Tenure Protections in the MSCA Contract

By William Mahaney

MSCA Perspective, March 2001

The fundamental reason for tenure is the preservation of academic freedom; therefore, in protecting tenure, the MSCA is guarding not only the academic freedom of its unit members but also the academic integrity of the institutions at which we work. That protection results from contract negotiations and from contract administration.

Past negotiations have led to numerous provisions in the present collective bargaining agreement (officially titled the Agreement Between the Board of Higher Education and the Massachusetts Teachers Association, 1995-1998; the numbers and letters below refer to the articles and sections of this contract) which safeguard both academic freedom (as defined in V.A.) and tenure (as defined in I.D.62. and IX). For example, several sections insure that the vast majority of courses are taught by tenured and tenure-track faculty, those whose academic freedom has the most protection:

*XX.C.5. defines the number of consecutive semesters anyone can teach in a temporary full-time position;

*XX.C.9. limits the percentage of courses per department that can be taught by part-time faculty;

*XII.G. severely restricts the number of courses per semester that can be taught by non-unit members; and

*II.B. prohibits management from offering individual contracts of employment in conflict with the collective bargaining agreement.

In addition, the sections on Appointment and Promotion [XX], Evaluations [VIII and Appendices A-1 through G and M], and Tenure [IX] establish qualifications for rank, for promotion, and for tenure, as well as the criteria for and the frequency of evaluations, including evaluations of tenured unit members [VIII. B. 2.]. They also set forth a complex evaluation process which is designed to:

*hold unit members accountable for their performance;
*furnish constructive suggestions for improvement;
*provide a fair and impartial evaluation at every step of the process;
*insist that all evaluations follow the terms and conditions of the contract;
*guarantee that a unit member receives "full and complete" reasons for any negative recommendation at any step; and
*insure that personnel decisions are based in fact and are not arbitrary, capricious, or done in bad faith.

Such protections are necessary, of course, because the evaluation process can result in a non-tenured unit member not being reappointed or not being granted tenure [XX. C. 1, 3, 8; XX. F.; IX. A.]. There are also provisions regarding the termination in mid-contract of non-tenured unit members [I. D. 64.; XX. I, J, K, L] and the removal of a tenured member of the bargaining unit [IX. E.]. In all such cases contract language protects the due process rights of the unit member, and in most such cases provides that such terminations can only be made for "just cause" [XX. J., K; IX. E.Ñsee IX. E. for the definition of "just cause"].

Whenever a contract is negotiated, any or all of the sections cited above could change (most recently, for example, the evaluation process was altered to give the Academic Vice President an independent recommendation on tenure candidates). For each new contract, the MSCA Bargaining Committee must deal with management proposals that seek to weaken or eliminate tenure, that would make it easier to remove tenured unit members and not reappoint non-tenured ones, that would decrease the number of courses taught by tenured and tenure track faculty, and that, by extension, would severely weaken academic freedom. Indeed, in the present lengthy negotiations the area of greatest disagreement has been over "post-tenure review."

Tenure and academic freedom are protected not only through collective bargaining and contract language, but also through contract administration, particularly the provisions of Article XI (Grievances Procedures), which are implemented on the Chapter level by the Grievance Officer and the Chapter President, and on the statewide level by the MSCA Grievance Committee, MTA Higher Education consultants, and attorneys from MTA Legal Services.

Although many problems can be and are solved without formal grievances, all cannot be. While the right to grieve extends to nearly all sections of the contract, it is particularly vital in such cases as:

*a violation of academic freedom;
*a negative evaluation of a unit member;
*failure to receive an "up-or-out" promotion;
*a recommendation for non-reappointment;
*a refusal to grant tenure;
*the termination of a non-tenured unit member in mid-contract; and
*the attempt to remove a tenured unit member.

Although such cases do not occur on a daily basis, they are probably more common than most unit members think. Over the past nine years, as Grievance Officer for the Salem Chapter and as a member of the MSCA Grievance Committee, I, as well as other local Grievance Officers and the Committee, have dealt with all of these situations, some of them several times, and from all of the nine state colleges. In all such instances, the full resources of the MSCA and the MTA have helped to ensure that unit members have all of the rights contractually and legally theirs, including the right of due process and that all contractual policies and procedures are scrupulously followed. Over time, I have personally worked on arbitrations and Labor Relations Commission cases with five MTA Higher Education consultants and five attorneys and I have been universally impressed with their dedication, competence, and performance. I also have great admiration for the work done as Chair of the MSCA Grievance Committee for twenty-plus years by Frank Minasian of the Worcester Chapter in coordinating the statewide effort.

Because the contract places very strict limits on what an arbitrator can and cannot award, it is extremely difficult to obtain a perfect resolution to grievances involving the potential loss of one's position. (An arbitrator, for example, cannot award tenure, and usually cannot grant a reappointment, promotion, or retention--see XI. F.) Yet we have had some success at both the local and statewide levels in effecting satisfactory resolutions in a significant number of cases.

At Salem we are now involved at the statewide level in management's attempt to remove a tenured faculty member and in a tenure denial case. In each case we believe the employer to be arbitrary and capricious, to be making a decision not based in fact, to be acting in bad faith, and to have violated the unit member's academic freedom. In the tenure removal case (which involved some twelve sessions, dozens of witnesses, and mountains of exhibits), we were able to show the Hearing Committee that the administration failed to prove any of its allegations. The Committee unanimously agreed and recommended that the unit member not be removed.The President, however, is proceeding with the removal and there will be an extensive hearing before the designee of the Board of Trustees beginning in April, and a number of related grievances are headed toward arbitration. The denial of tenure case is being scheduled for arbitration.

Most MSCA members will not be involved, of course, in such cases. But any one of us could be at any time. Therefore, we all benefit from the MSCA's vigorous protection of tenure and academic freedom, both at the bargaining table and through the grievance process. The MSCA's willingness to stand firmly in support of tenure and academic freedom and to commit whatever resources are needed to preserve those essential entities serves as a powerful deterrent to idiosyncratic decisions by the employer and as a strong protector of the rights of all unit members.

William Mahaney is Professor of English, the Salem Chapter Grievance Officer, and a former Vice-President for Academic Affairs at Salem State College. Editor's note: Bill is generally regarded as one of the most knowledgeable people about the provisions and interpretations of the state college contract.