As I detail below, three items remain in dispute, which has lead to an unresolved bargaining situation.  COHE was and is willing to continue to negotiate on these items; the BOR negotiators were not. In our view, they prematurely declared an impasse (either side can declare one), which ended the formal bargaining phase.

 

As provided in South Dakota law, COHE requested conciliation.   This conciliation session with a trained mediator from the Department of Labor was held on 19 August 2011 in Chamberlain, SD. This session was unproductive because the BOR negotiators were unwilling to discuss any unresolved items unless we could ensure them that all would be resolved that day. As you will see below, we are not willing to give on Intellectual Property.

 

Where does this leave us for a current contract? Our current contract remains the three-year agreement that was supposed to end on 30 June 2011. This document is still available on the BOR's web site and I provide a copy here.  COHE members, this is the printed copy that was provided to you after the adoption of that contract three years ago; it has a light blue cover.  This contract continues in force until the BOR imposes a new agreement.

 

COHE has requested a Fact Finding Hearing before a Department of Labor Administrative Law Judge, which has been scheduled for 28 October, 2011, 1:00 p.m. at the Kneip Building in Pierre, SD.   Sometime after the hearing, the judge issues a non-binding recommendation to the agency.  The agency is free to ignore this recommendation, but must then impose their "last best offer" as a one-year contract, which would expire on 30 June 2012. This imposed contract must include all of the items to which we tentatively agreed, including those reached as a result of trades.  So, I have (and will) continue to explain those provisions.

 

Thus, immediately after the BOR imposes a new contract, we will launch into a new round of bargaining negotiations, which I suspect will revolve around some of the same disputed items from this round.  Further, I expect the state COHE Board will seek out new proposals from members and non-members.  We will probably survey COHE members and non-COHE faculty to rate these potential proposals, similar to last year.I imagine we will begin negotiating again sometime in early 2012.

 

If, as we anticipate, the BOR imposes the removal of Intellectual Property (IP) as a bargainable item, COHE will have the option to take this issue to state District Court.  The state COHE Board has indicated a strong desire to challenge this issue in court, because we contend they did not bargain this item in good faith. I would not expect a date for our case on the court's docket before summer 2012.  

 

And, of course, whichever side lost would have the right/opportunity to appeal it to the South Dakota Supreme Court, which would probably add another year to the process. So, the "best case scenario" is that the issue of whether IP is a bargainable working condition would be resolved about two years from now.  Meanwhile, we would continue to negotiate other important items and issues while IP was held in abeyance for the court proceedings.

 

Our highest priority and biggest loss in bargaining was a cost of living allowance.  Virtually every respondent to both surveys (COHE members and non-members) strongly agreed with our proposal to return to a cost of living allowance before the performance formula supplemented it.  The state COHE Board unanimously selected it as our top priority. 

 

Unfortunately, we ran into a brick wall.  State statute specifically prohibits faculty, and only faculty, from earning an across-the-board salary increase.  We knew this going in, but hoped to convince BOR negotiators differently. 

 

We all need to take our share of blame on this issue.  How can we let policy makers separate faculty from every other employee in the state?  Every other employee, public or private, may earn an inflationary adjustment, except faculty!!!  Why are we letting them get away this?   

 

I include myself in this condemnation.  We need to bring this issue forward to our legislators, the governor and his staff, and the media.  Why aren't the administration, students, and others vocal on this issue?  Why haven't we pushed SDEA to make this our number one lobbying/legislative priority?

 

We can't just shrug and move on!  Whatever scrap of a salary increase we may see next year, we will have to then fight over amongst ourselves.   We cannot let this go on.

 

As I indicate above, we have three items in dispute.They are fully detailed in COHE's letter to the Conciliator and the BOR's Notice of Declaration of Impasse.  I summarize them here. In sum, we disagree on (1) nonrenewal provisions, especially for RIF-ed tenured faculty, (2) separation of librarians from the professoriate, and (3) the removal of IP as a bargainable working condition.

 

First, in cases where tenured faculty are terminated through reduction in force procedures, we are asking they be offered a one year term contract.  Otherwise, as happened at SDSU this year, a tenured faculty member could be notified in May that they will no longer be employed as of the end of their contract, May 21.   We never got a chance to make our arguments on this issue before the BOR prematurely declared an impasse.

 

Second, on separation of librarians, a host of concerns exist. We argue that since we have agreed to the separation of the professoriate and lecturers, administrators can accommodate their primary goal of choosing to hire librarians on or off a tenure track line.  As they can currently, the agreed-upon separation of professoriate from lecturers allow them hire new librarians on an annual term contract, rather than a tenure-track line. 

 

Moreover, they want to more narrowly define librarian research to "applied" applications.  Further, they want to use subjective measures/indicators like collegiality to evaluate the performance of librarians.  We refuse to accede to any of these latter demands. 

