UC-AFT Faculty Contract Expiration Jan 31, 2020 -- What it Means

When a contract expires and negotiations continue, a few things in the contract may be subject to change. This post explains those changes as they relate to the UC-AFT Faculty (Unit 18) MOU and it provides a brief description of the later stages of the negotiation process.

What happens when our contract expires on January 31?
Most things will stay the same. We will come to work as usual, teach as usual, have Excellence Reviews and Merit Reviews as usual, and get paid as usual. Upon expiration of the UC-AFT Faculty contract, the employer is legally obligated to maintain the status quo on items involving wages, hours, and benefits such as health insurance or other working conditions, like merit review process, until the parties negotiate an agreement or exhaust the statutory impasse procedures of mediation and fact finding. During the period after the contract has expired, it is unlawful for the employer to impose any unilateral changes as to these conditions.

How will a decision be made about whether to let the contract expire?
Our faculty negotiating team, which includes 15 volunteer UC-AFT faculty members from nearly every campus, will vote in late January on whether to extend the contract or let it expire.  The negotiating team will consider the relative strategic value of both options.  To guide our decision, we will also seek the input of the Contract Campaign Committee, which includes member leaders from every campus.

Why would it be strategic to work under an expired contract?
The No Strikes clause, through which we forfeit our primary source of power while the contract is in effect, expires along with the rest of the contract.  Letting a contract lapse wins us back our right to strike.  This puts pressure on an employer because it represents a first step toward escalation.  Letting a contract expire sends a message to UC admin that we are serious about our core demands and won't stop bargaining until we see them get serious as well. 

Why would a union and an employer extend a contract past its original expiration date?
A union might opt to extend a contract when there has been significant progress toward an agreement.  If the contours of the next contract are apparent, it could make sense to wrap up negotiations under the terms of the current contract, with the union continuing to pledge not to strike.  In our case, we have been bargaining since April, and UC admin has not yet responded to some of our most important proposals that we presented to them over the summer.  In other areas, UC admin's counterproposals fail to demonstrate any significant acknowledgment of (let alone meaningfully engage with) the problems we have identified, analyzed, and proposed solutions to.

What will happen with bargaining if the contract expires?
Bargaining will continue.  We will continue to present counterproposals and seek solutions to the problems we have presented to UC admin, namely 1) teaching faculty being forced out or purged before they're eligible for job security, 2) lack of full-time work, 3) an epidemic of unpaid service and professional development labor, and 4) salaries that are too low to make ends meet. 

Do we automatically or immediately go on strike if the contract expires?
No.  In our democratic union, UC-AFT members must affirmatively vote to authorize a strike.  There are also several legal steps that unions and employers must go through before a strike may be called. Strikes require careful and intense organizing in order to reach as many union members and allies as possible.  To learn how to participate in these efforts, contact your campus's Contract Campaign Committee.

What are the risks of going out of contract?
Elimination of arbitration is probably the most significant area impacted by an expired contract. The Public Employment Relations Board (PERB) has held that contractual arbitration clauses do not continue in effect after expiration of a collective bargaining agreement. Once the contract has expired, the only matters that may continue to arbitration are: (1) disputes involving facts and occurrences that arose before expiration or (2) cases involving post-expiration conduct that infringes on rights accrued or vested under the agreement. We are reviewing all current issues and plan to submit grievances in advance of expiration where appropriate.

Once the contract has expired there are certain contractual terms that the employer is permitted to unilaterally change; management rights and no strikes clauses are two examples. Other provisions that are subject to unilateral change are those subjects that fall within the narrow scope of permissive (or non-mandatory) bargaining. In the current Unit 18 MOU, there is little, if anything, of substance that falls within this scope.

Can we strike after the contract expires?
Under the Higher Education Employee Relations Act (HEERA), related statutes and applicable case law, the union cannot go on strike until and unless the parties have reached and declared an impasse and have exhausted all post-impasse resolution procedures. PERB has consistently held that strikes that occur before completion of the statutory impasse procedures create a rebuttable presumption that the union has violated its duty to negotiate in good faith or to participate in good faith in the impasse resolution process. PERB has also held that a strike during negotiations or before exhaustion of the impasse resolution process may constitute an "illegal pressure tactic" and therefore an unfair practice by refusing to negotiate in good faith. (Fresno Unified School District (1982) PERB Dec. No. 208.)

How is impasse declared?
HEERA states that "impasse means that the parties have reached a point in meeting and conferring at which their differences in positions are such that further meetings would be futile." (Gov't Code sec. 3562(j).) Once impasse has been found, the parties are obligated to participate in good faith in the statutorily mandated procedures for resolving impasse, including mediation and, if ordered by the mediator, fact-finding. At this point in our negotiations, we are nowhere near impasse. Impasse would not be found until there has been substantial back and forth between the parties on substantive proposals without any progress being made. In determining whether an actual impasse exists, PERB will consider several factors including: (1) the number and length of negotiating sessions and the period of time over which these sessions occurred; (2) the extent to which the parties presented and discussed counter proposals; (3) the extent to which the parties reached tentative agreements on negotiated issues; and (4) the extent to which issues remain unresolved.