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Higher Education Board Meeting Minutes

Board Meeting, January 31, 2002
9:00am-12:35pm
Whitehall Room, Comfort Inn
Bowie , Maryland

1. Chairman Raskin called the meeting to order at 9:07am . He thanked the staff for securing a comfortable location for the meeting and noted the absence of board member Harriet Cooperman at the onset.

2. The first order of business was to approve the minutes from the Board’s December 20, 2001 , meeting.Mr. Merkowitz moved and Mr. Gant seconded a motion to defer approval of the minutes to the next board meeting. This motion was approved.

3. Chairman’s Report

Chairman Raskin thanked people for their comments on the proposed regulations, noting that participation in the process has improved the regulations as they are evolving. He stated that there were a few points of disagreement and that the Board and those present would be hearing about those issues later in the meeting. Chairman Raskin indicated that on the whole, the regulations process had been working well, and he thanked all the lawyers and other concerned parties.

4. Executive Director’s Report

Mr. Pence noted that the staff had conducted more elections since the December meeting. He stated that on Monday, February 4, 2002 , a forum would be held at Salisbury University for the purpose of informing all non-exempt employees about their choice in a runoff election between AFSCME and MCEA. Mr. Pence indicated that this forum should be a positive experience, and stated for the benefit of all present that the Board and the staff were happy to hold meetings and forums for training and informational purposes.

Mr. Pence then spoke about the briefing for the Maryland House Appropriations Committee, held on January 29th. The staff provided copies of Mr. Pence’s presentation for the Board and other interested parties. Mr. Pence stated that the meeting went well and it was a good opportunity for input and questions.

Mr. Pence continued to speak about the elections process, stating that he felt that the staff and the Board were moving in the right direction and resolving questions on the site. Mr. Pence candidly said that if we were making mistakes, they were correctable ones, and that the process continues to go well. Mr. Pence concluded by thanking the staff for their work.

5.Continuing Business

Chairman Raskin next moved the Board’s attention to the continuing matters, including the appeal of the Executive Director’s decisions regarding the challenged ballots at Bowie State University (BSU) and Coppin State College (Coppin), as well as the withdrawal issue at the University of Maryland University College (UMUC). The Chairman first called those witnesses who were speaking to the BSU appeal.

a. Bowie State University (Case number 2001-05)

Before the witnesses spoke, Mr. Pence noted to the Chairman that there was agreement on one of the challenged ballots, that of Ms. Margaret Cameron-Gross. Her ballot was ruled excluded and there was no appeal of that particular decision. Chairman Raskin thanked Mr. Pence for that information.

Keith Zimmerman, on behalf of AFSCME, was the first to speak to the Board. Mr. Zimmerman’s presentation was brief. He addressed the cases of employees Steve Hempstreet and Ivan Barnes, lending support to the AFSCME position that these two employees are both supervisors as per the USM definition of that term and were correctly excluded by Mr. Pence. Mr. Zimmerman noted specifically that Mr. Barnes assigned work to subordinates and handled grievance matters.

Sheila Hobson from the Human Resources Office at BSU concurred with Mr. Zimmerman’s comments, noting that Mr. Barnes supervises three PIN employees.

Hillary Davis, on behalf of MCEA, noted that MCEA was not taking a position on Mr. Hempstreet, but that MCEA did disagree with the characterization of Mr. Barnes as a supervisor. Ms. Davis noted, referencing AFSCME’s letters to the Board and the Executive Director, that it takes more than having subordinates and assigning tasks to make an employee a supervisor. Ms. Davis stated that Mr. Barnes does not have the requisite supervisory authority necessary for him to achieve this status—he does not hire or fire, he only assigns day to day tasks, and is directly supervised himself by a Mr. Swisco. Ms. Davis also spoke against AFSCME’s request to withdraw a ballot validly cast by Mr. Frazier. Chairman Raskin questioned as to whether that particular individual’s circumstances were on the table for the Board to be reviewing, and Mr. Zimmerman said no, as did Ms. Hobson. The Chairman noted that the Board had enough on its plate for the meeting, so leaving concerns about Mr. Frazier’s ballot out of the process would be appreciated. Ms. Davis agreed.

