[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
UNDERSTANDING PROBLEMS IN FIRST CONTRACT
NEGOTIATIONS: POSTDOCTORAL SCHOLAR
BARGAINING AT THE UNIVERSITY OF CALIFORNIA
=======================================================================
FIELD HEARING
before the
COMMITTEE ON
EDUCATION AND LABOR
U.S. House of Representatives
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
HEARING HELD IN BERKELEY, CA, APRIL 30, 2010
__________
Serial No. 111-59
__________
Printed for the use of the Committee on Education and Labor
Available on the Internet:
http://www.gpoaccess.gov/congress/house/education/index.html
_____
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COMMITTEE ON EDUCATION AND LABOR
GEORGE MILLER, California, Chairman
Dale E. Kildee, Michigan, Vice John Kline, Minnesota,
Chairman Senior Republican Member
Donald M. Payne, New Jersey Thomas E. Petri, Wisconsin
Robert E. Andrews, New Jersey Howard P. ``Buck'' McKeon,
Robert C. ``Bobby'' Scott, Virginia California
Lynn C. Woolsey, California Peter Hoekstra, Michigan
Ruben Hinojosa, Texas Michael N. Castle, Delaware
Carolyn McCarthy, New York Mark E. Souder, Indiana
John F. Tierney, Massachusetts Vernon J. Ehlers, Michigan
Dennis J. Kucinich, Ohio Judy Biggert, Illinois
David Wu, Oregon Todd Russell Platts, Pennsylvania
Rush D. Holt, New Jersey Joe Wilson, South Carolina
Susan A. Davis, California Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona Tom Price, Georgia
Timothy H. Bishop, New York Rob Bishop, Utah
Joe Sestak, Pennsylvania Brett Guthrie, Kentucky
David Loebsack, Iowa Bill Cassidy, Louisiana
Mazie Hirono, Hawaii Tom McClintock, California
Jason Altmire, Pennsylvania Duncan Hunter, California
Phil Hare, Illinois David P. Roe, Tennessee
Yvette D. Clarke, New York Glenn Thompson, Pennsylvania
Joe Courtney, Connecticut
Carol Shea-Porter, New Hampshire
Marcia L. Fudge, Ohio
Jared Polis, Colorado
Paul Tonko, New York
Pedro R. Pierluisi, Puerto Rico
Gregorio Kilili Camacho Sablan,
Northern Mariana Islands
Dina Titus, Nevada
Judy Chu, California
Mark Zuckerman, Staff Director
Barrett Karr, Minority Staff Director
C O N T E N T S
----------
Page
Hearing held on April 30, 2010................................... 1
Statement of Members:
Lee, Hon. Barbara, a Representative in Congress from the
State of California........................................ 5
Miller, Hon. George, Chairman, Committee on Education and
Labor...................................................... 1
Prepared statement of.................................... 3
Questions submitted for the record....................... 78
Woolsey, Hon. Lynn C., a Representative in Congress from the
State of California........................................ 4
Prepared statement of.................................... 5
Statement of Witnesses:
Burton, Hon. John L. (ret.), former Representative in
Congress from the State of California...................... 43
Prepared statement of.................................... 44
Duckett, Dwaine, vice president of human resources,
University of California................................... 37
Prepared statement of.................................... 39
Responses to questions submitted for the record.......... 80
Ferguson, John-Paul, assistant professor, Stanford University
Graduate School of Business................................ 51
Prepared statement of.................................... 53
Additional submission--``The Eyes of the Needles: A
Sequential Model of Union Organizing Drives, 1999-
2004,'' Industrial and Labor Relations Review, Oct.
2008................................................... 86
Kampas, Bradley W., Jackson Lewis, LLP....................... 45
Prepared statement of.................................... 47
Miller, Michael, International Representative International
Union, UAW................................................. 11
Prepared statement of.................................... 12
Tyler, Ludmila, Ph.D., postdoctoral researcher, University of
California, Berkeley....................................... 8
Prepared statement of.................................... 9
UNDERSTANDING PROBLEMS IN FIRST
CONTRACT NEGOTIATIONS: POSTDOCTORAL
SCHOLAR BARGAINING AT THE
UNIVERSITY OF CALIFORNIA
----------
Friday, April 30, 2010
U.S. House of Representatives
Committee on Education and Labor
Washington, DC
----------
The committee met, pursuant to call, at 11:00 a.m., in the
auditorium at Berkeley City College, 2050 Center Street,
Berkeley, California, Hon. George Miller [chairman of the
committee] presiding.
Present: Representatives Miller and Woolsey.
Also Present: Representative Lee.
Staff Present: Jody Calemine, General Counsel; Gordon
Lafer, Senior Labor Policy Advisor; Alexandria Ruiz,
Administrative Assistant to Director of Education Policy; and
Jim Paretti, Minority Workforce Policy Counsel.
Chairman Miller of California. A quorum being present, the
Committee on Education and Labor will come to order for the
purposes of conducting a hearing to examine the challenges
posed by the first contract negotiations at the University of
California, an issue of long concern to this Committee in many
other settings.
The Chair will recognize himself for the purpose of making
an opening statement and then I will recognize Congresswoman
Woolsey and then Congresswoman Lee.
Today we will explore the issue and using a particular case
study, the first contract bargaining of Postdoctoral Scholars
at the University of California. Over the last several years my
Committee has been collecting testimony and information about
the erosion of American workers' fundamental rights to organize
and bargain for a better life. We have learned that workers
face immense obstacles when they try to form and join a union.
And we have learned that even when they succeed in getting
representation there is an entire new gauntlet to run when they
try to reach the first contract with their employer. While
parties in a labor negotiation are obliged to bargain in good
faith, the applicable law often provides no effective
enforcement of that duty. Federal labor laws give wide way to
someone to stall and frustrate the bargaining. In fact, a
recent study found that 34 percent of the union election
victories have not resulted in a first contract after two or
even three years of bargaining. This is unacceptable to those
workers.
As the Committee has learned, some employers have used
delay as a tactic because after a year of bargaining without a
contract to show for it, a newly recognized union can be
decertified. Both federal and California law gives the parties
12 months to reach the first contract before decertification of
the union may occur.
Originally, it was thought that a year was more than enough
time for an employer and a union acting in good faith to settle
a contract. However, we're seeing an increasing number of cases
where the negotiations last well beyond a year. This is one
reason why a majority of the Congress agrees that the federal
law needs to be reformed in order to encourage all parties to
come to an agreement in a reasonable amount of time. The
Employee Free Choice Act would do just that. If after 90 days a
first contract has not been finalized, either party can request
mediation assistance. If mediation does not help bring the
parties together in 30 days, then the mediation can be referred
to binding arbitration. That bill, however, amends Federal
labor law. It applies to the private sector only, not the
public sector bargaining like the case before us today.
Public sector organizing and bargaining can present its own
challenges, but many of the basic rights, obligations and
issues remain the same.
We seek today to learn more about the first contract
negotiations in a particular case, why they have gone on so
long without reaching an agreement and to see what lessons can
be drawn from this case. In 2008, after three years of
organizing, postdoctoral scholars at the University of
California won certification for their union, the UAW, the
United Auto Workers before the State Public Employees Relations
Board. Although negotiations began November 2008, the
University of California system and the postdoctoral scholars
have been unable to reach agreement on a first contract. But
for more than a year, the postdoctoral scholars have bargained
and been unable to get a first contract.
What is discouraging is that there is nothing novel about
collective bargaining on university campuses. There have been
graduate student unions for 40 years, and faculty unions for
nearly a century. In fact, the University of California system
recognizes and successfully bargained with the University
researchers and graduate student unions. These scholars work
hard. Their contribution to the University and to the nation
is, indeed, invaluable.
After 18 months of talk these scholars deserve a contract.
After 18 months of talk these scholars deserve a say over the
terms and conditions under which they work day in and day out.
Today we will hear from witnesses involved in the current
negotiations, from witnesses experienced in past negotiation
and from experts on the broader policy issues of first contract
negotiations. And while this hearing comes in the context of an
ongoing dispute, I want to emphasize that we are here today to
learn and understand the issues, not to mediate them.
I would like to thank Congresswoman Barbara Lee for hosting
this hearing on this important topic in her District. And I am
glad that you and Congresswoman Woolsey, the Subcommittee Chair
on our Committee on Education and Labor, have joined me today.
And personally, I want to thank all of the witnesses for
taking time out of their schedule and lending to us their
expertise, and their knowledge and their experience in these
issues. And I look forward to all of your testimony.
And with that, I would like to recognize Congresswoman Lynn
Woolsey, the Subcommittee Chair of Worker Safety Committee.
[The statement of Mr. Miller follows:]
Prepared Statement of Hon. George Miller, Chairman,
Committee on Education and Labor
The Committee on Education and Labor meets this morning in Berkeley
to examine the challenges posed by first contract negotiations, an
issue of long concern to the committee.
Today we will explore this issue using a particular case study--the
first-contract bargaining for post-doctoral scholars at the University
of California.
Over the last several years, my Committee has collected testimony
and information about the erosion of American workers' fundamental
right to organize and bargain for a better life.
We have learned that workers face tremendous obstacles when they
try to form or join a union.
And we have learned that, even when they succeed in gaining
representation, there is an entire new gauntlet to run when they try to
reach a first contract with their employer.
While the parties in a labor negotiation are obligated to bargain
in good faith, the applicable law often provides no effective
enforcement of that duty.
Federal and many state labor laws give wide leeway for someone to
stall and frustrate bargaining.
In fact, a recent study found that 34 percent of union election
victories had not resulted in a first contract after two or even three
years of bargaining.
This is unacceptable.
As the Committee has learned, some employers have used delay as a
tactic because, after a year of bargaining without a contract to show
for it, a newly recognized union can be decertified.
Both federal and California law gives the parties 12 months to
reach a first contract before decertification of the union may occur.
Originally, it was thought that a year was more than enough time
for an employer and a union acting in good faith to settle a contract.
However, we are seeing an increasing number of cases where
negotiations last well beyond a year.
This is one reason why a majority of Congress agrees that the
federal law needs to be reformed in order to encourage all parties to
come to an agreement in a reasonable amount of time.
The Employee Free Choice Act would do just that. If after 90 days,
a first contract has not been finalized, either party can request
mediation assistance. If mediation does not help bring the parties
together in 30 days, then the mediation can be referred to binding
arbitration.
That bill, however, amends federal labor law. It applies to the
private sector only, not to public sector bargaining--like the case
before us today.
Public sector organizing and bargaining can present its own
challenges. But many of the basic rights, obligations, and issues
remain the same.
We seek today to learn more about why first contract negotiations
in a particular case have gone on so long without reaching an
agreement, and to see what lessons can be drawn this case.
In 2008, after three years of organizing, post-doctoral scholars at
the University of California won certification for their union, the
UAW, before the state Public Employment Relations Board.
Although negotiations began in November 2008, the University of
California system and the post-doctoral scholars have been unable to
reach agreement on a first contract.
But, for more than a year, post-doctoral scholars have bargained
and been unable to get a first contract.
What is discouraging is that there is nothing novel about
collective bargaining on university campuses. There have been graduate
student unions for forty years, and faculty unions for nearly a
century.
In fact, the University of California system recognizes and has
successfully bargained with university researchers and graduate student
unions.
These scholars work hard. Their contributions to the University, to
the nation, and, indeed, to the world can be invaluable.
After 18 months of talks, these scholars deserve a contract.
After 18 months of talks, these scholars deserve a say over the
terms and conditions under which they work, day in and day out. Today,
we will hear from witnesses involved in the current negotiations, from
witnesses with experience in past negotiations, and from experts on the
broader policy issues of first-contract negotiations.
And, while this hearing comes in the context of an ongoing dispute,
I want to emphasize that we are here today to learn and understand the
issues, not to mediate them. I would like to thank Congresswoman
Barbara Lee for requesting this hearing on an important topic in her
district. I am glad that you and Congresswoman Woolsey have joined me
today.
Finally, I thank the witnesses for taking time out of their
schedule to be here. I look forward to everyone's testimony.
______
Ms. Woolsey. Thank you, Mr. Chairman.
Thank you for holding this hearing on this very difficult
problem that has been posed by the first contract negotiations
under current law. We have a lot to learn about the situation
in general, but also using what is going on right here in our
own region as a good test case.
This issue is important to the entire Bay Area; there is no
question about it. In fact, we have together and individually
met with and contacted those involved in the first contract
negotiations here in our area. I mean, we are not taking this
lightly. We know it is important.
It has been 18 months since negotiations began for our
first contract between the University of California and the
postdoctoral fellows, which are represented by UAW.
The California Delegation has been urging Mark Yudof, the
President of the University of California, to reach a first
contract since May of 2009. When President Yudof and I spoke
last summer, I urged him to negotiate a contract as soon as
possible. I told him I had confidence that he would do that
because the entire situation is just causing disruption instead
of going ahead with the important work of the University and
our postdocs.
So, 10 months later it certainly appears that this is not
happening. And I would worry that the University is dragging
its feet.
About 10 percent of all postdoctoral scholars in the United
States work at the University of California; 10 percent. And
the research work they do has helped this University become a
world renown research institution. These 6,000 scholars have
helped bring millions and millions of dollars in Federal grants
and contracts to the University of California from such
agencies as the National Institute of Health, the National
Science Foundation and the Department of Energy, among others.
And even though the postdocs pay for themselves through these
grants, they are underpaid by universities. That is why they
have banded together in the first place.
We certainly appreciate the budget constraints the
University is under. But I do not think it can blamed on the
state cutbacks since it is a separate situation. In the 18
months it has been negotiating the first contract it has not
made a convincing case that University funds are even impacted
by the wages and benefits of postdocs.
Mr. Duckett is here on behalf of the University. And I am
going to be very, very interested in what you have to say, Mr.
Duckett, about the relationship between the University's budget
and research funds. I think we need to know where one starts
and the other ends.
I am looking forward to hearing all of you witnesses. You
have a lot for us to talk about, and we will learn a lot from
you. And we have to get involved; we are. We need to evolve
this first contract negotiation situation so it actually it
becomes meaningful instead of meaningless.
Thank you, Mr. Chairman.
[The statement of Ms. Woolsey follows:]
Prepared Statement of Hon. Lynn C. Woolsey, a Representative in
Congress From the State of California
Thank you Chairman Miller for holding this hearing on the
difficulties posed by first contract negotiations under current law.
It has been eighteen (18) months since negotiations began for a
first contract between the University of California and the
postdoctoral fellows, represented by the United Auto Workers (UAW).
The California delegation has been urging Mark Yudof, president of
the University of California, to reach a first contract since May of
2009.
When President Yudof and I spoke last summer, I urged him to
negotiate a contract as soon as possible.
Some ten months later, it certainly appears that the university is
dragging its feet.
About ten percent of all postdoctoral scholars in the United States
work at the University of California, and the research work they do has
helped the university become a world-renowned research institution.
These 6,000 scholars have helped bring millions and millions of
dollars in Federal grants and contracts to the University of California
from such agencies as the National Institutes of Health, the National
Science Foundation, and the Department of Energy.
And even though these post-docs pay for themselves through these
grants, they are underpaid by the university--which is why they banded
together in the first place.
We all appreciate the budget constraints the university is under
due to state cutbacks, but in the eighteen months it has been
negotiating this first contract, it has not made a convincing case that
university funds are even impacted by the wages and benefits of the
post-docs.
Dwaine Duckett is here on behalf of the university, and I will be
very interested in hearing what he has to say about the relationship
between the university's budget and research funds.
I am looking forward to hearing the testimony of our other
witnesses as well: it is time to shine a light on the problems that
have evolved with regard to first contract negotiations.
______
Chairman Miller of California. Thank you.
As I noted earlier, we are holding this hearing on
Congresswoman Barbara Lee's District. And I want to thank her
for joining us. Her participation, it is not just this hearing
but she has been involved in this issue for a considerable
period of time. And I would like now without objection to
recognize Congresswoman Lee for opening remarks.
Ms. Lee. Thank you very much. Thank all of you for being
here. And thank you first, Chairman Miller, for your continued
support for not only workers, but for students and families
that has provided really for the real health care reform, for
our student loan overhauls, and also for equal pay for equal
work. So I appreciate your hosting this hearing here. And thank
you for your leadership on these issues, and so many issues.
Also let me thank my good friend and colleague,
Congresswoman Lynn Woolsey who Chairs the Subcommittee on
Workforce Protections. And thank you for being here and for
your hard work and your leadership each and every day.
As you know, Congresswoman Woolsey continues to inspire us
all with her unwavering support for economic justice, security,
global peace and worker rights and uses her role as Chair of
this Subcommittee for these issues.
I want to thank all of you, all of our witnesses, for being
here today.
And I want to thank, again, all of you for coming and not
only today, but for your diligent work and vision, and
commitment to workers rights and to equal pay each and every
day.
This is one of the most ethnic, diverse and most
progressive Districts in the country. And I am proud to have
you here, Chairman Miller and Chairwoman Woolsey, to see the
richness of the 9th Congressional District.
I am privileged to serve on the Appropriations Committee. I
am on the Labor Health and Human Services and Education
Subcommittee of the Committee on Appropriations.
On this Subcommittee, I have been able to push for what I
see as equal rights under the law and worker protection, and
fair wages and equal pay. And so as institutions bring their
budget requests to this Subcommittee, that is how I view these
requests. This is one of the prisms upon which I look at these
budget requests.
So the ability for workers to have a voice in their wages,
benefits and engagement with management as well as employers to
be able to maintain fair labor practices without being pushed
out of business, this is extremely important as a member of the
Appropriations Committee. It is this fine balance that I
believe makes the collective bargaining process work so well.
Now given our current financial climate, I believe that we
must be even more steadfast is pushing for a living wage for
all Americans. I just believe that. I have worked to address
issues such as higher wages and benefits, modern whistleblower
protections and to push for the passage of the Employee Free
Choice Act, thanks to Chairman Miller and Chairwoman Woolsey.
And I tell you, I have to say that I am disappointed to learn
that these negotiations continue to drag out for such a long
period of time.
Over the years we have fought to protect the rights of
employees to organize, bargain collectively and to engage in
other legally protected activity, and the right to organize a
union.
The right to organize is not limited to Federal workers or
the automobile industry. It is supposed to be open and
available to those who fall under the protection of the Public
Employment Relations Board as well. And so these scholars, they
played by the rules. They receive, if you ask me, very low
wages for the important work that they do. And they should be
treated fairly.
I am a proud alumnus of the University of California. And
for the life of me, I really do not understand why my alma
mater is dragging its feet. And so I look forward to the
hearing today.
Thank you very much for being here. And I look forward to
the witnesses presenting their testimony.
Thank you again.
Chairman Miller of California. Thank you. Thank you very
much, Barbara.
I am going to introduce the witnesses in a moment. But
first, I just want to say that this is an official hearing of
the Education and Labor Committee, and we are going to conduct
it in the manner in which we ordinarily conduct Committees.
That is, you may hear things that you agree or disagree with,
and that is fine. But we ask that the hearings not be
disrupted.
I also want to encourage people who are here, many of you
are involved in this issue, many of you have experienced it
from both sides. And there will be facts stated and positions
stated; if you have some expertise, you want to make that
available to the Education and Labor Committee, the record will
be held open for emails, or for letters, or however you want to
send it, in what form you want to send it to the Education and
Labor Committee. And we will go about that after the hearing.
So, thank you again for your attendance and your
participation, and your interest.
Our witnesses this morning, we will begin with Dr. Ludmila
Tyler, who is employed as a postdoctorate researcher at
University of California at Berkeley since the fall of 2006.
Dr. Tyler earned her PhD in biology from Duke University.
Mr. Mike Miller is the international representative of the
United Auto Workers and is responsible for working with local
unions throughout Region V of the United Auto Workers. Mr.
Miller currently serves as the Chief Union Negotiator for the
Postdoctoral Scholar Bargaining Unit at the University of
California at Berkeley.
Mr. Dwaine Duckett is the Vice President for Human
Resources at the University of California at Berkeley. Prior to
his tenure at UC Berkeley, Mr. Duckett was Vice President for
Human Resources Heinz North America and at AT&T Cingular
Wireless.
The Honorable John Burton today is before us as one of
California's most experienced legislative leaders. Congressman
Burton served as a State Assembly member, member of the U.S.
Congress and President Pro Tempore of the California State
Senate and currently Chairs the California Democratic Party,
which makes it difficult for us on this side of the agenda to
know whether we call him Senator, Assemblyman, Congressman or
Chairman. But anyway, thank you for your service to the State.
Mr. Bradley W. Kampas is a partner of the San Francisco
office of Jackson Lewis. Mr. Kampas practices labor and
employment law representing and advising employers on labor
relations.
And Dr. John-Paul Ferguson is Assistant Professor of
Organizational Behavior at Stanford University Graduate School
of Business. He is an economic sociologist and has written
extensively about labor law and trade union formation.
Dr. Ferguson, welcome to this side of the Bay.
So welcome, and again thank you for your time and your
expertise.
We have a lighting system in this Committee on those little
boxes before you on the table. When you begin your testimony, a
green light will go on. You will have five minutes for your
testimony. After four minutes, one minute, an amber light will
go on and we suggest that you consider wrapping up your
testimony. We do, however, want you to finish in a manner that
you deem coherent and making your final points as you do wrap
up. Then there will be a red light and we will ask that you
stop your testimony so we can make sure that we have time, not
only to hear from all the witnesses but for the questions from
the members of the panel.
Dr. Tyler, we will begin with you. Welcome, and thank you
so much for being here.
STATEMENT OF DR. LUDMILA TYLER, POSTDOCTORAL RESEARCHER, PLANT
AND MICROBIAL BIOLOGY DEPARTMENT, UNIVERSITY OF CALIFORNIA AT
BERKELEY
Ms. Tyler. So, good morning, Chairman Miller----
Chairman Miller of California. I think we are going to ask
you to pull that microphone a little closer to you, if you can.
