Higher Education Board Meeting Minutes

Board Meeting, December 20, 2001,
Room 101, Ways and Means Committee Hearing Room ,
Lowe House Office Building,
Annapolis , Maryland.

Chairman Raskin called the meeting to order at 5:55 p.m. He welcomed the two newest members of the Board staff, Namsoo Dunbar, from the Attorney General’s Office, and Erica Lell, Assistant Executive Director.
In consideration of the minutes from August, September, and October, Board members present agreed to adopt minutes from earlier meetings, with spelling and/or typographical errors to be corrected, and the following changes:

October 25th meeting minutes, 2nd page, 3rd paragraph: “…reflect the current thinking of the Board pending the notice and comment period.”
Change of “You don’t have to be anti-Harvard to be pro-union” quote—correction.

Mr. Merkowitz moved and Ms. Schurman seconded to approve the minutes of August, September, and October as corrected. (CARRIED)

Chairman Raskin thanked all present (universities, unions, staff) for the good spirit of the election process thus far.

Executive Director’s Report

Mr. Pence reported on the elections already held, saying that the problems have been minimal, and thanked the unions and universities. He noted that there has been a good voter turnout, 70%, generally high participation from the campuses thus far. Mr. Pence further stated that the process of these elections has been effective, despite the lengthy hours. He thanked Denise Galante, Erica Lell, and Namsoo Dunbar for their assistance, and also stated that the universities had been enjoyable to work with
Mr. Pence noted that there are more elections scheduled—3 units at Saint Mary’s will hold an election on January 10, 2002 , and UMES will hold an election in two units on January 23, 2002 . Finally, Mr. Pence reported that the Election Order meetings have been very helpful and stated that it was his hope that they will be continued as part of the election process.

Chairman Raskin noted for the record that board member Ms. Cooperman had arrived, having been delayed by traffic problems on Route 50. Mr. Merkowitz thanked the staff generally for their hard work thus far.

Continuing Business:

“Strict Neutrality” concerns
Tom Finan of the Board of Regents along with Regent Joseph Tydings, USM Vice Chancellor Joseph Vivona and Assistant Attorney General John Anderson spoke to the university position on the neutrality issue.

Generally, the Board of Regents (speaking for its member universities) holds that the issue of neutrality is a policy question, and the Higher Education Labor Relations Board should not come between the Board of Regents, its schools, and their employees about conduct, Mr. Finan stated. Mr. Finan indicated that the Board of Regents desired to work with the Higher Education Labor Relations Board and all of the schools to make sure the collective bargaining law was enforced effectively, and further stated that the Board of Regents had been working in good faith to do this, starting with the inception of the law through the Senate Bill one year ago.

Mr. Finan further emphasized that the decentralized model under which campuses operate separates them from the general arm of the State and that it is unnecessary for campuses to follow a monolithic approach to unionization. He noted that it was important to create open dialogue about this process, and to create a level playing field on which everyone can provide information. Mr. Finan stated that the law creates an obligation to give employees all information needed (as in factual information), and to correct misinformation, so that employees are able to make an informed choice about union representation. Mr. Finan further noted that only an informed choice can be an effective choice.

Mr. Finan concluded by requesting a consistent, even-handed policy about neutrality that allows universities to develop their own policy about communication regarding union representation.

Chairman Raskin responded with a reminder that nothing in the law or the regulations bars the release of factual information from universities.

Next, Chairman Raskin asked a brief series of questions about Mr. Finan’s presentation, then Mr. Tydings spoke in response to Chairman Raskin’s questions.

Mr. Tydings stood behind Mr. Finan’s statements, and further stated that university presidents and participants should be able to make factual statements to correct the record, in terms of union representation and employee choice. Mr. Tydings spoke on the Salisbury example, and referenced the importance of Shared Governance and the role it should play as a choice relative to Collective Bargaining. Mr. Tydings expressed discomfort with the idea of the Executive Director of the Board deciding what a “factual” statement was—that once the Executive Director made a decision about this, all discussion was over, and the universities had no further opportunity for debate or discussion.

Following Mr. Tydings’ remarks, there was a question and answer period from Board members about the decision on what was and wasn’t factual, and how to deal with Shared Governance and Collective Bargaining. Mr. Vivona also spoke in response to some of these questions. At one point, between Mr. Finan’s and Mr. Tydings’ remarks, Chairman Raskin asked whether the universities wanted to be able to run an anti-union campaign under the law. This question was not answered by either of the speakers from the Board of Regents. Chairman Raskin sought suggestions from each of the speakers about how the regulation could be changed to make it more reasonable for the Board of Regents, and Mr. Merkowitz noted that the University System of Maryland is unique regarding autonomy and stated that he was sensitive to the structure of the system. This comment concluded the discussion between the Board of Regents presenters and the Higher Education Labor Relations Board members about the neutrality issue.

