November 1, 2010

Kenneth S. Carlson certified mail, return receipt requested

Administrative Law Judge

State of New York

Public Employment Relations Board

80 Wolf Road, Suite 500

Albany, NY 12205-2656

RE: PERB U-28826

UUP v. State of New York

(State University of New York at Buffalo)

Dear Judge Carlson:

Enclosed please find an original and four (4) copies of Charging Party’s brief in the above

captioned matter. I have also enclosed proof of service of a copy of the brief upon Lynn Vance,

Esq., counsel to Respondent.

Yours truly,

Tara Singer-Blumberg

Labor Relations Specialist

Enclosures

cc: Lynn Vance

Jeff Malkan

Marilyn Raskin-Ortiz

Martin Coffey

Mike Behun

Paul Zarembka

TSB/lb cwa1141/afl-cio

STATE OF NEW YORK

PUBLIC EMPLOYMENT RELATIONS BOARD

In the Matter of:

UNITED UNIVERSITY PROFESSIONS,

NEW YORK STATE UNITED TEACHERS,

AFT, LOCAL 2190, AFL-CIO,

Charging Party,

-and- Case No. U-28826 AFFIDAVIT OF SERVICE

STATE OF NEW YORK (State University BY MAIL

Of New York at Buffalo)

Respondent.

STATE OF NEW YORK )

: ss.

COUNTY OF ERIE )

Tara Singer-Blumberg, being duly sworn, deposes and says:

1. That deponent is not a party to this action, is over 18 years of age, and resides at

55 Rosewood Drive, Williamsville, NY.

2. On the 1st day of November, 2010, deponent served the within brief upon Lynn

Vance, counsel to Respondent in this action, at the address designated by

Respondent for that purpose, by depositing a true copy of same, enclosed in a

post-paid wrapper, in a post office box under the exclusive care and custody of

the United States Postal Service within the State of New York, by certified mail,

return receipt requested.

________________________________

Tara Singer-Blumberg

Subscribed and sworn to before me this

day of , .

________________________________

Notary Public

State of New York

Public Employment Relations Board

IN THE MATTER OF

UNITED UNIVERSITY PROFESSIONS,

NEW YORK STATE UNITED TEACHERS,

AFT, LOCAL 2190, AFL-CIO,

Charging Party,

-and-

STATE OF NEW YORK (State University PERB Case No. U-28826

of New York at Buffalo) Respondent.

__________________________________________________________________________

BEFORE: Kenneth S. Carlson

Administrative Law Judge

A BRIEF ON BEHALF OF

CHARGING PARTY

United University Professions

Submitted By:

Tara Singer-Blumberg

Labor Relations Specialist

NYSUT Regional Office

270 Essjay Road

Williamsville, NY 14221

(716) 634-7132

Date: November 1, 2010

1

PRELIMINARY STATEMENT

The instant matter is a proceeding upon an improper practice charge brought by the

United University Professions, NYSUT, AFT (Charging Party) pursuant to Article 14 of the

Civil Service Law (Taylor Law) against the State of New York, State University of New York at

Buffalo claiming a violation of §209-a.1(a) and (c) (ALJ1)1. An answer was filed denying that

the Respondent's actions violated the Taylor Law and raising certain affirmative defenses

(ALJ4). A hearing was held before Administrative Law Judge Kenneth S. Carlson on November

17, 2009, March 31, 2010 and April 1, 2010.

STATEMENT OF FACTS

The claims in the instant matter concern certain actions taken by the Respondent in

terminating Jeffrey Malkan (Petitioner)’s employment as a clinical professor at the State

University of New York at Buffalo Law School (UB).

Petitioner was hired by UB on September 1, 2000, on a joint appointment (CP1). His

academic appointment was as a clinical associate professor. He also held an administrative

position as Director of the Research and Writing (R&W) program. Petitioner continued in this

dual appointment (CP3, CP4) until he was summarily removed as Director by the Dean of the

Law School, Makau Mutua, (Dean) during the school’s spring break in March 2008 (J2, J3).

