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Title: University of Hawaii and University of Hawaii Professional Assembly
Date: 1999
Arbitrator: 
Michael Nauyokas
Citation: 1999 NAC 136

 

 

In the Matter of Arbitration Between

                  Between                                

UNIVERSITY OF HAWAII PROFESSIONAL ASSEMBLY,                 

                                    Union,                           

                  And                          

UNIVERSITY OF HAWAII,                                                                                       

                                    Employer.                   

_________________________________

 

Grievance of BEEI-HUAN CHAO, Ph.D.

 

MICHAEL F. NAUYOKAS
Attorney At Law & Arbitrator
Specializing in Employment and Labor Law
Grosvenor Center, Makai Tower
733 Bishop Street, Suite 2300
Honolulu, Hawaii 96813
Telephone: (808) 538-0553
Facsimile: (808) 531-3860
Arbitrator

I.          INTRODUCTION

                        This matter was heard at the University of Hawaii Student Service Center, Honolulu, Hawaii on Monday, July 19, 1999.  Representing the University of Hawaii Professional Assembly (hereinafter "Union") was Wade C. Zukeran, Esq.; representing the University of Hawaii (hereinafter "Employer") was Evelyn H. Nowaki, Esq.  Also present were the Grievant, Beei-Huan Chao, Ph.D. and James Kardash, Ph.D. for the Union.  The Arbitrator made a full disclosure of all potential conflicts and such conflicts were waived by the parties to the arbitration.  The hearing was transcribed, and the parties submitted post-hearing briefs.  The parties were fully and competently represented by counsel.

Pursuant to the stipulation of the parties, the issues to be decided by this arbitration are:

1)         Is this claim arbitrable under the Collective Bargaining Agreement currently in force?

2)         Has the Employer breached Article XI, Section L.8., by failing to appoint a second Hearing Officer in the tenure and promotion review process when considering the question of whether the Grievant should be promoted and granted tenure at the University of Hawaii?

3)         If the Employer has breached the Collective Bargaining Agreement, what is the remedy?

The parties also entered into the following stipulations regarding evidentiary burdens and the interpretations of the Collective Bargaining Agreement:

1)         The Union must carry the burden of evidence to show a breach of the Collective Bargaining Agreement by the Employer.  Therefore the Union, by agreement, was granted the opportunity to present its case first.

2)         With respect to the arbitrability or non-arbitrability of the controversy, the burden was upon the Employer to show that this matter was not subject to arbitration under the Collective Bargaining Agreement.

3)         Article XI of the Collective Bargaining Agreement was followed up and through the Employer's Senior Vice President Smith's denial of tenure to the Grievant on

            April 13, 1999.

4)         The Collective Bargaining Agreement for the 1995 through 1999 time period was in effect at all relevant times for the purposes of this grievance and arbitration.

II.         FACTUAL BACKGROUND

                        This arbitration involves the tenure and promotion review process at the University of Hawaii, an institution of higher education operated by the State of Hawaii, which was utilized in the denial of promotion and tenure to Dr. Beei-Huan Chao (hereinafter "Grievant"), who was a Union member, and whether the Employer breached the Collective Bargaining Agreement by failing to follow the procedures set forth in the Agreement.

                        The Grievant was an assistant professor in the Mechanical Engineering Department, College of Engineering at the Manoa campus of the Employer.  He first worked at the Employer's campus at the beginning of the 1992-93 academic year.  He applied for tenure with automatic promotion during the 1997 fall semester.  The Department Personnel Committee, the Department Chair, and the Dean of the school all recommended against tenure.  Under the procedures applicable under the Collective Bargaining Agreement, the application was then passed to a Tenure and Promotion Review Committee (hereinafter “TPRC”).  This committee conducted an independent review and recommended that tenure be granted to the Grievant.  The application for tenure and promotion was then passed to the Senior Vice President of the Employer,

Dr. Smith, who determined that the Grievant's application was such that he should not be granted tenure by the Employer.  Following this determination, the academic year 1998-99 was designated by the Employer as the terminal year for the Grievant's employment.

