Higher Education Board Meeting Minutes

Board Meeting, February 28, 2002
9:00am-1:45pm
Chesapeake Room, Comfort Inn
Bowie , Maryland

1. Chairman Raskin called the meeting to order at 9:15am . The following members were present: Jamin Raskin, David Merkowitz, Leo Gant, Harriet Cooperman.

2 The first order of business was to approve the minutes from the Board’s December 20, 2001 and January 31, 2002 meetings.Board member David Merkowitz moved and Leo Gant seconded the motion to approve the minutes Mr. Merkowitz noted that there may be non-substantive corrections to the minutes as well. The motion to approve the minutes carried.

3. Chairman’s Report

Chairman Raskin reported that Board members David Merkowitz, Harriet Cooperman, and Leo Gant had been formally confirmed in their positions by the Maryland Legislature, and noted that his own confirmation hearing was coming on Monday. Chairman Raskin then turned the meeting to Mr. Pence for the Executive Director’s report.

4. Executive Director’s Report

Mr. Pence spoke about the two elections that the staff had conducted since the January meeting—both the University of Baltimore Runoff , and the Salisbury Runoff. Mr. Pence noted that AFSCME had prevailed in the UB election, while at Salisbury the numerical tally indicated an MCEA victory in the non-exempt employee unit. However, MCEA could not be officially certified as the winner at least until the outstanding Unfair Labor Practice charges and the General Objection to the Election that had been filed were resolved.

Mr. Pence then went on to speak about the Board’s upcoming election at the College Park campus, for the Sworn Police Officers Unit. Mr. Pence noted that the election would use the new “touch screen” computer ballots, and would be the first official election in the state to use this technology. Board member David Merkowitz asked questions about the particulars of the election process specifically wondering what would be done with challenged ballots. Mr. Pence responded that a challenged ballot would be done on paper as they are currently processed. Mr. Pence stated that the election would be held on March 14th, but that on the 13th there would be a demonstration of the technology, and that representatives from unions and universities, as well as the member of the Board, would be welcome to attend, in order to learn the technology, should it be used in future election proceedings. Mr. Pence requested that any party who wished to attend on the 13th was to call the Board office to reserve a space.

5. Continuing Business

a. Bowie State University , Case No. 2001-05

The parties came forward to speak to the interrogatories that were sent to the board regarding the status of Exempt Unit employee, Ivan Barnes.

Keith Zimmerman spoke first on behalf of AFSCME, stating that the union had not submitted any responses to these interrogatories because AFSCME stood behind the responses from the university indicating that Mr. Barnes was clearly a supervisor. Mr. Zimmerman pointed the Board members specifically to the University responses to questions 4, 7, 6, and 8.

Sheila Hobson from Bowie State University noted that Mr. Barnes does performance evaluations and that recommendations are made by all levels of supervisory employee.

Ms. Hobson next offered comments regarding Mr. Barnes’ involvement on a search committee. Board member David Merkowitz stated as a comment to Ms. Hobson’s remarks that rarely would supervisors be found on search teams.

Hillary Davis spoke on behalf of MCEA, nothing that Mr. Barnes is on the same status level as the employees he allegedly supervises. Ms. Davis noted that Mr. Barnes does not fit the University System of Maryland’s definition of supervisory employees, based on the position description form from the University. Ms. Davis indicated that Mr. Barnes had assisted in providing the responses to the interrogatories, and had looked at a final copy, approving it, before submission to the Board. Ms. Davis stated that Ivan Barnes did not have any more power to recommend than any of the other employees that worked with him.

Board member Harriet Cooperman asked about the forms that had been filed by the University, and also asked whether if Mr. Swisco disagreed with an evaluation form initialed by Barnes that would be okay? Ms. Hobson answered that it would. Mr. Merkowitz asked who evaluated Mr. Swisco and whether the same forms were used for that evaluation. Ms. Hobson responded that Greg Petter would evaluate Mr. Swisco, and then proceeded to tell the Board the step by step procedures in an evaluation.

