You are receiving this message because you are a dues-paying COHE members.  Thanks for all you do in these difficult times for both public employees and faculty. Below I reproduce a recent email message from the BOR's lead negotiator and my response.

 

Gary,

 

            A copy of the COHE May 28, 2012 message sent over your name wended its way to me.  I trust that you understand the surprise that it presented.  My judgment was that the May 15, 2012 bargaining session brought us to a point where a mutually acceptable middle ground was in easy reach.  In fact, I left the meeting with the beginnings of a plan for a set of mutual concessions that likely would have provided sufficient inducements all round to secure an agreement.  The COHE broadside message to the whole world has effectively precluded that.

 

            You will recall that, at the January 5, 2011, bargaining session, the parties discussed at length the necessity of conducting negotiations in confidence.  This negotiation over ground rules was prompted by an earlier COHE communication to the bargaining unit that revealed details of the parties' respective positions, albeit, the material that was circulated then was based upon an effort to report accurately the proposals advanced and rationale exchanged, not, as in this instance, an effort to shade the Board's positions in unfavorably and inaccurately in order to elicit a desired response.  At that time, COHE agreed to safeguard the confidentiality of the negotiating sessions, except for the necessary explanations to COHE leaders or trusted members. 

 

Even though, as a matter of law, our discussions in April and May are just a continuation of the negotiations that began in December 2010, COHE breached its earlier agreement about the ground rules for the negotiation.  COHE's action breaches its agreement and undercuts the integrity of the negotiating process.  Worse yet, COHE acted to achieve an end that has no relation whatever to any proposal or to any rationale that had been raised in the course of negotiations, i.e., in order to "encourage [nonmembers in the bargaining unit] to join COHE." 

 

Your May 15, 2012 missive demonstrates that COHE's January 5, 2011 assurance was not given in earnest and that COHE is perfectly prepared to violate its agreement to abide by reasonable, traditional and sound bargaining rules.  Moreover, COHE has been very clear that it intends to implement a regime of perpetual negotiations in order to tax Board resources and patience and thereby to obtain concessions.  The combination of these circumstances demonstrates that COHE has elected to pursue a course of dilatory and surface bargaining, not to bargain in good faith.  COHE has thus brought the current negotiations to impasse.

 

            This is a regretful turn of events, but it is the course that COHE has chosen.  Needless to say, there is no longer any purpose to be served by meeting in June.

 

Note: This e-mail and any attachments may be privileged and confidential and protected from disclosure. If the reader of this message is not the intended recipient, or an employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of this e-mail and any attachments is strictly prohibited. If you have received this e-mail in error, please notify me immediately by returning it to the sender and deleting it from your computer system. Thank you for your cooperation.

 

James F. Shekleton   

General Counsel

South Dakota Board of Regents

306 East Capitol Avenue, Suite 200

Pierre, South Dakota 57501-2545

(605) 773-3455

Fax (605) 773-5320

jims@sdbor.edu

 

Dear Jim,

 

Many thanks for this communication! I appreciate your forthrightness and efforts to keep us informed about your actions.  However, I am very puzzled by this message in several ways.

 

First, I am NOT surprised that a message sent in confidence to members of the bargaining unit ended up in your inbox.  In these digitized days, few messages remain secret for long. 

 

Second, I am very surprised and angry that you read the message!  It was clearly intended for members of the bargaining unit and not the management team!!!  This is the second time you reported to me that you read a message that was clearly not intended for you as management's agent.  Remember, just because you have a legal right to do something, doesn't mean it is the right thing to do.  I think this behavior crosses the ethical line about what is proper to do in these situations.  If a communication from you to the Regents crossed my desk, I would be hard-pressed to find ethical grounds that would allow me to read it (regardless of any legal restrictions).   Your action severely harms whatever trust that exists between our sides.

