A Collaborative Approach to Grievance-Arbitration Resolution at Higher Education Institutions

NOTE: This article, published by the College and University Personnel Association, was formerly found at http://www.cupa.org/WFJrnl8.html

By Michael Pernal, Ph.D.

Within the context of collective bargaining in higher education, the role of arbitration by an external agent varies. Certainly, the Yeshiva Decision (National Labor Relations Board v. Yeshiva University 99 S. CT 12/2, 1979) makes the utility of arbitration involving faculty a moot point for a number of private institutions. In many public institutions, however, various state laws permitting collective bargaining for faculty and middle management employees have made arbitration a fact of life. Even for those institutions without mandatory collective bargaining, it is not uncommon for formal regulations for resolving disputes between administrations and their employees to include a role for some outside agent to resolve disputes within the process. It is also a fact of life that arbitration can be costly and time consuming for both institutions and employees.

The purpose of this article is to present one example of a grievance-arbitration process currently used by the Connecticut State University System (CSU System). This process can be easily adopted by either (1) multicampus institutions such as university systems; or (2) single institutions with large, separate units enabling sufficient objectivity and detachment to enter into the process. Briefly stated, this process consists of a grievance-arbitration panel comprised in equal parts of employees representing the administration and faculty members. These individuals must have sufficient distance from the area of dispute to guarantee some measure of detachment. This particular grievance-arbitration system is used for faculty but could easily be adopted for bargaining units representing other professionals, such as unionized administrators and technical personnel. In the CSU System, the grievance-arbitration panel is the final step before professional arbitration is engaged.

Background and Description of the Process

The Collective Bargaining Agreement of 1977 (CBA) and its successors call for three grievance steps at the local university level. Issues that are not resolved at Steps 1, 2, or 3 may be referred by the grievant to the grievance-arbitration panel at Step 4.

The grievance-arbitra-tion panel serves as the grievance forum for teaching faculty in the four universities of the system: Central, Eastern, Southern, and Western Connecticut State Universities. These faculty members were and currently are represented by the American Association of University Professionals (AAUP). In 1977, the first collective bargaining agreement between the faculty of these four schools and the system board of trustees went into effect. Within the development of grievance language, the parties to that first contract attempted to develop a level of resolution that would minimize the need for and expense of arbitration and permit the parties to resolve difficult issues themselves. Since that time, this process has handled approximately 65 grievances at the Step 4 level, and has continued, except for some fine tuning, without change. During that same period since 1977, only two of the grievances to reach Step 4 have gone to outside arbitration.

The authors of the CBA determined that each panel should be comprised of three members of AAUP and three members of the administration, with the stipulation that no panel member could be from the university where the grievance originated. In practice, this resulted in a uniform panel composition of two members from each of the three sister institutions in the system, and one each from AAUP and management. The three union members are selected by AAUP, and the three managers by the administration. Panelists have included, for the most part, human resource or labor relations professionals on the management side; however, various deans, associate deans, and vice presidents also have served.

The panel is coconvened by the system office chief personnel officer (or designee) and the system head (or designee) of AAUP. The six panelists are administered the arbitrator's oath in accordance with Connecticut state law, after which the coconvenors absent themselves from the process, playing no role unless called upon by the panel for technical advice. The panel also selects a chair.

From this point, the proceedings-which are taped or recorded by direct transcription-progress as a standard arbitration. Management and union representatives (or their attorneys) present the case. The proceedings include swearing in the witnesses, direct testimony, cross examination, and redirect testimony, along with opening and closing statements. Exhibits are usually presented, and, in some cases, briefs and reply briefs are submitted for the panel's deliberation. In cases involving sensitive issues, presidents and vice presidents have given testimony.

The major ingredient of this process lies in the fact that any decision of the panel (that is, any agreement receiving at least four out of six votes) results in a final resolution of the issue, and outside arbitration cannot be pursued. Not only is a decision at this level binding on the parties to the grievance, it also is binding on all four universities.

Only in the event of a 3-3 tie vote can either party, if it chooses, take the issue to outside arbitration. The post-hearing deliberations by the panel are in closed session and the voting is by secret ballot, with only the chair communicating the decision to the coconvenors for issuance. All six members of the panel are required to sign the decision.