Following the presentation from the Board of Regents, the following people from AFSCME spoke on the issue of neutrality:

Sue Esty
Craig Newman
Lynn Rodenhouse
Gary Frank
The AFSCME presenters stated that the Board was correct in putting forth a standard of strict neutrality, noting that it was important for employees to make a representation choice in a non-hostile environment. Ms. Esty further elaborated on the difficulty of discerning what is a fact representation and what is opinion. The other AFSCME presenters spoke on worries about insubordination accusations and discipline issues. Ms. Esty emphasized that these elections deal with employee decisions only, and that there is a difference in power and influence between the university and its employees who are voting for union representation.

The AFSCME presenters were questioned by various members of the Board about access issues and neutrality issues as well (AFSCME provided the Board written statements of its position on the neutrality standard).

MCEA representatives Hillary Davis, counsel, and Mr. Carpenter, chief lobbyist, also spoke in support of neutrality. Ms. Davis spoke of concerns about balance of power and influence, as well as access to the universities. Mr. Carpenter stated that the Board should take into account the universities’ ability to hire, fire, and discipline employees, and because of this authority on the part of the schools, the neutrality aspect of the regulations should be kept.

Following the discussion about neutrality, Chairman Raskin noted the arrival of Board member Leo Gant, who also had been held up by the traffic problem.

Election Report from the Executive Director

Mr. Pence noted that this report had been given earlier and reminded those present that there were still elections scheduled for the upcoming month, and that when problems have come up, he has tried to use good judgment in the absence of a particular roadmap. Mr. Pence noted that the Frostburg State University election issue raised during Mr. Tydings’ comments had occurred in June, before the statute took effect.
Chairman Raskin suggested that the next meeting, to be held on January 31, 2002 , be a hearing on the regulations. He invited maximum input from everyone, and noted that the Board would seek counsel on what to do regarding changes (i.e., whether we have to start the regulatory process over again, or we can just make changes and move forward).

Ms. Cooperman moved and Ms. Schurman seconded that the January 2002 meeting include a hearing on the proposed regulations. (CARRIED)

Election Disputes

Mr. Pence noted that the Frostburg State University appeal had been resolved and the University of Baltimore Sworn Police Officer Unit appeal had been resolved, so ballots were opened, counted, and MCEA declared winner in the FSU and AFSCME in the UB sworn police units. Both the Bowie State University and the Coppin State College ballot challenges would be dealt with at the next meeting, Mr. Pence stated.
The discussion on the disallowed ballot from the University of Baltimore non-exempt employee unit followed this introduction. Representatives from MCEA, AFSCME, and the University of Baltimore witnessed Mr. Pence opening the sealed envelope containing the problematic ballots and the Board retreated into executive session to obtain legal advice.

Upon arising from the Executive Session, the Chairman moved and the Board agreed without objection that the ballot in question should be cast for AFSCME.

The ballot was thereupon counted as a valid vote for AFSCME. Following this decision, after a brief discussion on four of the remaining twelve challenged ballots from the University of Baltimore, the Board authorized Mr. Pence to make rulings on these challenged ballots, saying that if those rulings were appealed, at that point the Board would revisit those challenges.

University of Maryland, University College

The Board then took up the objection of UMUC to AFSCME’s withdrawal without penalty or prejudice from the scheduled exempt unit election. UMUC President Dr. Gerald A. Heeger presented the Board with oral and written statements of UMUC’s concern about the process and handling of the AFSCME withdrawal request, noting the institution was not apprised of the request and was not notified in a timely manner of the Executive Director’s decision to permit the withdrawal, and of the lack of an election bar as would have occurred had the election been held. AFSCME was heard on this matter, too, through its attorney, Keith Zimmerman, who stated that no penalty should be imposed at all due to the statement by Mr. Pence to AFSCME that a withdrawal could happen without prejudice.
The Board members responded with questions and concerns about what had happened here, including raising a question about AFSCME’s ex parte communication with Mr. Pence about withdrawing from the election. Board members agreed that there needed to be a general discussion about a withdrawal regulation to prevent future confusion about this issue and when or what penalties could be imposed after a withdrawal by a union candidate. (A draft regulation on this topic was reviewed and referred to staff for further consideration at a future Board meeting.)

Chairman Raskin also noted that this issue of withdrawal should be dealt with in future election orders and pre-order meetings. Mr. Pence agreed that this would be wise.

The Board also took up the matter of investigation of unfair labor practices.

Ms. Cooperman moved and Mr. Merkowitz seconded that the Board direct the Executive Director to investigate unfair labor practices claims, resolve them if possible, and recommend disposition to the Board if not resolved. (CARRIED)

A brief public comment period followed, during which a Mr. Dickerson of the Baltimore City Community College commented that in the BCCC unit elections, the Board did a fine job, there was a well run vote at BCCC, and the problems are over. He thanked the Board and staff for a smooth election. [ AFSCME organizer Mr. Jett also thanked the Board for running the elections well. The Board then went into executive session for further legal advice and to discuss personnel matters.

Upon arising from executive session, Mr. Merkowitz moved and Mr. Gant seconded that, drawing on his experience as a federal mediator, Mr. Gant attempt to mediate an agreement between UMUC and AFSCME to resolve UMUC’s complaint regarding AFSCME’s withdrawal from the exempt unit election at UMUC. (CARRIED)

The Board adjourned at approximately 9:30 p.m.

Respectfully submitted:

Karl K. Pence, Executive Director