IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edinboro University of Pennsylvania, :

State System of Higher Education, :

Petitioner :

:

v. : No. 2133 C.D. 2014

:

Association of Pennsylvania State : Argued: September 17, 2015

College and University Faculties, :

Respondent :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

OPINION BY

JUDGE COHN JUBELIRER FILED: November 13, 2015

Edinboro University of Pennsylvania, State System of Higher Education

(University), petitions for review of the November 1, 2014 arbitration award

(Arbitration Award), which sustained a grievance filed by the Association of 

Pennsylvania State College and University Faculties (APSCUF) on behalf of 

University assistant professor, Barbara Miller (Miller), challenging the denial of 

her tenure application by the University. The Arbitration Award directed the 

University to retroactively grant tenure to Miller and make Miller whole for any 

losses. On appeal, the University argues that (1) the Arbitration Award failed to 

draw its essence from the Collective Bargaining Agreement (CBA) because (a) the 

Arbitrator usurped the University President’s (President) judgment in granting 

tenure; (b) Miller did not have a substantive right to permanent employment; and 
2

(c) the Arbitrator could not grant relief in the nature of specific performance; and 

(2) the Arbitration Award violated a well-established, defined public policy. 

Because we conclude that the Arbitrator exceeded her authority in granting Miller 

tenure, we reverse and remand.

In 2008, Miller was hired by the University as a probationary tenure-track 

assistant professor in the Professional Studies Department. (Arbitration Award at 

1.) As a probationary tenure-track faculty member, Miller was subject to the CBA

between APSCUF and the Pennsylvania State System of Higher Education 

(PASSHE). (Arbitration Award at 1.) Miller was also subject to a separate Local 

Agreement between APSCUF and the University. (Arbitration Award at 3.) 

Under the CBA, a tenure-track faculty member is subject to a five-year 

probationary period. (CBA at Art. 15, § B, R.R. at 400a.) During the five-year 

probationary period, an annual performance review and evaluation is conducted 

with regard to the probationary faculty member’s performance. (CBA at Art. 15, § 

B, R.R. at 400a.) The categories of performance review and evaluation are: (1) 

teaching and fulfillment of professional responsibilities; (2) continuing scholarly 

growth; and (3) service contribution to the University and/or community. (CBA at 

Art. 12, § B, R.R. at 389a.) The CBA does not provide specific instructions for 

evaluating the three categories, but states “[when] evaluating the data, the 

appropriate evaluator(s) shall give greater weight to the quality of the performance 

reflected in the data, than to the quantity of the data.” (CBA at Art. 12, § B, R.R. 

at 389a.) The CBA lists several examples of activities that are considered 

“continuing scholarly growth” including: 
3

development of experimental programs (including distance 

education); papers delivered at national and regional meetings of 

professional societies; regional and national awards; offices held in 

professional organizations; invitational lectures given; participation in 

panels at regional and national meetings of professional organizations; 

grant acquisitions; editorships of professional journals; participation 

in juried shows; program-related projects; quality of musical or 

theatrical performances; participation in one-person or invitational 

shows; consultantships; research projects and publication record; 

additional graduate work; contribution to the scholarly growth of 

one’s peers; and any other data agreed to by the FACULTY and 

Administration at local meet and discuss. 

(CBA at Art. 12, § B.2, R.R. at 390a.) During each of the five years of the 

probationary period, the Department Evaluation Committee evaluates the 

probationary faculty member and prepares a recommendation for the Academic 

Dean that either recommends or does not recommend continued employment. 

(CBA at Art. 12, § C.1.c, R.R. at 392a.) The Academic Dean makes a 

recommendation to the President, who then decides whether the probationary 

faculty member’s contract should be renewed for the following year. (CBA at Art. 

12, § C.1.c.3, R.R. at 393a; CBA at Art. 14, § A.4, R.R. at 398a.) 

When the probationary faculty member begins her fifth year of service, she 

is provided notice of her ability to apply for tenure during the fifth year. (CBA at 

Art. 15, § C.1, R.R. at 400a.) If the fifth year probationary faculty member does 

not apply for tenure, then that probationary faculty member’s sixth year of 

employment is her terminal year. (CBA at Art. 15, § C.2, R.R. at 400a.) The three 

criteria for awarding tenure are the same criteria used to annually evaluate 

probationary faculty members. (Arbitration Award at 21; Guidelines and 

Responsibilities for Faculty Applying for Tenure (Local Agreement), R.R. at 318a19a.) In order to be awarded tenure, the probationary faculty member must 
4

demonstrate success in all three criteria in her tenure application. (Arbitration 

Award at 21-22; Local Agreement, R.R. at 318a-19a.) In addition to those listed in 

the CBA, the Local Agreement lists several other criteria to consider when 

evaluating whether a faculty member has exhibited “continuing scholarly growth,” 

including:

a. Graduate work completed

b. Development of new scholarly or practical insights

c. Development of new courses

d. Membership in professional organizations

e. Attendance at professional workshops, institutes or short courses

f. Evidence of active research or development of performing or artistic 

abilities

g. Testimony of experts in the discipline

h. Invited papers delivered, performances given, exhibits held, etc.

i. Professional consultant activities

j. Evidence of current activity which maintains or increases subject 

mastery. 

