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BLOOMSBURG UNIVERSITY PENNSYLVANIA STATE SYSTEM HIGHER EDUCATION v. ASSOCIATION PENNSYLVANIA STATE COLLEGE AND UNIVERSITY FACULTIES (01/27/89)

decided: January 27, 1989.

BLOOMSBURG UNIVERSITY OF PENNSYLVANIA OF THE STATE SYSTEM OF HIGHER EDUCATION, PETITIONER
v.
ASSOCIATION OF PENNSYLVANIA STATE COLLEGE AND UNIVERSITY FACULTIES, RESPONDENT



Appeal from the Order of the American Arbitration Association in the case of In The Matter of Arbitration: State System of Higher Education of the Commonwealth of Pennsylvania (Bloomsburg University) and Association of Pennsylvania State College and University Faculties, AAA Case No. 14 390 2336 87 Q, Grievance No. 87-004 BL.

COUNSEL

Robert A. Mulle, University Legal Counsel, for petitioner.

James L. Cowden, Strokoff & Cowden, P.C., for respondent.

Judges Craig, Barry and Smith, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 123 Pa. Commw. Page 193]

Bloomsburg University of the Pennsylvania State System of Higher Education (SSHE) appeals an award issued by Arbitrator Ira Jaffe ordering the reinstatement of Dr. Robert Obutelewicz to probationary status at the university and granting him the right to reapply for tenure. We affirm.

The university hired Dr. Obutelewicz as an assistant professor of economics in 1982. In December of 1986, Dr. Obutelewicz submitted a request for tenure as permitted by the collective bargaining agreement (contract) between the SSHE and the Association of Pennsylvania State College and University Faculties (APSCUF). The contract creates a tenure-granting procedure, following a five-year probationary period, in which an application is reviewed by a faculty member's department tenure committee, department chairperson and the university tenure committee. Based on their respective recommendations, the president makes the final decision.

In Dr. Obutelewicz's case, the department committee and chair recommended tenure, but the university committee did not. President Harry Ausprich then denied the request for tenure.

[ 123 Pa. Commw. Page 194]

Article XV, section E.3., Tenure, of the agreement permits a faculty member to grieve the denial of tenure when the president denies tenure following a positive recommendation from at least two of the three reviewers. On the basis of that provision, Dr. Obutelewicz filed a grievance on September 28, 1987, alleging that the university violated Article XII, Performance Review and Page 194} Evaluation of the Faculty, of the agreement when President Ausprich denied the application for tenure. After proceeding through the grievance steps outlined in Article V, Grievance Procedure and Arbitration, APSCUF requested that the matter be arbitrated.

Arbitrator Jaffe found that the university violated the agreement by failing to consider all of the relevant evidence submitted. The award did not grant Dr. Obutelewicz tenure, but instead remanded the matter to the university for reprocessing a new tenure-request application to be filed no later than December 31, 1988. The award also reinstated Dr. Obutelewicz to fifth-year probationary status in the interim, thus returning him to "a position which approximates the status quo as best as practicable in this case," according to the arbitrator.

The SSHE now appeals, claiming that the award has created "an open-ended review period" resulting from the second tenure review that would occur approximately one-and-one-half years beyond the end of the prescribed five-year probationary period provided for in the agreement. The SSHE contends (1) that the arbitrator exceeded his authority in creating a sixth year of probation in violation of the terms and conditions of the agreement, and (2) that the arbitrator erred in considering evidence of Dr. Obutelewicz's performance which occurred before and after the five-year evaluation period.

This court's scope of review of an arbitrator's award is limited to a determination of whether the award "draws its essence from the collective bargaining agreement." Teamsters Local Union No. 77 v. Pennsylvania Turnpike Commission, 17 Pa. Commonwealth Ct. 238, 242, 331 A.2d 588, 589-90 (1975) (quoting United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, ...


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