                        Under the process described in Article XI, the Union requested the appointment of a Hearing Officer to review the application of the Grievant.  A Hearing Officer was selected following the meeting between the Union and the Employer.  The Hearing Officer conducted an extensive review of the Grievant's research work and the tenure application process, and made the determination that the agreement and its supplemental guidelines and procedures had been violated and that this violation had prejudiced the tenure decision.  The Hearing Officer's recommendation was that the Board of Regents grant the Grievant tenure.  The Regents denied tenure once again and the case was remanded to the Hearing Officer who recommended that a second TPRC review the Grievant's application for tenure.

                        The second TPRC likewise recommended that tenure be granted to the Grievant.  At this point Dr. Smith, the Employer 's Senior Vice President, again decided that the Grievant should be denied tenure and advised the Grievant that his employment would be terminated by the Employer on June 30, 1999.

                        The Union notified the Employer that due to the negative decision on tenure the Union wished to request a meeting to select a second Hearing Officer under Article XI of the Collective Bargaining Agreement.  The Union likewise requested that the Grievant be granted an additional year of employment.  Both the request for the appointment of a second Hearing Officer and an extension of the Grievant's employment contract were denied by the Employer.  The Grievant then initiated the grievance procedure which led to this arbitration.

                        The parties have stipulated to the following facts with respect to this denial of tenure and promotion:

1.         The Grievant applied for tenure and promotion in the fall of 1997.

2.         The Department Promotion Committee recommended against tenure and promotion for the Grievant.

3.         The Department Chair recommended against granting tenure and promotion to the Grievant.

4.         The Dean recommended against tenure for the Grievant.

5.         A TPRC was appointed and recommended that tenure and promotion be granted to the Grievant.

6.         The Employer's Senior Vice President, Dr. Smith, denied tenure and promotion to the Grievant on April 9, 1998.

7.         The Union requested that a Hearing Officer be appointed to review the denial of tenure and promotion to the Grievant.

8.         The Hearing Officer appointed recommended that the Board of Regents grant the Grievant tenure on Sept. 25, 1998.

9.         The Board of Regents remanded the application for tenure to the Hearing Officer to choose one of the three options set forth in Article XI, Section L.8.a, on November 13, 1998.

10.       The first Hearing Officer selected the second option under which a new tenure promotion review committee would be appointed to review the situation on December 2, 1998.

11.       The second tenure promotion review committee recommended that tenure be granted to the Grievant on February 25, 1999.

12.       Employer's Senior Vice President Smith denied Grievant tenure on

            April 13, 1999.

13.       The Union requested that a second Hearing Officer be appointed via a letter dated April 27, 1999.

14.       The Employer denied the Union's request for second Hearing Officer by a letter dated May 13, 1999.

                        In addition to the stipulations set forth above, the Arbitrator notes that the 1995-1999 Collective Bargaining Agreement between the Union and the Employer sets out the grievance procedure that is effective in this particular instance, stating:

A grievance is a complaint by a faculty member or the Union concerning the interpretation and application of the express terms of this agreement.

Article XXIII.A.  Grievance procedure.

The agreement goes on to state:

No grievance may be arbitrated unless it involves an alleged violation of a specific term or provision of the agreement. 

It states further, that;

if the Employer disputes the arbitrability of any grievance, the Arbitrator shall first determine whether the Arbitrator has jurisdiction to act; and if the Arbitrator finds no such power, the grievance shall be referred back to the parties without decision or recommendation on its merits.

Article XXIII, 2 Formal Grievance Procedure.  Step 3.  Arbitration.

The agreement likewise sets out in Article XI.  TENURE AND SERVICE Section L.  NEGATIVE TENURE ACTIONS C.:

Neither the procedures nor the decisions arising out of Section L. 8. a. and b., Negative Tenure Actions, shall be subject to further review under Article XXIII, grievance procedures.

                        Evidence and testimony at the hearing demonstrated that in a prior incident a faculty member, who applied for tenure in the fall of 1995 and received a negative tenure decision by the senior vice president, had not only a second tenure promotion review committee appointed, but also had a second Hearing Officer appointed.  In this particular instance, the first Hearing Officer had selected the option available under the Collective Bargaining Agreement which had extended the faculty member’s probationary period by a year.  The second TPRC process took place after the extended probationary period.  The second Hearing Officer was appointed following a requested meeting by the Union with the Employer; the second Hearing Officer recommended tenure; and, the Board of Regents granted tenure to the faculty member in July of 1996.