Chairman Raskin thanked the parties for their presentations, and the Board next heard about the appeal of the UMUC withdrawal issue.

b. UMUC Withdrawal of a Union Candidate (Case number 2001-06)

Again, Mr. Zimmerman represented AFSCME on this matter. Chairman Raskin requested an update on where the parties stood in this case. Mr. Zimmerman stated that the mediation session with Board member Leo Gant had proven unsuccessful, and both parties were holding to their original positions. UMUC wanted AFSCME barred from petitioning for an election for two years, while AFSCME thought no penalty was warranted. Mr. Zimmerman brought up the further defense of detrimental reliance, based on the information given to AFSCME by Mr. Pence, that in fact the union could withdraw from the election without prejudice. Finally, Mr. Zimmerman indicated that if any penalty would be imposed at all, six months would be more than adequate, based on current NLRB holdings and jurisprudence.

Mr. Schultz presented information on behalf of UMUC, stating that mediation with Mr. Gant did fail, and that the university was holding its position of requesting a two-year bar for the filing of an election petition, as would have been imposed if AFSCME had lost the election.

Mr. Gant thanked both sides for their efforts in the mediation, despite the fact that no agreement had been reached.

Chairman Raskin thanked the presenters for their information, noting that this situation was unfortunate, but had given the Board members valuable insight about the areas in which we need to add to the regulations.

c. Coppin State College (Case number 2001-07)

Mr. Pence informed the Board members that there was agreement on excluded employee Alice Smith, which left Ms. Graham and Ms. Anderson for the Board’s deliberations.

Ms. Davis returned to present information on behalf of MCEA, noting that because Ms. Graham does not fit the qualifications of either a managerial or a confidential employee, she should be included in the employee unit.

Mr. Zimmerman returned to present information on behalf of AFSCME, and stated that Ms. Anderson clearly fits into the supervisory classification, which fact is supported by all the information that AFSCME had provided to the Board.

Chairman Raskin thanked Ms. Davis and Mr. Zimmerman for their presentations, and signaled that the Board would next retire to executive session for legal advice regarding the decisions about Coppin, Bowie , and UMUC.

The Board retired to executive session at 9:35am

*****

The Board reconvened in open session at 10:55am .

Regarding Bowie , Chairman Raskin noted that there were no conflicts surrounding the exclusion of Margaret Cameron-Gross. Regarding the status of employee Ivan Barnes,Mr. Merkowitz moved and Ms. Cooperman seconded a motion to have counsel Namsoo Dunbar prepare interrogatories for all parties relative to questions that the Board members needed to have answered. This motion was approved.

Mr. Merkowitz next went through some background as to why the Board felt that additional information was necessary regarding Mr. Barnes’ employment status. Mr. Merkowitz noted that the issues surrounding Barnes’ exclusion or inclusion in the unit involve questions of both national and local labor law. He continued, noting that while the Board was appreciative of all the information received on these challenged employees, the information presented on Mr. Barnes’ was not dispositive, and the Board was in need of the “facts on the ground” concerning Mr. Barnes’ actual position. Additionally, Mr. Merkowitz pointed out that the Board was sensitive to the directive from the statute, which gives the university the power to define employee status, but that more facts were needed in order for the Board to rule in this instance.

Chairman Raskin indicated agreement with Mr. Merkowitz, noting that the questions raised by these appeals are sensitive, and they require an understanding of what is really going on with employee status, versus what is stated on paper.

Susan Schurman noted specifically that the issue that the Board is especially concerned with is whether the employee has the power to “effectively recommend” hiring, firing and/or discipline, and that the staff and counsel of the Board should develop interrogatories going to that question specifically.

Following the direction to counsel and Board staff regarding Mr. Barnes, Ms. Cooperman moved and Mr. Merkowitz seconded a motion to uphold the Executive Director’s decision regarding employees Cameron-Gross and Hempstreet. The motion carried.