The Director position was an at-will position. Due to the summary way that he was

removed, an inference of wrongdoing was sensed by the faculty at large. Given the negative

impact on Petitioner’s reputation as a result, he requested assistance from his Union

representatives to advocate on his behalf to secure a name clearing hearing and announcement to

the faculty. Tara Singer-Blumberg, the United University Professions’ (UUP) labor relations

specialist made numerous requests to various people in UB administration for this to occur (J4, J

5, J6). Respondent refused to do so. As the pressure imposed by the Union mounted, Petitioner

was non-renewed (J7).

1 “ALJ#” denotes ALJ exhibits, “J#” denotes jointly admitted exhibits, “CP#” denotes Charging Party

exhibits, “R#” denotes Respondent exhibits, and “T#” refers to pages in the hearing’s transcript.

2

Petitioner’s appointment letter in effect at the time of his non-renewal was a 3-year

appointment with a two-year automatic extension (CP3, CP4). It had been signed by the then

Dean of the Law School, Nils Olsen. As a clinical associate professor, Petitioner was not

eligible for tenure. However, the American Bar Association (ABA) guidelines require tenure-

like protection to faculty on non-tenure track lines. Petitioner’s appointment letter provided

extensive detail on both Petitioners’ appointment expectations, as well as on what specific

limited grounds he could be non-renewed.

When Petitioner was non-renewed, the specific reason provided by the Dean was that the

law school had terminated the R&W program (J7). In fact, the R&W program was not

terminated. On June 19, 2008, the Dean had appointed a professor to study the feasibility of

making changes to the program (CP6). Any proposal would then be presented to the full faculty

for a vote. Almost one year later, in April 2009, the faculty was finally presented with a

proposal, which did not materially change any aspect of the R&W program (CP7). The same

number of instructors is being employed, using the same curriculum, schedule, and textbooks as

in prior years (CP13, CP14). The only change was that the R&W program was put under the

administrative “umbrella” of a “skills program” which now included second and third year

course offerings (CP7).

The justification that the R&W program was terminated is completely false, not

supported by the facts, and pretextual. As a result, Petitioner asserts that Respondent’s non-

renewal of Petitioner is violative of the Act.

3

DISCUSSION

It is well-settled PERB precedent that a Charging Party must prove three elements by a

preponderance of the evidence in order to establish a prima facie improper motivation charge:

(1) the employee was actually engaged in protected activity; and

(2) the employer knew of the protected activity; and

(3) the employer took adverse action against the employee because of the engagement in

such protected activity.2

Proof of unlawful motivation in violation of §209-a.1(a) and (c) of the Act can be

demonstrated through direct evidence or circumstantial evidence.3 The circumstantial evidence

presented to prove a prima facie case must give rise to an inference that “but for” the protected

activity the employer would not have engaged in the adverse employment action.

If sufficient circumstantial evidence is introduced to establish such an inference, the

burden of persuasion shifts to the Respondent to rebut the inference by presenting evidence

demonstrating that its conduct was motivated by a legitimate non-discriminatory business

reason.4

If the Respondent presents evidence of a legitimate non-discriminatory reason, then the

burden shifts back to the Charging Party to establish that the articulated non-discriminatory

reason is pretextual.5

A violation will be found where the Charging Party has proven, by a preponderance of

the evidence, that the Respondent would not have taken the action but for the protected activity.

2 See, e.g., Elwood Union Free School District, 43 PERB ¶3012 (2010); City of Salamanca, 18 PERB ¶

3020 (1985); Town of Independence, 23 PERB ¶ 3020 (1990); Board of Education of the City School

District of New York (Grassel), 41 PERB ¶ 3024 (2008); United Federation of Teachers, Local 2, AFT,

AFL-CIO (Jenkins), 41 PERB ¶ 3007 (2008), confirmed sub nom. Jenkins v. New York State Pub Empl

Rel Bd 41 PERB ¶ 7007 (Sup Ct New York County 2008) affd, 67 AD3d 567, 42 PERB ¶ 7008 (1st Dept

2009). 3 Elwood Union Free School District, supra note 1; United Federation of Teachers, Local 2, AFT, AFL-

CIO (Jenkins) supra note 1. 4 Elwood Union Free School District, supra note 1; United Federation of Teachers, Local 2, AFT, AFL-

CIO (Jenkins) supra note 1. 5 Elwood Union Free School District supra note 1.

