UHPA formally issues Demand to Bargain over Letters of Hire

On Thursday, October 27, UHPA sent the below letter via certified mail to President Lassner to address the unresolved issue over letters of hire which we have previously discussed.

Kristeen Hanselman, Executive Director for UHPA, explained the rationale behind this Demand to Bargain:

“UHPA is committed to ensuring that faculty members are not subject to the arbitrary whims of administrators who fail to meet their commitments contained within letters of hire. There has not been a constructive outcome that advances the rights of faculty members to expect their letter of hire be honored. The position of the University is that letters of hire are private contracts with individual employees and  enforceable only through a lawsuit brought by the injured faculty member. The absurdity of this means that a faculty member’s contractual rights to grieve are being challenged by the employer on key issues such as wages.”

Faculty members hired within the last three to five years are especially vulnerable. If you have provisions of your letter of hire not being honored, please contact UHPA.


Copy of letter sent on Thursday, October 27, 2016:

(formatting will vary from original letter due to HTML differences)

David Lassner, President
University of Hawaii System
2444 Dole Street, Bachman 202
Honolulu, HI  96822

Dear President Lassner:

After months of attempting to find a mutually agreed upon resolution that letters of hire would be subject to collective bargaining and enforced through the collective bargaining agreement, University of Hawaii Professional Assembly (UHPA) is submitting this demand to bargain.

UHPA will not remain silent while the University of Hawaii (University) imposes letters of hire and supplemental agreements to individual faculty members that establish private terms and conditions of employment that circumvent collective bargaining with the recognized union representative.  The arguments advanced by the University undermine not only the traditional academic practice, but substantially diminish its credibility and appeal to any faculty member considering employment with the University.  To adhere to a practice that the employer may unilaterally change compensation and conditions of work established by a letter of hire breeds distrust and creates a coercive environment for new faculty members.

UHPA demands the following:

1)  Effective immediately, the University will cease and desist from issuing any letter of hire, purporting to hire any person into bargaining unit 07, that states, contains, infers, promises, cross-references, or alludes to any of the following, unless that letter of hire is countersigned and approved by UHPA in advance:

a. wage rate;
b. compensation package;
c. incentive package;
d. startup package;
e. commitment of resources;
f. timeline to or conditions for tenure;
g. workload, hours; and
h. any other bargainable term or condition of employment, whether inside or outside the letter of hire.

2) Effective immediately, the University will meet and bargain over and present written proposals for language to be promptly incorporated into a Memorandum of Understanding effective for the current academic year and the next Collective Bargaining Agreement that will:

a. recognize and validate, both retroactively and prospectively, the traditional academic hiring procedure, as practiced for decades at the University, through explicit language subjecting all bargainable topics contained in letters of hire to enforcement under the collective bargaining agreement; and/or
b. provide minimum standards of initial employment for all incoming faculty through explicit matrices or charts or language establishing floors for all terms contained in typical letters of hire and as to all disciplines, ranks, and categories of incoming faculty on all campuses; and/or
c. provide a routine by which UHPA can, in the future, review any and all unit 07 letters of hire and effectively reject them, and by which the parties can accept and adopt previously-issued letters of hire.

If item 2) is achieved, item 1) will be unnecessary; but item 1) shall be in effect until item 2) is achieved.

The actions contained in items 1) and 2) must be implemented by October 31, 2016 with notice of such action received by UHPA by the close of business on October 31.  If notice of compliance is not received, UHPA reserves the right to take any and all corrective action without further notice.

