Minutes*
Faculty Consultative Committee
Thursday, February 22, 1996
12:30 - 3:00
Dale Shephard Room, Campus Club
Present:
Carl Adams (chair), John Adams, Carole Bland, Dan Feeney, Virginia Gray, James
Gremmels, Roberta Humphreys, Laura Coffin Koch, Geoffrey Maruyama, Fred
Morrison, Harvey Peterson, Michael Steffes
Regrets:
Victor Bloomfield, Lester Drewes, Robert Jones
Absent:
none
Guests:
Josh Tilsen (Bureau of Mediation Services, State of Minnesota)
Others:
Maureen Smith (University Relations)
[In these minutes: Collective bargaining process; Professor Adams' participation in the University press
conference about the Dr. Najarian case; tenure; provostal governance; counting students for Senate
membership; graduate assistant tuition remission; the Graduate School]
1.
The Collective Bargaining Process
Professor Gray convened the meeting at 12:40, in Professor Adams' absence, and welcomed Josh
Tilsen from the Bureau of Mediation Services. Professor Adams, she explained, had asked Mr. Tilsen to
explain to the Committee the law governing collective bargaining so the Committee would know what to
expect, should collective bargaining come about.
Mr. Tilsen explained the certification process, which occurs after the Bureau receives a petition.
University faculty are public employees, so covered by the Public Employment Labor Relations Act.
There is a separate provision in the law covering the University; University faculty are one of 13
recognized bargaining groups, and it specifically includes professors, associate and assistant professors,
including research associates or instructor, and research fellow.
The Bureau must receive a petition from an "employee organization," a term that essentially
requires the organization to have a constitution and bylaws and have as at least part of its purpose
negotiating with the University over wages, hours, and the terms and conditions of employment. The
Bureau, he pointed out, has received no such petition from any employee organization.
For the Bureau to be authorized to act, it must receive the organization's constitution and bylaws,
*
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
February 22, 1996
2
a petition, and signed cards from 30% of the eligible employees. If they receive that, the Bureau asks the
University for a list of employees and tries to deal with disagreements about who is a member of the
bargaining group. There were, he recalled, lengthy hearings in 1973 on this subject; the law is now
clearer.
Once the question of which employees are included has been resolved, the Bureau conducts an
election. It could be a mail vote, with ballots sent to homes, or it could on-site. If 50% plus 1 individual
vote in favor of an organization to be the bargaining unit, that organization is then certified as the
exclusive representative.
The issue was in litigation for seven years, recalled one Committee member. The issue that led
to the litigation is no longer present, but things could arise nonetheless. One organization could obtain
the 30% signatures they need, and then another organization could also seek signatures; what then?
If the second group could show interest, by obtaining signatures from 10% of the eligible employees,
it would be on the ballot. Mr. Tilsen said. If, on the ballot, none of the groups get 50% plus 1 one vote,
there would be a run-off. He affirmed that the top two vote-getters would be on the ballot. The ballot
would say "I wish to be represented by ________," and the individual has the option of voting against all
of them. When the "no agent" option receives less than any of the competing employee organizations, it
is dropped off the ballot. Likewise, if "no agent" is in first or second place, and an employee
organization is in the other first or second slot, the run-off election would be between "no agent" and the
employee organization.
Asked how long it would take from the filing of the petition to the election, assuming no unusual
disputes, Mr. Tilsen said it could be as short as four weeks. If there must be a hearing, and if the findings
are appealed to the Court of Appeals, there is no guessing how long it would take.
One Committee member asked Mr. Tilsen to explain what can happen with working conditions
during the period between the petition and the election. The basic principle is that there can be no
change. When the petition is filed, the employer has the more powerful position; the Bureau issues a
maintenance of the status quo order: there can be no negotiations and no effort to influence people
through changes in employment. There is a boilerplate order, but the University in 1973 had a very long
order and it was disputed.
Can the faculty receive raises? Basically, no, Mr. Tilsen said. During the pendancy of the
petition, when it takes a long time, the Bureau has been asked by both the employer and the employees to
make changes that both agree on; this happens when relations are civil and things have been previously
scheduled. There cannot be changes in working conditions.
The situation of the faculty is a little different, it was said. In late spring, the University decides
on a salary increase, all based on merit, and there are no steps or scheduled increases. If both faculty and
the administration agreed, one Committee member inquired, could that practice continue? It would be
very complicated, Mr. Tilsen said. The ones who would have to agree would be the administration and
the employee organization--it is that group the administration would worry about, because it is that group
that would sue for a violation of the law.
