        IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Edinboro University of Pennsylvania,    :
State System of Higher Education,       :
                        Petitioner      :
                                        :
            v.                          :   No. 2133 C.D. 2014
                                        :
Association of Pennsylvania State       :   Argued: September 17, 2015
College and University Faculties,       :
                        Respondent      :



BEFORE:     HONORABLE DAN PELLEGRINI, President Judge
            HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE P. KEVIN BROBSON, Judge


OPINION BY
JUDGE COHN JUBELIRER                               FILED: November 13, 2015

      Edinboro University of Pennsylvania, State System of Higher Education
(University), petitions for review of the November 1, 2014 arbitration award
(Arbitration Award), which sustained a grievance filed by the Association of
Pennsylvania State College and University Faculties (APSCUF) on behalf of
University assistant professor, Barbara Miller (Miller), challenging the denial of
her tenure application by the University.   The Arbitration Award directed the
University to retroactively grant tenure to Miller and make Miller whole for any
losses. On appeal, the University argues that (1) the Arbitration Award failed to
draw its essence from the Collective Bargaining Agreement (CBA) because (a) the
Arbitrator usurped the University President’s (President) judgment in granting
tenure; (b) Miller did not have a substantive right to permanent employment; and
(c) the Arbitrator could not grant relief in the nature of specific performance; and
(2) the Arbitration Award violated a well-established, defined public policy.
Because we conclude that the Arbitrator exceeded her authority in granting Miller
tenure, we reverse and remand.


      In 2008, Miller was hired by the University as a probationary tenure-track
assistant professor in the Professional Studies Department. (Arbitration Award at
1.) As a probationary tenure-track faculty member, Miller was subject to the CBA
between APSCUF and the Pennsylvania State System of Higher Education
(PASSHE). (Arbitration Award at 1.) Miller was also subject to a separate Local
Agreement between APSCUF and the University. (Arbitration Award at 3.)


      Under the CBA, a tenure-track faculty member is subject to a five-year
probationary period. (CBA at Art. 15, § B, R.R. at 400a.) During the five-year
probationary period, an annual performance review and evaluation is conducted
with regard to the probationary faculty member’s performance. (CBA at Art. 15, §
B, R.R. at 400a.) The categories of performance review and evaluation are: (1)
teaching and fulfillment of professional responsibilities; (2) continuing scholarly
growth; and (3) service contribution to the University and/or community. (CBA at
Art. 12, § B, R.R. at 389a.) The CBA does not provide specific instructions for
evaluating the three categories, but states “[when] evaluating the data, the
appropriate evaluator(s) shall give greater weight to the quality of the performance
reflected in the data, than to the quantity of the data.” (CBA at Art. 12, § B, R.R.
at 389a.)   The CBA lists several examples of activities that are considered
“continuing scholarly growth” including:


                                         2
        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; participation
        in juried shows; program-related projects; quality of musical or
        theatrical performances; participation in one-person or invitational
        shows; 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.

(CBA at Art. 12, § B.2, R.R. at 390a.) During each of the five years of the
probationary period, the Department Evaluation Committee evaluates the
probationary faculty member and prepares a recommendation for the Academic
Dean that either recommends or does not recommend continued employment.
(CBA at Art. 12, § C.1.c, R.R. at 392a.)             The Academic Dean makes a
recommendation to the President, who then decides whether the probationary
faculty member’s contract should be renewed for the following year. (CBA at Art.
12, § C.1.c.3, R.R. at 393a; CBA at Art. 14, § A.4, R.R. at 398a.)


        When the probationary faculty member begins her fifth year of service, she
is provided notice of her ability to apply for tenure during the fifth year. (CBA at
Art. 15, § C.1, R.R. at 400a.) If the fifth year probationary faculty member does
not apply for tenure, then that probationary faculty member’s sixth year of
employment is her terminal year. (CBA at Art. 15, § C.2, R.R. at 400a.) The three
criteria for awarding tenure are the same criteria used to annually evaluate
probationary faculty members.          (Arbitration Award at 21; Guidelines and
Responsibilities for Faculty Applying for Tenure (Local Agreement), R.R. at 318a-
19a.)    In order to be awarded tenure, the probationary faculty member must
                                           3
demonstrate success in all three criteria in her tenure application. (Arbitration
Award at 21-22; Local Agreement, R.R. at 318a-19a.) In addition to those listed in
the CBA, the Local Agreement lists several other criteria to consider when
evaluating whether a faculty member has exhibited “continuing scholarly growth,”
including:

      a. Graduate work completed
      b. Development of new scholarly or practical insights
      c. Development of new courses
      d. Membership in professional organizations
      e. Attendance at professional workshops, institutes or short courses
      f. Evidence of active research or development of performing or artistic
      abilities
      g. Testimony of experts in the discipline
      h. Invited papers delivered, performances given, exhibits held, etc.
      i. Professional consultant activities
      j. Evidence of current activity which maintains or increases subject
      mastery.
(Local Agreement, R.R. at 319a.)