Sincerely,

Kristeen Hanselman

Executive Director

cc:  John Morton, VP for Community Colleges

 

Your Letter of Hire: Now you see it, Now you don’t

UHPA filed an appeal in Circuit Court challenging the Hawaii Labor Relations Board order addressing Letters of Hire. In the meantime, UH Manoa Interim Chancellor Bley-Vroman has issued a “Clarification of HLRB’s Ruling on Letters of Hire,” which ironically affirms UHPA’s position. It is clear the University of Hawaii has no qualms choosing which letters or parts of a letter for hire to honor or not honor. The MRI purchasing decision was made in 2012 and now the administration claims there’s no money? When faced with budget deficiencies, the UH now places the blame on a faculty member. Faculty members should be concerned about the whimsical nature of UH meeting its obligations.

 

This recent move inspired us to create a message below you might share with faculty considering employment at UH:

_______________________________________________________________________

ABRACADABRA

Magic

Now you see it, now you don’t.

You’ll be amazed at the University of Hawaii
administration’s magical wizardry.
Terms and conditions in your letter for hire
suddenly disappear.

You’ll swear the things
they promised were in there.
The UH administration will even try to
make you believe those terms and conditions
were never real to begin with.

Don’t be cast under a hypnotic spell.
Consult an attorney before agreeing to
join the University of Hawaii faculty.

Your Faculty Terms of Employment are at Risk

The UH administration has declared war on faculty rights.

It’s time to join together with UHPA and fight back. For 46 years, since the beginning of collective bargaining, letters of hire have established initial salaries, terms, and conditions of employment for UH faculty. There was no reason to doubt these letters were enforceable under normal grievance processes. Until now.In a radical departure from tradition, the UH now contends letters of hire can’t be enforced under the collective bargaining agreement, or at the Hawaii Labor Relations Board. And that UHPA has no role in enforcing them. Under the UH approach, each faculty member would have to bring an individual lawsuit to enforce a letter of hire.

Here’s the background on how this happened to bring you up to speed:

The basic principles of integrity and trust were violated in Fall 2015 when a UH Manoa faculty member, Dr. Kevin Bennett, was denied the purchase of an MRI necessary for his instruction and research duties that he was hired to perform. (Dr. Bennett, in good faith, left his position at the University of Arizona to help the University of Hawaii.) The MRI purchase was promised in the letter of hire issued in 2013 and signed by both the faculty member and College of Natural Sciences Dean William Ditto. Facility problems delayed the purchase of the MRI; however, by August 2015 an MRI purchase and appropriate lab space were approved with the expectation that operations would be underway in a few months.

On September 25, 2015 Interim Dean Kristin Kumashiro, College of Natural Sciences, suddenly and unilaterally declared there would be no purchase of the MRI, and the agreement to establish an MRI center was void. Although funds were available, the Interim Dean had other projects she decided to support.

Now, in an unexpected break with tradition, UH has allowed the decision by Interim Dean Kumashiro, just five weeks into her temporary job, to drastically change the labor relations environment for faculty. It is a demonstration of decentralization run amok that the UH system and President will not reverse even an interim Dean’s random actions affecting the whole system.

UHPA Took Swift Action

UHPA pushed back with full force to settle the dispute with the Interim Dean and other administrators. However, the UH administration did not even have the courtesy to provide someone with the authority to negotiate a settlement.

UH argues that a Dean is the paramount administrator charged with enforcement for these actions and that Circuit Court lawsuits are the way to resolve claims by aggrieved faculty members. The UH claims that letters of hire, covering salary, tenure, start-up finds, and conditions of work, are not recognized by our collective bargaining agreement.

We were left with a recalcitrant UH administration and a General Counsel whose position remains letters of hire and their provisions can be unilaterally changed at any time by a Dean or other administrator charged with hiring authority.

Presenting Our Case Before the Hawaii Labor Relations Board

UHPA filed a Prohibited Practice Complaint with the Hawaii Labor Relations Board in December 2015, arguing that the cancellation of the MRI was illegal, both as a violation of a past practice on bargainable topics, and as a unilateral implementation of new terms of employment. UH had not negotiated the change with UHPA as required by Hawaii’s collective bargaining law, Chapter 89.

