Univ. of the Dist. of Columbia Faculty Ass'n / Nat'l Educ. Ass'n v. Bd. of Trs. of the Univ. of the Dist. of Columbia

• Citation: 257 A.3d 1026
• Decision Date: 26 August 2021
• Docket Number: No. 19-CV-326,19-CV-326
• Parties: UNIVERSITY OF THE DISTRICT OF COLUMBIA FACULTY ASSOCIATION / NATIONAL EDUCATION ASSOCIATION, Appellant, v. BOARD OF TRUSTEES OF the UNIVERSITY OF THE DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

257 A.3d 1026

UNIVERSITY OF THE DISTRICT OF COLUMBIA FACULTY ASSOCIATION / NATIONAL EDUCATION ASSOCIATION, Appellant,

v.BOARD OF TRUSTEES OF the UNIVERSITY OF THE DISTRICT OF COLUMBIA, Appellee.

No. 19-CV-326

District of Columbia Court of Appeals.

Submitted April 29, 2020

Decided August 26, 2021

Jonathan G. Axelrod, Washington, was on the brief for appellant.

Anessa Abrams and B. Patrice Clair, Washington, were on the brief for appellee.

Before Blackburne-Rigsby, Chief Judge, and Glickman and Beckwith, Associate Judges.

Blackburne-Rigsby, Chief Judge:

Appellant University of the District of Columbia Faculty Association / National Education Association (the "Faculty Association") appeals the trial court's decision granting a motion to stay arbitration filed by appellee Board of Trustees of the University of the District of Columbia (the "University"). After the University denied the tenure application of Associate Professor Dr. Nikolai Ostapenko, it issued him a contract for the 2016-2017 academic year and then did not continue his employment for the 2017-2018 year. Pursuant to the parties’ collective bargaining agreement, the Faculty Association, on Dr. Ostapenko's behalf, filed a grievance alleging violations of that agreement and later requested arbitration pursuant to the agreement's arbitration provision. However, the University then sought to stay the arbitration proceedings in the Superior Court, arguing that Dr. Ostapenko's dispute was not arbitrable. The trial court agreed.

Construing the parties’ collective bargaining agreement, we hold that the University's decision to grant Dr. Ostapenko a contract upon the denial of his tenure application was not arbitrable because it was a "tenure decision" that, in Article XIV ("University Tenure") of the agreement, the parties expressly excluded from the scope of arbitration. In addition, Dr. Ostapenko was not entitled to arbitrate the University's non-renewal of his one-year contract in 2017 because he then was no longer a member of the bargaining unit covered by the Agreement; therefore, he could not allege a violation under Article XI ("Disciplinary/Adverse Actions"). We affirm the trial court's rulings.

I. Factual & Procedural History

A. The Collective Bargaining Agreement

The governing collective bargaining agreement between the University and the Faculty Association, entitled the "Seventh Master Agreement" (the "Agreement"), sets forth the "terms and conditions of employment for faculty represented by the association and negotiated by the parties."¹ The Faculty Association is the certified "bargaining agent" under the Agreement, and the employees who comprise the "bargaining unit" are "full-time faculty employees holding a permanent appointment from appropriated funds," with certain exceptions not relevant here. The Agreement includes policies regarding discipline and adverse actions (Article XI), tenure (Article XIV), academic evaluations (Article XV), promotions (Article XVI), compensation (Article XVIII), and reductions in force (Article XXI), among others. Article IX of the Agreement outlines the process for filing a grievance – defined as "a formal written complaint that there has been a violation, misinterpretation, or improper application of the terms and conditions of this Agreement" – and authorizes arbitration of such disputes.

Relevant here, Article XIV of the Agreement allows "[f]ull-time faculty members who have been placed by the University in tenure tract [sic ] positions" to apply for tenure "following the[ir] fifth year of service" in such a position. However, the Agreement specifically excludes "[d]ecisions regarding tenure" from the grievance and arbitration procedure (Article IX) and makes clear that such decisions "shall not be considered disciplinary or adverse actions," as defined by Article XI. Per Article XI, a "disciplinary or adverse action" – defined as "a written reprimand, suspension or dismissal" – may only be made for "cause." Article XXX, the "Entire Agreement" clause, provides that all "[m]atters not directly covered by this Agreement shall be governed by applicable D.C. regulations and law."

B. The University's Denial of Dr. Ostapenko's Tenure Application

Dr. Ostapenko holds a Ph.D. in Economics from Leningrad University and a Ph.D. in Economic Theory with a concentration in Marketing from St. Petersburg University. In 2006, he began working at the University of the District of Columbia ("UDC") as a Visiting Associate Professor. In 2008, UDC hired Dr. Ostapenko as a tenure-track Associate Professor of Marketing in the School of Business and Public Administration ("SBPA"), at which time Dr. Ostapenko became a member of the Faculty Association's bargaining unit. On March 21, 2013, Dr. Ostapenko applied for tenure.