4

Applying this standard to the instant case, there is no dispute that Petitioner was engaged

in protected activity. He sought assistance from his Union, to advocate on his behalf, to

administration (T98-102). And the Union, through its representatives, openly and repeatedly did

so.

POINT I

Respondent failed to refute the Charging Party’s prima facie case because the evidence showed

that the Dean was aware of the Union’s involvement.

The Respondent’s principal defense to this charge is that the Union failed to establish a

prima facie case of anti-union animus because the Dean did not know that the Petitioner had

sought the Union’s advice and assistance. That defense cannot be sustained because the

evidence presented at the hearing on March 31 and April 1 permits no other conclusion than that

the Dean was fully apprised of the Union’s actions on Petitioner’s behalf.

Despite his attempt to insulate himself from liability by using intermediaries to deal with

Employee Relations (ER) and Human Resources (HR), it is impossible to believe that the Dean

did not realize that the Union was the source of their concern. The uncontroverted testimony of

everyone in contact with the Dean was that they were fully aware of the Union’s involvement. It

would have taken an unbelievable level of incompetence by the Dean’s Chief of Staff, Jim

Newton, as well as by the University’s Vice-President for HR, Scott Nostaja, for them to

carelessly withhold from the Dean the crucial fact that the University’s collective bargaining

partner had taken up a position on the matter of Petitioner’s request to meet with him.

1. Jim Newton informed the Dean about the Union’s involvement. It is undisputed that

the Director of ER, Jeff Reed, was aware of the Union’s involvement (T348-358). It is also

undisputed that Tara Singer-Blumberg’s email demanding that the Dean meet with Petitioner

was sent to both Jim Newton and Marlene Cook, who were expected to share it with the Dean

(T121, 349). Jim Newton confirmed to Jeff Reed that he shared “everything” in the email (J4)

with the Dean (T350), and would have had a copy of the email with him, when he discussed it at

the meeting with the Dean (T373). That email is the Union’s request on behalf of Petitioner (J4).

5

The only reason Jim Newton accompanied the Dean to Albany was to corroborate the

Dean’s testimony. When he took his place on the witness stand, however, he wasn’t asked the

simple question he was there to answer – whether he had told the Dean that Petitioner’s requests

were coming into ER and HR through the intercession of the Union (T364-370). That question

would have been an obvious one for Respondent to ask – indeed, unavoidable – if in fact the

answer would have been helpful. Its inexplicable failure to ask Mr. Newton the key question –

did you tell the Dean that Professor Malkan was proceeding through the Union? – should be fatal

to Respondent’s claim that the Dean did not know about the Union’s involvement.

2. Scott Nostaja also informed the Dean about the Union’s involvement. The Dean

denied having ever spoken to Scott Nostaja about Petitioner (T232). This denial directly

contradicted what Mr. Nostaja had told Ms. Singer-Blumberg. Ms. Singer-Blumberg testified

that “[Scott] told me that he had spoken with the dean and that the dean was adamantly refusing

to do anything we were asking of him, that he was very resistant to Scott’s push to the union’s

request, but that Scott would speak with him again to see whether we could get any of the things

that we were looking for.” (T131).