UHPA argued that many, if not all, topics covered in letters of hire have always been bargainable, but, out of deference to tradition, the UH and UHPA have always allowed academic processes to set those terms, both tacitly recognizing them as binding.

Hawaii Labor Relations Board’s Decision

Urged on by the UH, the Hawaii Labor Relations Board found that a letter of hire is not a collective bargaining agreement (“CBA”). This was not surprising; CBAs must be negotiated between the UH and UHPA. What was surprising, was the Board seems to have concluded that letters of hire, even if they establish terms on bargainable topics such as wages, are none of the Board’s business! Furthermore, letters of hire are outside the reach of the labor law! So, letters of hire are also none of an arbitrator’s business! And, the Board cannot interpret or enforce anything other than a formal CBA! This hyper-restrictive approach, which limits the Board to dealing with formal CBAs, implicitly tosses away substantial portions of the Board’s jurisdiction over uncontractualized practices, rendering the Board largely useless.

We have to believe that the Board not only misjudged this case, but also made a doctrinal error that will cripple many aspects of labor relations, if not clarified or reversed. This ruling is in effect until appellate courts reverse it.

This decision represents HLRB’s total abdication of its responsibility to address a critical labor issue. When decisions are badly written, as is the current case, there are consequences that impede the protections faculty members have come to expect, as employees whose rights to collective bargaining are protected by the state constitution.

Key Takeaways: The Impact on Faculty Members

This decision affects all faculty members in the bargaining unit, and those yet to be hired. While this was a UH Manoa case, the HLRB decision has universal applications for all UHPA members on all campuses.

Under the decision, letters of hire can say anything the employer and an incoming employee agree to, so long as no specific literal term of the CBA is contradicted. This could lead to substandard terms and conditions for new employees, who may not have the information needed to negotiate correct terms. Alternatively, the CBA has to be significantly amended to explicitly cover all manner of situations that have been traditionally understood.

Under the decision, if the employer wants to change a letter of hire after its acceptance, the union has no opportunity to oppose that. The employer could try to change nearly anything, such as reducing salary, removing a faculty member from a probationary position, or reducing start-up funds or canceling a spousal hire.

Under the decision, since the union has no opportunity to protect faculty through grievance arbitration, and no opportunity to enforce the letters at the Labor Board, the only way an employee can defend the letter of hire against violation is by a lawsuit in Hawaii courts.

Under the decision, the cancellation of the MRI harms Dr. Bennett’s research career, his ability to obtain grants from government and foundations, adversely impairs the work of graduate students and other UH faculty who had been counting on the MRI facility. But it also undermines existing letters of hire, and may compromise all new hirings, if potential hires understand that UH is asserting that it has a right to reverse or discard terms in letters of hire.

An Ominous Sign of What the Future Holds for Faculty and the UH

This is not merely a labor relations issue. It has grave implications for the future of the University of Hawaii to attract and retain quality faculty. Ultimately, this will affect students and the University of Hawaii’s ability to contribute meaningful research locally, nationally and globally.

At no time did the UH General Counsel recognize the collateral damage to the integrity of the institution by failing to honor commitments made in letters of hire for any faculty member. Counsel continued to advance the premise that this Interim Dean must be supported at all costs. There was simply no attention given to the risks attached to the breach of trust within the UH academic community and potential consequences in the recruitment and retention of faculty. Sadly, it is not just the UH faculty that are paying attention to this. Faculty around the world have cast a wary eye on the UH, dismissing our cherished institution of higher learning as a potential employer.