Ms. Tyler. Certainly. If you cannot hear me at any point,
just say so.
Chairman Miller of California. Thank you.
Ms. Tyler. So, Chairman Miller, Congresswoman Woolsey,
Congresswoman Lee, thank you very much for holding this hearing
and inviting me to testify.
My name is Ludmila Tyler. I am a postdoctoral researcher in
Plant and Microbial Biology at UC Berkeley. My research focuses
on improving plants used to make biofuels. And I am really
excited about my work and the chance it gives me to contribute
to the development of green energy.
I have been a postdoc at UC Berkeley since the fall of
2006. My colleagues and I are dedicated to our work and we are
committed to being part of the University community.
We found it necessary to unionize in order to improve our
professional lives so that we can better support ourselves and
our families. Specifically, we hope to achieve significant,
regular and transparent salary increases, longer and more
stable appointments, improved health benefits and more family-
friendly policies.
I will try to explain with a few personal examples why
these changes are so critically important.
I have two bachelor's degrees, a Duke University PhD, and
three-and-a-half years of experience beyond the PhD. My current
salary is $37,400 a year. That is the minimum of the UC postdoc
pay scale in spite of my years of experience.
Those of you who live in the Bay Area will appreciate it is
really hard to cover your basic expenses with $37,000 a year.
That challenge grows when you have a child. I have an 18 month
old son, and I do not want my scientific career to be a
disadvantage for him.
As a postdoc, I have had appointments of nine months, 11
months, two months, another nine months and now finally 12
months. The short duration of these appointments creates
tremendous insecurity in my life. I can never predict whether I
am going to have a job in a few month's time.
In fact, after less than two years at Berkeley, I
unexpectedly lost my job. That was a shock because about a year
after I started working at UC, my supervisor approved a pay
increase for me. A pay raise in my department after one year is
usually awarded for outstanding job performance. Several months
later my supervisor stated very clearly that there was at least
18 more months of funding for my position. And so we discussed
long term project plans.
I was hesitant to tell my employer that I was pregnant, but
given the positive evaluation and the assurance about funding,
I made the announcement. Shortly afterwards, my supervisor told
me that there had been a change. There was no longer funding
for my position. She assured me that it had nothing to do with
my performance, there was simply no longer funding for me.
So, I immediately tried to find out what my options were.
What was going to happen to my health insurance, things like
that. And when I explained the situation to a Berkeley
administrator, his response was ``oh, Lord.'' And then he said
``You should focus on finding another job. Don't cause
trouble.''
Fortunately, I did find another job. Another lab hired me
as a postdoc at UC, but my time off disappeared. And the week I
got home from the hospital after having my son, it was an
emergency delivery, the University sent me an email and said
``Your sick leave is drastically reduced. Please plan
accordingly.''
I was able to fight that and get my sick leave back. The
time off just disappeared. And so did a significant portion of
my pay.
It is important to note that this statement is not about my
previous supervisor, or my department, or even about me. These
issues of low pay, job insecurity, poor benefits and a lack of
family-friendly policies affect all UC postdocs and they are
forcing us to ask: Can I afford to continue along this career
path? Will I be able to support myself and my family?
So a first contract will not be a magic fix, I think we all
appreciate that. But it will be a concrete step in the right
direction.
So, with that I will say thank you for holding this
hearing. Thank you for your interest in UC postdocs. And I
would love to see the University of California, which has had a
first class reputation, live up to that reputation.
[The statement of Dr. Tyler follows:]
Prepared Statement of Ludmila Tyler, Ph.D.,
Postdoctoral Researcher, University of California, Berkeley
Good morning Chairman Miller, Congresswoman Lee and Congresswoman
Woolsey. Thank you for holding this hearing and for inviting me to
testify. My name is Ludmila Tyler. I am a postdoctoral researcher in
the Plant and Microbial Biology Department at UC Berkeley. My research
focuses on a grass species, with the goal of improving plants used to
make biofuels. I am excited about my work and the opportunity to
contribute to the development of green energy.
I have been a postdoctoral researcher at UC Berkeley since the fall
of 2006. My colleagues and I are dedicated to our work and committed to
being part of the University community. We have found it necessary to
unionize in order to improve our working conditions and to create more
stability in our postdoctoral appointments. Specifically, we hope to
achieve significant, regular, and transparent salary increases, so that
we can support ourselves and our families; longer and more stable
appointments, to ensure job security for more than a few months at a
time; improved health benefits for ourselves and our families; and more
family-friendly policies such as better child-bearing, parental and
family leaves. I will try to explain, with examples from my own
experience, why these changes are critically important to postdocs.
I have two Bachelor's degrees, a Duke University Ph.D., and three-
and-a-half years of experience beyond the Ph.D. My current salary is
$37,400 per year. Although I have been a postdoc at UC Berkeley for
three-and-a-half years, my salary only meets the minimum of the UC
postdoctoral pay scale. Especially in places like the Bay area, where
the cost of living is high, it is challenging to cover basic expenses
with $37,400 a year. The challenge grows when one is providing for a
child. I have an 18-month-old son, and I do not want my pursuit of a
career in science to be a disadvantage for him.
As a postdoc, I have had appointments of nine months, eleven
months, two months, another nine months, and now--finally--twelve
months. The short-term nature of these appointments creates tremendous
insecurity in my life, because I can never predict with confidence
whether I will have a job in a few months' time.
In fact, after less than two years at Berkeley, I unexpectedly lost
my job. Approximately a year after I started my first postdoctoral
position, my supervisor approved a pay increase for me; in my
department, a pay raise of this type, i.e. after one year instead of
two, is generally reserved for outstanding job performance. Several
months later, my supervisor stated that my position would be funded for
at least another 18 months, and we discussed correspondingly long-term
project plans. I was hesitant to tell my employer that I was pregnant,
but given her positive evaluation of my work and her assurance
concerning funding, I made the announcement. Shortly thereafter, my
supervisor told me that there had been a change: there was no longer
funding for my position; it would end on the last day of the month
(June 30, 2008). When pressed, my supervisor assured me that the
decision had nothing to do with my performance, which she maintained
was excellent. She said that there was simply no longer funding for me.
I immediately attempted to find out what my options were--for
example, what would happen to my health insurance. When I explained my
situation to an administrator at Berkeley, his response was first ``Oh,
lord'' and then ``You should focus on finding another job. Don't cause
trouble. The scientific community is very small, and you're likely to
regret it if you burn your bridges.''
Fortunately, the head of another lab hired me as a postdoc, but my
accumulated time off disappeared and my sick days were drastically
reduced. The university informed me of the reduction in sick days the
week I came home from the hospital and instructed me to ``please plan
accordingly.'' I was able to fight to have the sick days reinstated but
lost several weeks of time off. Because I could not use the time off I
had previously saved to cover part of my maternity leave, I lost a
significant portion of my pay. Changing postdoctoral positions also
disrupted my health insurance coverage, causing additional stress.
When I returned to work after maternity leave, I wanted to continue
feeding my infant son but, to do so, needed access to a private room. I
was given a dusty, vacant office with a defective door lock and a glass
wall opening into the main administrative office. I had to clean the
unused space myself, arrange to have the lock fixed, and buy a curtain
to cover the glass.
It is important to note that this statement is not about any one
individual. It is not about my previous supervisor (to whom I wish only
the best) or about a particular administrator or department. It is not
even about me. I am here today because the issues of low pay, job
insecurity, poor benefits, and a lack of family-friendly policies
affect all UC postdocs. The hardships created by these conditions force
far too many of us to ask: ``Can I afford to continue on this career
path? Will I be able to support myself? Will I be able to support my
family?'' Each month that UC does not agree to a fair contract with the
union, these questions persist.
Postdocs are some of the nation's best-educated workers. Yet, one
of the biggest leaks in the scientific pipeline is at the postdoctoral
level, particularly for women. At a time when the US is trying to
improve its global competitiveness, can we really afford to have that
leak?
Settling a first union contract will not solve all the problems
experienced by postdocs. It is not a magic fix. I am, however, hopeful
that a union-negotiated contract will prevent many of the regrettable
circumstances which currently confront UC postdocs and will also
provide a mechanism for addressing problems when they do occur. A fair
contract will be a significant, concrete step in the right direction.
Thank you very much for taking an interest in University of
California postdocs and our efforts to improve our professional lives
by negotiating a collective bargaining agreement.
______
Chairman Miller of California. Thank you very much.
Mr. Miller.
STATEMENT OF MICHAEL MILLER, INTERNATIONAL REPRESENTATIVE
INTERNATIONAL UNION, UAW
Mr. Miller. Thank you. Good morning, Chairman Miller,
Congresswoman Lee and Congressman Woolsey.
Thank you for holding this hearing. Thank you for
supporting scientific research, the University of California
and postdoctoral scholars.
My name is Mike Miller. I have been an international
representative with the UAW for ten years. I am currently Chief
Union Negotiator and bargaining a first contract covering 6,000
postdoctoral scholars throughout the UC system.
I am also a proud alum of UCLA, where I earned a master's
degree in political science, worked as a teaching assistant and
helped organize the union for 12,000 teaching assistants,
readers and tutors at UC statewide.
The Postdoctoral Scholar bargaining unit was certified in
November of 2008. Since then, bargaining has dragged on 56 days
without settling a contract that as we have heard in Ludmila's
previous testimony, would greatly improve the work lives of
such critical and deserving employees.
Based on my experience negotiating contracts with UC,
University of Washington, and the California State University,
56 days over 18 months greatly exceeds the amount of time
needed to settle a first contract if the parties want to do so.
The evidence here, however, suggests that UC does not want to
settle the postdoc contract.
UC's chief negotiator, Gayle Saxton, and several
administrators in the UC Office of the President, have
repeatedly maintained that the California budget crisis
prevents UC from agreeing to reasonable salary increases and
health benefit improvements for postdoctoral scholars. At least
three sets of facts, however, undermine UC's position:
First, over 90 percent of postdoctoral scholars are
compensated from research contracts and grants that come from
federal sources allocated by Congress, not state general funds.
UC's revenue from research contracts and grants is growing
significantly, increasing 113 percent since 1997, including a
4.3 percent jump at the height of the state budget crises.
These funds, moreover, may not legally be used to cover losses
in state funding and show signs of growing even more in the
future.
Second, in February of this year UC agreed to a contract
with another union representing 10,000 researchers and
technicians who work side-by-side with and are funded by the
very same contracts and grants as postdoctoral scholars. This
contract includes significant compensation increases in each of
the next three years.
Third, in addition to using the California budget crisis as
pretext for not settling the postdoc contract, Ms. Saxton also
contends that the University is philosophically opposed to
providing experience-based pay increases to postdoctoral
scholars because they are academic employees who, according to
UC, should only be eligible for merit not experience-based
raises. Yet UC provides experience-based salary increases to
thousands of resident physician whom it also classifies as
academic employees.
Moreover, because of the high rate of turnover among
postdoctoral scholars, who cannot work in this job more than
five years, establishing a system of experience-based step
increases would represent a one time, relatively low cost to
UC. As UC's own records indicate, 72 percent of postdoctoral
scholars already receive a salary or stipend which based on
their years of experience is at or above the rates we are
proposing.
While the union and UC settled nearly 30 issues in the
first nine months of bargaining, we have not resolved a single
issue since October 2009. This hold up is attributable to UC's
delays in responding to the off the record proposals we made in
October and what UC admitted have been the unreasonable nature
of their responses.
UC has repeatedly delayed providing information we have
requested, and then used its own failure to do so as an excuse
to delay bargaining.
The claim that one of the most sophisticated research
universities in the world lacks the information technology to
track its employees is as revealing of UC's motivation not to
reach a contract, as it is ridiculous. Such a claim is even
more revealing, however, when viewed in the context of UC's
efforts to encourage decertification of the UAW. On at least
three campuses the UC administration has disseminated a website
promoting decertification of the UAW and encouraged
postdoctoral scholars to review it.
Moreover, in December of 2009 Ms. Saxton provided a list of
postdoctoral scholars to an individual seeking to decertify the
union. While UC is more interested in decertification than
postdoctoral scholars are, these actions further demonstrate
UC's desire to delay or even avoid reaching an agreement on a
contract.
In conclusion, I would like to point out that while the
first UAW contract for teaching assistants at UC only settled
after unfair labor practice charges by the union, strikes,
intervention by the Governor and legislative leaders, and the
personal involvement of the UC President, the UAW and UC did
establish a cooperative and productive bargaining relationship
for a number of years after that. Rather than building on that
relationship and bargaining constructively toward an agreement
for postdoctoral scholars, however, UC appears intent on
delaying and derailing bargaining to reach this historic first
contract.
UC will hopefully change course, avoid such unnecessary and
unproductive acrimony and settle this contract swiftly and
equitably.
Thank you again for the opportunity to testify.
[The statement of Mr. Miller follows:]
Prepared Statement of Michael Miller, International Representative
International Union, UAW
Good morning Chairman Miller, Congresswoman Lee and Congresswoman
Woolsey. Thank you for holding this hearing. Thank you for supporting
scientific research, the University of California and Postdoctoral
Scholars.\1\ My name is Mike Miller. I have been an International
Representative with the UAW for ten years. I am currently chief union
negotiator in bargaining a first contract covering 6,000 Postdoctoral
Scholars throughout the UC system. I am also a proud alumnus of UCLA
where I earned a Masters degree in Political Science, worked as a
Teaching Assistant and helped organize the union for 12,000 Teaching
Assistants, Readers and Tutors at UC statewide.
The Postdoctoral Scholar bargaining unit was certified in November
2008. Since then, bargaining has dragged on 56 days without settling a
contract that, as we have heard in previous testimony, would greatly
improve the work lives of such critical and deserving employees.
Several bargaining issues are still pending. Please see Exhibit D.
Unfortunately, no issues have been resolved since October 2009.
Based on my experience negotiating contracts with UC, University of
Washington, and the California State University System, 56 days over 18
months greatly exceeds the amount of time needed to settle a first
contract if the parties want to do so.
Negotiations for a first contract for Teaching Assistants at UC
took only nine months in 1999-2000 during which the Union filed dozens
of unfair labor practice charges and struck and the Governor as well as
Legislative leaders intervened in bargaining leading to the direct
involvement of the UC President in settlement; the first contract for
Teaching Assistants at the CSU system took 6 months during 2004-2005;
and the first contract for Teaching and Research Assistants at the
University of Washington took only seven weeks in 2004.
The evidence in the case of Postdoctoral Scholars' bargaining,
however, suggests that UC does not want to settle the contract. This is
particularly unsettling since, after a great deal of struggle and
rancor to negotiate the first Teaching Assistant contract ten years
ago, we established a cooperative and productive bargaining
relationship with UC for a number of years. Rather than building on
that relationship and bargaining constructively toward an agreement for
Postdoctoral Scholars, UC appears to be trying to delay and derail
bargaining.
UC Using State Budget Crisis as Pretext to Deny Increases
UC's chief negotiator, Gayle Saxton, and several administrators in
the UC Office of the President, have repeatedly maintained that the
California state budget crisis prevents UC from agreeing to increased
salaries or improved health benefits for Postdoctoral Scholars. At
least three sets of facts undermine UC's position.
Postdoctoral Scholars are Paid from Expanding Research Revenue, not
Shrinking State General Funds
Over 90 percent of Postdoctoral Scholars are compensated from
research contracts and grants that come from federal sources allocated
by Congress, not state general funds.\2\ Moreover, according to UC's
budget office: ``UC cannot legally transfer funds from restricted
sources, such as state and federal research grants, and use the money
to make up for cuts in state funding.'' \3\
These grant and contract revenues that fund Postdoctoral Scholar
salaries and benefits have also been expanding dramatically in recent
years. According to UC's audited financial statements, the University's
overall research contract and grant revenue--including federal, state,
local and private sources--has more than doubled in recent years,
growing from $2.2 billion in fiscal year 1997 to $4.7 billion in
2009.\4\ Even in the midst of California's current budget crisis, UC's
overall research contract and grant revenue increased 4.3 percent from
2008 to 2009--including a 3.4 percent expansion of state research
funds.\5\ (See Chart 1)
Moreover, this increase in research contract and grant revenue only
shows signs of accelerating in the future. Much of this increase will
come from federal sources, especially given the recent re-
prioritization of science under the Obama administration. The federal
government (through agencies such as NIH, NSF, DOE, DOD, and NASA)
provides by far the largest single portion of UC's research funding,
contributing roughly two-thirds of the University's overall annual
research contract and grant dollars, and is especially important to
Postdoctoral Scholar positions. (See Chart 2) While federal sources are
the largest source of UC's contract and grant revenues, the fact
remains that all categories of research contract and grant revenues at
UC--including from the state of California--have grown significantly in
recent years and show no sign of waning.
In fact, a number of the UC campuses have been touting their
unprecedented recent growth in contract and grant revenue. UC Davis
recently announced, for example, its expectation that it would set a
record this year for research revenues and underscored the significance
of that fact in the context of the current state budget crisis.
``Despite the difficult budget situation, UC Davis is on a steep upward
curve--doubling our research income in less than a decade,'' says UC
Davis Chancellor Linda Katehi. Similarly, UCLA recently announced that
its research operations were bringing in a record-setting $4 million
per day so far in fiscal year 2010.\6\
This growth in contract and grant revenue at UC should only make
easier UC's existing capacity to provide economic improvements for
Postdoctoral Scholars. ``The University has the capacity within its
research budgets to agree to fair salary increases,'' notes Norman
Ellstrand, Professor of Genetics at the University of California,
Riverside and recent recipient of a Guggenheim Fellowship. ``Funding
agencies, as well as the University administrators who oversee grant
proposals, expect that grant budgets include salary increases each year
and budget accordingly. Given these facts, and the tremendous value
Postdoctoral Scholars bring to the institution, the University's
bargaining team should be able to reach an agreement with fair wage
increases and benefits quickly.'' \7\
UC Has Agreed to Substantial Compensation Increases with Similar
Employees
Second, in February of this year, UC agreed to a contract with
another union representing nearly 10,000 Researchers and Technicians on
a contract that includes significant compensation increases in each of
the next three years.\8\
In the agreement with UPTE-CWA, UC will provide Staff Research
Associates and Technicians a $1,000 lump sum for the 2009-10 year, and
combined general and step increases of 4.5 percent, 5 percent, and 5
percent in fiscal years 2010-11, 2011-12, and 2012-13, respectively, a
15.2 percent compound increase.\9\ Not only do these researchers and
technicians work side-by-side with Postdoctoral Scholars, but they are
also funded by the same contracts and grants.
UC has also agreed to provide substantial increases to Resident
Physicians over the next few years. Resident Physicians will receive
combined general and step increases of 6.0 percent to 7.9 percent in
each fiscal year, 2009-10, 2010-11, and 2011-12.\10\
UC ``Philosophically Opposed'' to Experience-Based Pay Increases
for Postdoctoral Scholars
In addition to using the California budget crisis as pretext for
not settling the Postdoctoral Scholar contract, Ms. Saxton contends
that the University is ``philosophically opposed'' to providing
experience-based pay increases to Postdoctoral Scholars because they
are ``academic'' employees who, according to UC, should only be
eligible for merit-based raises. Yet, UC pays thousands of Resident
Physicians, whom it also classifies as academic employees and who have
similar levels of education and training, experience-based salary
increases every year.
Additionally, the NIH, the agency providing the single largest
source of federal funding for research grants to UC sees fit to reward
its own NIH Postdoctoral Fellows with experience-based step increases.
The NIH Kirchstein program, one of the most academically prestigious in
the world, ensures that Postdoctoral Scholars on this fellowship
receive annual experience-based step increases to recognize and reward
their experience level. Pursuant to NIH regulations, UC already applies
these increases to the 400-500 Kirchstein Postdoctoral Fellows who are
part of the UAW bargaining unit.\11\ A number of departments and labs
at UC also follow this standard already for non-NIH Kirchstein
Postdoctoral Scholars to track the national standard.\12\
Moreover, because of the high rate of turnover among Postdoctoral
Scholars (who cannot work in this job more than five years),
establishing a system of experience-based step increases would
represent a one-time, relatively-low cost to UC. As UC's own records
indicate, 72 percent of Postdoctoral Scholars already receive a salary
or stipend at or above the rate we are proposing, based on years of
experience.\13\
Delaying Bargaining by Hiding Behind UC's Own Alleged Inability to
Provide Information
UC has repeatedly delayed providing information we have requested
and then used its own failure to provide the information as an excuse
to delay bargaining.
Relevant to the outstanding bargaining topics, we have requested
information regarding historical salary/stipend rates, source of
stipend, salary/stipend increases and the reasons for those increases,
years worked as a Postdoctoral Scholar, the number of Postdoctoral
Scholars laid off in recent years, examples of and information
regarding grants and contracts, health insurance premium information
for Fellows and Paid Directs. As of yet, we have only received a tiny
fraction of the information requested.\14\
The claim that one of the most sophisticated research universities
in the world lacks the information technology to track its employees is
as revealing of UC's motivation not to reach agreement as it is
ridiculous.
As an example, on April 15, 2010, UC for the first time asserted
that there were alleged restrictions from funding sources of a small
fraction of Postdoctoral Scholars--those in the Postdoctoral Scholars--
Fellow and Postdoctoral Scholars--Paid Direct titles--that prevent UC
from agreeing to salary increases and health benefit improvements in
2010 as well as any salary increases and health benefit improvements in
any subsequent year of a contract.