On February 9, 2016, Dr. Rachel Petty, Chief Academic Officer, notified him that the University denied his application because he did "not possess an earned doctorate in Marketing from a regionally accredited post-secondary institution."² UDC Resolution No. 84-10 requires that candidates "promoted to the academic rank of associate professor or professor must possess the terminal degree from a regionally accredited post-secondary institution as indicated for the academic program." Apparently, the University did not enforce this policy against Dr. Ostapenko when it promoted him to an Associate Professor in 2008.

After the University conveyed its decision on his tenure application, Dr. Petty sent Dr. Ostapenko a "Faculty Re-Appointment Notice – Academic Year 2016-2017," offering him a "one-year appointment" for the upcoming academic year. This letter differed from those that Dr. Ostapenko had received prior to the denial of his tenure application, in that this letter did not describe his employment as a "continuing faculty appointment."³ Rather, the letter stated in relevant part:

Based on the denial of your tenure application, and per DCMR8 citation regarding denial of tenure¹, you are being offered a one-year appointment, covering the period of August 16, 2016 through May 15, 2017.

¹ DCMR8 - 1471.2: "If a faculty member is denied tenure at the end of seven (7) years or more of service, the continuation of that faculty member's employment with the University shall be on the basis of a year to year contract."

Dr. Ostapenko signed the one-year appointment offer on August 1, 2016; the employment period covered August 16, 2016 through May 15, 2017. He also appealed the denial of his tenure application to University President Ronald Mason, Jr., who denied the appeal on December 9, 2016. On March 16, 2017, Vice President for Human Resources Patricia Johnson wrote to inform Dr. Ostapenko that his "appointment as a Marketing Professor in the College of Business and Public Administration would expire and [his] employment would be terminated" effective May 15, 2017.

C. Grievance and Arbitration

On January 27, 2017, Dr. Ostapenko filed a Faculty Grievance Form, in which he designated the Faculty Association as his representative.⁴ The Form listed the "applicable article(s)" as Article XI ("Disciplinary/Adverse Actions"), Article XIV ("University Tenure"), and Article XVIII ("Compensation"), and included a one paragraph description of the dispute, entitled the "Statement of Grievance," which read as follows:

The UDC Faculty Association grieves the Administrative Decisions regarding Non-Renewal of Dr. Nikolai Ostapenko, Associate Professor, SBPA, in violation of the Seventh Master Agreement due to the Granting of Dr. Ostapenko a one-year terminal contract and the non-renewal of Dr. Ostapenko for academic year 2017-2018. The issuance of a terminal contract also violates Section 1471.2 of the University's Regulations, which states as follows: "If a faculty member is denied tenure at the end of seven (7) years or more of service; the continuation of the faculty member's employment with the University shall be on the basis of a year to year contract."

The Form was accompanied by a two-page narrative section that outlined the above-identified facts; the narrative was clear that the grievance was not challenging the University's denial of Dr. Ostapenko's tenure application, but was limited "to the employment consequences of the denial of [his] tenure application." On March 20, 2017, University President Mason denied the grievance, and the Faculty Association sought arbitration pursuant to the Agreement. The parties designated an arbitrator and set a date for a hearing, which was subsequently cancelled because, prior to its commencement, the University moved to stay arbitration.

D. Procedural History

On December 13, 2018, the University filed a motion in the Superior Court to stay arbitration, arguing that Dr. Ostapenko's dispute is not arbitrable because (1) while working on a temporary, one-year contract, he was not a member of the bargaining unit, and (2) tenure decisions are not subject to arbitration under the Agreement. On January 17, 2019, the Faculty Association filed a cross-motion to compel arbitration, asserting that Dr. Ostapenko remained a member of the bargaining unit during the 2016-2017 academic year and that his grievance concerned contractual rights governed by the Agreement. By dual orders issued on March 22, 2019, the trial court granted the University's motion and denied the Faculty Association's motion, ruling that Dr. Ostapenko did "not have standing under the Seventh Master Agreement to arbitrate his grievance." The trial court found that, by accepting a "one-year contract" for the 2016-2017 academic year, Dr. Ostapenko was "demoted ... to a temporary appointment, thereby excluding him from membership [in] the ... bargaining unit." It ruled that the University's decision to offer Dr. Ostapenko a one-year contract "was contingent upon the University's denial of his tenure application" and, therefore, the grievance "challenge[s] the University's tenure decision," which is precluded from arbitration under the Agreement. Because part...