IN RE ARBITRATION BETWEEN:

 

UNI - UNITED FACULTY

and

BOARD OF REGENTS, UNIVERSITY OF NORTHERN IOWA, UNI

 

DECISION AND AWARD OF ARBITRATOR

PERB CASE #12-GA-016

JEFFREY W. JACOBS

ARBITRATOR

April 23, 2012

 

 

 

 

 


 

IN RE ARBITRATION BETWEEN:

________________________________________________________________________________

UNI - United Faculty

                                                                        DECISION AND AWARD OF ARBITRATOR

and                                                                  PERB Case # 12-GA-016

University of Northern Iowa, UNI.

__________________________________________________________________________________

APPEARANCES:

FOR THE UNION:                                      FOR THE UNIVERSITY:

Nate Willems, Esq.                                         Tom Evans, Esq.

Betty DeBerg, grievant                                   Virginia Arthur, Assoc. Provost for Faculty Affairs

Cathy DeSoto, President of United Faculty  Joel Haack, Dean of College of Arts and Humanities

PRELIMINARY STATEMENT

The hearing in the above matter was held on February 13, 2012 on the Campus of the University of Northern Iowa in Cedar Falls, IA.  The parties submitted Briefs dated March 19, 2012 at which point the record closed. 

ISSUES PRESENTED

The Union stated the issues as follows:

Did the University violate the contract when it required philosophy and world religions faculty to have a student evaluation of every course every semester as a pre-condition to consideration for merit pay?

Did the University violate the contract’s informational assessment provisions when it required philosophy and world religions faculty to have a student evaluation of every course every semester as a pre-condition to consideration for merit pay?

The University stated the issues as follows:

Whether the Employer violated the CBA when the grievant’s Department Head advised her that informational assessments under section 3.26 of the contract did not meet the Department requirement for merit pay?

Whether the Employer violated section 3.433 of the CBA when the grievant’s Department Head advised her that she would not be eligible for merit pay consideration unless she had student assessments performed in every class she taught for both semesters?

The issues as determined by the Arbitrator based on the evidence and arguments in the matter were as follows:

Did the University violate the collective bargaining agreement, CBA, when it required philosophy and world religions professors to have student evaluations of every course every semester as a precondition of merit pay?  If so what shall the remedy be? 

CONTRACTUAL JURISDICTION

The parties are signatories to a collective bargaining agreement covering the period from July 1, 2009 through June 30, 2011.  Article Ten, Section 10.4 provides for submission of disputes to binding arbitration.  The arbitrator was selected from a list provided by the State of Iowa PERB.  The parties stipulated that there were no procedural or substantive arbitrability issues and that the matter was properly before the arbitrator. 

RELEVANT CONTRACTUAL PROVISIONS

Article III Evaluation Procedure

Section 3.0 Evaluation file

An evaluation file shall be maintained for each tenured, probationary, term and full-time temporary Faculty member.  The file shall be located in the departmental office.  The following materials shall be included in the evaluations file:  …

Subdivision 3.02 Student Assessments

Reports of student assessments conducted by the Department Head, except for those conducted under Subdivision 3.26, Informational Assessment. 

Section 3.2  Student Assessments

Upon request of either United Faculty or the Board, the Executive Vice President and Provost shall convene a committee consisting of three members appointed by the United Faculty, three members appointed by the Executive Vice President and Provost, and three students appointed by the Student Government.  The committee shall review and recommend revisions in the current assessment form to the Executive Vice President and Provost for approval.  In the event the Executive Vice President and Provost do not concur with the recommendation the matter shall be returned to the committee for further review and deliberation.  Student assessments shall be administered in accordance with procedures as follows:

Subdivision 3.21 Assessment Procedure

Student assessments shall be administered by the Department Head or her/his designee.  Individual Faculty Members may assist and cooperate in the administration of the student assessment but a Faculty Member shall not be required to do so involuntarily.  In no case may the Faculty Member, when assisting in the administration of the student assessment, administer the instrument in her/his own class.  The Faculty Member will leave the classroom when the instrument is administered to her/his class

Subdivision 3.22 Probationary, Term, and Temporary Faculty

Student assessments shall be administered for each probationary, term, and full-time temporary Faculty Member during the spring semester of each year.

Subdivision 3.23 Tenured Faculty

Tenured Faculty Members shall be assessed by students during the spring semester each third (3rd) year, not counting years on leave or non-teaching assignments.

Subdivision 3.25 Additional Assessments

Additional student assessments may be conducted as determined to be appropriate by the Department Head, as required by procedure, or as requested by the Faculty Member.

Subdivision 3.26 Informational Assessments

Faculty Members may conduct additional assessments of their classes for informative purposes.  The administration of such assessments shall be arranged by the Faculty Member.  The University shall process such assessments but no record of the results shall be kept in the evaluation file or any other file maintained by the University.  Only when the Department Head and the Faculty Member agree, prior to the conducting of a student assessment, that such assessment is for informational purposes, will the assessment be processed according to the provisions of this Subdivision. 

Section 3.4 Evaluation by Department Heads

Evaluation of Faculty Members shall be conducted by Department Heads as follows:

Subdivision 3.41 Evaluation of Probationary Faculty

Each academic Department Head shall annually evaluate the teaching, research, and professional service of all Faculty Members on probationary status prior to making recommendations to continue probation, to grant tenure, or to terminate.

Paragraph 3.411

A written report of the results of this evaluation shall be transmitted concurrently to the Dean and the Faculty Member, and shall be placed in the evaluation file together with any additional evidence used by the Department Head and not already in the file. 

Paragraph 3.412

The evidence used in this evaluation shall include, but not be limited to, a report of the Professional Assessment Committee, the results of student assessment and all other materials in the evaluation file.


 

Paragraph 3.413

In any case where the recommendation is to “continue probation with difficulties,” the Faculty Member shall be provided written suggestions for improvement.

Subdivision 3.42 Evaluation of Candidates for Promotion

Each Department Head shall evaluate the teaching, research, and professional service of each Faculty Member who is in that year a candidate for promotion.

Paragraph 3.421

A candidate for promotion is a Faculty Member who has requested consideration for promotion or who has been proposed for consideration by the Department Head or the Departmental Professional Assessment Committee. 

Paragraph 3.422

A written report of the results of the evaluation shall be transmitted concurrently to the Dean and the Faculty Member and shall be placed in the evaluation file together with any additional evidence utilized by the Department Head and not already in the file.

Paragraph 3.423

The evidence used in this evaluation shall include, but not be limited to, a report of the Professional Assessment Committee, the results of student assessments, and all other materials in the evaluation file.

Subdivision 3.43 Evaluation for Merit Increases

Each academic Department Head shall annually evaluate the teaching, research, and professional service of each tenured, probationary, and term Faculty Member for the purpose of merit salary increases.

Paragraph 3.431

A written report of the results of the evaluation shall be transmitted concurrently to the Dean and the Faculty Member and shall be placed in the evaluation file.

Paragraph 3.432

The evidence used in this evaluation shall include, but not be limited to, material already contained in the evaluation file.  Additional evidence used shall be identified and placed in the evaluation file.

Paragraph 3.433

Merit increases will be awarded on the basis of each faculty member’s performance in the areas of teaching, research, and service weighted according to the faculty member’s work load.  Faculty who are given a nonstandard 12 hour teaching load will be entitled to merit on the basis of teaching and service.

Paragraph 3.434

Department Heads will distribute evaluation standards to all members of the bargaining unit with an explanation of how faculty will be evaluated for merit based on their workload with respect to research, teaching, and service. 


 

Paragraph 3.435

Annual evaluation letters to each faculty member will include a summary of that faculty member’s assessment in the areas of teaching, research, and service, along with an explanation of how merit was awarded in relation to the Departmental evaluation standard.

Subdivision 3.44 Other Evaluations

Paragraph 3.441

Other evaluations of Faculty Members may be conducted at the discretion of the Department Head.  Written reports of all such evaluations shall be transmitted concurrently to the Faculty Member and Dean of the College and entered in the Faculty Member's evaluation file together with any additional evidence utilized by the Department Head and not already in the file except for Term faculty, for whom PAC assessment is optional.

Section 3.5 Evaluation by Dean or Provost and Vice President

Evaluations of the teaching, research, and professional service of Faculty Members may be conducted by the Dean of the College or the Executive Vice President and Provost.

Subdivision 3.51 Evaluation Report

A written report of this evaluation shall be transmitted concurrently to the Faculty Member, Department Head, and Dean of the College or Executive Vice President and Provost, and entered in the Faculty Member's evaluation file.

Subdivision 3.52 Evaluation Evidence

The evidence used in this evaluation shall include, but not be limited to, material already contained in the evaluation file.  Additional evidence used shall be identified and placed in the evaluation file.

