State University of New York
99 Washington Avenue
Albany, New York 12246
Office of the Vice Chancellor
Faculty and Staff Relations
February 4, 1977
M E M O R A N D U M
To: Presidents, State-operated Campuses
From: Jerome B. Komisar
Subject: Arbitration Award - Judith Dingledey
Enclosed is a copy of the Arbitrator's award in the above-mentioned grievance which concerned the performance evaluation of a non-teaching professional employee. The Arbitrator reinstated the grievant and awarded her back pay.
This decision is particularly significant in that the Arbitrator found procedural violations of Article XII, Title B, of the Policies of the Board of Trustees. The grievant's immediate supervisor had been changed during the evaluation year, and the new immediate supervisor did not consult with the grievant concerning her performance program. The supervisor subsequently prepared an evaluation of the grievant's performance which was not based on the contents of the grievant's performance program, specifically with respect to the goals and objectives which she had been expected to achieve.
Further, the Arbitrator found that, although the grievant's performance was rated Satisfactory, the tone of the evaluation itself was very negative. He concluded that the assignment of a Satisfactory rating was improper, and frustrated the grievant's rights to file an appeal with the Campus Committee on Professional Evaluation.
We should take steps to ensure that newly-assigned supervisors consult with
their subordinates and either formulate new performance programs, or stipulate
that current performance programs remain in effect. Subsequently, an employee's
performance must be evaluated against the specific goals and objectives which
are outlined in the performance program.
Finally, employees whose performance is unsatisfactory should receive an Unsatisfactory
rating. This is not to say that Satisfactory ratings cannot contain negative
comments concerning particular aspects of an employee's performance. However,
if the dominant tone of a supervisor's comments in an evaluation is negative,
then an Unsatisfactory rating should be assigned.
As an added note, supervisors and employees should meet annually to discuss the employee's performance program. If no changes are made in the performance program, the supervisor should stipulate that the unaltered program remains in effect.
Please give Janice Decker or me a call if you should wish to discuss the implications of this decision.
Enclosure
cc: Campus Personnel Directors
Copies for information only
Presidents, Community Colleges
---------------------------------------------------------------------------
In The Matter Of The Arbitration Between
THE STATE OF NEW YORK
(STATE UNIVERSITY OF NEW YORK AT BUFFALO)
-and-
-
UNITED UNIVERSITY PROFESSIONS, INC.
(JUDITH DINGELDEY)
---------------------------------------------------------------------------
At a hearing held on November 8, 1976, at Albany, New York, the above named parties were present and represented, and submitted to the undersigned, duly designated Arbitrator, the Issue hereinafter set forth. The parties submitted post hearing briefs which were duly considered by the Arbitrator.
ISSUE
Did the State of New York (University of New York) violate Article XII, Title B, Section 4, of the Policies of the Board of Trustees in its annual evaluation of the grievant for the period March 31, 1974 through March 31, 1975? And, if so, what, consistent with the Agreement, is the remedy?
BACKGROUND AND DISCUSSION
Grievant had been a non-teaching professional employee at the SUNY, Buffalo,
for some 12 years. At the time the grievance arose, she held a term appointment
as Director of Student Undergraduate Affairs in the School of Management of
SUNY, Buffalo. The Union on behalf of grievant asserts that in the Evaluation
of grievant for the period March 31, 1974 through March 31, 1975 there occurred
violations of relevant provisions of the Policies of the Board of Trustees pertaining
to evaluation of Non-Teaching Professionals. The relevant provisions are contained
in Article XII, Title B, Section 4 of the Policies of the Board of Trustees
and read as follows:
"§ 4. Evaluation
a) Each professional employee in the Professional Services Negotiating Unit
shall have his per-formance evaluated by his immediate supervisor formally,
in writing, once each year during the term of appointment and as changing conditions
warrant. Such evaluation shall be based on a performance program determined
by the immediate supervisor after discussion with the employee.
b) A professional employee whose performance is characterized as "unsatisfactory"
in a written report resulting from a formal evaluation may seek review of such
report by the appropriate professional staff committee established for such
purpose."