 

It is common lore among many COHE members, that our officers' email messages are monitored and read by administrators.  I do not believe it is happening, but your actions only add fuel to the fire of distrust.  Further, this is yet another advantage that your side has in the collective bargaining process.   In addition to the legal, geographic, and workload assignment advantages that I have discussed on numerous occasions, you have an easier means to communicate with your principals (eight Regents) than we do (1,200 faculty at six universities and three outreach centers).   This digitized newsletter is the most effective means we have to provide information to them. 

 

I think the BOR staff care significantly about the state of the faculty, especially their morale and career ambitions.  I think the BOR staff wants to treat them reasonably.  Reading communications intended for the bargaining unit from their agent does not instill trust in the BOR negotiating team as the BOR's agent.

 

Third, I disagree with your interpretation of our ground rules.  I said we reserve the right to share all details and information with COHE members and trusted members of the bargaining unit.  Moreover, I said we have both a moral obligation and a fiduciary responsibility to all members of the bargaining unit.  Hence, to meet both our ethical and legal commitments, we reserved the right to communicate with the bargaining unit about the negotiation proceedings.

 

Fourth, setting aside your misinterpretation and misapplication of our ground rules, your recent proposals have fundamentally shifted the debate.  These proposals contradict numerous statements made by BOR negotiators in the last 18 months.  They clearly change the tone and tenor of the negotiations.  The bargaining unit must be informed about this cataclysmic and revolutionary transformation of the basic tenets of the contract in these two areas.   These proposals, if enacted, will are likely to have far-reaching consequences with largely unpredictable results.  As a result of the excessive and comprehensive nature of your proposals, COHE has an ethical requirement to share this information with the bargaining unit.   Moreover, we have a legal duty of fair representation, which includes seeking the perspectives, comments, and opinions of the bargaining unit.   They cannot offer such advice without adequate information.

 

Fifth, COHE is committed to reaching an agreement that is acceptable to our membership.  You imply that COHE desires to engage in perpetual negotiations.  However, COHE has been aggressive in producing counterproposals at each stage of negotiations to attempt to reach common ground.  Throughout the process, the BOR's negotiating team's words and actions suggest the only common ground-from your side's perspective-is for COHE to accept the imposed terms in their entirety in exchange for minimal concessions.   I have said it before and I will probably say it again, but the COHE membership is growing and the bulk of the membership will not accept business as usual.   They will clearly only accept an agreement where there is a big, positive gain for faculty.

 

Nonetheless, COHEintends to keep bargaining by offering proposals, rationale and trades to arrive at a final contract that can be approved by our membership.  Thus, I encourage you to meet with us later this month in Madison as planned.  In truth, I am puzzled and insulted by this "take-my-marbles-and-go-home" attitude the BOR negotiators now demonstrate.  It is counterproductive to reaching an agreement.  How do you propose we reach an agreement, if we do not continue to meet and talk?

 

We should use the Madison session as an opportunity for your side to explain the logic, rationale, and problems you see solved by these two recent proposals.  Or, perhaps, we can use the June session to renegotiate ground rules?  If so, we propose COHE is allowed to provide information about the bargaining process to all members of the collective bargaining unit and that the BOR negotiating team promises not to read any COHE-related messages intended for COHE officers, COHE members and the collective bargaining unit, in whatever form they arrive before your eyes.

 

Finally, I am surprised by your optimism as a result of the May 15 session.  As I indicated in the telephonic conference call in April, I think the Regents and COHE members are farther apart on the issues than we were a year earlier.  Your recent proposals have now pushed us even farther apart.  While it will be a struggle to find common ground, the COHE bargaining team will continue to work towards a mutually-satisfying agreement.

 

I eagerly await your response.  I also look forward to our continued mutual efforts to facilitate productive and successful negotiations towards an agreement that can be fully endorsed by both of our principals.  I encourage you to reconsider and meet us in Madison on June 27.   If not that, then what do you propose as our next step?

 

Cordially yours,

Gary