Lecturers Must "Challenge" Any Failure to Evaluate Them
to Reserve Careful Consideration Rights
Article 12.7 gives lecturers who apply for future work the right to "careful consideration" of their "previous periodic evaluations." Articles 15.23 et seq. in turn specify that lecturers "appointed for two or more semesters or three or more quarters . . . must be evaluated in accordance with the periodic evaluation procedure."
What happens when the administration fails to evaluate such a lecturer? In the past, CFA has taken the position that such a failure is a per se violation of the lecturer's right to have his or her previous periodic evaluations carefully considered. Our reasoning has been that it is impossible carefully consider non-existing – but required – evaluations.
In a decision dated May 18, 2009 regarding a case that originated at CSU Long Beach, Umpire D'Orazio disagreed. He noted inter alia that "there is no evidence that the failure to evaluate [the grievant more than two years before she applied for future work] was challenged by a grievance or otherwise." Umpire D'Orazio denied the Grievance.
To preserve careful consideration rights in case the lecturer is later denied future work, CFA recommends that any lecturer who should have been, but was not, evaluated challenge the failure to do so by placing the following document to his or her Personnel Action File: "Under the CBA, I should have been evaluated this AY in accordance with the periodic evaluation procedure. I hereby challenge the failure to evaluate me."
Umpire Rejects Argument that Administration has "Management Right" to Determine When Performance is "Unsatisfactory."
Article 12.13 gives three-year lecturers "the expectation of appointment to subsequent three-year appointments except in instances of documented unsatisfactory performance or serious conduct problems."
Who determines what constitutes "documented unsatisfactory performance"? The administration has argued that as long as long as policies and procedures set forth by the University has been followed, this is a "management right" that is immune to review.
In another decision that originated at CSU Long Beach, Umpire D'Orazio on May 25, 2009 rejected this argument. Prior evaluations had rated the grievant as "above satisfactory." The grievant was denied another three-year appointment on the basis of a subsequent evaluation that rated him "unsatisfactory." However, the subsequent evaluation was based on large part on criticism contained in the prior evaluations, with no classroom observation and no peer input in the current review cycle. Because this criticism did not lead to a rating of "unsatisfactory" then, it did not justify such a rating now. Umpire D'Orazio sustained the grievance and ordered the grievant to be "made whole for lost salary and benefits he would have received for teaching during the 2008-2009 academic year but for the Department's decision to not reappointment him for unsatisfactory performance," as well as to "be provided future appointments in accord with his status as a three-year lecturer under the terms of the Collective Bargaining Agreement."
In this very important decision, dated February 2, 2009, Umpire Angelo held that the substance of a determination that a lecturer is not "qualified" for certain work is subject to meaningful review. He first set forth a burden-shifting approach:
In terms of the proof requirements of this type of case, the Union should first demonstrate there were classes available for the Grievant to teach and then present evidence as to why the Grievant was qualified to teach the courses. The University must then show that there were no classes available or that the Grievant was not qualified to teach the classes. The Grievant is responsible for providing specificity and detail as to qualifications, and the University must provide specificity and detail as to the bona fides of its decision, necessarily including a substantive response to the Grievant's claims. In assessing the evidence, the arbitrator should provide appropriate deference to the University but must also ensure the decision is responsive to the Grievant's claims and has some reasonable support in the record.
Umpire Angelo then held that the "deference" owed to the administration "as to its decisions on qualifications" is "lost when a decision is made that cannot be logically supported and fails to address the actual qualifications of the employee" and is thus "arbitrary and capricious." Umpire Angelo concluded that the decision at issue in this case had indeed been arbitrary and capricious. He awarded backpay for 30 WTU.
Absolute Requirement that Personal Action File Be Reviewed Before Personnel Action Is Taken
Article 11.9 requires that "any . . . personnel action shall be based on the Personnel Action File." In a case from Humboldt State University, the Department Personnel Committee denied a lecturer's application for certain future work without first reviewing his Personnel Action File. The administration claimed that it was not required to do so because the grievant's Personnel Action File "as the PAF did not contain information that would have been relevant to the Committee's inquiry."
