On June 28th, we posted to this blog about the resolution passed by the Board of Trustees at their June 27th meeting in response to the failed ratification vote regarding the revised Senate bylaws. That resolution charged President Keen with designing a system of shared governance that would:
- satisfy Middles States,
- comport with New York State education law, and
- not violate Section 20 of our collective bargaining agreement.
The Board’s resolution, as we explained in that previous post, is highly problematic for at least two reasons. First, we do not accept the unilateral authority over the Senate that the Board arrogated to itself in passing the resolution in the first place. Second, and this point follows from the first, we do not accept the de facto authority of any system of shared governance unilaterally designed and imposed on us as a result of that resolution. We also told you in that earlier post that we have decided to take the administration to binding arbitration in order to resolve these differences.
In his email dated August 3rd, President Keen also talked about the binding arbitration, but he mentioned as well another legal option we could have chosen, an Article 78 proceeding, which refers to a section of New York State civil law that enables challenges to administrative authority. Why we chose binding arbitration over an Article 78 is something President Keen elected not to address at all; nor did he offer any specific details about the arbitration itself. We are writing now to offer you our perspective on the choice we made and to give you an update on where things stand regarding the Senate bylaws.
To start, we want you to understand that all our decisions concerning this matter have been informed by two principles:
- That the NCCFT Executive Committee has an obligation to deliver a contract for ratification in as timely a manner as possible;
- That we have a concurrent obligation to play an active and constructive role in resolving the situation with Middle States.
As you know, we entered formal contract negotiations with the administration in early May. When the ratification vote failed on May 11th, those negotiations stalled. Concerned that the failed vote would cause us problems with Middle States—because it meant that we had not resolved what Middle States understands to be a conflict between our current Senate bylaws and Section 20 of our contract—the administration and Board of Trustees set negotiations aside and focused exclusively on responding to the failed ratification vote. The response they chose, however, enshrined in their June 27th resolution, only compounded our negotiations impasse, since there was no way we could proceed in good conscience without first challenging both the Board’s claim of authority over the Senate and the authority President Keen would be claiming if he unilaterally imposed a new governance structure.
There were three options available to us to bring that challenge:
- An Article 78 proceeding
- A PERB charge
- Binding arbitration
After consulting with NYSUT’s legal team, we decided against the first two options. Each one can take as long as 18 months and sometimes even longer to resolve, and we were concerned that entering into a prolonged legal process might signal to Middle States that we’d actually taken a few steps backwards in dealing with what they, in their initial report, had characterized as the toxic atmosphere on campus. In line with this concern, we also had to consider the possibility that a PERB or Article 78 decision in the Board’s favor would do more to increase than resolve the tensions that have gathered around this issue and that came very publicly to a head in the Senate towards the end of last semester.
We also had to consider the possibility that even a decision in our favor could end up having problematic consequences. We know this might seem counterintuitive, but consider what would happen if President Keen were to choose unilaterally to impose a system of governance significantly different from the one we now have. As per the Board’s resolution, that system of governance would have to be in place by September 1st—meaning that, by the time a PERB or Article 78 decision was handed down, this new system of governance would likely have been in effect for a year or more. A decision in our favor would then require us to dismantle President Keen’s system and reestablish our own, a confusing and chaotic process, to say the least, that might very well have landed us in precisely the position we are now: with a set of Academic Senate bylaws that Middle States believes is in conflict with our contract and that puts us out of compliance with Middle States Standards 4 and 5. We might have won in court, in other words, but in terms of actually dealing with Middle States, we would have been marking time.
In light of the prominent place that Standards 4 and 5 hold in how the Board and administration understand our Middle States probationary status, as well as the likelihood that Middle States understands it in the same way, NYSUT advised us, and we agreed, that it would be prudent to avoid the above possibility entirely. So, we settled on binding arbitration as the most expeditious and efficient way both to resolve our differences with the administration and meet the obligations to you, the people we represent, that we listed above. We are aware that binding arbitration is not without risk. The arbitrator’s decision is final and precludes our pursuing any other legal options. If the decision does not go our way, we will need to accept the Board’s and the President’s authority in these matters. Nonetheless, we believe that arbitration has advantages that make this a risk worth taking:
- First—unlike at a PERB or Article 78 hearing, where a judge would be randomly assigned to our case—we, together with the administration, get to choose the arbitrator. This does not, of course, guarantee either side a favorable outcome, but it does mean we know a good deal about the person who will be deciding our case. Not only will this help us in figuring out how to shape our argument; it also reduces the likelihood that we will be blindsided by the conscious or unconscious biases of a judge we know nothing about.
- Second, the scope of an arbitration can be very precisely limited. Indeed, the administration has agreed that we are seeking to resolve a specific issue that does not apply to either our entire contract or any section within it.
- Third, arbitration can be completed within a far more reasonable time frame than either a PERB or Article 78 case, something which—in light of the September report we need to submit to Middles States, and the Middle States visit that is coming in October—serves both our needs and the administration’s.
The Memorandum of Agreement (MOA) we have signed with the administration submits to the arbitrator the following two assertions:
- That, in passing its resolution, the Board acted in an “arbitrary, capricious and/or unreasonable” manner;
- That those same adjectives should be attached to, and should therefore render invalid, any governance structure President Keen might try to impose unilaterally and without our active participation as a result of that resolution.
The MOA stipulates that the arbitrator’s decision must satisfy Middle States, comport with New York State Education Law, and that it cannot in any way violate our collective bargaining agreement. As well, the arbitrator must deliver his decision by September 1st. This deadline addresses two interrelated issues. First, it means that we will have a functioning system of governance when the semester starts, which is especially important since three officers of the Academic Senate Executive Committee still need to be elected; and, second, it means that when the Middle States team visits in early October, they will see concrete evidence of that system’s functioning, which we and the administration believe they will consider real progress towards Middle States compliance.
Before the arbitrator can make his determination, however, President Keen must deliver the system of governance the Board charged him with producing. We could not have known he was going to do this when we entered into the arbitration MOA, but President Keen decided to fulfill the Board’s charge by working once more with the Governance Review Task Force (GRTF), which we, along with the rest of the elected faculty leadership, were again invited to sit on. Our differences with the Board and the upcoming arbitration notwithstanding, we agreed to be part of the GRTF to gain as clear an understanding as possible of the changes in the Senate bylaws that President Keen is proposing. The GRTF met throughout the summer and completed its work last week. Our discussions were honest and collegial, even when we most strongly disagreed. Those differences are substantial, and will be decided by the arbitrator, but we believe nonetheless that everyone who sat at that table had the best interests of the college and our students at heart. We also believe that what he have learned through this participation will help us present our case to the arbitrator more effectively than if we had not participated at all.
The revised bylaws themselves are in draft form and must be considered a draft until the arbitrator renders his decision. Therefore, we will not discuss anything specific about that document. We can tell you, however, that our decision to enter into arbitration and to participate on the GRTF enabled us to move forward in our contract negotiations with the administration. We will update you about that in the near future.
We recognize that you may have questions about what we’ve told you in this post. We will not discuss in public forums like this one, however, or the college email system, situations that are fluid in nature—such as the one in which we now find ourselves—and that can be, however inadvertently, derailed or undermined by external-to-the-process conversations which simply cannot take that fluidity into account. Therefore, please direct any questions you have to the NCCFT Office. One of us will get back to you and answer your questions to the best of his or her ability. (Once the semester starts, you can also contact your department representative.) We are fully committed to our role as your elected union officers, and we want to be as responsive to your questions as possible. To put it simply, we want to hear from you. More than that, we look forward to doing so.