The grievant argues that throughout her career of employment at SUNY, Buffalo, she received satisfactory evaluations. In 1973, pursuant to a Memorandum of Understanding Relating to a System of Evaluation for Professional Employees between the State and the predecessor organization to the Union here, grievant was evaluated and such was based upon a performance program developed between grievant and her then immediate supervisor as provided for in the referred to Memorandum of Understanding. This procedure was repeated in 1974. The strictures of the appropriate evaluation policy were asserted to have been complied with by grievant to the extent that there was a change in the Evaluation for 1974 after a discussion between grievant and her then immediate supervisor. During 1974 grievant was awarded merit increases and was cited in accompanying correspondence for contributions to the University by the President of the University and the Dean of the School of Management. During the evaluation period herein at issue grievant was informed of a change in supervision of her work; this occurred by a memorandum from the Dean of the School of Management dated June 28, 1974 which was some 3 months or so after the beginning of her evaluation period. Such memorandum also said the change would be effective July 1, 1974. The memorandum reads in pertinent part:
"Undergraduate Program
For 1974-75, Jim Schindler, as faculty Chairman of the Undergraduate Program,
will supervise the work of the Director, Undergraduate Student Affairs. In this
direct reporting relationship, Judy Dingeldey will be responsible and accountable
only to Jim Schindler during the coming academic year. Judy's activities will
be devoted entirely to the operation and improvement of the undergraduate program,
as defined and guided by Jim. The MFC program will be the responsibility of
the Undergraduate Program Chairman, coordinated when appropriate with the Committee
on Program Operations."
Grievant, however, claims she did not receive her first personal notification that Dr. Schindler would be her supervisor until April 8, 1975, when she received the following letter from the Assistant Vice President for Academic Affairs of the University.
"The organizational structure of the University at Buffalo, as you are well aware, includes a variety of reporting and supervising relationships. It is now necessary, as a component in the professional staff personnel system, that these be specified.
Therefore, this is to inform you that:
Dr. James S. Schindler
Professor
School of Management
is your immediate supervisor, and as such is responsible for, among other things, developing your annual performance program, carrying out your annual appraisal in light of the performance program for that year, and when appropriate providing the immediate supervisor's recommendation regarding permanent appointment."
Unfortunately, Dr. Schindler became ill and was forced to be hospitalized, thus requiring a change, and so on May 28, 1975, grievant received the following advice memorandum:
"Because of the hospitalization of Dr. James Schindler on May 17, and because of his anticipated absence caused by his illness for the next two months, Dr. Carl Pegels will be the acting immediate supervisor of Ms. Judith Dingeldey until further notice."
Dr. Pegels had been grievant's immediate supervisor prior to and until the assignment of Dr. Schindler as grievant's immediate supervisor.
There had been, however, an Evaluation of grievant drafted in some form and signed by Dr. Schindler on May 23, 1975. However, this Evaluation was, as testified to by Dr. Pegels, prepared by him and taken to the hospital where it was signed by Dr. Schindler. The Evaluation covered the period "3/31/74 to 3/31/75" and the Appraisal Summary was "satisfactory"; it however contained negative comments in the narrative portion. Grievant on May 28, 1975 responded to the negative comments in the narrative portion of the Evaluation. Even allowing for the normal academese used in such documents it would appear to this reader that the Narrative was highly critical of grievant. The Evaluation was markedly different in tone from prior ones. There were apparently changes referred to in the Evaluation in the work of the Office of Under-graduate Affairs which among other things apparently required the giving of "bad news" to applicants for entrance to the School of Management and involved an apparent problem with the raising of entrance requirements which seems to have led to a contratemps between grievant and Dr. Schindler. The response of grievant dated May 29, 1975, is as follows:
"Preliminary Comment
The performance appraisal covers the period from March 31, 1974 to March 31,
1975. The Appraiser was appointed to the position of Chairman of the Undergraduate
Program Committee effective July 1, 1974 and was designated as the incumbent's
immediate supervisor early in April, 1975. Therefore the evaluation was based
on three months of performance for which the appraiser had no direct responsibility
and on nine months of performance for which the appraiser had no delegated responsibility.