Board member Leo Gant asked Ms. Hobson how the university hires, whether it advertises or not. Ms. Hobson responded that the university does both internal and external advertising. Mr. Gant asked about how the University would advise employees as to the status of the job they are hired to do. Ms. Hobson responded that usually the supervisor of that employee will talk to them. Mr. Gant asked if Swisco would do this. Ms. Hobson responded that yes, Swisco would do this, or Petter.

Ms. Cooperman asked to what extent are performance evaluations used to determine hiring, or raises. Ms. Hobson replied that these evaluations are a key element in determining those things. Chairman Raskin asked Ms. Davis if she had any further information to present to the Board. Ms. Davis spoke to the fact that there were six (6) people in the physical space, and that Swisco and Petter are also included, observing the employees. Ms. Davis stated that Mr. Barnes is only a lead employee and not a supervisor.

Mr. Zimmerman stated in closing that Mr. Barnes fits the USM definition of supervisory employee, because of the recommendations he does. Mr. Zimmerman stated that if an employee gets a good recommendation, typically, they get a raise in pay, and the opposite if they get a poor recommendation. The idea that a reward comes from the recommendation is evidence of Mr. Barnes’ supervisory status.

Chairman Raskin next asked the Board members if there were any motions regarding the status of Mr. Barnes Mr. Merkowitz moved to include Mr. Barnes’ vote. Chairman Raskin asked for a second and received none. Chairman Raskin asked if there were any other motions. Ms. Cooperman moved to uphold the Executive Director’s decision to exclude Mr. Barnes’ vote. Mr. Gant seconded the motion. Chairman Raskin invited the Board members’ comments on this issue.

Ms. Cooperman noted that the “effectively recommend” section of the USM definition fits what Mr. Barnes does. She also noted that the directive in the statute governing the Board is that deference should be given to the University designations of employee status. Mr. Gant agreed with Ms. Cooperman’s statements. Chairman Raskin then asked Mr. Merkowitz for his comments. Mr. Merkowitz noted the differences between Higher Education units and general Industry units, in terms of job descriptions, searches, and evaluations. Mr. Merkowitz expressed concern about making the term “supervisor” a means of achieving more exclusions of potential voters in these employee units.

Chairman Raskin stated that the statutory provisions are clear on this matter, and that in order to be problematic, the university designations of employee status need to rise to the level of an Unfair Labor Practice, for instance where a University has retitled employee’s job descriptions because the school didn’t want that employee to vote.

Mr. Merkowitz asked Mr. Pence about the procedures by which Mr. Barnes was challenged. Mr. Pence indicated that yes, there are procedures, and indicated how an employee goes through the challenged ballot process when a Board challenged is made.

Mr. Merkowitz expressed concern that these challenges were not being worked out before the election by the parties or through any of the Board staff’s preparation work.

Chairman Raskin asked if a vote could be taken regarding Ms. Cooperman’s motion. Three Board members voted in favor of upholding the Executive Director’s decision to exclude Mr. Barnes’ ballot, and one member voted to overturn the Executive Director.

The Cooperman-Gant motion to uphold the exclusion of Mr. Barnes carried.

b. Unfair Labor Practice Claim

Chairman Raskin next directed the Board’s attention to the outstanding Unfair Labor Practice charges that are pending, asking Mr. Pence if he would speak to the situation with AFT.

1. Case No. ULP 2001-01—withdrawn by petitioner

Mr. Pence described the situation—that AFL-CIO had ruled that AFT was not permitted to organize higher education employees in Maryland , and as a result the AFT had withdrawn its ULP at Towson University . Mr. Pence noted that the AFT did not withdraw based upon the merits of the case, but on the reality that the organization wouldn’t have standing to file a ULP because it wasn’t organizing.

2. Case No. ULP 2001-02
Case No. ULP 2001-03
Case No. ULP 2002-01
General Objections to Election

Chairman Raskin next noted the existence of several complaints at Salisbury University , in particular the ULP based on the Shared Governance Programs, the ULP based on the treatment of employee Donald Pryor, and the ULP based upon unlawful assistance to MCEA. Mr. Pence noted that both a regular election and a runoff election had been held at Salisbury , and the runoff election results had been 114 for MCEA, 106 for AFSCME. However, the winner of the vote tally could not be certified because of the outstanding ULPs and the objection to the election.

