October 2004 aaUPBEAT

The Bargaining Process: Upcoming AAUP Contract Negotiations

During contract negotiations, faculty have a singular opportunity to improve their salary, benefits and working conditions through their representation by the AAUP. As an independent association, the AAUP is responsible solely to the faculty. This responsibility is reflected in all the AAUP's efforts to articulate and negotiate better conditions for conducting academic work at UD.

During a union's contract negotiations, there is no such thing as luck. No matter what union we're talking about, winning or losing greater economic security and workplace protection during contract negotiations boils down to organization. If a union's members are unified in their demands and willing to mobilize themselves in the effort to bring those demands to fruition, the union's bargainers stand a better chance of success than if there is no membership consensus about the need for improved economic status and working conditions.

Since the AAUP will begin contract negotiations with the Administration early in 2005, we want to begin the process of building a bargaining consensus now. The first step in doing this must be to make the process transparent so there is no confusion about the technicalities of bargaining.

Here are some of the basic facts about AAUP-Administration bargaining practices.

Establishing the Bargaining Team. The procedure for creating the AAUP's bargaining team is spelled out in the union's by-laws. Prior to negotiations, the union's executive council recommends to the steering committee a list of names to be included on the team. The steering committee subsequently either approves the list or requests that it be altered. Once the list is approved, the bargaining team is official and serves "at the pleasure of the steering committee" and possesses "the sole and exclusive power to negotiate a tentative agreement with the representatives of the Administration." The bargaining team is free to "determine its own operating procedures in consultation with the steering committee." Finally, the team "must report to the steering committee fully and regularly on the progress of negotiations."

Negotiations. The negotiation sessions are characterized by the presentation of facts and fact-based arguments by both sides. Although the actual sessions occur in private, the union bargaining team is free to update the membership in between sessions about the negotiations' progress and any particular stumbling blocks that may have arisen. The bargaining team uses the newsletter to communicate such matters and to discuss the relationships between our local issues and national higher education trends. The bargaining team also holds open meetings for faculty members.

Developing Contract Demands. AAUP determinations regarding how to make sure our demands are within the parameters of what the University can afford are based on an analysis of UD finances. Since we know that the cost of benefits plus salary equals the University's total cost, we develop an itemized list of faculty needs, then shape that list into a benefits-salary package that the Administration can afford. Of course, at the core of negotiations is usually a question about what the word "afford" means. That's why the union only develops demands after doing three things. We take a survey to determine faculty contract concerns. We analyze University assets and expenditures. We investigate what level of financial commitment is required of the Administration in order, first, to further UD's commitment to educational excellence and, second, to keep UD competitive with other institutions of our size and stature.

Negotiating Pace. Bargaining Items are usually negotiated in such a way that cost-free items are placed on the table first. Examples of cost free items are (a) development of criteria for merit increases and (b) office space for retired faculty members. Negotiating such items first allows the two bargaining teams to make progress before entering into negotiations over more financially complex issues like salary and health benefits.

Contract Ratification. No bargaining team contract decision is final until that decision is approved by the steering committee, recommended by the steering committee to AAUP members, and then approved by the members in a contract vote.

As stated above, winning a good contract at the bargaining table is never a matter of luck. Instead, it is a matter of organization and discipline, of union members willing to mobilize themselves in a group effort to bring their demands to fruition.

Initial steps that faculty can take in doing this include:

• Stay in touch with your departmental AAUP representative so you know what's going on in the union.
• Talk with other faculty members about the need for group support in the effort to win a good contract. Discuss and debate among yourselves the issues you want prioritized, then communicate your concerns to your departmental representative or another AAUP official.
• Encourage non-members to join the AAUP. The greater our numbers the greater our strength.
• When the time comes, attend the AAUP's open meetings at which the bargaining team will explain the current status of negotiations. At these meetings the bargaining team discusses the status of negotiations. Faculty are free to make suggestions, ask questions about strategy, etc.

By the time AAUP-Administration discussions begin in early 2005, it is essential that the union has developed a well-thought-out package of demands. In the course of doing this, it is crucial for faculty to be energetically involved in the process. What we win at the bargaining table will be less than what we could have won if we had convinced the Administration that faculty are dead serious about the demands we have put forward.

The time to begin is now.

The AAUP and the Termination of Tenured Faculty

The role of the AAUP in the termination process of a tenured faculty member is very limited. The AAUP provides advice to the faculty member and may be present as an observer, if the faculty member wishes, at the relevant hearings held by the Faculty Senate's Committee on Welfare and Privileges. Additionally, the union can help the faculty member file a grievance, although, since such a grievance lies outside the official termination decision-making process, its effect is limited. Ultimately, then, termination is a decision made by the Provost after receiving the Welfare and Privileges Committee's recommendation.

Since the AAUP will soon be negotiating a new contract with the University, it is a good time to consider enhancing the union's role with relation to termination issues. In the past the AAUP has suggested, and the Administration has rejected, a "just cause" clause in the contract. Such a clause would enable a faculty member to use the grievance procedure as part of her/his defense and, potentially, to bring a termination attempt to arbitration should the faculty member and AAUP Executive Council concur that the Administration's cause for termination violates relevant policies and standards.

By extending the scope of the grievance procedure, a "just cause" clause would significantly empower a faculty member facing termination.

The AAUP, The Patriot Act, and Higher Education

Immediately on the heels of the horrific attacks of 9/11, a strain emerged between the national security needs and constitutional rights.

Within weeks of the attack, the Bush administration requested the creation of special federal powers of surveillance and investigation. This request won speedy and almost unanimous approval in the Senate and House of Representatives. On October 26, 2001 the Patriot Act became law.

