[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







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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\
---------------------------------------------------------------------------
    \1\ California Government Code sec. 3560-3599
    \2\ California Government Code sec. 3565, 3567
    \3\ California Government Code sec. 3563-3563.3
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.]

                                 
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