      The application for tenure is initially submitted to the Department Tenure
Committee    (DTC) and      the Department      Chair   (Chair),   which   provide
recommendations on tenure. (CBA at Art. 15, § E.1, R.R. at 401a.) After the DTC
and Chair make their recommendations, the application is submitted to the
University Tenure Committee (UTC), which reviews the application and
recommendations and provides a tenure recommendation to the President. (CBA
at Art. 15, § E.2-3, R.R. at 401a.) The President reviews the application and all
three recommendations, determines whether the criteria for tenure have been met,
and decides whether the applicant should be awarded tenure. (CBA at Art. 15, §
E.4, R.R. at 401a.)

                                        4
      If the President decides to deny tenure to the applicant, but the applicant has
received at least two positive recommendations from the three recommending
bodies (DTC, Chair, UTC), then the applicant has the ability to file a grievance in
accordance with Article 5 of the CBA. (CBA at Art. 15, § E.4, R.R. at 401a.)
Moreover, where two of the three recommending bodies provide positive
recommendations, but the University denies tenure, the applicant may request that
the President provide reasons, in writing, for denying tenure. (CBA at Art. 15, §
E.5, R.R. at 401a.) The grievance must proceed through a three-step process
before reaching an arbitrator. (CBA at Art. 5, § C, R.R. at 371a.) Under the CBA,
the decision of the arbitrator is final and binding upon the parties, except where
enactment of the decision would require legislation. (CBA Art. 5, § D, R.R. at
373a.) The arbitrator, however, does not have authority to add to, subtract from, or
modify the CBA, and the CBA must constitute the sole basis upon which the
decision is based. (CBA Art. 5, § D, R.R. at 373a.)


      During Miller’s five-year probationary period, she received five favorable
evaluations and was unanimously recommended for retention. (Arbitration Award
at 5-7, 23.) Miller applied for tenure at the beginning of her fifth year and the
DTC, Chair, and UTC all recommended that she be awarded tenure. (Arbitration
Award at 2, 8.) The application was then submitted to the President, who denied
tenure. (Arbitration Award at 2, 8.) In denying tenure, the President wrote that
“tenure is earned through the demonstration of excellence in teaching, research,
and service” and that based on her review of Miller’s application, she had decided
not to grant tenure. (President Letter, May 13, 2013, R.R. at 281a (emphasis
added).) The letter also informed Miller that the sixth year of her employment


                                         5
with the University would be her last year. (President Letter, May 13, 2013, R.R.
at 281a.) Thereafter, pursuant to the CBA, Miller requested that the President
provide reasons for denying tenure. (Arbitration Award at 9.) The President wrote
back to Miller that, “[q]uite simply, your scholarly growth is minimal and the
quality of scholarship that you have produced over your first four and one half (4
½) years as a probationary faculty member at Edinboro University…[wa]s not
adequate for tenure and the privileges pertaining thereto.” (President Letter, May
29, 2013, R.R. at 282a.) The President also wrote that the quantity and quality of
Miller’s scholarship was insufficient for someone who spent four and a half years
on the tenure track and that her scholarly contributions had not progressed to a
level where tenure was warranted. (President Letter, May 29, 2013, R.R. at 282a.)


         Miller filed a grievance based on the tenure denial, which proceeded to
arbitration. (Arbitration Award at 9.) The Arbitrator concluded that the main issue
for disposition was the meaning of the term “continuing scholarly growth” in the
CBA and whether the President erred in determining that Miller had not met the
criterion for “continuing scholarly growth” in her tenure application. (Arbitration
Award at 21-22.) It was undisputed that Miller’s qualifications in the other two
criteria—teaching and service contribution—were sufficient. (Arbitration Award
at 3.)    The Arbitrator determined that “continuing scholarly growth” is more
expansive than simply just “research” and that “the CBA and the Local Agreement
list a broad variety of other paths to satisfaction of that criterion.” (Arbitration
Award at 22.)




