For the last seven months Mercer’s faculty union and the college’s administrators have been locked in a heated negotiation over the contract. Along the way there have been protests, firings, hirings, bickering and collateral damage.
When the Board of Trustees finally voted to approve the new contract on February 27, the faculty seemed to release not so much a sigh of relief as of general fatigue.
A tenure track professor, we’ll call him ProfessorLamb, who asked to remain anonymous for fear of job reprisals (as did all the untenured professors interviewed for this article) told The VOICE: “I will certainly continue to develop loyalty to my students and my colleagues, but it will be difficult to develop loyalty to the college and its administration given that they have shown they are willing to use my career as a pawn or a message to be sent to others.”
What Professor Lamb is referring to is perhaps the most controversial aspect of what occurred during the contract negotiations, the firing –or non-renewal of contract, depending on who you ask– and rehiring, or “reinstatement,” of four faculty members who were about to receive tenure this year. From the tone of communications between the administration and the union, it appeared that further pink slips might be looming.
It was in the wake of this event that a contract was eventually hashed out.
THE DISPUTE
To understand what lead up to the firing/non-renewal it is necessary to go back to June 30, 2013 when the faculty’s three year contract expired.
The most recent contract, which governs everything from pay to course loads, maternity leave to promotion criteria, had been brokered by math Professor Art Schwartz, who has taught at Mercer for 45 years and has lead the faculty contract negotiations for decades.
A new lead negotiator, also a math professor, Don Reichman represented the faculty during the early months.
As is customary, the faculty continued to work under the conditions of the previous contract while Reichman took key points of concern to the negotiating table.
According to Reichman, the primary obstacle in early negotiations was financial compensation, which was further complicated by the passage of New Jersey law chapter 78, P.L. 2011, a controversial health care bill. Signed into law by Governor Chris Christie on June 28, 2011, the law requires faculty at state institutions to pay at a minimum 1.5 percent of their base salary into a health care plan, and that number will increase to a minimum of 6 percent over a span of four years.
SUMMER INTO FALL
Months of negotiation failed to bring about an agreement.
In a November 12 interview with the VOICE, Reichman said that the contract negotiations had reached an impasse and a third party mediator had been assigned.
According to Schwartz: “They only met I think once [with the mediator] which is very unusual. Normally they meet more than once, but evidently they only met once because… based off the feeling that they got off the mediator with regard to the other side, there wasn’t going to be any movement.”
Schwartz indicated the broad consensus was that the mediator’s proposed contract would never pass a union vote. Indeed at the end of the fall semester, the faculty association (FA) rejected the mediator’s proposal by a count of 97-4.
Schwartz told The VOICE in an interview on January 30: “The faculty was not willing to take a lower raise because of the increase in payments to the health care plan [due to chapter 78, P.L. 2011]. If the raise isn’t high enough, faculty –especially those with children, spouses and dependents– will actually be taking a pay cut…”
FACULTY TAKE ACTION / INACTION
With negotiations stalled out and the mediation unsuccessful, the faculty association voted to perform a job action, which went into effect at the end of September.
The job action took the form of faculty opting out of what they believe the contract identifies as voluntary, non-compensated tasks, such as serving on various committees.
The faculty was adamant that the action not include any reduction in work where students were concerned. In a statement to the VOICE, the faculty association’s NJEA representative Christopher Berzinski said: “The faculty’s refusal to perform voluntary, non-contractually required duties, was carefully crafted to have no impact on students.”
Posters appeared on faculty office doors saying “No contract but still working.” There was no strike, no reduction in office hours.
In a recent interview with the VOICE, Mercer’s President Dr. Patricia Donohue said “I was concerned because of the job action, about the work that was not getting done here. Service to students, curriculum development, planning for the college, our accreditation process. Those things were all being ignored in order to make their job action.”
LEGAL QUESTIONS
The legality or illegality of the job action is a matter of some dispute, and as the events that followed clearly grew out of it, it deserves closer examination.
Labor attorney Joseph S. Fine, of counsel to the Nutley firm Livingston, DiMarzio and Baptista, has been representing union employees for over 25 years including area colleges Rutgers, Columbia, and FDU.
Fine told The VOICE: “In many cases where employees don’t have the legal ability to strike they try everything short of striking to get their point across. In terms of legality, it’s a dicey proposition.”