Section 3.6 Principles, Standards and Procedures

Principles, Standards, and Procedures for faculty appointments, promotions and tenure shall be made available to the Faculty Member in writing no later than September 15 of each year except that when no changes have been made, provision of these materials to a Faculty Member in a previous year shall be understood to comply with this Section.

Article Eight: Salaries

Section 8.1 2010-2011 Salaries

Effective with the 2010-2011 appointment year, full-time members of the bargaining unit (including anyone on phased retirement) who were employed on April 30, 2010 are qualified to receive the pay raises provided in this Section.  The total amount of all pay raises distributed to qualified faculty members under this Section shall be no less than 3% percent of the total amount of the academic year salaries of all qualified faculty.  The aggregate amount of this pay raise shall be distributed to individual faculty on the following basis:


 

Subdivision 8.03 Individual Adjustment Increases

Each qualified faculty member shall also receive an Individual Adjustment increase for merit and promotions, the distribution of which shall not be subject to the grievance procedure.  The Board shall distribute a total amount of Individual Adjustment increases not less than .30 times the percentage amount stated above (Section 8.0) times the total appointment year salaries of all full time members of the bargaining unit who were employed on April 30, 2009.  The United Faculty shall be provided, as soon as reasonably practicable, a list of the recipients and amounts of Individual Adjustment increases. 

Subdivision 8.11 Percentage Increase

Each qualified faculty member shall receive an increase in his/her base salary for the appointment year 2010-2011 equal to .535 times the percentage amount stated in Section 8.1.

Subdivision 8.12 Incremental Increase

Each qualified faculty member shall also receive an increase in his/her base salary for the appointment year 2010-2011 equal to .165 times the percentage amount stated above (Section 8.1) times the average appointment year salary of all qualified faculty members employed on April 30, 2010.

Subdivision 8.13 Individual Adjustment Increase

Each qualified faculty member shall also receive an Individual Adjustment Increase for merit and promotions, the distribution of which shall not be subject to the grievance procedure.  The Board shall distribute a total amount of Individual Adjustment increases not less than .30 times the percentage amount stated above (Section 8.1) times the total appointment year salaries of all full-time members of the bargaining unit who were employed on April 30, 2010.  The United Faculty shall be provided, as soon as reasonably practicable, a list of the recipients and amounts of Individual Adjustment awards.

UNION’S POSITION

The Union’s position is that the University violated the CBA when it required student assessments in all classes every year as a prerequisite to merit pay and that it renders the language regarding informational assessments moot.  In support of this position the Union made the following contentions:

1.                  The Union noted that there was no dispute about the operative facts of this matter and that in the Fall 2010 semester, the administration told all Department Heads that each faculty member must have a student assessment conducted of every class as a pre-requisite to merit pay.  Employer Ex. 8.  While there was some dispute at first about whether this decision was arrived at collectively by all the deans or the Provost, the Provost acknowledged that it was his decision.  See, Union exhibit 1. 

2.                  The Union acknowledged that some departments have required student assessments in every class every semester as a pre-requisite to merit pay for the teaching criterion but not for the research and service aspects of merit pay.  The Union asserted that the Psychology Department initially tried to impose that requirement as a pre-requisite to all merit pay but eventually backed off that position and required it only as a pre-requisite to the teaching portion of the merit pay determination. 

3.                  The Union pointed out that even the grievant’s Department Head expressed “misgivings” about the requirement that student assessments must be done in every course every semester in order to get merit pay.  Even so, the University’s official position changed from what it had been in the past and now it required student assessments in every course every semester as a pre-requisite for merit pay.  The Union asserted that this is in stark contrast to the provision in Paragraph 3.433 requiring that “teaching, research and service” be given equal weight in determining merit pay.

4.                  The Union pointed to Article 8.03 and 8.13 of the CBA, which require that faculty members will receive a merit pay increase.  The Union acknowledged that even though the amount of the merit pay increases are not subject to the grievance procedure, the process by which merit pay is determined is subject to the grievance procedure and may not be unilaterally changed. 

5.                  Paragraph 3.433 requires that each year all faculty members who were employed full-time in the previous year will receive an individual adjustment for merit pay as determined by their Department Head on the basis of teaching, research and professional service.  It does not provide that teaching will get additional weight nor is there any requirement that student assessments are required as a pre-requisite to any merit pay increase at all. 

6.                  The Union further asserted that all words and terms of a CBA must be given effect and that the net impact of the University’s action is to read out of the contract the clear provision requiring that all three criteria set forth above are to be taken into account in determining merit pay.  It also makes the provisions of Paragraph 3.26 moot by making informational assessments irrelevant. 

7.                  Here the clear requirement that all faculty be given a merit pay increase coupled with the language of 3.433 makes it clear that the merit pay increase is automatic and that even though the amount is not grievable, it must be determined using all three criteria.  The University’s reading allows teaching to be conflated at the expense of the other two, which is contrary to the language and well established tools of contract interpretation.  See, Elkouri and Elkouri, How Arbitration Works, 6th Ed. BNA Books at page 461. 

8.                  Moreover, the Union argued, the specific language of 3.43 and 3.433 particularly, take precedence over more general language that pertains to different sections altogether.  The language of Paragraphs 3.25 and 3.26 deal with different subjects – the more specific language deals with merit pay and contains no provision for a pre-requisite of any kind.  Thus, the University’s action to create one is an attempt to unilaterally change the contract and must be rejected. 

9.                  The Union also asserted that the language of the CBA requires that the Department Heads, not the University, are to make the determination of merit pay.  The Union argued that the University has delegated the authority to make these decisions to the Department Heads and may not unilaterally change that process. 

10.              The Union also countered the claim that there is a binding past practice and noted that the clear contract language must take precedence over any practice.  The Union further argued that the so-called practice has not been consistent.  Different departments have differing ways in which they use student assessments and none have required student assessments as a pre-requisite to any merit pay.  The Union asserted that the practice within the Philosophy and World Religions Department has in fact been consistent with the Union’s interpretation of the contract language. 


 

11.              The Union also pointed to the bargaining history of the language relied upon so heavily by the University and asserted Paragraph 3.25 was always intended to apply to probationary faculty, not the tenured faculty.  It pointed to Union exhibit E, which demonstrates that the University sought to add language to 3.25 which would have made it apply to tenured faculty but that this proposal was rejected in a prior negotiation.  Accordingly, the University is now seeking to gain by unilateral action (and in grievance arbitration) something it was not able to garner in bargaining. 

12.              Finally, the Union asserted that requiring student assessments as a pre-requisite to merit pay renders informational assessments done pursuant to 3.26 moot.  That paragraph contemplates that certain assessments be done but given to the faculty member only.  This would be especially desirable in the case of an experimental course or one where the faculty member simply wanted to assess their own teaching methods on an informational basis.  The new requirement requires that all assessments be given to the Department Head and be used for purposes of determining merit pay.  The Union asserted that this is patently contrary to the language and intent of 3.26.  The Union asserted that it is well established that when two reasonable interpretations are possible and where one leads to a forfeiture, the one that does not result in such an absurd or harsh result must prevail. 

Accordingly the Union seeks an award sustaining the grievance and ordering that the Grievant and all similarly situated bargaining unit members be considered for merit pay in accord with the provisions of 3.43 of the CBA, and that the University be ordered to cease and desist from requiring student assessments as a pre-requisite for merit pay. 

UNIVERSITY'S POSITION

The University position was that there was no violation of the contract and that it was within its management right to require student assessments on these facts.  In support of this position the University made the following contentions. 


 

1.                  The University pointed to the history of these provisions and asserted that Paragraph 3.23 allows student assessments and that Paragraph 3.25 allows additional assessments as determined at the discretion of the Department Head.  Thus, this allows student assessments to be done whenever the Department Head desires to do so and that they may be used for any purpose – including merit pay.

2.                  The University asserted that Paragraph 3.432 allows merit pay to be determined annually and, significantly, that the evidence used in that evaluation “shall include, but not be limited to, material already contained in the evaluation file.  Additional evidence used shall be identified and placed in the evaluation file.”  The University asserted that this references the provisions of 3.25, which allow student assessments to be done at the discretion of the Department Head and therefore become part of the evaluation for merit pay. 

3.                  Further, pursuant to these provisions, Associate Provost Ginny Arthur reviewed the terms of the CBA and concluded the student assessment language constituted a “minimum” requirement and that this language allowsthe Employer to require additional student assessments.  At the beginning of the Fall 2010 semester, the administration communicated to all Department Heads that each faculty member would be required to have a student assessment conducted of every class as a pre-requisite to merit pay.  Employer Exhibit 8. 