                                         6
      The Arbitrator determined that, during Miller’s probationary years, the
feedback she received in her annual evaluations signaled that she was satisfying
the contractual criterion of continuing scholarly growth and that she was never
informed that she was not meeting the standards for continuing scholarly growth.
(Arbitration Award at 23.)     The Arbitrator found that Miller performed well in
several categories that are considered continuing scholarly growth, including
“achievement in the development of experimental programs (including distance
education); papers delivered at national and regional meetings of professional
societies; offices held in professional organizations; invitational lectures given;
participation in panels at regional and national meetings of professional
organizations; grant acquisitions; consultantships; and contribution to the scholarly
growth of her peers.” (Arbitration Award at 23.) The Arbitrator found that the
DTC, Chair, UTC, and four different deans all found that these activities
constituted continuing scholarly growth and that Miller had catalogued these
activities in her tenure application. (Arbitration Award at 23.)


      The Arbitrator determined that under Article 15 of the CBA she had the
authority to review tenure denials. (Arbitration Award at 24.) The Arbitrator
concluded that although “the ultimate decision is left to the [P]resident . . . it
cannot be made in disregard of applicable contractual standards and past practice.”
(Arbitration Award at 24.)        The Arbitrator determined that “[d]uring the
probationary period . . . evaluators invariably found [Miller’s] progress fully
satisfactory with respect to all three of the relevant contractual criteria, including
continuing scholarly growth,” and that the performance reviews informed her that
she was doing what was expected of a tenure candidate. (Arbitration Award at 26


                                          7
(emphasis added).) The Arbitrator concluded that the President could deny “tenure
only by unreasonably narrowing and/or redefining the criterion of continuing
scholarly growth” to only include “research” and that, accordingly, the President
violated the CBA in denying tenure. (Arbitration Award at 22, 26.)


      The Arbitrator next addressed the appropriate remedy for Miller.
(Arbitration Award at 26.)   PASSHE asserted that the Arbitrator did not have the
authority to award tenure and that the only proper remedy was to return Miller to
probationary status at the University and allow her to reapply for tenure.
(Arbitration Award at 26.) In contrast, APSCUF argued that the Arbitrator could
award tenure. (Arbitration Award at 26.) The Arbitrator determined that, because
the President had misapplied “the CBA criterion for continuing scholarly growth,”
the President could no longer serve as an objective decision maker. (Arbitration
Award at 28.) Thus, the Arbitrator concluded that

      [n]o useful purpose would be served by returning the tenure
      application to the [P]resident for further consideration, since she ha[d]
      already rejected [Miller’s] record of accomplishments as well as the
      uniform judgment of the various reviewing entities throughout the
      probationary period that [Miller’s] record satisfied the contractual
      criterion for tenure.

(Arbitration Award at 28.)


      The Arbitrator determined that, because the CBA placed no limits on
arbitrators’ remedial authority, arbitrators are “authorized to grant tenure when
reconsideration by the [P]resident is not a practical remedy.” (Arbitration Award
at 28.) Therefore, the Arbitrator granted Miller tenure retroactively and directed


                                         8
the University to make Miller whole for any losses. (Arbitration Award at 29.)
The University now petitions this Court for review of the Arbitration Award.


      It is well-established that, in reviewing an arbitration award, this Court
applies the two-prong “essence test” analysis. State System of Higher Education
(Cheyney University) v. State College University Professional Association (PSEA-
NEA), 743 A.2d 405, 413 (Pa. 1999). “First, the court . . . determine[s] if the issue
as properly defined is within the terms of the [CBA]. Second, if the issue is
embraced by the agreement, and thus, appropriately before the arbitrator, the
arbitrator’s award will be upheld if the arbitrator’s interpretation can rationally be
derived from the [CBA].” Id. Thus, this “[C]ourt will only vacate an arbitrator’s
award where the award indisputably and genuinely is without foundation in, or
fails to logically flow from, the [CBA].” Id.


      On appeal, the University does not challenge the Arbitrator’s interpretation
of the term “continuing scholarly growth” in the CBA or her conclusion that the
President violated the terms of the CBA, but mainly challenges the actual award of
tenure to Miller. The University argues that the award of tenure fails the essence
test because it is not rationally derived from the CBA. An arbitrator does not have
the academic expertise to evaluate the substance of a tenure application. The
University contends that, because the Arbitrator engaged in a substantive review of
the tenure application and determined that the President did not properly evaluate
Miller’s “continuing scholarly growth,” the Arbitrator effectively substituted her
academic judgment for that of the President.



