2005 NAC 128 Cincinnati State Technical and Community College and American Association of University Professors

Title: Cincinnati State Technical and Community College and American Association of University Professors
Date: May 17, 2005
Arbitrator: N. Eugene Brundige
Citation: 2005 NAC 128

The American Association of University Professors (AAUP)
Rodney Rupp and James Bronstrup, Grievants
And
Cincinnati State Technical and Community College

John W. Herbert, Esq.
Blaugrund, Herbert & Martin Inc.
5455 Rings Road, Suite 500
Dublin, Ohio 43017

Donald J. Mooney, Jr., Esq.
Ulmer & Berne, LLP
600 Vine St., Suite 2800
Cincinnati, Ohio 45202

An arbitration hearing was conducted on March 16, 2005 at The Cincinnati State Technical and Community College under the rules of the American Arbitration Association. The parties stipulated that the issue is properly before the arbitrator.

The case arises from a grievance filed September 29, 2004. In that grievance filed by the AAUP on behalf of Rodney Rupp and Jim Bronstrup they assert a violation of Article VII D. The grievance states: “The College has underpaid these two faculty members overload courses delivered.”

During the hearing and in the post hearing briefs the parties relied on several sections of the Collective Bargaining Agreement. Those include:

B. Members of the bargaining unit whose work will be measured in units are instructors and those instructors who have assignments in addition to instruction, including program chairing duties. Workload for each member of the bargaining unit whose work is measured in units shall not exceed twenty (20) workload units per term to a maximum of sixty-four (64) during the four (4) contract terms of any contract year unless agreed upon by the faculty member. The load may exceed sixty-four (64) units to a maximum of four (4) additional units, with the faculty member being compensated for each additional unit at the contractual overload rate for a one-contact-hour course. Such compensation shall be due and payable at the end of the academic year. The maximum number of courses that any instructor may be assigned shall be five (5) per term.

1. New faculty members who begin work after the conclusion of the Early Fall term shall not be eligible for a term off until the next academic year. New faculty who begin work in the Late Fall term shall have workloads not to exceed the workload maximums above. Those who begin work in the winter term shall have workloads not to exceed seventy-five (75) percent of the above annual maximums. Those who begin work in the spring term shall have workloads not to exceed fifty (50) percent of the above annual maximums. Those who begin work in the summer term shall have workloads not to exceed twenty-five (25) percent of the above annual maximums.

2. Faculty members who are on sabbaticals or other approved leaves shall have their maximum annual workloads reduced by 25 percent per term of such leave.

E. Full-time faculty may request overload duties beyond the assigned workload and will be given reasonable consideration in the assignment of overload responsibilities. Full-time faculty members shall be given preference for overload for courses which, within two (2) calendar weeks prior to the start of an academic term, are still listed as "TBA." Compensation for such overload shall be due and payable within the term in which it was incurred.

1. Each program chair, "cluster" chair, department chair or area chair will receive four (4) workload units each term for his or her work as chair, and shall not be assigned more than four (4) classes in any one term.

a. The four (4) workload units assigned to program chairs shall be considered the "base."

(i) The "base" of four (4) units assumes a program or a "cluster" of a size of up to and including forty (40) FTE students registered in the program, not counting students in pre-technology status.

(ii) The program earns one unit for each official "option" or "major," as approved by the Ohio

(iii) If a program is larger than 40 FTEs, the program earns one additional unit for the forty-first (41st) student up to a size of 60 FTEs, and an additional unit each time a threshold of 20 FTE students is crossed.

Whether an area chair or department chair requires additional units over the base of four (4) depends on the particular duties and responsibilities of that position. Such factors as how many full-time faculty fall under the auspices of an area or department chair, how many adjunct faculty are associated with the area or department, how many sections are taught during any given academic term under the auspices of the area or department, and how many separate courses are offered under the auspices of the area or department may be reasons to assign additional workload units. The Dean may assign special project units for these additional responsibilities.

Whether a certificate director receives additional units is dependent on the size and nature of the certificate program and the duties and responsibilities attached to the certificate program. The Dean may assign special project units for these additional responsibilities.

Where, upon agreement of the program chair, the division dean and the affected other faculty members, the duties of program chair are divided between or among two or more people, workload units for that program shall be divided among those performing the duties.

Those members of the bargaining unit who work an overload or those former faculty members who are recognized by the College as Professors Emeriti as of September, 1990, and all members of the bargaining unit who retire in good standing after September 1, 1990, with fifteen (15) or more years of service to the College who perform adjunct work shall be paid on the following basis:

d. Compensation for one or more overload units shall otherwise be per unit $454.

