Hearing
held on February 16, 2009 in Harrisburg, Pennsylvania
Before:
Stephen
E. Alpern, Arbitrator
For
APSCUF
For PASSHE
James L. Cowden,
Esq.
Andrew C. Lehman, Esq.
Statement of the Case
As parties to a collective bargaining agreement, effective
from July 1, 2003 to June 30, 2007 (“the Agreement”), APSCUF and
PASSHE submitted this matter to arbitration.
The dispute involves the entitlement of the Grievant to
reimbursement for college tuition paid for his son at a university
within the PASSHE system. The undersigned was duly appointed by the
American Arbitration Association to decide the matter.
Issue presented
The parties were unable to agree on a
statement of the issue presented to the arbitrator. However, based on
the parties’ submissions and the entire record in this matter, I find
that the issue presented is:
Whether
PASSHE
violated Article 21 of the Agreement by denying the Grievant
reimbursement for his son’s tuition at Kutztown University for the
spring semester 2007 and, if so, what shall the remedy be?
Facts
PASSHE operates the Pennsylvania state higher education
system. There are fourteen universities within the system and APSCUF represents all faculty members
in those universities. The Agreement covers those faculty members.
The Grievant began his employment as a temporary full-time
faculty member in the Computer Sciences Department at West Chester
University in 2000. He was employed for the 2000 and 2001 academic
years, ending in the spring semester 2002. He resumed his employment
as a part-time temporary faculty member during the fall semester 2004
and became full-time in the spring semester 2005. He was again
employed as a full-time temporary faculty member for the 2005-06
academic year. For reasons explained
below, the Grievant was not employed during the 2006 fall semester,
but was subsequently employed for the calendar year 2007. All of the Grievant’s employment was pursuant to
contracts covering each period of his employment. The reason the
Grievant was not employed for the fall semester of the 2006-07
academic year was that PASSHE had a policy, embodied in what was known
as the McGuire memorandum, which precluded temporary faculty members
from being employed for more than two consecutive years without a
break in service of at least one semester. Although the Grievant’s
academic department sought a waiver for the Grievant, it was denied.
During the fall semester of 2006, the Grievant was offered a
contract covering the spring and fall semesters in 2007. Thus this was
a contract for a calendar year as opposed to an academic year. After
this appointment, the Grievant was advised in writing that he was
“eligible to receive benefits through the university.” He was invited
to attend an orientation session to review his benefit options and to
enroll in various benefit programs. The notice did not mention tuition
benefits. At this time both the Grievant and his department chairman
believed that the Grievant would be entitled to tuition benefits. The
Grievant attended an orientation session and for the first time
learned that he might not be eligible for tuition benefits because he
was employed for a calendar year, rather than for an academic year.
Ms. Victoria Giunta, the University’s
benefits manager subsequently confirmed to the Grievant that he would
not receive tuition reimbursement. She based the determination, which
she confirmed with PASSHE’s headquarters, on a 1993 memorandum from
PASSHE’s Vice Chancellor for Employee and Labor Relations. The
memorandum stated that, pursuant to a previously issued arbitration
award, “only faculty members who are
full-time tenured, full-time non-tenured probationary faculty and
full-time temporary faculty who are employed to work a standard
workload for one academic year are eligible for tuition waiver
benefits.”
The 1993 arbitration award by Arbitrator Stanley Schwartz
(“the Schwartz award”) arose out of a grievance over the entitlement
of part-time faculty members to tuition waiver benefits. The Schwartz
award held that part-time faculty members were not entitled to such
benefits. The arbitrator relied on a 1983 letter from PASSHE’s Chief
Negotiator John Raup (“the Raup
letter”) which purported to reflect an understanding between PASSHE
and APSCUF that the then newly-negotiated tuition waiver agreement
would not apply to part-time faculty members. Instead, according to
the Raup letter, the benefits would
“apply only to those FACULTY MEMBERS listed in Section A.1. of Article
XXI – Full-time Tenured Faculty, Full-time non-tenured probationary
Faculty and Full-time temporary Faculty who are employed to work a
standard workload for one academic year but does not include temporary
FACULTY MEMBERS employed to work one academic semester.” The
arbitrator found that the Raup letter
reflected the agreement of the parties and that the agreement was
further reflected by the practice for eight years subsequent to the
letter during which part-time faculty members were not afforded
tuition waiver benefits. Accordingly, the arbitrator held that
part-time faculty members were not entitled to tuition waiver
benefits. The arbitrator did not discuss the issue present in this
case – whether full-time temporary faculty members employed for a full
calendar year (“calendar year faculty members”) are entitled to such
benefits.