(Local Agreement, R.R. at 319a.) 

The application for tenure is initially submitted to the Department Tenure 

Committee (DTC) and the Department Chair (Chair), which provide 

recommendations on tenure. (CBA at Art. 15, § E.1, R.R. at 401a.) After the DTC 

and Chair make their recommendations, the application is submitted to the 

University Tenure Committee (UTC), which reviews the application and 

recommendations and provides a tenure recommendation to the President. (CBA 

at Art. 15, § E.2-3, R.R. at 401a.) The President reviews the application and all 

three recommendations, determines whether the criteria for tenure have been met,

and decides whether the applicant should be awarded tenure. (CBA at Art. 15, § 

E.4, R.R. at 401a.)
5

 If the President decides to deny tenure to the applicant, but the applicant has 

received at least two positive recommendations from the three recommending 

bodies (DTC, Chair, UTC), then the applicant has the ability to file a grievance in 

accordance with Article 5 of the CBA. (CBA at Art. 15, § E.4, R.R. at 401a.) 

Moreover, where two of the three recommending bodies provide positive 

recommendations, but the University denies tenure, the applicant may request that 

the President provide reasons, in writing, for denying tenure. (CBA at Art. 15, § 

E.5, R.R. at 401a.) The grievance must proceed through a three-step process 

before reaching an arbitrator. (CBA at Art. 5, § C, R.R. at 371a.) Under the CBA, 

the decision of the arbitrator is final and binding upon the parties, except where 

enactment of the decision would require legislation. (CBA Art. 5, § D, R.R. at 

373a.) The arbitrator, however, does not have authority to add to, subtract from, or 

modify the CBA, and the CBA must constitute the sole basis upon which the 

decision is based. (CBA Art. 5, § D, R.R. at 373a.) 

During Miller’s five-year probationary period, she received five favorable 

evaluations and was unanimously recommended for retention. (Arbitration Award 

at 5-7, 23.) Miller applied for tenure at the beginning of her fifth year and the 

DTC, Chair, and UTC all recommended that she be awarded tenure. (Arbitration 

Award at 2, 8.) The application was then submitted to the President, who denied 

tenure. (Arbitration Award at 2, 8.) In denying tenure, the President wrote that 

“tenure is earned through the demonstration of excellence in teaching, research, 

and service” and that based on her review of Miller’s application, she had decided 

not to grant tenure. (President Letter, May 13, 2013, R.R. at 281a (emphasis 

added).) The letter also informed Miller that the sixth year of her employment 
6

with the University would be her last year. (President Letter, May 13, 2013, R.R. 

at 281a.) Thereafter, pursuant to the CBA, Miller requested that the President 

provide reasons for denying tenure. (Arbitration Award at 9.) The President wrote 

back to Miller that, “[q]uite simply, your scholarly growth is minimal and the 

quality of scholarship that you have produced over your first four and one half (4 

1⁄2) years as a probationary faculty member at Edinboro University...[wa]s not 

adequate for tenure and the privileges pertaining thereto.” (President Letter, May 

29, 2013, R.R. at 282a.) The President also wrote that the quantity and quality of 

Miller’s scholarship was insufficient for someone who spent four and a half years

on the tenure track and that her scholarly contributions had not progressed to a 

level where tenure was warranted. (President Letter, May 29, 2013, R.R. at 282a.) 

Miller filed a grievance based on the tenure denial, which proceeded to 

arbitration. (Arbitration Award at 9.) The Arbitrator concluded that the main issue 

for disposition was the meaning of the term “continuing scholarly growth” in the 

CBA and whether the President erred in determining that Miller had not met the 

criterion for “continuing scholarly growth” in her tenure application. (Arbitration 

Award at 21-22.) It was undisputed that Miller’s qualifications in the other two 

criteria—teaching and service contribution—were sufficient. (Arbitration Award 

at 3.) The Arbitrator determined that “continuing scholarly growth” is more 

expansive than simply just “research” and that “the CBA and the Local Agreement 

list a broad variety of other paths to satisfaction of that criterion.” (Arbitration 

Award at 22.)
7

The Arbitrator determined that, during Miller’s probationary years, the 

feedback she received in her annual evaluations signaled that she was satisfying 

the contractual criterion of continuing scholarly growth and that she was never 

informed that she was not meeting the standards for continuing scholarly growth.