Faculty Consultative Committee
February 22, 1996
3
There have been discussions about changing the tenure code, pointed out one Committee
member; once the maintenance of the status quo order has been issued, would those discussions have to
stop? Mr. Tilsen said his advice to the University would be that it should be very cautious about what it
did. He generally tells employers to be very careful during this period; the maintenance order halts most
negotiations, unless there is a very amicable relationship between the petitioning organization and the
employer. This would not be a problem if the process took four weeks, observed one Committee
member, but if it took seven years. . . .
Another Committee member, who had been through the process before, estimated that the
process this time would take about three months, and probably not longer. Mr. Tilsen agreed; he said
that is about typical for a large employer.
If there are multiple parties seeking to be selected as the bargaining agent, must all agree to any
changes (such as salary increases)? They must, Mr. Tilsen affirmed. Any group can throw a monkey
wrench into the process.
Mr. Tilsen then noted that some groups at the University have the right to sever themselves from
the process; the Law School faculty, the health sciences faculty. The Law School faculty assumes that
they HAVE severed themselves, by virtue of turning in cards in the last process and voting for no agent.
Mr. Tilsen agreed to find out if that is the correct interpretation of the statute. The coordinate campuses
are also not included in the bargaining unit; they are their own unit. [Mr. Tilsen subsequently determined
that the Law School faculty have severed themselves; he has been unable to determine the status of the
health science faculty.]
After the seven years the process took last time, the legislature changed the law so that would not
happen again, commented one Committee member. There can still be arguments about department chairs
and so on, but the process should not take as long. The hearing for MNSCU took about six months, Mr.
Tilsen reported, but if the parties agree they want to get the process over with, the election can be held
and the disagreements about inclusion and exclusion settled later.
This Committee, observed one Committee member, is a creature of the structure and has no
separate legal standing; it is in the Senate constitution, which has been adopted by the Board of Regents,
and is part of the management structure. But it could be eliminated. What if the Committee said it
wanted to be the faculty governance union and collect cards? But it would be a union in favor of the
existing governance structure, in favor of the status quo. The administration would probably support the
Committee. Is that permitted?
The management cannot control a union, Mr. Tilsen said. Any group of employees can be a
labor organization, if they have the constitution and bylaws and as their purpose the representation of
employees on wages, hours, and terms and conditions of employment. There would be nothing to stop
the Committee from doing so. Other employee groups, however, could claim the Committee is a
management-dominated union; the courts could end up having to rule on that claim.
Mr. Tilsen said he could not answer the question of what criteria would be applied and whether
or not the Committee would prevail. Those are very complex and fact-specific determinations. But it
would be another union that would bring the claim that the Committee union was employer-dominated,
Faculty Consultative Committee
February 22, 1996
4
confirmed one Committee member; Mr. Tilsen agreed. The Bureau would be asked to make a
determination, if it was charged that such a union won the election. He said he would have to do
research to determine the criteria they would use in reaching a conclusion.
Another Committee member pointed out that the Committee staff would have to leave the
meeting, that each Committee member would be acting in an individual capacity, and that they could not
use University facilities if they were an employee union. Only then would it be an independent employee
organization. Mr. Tilsen reported that the Interfaculty Organization and the Faculty Senate in MNSCU
are very close, and that the union has staff paid for by the system.
One Committee member said that Duluth union dues for faculty are $65; how are they assessed
and what of non-members? It is up to the employee organization to determine to establish and collect
dues; they can do it any way they wish, Mr. Tilsen said. No one can be forced to become a member of
the organization, but they can be forced to pay a "fair share" of the dues, set by the Bureau at 85% of
dues. The process, he said, is COLLECTIVE BARGAINING--there is only one organization that can
negotiate over wages, hours, and terms and conditions of employment. Not only that, the organization
has an OBLIGATION to negotiate on these issues, and if it does not, it is in breach of a legal obligation.
So the cost of the negotiations, accrued by the representative, can be assessed to all, whether or not they
are members of the union.
If an employee group obtained signatures from 30% of eligible employees, is the Senate structure
defunct? Is it a creature of management? Could there be any interaction between the Senate and the
administration on anything that could be a concern of collective bargaining, which would be something
only the employee organization could deal with? Mr. Tilsen said he did not know, but pointed out that
there is much law in this country on higher education; the Committee could do research and find out.
