~e~i'1P·. Tw••1~Jlopl"t- Annl•IC~nfer~nee A:i.Fl;l~ DOUCLAS,IJ. WilJtl, llir:.tor: . BJ!Tll ~~l\IANlti!IN~N, B()itor IDGllER EDUCATION COLLECTIVE BARGAINING: BACK TO "CB" BASICS Proceedings Twenty-Fourth Annual Conference April 1996 DOUGLAS H. WIDTE, Director BETH HILLMAN JOHNSON, Editor National Center for the Study of Collective Bargaining in Higher Education and the Professions School of Public Affairs, Baruch College, The City University of New York Copyright© 1996 in U. S. A. By the National Center for the Study of Collective Bargaining in Higher Education and the Professions Baruch College, City University of New York All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of the publisher. Price: $45.00 ISSN 0742-3667 ISBN 0911259-34-1 TABLE OF CONTENTS. INTRODUCTION .................................................................................. vii Beth Hillman Johnson I. LEADERS SPEAK OUT ON HIGHER EDUCATION COLLECTIVE BARGAINING A. HIGHER EDUCATION COLLECTIVE BARGAINING: ISSUES FOR THE 21ST CENTURY ........................................... 3 Stephen Joel Trachtenberg B. HIGHER EDUCATION UNIONS IN A TIME OF CHANGE: COLLECTIVE BARGAINING AND AFFIRMATIVE ACTION .......................................................... 10 Terry Jones C. RECENT TRENDS IN COLLECTIVE BARGAINING IN CANADA ............................................................................... 18 Donald C. Savage D. REFLECTIONS UPON 25 YEARS OF FACULTY UNIONISM ................................................................................ 25 Arnold Cantor II. ARBITRATION AND GRIEVANCE PREPARATION A. COMPULSORY ARBITRATION OF DISCRIMINATION CLAIMS UNDER COLLECTIVE BARGAINING AGREEMENTS .......................................................................... 35 Nicholas DiGiovanni, Jr. B. ARBITRATION INFACUL TY HIGHER EDUCATION ............ 49 Nicholas Russo C. GRIEVANCE PREPARATION FROM THE UNION PERSPECTIVE ........................................................................... 58 C.J. Elder D. GRIEVANCE PREPARATION: A MANAGEMENT PERSPECTIVE . ... .. .. .. .. .. ... ... .. .. ... ... ... .. .... ... .. .. ..... .. .. .. .. .. .. 72 Esther Liebert III. FACUL TY COLLECTIVE BARGAINING AT TWO-YEAR INSTITUTIONS A. A UNION VIEW OF FACULTY COLLECTIVE BARGAINING AT THE TWO-YEAR INSTITUTION ............... 79 James Rice B. A PRESIDENT SPEAKS ON FACULTY COLLECTIVE BARGAINING AT THE TWO-YEAR ........................................ 86 Salvatore G. Rotella IV. FACULTY COLLECTIVE BARGAINING AT PRIVATE INSTITUTIONS A. BARGAINING UNDER THE SHADOW OF YESHIVA AT HOFSTRA UNIVERSITY ...................................................... 95 Estelle S. Gellman B. FACULTY COLLECTIVE BARGAINING AT ADELPHI UNIVERSITY .............................................................. 101 Stephen Goldberg C. A GENUINE SYSTEM OF COLLEGIALITY WOULD TEND TO CONFOUND US .......................................................... 112 George Sutton V. EMPLOYEE ISSUES A. STAFF COLLECTIVE BARGAINING IN THE CALIFORNIA STATE UNIVERSITY: ENDING THE CYCLE OF NON-STOP BARGAINING .......................................................... 119 Samuel A. Strafaci B. STAFF BARGAINING IN HIGHER EDUCATION ..................... 127 Brenda Richardson Malone C. PARTICIPATION IN DECISION-MAKING IN HIGHER EDUCATION: OXYMORON OR OPPORTUNITY? .................. 131 Walter J. Gershenfeld VI. ANNUAL LEGAL UPDATE A. THE MANAGEMENT PERSPECTIVE ........................................ 143 Ira Michael Shepard B. THE UNION PERSPECTIVE ..................................................... 154 David J. Strom and Stephanie Baxter INTRODUCTION INTRODUCTION The Twenty-Fourth Annual Conference of the National Center, Higher Education Collective Bargaining: Back to "CB" Basics, was a review of the fundamentals in this field. It was felt that after a number of years of focusing on specific topics, that a reexamination of central issues was in order. Areas discussed include arbitration, grievance preparation, and the collective bargaining process. These and other subjects were presented in the context of public and private four­ year institutions and community colleges. In addition to the main theme of the conference, we always endeavor to present issues of current interest to practitioners and scholars in the field of higher education collective bargaining. Included this year were discussions of diversity, technology, staff bargaining, and faculty and staff participation in employee involvement schemes. Our annual legal update by labor attorneys representing management and union perspectives gave us an analysis of cases in the past year effecting those involved in collective bargaining in higher education. LEADERS