4.                  The University argued that the Department Heads retain the discretion to conduct student assessments and to use them for determining merit pay and that despite several changes in the CBA over time, that discretion has never been changed nor has any of the operative language allowing it been disturbed through negotiations. 

5.                  The University further asserted that the grievant and others like her have not lost their right to conduct an informational assessment under Paragraph 3.26.  The University asserted that the Union has misconstrued the effect of the new policy.  The policy now merely provides that if only informational assessments are done they cannot be used to determine merit pay – there has been no diminution of the right to have informational assessments done. 

6.                  Moreover, the decision about how much merit pay is awarded is specifically excluded from the grievance procedure.  See Section 8.03.  Further, the Department Heads have determined that student assessments are valuable tools for determining the faculty’s effectiveness and can provide crucial feedback to improve teaching methods and it is within their discretion to do so.

7.                  The University also asserted that there is no unilateral right to an informational assessment; they are done only upon agreement between the faculty and the Department Head.  Paragraph 3.26 provides that “only when the Department Head and the Faculty Member agree, prior to the conducting of a student assessment, that such assessment is for informational purposes, will the assessment be processed according to the provisions of this Subdivision.”  Thus there was no “denial” of the right to have one conducted here. 

8.                  The question is whether student assessments can be required as a prerequisite for determining merit pay and the University argued that there is no limitation on that right in the CBA.  The University further noted that informational assessments are not counted toward merit pay. 

9.                  The University asserted that if one reads the relevant provisions together it is clear that student assessments are required every three years per paragraph 3.23 but that “additional” assessments may be done as determined to be appropriate by the Department Head.  Further, in determining merit pay, paragraph 3.344 certainly provides that merit pay is determined using the “areas of teaching, research and service” but that the entire file may be used. 

10.              Paragraph 3.432 provides that “evidence used in this evaluation, for merit pay per paragraph 3.43, shall include, but not be limited to, material already contained in the evaluation file.  Additional evidence used shall be identified and placed in the evaluation file.  There is no limitation as to what can be in the “evaluation file” and thus any information, including student assessments, may be used to determine merit pay using the three criteria set forth above.  See also, paragraphs 3.44 and 3.441 allowing Department Heads to conduct evaluations of faculty at their discretion.  Paragraph 3.45 anticipates that evaluations may also be used for purposes of faculty merit pay or evaluation. 

11.              Thus, the University’s argument goes, since there is no limitation on the information that can be used by the Department Head to assess merit pay and there is express authority to conduct student assessments more often than every three years, there is no limitation on the right of the University or Department Heads to require that student assessments be done in every class every semester in order to better assess and determine whether a faculty member is entitled to merit pay and the amount of that pay, if any. 

12.              The University countered the claim that requiring assessments in this manner conflates teaching at the expense of research and service.  The University acknowledged that all three criteria must be considered but asserted that requiring assessments does not remove the requirement that research and service also be considered nor does it require that any faculty member achieve a certain level of performance on student assessments to qualify for merit pay, nor did it base the amount of merit pay solely on the student assessment or the teaching criterion.

13.              The University further noted that there has been a longstanding and well-understood practice in many other departments to conduct student assessments every semester and in every class as a part of the merit pay determination.  The College of Business Administration and Education as well as several departments in the College of Humanities, Arts & Sciences and the College of Social & Behavioral Sciences have long used student assessments done every course and every semester as a pre-requisite to merit pay. 

14.              The University cited arbitral commentators for the proposition that even if there is some ambiguity in the CBA language, the longstanding and mutually understood practice has been to use student assessments in every course every semester in many departments to determine merit pay.  The University asserted that the practice fully supports its position as well as the contract language at issue. 

The University seeks an award denying the grievance in its entirety. 


 

DISCUSSION

FACTUAL BACKGROUND

The facts of this matter were straightforward.  The grievant is a tenured professor in the Philosophy & World Religions Department of the College of Humanities, Arts & Sciences at the University of Northern Iowa, UNI.  The grievance was filed as a class action grievance applying to the grievant and other similarly situated faculty members and would apply to the interpretation of the provisions of the CBA governing merit pay.  Ms. DeBerg has been with the University for many years and there was evidence that she had once been in a position to rate and award merit pay to other faculty members and was thus familiar with the process. [1] 

As noted below, merit pay is granted on the basis of teaching, research and service, See Paragraph 3.433.  While the details of how this is determined can be somewhat complex it was clear that there are times when faculty can receive a 0 for the rating on one of those three criteria yet still be eligible for and receive a merit pay increase.  See Joint exhibit 2 and DeBerg testimony.  The parties agreed that the amount of the merit pay award is not subject to arbitration pursuant to the grievance procedure.  See Article 8.03. 

The instant grievance arose after the grievant asked if she would need to have a student assessment of all of her spring 2011 courses to receive merit pay.  See Joint Exhibit 2, Document 2.  She also asked if she could have an informational assessment done pursuant to Paragraph 3.26 on an experimental course she was teaching and still be eligible to receive merit pay.  The Department Head’s response and the policy whereby all faculty would need to have a student assessment done in every course every semester gave rise to this grievance. 

As discussed more below, some departments have required this as a requirement of merit pay.  Not every department has however and there was sufficient evidence to show that in the grievant’s department this had not been the case until the spring of 2011 when faculty were advised that they would need a student assessment done in every course every semester as a prerequisite to any merit pay at all.  Further, it was apparent that there was some trepidation by the Department Head in his response to the grievant about whether this was acceptable under the CBA but the Department Head was not called to testify so it remains a bit unclear if this was truly a reason for “pause” as the e-mail suggests or whether it was a figure of speech or a message sent to mollify the grievant and the Union who were clearly questioning whether the CBA allowed it.  On this record that evidence was given little weight; it was certainly not controlling.  The outcome of this matter rested on the contract language, the practices in place with respect to student assessments and, to a lesser degree, the bargaining history of some of the clauses.

CBA LANGUAGE ON STUDENT ASSESSMENTS AND FACULTY EVALUATIONS

As in any matter involving the interpretation of contractual language and the determination of the parties’ intent, the starting point is the language itself.  Here several clauses come into play and some of them were not on their face consistent with one another. 


 

The contract clearly calls for an evaluation file to be kept on each faculty member pursuant to Section 3.0 and that reports of student assessments shall be included the file.  Significantly though, assessments done pursuant to Subdivision 3.26 are exempt from the requirement that they be kept in the evaluation file.  As discussed below, assessments done pursuant to subdivision 3.26 are done by agreement between the faculty member and the Department Head so there is no requirement that informational assessments be done ever.

Subdivision 3.23 requires that student assessments for tenured faculty, like the grievant, be done each third year.  The University argued though that more frequent assessments may be done pursuant to Subdivision 3.25 “as determined to be appropriate by the Department Head, as required by procedure, or as requested by the Faculty Member.”  It argued that this provision allows student assessments to be done as often as the Department Head feels is appropriate and allows student assessments to be done in every course every semester. 

The Union countered with bargaining history of this provision that showed that it was intended to apply only to non-tenured faculty.  In support of this assertion it introduced evidence that during prior bargaining for the 2001 -2003 CBA for this clause, the University sought to include the words “tenured faculty” to the language of Subdivision 3.22 and that the Union rejected this and it did not appear in the contract.  See Union Exhibit E.

It is axiomatic in labor relations that a party may not gain something in arbitration it was not able to garner in bargaining.  It is also well established that the negotiation history may be very instructive in determining the meaning of and intent of contractual provisions. 

Here the bargaining history and evidence showed that the University attempted to delete 3.23 from the CBA and to add the term “tenured” to the provisions of Subdivision 3.22, which would have required student assessments to be done every spring for tenured faculty.  Subdivision 3.23 would have been taken out of the contract entirely and the clear import would have been that assessments would have been required every spring. 

The fact that this was specifically rejected by the Union and did not appear in the CBA was a significant factor here.  The clear import of this evidence is that the parties did not intend student assessments to be done for tenured faculty every year but only every three years. 

This evidence though is in stark contrast to what appears to be clear language in Subdivision 3.25, which allows more frequent assessment to be done.  Arbitrators strive to find ways to interpret contractual language in a manner that makes two seemingly inconsistent clauses consistent.  That was somewhat challenging here but the Union suggested that 3.25 was not intended to apply to tenured faculty, such as the grievant.  Given the clear bargaining history here, that is the only way these two clauses can be read consistently and the clear import of that is that the tenured faculty may only be assessed by students pursuant to Subdivision 3.23.  It is also well established that more specific language generally preempts more general language.  Here, the specific provisions of 3.23 dealing with tenured faculty specifically, call for student assessments every three years.  Obviously if the parties desire to change this, they may certainly do so through the collective bargaining process.