When pressed for the number of Postdoctoral Scholars whose funding
source may pose such a problem or the cost of the alleged liability for
UC, Ms. Saxton stated that she does not and cannot know because UC does
not keep track of this information in any centralized way. Ms. Saxton
also has not produced a single agreement with a funding agency that
contains the restrictions she alleges prevent increases in salary and
benefits. But, most ridiculous of all and clearly reflecting their
strategy of delay, when UC proposed the next day that we postpone
bargaining salaries and benefits for future years to October 2010, they
also proposed a one-time across-the-board 1.5 percent increase for all
Postdoctoral Scholars in July 2010--completely contrary to Ms. Saxton's
claim about restrictions on salary increases. This contradictory
position suggests very strongly that UC's alleged inability to provide
information is simply pretext for not reaching agreement for as long as
possible.
UC Wasting Valuable Public Resources Avoiding a Contract
The use of University resources--whether from the $825 million UC
received last year in Facilities and Administration costs from grants
and contracts, general funds, or tuition revenues--to engage in these
delays has not gone unnoticed. ``We have been watching these
negotiations for roughly 15 months now and are disappointed to see UC
once again continuing its pattern of dragging out negotiations for as
long as possible,'' says Victor Sanchez, President of the University of
California Student Association, representing over 200,000 students
across the UC system, ``especially since some part of our rapidly
increasing tuition and fees goes to pay the administrators in charge of
these negotiations.'' \15\
Rather than settle a multi-year contract with reasonable salary
increases and benefits each year, UC is proposing to bargain over
salary and benefits in October 2010 and each subsequent October if no
multi-year agreement can be reached. Unnecessarily prolonged bargaining
wastes resources.
Attempting to Support Decertification Effort
On at least three campuses, the UC administration has disseminated
a website promoting decertification of the UAW and encouraged
Postdoctoral Scholars to review it. Moreover, in December 2009, Ms.
Saxton provided a list of Postdoctoral Scholars to an individual
seeking to decertify the Union.
On December 10, 2009, in a UC San Francisco Academic Senate
Graduate Council meeting at which Postdoctoral Scholars were present, a
University administrator discussed positively as an ``item of
interest'' and provided the address for the website advocating
decertification of the UAW while giving a report on the ongoing
negotiations. A University bargaining team representative was in
attendance and made no efforts to stop the administrator from providing
this report and the website.
While UC is clearly more interested in decertification than are
Postdoctoral Scholars, these actions further demonstrate UC's desire to
delay reaching agreement on a contract.
Conclusion
From the evidence presented emerges a pattern of delay and
obstruction by UC with the apparent goal of stalling and/or avoiding
all together a collective bargaining agreement that would significantly
improve the lives of the 6,000 Postdoctoral Scholars who make UC such a
great research University. The first Teaching Assistant contract and
the most recent Researcher and Technician contract only settled after
unfair labor practices and strikes and we'd like to avoid that. UC will
hopefully change this pattern, avoid such unnecessary and unproductive
acrimony and settle this contract swiftly and equitably.
exhibit a: testimony of norman ellstrand
I am Norman Ellstrand, Professor of Genetics at the University of
California, Riverside, and recent recipient of a Guggenheim Fellowship.
I have been a UC faculty member for three decades and have employed a
several Postdoctorals over those years, in addition to other
researchers and graduate students.
Postdocs have been critical to my research projects. The
Postdoctoral scientists that I have hired have conducted research that
has lead to many of the key publications of my career. And many of
those scientists have gone on to become research leaders elsewhere. For
example, my first three postdocs are now faculty at University of New
Mexico, University of Pittsburgh, and University of Washington at
Seattle.
Thus, I am well-aware that postdocs play a crucial role both in
maintaining UC's reputation as a world leader in innovative research
and in generating the science that propels UC's continually expanding
research budget. Postdocs not only perform the research for existing
grant projects, but they also do much of the work in developing new
projects and grant proposals.
The University has the capacity within its research budgets to
agree to fair salary increases. Funding agencies, as well as the
University administrators who oversee grant proposals, expect that
grant budgets include salary increases each year and budget
accordingly. Given these facts, and the tremendous value Postdoctoral
Scholars bring to the institution, the University's bargaining team
should be able to reach an agreement with fair wage increases and
benefits quickly.
exhibit b: testimony of robert dudley
My name is Robert Dudley. I am a Professor of Integrative Biology
at the University of California, Berkeley. I have been at UC Berkeley
since 2003. My research focuses on the mechanics and evolution of
animal flight, particularly in insects and hummingbirds.
The Berkeley campus and UC generally are the envy of the world when
it comes to higher education and scientific research. Postdocs are a
critical component of our world-renowned research programs.
As faculty, it is in our own best interests to advocate on behalf
of Postdocs. Improving working conditions for Postdocs enhances our
overall research capacity and helps us to attract and retain the
scientific prowess necessary to maintain our academic reputation.
What is also at stake is the preeminent position of the United
States in scientific progress and technological innovation. Post-WWII
US economic and scientific progress has derived substantially from our
ability to attract the best workers and researchers from around the
nation and the globe. To this end, improved postdoctoral support must
be an integral component of ongoing efforts to maintain the nation's
scientific and engineering infrastructure.
exhibit c: testimony of victor sanchez
My name is Victor Sanchez. I am the President of the University of
California Student Association, representing over 200,000 students
across the UC system. We have been watching these negotiations for
roughly 15 months now and are disappointed to see UC once again
continuing its pattern of dragging out negotiations for as long as
possible, especially since some part of our rapidly increasing tuition
and fees goes to pay the administrators in charge of these
negotiations. Postdocs do much of the work that makes UC such a
premiere research institution and, as such, they deserve a fair
contract. The thousands of undergraduates who work in the labs on
campus benefit tremendously from the supervision and mentoring of
Postdocs. These undergraduates are the potential Postdocs of tomorrow,
but watching how UC is approaching these negotiations will make many of
them question whether or not to go into science as a career after
graduating.
EXHIBIT D: OUTSTANDING BARGAINING TOPICS
------------------------------------------------------------------------
UAW PROPOSALS UC PROPOSALS
------------------------------------------------------------------------
HEALTH INSURANCE
Lower costs and improved coverage No Improvements to health insurance
for healthcare
Maintain percent of Maintain benefits and
premiums paid by Postdocs (like UC premium structure for 2010
is doing for other staff plans at (meaning Fellows and Paid Directs
UC) and ensure paid coverage for have no guarantee of paid health
all Postdocs; improve preventive insurance)
coverage (which may well reduce Wait until October 2010 to
UC's long term costs) and reduce negotiate health insurance
annual out-of-pocket costs benefits for future years
------------------------------------------------------------------------
SALARIES
Salary increases consistent with Meaningful increases postponed
funding agency standards
$1,000 lump sum for 2009 One-time 1.5 percent
General Range adjustment across-the-board increase in 2010
of 4 percent upon ratification and No experience-based
each October1 after 2010 increases
Experience-based increases Wait until October 2010 to
based on NIH Kirchstein program negotiate any future increases
------------------------------------------------------------------------
APPOINTMENT LENGTH/SECURITY
Postdocs shall have 5-year Postdoc appointments will
appointments normally be one year
UC pays health insurance COBRA begins at layoff
for six months before COBRA begins
------------------------------------------------------------------------
NO STRIKES
Postdocs have same rights as Postdocs have fewer rights than
Teaching Assistants Teaching Assistants
Protect right of Deny the right of
individual Postdocs to exercise individual Postdocs to exercise
their conscience in support of their conscience in support of
other employees' strikes other employees' strikes
------------------------------------------------------------------------
exhibit e
exhibit f: testimony of stanton glantz
My name is Stanton Glantz. I am a Professor of Medicine and
American Legacy Foundation Distinguished Professor in Tobacco Control
at UC San Francisco, since I joined the faculty in 1977 following a
postdoctoral fellowship here from 1975-7. I am also a member of the
UCSF Cardiovascular Research Institute, Institute for Health Policy
Studies and co-director of the UCSF Comprehensive Cancer Center Tobacco
Program. I have enjoyed strong research support from both the National
Institutes of Health as well as state agencies and foundations. I am
also a past chair of the University of California Systemwide Committee
on Planning and Budget and am familiar with a broad range of financial
issues facing the University of California and higher education in
general.
During my time at UCSF, I have also supervised dozens of
researchers, including Postdoctoral Scholars, working on numerous
projects in my areas of specialty, cardiovascular research and tobacco
control. I am the program director for a postdoctoral training program
in tobacco control currently funded by the National Cancer Institute.
UC San Francisco is a world-class research university. In fiscal
year 2009, for example, UCSF won more National Institutes of Health
research grant money than any other public institution in the nation.
As a whole, the University of California system has been a world leader
in research and scientific innovation for decades.
Postdoctoral Scholars play a central role in making UC such a top-
notch research institution, working on topics ranging from heart and
cancer research to public policy issues surrounding health care reform
to climate change. They do much of the day-to-day work on our cutting-
edge research projects happening and are the source of some of our best
and most innovative ideas. Postdoctoral scholars also help train
graduate and undergraduate student researchers, and contribute to
writing the grant proposals that continue to generate UC's robust
research revenues. Without Postdoctoral Scholars, UC would not be the
world-class research university it is.
A world-class research university such as UC needs to pay stipends
and salaries to the researchers that match the quality of the pivotal
work they do. UC's salaries tend to be low, so I am confident that
funding agencies (who pay the great majority of stipends and salaries
for Postdoctoral Scholars) would approve research grant budgets that
include fair increases in salaries and benefits to these front-line
researchers as long as they are approved by the University. The
granting agencies expect these costs; indeed, the University will not
permit faculty to submit grants unless the budgets allow for
anticipated increases in salaries and benefits.
Not only does UC have the capacity to agree to fair increases for
Postdoctoral Scholars, but it is also critical to establish and
maintain competitive salaries and benefits that will attract the best
and brightest researchers to UC and help us continue to be a world
leader in the realm of science.
endnotes
\1\ UC received $2.98 billion in grants and contracts from federal
sources in fiscal year 2009. See UC Consolidated Audited Annual
Financial Reports, available at http://www.universityofcalifornia.edu/
reportingtransparency/. Also see Chart 1.
\2\ While UC receives research funding from a variety of sources,
and although UC says exact numbers are unavailable, UAW and UC have
discussed in bargaining that federal grants and contracts fund roughly
90 percent of UC's Postdoctoral Scholar appointments (See Chart 2).
\3\ See ``How the Budget Works,'' on the University of California
Budget News webpage, which can be viewed at http://
www.universityofcalifornia.edu/budget/?page--id=1120)
\4\ See UC Consolidated Audited Annual Financial Reports, available
at, http://www.universityofcalifornia.edu/reportingtransparency/.
\5\ Ibid.
\6\ For UC Davis, see ``Research funds hit new high, top half-
billion dollars,'' at http://www.universityofcalifornia.edu/news/
article/22536. For UCLA, see ``UCLA researchers bring in $4M a day in
research contracts, grants,'' at http://www.today.ucla.edu/portal/ut/
researchers-bring-in-4m-a-day-111993.aspx.
\7\ See Exhibit A, Statement from Professor Norman Ellstrand.
\8\ See http://www.upte.org/rx-tx/ulp/index.html for UPTE-CWA's
description of charges filed prior to their one-day ULP strike on
September 24, 2009. For a description of the labor board's response to
the charges, see UPT-CWA's January 2010 newsletter at http://
www.upte.org/rx-tx/01-10CAW.pdf. For examples of UPTE-CWA's public
relations campaign against UC, see http://www.upte.org/rx-tx/
execpay.pdf or http://www.peopleorprofit.org/.
\9\ See http://www.upte.org/publication-ebulletin/2010-02-19.html
for a summary; and see the contract at http://www.ucop.edu/
atyourservice/employees/policies--employee--labor--relations/
collective--bargaining--units/technical--tx/contract--articles/tx--
contract--0410draft.pdf.
\10\ The Resident Physician contract can be viewed at http://
www.ucop.edu/atyourservice/employees/policies--employee--labor--
relations/local--agreements/ucsd/SDHSA--MOU-Final-09-12.pdf. See http:/
/meded.ucsd.edu/assets/6/File/housestaff/Salary percent20Scale
percent2009-10 percent20& percent2010-11.pdf for their salary scales
that will take effect July 1, 2010. Salary scale changes that took
effect on July 1, 2009, can be viewed at http://www.ucop.edu/acadadv/
acadpers/0910/table22.pdf.
\11\ While UC has not provided specific information on stipend
source for Postdoctoral Scholars, they have communicated in bargaining
that roughly 400-500 NIH Kirchstein Fellows are currently working at
UC.
\12\ See http://grants.nih.gov/grants/guide/notice-files/NOT-OD-10-
047.html for the NIH Kirchstein stipend scale based on years of
experience as a Postdoctoral Scholar.
\13\ According to a costing document from April 2009 payroll
records that UC provided to the Union, 4,029 of the 5,578 individuals
were paid at least the equivalent of what they would make on an NIH
fellowship
\14\ The Union requested these items starting on December 19, 2008,
and continuing on February 6, 2009, March 10, 2009, April 17, 2009,
July 17, 2009, August 26, 2009, March 17, 2010, and April 20, 2010.
More specifically, starting on December 19, 2008, and numerous times
since then, the UAW has requested source of stipend for each
Postdoctoral Scholar, which UC has yet to provide. The Postdoctoral
Scholars Saxton now says may pose a problem are all in the Fellow or
Paid Direct titles, which receive a fellowship stipend rather than a
salary. As of July 17, 2009, we also requested a number of pieces of
information regarding Fellows and Paid Directs, including, but not
limited to: any agreements between funding agencies and the University
regarding Fellows or Paid Directs (including those referenced in the
University's September 5, 2008, letter to PERB (See Exhibit E) as the
basis for arguing to include Paid Directs in the bargaining unit),
description of how the University determines the overall stipend/salary
rate for Fellows and Paid Directs, and a description of the process for
setting up the appointment at the University.
\15\ While the claim that UC lacks the information technology to
track its employees seems implausible, credulity is strained even
further by the fact that last year alone UC received $825 million in
Facilities & Administration (F & A) costs from grants and contracts. F
& A costs are recovered by UC as a percentage of every dollar awarded
by a granting agency for the direct costs--salaries, benefits, etc.--of
performing the research project. For federal grants and contracts at
UC, for example, UC receives roughly 53 percent, or an additional 53
cents spent on every dollar of research. One of the main purposes of
this money is, according to the NIH, to pay for ``indirect costs
associated with the overall management of an organization, e.g.,
President's Office, Human Resources Office, Accounting Office, office
supplies, etc.'' See http://oamp.od.nih.gov/dfas/
faqIndirectCosts.asp#difference.
______
Chairman Miller of California. Thank you.
Mr. Miller, if you would pass the microphone over to Mr.
Duckett.
Mr. Duckett.
STATEMENT OF DWAINE DUCKETT, VICE PRESIDENT OF HUMAN RESOURCES,
UNIVERSITY OF CALIFORNIA, OFFICE OF THE PRESENT
Mr. Duckett. Thank you,
Mr. Chairman, members of Congress and the Committee. I'm
Dwaine Duckett, Vice President of Human Resources for the
University of California.
Thank you for this opportunity to talk on this topic, and
your interest.
We are pleased to be here today to talk about the
collective bargaining process between the University and the
UAW postdoctorate scholars.
I want to point out that the University has a solid track
record that might get alluded to a little bit earlier, of
concluding first party contracts. An unbroken line of
successful negotiations over a quarter of a century. There is
no reason to believe that the postdoc negotiations with the UAW
will be any different this time.
In the public employment context that we have if the
parties don't reach an agreement, the state law here directs a
mediation and an impasse process that both sides have sought to
avoid thus far. This negotiation is a proceeding in accordance
with prior university first party negotiations and, we have
reached agreement on 29 of 35 articles during the period of
time that negotiations have gone on.
We are currently bargaining a handful of issues that
remain. They are difficult issues that remain, but none are
outside of the normal bargaining process.
Rest assured that we have an interest in making sure that
this contract gets settled also. A settlement provided the
University with certainty, stability, predictability and labor
peace due to the enactment of grievance and arbitration
processes to resolve issues. And the state law backstops this
process where bargaining reaches impasse, as I mentioned
before.
On terms of talking about state funds, they do not in and
of themselves basically influence the negotiations. The primary
issues that make this process long and difficult have to do
with the nature of this particular bargaining unit and what is
at stake for both sides if we do not get this right.
Let me talk a little bit about the complexity of
negotiations. I know that the first negotiation is the hardest.
And this is a diverse group with a variety of unique job
descriptions ranging from some of the items that Dr. Tyler
works on to things like examining manuscripts, working on
nuclear energy, et cetera. So none of these jobs are the same
in and of themselves. This creates a complexity in the
bargaining that does not exist with other units in private
industry and even at UC.
These postdoctoral scholars, as another complication, come
from all over the world to complete their training and
research. They usually stay for a short period of time. And for
example, they work on a staggering array of projects like I
talked about earlier.
Funding comes from a variety of different sources,
including federal contracts, grants and grants from state and
foreign governments as well as private sources. These are all
regulated differently.
It is difficult to implement a across the board wage
increases, which is one of our biggest remaining bargain
articles that the UAW has asked for. Fund resources restrict
how these funds are spent.
For example, this means that a faculty advisor with fellows
working in her lab but not directly on the research for her
work, cannot use particular grant money to pay an increase for
a postdoctoral scholar. What's at stake here is that if we
miscalculate or fail to account for each funding scenario that
exists for each postdoc, there is no direct funding source for
compensation increases except through the core University
budget, which has been severely impacted by the loss of
millions of dollars in state funding.
As you can see, the unique characteristics of this group
also means that we cannot just import language from other
contracts to expedite the process. But despite these
complexities and challenges, we have made great progress.
There are existing complexities when you talk about the
difference between national labor law and HEERA, which governs
these particular proceedings. Bargaining at the University is
different than it is in the private sector because we are
subject to these state laws and not the National Labor
Relations Act.
There is an incentive for both sides to settle. And fair
mediator opinions usually have provisions within all of them
that both sides could find particularly unattractive. Thus far,
both sides have sought to avoid getting into a situation where
we are at impasse.
If the mediator cannot settle a contract, the neutral fact
finders assigned conducts the investigator and renders a
recommendation about consensual settlement.
As mentioned, we've come to agreement on 29 of 35 issues to
date, and hopeful that we can reach agreement without needing
to consider HEERA's impasse procedures. We are confident that
in the spirit of negotiation that we showed in the past, and
continuing to bargain in good faith, that we will do so.
We have a history of collective bargaining success, and we
have consistently been able to do this. Our optimism arises out
of existing long-standing relationship s with the UAW, of which
Mike alluded to a little bit earlier, in that they have
represented our graduate students for over ten years. We have
negotiated a first contract with them successfully in multiple
successor agreements.
We have also had a track record that makes it very clear
that we have bargained in good faith and that these successor
agreements have been executed, for the most part, without any
major hiccups.
Adding to our complexity, we have 13 system-wide and 12
local unions. They represent over 78,000 of our employees and
we reach successful agreements with each of those when we are
called upon to do so.
Although this has been slow going for both sides, in every
case we have completed negotiations and reached fair first
contracts.
We look at the glass being 80 percent full in this case. We
want to push to close the remaining issues. UC will do
everything it responsibly can to reach an agreement with the
UAW that meets the needs of both the University and the
postdoctoral scholars.
In conclusion, I would like to thank you for the
opportunity to be here to share the University's perspective on
the complex nature of these proceedings and these
groundbreaking deliberations. We hope this gives you and the
Committee insight to help you guide policy decisions that you
alluded to earlier, and again, we thank you for the opportunity
to be here.
[The statement of Mr. Duckett follows:]
Prepared Statement of Dwaine Duckett, Vice President of
Human Resources, University of California, Office of the President
Mr. Chairman, and members of Congress, I am Dwaine Duckett, Vice
President of Human Resources at the University of California. I am
pleased to be here today to discuss the collective bargaining process
to date between the University and the United Auto Workers union, which
represents Postdoctoral Scholars at the University. With me today is
Gayle Saxton, Director of Labor Relations, who is responsible for
executing the collective bargaining negotiations at the University. She
is also the University's chief negotiator in the negotiations with the
UAW for the Postdoctoral Scholars unit.
The University and the UAW have made great progress in these
negotiations. At this point, we have resolved 29 articles, ranging from
union security to professional development and time off work. There are
six articles outstanding including appointments, benefits,
compensation, duration of agreement, layoff, and strikes. These are key
issues to be resolved, but we feel confident in each side's commitment
to good faith bargaining and desire to reach agreement. We will
continue to work hard to reach an agreement that meets the needs of
both the University and the Postdoctoral Scholars.
Before discussing the details of these negotiations, I would like
to provide some background information about the University and its
collective bargaining history. I believe this information provides
important context for understanding the negotiations between the
University and the UAW.
The University of California consists of ten campuses and five
medical centers, and is involved in the management of three national
laboratories on behalf of the federal government. The UC system
includes more than 220,000 students and employs more than 135,000
faculty and staff. In fact, the University is one of the State of
California's largest employers.
