As you may recall, the University of South Florida implemented a mandatory Winter Break in 2008 during a time of fiscal uncertainty and following the loss of more than 500 vacant faculty and staff positions. Given the necessity to reduce financial obligations and balance the budget, the mandatory annual leave was considered a far better option for employees than the use of furloughs and/or layoffs imposed by other universities.

USF has decided to re-credit 3 days of annual leave that were taken during the Winter Break in 2008. Any faculty member or employee, who was charged those 3 days of annual leave during the university’s mandated closing, will have the days credited back to their current leave account. This is a fair and equitable action consistent with a recent arbitration decision between USF and the United Faculty of Florida. That decision applied to in-unit faculty under 12-month contracts. However, USF’s leadership has decided that the only fair action is to extend the restoration to ALL eligible employees.

The University has engaged in communications on such challenging matters in the past. Going forward, it will be important to maintain our communication since we will not have the flexibility that we have enjoyed in the past given the difficult budget realities of today. This decision will prompt us to explore alternative strategies to balance USF’s budget in the future.

The good news, however, bears repeating. Because of the many measures USF took in 2008 to reduce costs, our budget is relatively stable today as we enter the 2009-2010 fiscal year. Our actions last year, together with the infusion of federal budget stabilization funds, have made it possible for USF to enter the next academic year without the kind of programmatic and personnel cuts that others have endured. Let us all hope that this remains the case. Both the president and I will be writing shortly to describe the strategic planning and budgeting actions that will support USF’s continued and remarkable progress.

A few personal remarks, if I may. First, the university made the right choice today, to broaden the impact of the arbitration decision so that everyone benefits. As has happened often in the past, the faculty at USF can help set a floor for other employees, and that’s a good thing both for employees and for the university’s long-term interest.

Second, I am not surprised by how the administration’s language tries to paper over the fundamental mistake it made, to try to dismiss the bargaining authority of UFF and other employee unions. This is a continuing pattern at USF, and it is not in the university’s long-term interest for upper-level administrators or the trustees to try to circumvent bargaining. For the past decade, communication between the administration and all its employees (faculty and staff) has been a consistent weakness. As I told the Tribune’s reporter, Lindsay Peterson, President Genshaft could have picked up the phone and called me any time in the past two years to discuss the financial troubles of USF and the future, and she hasn’t.

The University, under the terms of the collective bargaining agreement, cannot require bargaining unit employees to use annual leave. The University, under the terms of the collective bargaining agreement, does not have the contractual right or the statutory right to require bargaining unit employees to take accrued annual leave. The required use of annual leave resulted in the employees being required to waive benefits provided by the Agreement, and to suffer a loss or diminution of contractual rights for which they were otherwise eligible. Specifically, the employee’s contractual rights and benefits to accrue the days for their use in accordance with the provisions of the contract…. After full consideration of the circumstances, this arbitrator agrees that the remedy must be for the University to reinstate the three days of accrued annual leave to the members of the bargaining unit who were required to take them.

The arbitrator has ordered the university to return three days of leave to all in the UFF bargaining unit who lost them in December. This is the result of the grievance process at its final step: a binding arbitration, and in this case, the arbitrator ruled that the United Faculty of Florida was correct in its interpretation of the contract, that the university did not have the authority to take three days of leave without bargaining a change at the table. Members’ dues pay for contract enforcement, and it is in the grievance process that UFF can hold the university accountable when it violates the contract.

Chapter grievance chair Mark Klisch processed the grievances at the local level; UFF’s executive director, Ed Mitchell, was the chapter’s representative at the arbitration hearing, and chief negotiator Robert Welker helped with preparation for the arbitration hearing.

Arbitrator Cary Singletary decision text, July 2002

Q&A

One UFF member asked several questions July 3 about the relationship between annual leaves and the university’s budget picture. Below are the questions and the answers from the chapter president.

Q. Considering the current budgetary diffulties of the University, do you not think that the University requiring the use of the three days vacation might have been a prudent way of avoiding laying some staff off?

A. Taking three days of annual leave from in-unit employees gave the university relatively little in terms of cash. Forward leave obligations are liabilities on the balance sheet, but that’s not necessarily what’s crucial to the university’s finances. The university raised the cost issue at the arbitration hearing, but I am told that when asked directly about what USF saved, the university’s witness could not provide a firm figure about the cash savings.

Q. If the University, upon being forced to give back the vacation days, decides later that it has no choice but to lay some staff and faculty off due to budgetary constraints, do you not think it will will be in its right to do so?

