Dismissal Proceedings in a Collective-Bargaining Setting Where Arbitration Substitutes for a Faculty Hearing

The statement that follows was approved for publication by the Association’s Committee A on Academic Freedom and Tenure and the Committee on Representation of Economic and Professional Interests, and adopted by the Association’s Council in June 1991.


In 1973, the Committee on Academic Freedom and Tenure and the Committee on Representation of Economic and Professional Interests approved the publication of a report on Arbitration of Faculty Grievances.1 The committees viewed that report as a first statement on the relationship of arbitration of faculty grievances to established Association policies. A second report, Arbitration in Cases of Dismissal, approved for publication by the Council in June 1983, was prepared in  response to the increased acceptance of arbitration as a means of resolving disputes in higher education in the intervening ten years.2

The 1983 report emphasized the importance “of the faculty as a professional body passing judgment upon its members.” The exercise of such judgment forms an essential aspect of the “traditional shared governance” affirmed in the Association’s 1988 Statement on Academic Government for Institutions Engaged in Collective Bargaining. The responsibility of exercising collective faculty judgment is most importantly present in the goal of faculty participation in proceedings to dismiss faculty members, a goal stressed in the 1940 Statement of Principles on Academic Freedom and Tenure.

The Association recognizes, however, that circumstances may arise in which such participation is not feasible.Where circumstances dictate that arbitration substitute for faculty judgment on issues of faculty dismissal, certain key requirements must be met before the procedures can reasonably be regarded as compatible with basic standards of academic freedom and tenure.

These requirements are:

  1.  Preliminary Procedures. Designated representatives of the faculty should inquire into the situation informally, may attempt mediation, and, if a mutually acceptable adjustment cannot be effected, may advise the administration on whether formal proceedings should be instituted.

    The faculty member should not be placed on suspension during the preliminary proceedings or any ensuing formal proceedings unless immediate harm to the faculty member or others is threatened by the faculty member’s continuance. Any such suspension should be with pay.
     

  2. Formal Proceedings. Formal proceedings may begin only after the administration has formulated a statement of charges against the faculty member, framed with reasonable particularity.

    The process for selecting an arbitrator should ensure the appointment of someone familiar with the standards and practices of the academic community, versed in the meaning of academic freedom, and appreciative of its central value. Tripartite arbitration, in which the arbitrator serves as one member of a hearing panel together with a member of the faculty and a member of the academic administration, may enhance attentiveness to appropriate academic standards.

    The arbitration hearing should encourage the inclusion of faculty testimony on disputed matters relating to academic performance and on whether the stated cause, if demonstrated, warrants the penalty of dismissal. The burden of demonstrating adequacy of cause should rest with the administration.

    In those dismissal cases where arbitration is the only available forum for a formal proceeding and where the collective-bargaining representative decides against going to arbitration, the faculty member should be permitted to proceed to arbitration independently, bearing those costs that the collective-bargaining representative would normally assume The faculty member should have the opportunity to select counsel of his or her choice, at the faculty member’s expense. 

    The proceedings should provide procedural due process as called for in Regulation 5 of the Association’s Recommended Institutional Regulations on Academic Freedom and Tenure, including the keeping of a verbatim record of the hearing to be made available to the concerned parties and a requirement that the arbitrator’s decision be accompanied by a written explanation.

    The faculty member’s dismissal should not become effective unless and until the arbitrator hands down a decision calling for dismissal.

Whether dismissal proceedings are conducted through a process of faculty hearing or arbitration, cause for dismissal should be decided on the basis of the faculty member’s entire record and be related, directly and substantially, to the faculty member’s professional fitness as a teacher or researcher; and dismissal after two years of service should, in all cases not involving moral turpitude, be with the affordance of at least one year of terminal notice or severance pay.

Notes

1. AAUP Bulletin 59 (1973): 168–70. Back to text
2. AAUP, Policy Documents and Reports, 10th ed. (Washington, D.C., 2006), 115–18. Back to text