In re Murray

In re Murray  (95-296); 166 Vt. 198; 689 A.2d 463

[Filed 17-Jan-1997]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 95-296


Grievance of David Murray and                     Supreme Court
Vermont State Colleges Faculty
Federation                                        On Appeal from
                                                  Labor Relations Board

                                                  June Term, 1996

Louis A. Toepfer, Acting Chair

       John L. Pacht and Robert W. Katims of Hoff, Curtis, Pacht, Cassidy &
  Frame, P.C., Burlington, for appellants

       Nicholas DiGiovanni, Jr., of Morgan, Brown & Joy, Boston,
  Massachusetts, and Paul K. Sutherland of Sutherland & Collins, Inc.,
  Burlington, for appellee


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



       GIBSON, J.   David Murray (grievant) and the Vermont State Colleges
  Faculty Federation appeal from a decision of the Vermont Labor Relations
  Board denying reappointment of grievant to a third year of service at
  Castleton State College.  The Vermont State Colleges (VSC) cross-appeal
  from the Board's decision that the College violated the collective
  bargaining agreement between the Federation and VSC by removing grievant's
  position from the faculty bargaining unit and making it an administrative
  position.  We affirm.

       The College hired grievant in the Fall of 1992 as an assistant
  professor and as director of student teaching.  Grievant's job as director
  of student teaching included matching a student's practice-teaching
  placement preference with available placement sites, developing additional
  sites, reviewing each student's record to determine qualification for
  teaching licensure in Vermont, and making appropriate recommendations
  regarding individual students.  A recurring issue within the
  student-teaching program was the amount of guidance grievant was supposed
  to offer other faculty members directly supervising student teachers
  working in their placement sites.

 

       Academic Dean Joseph Mark appointed grievant to a second year in 1993,
  after receiving a favorable report from the College's Retention, Promotion
  and Tenure (RPT) Committee, but Mark noted in his recommendation that he
  was "seriously concerned" about the College's relationship with cooperating
  schools and that it was important for the director of student teaching to
  offer guidance to college faculty and cooperating teachers whose job it was
  to supervise student teachers.  Grievant responded to Mark's comments in a
  memorandum asking for clarification of his responsibilities with respect to
  other College faculty and cooperating teachers, suggesting that the amount
  of guidance needed was minimal and that all he could offer was "collegial
  support," since the College faculty supervisors "are my peers."

       During the Fall of 1993, the College's Education Department chair and
  associate chair wrote letters supporting promotion of grievant to associate
  professor, and the RPT Committee recommended his appointment for a third
  year.  In January 1994, the Education Department presented to Mark, who was
  then Castleton's interim president, a self-study based on a wide survey of
  persons concerned with the program that criticized the student teaching
  program for "lack of supervision of student teachers."  Grievant responded
  with a memorandum stating that "the real focus should be on faculty
  assuming their responsibilities for the supervision of student teachers in
  their charge and making the appropriate site visits, since this is where
  the real problems lie."

       On February 1, 1994, Associate Dean Joan Mulligan recommended that
  grievant be reappointed, but expressed reservations.  Grievant sent Mark a
  lengthy rebuttal to Mulligan's letter, stating that her "comments are
  totally inaccurate and, in fact, reflect a great deal of ignorance on her
  part in regards [sic] to the role of the Director."

       The Board found that interim President Mark "gradually came to believe
  that the best solution for the Castleton Student Teaching program would be
  the creation of an administration position outside the faculty bargaining
  unit."  The rationale for this change was better supervision of Education
  Department faculty than a fellow faculty member could provide, which was in
  accordance with grievant's comments about the difficulty of his supervising
  fellow faculty

 

  members.  Mark met with senior members of the Education Department to
  discuss whether these changes should be made, expressing concern that the
  College's ability to place students was being negatively affected and
  improvement was needed.  Mark did not discuss these proposals with
  grievant.

       On March 1, 1994 Mark notified grievant that he would not be
  reappointed to a third year, but stated no reasons.  The Federation filed a
  grievance, alleging, in essence, that the College had failed to follow
  Article 21(J)(2) and (4) of the Agreement, which state:

     2. The President shall decide whether or not a faculty
     member shall be reappointed to a second, third, or fourth year of
     service according to the provisions of Article 20 and this Article.
     In making this decision, the President shall consider only the
     performance of the faculty member and the faculty staffing needs
     at the College.