The National Labor Relations Act of 1934 regulates private sector
employer-employee relations and exempts government employers. Like many
states, California has adopted its own labor laws for public sector
employers. The University of California, as a higher education
employer, is governed by California's Higher Education Employment
Relations Act, or HEERA.\1\ HEERA guarantees employee rights related to
joining and participating in employee organizations, and requires
employers and employee organizations to bargain in good faith over
wages, hours, and other terms and conditions of employment.\2\
California's Public Employment Relations Board (PERB) enforces and
administers HEERA.\3\
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\1\ California Government Code sec. 3560-3599
\2\ California Government Code sec. 3565, 3567
\3\ California Government Code sec. 3563-3563.3
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Although many similarities exist between the National Labor
Relations Act and HEERA, there are some significant differences as
well, particularly in the area of resolving bargaining impasses. Under
HEERA, once the parties reach an impasse in bargaining, PERB appoints a
mediator. If mediation does not result in a settlement, then the
impasse may be referred to a fact-finding panel that may conduct
hearings and investigations, make findings of fact, and issue advisory
recommendations regarding potential settlement terms.\4\ Impasse
resolution procedures are not complete until the parties have
considered the fact-finding report in good faith. Impasse under HEERA
is a continuation of dispute resolution efforts. Under the statutory
timeframes built into HEERA, the impasse procedures usually take a
minimum of two months' time to complete, and occur only after the
parties have engaged in a robust bargaining process and concluded that
further meetings would be futile. We have not reached impasse in the
negotiations involving the Postdoctoral Scholars, and we hope to avoid
impasse and work toward our goal of a settled contract.
---------------------------------------------------------------------------
\4\ California Government Code sec. 3590-3594
---------------------------------------------------------------------------
In the 30 years since HEERA's passage, the University of California
has recognized a number of different unions as the exclusive
representative of thousands of University employees. Currently, the
University has 13 system-wide bargaining units covering 78,000
employees as well as a number of local bargaining units at each
location covering, for example, employees in the skilled crafts. The
University entered into its first collective bargaining agreement in
1984, and has successfully negotiated many agreements with its unions
since that time. In every case involving first contracts, the
University has a track record of completing negotiations and reaching
agreement with the union. We are optimistic about our ability and
committed to reaching agreement in these initial negotiations with the
UAW for the Postdoctoral Scholar unit.
The University and the UAW already have a long-standing and
positive relationship as a result of the UAW's representation of many
of the University's graduate students. The UAW became the exclusive
representative for the graduate student bargaining unit in 1999. The
University and the UAW completed their negotiations for an initial
contract in 2000 after more than a year of bargaining, and have
bargained two successor agreements since that time.
The UAW initially sought to represent the Postdoctoral Scholars in
2006, but withdrew its petition for recognition. It filed another
petition with PERB in 2008. Following the submission of valid
authorization cards, PERB certified the UAW as the exclusive
representative on October 30, 2008. Formal negotiations began in
February 2009.
The University of California is one of the world's preeminent
public research university systems, and Postdoctoral Scholars are
important contributors to the research enterprise. Postdoctoral
Scholars hold temporary appointments, usually lasting one to three
years, which are designed to give them opportunities to conduct
research under the guidance of faculty mentors. The University limits
the time in the Postdoctoral Scholar title to five years, which follows
the nationwide standard. The time spent as a Postdoctoral Scholar is in
preparation for career progression in academe, industry, government, or
the nonprofit sector. For many, especially those in the physical and
life sciences, Postdoctoral Scholar work is a critical step in securing
future employment. All Postdoctoral Scholars must have a doctoral-level
degree.
The University has approximately 6,500 Postdoctoral Scholars in
three different titles, each of which is exclusively represented by the
UAW. The difference in titles arises primarily from their source of
funding.
The first category is an Employee Postdoctoral Scholar,
which is a person who receives funding from a University source that
provides discretionary funds in support of the training of Postdoctoral
Scholars, or from an agency that requires or permits the person to be a
University employee. The majority of Employee Postdoctoral Scholars are
funded through federal contracts and grants such as the National
Institutes of Health, the National Science Foundation, and the
Department of Energy. Other sources include the State of California,
private grants and private foundations. The Employee Postdoctoral
Scholar is paid through the University payroll system. About 77% of the
bargaining unit are in the Employee title.
The second type of Postdoctoral Scholar is a Fellow.
Fellows have been awarded funding by an extramural agency and the
funding, which flows thorough the University, is paid as a stipend
rather than as pay. Many of these awards carry restrictions about the
Fellow holding appointments supported from other fund sources. The
majority of Fellows in the life sciences are supported by NIH funds,
although other sources of support for non-life science Fellows include
private grants or other private sources.
The third type of Postdoctoral Scholar is known as a Paid
Direct. Paid Directs receive funding from an extramural agency or
country, which pays the funding directly to the scholar rather than
through the University.\5\ The funding/payment does not flow through
the UC system and cannot be tracked by the University.
---------------------------------------------------------------------------
\5\ Some of the representative agencies currently supporting Paid
Direct Postdoctoral Scholars at the University include the Fulbright
Foreign Scholarship Board, the Hewitt Foundation, the Japan Society for
Promotion of Science, European Molecular Biology Organization, Wellcome
Trust, the Natural Sciences and Engineering Research Council for
Canada, and the China Scholarship Council.
---------------------------------------------------------------------------
Postdoctoral Scholars must publish and participate in the research
enterprise of the University. Postdoctoral Scholars come from all over
the world to engage in research under the direction of faculty
advisors. The faculty advisor is the Principal Investigator (PI) on the
grant, runs the laboratory or research project where the Postdoctoral
Scholar pursues his or her research, and assumes responsibility for the
conduct of the approved funded research. In some cases, the University
selects the Postdoctoral Scholar to support the research conducted by
the faculty advisor because the person's skills and areas of expertise
benefit the University's research. In some cases, Fellows and Paid
Directs seek out positions at the University to work with particular
faculty advisors. These Fellows and Paid Directs are often funded from
sources different than those administered by their PI, and may or may
not work directly on the research funded by the PI's grant.
Ongoing across-the-board approaches for Postdoctoral Scholar salary
increases are difficult, in part because many Postdoctoral Scholars
have different sources of funding throughout their term at the
University. For example, a Postdoctoral Scholar may be appointed as an
Employee Postdoctoral Scholar one quarter, and a Fellow the next. In
some cases, a person may have a dual appointment as a Paid Direct and
an Employee Postdoctoral Scholar. Salaries for Fellows and Paid Directs
are set by the funding agency. Fund sources often place restrictions on
how funds are spent.
For example, grants awarded by the federal government will
only allow that grant's funding to be spent on research directly
related to the grant. Because grant funding cannot be moved between
research projects, federal funds cannot be pooled to provide across-
the-board salary increases in a case where a particular grant may not
have sufficient funds available for that purpose.
Most of the training grants that fund research through the
PIs (generally funding Postdoctoral Scholars in the ``Employee'' title,
or research to which no Postdoctoral Scholar is assigned) require that
the grant funds be spent only on research and materials directly
associated with the research funded by that grant. Thus, a PI who has
two Fellows working in her or his laboratory but not directly on the
research for which the grant was issued cannot use her/his grant money
to fund a wage increase for the Fellows.
Some fellowships disallow the use of use of federal funds
to supplement the fellowship. As such, other fund sources, such as
University or State of California funds, must be found for such
supplementation. As we know, both the University of California and the
State have a significant budgetary shortfall, and such funds are not
available.\6\
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\6\ The University has lost millions of dollars of funding from the
State of California, which loss has required measures such as furloughs
and salary reductions for large segments of its workforce. These
furloughs and salary reductions did not apply to the Postdoctoral
Scholars.
---------------------------------------------------------------------------
Proposals on wages also pose a significant risk to the University
if a type of increase is disallowed under a certain type of grant/
funding arrangement. Any short-falls would be covered by state funds
that are scarce and shrinking.
The different categories of Postdoctoral Scholars, the incredible
diversity of discipline-specific research projects, the wide variety of
funding sources, the external restrictions on many of the fund sources,
and the fact that almost all Postdoctoral Scholars have a different
faculty advisor, create a level of complexity in the negotiations
between the UAW and the University that is unique to this bargaining
unit. This complexity has required a commitment by both sides to learn
about and understand the Postdoctoral Scholar relationship with the
University, the limitations placed upon the advisor/Principal
Investigator, the differences within the Postdoctoral Scholar unit, and
the differences between Postdoctoral Scholars and graduate students who
are already represented by the UAW. Both bargaining teams rose to this
challenge admirably, engaging in detailed discussions, analysis and
evaluation of the issues presented.
In spite of the enormous learning curve we all confronted, the
negotiations proceeded at a brisk and productive pace. The University
and the UAW met often, typically for two to three days at a time, and
at regular intervals of approximately twice a month or more. From the
early stages of negotiations, we engaged in open and often lengthy
discussion of the reasons behind the proposals being made by both
parties, and demonstrated flexibility in addressing each others'
concerns. The University and the UAW have successfully negotiated all
but six of what will be 35 separate articles. The remaining articles
are Wages, Benefits, Appointments, Layoff, No Strikes, and Duration.
Some of the issues required solutions unique in the bargaining
environment. One example pertains to the issue of ``time worked and
time off.'' In most labor agreements, these provisions are fairly
standard. However, Postdoctoral Scholars are not only professionals
exempt from Fair Labor Standards Act overtime requirements, but they
are also individuals who come to this University (and any other
University) with the objective of obtaining as much knowledge and
completing complicated research as soon as possible in order to move on
to other--permanent--employment. As a result, the parties had to move
away from ``normal'' hours of work rules. We worked collaboratively to
incorporate language that acknowledges the over-40 hours per week
research standard and also protects the Postdoctoral Scholar against
abuse.
In these negotiations, each party also had issues of critical
importance that required flexibility and a willingness to compromise.
One critical issue for the UAW was the matter of union
security. Under HEERA, represented employees who are not active union
members must pay a fair share fee to the union, and the University must
deduct that fee from the employee's paycheck. However, two categories
of Postdoctoral Scholars do not receive a paycheck from the University:
the Fellows and the Paid Directs. This presented significant challenges
in finding a workable solution that would address the UAW's interest in
receiving membership dues or fair share fees from those Postdoctoral
Scholars in the bargaining unit. The NIH does not consider Fellows (who
are paid a stipend) to be ``employees'' and has regulations concerning
the application of ``employee'' rules to Fellows. The automatic
deduction of fees from a Postdoctoral Scholar's stipend would not be
permissible under the NIH rules. To address the UAW's interest, the
University consulted with the NIH and developed a process by which the
UAW dues or fair share fee deductions could be made for the Fellows as
a mandatory service to them by the University. The University also
agreed to allow the UAW on-the-job access to the Paid Directs to
collect contributions.
A critical issue for the University, on the other hand,
has been the preservation of ``academic judgment'' as applied to
research and mentoring because it could affect the faculty's ability to
set academic goals and performance. Academic judgment pertains to the
various decisions made by faculty in their oversight and supervision of
research and scholarly activities. The UAW expressed its concern that
Postdoctoral Scholars should have some protections built into the
contract to ensure the fair exercise of academic judgment. After many
lengthy discussions on this topic, the parties agreed to establish the
processes that faculty should follow in the exercise of their academic
judgment, while agreeing that the judgment itself would remain
exclusive to the faculty.
This commitment by the University and the UAW to the bargaining
process and to sharing information and interests resulted in a large
number of tentative agreements over the course of eight months of
regular bargaining even though the parties could not simply import
language from other contracts and apply it to this group. Every article
of the contract required extensive consideration and evaluation to
ensure that the language crafted would accurately reflect the realities
of how Postdoctoral Scholars perform their work. Every article also
required extensive consultation with the faculty to ensure that any
contract language being considered did not unduly interfere with the
research enterprise.
Despite these complexities and challenges, we have made great
progress in these negotiations. After many months of regular meetings,
in October 2009, we mutually agreed to a hiatus in bargaining over the
holiday period, with a commitment to return to the table in January
2010. UC contacted the UAW and proposed to meet in January, but the UAW
was not available. In February, the parties changed a bargaining
session to an informal session, in an effort to explore settlement
opportunities. Formal bargaining meetings recently occurred on April
15, 16 and 23 and the negotiations are now focused on the six remaining
issues. The University will continue with the same strong commitment to
good faith bargaining and resolution of these matters as we work
through these final articles.
Again, while there are key issues to be resolved, the University
remains confident in each side's commitment to good faith bargaining
and desire to reach agreement. We will continue to work hard to reach a
mutually acceptable agreement for both the University and the
Postdoctoral Scholars.
Thank you to the Committee for the opportunity to join you here
today and discuss first contract negotiations with the UAW for the
Postdoctoral Scholar bargaining unit. I look forward to answering any
questions that you may have.
______
Chairman Miller of California. Thank you.
Congressman Burton.
STATEMENT OF HON. JOHN L. BURTON, (RET.), A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Burton. Thank you, Mr. Chairman.
My experience is a little bit different than what I heard
from the representative of the University. And I was very
instrumental in getting recognition for the teaching
assistants. I took President Dick Atkinson to have several
meetings in my office, too.
I let Dick, who is a very fair man, know how serious I was
and how serious the legislature was going to look at this. But
every time President Atkinson agreed to something, and I am
sorry that I do not remember the name, but the woman who was
the Human Resource person, every time Dick left the room and I
thought we had a deal, they moved two steps backwards. And it
happened after every meeting that we had with President
Atkinson and with the HR person present in the room. And
finally I had to call Dick and ask whether she worked for him
or he worked for her. And he said ``What do you mean.'' And I
told him. And I said I need you to show up one more time with a
Human Resources person there and tell her this is what you
agree to, this is what is going to be implemented and do not go
backwards. And that is how it happened. So it was not an easy
go.
The UAW was organized as an industrial union, which mean
janitors in the plant, the skilled workers. So you had many
crafts, many pay levels, many identifiable things as to who got
what. And I do not see that much difference in the University.
And in the time that they have been working on this, they
ought to be able to say these are the categories. This is a
manuscript reader, this is a person who discovered this
medicine, or discovered the precursor to something that
provided great monies to both the grant maker and to the
University.
The money does not come from the state general fund. The
money comes from outside things. And it would be a very easy
thing to figure it out and say this is the proposal. If you are
making so much money and it is an across the board percentage
increase; the low paid workers are getting only five percent of
what they get and the higher paid should get five percent of
that. So, you know, if they're asking for a flat fee, then
maybe the lower people get more and the upper people get less.
But I also mediated at the suggestion of Regent Blum and
AFSCME, with the University when they were dealing with the
problem with one of the AFSCME locals, and I had to shuttle
back and forth. And I will have to say this: I told AFSCME that
their first demands were somewhat sweet. But I went back to the
University and they came up, their negotiator came up with
such--it was insulting, and I said I will not bring this back
to AFSCME.
And when I walked in, they said ``What did they say?'' And
I said I will not tell you. And they said ``What did they
say?'' I said I will not tell you. And one of them said ``You
have to tell us.'' So I made them all stand up, cross their
heart, swear to God that they would not throw a fit when I told
them. I told them about what I considered to be an insult. And
one of them started to raise up and the other said ``No, we
promised we would not do this.''
So I point that out for so much bargaining in good faith.
Now, we have had this problem over the years with farm
workers and we were able to pass a bill for farm workers when
after a certain amount of negotiation it went to kind of an
oxymoron, but it was binding mediation. And that has worked. I
do not know if that is possible with the University or not. But
I think as Congresswoman Lee said ``When they come looking for
money before the Appropriations Committee, they probably should
have one hand out for the money and the other hand out for
possibly a proposed contract.'' Because you are not going to
get the University and not so much demand the bureaucracy to do
something. As I said time and time again, President Atkinson
said that is fine, the person who was HR started over like we
never had the meeting. And I think that that is what happens.
And I think that it would be important that the policymaker and
the ultimate person, and I have not met the new President,
would give direction that they ought to do something about
this. If you dealt with 29 out of 35, you got six to go, ought
to be a piece of cake.
But again, UAW has been an industrial union. They had
everything from the crafts to the janitors, skilled, unskilled
and they did not all get the same money, they did not all get
the same hourly wage, but they did get the same job protection.
And I do not think anybody in the UAW plant today could get
fired because they are going to have a kid. So, I mean, that is
kind of my point. But my experience is they were dragged in the
teaching assistants. It was not, ``boy, we are happy to do
this'' and if it was not for President Atkinson's leadership,
we would still be talking about that instead of this.
[The statement of Congressman Burton follows:]
Prepared Statement of Hon. John L. Burton, (Ret.), Former
Representative in Congress From the State of California
I am honored that the U.S. House of Representatives Education and
Labor Committee has asked me to testify in a hearing to understand
better the issues surrounding post-doctoral scholar bargaining at the
University of California (UC). I want to thank the Committee for coming
out to California to hold the hearing.
I have some experience with these issues that may shed further
light on this particular case study of first contract negotiations. In
1999-2000, while serving as President Pro Tempore of the California
State Senate, I was drawn into oversight responsibilities and mediation
efforts with respect to an earlier first contract being negotiated
between the UC and its graduate student employees.
Such negotiations were difficult for various reasons. For example:
1. It was difficult to coordinate within the different offices of
the UC during the contract negotiation. For instance, the Office of the
UC President and the UC Labor Relations staff members were not in
agreement over negotiation stance.
2. The contract that was negotiated between 1999-2000 was the first
for graduate students in the entire UC system. There were concerns over
the contract's implication for graduate education, such as union work
rules overruling academic judgment. Such concerns were shown not to be
valid on hindsight.
I am happy to answer any questions that the Committee may have.
Thank you.
______
Chairman Miller of California. Thank you.
Mr. Kampas.
STATEMENT OF BRADLEY W. KAMPAS, JACKSON LEWIS, LLP
Mr. Kampas. Good morning, Mr. Chairman, members of the
Committee.
Thank you for the opportunity to speak here today. My name
is Brad Kampas. I have been actively involved in collective
bargaining on behalf of employers for over 25 years, including
many first contract settings.
My testimony today will concern the process of collective
bargaining and why first contract negotiations are often times
consuming.
First contracts are of great importance. They are of great
importance to employees who have never been represented before.
They are of great importance to the union which has adopted the
responsibility to negotiate on behalf of these employees. And
they are of great importance to the employers, shareholders,
customers, students, taxpayers and other stakeholders who are
impacted by that contract.
I would like to put the length of bargaining in context
with our federal and state labor laws.
Under federal law, in 1935 Congress passed the National
Labor Relations Act, the first federal law regulating
collective bargaining on a broad basis. It obligated the
parties to bargain in good faith demanding that the parties
approach the negotiations with a sincere purpose to find a
basis for agreement. The law recognized its role as to
facilitate private agreement, not dictate results. Notably, the
law does not require the parties to actually reach agreement,
or does it impose specific terms of employment.
The United States Supreme Court has acknowledged in its
seminal case ruling on the constitutionality of the National
Labor Relations Act that the free opportunity for negotiation
is likely to promote industrial peace over other methods.
So why do contracts take so long in the first setting? They
are often difficult and time consuming.
They seek multi-year contracts. The average contract is
three years. The employer that adopts a collective bargaining
agreement is bound by the cost structure while sacrificing
flexibility. It commits to future expenses when there's no
guarantee regarding revenue, funding or competitiveness in the
marketplace.
For example, the University is being sought to commit to
wage increases that are not yet funded by federal grants. And
long-term care wide do a lot of collective bargaining, the
parties relied on the state statutory system to negotiate
significant wage increases for nursing home employees, only to
find the State of California this year imposed a freeze on
Medi-Cal rate increases that were going to pay for those, as
well as federal cuts in Medicare.
The solution. Have the Federal Government give everyone
more money. Certainly the State of California is not in a
position to do so.
The process is, of necessity, prolonged. Bargaining starts
with information requests by unions. They have a right to
information regarding those who they seek to represent. They
impose significant information requests that can take weeks to
comply with.
Sometimes employers also make information requests. Unions
seek to have employees inserted in multi-employer pension
plans. Many of these are grossly under funded. A 2009 report by
an independent California actuary, the Seigel Company, found
that 39 percent of multi-employer plans are not even funded to
the 80 percent level. Congress was forced to intervene with the
Pension Protection Act of 2006. This law imposed additional
employer contributions that were never even contemplated in the
bargaining process.
Health insurance is another complex area. Some unions
bargain every single time of the health insurance plan and
their contracts may span dozens of pages on health insurance
alone. The parties are required to negotiate over future
increases in health insurance which no one realistically knows
what percentage increases they will be.
The first contract also is a very significant contract. It
will be in place for decades as part of the relationship. As
any experienced labor practitioner knows, it is very difficult
to modify even simple language in subsequent contract
negotiations as parties become fixed.
The Labor Board has recognized that collective bargaining
requires a great investment of time. It uses the concept of
impasse, the point at which the parties have exhausted the
prospects of concluding an agreement would be fruitless. There
are remedies under the law should the employer not bargain in
good faith.
Some of the unions and labor supporters have suggested
binding interest arbitration if the parties cannot agree.
Chairman Miller referred to the Employee Free Choice Act which
is currently being debated in Congress, which would impose
mandatory interest arbitration within 20 days after
negotiations. That would fundamentally alter our American
system.
Arbitrators are frequently unprepared to deal with
different environments where they have a hearing over a couple
of days where the parties have spent weeks and weeks discussing
the issues that are involved. Opponents of compulsory
arbitration are concerned about the arbitrator's ability to
evaluate and determine appropriate wage and benefit increases.
If the arbitrator guesses it wrong, the employee suffers as
many of them are laid off.
Arbitrators are required to deal with minutia. Unions
frequently bargain every single work rule. Some defer to
management under management rights. There are issues of
constitutionality in a government imposed contracts through
interest arbitration.
The parties need to bargain in good faith and compromise.
Very frequently, unions fail to compromise because they have
over estimated their bargaining power. Interest arbitration is
viewed as a way to get that which they could not otherwise get
at the bargaining table. Other times, unions have problems with
telling employees no after they've made promise to them in
bargaining in the election process.
I conclude my remarks. Thank you.
[The statement of Mr. Kampas follows:]
Prepared Statement of Bradley W. Kampas,
Jackson Lewis, LLP
Mr. Chairman, Members of the House Committee on Education and
Labor, thank you for the opportunity to speak to you today. My name is
Bradley W. Kampas. I have actively participated in collective
bargaining and labor contract administration for over 25 years. My
experience includes negotiations on behalf of educational institutions,
and I have negotiated in many first contract settings. While I am
partner in the San Francisco office of Jackson Lewis LLP, my appearance
and testimony today is on my own behalf and represent my own views, not
those of the partnership.
