ENFORCING THE CONTRACT

Regular pay for flex days: Defending part-time faculty rights

by Monica Malamud, AFT 1493 Negotiating Team Member

After extended communications between the AFT and District administrators– including a Demand Letter from the Union’s attorney to the District–the District finally agreed, on October 2, to restore paying part-time faculty who are eligible for flex pay according to our contract regular pay for flex activities. This will rectify the District’s unilateral decision to pay part-time faculty at the lower special rate, which was unilaterally announced by Eugene Whitlock (Vice Chancellor, Human Resources and General Counsel) in early August, but which contradicted the AFT contract.

On August 6, 2015, a week before Opening Day, which marks the beginning of the Academic Calendar, Vice Chancellor Whitlock sent an email to all adjunct faculty informing them that “the District has undertaken the task of clarifying how all part time faculty are compensated for participating in Opening Day and FlexDay activities.” 1  In the same email message, he wrote that “any part time faculty member can participate in flex activities and […] be compensated at the special rate. As it concerns ‘flexible flex’, the only thing to clarify is that the limit of flexible/alternative hours that can be claimed is capped at the total hours of flex activities that were offered on your campus.”1

It was already clear
The reality is there is nothing that needs clarification, since our Collective Bargaining Agreement, a.k.a. the AFT contract, already clearly states the rate of pay and the cap on the number of hours that part-time (PT) faculty members can claim for flex activities.

According to article 7.11.2 of our contract, “Part-time faculty members shall participate in flex activities as part of their basic assignments if the flex day falls on a scheduled workday.  For example, if a part-time faculty member normally holds a class on a Monday and that day is a scheduled flex day and thus his/her normally scheduled class(es) is/are not held, the part-time faculty member who participates in the College flex activities shall receive regular pay for the normal student contact hours that would have been worked that day.  Those part-time faculty members identified above can elect to participate in a college-approved flex activity on an alternative day other than the College-designated flex day, show written verification of the activity, and receive regular pay for up to the normal student contact hours that the part-time faculty member is scheduled to teach on that day of the week.”2

How does Mr. Whitlock’s “clarification” differ from the AFT Contract?
1.    Pay rate:
– According to the contract, it is regular pay, which means lecture or lab rate, depending on what each PT faculty member would normally teach on a day of the week that is designated as a flex day.
– According to Mr. Whitlock, the pay would be at special rate, which is exactly the opposite of regular pay, and a lower rate.
2.    The cap on the number of hours that can be claimed as flex:
– According to the contract, each semester, a PT faculty member may claim for flex up to the sum of hours that he or she is normally scheduled to teach on all the days that are designated as flex in that semester.
– According to Mr. Whitlock, the cap would be the number of hours that a campus schedules flex activities on a given flex day.
3.    Who qualifies for flex pay:
– According to the contract, part-time faculty who would normally be teaching on a given day of the week, but cannot teach because a day in the academic calendar has been designated as a flex day.
– According to Mr. Whitlock, any faculty who attends an activity on a flex day.
Regarding the third point while the union believes that all faculty should be paid for participating in these and many other worthwhile activities in our District, our current contract language does not include a provision for paying PT faculty for attending flex day activities if they do not otherwise qualify for flex pay as explained in (2) above.

A little history
The AFT contract has had language regarding pay to PT faculty for flex activities for over ten years.  Article 7.11 appears in every AFT contract since the 2004.  Over the years, the application of this contract language has remained the same, with the pay rate and the cap on the number of hours as explained above.

In the spring semester 2009, the first time that our Academic Calendar had a flex day in the middle of the semester, there were email exchanges between Harry Joel (then Vice Chancellor of Human Resources) and Monica Malamud (then AFT 1493 President), which resulted in explanations of article 7.11.2 that they crafted collaboratively, and which they sent to the three college presidents and to all faculty respectively.  These communications served as the basis for the current version of Article 7.11.2.

The current version of Article 7.11.2 of the AFT contract was negotiated as a District proposal to the AFT, which was signed into a Memorandum of Understanding (MOU) on April 29, 2013 and, during subsequent negotiations was incorporated into the contract, which was ratified by faculty and approved by the Board of Trustees on October 9, 2013.

In summary, the contract language has been in effect for over a decade, and it was relatively recently (2013) rewritten to reflect even more clearly the established practice in our District with respect to pay to part-timers for flex activities.

