Delays in providing bargaining unit list

One delay has to do with a list of all faculty members MSU considers part of the bargaining unit, which the Michigan Education Association — a statewide union of which UTSF is a local affiliate — claims they requested on behalf of UTSF in late November. 

NiCole Buchanan, a member of the union’s organizing committee, claims UTSF’s attorneys corresponded with MSU’s attorneys about "going forward" with providing the list on two occasions over the phone in late November, but stopped hearing back on the matter shortly after. 

"They stopped returning calls, we heard nothing and they never produced the list," Buchanan said.

Capalene Howse, a lead organizer with the Michigan Education Association, said she was "in receipt of" November communications between UTSF and MEA's attorneys regarding a request for the list. She could not confirm if a formal request for the list was made, which the university would have been legally bound to provide. 

A university spokesperson did not confirm whether MSU was legally bound to provide the list in November. It is unclear if a board resolution that says the university can not provide any "information regarding unionization except that required by law," restricted MSU from providing the list.  

Howse said she suspects the university was only required to provide the list once the UTSF declared it had the majority of authorization cards signed to be eligible for formal recognition by MSU, which happened on Dec. 26. 

That same day, the union also filed a separate petition with the Michigan Employment Relations Commission, or MERC, a state government organization that resolves labor-related issues and can formally recognize unions. 

The State News obtained an email between MSU’s attorneys and MERC dated Dec. 29, in which MSU’s attorneys acknowledged a request for the bargaining unit list and requested an extension to provide it. In that request for more time, MSU’s attorneys cited a "large number of employees at issue" and the fact that the university offices were closed for winter break at the time the petition was filed. 

Buchanan said MSU's attorneys made this request without "acknowledging that the initial request for this list was made all the way back (in November)." She said she found it "strange" it was taking that long for the university to provide the list. 

But Visiting Fellow at the Yale University School of Management, Daniel Julius, who researches collective bargaining in higher education, said delays in providing a list of this nature for a university "the size and complexity of MSU" are normal.

"What the university wants to do is make sure they’re accurate," Julius said. "(That) requires a great deal of detail and oversight." 

In a Dec. 28 report, Buchanan told The State News that MERC would be there "as a failsafe" in case MSU’s board stalls or fails to recognize the union. In order for MERC to recognize the union, it would need to determine at least 30% of the proposed bargaining unit to be in support of the union, at which point MERC would administer an election. 

The other purpose of filing with MERC, Buchanan said, is so the commission could verify how many tenure stream faculty signed the authorization cards in their recognition process, which Buchanan said is convenient because UTSF and MSU would need a mutually-approved third party to verify their counts if MSU decides to voluntarily accept the bargaining unit. 

Beyond the request for an extension to provide the bargaining unit list, MSU's attorneys also requested that the case management conference scheduled for Jan. 11 be rescheduled for a "mutually agreeable time on January 22, 23, or 24." The case management conference with UTSF, MERC and MSU was moved to Jan. 22, Buchanan said, but has since been postponed. 

According to Howse, UTSF and MEA are, however, scheduled to meet with MSU’s human resources department on Jan. 25 to "discuss voluntary recognition and bargaining unit composition." Howse said she is "hopeful" the university will voluntarily recognize UTSF as the collective bargaining agent on that day. 

Julius described MSU’s policy governing unionization — which allows the board to voluntarily recognize the union without a vote being held — as "highly unusual."

"I can assure you, it is not this way at many universities," Julius said. 

Julius said rather than the university voluntarily recognizing the union, he believes the faculty should be voting on the issue, meaning MERC would administer an election. He said unionization has existed in higher education for over 50 years, so there is precedent for that process. 

"Rather than recreate the wheel, look at what’s happening in other places," Julius said. 

Julius noted that faculty at smaller universities in Michigan such as Central Michigan University and Western Michigan University have been unionized for decades and used an election process. 