The ultimate question here though is whether student assessments may be required as a prerequisite to merit pay.  Here too the Union’s assertions were persuasive.

The specific language that pertains to merit pay is contained in Subdivision 3.43 et seq. and 8.03.  Section 8.03 is clear and requires that each faculty member “shall” receive a merit pay increase; although it is clear that the distribution of which is not subject to the grievance procedure.  The Union acknowledged that but its argument was based on the process used and the requirement that student assessments be required as a prerequisite for merit pay. 

The analysis next turns to an examination of the provisions that specifically pertain to merit pay in subdivision 3.43.  That language requires an annual evaluation of the teaching, research and service of the faculty member.  It further provides that the evidence in the evaluation “shall include” any material already in the evaluation file.  See Subdivision 3.432. 

Thus, while the evaluation for merit pay is to be done annually, the clear language in Subdivision 3.23, when read together with 3.432 and 3.433, shows a contractual intent that while student assessments may be used as part of the evaluation for merit pay, they may not be required more than every three years as set forth in Subdivision 3.23 and that they may not be required as a prerequisite for any merit pay at all.  That process is governed by the terms of Subdivision 3.43, et seq.  This is especially true when viewed in light of the bargaining history of sections 3.22, 3.23 and 3.25.

CBA LANGUAGE COVERING MERIT PAY

First, the Union asserted that requiring student assessments in every class every semester would render the provision of Section 3.26 moot.  The Union claimed this as a separate contract violation but, while it may seem esoteric, it was not a separate violation but rather a separate ground for the assertion that there was a violation of the CBA by requiring student assessments every semester in every class. 

It is well established that if an agreement or a clause within it is susceptible of two meanings one of which would create a forfeiture and one would not, most arbitrators will select the one that does not.  The general rule is that parties are presumed to know their contract and that they did not intend to leave in a clause but negotiate another clause that negates the effect of the first one.  See Elkouri and Elkouri, How Arbitration Works, 6th Ed. BNA Books at page 483. 

Requiring student assessments as a prerequisite for merit pay would render informational assessments moot.  The University pointed out that these have always been subject to “agreement” between the faculty member and Department Head.  However, such an agreement would run completely contrary to the position that student assessments are required as a precondition to merit pay.  Thus, as a practical matter, there was some merit to the Union’s assertion that this new policy renders Subdivision 3.26 moot because if assessments are required in every class every semester there could be virtually no such thing as a truly “informational” assessment. 


 

The main thrust of the Union’s claim however rested on Paragraph 3.433, which clearly requires that merit pay is based on a combination of teaching, research and service.  This language requires that all three of these criteria be used.  Requiring a student assessment, which the evidence showed pertained only to the teaching piece, would render virtually moot any consideration of the other two required criteria.  Further, as noted above, the evidence showed that a faculty member can have a 0 in the teaching criterion and still be considered for and receive merit pay based on the other two criteria.  Requiring student assessments does as the Union suggests, conflate one of the criteria at the expense of the others.  The contract terms are clear and require that all three be considered. 

PAST PRACTICE

Past practice has been defined as a ‘prior course of conduct which is consistently made in response to a recurring situation and regarded as a correct and required response under the circumstances.”  See, Mittenthal, Past Practice and the Administration of Collective Bargaining Agreements, in Arbitration and Public Policy 30 (S. Pollard ed. 1961). 

Elkouri states it in slightly different terms as follows: In the absence of a written agreement, ‘past practice,’ to be binding must be (1) unequivocal; (2) clearly enunciated and acted upon; (3) readily ascertainable over a reasonable period of time as a fixed, and established practice accepted by both parties.”  Elkouri at 632 citing to Celanese Corp. of America, 24 LA 168 (Justin 1954). 

A past practice is thus nothing more, or less, than a custom or an accepted way of doing things as between two parties to a labor agreement that can provide either assistance in interpreting contract language where that language is ambiguous or to actually provide a binding set of terms for matters not included in the labor agreement.  Clearly, as the commentators have discussed, the mere fact that something happens once or even multiple times does not mean that a binding past practice has occurred. 


 

The question is thus whether having done something in the past, that course of conduct will be binding in the future.  This discussion will thus focus on whether something is a binding past practice as opposed to a happenstance event that has no particular evidentiary or contractual significance and therefore does not bind the parties to doing it that way in the future. 

Further, there was considerable argument by both parties regarding past practice and the University asserted that there is a long practice in other departments whereby student assessments have been required.  This case frankly rests on the language cited above, specifically the requirement that merit pay be based on all three criteria, i.e. teaching, research and service; not merely on one of those, but some brief discussion of the practice here is warranted given the arguments of the parties.

The preeminent arbitrator and professor Richard Mittenthal’s seminal article on past practice states as follows: “Past practice has been defined as a ‘prior course of conduct which is consistently made in response to a recurring situation and regarded as a correct and required response under the circumstances.’  Certain qualities distinguish a binding past practice from a course of conduct that has no particular evidentiary significance:  (1) clarity and consistency; (2) longevity and repetition; (3) acceptability; (4) a consideration of the underlying circumstances; (5) mutuality.  See, Richard Mittenthal, Past Practice and the Administration of Collective Bargaining Agreements, in Arbitration and Public Policy 30 (S. Pollard ed. 1961). 

Here the evidence showed that the practice has neither been consistent nor mutually accepted in every department over time.  Clearly some departments and colleges have required student assessments but it was not clear whether those were a prerequisite to any merit pay at all.  It was also clear that not every department required student assessments in the fashion now at issue. 

Thus, several crucial elements necessary to establish a binding past practice, as opposed to one that simply existed but which was not generally regarded as a required response to a recurring set of circumstances, to use the terminology of the commentators, were missing. 

On this record there was insufficient evidence to establish a binding past practice either way.  There was certainly insufficient evidence to establish a practice that either replaced or materially altered the meaning of the contract language cited above. 

Thus, irrespective of which set of issue statements are used, the import of the findings above are the same.  If the question posed is either as the Union stated it: Did the University violate the contract when it required philosophy and world religions faculty to have a student evaluation of every course every semester as a pre-condition to consideration for merit pay?  Or, as the University stated it: Whether the Employer violated section 3.433 of the CBA when the grievant’s Department Head advised her that she would not be eligible for merit pay consideration unless she had student assessments performed in every class she taught for both semesters? the answer is the same.

Yes, as set forth above.  The provisions of 3.433 are clear and require that all three criteria must be used.  Requiring student assessments in every course every semester as a prerequisite for merit pay effectively subordinates research and service to teaching.  As noted above, merit pay can be awarded even though the faculty receives a 0 rating for teaching alone.  The other clear answer here is that informational assessments are not considered for merit pay under the provisions of subdivision 3.26.  Thus, there was no violation of the CBA in informing the grievant that her request for an informational assessment was denied, since they are still subject to the language of subdivision 3.26.  Having made the ruling with respect to the use of student assessments, there is no need to address the remaining question of whether the use of an informational assessment can “count” toward the requirement of an assessment in every class in every semester. 

Thus the answer to the University’s statement of the issue is in the negative; there was no CBA violation by informing the grievant that her informational assessment could not be used for merit pay.  This of course is subject to the ruling above on whether student evaluations of every course every semester as a pre-condition to consideration for merit pay. 


 

AWARD

The grievance is SUSTAINED as set forth above.  The University is ordered to cease and desist from using student assessments in every course every semester as a prerequisite for merit pay determinations.

 

Dated: April 23, 2012                                                             _________________________________

                                                                                                Jeffrey W. Jacobs, arbitrator

United Faculty and UNI AWARD.doc


 

[1] The criteria in Ms. DeBerg’s department set forth in Document 4 of Joint Exhibit 2, Dep’t of Philosophy and World Religions 2010-2011 10 point merit system are as follows:

1. Teaching (up to three points total):

A.      Student evals (up to 2 points) – If evals are not meritorious, this will not be held against a faculty member (points will not be subtracted)

a.       0 = no evals – no merit will be given at all for faculty who do not have student evals – (per Provost’s Office)

b.       1= between top 10% to top 30%

c.        2= top 10%

B.      Other meritorious evidence (up to 2 points, which can be earned without earning points by student evaluation)

a.       0= no noteworthy evidence beyond norm

b.       1=several types of other evidence

c.        2= numerous types of evidence

Other evidence: teaching awards; leadership in teaching on campus; independent research on teaching; supervise theses; unsolicited praise

Increased teaching load or teaching larger classes; teach for continuing education; teach new courses (new preps); teaching established courses with new experimental methods

2. scholarship (up to 3 points total): ….

3. service (up to 3 points total): ….