In a decision dated June 16, 2008, Umpire Angelo held otherwise. His comments in this regard deserve to be quoted in full:
There is no ambiguity regarding the contractual obligation to review the PAF - it is an absolute requirement. I agree with those prior decisions that hold the failure to satisfy this requirement equates to a failure to provide careful consideration. What the University argues is that the question of whether a violation exists may be measured by the relative influence the PAF might provide a reviewing Committee. This would be a valid contention if the Agreement only required that a PAF be reviewed "if necessary" or pursuant to some discretionary right of the Committee. No such language exists and therefore the Committee failed to afford the Grievant careful consideration when it failed to consider his PAF.
Umpire Angelo sustained the grievance and the parties later settled on the issue of the appropriated remedy.
Presence of Non-Tenured Faculty on Tenure-Track Search Committee Entitled Unsuccessful Lecturer Applicant to Backpay
A lecturer at CSU Bakersfield applied for a tenure-track position at the same campus. A search committee that included non-tenured faculty, in violation of Article 15.38, recommended against her and her application was ultimately unsuccessful.
In a decision dated June 8, 2008, Arbitrator McCory found for the grievant. He stated:
Had ineligible non-tenured faculty not voted at the June 29 search committee meeting, [the grievant] would have been recommended by at least a 2-1 vote. There is no basis in the record to conclude that a recommendation for the appointment of [the grievant] would not have been forwarded to the Provost or that the Provost would not have appointed her to the tenure track position [instead] given to [another applicant].
Because four years had passed since the search committee had rendered its recommendation and the grievant had since moved to Florida, Arbitrator McCory found that the "normal remedy" for such prejudicial procedural error under the prior CBA, i.e., “remand to the level where the error occurred for reevaluation,” was neither "appropriate" nor "feasible" in this case. Instead, he awarded two years of backpay to the grievant, calculated as twice the difference between $85,000 -- the "reasonable starting [annual] salary" of the tenure-track position according to uncontradicted testimony at the hearing, and her annual salary in the lecturer position she resigned from – but could have kept – after her application for the tenure-track position had been denied.
Even Non-Prejudicial Violation of Careful Consideration Entitles
Lecturer to Remedy
In a decision dated April 28, 2008 regarding a non-reappointed Coach at Sacramento State University, Arbitrator Bogue held:
Although the evidence is clear that the Grievant would not have been offered an additional appointment, even had an accurate and complete PAF been maintained and had peer evaluations included in the evaluation procedure, CFA is entitled to enforce the agreement for the benefit of the Grievant and to ensure future compliance with the parties’ negotiated standard. Finding a violation, without awarding a remedy, makes contract enforcement ineffectual. Therefore, a remedy is due the Grievant for the violation of her contract rights, and to ensure enforcement of the contract’s protections for part-time temporary faculty unit employees.
Arbitrator Bogue awarded backpay for one semester to the grievant.
Teaching Associate Assignments Need to Be Supported by Documentary Evidence that They Are "Based Upon the Needs of the Program"
A memorandum of understanding between CFA and CSU states that Teaching Associate Appointments have to be "based upon the needs of the program." The intent of the MOU is to protect graduate students against being exploited as cheap labor and, at the same time, to ensure that lecturers get all the work they are entitled to.
In an extremely important decision from San Francisco State University dated April 10, 2008, Umpire Angelo held that TA appointments need to be supported by documentary evidence that they are "based upon the needs of the program" in which the graduate students are enrolled, i.e., that they further the graduate education of these students. Umpire Angelo held:
As CFA implies, to reduce this element of the “test” to testimonial statements makes the standard little more than a target for supporting testimony, whereas it should be a meaningful requirement buttressed by evidence that is substantial and objective in nature. Moreover, it would seem that a “need” by its nature is significant enough to require evidence demonstrating student teaching is a recognized part of the educational process. Absent such evidence showing that one learning outcome for the Department is the experience gained from student teaching, the use of testimonial declarations alone are insufficient to meet this prong of the test.
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.
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