           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


East Stroudsburg University             :
of Pennsylvania, State System           : No. 85 C.D. 2015
of Higher Education,                    : Argued: September 17, 2015
                                        :
                         Petitioner     :
                                        :
                   v.                   :
                                        :
Association of Pennsylvania State       :
College and University Faculties,       :
                                        :
                         Respondent     :


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION
BY SENIOR JUDGE FRIEDMAN                                FILED: October 19, 2015

            East Stroudsburg University of Pennsylvania, State System of Higher
Education (ESU), petitions for review of the December 23, 2014, arbitration award of
Richard W. Dissen (Arbitrator), who sustained a grievance filed by Dr. John Freeman
(Grievant) challenging the denial of his tenure application. The Arbitrator ordered
that Grievant be reinstated to his position as a chemistry professor and that he be
permitted to re-apply for tenure. We affirm.


            In 2005, then-ESU President Robert Dillman hired Grievant as a
probationary, tenure-track assistant chemistry professor. Grievant is a member of a
bargaining unit represented by the Association of Pennsylvania State College and
University Faculties (Union) and a signatory to a collective bargaining agreement
(CBA).


                  In 2010, after the expiration of his five-year probationary period,
Grievant applied for tenure, which President Dillman denied based on lack of
scholarly growth.1 Based on this denial, ESU terminated Grievant’s employment in
the spring of 2012. Grievant filed a grievance under the CBA. In August 2012, new
ESU President Marcia Welsh2 rescinded Grievant’s tenure denial, reinstated Grievant
to his prior, tenure-track position, and permitted him to re-apply for tenure by
December 31, 2012.


                  On December 21, 2012, Grievant re-applied for tenure, which President
Welsh denied on May 30, 2013, based on lack of scholarly growth. Grievant filed a
grievance, alleging, inter alia:

                  Despite positive recommendations by his department
                  committee and the University-Wide Tenure Committee,
                  [President Welsh] decided to deny the Grievant tenure. The

       1
           Under Article 12.B.2. of the CBA, “scholarly growth” includes:

       development of experimental programs (including distance education), papers
       delivered at national and regional meetings of professional societies; regional and
       national awards; offices held in professional organizations; invitational lectures
       given; participation in panels at regional and national meetings of professional
       organizations; grant acquisitions; editorships of professional journals; . . .
       consultantships; research projects and publication record; additional graduate work;
       contribution to the scholarly growth of one’s peers; and any other data agreed to by
       the FACULTY and Administration at local meet and discuss [sic].

(R.R. at 385a.)

       2
           President Welsh assumed the presidency on July 1, 2012. (N.T., 9/23/14, at 22.)

                                                  2
                  department chair had provided an unfavorable
                  recommendation for tenure, although he had previously (as
                  a member of the department evaluation committee) been
                  supportive of the Grievant’s first application for tenure.

                  [Because] two of the three tenure recommendations were
                  positive, . . . Article 15.E.4 [of the CBA] provides the
                  Grievant the opportunity to grieve the denial of tenure.

(R.R. at 524a.)3


                  The grievance proceeded to arbitration.4 The Arbitrator held hearings on
September 23 and 24, 2014. The issues before the Arbitrator were whether ESU
violated the CBA by denying Grievant’s tenure application and, if so, what was the
appropriate remedy.


                  Much of the evidence presented at the arbitration hearing involved the
quality of scholarship performed by Grievant and whether those scholarly activities
justified a grant of tenure.          The parties also presented evidence regarding the


       3
           Article 15.E.4. of the CBA provides:

       The President shall grant tenure effective as of the beginning of the next academic
       term to those FACULTY MEMBERS whom he/she approves and such decisions
       shall not be subject to the provisions of Article 5 [of the CBA] . . . . However, if at
       least two (2) of the three (3) recommendations (department committee, University-
       wide committee, department chairperson) are positive with respect to the granting of
       tenure and the President denies tenure, the FACULTY MEMBER shall have the
       right to grieve the denial of tenure in accordance with the terms of Article 5 [of the
       CBA].

(R.R. at 396a.)

       4
         The Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 563, as amended,
43 P.S. §§1101.101-1101.2301, governs the arbitration of Union-member grievances.

                                                  3
procedure used by President Welsh to review Grievant’s tenure application as well as
the tenure-review procedures outlined in Article 15 of the CBA. (See R.R. at 395a-
98a.)