4. floating point – up to one additional point can be earned in any one (but in only one) of

    the three categories for extraordinary performance; …”

IN RE ARBITRATION BETWEEN:

_______________________________________________________________________________

UNI - UNITED FACULTY

and

BOARD OF REGENTS, UNIVERSITY OF NORTHERN IOWA, UNI

________________________________________________________________________________

DECISION AND AWARD OF ARBITRATOR

PERB CASE #12-GA-016

JEFFREY W. JACOBS

ARBITRATOR

April 23, 2012

 

 

 

 

 


 

IN RE ARBITRATION BETWEEN:

________________________________________________________________________________

UNI - United Faculty

                                                                        DECISION AND AWARD OF ARBITRATOR

and                                                                  PERB Case # 12-GA-016

University of Northern Iowa, UNI.

__________________________________________________________________________________

APPEARANCES:

FOR THE UNION:                                      FOR THE UNIVERSITY:

Nate Willems, Esq.                                         Tom Evans, Esq.

Betty DeBerg, grievant                                   Virginia Arthur, Assoc. Provost for Faculty Affairs

Cathy DeSoto, President of United Faculty  Joel Haack, Dean of College of Arts and Humanities

PRELIMINARY STATEMENT

The hearing in the above matter was held on February 13, 2012 on the Campus of the University of Northern Iowa in Cedar Falls, IA.  The parties submitted Briefs dated March 19, 2012 at which point the record closed. 

ISSUES PRESENTED

The Union stated the issues as follows:

Did the University violate the contract when it required philosophy and world religions faculty to have a student evaluation of every course every semester as a pre-condition to consideration for merit pay?

Did the University violate the contract’s informational assessment provisions when it required philosophy and world religions faculty to have a student evaluation of every course every semester as a pre-condition to consideration for merit pay?

The University stated the issues as follows:

Whether the Employer violated the CBA when the grievant’s Department Head advised her that informational assessments under section 3.26 of the contract did not meet the Department requirement for merit pay?

Whether the Employer violated section 3.433 of the CBA when the grievant’s Department Head advised her that she would not be eligible for merit pay consideration unless she had student assessments performed in every class she taught for both semesters?

The issues as determined by the Arbitrator based on the evidence and arguments in the matter were as follows:

Did the University violate the collective bargaining agreement, CBA, when it required philosophy and world religions professors to have student evaluations of every course every semester as a precondition of merit pay?  If so what shall the remedy be? 

CONTRACTUAL JURISDICTION

The parties are signatories to a collective bargaining agreement covering the period from July 1, 2009 through June 30, 2011.  Article Ten, Section 10.4 provides for submission of disputes to binding arbitration.  The arbitrator was selected from a list provided by the State of Iowa PERB.  The parties stipulated that there were no procedural or substantive arbitrability issues and that the matter was properly before the arbitrator. 

RELEVANT CONTRACTUAL PROVISIONS

Article III Evaluation Procedure

Section 3.0 Evaluation file

An evaluation file shall be maintained for each tenured, probationary, term and full-time temporary Faculty member.  The file shall be located in the departmental office.  The following materials shall be included in the evaluations file:  …

Subdivision 3.02 Student Assessments

Reports of student assessments conducted by the Department Head, except for those conducted under Subdivision 3.26, Informational Assessment. 

Section 3.2  Student Assessments

Upon request of either United Faculty or the Board, the Executive Vice President and Provost shall convene a committee consisting of three members appointed by the United Faculty, three members appointed by the Executive Vice President and Provost, and three students appointed by the Student Government.  The committee shall review and recommend revisions in the current assessment form to the Executive Vice President and Provost for approval.  In the event the Executive Vice President and Provost do not concur with the recommendation the matter shall be returned to the committee for further review and deliberation.  Student assessments shall be administered in accordance with procedures as follows:

Subdivision 3.21 Assessment Procedure

Student assessments shall be administered by the Department Head or her/his designee.  Individual Faculty Members may assist and cooperate in the administration of the student assessment but a Faculty Member shall not be required to do so involuntarily.  In no case may the Faculty Member, when assisting in the administration of the student assessment, administer the instrument in her/his own class.  The Faculty Member will leave the classroom when the instrument is administered to her/his class

Subdivision 3.22 Probationary, Term, and Temporary Faculty

Student assessments shall be administered for each probationary, term, and full-time temporary Faculty Member during the spring semester of each year.

Subdivision 3.23 Tenured Faculty

Tenured Faculty Members shall be assessed by students during the spring semester each third (3rd) year, not counting years on leave or non-teaching assignments.

Subdivision 3.25 Additional Assessments

Additional student assessments may be conducted as determined to be appropriate by the Department Head, as required by procedure, or as requested by the Faculty Member.

Subdivision 3.26 Informational Assessments

Faculty Members may conduct additional assessments of their classes for informative purposes.  The administration of such assessments shall be arranged by the Faculty Member.  The University shall process such assessments but no record of the results shall be kept in the evaluation file or any other file maintained by the University.  Only when the Department Head and the Faculty Member agree, prior to the conducting of a student assessment, that such assessment is for informational purposes, will the assessment be processed according to the provisions of this Subdivision. 

Section 3.4 Evaluation by Department Heads

Evaluation of Faculty Members shall be conducted by Department Heads as follows:

Subdivision 3.41 Evaluation of Probationary Faculty

Each academic Department Head shall annually evaluate the teaching, research, and professional service of all Faculty Members on probationary status prior to making recommendations to continue probation, to grant tenure, or to terminate.

Paragraph 3.411

A written report of the results of this evaluation shall be transmitted concurrently to the Dean and the Faculty Member, and shall be placed in the evaluation file together with any additional evidence used by the Department Head and not already in the file. 

Paragraph 3.412

The evidence used in this evaluation shall include, but not be limited to, a report of the Professional Assessment Committee, the results of student assessment and all other materials in the evaluation file.


 

Paragraph 3.413

In any case where the recommendation is to “continue probation with difficulties,” the Faculty Member shall be provided written suggestions for improvement.

Subdivision 3.42 Evaluation of Candidates for Promotion

Each Department Head shall evaluate the teaching, research, and professional service of each Faculty Member who is in that year a candidate for promotion.

Paragraph 3.421

A candidate for promotion is a Faculty Member who has requested consideration for promotion or who has been proposed for consideration by the Department Head or the Departmental Professional Assessment Committee. 

Paragraph 3.422

A written report of the results of the evaluation shall be transmitted concurrently to the Dean and the Faculty Member and shall be placed in the evaluation file together with any additional evidence utilized by the Department Head and not already in the file.

Paragraph 3.423

The evidence used in this evaluation shall include, but not be limited to, a report of the Professional Assessment Committee, the results of student assessments, and all other materials in the evaluation file.

Subdivision 3.43 Evaluation for Merit Increases

Each academic Department Head shall annually evaluate the teaching, research, and professional service of each tenured, probationary, and term Faculty Member for the purpose of merit salary increases.

Paragraph 3.431

A written report of the results of the evaluation shall be transmitted concurrently to the Dean and the Faculty Member and shall be placed in the evaluation file.

Paragraph 3.432

The evidence used in this evaluation shall include, but not be limited to, material already contained in the evaluation file.  Additional evidence used shall be identified and placed in the evaluation file.

Paragraph 3.433

Merit increases will be awarded on the basis of each faculty member’s performance in the areas of teaching, research, and service weighted according to the faculty member’s work load.  Faculty who are given a nonstandard 12 hour teaching load will be entitled to merit on the basis of teaching and service.

Paragraph 3.434

Department Heads will distribute evaluation standards to all members of the bargaining unit with an explanation of how faculty will be evaluated for merit based on their workload with respect to research, teaching, and service. 


 

Paragraph 3.435

Annual evaluation letters to each faculty member will include a summary of that faculty member’s assessment in the areas of teaching, research, and service, along with an explanation of how merit was awarded in relation to the Departmental evaluation standard.

Subdivision 3.44 Other Evaluations

Paragraph 3.441

Other evaluations of Faculty Members may be conducted at the discretion of the Department Head.  Written reports of all such evaluations shall be transmitted concurrently to the Faculty Member and Dean of the College and entered in the Faculty Member's evaluation file together with any additional evidence utilized by the Department Head and not already in the file except for Term faculty, for whom PAC assessment is optional.

Section 3.5 Evaluation by Dean or Provost and Vice President

Evaluations of the teaching, research, and professional service of Faculty Members may be conducted by the Dean of the College or the Executive Vice President and Provost.

Subdivision 3.51 Evaluation Report

A written report of this evaluation shall be transmitted concurrently to the Faculty Member, Department Head, and Dean of the College or Executive Vice President and Provost, and entered in the Faculty Member's evaluation file.

Subdivision 3.52 Evaluation Evidence

The evidence used in this evaluation shall include, but not be limited to, material already contained in the evaluation file.  Additional evidence used shall be identified and placed in the evaluation file.

