Grievance and Arbitration [1 of 2]

The content of the following 'Protecting the Contract' posts are gleaned from the last two academic years' grievance reports, the first for the 2004-2005 academic year, the second for 2003-2004 (a complete report for the last 2005-2006 academic year will be posted shortly):

PROTECTING THE CONTRACT [Grievance Report: 2004-2005]

The enforcement and protection of the faculty contract [the collective bargaining agreement, the CBA] is the single most important function of the Union. The contract enumerates all rights, privileges and protections; it’s various articles outlining all issues of employment that underlie the working conditions for all full-time and part-time faculty. The contract may be amended during negotiations between the Union and Pratt Administration but at all times, the Union [and by extension the entire faculty], as well as the Administration, are bound by the full text of this legal agreement.

The UFCT is the exclusive bargaining representative for all full and regular part-time faculty members [or teaching staff employees] including librarians…

Article I: Recognition, "The Administration hereby recognizes the Union or its successor as the exclusive bargaining representative for all full-time and regular part-time members of the faculty presently or hereafter employed by the Institute in the bargaining unit certified as appropriate for election by the National Labor Relations Board."

Article II: Administration-Union Relationships [2.2], "The rights, privileges and obligations of members of the Unit as set forth in this Agreement supersede and replace any individual contract of employment between such member and the Institute.”

The Grievance Committee is the contract enforcement arm of the faculty Union. Each semester, three faculty members are each granted a quarter-release [1/4 of the full-time workload for the member's department] to serve as grievance counselors. The Grievance Committee is charged with acting on all faculty complaints concerning issues of employment. Language in the contract can appear ambiguous at times. Therefore, the faculty should use their Grievance Committee to help sort out, clarify and help determine whether a violation in the letter or intent of the contract exists. Article VII: ‘Grievance and Arbitration,’ sets forth the formal steps of the grievance procedure.

All grievances are initiated by an "informal" meeting [Article VII, section: 7.1] — wherein the Union and Administration shall use, "their best efforts to encourage the informal and prompt settlement of grievances which may arise under the terms and conditions of this Agreement." There are three steps at which a grievance may be initiated. A step one [I] grievance is at the departmental Chair's level, step two [II] at the level of school Dean and step three [III] at the level of Provost (as representative of the Institute). If a grievance is not settled or remedied at Step III, the grievance goes to arbitration. A grievance may be filed at any step as well as expedited — depending on where the complaint or alleged violation originated, the number of employees affected or if initiated in the last four weeks of a semester or trimester…

Example: An adjunct faculty member is intentionally under-loaded — which is to say they have been granted a workload less than they are permitted to teach according to the contract [an adjunct may teach up to seventy-five percent of a full-time workload.] If a remedy is not achieved following an informal meeting with the faculty member’s Chair, a Step I grievance is subsequently filed. The clock is thus started whereby a response is now required within a set time period or the grievance is elevated to Step II [Dean's level] and so on. As stated, a grievance need not be initiated as "Step I"…

Example: An adjunct faculty member is over-loaded — which is to say, for all intents and purposes, teaching a full-time workload, yet is only being paid at their part-time rate and not adequately compensated at an equivalent full-time salary [a 4/3 formula may be used to determine an equivalent full-time salary: contact hourly rate (CHR) times the full-time workload + 33.33%.] Departments are budgeted by the School; therefore a remedy is sought at an informal meeting with the School Dean. If not resolved at this meeting, a Step II grievance is filed. If not settled at the Dean's level, the grievance is elevated to Step III, if not settled at the Provost's level; the grievance goes to arbitration.

Arbitration is a hearing before an arbitrator. Once a formal request for arbitration is made and filed with the American Arbitration Association [AAA], a date is set, both parties make arguments and the said arbitrator renders a binding decision.

[The Pratt Administration exercises an over reliance on legal counsel and has needlessly and purposely – to my mind, "run the clock” on any number of grievances that could have easily been settled at any step prior to arbitration. Their "best efforts" would have saved money for both sides — not only the expense of the arbitrator’s fee and filing costs, but the day's pay for each Pratt employee called as witness — not withstanding the costs and penalties incurred in the loss of the arbitration.]

