University given 90 days to accept ruling or take case to court

The faculty union won its third arbitration case against the university and is preparing for the university to make its next move: either to accept the ruling or to take it to court.

In the most recent case, the American Association of University Professors filed a grievance against the university because of what it called inconsistencies between the policies incorporated into the contract negotiated with the union and “guidelines” issued by the associate provost for faculty affairs.

The guidelines, updated every year, are supposed to be a clearer interpretation of the policies, AAUP grievance chair Deb Smith said. The guidelines are issued without consultation with the union, Faculty Senate or other faculty group, Smith said, and always appeared to be consistent with the contract. But in this case, Smith said, the union decided they were not.

This case involved Mahmoud Najafi, an associate professor of mathematics at the Ashtabula campus, who lost an appeal for promotion to full professor.

Najafi, who was up for promotion from associate to full professor, received positive recommendations from his campus, Kent campus departments and the College of Arts and Science. But Shirley Barton, former executive dean for regional campuses – the next step of the process – gave a negative recommendation to Provost Robert Frank.

If faculty members are given a negative recommendation going into the provost, they have the right to appeal to the university-wide promotion advisory board, which the provost will consult with to make his recommendation, according to the collective bargaining agreement.

In this case, Gayle Ormiston, then-assistant provost for faculty affairs, told Najafi he should appeal directly with the provost. This is not a step in the promotion appeals process, Smith said.

Smith said the union questioned this misstep, and Ormiston said the university-wide promotion advisory board was only for Kent campus faculty, according to the guidelines.

“This was a case where the university sort of announced that they were not going to follow the procedure before the appeal even happened,” Smith said.

The guidelines state in the case of a negative recommendation, the faculty member can “appeal the recommendation by notifying the (associate provost for faculty affairs and curriculum).”

The policy incorporated into the contract states “the provost shall convene the university-wide promotion advisory board,” and that at each level when there is an appropriate advisory body, faculty members should present their case to the body, which will then advise the academic administrator at that level.

Najafi filed a grievance because he wasn’t able to appeal to the university-wide promotion advisory board.

“We did not file this grievance because the faculty member’s appeal was unsuccessful,” Smith said. “We filed this grievance because the university refused to follow the appropriate contractual procedure.”

Violations of the policy occurring at lower levels, such as a department chair, would be less difficult to fight because there’s a higher authority to talk to. But when there’s a violation at the provost level, disagreements have to go to an arbitrator, Smith said.

“The vast majority of our grievances recently have involved decisions made at the provost level,” she said. “So it’s not surprising that the provost level doesn’t then reverse its decisions when you file a formal grievance.”

During the arbitration case, the university argued the policy and the guidelines were consistent and also that there was a past practice, which would overrule the contract. A past practice is when the university and AAUP are in agreement with a practice that is not what the contract says.

“That’s the practice the university has followed for more than 20 years,” Associate Provost Sue Averill said.

But the arbitrator, Hyman Cohen, rejected the university’s arguments.

In the arbitration award Cohen said, “The terms of Sections H. H.1. are clear and unambiguous, and on the facts of this case cannot be overturned by the university’s claim of past practice.”

The university has not acted on this ruling but has 90 days to “vacate,” which means to take the case to court.

“The university is exploring its legal options at this point,” Averill said.

The university already is vacating two other arbitration cases. In the first case, the university denied two faculty members tenure without, the union argued, giving compelling evidence for the decision. The second case involved the university’s hiring professors with automatic tenure who didn’t have the right qualifications, the union said.

Smith is waiting to see what happens with this most recent case.

“I think we’re just going to have to wait and see whether they move to vacate,” she said. “And if they do, we’re going to have to respond.”

Contact faculty affairs reporter Jamie Shearer at [email protected].