Minutes*
Faculty Consultative Committee
Monday, September 16, 1996
4:00 - 5:30
Dale Shephard Room, Campus Club
Present:
Virginia Gray (chair), Carl Adams, Carole Bland, Victor Bloomfield, W. Andrew Collins,
Sara Evans, Dan Feeney, Russell Hobbie, Laura Coffin Koch, Fred Morrison, Michael
Steffes, Craig Swan, Matthew Tirrell
Regrets:
Michael Korth, Harvey Peterson
Absent:
none
Guests:
Professors Mary Dempsey and Edwin Fogelman
Others:
Vickie Courtney, Martha Kvanbeck (University Senate)
[In these minutes: the cease and desist order]
1.
Report from the Chair
Professor Gray convened the meeting at 4:00 and announced there were four agenda items: a
briefing from Professor Morrison on the legal situation, what to do about the scheduled meetings of the
Tenure Subcommittee, the Committee on Faculty Affairs, the Judicial Committee, and the Faculty
Senate, the role of FCC during the cease and desist period, and what Senate business can continue to be
conducted.
She reported that there had been faculty groups meeting all day in an effort to coordinate their
activities. FCC members had also concluded they should obtain professional help in public relations
activities. She also observed that the cease and desist order covers only the Twin Cities campus, and that
theoretically the Regents could adopt their proposed tenure code for the coordinate campuses. [Professor
Gray made it clear this is simply her opinion, and the point is addressed subsequently in these minutes as
well by Professor Morrison.]
Professor Gray then reported on the meeting that had taken place the previous Friday (September
13). At the last FCC meeting, with President Hasselmo on September 10, the Committee had expressed
an interested in continued discussions with the Board. She raised the possibility with the Board; they
asked to meet with five people, so she and Professor Bloomfield asked Professors Evans, Hobbie, and
Swan to attend a meeting with Regents Keffeler, Reagan, and Spence, and with Senior Vice President
Marshak. As the meeting was nearing an end, the cease and desist order was delivered; the meeting then
broke up.
*
These minutes reflect discussion and debate at a meeting of a committee of the University of Minnesota
Senate or Twin Cities Campus Assembly; none of the comments, conclusions, or actions reported in these minutes
represent the views of, nor are they binding on, the Senate or Assembly, the Administration, or the Board of Regents.
Faculty Consultative Committee
September 16, 1996
2
Before it ended, Professor Gray said, the three Regents had not indicated they wished to pull off
the table the tenure code revisions the Board had developed; they had, however, sketched a proposal for
continuing the process of discussion. This discussion of meaning of academic freedom, why due process
is needed, the impact of the tenure debate on the University's competitiveness, and so on, was the
conversation that should have been held in June, Professor Gray said.
2.
The Current Situation
Professor Morrison then explained the current situation. The University Faculty Alliance (UFA)
has filed cards, which they say represents 30% of the core unit, indicating faculty wish to have an
election to determine if they will be represented through collective bargaining. UFA may or may not
have 30% if the unit is defined to include the Academic Health Center (AHC). The Bureau of Mediation
Services (BMS) issued a cease and desist order last Friday at 3:20; that order is now in effect.
The initial BMS order applies to the entire Twin Cities campus, including the Law School and the
AHC. [The latter two units are treated as separable from the remainder of the Twin Cities campus, under
Minnesota law.] [The BMS has since amended the order so the bargaining unit is the Twin Cities campus
but not including the health sciences and the Law School.] The BMS has held that the Law School and
AHC have until November 1 to petition to opt into the bargaining unit--that is, they are out of the unit
unless they opt in. As a result, there will be no unit determination before November 1.
If either the Law School or the AHC petitions to join the larger unit (by submission of cards from
30% of the members of the group), there will then be an election in the two units to determine if they
wish to be in the larger bargaining unit. That election would take place during November, precluding
final bargaining unit determination until December. It is possible, Professor Morrison said in response to
a query from Professor Bland, that this process could drag out for a long time and could involve, for the
AHC, the examination of what every single faculty member does. This could be a moving target,
Professor Steffes pointed out, as the number of full-time clinical faculty paid through the University
declines with the continuing changes in responsibilities.
That means the election will probably occur in January or February, if there are no legal contests
during the process, Professor Morrison concluded. If there are contests, the election could be pushed off
months.
At the end of the process, there will be an election. A union may be selected to be the collective
bargaining agent for the faculty, with the exclusive right to deal with the terms and conditions of
employment. Or the faculty might vote not to have a union, at which point the situation is back to where
it was before the cease and desist order was issued.