            The Arbitrator concluded that ESU violated the tenure-review
procedures set forth in the CBA.       The Arbitrator found that President Welsh
unilaterally modified the tenure-review process in the CBA and engaged in conduct
that undermined the CBA.       Of particular significance was President Welsh’s
admission at the hearing that she did not review the recommendations of the
university-wide tenure committee or the department chairperson before reaching her
decision. The Arbitrator explained:

            Although the President might assert that the
            recommendations of colleagues are inherently suspect, the
            parties have nonetheless negotiated and jointly established a
            procedure that mandates faculty input in tenure decisions.
            The President was not free to disregard the procedural
            directives of the [CBA]. . . .

            . . . Although the President could certainly disagree with
            recommendations of committees and the department
            chairperson, she could not validly reach a final
            determination     without     considering    the    faculty
            recommendations first. The President’s departure from the
            procedure mandated by the [CBA] denied the Grievant the
            full scope of information that should have been within the
            President’s knowledge at the time that she reached a
            decision.

(Arb. Award at 25-26.)      The Arbitrator noted that at the time of Grievant’s
application, President Welsh was new to ESU and had only been in office a short
time; thus, she undoubtedly would have benefited from the faculty recommendations,
which had been accumulated over five years, before reaching her decision. (Id. at
                                         4
27.)   Furthermore, the Arbitrator agreed with the Union that President Welsh
improperly consulted with the ESU Provost before issuing her decision, finding that
“[i]n the absence of a complete delegation of her tenure[-]review authority, [President
Welsh] was not free to include [in the tenure-review process] administrators or other
parties not contemplated by the parties’ [CBA].” (Id. at 28.)


              Therefore, the Arbitrator sustained the grievance and ordered that
Grievant be reinstated to his position with the opportunity to re-apply for tenure and
have his application reviewed by an independent official other than President Welsh
or the Provost. (Id. at 31.) The Arbitrator also determined that Grievant should be
reimbursed for all lost wages, benefits, seniority, and other emoluments of
employment that he would have received but for the improper tenure denial. (Id.)
ESU now petitions for review of that decision.5


              First, ESU argues that the Arbitrator’s decision fails to draw its essence
from the CBA because the CBA does not require President Welsh to review a tenure
application in a specific manner, nor does it preclude President Welsh from
consulting with the Provost on tenure matters. It is well settled that an arbitration
award under PERA must draw its essence from the CBA. State System of Higher
Education (Cheyney University) v. State College University Professional Association
(PSEA-NEA), 743 A.2d 405, 413 (Pa. 1999). Under the “essence” test, this court will
uphold an arbitration award if: (1) the issue, as properly defined, is within the terms

       5
          Our scope of review of an arbitration award is one of deference. Slippery Rock University
of Pennsylvania, Pennsylvania State System of Higher Education v. Association of Pennsylvania
State College and University Faculty, 71 A.3d 353, 358 (Pa. Cmwlth.), appeal denied, 83 A.3d 169
(Pa. 2013). Our review of an arbitration award is limited to determining whether the award draws
its essence from the CBA or violates an established public policy. Id.

                                                5
of the CBA; and (2) the award is rationally derived from the CBA. Id. This court
will vacate an arbitration award only if “the award indisputably and genuinely is
without foundation in, or fails to logically flow from, the [CBA].” Id.


             Here, ESU concedes that the first prong of the essence test has been met
because the issue of whether President Welsh violated the tenure-review process is
within the terms of the CBA. ESU argues, however, that by requiring President
Welsh to review the committee recommendations before conducting her own review
of Grievant’s application, the Arbitrator improperly added terms to the CBA. We
disagree.


             Article 15 of the CBA prescribes a detailed procedure by which faculty
committees    and    department     chairpersons    are   to   submit     written   tenure
recommendations to the president within specific timeframes. (See R.R. at 395a-
98a.) While the president may ultimately disagree with those recommendations, he
or she cannot make a decision without first considering them. In fact, Article 15.E.6.
of the CBA expressly permits the president to “act independently” on a tenure
decision only “if the committee(s) fail [sic] to act within the time limits specified [for
submitting their written recommendations to the president].” (R.R. at 397a.) Here,
President Welsh admitted that she did not consider the faculty assessments before
reaching her decision and reviewed them only after she conducted her own
independent review of Grievant’s application. (N.T., 9/23/14, at 38-39.) As the
Arbitrator appropriately observed, “It is implausible that the parties mutually
established a procedure contemplating extensive faculty input but implicitly agreed
that [such] input, if provided, need not be considered before arriving at a final
determination.” (Arb. Award at 25.)