Following the denial of the Grievant’s
request for tuition waiver benefits, APSCUF filed a grievance which
the parties were unable to resolve in the various steps of the
grievance procedure. APSCUF thereafter submitted the matter to
arbitration.
Article 21
Fringe
Benefits
A. Health
Benefits
All
temporary full-time FACULTY MEMBERS who are employed to work a
standard workload for one academic year and all regular full-time
FACULTY MEMBERS are eligible for all health benefits provided in this
Section. Whenever a full-time temporary FACULTY MEMBER is employed
during the spring semester with a reasonable expectation of being
re-employed during the fall semester, the FACULTY MEMBER shall be
eligible to receive health benefits during the intervening summer.
***
F.
Tuition Waivers
Effective
with the start of the fall semester of 1999, the STATE SYSTEM
UNIVERSITIES shall modify their tuition waiver policy to provide for
the following:
***
3.
Fifty percent (50%) waiver of University tuition for FACULTY
MEMBER’S children at UNIVERSITIES other than the University where the
FACULTY MEMBER is employed. This waiver of tuition shall be applicable
until the children obtain their first undergraduate degree or until
they reach the age of twenty-five (25), whichever comes first.
1)
APSCUF’s Arguments
APSCUF contends that the plain language of Article 21 of the
Agreement entitles the Grievant to tuition waiver benefits.
There is nothing in the language of Article 21 which limits
eligibility to any particular type of faculty member. APSCUF points
out that the Raup letter stated that the
tuition waiver would not apply to part-time faculty members, but did
apply to full-time temporary faculty members employed for one academic
year (“academic year faculty members”). The Raup
letter also excluded faculty members who were only employed for one
academic semester. This language was intended to grant tuition waiver
benefits to full-time temporary faculty members with the exception of
faculty members employed for only one semester. Because Article 21, on
its face, grants such benefits to all faculty members, the Raup
letter should be construed narrowly to benefit anyone not expressly
excluded from it, and should be read against the interests of its
author. APSCUF asserts that the eligibility language in the Raup
letter was the same language that was used in Section A. 1 of Article
XXI of the 1983 Agreement to determine eligibility for health
benefits. APSCUF points out that the language of that provision has
been changed since 1983 and now provides that full-time faculty
members employed during the spring semester who have a reasonable
expectation for employment in the subsequent fall semester are
entitled to continue their health benefits through the summer and into
the fall semester. If the intent of the Raup
letter was to make those faculty members eligible for health benefits
also eligible for tuition benefits, then the subsequent changes in the
Agreement expanding health benefit eligibility should similarly expand
tuition benefit eligibility. Finally, APSCUF points out that there is
no evidence of past practice supporting PASSHE’s position.
2)
PASSHE’s Arguments
PASSHE urges that, as held in the Schwartz award, the Raup letter sets forth the scope of the
tuition waiver benefits. The letter is unambiguous in providing that
the only temporary employees entitled to tuition benefits are academic
year faculty members. Because the Raup
letter is still binding, APSCUF is attempting to obtain a benefit
through arbitration that it has been unable to obtain through
collective bargaining.
On its face, the Agreement appears to provide for tuition
reimbursement for all faculty members. The Grievant was a faculty
member and his son paid tuition at a university in the state system.
However, the Schwartz award found that the Raup
letter clearly limited the plain language of Article 21. The Schwartz
award recognized the Raup letter as
setting forth the agreed scope of Article 21. At
issue before Arbitrator Schwartz was whether part-time faculty members
were eligible for tuition waivers. Applying the unambiguous language
of the Raup letter, he held that they
were not. The Schwartz award was a binding interpretation of the
Agreement and, to the extent that an issue was resolved by that award
and to the extent that the Agreement has not changed in material
respects, I will be bound by the Schwartz award.
The Schwartz award dealt with the entitlement of part-time
faculty members to tuition benefits. That issue is not present in this
case. However, the Schwartz award did hold that the Raup
letter was binding on the parties and that it set forth the scope of
the tuition benefits under Article 21. Thus, if the 1983 letter, by
its terms excludes calendar year faculty members from tuition
benefits, the matter is closed unless the Agreement has changed in
some material respect since 1983.
The Schwartz award did not discuss calendar year faculty
members. A close examination of the Raup
letter reveals that it too did not directly treat with such employees.
The Raup letter explicitly excluded two
categories of employees from the tuition waiver benefit: adjunct or
other part-time faculty members and temporary faculty members employed
to work one academic semester. The Grievant did not fit into either of
these classifications. The faculty members entitled to tuition waiver
benefits were “only those FACULTY MEMBERS listed in Section A. 1. of Article XXI…” Those listed were full-time
tenured faculty members, full-time non-tenured probationary faculty
members and full-time temporary faculty members employed to work a
standard workload for one academic year. This description likewise did
not cover calendar year faculty members such as the Grievant.