III.        THE UNION'S POSITION

                        The Union takes the position that the Collective Bargaining Agreement was violated by the Employer after the first Hearing Officer sent the process back to the second TPRC and a second review by the senior vice president arguing that the violation occurred when the Union requested a meeting to select a second Hearing Officer and the Employer refused to meet with the Union regarding the appointment of the second Hearing Officer.  The substance of the Union’s argument is that under the Collective Bargaining Agreement the Hearing Officer determines whether or not there has been violation of the Collective Bargaining Agreement or substantive procedural violations in the tenure review process.  The Union's position is that the Hearing Officer, not the Employer and not the Arbitrator, must make the decision as to whether or not there were procedural violations in the tenure and promotion review process.

                        The purpose of this grievance, according to the Union, is not for the purposes of a substantive review of the tenure decision, but to move the process forward for further determination by a Hearing Officer selected under the Collective Bargaining Agreement.  The Union argues that violation of the Collective Bargaining Agreement by the Employer in this matter was its denial of the Union's request for a second Hearing Officer to be selected to address the remedies available following the recommendation of the second TPRC. 

                        The Union takes the position that the prior course of dealings between the Union and the Employer shows that the intention of the parties, as evidenced by the Collective Bargaining Agreement and past dealing by the parties, was to give the Hearing Officer jurisdiction over the remedies available under the contract, and that the previous instance where a second Hearing Officer was appointed demonstrates that this was the understanding under the agreement.  Further, the Union argues that any other interpretation of the Collective Bargaining Agreement would lead to an absurd result which would allow the Employer to effectively stop the bargained for appeal process while ignoring the findings of the TPRC and the Hearing Officer appointed under Article XI.

                        The Union indicates that evidence shows that this is an arbitrable controversy and that the appropriate remedy is for the Arbitrator to order the Employer to meet with the Union and select a second Hearing Officer to complete the process set out under the Collective Bargaining Agreement.

IV.       THE EMPLOYER'S POSITION

                        The Employer takes the position that this grievance is not arbitrable under the Collective Bargaining Agreement as the review of any negative tenure decision is necessarily performed pursuant to Article XI of the Collective Bargaining Agreement.  Under section L. 8.a. the Grievant elected to go through the appeal process that was available under the Collective Bargaining Agreement and negative tenure decisions are not subject to review under the Article XXIII procedures of the Collective Bargaining Agreement by express limitations set forth in Article XI.

                        The Employer also distinguishes the matter under consideration in this arbitration from the prior incident wherein a second Hearing Officer was appointed, noting that: first, the previous matter arose in 1995 under the Collective Bargaining Agreement in force during 1993-95; and second, that the first Hearing Officer in the previous matter selected the third option available under the Agreement which extended the faculty member's probationary period for an additional year.  This option created a new, distinct application for tenure.  The Employer argues that this option allowed the faculty member an additional year to do teaching, research, and community service projects which were then incorporated into a new dossier which was the subject of a new peer review process.  The Employer argues that this distinction required the appointment of a second Hearing Officer because this was essentially a second application for tenure and promotion.

                        The Employer takes the position that the language of the Collective Bargaining Agreement is clear and unambiguous with respect to the fact that neither procedures nor decisions under Article XI are subject to further review under the Article XXIII grievance procedures.  The Employer argues that the Collective Bargaining Agreement does not provide for any form of appeal from the second tenure promotion review committee decision and that the decision of the Hearing Officer as to the remedy is final and binding on all parties. The Employer’s position is that the refusal of the Employer to meet and/or discuss the selection of a second Hearing Officer following the recommendations of the second TPRC was not a violation of a specific provision of the Collective Bargaining Agreement.

V.        ARBITRATOR'S ANALYSIS

            A.        THE ISSUE OF ARBITRABILITY.

                        Under the terms of the Collective Bargaining Agreement, Article XXIII, a grievance may be brought by either a faculty member or the Union concerning the interpretation and application of the express terms of the agreement.  The issue is whether or not the refusal of the Employer to meet and confer regarding the appointment of a second Hearing Officer under the terms of the language currently in force in the Collective Bargaining Agreement applicable to this arbitration was, in fact, a violation of that agreement. 

