NLRB Appeal

Dear Pratt Faculty Colleague [with a special nod to our full-time faculty brethren]:
 
For over two years the UFCT has been chasing-down the arrogant, bizarre and surreal actions of the Pratt Administration regarding their unilateral practice of conferring to the "excluded" various [so-called] "faculty" actions; most notably, the conferral of tenure to non-faculty. How is it that Pratt's management is granting to the ineligible what they are instinctively loath to confer to the eligible? 
 
There have been many twists and turns in the unraveling of this caper.
 
On February 21, 2006, a "decision to dismiss" was handed down by Alvin Blyer, Regional Director NLRB, Region 29 [downtown Brooklyn]. I have appealed this decision, and now await a determination from the General Counsel of the NLRB in Wash, DC.
 
The following is the full text of the appeal which is in three parts:

  • Foreword
  • The Appeal [Sequence of Events]
  • In Conclusion / Statistical Analysis

General Counsel,
National Labor Relations Board,
Office of Appeals,
1099 14th Street, N.W.,
Washington, D.C.  20570
 
Letter of Appeal Re: Pratt Institute, Case No.: 29-CA-27298.
 
To Whom It May Concern:
 
I respectfully take exception to and am appealing the February 21, 2006 Decision to Dismiss rendered by Alvin Blyer, Regional Director of the NLRB, Region 29, Re: Pratt Institute, Case No.: 29-CA-27298.
 
Foreword:
 
In my capacity as President of the United Federation of College Teachers [UFCT] Local 1460, I filed an 8(a)(3) charge against the Pratt Institute Administration [The Employer] alleging discrimination against the UFCT bargaining unit, a Unit that is exclusive to and includes only: all regular full-time and part-time faculty teaching staff employees and professional librarians.
 
I believe that the Board has incorrectly decided to dismiss the UFCT's charge of discrimination and in doing so, has ignored the merits of this case. The following two reasons for dismissal were cited: 1) the 8(a)(3) "charge is time barred by virtue of Section 10(b) of the Act"; and 2) "the evidence is insufficient to support finding a violation."
 
Despite Director Blyer's citing of 'timeliness' as a reason for dismissal, the record of this case [note: sequence of events] shows definitively, that the UFCT has doggedly pursued the issue of "conferral of faculty tenure to non-bargaining unit/non-faculty personnel" since fall 2003, the first point of awareness. Moreover, in a two-year period, the initial finding that certain sitting chairpersons 'appeared' to have been conferred 'faculty tenure' (for the future should they return to or enter the faculty ranks) while they were non-faculty, ineligible and 'excluded' from the UFCT Unit, had progressed to the level of an unfair labor charge. We had no knowledge of, nor knew to what extent the Pratt Administration was engaged in a practice of conferring faculty actions to the ineligible. Other than what are rather generic annual 'faculty action' reports (which literally lists hundreds of various faculty actions) there was no direct evidence of this peculiar practice. Conversely, the decision to go to the NLRB was not warranted until fall 2005, at which time an initial 8(a)(5) charge was filed only to be subsequently withdrawn by the UFCT who then filed the said 8(a)(3) charge.
 
At each phase of this two-year ordeal, the UFCT had employed and exhausted all reasonable means at its disposal to remedy the situation: 1) meeting with and discussing the issue with the Pratt Administration, where we initially believed an agreement was at hand; that the Administration's practice of conferring faculty actions to non-faculty would cease; this a verbal agreement the Employer reneged on, 2) using the grievance/arbitration process enumerated in the collective bargaining agreement [CBA] and only filing a grievance following the Employer's intransigence, in defense of faculty/ARPT committee members who were put in the untenable position of evaluating their supervisors [see: Grievance Settlement Agreement in 'sequence of events'] and 3) having to make repeated 'information & data' requests for information that was emanating from this ordeal [see: Minkoff  Determination in 'sequence of events'].
 
This 'faculty tenure' issue has had many layers, each more daunting than the former. Time and statutes of limitations have worked in favor of the Employer and to the great disadvantage of the UFCT who was challenged at each turn to chase discoveries (after the fact) and 'catch-up' with events (that had long passed). Thus, the challenge of trying to ascertain and unearth what we ultimately learned was secretive from the outset, has been mystifying and frustrating, especially when we had no knowledge of when that 'outset' actually began.
 