Section 3.6 Principles, Standards and Procedures

Principles, Standards, and Procedures for faculty appointments, promotions and tenure shall be made available to the Faculty Member in writing no later than September 15 of each year except that when no changes have been made, provision of these materials to a Faculty Member in a previous year shall be understood to comply with this Section.

Article Eight: Salaries

Section 8.1 2010-2011 Salaries

Effective with the 2010-2011 appointment year, full-time members of the bargaining unit (including anyone on phased retirement) who were employed on April 30, 2010 are qualified to receive the pay raises provided in this Section.  The total amount of all pay raises distributed to qualified faculty members under this Section shall be no less than 3% percent of the total amount of the academic year salaries of all qualified faculty.  The aggregate amount of this pay raise shall be distributed to individual faculty on the following basis:


 

Subdivision 8.03 Individual Adjustment Increases

Each qualified faculty member shall also receive an Individual Adjustment increase for merit and promotions, the distribution of which shall not be subject to the grievance procedure.  The Board shall distribute a total amount of Individual Adjustment increases not less than .30 times the percentage amount stated above (Section 8.0) times the total appointment year salaries of all full time members of the bargaining unit who were employed on April 30, 2009.  The United Faculty shall be provided, as soon as reasonably practicable, a list of the recipients and amounts of Individual Adjustment increases. 

Subdivision 8.11 Percentage Increase

Each qualified faculty member shall receive an increase in his/her base salary for the appointment year 2010-2011 equal to .535 times the percentage amount stated in Section 8.1.

Subdivision 8.12 Incremental Increase

Each qualified faculty member shall also receive an increase in his/her base salary for the appointment year 2010-2011 equal to .165 times the percentage amount stated above (Section 8.1) times the average appointment year salary of all qualified faculty members employed on April 30, 2010.

Subdivision 8.13 Individual Adjustment Increase

Each qualified faculty member shall also receive an Individual Adjustment Increase for merit and promotions, the distribution of which shall not be subject to the grievance procedure.  The Board shall distribute a total amount of Individual Adjustment increases not less than .30 times the percentage amount stated above (Section 8.1) times the total appointment year salaries of all full-time members of the bargaining unit who were employed on April 30, 2010.  The United Faculty shall be provided, as soon as reasonably practicable, a list of the recipients and amounts of Individual Adjustment awards.

UNION’S POSITION

The Union’s position is that the University violated the CBA when it required student assessments in all classes every year as a prerequisite to merit pay and that it renders the language regarding informational assessments moot.  In support of this position the Union made the following contentions:

1.                  The Union noted that there was no dispute about the operative facts of this matter and that in the Fall 2010 semester, the administration told all Department Heads that each faculty member must have a student assessment conducted of every class as a pre-requisite to merit pay.  Employer Ex. 8.  While there was some dispute at first about whether this decision was arrived at collectively by all the deans or the Provost, the Provost acknowledged that it was his decision.  See, Union exhibit 1. 

2.                  The Union acknowledged that some departments have required student assessments in every class every semester as a pre-requisite to merit pay for the teaching criterion but not for the research and service aspects of merit pay.  The Union asserted that the Psychology Department initially tried to impose that requirement as a pre-requisite to all merit pay but eventually backed off that position and required it only as a pre-requisite to the teaching portion of the merit pay determination. 

3.                  The Union pointed out that even the grievant’s Department Head expressed “misgivings” about the requirement that student assessments must be done in every course every semester in order to get merit pay.  Even so, the University’s official position changed from what it had been in the past and now it required student assessments in every course every semester as a pre-requisite for merit pay.  The Union asserted that this is in stark contrast to the provision in Paragraph 3.433 requiring that “teaching, research and service” be given equal weight in determining merit pay.

4.                  The Union pointed to Article 8.03 and 8.13 of the CBA, which require that faculty members will receive a merit pay increase.  The Union acknowledged that even though the amount of the merit pay increases are not subject to the grievance procedure, the process by which merit pay is determined is subject to the grievance procedure and may not be unilaterally changed. 

5.                  Paragraph 3.433 requires that each year all faculty members who were employed full-time in the previous year will receive an individual adjustment for merit pay as determined by their Department Head on the basis of teaching, research and professional service.  It does not provide that teaching will get additional weight nor is there any requirement that student assessments are required as a pre-requisite to any merit pay increase at all. 

6.                  The Union further asserted that all words and terms of a CBA must be given effect and that the net impact of the University’s action is to read out of the contract the clear provision requiring that all three criteria set forth above are to be taken into account in determining merit pay.  It also makes the provisions of Paragraph 3.26 moot by making informational assessments irrelevant. 

7.                  Here the clear requirement that all faculty be given a merit pay increase coupled with the language of 3.433 makes it clear that the merit pay increase is automatic and that even though the amount is not grievable, it must be determined using all three criteria.  The University’s reading allows teaching to be conflated at the expense of the other two, which is contrary to the language and well established tools of contract interpretation.  See, Elkouri and Elkouri, How Arbitration Works, 6th Ed. BNA Books at page 461. 

8.                  Moreover, the Union argued, the specific language of 3.43 and 3.433 particularly, take precedence over more general language that pertains to different sections altogether.  The language of Paragraphs 3.25 and 3.26 deal with different subjects – the more specific language deals with merit pay and contains no provision for a pre-requisite of any kind.  Thus, the University’s action to create one is an attempt to unilaterally change the contract and must be rejected. 

9.                  The Union also asserted that the language of the CBA requires that the Department Heads, not the University, are to make the determination of merit pay.  The Union argued that the University has delegated the authority to make these decisions to the Department Heads and may not unilaterally change that process. 

10.              The Union also countered the claim that there is a binding past practice and noted that the clear contract language must take precedence over any practice.  The Union further argued that the so-called practice has not been consistent.  Different departments have differing ways in which they use student assessments and none have required student assessments as a pre-requisite to any merit pay.  The Union asserted that the practice within the Philosophy and World Religions Department has in fact been consistent with the Union’s interpretation of the contract language. 


 

11.              The Union also pointed to the bargaining history of the language relied upon so heavily by the University and asserted Paragraph 3.25 was always intended to apply to probationary faculty, not the tenured faculty.  It pointed to Union exhibit E, which demonstrates that the University sought to add language to 3.25 which would have made it apply to tenured faculty but that this proposal was rejected in a prior negotiation.  Accordingly, the University is now seeking to gain by unilateral action (and in grievance arbitration) something it was not able to garner in bargaining. 

12.              Finally, the Union asserted that requiring student assessments as a pre-requisite to merit pay renders informational assessments done pursuant to 3.26 moot.  That paragraph contemplates that certain assessments be done but given to the faculty member only.  This would be especially desirable in the case of an experimental course or one where the faculty member simply wanted to assess their own teaching methods on an informational basis.  The new requirement requires that all assessments be given to the Department Head and be used for purposes of determining merit pay.  The Union asserted that this is patently contrary to the language and intent of 3.26.  The Union asserted that it is well established that when two reasonable interpretations are possible and where one leads to a forfeiture, the one that does not result in such an absurd or harsh result must prevail. 

Accordingly the Union seeks an award sustaining the grievance and ordering that the Grievant and all similarly situated bargaining unit members be considered for merit pay in accord with the provisions of 3.43 of the CBA, and that the University be ordered to cease and desist from requiring student assessments as a pre-requisite for merit pay. 

UNIVERSITY'S POSITION

The University position was that there was no violation of the contract and that it was within its management right to require student assessments on these facts.  In support of this position the University made the following contentions. 


 

1.                  The University pointed to the history of these provisions and asserted that Paragraph 3.23 allows student assessments and that Paragraph 3.25 allows additional assessments as determined at the discretion of the Department Head.  Thus, this allows student assessments to be done whenever the Department Head desires to do so and that they may be used for any purpose – including merit pay.

2.                  The University asserted that Paragraph 3.432 allows merit pay to be determined annually and, significantly, that the evidence used in that evaluation “shall include, but not be limited to, material already contained in the evaluation file.  Additional evidence used shall be identified and placed in the evaluation file.”  The University asserted that this references the provisions of 3.25, which allow student assessments to be done at the discretion of the Department Head and therefore become part of the evaluation for merit pay. 

3.                  Further, pursuant to these provisions, Associate Provost Ginny Arthur reviewed the terms of the CBA and concluded the student assessment language constituted a “minimum” requirement and that this language allowsthe Employer to require additional student assessments.  At the beginning of the Fall 2010 semester, the administration communicated to all Department Heads that each faculty member would be required to have a student assessment conducted of every class as a pre-requisite to merit pay.  Employer Exhibit 8. 

