Follow-up: Our Rights Under the CBA

 

Dear Colleagues, We are writing today to update you on the status of negotiations and to answer claims that were raised by some NTT faculty in response to our May 15th communication regarding Articles 15, 29, and 33 of the Collective Bargaining Agreement (CBA). This correspondence is the outcome of  many discussions with our legal counsel, the administration, and the current and former Akron-AAUP Executive Committee and Negotiating Team members. The Administration has made clear its intention to lay off bargaining unit faculty (BUF), be they non-tenure-track (NTT), tenure-track, or tenured faculty.  We are working as hard as we can to limit these layoffs and give the entire membership a voice by voting on these layoffs, as well as other concessions that are being contemplated, including pay reductions and increases to healthcare contributions to minimize layoffs.  Bargaining over these issues has begun under the provisions of Article 33, Section 3.  The Chapter acknowledges that the scope of Article 33, Section 3 is comprehensive; it potentially permits “modify[ing] any provision of this Agreement prior to expiration” if the conditions under that Section are met  (emphasis supplied).  The Chapter leadership believes that working through this contractual provision, which requires good faith bargaining and ultimately binding arbitration if agreement is not reached, is the best approach for our bargaining unit and the University as a whole. As we have noted in a prior communication, the Administration has invoked the force majeure provision of Article 15, Section 12.  Under the Chapter’s interpretation of Article 15 (Retrenchment), no BUF, whether they are non-tenure track (NTT), tenure-track, or tenured, can be laid off during the Academic year 2020-2021.  However, the Administration disputes this interpretation and believes it can lay off faculty in any order it chooses and without any advance notice. In the very near future, we will be filing a grievance regarding this dispute. We will post the grievance on our website. If we cannot reach a resolution through the current bargaining under Article 33 and the Administration maintains its position regarding its interpretation of Section 12, then we will arbitrate that issue. The Administration and the Chapter do agree that Article 15 covers all BUF. Some NTT Faculty have argued that the NTT are not covered because they are neither “probationary faculty” (Art. 15, Sec. 6.A.) nor “Instructor[s]” (Art. 15, Sec. 6.B.) nor otherwise referenced in Article 15. Such interpretation is not supported historically or practically. When the Chapter and the Administration reached their first collective bargaining agreement (2005-2009), the language of Section 6 was the same as it is today.  In 2005, both the University and the Chapter considered probationary faculty to include all faculty who were not tenured, including NTT faculty and tenure-track faculty.  NTT faculty in 2005 were titled “College Lecturers, Clinical Instructors and Instructors”, and were referred to by the general term “Instructor” in Article 15. Over the years, the titles given to NTT have changed and Section 6 of Article 15 should have been updated to reflect the changes in the titles of NTT faculty. However, not updating the titles did not change the meaning of Article 15 or both parties’ intent that the entire bargaining unit is covered by Article 15. A separate article addressing the reappointment and promotion of NTT faculty was negotiated in the second  collective bargaining agreement (2009-2013). Article 15 remained unchanged.  The new article, Article 29, was titled “Reappointment and Promotion of College Lecturers and Instructors”. It categorized NTT faculty into three ranks (College Lecturer/Instructor, Associate College Lecturer/Associate Instructor, and Senior College Lecturer/Senior Instructor) (Art. 29.B.). The language referencing only “Instructor” in Article 15 did not change.  The parties did not update the Article 15 language to reflect the change in titles for NTT faculty.  By failing to do so, the parties did not intend to exclude Lecturers, Associate Lecturers, Senior Lecturers, Associate Instructors or Senior Instructors from Article 15.  On the contrary, both the Chapter and the University understood all NTT faculty continued to be included in Article 15.  The next collective bargaining agreement (2013-2015) continued the same references to the three ranks of College Lecturers and Instructors, as in the prior agreements.  There was no change to the references in Article 15, and no intent to exclude any NTT faculty from Article 15. The fourth round of negotiations led to the current language in Article 29, which again has three ranks of two designations of NTT faculty, albeit with different designations.  Again, there was no change to the references in Article 15 and no intent to exclude NTT faculty from that Article. That all members of the bargaining unit potentially are subject to retrenchment is not surprising. Our sister Chapters all have contracts that provide for all bargaining unit members—non-tenure track, tenure track, and tenured faculty—to be subject to retrenchment. (BGSU-FA—Article 15, Section 5.3.2.; University of Cincinnati AAUP—Article 28, Section 28.3.5; Cleveland State University AAUP—Article 16, Section 16.5; Wright State University AAUP—Article T17, Section 17.6). Even though Article 29 does not exclude NTT faculty from retrenchment, it is important to remember the significant benefits the Chapter secured for NTT faculty in the last negotiations and throughout the history of collective bargaining.  Among other things, for those NTT who have three- or five-year fixed-term renewable appointments, they can be terminated only for cause during the term of the appointment, just as a tenured faculty member can only be so terminated. However, for all faculty, such protection is subject to Retrenchment, Article 15, and to Article 33, Section 3 (potential mid-term modification). The University is experiencing serious financial difficulties. We could litigate the scope of Article 15, Section 12 and/or potential issues under Article 33. We might or might not prevail in such litigation, and we might well have to proceed down that path. However, the Chapter’s leadership believes, given the tenuousness of the University’s finances, that win, lose or draw, such litigation likely would further endanger the University’s future and ultimately be a no-win situation. We believe the Administration shares this view. Accordingly, as noted above, our current emphasis is to engage with the Administration under Article 33, Section 3, and bring back the administration’s final offer to the entire membership for a vote. Our union is doing what we can to save as many jobs as possible, including demanding more cuts in expenditures on the non-academic side, such as Athletics. We are negotiating what steps we can take that best protect as many BUFs as possible, both for the short term and the long term. We anticipate approaching our colleagues who are retirement age to see if some would be willing to voluntarily retire to help save the jobs of their more junior colleagues with careers to complete and families to support.  As a group, these are mostly tenured faculty. We have requested that the Administration approach non-BUFs who are eligible to retire and seek voluntary retirements. The claim that this Chapter is not sufficiently considering our NTT colleagues is simply mistaken. Our NTT faculty have had a voice at the negotiating table since negotiations began in 2007 on our second contract agreement. That presence continues now with a non-tenure-track faculty member as our chief negotiator. Having surveyed the NTT faculty early this spring, the Negotiating Team made improvements and clarifications to Article 29 our focus in the recent contract negotiations. These improvements were tentatively agreed to by the Administration before the campus shutdown, and we are urging the Administration to include those in the proposal we bring back to you for a vote. It is important for all BUF that we remain united during this very difficult time. We are always stronger together. In Solidarity, The Communications Committee of Akron-AAUP