The cease and desist order does NOT include the Crookston and Morris campuses. Under state
law, the ONLY option for the Crookston and Morris faculty is to petition to join the Duluth union (by
filing cards from 30% of the members of each of those campuses). Those two campuses do not have the
option to join a Twin Cities bargaining unit. (The faculty could also seek a change in the state law on
this point.)
Faculty Consultative Committee
September 16, 1996
3
The cease and desist order provides:
"1.
"2.
"3.
Wages, hours and all existing conditions of employment of the employees shall not be
changed as of the date of this Order.
Negotiations shall not be carried on.
Threats or promises as to changes in wages, hours and conditions of employment are
prohibited."
Asked his view on matters, Professor Morrison said he believed that the order will probably not
stop the Fairview transaction and that Professor Gray may continue to give quarterly reports to the Board
of Regents--but the report may not include any items relating to the points contained in the cease and
desist order. The restraint is on the Regents and the administration, not on the faculty.
Professor Bloomfield recalled a point made earlier in the day by the AAUP attorney who is on
campus: the order is not self-enforcing. People can continue to do things; others can litigate if they
object. Professor Morrison agreed, but observed that what happened 20 years ago (when the campus
went through this same process) was that the Regents used the cease and desist order as an excuse not to
talk about things they did not want to talk about, even though those things may not have been covered by
the order. The BMS, however, does not make determinations of when the order has been violated; that is
determined by injunction issued by a district court at the request of an offended party. There were two or
three such injunctions issued last time.
One Committee member inquired if the order precludes a formal response to the Regents' tenure
proposal. Another problem in all of this, Professor Morrison responded, is that this Committee is in a
peculiar position. Unlike the unions, which are private associations, FCC is a creature of the University:
it was created by the Board, is an instrument of the Board, and FCC could be subject to the same
restrictions that the Board is because it is an official body (or, in the language of labor law, it might be a
company union, which the law prohibits). It (and the Faculty Senate and its committees) should be
cautious about acting on new proposals.
This is important, Professor Bloomfield maintained; the Committee should not start from the
position that it cannot represent the faculty.
In terms of the Regents' tenure proposal, which is on the table, Professor Morrison said provisions
1 and 3 of the cease and desist order apply. If the Board takes the proposal off the table, it might be
construed as a promise; if they enact it, they have made a change. So, it must simply sit there.
Asked if the Board might apply their proposal to the Crookston and Morris campuses, Professor
Morrison expressed doubt. The court might see that as a threat to apply it more generally, because the
code has been uniform across all those campuses up to now. To act might provoke an unfair labor
practice charge.
Committee members raised a number of additional points in the ensuing discussion:
--
The faculty could continue to talk among themselves about the tenure proposal, Professor Gray
said; Professor Morrison agreed, but he questioned whether that would be wise. The cease and
Faculty Consultative Committee
September 16, 1996
4
desist order restrains the Board, the administration, perhaps the FCC, but not the AAUP or UFA.
--
Professor Adams asked whether the Regents and the UFA could agree that a certain department or
group of faculty were in or out of the unit; Professor Morrison thought not, since the unit is created
by statute and the Commissioner does not have the authority to change it. Some may contest that,
Professor Adams said. It is possible that both the University and the UFA would agree, in unit
determination, to exclude a unit, he said. In such a case, who would legally speak for the UFA?
That must be determined. Professors Walsh and Rabinowitz, or whom they designate, Professor
Morrison said.
--
Does the law allow the AHC, if it opts out of the larger unit, to create its own union? It does not,
Professor Morrison said. In law, there are two statuses: a meet and confer unit, and a meet and
negotiate unit. A bargaining unit meets and negotiates about the items in point 1 of the cease and
desist order, and it is the only group that can DEMAND agreement. The bargaining agent can also
meet and confer about everything else (as is now the case in the governance of the University). If
the AHC, or Crookston or Morris, are not in a bargaining unit, they are meet and confer units:
they have elected representatives to meet and confer with the employer, and thereafter the
employer may do as it wishes.
--
The faculty, if in a bargaining unit, may strike, if an impasse has been reached in bargaining, it has
gone 20 days, and they have served an "intent to strike" notice.
3.
The Meetings Currently Scheduled
Professor Gray next asked what the Committee wished to do about the meetings of the Faculty
Senate and its committees that have been scheduled. It is a political rather than legal choice whether to
proceed with the deliberations about the Regents' tenure proposal, Professor Morrison said; the
Committee then debated what should be done.
