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| Assembly Government Affairs Committee Reviewing AB224 |
When AB224, the Collective Bargaining for NSHE Professional Employees bill, was introduced in the state legislature in February, the Nevada System of Higher Education officially adopted a neutral position. Subsequently, however, NSHE submitted a fiscal note, which is a document that estimates additional costs associated with a bill, that is anything but neutral.
Among the exaggerated claims made by NSHE in its fiscal note is speculation that establishing collective bargaining rights in state law will result in an instantaneous burst of more than a dozen new bargaining units. While NFA would be elated if that were true, we know it’s not. New bargaining units will emerge over a period of years, not weeks or months. Worse still is the assertion that collective bargaining will lead to a virtual explosion of grievances every year that will require binding arbitration. According to the fiscal note, "NSHE estimates twenty-five (25) to one-hundred (100) grievance instances per institution per year, which will require significant employee time to be spent on investigations, research, negotiation, and early resolution of grievances resolved prior to arbitration NSHE conservatively anticipates anywhere from twenty-five (25) to fifty (50) grievance instances statewide annually that could require arbitration for resolution." It's unclear how they arrived at these estimates, and our requests for clarification have gone unanswered.
Although not recognized under state law, TMCC has had collective bargaining under BOR policy for three decades. As such, it provides a good case study to realistically predict the quantity and sources of grievances that may be expected if collective bargaining were adopted across the system. TMCC-NFA submitted a request under the Freedom of Information Act seeking to determine how many grievances were filed per year for the previous five academic years, the ranks of the individuals filing each grievance, the ultimate outcome, etc. TMCC's response was disappointing at best. Judge for yourself:
- 2017 TMCC Grievance Report
- 2018 TMCC Grievance Report
- 2019 TMCC Grievance Report
- 2020 TMCC Grievance Report
- 2021 TMCC Grievance Report
- 2022 TMCC Grievance Report
With such little information provided by the college, we are forced to do whatever analysis we can with our own records. The table below shows the number of grievances filed in each year according to the TMCC response. Researching our own records where NFA provided support to an individual in a grievance process, as well as first-hand knowledge, we were able to breakdown how many grievances we know about that were filed by faculty members and administrators. The table below shows the results.
| Year | No. of Grievances | Filed by Faculty | Filed by Administrator | Unknown |
|---|---|---|---|---|
| 2017 | 8 | 4 | 4 | |
| 2018 | 8 | 3 | 5 | |
| 2019 | 3 | 0 | 3 | |
| 2020 | 6 | 4 | 1 | 1 |
| 2021 | 4 | 1 | 1 | 0 |
| 2022 | 2 | 1 | 0 | |
| Totals | 28 | 13 | 2 | 13 |
Even with such imperfect information, we can still draw some solid conclusions. The collective bargaining environment at TMCC did not result in 25-100 grievances per year. In fact, when you look at the number of grievances that we know were filed by members of the collective bargaining unit, it averages out to a little more than two grievances per year and accounts for less than half of the total number of grievances filed in the same time period. It's possible that some of the unknown grievances were filed by faculty without TMCC-NFA's knowledge, but it's just as likely that most of these were filed either by classified employees or administrators and executives.
It's also notable that the number of grievances filed by faculty in recent years have been in decline, which may be attributable to efforts through collective bargaining to resolve disputes at the lowest and most informal level possible. This is evidence that collective bargaining may actually help reduce the number of grievances; the exact opposite of NSHE's claims.
So it leads one to wonder why NSHE has made such inflated claims about the number of grievances they expect to immediately occur if AB224 becomes law. Acting Chancellor Dale Erquiaga gets defensive and irritated (video starting at 00:44:54) when we question those claims. Even when asked a legitimate question by Regent Jeff Downs about the methodology NSHE used, the Chancellor deflects by taking great umbrage at any criticism of his staff and their work. To the best of my knowledge, he has not produced the information requested by Regent Downs. Erquiaga also protests that NFA is speculating about the numbers of grievances and that his staff has done the research. While no one can predict future behavior with 100% certainty, we can make inferences based on past behavior as reflected in the numbers above. If NSHE staff have better evidence that supports their claims, why are they so reticent to share it?
We also must challenge their assumption that up to 50 grievances per year will result in binding arbitration as provided in the bill. These claims appear to suggest that NSHE will either be unwilling or unable to resolve many disputes internally. In current BOR policy, under which TMCC collective bargaining operates, the institution presidents have nearly absolute authority in settling grievances, even when they are the subjects of a grievance. Prior to 2022, the TMCC-NFA Contract, allowed grievances to be appealed to the Chancellor, but Acting Chancellor Erquiaga required that clause to be removed from the current collective bargaining agreement. As an alternative, grievants at TMCC may request mediation if no resolution is found internally. But mediation is non-binding, leaving a grievant no other options than litigation if the institution refuses to abide by the resolution.
It appears to me that NSHE is fearful that examination of their labor practices by external professionals (arbitrators) will not give them the same iron clad results to which they are accustomed under existing BOR policy. Perhaps that fear is well-founded. Of the 13 faculty grievances listed above, not one was settled by the NSHE process in favor of the grievant. One set of grievances dismissed by TMCC/NSHE ultimately led to litigation where the faculty member prevailed. Another set that was dismissed also led to litigation after TMCC's actions were overturned by a faculty panel in an NSHE Chapter 6 hearing.
When disputes break free of the System's prejudicial policies and processes, the results are frequently unfavorable for the System. Nonetheless, litigation is costly, both financially and mentally. In my administrative experience, institution attorneys used this to their advantage, delaying and challenging the process at every step to escalate those costs in an effort to outlast the litigant without ever addressing the cause of the dispute in the first place.
There may be some validity to the belief that more faculty will seek redress to workplace infractions through the grievance process if they know a neutral third party (arbitrator) will ultimately determine a resolution. NSHE has a couple of different options to mitigate this impact. They can moderate their labor practices that lead to grievances, and authentically work to resolve disputes internally.
Collective bargaining conducted in good faith results in benefits for both labor and management. Unfortunately, NSHE has rebuffed NFA's good-faith offers to discuss concerns and possible modifications. Instead, NSHE has proposed multiple amendments intended to gut the bill in order to retain their advantage, all of which have been rejected by legislators. Now, apparently, they are relying on their hyperinflated fiscal note to dissuade legislative support based on cost estimates that have no proven foundation in reality. It's understandable. When, for your entire existence, you've been playing with a deck that's stacked in your favor, you'll do anything to prevent the deck from being shuffled. That, in and of itself, is all the proof we need that it's essential for AB224 to become law and shuffle the deck.
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