By Charles Loiacono     

The Decision and Award 

The decision and award in the ELI case runs 35 pages. In order to provide the salient parts, I will excerpt those sections that illustrate the issues, the decision on the merits, and the remedy.

The Issues

1)                  Is the grievance arbitrable?

2)                  Was the College obligated to apply the terms of the collective bargaining agreement to courses taught in the English Language Institute after July 2006?

3)                  If so, did the College violate the collective bargaining agreement or the July 2006 Memorandum of Agreement in its treatment of those courses? If so, what shall be the remedy?

Background – July 2006

            As a result of discussions between the Association and several members of the Board of Trustees, the parties entered into a Memorandum of Agreement (referred to herein as the “MOA”) which stated:

            It is agreed between the parties that all developmental courses (academically oriented) and assigned as English Language Institute courses under the continuing education budget will henceforth be assigned under the jurisdiction of he AFA or under the jurisdiction of the NCCFT if part of a full-time program in the fall or spring.

            This MOA was fully executed by July 15, 2006.

(Fanelli and the trustees reneged on the agreement and refused to implement it. As a result, the AFA re-filed the grievance on February 4, 2007.)

Discussion

            Insofar as the Employer’s arbitrability claim seeks to characterize the grievance as an attempt to resurrect a grievance that was withdrawn, the Arbitrator finds that the Employer is incorrect. A reading of the February 4, 2007 grievance indicates that it asks a different question than the December 2005 grievance. In December 2005, the Association was grieving the transfer of work out of the Association’s jurisdiction and to the ELI. In February 2007, the Association grieved the Employer’s alleged failure to comply with the terms of the AFA Agreement when the College operated the ELI. A majority of the Board finds that the February 4, 2007 grievance is discrete from the December 2005 claim, is timely and is arbitrable.

            An analysis of the merits of this grievance must begin with the MOA signed by the College on July 12, 2006 (and by the Association on July 15^th), which is the agreement of the parties regarding ELI. The Arbitrator finds that, by its terms, the MOA puts the ELI courses “under the jurisdiction of the AFA.” While the College suggests that there was no meeting of the minds as to what that meant, the Arbitrator does not agree. When the ELI teachers were placed “under the jurisdiction of the AFA,” that meant that the AFA contract applied to them. There would be no other purpose for the ELI faculty to be under the AFA’s jurisdiction. Contrary to what the Employer has argued, the Arbitrator finds that “under the jurisdiction of the AFA” means that the terms of the contract apply, the work is unit work, the work is to be done by unit members, and the terms and conditions of employment stated in the collective bargaining agreement that apply to unit work also must apply to that work.

            If any other result had been intended, the parties would not have used the broad based term “jurisdiction” of the AFA. Instead, the parties could have said “paid pursuant to the salary in the AFA contract” if that was the only item upon which they agreed. These sophisticated parties are well aware that the seniority and assignment provisions of the Agreement are quite detailed, and any suggestion that work was unit work under the jurisdiction of AFA would incorporate these provisions and the other terms of the collective bargaining agreement.

(I trust that the above explanation of how the word “jurisdiction” is used helps those that professed ignorance to understand its true meaning.)

          The arbitrator therefore finds that the Employer is liable for the breach of the collective bargaining agreement by its failure to pay contract rates for instruction in the ELI as the Employer agreed it would when it entered into the MOA…the segment of the ELI program involving the delivery of ESL instruction to students who are, or will be, part of the credit program is unit work. This matter was definitively established when the parties executed the MOA. It is the College’s failure to treat the ELI courses as unit work and remunerate them in accordance with the Agreement that constituted the initial and obvious violation of the Agreement.

            For all of the reasons stated herein, a majority of the Board finds that the grievance is arbitrable and that the College violated the collective bargaining agreement when it failed to apply the terms of the collective bargaining agreement to the courses taught in the ELI.

Remedy

(The arbitrator devotes 17 pages to the rationale for awarding remedy. I am disappointed that the arbitrator did not make whole those members that were denied assignments as a result of the contract violation. Following the excerpts from the decision on remedy, I have included my concurrence and dissent.)

            The Board next turns to the complex question of the remedy in this matter. As to the applicable remedy period, the Arbitrator finds that the Employer’s position cannot be sustained as it contends no remedy is due or, in any event, no remedy should attach to any semester before spring 2007. Likewise, the Arbitrator finds that the Association’s argument in this proceeding has painted too broad a remedy period and that is not sustainable.

            The Arbitrator finds that the Employer has failed to comply with the terms of the MOA which provided a remedy for ELI work on a going forward basis. The Arbitrator therefore finds that it is improper to reach behind that settlement agreement to the underlying grievance and then backward from the underlying grievance to the date the Association first claimed work was transferred, in order to award a remedy back to 2000 or even commencing in 2003. For all of these reasons, the Arbitrator finds that the MOA contained an acknowledgement by the Employer that ELI work would be covered under the AFA Agreement from the date that the MOA was signed and forward.

            In sum, a majority of the Board finds that the College violated the Memorandum of Agreement when it failed to apply the AFA collective bargaining agreement to the English Language Institute courses taught for students who intended to matriculate during the fall 2006 and spring 2007 semesters. Faculty who taught in ELI during those semesters should receive the difference between the salary paid to them and the AFA contract rate for an Adjunct Instructor. In addition, agency fees are to be paid to the Association, as discussed in this Opinion, and seniority ticks given to any employees who were denied an opportunity to teach in the ELI and who previously taught an 010 or 020 course. The Board will retain jurisdiction if questions arise regarding the implementation of the remedy described herein.

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          That in essence is the decision and award in the ELI arbitration, as well as my take on remedy. Once again, the Fanelli administration has made a mockery of the collective bargaining agreement. In doing so, they made millions of dollars from a program that was an educational disaster. The Fresh Look Committee said it best when they described the hiring of unqualified teachers, unprofessional pedagogy, and failing outcomes. But Fanelli cared nothing about providing an education to these foreign students. The program continued with some band aids applied. After six years, they dumped the program because it had been exposed. But the money was good, so they continued the program with a new name.  Profit was the goal, and if that meant violating the AFA contract, so be it. He only calculated what was to be gained—never what was to be lost. But, of course, he lost much more than he gained, as did the trustees who followed his lead.

          They filled the coffers, but lost a legion of students. Add to that loss, the loss of their credibility, the respect of the adjunct faculty, what was left of their reputations, and the ability to interact in any way with those that teach the lion’s share of courses.

          It is well that the end is near for this administration, as well as those trustees that willingly became accomplices in this and other dishonest schemes. There are powerful lessons to be learned from studying corrupt leadership and misguided policy makers.

Let us hope that a new era dawns for NCC—that the new administration will be honest and that the new trustees will be wise.