The Process in Practice

When the Step 4 panel was first put into practice in 1977, it was met with a great deal of skepticism on the part of both faculty members and managers. A series of 3-3 tie votes was forecast, particularly since, at this point, any grievance already had been through three steps on the local campus where, it was felt, any accommodation that was possible already would have been made.

The first grievance to reach Step 4 originated at Central Connecticut State University in the Fall of 1977 and concerned itself with a technical interpretation of leave policies. The grievance hearing consisted of three administrators and three faculty members sitting on opposite sides of the table arguing their respective management and faculty positions and, predictably so, voting to a 3-3 deadlock. At that point, it certainly appeared that such a system would never work.

It was then that the parties to the collective bargaining agreement decided to make an attempt to develop a more viable system. Since the contract language concerning Step 4 provided little detail about the process, university officials and union leaders consulted their respective labor relations counsel and the office of the state's attorney general, which provided advice on the conduct of standard arbitrations. Using the advice obtained from counsel, formal procedures were written to guide future panels in the carrying out of their responsibilities as arbitrators. The revised procedures follow the standard arbitration format described previously-six panelists who have taken the arbitrator's oath, and university representatives and faculty members who present their cases with direct testimony, cross examination, redirect testimony, opening and closing statements, etc.

Step 4 panels have heard dozens of grievances using this revised process. Topics have ranged from grievances over discipline (including suspension), denial of tenure, evaluation procedures, attendance issues, pay disputes, denial of leave, discrimination, harassment, and virtually every major topic affecting faculty. To resolve matters of academic freedom, a similar but separate process was put into place with individuals trained specifically in that area.

Training Panelists

Over time and as new individuals were identified for possible service, joint training in the arbitration process was undertaken under the direction of practicing arbitrators. These periodic training sessions have proven to be instrumental in raising the level of sophistication of panelists in their conduct at actual Step 4 arbitrations.

The periodic training was conducted in one-day sessions by professional arbitrators and involving both experienced and newly selected panelists working in groups of six. In the morning, the trainers provided brief case study situations that were discussed by individual "panels" with "decisions" reported back to the total group in general session. Following these reports, the trainer provided the decision which had been rendered in the actual arbitrations upon which the case studies were based.

The afternoon portion of the training consisted of a single mock arbitration with members of management and AAUP presenting a hearing designed to illustrate the various aspects of a typical hearing. Following the hearing each group of panelists discussed its case and then communicated its decision to the total group. Following the various "panel" decisions, the trainer provided his or her decision and discussion ensued analyzing the various thought processes involved.

Establishing the Arbitral Authority of the Step 4 Panel

Perhaps the defining grievance that solidified the process and established the panel as having arbitral power under state law occurred early on in 1978. A grievance arising from Southern Connecticut State University was filed by the varsity volleyball coach. The coach had put in a request for travel reimbursement to attend a conference in California, which was approved by the president but subsequently rejected by the state comptroller. Under state law, the comptroller had the authority to approve all state travel reimbursements, although the collective bargaining agreement of 1977 gave such "full authority" to each university president as a delegate of the board. When that first collective bargaining agreement had been negotiated, the provision on faculty travel had been presented to the state legislature as a replacement for the existing law and subsequently passed. Simply stated, the comptroller believed he was not bound by the agreement because his office had played no role in the negotiations.

The state comptroller, therefore, refused to reimburse the coach on the basis that the president's contractual approval authority did not extend to a circumvention of existing state travel regulations that required the comptroller's final approval. This action prompted the coach to file a grievance. Since the university president had approved the trip reimbursement, the grievance was waived at the three local steps and presented to a Step 4 panel, which held for the grievant by a 6-0 vote. After the state comptroller rejected the panel's order to reimburse, the executive director of the CSU System requested a ruling by the state attorney general. In a response February 22, 1978, the attorney general wrote:

To construe Article 13.1.1 as consistent with state travel regulations would mean that the final authority for the authorization of out-of-state travel would lie with the Comptroller. Such a construction would deny the Board of Trustees "full authority" or control over out-of-state travel. The authorization of the Board would amount to a mere recommendation with the decision making power being retained by the Comptroller.