In order to resolve this conflict, it was necessary for Respondent to have Mr. Nostaja

testify as a witness for Respondent’s case in chief about what his conversations were, and with

whom (T376-378). Even though Respondent advised the Court in its opening statement (T150),

and again on the second hearing day (T233-235) that it had to call Mr. Nostaja, it ultimately

chose not to present him as a witness (T376-378). After the last witness concluded on April 1,

the Court even offered to extend the hearing for an additional day to allow Mr. Nostaja to travel

to Albany (T377). Respondent’s failure to accept this offer must tip the scale in Petitioner’s

favor.6 If Respondent had the ability to impeach Tara Singer-Blumberg, and corroborate the

testimony of the Dean, why did Respondent decline? The only inference to be drawn is that Mr.

Nostaja’s testimony would have contradicted the Dean’s.

6 Elwood Union Free School District, supra note 2; State of New York (division of Parole), 41 PERB

¶3033, n. 15 (2008).

6

POINT II

Respondent’s contention that Petitioner’s employment was terminated because of the termination

of the Research and Writing program is wholly without merit.

Petitioner’s non-renewal letter (J7) stated that he was being non-renewed because “the

Law School has terminated the Research and Writing Program” and “is replacing it with the

Skills Program.” The ABA’s accreditation Standard 405(c) mandates that clinical professors can

only be terminated for good cause, while Interpretation 405-6 of that standard allows that a

“termination or material modification of an entire clinical program” can qualify as good cause.

The Dean contended in the non-renewal letter that “the termination of the Research and Writing

program, and its replacement by the Skills Program meet the requirements of this rule” (J7).7

This was the only rationale he ever offered for terminating Petitioner’s employment.

When Dean Mutua wrote the non-renewal letter to Petitioner, on August 28, 2008, the

R&W program had not been terminated. In fact no changes at all had been made to the program

at that time. When questioned on cross-examination, Dean Mutua testified that “in his mind,”

the R&W program had been terminated (T310-312, 316-317). In reality, however, the only

event that had occurred was that a faculty member had been appointed to make recommendations

and proposals on what changes, if any, should be made to the R&W program (T316).

Any changes to the program would have to be presented to the full faculty for a vote

before they would be implemented, in order to give the faculty an opportunity to approve and

“buy in,” as the Dean put it (T224). That vote, in fact, did occur, but not until April 22, 2009

(CP7), when the faculty received the recommendations of the Academic Policy and Planning

Committee (the “APPC”), and approved placing the existing R&W program under the

administrative umbrella of what would be designated as the “Skills Program,” which, in addition

to R&W, would include a menu of other skills-based second and third year courses. The cover

7 It should be noted that the “termination or material modification” clause does not automatically

terminate a clinical professor’s employment – that is, the clause is not self-executing. All it does is state a

contractual condition that gives the law school the legal option of non-renewing a clinical professor’s

contract even though “good cause” hasn’t otherwise been shown. The law school would still have to

decide whether it wants to exercise the option, which, under the faculty by-laws would require a vote of

the Committee on Clinical Promotion and Renewal (CP8).

7

letter attached to the proposed faculty resolution, dated April 15, 2009, specifically advised the

faculty that “it provides for an administrative reorganization of the efforts that the Law School is

already making in the area of legal skills training… but it does not itself propose the creation of

any new programs” (CP7, T66-69).

The 2009-2010 R&W program offered exactly the same first-year courses as the 2008-09

program, including the same section of the same course, R&W section L4, that Petitioner had

taught the previous year (CP13, CP14, T94-95). The legal writing curriculum was also the same

– objective writing of office memos in the fall and persuasive writing of trial and appellate briefs

in the spring, culminating with an oral argument in “moot court” (T25, T60). In the fall 2009

issue of the law school alumni magazine, the UB Law Forum, Charles P. Ewing, the faculty

member who had subsequently been appointed to oversee the “Skills Program” wrote – in the

present tense – that “[t]he program I inherited is already strong and solid, but my goal is to

make it one of the best in the country” (J9) (emphasis added). This evidence shows that nothing

had been terminated in the law school except Petitioner’s employment, and that the only thing

“new” about the “new” Research and Writing program was that Petitioner no longer taught in it.