The Board next moved to the UMUC withdrawal issue. Ms. Cooperman moved and Mr. Gant seconded a motion to approve a nine (9) month bar on the filing of an election petition by AFSCME at the campus of UMUC. The bar would take effect beginning on the date of the original election, and a reminder was issued regarding the six-month rule for interest cards. The motion was approved.

Finally, the Board turned to the Coppin State College appeal. Ms. Schurman moved and Ms. Cooperman seconded a motion to uphold the Executive Director’s decision regarding employee Alice Smith. The motion carried.

next,Ms. Schurman moved and Ms. Cooperman seconded a motion to reverse the Executive Director’s decision regarding Vanessa Graham. The motion was approved.

Last,Ms. Schurman moved and Ms. Cooperman seconded a motion to reverse the Executive Director’s decision regarding Sharon Anderson. The motion was approved.

6. Although there are three outstanding Unfair Labor Practice charges that the Board has received, the staff is still the process of investigation and no action on these issues is needed at this time.

7. Action on Proposed Regulations

After the decisions were rendered on the appeals, the Board moved to the proposed regulations. Chairman Raskin invited comments from the witnesses present, most of whom had previously signed up on a list provided by the Executive Director.

1. AFL-CIO—Mr. Levin

Mr. Levin began his remarks by thanking the Board for the opportunity to present information. Mr. Levin’s presentation focused on the strict neutrality provision of the proposed regulations. He maintained two positions:

a. Allowing employer campaigning in representation elections is a violation of human rights
b. Requiring neutrality is consistent with public labor relations practice

Mr. Levin emphasized that employers and employees do not have an equal voice and role in this process. He spoke about the history of employer tactics in the collective bargaining area that were legal but highly coercive, citing specific examples of employer behavior towards employees, and noting the hiring of specialists by employers, to run anti-union campaigns. Mr. Levin stated that employer campaigning employs the use of “raw fear and crush[es] the spirit of university employees.” Mr. Levin went on to provide U.S. statistics on employer campaigning, and noted in summary that the need to stop the coercive nature of employer campaigning rises above the idea that all voices should be heard in the process.

Mr. Levin next turned to the idea that taxpayer money is being used to fund the maintaining of a union free environment. He provided examples of other state governments disallowing the spending of public funds to keep unions out. Mr. Levin noted that the strict neutrality provision of the proposed regulations was a necessary bulwark against the spending of public funds by a university employer.

2. AFSCME—Gary Frank & Maurice Jones

Mr. Frank began his presentation by recognizing a number of AFSCME members at new University locals who were present at the meeting. He then gave his position paper to the Board staff and the individual Board members. Mr. Frank noted that the issue of strict neutrality had been mischaracterized as an issue of free speech, when it is really about creating an equal playing field. Mr. Frank indicated that AFSCME would be submitting a proposed regulation that meets the spirit of the current strict neutrality regulation but avoids words of neutrality.

Mr. Frank continued, noting that to tell employees to vote for Shared Governance versus a union was not good because the Shared Governance programs were not designed to deal with issues of a Collective Bargaining system. Mr. Frank stated that neutrality does not require a dismissal of free speech rights. He then introduced Maurice Jones, an employee from Salisbury University.

Mr. Jones gave the Board some information about his background—he had worked for Salisbury for roughly 14 years as a plumber. Mr. Jones then listed some of his job duties. He spoke about anti-union conduct from his overseers, and gave examples of times when University public safety officials would escort AFSCME representatives and organizers off campus, and sometimes the organizers would be arrested, while MCEA representatives would be welcome on campus. Mr. Jones stated that management should not have the right to tell employees whom to vote for.

Chairman Raskin then questioned Mr. Frank and Mr. Jones as to what other sections of the regulations were or would be useful to them. Mr. Frank noted in response that workers who want to run union campaigns are punished. Board member David Merkowitz requested Mr. Pence to speak a bit about the situation at Salisbury, noting first that the Board was not holding a hearing about Salisbury at that time, but that some background information from Mr. Pence would be helpful. Mr. Pence stated that a runoff election was scheduled for February 6, in the Non Exempt unit, between AFSCME and MCEA. Mr. Pence also noted the upcoming Informational Forum presented by the University, the Board, and the two Unions. The Forum was to be held on February 4, 2002. Mr. Merkowitz noted that the Board has Unfair Labor Practice procedures, and asked Mr. Frank and Mr. Jones whether strict neutrality would remedy the sorts of problems that the men had spoken about. Mr. Frank stated that public officials have more rights than public employees and the strict neutrality issue is more about leveling the playing field than it is about free speech. Mr. Merkowitz asked if there was an opportunity for management to express views that don’t violate strict neutrality. Mr. Frank again spoke to the equal forum time, and the necessity of leveling the playing field between the university and the unions.