Grievance Settlement Agreement

On July 7, 2005 Pratt Institute and the UFCT signed a ‘Grievance Settlement Agreement’ (GSA) that effectively resolved a number of standing grievances and pending arbitration(s) between the two parties. Clarification in ‘benefits eligibility’ language associated with a number of faculty benefits (i.e. health benefits, tuition remission, CCE and sabbatical leave), and the rectification of a fundamental procedure for ‘faculty action’ review (Article XVI of the collective bargaining agreement) was achieved in the signing of this GSA.

[The following agreement language will be incorporated into the 2003-2007 Collective Bargaining Agreement]

Pratt Institute and the United Federation of College Teachers, Local 1460 hereby agree as follows:

Health Benefits:

Article/section 26.1(b)(3) reads: “Adjunct faculty without a CCE who have completed at least four (4) semesters of employment, will be provided with coverage under the US Healthcare plans provided to Pratt Institute administrators. Coverage shall be available for the adjunct faculty member, his/her spouse, and dependent children. The full cost of individual or family coverage shall be borne by such insured adjunct faculty.”

The UFCT was unequivocal in its position that “employment” includes all years of employment irrespective of faculty status – that an adjunct’s prior years of employment as a visiting faculty member should be applied towards the “four (4) semesters of employment” requirement. The Administration’s narrow view excluded all years of employment other than those as an adjunct. The signed GSA states: “In 26.1(b)(3) of the Collective Bargaining Agreement, the four semesters shall include service as both a visitor and as an adjunct.” The UFCT’s position prevailed.  

Tuition Remission:

Article/section 27.4(b) reads: “The tuition remission program set forth in Article 27.4 (a)(1), above, shall be available on a pro rata basis to the spouses and children of the adjunct faculty who have completed ten (10) or more semesters of employment. The pro-ration per semester shall be based on the faculty member’s workload in the last preceding semester as against a full-time per semester workload in the faculty member’s department.”

Again, usage of the word “employment” includes all years of employment irrespective of faculty status, including any such years the said adjunct was employed as a visiting faculty member – this total number of years employed thus applied towards the “ten (10) or more semesters of employment” requirement. The signed GSA states: “In 27.4(b), the ten semesters shall include service as both a visitor and as an adjunct.” The UFCT’s position prevailed.  

Certificate of Continuous Employment:

Article/section 22.1(b)(1) reads: “Service prior to September 1972 will count toward the ten semester probationary period required for the Certificate of Continuous Employment.” Article/section 22.2(a) reads: “Prior to the completion of ten (10) semesters of service, faculty members in this category shall make a decision as to whether or not they wish a full-time position.” Article/section 29.5 reads: “subject to the provisions of Article 16, part-time faculty who hold adjunct titles and who have served a total of ten semesters and have been appointed for an eleventh semester or more, beginning with the fall semester of 1972 shall be deemed to be professionally competent and shall be given a Certificate of Continuous Employment.”

The requirement of a five-year probationary period as adjunct for the conferral of CCE (tenure status for adjunct faculty) is a reaffirmation of a long and continuous past practice and completely in keeping with the language, spirit and intent of the collective bargaining agreement. The signed GSA states: “In 22.1(b)(1), 22.2 (a), and 29.5, the ten semesters shall include only service as an adjunct and shall not include service as a visitor.” The UFCT’s position prevailed.

Sabbatical Leaves:

Article/section 28.2(a) reads: “Sabbatical leave eligibility shall require at least six years (6) of continuous service at the Institute.” Precedent as well as an established practice supports the inference that “six years of continuous service” should refer to service in status. Sabbatical leaves remain available for both the adjunct and full-time faculty – however, years of service accrued are not interchangeable between statuses.

The signed GSA states: “In order to be eligible for a sabbatical leave pursuant to 28.2, a full-time faculty member must have at least six years of continuous service at the Institute as a full-timer. In order for an adjunct to be eligible for a sabbatical, she or he must have at least twelve semesters of continuous service at the Institute as an adjunct.”  