     *       *       *

     4. A decision of the President not to reappoint a faculty
     member to a second, third, or fourth year of service shall not be
     subject to the grievance and arbitration provisions of this
     Agreement unless the faculty member or the Federation claims the
     decision violates Article 7 (Academic Freedom), Article 8 (Anti-
     Discrimination), or the procedure for reappointment set forth in
     this Agreement.

  The Federation maintained that in considering nonreappointment of a faculty
  member, Article 21(J)(2) mandated consideration of grievant's performance
  and that omission of such consideration was a violation of the Agreement. 
  In a second appeal, the Federation also asked that Dean Mulligan's letter
  be deleted from grievant's file.   In a third appeal, the Federation argued
  that the unilateral decision by the College to convert grievant's position
  from a faculty to an administrative position violated the
  faculty-governance provisions of the contract.

       The Board denied the reinstatement grievance, first defining the scope
  of "procedure of appointment":

     [T]his claim of the Federation reads too much into the meaning of
     "procedure of appointment," which we conclude is limited to
     ensuring that there is adherence to the mechanics of the
     reappointment procedure such as entering materials in the faculty
     member's personnel file, meeting deadlines for evaluations,
     recommendations, and decisions; and meeting notice requirements.

 

  The Board found that Mark did not base his decision on grievant's
  performance, but instead decided "as a matter of addressing the staffing
  needs of the College that the duties of Director of Student Teaching should
  not be handled by a faculty member."

       The Board also found that Mark's decision not to reappoint grievant
  was not based on Mulligan's recommendation, but it did order the Mulligan
  letter stricken from grievant's employment file.  It also granted the
  Federation's grievance with respect to creation of the administrative
  position, ordering that the VSC provide the faculty assembly at the College
  with the opportunity to consider the proposed removal from the bargaining
  unit of duties that were previously performed by a faculty member.  The
  appeals of grievant, the Federation, and VSC followed.

                                I.

       In reviewing the Board's conclusion, this Court may "`only ask whether
  the findings of fact taken as a whole justify the Board's ultimate
  conclusion.'"  Vermont State Colleges Faculty Fed'n v. Vermont State
  Colleges, 152 Vt. 343, 348, 566 A.2d 955, 958 (1989) (quoting In Re Liquor
  Control Dep't Non-supervisory Employees, 135 Vt. 623, 625, 383 A.2d 612,
  613 (1978)).  If there is factual support for the Board's conclusion, we
  will leave it undisturbed.

       Grievant argues first that the Board erred in ruling that interim
  College President Mark did not violate the Agreement in denying his
  reappointment, specifically that the Board erred in failing to allow a
  limited substantive review of grievant's performance as well as the faculty
  staffing needs at the college.  Grievant argues that in precluding
  substantive review of the process under Article 21(J)(2), the Board
  effectively rendered that provision meaningless.

       Traditional principles of contract law govern the construction of
  collective bargaining agreements.  See, e.g., In re Muzzy, 141 Vt. 463,
  474-76, 449 A.2d 970, 975-76 (1982); Hackel v. Vermont State Colleges, 140
  Vt. 446, 452, 438 A.2d 1119, 1122 (1981).  In this matter, grievant fails
  to read subsections (2) and (4) of Article 21(J) as consistent and
  harmonious parts of the same whole.  See In re VSEA, 139 Vt. 63, 65, 421 A.2d 1311, 1312 (1980).  Agreements, like statutes, can benefit from
  provisions that are directory, not mandatory.

 

  See In re Mullestein, 148 Vt. 170, 174, 531 A.2d 890, 892 (1987) (sixty-day
  statutory time period construed as directory, not mandatory).  The
  Agreement is rendered neither ambiguous nor inconsistent by setting forth
  guidelines for reappointment of faculty members in general, while
  prescribing that the grievance and arbitration procedures with respect to
  the guidelines should apply only to faculty members serving more than four
  years.

       In contrast to the limited review of retention decisions with respect
  to the first four years of employment, Article 21(K)(4) does require that
  the College state reasons for nonreappointment thereafter:

     4. Should the President decide not to reappoint a faculty
     member to fifth and sixth years of service, the written notification
     of non-reappointment . . . shall contain reasons for the non-
     reappointment.

  Employees seeking a fifth year of service can grieve nonrenewal on grounds
  that the nonrenewal decision was "unreasonable or arbitrary or based on
  erroneous reasons or material."  Article 21(K)(5).  Including the
  requirement of reasons in Article 21(K)(4) underscores the absence of that
  requirement in Article 21(J)(4).