It is within this context therefore, that I find Director Blyer's chief reason for dismissal that "the evidence [of discrimination] is insufficient to support finding a violation" most objectionable. He continues: "Since 1994, the Employer has been granting tenure to department chairpersons without regard for the guidelines or procedures to which unit employees are subject, by virtue of the collective bargaining agreement between the parties. However, the decision to take such action lies solely with the Employer and is not a mandatory subject for bargaining. Accordingly, even if some unit members were denied tenure in favor of department chairpersons, this fact alone, without evidence of anti-Union sentiment, is insufficient to establish a violation."
 
With due respect, this missive is utterly dismissive of all the UFCT has evidenced. How can it not be discriminatory to the UFCT Unit when "unit members were denied tenure in favor of department chairpersons" and management overtly practices preferential treatment and favoritism "without regard for the guidelines or procedures to which unit employees are subject"?
 
It goes without saying that the Employer would not be reckless enough to couch what I believe to be anti-faculty actions with "anti-Union sentiment". I fail to see that shy of flagrant anti-unionist sentiment, the Employer is not engaged in some form of discrimination.
 
By unilaterally conferring to non-faculty: "faculty status" and endowing, that chairs will be "treated as faculty in respect to seniority, promotion, Certificate of Continuous Employment, and Tenure as provided for in the Collective Bargaining Agreement with the United Federation of College Teachers [UFCT]", the Employer has brazenly invoked, taken and conferred our rights and protections at our expense!
 
Contrary to the default position of the Employer and one to which Director Blyer seems sympathetic when he iterates: "cthe decision to take such action lies solely with the Employerc", this issue has never been about the Union not "recognizing" and/or "accepting" the authority of the Board of Trustees "acting in all matters concerning appointment, reappointment, promotion and tenure" [CBA: Article XVI, 16.1]. The UFCT adheres to the word, intent and spirit of the CBA. We only wish the Employer would do the same. Moreover, the UFCT has always understood the extent to which 'managerial rights' are both asserted and recognized. That said; the conferral of tenure to the ineligible would not be the central focus were it not a fact that the Employer is showing preferential treatment to the ineligible or if the Employer was simply conferring to non-faculty/non-bargaining unit personnel, like benefits and protections [in addition to the faculty].
 
These are unfriendly times for labor in general, and particularly difficult times for the few private sector unions that include full-time faculty and a tenure-track. Moreover, the issue of faculty tenure has been from the beginning, a contentious matter between academic unions and university managements. The perversity of a university management wanting to grant to the ineligible what they instinctively wish to confer seldom – if at all, to legitimate, eligible and qualified faculty is certainly not lost on those actual full-time faculty, whose teaching effectiveness and professional development is assessed and reviewed each year of a seven-year tenure track.

[As backdrop to these events, contract negotiations between the Pratt Administration and UFCT lasted two-years. This negotiation context, its contentiousness and protracted nature, must be considered in assessing this period.]

The Appeal [Sequence of Events]:  

Fall 2003      

In fall 2003, the UFCT discovered that the Pratt Administration had told a number of sitting chairpersons that they would have tenure (in the future) should they return to, or enter the faculty ranks. This seemed odd considering chairpersons are administrative personnel at Pratt, non-tenure-able, not covered by the 'Act', 'excluded' from the UFCT – a 'faculty' bargaining unit (and by extension, the protections and procedures enumerated in the CBA), and that there was never a 'past practice' of conferring tenure to non-faculty/non-bargaining unit personnel at Pratt Institute.
 
Upon this discovery, the UFCT surmised that should the Administration decide to change the way in which the contract shall be implemented, they must consult the union, not choose to go it alone. Throughout the fall of 2003, the UFCT met with the Administration repeatedly and made this very point only to be ignored. However, in these same private discussions, there was agreement that this selective procedure for conferring tenure was "problematic" (the Provost's term); especially when as the Provost claimed: "some chairs don't even teach." There appeared to be an agreement that this practice would cease at the end of the 2003-2004 'faculty action cycle' (all faculty actions follow a fall-spring calendar).

Spring 2004
 
Only after the Union was informed by the Institute Provost that the practice of conferring tenure to sitting chairs will cease only after all current chair applicants as well as all other chairs – who have not applied as yet, but have been assured by the Employer that they may in fact apply for tenure (while chairperson) was the step III grievance: "Faculty Tenure" filed. The UFCT had hoped that meetings in the fall would have averted a grievance. The grievance was 'denied' by the Employer and as such, a request for arbitration made by the UFCT. The grievance was appropriately predicated on protecting the contract and the ARPT ('Appointment, Reappointment, Promotion and Tenure') process enumerated in Article XVI of the CBA. The central issue, that faculty peer committees were not created to evaluate department heads, chairpersons or other administrative personnel and that using these committees in this manner violated the language, intent and spirit of the collective bargaining agreement.  