One Committee member inquired what happened in 1973. There was an election later, people
voted, and one option was no representative. [A significant majority voted for no representative, so there
was no union.]
Another Committee member recalled that the petition in 1973 was caused by salary and tenure
concerns. A petition was filed by the UMFT, and then a cross-petition was filed by the AAUP, and
another by the MEA. Hearings took over two months, with 23 days of testimony, 2500 pages of
transcripts, and several hundred exhibits; the Bureau took over a year to make a decision. It was
appealed and the Bureau was reversed, and the University appealed the result in court; that also took a
year. That was on the nature of the unit; there was another round of hearings on department heads, with
a lot arguments and individual hearings. Elections took place during 1977-78; a substantial majority-over 60%--voted for no union.
During the period 1973-78, there was agreement that certain things in the ordinary course of
business were not prohibited, such as salary increases, but the activities had to be approved by all parties
and their lawyers. It was agreed that past practices would be continued.
What became of the Senate structure, asked another Committee member? It continued to advise
on educational questions; meetings of the Faculty Senate were suspended, and there were no longer any
discussions of changes to the tenure code or terms and conditions of employment. Consultation on
Faculty Consultative Committee
February 22, 1996
5
administrative matters was allowed, and there were problems in the terms and conditions of employment
that had to be dealt with--and all agreed they would be dealt with, but things were slowed down.
With changes in administrative alignments, there may still be questions about membership in the
bargaining unit, it was said. Those could be litigated, if need be.
Professor Adams thanked Mr. Tilsen for coming to the University and meeting with the
Committee.
2.
Representation of the Committee
Committee members then had a lengthy discussion of the role Professor Adams played in the
University press conference held in response to the outcome of the trial of Dr. Najarian. Concerns were
expressed about the appropriateness of Professor Adams' statement, the extent to which he represented
the Committee and faculty, and the perception created when he joined the President and Regent Neel at
the press conference. There is a need to heal and to bring the University together again, it was asserted,
and to avoid recriminations about who is to blame for past mistakes. The central administration seems
unable to recognize its role in the current problems.
Professor Adams related the timing of the events and explained that he had very short notice of
the press conference, and that when asked, he felt it important to present a faculty reaction. There was
debate about whether the University should take a position in response to the trial outcome, in order to
make clear the University's position. He tried to consult with a number of faculty about what he would
say, and his remarks were entirely his own. He emphasized that he was not controlled or instructed by
the administration in any way, and that he constructed a very narrow position: he predicated his remarks
only on the findings of faculty groups, preparation of which observed the requirements of due process, or
on what was admitted in court. He made no comments on the federal allegations and made no attempt to
second-guess the judge or jury in the case.
Professor Adams said he believed it important that the public know the faculty believe the
University acted appropriately and unequivocally on matters that were different from the federal
allegations. He said the impression should not be created, in the minds of people outside the University,
that the University will not take action on such activities now or in the future.
Professor Adams said he understood the concern that there was organizational malfeasance as
well as individual malfeasance in this matter, but said he based his comments only on documents
prepared with due process that reached conclusions. He also recalled that the Senate had adopted a
resolution supporting the administration's handling of the Najarian case. He noted that he is a
severe--but, it is hoped, constructive--critic of the administration and he does not say it should be
absolved of responsibility in this matter. But his purpose in being present at the press conference was to
present a faculty view and to emphasize that there had been reasoned, sensitive processes followed
internally.
Several observations were made by members of the Committee.
--
Any faculty member with NIH funding is in a situation perilously close to that of Dr. Najarian in
Faculty Consultative Committee
February 22, 1996
6
some ways; the University provides inadequate support for researchers and inadequate
management tools for grants. This should be seen as an opportunity to convey to the
administration the clear message that the organizational processes are not good.
--
There were internal and external messages from with the press conference. The internal message
may have been that Professor Adams is too close to the administration; the external message was
that the University is not blameless and wants to clean things up before this happens again.
--
A quote in a newspaper article represented the view of many faculty researchers; the individual
asked if any faculty member could have confidence the University would support them if NIH
came knocking, when they think they have done nothing wrong. The impression given is that no
matter how good a citizen one is, and no matter how much money one has brought in, the
University would not support him or her. It is unfortunate the legislature and administration used
this case to point the finger at faculty as the problem, instead of at flawed administrative
processes. The faculty are not the problem and are not the enemy.
