May 2002 aaUPBEAT
What You Should Know About the Grievance Procedure
The grievance procedure is one of the most important tools at the AAUP's disposal for protecting faculty rights. All the major areas of concern for University of Delaware faculty - i.e., merit pay, workload questions, tenure decisions and promotion decisions - are areas in which grievances can be filed if there is evidence that the Administration has violated the collective bargaining agreement and/or any policies adumbrated in it. The grievance procedure's power rests on a simple principle: that Administration decisions regarding faculty members must be based on a verifiable and impartial method of evaluation, not on whim or any other kind of arbitrary feeling or desire to penalize.
The AAUP's development over the years of an effective grievance procedure is an accomplishment that benefits all faculty, not only AAUP members. Just as all faculty members, whether or not they belong to the AAUP, receive salary increases and benefits packages negotiated by the union at contract time, so all faculty members are entitled to use the AAUP-developed grievance mechanism.
We on the Executive Council believe that this fact - i.e., that the AAUP protects all University of Delaware faculty, regardless of an individual's relationship to the AAUP - is a strong reason for those UD faculty who are not AAUP members to join the chapter. That non-members receive the advantages of being served by the union without paying their fair share does not change the reality that non-membership ultimately hurts all UD faculty, including non-members, economically. This is because of one of the basic principles of organizing: a larger membership translates into greater negotiating power, and greater negotiating power translates into better salary and benefits gains as well as into better overall protection with regard to all important aspects of faculty work, including problems related to many emergent higher education issues like distance learning, pressures to increase workloads, and intellectual property rights in a high tech age. If you want a forum for addressing such matters and actually impacting on how UD defines its educational mission, join the AAUP. By increasing the AAUP's numbers, joining the union strengthens the union's ability to provide the economic services and academic protections all faculty members want.
With regard to non-job-related matters, remember that the AAUP provides members with one half-hour free consultation per academic year with a lawyer whom we have retained for this purpose.
The remainder of this newsletter will deal with the grievance procedure.
A Few Basic Facts about the Grievance Procedure
Faculty members who believe there has been a potential violation of the Collective Bargaining Agreement and related University policies or violation of her/his academic freedom should contact the AAUP Contract Maintenance Officer for advice as to the merit, or lack thereof, of the alleged violation. If, after receiving the advice, the faculty member wishes to file the grievance, he or she should contact the Chair of the AAUP Grievance Committee who is responsible for processing grievances. The AAUP Contract Maintenance Officer represents faculty in matters dealing with sexual harassment.
A formal grievance procedure is initiated after informal discussions regarding a potential grievance have been completed, background information has been gathered, and a determination has been made that the complaint satisfies the grievance requirements. If the procedure is initiated against a Department Chair, it can include up to four steps. At each of these four stages, the grievant and his/her grievance officer attempt to negotiate a resolution with the appropriate party; if a resolution is not reached at a particular step, they proceed to the next step, until the final step, which is binding arbitration. If a grievance reaches the binding arbitration step, both parties are mandated by the collective bargaining agreement to abide by the arbitrator's judgment. The four possible steps, in ascending order, are:
Grievances are initiated at whatever level the grievable offense occurred (i.e., the Department Chair level, the Dean's level, etc.).
At a grievance's informal stage, the grievant may request complete confidentiality. Such a request, however, may curtail the AAUP's capacity to gather the information necessary for arguing the grievant's case as forcefully as possible.
Once a grievance is formally filed, complete confidentiality is no longer possible, although every effort is made to restrict discussion of the grievance to only those directly involved in the matter - for instance, a Department Chair or Dean. We are usually successful in restricting discussion of a grievance in this way.
After a grievance has been resolved, the AAUP reserves the right to publish pertinent information about the grievance without revealing the identity of the grievant. We do this for the same reason that law associations publish analyses of important legal decisions: in order to familiarize those whom we represent with issues of importance to them. We believe that keeping faculty members informed about grievance-related matters is a key aspect of the Executive Council's responsibility to uphold the contract and serve the faculty.
Issues That Can Be Grieved
Our Collective Bargaining Agreement states that any violation of the contract is a grievable offense.
The contract's exact language (Article 8.1 on Page 6 of the agreement) in this regard is as follows:
"A grievance is defined as a dispute or difference concerning the interpretation, application, or claimed violation of any provision of this Agreement. In addition, if an administrative action is taken which is not in accordance with the procedure required by the policies specified in Article XVII, Section 17.1, such alleged procedural error shall be grievable."
Sometimes grievable contract violations are resolved by following the grievance procedure through to the end. Other times the mere possibility that the AAUP will file a grievance results in a resolution of the problem.
To further clarify the above contract language, here are a few brief examples of grievable issues:
Example #1: Workload. All departments have workload guidelines. Making individual course assignments or other assignments that deviate from these guidelines is grievable. Aside from one's teaching load, any question of how much service a faculty member is expected to perform is also governed by workload agreements; if a faculty member is required to perform service hours in excess of what has been agreed upon, that is a grievable offense.
In the recent past the AAUP has resolved several issues dealing with inappropriate assignment of workload credit for teaching. In one instance, a faculty member was incorrectly assigned a 60% workload (instead of 100%) for teaching12-credit contact hours per week per semester. In another instance, 9 credit contact hours per week per semester was assigned a 40% credit for teaching instead of 75%. In a third instance, 6 credit contact hours per week per semester was assigned 40% credit for teaching instead of 50%.
These instances, once resolved, led (a) to a more detailed spelling-out in the Collective Bargaining Agreement of the relationship between teaching and workload credits and (b) to the requirement that all academic units must review, revise as appropriate and re-submit their workload policies for approval.