Appointment, Reappointment, Promotion & Tenure:

As was stated by the UFCT in its original grievance statement of April 12, 2004, “Article XVI section 16.2, establishes the departmental peer committee for evaluation of faculty. The ARPT faculty committee makes recommendations to the department chairperson. It is neither appropriate nor a function of the peer committee that these faculty members evaluate their chairperson. This practice therefore violates the language, spirit and intent of Article XVI.”

Chairpersons are supervisors, administrative personnel and non-bargaining unit members. They are not faculty – as defined at Pratt Institute – and therefore ineligible for all faculty actions, i.e. reappointment, promotion and tenure. To reaffirm (verbatim) section 16.1 of the collective bargaining agreement that, “The Union recognizes and accepts the authority of the Board of Trustees acting in all matters concerning appointment, reappointment, promotion and tenure” is quite simply stating the obvious; the UFCT having never challenged the authority of the BoT “…acting in all matters concerning appointment, reappointment, promotion and tenure.”

However, the Administration’s conceding that, “Departmental committees on appointment, reappointment, promotion and tenure shall have the option whether to review any case concerning the promotion or granting of tenure to the department’s chair” permits faculty ARPT committees to remove themselves from any potential for intimidation in being pressured to evaluate their “bosses.”

The signed GSA states: “Departmental committees on appointment, reappointment, promotion and tenure shall have the option whether to review any case concerning the promotion or granting of tenure to the department’s chair. The Union recognizes and accepts the authority of the Board of Trustees acting in all matters concerning appointment, reappointment, promotion and tenure.”

All in all, the GSA is very much to the faculty’s benefit.

Grievances:

[I have omitted all references to specific remuneration and to the individual parties involved in the following grievances and arbitrations]…

Workloads:

The vast majority of faculty grievances deal with workloads – the under and/or over-loading of part-time faculty. There are two part-time statuses, visiting and adjunct. Status is one’s employment level and determines the percentage of a full-time workload the part-timer may teach. Visiting faculty may teach no more than 50% of the full-time workload for their department, an adjunct may teach up to 75% of the full load.

[Adjuncts] Many grievances or potential grievances lie in the workloads of adjunct faculty — wherein an adjunct with “seniority within areas of competence” is intentionally under-loaded by a department chairperson, in essence denied a full adjunct workload. If courses an adjunct is “senior” and/or “competent” to teach are granted to a visitor in place of an adjunct, a grievance may be initiated on behalf of the adjunct. The grievance is predicated on the “seniority within… clause, which is specific to adjunct workloads only. The Union defended six adjuncts this past year and was successful in preventing their being under-loaded.

[The distinction between the visiting and adjunct statuses is significant. There is no doubt that achieving adjunct status is neither a given nor easily achieved and that there are broader protections for adjuncts in the CBA — as related to evaluation and eligibility for benefits. This should mean something. The Administration’s practice of treating all part-timers alike and ignoring these clear distinctions has been divisive for the faculty and the Union.]

Moreover, the Union was successful in securing the 4/3rds compensation for six adjuncts this past year. The Union’s position is that making an adjunct full-time is preferable to their being over-loaded. Barring that, the 4/3rds compensation can at least give the adjunct an equivalent full-time salary.

[Visitors] Fifty-seven percent of Pratt’s faculty is visitors, the majority teaching just one three-hour course a semester. Many of these visitors will eventually become adjuncts. However, the biggest difference between a visitor and an adjunct is the allowable percentage of a full load one may teach. A visitor may teach no more than 50% of a full load — unless a deviation* is requested of the Union.

*The Union’s granting of deviations from the CBA in the “over-loading” of visiting faculty members is neither a guarantee nor precedent setting. Each deviation request shall be considered on a case-by-case basis. The Union will exercise discretion and will not grant repeated deviations for the same faculty members.