From the faculty perspective, Professor Schwartz told The VOICE it is not unusual for the amount of committee work to fluctuate. “[The contract] doesn’t require you to be on a particular committee, it doesn’t even require that you must be on a committee for each and every semester.”
Faculty members interviewed for this article cited specific portions of Article IV of the contract as their rationale for the action. That section reads:
Article IV Section C. Subsection 1, item c. “other contributions”
1. Participating in College governance and operations through divisional or committee work, and the like;
2. Advising extra-curricular student groups or activities;
3. Representing the College in professional or community activities, student recruiting, and the like;
4. Otherwise voluntarily contributing to the College or the community as an identified member of the College Faculty;
5. Developing individual ability for successful performanceArticle IV Section A. Subsection 1
“The Board does not expect each faculty member to perform every function every year.”
According to Professor Robert Terrano the NJEA “very clearly” informed the faculty that they were not in violation of their contract.
As the fall semester continued, the faculty decided to take more substantial action.
FACULTY PROTEST AT ANNUAL GALA
The Board of Trustees held their annual “Spring into Success” Open House gala at the Conference Center on November 14, 2013.
As previously reported by the VOICE, the event, set up for the community, is a prelude to the major board meeting where President Donohue gives her annual report to the trustees.
The gala usually includes food stations, ice sculptures, and faculty greeting attendees at information tables at the event. Instead, this year the faculty left the tables empty and instead organized a protest.
Standing outside the Conference Center in the cold evening air, the faculty took up positions on either side of the walkway where people entered the gala. They held up signs reading “No contract but still working” and “Settle now!” and handed out fliers describing their side of the negotiations conflict.
As the sun set, faculty moved around to the windows of the conference center, pressing their protest signs up against the glass for the attendees to see.
The responses of those in attendance ran the gamut from surprised to contemplative.
Mercer County Freeholder John Cimino’s reaction to the protest was one of surprise, saying “You know very honestly I don’t know much about this. When I showed up tonight and saw the picket line, I didn’t know there was this level of impasse.”
Vice President for College Advancement Ed Gwazda told The VOICE: “The college, as an educational institution, supports the freedom of assembly and freedom of free speech. So we see the faculty action today as an extension of their position in their negotiations and we support the principles of the freedom of assembly and free speech.”
As the sun set and temperature dipped, the faculty protest dispersed while the gala continued inside.
A BAD BREAK
The faculty headed into the winter break still without a contract. In the middle of the break, Professor Reichman sent an email to all the full time faculty announcing he was stepping down as chief negotiator and Professor Schwartz took up the familiar position.
Two weeks before faculty were set to return to campus for pre-class week, on January 6, 2014, President Donohue sent termination letters to four professors who were on the verge of receiving tenure. Their tenure was to have been voted on at the board of trustees January meeting.
Instead Professor of Criminal Justice and former Plainsboro Police Chief Elizabeth Bondurant, Professor of Spanish and Coordinator of Foreign Languages Daniel D’Arpa, Professor of Physical Therapy Holly Beinert, and Coordinator of Engineering Science and Professor of Civil Engineering Technology Jim Maccariella were thanked for their service to the college, wished well in the future and told they would no longer have a job effective June 30, 2014.
President Donohue followed up the first round of letters with another the next day, sent to Faculty Association President Robert Pugh and then cced to all full-time faculty.
The second letter, read, in part: “The BOT is on record stating that the faculty members are not fulfilling the roles and responsibilities of the position as defined in the agreement between the FA and the BOT. As faculty members are not fulfilling all the duties of their positions, it is not reasonable or possible to expect the satisfactory performance appraisals requisite for reappointment and promotion.”
(Article cont. after letters)
The four faculty members who were not being rehired all had stellar reputations and had completed the steps necessary to receive tenure, including being evaluated by senior faculty multiple times a year for five years, being recommended for rehire every year during that time, and making significant contributions to the college.
Professor Lamb said of the situation: “I have heard it said that ‘it isn’t personal,’ but in fact not considering me as a person is as personal as it could get.”
Based on the letters sent by Donohue, the connection between the job action and not rehiring the tenurable faculty seems clear.