A procedure for conferring tenure cannot be fair when peer committees are put in the position of "recommending" or "not recommending" to their chairperson a candidate for tenure, who might in fact be one and the same — the actual chairperson. Is this chairperson to then decide the merits of his/her own application for faculty tenure?
 
What is the meaning of tenure in this context? What qualifications are necessary for tenure? Who shall have tenure? How was it that the Pratt Administration deemed eligible and determined, that non-faculty non-bargaining unit personnel shall be conferred tenure and other "faculty" actions?
 
Chairpersons are evaluated by their students in their capacities as teachers — the 20% (at most) of the eleven-month a year, four day a week job of department chairperson. This teaching workload is hardly equivalent to that of a "full-time teaching staff employee." [Some chairs don't teach at all.] Moreover, the chairperson's immediate supervisor evaluates them, the respective school dean who assesses their administrative performance. In short, the teaching faculty does not (and should not) evaluate their supervisors, their department heads or their chairpersons. 

As both parties were in contract negotiations (a two-year process from spring 2003 to spring 2005) the arbitration Re: 'Faculty Tenure' became one of five pending grievances. Both parties agreed that if at all possible, the negotiation process was the ideal time in which to address and possibly remedy these significant issues. Moreover, it was during this period that a mediator was brought in to oversee the negotiations which were deadlocked. We awaited a date for the arbitration and were prepared to postpone while in negotiations.
 
Fall 2004
 
At a meeting in the Provost's office on November 11, 2004, I learned for the first time of a "determination" made back in the early nineties by then Acting Provost, Jack Minkoff and the Board of Trustees (BoT), which seemingly effectuated the allowance for 'non-bargaining unit members' to apply for faculty action. I was told that "according to Minkoff, non-faculty could be conferred faculty actions." It was immediately apparent to me that any such "Minkoff determination" was probably the foundation on which the Administration has justified its practice of conferring tenure to chairpersons.

I requested all substantiation: memos, minutes, etc. supporting this 'determination'. As is par for the course, the Administration was reluctant and resistant; the UFCT filed another step III grievance ('information & data') which again, was destined for arbitration.

Spring 2005
 
At the last minute, the UFCT was given documentation (a memo and minutes of a Trustee meeting) showing that on February 3, 1994, the acting Provost at the time: Jack Minkoff, in league with Pratt's Board of Trustees – decided without consultation or notification of the UFCT – that, "chairpersons will have faculty status with the beginning of the 1994/1995 academic year" and be "treated as faculty in respect to seniority, promotion, Certificate of Continuous Employment, and Tenure as provided for in the Collective Bargaining Agreement with the United Federation of College Teachers [UFCT]."

In March 2005, a 'Memorandum of Understanding' was signed effectively bringing our contract negotiations to a close. At our last negotiation meeting, both parties agreed that the mediator (and arbitrator) who had just overseen the negotiations would return in May to officiate a meeting to resolve any arbitration(s) still pending following the just completed negotiations. 'Faculty Tenure' was still unresolved.   On July 7, 2005, Pratt Institute and the UFCT signed a 'Grievance Settlement Agreement' that addressed the grievance/arbitration: 'ARPT/tenure for chairs'. The following is the text of the agreement: "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."
 
In this same period, two faculty members were denied tenure and while two sitting chairs were conferred tenure. For the first time (during my tenure as UFCT President) the Pratt Institute Administration was on record as showing an overt preference for non-faculty, non-bargaining unit members at the expense of the faculty. The UFCT offered to grieve both 'denial[s] of tenure'. One faculty member has agreed, the second has left Pratt Institute.
 
Although I believe the above record and history demonstrates definitively that Pratt Institute acted unilaterally in crafting a 'determination' that directly impacts, prejudices and discriminates against the UFCT bargaining unit, I recognized the difficulty in proving the UFCT would not have been aware of this administrative practice (dating back over a decade) and subsequently withdrew what was originally an 8(a)(5) charge filed on October 17, 2005 and filed the heretofore 8(a)(3) charge of discrimination.