--
For faculty to credibly defend faculty when no wrong has been committed, they must also be
willing to admit, through a process of judgment by peers, that errors have been made.
--
There are two problems. One is that credibility must be restored and a sense of trust re-created.
A second is that the reaction to the trial was largely finger-pointing and handwashing, saying the
University was not to blame. But there are horrendous administrative problems that are not
being addressed, and this Committee must say so. Instead of saying this was an isolated incident
that was taken care of, it has to be admitted that the systems are lousy.
--
This is similar to what one tells one's children about their behavior: they must be above-board all
the time, so that if they are accused wrongly, someone will come to their rescue. There were
reports internally that clearly demonstrated a violation of University rules and research
misconduct; one has a hard time being sympathetic. This is different from the University coming
to the defense of a researcher who has done no wrong. But there is no question the University's
infrastructure must be fixed.
--
The concern at the press conference was the external message; several Committee members have
spent much time at the legislature over the last few days dealing with issues associated with
tenure; there was VERY GREAT concern about these issues.
--
(1) Professor Adams could have said he was speaking for himself; he was the appropriate person
to speak, but might not leave the impression he was speaking for his constituents. (2) His taking
action as he did gave them MORE of a role; to claim he was not representing them would be
disempowering them. (3) Sometimes the chair has no opportunity to consult, and there are times
when his instincts must be trusted. (4) One Committee member was called at 10:00 at night
about providing legislative testimony the next morning, and never even thought about calling the
Committee for permission to speak.
--
The question of who officially speaks for the faculty is an important one; Committee members
were confronted with it at the legislature. It was made clear who had what authority to speak,
Faculty Consultative Committee
February 22, 1996
7
and it was the chair and vice-chair of this Committee. In a representative government, it must be
known who speaks with authority. Professor Adams is chair, until recalled, and must do what he
believes represents the faculty.
--
The administration asked Professor Adams to participate; he did this time, but the Committee
must insist the administration deliver on changes that are needed. Expectations have been
created in the legislature.
--
It may not be desirable to connect the infrastructure issue with the Najarian case. Resolving the
infrastructure issues is a MAJOR undertaking, and much more sophisticated. The administration
will say it is spending millions of dollars on infrastructure improvements; the Committee is
saying it is not confident how that money is being spent. That is a deeper issue. The Committee
on Finance and Planning has sent a letter to Senior Vice President Jackson requesting, by March
12, a report on the time schedule and deliverables for infrastructure improvements. If it does not
receive a report, it will return to this Committee for guidance.
--
What must be communicated is that there is unrest on the Committee on behalf of people with
research grants; to say that Dr. Najarian is an outlier does not represent faculty sentiment. The
faculty want to see changes so they are not put in a similar position.
--
There has been no creative discussion about how to get leverage over Finance and Operations.
There is a long history of vice presidents in that office who get worn out, while the bureaucracy
plods along. The President can lean on the vice president, or fire him or her, but generally the
question is not one of firing but of getting the job done.
There is a tendency to bring people in from outside; academics don't know about all that goes on
in Finance and Operations. There is a problem in that the people in the office do not know much
about the institution, and turn over fast so they do not GET to know about it, and are not in a
strong position; they can become creatures of the bureaucracy, run by the people who report to
them. And not many faculty have the time or inclination to develop a sense of what is going on
in finances, so there are few faculty voices heard in the area.
They also tend to be eaten up by immediate crises, and this is especially true of the President, the
two senior vice presidents; the University has never had any serious forward financial planning
or a serious effort at restructuring and reorganization. It has always been a question of getting
the payroll out next week.
Most faculty, moreover, could not turn their back on their career as a faculty member for the 5-10
years it would take to learn finance and operations. It is an awful job. There is a need to stop
dealing with brushfires and attend to the long term. When the Committee asks the senior officers
what's on their mind, it's the brushfires. The Committee needs to tell the officers what it wants to
hear about; consultation is taking all the time and governance is getting no attention.
It was agreed that the Committee should begin seriously pressing for a long-term view, for
infrastructure culpability regarding the past and capability in the future, that the Finance and Planning
Committee should take the lead, and that the concern of researchers that they are being abandoned must
Faculty Consultative Committee
February 22, 1996
8
be addressed.
3.