For work performed in the Early Fall term 2003 through the Summer term 2004, the above rates shall be increased by four percent (4.0%). For work performed in the Early Fall term 2004 through the Summer term 2005, the prior year's rates shall be increased by an additional four percent (4.0%).

This written Agreement constitutes the entire agreement between the College and the AAUP and supersedes and replaces any and all agreements, whether written or oral, or expressed or implied, between and concerning the College and the AAUP.

The waiver of any breach or condition of this Agreement by either party shall not constitute a precedent in the future enforcement of all the terms and conditions herein. The non-exercise of rights retained by the College or of rights obtained by the AAUP shall not be deemed to waive any such rights or the right to exercise them in some way in the future.

A. All matters pertaining to wages, hours, or terms and other conditions of employment and the continuation, modification, or deletion of an existing provision of a collective bargaining Agreement are subject to collective bargaining between the Administration and the AAUP, except as otherwise specified in this article.

B. Unless the Administration agrees otherwise in a collective bargaining Agreement, nothing herein impairs the right and responsibility of the Administration to:

1. Determine matters of inherent managerial policy which include, but are not limited to, areas of discretion or policy such as the functions and programs of the College, standards of services, its overall budget, utilization of technology, and organizational structure;

4. Determine the overall methods, process, means, or personnel by which College operations are to be conducted;

5. Suspend, discipline, demote, or discharge for just cause, or lay off, transfer, assign, schedule, promote, or retain employees;

The Administration is not required to bargain on subjects reserved to the management and direction of the College except as affect wages, hours, terms and conditions of employment, and the continuation, modification, or deletion of an existing provision of the collective bargaining agreement. The AAUP may raise a legitimate complaint or file a grievance based on the collective bargaining agreement.

The grievants in this matter are area program chairs. Under the Collective Bargaining Agreement, the job of area chair is awarded a value of “four (4) workload units each term for his or her work as chair” [CBA Article VIII G (1)].

The parties in their Collective Bargaining Agreement have developed a system utilizing “workload units” as a method for defining the basic workload of a faculty member. Maximum limits have been established beyond which a faculty member receives additional compensation when working an “overload” schedule.

Article VIII D defines those activities for which a “unit” is awarded. The most basic is that each contact hour yields one unit.

The limits established in Article VIII B state that “Workload for each member of the bargaining unit whose work is measured in units shall not exceed twenty (20) workload units per term to a maximum of sixty-four (64) units during the four (4) contact terms of any contract year unless agreed upon by the faculty.”

In some parts of the Cincinnati Technical and Community College a practice developed whereby faculty members who taught courses which put them into overload status, would be paid for the entire amount that course dictated. The CBA lists a three contact hour course at $1,362, a four contact hour course at $1,816 and a five contact hour course at $2,270. These amounts would be increased by 4% for work performed starting in the Early Fall 2003 term, and an additional 4% for work performed in the Early Fall 2004 term.

In other parts of the College the practice only paid an amount equal to the actual number of units by which the faculty member exceeded the maximum requirements (20 per term or 64 per contract year.)

Monica Posey, Academic Vice President and Gene Breyer, Director of Human Resources issued a memo to Pam Ecker, President, AAUP Cincinnati State Chapter. In that memo the College announced it’s decision to alter the way it had paid overload in some parts of the college. The pertinent part of the memo states: “Consequently, beginning with the 2004 Spring term, the College will narrowly interpret and strictly enforce it(s)[sp] rights under Article VII, Paragraph B of the Collective Bargaining Agreement as follows: “

The second bullet under this section of the memo states: “Overload will be paid by the unit.”

The two grievants in this action appear to have been harmed by the implementation of this new practice regarding the payment of overload.

The Union poses the issue as follows: Did Cincinnati State Technical & Community College’s alteration of the manner in which faculty overload compensation is calculated violate the terms of the Collective Bargaining Agreement as demonstrated by the Contract’s terms and the past practice of the parties under that Contract?

The College stated the issue only slightly differently: “Did Cincinnati State correctly compute each grievant’s overload pay? If not, how many units of overload pay was each grievant owed for his service during 2004’s Early Fall and Late Fall Terms?

In that the issues, as presented, are substantially the same, the Arbitrator sees no need to form a separate issue.

The Union argues that the previous procedures for pay overload predate the Collective Bargaining Agreement (CBA) and supported this contention with testimony from former Dean Kathy Rahmes.

The Union’s Chief Negotiator from the beginning of negotiations with the College, (John Battistone) indicated that it was the intent of the parties to codify these practices into the Contract. He noted that prior to collective bargaining, faculty were paid for overload in the same manner as adjunct faculty.

The union argues that the college has changed its past practice without negotiation with AAUP.