(Arbitration Award at 23.) The Arbitrator found that Miller performed well in 

several categories that are considered continuing scholarly growth, including 

“achievement in the development of experimental programs (including distance 

education); papers delivered at national and regional meetings of professional 

societies; offices held in professional organizations; invitational lectures given; 

participation in panels at regional and national meetings of professional 

organizations; grant acquisitions; consultantships; and contribution to the scholarly 

growth of her peers.” (Arbitration Award at 23.) The Arbitrator found that the 

DTC, Chair, UTC, and four different deans all found that these activities 

constituted continuing scholarly growth and that Miller had catalogued these 

activities in her tenure application. (Arbitration Award at 23.) 

The Arbitrator determined that under Article 15 of the CBA she had the 

authority to review tenure denials. (Arbitration Award at 24.) The Arbitrator 

concluded that although “the ultimate decision is left to the [P]resident . . . it 

cannot be made in disregard of applicable contractual standards and past practice.” 

(Arbitration Award at 24.) The Arbitrator determined that “[d]uring the 

probationary period . . . evaluators invariably found [Miller’s] progress fully 

satisfactory with respect to all three of the relevant contractual criteria, including 

continuing scholarly growth,” and that the performance reviews informed her that 

she was doing what was expected of a tenure candidate. (Arbitration Award at 26
8

(emphasis added).) The Arbitrator concluded that the President could deny “tenure 

only by unreasonably narrowing and/or redefining the criterion of continuing 

scholarly growth” to only include “research” and that, accordingly, the President 

violated the CBA in denying tenure. (Arbitration Award at 22, 26.) 

The Arbitrator next addressed the appropriate remedy for Miller. 

(Arbitration Award at 26.) PASSHE asserted that the Arbitrator did not have the 

authority to award tenure and that the only proper remedy was to return Miller to 

probationary status at the University and allow her to reapply for tenure. 

(Arbitration Award at 26.) In contrast, APSCUF argued that the Arbitrator could 

award tenure. (Arbitration Award at 26.) The Arbitrator determined that, because 

the President had misapplied “the CBA criterion for continuing scholarly growth,” 

the President could no longer serve as an objective decision maker. (Arbitration 

Award at 28.) Thus, the Arbitrator concluded that

[n]o useful purpose would be served by returning the tenure 

application to the [P]resident for further consideration, since she ha[d] 

already rejected [Miller’s] record of accomplishments as well as the 

uniform judgment of the various reviewing entities throughout the

probationary period that [Miller’s] record satisfied the contractual 

criterion for tenure. 

(Arbitration Award at 28.) 

The Arbitrator determined that, because the CBA placed no limits on 

arbitrators’ remedial authority, arbitrators are “authorized to grant tenure when 

reconsideration by the [P]resident is not a practical remedy.” (Arbitration Award 

at 28.) Therefore, the Arbitrator granted Miller tenure retroactively and directed 
9

the University to make Miller whole for any losses. (Arbitration Award at 29.) 

The University now petitions this Court for review of the Arbitration Award.

It is well-established that, in reviewing an arbitration award, this Court 

applies the two-prong “essence test” analysis. State System of Higher Education 

(Cheyney University) v. State College University Professional Association (PSEANEA), 743 A.2d 405, 413 (Pa. 1999). “First, the court . . . determine[s] if the issue 

as properly defined is within the terms of the [CBA]. Second, if the issue is 

embraced by the agreement, and thus, appropriately before the arbitrator, the 

arbitrator’s award will be upheld if the arbitrator’s interpretation can rationally be 

derived from the [CBA].” Id. Thus, this “[C]ourt will only vacate an arbitrator’s 

award where the award indisputably and genuinely is without foundation in, or 

fails to logically flow from, the [CBA].” Id. 

On appeal, the University does not challenge the Arbitrator’s interpretation 

of the term “continuing scholarly growth” in the CBA or her conclusion that the 

President violated the terms of the CBA, but mainly challenges the actual award of 

tenure to Miller. The University argues that the award of tenure fails the essence 

test because it is not rationally derived from the CBA. An arbitrator does not have 

the academic expertise to evaluate the substance of a tenure application. The 

University contends that, because the Arbitrator engaged in a substantive review of 

the tenure application and determined that the President did not properly evaluate

Miller’s “continuing scholarly growth,” the Arbitrator effectively substituted her 

academic judgment for that of the President. 
10

The University acknowledges that an arbitrator has the authority to review a 

President’s tenure decision and may even reinstate a probationary faculty member 

to the status quo ante. However, the University relies on Bloomsburg University 

of State System of Higher Education v. Association of Pennsylvania State College 

and University Faculties, 552 A.2d 1180 (Pa. Cmwlth. 1989), and Slippery Rock 

University of Pennsylvania, Pennsylvania State System of Higher Education v. 