Also, since this performance evaluation is a one-year period, and is not a recommendation for permanent appointment, I feel that the appraiser's concluding statement in F) Other is inappropriate.
General Comments
The most important aspect of this evaluation is found in the first sentence
of the section entitled B) Mastery of Specialization:
'During the past year there has been a substantial
change in the work of the Office of Undergraduate
Affairs - - - - -'
The changes which have taken place were initiated by the Chairman of the Undergraduate Program Committee. They occurred rapidly and without adequate notification or preparation of the parties involved. Because of the significant change in the work of the incumbent, it seems unfair to base total judgment on only several months work in this area.
Another important aspect is D) University Service. The incumbent serves as voluntary advisor for the Regents External Degree Program, State Education Department, and as a voluntary Notary Public for the University. The incumbent is also serving as Membership Chairman for the Professional Staff Senate. In the section entitled E) Continuing Growth, the appraiser mentions "career position." The incumbent has been with the School of Management since 1968. It should appear that this length of service constitutes a professional commitment on the part of the incumbent.
With respect to the Doctoral program and its effect on ongoing work responsibilities, the incumbent has spent additional hours in working with students to compensate for the 2½ hours of class time per week, in addition to working through lunch hours. All "effort" for the program has been accomplished during evening and weekend hours, with no office secretarial personnel involved in extra duties. The doctoral program in Educational Administration has given the incumbent an understanding and awareness of the complexity of educational systems and the need for responsibility as well as authority for implementing policies.
My final statement in reply to F) Other is that relation-ships need not be unpleasant if all persons concerned are adequately informed of policies and procedures, and are cognizant of the reasons for the policies and procedures."
The items in the Narrative of the Evaluation responded to are B) Mastery of Specialization, D) University Service, E) Continuing Growth and F) Other, which read:
"B) Mastery of Specialization:
During the past year there has been a substantial change in the work of the
Office of Undergraduate Affairs as a result of a concerted attempt to cope with
the rapidly expanding size of the actual and potential student body without
the corresponding provision of academic financial support and the continuing
threatening of the academic quality of the program. This has resulted in the
attempt to establish a formal admissions policy and its admini-strative implementation
as well as a strict monitoring of Program curriculum requirements and course
prerequi-sites. The corresponding policies, regulations and rules were to be
developed in cooperation with the Chairman of the Undergraduate Program. The
development of systematic procedures and the efficient administration thereof
constitutes the most difficult and significant responsibility for the Director
of Student Undergraduate Affairs. The performance with the foregoing has been
less than expected. Specifically, performance was less than expected with respect
to:
1. Development of new procedures and participation in formation of revised
policy guidelines.
2. Implementation of revised procedures and policies, including communicating
revised procedures and policies to University Community.
3. Evaluation and control, of actual operations vs. planned operations, and
initiation of corrective action when needed.
D) Effectiveness in University Service:
University service may be considered with respect to (1) services of value to
the University Community generally but of little or no direct assistance to
the Program and (2) services which enhance the mission of the School of Management
and the effectiveness of the Program.
The urgent needs of the Program are such as to allow little or no time for criteria (2) above. Whatever community service activities which have been submitted to me for my approval and review in allocating available time are so limited as not to be subject to a fair evaluation.
It is my understanding that there has been a substantial reduction of the employee's time devoted to category (1) above. I am not in a position to offer favorable comments on this criteria.
E) Continuing Growth:
The position is one which will require a substantial development for quite some
time. Accordingly the position requires the attributes cited above and a real
professional dedication to the success of the Program in all of its developmental
and administrative aspects. In doing so, it would appear that an incumbent should
consider the position as a career position with ample opportunities for assumption
of greater responsi-bilities, and greater professional satisfaction, with due
recognition of the limitation of financial rewards over the normal increases.