                                          9
       The University acknowledges that an arbitrator has the authority to review a
President’s tenure decision and may even reinstate a probationary faculty member
to the status quo ante. However, the University relies on Bloomsburg University
of State System of Higher Education v. Association of Pennsylvania State College
and University Faculties, 552 A.2d 1180 (Pa. Cmwlth. 1989), and Slippery Rock
University of Pennsylvania, Pennsylvania State System of Higher Education v.
Association of Pennsylvania State College and University Faculty (Pa. Cmwlth.,
No. 1648 C.D. 2008, filed May 12, 2009) (Slippery Rock II),1 to argue that an
arbitrator does not have the authority to actually award tenure. The University
contends that this Arbitration Award is the only time in the history of the dealings
between the parties that an arbitrator has unconditionally awarded tenure and
granted permanent employment to a probationary faculty member. While it is the
Arbitrator’s prerogative to disagree with the President’s decision to deny Miller
tenure, the Arbitrator lacks the authority under the CBA to grant tenure. As in
previous cases, here the proper remedy is to “reinstate[] Miller to her fifth year
probationary status, ma[k]e her whole for any lost wages, and provide[] her the
ability to reapply for tenure.”           (University’s Br. at 30.)          Accordingly, the
University argues that the matter should be vacated and remanded to the Arbitrator
for the entry of an award within the scope of her authority.


       In contrast, APSCUF maintains that the Arbitration Award satisfies the
“essence test.” APSCUF contends that other arbitration awards involving the same


       1
          Pursuant to Section 414 of this Court’s Internal Operating Procedures, an unreported
panel decision issued by this Court after January 15, 2008 may be cited “for its persuasive value,
but not as binding precedent.” 210 Pa. Code § 69.414.

                                               10
CBA have awarded tenure or recognized arbitrators’ authority to grant tenure.
Here, because the President’s conduct violated the CBA and the President’s
judgment was tainted, it was appropriate to grant tenure to Miller rather than allow
her to resubmit her tenure application to the President. APSCUF contends that the
Arbitrator’s decision to grant Miller tenure was rationally derived from the CBA
because the CBA places no limits on the Arbitrator’s ability to fashion a remedy
when the CBA is violated regarding tenure.


      APSCUF also contends that the Arbitrator did not substitute her judgment
for the President’s in granting Miller tenure, but instead based her decision on
Miller’s several evaluations conducted during the probationary period, which
determined that she satisfied the criterion for continuing scholarly growth. In
awarding tenure, the Arbitrator did not go through Miller’s tenure application and
re-evaluate the submitted materials, but instead relied solely on the judgment of the
other evaluators who found that Miller was worthy of tenure.         The Arbitrator
found that, but for the President’s misapplication of the criterion for “continuing
scholarly growth” in the CBA, Miller would have been granted tenure. APSCUF
asserts that the CBA explicitly allows probationary faculty members to file
grievances from denials of tenure when at least two of the three recommendations
are in favor of tenure; therefore, to argue that only the President may grant tenure
denies the contractual right bestowed upon Miller.


      Upon review, we find the University’s arguments persuasive. Pursuant to
Article 15, Section E.4 of the CBA,



                                         11
      [t]he 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, GRIEVANCE PROCEDURE AND ARBITRATION.
      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, GRIEVANCE PROCEDURE AND ARBITRATION.
(CBA at Art. 15, § E.4., R.R. at 401a.)


      In Bloomsburg University, 552 A.2d at 1181-82, an arbitrator decided a
grievance brought pursuant to a CBA containing the same language as Article 15.
Like the instant case, in Bloomsburg University a faculty member challenged his
tenure denial and the arbitrator concluded that Bloomsburg University had violated
the CBA by not considering all of the relevant evidence submitted by the faculty
member as part of his tenure application. Id. at 1181. Rather than grant tenure, the
arbitrator remanded the matter to Bloomsburg University to reprocess the faculty
member’s tenure application by considering the other relevant evidence submitted
with the application. Id. The award also reinstated the faculty member to fifth
year probationary status in the interim. Id. On appeal, Bloomsburg University
argued, inter alia, that the arbitrator exceeded his authority because the award
effectively created an open ended tenure review process whereby the grievant
would gain a sixth year of probationary status, in clear violation of the terms and
conditions of the CBA. Id.


      We determined that “[t]he arbitrator must be permitted a great degree of
discretion in fashioning an award, consistent with the intent of the agreement, that


                                          12
resolves the situation in a just manner.” Id. at 1182. We concluded that, “[i]n light
of the fact that [the arbitrator] remedied a specific violation of the agreement and
did not explore territories beyond his area of expertise, in that he expressly
declined to evaluate the tenure application, he did not exceed his authority and
there is no need for this court to disturb the award.” Id. (emphasis added). Thus,
we upheld the arbitrator’s review of a tenure denial, where the arbitrator reinstated
the grievant as a probationary faculty member and allowed the grievant to reapply
for tenure. Id.