Association of Pennsylvania State College and University Faculty (Pa. Cmwlth., 

No. 1648 C.D. 2008, filed May 12, 2009) (Slippery Rock II),1to argue that an 

arbitrator does not have the authority to actually award tenure. The University 

contends that this Arbitration Award is the only time in the history of the dealings 

between the parties that an arbitrator has unconditionally awarded tenure and 

granted permanent employment to a probationary faculty member. While it is the 

Arbitrator’s prerogative to disagree with the President’s decision to deny Miller 

tenure, the Arbitrator lacks the authority under the CBA to grant tenure. As in 

previous cases, here the proper remedy is to “reinstate[] Miller to her fifth year 

probationary status, ma[k]e her whole for any lost wages, and provide[] her the 

ability to reapply for tenure.” (University’s Br. at 30.) Accordingly, the 

University argues that the matter should be vacated and remanded to the Arbitrator 

for the entry of an award within the scope of her authority. 

In contrast, APSCUF maintains that the Arbitration Award satisfies the 

“essence test.” APSCUF contends that other arbitration awards involving the same 

 

1

Pursuant to Section 414 of this Court’s Internal Operating Procedures, an unreported 

panel decision issued by this Court after January 15, 2008 may be cited “for its persuasive value, 

but not as binding precedent.” 210 Pa. Code § 69.414.
11

CBA have awarded tenure or recognized arbitrators’ authority to grant tenure. 

Here, because the President’s conduct violated the CBA and the President’s 

judgment was tainted, it was appropriate to grant tenure to Miller rather than allow 

her to resubmit her tenure application to the President. APSCUF contends that the 

Arbitrator’s decision to grant Miller tenure was rationally derived from the CBA

because the CBA places no limits on the Arbitrator’s ability to fashion a remedy 

when the CBA is violated regarding tenure.

APSCUF also contends that the Arbitrator did not substitute her judgment 

for the President’s in granting Miller tenure, but instead based her decision on 

Miller’s several evaluations conducted during the probationary period, which 

determined that she satisfied the criterion for continuing scholarly growth. In 

awarding tenure, the Arbitrator did not go through Miller’s tenure application and 

re-evaluate the submitted materials, but instead relied solely on the judgment of the 

other evaluators who found that Miller was worthy of tenure. The Arbitrator 

found that, but for the President’s misapplication of the criterion for “continuing 

scholarly growth” in the CBA, Miller would have been granted tenure. APSCUF 

asserts that the CBA explicitly allows probationary faculty members to file 

grievances from denials of tenure when at least two of the three recommendations 

are in favor of tenure; therefore, to argue that only the President may grant tenure 

denies the contractual right bestowed upon Miller. 

Upon review, we find the University’s arguments persuasive. Pursuant to 

Article 15, Section E.4 of the CBA, 
12

[t]he President shall grant tenure effective as of the beginning of the 

next academic term to those FACULTY MEMBERS whom he/she 

approves and such decisions shall not be subject to the provisions of 

Article 5, GRIEVANCE PROCEDURE AND ARBITRATION. 

However, if at least two (2) of the three (3) recommendations 

(department committee, University-wide committee, department 

chairperson) are positive with respect to the granting of tenure and the 

President denies tenure, the FACULTY MEMBER shall have the 

right to grieve the denial of tenure in accordance with the terms of 

Article 5, GRIEVANCE PROCEDURE AND ARBITRATION.

(CBA at Art. 15, § E.4., R.R. at 401a.)

In Bloomsburg University, 552 A.2d at 1181-82, an arbitrator decided a 

grievance brought pursuant to a CBA containing the same language as Article 15. 

Like the instant case, in Bloomsburg University a faculty member challenged his 

tenure denial and the arbitrator concluded that Bloomsburg University had violated 

the CBA by not considering all of the relevant evidence submitted by the faculty 

member as part of his tenure application. Id. at 1181. Rather than grant tenure, the 

arbitrator remanded the matter to Bloomsburg University to reprocess the faculty 

member’s tenure application by considering the other relevant evidence submitted 

with the application. Id. The award also reinstated the faculty member to fifth 

year probationary status in the interim. Id. On appeal, Bloomsburg University 

argued, inter alia, that the arbitrator exceeded his authority because the award 

effectively created an open ended tenure review process whereby the grievant 

would gain a sixth year of probationary status, in clear violation of the terms and 

conditions of the CBA. Id.