                                            6
               Furthermore, we agree with the Arbitrator that President Welsh
impermissibly consulted with the Provost before denying Grievant’s application.
(See N.T., 9/23/14, at 59, 92.) While the president may select a “designee” to carry
out the president’s Article 15 duties (see Article 15.E.3. of the CBA; R.R. at 396a),
the CBA does not authorize the president to consult with parties not specified in the
CBA’s tenure-review process. Therefore, absent a complete delegation of her duties,
President Welsh was not free to consult with the Provost before rendering her
decision.


               Next, ESU asserts that the Arbitrator violated the express terms of the
CBA and section 2010-A(1) of the Public School Code of 1949 (Code)6 by mandating
that someone other than President Welsh or the Provost review Grievant’s tenure
application. We disagree.


               Section 2010-A(1) of the Code authorizes the president to make
employment decisions “[e]xcept insofar as such matters are governed by [CBAs]
entered pursuant to [PERA].” 24 P.S. §20-2010-A(1). Here, Article 15.E.3. of the
CBA permits President Welsh to designate another university official to review
tenure applications in her stead. Based on the evidence presented at the hearings, the
Arbitrator determined that the judgments of both President Welsh and the Provost


       6
         Act of March 10, 1949, P.L. 30, added by section 2 of the Act of November 12, 1982, P.L.
660, as amended, 24 P.S. §20-2010-A(1). Section 2010-A(1) of the Code provides, inter alia, that
“[t]he president of each institution . . . shall be the chief executive officer of that institution” and
shall have the power “to establish policies and procedures governing employment rights, promotion,
dismissal, tenure, leaves of absence, grievances and salary schedules,” with the exception of matters
governed by CBAs under PERA. 24 P.S. §20-2010-A(1).

                                                   7
regarding Grievant’s tenure application were irreversibly tainted by their prior
conduct. Thus, due to the procedural infirmities of Grievant’s prior tenure-review
process, the Arbitrator created an appropriate remedy to ensure that Grievant’s new
tenure application would be fairly evaluated.


             Finally, ESU asserts that even if the Arbitrator’s award were rationally
derived from the CBA, it violates public policy and should be vacated. Under the
public policy exception to the essence test, an arbitration award may be set aside if it
violates a “well-defined, dominant” public policy “ascertained by reference to the
laws and legal precedents and not from general considerations of supposed public
interests.” Westmoreland Intermediate Unit No. 7 v. Westmoreland Intermediate
Unit No. 7 Classroom Assistants Educational Support Personnel Association, 939
A.2d 855, 866 (Pa. 2007). In deciding whether to apply the public policy exception,
the court must consider: (1) the nature of the employee’s conduct leading to his or
her discipline; (2) whether the employee’s conduct implicates a well-defined,
dominant public policy; and (3) whether the arbitration award poses an unacceptable
risk that it will undermine the implicated policy.       Slippery Rock University of
Pennsylvania, Pennsylvania State System of Higher Education v. Association of
Pennsylvania State College and University Faculty, 71 A.3d 353, 363 (Pa. Cmwlth.),
appeal denied, 83 A.3d 169 (Pa. 2013).


             ESU claims that the award violates public policy by divesting President
Welsh of her exclusive authority to make employment decisions on ESU’s behalf.
We cannot agree. Under the circumstances, the Arbitrator acted appropriately in
requiring President Welsh to exercise her authority under the CBA to designate an
impartial third party to review Grievant’s tenure application in order to ensure a fair

                                           8
assessment of his candidacy. The Arbitrator’s award violates neither the law nor a
well-defined, dominant public policy.


            Accordingly, we affirm.




                                        ___________________________________
                                        ROCHELLE S. FRIEDMAN, Senior Judge




                                           9
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


East Stroudsburg University             :
of Pennsylvania, State System           : No. 85 C.D. 2015
of Higher Education,                    :
                                        :
                        Petitioner      :
                                        :
                  v.                    :
                                        :
Association of Pennsylvania State       :
College and University Faculties,       :
                                        :
                        Respondent      :


                                     ORDER


            AND NOW, this 19th day of October, 2015, we hereby affirm the
December 23, 2014, arbitration award.



                                        ___________________________________
                                        ROCHELLE S. FRIEDMAN, Senior Judge