Even if the R&W program had been “materially modified” at the time the non-renewal

letter was issued, that would not have been a legitimate business reason to terminate his

employment because the changes that were made to the program did not result in the elimination

of Petitioner’s instructional position. The law school still teaches first-year legal writing, and

Petitioner is fully qualified to teach any conceivable first-year writing course, indeed, far more so

than any of the instructors who were retained or newly hired (T82). Moreover, he was never an

instructor in the R&W program (T72), as claimed by Dean Mutua in his non-renewal letter (J7),

but held a permanent faculty appointment, separate and apart from his Director position. As a

clinical professor, he had already taught many courses outside the realm of R&W (CP2, T36-37).

His contract, dated October 19, 2006, specifically contemplated the possible effect of

Interpretation 405-6 on Petitioner’s employment, and provided that –

A change in the structure or staffing of the law school’s research

and writing program will not equate with “for good cause” to

terminate or not renew your contract since your contract as Clinical

8

Professor is separate from your administrative appointment as

Director of Research and Writing. Should your appointment as

Director of Research and Writing end, you would still maintain

your position as Clinical Professor. In that capacity, without the

administrative workload of Director of Research and Writing, you

would be expected to teach two courses each semester as per the

normal teaching load of all faculty. Those courses could be

writing courses, IP courses, or whatever teaching load you

mutually agree upon with the Dean and Vice Dean for Academic

Affairs at the time.

(CP3, T43-47) (emphasis added). All of these facts prove that there is no reason why Petitioner

could not have continued to teach at the law school. Indeed, he could only be denied the right to

continue teaching two courses per semester at the rank of clinical professor, not limited to the

first-year R&W program, if the Dean was prepared to break his contract – which, unfortunately,

is exactly what the Dean was prepared to do.

Finally, Petitioner applied for an instructional position in the “new” program, as he had

been invited to do in the August 28, 2008 non-renewal letter (J7), and was the only member of

the incumbent legal writing faculty rejected without an interview (CP12, R6, T80-82).8 That

rejection is inexplicable, except as proof of retaliation, despite the Dean’s incredible claim that

he had put into place “a complete veil” and had no knowledge of what the hiring committee was

8 The model “Regulations on Academic Freedom and Tenure” promulgated by the American Association

of University Professors (AAUP) would require that a professor with a continuing appointment, whose

job is eliminated as the result of a “bona fide formal discontinuance of a program or department of

instruction,” must be offered any available teaching job in the school for which he or she is qualified.

Before the administration issues notice to a faculty member of its

intention to terminate an appointment because of formal discontinuance

of a program or department of instruction, the institution will make every

effort to place the faculty member concerned in another suitable position.

If placement in another position would be facilitated by a reasonable

period of training, financial and other support for such training will be

proffered. If no position in the institution is available, with or without

retraining, the faculty member’s appointment may then be terminated,

but only with provision for severance salary equitably adjusted to the

faculty member’s length of past and potential service.

See Recommended Institutional Regulations on Academic Freedom and Tenure 3-4 (1957, rev. 2009),

http://www.aaup.org/NR/rdonlyres/E45D7D3B-00F1-4BC0-9D0A-322DF63A1D07/0/RIR.pdf

9

doing (T338). Why would the Dean think it was a good idea to install a “veil” between his office

and the committee that was hiring R&W instructors unless he wanted to insulate himself from

liability for the illegal act of retaliation that he knew was taking place on the other side?

POINT lll

The Dean’s failure to follow the Law School’s bylaws and involve the Clinical Promotion and

Renewal Committee in Petitioner’s non-renewal is further evidence of his improper motive.