Chairman Raskin suggested that the Board schedule a hearing on this matter. Attorney Joel Smith asked if he could be heard on this on behalf of AFSCME and Chairman Raskin agreed. Mr. Smith first noted the threshold issue of whether ULP charges could be heard by the Board. Chairman Raskin noted that the Board did have the authority to hear these cases. Mr. Smith then indicated that the case would need more time than the hour that Chairman Raskin had initially suggested. Mr. Smith noted that the case involving Mr. Pryor would need an oral hearing, as evidentiary matters would be presented, as well as paper filings. Mr. Smith next moved to the Shared Governance Program ULP, indicated that the Board may look to a traditional Summary Judgment process for this hearing, but that AFSCME would want to reserve the right to put forth testimony.

Chairman Raskin proposed that a Board hearing be scheduled for the Shared Governance and the Unlawful Assistance to MCEA matters, but that the ULP involving Mr. Pryor be sent to the Office of Administrative Hearings or to another independent person who would serve as a hearing examiner. Mr. Smith indicated that this may be optimistic, but that AFSCME would defer to the Board’s judgment on this procedure. Mr. Merkowitz indicated that he would be reluctant to limit the time for the Salisbury proceedings to one hour, that the underlying issues deserved discussion in open and executive session. Mr. Smith suggested that a hearing be scheduled for a special day, separate from the Board’s regular meeting time.

Chairman Raskin moved to schedule a hearing on the issues separate from those involving Mr. Pryor. Mr. Merkowitz seconded this motion.

Ms. Davis stepped forward at this point, noting that she would like to be copied on behalf of MCEA on these matters. There was some general discussion as to whether MCEA was a party to any of these cases. Mr. Smith agreed that MCEA has an interest in the proceedings, but was reluctant to state that MCEA was actually a party.

Chairman Raskin indicated that there was a motion on the table for the Board to conduct a hearing on the Shared Governance Program ULP and on the Unlawful Assistance to MCEA ULP. Ms. Cooperman stated that the Board should consider all of the ULP charges together.

Chairman Raskin stated that the Shared Governance Program ULP and the Unlawful Assistance ULP deal with issues of policy, and that the individual ULP regarding Mr. Pryor was not related to general policy. Various Board members commented on how best to separate these issues. Donna Keener, the director of Human Resources at Salisbury University then asked if she could be heard. She questioned the Board members on the issue of the objection to the election, and how this was to be handled. Mr. Merkowitz indicated that the Objection should be separate from the ULPs.

Ms. Cooperman then suggested that the matters be separated as follows:

a. have a Hearing Officer deal with the Pryor matter first, before the other ULP hearings are held by the Board

b. receive the recommendation on the Pryor matter from the Hearing Officer and then fold it in with the Board hearing on the other matters, including the Objection.

Chairman Raskin indicated as a second, that Ms. Cooperman’s proposal would stand as an amendment to the earlier motion. The amendment was accepted without objection.

Mr. Smith expressed concern that certain things might be lost in the separation of the matters. Chairman Raskin responded that the Board wanted to do as thorough a job on this hearing as possible, and it would be helpful for a Hearing Officer to dispose of the Pryor matter first.

Ms. Keener asked as to the grievance process that was currently underway regarding Mr. Pryor’s situation at Salisbury University . Chairman Raskin indicated that the Board cannot control the disposition of University grievance procedures any more than University could not control the Board’s disposition of ULPs. There was a brief discussion as to the importance of the University decision on the grievance matter.

Ms. Davis on behalf of MCEA indicated that some of the other matters besides that of Donald Pryor might have factual issues to dispose of. Chairman Raskin indicated that the Board would hear all of these factual concerns.

Mr. Smith asked if testimony and prior filings would be required, and how pre-hearing submissions were going to be dealt with. Mr. Merkowitz indicated that those were matters for the Board members to discuss in executive session.

Chairman Raskin indicated that the previous question as defined thus far was proposed for official consideration. All Board members present indicated they were in favor, and the motion, as amended,carried.