Example #2: Tenure Decisions & Promotion Decisions. Administration decisions in these areas cannot be arbitrary. Our Collective Bargaining Agreement mandates in Article 11.5 that such decisions be made in accordance with procedures spelled out in the Faculty Handbook. Any deviation from these procedures is grievable.
In this context, in the recent past we resolved two promotion denials that violated the procedures mentioned above. Those procedures state, "In the distribution of merit pay and in the promotion and tenure process and in the peer review process, the weights assigned to teaching, research and service must be directly related to the workload developed with the faculty member for the period of review."
Example #3: Merit Raises. Merit raises are based on a "score" that is derived from tabulating the numerical evaluations that a Department Chair gives an individual in each of these areas: service, teaching, research. An individual's numerical evaluations - and therefore her/his "score" - must be based on a clear and logical pattern of evaluation, not on arbitrary feelings or unverifiable judgments. If a merit assessment is challenged and the Department Chair cannot establish that her/his assessment adhered to the contractually stipulated method of making such evaluations, this is a grievable situation.
The AAUP has resolved disputes in which merit pay allocations were not based upon workload criteria as stipulated in the Collective Bargaining Agreement. In these instances, the department's merit pay metric was weighted in favor of research in such a way that it penalized those faculty whose workloads were weighted more to teaching than to research.
Example #4: Random. The AAUP has participated in the resolution of student-raised inappropriate behavior charges against faculty. We also participated in the resolution of a student complaint against a faculty member regarding a grade. The charge against the faculty member was found to be invalid based upon established university policy involving grade disputes.
Please remember that in any situation where a faculty member is at all uncertain about whether to file a grievance, the faculty member should contact the Contract Maintenance Officer immediately for advice
Grievances & Academic Freedom
As higher education faculty across the country know, one of the main issues around which grievances can be filed is the issue of academic freedom. The landmark "1940 Statement of Principles on Academic Freedom and Tenure," which can be found in the 1995 edition of AAUP Policy Documents and Reports, spelled out in no uncertain terms the centrality of free thought and expression to the academic life. "Freedom in research is fundamental to the advancement of truth," the document pronounced. It also stated, "Academic freedom in its teaching aspect is fundamental for the protection of the rights of the teacher in teaching and of the student to freedom in learning."
In essence, academic freedom means faculty members must be allowed to pursue their scholarship and research even if such scholarship and research (a) challenge accepted views and beliefs, (b) advocate changes in, or the abolition of, public institutions, (c) negatively critique the educational policies of the school at which the critic works, or (d) question dominant business practices. Additionally, academic freedom means individual faculty members must defend the right of other faculty members, particularly those with whom we disagree, to present their views without administrative interference.
As John Li, Chair of the Department of Sociology at the University of Illinois at Urbana-Champaign, has said, protecting such rights is frequently more complicated than we think. Why? "It is the universal predicament of scholars," Li says, "to solicit patronage of the powerful and the wealthy while pursuing intellectual independence from them." Given this reality, the power of others - e.g., government, business, influential agencies - can be used to direct public opinion against university-generated ideas, practices and research that those institutions consider anathema to their own interests.
So, vigilance is required.
Although academic freedom is central to higher education's mission, such freedom does not bestow upon the individual faculty member the right to behave in the classroom in any way he or she pleases. As stated in the "1940 Statement of Principles," academic freedom "carries with it duties correlative with rights." Such duties touch upon a variety of areas, including faculty members' obligation to (a) treat students with respect and (b) heed faculty committee decisions regarding the appropriate subject matter for multi-section courses or the level at which those courses should be taught.
The above guidelines concerning the nature of academic freedom are not absolute. There are gray areas regarding what is and what is not legitimately protected by faculty academic freedom rights. However, one thing is clear regarding the concept of academic freedom as it exists today in our society: there is a general, albeit somewhat fragile, citizen consensus that it is in the country's overall interests to promote a higher education system that is open to new ideas and which therefore does not silence those (i.e. faculty) who are charged with pursuing those ideas. On the other hand, as articles in newspapers and academic journals have shown over recent years, citizens also are concerned that higher education faculty should perform their teaching and research duties in a way that shows a respect for students and also an awareness of taxpayers' concerns.
Clearly in this context - i.e., a context that includes both public support for academic freedom and a concern with how that freedom is used - it is important for faculty members to be aware of these attitudes and not to dismiss their significance. This is a necessary first step in forging a stronger relationship with the communities we are mandated to serve.
The AAUP is absolutely committed to the principle of academic freedom in higher education. In order for colleges and universities to thrive and perform their educational duties, faculty must be guaranteed the right to present unpopular analyses without fear of dismissal or arbitrary sanctions. Education is not just a matter of accepting and rehashing what has been accepted as true in the past; it is also a matter of seeking out new truths and more effective ways of organizing information. Such a process inevitably leads to occasional controversy concerning how to view the world. The principle of academic freedom is what protects faculty members from dismissal or harassment for formulating ideas that question existing ideas or systems of thought.
As in other contractual areas, including sexual harassment, any faculty member who believes his/her academic freedom has been violated should contact the Contract Maintenance Officer for advice.
The grievance procedure exists for the sole purpose of protecting you against arbitrary administrative decisions that could jeopardize your right to fair treatment by the University.
The AAUP is proud that over the years it has successfully spurred the evolution of an effective grievance mechanism. The very existence of this mechanism often results in the settlement of disputes before it is necessary to take formal action, since the threat of a grievance is sometimes sufficient to make the Administration rethink arbitrary decisions that they might otherwise feel more confident in enacting.
Our Contract Maintenance Officer is Leon Campbell (phone: 831-6767; e-mail: firstname.lastname@example.org). Contact him if you have a question about any contract-related matter you consider grievable.