I understand the sub-committee is reviewing the negotiations of the
first collective bargaining agreement for post-doctoral staff at the
University of California. My testimony today will concern the process
of collective bargaining, especially as it relates to negotiations for
a first contract.
A ``first contract'' is of great importance. It is vitally
important to the employees who have never been represented before. It
has great significance to the union which has adopted the
responsibility to negotiate for those employees. Of course, it is also
crucial to the employer. There are other interested parties in this
process as well: shareholders, customers, students, taxpayers and more,
depending on whether the employer is in the public or private sector.
Collective bargaining is both a practical and a legal process. It
is a method of attempting to reach agreement between competing
interests. My goal in the next few minutes is to explain the genius of
our system of collective bargaining, and to discuss why first contract
negotiations are often time-consuming.
In 1935, Congress passed the National Labor Relations Act
(``NLRA'') (a.k.a. the Wagner Act) and created the National Labor
Relations Board (``NLRB'') to enforce the NLRA. Where a union was
recognized as the bargaining representative of employees, the Wagner
Act obliged the parties to engage in good-faith bargaining, demanding
that the parties approach negotiations with ``a sincere purpose to find
the basis of agreement.'' The purpose of the law was to provide a
mechanism for labor and management to reach agreement. From the
beginning, the law recognized that its role was to facilitate private
agreement but not to dictate results.
Notably, the law did not require the parties to actually reach
agreement. Nor did it impose terms of employment. The Supreme Court, in
finding the NLRA constitutional in its seminal NLRB v. Jones & Laughlin
Steel Corp., 301 U.S. 1, 45 (1937), decision acknowledged this when it
reasoned ``that free opportunity for negotiation * * * is likely to
promote industrial peace and may bring about the adjustment and
agreements which the [NLRA] itself does not attempt to compel.''
In 1947, Congress amended the NLRA with its passage of the Taft-
Hartley Act. The amended version included Section 8(d) which further
defined the nature and extent of the parties' obligation to bargain.
The Congressional record on the passage of Taft-Hartley, which the
Supreme Court later cited in NLRB v. American National Insurance, 343
U.S. 395, 403 (1952), indicated that Section 8(d) was included out of
Congress' concern that the NLRB was overreaching its purpose ``in the
guise of determining whether or not employers had bargained in good
faith, in setting itself up as the judge of what concessions an
employer must make and of the proposals and counterproposals that he
may or may not make. * * *'' Later Supreme Court holdings have echoed
that ``while the Board does have power under the National Labor
Relations Act to require employers and employees to negotiate, it is
without power to compel a company or a union to agree to any
substantive contractual provision of a collective-bargaining
agreement.'' H.K. Porter v. NLRB, 397 U.S. 99, 101 (1970).
Section 8(d) provides that when a union is certified as the
exclusive bargaining representative for a unit of employees, it is the
``mutual obligation of the employer and the representative of the
employees to meet at reasonable times and confer in good faith with
respect to wages, hours, and other terms and conditions of
employment.'' The NLRA does not set a time limit for reaching an
agreement. It does not even provide that the two parties must reach an
agreement at all because the ``obligation [to bargain] does not compel
either party to agree to a proposal or require the making of a
concession.'' In interpreting the obligation to bargain in good faith,
the Supreme Court has concluded that the NLRA ``does not compel any
agreement whatsoever between employees and employers.'' Further, the
Court stated that ``the Board may not, either directly or indirectly,
compel concessions or otherwise sit in judgment upon the substantive
terms of collective bargaining agreements.''
The Supreme Court has consistently emphasized that the NLRB's role
is limited to determining whether the parties are bargaining in good
faith and does not extend to evaluating the merits of each party's
substantive proposals. The Court's decision in H.K. Porter v. NLRB,
supra, at 108, is instructive:
Allowing the Board to compel agreement when the parties themselves
are unable to agree would violate the fundamental premise on which the
Act is based--private bargaining under governmental supervision of the
procedure alone, without any official compulsion over the actual terms
of the contract.
The NLRB continues to follow this approach. As it stated in
Oklahoma Fixtures, 331 NLRB 1116, 1117 (2000), the NLRB examines
proposals ``only for the purpose of evaluating whether they were
clearly designed to frustrate agreement.'' Where the parties are unable
to reach an agreement through good-faith bargaining, ``it was never
intended that the Government would in such cases step in, become a
party to the negotiations and impose its own views of a desirable
settlement.'' In short, the object of this Act is not to allow
governmental regulation of the terms and conditions of employment, but
rather to ensure that employers and their employees could work together
to establish mutually satisfactory conditions. See H.K. Porter at 103.
Negotiation of the first collective bargaining agreement is often
difficult and time-consuming. There are unavoidable reasons why these
first sets of negotiations are lengthy. A collective bargaining
agreement is a multi-year contract binding both the employer and its
employees. A labor contract typically includes a wide array of
provisions covering every aspect of working conditions.
When an employer adopts a collective bargaining agreement, it is
bound to a cost structure while sacrificing flexibility. It commits to
future expenses, but it receives no guarantees regarding the
competitive market or its ability to remain profitable. The collective
bargaining agreement is a document which will likely have profound
implications for the future of the company. It is not an agreement that
any prudent employer would entertain lightly.
The process is, of necessity, prolonged. It typically begins with
extensive requests for information by both parties, in particular by
the union, to inform their strategy for the negotiations. Unions are
entitled to certain information about the employees whom they
represent, namely any information about their wages, hours, and other
terms and conditions of employment. Simply put, in order to bargain
effectively regarding terms and conditions of employment, the union
must know what these terms and conditions are. Unions can and do
request payroll lists for prior years, scheduling information, staffing
plans, health and retirement benefits information, and so forth.
The employer often makes similar requests from the unions regarding
their finances. These requests continue throughout the bargaining
process. The union may propose moving employees into their pension
plan. In order to evaluate the union's proposal, the employer will
request a copy of that plan to review its requirements and solvency.
This is particularly important given the status of many multi-employer
pension plans which are underfunded and, as such, have massive
withdrawal liability when and if an employer seeks to withdraw from the
plan. The company may propose a no-fault attendance policy. The union
will request and review the attendance records of employees over the
past three years to attempt to evaluate the effect such a policy will
have on its membership.
Once parties have the necessary information and have gotten to know
each other, they must turn to the task of negotiating every word of the
contract. This is where the real investment of time comes in. There are
a myriad of issues which must be decided even before the parties ever
discuss wages. Health and retirement benefits alone can consume months
of bargaining.
Congress is well aware of the crisis in our nation's pension and
retirement plans. An increasing number of multi-employer pension plans
are underfunded. A 2009 report by independent California actuarial and
consulting firm, The Segal Co., Ltd., found that only 39 percent of its
400 multi-employer plan clients were even funded at 80 percent or
higher. The Pension Protection Act was Congress' effort to address the
growing problem of these underfunded plans. To a large degree, our
pension problem was caused by unions and employers adopting retirement
arrangements without adequate foresight. Today, employers are acutely
aware of the risks to the company and to employees. This has caused
negotiations to become increasingly detailed. Unions are continuing to
propose that employers agree to enter their employees in these plans
because they desperately need funding. While entry into them may have
short-term financial benefits, employers must carefully consider the
long-term impact of this decision. This certainly causes significant
delay and study.
Health insurance is another area in which employers--and union-
administered funds--must be increasingly careful in considering their
liabilities. It is not yet at all clear how recent legislation will
impact this area. With exploding health insurance premiums, employers
and unions must carefully consider how best control costs or expenses
two or three years down the road.
Apart from the complexity of the issues to be negotiated, there are
other factors that explain the length of time necessary to reach a
contract. In the weeks leading into a representation election, unions
frequently make promises to employees about what they will get should
the union win the election. They may point to contracts that they have
negotiated at other companies (perhaps not indicating those companies
have deeper pockets or a better market share). Even without direct
comparisons, the union offers hope to many employees who feel that they
are not being treated fairly by their employer. After the election is
over and the employees have selected the union as their collective
bargaining representative, the employees, like any other group of
voters, expect their elected representative to deliver. If an employer
is already paying its employees a competitive market wage, it may be
difficult--if not financially impossible--to increase wages or offer
benefits at a less expensive level. Further, an employer may be
committed to a particular work rule or structure which employees are
seeking to change. Or the employer may be committed to changing an
existing practice which employees want to keep.
Good faith bargaining does not require either party to accept any
specific proposal offered by the other. To require otherwise would
encourage unrealistic proposals and lack of movement to the point of
insisting that proposals are accepted. Unions often try to bargain the
same or very similar contracts with different employers. When employers
do not consent to terms in these pattern contracts, it is not
necessarily a delaying tactic. Why should one employer simply agree to
the terms and conditions of employment set by another employer?
Similarly, if employers pointed to terms in employer-friendly
contracts, it would not be ``hard bargaining'' if the union did not
assent to all those terms.
First contracts form the framework for decades of future contracts.
This adds considerable importance to the apparent minutia involved in
drafting each article of a contract. Any experienced labor practitioner
can attest to the difficulty in modifying existing language in second,
third, or fourth contracts. In subsequent negotiations, parties focus
on specific clauses which they would like modified or economic issues.
They do not rewrite the entire contract. Entire articles from first
contract will remain unchanged forever. Therefore, the parties must
exercise great care in drafting language that will be acceptable not
only for the term of the first contract, but for the length of the
collective bargaining relationship. This, of course, adds considerable
time to the process, but parties should not agree to terms in first
contracts lightly--they must and do consider the lasting impact of the
initial terms and conditions of employment created by the collectively
bargained contract.
The National Labor Relations Board acknowledges that good faith
bargaining requires a great investment of time. Under Board law, the
parties are expected to negotiate until they reach agreement or reach
impasse. ``Impasse'' is a term of art in labor law. The Supreme Court
and the NLRB have defined impasse as ``that point at which the parties
have exhausted the prospects of concluding an agreement and further
discussion would be fruitless.'' Laborers Health & Welfare Trust Fund
v. Advanced Lightweight Concrete, 484 U.S. 539, 543 (1988); Badlands
Golf Course, 350 NLRB 264, 273 (2007). There is no bright-line rule to
determine whether bargaining impasse exists, but impasse is not reached
easily. As an example, in Litton Microwave Cooking Products, 300 NLRB
324 (1990), the parties did not reach impasse until they had held
forty-seven negotiation sessions for their initial contract. At that
point, they still disagreed on fifty different issues. The NLRB will
consider the bargaining history, the good faith of the parties in
negotiations, the lengths of negotiations, the importance of the issues
still to be determined, and the contemporaneous understanding of the
parties as to the state of negotiations (i.e., do both parties believe
that an impasse exists).
The number of bargaining sessions and the amount of time that the
parties have engaged in bargaining is an important factor, but there is
not dispositive amount of time after which an impasse is declared.
However, the Board recognizes that it should be even more difficult and
a longer process to reach impasse during bargaining for an initial
contract than successor contracts. For instance, in MGM Grand Hotel,
Inc., 329 NLRB 464, 466 (1999), the Board stated ``where the parties
are negotiating an initial contract, the Board recognizes the attendant
problems of establishing initial procedures, rights, wage scales, and
benefits in determining whether a reasonable time has elapsed.''
Frustrated by their inability to reach first contract settlements
quickly (or at all), many unions and labor supporters have suggested
binding interest arbitration if the two parties cannot reach agreement
within a certain time line. For instance, the proposed Employee Free
Choice would require the parties to enter binding interest arbitration
120 days after negotiations began if settlement had not been reached.
While the card-check provision of EFCA received most of the attention
from the media and the public, compulsory interest arbitration would
have an even greater impact on the business community, employees, and
labor relations in general than the practical end of the secret ballot
election.
Notwithstanding the unrealistic time pressures (and, in most
circumstances, practical impossibility) of negotiating a first contract
in four months, compulsory arbitration would completely alter the
fundamental concepts of American labor law. It was never the intent of
the drafters of the NLRA that the government (or government appointed
arbitrators) would play any role in the delicate collective bargaining
process. It was never the intent of the drafters that an arbitrator
would set terms of conditions of employment to affect the workplace for
years.
Supporters of compulsory arbitration point to its place in public
sector collective bargaining. In the public sector, particularly in
occupations relating to public safety, e.g., police, fire, etc.,
compulsory interest arbitration is frequently used because unions do
not typically have the right to strike. For obvious reasons, it would
be unwise to give a police or fire union the full range of economic
weapons--namely the right to strike--during contract negotiations. Fear
of a third party imposing terms and conditions of employment on an
employer was believed to compensate for the inability to strike.
In addition to this practical reason, there are two important
reasons why interest arbitration in these industries is, at least,
understandable. First, a municipal fire department is a monopoly. It
would not be competitively disadvantaged (the town may be
disadvantaged, but not the actual business) if an arbitrator imposed
increases to wage and benefits that would make it difficult to compete
with other fire departments. Second, if an arbitrator imposed
increases, the employer has full-proof method of increasing revenue; it
can raise taxes to pay for the increased labor costs borne by its
citizens.
This is not to say that interest arbitration for these jobs is
always effective. As most of us are aware, the city of Vallejo became
insolvent in 2008. Skyrocketing wages and benefits of its municipal
workers were, in part, to blame. Salaries and benefits for public
safety workers accounted for 75 percent of the general fund budget. In
addition, current and future pension outlays were literally bankrupting
the city. The City Council sought concessions for the union, which they
did not receive. Ultimately, the City filed for bankruptcy in 2009 and
unions fought the modification of its collective bargaining agreements.
Many opponents of compulsory arbitration raise concerns about the
arbitrator's ability (or inability) to set wages and benefits.
Obviously, if an arbitrator does not understand a company's needs or
the competitive environment in which it operates, he could increase
wages and benefits to the point where the company is placed at a
competitive disadvantage. Ultimately, this is bad for employees who may
find themselves unemployed if the arbitrator fails to assess the impact
of his award. Interest arbitrators tend to opt for ``standard'' wages
and benefits levels. Such compensation standards may be highly
problematic for some employers, especially given the state of the
economy.
While an arbitrator creating wage and benefit scales that are
detrimental to a company's success is the most dangerous outcome of
interest arbitration, there are other major issues. For instance, work
rules are a crucial feature of any collective bargaining agreement. An
arbitrator would have to decide how overtime will be assigned: by
seniority, by some kind of rotation, by a combination of the two. An
arbitrator would have to decide if scheduling would be a management
right to be changed at an employer's sole discretion, or will it be
something that is negotiated every time an employer wants to make a
significant change. Can schedule changes be permanent? An arbitrator
would have to decide if promotions would go to the most qualified
candidate or to the most senior employee or to the most senior employee
who meets certain qualifications. After deciding the promotion
criteria, the arbitrator would have to decide if promotion decisions
would be subject to the grievance and arbitration provisions under the
contract.
These examples are all major parts of the collective bargaining
process. Some contracts permit sole management discretion in some
areas, but not others. There is gave and take from both sides on these
issues. It is extremely problematic that an arbitrator, with little
knowledge about an employer's operations, will make decisions that will
affect the day-to-day operations of a company. There are thousands of
different industries. An arbitrator cannot possibly understand in a
couple of days the needs of an industry. The problem will be then that
the contracts imposed by even the best arbitrators may bare little
resemblance to that which is necessary for a company to operate and for
employees to work in a comfortable atmosphere.
Bargaining for first contracts is always a different and arduous
process. For years, unions have expressed frustration with employer's
``tactics'' in this process. In my experience, most unions fail to
conclude first contracts with employers because they do not properly
assess their bargaining power. Employers must bargain and good faith
and compromise with unions. Likewise, unions must know when to
compromise and say yes. Unions that fail to reach first contracts tend
to value their own national or regional interests as opposed to those
of the members for whom they are negotiating. They fail to compromise
because they have overestimated their bargaining power. Thus, unions
want interest arbitration because they feel an arbitrator will give
them that which they were unable to win at the bargaining table.
This concludes my remarks, and I request that my full remarks be
submitted into the record. Thank you and I am happy to answer any
questions you may have.
______
Chairman Miller of California. Thank you.
Dr. Ferguson.
STATEMENT OF DR. JOHN-PAUL FERGUSON, ASSISTANT PROFESSOR,
STANFORD UNIVERSITY GRADUATE SCHOOL OF BUSINESS
Mr. Ferguson. Chairman Miller, members of the Committee,
thank you for inviting me across the Bay this morning to give
testimony on first contract negotiations.
My name is John-Paul Ferguson. I hold a PhD from the MIT
Sloan School of Management where my research focused on the
dynamics of trade union organizing. I am currently an Assistant
Professor at Stanford University's Graduate School of Business.
Others in today's lineup have more experience with the
specific case at hand. I will limit my remarks to a general
point about first contract negotiations.
I became aware of the current bargaining impasse between
the University of California and its postdoctoral union when I
was informed that someone affiliated with the University
administration had quoted my research which showed that
extended delays in contract bargaining were widespread in this
country, as evidence that nothing unusual was going on in this
case. The research in question is an article entitled ``The
Eyes of the Needles: A Sequential Model of Union Organizing
Drives, 1990-2004'' that appeared in the Industrial and Labor
Relations Review in 2008. I've entered a copy as evidence.
In that study, I tracked more than 22,000 organizing drives
through as many stages of the process for which we have data,
from filing an election petition with the NLRB to holding, and
perhaps winning that election, to negotiating a first contract
with the employer. I found that in the cases where the union
won the representation election, only 38 percent received a
contract with the employer within the one year contract bar.
So, point of fact, long delays in reaching contracts and
high rates of not reaching contracts are, indeed, not unusual.
Nowhere in that study do I suggest that because these delays
are common, there is nothing wrong with this state of affairs.
Quite the contrary. The figures in my study should be cause for
alarm, not for complacency. The point of my study is that you
can model contemporary union organizing like a screening
process where only those who made it through an earlier screen
have a chance to clear the present screen.
There are four main screens in an organizing drive:
Getting enough signatures during the card drive to file an
election petition with the NRLB;
Actually holding that election;
Winning the election, and;
Negotiating a first contract.
To quote from the study's conclusion. ``While the NLRB
election procedure can be modeled as a screening process, it
was not designed to function this way. As designed, there were
two screens: The signature requirement and the election. All of
the cases observed here by definition met the signature
requirement. The period before the election was not to supposed
to last for months or years, nor were one of every three
organizing drives to be abandoned before an election was
held.'' And directly pursuant to this case, ``There were
certainly not supposed to be attrition rates surpassing 40
percent in the interval between recognition and contract
agreement.''
Hopefully this is enough to make clear my own opinion: Such
delays are not unusual and that this is a bad thing.
I should say why I think that the low rate of speedy first
contract agreement is evidence of a problem. I stress that all
I, or anyone can give you is evidence. The simple fact is that
our national data on such negotiations are not very good. I
have argued elsewhere that anyone who is seriously interested
in this issue should support mandating the relevant agencies to
collect better data and giving them the resources to do so.
That so many people use the absence of labor market data to
imply the absence of a labor market problem, however, shows how
serious their interest really is.
There are two common arguments why negotiating delays might
not be a problem. The first is that the issues over which the
parties are bargaining are simply more complicated these days.
The second is that increased turnover of negotiators,
particularly on the management side, combined with lower rates
of unionization means that parties are often well intentioned
but less experienced at bargaining.
There are inherent problems with both of these arguments
which I would be happy to address during questioning. For now,
I will just refer back to my own research which has shown that
longer bargaining delays and lower agreement rates have
happened in concurrence with more petition withdrawals, more
unfair labor practice charges against employers and increased
use of professional union avoidance consultants by employers.
If bargaining delays were increasing in isolation, it would
be easier to credit well meaning but unexperienced negotiators
who are dealing with hard problems. Given these other trends in
the data, though, I think that the burden of proof ought to lie
on the employer to demonstrate that good faith bargain is
taking place. Thus, when I see negotiations dragging on, as
they have here, I tend to think that the most plausible
explanation is that delay is part of a broader effort by the
employer to depress, demoralize or decertify its newly
organized employees, an effort in effect to nullify the
employees' stated preference and to get rid of the union
through bad faith bargaining.
Thank you.
[The statement of Dr. Ferguson follows:]
Prepared Statement of John-Paul Ferguson, Assistant Professor,
Stanford University Graduate School of Business
Chairman Miller, members of the Committee, thank you for inviting
me to give testimony on first-contract negotiations. My name is John-
Paul Ferguson. I hold a PhD from MIT's Sloan School of Management,
where my research focused on the dynamics of trade-union organizing. I
am currently an Assistant Professor at Stanford University's Graduate
School of Business.
Others in today's lineup have more experience with the specific
case at hand. I will limit my remarks to a general point about first-
contract negotiations.
I became aware of the current bargaining impasse between the
University of California and its post-doctoral union when I was
informed that someone affiliated with the University administration had
quoted my research, which showed that extended delays in contract
bargaining were widespread in this country, as evidence that ``nothing
unusual'' was going on in this case.
The research in question is an article titled ``The Eyes of the
Needles: A Sequential Model of Union Organizing Drives, 1999--2004,''
that appeared in the Industrial and Labor Relations Review in 2008. I
have entered a copy as evidence. In that study, I tracked more than
22,000 organizing drives through as many stages of the process for
which we have data: from filing an election petition with the NLRB, to
holding and perhaps winning that election, to negotiating a first
contract with the employer. I found that, in the cases where the union
won the representation election, only38percent reached a contract with
the employer within the one-year contract bar. So--point of fact--long
delays in reaching contracts, and high rates of not reaching contracts,
are indeed not unusual.