                        On the one hand, the Employer argues that there is no provision of the Collective Bargaining Agreement which allows for second Hearing Officer or an appeal from a second tenure promotion review committee report.  The Union appropriately observes that likewise there is no prohibition in the Collective Bargaining Agreement which disallows the appointment of a new tenure promotion review committee or a second Hearing Officer.  In fact, the available options set forth in the contract clearly contemplate that the Hearing Officer may:  "direct that a new tenure and promotion review committee be appointed in accordance with the provisions of this agreement.”  Essentially, once a new committee has been appointed in accordance with the provisions of the agreement, there is no guidance with respect to whether or not a new Hearing Officer must be appointed under the Collective Bargaining Agreement.  However, likewise the contract language itself is silent with respect to who has the final word and whether or not the second TPRC process and a subsequent denial of tenure by the Board of Regents effectively ends the tenure review process.  The language which contains this patent ambiguity sets forth in pertinent part:

In cases where the Board of Regents does not grant tenure, the issue will be sent back to the Hearing Officer who shall direct a remedy as provided in subparagraphs 1, 2, or 3, as set forth above. 

The decision of the Hearing Officer with respect to subparagraphs 1, 2, and 3 above shall be final and binding on the parties.  The decision of the Board of Regents, with respect to the granting of tenure, shall also be final and binding on all the parties.

A plain-meaning reading of the contract language, which the Employer insists must be applied, shows an ambiguity in the language which leads into the very endless loop that the Employer argues against.  Essentially, in two instances the TPRC appointed under the process recommended to the Board of Regents that granting the Grievant promotion and tenure was appropriate under the circumstances.  In two separate instances the Board of Regents through the Senior Vice President denied tenure.  The first Hearing Officer recommended tenure to the Senior Vice President, who denied tenure and remanded the matter back to the Hearing Officer who then had the option of ordering the establishment of a second TPRC, which the Hearing Officer did.  The second TPRC also recommended tenure.  Under a plain-meaning reading of the language, when tenure is denied the application will be sent back to a Hearing Officer who will then elect one of the three remedies available.

                        The question remains, where does the process end?  In the Arbitrator 's opinion, the Collective Bargaining Agreement is silent on that point.  In construing the arguments of the parties relative to the prior instance in which a second Hearing Officer was appointed following an additional probationary period, the Arbitrator finds the distinction between the options under which the second TPRC was appointed to be a distinction without a difference because the contract itself does not impose such a limitation.  Likewise, the language in the two contracts is not substantially different.  Clearly this is a matter concerning the interpretation and application of the express terms of the agreement as set forth in Article XXIII of the Collective Bargaining Agreement.

                        The remaining question in determining whether this grievance is arbitrable is whether the language set forth in the agreement[1] prohibits the arbitration of this grievance.  Analytically, as this very language itself must be construed to determine the issue of arbitrability under Article XXIII of the Collective Bargaining Agreement, a facile interpretation would be that obviously the entire question of whether that language applies in this situation makes the entire matter arbitrable.  However, putting aside the facile answer and going to the actual substance of this express limitation on arbitrability of matters related to promotion and tenure in this bargaining unit, the Arbitrator must go to the intentions of the parties as manifested both in the agreement and as adduced by testimony at the hearing.

                        Essentially, the Arbitrator’s understanding of the limitation in the contract language was based upon the Employer’s desire to avoid the grievance procedure and labor arbitrations under the Collective Bargaining Agreement in matters involving tenure and promotion of Union members.  That is, the intention was to deny access to an Arbitration in situations where there has been a negative tenure decision under Article XI by setting out an internal review process excluded from arbitration and grievance under Article XXIII of the Agreement.  The very complex process set forth in the Collective Bargaining Agreement is essentially a bargain set out between the Union and the Employer which allows for a peer review process of faculty members who have been denied tenure.

                        In the setting of a University[2], and under the procedures laid out in the Collective Bargaining Agreement, the denial of tenure and promotion is essentially a termination of employment for employees who have committed themselves to the Employer’s service for an extended term.  Because of these factors, the entire process of promotion and tenure in this setting should be subjected to a heightened level of scrutiny.  The meaning of “procedures” in the context of the limiting language of Article XI is not clearly defined, however a commonsense interpretation based upon the Agreement construed as a whole would be that “procedures” in the restrictive language of Article XI refers not to the uncompleted procedures yet to be performed, but rather to a restriction on further retrospective review of the procedures already completed by the Hearing Officer in situations where a negative tenure decision was found to be appropriate.