Concerns over potential contents of bargaining unit list

Beyond the delays, union organizers have also expressed concerns over the potential contents of the bargaining unit list that MSU provides. 

Buchanan said UTSF is concerned MSU may try to exclude tenured professors from the list who also have administrative appointments, such as department chairs.

"If people have administrative appointments, but they don't have supervisory obligations, they should still be included in our unit," Buchanan said. "So those are the things that we'll be watching for."

UTSF organizer Rob Maleczka expressed concern that MSU may be overly inclusive in the list by including executive administrators like the president and provost. 

“The president, the provost, they're tenured faculty also,” Maleczka said in an interview with The State News on Jan. 5. “We would not expect them to be in the list, because executive management would be different than the tenure system faculty who are going to be part of the bargaining unit.” 

According to MSU’s ordinance governing unionization “The University will accept the bargaining unit proposed by the union as long as the proposed unit is reasonable.” 

Additionally, it says that representatives of the union and the university will “work to reach agreement on disputed issues” if the university asks for changes in the unit. It also allows for either party to, at any time, opt for a mutually-approved arbitrator to make a ruling on if the proposed bargaining unit is reasonable under the Public Employment Relations Act. 

The university and the union will be discussing “bargaining unit composition” at the Jan. 25 meeting, Howse said. 

Profile of law firm representing MSU

Buchanan expressed concerns over the profile of the law firm representing MSU in the case on the law firm’s website. The firm, Ogletree Deakins, says it represents “employers of all sizes and across many industries, from small business to Fortune 500 companies.” 

The issue for Buchanan is a section of the website that notes that the law firm has more than 200 attorneys specializing in higher education who provide “highly responsive legal services” in the area of “union avoidance,” among other areas. 

“If MSU, as their client, says we expect you to go forward in a cooperative manner, then, you know, that doesn't matter,” Buchanan said. “But it was concerning to see that that was one of the things on their website.”

Furthermore, the profile of one of the specific attorneys representing MSU in the case, Christopher Makula, states that he “specializes in providing preventative legal advice to help companies develop positive labor-relations strategies and avoid litigation and labor organizing.” 

According to the profile, Makula previously worked as the Legal Director for the Service Employees International Union Healthcare Michigan in Detroit, Michigan. The profile also notes that Makula “has significant experience representing management in collective bargaining negotiations and in representing companies in labor arbitration and employment arbitration matters.

The profile of the law firm and lawyer representing MSU did not raise concerns about MSU's integrity in the negotiations for Julius. 

“A lot of attorneys may have experience in other organizations where they did take a union avoidance approach,” Julius said. “But that doesn’t mean they are doing that here.” 

Makula did not respond to requests for comment on the nature of his work representing MSU in the union negotiations. 

MSU spokesperson Emily Guerrant declined to comment on the nature of Makula’s work with MSU or his profile, but affirmed the university’s commitment to working with the faculty.

“The university feels confident in the vendor that they have selected,” Guerrant told The State News on Jan. 18. “We are following the neutrality agreements that the board set forward and we're continuing to work with our faculty through this process.” 

The neutrality agreement

The neutrality agreement is one element of the 2021 board resolution that passed along party lines. It requires that, among other things, “The University (including all supervisors) will not issue any opinions about unionizing, either for or against,” according to MSU’s human resources website. 

The resolution passed with a 5-3 vote, with all three Republicans on the board at the time voting against it. Republican trustees told the Lansing State Journal at the time that the administration would be “muzzled” by the resolution because it banned expressing opinions — either for or against the unionization efforts — to the faculty. 

Despite Buchanan’s concerns with the ongoing negotiations, she is hopeful that the union will be formally recognized. She says the union met with trustee Dennis Denno on Tuesday to “give him more information and context on our desire to unionize.” 

“It was informal, and it was him as an individual, not the full Board of Trustees,” Buchanan said. “But he very much seems to be a supporter of our efforts and the good we're trying to do at the university.”