Nowhere in that study do I suggest that, because these delays are
common, there is nothing wrong with this state of affairs. Quite the
contrary: the figures in my study should be cause for alarm, not for
complacency.
The point of my study is that you can model contemporary union
organizing like a screening process, where only those who made it
through an earlier screen have a chance to clear the present screen.
There are four main screens in an organizing drive: getting enough
signatures during the card drive to file an election petition with the
NLRB; actually holding that election; winning the election; and
negotiating a first contract. To quote from the study's conclusion:
While the NLRB election procedure can be modeled as a screening
process, it was not designed to function this way. As designed, there
were two screens: the signature requirement and the election. All of
the cases observed here by definition met the signature requirement.
The period before the election was not supposed to last for months or
years. Nor were one of every three organizing drives expected to be
abandoned before an election was held. * * * There certainly were not
supposed to be attrition rates surpassing 40% in the interval between
recognition and contract agreement (p. 16, emphasis added).
Hopefully this is enough to make clear my own opinion: such delays
are not unusual and that this is a bad thing.
I should say why I think that the low rate of speedy first-contract
agreement is evidence of a problem. I stress that all that I or anyone
can give you is evidence. The simple fact is that our national data on
such negotiations are not very good. I have argued elsewhere that
anyone who is seriously interested in this issue should support
mandating the relevant agencies to collect better data and giving them
the resources to do so. That so many people use the absence of labor-
market data to imply the absence of a labor-market problem however
shows how serious their interest really is.
There are two common arguments why negotiating delays might not be
a problem. The first is that the issues over which the parties are
bargaining are simply more complicated these days. The second is that
increased turnover of negotiators, particularly on the management side,
combined with lower rates of unionization means that the parties are
well intentioned but less experienced at bargaining. There are inherent
problems with both of these arguments, which I would be happy to
address during questioning. For now I will just refer back to my own
research, which has shown that longer bargaining delays and lower
agreement rates have happened in concurrence with more petition
withdrawals, more unfair labor practice charges against employers and
increased use of professional union-avoidance consultants by employers.
If bargaining delays were increasing in isolation, it would be easier
to credit well-meaning but inexperienced negotiatiors who are dealing
with hard problems. Given these other trends within the data, though, I
think that the burden of proof ought to lie on the employer to
demonstrate that good-faith bargaining is taking place. Thus when I see
negotiations dragging on as they have here, I tend to think that the
most plausible explanation is that delay is part of a broader effort by
the employer to depress, demoralize or decertify its newly organized
employees--an effort in effect to nullify the employees' stated
preference and to get rid of the union through bad-faith bargaining.
Thank you.
______
Chairman Miller of California. Well that's a lot to think
about. Usually you call a time out and go to the bench and
figure out what to do.
We are going to start questioning now from members of
Congress. And, John, I know you have some time constraints. So
I just would say to my colleagues if you want to ask a question
of Congressman Burton, I would have you do it. Why do not just
do that?
And I guess I would ask a little bit in conjuncture with
Mr. Miller, and that is in first contracts it seems to me that
one of the inherent problems you have is that in most instances
it would appear that the information is with one party. Because
those who are seeking the union do not necessarily have access
to all the information because there may not have been a
reason, or they simply couldn't get access because they had no
standing to get that information. And then the question is of
whether or not that information is being used in good faith to
reach an agreement or not. And I don't know if you want to
comment and Congressman Burton from his experience in this
situation.
Mr. Miller. Okay. Well, there is certainly a lot of
information we have requested from the University starting in
December of 2008 that we have yet to receive.
The most troubling component of that, though, is that in
the middle of April 2010 the University used their failure to
provide that information, especially about two job titles, as a
reason that they could not provide us with a reasonable
proposal or any proposal on salary increases in a second or
third year of the contract.
Chairman Miller of California. John?
Mr. Burton. I mean, the information is really important.
And I think going back to Marvin Miller who was the research
guy for the steel workers and then hired by the baseball
players, and when he started doing research and he got a lot of
money to be doing this with, you know salaries went from
$30,000 minimum up to God knows what because he had the numbers
and the information which they showed.
But one of the things that I want to get to, not to answer
this, Mr. Chairman, but the fact that management is trying to
decertify the union, if that is in fact the case, is proof to
me that they are not bargaining in good faith. I mean, why
would you want the other; if you really want a contract, you do
not try to decertify unless you want to decertify before
somebody enters into a contract. As I say, not that it is
stated, but I will pass that.
Chairman Miller of California. Dr. Ferguson, both you and
Mr. Miller referred to that in your testimony that there may be
an active effort to decertify or a guerrilla effort to
decertify within the University administration. What do we know
about that?
Mr. Ferguson. I will defer to Mr. Miller on the specifics
of this particular case as far as what's going on with the
University.
Chairman Miller of California. Mr. Miller?
Mr. Miller. We know that, as I mentioned in my testimony,
on at least three University campuses, San Francisco, Davis and
at Riverside, University administrators have forwarded a
website advocating decertification of the UAW to postdocs, and
encouraged them to look at it.
We also know that the University's chief negotiator
provided a list of all the postdocs to an individual who
requested the list so that he could try to decertify the union.
We know those things.
Chairman Miller of California. Thank you.
Ms. Woolsey.
Ms. Woolsey. Thank you.
John?
Mr. Burton. Yes?
Ms. Woolsey. I was going to call you the honorable, I was
trying to come up with the title.
Mr. Burton. 225-5161.
Ms. Woolsey. That is our number.
Chairman Miller of California. Nevermind.
Ms. Woolsey. I see his seat in the Congress, and I do know
that.
In listening to----
Chairman Miller of California. The phone number goes with
the office, not with the member.
Ms. Woolsey. Oh God.
In listening to Mr. Kampas, I started thinking, you know it
sounds like from where he was coming that writing a first
contract is like giving birth. But, you know, each birth
although it is unique has a whole bunch of similarities. I
mean, so it's not look oh gee, we are going to have a first
contract. We have to go back and start all over.
So, why and where do you think there is enough overlap? I
mean, why are we not using the experience of the TAs and the
grad students? I mean, there has to be enough overlap of
successes and in common and it works because they have the same
broad--go ahead.
Mr. Burton. I mean, I would think so. But again, just
sitting here and only because of my past experience, I mean I
have a theory about the HR people at University. But there
could be some validity that it is a little bit different, but
also it could be an excuse. And if you take the totality of
what has been going on, it seems like a stall. And I do not
know what the six issues are, that it was like if the 29 are
like Washington's birthday off and the six issues are bread and
butter.
Chairman Miller of California. Mr. Kampas, could you move
the microphone over to Mr. Burton?
Mr. Burton. I am sorry. If the six issues are bread and
butter issues, are the main issues and we could throw out the
other 29, then it is a problem. But I mean I could see there is
a point because it is different. But the University in my mind
would have to know how many people read manuscripts, how many
do research on this drug or that drug, how many people are
doing this and that. And that is a category just like with
AFSCME they said that they know how many are janitors, how many
are clerical, how many are doing this. I mean, you know the
information has got to be there. It may be a little bit more
difficult than the other, but they sure as hell have to know
who is who and what is what because they are sending them
paychecks.
Chairman Miller of California. Ms. Lee, you want to ask Mr.
Burton a question?
Ms. Lee. Yes. I would like to ask John this question.
Certainly you have much institutional memory. I actually served
with John in the early '90s on the Public Safety Committee in
the Assembly when he was Chair and then moved on into the State
Senate where he became President Pro Tem. And even before the
early '90s when I was on his Committee in the Assembly, he came
to that position with a lot of memory about a lot of stuff.
And so you've seen a lot, John. And I just want to ask this
question, big picture. If in fact we see a decertification
process moving forward, and I know for a fact that many efforts
to contract out services and I think members of the Committee
know that, this panel knows that, contract out services at the
University; what does this mean in terms of the historical
memory that you have and where the University could be going in
the future?
Mr. Burton. Well, I do not want to be bad for morale at the
University because these people chose to do something. And if
you are stalling to make everybody unhappy what do you need
this meeting for. But I can go back, and the Chairman's father
was chairing the Committee in the Senate when somebody had for
the first time a bill to organize people in the University and
have the dues check-off. And I remember the lobbyist for the
University system at that time, the great Jay Michael, stood up
and it was right after the free speech movement, and said these
funds will go to pay for the anarchy that's going on at the
Berkeley campus now, which some people on the Committee bought,
some did not. And I never talked to Jay Michael after that
because, I mean, it was just so bogus. But I do not know if it
was a mind-set of the University then, although I think it was
still Clark Kerr who, despite all, was a fairly decent guy. But
it was the lobbyist.
But the University now finally, I mean they understand the
fact. They know they have to negotiate with various unions with
the professors, with the academic senate, with everybody. But
it just seems to me when they are looking at teaching
assistants, which are like you know, who are they? Well, the
ones that teach the course while the professors are doing
something else. And now the postdocs, it seems as if they do
not want to do it. I mean, it may be difficult. And I do not
know this, and do not say after I go. But here is the problem
we have: How do we figure out the manuscript readers and the
ones that are researchers, how to do that? I think it is
doable. But the other thing is I would hope one of the 29
things agreed to was that if somebody is pregnant and has a
child, you know it is not what the Speaker called a prior
existing situation where she had to fight to get her time back,
she had to fight to take advantage I guess of the state law on
maternity leave. But, I mean, those are again basic things but
it shows a mind-set either in that department or the University
bureaucracy that these people do not merit common decency.
I mean, and I am just sitting here, I have no idea. But
again, I think that some of these questions are great questions
to ask when they are coming up to Congress and saying we need
another $130 million to research this. Well, who is going to
research it? How many postdocs and who is getting the benefit
of this?
Just a personal thing. I know a doctor who researched a
drug that is the precursor of more TV ads than you ever want to
see without naming the drug. And I told him, I said ``Man, you
must be rich.'' And he said ``No, I ain't rich. The University
got the money.'' Somebody got rich because, I mean you cannot
watch your football game or see Mike Ditka and Bob Dole, or
anybody else on the thing.
So anyway, I mean that is my comment. Thank you for the
time of letting me come, Mr. Chairman.
Chairman Miller of California. Thank you.
Mr. Burton. And Barbara and----
Chairman Miller of California. I appreciate you being here.
Ms. Lee [continuing]. Juneteenth.
Ms. Woolsey. For sure.
Chairman Miller of California. Dr. Tyler, the funding for
your various postdocs was from what sources? Can you tell us
that or do you want to submit it for the Committee?
Ms. Tyler. Yes. My positions have been funded, as most
postdoc positions are, through federal grants.
For example, National Science Foundation and Department of
Energy.
Chairman Miller of California. That is the source for you
mentioned a number of different positions you held, it was from
either of those two?
Ms. Tyler. Yes, I believe so. But these are grants to the
lab. And a particular lab will have usually multiple grants
from different agencies. National Institutes of Health is
another one.
Chairman Miller of California. Your work is, in theory,
restricted to that grant that is funding your principal
investigator?
Ms. Tyler. Yes. Yes, that's correct.
Chairman Miller of California. And this is your research
and you are working on that particular research, is that
correct?
Ms. Tyler. Yes. We discuss the project plans and say, okay,
these are the goals for the grant proposal. This is what we
need to get done for the taxpayer's money.
Chairman Miller of California. Thank you.
Mr. Duckett, in your testimony you say that the difference
in titles of the various postdocs, of some 6,500 postdocs, I am
on page 3 of your testimony, that the differences in titles
arise primarily from their funding. And you have the first
category of the employee postdoc. Can you walk through for me
for the types you are referring to here?
As I see it, you have fellows, you have the employee
postdoc scholar and then you have something called paid direct?
Mr. Duckett. That is correct.
Just so in terms of walking through those, I will take an
excerpt from the written testimony.
The first category being the postdoctoral scholar. It is a
person who receives funding from a university source that
provides discretionary funds in support of training of
postdoctoral scholars or from an agency that requires or permit
the person to be a university employee.
The majority of postdoctoral scholars are funded through
federal contracts and grants, like the National Institutes of
Health. The National Science Foundation and Department of
Energy are also others.
Chairman Miller of California. Okay. And then the second
type is what?
Mr. Duckett. The second type is a postdoctoral scholar
fellow. The fellows have been awarded funding by what we call
an extramural agency outside of the university. And a lot of
this money flows through the university is paid as a stipend
rather than pay. And these awards carry a lot of restrictions
about the fellow holding certain appointments at certain times
and working on other funds.
The majority of fellows in the life science are supported,
again, by NIH funds. And although other sources are used in
terms of the non-life sciences those sources.
Chairman Miller of California. And the third type?
Mr. Duckett. The third type being a paid direct. paid
directs basically bring their own money with them to conduct
research. They can be from an extramural agency, it could be a
private source, it could be a foreign country.
Chairman Miller of California. So they come self-contained?
Mr. Duckett. Yes, they do.
Chairman Miller of California. Does the university
contribute anything to them ever?
Mr. Duckett. No.
Chairman Miller of California. So if their wages are not
sufficient for the cost of the program, what happens?
Mr. Duckett. Well if their wages aren't sufficient in terms
of the cost of the program, then any gap in terms of what they
are supposed to be paid, the work that they are doing, et
cetera, will need to be made up from state funds if those
grants do not cover everything that they are supposed to do in
terms of research.
Chairman Miller of California. Okay.
Mr. Duckett. That is about ten percent of the population or
so, as I understand it.
Chairman Miller of California. And if I am correct, the
suggestion in your paper is these various classifications make
this a very complex negotiations between you and UAW?
Mr. Duckett. Absolutely. Each one of these types of
individuals is working on a particular grant or fund source
which is usually contained in a very thick paper file. All of
the provisions of that particular grant have to be accounted
for to make sure that the research is being done properly and
the person is going to be paid appropriately out of the
designated fund source.
Chairman Miller of California. And that is all done today
and was done last year, and the year before, and the year
before that?
Mr. Duckett. Yes.
Chairman Miller of California. So where are we in the
costing exercise to assess the economic impacts of the UAW
proposal?
Mr. Duckett. Well, there have been several requests for
information, which we have noted the difficulty in pulling
together. We are still working hard to pull together that
information, although as I mentioned before, it resides in ten
campuses across the entire State of California and is mostly in
paper files.
Chairman Miller of California. Mr. Duckett, that request
was made in May of last year. President Yudof sent me a letter
and said that was one of the reasons why he thought in his
report on the status of negotiations, why he told me that these
negotiations were going forward and that he would keep me
informed of that. It has now been almost a year, I guess it is
a year tomorrow, so where are we on the costing exercise? Do we
know what the problems are with paid directs?
Mr. Duckett. We have identified some of the problems with
paid directs.
Chairman Miller of California. You identified those when
you took your first paid direct five years ago, three years
ago, or whenever, right? Did they come with a series of
conditions?
Mr. Duckett. They come with a series of conditions that are
tied to their grants. But again, there are thousands of them
and they are all individual grants.
Chairman Miller of California. Have you worked out your
problems with the NIH or the postdocs, first category?
Mr. Duckett. We have a clearer path with regard to some of
those categories, yes.
Chairman Miller of California. Can you make that
information available by clear path to the Committee? In
correspondence to us a year ago?
Mr. Duckett. Well, in terms of making it available in this
setting, that would be difficult to do to walk through and
explain it. But we would be happy to----
Chairman Miller of California. No, no. I am not talking
about you walking through it now. I want to know if the
information has been developed. I want to know if we have been
misled that these exercises are, in fact, going on on an
ongoing basis. These are the reasons why apparently people have
not been ready to meet in these organizations and you have the
information, and we are awaiting it.
Mr. Duckett. We would be happy to provide what we have so
far.
Chairman Miller of California. With the paid directs, where
are we with the paid direct, I mean with the fellows?
Mr. Duckett. At a lesser stage of completion, but further
along than we would be----
Chairman Miller of California. Why is that? What stage did
you say you are at?
Mr. Duckett. Incomplete.
Chairman Miller of California. Why is that?
Mr. Duckett. It is very difficult to gather this
information across the thousands of grants and postdocs on
campuses.
Chairman Miller of California. But do you not in fact have
to agree to the terms and conditions of those grants when you
accept those individuals in each and every one of these
categories?
Mr. Duckett. In each individual case, the principal
investigator and the research department at that particular
university and within that particular department does have to
agree to those terms.
Chairman Miller of California. And one of the terms of, I
believe, the postdocs is that they have cost of living increase
adjustments in those contracts, is that correct?
Mr. Duckett. In some instances, yes.
Chairman Miller of California. In how many are there not?
Mr. Duckett. Again, we do not have a complete accounting of
that information.
Chairman Miller of California. We are just asking now who
does and who does not.
Mr. Duckett. We do not know. We do not know overall----
Chairman Miller of California. Because this is a major
problem to the settlement and reaching agreements, but you do
not know?
Mr. Duckett. Absolutely. But we continue to research it and
continue to try to find the answer.
Chairman Miller of California. How many paid directs have
you contributed state money to?
Mr. Duckett. That we know of at this point, none.
Chairman Miller of California. None?
Mr. Duckett. That we know of.
Chairman Miller of California. So what happens when that
grant is insufficient to cover its cost? You have not had any
of those?
Mr. Duckett. I would imagine we have had some----
Chairman Miller of California. And what happened in those
instances?
Mr. Duckett. I do not know on each individual case.
Chairman Miller of California. That is suggested again as a
major problem of the complexity of these negotiations, but you
do not know?
Mr. Duckett. This is true. We do not have a complete
picture, but we continue to research it.
Chairman Miller of California. Do you really expect me to
believe this?
Mr. Duckett. It is the truth.
Chairman Miller of California. Well then there is something
very wrong here in the representations to those of us, I think
almost the entire delegation has written to President Yudof,
about his representation about how these negotiations are
going, your representations of how these negotiations are
going. And if this is the basic informational base that is
lending to the complexity that in more than a year's time and
having many of these same issues raised with the graduate
students that this University cannot develop this information;
it really raises a question of whether or not this University
knows what, in fact, they are doing with these grants.
Mr. Duckett. In each individual grant I can assure you that
people know exactly what it is that they are doing----
Chairman Miller of California. Then why can you not answer
these questions? You mean, there is nobody in the University
administration that can compile this information in a year's
time? Nobody? No team of people with all of the computer--
nobody can develop a spreadsheet? Nobody can develop a
spreadsheet?
Well, I would ask the audience to restrain because this is
a very serious problem. In theory you are in compliance with
every one of these grants because all of them bring special
conditions. And you know what they are. You know what they are
to recite them as a problem, but you do not know what they are
to provide them as a solution.
That information has now been requested by the UAW, it has
been requested by the Congress of the United States and we have
not seen it in a year. That raises some very serious
credibility problems about these negotiations.
I am going to turn to my colleagues, but I just want to ask
you one question. In that context, because again it is raised,
you talk about complexity and then on page 4 you say
``proposals on wages also pose a significant risk to the
University.'' How do you know that?
Mr. Duckett. They pose a risk because we do not know the
impact of these increases across all these grants and fund
sources.
Chairman Miller of California. It is a conclusion? It is a
conclusion that these proposals pose a significant risk? You do
not know? They might possibly pose some risk to the University,
but you do not know that?
Mr. Duckett. We know if we fail to account for all of the
money, that there is nowhere else to go outside of those
grants.
Chairman Miller of California. That is why you would start
to pull these grants apart in response to the need for
information from the bargaining unit, from the people who won
the contract. And somehow this University cannot develop that
information. You can work on new green sources of energy, you
know look it, we are talking about one of the smartest
universities in the country, smart personnel. I do not know,
maybe the administration is lacking. But this is a real serious
credibility problem, especially when we see the discussions and
the presentation materials about decertification. You know,
somebody is going into a stall here so the calendar, because it
is now a year, and that presents problems.
Congresswoman Woolsey.
Ms. Woolsey. Now there is an act to follow, okay.
Mr. Duckett, I have 20 years of experience as a Human
Resources Director in private industry in high tech where we
grew a company from 13 people to over 800 in a ten year period.
And I would relate what I called my engineers with your
postdocs because, you know, each one was unique, each one had
what they were responsible for. So because of this, my
experience, I cannot restrain myself from getting in the weeds
here. So I am coming down to ask some questions that are
probably in the weeds, not out there rhetorical at all.
So because of the complexity, because of the uniqueness of
each postdoc personnel in the system, and because it does not
sound like you really know what the raises could be, should be,
what the funding is, how much is set aside for that activity, I
am concerned how do the principal investigators know what they
are doing? Are they trained and are they skilled? And do they
know how to evaluate their employees one at a time? Do they
want to do that, or would they rather be doing the work of the
program?
You know, a lot of engineers I found out at my company was
that they are really good engineers, but they really were not
administrators. They had no desire to be an administrator.
So, and are these principal investigators, are they
evaluated on how well they take care of their workers, of the
people they hire to be part of their program?
I mean, how do you ensure if you will not have an across
the board step raise program, how do you ensure that these
individual postdoc employees get any attention?
Mr. Duckett. Well, each principal investigator is
accountable to their department in the research organization
that they are working within. So in terms of them not
performing critical aspects of their job, they would be
accountable for not doing that well.
Ms. Woolsey. Well, I would suggest we are looking at those
that do well and how are they rewarded for it? Because it does
not sound like from the interaction I have had with the
postdocs that they think they are being taken care of at all.
So now where does the responsibility fall? On the principal
investigator, the person that wrote the contract who is
probably a really good scientist, he or she on their own? I
mean, how do you know as an institution that they know how to
do this?
Mr. Duckett. Well the principal investigator is responsible
for administering all aspects of that research. And I would
assume that if the University or that principal investigator
did a poor job at it, they would not get additional grants.