Tenure
Professors Adams, Gray, and Adams reported on their testimony before and discussions with
legislators and the evolution of the legislative proposals regarding tenure. Professor Gray distributed
copies of proposed legislation that has been revised so that there is no longer a link between the
University's appropriation and the tenure regulations. Committee members discussed the issues
confronting the University, legislative perceptions and interests, and possible actions that could be or
could have been taken.
4.
Provostal Governance
Professor Adams next asked that the Faculty Assembly Steering Committee approve the creation
of provostal faculty consultative committees (PFCCs) as subcommittees of this Committee, exactly along
the lines proposed in the Senate bylaw amendment that failed because of a lack of a quorum (although
had overwhelming support). This Committee will authorize the creation of the PFCCs without change to
the bylaws and will request the administration to observe them as the legitimate consultative structure.
The Steering Committee unanimously approved Professor Adams' request.
5.
Counting Students for Senate Membership
Professor Adams informed the Committee that for the last several years, the method of counting
students for determining the number of student members of the Senate has been at variance with the
provisions of the Senate constitution (the process being used now creates more student Senate seats than
does the process called for in the Senate constitution). The Senate Consultative Committee voted, about
two years ago, to continue using the illegal method for one more year, until a review of the governance
system was conducted. The review never occurred; the question, Professor Adams said, is whether to
continue to use the illegal method. He asked for advice. Election materials were to go out the next day,
and he must decide which counting procedure will be used.
One problem with continuing to observe the illegal procedure is that it creates quorum problems
for the Senate and Twin Cities Campus Assembly.
The question is, will the Senate follow its own rules? Why have rules at all? To follow the rules
sets the tone that they will be followed.
After a few additional comments, Professor Adams said he would take the advice into
consideration.
6.
Graduate Assistant Tuition Remission
Professor Morrison said he wished to call to the attention of the Committee a revised proposal
from Vice President Brenner for dealing with the problem of graduate assistant tuition remission. The
proposal now creates two classes of graduate students: those who have not completed their prelims plus
Faculty Consultative Committee
February 22, 1996
9
the year of thesis credits (whose fringe benefit rate will be 61.9%) and those who are continuous
registration only, post-prelims and thesis credits (whose rate will be 19%). This division produces the
same overall revenue and University rate. The Finance and Planning Committee did not have time to
discuss this proposal and take a position on it.
This will push advisors to press students to get their prelims done.
The proposal will put at a disadvantage those departments where there is no prelim and
dissertation, such as professional masters' degree programs, and give an advantage to departments that
have a lot of students working on their dissertations.
In some cases, students may be put entirely on fellowships and include tuition stipends to avoid
the overhead charge. The work they do could be made part of their instructional program, and something
upon which they would be graded.
This proposal will also harm departments who provide the most money to students whom they
recruit heavily--the most nationally competitive departments--and will advantage departments who take
anyone who comes.
It was suggested that Vice President Brenner be asked to join FCC on the 29th for five minutes to
explain the proposal as modified since FCC last saw it.
Why is it people are so upset about this, asked one Committee member? These are real costs,
and must be paid. Is the argument that they should not be paid? What is the point? This is an example of
the fact that large parts of the University believe someone else should pay. When costs are assessed
correctly, the person who generates the charge must generate the revenue, and then people begin to
realize what is important and what is costly. There has been a hidden subsidy on this issue.
Vice President Brenner raised the question of whether this split in graduate assistant
classification should be made, Professor Morrison reported; one has not heard good justification for it.
The second question, the answer to which cannot be implemented next year, is whether or not to do this
by a percentage at all. Why not charge the employer the tuition charges of its graduate assistants? It
would involve a lot of bookkeeping, and departments could be charged on an average basis, because none
would know exactly the number of credits its students would take.
A problem is that many departments are not well managed and could not handle this for the long
term.
7.
The Graduate School
One Committee member said a faculty member has asked if FCC has taken a position on the
future of the Graduate School. It has not, Professor Adams said; there is a committee in place to review
the Graduate School, and he believed its composition has been changed to include faculty. Professor
Adams said he would check on its status. Professor Koch reported that the Committee on Educational
Policy is tracking the work of the Committee.
Faculty Consultative Committee
February 22, 1996
10
There is a diversity of opinion about the Graduate School, one Committee member noted; FCC
needs to find out where the official activity stands, and take a position based on those findings, rather
than inserting itself into the process inappropriately.
Professor Adams then adjourned the meeting at 3:00.
-- Gary Engstrand
University of Minnesota