The union called the Arbitrator’s attention to an expedited arbitration that was decided August 27, 2004. In that grievance (Nancy King) agreed to teach a fifth three-hour class in addition to her three units for academic advising.

In that expedited arbitration Arbitrator David Stanton determined “The grievance is sustained. The grievant shall be made whole.” The Union believes the College should have viewed the Stanton decision as precedent setting.

In addition to the Past Practice argument, the Union believes the Contract requires paying overload in the manner of the original method. They point to Article VII, D where it states: when a bargaining unit member “works an overload he/she shall be paid on the following basis.” They note that the scheme lists three hour courses, four hour courses, and five hour courses.

The Union argues that Article VII, D (1) (d) which states “Compensation for one or more overload units shall otherwise be per unit $454” refers to situations wherein an entire course is not added.

Mr. Battistone asserted that a similar grievance filed in 1990 and resolved through referral to a joint Labor – Management committee, is evidence that the prior practice is consistent with the CBA.

The Union asserts that the “zipper clause” contained in the agreement does not justify a change in the policy of practice of the college.

Further it is the view of the Union that the “waiver clause” does not apply.

Management explained through the testimony of Human Resources Director Gene Breyer that in reviewing the Collective Bargaining Agreement he advised Dean Soni Hill that, in his view, the payment of overload was “internally inconsistent and often resulted in payments greater than required.”

Management supported the contention of inconsistent application through the testimony of Doug Bowling, Assistant Dean of Engineering and Information Technology.

Due to the fact the College was facing a budget crunch, and the inconsistent application, the decision was made to alter the practice and only pay for the number of work units over the minimum threshold.

The College argues that the decision of the Arbitrator in the expedited arbitration of the Nancy King grievance is not precedent setting in that there is no rationale offered.

The College argues that the CBA is clear and unambiguous and therefore should not be construed. The post hearing brief of management quotes from the Kenneth Copper Corp., and International Brotherhood of Electrical Workers, case, 70-2 ARB par. 8849 (B. Abernethy 1970) when it states: “if the meaning of the contract is plain, the acts of the parties cannot prove an interpretation contrary to the plain meaning.”

Another argument offered is that the present collective bargaining agreement does not incorporate pre-1990 personnel practices .and cites the “Entire Agreement” clause of the agreement to support this contention.

The employer also notes that the collective bargaining agreement does not permit the use of past practice to waive the College’s rights.

Finally, the College argues that the Union has failed to establish a binding past practice.

There is no question that a Past Practice was established in this case. The more relevant question is what impact that practice has in this situation.

How Arbitration Works lists three major purposes for which practices are introduced in arbitration. [1]

1. To provide the basis of rules governing matters not included in the written contract.

3. To support allegations that the clear language of the written contract has been amended by mutual action or agreement representing the intent of the parties to make their written language consistent with what they regularly do in practice in the administration of their labor agreement.

The conditions under which a past practice can be changed are discussed in a decision by Arbitrator Lawrence M. Oberdank. In this Sylvania City School case Arbitrator Oberdank wrote:

“All the elements of a valid past practice are therefore present in this case. Both parties clearly understood that the union interpreted the maintenance of standards language in Article XXIII as limiting the number of class that could be assigned special area teachers to twenty-three per week. Management acquiesced in this interpretation and did not assign them more than that number for over eleven years. The parties have by their conduct, therefore, construed Article XXIII as a restriction upon the number of sections that could be assigned special area teachers. Past practice is just as much a part of the collective bargaining agreement as its written provisions and is just as enforceable. Neither party may ignore a valid past practice or change it unilaterally during the contract’s term. If either party desires to change a practice during the life of the contract, it must do so at the bargaining table. No change in Article XXIII was negotiated in this case and the limitation upon the board’s right to increase the teaching load of special area teachers remained unchanged until the contract expired.”

“Whether it continued beyond that point is another matter entirely. The practice would certainly persist if neither party raised the subject during negotiations and a new collective bargaining agreement was adopted without the matter having been discussed. But that did not happen in this case. Instead, the board notified the union on April 28, 1999 that it would no longer recognize any practice limiting the number of units assigned special area teachers or any other personnel in the bargaining unit after the contract expired, unless the restrictions were expressly set forth in the labor agreement. The union did not bring up the subject during collective bargaining or attempt to negotiate limitations upon the number of sections that could be taught, even though it had notice of management’s intent, but ratified a new contract that was silent on the issue.” [2]

In the view of Arbitrator Oberdank, if a binding past practice is established, then that practice must continue until the matter is resolved at the bargaining table. This arbitrator concurs.

Management’s argument that Article XVIII (The Entirety Clause) eliminates any prior past practice simply is not persuasive unless all parties are aware of the practices and understandings that are intended to be changed.