       Likewise, in the unreported opinion of Slippery Rock II, this Court reviewed
an arbitration award involving essentially the same issues as the instant matter, i.e.
whether the grievant had satisfied the criterion for “continuing scholarly growth,”
and whether the arbitration award failed to satisfy the essence test. Slippery Rock
II, slip op. at 2, 15. In that case, the President of Slippery Rock University denied
tenure after the UTC recommended denying tenure due to inadequate scholarly
growth. Id., slip op. at 6-7. The arbitrator concluded that the denial of tenure was
not supported by the record, violated the CBA, and, thus, ordered the grievant to
“be reinstated to her status quo ante as a probationary faculty member, and that she
be deemed eligible for reconsideration for tenure.” Id., slip. op. at 7 (quotation
omitted). After the matter was remanded to the arbitrator following a separate
appeal,2 the arbitrator determined that APSCUF met its burden of demonstrating


       2
         Following the initial issuance of the arbitration award, Slippery Rock University
appealed to this Court in Slippery Rock University of Pennsylvania, Pennsylvania State System
of Higher Education v. Association of Pennsylvania State College and University Faculties, 916
A.2d 736, 743 (Pa. Cmwlth. 2007), arguing that the arbitrator applied the incorrect burden of
proof in reviewing the tenure denial. We concluded that the arbitrator incorrectly placed the
                                                                             (Continued…)
                                             13
that the grievant met the performance review criteria for tenure, including
scholarly growth, and, accordingly, awarded the same remedy as previously. Id.,
slip. op. at 9, 18.


       On appeal, Slippery Rock University argued that the arbitration award
violated public policy and did not logically flow from the CBA. Id., slip. op. at 14-
15. After holding that the arbitration award did not violate public policy, we
assessed whether the arbitration award was rationally derived from the CBA. Id.,
slip. op. at 15. The arbitrator had concluded that the UTC and the President both
failed to consider many of the grievant’s activities as scholarly growth, even
though such activities were considered scholarly growth under the CBA. Id., slip.
op. at 16-18.         We determined that the arbitrator completely understood the
requirements for tenure under Articles 12 and 15 of the CBA, and that the
arbitrator’s conclusion that the grievant satisfied the scholarly growth requirements
for tenure was rationally derived from the CBA. Id., slip. op. at 16-18. We also
upheld the remedy provided to the grievant by the arbitration award. Id., slip. op.
at 19.     While Slippery Rock II is not precedential, we find persuasive its
conclusion that an arbitrator has the authority to review a President’s denial of
tenure to determine whether the correct criteria for tenure were applied, and that an
arbitrator may allow a grievant to reapply for tenure if the incorrect criteria were
applied.




burden of proof on Slippery Rock University and, thus, vacated the award and remanded the
matter so that the arbitrator could place the burden of proof on APSCUF. Id.

                                           14
      More recently in East Stroudsburg University of Pennsylvania, State System
of Higher Education v. Association of Pennsylvania State College and University
Faculties, ___ A.3d ___ , ___ (Pa. Cmwlth., No. 85 C.D. 2015, filed October 19,
2015), slip op. at 5, this Court upheld an arbitrator’s award ordering, inter alia, that
the grievant be reinstated with the opportunity to re-apply for tenure.              In
accordance with our precedent, the arbitrator did not award tenure outright after
determining that the University President did not comply with the terms of the
CBA in denying tenure to the grievant. Id.


      Accordingly, pursuant to our decisions in Bloomsburg University, Slippery
Rock II, and East Stroudsburg, we conclude that the Arbitrator in the instant matter
did not err to the extent that she reviewed the President’s denial of tenure and
concluded that the President did not apply the correct criterion for “continuing
scholarly growth.”     However, here, in contrast with Bloomsburg University,
Slippery Rock II, and East Stroudsburg, the Arbitrator did not order that Miller be
reinstated and allow her to reapply for tenure, but instead granted Miller tenure
outright.   We conclude that the Arbitrator’s actual award of tenure was not
rationally derived from the CBA.


      Article 15 of the CBA explicitly states that “[t]he President shall grant
tenure . . . to those FACULTY MEMBERS whom he/she approves.” (CBA at Art.
15, § E.4., R.R. at 401a (emphasis added).) While Article 15 allows faculty
members to file grievances from tenure denials where two of the three
recommendations are positive, under Article 15 the President decides whom to
approve for tenure and there is nothing in the CBA that permitted the Arbitrator to


                                          15
substitute her judgment for that of the President and grant tenure where tenure had
already been denied. Although in East Stroudsburg, we also upheld the arbitrator’s
award mandating that someone other than the University President review the
grievant’s tenure application, that decision does not compel a different result in the
instant matter.