The Union requires that the deviation request meet the following two conditions: 1) The said visitor will be supported by his/her chairperson and dean should he/she apply for a status change to adjunct in the next round of faculty actions, and 2) That no current adjunct faculty member in the said visitor’s department(s) will be purposely or intentionally “under-loaded” by the granting of the said deviation.

Twenty-one (21) deviations for part-time faculty were approved by the Union this past academic year, sixteen of which were for visitors. Consequently, these visitors were supported for adjunct status change by both their department chairperson and school dean. No adjuncts were intentionally under-loaded as a result.

Irrespective, the Pratt Administration’s continued ‘misuse’ of the visiting category is fraught with innumerable problems. Accordingly, a joint Union/Administration Committee will be convened this academic year to address this intractable issue.

Note, the following language as enumerated in the new ratified contract:

Visiting Category

A joint committee shall be established comprised of a mutually agreed-upon equal number of voting members (not to exceed a total of ten) appointed by the Provost and the President of the Union. Subjects to be discussed by the committee shall include but not be limited to the following:

  • The appropriate use of the visiting faculty;
  • The number of visiting faculty;
  • The appropriate procedures by which visitors may attain adjunct status; and
  • The evaluation system for visiting faculty.

The committee shall also include, in a non-voting capacity, a representative of the Academic Senate selected by the Senate. Other non-voting participants may be invited by agreement of the Provost and the President of the Union to participate in the committee’s discussions. The committee shall be constituted by October 1, 2005. It shall issue a report including any recommendations by December 31, 2006. Recommendations of the committee may result in amendment of the collective bargaining agreement only upon the written agreement of the Union and the Administration.

On a positive note, the UFCT was successful in achieving individual settlements for two visitors, both victims of the arbitrary and capricious practices of management. Moreover, thirty-three (33) visitors were granted adjunct status change and six (6) adjuncts were conferred the CCE in the 2004-2005 round of faculty actions. Equitable ratios between visiting and adjunct, and between adjunct and adjunct w/CCE are trending in the right direction for the part-time faculty.

Due Process & ARPT:

Article XVI of the CBA enumerates the process for Appointment, Reappointment, Promotion and Tenure. Each department has an ARPT, “Part” or “Cart” Peer Committee. When faculty members apply for any “action” [status change, promotion, etc…] their application package is first submitted to their faculty peers. The ARPT Committee makes a “recommendation” or a “non-recommendation” to the department Chair. Starting at the Chair’s level, three administrative tiers [Chair, Dean and Provost] determine whether the faculty member is granted the said faculty request – the Board of Trustees finalizing all decisions by the end of the spring semester.

The entire ARPT issue is of critical importance to the faculty. I have described the issue as the “mother” of all faculty issues and the one issue I actually lost sleep over during contract negotiations. In short, the Administration wished to “gut” the ARPT process; effectively neutering the faculty’s chief role in freely developing the “standards of eligibility, fitness and evaluation” the [faculty] committee “deem(s) appropriate to effectuate the foregoing.”

The Administration’s proposal was to supplant section 16.2 of Article XVI with: “The Institute shall set the criteria to best effectuate the foregoing.” The repercussions of this fundamental change would have had profound implications for the entire faculty. You’ll recall that I placed a letter re: ARPT in every faculty member’s mailbox last fall 2004. A letter that was responded to by the Provost – his taking exception to what I contended.

The full-text of my letter follows:

“All faculty personnel are entitled to a due process procedure for application of all faculty actions, i.e., reappointment, promotion, status change, tenure, etc. This process is expressly enumerated in article XVI of the collective bargaining agreement. As defined in Article XVI of the Collective Bargaining Agreement (CBA) on: Appointments, Reappointments, Promotions and Tenure, each departmental committee on ARPT “shall develop standards of eligibility, fitness and evaluation.”

Faculty peers play a vital role in the ARPT process. Article XVI of the CBA establishes and defines the steps necessary for one to be appointed, reappointment, promoted and tenured. The Faculty Peer Committee “must have input at the point of closest contact with the faculty members individually affected.”