4.                  The University argued that the Department Heads retain the discretion to conduct student assessments and to use them for determining merit pay and that despite several changes in the CBA over time, that discretion has never been changed nor has any of the operative language allowing it been disturbed through negotiations. 

5.                  The University further asserted that the grievant and others like her have not lost their right to conduct an informational assessment under Paragraph 3.26.  The University asserted that the Union has misconstrued the effect of the new policy.  The policy now merely provides that if only informational assessments are done they cannot be used to determine merit pay – there has been no diminution of the right to have informational assessments done. 

6.                  Moreover, the decision about how much merit pay is awarded is specifically excluded from the grievance procedure.  See Section 8.03.  Further, the Department Heads have determined that student assessments are valuable tools for determining the faculty’s effectiveness and can provide crucial feedback to improve teaching methods and it is within their discretion to do so.

7.                  The University also asserted that there is no unilateral right to an informational assessment; they are done only upon agreement between the faculty and the Department Head.  Paragraph 3.26 provides that “only when the Department Head and the Faculty Member agree, prior to the conducting of a student assessment, that such assessment is for informational purposes, will the assessment be processed according to the provisions of this Subdivision.”  Thus there was no “denial” of the right to have one conducted here. 

8.                  The question is whether student assessments can be required as a prerequisite for determining merit pay and the University argued that there is no limitation on that right in the CBA.  The University further noted that informational assessments are not counted toward merit pay. 

9.                  The University asserted that if one reads the relevant provisions together it is clear that student assessments are required every three years per paragraph 3.23 but that “additional” assessments may be done as determined to be appropriate by the Department Head.  Further, in determining merit pay, paragraph 3.344 certainly provides that merit pay is determined using the “areas of teaching, research and service” but that the entire file may be used. 

10.              Paragraph 3.432 provides that “evidence used in this evaluation, for merit pay per paragraph 3.43, shall include, but not be limited to, material already contained in the evaluation file.  Additional evidence used shall be identified and placed in the evaluation file.  There is no limitation as to what can be in the “evaluation file” and thus any information, including student assessments, may be used to determine merit pay using the three criteria set forth above.  See also, paragraphs 3.44 and 3.441 allowing Department Heads to conduct evaluations of faculty at their discretion.  Paragraph 3.45 anticipates that evaluations may also be used for purposes of faculty merit pay or evaluation. 

11.              Thus, the University’s argument goes, since there is no limitation on the information that can be used by the Department Head to assess merit pay and there is express authority to conduct student assessments more often than every three years, there is no limitation on the right of the University or Department Heads to require that student assessments be done in every class every semester in order to better assess and determine whether a faculty member is entitled to merit pay and the amount of that pay, if any. 

12.              The University countered the claim that requiring assessments in this manner conflates teaching at the expense of research and service.  The University acknowledged that all three criteria must be considered but asserted that requiring assessments does not remove the requirement that research and service also be considered nor does it require that any faculty member achieve a certain level of performance on student assessments to qualify for merit pay, nor did it base the amount of merit pay solely on the student assessment or the teaching criterion.

13.              The University further noted that there has been a longstanding and well-understood practice in many other departments to conduct student assessments every semester and in every class as a part of the merit pay determination.  The College of Business Administration and Education as well as several departments in the College of Humanities, Arts & Sciences and the College of Social & Behavioral Sciences have long used student assessments done every course and every semester as a pre-requisite to merit pay. 

14.              The University cited arbitral commentators for the proposition that even if there is some ambiguity in the CBA language, the longstanding and mutually understood practice has been to use student assessments in every course every semester in many departments to determine merit pay.  The University asserted that the practice fully supports its position as well as the contract language at issue. 

The University seeks an award denying the grievance in its entirety. 


 

DISCUSSION

FACTUAL BACKGROUND

The facts of this matter were straightforward.  The grievant is a tenured professor in the Philosophy & World Religions Department of the College of Humanities, Arts & Sciences at the University of Northern Iowa, UNI.  The grievance was filed as a class action grievance applying to the grievant and other similarly situated faculty members and would apply to the interpretation of the provisions of the CBA governing merit pay.  Ms. DeBerg has been with the University for many years and there was evidence that she had once been in a position to rate and award merit pay to other faculty members and was thus familiar with the process. [1] 

As noted below, merit pay is granted on the basis of teaching, research and service, See Paragraph 3.433.  While the details of how this is determined can be somewhat complex it was clear that there are times when faculty can receive a 0 for the rating on one of those three criteria yet still be eligible for and receive a merit pay increase.  See Joint exhibit 2 and DeBerg testimony.  The parties agreed that the amount of the merit pay award is not subject to arbitration pursuant to the grievance procedure.  See Article 8.03. 

The instant grievance arose after the grievant asked if she would need to have a student assessment of all of her spring 2011 courses to receive merit pay.  See Joint Exhibit 2, Document 2.  She also asked if she could have an informational assessment done pursuant to Paragraph 3.26 on an experimental course she was teaching and still be eligible to receive merit pay.  The Department Head’s response and the policy whereby all faculty would need to have a student assessment done in every course every semester gave rise to this grievance. 

As discussed more below, some departments have required this as a requirement of merit pay.  Not every department has however and there was sufficient evidence to show that in the grievant’s department this had not been the case until the spring of 2011 when faculty were advised that they would need a student assessment done in every course every semester as a prerequisite to any merit pay at all.  Further, it was apparent that there was some trepidation by the Department Head in his response to the grievant about whether this was acceptable under the CBA but the Department Head was not called to testify so it remains a bit unclear if this was truly a reason for “pause” as the e-mail suggests or whether it was a figure of speech or a message sent to mollify the grievant and the Union who were clearly questioning whether the CBA allowed it.  On this record that evidence was given little weight; it was certainly not controlling.  The outcome of this matter rested on the contract language, the practices in place with respect to student assessments and, to a lesser degree, the bargaining history of some of the clauses.

CBA LANGUAGE ON STUDENT ASSESSMENTS AND FACULTY EVALUATIONS

As in any matter involving the interpretation of contractual language and the determination of the parties’ intent, the starting point is the language itself.  Here several clauses come into play and some of them were not on their face consistent with one another. 


 

The contract clearly calls for an evaluation file to be kept on each faculty member pursuant to Section 3.0 and that reports of student assessments shall be included the file.  Significantly though, assessments done pursuant to Subdivision 3.26 are exempt from the requirement that they be kept in the evaluation file.  As discussed below, assessments done pursuant to subdivision 3.26 are done by agreement between the faculty member and the Department Head so there is no requirement that informational assessments be done ever.

Subdivision 3.23 requires that student assessments for tenured faculty, like the grievant, be done each third year.  The University argued though that more frequent assessments may be done pursuant to Subdivision 3.25 “as determined to be appropriate by the Department Head, as required by procedure, or as requested by the Faculty Member.”  It argued that this provision allows student assessments to be done as often as the Department Head feels is appropriate and allows student assessments to be done in every course every semester. 

The Union countered with bargaining history of this provision that showed that it was intended to apply only to non-tenured faculty.  In support of this assertion it introduced evidence that during prior bargaining for the 2001 -2003 CBA for this clause, the University sought to include the words “tenured faculty” to the language of Subdivision 3.22 and that the Union rejected this and it did not appear in the contract.  See Union Exhibit E.

It is axiomatic in labor relations that a party may not gain something in arbitration it was not able to garner in bargaining.  It is also well established that the negotiation history may be very instructive in determining the meaning of and intent of contractual provisions. 

Here the bargaining history and evidence showed that the University attempted to delete 3.23 from the CBA and to add the term “tenured” to the provisions of Subdivision 3.22, which would have required student assessments to be done every spring for tenured faculty.  Subdivision 3.23 would have been taken out of the contract entirely and the clear import would have been that assessments would have been required every spring. 

The fact that this was specifically rejected by the Union and did not appear in the CBA was a significant factor here.  The clear import of this evidence is that the parties did not intend student assessments to be done for tenured faculty every year but only every three years. 

This evidence though is in stark contrast to what appears to be clear language in Subdivision 3.25, which allows more frequent assessment to be done.  Arbitrators strive to find ways to interpret contractual language in a manner that makes two seemingly inconsistent clauses consistent.  That was somewhat challenging here but the Union suggested that 3.25 was not intended to apply to tenured faculty, such as the grievant.  Given the clear bargaining history here, that is the only way these two clauses can be read consistently and the clear import of that is that the tenured faculty may only be assessed by students pursuant to Subdivision 3.23.  It is also well established that more specific language generally preempts more general language.  Here, the specific provisions of 3.23 dealing with tenured faculty specifically, call for student assessments every three years.  Obviously if the parties desire to change this, they may certainly do so through the collective bargaining process.