The attorney general went on to state that "the parties intended the final decisionto lie with the Board of Trustees and therefore conclude that the regulation has been superseded." This ruling by the attorney general, which resulted in reimbursement to the coach, not only validated the grievance decision of the Step 4 panel, but also established the decisions of that and subsequent panels as having arbitral authority.

Additional Measures to Ensure the Panel's Integrity

Since the attorney general's ruling, other steps have been taken to ensure the continued integrity of the process. Panelists selected for an individual grievance are not provided a copy of the grievance form or information about the issue until they appear to serve on the date of the hearing. When cases take more than one session or the panel must meet on separate dates to deliberate, individual panelists do not discuss the case with each other, except in the presence of all six.

Over the years, the process has benefitted from cooperation between AAUP and the administration in making certain that individual panels are comprised of a mixture of experienced members and newcomers selected because of either their experience in the subject matter of a particular grievance or their general reputation for fairness and objectivity.

Rendering a Decision

The decision, which is usually written by the chair, has come over time to take the form of that written by an external arbitrator. When a 3-3 deadlock occurs, no written argument accompanies the notification to the coconvenors. When a decision is rendered, however, a complete argument is included. The draft is circulated to the other five panelists and ultimately signed by all members. The process permits the submission of a minority report that may be appended to the official decision by a member voting in opposition to the judgment. Because all Step 4 decisions have systemwide implications, the decisions of the various panels have been filed in the System office and AAUP office to form the "case law" for the process. In 1996, an ongoing project was undertaken to codify all the decisions since 1977 by subject, university of origin, and date to ensure that subsequent panels have the benefit of historical data when writing their own decisions.

During the history of this process, approximately 60 percent of the decisions rendered have rejected those grievances reaching this level. In terms of the voting of the committee, the great majority of decisions have been rendered by votes of 6-0 and 5-1. Very few grievances have resulted in a 3-3 deadlock and, of these, only two have advanced to outside arbitration. Since 1977, only a single attempt was made to vacate a decision in the courts, and this attempt was unsuccessful.

System Successes and Shortcomings

Today, the system enjoys the trust of both faculty and administration alike. Decisions calling for remedy have been promptly implemented in good faith. The general consensus remains that the process has served the CSU System well and has saved thousands of dollars in arbitration fees.

The success of the Step 4 process has not been without shortcomings, mainly in terms of time demands. Certainly, the fact that panelists arrive at the first hearing with no knowledge of the grievance and without a copy of the document itself causes a delay while the grievance form is read. Usually, it takes about 30 minutes for (1) selection of a chair, (2) a private reading of the grievance by the panelists, and (3) certification of the question at arbitration.

That aside, however, the main problem in organization stems from securing a date when six panelists, presenters, witnesses, and one of the two coconvenors can get together for a significant body of time. On occasion, grievances have gone into multiple sessions, although most hearings are concluded in one day with panelists deliberating alone on a second date. Certainly however, the advent of electronic mail has speeded up the process of draft decision review and comment after the secret ballot vote is taken.

In retrospect, these delays have resulted in the process taking approximately one to three months, from filing of the grievance to communication of the decision. In terms of the cost savings, however, the delay has seemed well worth it, and one must even concede that standard arbitrations have been known to take as long.

Conclusion

It is believed that this process could easily be adopted today by either (1) university systems or (2) large institutions containing separate schools, each enjoying sufficient autonomy to provide dispassionate, objective review of cases. In the CSU System, all four universities lie no more than 70 minutes away from the system office, so travel has not been a problem. The expansion of more sophisticated telecommunications could enable this process in systems where travel is a distinct barrier. In fact, the CSU System is currently considering applying technology to its own grievance-arbitration process.

It often is noted in the context of collective bargaining that outside arbitration is a beneficial process and that institutions resolve their own differences at the risk of making bad decisions. In this regard, it should be noted that professional arbitrators who have been engaged to provide training for Step 4 panelists have been generally impressed with the quality of the judgments of previous panels used as case studies, as well as with the written decisions accompanying such judgments.

In conclusion, it is believed that colleges and universities are staffed with personnel who, with training, can obtain the necessary expertise to render fair and impartial decisions no less credible than those issued by professional arbitrators. In the CSU System, 19 years of experience have reinforced the judgment of those negotiators who in 1977 attempted to create a sound process in service of the system.