Why I Voted Against the Contract

My previous post (and the one immediately preceding it, for that matter) discusses the new labor agreement negotiated between the Professional Staff Congress and the City University of New York, and now out for a ratification vote by the PSC's rank-and-file membership. As further detailed in the prior postings to this blog, my inclination had been to vote against it.

Last Friday, the envelope with the ratification vote materials from the American Arbitration Association was in my P.O. box (which remained unaccessed all week on account of my professional schedule). After taking one last look at the proposed agreement, I marked the "NO" box on the ballot, placed the ballot in the envelope, and placed the envelope into the outgoing mail slot.

As a CUNY Adjunct faculty member, I do, of course have ample occasion to discuss the employment situation with other faculty members. Though a clear overwhelming majority of my colleagues do not believe that the proposed agreement is a particularly good one, some have expressed an intention to vote against it and some (including but in no way limited to Bill Ferns in his Ivory Soapbox blog) take the position that we should accept this substandard contract and then regroup and restrategize for the next contract negotiation session (the one now out for ratification would begin retroactively on 1 November 2002 and expire on 19 September 2007). If the only consideration to be weighed were the bottom line dollars in our paychecks and the conditions of our employment, then I, too, would go along with accepting what is now before us and then trying to make a comeback during the talks for the next contract.

But there is more here than meets the eye.

Being a lawyer, and having served as a Contracting Officer for the Department of Defense, I have had much experience in the negotiation process. There are two types of negotiations; those which determine how the parties will have no further relationship with one another, and those which determine how the parties will continue to relate to one another.

The purchase/sale of a home, the settlement of a case of wrongful discharge from employment, a lawsuit for injury to person or property in an automobile collision, or tax litigation against the IRS entail negotiations of the first type. The parties' objective is to end their entanglements with one another and to go forward and onward.

Other types of negotiations will determine the terms and conditions under which the parties will continue to interact with one another. Paradoxically, divorce litigation usually falls into this category, especially when alimony or child custody issues are involved. In fact, the parties to a divorce will in some way, sound or perverse, continue to relate to one another when there are children of the marriage. One reason why divorce litigation is so distasteful (I refuse to take matrimonial cases in my law practice) is because the contract governing how a relationship will be continued (albeit in a markedly different form) was negotiated using techniques and processes geared towards a termination of all interactions.

Most Government contracts for the procurement of materials or services also fall into this second category because the purveyor of goods or services to the Government will typically seek additional Governmental contracts in the future.

Labor contracts are the very epitome of negotiating an ongoing and future relationship. In this round of negotiations, the PSC negotiators and the CUNY negotiators each, jointly and severally, conducted the negotiations in a manner that disregarded the fact that CUNY and PSC and, most importantly, the individual employees of CUNY, would be involved in a continuing relationship. Whether the tactics and strategies used by the negotiators were appropriate for a relationship termination negotiation is beyond the scope of this blog; but the behavior of the negotiators was certainly most highly inappropriate for negotiating the course of an ongoing and continuing relationship!

And so, it is not only a bad contract that we are being asked to ratify, but a contract that carries the baggage of less than full good faith on the parts of the negotiators on either side. We, the CUNY instructional staff, want and need more than improved salaries and working conditions. We also need some acknowledgment that the proposed contract now before us is not the product of a well-executed negotiation process!

It is, of course, too much to expect that CUNY Chancellor Matthew Goldstein apologize to the PSC membership for CUNY's less than good faith in the negotiations, for we are not really his constituency. But PSC President Barbara Bowen's apparent nonacceptance of her own responsibility for the flawed negotiations is what pushes many of us to vote against accepting the agreement she has brought home to us. An acknowledgement by Barbara of her own failings this time around would have made a world of difference to me when I decided how I would vote on the proposed contract.

What complicates collective labor contracts is that there actually are not two parties involved, but three, namely, the employer, the union, and the employees (who are third-party intended beneficiaries of the contract). And within all but the smallest unions will inevitably arise some diverse factions amongst the membership. This is not necessarily an evil thing, for it can bring out diverse ideas that benefit the membership as a whole.

The test is not whether factionalism develops within a labor union; it is not even how contentious the factionalism grows. The real test is whether and how the union factions, after settling their differences through the democratic process of a union election, recoalesce into a unified organization. And the primary responsibility for making this reunification happen falls upon the leaders of the winning faction.

PSC has recently had an election. Barbara Bowen and her New Caucus slate won all of the seats. Perhaps it still is not too late for Barbara (or, if the Barbara personality is too strident, perhaps some other high ranking officer such as 1st VP Steve London) to reach out to the CUNY Alliance opposition, to put the differences behind (at least until the next election), and to lead the PSC to a better round of negotiations for the next contract.

But because I have not seen any such tendencies on the part of the New Caucus leadership, I voted against the proposed new contract.

Ratification ballots are due by 2 June 2006. We shall see what the result will be.

The Inadequate Agreement

The prior posting expressed concern that the Professional Staff Congress, the faculty union at the City University of New York (of which I am a very reluctant member) had apparently taken pains to delay availing to its membership an actual copy of the new negotiated contract (which must be ratified by the membership in order to be effective).