6. New Business

a. Saint Mary’s College, Sworn Police Unit, challenged ballots: Case No. 2002-01

Before the Board began to consider the merits of these challenges, Mr. Pence indicated that changes had happened in the unit, some employees had left and new had come in. As a result, the only challenge that the Board was to consider was that of Benjamin Hamilton.

Mr. Merkowitz asked the presenters (Mr. Zimmerman for AFSCME, and two representatives from Saint Mary’s) what constituted a unit at the school at this point. Mr. Zimmerman indicated that the only person whose challenge was at issue for the board to consider was Hamilton . However, Mr. Zimmerman did go on to say that the composition of the unit generally, was at issue, and the election therefore was at issue as well.

Pat Murray from Saint Mary’s College presented information to the Board concerning Hamilton ’s supervisory status, including referencing a congratulations letter from the university for Hamilton ’s promotion to supervisor. Ms. Murray also noted an NLRB letter defining supervisory employees, including a three-part test which Hamilton ’s status satisfied. Ms. Murray also noted that Hamilton made recommendations and was on a search committee. Ms. Murray indicated that there were two supervisors in this unit, Mr. Hamilton, and Mr. Brooks. Chairman Raskin asked which of these men had a higher status. Ms. Murray stated that the college had not approved of the use of ranks but that rank names were used internally by the officers for practical purposes regarding their work at the college.

Ms. Cooperman then asked about the ways Mr. Hamilton would supervise. Ms. Murray responded that Mr. Hamilton supervises shift employees, he disciplines both commissioned and non-commissioned officers. Mr. Hamilton has the specific ability to enforce warnings and suspensions. Mr. Hamilton may discuss his options in a particular situation with his own supervisor, but Hamilton does have the authority to do these things on his own.

Mr. Merkowitz noted at this point that Saint Mary’s College is not a System school and therefore has its own definitions of the three levels of excluded employees. Mr. Gant stated that in Mr. Hamilton’s affidavit that was submitted with the papers from the college, there was a section (#5) that said that supervisors had told Hamilton to issue discipline. Ms. Murray stated that this was evidence of collaborative efforts between Sworn Police employees.

A discussion continued about training that these officers receive, for supervisory status, as well as non-supervisory status. Mr. Merkowitz asked if all of the officers were expected to go through this training. Ms. Cooperman clarified that there were two training courses, that for supervisors and that for non-supervisors. Ms. Murray stated that this was correct, there are two training sessions.

Keith Zimmerman stated that there was a question of ratio, considering that there are three supervisors and two employees.

Chairman Raskin asked if the other Board members wished to make any motions. Mr. Merkowitz moved that this case be held overuntil the next meeting so the Board would have a chance to review the materials more closely. Ms. Cooperman seconded this motion, and the motion carried.

Mr. Merkowitz commented that at this point the Board is considering cases that deal ex post facto with the issue of election procedures and which employees are excluded. Mr. Merkowitz asked if issues of this sort could be worked out before the election to minimize the conflict. Mr. Pence answered that the staff directs the parties to have as much resolution as possible regarding the status and possible exclusion of employees, before the election, but there are some challenges that can’t be resolved before the election.

Mr. Pence stated that the Board should deal with the issue of the March meeting, currently scheduled for the 28th of March in the middle of Passover and Easter. Mr. Merkowitz moved to cancel the March meeting and meet in April as per the normal schedule. Leo Gant seconded this motion. the motion carried.

Chairman Raskin asked for motions to certify officially all of the resolved elections that had taken place to date. Mr. Gant so moved , and Mr. Merkowitz seconded. This motion carried. See Appendix A for a list of these elections.

Chairman Raskin then announced a five-minute break before returning to deal with the remaining regulations

7. Action on Remaining Regulations

The Board took action on the remaining regulations that had been laid over from the January meeting.The Chairman recommended and the Board agreed without objection that these regulations be discussed and adopted ad seriatum as appropriate. Assistant Executive Director Erica Lell put each remaining regulation to the Board members in the following order:

1.) §14.30.02.02 versus §14.30.04.07(D)—filing a document, versus filing an amendment

The Board members voted to preserve §14.30.02.02 in its current language. By consensus the Board agreed to lay over §14.30.04.07(D) and work with the language at a future meeting.

