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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