The record in this case leads the arbitrator to believe that
there are few calendar year faculty members. Further, the parties
acknowledged that the situation presented here is unlikely to reoccur
because the McGuire memorandum is no longer in effect and temporary
faculty members will not be required to “sit out” a semester. The
parties presented no evidence relating to whether or not there were
calendar year faculty members at the time the Raup
letter was written. Certainly the record does not support a finding
that either the 1983 Agreement or the Raup
letter directly referred to such employees. Subsequent to 1983, the
language of Article 21, Section A was changed to refer, apparently for
the first time, to calendar year faculty members. That provision
extended health benefits to such employees. There was also no evidence
presented in this case demonstrating any past practice with respect to
granting or denying tuition waivers to calendar year faculty members.
Thus I am faced with a very different situation than that before
Arbitrator Schwartz. There the Raup
letter directly dealt with part-time employees and there was a strong
long-standing past practice under which all part-time employees were
denied tuition waiver benefits. In contrast, the Raup
letter does not even mention calendar year faculty members and there
is no evidence of a past practice regarding such employees.
This case thus presents a situation where the Agreement (and
under the Schwartz award I regard the Raup
letter as part of the Agreement) did not contemplate calendar year
faculty members as either entitled or not entitled to tuition
benefits. Under these circumstances, the arbitrator is required to
give meaning to contract provisions which are unclear and which do not
directly treat the situation presented. Had the Raup
letter provided that certain faculty members were eligible for
benefits and that all others were not, the task would be simple, as I
have no authority to add to the Agreement. Instead, the Raup
letter attempted to separate the sheep from the goats, but did not
state into which category calendar year faculty members fell.
First, one must examine the language of the Raup
letter. The letter specifically excluded from coverage part-time
faculty members and temporary faculty members employed for only one
academic semester. In contrast, academic year faculty members were
entitled to benefits. One can reasonably infer that the purpose of
this distinction was to provide benefits to those with the less
tenuous attachment to the university, both in terms of hours worked
and in terms of length of employment.
Considering this purpose, there is little distinction between
academic year and calendar year faculty. Both presumably have the same
level of attachment to the university. Further, in interpreting
contract language, similar situations should be treated similarly,
unless the contract unmistakably provides otherwise. Calendar year and
academic year faculty members both are employed for the same length of
time. Only the date on which they begin their employment differs.
Indeed, because it appears that faculty were employed for a calendar
year because they were required to sit out a semester, it is likely
that they would be employed for the spring semester and the full
academic year following. Thus the distinction between academic and
calendar year faculty is far less than that between calendar year
faculty and faculty employed for only a semester or who are only
employed on a part-time basis. The similarity of academic year and
calendar year faculty is buttressed by the treatment of them with
respect to entitlement to health benefits. Sometime subsequent to the
1983 Agreement, Article 21 was modified to specifically provide health
benefits to calendar year faculty. No such entitlement was granted to
temporary full-time faculty members who were only employed for one
semester. Thus, for these purposes, academic year and calendar year
faculty members are treated the same.
As previously related, the Agreement and the Raup letter do not explicitly grant or deny tuition benefits to calendar year faculty. Under these circumstances the arbitrator must determine the most reasonable interpretation of the Agreement. A number of factors lead me to find that calendar year faculty members are entitled to tuition waiver benefits under Article 21. First, on its face, Article 21, Section F grants such benefits to all faculty members. The Raup letter reflects the parties’ agreement to limit that coverage, but because the letter reflects the intent to exclude certain employees from coverage of Article 21, Section F, it should be interpreted to apply only to those employees specifically excluded. By its terms, the Raup letter does not explicitly exclude calendar year faculty members. Second, the Raup letter was written by PASSHE’s representative, and under normal rules of contractual interpretation should be given the reasonable interpretation less favorable to the drafter. Third, as discussed above, calendar year faculty members are most similar to academic year faculty members, and there is no basis presented in the record for treating them differently. Based on these considerations, I conclude that the most reasonable interpretation of the Agreement is that calendar year faculty members are entitled to tuition waiver benefits.
The
grievance is GRANTED.
PASSHE shall reimburse the Grievant for fifty per cent (50%) of his
son’s tuition during the spring 2007 semester at Kutztown University.
The arbitrator will retain jurisdiction for sixty days from the date
of this award for the purpose of resolving any disputes which may
arise concerning implementation of the award.
Dated this 8th day of May, 2009.
/s/
Stephen
E.
Alpern
Arbitrator