The faculty’s bylaws and clinical appointments policy both require that a clinical

professor coming up for renewal must apply to the Committee on Clinical Promotion and

Renewal (CP8). Petitioner was terminated before he had a chance to apply, and his non-renewal

was not brought before the committee (T70-71, 275-277). Dean Mutua claimed that since

Petitioner was “out of category” his case did not need to go before the committee (T227, 275-

277). As a result, he did not allow the faculty to review Petitioner’s non-renewal, either in that

forum or any other, including the faculty’s grievance committee (CP8). The effect was a

complete denial of due process – overriding the rules and procedures put into place by the faculty

for the protection of its integrity and academic freedom – in which a dean took the extraordinary

and unprecedented step of firing a professor with a full-time, continuing appointment, without

consulting or even informing the faculty.9

The other two clinical professors whose contracts expired on the exact same date, and

were due to be renewed at the same time as the Petitioner’s, did go before the committee, at

which time they received favorable decisions from their peers (T84-87, CP16). That occurred on

April 22, 2009. By this point, almost eight months had passed since the Dean had notified the

Petitioner that he was being summarily fired. Why did the Dean refuse to allow the faculty to

vote on the Petitioner’s non-renewal at the April 22 meeting, or, for that matter, at any other?

Perhaps he surmised that his curious notion – that the R&W program was “defunct,” having been

terminated “in his mind” – would not be well received by a room full of law professors.

9 The AAUP model regulations, cited in note 8, supra, require such due process in cases where the

termination of a faculty member’s employment is based on the bona fide formal discontinuance of an

entire academic program. “A faculty member may appeal a proposed relocation or termination resulting

from discontinuance and has a right to a full hearing before a faculty committee” (emphasis added).

10

The truth of the matter is that the Dean was so driven by his desire to punish the

Petitioner that he made a mockery out of all legal constraints on his power, refusing to even

acknowledge Petitioner’s state title (T270, 290-291), his appointment contract (T313-315), or the

procedures mandated by the faculty bylaws and clinical appointments policy. According to

Petitioner, the Dean had made his views against employees going to their unions for assistance –

in that case, the CSEA – very clear in a meeting in front of the majority of the faculty (T89-92).

It was not until the Union started putting pressure on the Dean that the Dean terminated him.

This sequence of cause and effect explains why the Dean had given no indication at the time

Petitioner was removed as Director of R&W that he also intended to terminate his employment

as a clinical professor (T123, T190, 202-203). The reason is obvious: the Dean hadn’t decided to

do so until the Union got involved.

POINT IV

The Court should not consider any justifications for Petitioner’s termination that were not stated

in the non-renewal letter or in the answer to the IP charge.

The Dean’s testimony was permeated with disparaging and scandalous statements about

Petitioner’s character and competence. The Dean did not, however, refer to either character or

competence in the August 28, 2008 letter that provided the reason for Petitioner’s termination

(J7), nor did SUNY refer to them in its answer (ALJ4) to the charge presently before this Court.

It is not clear at this point whether these statements were made for some strategic legal purpose,

or whether they were merely gratuitous insults and slanders. In any event, if SUNY belatedly

tries to use them to fabricate a pretext for the Dean’s reprisal against Petitioner, the court should

summarily dismiss them as irrelevant, self-serving, and materially false.

1. In his direct testimony, the Dean asserted that Petitioner was not validly promoted to

full clinical professor. He testified that the Promotion and Tenure (P&T) Committee, on April

28, 2006, instead of promoting Petitioner, voted to terminate his employment on one year’s

notice (T175). In other words, he claimed that Dean Nils Olsen overrode the faculty’s

recommendation to terminate Petitioner’s employment and promoted him to full clinical

11

professor with 405(c)-protected status, without telling anyone, apparently even Petitioner, what

he had done (T177-78).

This is an incredibly bizarre claim, and quite obviously a calculated lie, given that Dean

Olsen was so disengaged from Petitioner’s promotion that he did not even attend the hearing and

delegated the task of presiding over the P&T Committee to his vice-dean (T173-74). If Dean

Mutua were serious about substantiating this serious allegation (and one can only guess what

purpose he had for impugning the integrity of his predecessor in office), he needed to bring at

least one other faculty member who had been present at the meeting to support his implausible

story. He certainly had the authority and resources to call any employee he needed for his

defense to come with him to Albany on March 31, 2010, as he did Jeff Reed and Jim Newton.