After nearly 3 weeks, PSC has finally posted the proposed agreement on its website. It is easy to see why PSC was in no apparent hurry to apprise its membership of the actual verbiage of what it negotiated. I have just read through it and my preliminary specific comments at this point (not that there won't be any more at a later point) are as follows:


A. It is not really a brand new contract in the same sense as a 2006 automobile just purchased from the dealer last week is brand new. Our "new contract," if ratified (I personally am inclined to vote "Nay"), would be a Memorandum of Agreement that modifies and continues to the extent not modified two Memoranda of Understanding (economic and non-economic); which, in turn, modify and continue, to the extent not modified, the old 1996 - 2000 Contract.


While legally speaking, a modified contract is just as effective and binding and kosher as a "brand new" contract, the universal practical experience has long been that a "brand new" contract with too many modifications can be a nightmare to administer and interpret, and is subject to more misunderstanding than a "brand new" contract just driven off the showroom floor.


B. Paragraph 15(a), which provides for the "Adjunct Professional Development Fund," establishes a scheme whereby the PSC and not CUNY makes the approve/reject decisions on applications from Adjunct faculty members for funding. This is a double-edged sword. The upside is obvious, but the downside is that PSC politics may yet play a significant role in the allocations from the Fund. Also, I just get this sense that CUNY is washing its hands of the Adjunct development issues. I like the prospect of Adjuncts being subsidized in their professional development, but I am very very wary over how this would work in practice, given the foregoing concerns.


C. Paragraph 15(e) reads: "Communication Resources for Adjuncts: On campuses where capacity exists, teaching adjunct instructional staff will be provided with a CUNY e-mail address. The colleges will use their best efforts to provide teaching adjunct instructional staff with voicemail and, where feasible, to include them in department directories."


What the paragraph DOES NOT require is that Adjuncts be given ACCESS to the computer system so that they can read their e-mail correspondence; all the colleges are required to do is assign a CUNY e-mail ADDRESS to each Adjunct. An e-mail address without meaningful access is totally useless. Yet, many Adjunct faculty members currently do not have any meaningful access to their campus's computer resources.


I am not very comfortable with this proposed agreement. As I said, I am inclined to vote against it.

The Elusive Agreement

Consistent with the expectations expressed in prior postings, the entries in this blog continue to be a bit fewer and far between than I would prefer, owing to the very robust schedule I have been keeping. This will likely continue for a while.

As alluded to in previous entries, one of the ongoing demands upon my time and energies is a part-time faculty position at a college of the City University of New York. In such capacity, for reasons explained in the posting of 18 December 2005, I am a (largely unhappy) member of the faculty union at CUNY, the Professional Staff Congress. And, just as the Transport Workers Union has yet to reach an agreement with the Metropolitan Transportation Authority, so, too, is the PSC now attempting to finalize an agreement with CUNY. A tentative agreement has been struck between PSC and CUNY, but it needs to be ratified by the rank & file union membership (my personal inclination is to vote against it).

It is Friday, 12 May 2006. Since 26 April, all we have had to go on is a statement from PSC President Barbara Bowen describing the PSC-CUNY agreement, assurances on the PSC website that "There will be ample opportunity for members to discuss the settlement at chapter meetings on campus throughout the month of May. Members will also receive the complete proposed contractual agreement and explanatory materials before being asked to vote on ratification. Ratification ballots will be mailed in May."


I have yet to receive any ink-on-paper copy of the proposed contract, and am unaware of any other PSC member who has. And, in this age of the Internet, there is no actual posting on the PSC website of the proposed contract. Only a lick and a promise from Barbara Bowen.

As I recall, the TWU website featured, linked directly to its homepage, an actual document of their proposed agreement with the MTA (never mind that it was shot down by a mere seven votes when it went out for the ratification).

One would think that 16 days after the agreement, the monks at the scriptorium should have had ample time to make a few copies. But all that we hear is that the American Arbitration Association will send out copies "in May." And, of more than a small amount of concern, the PSC website still does not show the actual agreement!

The following passage from a United States Supreme Court opinion seems very relevant:

"Honesty of purpose prompts frankness of statement. Concealment is indicative of fraud."

--- Crosby v. Buchanan, 90 U.S. 420, 457 (1874).

I cannot help but harbor growing suspicions if the PSC continues to conceal The Elusive Agreement. These suspicions are nurtured by several 2nd and 3rd hand accounts that have been circulating of late, including some internet postings not only by individuals and organizations inherently hostile to Barbara Bowen's New Caucus slate (including here and here), but also from the blog of fellow CUNY faculty member Bill Ferns, who candidly admits his empathetic tendencies towards Barbara and the New Caucasians. [BTW, Bill's blog, The Ivory Soapbox, features a good analysis of the current standoff between PSC and CUNY, and is recommended accordingly, notwithstanding his political orientation that diverges from my own.]


All of this palabra from PSC and from the Chancellor is all well and good and interesting, but I am a lawyer, I am a former Department of Defense Contracting Officer, and I am a former IRS agent. I want to see the actual document!

Howcum it still has not been posted up on the PSC website?