Ms. Woolsey. No. I do not think that is the end result. I
mean, you have got these amazing smart, talented postdocs that
are doing their job for very little wages, I believe, and then
they can get fired if they get pregnant, which is ridiculous.
So you can finish a contract because, as a matter of fact,
there are a lot of postdocs in fewer and fewer jobs from what I
have read in all the testimony.
They would not want to organize if they thought they were
being taken care of by their employer, the University. So that
is what I am--and I do not think you know if their bosses,
their managers, their administrators--and I am not mad at PIs.
They probably are just great, great people. But that does not
mean they know how to do what you want them to do for
individual reviews.
Mr. Duckett. Well quite honestly, that is another benefit
that the University sees in terms of getting a settlement with
regard to these negotiations and getting a contract. And I do
want to point out that it has come up several times, and
prominently, time off is one of the articles that we do have
resolved and ready to go in the event of a settlement. But
quite honestly, one of the benefits of getting this contract
resolved is that we would have more structure around the exact
types of issues that you have outlined.
Ms. Woolsey. So then that makes it even more important that
that contract go forward, right?
Mr. Duckett. We absolutely we want to get done as fast as
we can.
Ms. Woolsey. Yes.
Mr. Duckett. Responsibly.
Ms. Woolsey. Okay. Thank you, Mr. Chairman.
Chairman Miller of California. Congresswoman Lee?
Ms. Lee. Thank you very much.
Let me first ask Dr. Tyler a couple of questions.
You know, I asked a staff to write down, I just wanted to
know what $37,400 a year was based on an hourly wage. The
information on the numbers that we have, and I want to thank
you very much for this. Okay. If you work 40 hours a week it is
$18 per hour. Sixty hours a week is about $12 per hour. And, of
course, many postdocs work much longer hours.
This is not even a living wage in the Bay Area, first of
all. And I know that postdoc positions and postdoc scholars are
not doing this for the money. But I also know that, and you
shared your story, that you have to be able to live a decent
life and take care of your families. And I am sure the
University gets that and understands that.
And so what concerns me now especially is what kind of
competitive destination is the University of California for
postdocs? Do you know? Are you aware of any movement of
postdocs or recent PhDs to want to avoid UC Berkeley now based
on this type of treatment?
Ms. Tyler. Well, Congresswoman Lee, you have brought up
some very good points. I have done those calculations, and I
instantly try to forget how much I might potentially make per
hour. It is incredibly depressing.
It is a high cost of living area in the Bay Area. And
because you are asking about comparisons, I will make a few.
Mr. Duckett has brought up the NIH, and my apologies but
since he brought it up, I would mention that NIH fellowships
place restrictions on postdocs. I have to point out that the
NIH guidelines for a person with my experience and my
qualifications would give me about $5,000 more per year then I
currently make. Okay.
NIH is taken as a national standard for postdoc pay. That
means that nationally UC does not look so good.
Let me give you another example locally. My husband is also
a postdoc. We graduated with PhDs, both of us from the same
department at Duke University on the same day. We are in the
same field. We do the same job. It is slightly different, it is
a different aspect of plant science, but he works at Stanford.
This year he is going to make $10,000 more per year than I
will.
So in terms of reputation, let me ask this. If you could do
the same job with the same qualifications, live in the same
geographic area and make $10,000 more by going to Stanford than
UC Berkeley, where would you go?
Ms. Lee. Yes. Yes. So let me ask Mr. Duckett. Thank you
very much, Dr. Tyler.
Mr. Duckett, okay. Now you heard that. It is my
understanding, and I wanted to ask you first of all if NIH
knows what is going on, first of all. Because, you know, we do
have a new Administration. And this Administration is very
clear on the right to organize and union contracts, and fair
wages.
UC gets an overhead rate of 53 percent on federal
contracts, which means that for every $1 million in federal
funding for a specific professor's lab research, we provide an
additional $530,000 that goes into the University's
unrestricted operating budget. In other words, 53 cents for
every dollar is added to the University's grant for postdoc
scholars.
Since they do most of the research on these federal grants,
I believe it is 90 percent of UC postdocs are paid by federal
grants, their work is not only paying for themselves, but is
bringing in substantial income, mind you substantial income to
the University's operating expenses. So how is it that you've
taken this revenue generating function, how do you take this
into account in terms of the dollars and cents when you bargain
with the union? What is the deal?
Mr. Duckett. Well, in terms of those numbers that you
stated, not all of the overhead is accounted for for each
individual. Those amounts vary by grant. They also can change
going forward.
Ms. Woolsey. So give me what is the estimate then?
Mr. Duckett. I could not----
Ms. Woolsey. A median?
Mr. Duckett. I could not estimate across the board. There
is----
Ms. Woolsey. Ten percent, 15, 20?
Mr. Duckett. I really could not responsibly estimate.
Ms. Woolsey. Okay. Well, we would like to get some
information on it.
Chairman Miller of California. I do not understand the
answer. She asked about the difference in the grants you said
not all of the grants account for all the cost or all the
overhead. I do not understand.
Mr. Duckett. Not all the grants account for all the costs
dollar-for-dollar, or all the overhead dollar-for-dollar and
can change in subsequent years.
Chairman Miller of California. So the conclusion is what?
Mr. Duckett. The conclusion is there is a significant
amount of unpredictability in terms of what those dollars are
and if they are going to continue to come into the University?
Chairman Miller of California. Do you have a reserve fund
among the $800 million? Do you have a reserve fund for
contingencies in the overhead fund?
Mr. Duckett. We do not have a reserve fund in terms of
contingencies like that, no.
Chairman Miller of California. So this is a problem, but we
do not set aside any money?
Mr. Duckett. We would always get exactly what we have asked
for and/or agreed to via the grant. These numbers change.
Chairman Miller of California. So Congresswoman Lee's 53
percent is an average or that is of every grant, or some
grants?
Ms. Woolsey. Yes. Where does it come from?
Mr. Duckett. In terms of the number that Congresswoman Lee
is referencing, if I could get on the same page as you. If this
is something that we provided, I would like to see the source.
Ms. Woolsey. Well, it is based on information that we have,
okay?
Mr. Duckett. Okay.
Ms. Woolsey. And I want you to tell me what you have, this
53 percent.
Mr. Duckett. Okay.
Chairman Miller of California. This is what the University
staff gave to the Committee staff.
Ms. Woolsey. And that is the information that we have. And
so if it is not 53 percent, what is it?
Mr. Duckett. The number varies, as I have said.
Ms. Woolsey. From what to what? I mean, if you give us 53
percent, that is what we are operating under. I am sure that is
what everyone is assuming. But if that is not accurate, then
can you give us closer to what the percentage would be?
Mr. Duckett. As I mentioned, the numbers do change
depending on whether the grant is renewed at the same level
year-to-year.
Ms. Woolsey. Mr. Chairman, would NIH have that information?
Chairman Miller of California. I do not know what the
arrangement is, how they figure out the overhead. We get a
better deal from Blackwater than we get from here.
Ms. Woolsey. Yes. Okay. Well, I would like to get a formal
response to the panel in terms of what the overhead rate is.
Ms. Lee. Mr. Chairman, will you yield to me for a minute
for a question?
Chairman Miller of California. Yes.
Ms. Lee. Well, Mr. Duckett, don't you negotiate each of
your contracts individually on the overhead?
Mr. Duckett. Yes. Right now in terms of the questions
around how grants are funded and what level at which overhead
is accounted for across the system, and whether we actually get
all the money that we ask for in each individual grant, that is
really out of my realm of expertise. That would be more
suitable to the research apparatus of the organization----
Ms. Woolsey. Well it is either individual or there is an
across board, like the NIH and University of California is 53
percent. I mean, I have heard that some of the Ivy League
schools their overhead is 70 some percent. And you cannot tell
us that?
Mr. Duckett. The research organization would be better
suited to answer that question.
Ms. Lee. Well, they do not have any answers.
Ms. Woolsey. Well then, Mr. Chairman, I am going to assume
it is 53 percent.
Chairman Miller of California. That is the information that
was given to the Committee.
Ms. Lee. Thank you very much.
Mr. Duckett. Thank you.
Chairman Miller of California. Mr. Duckett, going back a
little bit to why this is so complicated. The question of the
paid directs, we have what? 6,500, is that Mr. Miller, roughly
about 6,500 people?
Mr. Miller. Yes.
Chairman Miller of California. And my understanding is that
the paid directs are about 300?
Mr. Miller. Yes.
Chairman Miller of California. And then the fellows are
about 600?
Mr. Miller. Yes, 600 or 700, about that, yes.
Chairman Miller of California. So while this is complex, it
is not complex for the bulk of the people being employed like
Ms. Tyler?
Mr. Miller. That is correct, yes.
Chairman Miller of California. There is a fairly standard
contract, is it not, from NIH or DOE? I mean, we have been
doing this a long time. We have, obviously, stepped up the pace
with the Recovery Act. But we have been doing this a long time.
Mr. Miller. Yes.
Chairman Miller of California. And those contracts, if I
understand them correctly, contain a cost of living, I assume
for the contract not just for wages, but the contract to get it
through if it is a three year--I do not know how long these
contracts run?
Mr. Miller. Yes. It is typically called an escalator.
Chairman Miller of California. An escalator for the overall
contract?
Mr. Miller. I----
Chairman Miller of California. Or just for wages and
benefits?
Mr. Miller. It is broken out for different things. Wages
and benefits, but also for other factors, equipment and things
like that.
Chairman Miller of California. So if they put in an
escalator for Dr. Tyler's wages in the gross amount, the
University would take 53 percent of that money out of that
contract?
Mr. Miller. Yes. Well, they do not take out of the
contract. It is in addition to the contract. So in addition to,
let us say that the contract was for $1 million, in
Congresswoman's Lee's example the University would get that $1
million to fund what they call direct costs, salaries,
equipment, et cetera, benefits. And then they would get an
additional $530,000 in indirect costs or overhead, or
facilities and administration costs.
Chairman Miller of California. So is that contract for a
million and half, or is that a net million?
Mr. Miller. A million and a half.
Chairman Miller of California. A million and a half? So
when we had a conference at Princeton with the research
university and they talked about setting up a million dollar
lab, that was the cost of that lab. But we could expect that
there would be another half a million dollars attached to that
to administer that lab?
Mr. Miller. Yes, I believe so.
Chairman Miller of California. So now we know that that
money is taken off and used for general purposes in the
university?
Mr. Miller. Yes.
Chairman Miller of California. Is that right, Mr. Duckett?
There is no restrictions on that money?
Mr. Duckett. I am trying to think through so I can give
you----
Chairman Miller of California. Well, let me ask it another
way. That money is not exclusively used for the administration
of that particular lab?
Mr. Duckett. That money is not used for the particular----
Chairman Miller of California. If it is given for overhead
and administration? It is costing the taxpayer 53 percent to
loan a million dollars for a lab, we were told that sort of the
average of these would be about a million dollars to set them
up in the context of the Recovery Act. And that is why we went
forward. And nobody mentioned at that conference of the
research universities that there was an add-on if what you are
saying is correct, that that is on top of. And I just want to
know then is that money used for the administration of Dr.
Tyler's lab? Does that half million dollars go to administer
that lab that her principal investigator is running with the
other personnel that are part of that?
Mr. Duckett. If the question is, is the overhead tied to
that particular grant, yes.
Chairman Miller of California. Yes, is it used for that
purpose? I know it is tied to that.
Mr. Duckett. To my knowledge, yes.
Chairman Miller of California. I think the information
given to the Committee staff is that it is for the general
purpose uses of the University.
Mr. Duckett. For people working on those grants.
Chairman Miller of California. I do not think so. We will
check it again. But I do not think that is the case at all.
These would be really rich labs at that point.
Ms. Woolsey. And they should get----
Chairman Miller of California. Again, on the complexity
issue, my understanding is that when the University went before
the Public Employees Relations Board, is it that they insisted
that the paid directs be included in this unit. And that they
said that none of these relationships, referring to the paid
directs relationships with their employers, impair the ability
of the union to bargain with the University about terms and
conditions of employment in control of the University.
So, you did not see that as a complex problem when you
insisted they be part of this bargaining unit, but now they are
complex problem, again for the solution and reaching an
agreement.
Mr. Duckett. As we have gone through the process we have
learned more about this particular group. And learned that the
complexity----
Chairman Miller of California. You have been working with
these people for years. The paid directs apparently are not a
mystery. In many instances, are they not foreign governments?
They send people here because they would like to have them come
attend the University of California and participate and get
into the community of their area of research or expertise. So,
I mean, it's a good--we get their brains, and they get the
exposure that they are seeking. So this has been going on a
long time. But now all of a sudden they become a problem and
now when we look at their individual contracts. But that goes
on all the time. I mean, they are intermingled in these other
labs, but their sources of funding are restricted and who can
contribute to those sources, I understand are restricted. But
that is a known entity. That is the way these programs have
been set up. And there is only 300 of them.
Mr. Duckett. Our numbers are a little different. We
estimate it is more like nine percent.
Chairman Miller of California. Yes, this is your number in
filing before the Public Employees Board. It is not my number.
This is on the University of California letterhead, signed by
whoever made the petition.
Mr. Duckett. We estimate our current numbers to be about
nine percent.
Chairman Miller of California. So we are doing better than
we thought? Okay. In attracting these people?
Excuse me one minute here.
So again, just quickly, on the paid directs as far as you
know no state monies have been used to augment those contracts
if they are found lacking? I do not think they have access to
the federal money. I think that is prohibited by the terms of
their contract or the use of the federal money. I think that is
correct, is that right? Excuse me.
Mr. Miller, you are shaking your head.
Mr. Miller. I do not think that that is correct, no. I
think there is a number of paid directs, you know often times
you will have a partial appointment as a paid direct and then
you will have an appointment as a postdoctoral scholar
employee, the first category in Mr. Duckett's testimony of
postdocs. And those folks are typically when you are drawing a
salary as a postdoctoral scholar employee, you draw a salary as
a direct cost off the contractor or grant. The overwhelming
majority of funding that goes to pay for postdocs comes from
federal contracts and grants.
And it is extremely unlikely that the pay would ever come
from State of California general funds. It may come from a
State of California research contractor grant. But most likely,
it is going to come from a federal contractor grant. And we
have not seen a case yet, although we have asked for it a
number times, of a postdoctoral scholar paid direct being
funded with State of California general fund money.
Chairman Miller of California. You have not see that?
Mr. Miller. No, we have not.
Mr. Duckett. If I may ask?
Chairman Miller of California. Yes.
Mr. Duckett. The prospect of across the board increases for
all postdocs being done at a certain level, as a more or less
one size fits all approach, does raise a risk of that happening
and us having a situation where we have funds that are
scheduled by the contract to be paid out to paid directs that
are not accounted for in paid directs' contracts that would
have to be made up by some other source.
Chairman Miller of California. I appreciate you saying
that, but you present the one size fit all, but you can
continue to present the one size fits all on the basis that no
information has yet been delivered, so that then the
negotiators could make a determination of whether or not this
has to be a different kind or perhaps unique contract taking
into consideration federal restrictions, foreign funding
restrictions, state restrictions. However, but we do not get to
know that at this point. So you can keep throwing that up, but
you are the one that holds the information. And withholding the
information and then continuing to say this is just about one
size fits all really does disservice to the idea of good faith
bargaining. You just can't continue to hold it out.
You know, it seems to me that the information again that we
are looking at is what are the restrictions and sources of
funding for these postdocs. How the raises might affect those
categories? What is allowed, what is not allowed? And what is
the impact supposedly because there is some threat to the
University finances, although you got $800 million in overhead,
how does that affect the University's finances?
Apparently there is insufficient evidence on the table so
people can have a discussion about those facts. We have to have
this discussion in the absence of those facts.
A year ago the President of the University tells me that
that is all coming along fine; the costing exercises I think is
the term.
Congresswoman Woolsey.
Ms. Woolsey. I am ready. Thank you. You can catch your
breath.
Chairman Miller of California. No, I just----
Ms. Woolsey. It is depressing.
Dr. Tyler, my questions are mostly for you, but I am sure
Mr. Duckett, you will be part of this.
I am the author of legislation in the Congress called Go
Girl. Because I want to get more women into science, math,
technology and engineering. I cannot imagine why Go Girl is not
really to get more women into gardening. I mean, they make a
lot more money than what you are telling us. So, I mean, I am
really finding this frustrating. It is like, what am I doing to
these young women.
So the world is changing slightly. For heaven sakes, in
health care being a woman is no longer a preexisting condition,
and our Speaker made that happen. So we are glad of that.
Now we want being a woman not being a negative condition in
employment as well. I mean, we are in the 21st century. Why are
we even talking like this, this is what I cannot believe.
Your husband's $10,000 more salary, equivalent everything
between the two of you except for two different institutions
and you are a female and he is a male. Is his higher salary,
does it have anything to do with his being a male? Are your
male colleagues at UC paid what you are paid?
Ms. Tyler. Yes. And that is part of the point that it is
not just me, and it is not just women, although my husband
certainly did not have to take a leave and a huge pay cut
because he had to give birth to a child and recover from that.
but it is an issue for everybody.
My male counterparts in similar positions are paid the
same. And so what if you have two parents who are UC Berkeley
postdocs? That is really hard.
And the thing is that I have colleagues, male and female,
who say maybe I should just quit science and go work at Home
Depot. Because I have heard they are a pretty good employer.
And the sad thing is, they are only half joking.
And so I really appreciate all of the initiatives and the
programs and encouragement that young women in science get
these days. Unfortunately, we cannot promise them very much. Do
we really tell them you get to slog through graduate school for
five, six, seven years, who knows how long, and then you get to
be a postdoc. And you get to pray that you get a job, a decent
job in your field.
So these policies do not take that into account. They do
not take into account who postdocs are. They are people with
PhDs, and that means for those of us who have decided to have
children, we have usually waited until we finish graduate
school. If we wait much longer, biologically speaking, it can
be too late.
From another perspective, I am in my mid-30s. I do not earn
Social Security credits. I am not eligible for my employer's
retirement plan. We do have a defined contribution plan, but
that is entirely different. If I lose my job, I am not eligible
for unemployment benefits. My salary is so low that I cannot
afford to save for those things on my own.
So what are we telling the young men and women who are
thinking about science as a career? We are saying to them get a
PhD and in terms of financial independence and security, you
will be about a decade behind your peers who started working
right out of college. That is not very attractive.
Ms. Woolsey. Mr. Chairman, I will end. I cannot have
anything to ask beyond that.
Chairman Miller of California. Congresswoman Lee?
Ms. Lee. You know, this is pretty demoralizing, to say the
least. Because, you know over the years I have been involved in
a lot of labor negotiations in many industries. And I have
found that when negotiations are just about money, it is
usually possible to reach a compromise. But where negotiations
do bog down, it is not mostly about money, but about power,
about ideology, maybe ego. And so I am wondering about UC in
terms of some idealogy maybe behind all of this. And is it
really not about just the money? And are there some areas where
you just will not compromise on, or is it really about
affordability?
Now, we talked about, and you mentioned 29 of the 35 areas
have been resolved. But you know what? Let me just read the
remaining issues that are outstanding, though.
I wish John were here to hear this.
Wages is one of those that is outstanding.
Health benefits.
Appointment rights.
Job security, that is an outstanding issue.
And the right to respect other union's picket lines.
Now if these are the outstanding issues then I cannot
figure out what the other 29 were.
And so can you kind of walk us through very quickly the
University's perspective on these specific negotiations, and
then I guess in general? Because we have seen again, as I
mentioned earlier, contracting out, decertification processes
possibly taking place. What is going on at my alma mater?
Mr. Duckett. Well, let me just comment. And again, I will
point out that one of the articles that is settled that we have
talked about a lot related to the birth of a child is time off
from work, which is very important. I think we all acknowledge
that.
We have resolved things like union security, making sure
that the union is acknowledged and can collect dues.
We have done professional development in making sure that
people have the ability to move through the organization to a
higher level.
We have resolved discipline; the reasons why you can sort
of be disciplined or ultimately keep your job or be dismissed
from your job, which is very important also.
And we have also resolved the essential piece of most
contracts, which is the grievance and arbitration procedure.
So those are just examples.
So the articles that we have resolved are not small. And
acknowledging that we do have a way to go, and some of the ones
that you have mentioned are very important to people; wages or
money and benefits being another form of currency or money is
important also. Layoffs, again, money and/or strike provisions,
which is another item.
In terms of asking about the University of California's
position with regard to collective bargaining and unions,
employees have the right to choose a third party
representative. This particular group of employee has chosen
the UAW to represent them. And that question as it relates to
actions by the University, whether or not the University is
trying to decertify a union.
And by the way, the University cannot decertify a union and
cannot decertify the UAW in the postdocs. That is a employee
choice and it is driven by employees. We are neutral,
absolutely neutral on terms of the right for people to be
represented by a union and make that choice, and to make the
choice not to be represented.
Ms. Lee. Excuse me, Mr. Duckett. I think I have seen a
pattern of practice here in the past. Continue.
Mr. Duckett. Well, I will point to our pattern of having
resolved contracts and closed contracts with most of our
unions. And with regard to the UAW having negotiated a
successful first contract for the graduate students and
successor agreements after that. So there is no fundamental
ideological or philosophical opposition to unionization within
the University of California. We continue to bargain in good
faith. We are continuing in good faith with regard to this
process. And we will continue in good faith with regard to this
particular negotiation going forward.
Ms. Lee. Thank you, Mr. Chairman.
Chairman Miller of California. Thank you,
Mr. Miller, was there some dissemination of the list of the
bargaining unit around this issue of decertification?
Mr. Miller. Yes.
Chairman Miller of California. What happened?
Mr. Miller. In early December 2009 an individual contacted
Gayle Saxton, the University's chief negotiator, and according
to Gayle talking to me, to inform her that he intended to try
to decertify the UAW as the union for postdocs. And she gave
him the list.