We determined that “[t]he arbitrator must be permitted a great degree of 

discretion in fashioning an award, consistent with the intent of the agreement, that 
13

resolves the situation in a just manner.” Id. at 1182. We concluded that, “[i]n light 

of the fact that [the arbitrator] remedied a specific violation of the agreement and 

did not explore territories beyond his area of expertise, in that he expressly 

declined to evaluate the tenure application, he did not exceed his authority and 

there is no need for this court to disturb the award.” Id. (emphasis added). Thus, 

we upheld the arbitrator’s review of a tenure denial, where the arbitrator reinstated 

the grievant as a probationary faculty member and allowed the grievant to reapply 

for tenure. Id. 

Likewise, in the unreported opinion of Slippery Rock II, this Court reviewed 

an arbitration award involving essentially the same issues as the instant matter, i.e.

whether the grievant had satisfied the criterion for “continuing scholarly growth,” 

and whether the arbitration award failed to satisfy the essence test. Slippery Rock 

II, slip op. at 2, 15. In that case, the President of Slippery Rock University denied 

tenure after the UTC recommended denying tenure due to inadequate scholarly 

growth. Id., slip op. at 6-7. The arbitrator concluded that the denial of tenure was 

not supported by the record, violated the CBA, and, thus, ordered the grievant to 

“be reinstated to her status quo ante as a probationary faculty member, and that she 

be deemed eligible for reconsideration for tenure.” Id., slip. op. at 7 (quotation 

omitted). After the matter was remanded to the arbitrator following a separate 

appeal,2the arbitrator determined that APSCUF met its burden of demonstrating 

 

2

Following the initial issuance of the arbitration award, Slippery Rock University 

appealed to this Court in Slippery Rock University of Pennsylvania, Pennsylvania State System 

of Higher Education v. Association of Pennsylvania State College and University Faculties, 916 

A.2d 736, 743 (Pa. Cmwlth. 2007), arguing that the arbitrator applied the incorrect burden of 

proof in reviewing the tenure denial. We concluded that the arbitrator incorrectly placed the 

(Continued...)
14

that the grievant met the performance review criteria for tenure, including 

scholarly growth, and, accordingly, awarded the same remedy as previously. Id., 

slip. op. at 9, 18.

On appeal, Slippery Rock University argued that the arbitration award 

violated public policy and did not logically flow from the CBA. Id., slip. op. at 14-

15. After holding that the arbitration award did not violate public policy, we 

assessed whether the arbitration award was rationally derived from the CBA. Id., 

slip. op. at 15. The arbitrator had concluded that the UTC and the President both 

failed to consider many of the grievant’s activities as scholarly growth, even 

though such activities were considered scholarly growth under the CBA. Id., slip. 

op. at 16-18. We determined that the arbitrator completely understood the 

requirements for tenure under Articles 12 and 15 of the CBA, and that the 

arbitrator’s conclusion that the grievant satisfied the scholarly growth requirements 

for tenure was rationally derived from the CBA. Id., slip. op. at 16-18. We also 

upheld the remedy provided to the grievant by the arbitration award. Id., slip. op. 

at 19. While Slippery Rock II is not precedential, we find persuasive its

conclusion that an arbitrator has the authority to review a President’s denial of 

tenure to determine whether the correct criteria for tenure were applied, and that an 

arbitrator may allow a grievant to reapply for tenure if the incorrect criteria were 

applied. 

 

burden of proof on Slippery Rock University and, thus, vacated the award and remanded the 

matter so that the arbitrator could place the burden of proof on APSCUF. Id.
15

More recently in East Stroudsburg University of Pennsylvania, State System 

of Higher Education v. Association of Pennsylvania State College and University 

Faculties, ___ A.3d ___ , ___ (Pa. Cmwlth., No. 85 C.D. 2015, filed October 19, 

2015), slip op. at 5, this Court upheld an arbitrator’s award ordering, inter alia, that 

the grievant be reinstated with the opportunity to re-apply for tenure. In 

accordance with our precedent, the arbitrator did not award tenure outright after 

determining that the University President did not comply with the terms of the 

CBA in denying tenure to the grievant. Id. 

Accordingly, pursuant to our decisions in Bloomsburg University, Slippery 

Rock II, and East Stroudsburg, we conclude that the Arbitrator in the instant matter 

did not err to the extent that she reviewed the President’s denial of tenure and 

concluded that the President did not apply the correct criterion for “continuing 

scholarly growth.” However, here, in contrast with Bloomsburg University, 

Slippery Rock II, and East Stroudsburg, the Arbitrator did not order that Miller be 

reinstated and allow her to reapply for tenure, but instead granted Miller tenure

outright. We conclude that the Arbitrator’s actual award of tenure was not 

rationally derived from the CBA. 

Article 15 of the CBA explicitly states that “[t]he President shall grant 

tenure . . . to those FACULTY MEMBERS whom he/she approves.” (CBA at Art. 