The undertaking of a doctoral program by the incumbent with the related time
away from the office during some prime working time was initiated without consideration
of adverse effects on ongoing work responsibilities. The doctoral program has
raised questions in two regards: (l) the direction of time and effort away from
the critical needs of the position, and (2) the question of a longer term interest
in or commitment to the position. I do not have a complete evaluation in either
of these two matters, but conclude that whatever benefits is to adhere to the
Program has yet to be demonstrated.
F) Other:
The effective conduct of the Office of Undergraduate Affairs involves both pleasant
and unpleasant relation-ships with the primary service consumers, the present
and potential students and with other units in the University such as the Division
of Undergraduate Studies, Admissions and Records, and Millard Fillmore College.
The unpleasant relationships exist primarily in the rejecting of admission applications
to the School and effecting compliance with curriculum, scheduling, retention,
registrations, and course prerequisite requirements and other School policies,
rules and regulations. These unpleasant relationships will be increasing for
some time in the future. There is a serious doubt by this appraiser whether
the employee can personally accept the kind of performance necessary for the
effective administration of the Program over time."
The response to grievant's comments on her performance appraisal was dated May 30, 1975, and signed by Dr. Pegels. It reads as follows:
"The appraiser of Judith Dingeldey, Dr. James Schindler, was appointed to the position of Ms. Dingelday's supervisor on July 1, 1974. Dean Brandenburg made the announcement in a general organization change memo dated June 28, 1974 entitled "Administration of School Degree Programs." This memo was mailed to all School of Management faculty and administrative staff and Ms. Dingeldey has operated under the organizational structure described in the memo.
The appraisal period only covered nine months under the supervision of Dr. Schindler. For the other three months Ms. Dingeldey was supervised by Dr. Carl Pegels. Dr. Pegels reviewed the appraisal prepared by Dr. Schindler and con-curred with it."
The Union on behalf of the grievant asserts several grounds for its argument the State has violated the relevant provisions of the Policies of the Board of Trustees. It claims Dr. Schindler as immediate supervisor did not participate with grievant in the development of a performance program. Dr. Pegel's statement at the hearing that he prepared and wrote the Evaluation of grievant in May of 1975 would not change the facts of who was the Supervisor at the critical period for the evaluation period had expired on March 31, 1975, thus he could not have been the grievant's immediate supervisor at the time of the period of evaluation. According to the Evaluation itself, there was sub-stantial change in the program grievant was accountable for, yet there was no reference to such in her performance program. The Evaluation assesses grievant critically for performance in areas which were not in her only performance program for the period in question. The performance program under which grievant was operating was prepared with Dr. Pegels yet this was not the program under which she was assessed by Dr. Schindler. Finally the "satisfactory" assessment of grievant was a ploy to deny grievant her rights under the Policies of the Board of Trustees.
The State denies in toto the assertions of the Union on behalf of the grievant.
OPINION
The State argues the Arbitrator is limited strictly to the question whether there was a violation by the State of the procedural requirements of Article XII, Title B, Section 4. There are several requirements set out in this procedure. One: there be a formal written evaluation; two: it be by the immediate supervisor; three: it be at least once during the term appoint-ment and as changing conditions permit; four: it be based upon a performance program determined by the immediate supervisor; five: such performance program be determined after discussion with the employee. There are in addition, contained in the provisions, procedural safeguards; that is, the right to review in the event of an unsatisfactory characterization.
The Arbitrator will assume arguendo the State is correct in its assertion that he may only review the procedural aspects of the Evaluation for the period March 31, 1974 through March 31, 1975. Further, that the Memo of Understanding Relating to a System of Evaluation for Professional Employees is not an issue before me. This matter for the purposes of argument is decidable under the Policies of the Board of Trustees and the collective negotiations Agreement. An objective review of this matter must lead to the following conclusions:
One: There was in fact a formal written evaluation;
Two: The Evaluation was in fact by an immediate super-visor. A reading of the Evaluation is self--revelatory that it was prepared in substantial part or at least was a result of the participation to the greatest extent possible by the immediate- supervisor for the major part of the period in question, Dr. Schindler. Allowance has to be made for the unfortunate and emergency situation of Dr. Schindler's illness;
Three: There was at least one evaluation for the term appointment;
Four: It was not based upon a performance program deter-mined by the immediate supervisor after discussion with the employee;
Five: The procedural safeguards provided to an employee for review of an unsatisfactory characterization were frustrated.
