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Grievance Basics

Thank you for consulting with the California Faculty Association concerning your workplace problem and the possibility of seeking resolution of that problem by means of a grievance pursuant to the collective bargaining agreement between CFA and the CSU adminsitration.

It is our goal to provide you with the most comprehensive information and best advice possible to achieve your desired outcome.

To get started, please make sure you have a copy of the current collective bargaining agreement (available in print from CFA or the Administration, and on the respective Web sites) and have read Article 10, in particular.

Additionally, there are a few basics which are critical to your success:

The Basics

  • It is your responsibility to properly file your grievance with the Administration and to choose between two distinct filing tracks available.  CFA will help, but it is necessary that you choose the track, sign the grievance, file it on time and with the appropriate administrator, and provide the information necessary to understand and pursue a resolution of your problem
  • Timely filing of your grievance is critical: within 42 days of the occurrence giving rise to your grievance or the time when it can reasonably be assumed you could have known of the problem.
  • There are situations in which CFA may choose to assist you by filing a contract track grievance in its own name rather than recommending you act as an individual. Generally speaking, CFA grievances will be used when it appears that the problem in question is shared by a number of faculty, not just you. In such situations, however, you must be prepared to identify yourself as part of the grievance if you want to be assured of benefiting from any successful outcome that may be achieved.

Choose a Grievance Track

The collective bargaining agreement provides two basic tracks for the filing and processing of a grievance.

Both tracks—referred to as the contract grievance track and the statutory grievance track—can lead to binding arbitration by a neutral third party under certain circumstances.  (Bargaining Unit employees who have worked in the CSU for less than one semester or quarter are limited to the contract grievance track.)

If your grievance does not involve a specific violation of the CFA contract, but you were wronged in other ways in the workplace, it is strongly recommended that you choose the statutory track. It is highly unlikely that CFA would elect to arbitrate such a case if filed using the contractual track, or that an arbitrator would sustain your grievance absent a clear contract violation.

If your grievance does involve a specific violation of the contract, you should choose the track you believe will be most likely to produce the best outcome for your case.

You must choose the track for your grievance upon initial filing or the matter will automatically be processed as a contract grievance.

In some ways the two tracks are similar; in others they are different:

Similarities

Both Grievance Tracks…

  • use the same definition of grievance: “an allegation that the employee was directly wronged in connection with the rights accruing to his or her job classification, benefits, working conditions, appointment, reappointment, tenure, promotion, reassignment, or the like.”
  • use the same form (included here) for filing purposes
  • provide for an initial meeting with Administration to seek resolution of the grievance
  • follow similar timelines
  • provide access under certain circumstance to final and binding arbitration by a third-party neutral
  • allow the grievant to select a representative (or none) of their own choosing in the initial stages of the grievance processing
  • provide for CFA cost-sharing of arbitration expenses in those cases in which it voluntarily agrees to participate.  In statutory track cases only (where the Union does not participate), CSU pays the cost of arbitration.

Differences

  • Only the statutory track provides for a Faculty Hearing Committee to review the grievance.
  • Arbitration is allowed under the statutory track only when issues were resolved in favor of the grievant by a Faculty Hearing Committee, but were subsequently rejected by the campus President.
  • Arbitration is allowed under the contractual track only when CFA agrees to arbitrate the grievance.
  • Contractual track grievances are considered precedential in future cases only if CFA is the grievant’s designated representative in the proceeding.

An Additional Option at the Arbitration Stage for Temporary Faculty:

Temporary Faculty

If (1) you hold a term or “temporary” contract and (2) your grievance qualifies for arbitration under either the statutory track or the contractual track and (3) your grievance involves an alleged violation of Article 12 (primarily involving Lecturer cases), then following the last administrative step of the track you have chosen you will be able to elect the mode of arbitration to be used.

One option is the traditional arbitration process, which typically takes longer to complete but which allows for the fullest exploration and adjudication of the problem at hand.  The other option is to use the contract’s Umpire system, which will allow for more timely scheduling of a hearing, but which will also limit the amount of time available for both the presentation of your case and the consideration of the arbitrator (Umpire).

Factors to Consider in Choosing Your Grievance Track

Statutory Grievance

  • Utilizes a Faculty Hearing Committee composed of full-time faculty to make non-binding recommendations to the campus President.
  • Does not automatically guarantee a final and binding decision by a neutral arbitrator; only grievances sustained by the Hearing Committee and denied by the President are eligible for arbitration.
  • May be utilized from start to finish (arbitration) without CFA involvement.
  • May not be used by employees who have worked less than 6 months.
  • May not be used for grievances wherein CFA is the named grievant.
  • Will be precedential as to contract interpretations only if CFA is the grievant’s designated representative in the proceeding.
  • May, as a practical matter, involve claims that range far beyond direct contract violations.

Contract Grievance

  • Allows for arbitration only if CFA agrees to arbitrate (CFA “owns” the arbitration step).
  • Must be used for grievances wherein CFA is the grievant.
  • May be slightly faster from start to finish than the statutory process.
  • Is available to all unit members.
  • Despite broader grievance definition than previously, will probably continue to focus on contract violations rather than more broadly stated claims.

Umpire System

  • Restricted to Art. 12 appointment, reappointment, range elevation or work assignment grievances filed by temporary faculty.
  • Must be elected following completion of the Faculty Panel/Presidential decision or CO step.
  • Must be scheduled within 30 days.
  • Requires mutual agreement for a hearing to exceed one day (time divided equally between grievant and CSU).
  • Does not allow for post hearing briefs.
  • Is not precedential.