      The salient issue here is whether the Arbitrator had the authority to
reevaluate Miller’s tenure application and actually award tenure. As we have
discussed, no binding precedent of this Court has held that an arbitrator has the
authority to reevaluate a tenure application and actually award tenure. As we
concluded in Bloomsburg University, an arbitrator does not exceed his authority so
long as he does “not explore territories beyond his area of expertise” or “evaluate
the tenure application.” Bloomsburg University, 552 A.2d at 1182. After the
Arbitrator concluded that the President applied the wrong criterion for “continuing
scholarly growth” when evaluating Miller’s tenure application, and that the CBA
had been violated, the Arbitrator went beyond her expertise in examining Miller’s
annual performance evaluations and concluding that Miller had demonstrated
sufficient scholarly growth to justify granting tenure. Like the cases previously
discussed, after concluding that the CBA had been violated, the Arbitrator was
permitted only to reinstate Miller to probationary faculty member status and allow
her to reapply for tenure.


      Accordingly, because we conclude that the Arbitrator exceeded her authority
in granting tenure, we reverse the Arbitration Award and remand this matter to the
Arbitrator to issue an award (1) reinstating Miller to probationary status; (2)


                                         16
allowing Miller to reapply for tenure; and (3) instructing the President to apply the
correct criterion for “continuing scholarly growth” when evaluating Miller’s
resubmitted tenure application.3



                                               ________________________________
                                               RENÉE COHN JUBELIRER, Judge




       3
        Because we conclude that the Arbitrator exceeded her authority in granting tenure, it is
unnecessary to address the University’s other arguments.

                                              17
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA




Edinboro University of Pennsylvania,   :
State System of Higher Education,      :
                        Petitioner     :
                                       :
            v.                         :   No. 2133 C.D. 2014
                                       :
Association of Pennsylvania State      :
College and University Faculties,      :
                        Respondent     :


                                   ORDER

      NOW, November 13, 2015, the November 1, 2014 Arbitration Award,
entered in the above-captioned matter, is hereby REVERSED and this matter is
REMANDED for further proceedings consistent with the foregoing opinion.


      Jurisdiction relinquished.



                                       ________________________________
                                       RENÉE COHN JUBELIRER, Judge
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Edinboro University                      :
of Pennsylvania, State System            :
of Higher Education,                     :
                          Petitioner     :
                                         :
               v.                        :
                                         :
Association of Pennsylvania              :
State College and University             :
Faculties,                               :    No. 2133 C.D. 2014
                         Respondent      :    Argued: September 17, 2015


BEFORE:      HONORABLE DAN PELLEGRINI, President Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE P. KEVIN BROBSON, Judge




DISSENTING OPINION BY
PRESIDENT JUDGE PELLEGRINI                       FILED: November 13, 2015


             The sole issue in this case is whether an arbitrator may award tenure
when she finds that an application for tenure was denied only because an improper
criterion was used to review it. The majority agrees that an arbitrator had the
power to review a tenure denial by Edinboro University of Pennsylvania, State
System of Higher Education’s (Edinboro) President, and does not dispute the
arbitrator’s authority based upon her finding that the President did not apply the
correct criterion in concluding that Grievant did not demonstrate “continuing
scholarly growth,” to direct that Grievant be reinstated as a probationary employee
and resubmit her tenure application. However, the majority finds that the arbitrator
is without power to grant tenure, as she did here, because that decision is within the
sole discretion of the President. Because that holding is directly contrary to our
recent decision in East Stroudsburg University of Pennsylvania, State System of
Higher Education v. Association of Pennsylvania State College and University
Faculties, ___ A.3d ___ (Pa. Cmwlth., No. 85 C.D. 2015, filed October 19, 2015),
I respectfully dissent.


              Edinboro hired Barbara Miller, Ph.D. (Grievant) as an assistant
professor on the tenure track in its Professional Studies Department’s Educational
Leadership Program effective August 16, 2008.                    Following 4.5 years of
probationary employment and a promotion to associate professor in 2011, 1

       1
         At the time Grievant was hired in 2008, Jeremy Brown served as Edinboro’s President.
Grievant was promoted in 2011 under the tenure of a subsequent President, James Moran.
President Moran’s letter promoting Grievant stated, in relevant part, “Your achievements have
provided you recognition, and they have also prepared you for the increased obligations of
advanced rank. I know that you will continue scholarly growth in your contributions to your
profession and Edinboro University.” (Reproduced Record [R.R.] at 322a.)