                        The question currently before the Arbitrator is not a substantive review of the Grievant’s denial of tenure, but rather an interpretation of whether there has been a violation of the Collective Bargaining Agreement by the Employer’s refusal to appoint a second Hearing Officer.  The argument by the Employer that the Article XI limitation on grievance and arbitration in the review of negative decisions of tenure and promotion prohibits the grievance of a refusal of the Employer to prospectively follow a particular procedure or to construe a patent ambiguity in the contract language would essentially lead to the result that the Employer could refuse to follow any process or procedure set forth in Article XI and the Union or its members would be powerless to grieve the refusal under Article XXIII of the Collective Bargaining Agreement.  The Arbitrator finds this logical extension of the Employer’s argument to lead to an unacceptable and absurd result.  The law on collective bargaining in public employment requires that both the Employer and the Union bargain collectively and in good faith.  Board of Educ. V. Hawaii Pub. Emp. Relations Bd., 56 Haw. 85, 528 P.2d 809 (1974).  In enacting Chapter 89 of the Hawaii Revised Statutes, under which this Collective Bargaining Agreement was created, the legislative intent[3] was to allow the public employees and employers to freely negotiate the terms of their agreement as long as those terms are consistent with merit and equal pay principles and do not interfere with the duty of the Employer to carry out its responsibility. Id.

                        At the hearing in this matter, Dr. Musto, the Executive Director and Chief Negotiator for the Union, who had personal knowledge of the negotiation history of Article XI, testified that previous versions of the Agreement had almost surrendered the member’s right to a review and appeal process, and that subsequent negotiations between the parties had been characterized by the Union’s attempt to get the tenure denial back as an arbitrable issue.  His testimony was that the current Hearing Officer procedure was an accommodation.  Dr. Musto also testified that during the negotiation of the contract governing this matter, the Union’s initial objective was to totally abandon the Hearing Officer process and return to having matters of negative tenure decision become grievable, and therefore, subject to arbitration.  The Employer rejected this objective and an impasse in the negotiations and a strike ensued.

                        Dr. Bopp, the Employer’s Assistant Vice President for Academic Affairs, testified that the Employer’s interpretation of the terms of the Collective Bargaining Agreement was that the second iteration of the cycle essentially ended the Tenure and Promotion review process, and that a second denial of tenure by the Employer was then binding, regardless of the recommendations of the second TPRC.  Dr. Bopp also testified that the process was essentially the same under the prior contract where a faculty member was granted tenure following a second TPRC and a second review by a second Hearing Officer.  Dr. Bopp indicated that the Employer viewed this to be a substantially different matter because the first Hearing Officer had not called for a second TPRC, but had, rather, chosen the contract option that extended the member’s probationary period by a year.

                        In analyzing this testimony and the voluminous exhibits produced by the parties at the hearing, the prior bargaining history, and the plain meaning of the language in the Collective Bargaining Agreement, the Arbitrator makes the following determinations:

1)         The objective of the parties to the Collective Bargaining Agreement was to provide members with a procedure to ensure a fair review of the tenure and promotion process and procedures.

2)         The procedure under the Collective Bargaining Agreement vests in the Hearing Officer appointed under Article XI the obligation to determine whether or not there has been a violation of the procedures involved in the tenure review process.

3)         The Collective Bargaining Agreement does not put a limit on the number of times that the cycle of denial of tenure and subsequent remand and review may take place.  It clearly requires that in each instance of a denial of tenure following a review which has recommended tenure and/or found gross procedural violations which prejudiced the tenure application process, that the matter be remanded to a Hearing Officer who may then take the corrective actions laid out in the Agreement.[4]

4)         The process does not terminate until either the applicant is granted tenure, or tenure is denied and the Hearing Officer determines that there have been no procedural violations, not upon the second denial of tenure by the Employer.