SPEAK OUT ON COLLECTIVE BARGAINING IN HIGHER EDUCATION Stephen Trachtenberg, President of George Washington University, questions the validity of collective bargaining as a modality for the higher education community in the 21st century. Rather than its complete abolition, he suggests a substantial redefinition. Negative public opinion toward higher education and more limited public funding may force faculty to reassess the current structure of tenure and to develop a more precise measurement of their productivity. Trachtenberg also explores the effect of distance learning on the academy. Terry Jones, President of the California Faculty Association, asserts that affirmative action, unions and collective bargaining are under attack throughout the United States in the courts and in some state legislatures. He discusses these in the context of higher education collective bargaining by: 1. identifying the players and their motives; 2. demonstrating the link between unions and affirmative action; 3. explaining affirmative action as a union issue; and, 4. looking at automation, computers, and the decline of jobs. Jones talks of sexism and racism, especially in terms of moves to eliminate affirmative action programs. Jones states that the combined efforts of civil rights organizations and unions brought in affirmative action and its inherent sense of fairness. Unions have always been concerned with social, political, and educational matters, as well as collective bargaining. He thinks that unions should continue to support affirmative action and to encourage diversity and multiculturalism. Arnold Cantor, the recently retired Executive Director of the Professional Staff Congress, draws on his forty years of experience with teachers' unions to give helpful advice to practitioners of higher education collective bargaining. He says vii that people of integrity are needed in both the union and management. One needs to understand how to be a leader in a high profile arena, exhibit a willingness to take risks, possess a knowledge of the field, and have a high degree of sensitivity to other people. Both union and management must have a genuine concern for the higher education enterprise. Cantor goes on to outline what he would like to see in the future. He would like AFT and NEA to become one organization with a close cooperation between this new organization and the AAUP. He would like to see enabling legislation adopted by the remaining states to open the door to higher education collective bargaining. Promotion, within public perception, of the value of higher education in the United States must be done to assure adequate and well deserved funding of the academy. Donald Savage, Executive Director of the Canadian Association of University Teachers, compared and contrasted higher education collective bargaining in the United States and Canada. Savage went on to speak of dramatic changes in collective bargaining in Canada during the past year due to drastic financial cuts at both the federal and provincial levels. He posits that as the first surge of collective bargaining came in the 1970's in response to a change from a sellers to a buyers market, so a similar rush to certification may be caused by current economic problems. Administrators are trying to weaken provisions in bargaining agreements. Some have even suggested that they be able to lay off faculty without declaring financial exigency, amounting, in effect, to the abolition of tenure. Savages goes on to present examples from several institutions, of conflicts between university administrations and their faculty bargaining associations. ARBITRATION AND GRIEVANCE PREPARATION Nicholas DiGiovanni, Jr., a labor lawyer with Morgan, Brown and Joy in Boston, presented a number of court cases showing the relationship between statutory rights and arbitration in discrimination cases. The cases concern the circumstances under which a party may be subject to arbitration and when he can bring his case to court. He also discussed cases in which a plaintiff could bring judicial action after exhausting the arbitration process. In some but not all cases, if a plaintiff seeks redress in a judicial action without exhausting his grievance rights under a union contract, summary judgment was granted by the courts. DiGiovanni discusses cases in which individual employees, not represented by a union and those under collective bargaining agreements may be forced to submit to binding arbitration and those in which they may choose a judicial forum. Both employer and employee should consider the benefits of court litigation with the full range of judicial process and review, or the more cost-effective