In Conclusion:
 
[Please refer to the 'statistical analysis' that follows]
 
The Administration's practice of conferring various faculty actions including reappointment w/tenure, to non-faculty, non-bargaining unit members is discriminatory:

  • The 'tenure-track' for Pratt's few full-time faculty is a seven-year probationary period in which one's teaching effectiveness and professional competence is evaluated yearly — this a condition for reappointment and still the bedrock qualifications for tenure [note AAUP standards].
  • Of the roughly nine hundred faculty Institute-wide, only one hundred twenty are full-time.
  • It wasn't until fall 2003 that the UFCT discovered the Pratt Administration told a number of sitting chairpersons that while they were administrators, they could apply for and be tenured (for the future) should they return to, or enter the faculty ranks. For over twenty years – from the UFCT's inception in 1972 to 1994 – there was never a practice of conferring faculty actions to non-bargaining unit members. This [Minkoff] determination was deliberately withheld from the Union. Why would such a determination have been necessary if a past practice of conferring faculty actions to non-bargaining unit members already existed
  • What is the meaning of tenure in this context? What qualifications are necessary and what standards of 'eligibility, fitness and evaluation' are implemented when conferring tenure to the ineligible?
  • There have been a total of fifty-three (53) applications for reappointment w/tenure since 1994: forty-five (45) conferrals and eight (8) denials (see attached statistical analysis).
  • All eight (8) denials were of faculty.
  • Fifteen (15) or thirty-three percent (33%) of the forty-five conferrals have gone to sitting chairpersons.
  • Every chairperson deemed to have 'faculty status' by management has been granted tenure. In other words, these chairpersons have a 100% chance of being conferred tenure by this procedure.
  • The legitimate and eligible full-time faculty has now only a 56.6% chance of being conferred tenure.
  • This practice has given an unfair advantage to those applicants who are ineligible for tenure and discriminates in their favor.
  • Article I 'Recognition' is quite clear about who is included and who is excluded from the Unit. As such, chairpersons cannot be "treated as faculty in respect to seniority, promotion, Certificate of Continuous Employment, and Tenure as provided for in the Collective Bargaining Agreement with the United Federation of College Teachers [UFCT]" contrary to, and in spite of, Jack Minkoff's 1994 claim.

     
    Respectfully Submitted,
     
    Kye Carbone
    Adjunct Professor w/CCE
    President UFCT Local 1460
     
    Cced:
     
    Alvin Blyer, Regional Director, NLRB, Region 29
    Peter Barna, Provost, Pratt Institute
    David Zurndorfer, Esq., Proskauer Rose LLP
    Judy Sandler, Esq., NYSUT
     
    ——————————————————————————–
     
    Statistical Analysis:
     
    Conferral of Reappointment w/Tenure 1993-2005
     
    Academic-Year  Conferrals Denials  Faculty  Chairs  Total
    1993-1994         2              1           0           2         3
    1994-1995         4              0           4           0         4
    1995-1996         7              2           5           2         9
    1996-1997         1              1           1           0         2
    1997-1998         4              0           3           1         4
    1998-1999         2              2           1           1         4
    1999-2000         0              0           0           0         0
    2000-2001         5              0           2           3         5
    2001-2002         4              0           4           0         4
    2002-2003         7              0           5           2         7
    2003-2004         2              2           0           2         4
                             [45]           [8]       [30]       [15]     [53]
     
    30 out of 38 faculty members were granted tenure. During that same time period 15 out of 15 chairs were granted tenure. The statistical question is did the faculty and the chairs each have the same chance of being granted tenure?
     
    First, a model for the analysis:
     
    Let p be the probability that anyone who comes up for tenure will get it. [To give an idea of the meaning of this mathematically, we often in the tossing of a coin, consider the probability of tossing a head's p = ½, this is often bourn out by seeing for example, that out of 1000 tosses maybe 497 might come out heads. The law of large numbers indicates that this should probably be close to .5. In this example we say the sample mean was .497.]
     
    Let us assume that the granting of tenure is a binomial distribution with probability p, (this means each person has chance p of getting tenure and each persons outcome does not influence the granting of tenure of another person.) For the faculty we have a sample mean of 30/38 = .79. Our null hypothesis is that the faculty and chairs have the same p. (We are testing the probability that this is a reasonable likelihood.)
     
    Moreover, we would like to know how close .79 is to p. Using one tail of a binomial distribution we find that p < .851 with a 90 percent confidence limit. And for any such p we have that the probability of 15 chairs with the same p has less than 8.9% chance of occurring. So it is more than likely the chance of a chair getting tenure has a p, which is larger than that for a member of the faculty. If we want a confidence limit of 95% then p < .88 and the probability of 15 chairs with the same p have a chance of less than 12.3% of occurring.
     
    Conclusion:

  • There were 53 applications for reappointment w/tenure in the 1993-2005 period.
  • There were 45 conferrals: 15 to sitting chairs (*or* 33.33% of all tenure conferred) and 30 to eligible full-time faculty.
  • In this same period, there were 8 denials — all eligible faculty applicants.
  • In the same period, all 15-chair applicants — non-faculty and ineligible for faculty action – have been conferred 'faculty' tenure.