No undue influence [from any outside party] should be permitted to impose its will or taint in any way – the ARPT committee’s role in freely developing the standards of eligibility, fitness and evaluation the Committee “deem(s) appropriate to effectuate the foregoing.”

It is imperative that the autonomy of each department’s ARPT Committee (Pratt has over twenty individual departments institute-wide) be empowered, respected and protected. Please read Article I: Recognition. Under “Included” — the faculty bargaining unit is clearly defined as including, “All full-time and regular part-time members of the teaching staff including full and part-time professional librarians employed at the Institute’s two locations…” Moreover, and of equal importance is understanding who is expressly excluded from this bargaining unit and by extension: the rights, privileges and protections enumerated in the CBA.

In short, Article XVI applies to teaching personnel only! Any and all administrative personnel are thus excluded. Therefore, ARPT faculty committees should only accept applications from their teaching staff peers: the full-time, adjunct and visiting faculty. It is inappropriate for chairpersons or other administrative personnel to apply for any faculty action through the departmental faculty peer committee.

If any administrative personnel should submit such an application for review to your department’s ARPT committee, it should be returned in kind and noted that the faculty peer committee is not the proper forum for evaluating administrative personnel. Any further questions should be directed to the UFCT. Clearly established and published criteria for eligibility, fitness and evaluation should afford every faculty applicant a due process that is both fair and transparent. The ARPT committee’s work is serious and meaningful. The level of thoughtfulness and care applied to this process is vitally important to the entire faculty.”

Rest assured, autonomous and individual faculty/ARPT committees have a contractually protected right to develop the standards of eligibility, fitness and evaluation best suited for their department. This is a rarefied right indeed; yet one we the faculty should not take for granted. However, this saga continues: the Provost’s push this fall (2005) for a ‘Personal History Form’; only the latest front of an issue that shows no sign of disappearing any time soon. Stay tuned!

Cost Basis Numbers & Health Benefits Costs:

The UFCT initiated an outside audit of the cost basis numbers for the ‘Aetna Open Choice PPO Plan,’ the cost of this Self-Insured Plan having fluctuated radically in recent years; an inexplicable 45% drop in 2004 was followed by a 67% rise in 2005. The UFCT’s intervention has forced the Pratt Administration – albeit reluctantly – in the direction of greater openness and transparency in the sharing of pertinent data and information related to all health benefits. Yet, we have a long way to go. For more information on this ongoing issue go to the UFCT message board: http://www.websitetoolbox.com/tool/post/ufct1460/vpost?id=524490

Information and Data:

Article VI: Information and Data, “The Administration shall make available to the Union upon its reasonable request and within a reasonable time thereafter such information which is reasonably available and is related to this Collective Bargaining Agreement which is within the possession of the Administration, as may be necessary for negotiation and implementation of this Agreement.” The Union has cited this article repeatedly this past year. The proper implementation of the contract and the general operations of the Union is dependent on having all appropriate information and data regarding faculty salaries, rates of compensation, medical and fringe benefits costs, etc. Unfortunately, the Administration has been loath to readily grant requested information. Arbitration had to be threatened three times this past year before the Administration acquiesced and forwarded all necessary data, thus avoiding costly arbitration.

Arbitrations:

Ratio of Full-Time to Part-Time Faculty:

An arbitration concerning Article XXV [Ratio of Full-Time to Part-Time Faculty] was eventually settled during contract negotiations. As stated in Article XXV section: 25.1, "Pratt Institute agrees to maintain the ratio of full-time faculty to part-time faculty at no less than existing during the 1993-94 academic years." In academic year: 1993-1994, the ratio of full-time to part-time faculty was 20% FT to 80% PT. Ratios for 2003-2004 and 2004-2005 were in the vicinity of: 13%FT to 87% PT. At both the informal and formal stages of the grievance process the UFCT informed the Pratt Administration that at any point they wished to include the faculty in on a plan that would best "fit" Pratt Institute; to determine a ratio that was both attainable and sustainable and would bring the Institute into compliance with the CBA, the Union was willing to "stop the clock" on the grievance/arbitration. This gesture was rebuffed.