The ultimate question here though is whether student assessments may be required as a prerequisite to merit pay.  Here too the Union’s assertions were persuasive.

The specific language that pertains to merit pay is contained in Subdivision 3.43 et seq. and 8.03.  Section 8.03 is clear and requires that each faculty member “shall” receive a merit pay increase; although it is clear that the distribution of which is not subject to the grievance procedure.  The Union acknowledged that but its argument was based on the process used and the requirement that student assessments be required as a prerequisite for merit pay. 

The analysis next turns to an examination of the provisions that specifically pertain to merit pay in subdivision 3.43.  That language requires an annual evaluation of the teaching, research and service of the faculty member.  It further provides that the evidence in the evaluation “shall include” any material already in the evaluation file.  See Subdivision 3.432. 

Thus, while the evaluation for merit pay is to be done annually, the clear language in Subdivision 3.23, when read together with 3.432 and 3.433, shows a contractual intent that while student assessments may be used as part of the evaluation for merit pay, they may not be required more than every three years as set forth in Subdivision 3.23 and that they may not be required as a prerequisite for any merit pay at all.  That process is governed by the terms of Subdivision 3.43, et seq.  This is especially true when viewed in light of the bargaining history of sections 3.22, 3.23 and 3.25.

CBA LANGUAGE COVERING MERIT PAY

First, the Union asserted that requiring student assessments in every class every semester would render the provision of Section 3.26 moot.  The Union claimed this as a separate contract violation but, while it may seem esoteric, it was not a separate violation but rather a separate ground for the assertion that there was a violation of the CBA by requiring student assessments every semester in every class. 

It is well established that if an agreement or a clause within it is susceptible of two meanings one of which would create a forfeiture and one would not, most arbitrators will select the one that does not.  The general rule is that parties are presumed to know their contract and that they did not intend to leave in a clause but negotiate another clause that negates the effect of the first one.  See Elkouri and Elkouri, How Arbitration Works, 6th Ed. BNA Books at page 483. 

Requiring student assessments as a prerequisite for merit pay would render informational assessments moot.  The University pointed out that these have always been subject to “agreement” between the faculty member and Department Head.  However, such an agreement would run completely contrary to the position that student assessments are required as a precondition to merit pay.  Thus, as a practical matter, there was some merit to the Union’s assertion that this new policy renders Subdivision 3.26 moot because if assessments are required in every class every semester there could be virtually no such thing as a truly “informational” assessment. 


 

The main thrust of the Union’s claim however rested on Paragraph 3.433, which clearly requires that merit pay is based on a combination of teaching, research and service.  This language requires that all three of these criteria be used.  Requiring a student assessment, which the evidence showed pertained only to the teaching piece, would render virtually moot any consideration of the other two required criteria.  Further, as noted above, the evidence showed that a faculty member can have a 0 in the teaching criterion and still be considered for and receive merit pay based on the other two criteria.  Requiring student assessments does as the Union suggests, conflate one of the criteria at the expense of the others.  The contract terms are clear and require that all three be considered. 

PAST PRACTICE

Past practice has been defined as a ‘prior course of conduct which is consistently made in response to a recurring situation and regarded as a correct and required response under the circumstances.”  See, Mittenthal, Past Practice and the Administration of Collective Bargaining Agreements, in Arbitration and Public Policy 30 (S. Pollard ed. 1961). 

Elkouri states it in slightly different terms as follows: In the absence of a written agreement, ‘past practice,’ to be binding must be (1) unequivocal; (2) clearly enunciated and acted upon; (3) readily ascertainable over a reasonable period of time as a fixed, and established practice accepted by both parties.”  Elkouri at 632 citing to Celanese Corp. of America, 24 LA 168 (Justin 1954). 

A past practice is thus nothing more, or less, than a custom or an accepted way of doing things as between two parties to a labor agreement that can provide either assistance in interpreting contract language where that language is ambiguous or to actually provide a binding set of terms for matters not included in the labor agreement.  Clearly, as the commentators have discussed, the mere fact that something happens once or even multiple times does not mean that a binding past practice has occurred. 


 

The question is thus whether having done something in the past, that course of conduct will be binding in the future.  This discussion will thus focus on whether something is a binding past practice as opposed to a happenstance event that has no particular evidentiary or contractual significance and therefore does not bind the parties to doing it that way in the future. 

Further, there was considerable argument by both parties regarding past practice and the University asserted that there is a long practice in other departments whereby student assessments have been required.  This case frankly rests on the language cited above, specifically the requirement that merit pay be based on all three criteria, i.e. teaching, research and service; not merely on one of those, but some brief discussion of the practice here is warranted given the arguments of the parties.

The preeminent arbitrator and professor Richard Mittenthal’s seminal article on past practice states as follows: “Past practice has been defined as a ‘prior course of conduct which is consistently made in response to a recurring situation and regarded as a correct and required response under the circumstances.’  Certain qualities distinguish a binding past practice from a course of conduct that has no particular evidentiary significance:  (1) clarity and consistency; (2) longevity and repetition; (3) acceptability; (4) a consideration of the underlying circumstances; (5) mutuality.  See, Richard Mittenthal, Past Practice and the Administration of Collective Bargaining Agreements, in Arbitration and Public Policy 30 (S. Pollard ed. 1961). 

Here the evidence showed that the practice has neither been consistent nor mutually accepted in every department over time.  Clearly some departments and colleges have required student assessments but it was not clear whether those were a prerequisite to any merit pay at all.  It was also clear that not every department required student assessments in the fashion now at issue. 

Thus, several crucial elements necessary to establish a binding past practice, as opposed to one that simply existed but which was not generally regarded as a required response to a recurring set of circumstances, to use the terminology of the commentators, were missing. 

On this record there was insufficient evidence to establish a binding past practice either way.  There was certainly insufficient evidence to establish a practice that either replaced or materially altered the meaning of the contract language cited above. 

Thus, irrespective of which set of issue statements are used, the import of the findings above are the same.  If the question posed is either as the Union stated it: Did the University violate the contract when it required philosophy and world religions faculty to have a student evaluation of every course every semester as a pre-condition to consideration for merit pay?  Or, as the University stated it: Whether the Employer violated section 3.433 of the CBA when the grievant’s Department Head advised her that she would not be eligible for merit pay consideration unless she had student assessments performed in every class she taught for both semesters? the answer is the same.

Yes, as set forth above.  The provisions of 3.433 are clear and require that all three criteria must be used.  Requiring student assessments in every course every semester as a prerequisite for merit pay effectively subordinates research and service to teaching.  As noted above, merit pay can be awarded even though the faculty receives a 0 rating for teaching alone.  The other clear answer here is that informational assessments are not considered for merit pay under the provisions of subdivision 3.26.  Thus, there was no violation of the CBA in informing the grievant that her request for an informational assessment was denied, since they are still subject to the language of subdivision 3.26.  Having made the ruling with respect to the use of student assessments, there is no need to address the remaining question of whether the use of an informational assessment can “count” toward the requirement of an assessment in every class in every semester. 

Thus the answer to the University’s statement of the issue is in the negative; there was no CBA violation by informing the grievant that her informational assessment could not be used for merit pay.  This of course is subject to the ruling above on whether student evaluations of every course every semester as a pre-condition to consideration for merit pay. 


 

AWARD

The grievance is SUSTAINED as set forth above.  The University is ordered to cease and desist from using student assessments in every course every semester as a prerequisite for merit pay determinations.

 

Dated: April 23, 2012                                                             _________________________________

                                                                                                Jeffrey W. Jacobs, arbitrator

United Faculty and UNI AWARD.doc


 

[1] The criteria in Ms. DeBerg’s department set forth in Document 4 of Joint Exhibit 2, Dep’t of Philosophy and World Religions 2010-2011 10 point merit system are as follows:

1. Teaching (up to three points total):

A.      Student evals (up to 2 points) – If evals are not meritorious, this will not be held against a faculty member (points will not be subtracted)

a.       0 = no evals – no merit will be given at all for faculty who do not have student evals – (per Provost’s Office)

b.       1= between top 10% to top 30%

c.        2= top 10%

B.      Other meritorious evidence (up to 2 points, which can be earned without earning points by student evaluation)

a.       0= no noteworthy evidence beyond norm

b.       1=several types of other evidence

c.        2= numerous types of evidence

Other evidence: teaching awards; leadership in teaching on campus; independent research on teaching; supervise theses; unsolicited praise

Increased teaching load or teaching larger classes; teach for continuing education; teach new courses (new preps); teaching established courses with new experimental methods

2. scholarship (up to 3 points total): ….

3. service (up to 3 points total): ….

4. floating point – up to one additional point can be earned in any one (but in only one) of

    the three categories for extraordinary performance; …”