Board member Harriet Cooperman then asked whether there was anything else Mr. Jones or Mr. Frank could recommend in terms of the regulations that might bring the relief they sought. Specifically, Ms. Cooperman wondered if a regulation that spoke precisely to equal access or opportunity to express views would be helpful. Mr. Frank noted the problem with this would be that the university would have the chance to spend its more extensive resources (as compared with those of the unions) on the opportunity to share information. Chairman Raskin asked Mr. Frank if he objected to the use of funds for this. Mr. Frank’s response was unclear.

Closing out the Board’s questioning, Chairman Raskin stated that during work hours, views can’t be expressed by the university, but off hours, would this work? Mr. Frank said yes. Mr. Jones then indicated to the Board members that he wasn’t intending to force a focusing on just Salisbury. The Board members all agreed that this was understood.

3. American Federation of Teachers—Steve Porter & Gary Pagels

The presenters for the AFT were Mr. Porter and Mr. Pagels. Mr. Porter started the presentation, speaking to strict neutrality. Mr. Porter noted first that public money should not be used to undercut the rights of employees. He then gave examples of other states’ legislation regarding neutrality, including New York. Next Mr. Porter spoke to the general problems with anti-union campaigns, noting that even during non-work hours, the university has significant influence and a coordinated anti-union campaign should not be permitted. Mr. Porter also gave specific examples of tactics employers use in these campaigns, such as hiring consultants to assist in running the campaign. Next, Mr. Porter spoke to access issues, referencing Towson University. Mr. Porter also noted that it was necessary to have employee e-mail addresses included in the listing of employees provided by the universities.

Mr. Porter then introduced Gary Pagels, who was to speak about penalties. Specifically, Mr. Pagels began his comments with the penalty of decertifying a union for failure to follow the collective bargaining law. Chairman Raskin noted that the language in the regulation regarding this idea tracks the exact language of the statute, and stated that the Board can’t do anything about the language of the statute. In response, Mr. Pagels requested that the Board stand with the AFT in attempting to get the Maryland Legislature to change this language. Mr. Pagels called this provision in the statute an “organizational death penalty”. This concluded the presentation by the AFT, after which Chairman Raskin thanked both gentlemen for their remarks.

4. MCEA—Hillary Davis

Ms. Davis briefly stated that MCEA was in favor of strict neutrality, and echoed the comments given by earlier presenters.

5. UMUC—Randy Schultz

Mr. Schultz pointed out that strict neutrality does not give a level playing field because employees are not permitted to hear employer opinions and concerns. He noted that to keep strict neutrality in the regulations would run against the legislative intent in the statute.

Chairman Raskin noted that Mr. Schultz was making an intellectual argument centered on the “marketplace of ideas” notion. He then asked Mr. Shultz to speak to the balance of power issues. Mr. Schultz responded that the regulations had Unfair Labor Practice provisions to take care of any problems with a balance of power. Chairman Raskin next asked Mr. Schultz if the strict neutrality provision had inhibited the choice of employees. Mr. Schultz responded that it had inhibited access to information. Chairman Raskin then asked if a Board sponsored forum where all interested parties could speak would meet Mr. Schultz’s informational requirement. Mr. Schultz said that it might or might not, but that the university has an obligation to get information to its employees, and that opportunity exists with or without the strict neutrality language. Mr. Schultz further noted that strict neutrality might encourage Unfair Labor Practice filings if it is kept in the regulations, because of people’s perception of speech.

Board member Susan Schurman asked questions about a level playing field and a distinction between speech during work time and that during off time. Mr. Schultz responded that the university already had the opportunity to give information during off time.