A. The university always has the right to lay off employees if done legally. They can do that with or without justification, though law and collective bargaining agreements restrict what they can do, and right now USF has a substantial incentive NOT to lay off faculty, at least for the next year. In reality, our future depends on stability of state appropriations for a few years, not the annual leave days taken from employees.

Q. What efforts were made by UFF to ensure that at the end of the day, decisions made do not jeopardize the long-term job security of USF employees rather than strict interpretation of the contractual agreements?

A. It is partly through contract enforcement that we do not have faculty layoffs. Not everything, by any means — the e-mail I sent chapter members a few weeks ago explains the bigger picture that I see — but I don’t see a contradiction between contract enforcement and defending the jobs of colleagues who work hard. The administration never came to UFF to open up the issue of accrued leaves as part of bargaining, and if the annual leaves were that critical, they would have bargained it and would not have offered raises in late November, after it was clear that we were headed to arbitration on the grievance.

As expected, with a stock market in steep decline, the value of the FRS pension fund has declined to $120.4 billion. This represents 93% of the liabilities or promised benefits. Ennis Knupp and Associates, a financial consulting firm, made this report yesterday at a meeting of the Investment Advisory Council of the State Board of Administration (SBA). The SBA invests Florida’s FRS funds.

Fortunately for retirees and our members, not all of the money would be withdrawn at once, meaning there is no risk that the fund will go bankrupt or that Floridians won’t receive their benefits. Remember, there is a liability for any employee who has vested (six years service) no matter their current age. Because FRS and other pension plans will not pay out every penny at once, many state pensions are far from fully funded. Florida’s is actually considered among the strongest in the country.

A Standard and Poor’s report on state pension funds using 2007 data, ranked Florida as the third best fund in the country, behind Oregon and North Carolina. Illinois, Oklahoma and Rhode Island were at the bottom of the list, with their pensions all funded below 62 percent.

From 1985 to 1997, Florida’s pension fund was underfunded, but rose from a 54.3 percent funding level to 91.3 percent. It then rode the economic boom of the 1990s and early 2000s, and at its highest point in 2000, the pension was funded at 118.1 percent of liabilities.

Faculty ‐ Minimum 90 days notice or end of current semester if in teaching capacity (no later than 15 days following the official close of Fall Semester) [emphasis added]

The collective bargaining agreement stipulates that “where circumstances permit,” the layoff notice for in-unit faculty and professional employees should be six months for those with less than 3 years’ service and one year for everyone else. There are important exceptions: those in visiting lines and on soft money do not have a right to notice of nonreappointment when either the immediate visiting term ends or grant support ends. But given the extensive unrestricted assets of the university (even if one accepts at face value every claim made by USF yesterday) and the relatively small number of those anticipated to be laid off from the UFF-USF bargaining unit, we think these are precisely the circumstances that permit the default layoff notice.

Outside of the Mad magazine aspect of the case (a district attorney’s office defends the right to punish a prosecutor for reporting official misconduct – and the Supreme Court says that the prosecutor would be protected if he had leaked the story instead), there is the question of what the case implies for faculty governance. Justice Souter, dissenting, wrote that “…I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities…”, an issue that the majority conspicuously stepped around, Justice Kennedy writing that “We…do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”

Notice that Kennedy did not mention governance. (The Biweekly covered the issue in May 2006 and June 2006.) The Supreme Court may have to face the question, as attendees heard in a Legal Forum Workshop at the Joint Conference. Dan McNeil, Assistant Director of the AFT Legal Department, told a panel last week at the AFT/NEA Higher Education Conference that whatever the Supreme Court majority’s view of academic freedom in Garcetti v. Ceballos, the ruling is already being used against faculty in lower courts.

Earlier this decade, Chemical Engineering Professor Juan Hong of UC Irvine expressed his opinion, as part of his departmental governance duties, on several personnel matters. When he was denied a merit pay increase, he sued. UC Irvine moved for summary dismissal, which the District Court granted: the court ruled that as Professor Hong was expressing his opinions as part of the governance component of his job, under Garcetti v. Ceballos he was not protected in expressing those opinions. Hong has just appealed to Circuit Court, and the American Association of University Professors and the Thomas Jefferson Center for the Protection of Free Expression have filed an Amici Curiae brief.

