USFA e-Letter: Association Wins Important Arbitration Award

We are very pleased to report that our legal challenges concerning the University President’s alleged powers under The University Act to overturn a decision of the Renewal and Tenure Appeal Committee has resulted in an important victory for the Association. Previously we had reported to Association members that President MacKinnon had refused to forward to the Board of Governors a positive recommendation for tenure by the Renewal and Tenure Appeal Committee, claiming that pursuant to The University Act, he had the power to veto a positive recommendation for tenure. The first arbitration award decision was challenged in court and this resulted in the original recommendation for tenure from the Renewal and Tenure Appeal Committee being considered by the Board of Governors. The Board determined that tenure could not be awarded because the President did not recommend tenure.

A second grievance was filed because the role of the President according to our Collective Agreement is to transmit decisions not make recommendations. The second grievance concerning the jurisdiction of the Board of Governors to award tenure resulted in an arbitration hearing before esteemed Arbitrator Andrew Sims in the fall of 2012. In a recent award dated March 24, 2014 Arbitrator Sims upheld the Association grievance that proper procedures were not followed in the way the matter was dealt with by the Board. Quoting from page 52 of that decision:

“I find that the Association has established that proper procedures were not followed in the way the matter was dealt with by the Board of Governors.  The collective agreement calls for the committee recommendation to be transmitted to the Board of Governors for it to consider in its own right.  The document was transmitted, but only with significant other materials that, I find distorted the process in a way that ensured proper procedures were not followed.  This is because the Board was advised that, and obviously accepted that, it had no authority to grant tenure.  It endorsed the President’s view on this point.  As a result, it failed to ask itself the correct question which is whether acting in its own right and in accordance with the collective agreement’s processes, it approved the awarding of tenure. 

 It is significant that Arbitrator Sims rejected the University’s argument that pursuant to The University Act, the President has a separate and distinct right to nominate a candidate for tenure and therefore has the power to “veto” collegial committee decisions and recommendations that go forward to the Board. It is likewise significant that Arbitrator Sims reaffirmed the significance of academic freedom in his award.

 We will have to wait and see whether the University will once again call for judicial review of this arbitration award.