Sunday, April 27, 2014

Professorial Punishment?

In re Aleong, 2014 VT 15

By Andrew Delaney

This is one of those cases simply littered with acronyms. So we’ll start with a handy key to help you decipher this alphabet soup.
  • UVM is “University of Vermont”
  • DPSS is “Department of Plant and Soil Science”
  • VLRB is “Vermont Labor Relations Board”
  • CALS is “College of Agriculture and Life Sciences”
  • CEMS is “College of Engineering and Mathematical Sciences”
  • FTE is “full-time equivalent”
  • MOU is “memorandum of understanding”
  • CBA is “collective bargaining agreement”
  • OMG is “oh my God!” 
  • RUFEDUP is a lame joke
About twenty years ago, UVM’s DPSS hired grievant as a 0.8 tenured professor in the CALS. Grievant also was simultaneously given an untenured 0.2 FTE position in CEMS, teaching one course per semester, so long as he maintained his teaching at a satisfactory level.

Long story short, UVM first attempted to terminate the 0.2 position in 2005, citing “poor student evaluations, cancelling classes, tardiness in submitting grades, lack of availability outside class, and unresponsiveness to students and supervisors.” A grievance was filed with the VLRB; but the parties came up with a MOU before the grievance ever made it to the Board, and UVM committed to continuing to offer the 0.2 position to grievant “until a review has determined that his teaching is not satisfactory by normal University standards.” He did just fine the following spring.

Seven years later, his teaching for the 0.2 position became an issue again. Students complained about a number of things, notably a lack of organization, lack of responsiveness to questions, unavailability outside of class and arbitrary class reschedulin’. There was a review conducted and the results basically indicated unsatisfactory performance. Accordingly, UVM terminated grievant’s 0.2 position by letter. The deans of CEMS and CALS also wrote a letter admonishing grievant and informing him that he would not be allowed to take on any “extra” teaching assignments until 2015.

Grievant filed a grievance on the no-extra teaching assignments piece. It made its way through the channels at the university and was uniformly denied. So he filed his first grievance with the VLRB. He also filed a post-administrative-channels grievance with the VLRB on the 0.2-position-elimination issue. There was a consolidated two-day hearing and the Board issued detailed findings of fact and conclusions of law.

While the VLRB went heavily to grievant’s side on the first issue, it declined to take jurisdiction on the termination-of-the-0.2-position issue. The Board “reasoned that the termination of the position was neither the discharge of a faculty member prior to the term of his employment nor the disciplinary termination of a tenured professor as these terms are defined in the CBA.” Grievant’s claim that UVM didn’t follow the terms of the 2005 MOU fell outside its jurisdiction “because the MOU stands outside of the CBA as the settlement of a single dispute with no application to future actions by the University.” Grievant appealed.

Grievant’s arguments are (1) that termination of the 0.2 position was “discipline” within the meaning of the CBA; and (2) that the 2005 MOU is a side-letter agreement, subject to the provisions of the CBA. The SCOV notes that either argument, if correct, would give the Board jurisdiction.

Since this appeal is about interpreting the CBA, the SCOV gives the VLRB’s expertise “substantial deference.” As the SCOV puts it, “This appeal raises a single issue: whether the Board was correct in its ruling that it lacked jurisdiction over the University’s termination of the 0.2 FTE position.”

The VLRB has statutory jurisdiction over CBA-related and discriminatory-rule-or-regulation-application-based state-employee grievances. “State employee”—or SE if we want to throw another acronym into the mix—includes most UVM faculty members or their unions. If a grievance is not CBA-related or rule-or-regulation-based, however, then the VLRB has no jurisdiction.

“Discipline” is specifically covered by the CBA, and grievant argues that his 0.2 position’s termination was discipline. Grievant also argues that the 2005 MOU essentially made his 0.2 position subject to the CBA’s terms. The SCOV doesn’t buy it.