It was agreed that the meetings (devoted to tenure) of the Tenure Subcommittee, the Committee on
Faculty Affairs, the Judicial Committee, and the Faculty Senate should be cancelled. The time and
location of the Faculty Senate meeting, however, should be retained in order that there can be an open
forum to discuss tenure issues. Professors Dempsey, Feeney, and Fogelman can be present as
knowledgeable faculty who have been working on tenure. It is important to say that it will NOT be a
Faculty Senate meeting, Professor Morrison cautioned, because if it is, there will be the temptation for
someone to make a motion. (It was also agreed that there would be no need for a telephone connection to
the coordinate campuses, nor would the Senate staff be involved in setting up the forum.)
It was also agreed, at Professor Fogelman's suggestion, that Professor Morrison would draft a letter
to the Board of Regents explaining that the committees and the Faculty Senate are not meeting because
of the cease and desist order. It is important that they be on record as NOT responding to the tenure
proposal in accord with the provisions of the tenure code. An open forum, Professor Morrison said,
would NOT be "consultation" as required by the tenure code.
Professor Bland asked if the FCC and the Faculty Senate should have open forums on what it
would mean to unionize versus other forms of faculty participation in governance. The unions will do
Faculty Consultative Committee
September 16, 1996
5
that, Professor Swan observed. They will not be balanced, Professor Bland responded. Professor
Morrison reminded the Committee that there is a legal problem because FCC could be seen as a company
union established by the Board of Regents. But the Committee is the elected voice of the faculty,
Professor Bland maintained. The position Professor Morrison is taking gives the right to represent
faculty to other self-appointed spokespersons. That is because of the law, Professor Hobbie pointed out.
Committee members discussed cooperation among the faculty, and the need not to undermine the
future position of FCC.
4.
The Role of FCC During the Cease and Desist Period
Professor Gray then said that she has been telling people she sees herself as the leader of all the
faculty, whether or not they favor unionization, and that she should stay independent and try neither to
help nor hinder the unionization movement. There are pressures for her to become involved, she added,
and there will be gray areas.
There is the question of use of "company time" for organizing activity, Professor Hobbie pointed
out; it was prohibited for civil service employees. What exactly is "company time," Professor Swan
inquired, because faculty duties are defined by job done and not specific hours.
There will be a coordinating committee, with representatives of all four groups of faculty [the
AAUP, the UFA, the "Group of 19," and FCC], Professor Gray reported; she and Professor Bloomfield
will represent FCC. The intent is to present a united faculty front, and how the faculty groups will work
together will be identified. There will be things that people can do as individuals, she pointed out, that
they cannot do as a group.
Professor Bloomfield supported the idea of FCC neutrality and that it should not participate in any
discussions of the tenure code. It is important, however, that FCC, as an elected group and as individual
faculty, participate as best it is able. The effort to make clear to the external community the danger to the
state of not having a first-rate research university is one activity where FCC can make its views known.
FCC should have the right to express its views and should not give up its role as the elected
representatives of the faculty.
Will it represent a Senate form of governance, versus collective bargaining, Professor Bland
inquired? It will continue with the usual activities, Professor Gray responded, and will participate in the
unionization discussions. Having a senate within a union would not have the same result, Professor
Bland cautioned; it will take a very creative union to keep participation at the same level as now exists
with the Senate. Both UFA and AAUP have said they want the governance system to be retained. But,
Professor Bland responded, a union is based on an adversarial relationship and a senate is based on
collaboration. Being in a collaborative organization is consistently associated with high productivity and
morale. Professor Morrison pointed out that the faculty are now in an adversarial relationship. Professor
Bland agreed, but only at the moment. The University has benefited from a collaborative governance
structure for nearly 100 years, and that system should not be destroyed because of an outlier set of
regents.
FCC should not organize a forum with only speakers who argue against collective bargaining,
Faculty Consultative Committee
September 16, 1996
6
Professor Swan said; that would violate the principle of neutrality. FCC could organize a forum with
representatives of those who favor and those who oppose bargaining, however.
Nor do individual members of FCC lose their voice, Professor Evans pointed out. Professor Gray
said that she, personally, would be neutral, as FCC chair, but agreed that individual FCC members should
speak their views. Professor Morrison recalled that last time some members of FCC and others formed a
group to oppose unionization, and FCC was at that time also neutral.
Professor Adams said he felt a little betrayed, because he thought there had been agreement, at the
last FCC meeting, that FCC would be neutral, but then the signatures of three FCC members, with
identification of their FCC affiliation, appeared on a letter to the faculty in favor of signing cards. FCC
should not act as a body, and it is not surprising that individual FCC members say what they think. The
pattern of identifying people with their FCC membership seems to have been established at this point, he
said, and may as well continue.
