CFA Wins In Superior Court: FERP Award Confirmed
April 21, 2008
Today, CFA secured an important victory against CSU in Superior Court in a case involving the contractual Faculty Early Retirement Program ("FERP"). In two grievances, one systemwide and one filed by San Bernardino Chapter President Tom Meisenhelder, CFA had challenged CSU's practice of assigning FERP participants disproportionately higher post-retirement teaching loads compared to those they had been assigned pre-retirement.
The grievances were consolidated for a hearing before Arbitrator Bonnie Bogue, who held in a first award that the practice violated the contract. Regarding the systemwide grievance, Arbitrator Bogue ordered CSU "to issue a written directive to all campuses, colleges and departments expressly stating that the collective bargaining agreement requires FERP faculty members to be assigned proportionate workloads, consisting of direct and indirect instructional duties, in the same manner as regular tenured faculty are assigned.” She further held that "[f]or any assignment that was 'all teaching,' the FERP faculty member is eligible for a make-whole remedy" from CSU. Regarding the Meisenhelder grievance, Arbitrator Bogue ordered CSU to make whole Meisenhelder -- who had been assigned a disproportionately higher pos-retirement teaching load short of "all teaching" -- for the difference between his pre- and post-retirement teaching loads.
When CSU refused to make whole any FERP participants other than Meisenhelder, unless they had been assigned an "all teaching" load, CFA returned to Arbitrator Bogue, who ordered CSU in a second award to make whole all FERP participants who had been assigned disproportionately higher post-retirement teaching loads compared to those they had been assigned pre-retirement, even if the post-retirement loads were less than "all teaching."
CSU petitioned the Superior Court for the County of Los Angeles to vacate the second award, arguing that it amounted to an inconsistent, and therefore improper, rewriting of the first award. CFA cross-petitioned to confirm the second award, arguing that it constituted a consistent, and therefore proper, interpretation of the first award.
Judge Jerry K. Fields denied CSU's petition and granted CFA's cross-petition. Judge Fields commented that this was an interesting case and that he had spent all of Sunday and most of Monday reading the parties' pleadings, which he found to have been very well-written. He further commented that his law clerk had initially sided with CSU, but that they ultimately agreed that CFA was in the right. On the merits, Judge Fields observed that if CSU were correct, then "[i]n one part of the [first] Award the Arbitrator decided that the grievance applied only to those with 100% teaching assignment and in another it applied only to the FERP member with a less than 100% teaching assignment, but one which was disproportionate to his pre FERP assignment[,] and never the twain shall meet." He held instead that "[i]t was rational for the Arbitrator to consider the two . . . consolidated matters together" and that "[i]t would have been irrational to consider otherwise for it would require the Court to ignore the result in the Meisenhelder [grievance] to agree with the CSU position."
CSU can appeal the ruling by Judge Fields to the California Court of Appeal. As a sign of his interest in the matter, Judge Fields asked the parties to provide him with the Court of Appeal decision should CSU decide to appeal his ruling. CFA was represented by Director of Representation Bernhard Rohrbacher and CSU was represented by outside counsel Allison M. Woodall of the law firm of Hanson Bridgett LLP in San Francisco.
Umpire Sides with CFA on Teaching Assignments to Graduate Students
Umpire Tom Angelo has sided with CFA on the important issue of when CSU can assign teaching to graduate students rather than lecturers. In a decision issued last week, he held that where "these assignment were merely efforts to enhance [CSU's] attractiveness to future applicants as well as provide financial support for its existing students," the assignments were inappropriate. Rather, to justify such assignments, CSU would have to provide "evidence demonstrating student teaching is a recognized part of the educational process" in the degree program in which the graduate students are enrolled. With this decision, Umpire Angelo struck the correct balance between protecting the rights of lecturers and protecting the rights of graduate students, including their right to be free from exploitation as cheap labor. Such exploitation is unfortunately all-too-common within CSU.