District attempts to unilaterally change contract
Despite clear contract language, which has been unambiguously applied for over a decade, the email sent on August 6, 2015 by Eugene Whitlock re-interpreted article 7.11.2 in a new way, claiming that what article 7.11.2 actually says “makes no sense” and causes “confusion.” 3

AFT President Teeka James and Eugene Whitlock exchanged several emails in August.  When it became obvious that it would be better to deal with this issue in person, a meeting was arranged for August 31st.  Eugene Whitlock attended this meeting for the District, and AFT 1493 was represented by Teeka James (President), Joaquin Rivera (Chief Negotiator and co-Vice President), Monica Malamud (Negotiating Team Member, past President 2008-2012) and Dan Kaplan (Executive Secretary).  At the conclusion of the meeting, the two parties were still discussing the “interpretation” of the contract, although it was understood that the District would maintain the status quo and the parties could revisit the issue in future negotiations.

The day after this meeting, September 1st, a PT faculty member who had been paid for flex activities at the regular rate repeatedly over the years, brought to the union’s attention that in the time-sheets for flex days at the beginning of this semester, the rate listed was special rate instead.

This constituted a unilateral change imposed by the District, which is illegal.  If the District wants to change contractual language, this must be done in negotiations.  Negotiations had just concluded, and they did not include any changes to flex pay for PT faculty.

Interestingly, in an email just two days after the August 31st meeting, Mr. Whitlock referred to the position advocated by the union as the “ ‘old way’ of interpreting the contract”, which seems to constitute an acknowledgement of the fact that the District’s interpretation was “new”!4

AFT 1493 ready to file Unfair Labor Practice
On September 10, Kathy Blackwood (Executive Vice Chancellor) wrote:  “I spoke with the Board yesterday evening about the flex time issue.  The Board does not agree with your interpretation of the MOU language, but has directed us to negotiate it with you. As such, it seems like a good time to start negotiations for the next contract as well.” 5  Joaquin Rivera reminded District administrators that we are not ready to start negotiations on the full contract yet.  And actually, before the whole contract is open for negotiations, we are to negotiate 2016 medical caps for full-time faculty plus two union re-openers.

The AFT 1493 Executive Committee (EC) discussed the developments with the District regarding part-time pay for flex activities, the District’s insistence on changing the “interpretation” of contract language (when there is no room for interpretation), and the District’s unilateral change in the way it intended to pay part-timers for flex activities and decided to consult with our attorney, Bob Bezemek, about filing an Unfair Labor Practice (ULP) charge with PERB (Public Employment Relations Board).

Upon learning about the issue and collecting supporting documentation, Mr. Bezemek sent an 11-page Demand Letter to the District concerning its ULP, on behalf of the Union.  The letter summarized the evidence supporting the union’s position, the long-standing past practice, the unlawful nature of the unilateral change that the District was trying to impose, and the events and communications that took place in August and early September.  It stated that although much of the unilateral change would result in lost wages for PT faculty, the promise to pay any part-timer who attended flex activities would constitute a gain for some, and should be kept.  In its final paragraph, the letter asserted that AFT 1493 would file a ULP with PERB if the district did not restore the status quo with respect to wages, terms and conditions of flex for PT faculty.

Resolved: The Union prevails!
On October 2nd, Eugene Whitlock responded to the Union on behalf of the District, stating that: “The District will adjust the pay for those part time faculty members who have a class on the same day of the week as FlexDay, so that if they received compensation at the special rate for their participation in FlexDay activities, the adjustment will take them up [to] the regular rate.”5  By doing so, the District is following contractual language and established practice.  Adjuncts who are owed a difference will receive it with their October pay.

“For other adjuncts who participated in FlexDay activities, there will not be any change to the compensation that they have received.” 5  Here the District follows through in its promise to pay part-timers for their attendance on the August flex days, as communicated in [1].

“The District will adopt the practice advocated by the AFT” regarding flex pay for PT faculty. 5  The District has also stated that they disagree as to the meaning of the contract language.  This issue, as well as others, can be brought up in negotiations, but, as with anything else, any changes to the contract must be agreed to by both parties.

If any part-time faculty member has questions about how they have been compensated for participating in FlexDay activities, they should contact AFT 1493 Executive Secretary Dan Kaplan at Kaplan@aft493.org or x6649.

References:
1. Email with subject “FlexDay Compensation for Part Time Faculty” from Eugene Whitlock to Adjunct Faculty, August 6, 2015, 4:12 p.m.
2. Article 7.11.2, Agreement between the Board of Trustees of the San Mateo County Community College District and San Mateo Community College Federation of Teachers Local 1493, AFT, AFL-CIO.
3. Email with subject “FlexDay Compensation for Part Time Faculty” from Eugene Whitlock to Teeka James and Diana Bennet, July 30, 2015, 2:46 p.m.
4. Email with subject “Part time Flex Day issues” from Eugene Whitlock to Joaquin Rivera, September 2, 2015, 1:10 p.m.
5. Email with subject “Demand Letter concerning District’s Unfair Labor Practice” from Eugene Whitlock to Alex Iova (Legal Assistant, Law Offices of Robert Bezemek), October 2, 2015, 8:52 a.m.