We are at a defining moment as an organization.  After 16 sessions, 18 months of bargaining, and an imposed contract, it appears COHE's efforts to reach a real contract that is acceptable to members has arrived at a turning point.   

 

The BOR bargainers are showing signs of fatigue and exasperation.   In the last bargaining session, they reported they are under "a lot of pressure" to reach an agreement that is not imposed.   So, their solution is to propose the most onerous, unacceptable proposals they can think of, to force us to once again play defense.

 

For the last fifteen years, COHE has built a reputation at the bargaining table as a serious player.  We have taken their proposals seriously and offered serious proposals of our own.  We have asked questions to understand their position and rationale.  We offered practical arguments to defeat their worst ideas and to push our suggestions.   

 

Under various COHE presidencies, we have usually reached an agreement in those bargaining rounds through two devices: (1) we accepted proposals we did not agree with, but asked them be listed in the preface and (2) we traded away positive COHE proposals for the betterment of the faculty in exchange for the withdrawal of their worst proposals.   At the time, these were rational and logical decisions, as we built up the union to prepare for a more aggressive posture.

 

In the current bargaining round, we have clearly taken a more assertive position, proposing a range of ideas to protect and improve the faculty's employment conditions.   We have continually argued that the old rules no longer apply.    The faculty, and particularly, the membership have expressed a desire to "win" on a big issue.  We must make a positive gain and not just play defense again.

 

I believe that moment has arrived!  Now, I am asking you to confirm this strategy.  Below, I present the facts, as unbiased as possible.  However, I declare here, that it is my advice that we stay the course.  

 

We have the BOR negotiators tired, worried, and maybe even their backs' to the wall.  Someone, either Executive Director Jack Warner or at least one Regent wants to reach an agreement with us. They do not want an imposed contract.   In my view, their implied threats to impose tenure retention and reduce IP royalties are trade bait/a bargaining chip. 

 

Nonetheless, it is not my decision to make.  I am an agent acting on your behalf.  I need your decision: (1) continue to fight for something positive or (2) make a trade offer so that they will withdraw these terrible proposals and reach an agreement.  Your bargaining team will do whatever the COHE Board and the membership decide.

 

First, the BOR is demanding a post tenure review process that effectively replaces tenure with a six year term contract.  Every faculty member would reapply for "tenure renewal" at the end of each six year period.  This process would be identical to applying initially for tenure, with those who fail the post tenure review being offered a one year term contract (bottom of page 5 and top of page 6). 

 

They nominally justified this proposal by regurgitating the usual comments about a few "deadwood" full professors.  Their rationale is that the BOR needs to ensure everyone's working to peak efficiency.  They argue they are merely maintaining standards among Full Professors. 

 

The second new proposal by the BOR is to change the intellectual property royalty payout from the current 50/50 split to a 75% share for the BOR and 25% share for the inventor/creator of the IP.  Their justification was minimal; they are merely "following national norms."

 

After the BOR presented these proposals, they chose to caucus for a few minutes. Upon their return they offered to withdraw this set of new proposals if COHE would withdraw its proposals and accept the terms in the imposed contract for the next two years.  Our team's interpretation of this action is that their proposals are clearly meant to be punitive in nature.  They presented little evidence that these proposals are well thought out in scope and consequences.

 

Our team's interpretation of their statements during this session is that the BOR negotiators are under pressure to get a new contract finalized rather than having to impose yet another contract.  It seems clear that they are willing to offer increasingly punitive proposals to accomplish their goals, even though these proposals impose extreme costs on both the faculty and the administrations of each of the BOR institutions.

 

I said I would need to consult with the membership but I did not believe COHE could make that trade.  My sense was and remains that the membership is not willing to give up all of our proposals to defeat one or two of theirs.  I said the membership is tired of playing defense and that I might be able to convince the membership to give up our proposals for a big, positive achievement.   This is the same line of argument I have been making for the last 18 months in the 16 bargaining sessions.

 

Twelve Month Payout

 

At our first April bargaining session, we made an impassioned plea to delay the twelve month pay out until 2013.  We argued that at the time we all agreed to the provision, no one contemplated the delays in imposing the contract. Now, faculty had only five months to prepare for this change.  I presented case stories and letters from several faculty about how this change, without adequate planning, would hurt them.  