 

COHE has moved much closer to their position on separation of librarians in our last proposal; and they have budged only at the margins from their original proposal.

 

On intellectual property, they claim a legal right to remove it as a working condition. Their legal claim rests on a single court case from New Jersey, which asserts that the rules about property produced by public employees must be subject to authorities accountable to the public. Thus, it is not a bargainable item, except on the division of royalties.   

 

We reject their legal arguments and suggest that deadlines and decisions on disclosure of IP inventions directly affect faculty performance evaluations. Hence, it is a working condition and bargainable.  Further, they have not bargained this issue in good faith, because they have not budged from their original proposal.  Indeed, the entirety of their statements was about their legal case.  They dismissed our concerns as lack of campus resources or for other reasons.  The state COHE Board is unified in opposing the removal of IP as a bargainable item.

 

While it is impossible to summarize all of the changes to which we have tentatively agreed, I discuss significant changes here.  ("Tentatively agreed" means that both sides have agreed to this language and we are obligated to sell it to our principals, the COHE membership and the Board of Regents, respectively.)  Our two biggest victories are on performance averaging and eight percent pay for overload self-support courses. We also cleaned up the language on paid consulting provisions and revised the grievance procedures. Also, to get the eight percent we agreed to a twelve month payout with protections for faculty. 

 

 

PERFORMANCE AVERAGING 

 

First, through careful maneuvering, COHE negotiators changed the annual evaluation process in a fundamental way to average individual ratings over a three-year period. This change would not occur without COHE's actions.  At two BOR meetings over the last year, several Regents and administrators expressed concerns that their salary increase formula had a flaw (my word).

 

That is, when we did get new salary monies ("salary policy" in their words), it would not reward those who were productive in the last three years of zero salary policy. By the way, COHE pointed out this flaw when they imposed the salary formula on us years ago and they ignored us.

 

In any case, the Board indicated it would bring forward a proposal to COHE during the next bargaining round.  However, COHE negotiators noticed its absence in the BOR proposals.  Twice, we asked the BOR negotiators whether this proposal would appear.  They responded affirmatively and in response to our prodding finally brought forward a proposal that "reset" the system. That is, in the first year there was a salary increase (at whatever level, 0.5%, 3%, 5%), it would average all performance indicators for years in which we did not get a salary increase and assign that salary increase.  Then, they would assume everyone was brought back to par and they would continue to the annual performance-based salary increases. 

 

We asked if they thought that we would get regular salary increases like we saw in prior years.  They agreed that salary increases over the next few years are likely to be highly volatile, with some years at 1% and other years approaching 3%.  We asked how they thought this affected their salary formula and whether it incentivized faculty appropriately.  

 

They responded with a modified proposal to have a floor, at 2%, when the averaging would kick in.  That is, if salary policy fell below 2%, in the year it exceeded this figure, we would average performances over that period. We asked why did we need a floor.  They responded that perhaps we should just average the last three years.  We agreed!!!

 

I relate this extended discussion of negotiations to demonstrate that without COHE, this proposal would not even have arrived in the contract.  Moreover, averaging would have been a one-time reset.  Without COHE's work, a faculty member who substantially exceeded expectations in one year (say, a large grant, a prestigious publication, a teaching award, etc.) would be subject to the vagaries of the legislative process, when salary increases might be low.  Instead, our performance measures are now averaged over the past three years.  This moving average moderates the volatility of salary increases, rewarding faculty for their work over time, which more accurately reflects the nature of academic work as compared to the artificial annual timeframe.

 

 

EIGHT PERCENT OVERLOAD ON SELF-SUPPORT COURSES

 

Turning to the second issue, beginning 1 July 2012, we can expect to earn eight percent of our annual salary on self-support courses for a three-credit course. These are not state-support courses, which offer a lower tuition, but courses paid for entirely by student tuition and fee dollars.  This has been free money to the universities and faculty doing the work deserve a larger share.  Some programs and departments have enjoyed a large infusion of additional monies from this source. 

 

COHE argues that overload should return to 10% because a three-credit course is one-tenth of our normal workload.  (Some faculty think this figure should be much higher, say 12.5% or more, because it is overtime pay.  That is not likely to happen, sorry.) 

    

The BOR negotiators disagreed with 10% for reasons we have yet to understand.  However, at the end of the bargaining round, we saw room to move this figure to 9%. We are likely to bring this item forward in future rounds.   

 

Please note, they are not obligated to pay eight percent for any course that ends earlier than 30 June 2012.   So, intensive summer courses in May and June would not qualify for this additional one percent!

 

Also, on at least one campus, an administrator telling faculty administration was giving us this eight percent, because they felt bad that we have not had a pay increase for several years.   I am sorry, this is bull****!   