Because Umpire Angelo's decision cannot be cited in arbitration, all "TA grievances" in which we want to rely on Umpire Angelo's decision should be brought as umpire cases. Moreover, because CSU can refuse to hear any TA grievances that cite articles other than Article 12 as umpire cases, only Article 12 should be cited in TA grievances that we want to be heard as umpire cases.
CFA Wins Appeal in Sacramento and Northridge Parking Case.
On February 28, 2008 the Third District of the Court of Appeal of the State of California ruled in CFA’s favor in the Sacramento and Northridge Parking Case. For many years, Unit 3 members at these campuses had been allowed to park in all available parking spaces. When CSU built additional parking garages, it banned Unit 3 members from the new structures, thereby unilaterally changing its past practice. CFA filed an unfair practice charge with the California Public Employment Relations Board (“Board”). An Administrative Law Judge (“ALJ”) agreed with CFA that the unilateral change was unlawful. CSU appealed to the Board and the Board reversed the ALJ.
In a unanimous decision that is “certified for publication” and that can therefore be cited as precedent in future cases, the California Court of Appeal reversed the Board. The court stated: “[W]e conclude that the terms and conditions on which the university provides parking to its employees -- including where the employees are allowed to park -- do involve the employment relationship between the university and its employees, and the board’s determination to the contrary is clearly erroneous.” The court took the Board to task for “deviating from its own precedents without explanation.” The court further criticized the Board for “[u]nfortunately” having “declined to reach any of the[] other elements of a charge of illegal unilateral change because it put all of its eggs in one basket.” It remanded the case to the Board for determination of these other elements.
We believe that on remand, the Board will find in our favor. The entire court decision can be found by clicking here
Please contact CFA’s Director of Representation if you believe that CSU has changed access to or location of faculty parking on your campus.
Losses in Cases Aimed at Post-Retirement Perks
for Senior CSU Administrators
On Friday, February 22, 2008, a tax-payer suit by former CFA President John Travis challenging alleged "double-dipping" by senior CSU administrators went to trial in Superior Court. Under a now-discontinued "transition" program, these administrators are granted a year-long leave of absence upon resigning office, without any duties or obligations and regardless of whether or not they afterwards return to CSU as a professor.
Counsel for Travis argued that the leave of absence not only was an unlawful gift of publics fund but also constituted a publicly-funded retirement benefit that prevented the administrators, under an anti-double-dipping statute, from at the same time accruing retirement benefits under California's Public Employees' Retirement System. The court rejected both arguments after a spirited bench trial.
On March 26, 2008, the Court of Appeal similarly rejected Travis’s appeal in a case he brought pursuant to California's Open Meeting Act. Travis's case challenged Chancellor Charles Reed's decision to convene the Trustees in closed session to discuss the return of former chancellor Barry Munitz to much-reduced duties at CSU from a leave of absence, under the same “transition” program that was at issue in Travis’s tax-payer suit, after he resigned in disgrace from a stint as president of the J. Paul Getty Trust.
In another unanimous decision that is certified for publication, the Court of Appeal affirmed the trial court's denial of Travis' mandate petition, which sought a declaration that Reed’s decision violated the Open Meeting Act. The Court of Appeal agreed with the trial court that Reed's conduct was sanctioned by the so-called "personnel exception" to the Open Meeting Act's requirement that "state bodies" such as the Trustees convene in public. Specifically, the Court of Appeal held: "[W]hen the personnel exception authorizes closed session to consider the employment of a public employee, it includes discussions about an employee's return from a leave of absence."
At the same time, the Court of Appeal also suggested limits to the personnel exception. Thus, the court agreed with Travis that if Reed had convened the Trustees in closed session "to determine how best to manage the coming public relations fiasco Munitz's return might cause" or "to discuss policy concerns about the executive compensation program that permitted someone like Munitz to return at a salary much greater than that of regular professors," then "a closed session to discuss such matters would not have been justified under the personnel exception." The entire court decision can be viewed by clicking here
CFA will continue to fight against post-retirement perks for CSU administrators, especially now when proposed budget cuts threaten the livelihood of CSU faculty.