The bases of the above conclusions as they relate to violations of the procedure are that an objective reader must conclude after reading the narrative comments of the Evaluation that they have substantially little to do with the Performance Program upon which evaluations are by the Policies, Article XII, Title B, Section 4, to be based. There was a Performance Program determined by grievant and an immediate supervisor at the of the period of evaluation or appraisal, however that Performance Program does not relate in substantial part to the Evaluation for which, ostensibly, it should have provided the base. Comparing the Evaluation with the Performance Program determined after discussion between Dr. Pegels and grievant disclose substantial variances. On merely technical areas the reporting person has been changed. The memo from the Assistant Vice President for Academic Affairs on April 18, 1975 said Schindler was to partici-pate in the Performance Program. In the Performance Program there is reference to long term objectives of formulating a five-year plan of growth and expansion whereas it seems clear the Evaluation was based upon activity or lack of activity in curtailing current growth and expansion. Further, I see nothing in the Performance Program about development of new procedures or evaluating control of actual operations and yet these are apparently major items in the Evaluation of grievant. Further the Evaluation talks of grievant's perhaps inadequate professional training in certain areas about which at most there is only cursory reference in the Performance Program and certainly little about resisting of threats to the program. There would also appear to be a complete turnabout as to "Effectiveness in University Service." The Performance Program would appear to comment positively about cer-tain activities that the Evaluation, if I read the Narrative of the Evaluation correctly, clearly does not find accord. I might note that I find the Evaluation to offer considerable problems in comprehension as to how anyone could assess grievant "satisfactory" upon the detailing of her alleged performance in the Narrative. There is further the positive approval of grievant's pursuing a doctoral program in the Performance Program which is viewed most negatively by the Evaluator. Candidly this reader finds it hard to accept that Dr. Pegels would have written such an Evaluation if it was to be based upon the Performance Program determined between him and the grievant. The Documents come from different worlds and have little relationship except upon the most superficial level.
It would appear the function of a Performance Program was to set certain goals for an employee to meet and the attainment of such or non-attainment of such, would provide criteria for appraisal of the employee performance during the appraisal period. Thus the appraisal must relate to the Performance Program or put another way, the employee should be appraised upon the Performance Program with the goals he or she participated in compiling. To expect an employee to meet goals he or she is not aware of is not fair, and does not comply with what appears to be the clear spirit of the Policies of the Board of Trustees involved here. If there is any question of the Arbitrator not being at liberty to comment on fairness, he may merely note his comments are only in the nature of considering the background of the provision at issue here and its obvious intent. The procedures involved here have been violated; I can see no other reasonable conclusion that can be drawn from a reading of the Appraisal Narrative and the Performance Program, the only one for the period in question. There can be no objection on the ground that such is a substantive determination and thus not for an arbitrator. Under Article 7, Section 7.2(b) of the Contract, I have authority to find a violation of the procedures, and I do in that the appraising supervisor did not participate in the Performance Program upon which the Appraisal or evaluation was to have been based. Although Dr. Pegels may have participated to some degree in the preparation of the Evaluation it was clearly the primary work product of Dr. Schindler.
There is furthermore a violation of the right of review provided for in Article XII, Section 4(b); for the life of me, I do not see how anybody could have appraised an employee satisfactorily on the basis of the Narrative Comments I read in the Evaluation. Regardless, the effect of such was to deny grievant her right of review of the Appraisal under this provision of the Policies. I must admit that after reading the Narrative of the Appraisal I first thought the characterization of grievant as "satisfactory" was a typographical error. It ill behooves the State to argue, as it does, that as grievant got a "satisfactory" rating, Section 4(b) of Article XII, Title B is inapplicable and then saying she should have sought review by the appropriate professional staff committee, and by failing to do so she waived or is estopped from seeking it now. First of all, this is a "Catch 22" argument: one cannot be heard to complain because there was nothing to complain about, but because you have not complained, you have waived your right to complain. Secondly, grievant did raise this point early in the grievance proceedings and was then told she had no right to complain because she received a satisfactory rating. I can see no basis for any kind of estoppel; estoppel ordinarily requires a reliance upon the inaction of a party which results in prejudice to the relying party. Here I can see no possible prejudice even if there was voluntary inaction by the grievant. The argument of estoppel is inapposite under the circumstances of this matter.