At the Legal Forum workshop at the conference last week, there were some questions about how faculty can participate in faculty governance if they can be disciplined for saying the wrong things in committee meetings. (I raised the question of what protection an employee has if they are simultaneously required to report observed misconduct and also subject to discipline for making such a report – even if the report was true). The best answer McNeil gave was to have employee protections written into the contract.

At USF, we do have such protection. Article 5, Section 2 of the Collective Bargaining Agreement reads, “Academic Freedom is the freedom of the employee to discuss all relevant matters in the classroom, to explore all avenues of scholarship, research, and creative expression, to speak freely on all matters of university governance, to speak, write or act as an individual, all without institutional discipline or restraint.”

This is contractual language, enforceable in grievance proceedings and in court.
So while we hope for the best in Hong v. Grant, we can consider the advantage of being at a unionized institution like USF, complete with an bargained and enforceable contract, rather than a non-union institution like UC Irvine.

1. Summer salaries are pro-rated in the collective bargaining agreement. Neither administrators nor faculty can negotiate any variation from this by themselves. That means that a chair cannot offer a faculty a course on condition that the faculty agrees to be paid less than normal. If you hear of such a situation, please contact the chapter immediately.
2. Using or reading the term “financial exigency” does not change the terms of the collective bargaining agreement. Right now, UFF and USF are in negotiations over the entire contract, and if the administration and Trustees wanted to save money by changing the contract, they have the ability to propose changes at the table. Thus far, the administration/Trustees’ representatives have proposed two changes that represent marginal savings, and the UFF team has proposed addressing one of those interests in combination with interests that the chapter has.
3. Layoff priorities are specified in the collective bargaining agreement. On this point, it appears that the administration and UFF are in agreement on the importance of avoiding layoffs: at the last faculty meeting, President Genshaft said that given her experience with retrenchments at other institutions, she would be horrified to lay off tenured and tenure-track faculty, and I believe her.
4. Furloughs cannot be imposed without collective bargaining, and UFF does not see any need or reason to have furloughs at USF.

At this point, it is in everyone’s best interests to work together to reduce the damage done by budget cuts, and one way we can do so is to avoid spreading rumors.

The USF tenure and promotion guidelines say that faculty and their chairs can both suggest external reviewers, and they should jointly select external reviewers. If there is disagreement, each gets to select half.

If faculty present a credible list of potential reviewers to their chairs, they make the chair’s job easier and give faculty the best opportunity to have input on the selection of external reviewers. A credible list includes at least 6-8 potential reviewers with the following information for each:

• Name
• Current affiliation and rank
• Any notable professional society offices held or awards won
• Current contact information (e-mail)
• A brief description of why this individual would be a good reviewer
• An explicit statement addressing any potential conflicts or an explicit statement that there is no potential conflict (e.g., “My primary contact with Peter Schickele was at the last three P.D.Q. Retrospaetzle Symposia, and he was the chair on one 2007 panel where I presented ‘The Lost Manuscript of “Three Hands Viola and the Half-Blood Piccolo.”‘”).

Below is the language from the 1998 T&P guidelines:

The department chair ordinarily will include in the tenure and promotion packet a minimum of three letters (but not exceeding six from external reviewers who are expert in the individual’s field or a related scholarly field. The candidate and the department chair will suggest external reviewers. The department Tenure and Promotion Committee may also suggest external reviewers. These reviewers should have no significant relationship to the candidate (e.g., major professor, co-author), unless there are mitigating circumstances hat would indicate otherwise (e.g., to review scholarship so specialized that few expert reviewers exist). The chair and the candidate will jointly select the reviewers. In the event of disagreement each party will elect one-half the number of qualified reviewers to be utilized. Letters from external reviewers should be in the candidate’s file prior to the final recommendations by the Tenure and Promotion Committee. All solicited letters which are received must be included in the candidate’s file.

We did find out that the Card Center was taking social security numbers in order to generate an ID card (it was a field required in the system that they are using). However, we’ve been able to configure a change in their system and feed required information in from the GEMS system so that social security numbers are no longer needed. The Employee ID number is now officially being used. No longer will the Card Center staff be asking for social security number.

The UFF membership form now gives the option of providing the employee ID instead of the SSN, but includes the SSN option because many faculty know their SSN but not their employee ID. One of the concerns about asking for Social Security Numbers in public situations (whether in parking services or at a card center) is that they are public: You’re in a line, and someone asks you for the SSN. Anyone else in line could overhear your name and SSN, and then they have what they need to generate a false identity. If you are asked for your SSN at USF in a public context, gently refuse to, explain why not, and insist on using your employee ID instead.