15, § E.4., R.R. at 401a (emphasis added).) While Article 15 allows faculty 

members to file grievances from tenure denials where two of the three 

recommendations are positive, under Article 15 the President decides whom to 

approve for tenure and there is nothing in the CBA that permitted the Arbitrator to 
16

substitute her judgment for that of the President and grant tenure where tenure had 

already been denied. Although in East Stroudsburg, we also upheld the arbitrator’s 

award mandating that someone other than the University President review the 

grievant’s tenure application, that decision does not compel a different result in the 

instant matter. 

The salient issue here is whether the Arbitrator had the authority to 

reevaluate Miller’s tenure application and actually award tenure. As we have 

discussed, no binding precedent of this Court has held that an arbitrator has the 

authority to reevaluate a tenure application and actually award tenure. As we 

concluded in Bloomsburg University, an arbitrator does not exceed his authority so

long as he does “not explore territories beyond his area of expertise” or “evaluate 

the tenure application.” Bloomsburg University, 552 A.2d at 1182. After the 

Arbitrator concluded that the President applied the wrong criterion for “continuing 

scholarly growth” when evaluating Miller’s tenure application, and that the CBA 

had been violated, the Arbitrator went beyond her expertise in examining Miller’s 

annual performance evaluations and concluding that Miller had demonstrated 

sufficient scholarly growth to justify granting tenure. Like the cases previously 

discussed, after concluding that the CBA had been violated, the Arbitrator was 

permitted only to reinstate Miller to probationary faculty member status and allow 

her to reapply for tenure.

Accordingly, because we conclude that the Arbitrator exceeded her authority

in granting tenure, we reverse the Arbitration Award and remand this matter to the 

Arbitrator to issue an award (1) reinstating Miller to probationary status; (2) 
17

allowing Miller to reapply for tenure; and (3) instructing the President to apply the 

correct criterion for “continuing scholarly growth” when evaluating Miller’s 

resubmitted tenure application.3

________________________________

 RENÉE COHN JUBELIRER, Judge

 

3 Because we conclude that the Arbitrator exceeded her authority in granting tenure, it is 

unnecessary to address the University’s other arguments.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edinboro University of Pennsylvania, :

State System of Higher Education, :

Petitioner :

:

v. : No. 2133 C.D. 2014

:

Association of Pennsylvania State :

College and University Faculties, :

Respondent :

O R D E R

NOW, November 13, 2015, the November 1, 2014 Arbitration Award,

entered in the above-captioned matter, is hereby REVERSED and this matter is 

REMANDED for further proceedings consistent with the foregoing opinion. 

Jurisdiction relinquished. 

________________________________

 RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edinboro University :

of Pennsylvania, State System :

of Higher Education, :

Petitioner :

:

v. :

:

Association of Pennsylvania :

State College and University :

Faculties, : No. 2133 C.D. 2014

Respondent : Argued: September 17, 2015

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

DISSENTING OPINION BY

PRESIDENT JUDGE PELLEGRINI FILED: November 13, 2015

The sole issue in this case is whether an arbitrator may award tenure 

when she finds that an application for tenure was denied only because an improper 

criterion was used to review it. The majority agrees that an arbitrator had the 

power to review a tenure denial by Edinboro University of Pennsylvania, State 

System of Higher Education’s (Edinboro) President, and does not dispute the 

arbitrator’s authority based upon her finding that the President did not apply the 

correct criterion in concluding that Grievant did not demonstrate “continuing 

scholarly growth,” to direct that Grievant be reinstated as a probationary employee 

and resubmit her tenure application. However, the majority finds that the arbitrator 
DRP - 2

is without power to grant tenure, as she did here, because that decision is within the 

sole discretion of the President. Because that holding is directly contrary to our 

recent decision in East Stroudsburg University of Pennsylvania, State System of 

Higher Education v. Association of Pennsylvania State College and University 

Faculties, ___ A.3d ___ (Pa. Cmwlth., No. 85 C.D. 2015, filed October 19, 2015), 

I respectfully dissent.

Edinboro hired Barbara Miller, Ph.D. (Grievant) as an assistant 

professor on the tenure track in its Professional Studies Department’s Educational 

Leadership Program effective August 16, 2008. Following 4.5 years of 

probationary employment and a promotion to associate professor in 2011,1

 

1 At the time Grievant was hired in 2008, Jeremy Brown served as Edinboro’s President. 

Grievant was promoted in 2011 under the tenure of a subsequent President, James Moran. 

President Moran’s letter promoting Grievant stated, in relevant part, “Your achievements have 

provided you recognition, and they have also prepared you for the increased obligations of 

advanced rank. I know that you will continue scholarly growth in your contributions to your 

profession and Edinboro University.” (Reproduced Record [R.R.] at 322a.)