First Umpire Hearings Held: CFA Wins Some, Loses Some, and Settles More
Article 10.29 of the new CBA gives Lecturers, for the first time, the right to an expedited hearing of their appointment, reappointment, work assignment, and careful consideration grievances before “Permanent Umpire” Thomas Angelo. The first four lecturer grievances were scheduled for February. Three of these cases resulted in monetary settlements for the grievants on the day of the hearing and one resulted in a post-hearing decision against the grievant. Four more grievances were scheduled for March. Two of them settled, one resulted in a decision for the grievant, and one is awaiting a decision. Three more grievances are scheduled for April.
Umpire Angelo denied the first grievance that resulted in a post-hearing decision on the threshold question whether the Grievant was, after a gap in employment, entitled to careful consideration. He opined that "[t]he Grievant's [two-year] break in service was f[a]r too long a period to allow him to retain careful consideration rights." On the merits, Umpire Angelo would have found for the grievant. He noted that "[t]he Selection Committee did not sign the PAF form when reviewing the file" and that "[t]he Committee also reviewed material not contained in the PAF," namely, as "shadow file." He concluded that "both actions were flagrant violations of the careful consideration process." He further concluded that even an "accidental" violation that was neither in "bad faith" nor "intentional" would entitle the grievant to a remedy. CFA has file a Petition to Vacate Umpire Angelo’s decision in Superior Court on the grounds that the time limitation on careful consideration rights is an unauthorized addition to the CBA.
Umpire Angelo sustained the second grievance that resulted in a post-hearing decision on the question whether teaching assignments to graduate students were justified as furthering “the needs of the program.” He concluded that this was not the case where “these assignments were merely efforts to enhance the attractiveness [of the program] to future applicants as well as provide financial support for its existing students.” Instead, for such assignments to be justified, “documentary evidence” is required in which “graduate student teaching assignments are portrayed as a necessary component of the educational process” and as “teaching enhancement experiences” for the students.
Because Umpire Angelo’s decision cannot be cited in arbitration, it is important that all cases challenging teaching assignments to graduate students be filed as umpire cases. CFA does not oppose teaching assignments to graduate students in general. It opposes such assignments only where they are of no significant educational value to the graduate students and exploit them as cheap labor, often hindering their progress toward obtaining a degree.
CFA and CSU Settle Humboldt Workload and Other Grievances
CFA has successfully concluded its fight against increasing the workload of members in the College of Natural Resources and Sciences at Humboldt State. At issue was the administration’s unilateral increase in the number of students taught and instructors coordinated that entitle faculty to additional “assigned time” for indirect instructional responsibilities. CSU first invited CFA to bargain about the proposed increase but later, when bargaining did not proceed to his liking, claimed that CFA did not have a right to bargain about the same increase. CFA filed several grievances with CSU and an unfair practice charge with the California Public Employment Relations Board.
On April 18, CFA and CSU settled these grievances and the unfair practice charge. According to the Settlement Agreement, “the CSU will rescind the challenged assigned time policy at HSU that was enacted for Spring 2008 semester in the College of Natural Resources and Sciences (CNRS)” and “Faculty members in CNRS will be made whole and compensated, minus applicable withholdings, for the Weighted Teaching Units of assigned time that they would have been eligible for due to excess enrollments or laboratory instructor coordinator duties under the prior policy.” Those are precisely the remedies we sought in the grievances and the unfair practice charge.
The standout among other grievances recently settled to the satisfaction of the grievants is the case of an Assistant Professor at San Diego State who was denied tenure and promotion. Under the settlement, the grievant, whose terminal year has come and gone, will be reemployed as tenured Associate Professor, with full salary and benefits, until the end of the 2010 Spring semester. During this period, the grievant will have no teaching or other duties, but he will be provided with computer access and office and lab space, as well as the use of student help on grant projects that support such student help.
Overall , the first quarter of 2008 has been very promising. We will keep you posted as the year progresses.
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