However, in a February 28 interview with The VOICE, President Donohue said: “I need to be sure you understand the issue about re-appointments was not because we were in negotiations. It was because the faculty declared a job action which is a violation of their contract.” Regardless of the stated intent of the letters, faculty interviewed by the VOICE believed the letters to be a clear attempt to strong arm the FA into a contract settlement.
FACULTY RESPONSE TO LOSING FOUR OF THEIR OWN
The faculty returned to campus worried that more firings would soon follow. Another group of appointment (or non reappointment) letters –for those professors who were not yet in their fifth year of teaching– was scheduled to go out in mid February following that month’s board meeting.
If those re-appointments were rescinded, the faculty stood to lose 14 more members, including many who are the sole coordinators of key programs such as Fashion and Game Design.
A tenure track professor who was among those in fear of being fired, when asked how she would respond to such an event said: “I love the program that I’m in and I see infinite potential here to grow… I would hate to be taken away from the students that I’m working with, because I love them. I think they’re awesome and I get blown away by how talented and special the students are. So it would be really heartbreaking.”
At their first meeting of the semester, the union heard from their NJEA representative Berzinski who told that the faculty that what they had done was not illegal but that the college’s response was illegal. He outlined the ways in which the union believed the college’s actions were illegal.
Based on the legal advice given by the NJEA, Professor Pugh sent a response to Donohue that also went out to the rest of the faculty. He said the administration’s action constituted an Unfair Labor Practice that sought “to create a ‘chilling effect’ on the exercise by faculty members of their First Amendment rights” under the US and NJ Constitution’s, respectively.
Pugh continued in the letter saying the faculty was: “Outraged that the administration has chosen to attempt to intimidate and bully faculty members who have chosen not to perform voluntary tasks that are both uncompensated and not contractually required.”
The administration did not offer a formal reply and the FA did not, apparently, move to sue the college. Instead, negotiations started again with Pugh and Schwartz continuing to broker a deal. Word was given to the faculty that they should attend the start of semester all school assembly, though there had been a discussion of not attending. Faculty did so.
Asked again later –after negotiations had concluded– whether or not she felt the non rehiring letters sent to the faculty members would impact the morale of the faculty, President Donohue said: “I don’t know. Are you going to ask me if I’m concerned about people perceiving an illegal job action to be a problem? It’s over now so its hypothetical now.”
THE FINAL CONTRACT
At the end of February Schwartz and Pugh brought a new contract to the faculty for their approval.
The new contract, which included reappointment of the faculty who had been let go, which gives faculty a 2 percent increase for two years and is retroactive to last June, also includes a much lower rate of increase in promotional pay for those yet to be promoted.
When asked how he felt about the contract, Schwartz explained that the salary raise of 2 percent “just barely” offset the new health care costs. “Paying into the health benefits, the minimum it will cost a faculty member is 1.5 percent of their salary. It’s almost a wash… So when you look at everything, you’re pretty much looking at we held ground, for this year and for the next year.”
As the lead negotiator for the FA, Schwartz characterized the newly ratified contract as: “Something that we can both live with. Obviously, we think we should have gotten considerably better. They probably felt they gave away more than they should have or could have. That’s the way it is. It’s like a divorce, neither side is going to walk out happy.”
A BRAIN DRAIN?
Indeed, like a divorce, a number of faculty members, both full and part time, have told The VOICE in recent interviews that they would leave Mercer if an opportunity arose. They described the atmosphere at the college as “toxic,” “disheartening,” “awful,” and “miserable,” among other words.
The unprecedented actions and treatment of the faculty by the trustees and administration have had clear residual effects.
Professor Pugh who has served Mercer for more than 40 years said: “Morale is the lowest it’s ever been, at this point.”
Pugh says Mercer has already lost faculty: “It’s kind of like a brain drain here at Mercer. Some of our really bright, smart people are leaving because… the work environment itself is not really conducive to people being real happy. I think they’ve taken that away from us.”
Professor Haywood noticed the “brain drain” as well. In a recent interview with the VOICE he said, “We have a lot of the tenured people who have left, not because they aged out so much as they just didn’t feel it was worth their while to stay here, given what they perceive to be poor leadership.”
During the course of the VOICE’s reporting allusions were frequently made to faculty members actively seeking work elsewhere. At least five faculty members will retire at the end of this year. A substantial reduction in the faculty size will have effects that ripple through the student body as they look for advisement, academic support and vocational direction going forward.