The SCOV first delves into whether the termination of the position was “discipline” as defined in the CBA. The CBA requires that “discipline” be precipitated by “just cause,” and just cause for termination is pretty heavy stuff—“dereliction of duties, professional incompetence, gross misconduct or academic dishonesty.” There’s also what could be a called a progressive-discipline scheme contained in the CBA—it provides for discipline starting with letters of reprimand up through termination.

Grievant says, “Hey! I was terminated.” The SCOV responds, “Have a seat. Your 0.2 FTE position was eliminated; you were not ‘terminated.’ Settle down.” I might be paraphrasing a bit. The SCOV reasons that grievant had an open-ended contract for the 0.2 FTE position that was dependent on UVM’s continued satisfaction with the quality of grievant’s teaching—the employment letter said, specifically, that he would have the 0.2 position “as long as [his] teaching is deemed satisfactory” by UVM’s standards. Because the later-ratified CBA does not cover part-time positions, the SCOV reasons that the original terms were not changed by the CBA.

The SCOV notes that the 2005 MOU modified those terms but only to the extent that a review became required in making the satisfactory-or-not determination. Below, “the Board had determined that the contractual relationship had changed to ‘an assignment on a semester to semester basis which would continue contingent on [grievant’s] teaching being satisfactory by normal University standards.’” The SCOV agrees that this is a reasonable interpretation of the contract under the circumstances—“especially because it is consistent with the original 1994 letter of employment which provided that the position was contingent on satisfactory teaching.”

The SCOV qualifies its reasoning by noting that its review is limited to “whether there are facts sufficient to support the conclusion that grievant held the 0.2 FTE position on a semester-to-semester basis.” Grievant’s argument that the VLRB erred in using a semester rather than a full academic year gains little traction. The SCOV reasons that the semester determination is reasonably supported—among other things, both grievant’s original employment letter and the 2005 MOU refer to a semester basis. The SCOV covers whether the 0.2 position was tenured (nope) and concludes that the elimination of the position wasn’t “discipline” under the CBA.

The SCOV next tackles whether the issue of whether the 2005 was a side letter subject to the CBA’s terms. As the SCOV phrases it, “[D]oes the 2005 MOU provide evidence by its terms that the parties intended to incorporate it into the CBA?” The VLRB said no and so does the SCOV.

The SCOV notes that there are two types of side letter agreements in the collective-bargaining context. First, there are side agreements that apply to all or a certain class of employees. This ain’t one of those. Second, there are one-employee-affected side agreements. The SCOV notes that these are controversial because they “violate the general rule that union members receive similar rights and benefits under the CBA and cannot be singled out for better or worse treatment.” Still, once in a while, so long as the side agreement doesn’t violate the CBA, such a side agreement may be allowed.

The SCOV notes that it has recognized this concept in the past. We need not get into that, though. The ultimate question is “whether the specific terms and circumstances of the MOU demonstrate” an intent to incorporate the MOU into the CBA.

Grievant did not sign the MOU; a union rep did. So, goes his argument, it’s obviously part of the CBA. The SCOV notes that there are times when a union will sign an agreement on behalf of all employees and that agreement will not become a side-letter agreement—in other words, it ain’t so simple as an as-soon-as-the-union-signs-a-side-agreement-it-becomes-part-of-the-CBA rule.

The SCOV looks for specific terms within the MOU or the CBA “that would make the MOU an amendment or addendum to the CBA.” The SCOV notes that the CBA contains a merger clause (a “this-is-the-entire-agreement” provision) and that the MOU contains no reference to the CBA. And that’s pretty much the end of it—because there’s really no basis, therefore, to find that the MOU is part of the CBA. I mean, as usual, there’s some more discussion—whether the investigating professor followed the terms of the MOU or the CBA; whether the negotiation of the MOU itself was consistent with the CBA—but that doesn’t really go anywhere.  The VLRB was correct in concluding that it lacked jurisdiction.  

OMG, RUFEDUP with these acronyms yet? I sure am.

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