       These distinctions would make no sense if any faculty member, once
  employed, could grieve any nonrenewal decision.  As we stated in Swett v.
  Vermont State Colleges, 141 Vt. 275, 277, 448 A.2d 150, 151 (1982), where
  the issue was nonreappointment to a second year of teaching and where we
  held with respect to similar terms in a predecessor agreement:

     Under the plain language of the agreement the presumption of
     renewal for faculty with less than three years is terminated upon
     proper written notification and nothing more.  As long as notice is
     properly given the college has total discretion in such renewal
     decisions.  To hold otherwise is to ignore the distinction made
     in the contract.

     *       *       *

     Grievant further argues that the college violated article
     XXII of the collective bargaining agreement and its own rules by
     failing to accord teaching effectiveness any appreciable weight in
     its decision. We disagree. While the rules state that teaching is the
     most important activity in the evaluation process, article XXII
     requires only that teacher evaluations be used to "aid" in the
     reappointment decision. It does not require that the decision be
    
 

     based in whole or in part on the evaluations.

       Grievant argues that as a result of our decision in Swett, the
  reappointment article of the agreement was substantially changed.  The
  version of the agreement in effect at the time of the Swett decision
  contained a reappointment clause stating that "[i]n all cases of
  non-reappointment written notice of reasons shall be given after the third
  full year of service."  Id.  Grievant does not explain how Article 21(J)(2)
  and (4) are inconsistent with the earlier text.  If at all different,
  Article 21(J)(4) plainly rules out a grievance of a decision not to
  reappoint a faculty member to a second, third, or fourth year of service.

       In sum, the Board's instruction is consistent with the Agreement as a
  whole, which reflects limited grievance rights for faculty in the first
  four years of employment and more expansive rights thereafter.  Again, this
  reading does not render Article 21(J)(2) meaningless. It can serve a
  positive purpose in reminding the president of his or her guiding standards
  in considering faculty serving less than four years -- even if the decision
  itself may not be substantively reviewed.

                                II.

       VSC cross-appeals the Board's ruling that it violated Article 19(C)(6)
  by reorganizing the academic student teaching program, thereby changing
  grievant's faculty position to an administrative position, without allowing
  the faculty assembly an opportunity to consider the matter.  Article
  19(C)(6) states in relevant part:

     C. Recognizing the final determining authority of the
     President, matters of academic concern shall be initiated by the
     Faculty Assembly or by the President through the Faculty
     Assembly which shall consider the matter and respond within a
     reasonable time.  Such matters shall include:

     *       *      *

     6. The development, curtailment or reorganization
     of academic programs.

  In concluding that the College had violated Article 19(C)(6), the Board
  stressed that it had shifted responsibilities long held by an Education
  Department faculty member to an

 

  administrator reporting directly to the academic dean, thereby removing
  these responsibilities from the faculty bargaining unit.  The Board noted
  that while the administrator would have some new duties, the bulk of the
  duties remained the same.

       VSC argues that "reorganization" implies a more substantial kind of
  change -- a focus on the "substantive aspects of the academic program from
  an educational perspective rather than administrative structure," giving as
  examples of reorganization the development of a new educational program,
  cutting back on or eliminating an existing major, and naming given courses
  as program prerequisites.

       The Board's findings and conclusions on this question were well within
  its discretion. Article 19(C)(6) recites a touchstone principle in the
  phrase "matters of academic concern," and the removal of a faculty member
  from the stewardship of a major college program fits well within that
  description.  Moreover, VSC has not demonstrated that the distinction is
  meaningful in the present context.  It implies that grievant dealt
  principally with administrative concerns, but, as the Federation points
  out, before the change, he dealt with the program as a faculty person with
  academic as well as administrative concerns.  It is not difficult to
  understand that amending the job description of the head of a program can
  alter the tenor of the program itself. In sum, VSC's distinction focuses
  too much on the perceived degree of reorganization and looks too little at
  the functional result of making changes in leadership and direction at the
  top.

       Finally, VSC appeals the Board's grant of the Federation's unit
  clarification petition. The Board did not declare whether the bargaining
  unit included any particular position, but rather, directed that VSC
  provide the faculty assembly "the opportunity to consider the Colleges'
  proposed removal from the faculty bargaining unit of duties performed by
  the faculty member serving as Director of Student Teaching" -- essentially
  the same relief granted in the appeal under Article 19(C)(6).  There was no
  error in this narrow direction to the College.

 


       Affirmed.


                              FOR THE COURT:



                              _______________________________________
                              Associate Justice