 

Increased overload pay was brought forward by COHE, not the BOR or any administrators!  Moreover, they did not do it out of the kindness of their heart, but as part of a trade.  Further, they were not willing to move to 9%.  If they truly cared about our overload pay, they would move it back to 10% where it was years ago! 

 

 

TWELVE MONTH PAYOUT 

 

The COHE Board decided to trade this issue for the eight percent above.  We were convinced they thought they needed this and would impose it, so we traded to get something for faculty.  In my view, they are convinced that staff spend too much time reconciling books to pay benefits to the Bureau of Personnel (BOP).   

 

The problem for them is that BOP will only accept monthly payments for benefits.  So, BOR staffers (at least three on each campus, in human resources, payroll, and finance) must ensure that sufficient funds are removed from the nine paychecks for nine-month faculty to cover their summer months benefits payments.  Since benefits change with family situations (births, spousal job changes, etc.), they must audit each nine-month faculty's withholding monthly.  For the month they showed us SDSU figures, the variance was $130,000, some over-collected from faculty, some under-collected.  So, in the succeeding paychecks, they must amend the amount due to each faculty member.  In my estimation, the BOR system uses the equivalent of two to three full-time employees to do this work.

 

In exchange for the eight percent solution above, we agreed to accept a mandatory twelve-month payout for all faculty, regardless of whether they are 9, 10, or 11-month employees, with these protections:

1. A clear statement in the contract to supervisors, that although we are paid over a twelve month period, our contractual period remains nine months (unless modified individually).  Any work we do outside the contract period (namely, August 22 to May 21) must be compensated appropriately.
2. Any monies earned in the summer (e.g., from grants, summer school, or other summer work paid for by the universities or an outside agency) must be paid during the summer.
3. Delayed implementation until 1 July 2012.
4. Faculty who are near retire may opt to remain on nine-month payout.  That is, those who reach the rule of 85 during the proposed three-year term of contract must notify HR they want to remain on nine-month payout.

 

PAID CONSULTING 

 

The new tentatively agreed language rewrites the previous consulting provisions and develops three concepts to guide decisions on whether faculty must seek approval for outside work. The language and concepts recognize that faculty are hired by the state to do a particular job because of their expertise.  It protects the state from faculty who seek to use those skills to make money outside their state job.  It requires faculty to seek approval for outside work under certain circumstances.

 

First, only paid consulting work must be submitted for approval.   In the past, several faculty, including myself, were required to seek approval for volunteer work we did in the community related to the skills/expertise we were hired to use.  This is no longer the case. Unpaid work does not need university approval.

 

Second, "conflict of time" and "conflict of commitment" are implicit concepts in the new language.  Faculty are free to pursue any paid opportunities without a conflict of commitment outside the contract period.  So, faculty do not need approval to get paid for work during the summer, winter and other breaks, and weekends, as long as the work does not take place during normal business hours AND it does not involved skills and expertise for which they were hired to do by the state.   (So, you can go seek that job at Walmart that you have always dreamed of.) 

 

This latter concept is the conflict of commitment.  Anytime a faculty member is approached to do work substantially related to the work for which they are hired, regardless of when the work will take place, must seek approval from the university.  In COHE's view, this rightly protects the state's interests in the development of the faculty member's expertise.  Faculty must seek approval; the language does not forbid such work. It only provides an opportunity for the administration to review.

 

We have not seen any problems here so far, if they become a problem where university presidents are refusing to allow such outside related work, we will review the matter.  In the future bargaining rounds, we could offer refined language to guide these approval decisions.

 

 

GRIEVANCE PROCEDURAL CHANGES 

 

The new grievance procedures simplify the disciplinary process and make it more likely informal resolutions will occur.  It reduces the confusing stages of yore by creating two stages: an informal process (a "pre-hearing") to resolve matters and a formal post-discipline hearing which preserves all rights faculty had under the earlier process.  The new process incorporates new, additional protections for termination cases, including denial of tenure and the right to a paycheck until all internal grievance procedures has been exhausted.  It strengthens an appeal over denial of promotion to Full Professor.  And it makes the process more transparent to the grievant.

 

As always we will evaluate these changes to see if they truly offer the kinds of protections faculty members deserve.  If they do not, we may offer modifications in future bargaining rounds.  Further, these grievance procedures are only useful, if they are used!   

 

We think many faculty have grievable cases and are reluctant to use them for numerous reasons.  With the creation of a "pre-hearing" Stage One discussion with the supervisor, we hope this will lead to more appropriate behavior between labor and management.  That is, we think there should be more conversations between employees and their supervisors in informal settings.  We hope these changes lead to that outcome.

Finally, thank you for all you do for higher education in South Dakota!  In these times when public employees--and educators especially--are under assault, I appreciate the work you do to make our state and our society a better place to live.