Board member Harriet Cooperman next asked about replacing the strict neutrality provision with something more extensive about equal access—would this be okay with the university? Mr. Schultz noted that the university must operate and work must continue to be done, but that the university would be willing to look upon this replacement favorably.

Board member David Merkowitz pointed out that the debate assumes that the management interest would be to oppose unionization. He asked whether that is the only position that the university would take? Chairman Raskin echoed this sentiment with a question as to what if the university was endorsing unionization, would this be no violation? Mr. Merkowitz specifically linked this question to endorsing the notion of a union petition as well. Mr. Schultz noted that many university presidents just want to express their personal experiences, and give employees a chance to hear all sides and vote accordingly. This concluded Mr. Schultz’s remarks and Chairman Raskin thanked him for his presentation.

6. University System of Maryland—Joseph Vivona

Office of the Attorney General, Educational Affairs Division—John Anderson

Mr. Vivona began by stating thanks for those who had spoken on behalf of the strict neutrality provision as it stands, and noted an appreciation for the concern that there would be problems with the elections and the collective bargaining process if strict neutrality provisions were absent from the regulations. Mr. Vivona further stated that the employer would never favor one union over another, that this would be a clear Unfair Labor Practice. He noted that there is a difference between the behavior that would be judged in a ULP setting and the behavior if there was a strict neutrality regulation violation. Mr. Vivona stated that there has been no evidence of any coercive behavior on the part of universities thus far and noted that the outcome of the elections gives no evidence of an uneven playing field.

Mr. Vivona moved to the financial aspects of the regulations, noting that the expenditure of funds arguments are difficult because whenever a university president speaks, state money is spent. Chairman Raskin asked what the distinction would be between a university president speaking versus an outside group being brought in to speak for the university. Mr. Vivona indicated that he would like to have a conversation with the Board of Regents about that issue before answering Chairman Raskin’s question.

Mr. Anderson then spoke about money and public funds, noting that a statutory provision is needed to restrict the spending of money, it can’t be done through regulations. Mr. Anderson also noted the distinction between remaining neutral and remaining silent, speaking directly to the issue of whether a forum would help. Mr. Anderson indicated that a forum might not help, because others could speak freely there too.

Board member David Merkowitz asked about the distinction between Mr. Anderson’s and Mr. Vivona’s remarks concerning public funds and the strict neutrality issue. Mr. Vivona responded that he wasn’t against the word “strict,” just the word “neutral”. Mr. Anderson noted that the Board of Regents has broad authority over the system, and it may make rulings on various points of spending. Mr. Anderson noted that he didn’t believe this board had the same authority. Chairman Raskin asked whether the Board of Regents had held meetings regarding strict neutrality, and were they open to the public. Mr. Anderson stated that yes, they were open, and the presentation from the Board of Regents at the December 20th board meeting was taken directly from the Board of Regents meeting.

This concluded the presentation from Mr. Vivona and Mr. Anderson. Both Chairman Raskin and Board member David Merkowitz thanked all the parties that were involved in this process.

Chairman Raskin generally thanked everyone who had made remarks before the board, and indicated that the Board was in a position to move to adopt those proposed regulations where it had received only technical comments and grammatical corrections. Assistant Executive Director Erica Lell read through a list of the citations and titles of those particular regulations that could be adopted with the technical/editorial and grammatical changes to be added. A list of those regulations that the board acted on follows:

§14.30.01.01(A)—to be adopted, subject to grammatical & technical revisions
§14.30.01.01(B) (1-11), (13-19)—to be adopted, subject to grammatical and technical revisions
§14.30.02.01(all sections)—to be adopted, subject to grammatical and technical revisions
§14.30.03.01(all sections)—to be adopted, subject to grammatical and technical revisions
§14.30.03.04.01(all sections)—to be adopted, subject to grammatical and technical revisions
§14.30.04.04(all sections)—to be adopted, subject to grammatical and technical revisions
§14.30.04.05(A)—to be adopted, subject to grammatical and technical revisions
§14.30.04.05(B)(1,2, 3a & b)—to be adopted, subject to grammatical and technical revisions
§14.30.04.05(C, D)—to be adopted, subject to grammatical and technical revisions
§14.30.04.06(B)(1-3)—to be adopted, subject to grammatical and technical revisions
§14.30.04.06(B)(4-7)—withdrawn from regulations
§14.30.04.06(C-H)—to be adopted, subject to grammatical and technical revisions
§14.30.04.07(all sections)—to be adopted, subject to grammatical and technical revisions
§14.30.04.08
§14.30.04.09
§14.30.05.01-.04 (all sections of each)
§14.30.05.06-.07 (all sections of each, with the exception of .07(B))
§14.30.05.08 (all sections)
§14.30.05.09(A, B)
§14.30.05.10(all sections)
§14.30.05.11(all sections)
§14.30.05.12(all sections)
§14.30.05.13(all sections)
§14.30.05.14(all sections)
§14.30.05.15(all sections)
§14.30.05.16(all sections)
§14.30.05.17(all sections)
§14.30.06.01(A, B, D, E, F, G, I, J)
§14.30.06.02(all sections)
§14.30.06.03 (A, C, D)s
§14.30.06.04 (B, C, D, E, F, G (1-4, 6-7)
§14.30.07.02(B, C)
§14.30.07.03
§14.30.08.01(all sections)
§14.30.08.02 (all sections)
§14.30.11.01(all sections)
§14.30.11.02(all sections)
§14.30.11.03(all sections)
§14.30.11.05-end (all sections)

Chairman Raskin next moved to some of the several sections of the proposed regulations that were not included in this general list. Ms. Lell reminded the Chairman of the fact that the Board did receive substantive comments and recommendations concerning those regulations, which was why they weren’t included in the listing of regulations above that the Board would be adopting. Included in those regulations was the provision about universities being “public fora”. Chairman Raskin moved (with the approval of the other Board members) to withdraw this provision (proposed regulation §14.30.07.01). The motion was seconded by Leo Gant, and approved by the remaining Board members.

Harriet Cooperman then moved to withdraw the Gissel provision (§14.30.06.04(G)(5)). Ms. Cooperman asked the staff to state its position on this particular provision. Staff Counsel Assistant Attorney General Namsoo Dunbar stated that position—that the provision should be withdrawn as it goes beyond the authority of the Board. Ms. Cooperman’s motion was seconded by Mr. Gant This motion was approved.

Ms. Cooperman moved to withdraw the strict neutrality provision (§14.30.06.04(H)), which Mr. Merkowitz seconded. Immediately following Mr. Merkowitz’s second, Mr. Gant moved to table this provision for discussion at the next board meeting. Mr. Gant’s motion was seconded by Susan Schurman. All board members then indicated that they were in favor of holding discussion on strict neutrality to the next meeting, and therefore approved Mr. Gant’s motion.

§14.30.07.02(A) was brought up next by Chairman Raskin, who indicated that a simple change of an “and” to an “or” was up for discussion and approval. Chairman Raskin read the provision, then noted that the change would create some ambiguity relative to access issues. Harriet Cooperman moved to consider this regulation at the next meeting. This motion was seconded by Leo Gant, and the remaining Board members approved.

Mr. Pence then reminded Chairman Raskin of the additional regulations recommended to the Board, namely a regulation on withdrawal of unions from elections, and a decertification regulation. Chairman Raskin thanked Mr. Pence for reminding him of these and instructed the staff to prepare language regarding these regulations for the Board’s consideration.

Next,Ms. Cooperman moved and Mr. Merkowitz seconded the motion to adopt a provision in §14.30.05.18. Mr. Merkowitz and two other Board members abstained from voting on this motion, and the final Board member voted with Ms. Cooperman. However, because of a three to two vote in favor of abstention, the issue was tabled until the next meeting.

Chairman Raskin noted that the Board members needed time to look through the remaining regulations and the commentary provided by various parties, as there are substantive issues to consider.

Mr. Pence stated that a motion to adjourn was the final order of business.Mr. Merkowitz moved to adjourn the meeting, and the remaining members of the Board unanimously seconded the motion.

The Board adjourned at 12:35pm.


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