UHPA: Our Five-Prong Plan of Attack

On June 4, 2016, UHPA’s Board of Directors adopted a plan to action to address the crisis created by the UH administration and Hawaii Labor Relations Board:

  • In an unprecedented move, UHPA has decided to represent an individual faculty member, Dr. Bennett, in circuit court litigation, to rectify the violation of his letter of hire.
  • UHPA will inform and engage its members, the university community, public officials and other interested parties on the uncertainty and ambiguity the UH administration has created and hold them accountable for honoring their commitments. Why would funding agencies continue to support faculty and placement of funds with UH under these conditions?
  • UHPA will reach out to new hires, to help them achieve enforceable terms in their letters of hire.
  • UHPA will submit a demand to bargain and propose specific language that ensures letters of hire are protected by the collective bargaining agreement. Negotiations for our new contract begin in 2017. We need more members to stand and be counted with us.
  • UHPA will appeal the adverse decision, and seek to reverse it.

What Can Faculty Members Do?

While we pursue litigation, there are a number of actions faculty can take:

  • Notify new hires that they are subject to unilateral changes in their conditions of employment and they will need to seek counsel to assist in the negotiations of their hiring letters.
  • If unilateral action is taken to change your conditions of hire notify UHPA so your situation can be evaluated.
  • Inform your Dean that these actions by UH are harmful to the institution and impede the ability to hire and retain faculty. Encourage them to tell the General Counsel that this situation needs resolution with UHPA now.
  • If you are not an official, dues-paying UHPA member, now is the time to join. No one can afford to stand on the sidelines, unprotected, at a time like this. Visit the UHPA website, and submit an application today.  Don’t put this off. We need everyone’s kokua.

Dr. Bennett’s situation demonstrates that an injury to one becomes an injury to all. UHPA is committed to seeing this situation through. We believe that our position will prevail. With your help, we will be able to establish a path by which letters of hire will be respected and enforced.

Mahalo for your support.

Lynne Wilkens                 Kristeen Hanselman
Board President               Executive Director

Faculty Members Take On UH Over Claims of Broken Promises, Retribution

A case heard Thursday by the Hawaii Labor Relations Board alleges the university didn’t honor key conditions of one professor’s hire letter and retaliated against another.

Link to the article on Civil Beat

UH Mismanagement No Longer Confined to Athletics

NEWS RELEASE

Date:               February 2, 2016

Contact:         Kris Hanselman, Executive Director  (kris@uhpa.org / (808) 593-2157)

FOR IMMEDIATE RELEASE

UH Mismanagement No Longer Confined to Athletics Department

Hawaii Labor Relations Board to Weigh Merits of Prohibited Practice Complaint
on Thursday, February 4, at 9 a.m.

Ongoing mismanagement of personnel and the breaking of promises at the University of Hawaii are no longer limited to the athletics department. These factors now impede good instruction and research, and threaten the ability to attract and retain quality faculty.

The same dysfunction is now becoming more evident in the academic arena, which has prompted the University of Hawaii Professional Assembly (UHPA) to file a prohibited practice complaint with the Hawaii Labor Relations Board on behalf of two faculty members. UHPA is the union that represents nearly 4,000 faculty at all 10 UH campuses statewide.

University of Hawaii administrators will attempt to dismiss the complaint and will present oral arguments at a Hawaii Labor Relations Board hearing this Thursday, February 4, at 9 a.m. The hearing is open to media and the public.

The Hawaii Labor Relations Board conducts hearings to decide complaints filed by public and private sector employees, employee organizations or unions, and employers alleging prohibited or unfair labor practice complaints. In the public sector, the Board has jurisdiction over employers and employees of the State of Hawaii and counties, the Judiciary, the Department of Education, including the public charter schools, the University of Hawaii system, and the Hawaii Health Systems Corporation.

Background
Kevin Bennett, Ph.D., an associate professor of biology at the University of Hawaii-Manoa, was recruited from Arizona State University in 2013 to establish a magnetic resonance imaging (MRI) center to support local research. The research detects cells and molecules in the body, so that diseases can be treated at a very early stage, long before it affects a patient.

The MRI center is critical in cancer research, drug discovery, and neurological problems. It supports Bennett’s research in discovering cures for kidney disease through early detection of kidney damage. The research explores how to prevent worsening damage to the kidneys and other organs from chronic health problems such as hypertension and diabetes.

