Contract Enforcement

Grievances:

Enforcement of the Day and DGCE collective bargaining agreements is as important as their negotiation. If you have questions or concerned about a possible violation, please contact the grievance officer at your university or the MSCA President’s office.

Grievance Basics for Members (August 2019)

Flow chart and deadlines for “Day” grievance process

Flow chart and deadlines for DGCE grievance process

Higher Equivalency Credits for the Day Contract:

A consolidated grievance was filed on the presidents’ refusal to implement the higher equivalency rates in the new day contract retroactive to the Fall 2018 semester.

President McDonald ruled that the grievance is premature, that there is no violation, that there is no evidence that any university is not using the new equivalencies (except at Mass Maritime) and ignores the union’s issue, that even if this is an incremental cost item, it should be implemented retroactive to July 1, 2018.

All other cost items (salary increases, promotion increases, terminal degree adjustments, department chair increases) will be retroactive… or will they?

As a result, the union immediately filed for arbitration and the MSCA Board of Directors has authorized a return to Work to Rule.

Unpaid Leaves of Absence for Full-time Faculty:

Faculty work from September 1st through May 31st (except at Mass Maritime), but are paid over twelve months, which means that days while out on an unpaid leave of absence cost more than a day’s pay. See this Memorandum of Understanding on how the cost of an unpaid leave of absence should be computed.

15% Limitation on the Teaching of Certain Courses:

The MSCA has reached an agreement with the Board of Higher Education regarding their appeal of the Commonwealth Employee Relations Board’s ruling that the state universities had repudiated the 15% Rule. The BHE will not pursue its order to stay the CERB’s decision and the MSCA will not insist on immediate compliance. The state universities will make good faith efforts to become compliant by the 2017-2018 academic year.

Background:
In December 1986 day part-time faculty (teaching in their third or more consecutive semester) were added to the MSCA day bargaining unit. In April 1987 the MSCA and the Massachusetts Board of Regents (now the Board of Higher Education) executed the first collective bargaining agreement that included part-time faculty. That collective bargaining agreement contained a provision (now Article XX, Section C(10)) that limited the number of three-credit courses that part-time faculty could teach to 15% (20% at MassArt). The provision allows a number of exceptions to the provision.

Despite inclusion in every collective bargaining agreement since 1987, the college, now universities, have been violating that provision since at least 2000 when the MSCA did an audit of the institutions.

You can view the timeline of actions that led up to Massachusetts Department of Labor Relations (DLR) ruling that universities must abide by that provision.

Below is the history since the DLR’s original ruling in January 2014.

DLR and Court actions:

Supreme Judicial Court took up the case and heard oral arguments on February 7, 2019. On October 7, 2019 the SJC ruled in favor of the MSCA.

MTA filed an intervenor brief to assist the Commonwealth Employee Relations Board wit the case. Watch the hearing.

Appeals Court Denies BHE’s/Presidents’ Stay Request

MSCA Opposition to Motion to Stay Enforcement

MSCA Motion to Intervene

Memo in Support of MSCA Opposition to Stay

CERB Response to Stay Motion

SUP-08-5396 CERB Decision Issued

15% DLR Hearing Officer Decision

University-reported Data on Violations:

Bridgewater Violations

Fitchburg Violations

Framingham Violations

MassArt Violations

MCLA Violations

Mass Maritime Violations

Salem Violations

Westfield Violations

Worcester Violations

Excess Workload Credits:

In 2005 the MSCA filed a consolidated grievance regarding the large number of full-time faculty who had “excess workload credits” (having taught on average the equivalent of more than 12 semester hours of credit of instruction each semester).

On December 16, 2005 Chair of the State College Council of Presidents, Dana Mohler-Faria, ruled that the colleges had to begin to reduce the excess workload credits. See the ruling here.

Labor Arbitration Institute: Short Briefing on Marijuana

At the May 2017 conference in Boston, a well-known labor arbitrator gave a lecture on marijuana. For brevity and in light of the holiday weekend, here are some notable excerpts.

There are 28 states and the District of Columbia which permit the legal use of marijuana for medical purposes. Eight states plus the District permit the possession of small amounts of marijuana (usually one ounce) for recreational purposes. (In Maine, it’s 2.5 ounces.) It should be very clear that nowhere is it legal to possess, ingest or smoke marijuana at work, or to be incapacitated at work from having previously ingested or smoked marijuana (or from the use of any other drug).
Laws vary from state to state, but under some of the most permissive medical or recreational marijuana laws, employers are permitted to terminate an employee and the marijuana law does not prevent such.
Even in Colorado, if you are subject to random drug testing at work and you ingest or smoke marijuana you better hope that you are not randomly selected thereafter.
The arbitrator believes the following regarding where arbitration is going in the drug-testing world. First, assuming there are no outside factors suggesting drug use on-the-job, such as any signs of impairment on the job or the physical presence of marijuana on the employee, and the employee has a basically good employment record, and the drug test is close to the cut-off point, the arbitrator believes it would be possible for an arbitrator to reinstate an employee with a positive test for marijuana, subject to completion of a drug treatment program and subject to random testing going forward. The arbitrator believes it will take a few years before this prediction has any validity, but it serves today as a basis for a union and company to resolve these cases.
Second, if you are in a state with a medical marijuana law, there is no prescribed way to handle a case. The statute must be considered in the context of the collective bargaining agreement. Thus, advocates will have to carefully examine the marijuana protection statutes and apply them to the parties’ actions under the collective bargaining agreement.