2.) §14.30.04.05(B)(3)(c)—Showing of Interest (signature)

The Board members decided without objection to remove this section.

3.) §14.30.04.06(A)—Showing of Interest (“current” employee question)

The Board members noted that §14.30.04.05(B)(3)(b) reflects that “current” employees are signing these cards. The Board also noted that the concerns that various parties had commented on here were of an administrative nature, and could be remedied by getting a current eligibility list from the university when the petition was filed with the Board. The previous question to adopt carried.

4.) §14.30.05.05

The Board decided without objection to delete section (A)(1), and to amend sections (A)(2) as follows:

(2) Are employed on the date of the last payroll period before the order the election.

The previous question to adopt this section as amended carried

5.) §14.30.05.07(B)—addition of e-mail addresses.

A motion by Mr. Merkowitz, seconded by Ms. Cooperman to add letter “e.” to this section, requiring universities to provide worksite e-mail addresses, carried. The previous question to adopt as amended carried.

6.) §14.30.05.09(C)

The Board amended the proposed language without objection, as follows:

C. The participating unions and the institution president or governing board shall provide the Executive Director, at least 3 days before the election, with the names of their designated observers and no more than two alternate observers, unless otherwise agreed to by the parties and the Executive Director, who may observe in place of, but not in addition to, a designated observer.

The previous question to adopt as amended carried.

7.) §14.30.05.09(D)

The Board members voted to approve this section unanimously. It should have been passed at the last meeting as it received no substantive comments, however it was inadvertently skipped over in January. The previous question to adopt carried.

8.) §14.30.05.18

Chairman Raskin noted that this is the section that tracks the statute, and if this is the case, does there need to be a regulation? Ms. Cooperman noted that it should be kept in the regulations as it is, although it may be moved. Mr. Merkowitz’s motion to move this regulation to a different section was agreed to without objection. The previous question to adopt as amended then carried.

9.) §14.30.06.01(C)—administrative leave ULP

Ms. Cooperman spoke here about the balance between this regulation and section (H) in this subtitle, dealing with strict neutrality.

Mr. Merkowitz indicated support for the strict neutrality provision as it is currently drafted, citing concerns about the imbalance of power between employees and the institutions. Mr. Merkowitz also expressed concern as to the meaning of §14.30.06.03(D), misinterpretation of fact. He went on to talk about the imbalance of power as reflected in a small employee unit with a relatively large number of supervisors. Mr. Merkowitz spoke further about also not wanting to trample on the first amendment where the university was concerned, and finally needing to create language in the regulations that defines neutrality in such a way as to preserve freedom of expression but have an equal balance of power.

Mr. Gant stated a concern about the captive meeting process, noting there needed to be equality in access, and that safeguards are already placed in the regulations to prevent the captive meeting situation. Mr. Gant stated an agreement with Ms. Cooperman’s proposal that the neutrality be required between competing labor organizations.

Mr. Merkowitz then asked how Shared Governance was affected by neutrality.

Chairman Raskin wondered if the Board would encourage employees to choose Shared Governance if the neutrality provision was removed from the regulations. Chairman Raskin noted that every private person has the right to express an opinion, and that the regulations speak to official positions, not private opinions. The Chairman noted that the decision to choose a union for purposes of collective bargaining was a decision for employees to make, and that he was very supportive of the neutrality concept. Chairman Raskin continued, stating that concerns that relate to the furtherance of an employee’s job, future, or career, were concerns that were addressed by §14.30.06.03(D). Finally, Chairman Raskin noted that if the neutrality provision were to be removed, there would be much more emphasis and pressure on the Board to make sure that employees were fully aware of their rights.

Ms. Cooperman noted that §14.30.06.03(D) works to curb employer behavior and that the individual unions will help to communicate relevant facts and employee rights.

