University Education Ass'n v. Regents of the University of Minnesota

YETKA, Justice

(dissenting).

After a long history of constructing broadly the mandatory bargaining area under PELRA in order to serve the purpose of resolving labor disputes through negotiation, this court now narrows the scope of mandatory bargaining. I feel that today’s decision is contrary to the purpose of PELRA, and I therefore dissent.

As the majority opinion notes, many inherent managerial policies impinge upon negotiable terms and conditions of employment. The test we have established for determining whether such policies must be negotiated inquires into the degree to which the managerial policy decision is sev-erable from the implementation of that policy. St. Paul Fire Fighters, Local 21 v. City of St. Paul, 336 N.W.2d 301 (Minn.1983).

For example, the decision to use a civil service exam in order to determine whether an employee is eligible for promotion im*543pinges strongly on the terms and conditions of employment. The decision to use the exam is undoubtedly a matter of inherent managerial policy. The fairness of the particular exam used, however, is a separate issue involving the implementation of that policy and is therefore negotiable. International Union of Operating Engineers, Local No. 49 v. City of Minneapolis, 305 Minn. 364, 233 N.W.2d 748 (1975). Similarly, the decision to transfer a number of teachers was a managerial decision directly concerning the educational objectives of a school district, but the “criteria for determining which teachers are to be transferred * * ⅜ involves a decision * * * [that is] negotiable.” Minneapolis Federation of Teachers, Local 59 v. Minneapolis Special School District No. 1, 258 N.W.2d 802, 805 (Minn.1977).

In this case, I have no quarrel with the majority’s classification of the criteria used in promotion and tenure decisions as a matter of inherent managerial policy. Certainly these criteria reflect the educational policy objectives of the Regents. However, I disagree with the conclusion that the griev-ability of individual promotion and tenure decisions is not a mandatory bargaining subject.

There can be no doubt that promotion and tenure directly affect the terms and conditions of employment. The majority has no problems with requiring collective bargaining on the procedures surrounding promotion and tenure decisions, concluding that the procedures are a severable implementation of the general promotion and tenure policy. However, the majority does not believe that grievability is severable from the policy: “Grievability of the ultimate decision would effectively subject the substantive criteria and their application to review * * Majority opinion at 541.

Clearly, the grievance of a particular promotion and tenure decision would not necessitate review of the criteria established for determining tenure; it would only ensure that the established criteria were rationally and fairly applied. Fair procedures can only go so far in guaranteeing just decisionmaking. Precluding grievance of tenure and promotion decisions renders any negotiated procedural fairness meaningless in cases where the procedures have been satisfied, but the criteria have been misapplied or ignored. The grievability of allegedly erroneous decisions is entirely separate from the criteria upon which the University wishes to base those decisions. Because grievability is severable from implementation of the promotion and tenure policy, it is a negotiable term and condition of employment.

I also agree that the criteria, weights and review policies used in faculty evaluations are inherently managerial issues because they are expressions of the educational standards the Regents desire to establish and maintain. The quality of work an employer expects is obviously a managerial decision.

The majority admits that the application of faculty evaluations is an issue that may directly affect a faculty member’s terms and conditions of employment. However, the majority asserts that the fairness of the application of the faculty evaluations is ensured by the negotiability of the tenure and promotion process.

As discussed above, there is only a guarantee of procedural fairness in the tenure and promotion process. There is no assurance that faculty evaluations will be justly made or fairly applied because the grieva-bility of their conclusions and use is precluded from negotiation. The fairness of the application of faculty evaluation standards should be negotiable in a manner similar to the implementation of tenure and promotion decisions.

Thus, I would reverse the trial court on its determination that faculty evaluations and tenure matters are not negotiable. I do not dissent on the question of the academic calendar because, although employees are entitled to negotiate the number of hours worked, it does not follow that employees can negotiate when an employer deems it necessary to report to work.