If a “zipper clause” totally created a blank slate or a ”zero based” agreement, then the parties would have to negotiate as though they were achieving an entirely new agreement each time they when to the bargaining table.

Bargaining works best when the parties bring to the table those problem areas that need fixing and jointly address them. This concept of labor relations has been recognized from the early history of collective bargaining.

In 1950 Professors Archibald Cox and John T. Dunlop wrote in article in which they stated: “A collective bargaining agreement should be deemed, unless a contrary intention is manifest, to carry forward for its term the major terms and conditions of employment, not covered by the agreement, which prevailed when the agreement was executed.” [3]

The testimony offered by the Assistant Dean of the Engineering and Technology Division established that the method established to distribute and pay overload in his Division has been to pay only for those hours that exceed the maximums. The testimony also pointed out the very different circumstances that govern this particular Division of the College. There is no requirement that a practice or procedure must be applied consistently in order to be a binding past practice.

The uniqueness of the curriculum in the Engineering and Technology Division leads this arbitrator to draw no conclusions about the similarities or differences between the instant grievances and the practices of the E&T Division.

Let us deal with the argument advanced by the union that under the concept of Stare Decisis the issue has already been settled by Arbitrator David Stanton, in the Nancy King grievance.

This arbitrator does not agree. In the collective bargaining agreements I have reviewed, expedited arbitration is recognized as being without value in establishing precedent.

In deciding if a prior arbitration decision establishes precedent, an arbitrator must decide if “the facts, the contract and/or the relevant conditions upon which the prior decisions were reached have materially changed.” [4]

Without benefit of a written opinion by Arbitrator Stanton, it isn’t possible for me to decide if the stated conditions are substantively the same.

Let us address the argument advanced by the College that the Language of Article XIX (Waiver) gives the College the ability to exercise a right that they may not have previously exercised.

In the mind of this arbitrator this is the most compelling argument advanced by the College. The language is somewhat unique and appears to vest the parties with a mechanism to correct areas that may have been overlooked.

This argument works if the language that establishes the “right” is clear and unambiguous. If any reasonable person reading the agreement would agree that the parties has a specific right but has simply chosen not to exercise it, then, under Article XIX, that party can decide to claim what is theirs under the terms of the Collective Bargaining Agreement.

The final question for this arbitrator to consider is whether such a clear, unambiguous right exists.

In the conclusion of their post hearing brief the College states: “The crux of this grievance is Art. VII D.1.d. That section provides: ‘Compensation for one or more overload units shall otherwise be per unit $454.’”

This arbitrator agrees that this grievances turns on the reading of this part of Article VII D but the language is not nearly as clear to me. It appears that perhaps even management had a doubt when pondering this section when they go on to state in the post hearing brief: “Although not a exemplar of drafting…..”

The statement is made ambiguous and unclear by the insertion of the word “otherwise.” The Merriam Webster Online Dictionary defines “otherwise” to mean ‘in another manner: something or anything else: something to the contrary.”

The insertion of the word “otherwise” offers a distinction or difference from that already listed. The preceding part of section VII D.1 lists courses of varying contact hours. The “otherwise” section would appear to describe something different that courses of varying contact hours.

Thus, one reasonable reading of the language would say that Article VII D.1.d applies to those situations where work units are awarded for things other than courses. At the very least, such a reading establishes that the language is unclear and ambiguous.

If ambiguity exists, then a binding past practice does appear to be present. Until the parties bargain over that practice, it stands and should be applied accordingly.

The grievance is granted. Grievants shall be compensated consistent with the overload payment practice utilized prior to the memorandum dated March 16, 2004 (Employer Exhibit 1) for the Early Fall and Late Fall Terms of 2004. The Arbitrator shall retain jurisdiction for a period not to exceed sixty (60) days for the sole purpose of resolving any dispute that might arise regarding the proper amount of payment under this award.

[1] How Arbitration Works, Elkouri & Elkouri, Fifth Edition, page 630.

[2] In re S YLVANIA CITY (Ohio) SCHOOL DISTRICT, BOARD OF EDUCATION and SYLVANIA EDUCATION ASSOCIATION.

[3] Cox & Dunlop, “The Duty to Bargain Collectively During the Term of an Existing Agreement,” 63 Harv. L. Rev. 1097, 1116-17 (1950).

[4] In re BOARD OF EDUCATION OF COOK COUNTY, SCHOOL DISTRICT NO. 202 [Evanston, Ill.] and EVANSTON HIGH SCHOOL TEACHERS’ COUNCIL, 73 LA 310, August 7, 1979 (Marvin Hill, Arbitrator).

Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.