        Similarly, the Department Chairperson, Dr. Marian S. Beckman, found evidence of
Grievant’s scholarly growth sufficient to support her promotion based on her doctorate and
certifications, her contributions to the National Recognition Report submitted for review of the
K12 Principal and Superintendent Programs which were nationally recognized in 2007, her
group deliberations which resulted in the development of the Educational Leadership doctoral
program, her work in revising the Pennsylvania Department of Education (PDE)’s Principal and
Superintendent Program Guidelines, her invitation to consult with the local school district, and
her active memberships in organizations related to education where she held leadership
positions.

       The Department Promotion Committee observed Grievant’s scholarly growth based on
her expertise in project implementation, pre-planning, development, and implementation of
funded programs, accreditation reports, PDE mandated curriculum changes, her coordination of
the proposal that brought Dr. Victoria Bernhardt to campus, her “significant contributions
representing the university leadership programs at the state level via PASSHE system
(Footnote continued on next page…)

                                           DRP - 2
Grievant applied for tenure pursuant to the terms of the collective bargaining
agreement (CBA) to which Edinboro and Grievant’s collective bargaining agent,
the Association of Pennsylvania State College and University Faculties
(APSCUF), are parties.


               Regarding the procedure for tenure, Article 15(E) of the CBA
provides that the applicant’s Department Tenure Committee must first provide to
the University-wide Tenure Committee a list of all fifth-year, probationary faculty
members who have applied for tenure and whom the Department Tenure
Committee recommends for tenure. At the same time, the Department Tenure
Committee Chairperson must make an independent recommendation. Next, the
University Tenure Committee must submit its recommendations to the President,
who “shall grant tenure effective as of the beginning of the next academic term to
those FACULTY MEMBERS whom he/she approves.” (R.R. at 401a.) In cases
where two of the three recommendations made to the President are positive and the
President denies tenure, the applicant may file a grievance in accordance with the
procedure set forth in Article 5 of the CBA, providing for a three-step resolution
process. If the grievance is not resolved in these steps, grievances proceed to
binding arbitration as follows:

                     Step Four – Binding Arbitration. If the Grievance
               has not been resolved at Step Three, [the Association],


(continued…)

competitions directly related to PDE reports and initiatives,” use best practices, and her skill base
in the area of evaluation. (Id. at 326a.)




                                             DRP - 3
            but not an individual FACULTY MEMBER or group of
            FACULTY MEMBERS, has the sole right to refer a
            grievance to arbitration and to conduct the proceeding as
            a party, and shall within forty (40) calendar days of the
            receipt of the written response from Step Three submit a
            written notice to the Chancellor of the STATE SYSTEM
            or his/her designee of its intent to submit the grievance to
            binding arbitration. It is understood that only [the
            Association], or counsel for [the Association], may
            present the case in support of any grievance at
            arbitration.

                                       ***

                   The decision of the arbitrator shall be final and
            binding upon the parties, except where the decision
            would require an enactment of legislation in which case
            the decision shall be binding only if and when such
            legislation is enacted. The arbitrator shall have no
            authority to add to, subtract from, or modify this
            Agreement. Each case shall be considered on its merits
            and this collective bargaining agreement shall constitute
            the sole basis upon which the decision shall be
            rendered…. The arbitrator shall confine himself/herself
            to the precise issue the parties have agreed to submit for
            arbitration and shall have no authority to determine any
            other issues not so submitted to him/her….


(Id. at 372a373a.).


            After Grievant submitted her application to the Department of
Professional Studies Tenure Committee, its Chair, Dr. Susan H. Packard, “strongly
recommend[ed]” Grievant for tenure.         Likewise, Dr. Marian S. Beckman,
Chairperson of the Department of Professional Studies, recommended Grievant for
tenure, as did the University Tenure Committee by unanimous vote. However,
Edinboro’s President, Julie B. Wollman, Ph.D., ultimately denied Grievant tenure,


                                     DRP - 4
advising, “[q]uite simply, your scholarly growth is minimal and the quality of
scholarship that you have produced over your first four and one half (4½) years as
a probationary faculty member at Edinboro University of Pennsylvania is not
adequate for tenure and the privileges pertaining thereto.” (Id. at 282a.) President
Wollman elucidated that her review was based on both the quality and quantity of
Grievant’s scholarly products, and she stated that Grievant’s application “fails to
demonstrate that [her] scholarly contributions have progressed during [her]
probationary period to a level where, in my professional judgment, tenure is
warranted.” (Id.)