Chairman Raskin asked the Board members present if this issue should be tabled until Board member Susan Schurman returned at the next meeting. In response, Mr. Merkowitz moved to approve all parts of §14.30.06.01 except (H), which should be held over until Ms. Schurman returned. Ms. Cooperman seconded this motion, which then carried

10.)§14.30.06.03(B)—access rights.

Chairman Raskin prefaced the discussion on this regulation by asking whether by voting for and choosing an exclusive representative for collective bargaining automatically gets rid of the access rights for other organizations. Ms. Cooperman stated that this was correct.

Thereupon, the previous question to adopt carried.

11.)§14.30.06.04(A)—question as to whether only an exclusive representative may file a ULP against the institution.

Chairman Raskin moved to delete the final sentence of this regulation. Mr. Merkowitz asked what the impact of this deletion would be. Ms. Cooperman stated that other ULPs that were not related to exclusive representative status should be permitted from any party as per the indication from other regulations.Ms. Cooperman moved again to adopt the regulation with the final sentence deleted. Chairman Raskin seconded this motion. The motion carried

12.)§ 14.30.07.02(A)—permissible labor related activities / equal access

13.)§14.30.11.04—Executive Director’s Hearing Authority

The previous question to adopt carried

14.)§14.30.04.07(D)—amended petition filing.

The Board came back to this section, and the Chairman moved to approve the section as drafted, subject to a direction to the staff to clarify the language. The motion carried.

8. Public Comment

At this time, Chairman Raskin opened the floor for public comment.

1.) Marvin Aimes, Salisbury University Employee

Mr. Aimes spoke to the frustration among the employees at Salisbury University concerning the election, the runoff, and the Unfair Labor Practices. He stated that he’d have to answer to employees when he returned to the campus and now he’d have to tell them that the process had been further delayed. Mr. Aimes was concerned that many employees are being left in an uncertain situation and this was unfair to them.

Various Board members, including Chairman Raskin, responded that the Board was going through an important process to make sure that the employees at Salisbury University were given a fair opportunity to make a choice and that all that was being done by the Board was primarily for the good of the employees.

2.) Kim Keller, AFSCME

Ms. Keller noted that AFSCME had filed information with the Board which included proposed language dealing with neutrality provisions. For whatever reason, the Board had not received this, and Ms. Keller noted that the Board had tabled the neutrality provision so this document could be re-sent to the Board if necessary.

3.) Meryl Eddy, UMB Counsel

Ms. Eddy asked about what was happening with the withdrawal and de-certification regulations. Also, she expressed concern about the addition of e-mail addresses to the items required of the university, she stated that this addition should be considered to be a substantive change and therefore subject to the comment process. Chairman Raskin responded that, in terms of the de-certification and withdrawal provisions, these were being drafted and would be proposed with other new regulations at an appropriate time. Mr. Merkowitz responded to the e-mail concern stating that this was a technical problem, not a regulatory one, but that he did not consider the addition of e-mail addresses a substantive issue. Ms. Eddy was concerned that the university computer people don’t maintain the technology such that the e-mail addresses can be automatically added to a table of information for an employee list. Ms. Cooperman responded that the lists could just be matched up by hand if necessary. Mr. Merkowitz also noted that issues of capacity can be dealt with at the election order meetings.

4.) Donna Keener, Salisbury University Director of Human Resources

Ms. Keener responded to the January 31 minutes, noting that there have been no records of arrests of any AFSCME organizers at the Salisbury University campus, as referenced in the January board meeting’s minutes as an allegation of a Salisbury employee speaking at the last meeting. Chairman Raskin stated that her correction of the record would be noted, although the minutes did accurately state the allegation of the former speaker.

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Mr. Merkowitz moved that the Board members adjourn and retire to executive session to deal with scheduling of the hearings for Salisbury University , and other internal matters. Chairman Raskin noted that although procedure requires moving back to open session after executive session, that nothing was going to be done after executive session, so the meeting could be adjourned at that point.

The meeting ended at roughly 1:45pm . The Board entered Executive Session at 1:50pm to discuss legal and personnel matters. The Board rose from Executive Session at 2:30pm and, as previously indicated, adjourned.