When Bennett joined the UH, initially the university was not able to provide the space for the MRI equipment and the selected vendor had stopped manufacturing the equipment. Undaunted and determined, Bennett found an alternative source for the MRI equipment in England. As an added benefit, the UH would be able to house this substitute equipment without extraordinary facility requirements.

During this period, Bennett was granted a well-deserved tenure because of the quality and significance of his work in teaching and research that involved using the MRI center at Arizona State University.

Elated with the news the MRI equipment would finally be coming to the UH after two and half years, there was teamwork among UH administrators, the dean at the time, faculty, and students. The UH could boast of its acquisition and look forward to having an MRI center of its own.

Bennett’s diligence was finally paying off. He had been patient and accommodating as he continued his research using out-of-state equipment. He also inspired and engaged graduate students in MRI research, all while fulfilling his teaching obligations.

Prohibited Practice Complaint
“There was a sense of anticipation at all levels at the UH, with support from vice presidents, vice chancellors of research, graduate students and other faculty.  After two years of hard work, the momentum abruptly ended in late September 2015,” said Kris Hanselman, Executive Director of the University of Hawaii Professional Assembly.

It all changed when Kristin Kumashiro, Ph.D. was named Interim Dean of Natural Sciences last summer. Just five weeks into her position, she pulled the plug on the MRI center, even though the funds were available and the UH was prepared to make the purchase.

Bennett was not the only one affected by the capricious whims of Kumashiro.  Kathleen Cole, Ph.D., Associate Professor of Biology at UH-Manoa, who was serving as Chair of the UH Department of Biology at the time, was stripped of her position and authority, apparently for siding with Bennett and others in her department.

The University of Hawaii Professional Assembly, which represents faculty on contractual issues, intervened on behalf of Bennett and Cole, and filed the prohibited practice complaint with the Hawaii Labor Relations Board.

As expected, University of Hawaii administrators will attempt to have the claim dismissed, contending they never made any promises to Bennett about an MRI center, even though this was expressly documented in a written letter of hire to Bennett.

“This sends an unsettling message to UH faculty. The UH administration do not feel compelled to honor the commitments they have made when hiring faculty,” Hanselman said. “A change of administrator means the career of a faculty member can come to a grinding halt. This impacts the ability to attract and retain faculty at the UH.”

“Current and prospective faculty should be wary of promises made to them when they are recruited to join the UH. Clearly, what they are promised, may not be what they end up with because of erratic decision making. This creates a very unpredictable work environment,” Hanselman added.

For more details on the prohibited practice complaint, download a PDF of the complaint:

#  #  #

About the University of Hawaii Professional Assembly
The University of Hawaii Professional Assembly (UHPA) has been the exclusive bargaining agent for all UH faculty since 1974 and currently represents nearly 4,000 faculty members at 10 campuses in the University of Hawaii system statewide.

It’s time for UH Manoa to Honor their Commitments to Faculty Members. UHPA Prohibited Practice Filed

On December 21, UHPA filed a prohibited practice charge with the Hawaii Labor Relations Board charging Natural Science Interim Dean Kumashiro with unilaterally and improperly canceling agreements contained within letters of hire and supplemental terms of service for department chairs. This is an important case to protect the rights of faculty in advancing the ability of UHPA to bargain and enforce letters of hire and the conditions set forth within.

A promise broken

In the case of Dr. Kevin Bennett, UH Manoa Biology, his letter of hire provided for a UH purchase of an MRI. Approval to purchase was granted as was the appropriate facility construction for the equipment. Within a few weeks of being appointed, Interim Dean Kumashiro notified Dr. Bennett that she would not allow the purchase of the equipment. While she had the funds, they would be used for other projects. This has significantly impacted the ability of Dr. Bennett to continue his academic work and research.