              APSCUF filed a grievance contending that Edinboro violated Articles
122 and 15 of the CBA when it denied Grievant tenure. The matter eventually


       2
          In addition to fulfillment of professional responsibilities, effective teaching, and
contributions to the university and community, applicants for tenure must demonstrate
continuing scholarly growth. Article 12(B)(2) of the CBA regarding a faculty’s performance
reviews and evaluations lists the following as relevant factors in considering an applicant’s
continuing scholarly growth:

              development of experimental programs (including distance
              education), papers delivered at national and regional meetings of
              professional societies; regional 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; participation in juried shows; program-
              related projects; quality of musical or theatrical performances;
              participation in one-person or invitational shows; consultantships;
              research projects and publication records; 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].

(Footnote continued on next page…)

                                          DRP - 5
proceeded to arbitration where the parties stipulated to the following issue: “Did
[Edinboro] violate the [CBA] by denying tenure to the [G]rievant, and, if so, what
shall the remedy be?” (Arbitration Award, at 1.) The pertinent inquiry before this
Court is whether the arbitrator was authorized to award tenure under the CBA or
whether such a decision is solely within the purview of the President.


              East Stroudsburg University of Pennsylvania, State System of Higher
Education v. Association of Pennsylvania State College and University Faculties,
___ A.3d ___ (Pa. Cmwlth., No. 85 C.D. 2015, filed October 19, 2015), a recent
decision by this Court, involved identical language in the same CBA and the very
issue before us now. In that case, the arbitrator ordered that a professor whose
tenure application was improperly denied by a university president also
purportedly based upon a lack of scholarly growth be provided the opportunity to
re-apply for tenure, and that his application be reviewed by an independent official
other than the university president. Id., slip op. at 5. In affirming the award, we
explained that “the Arbitrator created an appropriate remedy to ensure that
Grievant’s new tenure application would be fairly evaluated,” despite the fact that
the CBA did not expressly permit the arbitrator to order review by someone other
than the university president. Id., slip op. at 8. This holding makes clear that a
university president does not have absolute and exclusive authority over decisions
regarding tenure applications, which are subject to substantive review by others.


(continued…)

(R.R. at 390a.) It also provides that “[w]hen evaluating the data, the appropriate evaluator(s)
shall give greater weight to the quality of the performance reflected in the data, than to the
quantity of the data.” (Id. at 389a.)



                                          DRP - 6
             Moreover, our decision in Bloomsburg University of Pennsylvania of
the State System of Higher Education v. Association of Pennsylvania State
Colleges and University Faculties, 552 A.2d 1180 (Pa. Cmwlth. 1989), does not
stand for the proposition that an arbitrator is limited to remanding a tenure
application to the university for reconsideration because a university’s president
retains sole control over employment decisions. In Bloomsburg, a tenure-track
professor applied for and was denied tenure by the university president after the
department committee and department chair recommended that tenure be granted
but the university-wide committee disagreed.         Id. at 1181.    Ultimately, the
arbitrator resolved the grievance pursuant to a CBA containing the same language
at issue here, ordering the professor’s reinstatement to probationary status and
granting him the right to reapply for tenure because the arbitrator found that the
university failed to consider all of the relevant evidence submitted.       Id.   In
affirming the arbitrator’s award, we stated:

             We recognize that the agreement stipulates that “[t]he
             arbitrator shall have no authority to add to, subtract from,
             or modify this Agreement.” Article XV, section D. We
             also recognize that, unless the agreement specifically
             addresses the decided award, any award could be
             construed as a modification.

             The arbitrator must be permitted a great degree of
             discretion in fashioning an award, consistent with the
             intent of the agreement, that resolves the situation in a
             just manner. In light of the fact that Arbitrator Jaffe
             remedied a specific violation of the agreement and did
             not explore territories beyond his area of expertise, in
             that he expressly declined to evaluate the tenure
             application, he did not exceed his authority and there is
             no need for this court to disturb the award.



                                      DRP - 7
Id. at 1182. Unlike this appeal, where all of the reviewing entities recommended
the grant of tenure and the President applied the wrong criterion, in Bloomsburg,
the university-wide committee and the president failed to consider relevant
evidence. The arbitrator in that case fashioned a remedy fitting the facts as did the
arbitrator here.


             Because East Stroudsburg holds that the President does not have sole
and exclusive authority to grant tenure, I would hold that the arbitrator acted within
her authority in fashioning the remedy in this case. In accordance with our long-
established precedent, the arbitrator must be given the flexibility to order this
remedy. Where, as here, it is necessary to the just resolution of the grievance and
thereby draws its essence from the CBA, I would not disturb the award.




                                       DAN PELLEGRINI, President Judge




                                      DRP - 8
