Ruling supports PSC
If an academic department wants to deny a multiyear appointment to an adjunct for budgetary reasons, the college has to do its homework first, an arbitrator has ruled.
The provision creating multiyear appointments for adjunct instructors in the contract settled in 2016 was heralded as a small step forward in creating job security for part-timers at CUNY. The union has now taken that win a step further: an arbitrator’s decision issued on June 5 rules that CUNY cannot deny an adjunct a multiyear appointment arbitrarily and that if the administration is going to deny someone for budgetary or programmatic reasons, the college must conduct a comprehensive review of the budget or the programmatic basis.
This adds a new layer of protection for adjuncts seeking multiyear appointments, the union said in response to the ruling.
The case began in May of 2017, when Jessica Nicoll, an adjunct lecturer in dance at Hunter College, was denied a three-year appointment despite the fact that she had met the college’s requirements for such an appointment and received a recommendation from her department’s personnel and budget committee. She also had a recommendation for an appointment from the interim dance department chair, Carol Dilley, who told Nicoll in a letter the previous month that the college “intends to reappoint you.” The college then denied her the appointment on the grounds that the department was fairly new and was undergoing changes amid ongoing budget cuts at the college.
CHANGING THE STATUS QUO
The union filed a grievance and argued to Arbitrator James Darby that the appointment was unreasonably denied, rejecting the notion that a department’s “state of flux,” as the administration put it, was a justifiable reason for the denial. The union also argued, as the decision states, that the collective bargaining agreement’s inclusion of the multiyear appointments “intended to change the status quo, which gave the college unfettered discretion to deny appointments.”
Darby sided with the PSC in his decision. “To be sure, the [Memorandum of Agreement (MOA)] does not obligate the college to approve all three-year adjunct appointments,” he said. “However, the MOA clearly and unambiguously altered the status quo of colleges having absolute discretion with regards to adjunct appointment determinations. With respect to the three-year adjunct appointment, the parties agreed to multiple prerequisites, including service requirements and positive recommendations ‘based upon a comprehensive review of the adjunct’s performance and the fiscal programmatic needs of the department and/or college.’”
In a stinging rejection of the CUNY administration’s case, Darby said that Hunter College’s acting provost and vice president of academic affairs, Lon Kaufman, could not provide a budgetary or programmatic basis for denying the appointment.
Dr. Kaufman stated he did not know whether the Board of Trustees evaluated the viability of the dance program when it decided to elevate it to a stand-alone department in November 2015. He also testified that he did not look at the specific courses the grievant taught or the department’s curriculum before he denied the grievant’s reappointment.
Darby noted that Nicoll met all of the service requirements put forth by her department’s chair and that she received “positive affirmation” from her colleagues. He said, “The record is devoid of any analysis being done by the college of the dance department’s program or curriculum justifying the denial of the grievant’s three-year appointment.”
The decision remands the case to a select faculty committee to handle Nicoll’s appointment in accordance with the contract.
A BLOW TO ADMIN
For the PSC, this is not just a victory for one adjunct, but builds arbitral precedent to strengthen the contractual provisions for adjunct multiyear appointments by stating that the decision to deny an appointment cannot be arbitrary. The arbitration comes after the union boasted won two settlements enacted this spring; one to expand three-year appointment eligibility to adjuncts who have additional workload credit for “jumbo” classes, and one for those who teach in programs with links to an academic department.