There needs to be a statement from FCC on the role it intends to play, Professor Fogelman said. It
was agreed that the Committee would consider a draft at its next meeting. Professor Gray said she hoped
FCC members would preserve their loyalty to FCC, because the Committee will suffer if it is drawn off
in other directions.
Professor Feeney inquired if FCC could issue a statement about salaries and promotions and other
things that affect faculty, in terms that could be understood, because there are assistant professors
wondering if they're going to be promoted. Those answers should come from the administration,
Professor Gray said, not FCC. This is a "dynamic status quo," Professor Morrison said; anything the
University ordinarily does it may continue to do. It simply may not change the processes.
What about semesters? Professor Morrison said that in his view, the only issues the cease and
desist orders prohibit discussion about are tenure and salaries; other issues may touch on the terms and
conditions of employment, but they are mostly something else, not employment conditions. Everything
else should remain subject to consultation as usual. Unless someone files a lawsuit or makes a serious
objection, the consultative business should go on. Salaries will have to be dealt with in the spring, and
the biennial request is a negotiation with the legislature, not with the faculty.
Professor Adams next commented that the significant threat to academic freedom was having the
Board of Regents' tenure proposal on the table and subject to adoption in October. With the cease and
desist order, the proposal cannot be removed from the table, so there can be no change in the situation
that created the problem. With such an imminent threat in place, it is hard to see how the faculty will
NOT vote for unionization, he said. Professor Morrison observed again that the cease and desist order is
not self-enforcing; if the Regents remove their proposal from further consideration, which bargaining
agent is going to sue to have it put back on the table?
Discussion turned to FCC activity to publicize the message about the threats to academic freedom
at the University. It will be an attempt to articulate what has been endangered, and will be funded from
non-University sources, Professor Gray said.
Professor Adams maintained that while public relations are important, the internal message is as
Faculty Consultative Committee
September 16, 1996
7
important as the one to the external world. If the FCC position is not well clarified, the message could
appear to be that FCC supports unionization. The cost of better external relations is unionization, and he
said he did not know how to avoid that result. The probability of unionization seems high, so perhaps
there should be some discussion should be about the form it takes.
Other Committee members were less certain about the outcome. Professor Bloomfield contended
that the faculty will "win the war" only if the people of the state support the faculty, and they will do that
only if they believe the faculty "have their heads screwed on right."
Professor Gray inquired of Professor Morrison the votes required to elect collective bargaining; he
reported that it requires a majority of those casting votes in the election. If there are three choices, and
no one of the three receives a majority of votes, the one receiving the lowest number of votes is
eliminated and there is a run-off between the remaining two. That run-off could be between two
competing unions, or between a union and the "no union" option.
Professor Bland said the Committee would NOT be neutral if it aligns itself with the other selfappointed groups; Professor Adams agreed that the appearance would be one of support, if not carefully
explained. Professor Hobbie also agreed--but said the Board of Regents has given the faculty no choice.
There was no indication, at the Friday meeting with the three Regents, he said, that they were prepared to
pull their tenure proposal off the table.
5.
What Business Can be Conducted?
Professor Gray said she inferred, from the discussion, that the rest of the business of the Senate
could go forward unless there were objection. Professor Morrison agreed, and said that except for the
core terms and conditions of employment (tenure and salaries), the faculty should continue to meet with
the administration and hold meetings as scheduled. This includes dealing with the biennial request and
the component in the request for faculty salaries, he said, as well as such things as sexual harassment,
intellectual property, and so on. University business cannot come to a stop because of the order, he
pointed out.
In terms of the Tenure Subcommittee, during the last cease and desist order, it continued to deal
with interpretations of the code, but not with amendments.
Going ahead with business runs the risk of provoking a lot of charges of unfair labor practices,
Professor Adams said. That can be worked out with the coordinating group, Professor Morrison said; if
there are questions about a particular matter, FCC will have to decide if it wishes to pursue it despite
objections.
One point raised earlier in the day was whether there should be common legal advice to the four
faculty groups, Professor Bloomfield recalled. Professor Swan thought the comment about common
legal representation had been made in regard to groups interested in collective bargaining. Even FCC
could face litigation, Professor Bloomfield pointed out; who would be its lawyer? The General Counsel,
Professor Gray said.
Professor Feeney pointed out that other union groups could enter the fray, and it should not be
Faculty Consultative Committee
September 16, 1996
8
assumed that all of them will be friendly to the interests of FCC. That is unlikely, Professors Gray and
Morrison pointed out; any additional group seeking to represent the faculty would also have to obtain
cards from 30% of the faculty.
Professor Gray then thanked everyone for coming and adjourned the meeting at 5:30.
-- Gary Engstrand
University of Minnesota