A month before Bush signed the bill, Shirley M. Tilghman became Princeton University's 19th president. At her induction ceremony, she stressed traditional academic values regarding higher education's roll in the post-Sept. 11 world.

"With generosity of spirit and mutual respect," Tilghman said, "we must listen carefully to one another, and speak with our minds and our hearts, guided by the principles we hold dear. By conducting difficult discussions without prejudice or anger, by standing together for tolerance, civil liberties and the right to dissent, by holding firm to core principles of justice and freedom and human dignity, this university will serve our country well. By so doing, we will be true patriots."

Tilghman's comments expressed a commonly held view in academe -- that higher education administrations and faculties have created an environment in which free thought and free expression are hallowed rights, whereas censorship is viewed as an essentially unAmerican behavior practiced by dictatorships and other anti-demographic movements. The message of such thinking is clear: we have transcended the free speech failures of other societies.

But have we?

Gary Michael Tartakov, tenured professor of Design at Iowa State University, doesn't think so. Following an Association of Asian Studies conference held in Baltimore, Tartakov sounded a pessimistic note to the AAUP with regard to free speech on U.S. campuses. Tartakov's concerns focused less on Bush administration attempts to curtail such speech than on the cumulative effect of what he believes to be years of disconnect between the professoriate and the very idea of its potential role as a questioner of insufficiently examined government policies. "In reality," Tartakov said, "the majority of academics do almost nothing to make the free speech issue a vital one anymore. This does not bode well for life under the Patriot Act."

So who is right, Tilghman or Tartakov? Is there or isn't there a sufficiently deep commitment in the academic world to realize academic freedom and free speech?

Because it is concerned about this very question, the AAUP has mobilized its resources in an effort to work with others to fight encroachments on civil liberties and academic freedom.

This effort assumed its first organizational form when the AAUP announced, on the first anniversary of 9/11, that it has established a Special Committee on Academic Freedom and National Security in a Time of Crisis. The committee's purpose, from the moment of its inception on, has been to analyze existing threats to constitutional and academic liberties and to fight any encroachments.

Among the many problematic issues cited by the committee in their 2003 report (which can be found at www.aaup.org/statements/REPORTS/911report.htm) are the following issues.

Foreign Intelligence Surveillance Act (FISA). The USA Patriot Act amends FISA in such a way that many of the categories of information that were previously protected by the act are no longer protected. Also, the amendments expand the definition of who can be investigated under the act by proclaiming that the term "person" includes not just individual men and women but academic libraries, university bookstores, and Internet service providers. Disturbingly, the way the law has been rewritten allows government to investigate U.S. citizens and non-citizens in ways that circumvent the First Amendment. Because the Patriot Act protects FISA from independent enquiry, the AAUP report states that it has "become virtually impossible to determine what records the government has sought, how searches are actually conducted, and whether the records obtained have helped to protect the nation's security."

What You Read May Get You Arrested. According to a study done by researchers at the University of Illinois at Urbana-Champaign, by the end of 2002 five hundred and fifty libraries had received Patriot Act-related requests from federal and state law-enforcement agencies for patrons' checkout histories. A number of librarians risked their jobs and even jail time for refusing to comply with the government in this matter. The most often cited reason for rebuffing the government's attempted intrusion into patrons' reading habits was the Justice Department's insistence that library staff were not allowed to notify those being investigated that there was an investigation. Some librarians went so far as to destroy patron records in an effort to protect those being investigated from what they (i.e., librarians) believed to be unconstitutional searches.

Weakening Freedom of Information. Investigative reporters, academics and others have used the Freedom of Information Act (FOIA) to gain access to data on controversial issues that might otherwise have remained unanalyzed. In the panic spawned by 9/11, and that led eventually to the development of the Patriot Act, Attorney General John Ashcroft dealt a serious blow to the FOIA's powers when he promised federal agencies that the Department of Justice would stand behind them if they chose not to release documents to the public, just as long as the agencies produced a legal rational for their behavior.

Privacy Invasions Everywhere. The USA Patriot Act significantly altered the Electronics Communication Privacy Act (ECPA ) in order to shrink legal protections of individual privacy. The previous requirements for a wiretap order were removed, thereby giving law enforcement officers the freedom to use, without court oversight, regular search warrants to seize any voice-mail messages they consider vital to their investigation.

As disturbing as such infringements have been, it is heartening to see the public outcry that has emerged against such excesses. During the last two years, three states and over 150 municipalities have passed resolutions condemning parts or all of the Patriot Act. Two of these municipalities are local: Newark and Wilmington.

Another sign of government backing off in the face of public pressure is the July 2003 House of Representatives vote in which, by a margin of 309 to 118, the House agreed to prevent law enforcement 's use of sneak-and-peek warrants which allow police and other government agents conduct searches without notifying the search's subject.

A third example of growing concern with Patriot Act excesses occurred in 2003 when Representative Bernie Sanders of Vermont introduced the Freedom to Read Protection Act, which is supported by the AAUP. This bill would act as a brake on the Patriot Act's provisions allowing government investigators to force bookstore staffs and library workers to give investigators lists of books purchased or borrowed by patrons.

Wartime and other periods of tension between nations always place a strain on the relationship between freedom and security. But as the AAUP indicated during WWII, even when up against an enemy like fascism it made no sense politically to curtail people's constitutional rights in the name of a higher good - i.e., defeating the enemy.

The AAUP's exact words were:

"Academic freedom is one facet of intellectual freedom; other aspects of that larger concept-freedom of speech, freedom of the press, and freedom of religion-are among the avowed objects for which this war is being fought. It would be folly to draw a boundary line across the area of freedom."