Discipline Cases

A discipline case is an action by the administration against a faculty member for an alleged improper action. It can involve suspension without pay, demotion, and/or termination. 

Discipline appeals are handled differently than the grievance procedure, and we recommend that members work in consultation with CFA advocates in handling discipline cases.

The disciplinary action procedure in Article 19 of the CBA has accelerated timelines and strong procedural protections such as a Skelly Hearing (a pre-disciplinary hearing in which you can present your defense to an administrator) as well as the right to have the proposed sanction held in abeyance for at least 135 days until the facts are adjudicated independently in a Full Evidentiary Hearing.  Full evidentiary hearings may take place before an arbitrator, a Faculty Hearing Committee (which may or may not lead to arbitration), or the State Personnel Board as provided in Section 89539 of the Education Code.

Appealing Discipline

When a faculty member receives a notice of disciplinary action from the administration, he or she should contact a CFA representative immediately. CFA will review the materials provided and advise whether or not the sanction is deserved, too severe, or appropriate under the circumstances.

Upon request, CFA represents members through the appeal process unless and until we honestly determined that the sanction is justified under the given circumstances. If CFA decides not to represent someone, the faculty member has a right to appeal to CFA’s Representation Committee.  Unlike grievances under the CBA, if CFA declines to represent a member, he or she can pursue appeals rights without CFA’s participation.

In Discipline cases the University bears the burden of proof to show “just cause” for the suggested sanctions.  They must prove that the complained of conduct occurred and that the punishment is fair.

The Final Stage — Binding Arbitration

The final stage in the grievance process is Binding Arbitration.

Although the standards of evidence are different in arbitrations than they are in civil courtroom proceedings, the “burden of proof” is on CFA to show that the CSU administration violated, misinterpreted or misapplied the various provisions of the CBA that apply to the grievance.

In Discipline cases the burden of proof shifts to the University, which must show “just cause” for the suggested sanctions.

Arbitrators have contractual authority to rescind or modify proposed sanctions.

Possible Remedies

Grievances can be adjusted or remedied at any point in the process.

Sometimes, CFA reps and grievants are able to settle cases at the campus before the Level 1 hearing is even held. Sometimes an informal resolution hearing for a faculty status dispute can result in a remedy of retention tenure, or promotion. Sometimes the dean will agree to remove disputed materials from the personnel action file, or the administration will agree to modify a sanction in a discipline case.

More often than not, settlements at the campus level involve a compromise. For instance, negative tenure decisions are sometimes settled at the campus level with the provision of an extra year of probation. Or, an inaccurate document will be taken out of the file and replaced with a new document absent the inaccuracies. In exchange for these remedies, CFA withdraws the grievance. Most settlement remedies are in writing.

As noted above, Level 2 meetings rarely result in a remedy. The greatest number of settlements occurs just prior to arbitration, after CFA has sent information requests and subpoenas. Many promotion denials are remedied with promotion and some back pay. Settlement discussions between CFA representatives and CSU become more serious just prior to arbitration when the opposing advocates discuss the case, the joint exhibits, the witnesses and the issue statements.

The ultimate type of remedy is a decision by an arbitrator. Arbitrators have the ability, for example, to overturn negative RTP decisions, to reinstate lecturers with back pay or to reduce or rescind disciplinary sanctions.

CFA Representation Principles

  • CFA will strive to provide the best and most accurate advice possible to CSU faculty considering the filing of a grievance, regardless of job classification, membership status, or personal attributes.
  • CFA will carefully consider active participation in all statutory or contract grievances on a case by case basis.  CFA will normally participate in contract grievance processing upon request.
  • As a matter of practice, CFA may not become part of statutory track grievances at the time of filing, but will, upon request, assist in the initial discussion of such grievances with the Administration at the first step of the process.
  • Following the issuance of the first Administrative answer to the grievance, CFA will consider formal participation in the statutory track grievance upon timely, written request of the faculty grievant.  If the Union agrees to participate, it will provide assistance and/or representation before the Faculty Hearing Committee as requested by the grievant.  Following issuance of the Faculty hearing Committee decision and that of the campus President, CFA will again consider (upon the grievant’s request) participation in a statutory arbitration hearing.  CFA will evaluate such requests on a case by case basis but may not elect to participate in all cases.
  • Except in extraordinary cases, CFA will not participate in statutory track grievances involving intra-faculty disputes unless the dispute involves the exercise of authority granted by contract or Administrative delegation.
  • In cases where a Faculty Hearing Committee rules favorably on a grievance in which 1) CFA has not participated and 2) the campus President has rejected the ruling of the Faculty Hearing Committee, CFA will, upon written request of the grievant, consider or reconsider participation in the arbitration of that dispute.  Because of contractual time limit mandates, such a request must be made within 3 days of the Faculty Hearing Committee decision.  If the Union agrees to participate in the arbitration process, it will provide assistance and/or representation in arbitration.
  • CFA will not bear the cost of providing representation (or associated costs such as expert witnesses, witness travel, transcript, etc.) in cases in which it has not voluntarily agreed to participate.
  • In all grievances or arbitrations in which CFA participates, the Union will provide representation of its own choosing.  Although in statutory track grievances the grievant is free to select a representative of his or her own choice, CFA will not be responsible for any portion of the costs associated with that choice.
  • Should CFA be asked to arbitrate either a statutory track or contract track grievance and declines such representation, the faculty grievant may appeal that decision to CFA’s Statewide Representation Committee composed of CSU faculty. Decisions of the Committee shall be final.

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