Similarly, the Department Chairperson, Dr. Marian S. Beckman, found evidence of 

Grievant’s scholarly growth sufficient to support her promotion based on her doctorate and 

certifications, her contributions to the National Recognition Report submitted for review of the 

K12 Principal and Superintendent Programs which were nationally recognized in 2007, her 

group deliberations which resulted in the development of the Educational Leadership doctoral 

program, her work in revising the Pennsylvania Department of Education (PDE)’s Principal and 

Superintendent Program Guidelines, her invitation to consult with the local school district, and 

her active memberships in organizations related to education where she held leadership 

positions.

The Department Promotion Committee observed Grievant’s scholarly growth based on 

her expertise in project implementation, pre-planning, development, and implementation of 

funded programs, accreditation reports, PDE mandated curriculum changes, her coordination of 

the proposal that brought Dr. Victoria Bernhardt to campus, her “significant contributions 

representing the university leadership programs at the state level via PASSHE system 

(Footnote continued on next page...)
DRP - 3

Grievant applied for tenure pursuant to the terms of the collective bargaining 

agreement (CBA) to which Edinboro and Grievant’s collective bargaining agent, 

the Association of Pennsylvania State College and University Faculties 

(APSCUF), are parties.

Regarding the procedure for tenure, Article 15(E) of the CBA 

provides that the applicant’s Department Tenure Committee must first provide to 

the University-wide Tenure Committee a list of all fifth-year, probationary faculty 

members who have applied for tenure and whom the Department Tenure 

Committee recommends for tenure. At the same time, the Department Tenure 

Committee Chairperson must make an independent recommendation. Next, the 

University Tenure Committee must submit its recommendations to the President, 

who “shall grant tenure effective as of the beginning of the next academic term to 

those FACULTY MEMBERS whom he/she approves.” (R.R. at 401a.) In cases 

where two of the three recommendations made to the President are positive and the 

President denies tenure, the applicant may file a grievance in accordance with the 

procedure set forth in Article 5 of the CBA, providing for a three-step resolution 

process. If the grievance is not resolved in these steps, grievances proceed to 

binding arbitration as follows:

Step Four – Binding Arbitration. If the Grievance 

has not been resolved at Step Three, [the Association], 

 

(continued...)

competitions directly related to PDE reports and initiatives,” use best practices, and her skill base 

in the area of evaluation. (Id. at 326a.)
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but not an individual FACULTY MEMBER or group of 

FACULTY MEMBERS, has the sole right to refer a 

grievance to arbitration and to conduct the proceeding as 

a party, and shall within forty (40) calendar days of the 

receipt of the written response from Step Three submit a 

written notice to the Chancellor of the STATE SYSTEM 

or his/her designee of its intent to submit the grievance to 

binding arbitration. It is understood that only [the 

Association], or counsel for [the Association], may 

present the case in support of any grievance at 

arbitration.

* * *

The decision of the arbitrator shall be final and 

binding upon the parties, except where the decision 

would require an enactment of legislation in which case 

the decision shall be binding only if and when such 

legislation is enacted. The arbitrator shall have no 

authority to add to, subtract from, or modify this 

Agreement. Each case shall be considered on its merits 

and this collective bargaining agreement shall constitute 

the sole basis upon which the decision shall be 

rendered.... The arbitrator shall confine himself/herself 

to the precise issue the parties have agreed to submit for 

arbitration and shall have no authority to determine any 

other issues not so submitted to him/her....

(Id. at 372a373a.).

After Grievant submitted her application to the Department of 

Professional Studies Tenure Committee, its Chair, Dr. Susan H. Packard, “strongly 

recommend[ed]” Grievant for tenure. Likewise, Dr. Marian S. Beckman, 

Chairperson of the Department of Professional Studies, recommended Grievant for 

tenure, as did the University Tenure Committee by unanimous vote. However,

Edinboro’s President, Julie B. Wollman, Ph.D., ultimately denied Grievant tenure,
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advising, “[q]uite simply, your scholarly growth is minimal and the quality of 

scholarship that you have produced over your first four and one half (41⁄2) years as 

a probationary faculty member at Edinboro University of Pennsylvania is not 

adequate for tenure and the privileges pertaining thereto.” (Id. at 282a.) President 

Wollman elucidated that her review was based on both the quality and quantity of 

Grievant’s scholarly products, and she stated that Grievant’s application “fails to 

demonstrate that [her] scholarly contributions have progressed during [her] 

probationary period to a level where, in my professional judgment, tenure is 

warranted.” (Id.)