Chairman Miller of California. This was a member of the
bargaining unit?
Mr. Miller. Yes.
Chairman Miller of California. Is that normal? I do not
know how it plays out ordinarily.
Mr. Miller. That is the first time I have experienced that.
Chairman Miller of California. I mean, is that a normal and
neutral position? Mr. Duckett, just referred----
Mr. Miller. No, I do not think it is a neutral. I certainly
would not give--if I were bargaining with the union, putting
myself in their position, I would not just hand over the list
to someone who wanted to decertify the union. If I wanted to
engage in cooperative productive collective bargaining with
them, no, I would not do that.
Chairman Miller of California. How does that person go
about getting a list? If a member of the unit decides they want
to decertify the union, how would they ordinarily do that?
Mr. Miller. Well, they could get the information
themselves. Part of what the University communicated to this
individual is that they could find--they said here's the list
of postdocs, and you can find their email in most University
directories. So you could go and find the people in the
University directory.
You could also file an information request with the
University's Public Information Office under the California
Public Records Act. And that is a process that typically takes,
you know weeks if not months, and you have to fill out the
right forms and dot your I's and cross your T's to get
information under that statute.
Chairman Miller of California. Mr. Ferguson, I know you do
not have all of the facts here in this group. But it would seem
to me that any discussion of participation in decertification
by one side to the negotiations, I mean the purpose of
decertification is sort of the elimination of the other side
and then you go on about your business. I mean, when an
employer decides that they have had enough, they try to get rid
of that unit and then somebody else will have to try to get a
first contract or get the rights to seek that.
But what is typical here?
Mr. Ferguson. This is rare. It is not common for an
employer that is committed to neutral bargaining. So consider
the case, for example, of the University of California where
there is a process for requesting public information, like a
list of postdocs. You know, it makes sense that an employer
that was insistent on having a neutral position in such
bargaining would refer someone to that public process to get
the information on the list of postdoctoral candidates. In that
case, the University is complying with its procedures, but it
is not taking any exceptional steps to help that person with
their request to decertify the union.
Seeing the University go above and beyond that, I will
stress that I am not a lawyer, but that is at least unusual in
the context of a bargaining situation where you are trying to
maintain your own neutrality.
Chairman Miller of California. Thank you.
Barbara, do you have any further questions you want to ask?
Ms. Lee. Well, one question. Let me just ask Mr. Duckett
again, the contract with your 12,000 graduate student employees
granted graduate students the right to respect a union's picket
lines. And so I am trying to understand why this same issue is
still one of the outstanding issues and a stumbling block?
Mr. Duckett. I do not know if I would characterize it as a
stumbling block in and of itself. It is just another issue that
we have to go through and negotiate on.
Ms. Woolsey. That cannot be taken off the table then? Okay.
I got it. I understand.
Chairman Miller of California. Thank you.
Mr. Miller, let me ask you a question. Have you been told
by the University that the data that in fact relates to these
costing exercises and these various different research funding
sources, that that data is simply not available?
Mr. Miller. Yes. Well, that it is not collected and tracked
in any sort of central----
Chairman Miller of California. They do not know how to
retrieve it?
Mr. Miller. Right. Correct.
Chairman Miller of California. So because of their
inability to retrieve this information, where do we go from
here? Why did they not say this a year ago?
Ms. Woolsey. Mr. Duckett?
Mr. Duckett. First off, I do not think we have said that it
is impossible to get. What I have tried to emphasize is that we
continue to work to get it, and will continue to work to get
it.
Chairman Miller of California. Yes. But we are looking for
cold fusion too.
Mr. Miller, what is the conversation you have had?
Mr. Miller. Well, when this was raised to us on the session
that we had on April 15th and April 16th, I said it was
unbelievable that this would come up this late in the process,
that this issue would come up this late in the process. So I
raised the fact that the University insisted that the paid
directs be put in the unit back in 2008. And that given that
insistence, we had assumed that they had started tracking this
information at that point in time.
The University negotiator, Ms. Saxton, said well we did not
and it is incredibly complicated to do that, and it costs a lot
of money and you know what a difficult time the University has
been having financially over this period of time. We just do
not have the resources to put together the system to track that
information.
Chairman Miller of California. What about the overhead in
administration of the grants, would this be a proper line item
for that $800 million?
Mr. Miller. In my opinion, yes.
Chairman Miller of California. My understanding is sitting
in Washington, and we hear it all the time, that this is a big
deal to secure these grants.
Mr. Miller. Yes.
Chairman Miller of California. And so that $800 million is
a major source of revenue for some purposes, we have a little
dispute here, but our understanding is it can be used for any
general purpose of the University.
Mr. Miller. Yes. If I may, Mr. Chairman, the whole thing
feels to me a lot like an excuse. It just does not seem that
difficult to get this information and to get it quickly.
You know, there is a person, as Mr. Duckett pointed out, in
every department or research organization on campus that keeps
track of this. For example, they have to when a postdoctoral
paid direct comes into the University, someone has to make the
determination, even according to the University's current
policy, is the amount of money you are getting from your
extramural funding agency sufficient, does it meet our minimum
salary threshold? If the answer is yes, then the University
does not have to contribute what they call a supplement to
bring that individual up to that standard.
If what they are getting from their extramural agency is
below the minimum threshold established by UC policy, the
University then has to go into the payroll system and give the
person a supplement in a different title to bring them up to
that level.
So somewhere, somebody is making that determination in
every department and research organization on every campus.
Mr. Duckett is a powerful man. Mr. Duckett, if he wanted
to, could direct all those people on all those campuses through
the HR office on each campus, which are coordinated by his
office at the Office of the President, to collect that
information. And they do not need to build a sophisticated
fancy payroll system to do it or information system to do it,
they could put it on a spreadsheet. They could put it on a
Goggle doc on the internet. And each person in each department
could just go on that spreadsheet, put in the person's name,
their employee ID number, whatever other identifying
information they need, and put their salary and whatever other
relevant information is deemed necessary. That could be done in
a week's time.
Chairman Miller of California. I always worry when a lot of
euphemisms enter a system. And politics is a great one for
this. But this idea that there is somehow 53 percent of the
overhead for the administration and expenses of these grants
and after decades of being engaged with these grants, we cannot
get basic information on what the status is of these
individuals, and that is now used to suggest that we cannot go
forward in the bargaining.
I appreciate you never admit you cannot go forward. But if
you cannot provide the information in the complex--and you used
``complexity'' in your testimony, how complex this is and that
it is a threat to the University system; if you do not have the
information, how do you go forward if that is the threat to the
University that we cannot do this because this is such a
terrible threat. And I think from the Washington side I want to
know if we are awarding grants to people who cannot tell us
anything about the grants, the administration of the grants,
what the hell are they doing with the 53 percent overhead? I
mean, I think it is fundamental.
You know the Speaker tasked me almost four years ago with
an innovation agenda. And we met with major universities all
over country, and we have gathered people all over. And we have
prepared ourselves for the Recovery Act. And we made the
largest increase in research and development for labs like Dr.
Tyler's in the history of this country. But little did we, I
guess, recognize, and maybe I am not on the committee of
jurisdiction, but I did not know that Ms. Tyler was not going
to get Social Security credits. I thought these were things
that we sort of settled decades ago. But we will have to go
back and look at it from the Washington side. Because something
is very, very wrong here.
Congresswoman Lee raised this issue at the beginning of
this hearing, and I just have to concur in that.
Let me just ask, because again this goes to President
Yudof's representation to our delegation, to the California
Delegation. Mr. Miller, when the UAW asked the UC system to
provide samples of funding agreement and language contained in
this because of this so called problem, have you received any
of those to date?
Mr. Miller. No, I do not think so.
Chairman Miller of California. When the UAW asked for data
quantifying the number of postdocs affected by this problem and
the dollar amounts involved, they told you there is no way to
make that calculation now?
Mr. Miller. Yes, that is true.
Chairman Miller of California. That is the conversation you
are referring to earlier?
Mr. Miller. Yes.
Chairman Miller of California. When you first requested the
information in December 2008 regarding the postdoc salary and
stipend rates broken down by source, and funding language, and
outside funding agreements, history of salary agreements, and
various categories of the funders or more, that request has
been repeated numerous times by you, I believe it was also
repeated by our delegation, that has not been forthcoming?
Mr. Miller. We have gotten a very small fraction of that
information on a few campuses but nothing comprehensive for the
entire unit, no.
Chairman Miller of California. It is not sufficient to go
forward in the negotiations, or it is, or can you----
Mr. Miller. We think that it is sufficient to go forward.
We do not, you know think it is such a big deal to settle the
contract. I mean, the University just settled a huge contract
with another union, the CWA, who represents the researchers and
the techs who work side-by-side with the postdocs and get
funded off the same grants as the postdocs. And they were able
to, you know with all the complexity of all the different labs
and all the different projects that those people work on right
along with the postdocs, they were able to settle that with
significant guaranteed salary increases across the board and
steps in each of the next three years. So if it is easy enough
to figure out in that context, it is easy enough to figure out
in this context.
Chairman Miller of California. In his response to us,
President Yudof says that ``the union's proposals carry
substantial financial implications for the University at this
time. We are already severely strained, underfunded like many
public agencies across California.'' The suggestion is that
somehow this has impacts related to the state funding and puts
that at jeopardy because of the cost of this, again even though
most of these grants carry escalators with them. And in fact,
it is insisted by the University that they be written with an
escalator in them and it is insisted by them coming the other
way, that they have an escalator. So this money theoretically
is in these grants if you can deal with it under the
constraints of how the grants are used and how people are
funded, is that correct?
Mr. Miller. Yes.
Chairman Miller of California. So I just want you to know
you are not alone, because the Committee, the staff has been
asking for direct information from the University, from the
President's office, from the rest of the University
administration exactly how the issues under negotiation would
impact state general funds. Just so you know you're not alone,
we have not received an answer in two months. And yet this is
constantly thrown out in the press that this is somehow a grave
risk to the University. And I say that recognizing two
different stories here. One where the University is taking
these grants and taking that overhead and using it to subsidize
the rest of the operation because of the state funding
problems, or as Mr. Duckett points out, it cannot be used. And
I do not know what in the hell they are doing with it, in a
trust account or something. i do not know.
But the fact of the matter is apparently wherever you come
to get information, you cannot get it. And I do not know, maybe
we have to go to the subpoena operation. Because I think this
raises serious questions of integrity by these grants and the
administration of these grants. And I am deeply concerned about
this, because I am in such strong favor of funding people like
Dr. Tyler. And so many people who have such talent. And the
excitement in the research universities when we made this, when
the Administration and the Congress made this proposal and it
became law about what this would mean to our economic future,
to our scientific discovery, to innovation and to economic
growth, that that is where it all comes from. It comes from the
discovery and the innovation and resulting growth. And now to
see that this is how this is being administered, I think it
would be a grave disappointment to people. And I am just so
disappointed because it is my alma mater too, that this
University is riding the point on this kind of issue, of this
issue of public trust. It is just beyond the pale, as far as I
am concerned.
And to continue to use the complexity and the lack of
information, and then to find out a year later not only we
cannot get the information, you cannot get the information,
they cannot get the information. They just waited a year to
tell you. And then we see perhaps subtle efforts at
decertification.
This is really disingenuous. It is really an outrage for
the taxpayers. It is an outrage for policy makers. And
certainly for people at the University, the postdocs who are
working at this.
Congresswoman Lee?
Ms. Woolsey. Chairman, I know we are bringing this to a
close.
I think that it is very clear. We are on to what is going
on, and it has to change. Because, you see, there are a lot of
universities that want grants from the Federal Government. And
we want those grants to go to the programs that are going to
take care of their employees.
So, make it happen. You can. I know you can.
Ms. Lee. Yes. Mr. Chairman, let me just first in closing my
remarks, thank you very much for this hearing and for giving us
the opportunity to dig deeper. And I hope that we have learned
from today as a part now of the public record, will really
provide the impetus for you getting this resolved. Otherwise,
there are a variety of efforts that we need to discuss as we
leave this hearing.
It is so disappointing for many of us for many reasons. Of
course, first, just in terms of fairness and justice. That is
not being served. $18 an hour for a postdoc scholar is just
outrageous. And I agree, Congresswoman Woolsey, your Go Girl
legislation, we got to go back to the drawing board unless we
can get this resolved as quickly as possible.
Finally, let me just say, some of us do not even go to our
own alma mater. We will not go on campus. I have not been on
campus in several years. And really it pains me not to be able
to go on my own campus because of not only this issue, but many
issues that have not been resolved yet. And so I hope we can
take this one off the table soon and just work down through the
list so that we can return to our great university. Because
until then, we just will not go, unfortunately.
I just want to take a moment to thank my colleagues.
And also, let me just thank the Berkeley City College. This
is a beautiful green facility. Dr. Betty Inclan is the
President.
And all of you for being here today. Because this is an
example of what we have to do, as not only legislators in
Washington, D.C., but really as members of Congress who love
their constituents deeply, who love their universities and who
want to see these universities continue to be the most
outstanding in the world. And issues like this really can
tarnish that reputation.
So thank you again, Chairman Miller.
Chairman Miller of California. Thank you.
I want to join you in thanking Berkeley City College and
certain all the staff of the Committee on both sides of the
aisle for their participation, for the witnesses and for many
in the audience who sat through this.
When we started this case study, as you heard in our
initial statements, it was a study about first contracts and it
continues to remain so. But clearly today raises many policy
considerations beyond the question of the first contract. And I
find them deeply disturbing.
As Chairman of the Education Committee and the Chair of the
Democratic Policy Committee I meet all of the time with leaders
from the research university community, from the overall higher
education community, with business leaders from all different
sectors of the economy, with economists and all of them tell us
that the key to America going forward is we have to increase
the numbers, the skills and the talent of people going into
science and engineering and mathematics. And that is a goal of
this Administration. It is a goal of the Congress with the
COMPETES Act. We took the wonderful work done by Mr. Augustine
and ``Rising Above the Storm'' and really placed a bet here.
And I am deeply concerned that this is playing out almost in a
labor market where while they tell us we have to dramatically
increase the numbers of people in this country that graduate
and go on to advanced degrees, that it appears almost that
there is an excess when it comes to the idea of what you are
going to pay these individuals to go through a very important
portal in terms of their career opportunities later on. This is
a big deal to have a postdoc. But then to suggest that somehow
when we keep saying how are we going to encourage people to go
in to the STEM field, how are we going to recruit them, how are
we going to retrain them, how are we going to have them go
forward? Well certainly if more of them knew Ms. Tyler's case
and other postdoc's case, it would be much more difficult. And
it is almost as if we are toying with some of the brightest,
most talented, skilled people in our society because they are
in a position where there is a bit of a surplus for those
particular positions. Not overall in the economy, and not
everybody is going to get to be a postdoc. That is not the
issue here.
But I really worry that the University's participating in
that kind of treatment. And it is not just this University. And
I say this very guardedly. I was in the Congress when this
became an issue once before, and it was not pretty. But this
raises serious questions about the underlying policy with
respect to the issues that I have raised, that my colleagues
have raised about health care, about Social Security, about
pensions, about liveable wages. And if the suggestion is we are
going to subsidize the acceleration of America's excellence and
talents on the backs of these very talented individuals,
something is very upside down in the university community. Very
upside down.
And we plan to continue to pursue this on both fronts, both
from the case study of the difficulty of first contracts. It is
not unique to the university setting. It is in the private
sector. It is in other public settings. And that is part of the
jurisdiction of this Committee.
The policy questions around the use and abuse of these
grants I think is a larger issue for the Congress beyond just
this Committee of the Congress.
Finally, housekeeping. If anybody lost their keys in the
bathrooms, in one of the bathrooms, check your pockets. Last
chance. They're up here on the table.
Thank you very much for your contributions.
Without objection, the witnesses will have 14 days to
submit additional materials for questions of the hearing from
members of Congress.
And again, I also said that people who are hearing this or
are here in the audience, we would certainly welcome your
submissions of information and fact that might be helpful to
the Committee.
Thank you very much. Thank you, my colleagues.
[Questions submitted for the record and their responses
follow:]
[Via E-Mail],
U.S. Congress,
Washington, DC, May 7, 2010.
Mr. Dwaine B. Duckett, Vice President of Human Resources,
University of California, Oakland, CA 94607
Dear Mr. Duckett: Thank you for testifying at the Friday, April 30,
2010, Committee on Education and Labor field hearing on ``Understanding
Problems in First Contract Negotiations: Post-Doctoral Scholar
Bargaining at the University of California'' in Berkeley, California.
I have additional questions for which I would like written
responses from you for the hearing record:
1. On September 5, 2008, UC submitted to the PERB a 13-page brief
discussing the intricacies of Paid-Directs' funding and compensation,
and insisting that they were so similar to other postdocs that they
must be included in the bargaining unit, despite UAW objections to the
contrary. The UC's memo goes through every major issue of
compensation--including salary and stipend; sick leave; time off;
childbearing, parental and family medical leave; retirement; terms of
service; and appointment percentage--and, one by one and in detail,
explained why there is no significant difference between Paid Directs
and other postdocs in terms of these issues.
UC's General Counsel emphasized that ``[University] policy
acknowledges that there are three different types of Postdoctoral
Scholars and the difference is their source of funding. However, other
than the source of funding and in some instances eligibility for
certain benefits, all of their terms and conditions of employment are
the same.'' UC obviously conducted an intensive examination of Paid
Directs' funding sources and the agreements governing their
compensation--exactly the type of information the University now claims
to lack--in preparing its September 2008 PERB brief. UC identifies by
name sixteen representative sources of Paid Direct funding and quotes
repeatedly from the documents governing postdoc payments by these
sponsoring agencies. UC concludes this detailed analysis by proclaiming
that ``none of these relationships impair the ability of the Union to
bargain with the University about the terms and conditions of
employment within the control of the university.'' (emphasis added)
When asked at the field hearing about the apparent change in UC's
position from its PERB filing about the differences between paid
directs and other postdoc scholars, you stated that, as UC has gone
through the bargaining process, UC learned more about this group of
postdocs.
Please explain what specific pieces of information the University
has acquired since September 2008, not known at the time of UC's
submission to the PERB, that make it unable to stand by its brief.
2. In its September 2008 brief to the PERB, UC stated that there
are a total of 5,500 Postdoctoral Scholars, including approximately 300
Paid Directs.
At the field hearing, you stated that UC estimates that Paid
Directs constitute 9 percent of the total postdoc workforce.
(a) What is the total number of Paid Directs currently employed at
UC?
(b) Of that number, what is the number for which UC has collected
information needed for bargaining purposes to date?
3. In its September 2008 brief to the PERB, UC explained that
``some of the Paid Directs have a dual appointment and hold an Employee
Postdoctoral Scholar title as well. These employees are in both titles
because it is the University's policy to ensure that all Postdoctoral
Scholars receive the same pay. Thus, if a Paid Direct's stipend is not
sufficient to meet the University's salary scale, the Paid Direct will
receive the difference and be appointed to the Employee title at an
appointment rate based on the salary differential.'' Since no witnesses
were aware of any state general funds ever being used to raise Paid
Direct's compensation to the University's salary scale, we understand
that such individuals receive their salary augmentations through other
funding.
(a) Please confirm whether state general funds have ever been used
in the last ten years to provide the differential for any Paid Direct's
compensation.
(b) What number of Paid Directs currently hold dual appointments as
Employee Postdoctoral Scholars?
4. On May 19, 2009, UC President Yudof wrote to me that UC's
bargaining ``team continues to make every effort to address the issues
raised by the UAW.'' He also said, ``This set of negotiations for an
initial contract requires careful review * * *'' and that UC looked
forward to reaching an agreement ``in a cooperative and timely
manner.'' On July 2, 2009, UC Vice President for Federal Governmental
Relations Gary Falle wrote to me with an update on the negotiations.
There, he said, ``In late May, the UAW presented the University with
detailed wage and benefits proposals. The University is in the process
of conducting a preliminary review and costing exercises to assess the
economic impact of these proposals.'' In a June 2009 update on
bargaining, UC told the public that it was ``costing the Union's
demands and will have responses to the Union's proposals after the
costing is done.'' As of the field hearing, nearly a year after these
statements, it appears that these cost exercises remain unavailable.
(a) Have these costing exercises actually begun?
(b) When did these costing exercises actually begin?
(c) Were these costing exercises underway as of June 2009 or July
2, 2009?
(d) If so, how were they underway?
(e) Were these costing exercises abandoned at any point?
i. And if so, when was the decision made to abandon such exercises?
ii. And why was no announcement of that decision made to the union,
the community or the Congress?
(f) If such costing exercises were or are underway, please explain
who requested the costing exercises and which offices and individuals
were directly responsible for carrying them out.
i. Please explain what information has been compiled and what
calculations made as part of those exercises.
ii. Please explain how often, between June 2009 and today, the
party responsible for carrying out the exercises has issued reports on
those exercises.
5. With respect to grants under which postdocs work, what oversight
does the University conduct, specifically what data is regularly
collected and what reports are regularly compiled, and by which offices
within the University, to (1) account for all grants received, (2)
account for the terms and conditions imposed upon use of grant money by
each grant, and (3) account for how the money is spent on each grant?
Please send your written response to Gordon Lafer of the Committee
on Education and Labor staff at [email protected] by COB on
Friday, May 14, 2010--the date on which the hearing record will close.
If you have any questions, please contact Mr. Lafer at 202-225-3725.
Once again, we greatly appreciate your testimony at this hearing.
Sincerely,
George Miller,
Chairman.
______
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[Additional submission of Mr. Ferguson follows:]
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[Whereupon, at 1:21 p.m. the Committee was adjourned.]