In summary, I can see no alternative to a finding that Article XII, Title B, Sections 4 (a) and (b) have been violated in that the Evaluation of grievant involved here was not ". . . based on a performance program determined by the immediate super-visor after discussion with the employee. Further a reasonable reading of the Evaluation must lead to the conclusion that the characterization of the summary finding of grievant as "satisfac-tory," innocent or not, was a frustration of grievant's rights under Article XII, Title B, Section 4(b). Clearly grievant's performance in the Narrative of the Evaluation, by any stretch of a reasonable imagination, was characterized as "unsatisfactory" as that word must mean in any reasonable sense, thus there has been a denial to grievant of her right to review of such report by the appropriate professional staff committee established for such purpose.
The only real problem that the Arbitrator sees in this matter is the one of remedy. The only appropriate remedy and in fact, the only reasonable one, is one which would afford grievant her procedural rights under the contract which have herein been found to have been violated. The wrong done to grievant can only be remedied by having her be reevaluated for a term period in accord with a Performance Program determined by her immediate supervisor after discussions with her, and the only way this can be achieved is for grievant to be placed in statu quo ante and that requires her return to employment for a term of employment equal to the period of time for which she was subject to the herein found procedurally improper evaluation. Thus grievant must be restored to her position and be entitled to a period of evaluation of reasonable approximation to the period of time for which the Evaluation was herein found to be procedurally infirm under the provisions of Article XII, Title B, Sections 4 (a) and (b). As grievant has been denied her rights under the Policies through no fault of her own and as she has diligently attempted to pursue protection of her rights, I must make the return to the position with compensation for any losses she might have sustained as a result of the breach of her rights. I cannot and will not make an award of permanent appointment for that is not at issue here. The Issue here is one of the Evaluation for the period of March 31, 1974 to March 31, 1975, but that period cannot be reconstructed and it would be impossible for the same Evaluation to be redone for the persons who evaluated her for the substantial portion of time involved cannot be deemed to have par-ticipated in a Performance Program nunc pro tunc so the only way to handle this, is to place grievant and the employer in the posi-tions they were at at the beginning of the evaluation period involved here. Grievant must be returned to employment and be permitted to participate in a Performance Program for the appro-priate period of time and be evaluated in accord with the relevant provisions of Article XII, Title B, Section 4.
All competent, material and relevant arguments and evi-dence submitted by the parties in this matter has been considered, although perhaps not set forth or discussed herein at length.
AWARD
The State of New York (State University of New York) did violate Article XII, Title B, Section 4 of the Policies of the Trustees in its annual evaluation of the grievant for the period March 31, 1974 through March 31, 1975. The remedy con-sistent with the Agreement is to restore grievant to employment and provide her with an opportunity to be evaluated for a period approximately similar to the one in question here, which Evalua-tion shall be in accord with Article XII, Title B, Section 4. Further inasmuch as grievant has diligently pursued her grievance and has been prejudiced presumptively by the failure to accord her the rights of Article XII, Title B, Section 4, her return to work should be accompanied by recompense for any loss in income sustained by her during the period since the date of the herein found violation of Article XII, Title B, Section 4, mitigated by any income she may have received during this period from other employment or unemployment insurance, if any.
Dated: December 27, 1976 Respectfully submitted,
(Jonas Aarons)
____________________________
JONAS AARONS, ARBITRATOR
STATE OF NEW JERSEY:
: SS:
COUNTY OF ESSEX :
On this 27 day of December, 1976, before me personally came and appeared JONAS AARONS, to me known and known to me to be the individual described in and who executed the fore-going instrument and he acknowledged to me that he executed the same.
(Pamela Bohres)
NOTARY PUBLIC