APSCUF filed a grievance contending that Edinboro violated Articles 

122and 15 of the CBA when it denied Grievant tenure. The matter eventually 

 

2

In addition to fulfillment of professional responsibilities, effective teaching, and 

contributions to the university and community, applicants for tenure must demonstrate 

continuing scholarly growth. Article 12(B)(2) of the CBA regarding a faculty’s performance 

reviews and evaluations lists the following as relevant factors in considering an applicant’s 

continuing scholarly growth:

development of experimental programs (including distance 

education), papers delivered at national and regional meetings of 

professional societies; regional national awards; offices held in 

professional organizations; invitational lectures given; 

participation in panels at regional and national meetings of 

professional organizations; grant acquisitions; editorships of 

professional journals; participation in juried shows; programrelated projects; quality of musical or theatrical performances; 

participation in one-person or invitational shows; consultantships; 

research projects and publication records; additional graduate 

work; contribution to the scholarly growth of one’s peers; and any 

other data agreed to by the FACULTY and Administration at local 

meet and discuss [sic].

(Footnote continued on next page...)
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proceeded to arbitration where the parties stipulated to the following issue: “Did 

[Edinboro] violate the [CBA] by denying tenure to the [G]rievant, and, if so, what 

shall the remedy be?” (Arbitration Award, at 1.) The pertinent inquiry before this 

Court is whether the arbitrator was authorized to award tenure under the CBA or 

whether such a decision is solely within the purview of the President.

East Stroudsburg University of Pennsylvania, State System of Higher 

Education v. Association of Pennsylvania State College and University Faculties, 

___ A.3d ___ (Pa. Cmwlth., No. 85 C.D. 2015, filed October 19, 2015), a recent 

decision by this Court, involved identical language in the same CBA and the very 

issue before us now. In that case, the arbitrator ordered that a professor whose 

tenure application was improperly denied by a university president also 

purportedly based upon a lack of scholarly growth be provided the opportunity to 

re-apply for tenure, and that his application be reviewed by an independent official 

other than the university president. Id., slip op. at 5. In affirming the award, we 

explained that “the Arbitrator created an appropriate remedy to ensure that 

Grievant’s new tenure application would be fairly evaluated,” despite the fact that 

the CBA did not expressly permit the arbitrator to order review by someone other 

than the university president. Id., slip op. at 8. This holding makes clear that a 

university president does not have absolute and exclusive authority over decisions 

regarding tenure applications, which are subject to substantive review by others.

 

(continued...)

(R.R. at 390a.) It also provides that “[w]hen evaluating the data, the appropriate evaluator(s) 

shall give greater weight to the quality of the performance reflected in the data, than to the 

quantity of the data.” (Id. at 389a.)
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Moreover, our decision in Bloomsburg University of Pennsylvania of 

the State System of Higher Education v. Association of Pennsylvania State 

Colleges and University Faculties, 552 A.2d 1180 (Pa. Cmwlth. 1989), does not 

stand for the proposition that an arbitrator is limited to remanding a tenure 

application to the university for reconsideration because a university’s president 

retains sole control over employment decisions. In Bloomsburg, a tenure-track 

professor applied for and was denied tenure by the university president after the 

department committee and department chair recommended that tenure be granted 

but the university-wide committee disagreed. Id. at 1181. Ultimately, the 

arbitrator resolved the grievance pursuant to a CBA containing the same language 

at issue here, ordering the professor’s reinstatement to probationary status and 

granting him the right to reapply for tenure because the arbitrator found that the 

university failed to consider all of the relevant evidence submitted. Id. In

affirming the arbitrator’s award, we stated:

We recognize that the agreement stipulates that “[t]he 

arbitrator shall have no authority to add to, subtract from, 

or modify this Agreement.” Article XV, section D. We 

also recognize that, unless the agreement specifically 

addresses the decided award, any award could be 

construed as a modification.

The arbitrator must be permitted a great degree of 

discretion in fashioning an award, consistent with the 

intent of the agreement, that resolves the situation in a 

just manner. In light of the fact that Arbitrator Jaffe 

remedied a specific violation of the agreement and did 

not explore territories beyond his area of expertise, in 

that he expressly declined to evaluate the tenure 

application, he did not exceed his authority and there is 

no need for this court to disturb the award.
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Id. at 1182. Unlike this appeal, where all of the reviewing entities recommended 

the grant of tenure and the President applied the wrong criterion, in Bloomsburg, 

the university-wide committee and the president failed to consider relevant 

evidence. The arbitrator in that case fashioned a remedy fitting the facts as did the 

arbitrator here.

Because East Stroudsburg holds that the President does not have sole 

and exclusive authority to grant tenure, I would hold that the arbitrator acted within 

her authority in fashioning the remedy in this case. In accordance with our longestablished precedent, the arbitrator must be given the flexibility to order this 

remedy. Where, as here, it is necessary to the just resolution of the grievance and 

thereby draws its essence from the CBA, I would not disturb the award.

 

DAN PELLEGRINI, President Judge