5)         In the current instance, the grievance clearly arose over the failure of the Employer to honor a bargained-for obligation under the Collective Bargaining Agreement.  The language limiting the arbitrability of negative tenure decisions does not limit the ability of the Union to grieve violations of express terms of the collective bargaining agreement.

6)         Regardless of the prior course of dealing in other TPRC processes, the contract language requires that a Hearing Officer continue to review the process until no procedural violations are found in the denial of tenure.  Once that has been done the process ends.

                        The Employer has not met its burden of Evidence on the issue of arbitrability and as this is a substantive contractual term not limited by Art. XI, therefore this grievance is arbitrable.

B.        THE ISSUE OF VIOLATION

Did the Employer’s Refusal to Meet and Select a Second Hearing Officer Violate the Collective Bargaining Agreement?

                        Having reviewed the analysis set forth in determining the arbitrability of this controversy, the Arbitrator finds that the Union has met its burden of showing that the refusal to remand the negative tenure decision to a Hearing Officer selected under the procedure laid out in Article XI was a violation of the Collective Bargaining Agreement.

DECISION AND AWARD

                        Based upon the determination that this grievance is Arbitrable under Article XXIII of the Collective Bargaining Agreement, and having found a violation of  the Collective Bargaining Agreement in the refusal of the Employer to meet and appoint a second Hearing Officer following the terms laid out in Article XI, the Arbitrator hereby instructs the Employer and the Union to meet within thirty (30) days of the date of this decision and select a second Hearing Officer.

            DATED: Honolulu, Hawaii,                                     , 1999.

                                                                                    ______________________________
                                                                                    MICHAEL F. NAUYOKAS
                                                                                    Arbitrator

STATE OF HAWAII                                   )
                                                                     )           SS
CITY AND COUNTY OF HONOLULU     )

            On this _______ day of ________________, 1999, before me personally appeared Michael F. Nauyokas, to me known to be the person described in and who executed the foregoing instrument and acknowledged that he executed the same as his free act and will.

_____________________________________
Lorena A.Y. Leigh
Notary Public, State of Hawaii
My commission expires: _________________



[1]"Neither the procedures nor the decisions arising out of Section L. 8. a. and b., negative tenure actions, shall be subject to further review under Article XXIII, grievance procedures."

[2] The Arbitrator must note that this bargaining unit is excluded from coverage under the National Labor Relations Act and therefore involves a contract which was specifically created under the auspices of the Hawaii legislature under Chapter 89 of the Hawaii Revised Statutes.

[3]The arbitrator must note, although neither of the parties has raised this issue, that Chapter 89 of the Hawaii Revised Statutes allows the parties to "... negotiate procedures governing the promotion and transfer of employees to positions within a bargaining unit, procedures governing the suspension, the demotion, discharge or other disciplinary actions taken against employees, and procedures governing the layoff of employees; provided further that violations of the procedures so negotiated may be the subject of the grievance process agreed to by the employer and the exclusive representative." [Emphasis added] Hawaii Revised Statutes § 89-9.  This language would clearly indicate a legislative intent in the formation of the organic statute which allowed the creation of the Collective Bargaining Agreement here in issue to retain a grievance procedure specifically for procedural violations in situations involving promotion and tenure.  While this statutory language is not absolutely dispositive, it is fully concurrent with the arbitrator's analysis of the current situation. 

[4]Dr. Musto’s unrebutted testimony was that this precise issue was discussed during the negotiations with the Employer’s chief negotiator:

A.                     I had a real straightforward and direct question for Mr. Kimura.  I said, you do realize that  this means that this process could go on in perpetuity?  And he said, yeah, but we don’t think it will.
Q.         What did that mean?
A.                     That we could continue to regenerate in a circle hearing officers.  His response was, “well, somebody is going to finally make a decision and it is going to be - - the matter is going to be determined and there won’t be any other cause of action at some point.”
                        I said, are you sure you understand that?  And he said, “yes.  This means - - in fact, the other thing is, I said, this is a lot of time and money on your part to continue to go around.”
                        He said, “I know.”

THE ARBITRATOR:        So he said it would go on in perpetuity, but he didn’t believe that it will or the Employer didn’t - -

THE WITNESS: I said, “in perpetuity,” and he said, “yeah, but I don’t believe it will.”

 

 

  

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