2. For good measure, the Dean also claimed that Petitioner was never a bona fide clinical

professor, but only an “out of category” legal writing instructor, given an inapt title by the

connivance of Dean Olsen, with exactly the same legal status as the six instructors whom

Petitioner had the responsibility for hiring and supervising (T227, 276). It is astonishing that the

Dean would say this, given that Petitioner’s letters of appointment from the University President

assigned him the rank of “Clinical Associate Professor” and subsequently “Clinical Professor”

(R8, T180). Is he admitting that SUNY perpetrated a deliberate fraud on Petitioner? Moreover,

the non-renewal letter (J7) plainly acknowledged that ABA standard 405(c) – the clinical faculty

standard – governed the terms and conditions of Petitioner’s employment. In addition, Petitioner

testified that it is common practice at some of the best law schools in the U.S., including Cornell

and the University of Michigan, to assign legal writing teachers the university rank of clinical

professor after they have qualified for 405(c) (i.e., “clinical tenure”) protected status (T103).

3. Finally, the Dean took the opportunity to testify that Petitioner’s contract was a legal

nullity, that is, “an outrageous piece of legal craftsmanship” which “any lawyer worth his salt”

could see through (T314). He did not deny that the contract had been transmitted to the

Provost’s Office in the normal course of business, and followed-up by a letter of appointment, at

the new rank to which he had been promoted, from the President of the University at Buffalo.

What lawful purpose could SUNY have for giving Petitioner a fake contract?

12

CONCLUSION

When it considers the facts and circumstances of this charge in their entirety, we ask the

Court to take into account the pervasive dishonesty of Dean Mutua’s testimony, as well as the

devastating effect that the Dean’s reprisal has had on Petitioner’s career.

In the profession of legal education, a clinical professorship with 405(c)-protected status

is considered a permanent faculty appointment, i.e., one that is “reasonably similar” to university

tenure and can only be terminated for “good cause.” According to the ABA standards, “good

cause” in this context is essentially the same standard that would be applied by the university to

justify the termination of a tenured professor and is invariably understood to mean serious

personal misconduct or a serious failure of job performance that the faculty member has failed to

correct after warnings have been duly given, and due process provided.

By breaking Petitioner’s contract on a pretext that would be glaringly obvious as such to

anyone in the profession, not only did the Dean wrongfully terminate Petitioner’s employment at

SUNY at Buffalo, but he also made it impossible for him to be hired anywhere else in the field of

legal education, which is reflected by his inability to find employment at another law school,

despite his best efforts (T88).

The Dean is well aware of the hardship his abuse of power has inflicted on Petitioner.

The Dean was so deeply offended by the union’s intervention that he recklessly tossed aside state

labor laws, university contracts, norms and customs of academic employment, faculty rules and

procedures, and ABA accreditation standards, in order to make sure that no one who knew what

had happened to Petitioner would ever again risk wounding the ego of the world-renowned

workers’ rights advocate, Makau Mutua, by going over his head to the Union. The Court should

find that the Dean’s purpose for terminating Petitioner’s employment cannot have been anything

other than repression and retaliation, which was malicious, illegal, and motivated by anti-union

animus.

13

For all the reasons noted above, Charging Party UUP requests that PERB sustain the

Charge, and order the Respondent to:

1. Rescind Petitioner’s non-renewal;

2. Retroactively reinstate Petitioner to his position as clinical professor, with full back pay,

benefits and interest at the maximum legal rate10

;

3. Appoint Petitioner to another three year Contract, plus two year extension;

4. Make Petitioner whole;

5. Cease and desist from violating the Taylor Law.

On Behalf of:

Charging Party, UUP

Respectfully Submitted,

Tara Singer-Blumberg

Labor Relations Specialist

New York State United Teachers

270 Essjay Road

Williamsville, NY 14221

10

For precedent on PERB’s award of interest, see, e.g., Elwood Union Free School District, supra note 2.