 

We ran into the proverbial brick wall, they said "the train had already left the station."  They also said that no matter when the change would occur some people are poor money managers and a change would simply delay their financial crisis for a year.  In short, they were unsympathetic and unmoved by our appeals. 

 

In our second bargaining session in April, their tone appeared to change.  They arrived with a counter-proposal that would allow faculty to opt out of the twelve month pay out for one year.  In exchange, they proposed a "process" (their word) where we might resolve all of our differences.  In essence, they wanted us to withdraw our ULP on IP and whatever differences we had this time in bargaining, which would be listed in the preface as usual.  As you know, I consulted the membership widely on this issue.   Clearly, the membership agreed we should reject their trade.

 

My sense of the membership is that you were not willing to accept the trade that I suggested to you.  That is, all of our proposals, including delayed implementation of the twelve month payout, from this round and last round in exchange for retraction of ULP and a three-year contract.  Since I did not think that would sell to the membership, we offered the BOR a deal I thought members would agree to: all of our proposals in exchange for a three-year deal without retracting the IP ULP.  Of course, they rejected it.

 

They agreed they could have delayed implementation of the twelve month payout out of the "kindness of their heart" (my term).   They refused to do the right thing for faculty.  Secondly, they were inaccurate when they said the train had left the station during our first meeting.

 

Salary Issues

 

They rejected our offer of a $1,000 step increase, because it clearly went against the cost of living provision strictly forbidden by SDCL 3-18-3.  Moreover, they claimed it would have unintended consequences and wreck havoc with protected categories (i.e., gender and race). They claimed only sophisticated mathematical modeling could be used to evaluate new salary schemes.  

 

From various sources, I sense our work to highlight salary compression and inversion has had an effect.  My letters to the editors and my impassioned argument at four of the BOR Town Hall meetings last fall (where a majority of the Regents heard my plea) has caused at least one Regent to prioritize this issue.

 

The BOR negotiators thought that the best way to address this issue is through the Joint BOR-COHE Task Force, which we created last time.  I have identified two economists, both COHE members, who have agreed to serve.  I think that if that group can find a solution, we would be able to include it in our next contract and it would eventually ameliorate the compression issue.   Hence, the BOR team was unwilling to accept our offer and would prefer to employ the joint task force as a procedure to test various policy changes, rather than in traditional bargaining.

 

Promotion and Tenure Reforms

 

The BOR rejected our arguments for increased transparency in the P&T process, because, they argued, it would only lay the groundwork for an early grievance.  They were concerned that transparency would be a slippery slope to allow faculty to challenge these decisions earlier in the process.  Moreover, they argued that is already difficult to get faculty to serve on these committees, that a release of the vote totals would only further exacerbate the problem.  

 

In response to my comments that the most momentous decision in a faculty's life is completely opaque, one BOR staffer said, "too bad."  He had no sympathy for the faculty in this position, because when we choose this career, we knew the tenure decision was a huge, meaningful decision and it was a closed process.

 

On our proposal that only faculty serve on P&T committees (i.e., remove administrators), they indicated that some campuses are "not ready" for this proposal.  Several local administrations want to continue to appoint half of the committees.  However, they are offering that the administration can appoint administrators or faculty for their half of the committee members.

 

They accepted verbatim our proposals to institute a two-term limit on P&T service and that individuals can only serve on a P&T committee at one level (not both University and College committees).   While they were not willing to strictly exclude immediate supervisors from participating when faculty who is their direct report is before the committee, they agreed to strengthened the language for self-recusal.

 

 

 

At this June session, we have a couple of minor issues left from our Workload proposals to discuss.  However, I expect the bulk of the session will focus on their proposals and any possible trades that might settle matters for this bargaining round.

 

One proposal that has been floated by a COHE member: to change the IP royalties distribution, similar to Iowa State University.  Fifteen percent off the top goes to the Technology Transfer Office, for management of the process.  Of the remainder, 1/3 goes to the inventor, 1/3 to the inventor's college, and 1/3 to the university.   Please reply with your view of this and ideas on other proposals regarding IP royalties and/or tenure retention.

 

My intention is to hold two additional phone conferences in the next couple of weeks.  First, another all-COHE members phone conference to get better informed and express your views.  Second, the COHE Board will confer to make a decision on possible trades.  In any case, you should be communicating with your local COHE leadership. If you have questions or concerns, you may correspond with me as well.  

 

Your brother in defense of faculty rights,

Gary Aguiar

COHE President