During the first mediated negotiation session on: May 5th 2004, the mediator suggested that the Union postpone this arbitration – rationalizing that its contentiousness was a hurdle for negotiations and that more importantly, the issue should be addressed during negotiation/mediation. The UFCT agreed to postpone first until December2004, and again until April 2005. At the close of negotiations in March 2005, the UFCT agreed to the following: “Pratt Institute agrees to maintain the ratio of full-time faculty to part-time faculty at no less than the ratio existing during the 2004-05 academic year. In 2004-05, the Institute employed 128 full-time faculty and 739 part-time faculty.” This constitutes roughly, a 15%FT/85%PT faculty ratio – insufficient, but a minimum nonetheless that allowed the Union to retain article XXV.

For more information on this ongoing issue go to the UFCT message board: http://www.websitetoolbox.com/tool/post/ufct1460/vpost?id=727130  

Overload of Adjunct Faculty Member:

An arbitration concerning the overloading of an adjunct faculty member was adjudicated on September 21, 2004, a determination rendered on: October 12, 2004. This case involved a fully loaded adjunct who as an officer of the Academic Senate was to receive as compensation, “one quarter of a full-time load as release time, or its equivalent (per semester)” — a means of compensation enumerated in the Senate Handbook, not the CBA. The Union’s position was that whether as release or equivalent stipend, the “quarter of a full-time load” when added to a full adjunct workload (75% of the full-load) loaded this adjunct as a full-timer thus entitling them to an ‘equivalent’ full-time salary (the 4/3rds compensation).

The non-existence of stipends in the CBA notwithstanding, by invoking ‘workload’ the Administration was in violation of Articles: XX [Workload] and XXII [Part-Time Faculty]. However, the arbitrator’s ruling was against the UFCT, essentially denying this overloaded adjunct the additional 33% in income he/she effectively deserved. The arbitrator’s reasoning was based on the following assertions: “the contractual definition of faculty workload does not cover work outside of teaching” that all, “previous deviation cases have dealt with teaching overloads” and that, “there is no past practice with regard to [the] non-teaching work” of the part-time faculty.

Moreover, it was affirmed that because there is no “contractual provision” in the CBA that governs the duties of an officer of the Senate, the Institute “was within its[managerial] rights to apply the terms of the Faculty Handbook in compensating [said adjunct].” Ironically, the actual method utilized in compensating this adjunct was in contradiction to the method memorialized in the Handbook. Coincidentally, none of the three methods that have existed since this grievance was filed has invoked a percentage of ‘a full-time workload.’

‘Faculty Tenure’ for Chairs:

The arbitration concerning ‘faculty tenure’ or better yet, ‘tenure’ for chairs was effectively settled on July 7th in the signing of the aforementioned GSA. As such, the issue of granting faculty actions to non-faculty/non-bargaining unit members will now be adjudicated in another forum. The UFCT has filed an ‘unfair labor charge’ against the Pratt Administration with the NLRB (National Labor Relations Board). On October 7, 2005, I gave testimony to the Board and will return shortly to give an affidavit.

For a bullet pointed account and history of this issue, go to the UFCT message board: http://www.websitetoolbox.com/tool/post/ufct1460/vpost?id=672343

The Union’s Grievance Committee will steadfastly act on behalf of all faculty/bargaining unit members by enforcing and ‘Protecting The Contract.’ Pratt’s faculty should take comfort in knowing its Grievance Committee is defending the letter, spirit and intent of the CBA.

In Solidarity,

Kye Carbone

President UFCT Local 1460

At present, the following five issues are scheduled for arbitration:

  • Faculty-Staff Housing (Article XXVII, section: 27.5a, 27.5b)
  • Tuition Exchange Eligibility (Article XVII, section: 27.4)
  • Personal History Form/ARPT (Article XVI, section: 16.2)
  • Workload & Schedule for Adjunct w/CCE (Articles: XVI, section: 16.10, XX, 20.4, XXII, 22.4)
  • Denial of Tenure (Articles: XVI, XXIX)