The NCC AAUP has serious concerns regarding the proposed Section F contained in the AFA’s MOA. The AFA has stated that if this MOA is approved it will “…not oppose the entry of a permanent injunction order in Nassau Community College v. Charles Loiacono, et al. (Index No. 13011077). ” It will “…convert to a permanent injunction order upon ratification of the MOA.”
It is our contention that if this proposal is adopted, it will create a chilling effect on all faculty members’ academic freedom and free speech in and out of the classroom and will subject us to draconian enforcement measures by this Administration.
Proposed Section F goes far beyond the Taylor Law’s “No public employee or employee organization shall engage in a strike, and no public employee or employee organization shall cause, instigate, encourage, or condone a strike.”
Please consider the following (the language in quotes is taken from the Preliminary Injunction Order, the proposed Section F:
· Concern #1 : The Preliminary Injunction Order (Section F) goes beyond the parameters of the Taylor Law. It will prohibit us from acting and/or speaking in very specific ways that we have heretofore enjoyed. Possible scenarios:
Example 1: We are told we can’t criticize the College or do any act whatsoever that the College interprets as “interfering” with “operations or functions of Nassau Community College.”
Example 2: Faculty is picketing but the College demands we stop as it alleges the action is preventing an NCC vendor from making “deliveries to or for Nassau Community College…”
· Concern #2: Section F appears to circumvent PERB’s jurisdiction over violations to the Taylor Law. PERB is given the power to provide remedies for violations of its strike prohibition (see: Taylor Law, Section 200). Section F would place the determination and punishment of violations of it in the hands of the College which is, arguably, an illegal usurpation of PERB’s jurisdiction. This injunction is also, arguably, an illegal expansion of the Taylor Law’s prohibitions. Here are the possible “remedies” the College might seek against an individual faculty member who allegedly violates Section F: a letter in your file, termination of employment, or asking the court to hold you in contempt.
· Concern# 3 There are many critics of the Taylor Law. If the NYS Legislature were to abolish the relevant parts of the Taylor Law (regarding strikes) we would still be bound to Section F’s prohibition on striking, as well as the other actions contained therein.
· Concern #4 If Section F was truly a simple reiteration of the Taylor Law, section 210, what is the need for it? Why is the College insisting on this? No one has yet answered this simple question. We believe the answer is found in the above.
· Concern #5 Last, a large percentage of faculty are members of both the NCCFT and the AFA. It seems unlikely that faculty dual status will exempt them from the purview of what will become a Permanent Injunction even if they believe they are acting in their capacity as NCCFT members.
Alternative to Section F: It is claimed we have no alternative but approve section F, as the College will move to make this injunction permanent. Not true. The AFA can move to vacate the Preliminary Injunction under CPLR section 6314. This motion is typically granted where “circumstances have changed’” and the “…need for an injunction no longer exists…” which is the “…proper ground for vacating the injunction.” Carlo v Sanese (4th Dept. 1978) 65 AD2d 945. Certainly, this is true in the instant case. The strike has been over for three semesters and PERB has already issued its final ruling and sanctions against the AFA. Moreover, the leadership that called the strike was voted out. Changed circumstance? We think so.
Conclusion: We understand that everyone wants a contract. However, we recommend we not approve the AFA MOA unless Section F is removed. There is no reason to voluntarily permit the College to impose on us that which it is likely to lose in court. Section F will create an intimidating work environment in which faculty members’ academic freedom and free speech in and out of the classroom will be permanently chilled. Do not voluntarily give away your rights.