Questionable removal of dept chair

Dr. Kathleen Cole was department chair of the Biology Department. She was removed by Interim Dean Kumashiro which UHPA believes was due to her advocacy for Dr. Bennett along with expressing Biology faculty and student needs regarding a new facility on the Manoa campus–Snyder Prime. Upon her removal as department chair, a supplemental agreement, executed in 2014 for research support while department chair, was retracted leaving three graduate students and Dr. Cole without the funding to continue her academic work and research.

UHPA Files Prohibited Practice for a Failure to Bargain Wages at Cancer Center

UHPA has requested that the Hawaii Labor Relations Board address the employer’s unilaterial implementation of wages through the UHCC Consortium, an entity that is not regulated by the employer. A number of UH administrators are on the Board of the Consortium and are agents of the University. The payment of wages through an external mechanism evades the employers bargaining obligations. It also denies UHPA income as allowed by law for dues deductions. Employees may have also have been deprived of ERS contributions which could cause a reduction in retirement income.

UHPA is seeking to establish the appropriate relationship between the Consortium and the Cancer Center. The  presence of a third party, which may exercise significant influence over the work and compensation of Bargaining Unit 7 members, violates the University’s duty to negotiate and attempts to limit the scope of bargaining with UHPA.

The Hawaii Labor Relations Board will establish a timeline for a hearing over the course of the next few months.

Read the Prohibited Practice Complaint

UHPA and UH to Bargain on No Smoking and Tobacco-Free Campus Policies

UHPA appreciates the attention paid to this important matter and recognition of our request to suspend implementation and enforcement of diverse policies that have not been subject to negotiations as required by law.

Read President Lassner’s letter to UHPA

It’s Not About Smoking!

The University of Hawaii (University) failed to convince the Hawaii Labor Relations Board (HLRB) to dismiss the University of Hawaii Professional Assembly’s (UHPA) charges about UH Manoa (UHM) bypassing UHPA on matters subject to negotiations.  The HLRB indicated there were significant issues raised by UHPA in their prohibited practice charge. These included UHM’s handling of a no-smoking policy that exceeds both state law and BOR policy and raise bargainable issues.  Further proposed changes to faculty five-year reviews referred to the Faculty Senate raise bargainable issues.

As soon as the hearing opened, the HLRB, having read the
parties’ pleadings, announced it was ready to rule against the University’s
Motion to Dismiss.  After a brief
discussion, the HLRB unanimously denied the University’s Motion to Dismiss and
set the case for full hearing at the end of May.  The HLRB wanted to hear full evidence on
whether UHM has been misusing faculty senates, has been taking inconsistent
positions between the UH system and campus, or has been failing to raise issues
with the union in a timely way.

The University is represented by Jeffrey Harris, Esq. of
Torkildson, Katz, Moore, Hetherington & Harris.  At the HLRB hearing, attorney Harris affirmed
he represented the University and the Board of Regents.

The University is seeking to have faculty evaluation
designated as an issue not subject to negotiations as faculty members are
aware this strikes at the issues of tenure, promotion, and contract renewal
by threatening faculty rights contained within the collective bargaining
agreement.

Further, the University asserts that campuses should be
allowed to establish their own policies and implementation even when the
subject matter has relevance to all BU07 members.  UHPA contends that such behavior invites
conflicting and contradictory positions being advanced by the University under
the same collective bargaining agreement.  This will create significant issues of inequity
and unfair treatment of BU07 members.

UHPA believes strongly that issues such as faculty
evaluation and no-smoking policies are system-wide issues that need addressing
by the University not delegated to a specific campus.  UHPA requested that President Lassner
negotiate on the immediate issue of no-smoking and tobacco use policies.  No response to the request has been received
by UHPA.  While UHPA does not support
smoking or use of tobacco products, UHPA does insist that its role as
exclusive bargaining agent be recognized to ensure that the interests of
faculty on all ten (10) UH campuses are addressed.