up, then the National Labor Relations Board (NLRB) meanders to the worksite and eventually arranges for a secret ballot referendum so employees can vote whether or not to be represented by the union. If a majority of the voting employees vote for the union, then henceforth the union represents them in bargaining. Then the NLRB meanders off as the union and the now-miffed employer set out to bargain their first Collective Bargaining Agreement, which often fails to materialize.
(If the employer graciously recognizes the union, the NLRB might certify the union if a majority of the employees signed cards.)
The most significant changes that the proposed Employer Free Choice Act makes are probably:
For more details, see
part I of this Biweekly series.
- The initial petition can be directly for union representation, and if most of the employees sign, then they are represented by the union immediately, no matter what the employer thinks.
- Once the union is approved by the employees, both sides face a time-line for getting the first Collective Bargaining Agreement in place.
The view of the unions is that the secret ballot election sounds very noble on paper, but in practice it grants the employer an opportunity to intimidate employees into abandoning support for unionization. The proposed Act does not change the right of 30 % of the employees to petition for a secret ballot election; it only eliminates the right of the employer to demand such an election. And what right should the employer have to make such a demand?
The view of the business organizations opposing the bill is that eliminating the secret ballot elections would allow unions to intimidate employees into signing cards. According to the Wall Street Journal, a "coalition of pro-business organizations" has spent $ 30 million on ads attacking the bill, and the Chamber of Commerce is launching a new million dollar campaign – this one targeting the timeline for getting a contract once the union is approved.
Since there is a certain back to the future feel to our recent economic news, it may be helpful to look back at how union organizing went in the New Deal. (Context is important: the workers who were organized in the 1930s became much of the middle class of the 1950s and 1960s.)
Over a million workers had gone on strike sometime during 1932 – 1934 as Americans increasingly recognized the importance of unions: Senator Robert F. Wagner said, "The isolated worker today is a mere connection link in an impersonalized and heartless machine...," and noting that genuine negotiation between a single employee and a large corporation was unrealistic, he added, "That is why the right to bargain collectively is a necessary implement..." That right was legally guaranteed on July 5, 1935, when Franklin Roosevelt signed the National Labor Relations Act – usually called the Wagner Act – which created the National Labor Relations Board and empowered it to protect employees' rights to organize unions that can bargain contracts. Among its various powers, the NLRB had the power while investigating "a question affecting commerce...concerning the representation of employees" to conduct a hearing
"and may take a secret ballot of employees, or utilize any other suitable method to ascertain such representatives." An election was obligatory under certain circumstances, e.g., when requested by at least 30 % of the (potential) bargaining unit.
During the next two years, the CIO (then a breakaway opponent of the AFL) invented the sit-down strike, much to GM's discontent, while the steel industry responded with a crescendo of violence that culminated in the 1937 Memorial Day "massacre" when police shot and killed ten demonstrators. 1937 was the year that the Supreme Court ... adjusted ... its view of the New Deal (following Roosevelt's attempt to "pack" the court), and on April 12, the Court found that the Wagner Act was constitutional. So with the support of the public and the president, the NLRB issued nearly five times as many decisions over the fiscal year 1937 – 38 than over 1936 – 37. The NLRB acted against employers' spies, provocateurs, strikebreakers, and intimidation tactics. (The NLRB also dealt with union misbehavior, of which there was plenty, often aimed at minorities, dissidents, and ... other unions.) The NLRB also insisted that once a union is certified,
the employer must bargain with it, and the NLRB wanted contracts to result from said bargaining. In 1937, writes labor expert James Gross, the NLRB was "an expert administration agency that played the major role in the making of labor policy."
That brings us back to those representation elections. They were occasionally problematic, partly because the law itself was unclear and problematic (e.g., was a minimal turnout necessary for the election to be valid? and did such minimal requirements have anything to do with mysteriously low turnouts in elections in the early 1930s?). The NLRB found itself inventing a certification system as it went along, and eventually was certifying many unions without representation elections at all – provided there was sufficient evidence of employee support for union representation, e.g., if a majority of the (potential) bargaining unit signed cards saying that they desired union representation. (In 1938 – 1939, about 31 % of all certifications were sans election.)
Things were already getting complicated by the time the Labor-Management Relations Act (the "Taft-Hartley Act") was passed in 1947: by then, writes Gross, the NLRB was "a conservative, insecure, politically sensitive agency preoccupied with its own survival..." Labor was unpopular after the war, unpopular with the people and the government, while the AFL and the CIO were unpopular with each other. The Taft-Hartley Act complicated matters by offering an alternative rationale for courts to look at: although Senator Robert Taft denied that the purpose of his legislation was to reverse the Wagner Act ("The solution to the labor problem in the United States," asserted Taft, "is free, collective bargaining."), over subsequent decades, much of the Wagner Act was reversed, and much of the rationale for the reversals came from the Taft-Hartley Act. Part of that reversal was in certification. Eisenhower's NLRB appointees were unhappy with
the reliance on card campaigns to determine representation. In the 1950s, the NLRB shifted to a reliance on certification elections, unless the employer waived them and voluntarily recognized the union (which, for example, the USF Board of Trustees did in 2004 – although USF, being a public entity, was not governed by the NLRB).
And here we are today, a half century later, with the AFL-CIO – united since 1955 – proposing a law that formally sanctions what was a common practice once upon a time. Unfortunately, there has been little debate about the other two components of the act, and the background of employer lawlessness and official nonfeasance that has led to the Act's proposal – it is notable that for all the public concern about union intimidation, opponents of the Act are so lacking in counter-proposals that one suspects that the status quo suits them just fine.
Still, many businesses are worried, and the Wall Street Journal has reported that many businesses are consulting experts on how-to-deal-with-unions.
These experts may have their own agenda: the first comment to the
Wall Street Journal article started with, "I urge employers concerned about this legislation to read labor attorney Ted Clark's letter to Congress...," while the second one read, "The letter written by Mr. Clark is very self promoting for his law firm." Certainly, a reasonable reaction to the proposed bill is that it is NOT in the interest of some leading law firms; and Associate General Counsel Nancy Schiffer of the AFL-CIO said, "some of these consultants are engaging in fear mongering to promote their products."
Happily, the Wall Street Journal reported that the labor experts are advising their clients to obey the law, at least when reporters are listening in: "Don't question individual employees about union activity or involvement, don't forbid them to wear union-promoting items, and don't threaten to take away or provide extra benefits based on organizing outcomes."
As the Journal observed, a "... pressing issue is whether companies have opened themselves to union organizing drives because they have cut jobs, pay or benefits to weather the economic slump." This is a time to remember what unions are good for, and how we can rebuild them.