ARTICLE 22 - Grievance Procedure
A. Purpose
To provide an orderly procedure for reviewing and resolving grievances promptly and at the lowest administrative level possible.
B. Definitions:
1. Grievance – A formal written allegation by a grievant that the grievant has been adversely affected by a violation of a specific article, section or provision of this Agreement.
1.1 Grievance as defined in this Agreement shall be brought only through this procedure.
1.2 Actions to challenge or change the policies, rules, regulations, or administrative rules or regulations not contained within this agreement, or on matters not within the scope of bargaining must be undertaken under those processes then in effect.
2. Grievant
A. Any unit member with a grievance;
B. Any group of unit members having the same grievance;
C. Local 2121
3. Day – A "day" (for the purposes of this Grievance Article) is any day on which the central administrative office of the District is regularly open for business.
1. Grievant who fails to comply with the established time limits at any step shall forfeit all rights for that grievance to further application of this Grievance Procedure.
2. District failure to respond within established time limits at any step entitles the grievant to proceed to the next step.
3. Time is of the essence in all processing of grievances.
4. Time limits and steps may be waived by mutual agreement.
1. Member's Legal Rights – Nothing contained herein shall deny to any unit member his/her legal rights under State or Federal Constitution and laws.
2. A unit member may be represented and accompanied by a designee of his/her choosing at any point in this procedure.
2.1 Employees who allege a grievance concerning common matters of fact and contract provisions may elect to file a class action/group grievance. Where a class action/group grievance is filed, one unit member shall represent, at all steps and levels, the entire group, except those not wishing to be included.
2.2 In all grievance proceedings, including a class action/group grievance, AT THE FORMAL STEP, the Union and District may always have up to three (3) persons each present at the conference; AT THE INFORMAL STEP, the Union and District are limited to a total of two (2) persons each, unless mutually agreed otherwise.
3. Any grievance or alleged grievance which occurs during the period between the termination date of this Agreement and the effective date of a new Agreement shall be processed under this Grievance Procedure.
4. The time and day of any meetings at any stage or level of this procedure shall be by mutual agreement between the grievant, Union designee and management. Any such meeting shall, whenever possible, be during non-working hours of the grievant or designee.
5. Wherever any meeting is agreed to, or required, during the grievant’s or designee's regular working hours, he/she shall be excused with pay for that purpose.
6. Only matters essential to the proper maintenance of an accurate personnel file may be placed in an individual's personnel file. Except for the final remedy, no material used or developed solely for processing a grievance shall be placed in the member's personnel file.
7. If the grievant chooses to represent him/herself, the Union shall be given a copy of the grievance at the time of submission at the District level. When the Union is not the designated representative of an employee in the grievance procedure, the employer shall not agree to a resolution of the grievance until the Union has received a copy of the grievance and the proposed resolution and has been given an opportunity to file a response. Such response shall be filed within 10 days of receipt of such proposed resolution.
8. The parties shall exchange, upon request, pertinent information necessary or required to process any grievance.
9. No faculty member at any stage of the grievance procedure shall be requested or required to meet with any supervisor or management employee concerning any aspect of a filed grievance other than those outlined in this procedure.
NOTE: Grievances involving alleged violations of tenure review processes and negative decisions shall be handled in accord with Section 22.F, below.
1. Informal/Oral – Within 20 days of the time an employee knew or reasonably should have known of the occurrence of an alleged grievance, the employee shall discuss the alleged violation with the management-designated employee not in the bargaining unit having jurisdiction.
2. Formal Level
2.1 If a satisfactory resolution is not reached within ten (10) days of the informal/oral step above, the member shall present, within ten (10) days thereafter on the "Statement of Grievance Form," attached hereto as Exhibit E, the grievance in writing to the Chancellor or designee.
The written information provided by the grievant should include:
2.1.1 A description of the grounds of the grievance sufficient for it to be understood, and related facts such as names, dates, and places;
2.1.2 A listing of the provisions of this Agreement which are alleged to have been violated; and
2.1.3 A listing of specific actions requested of the District which will remedy the grievance.
2.2 Either the grievant or the Chancellor or designee may request a personal conference within ten (10) days of filing/receipt of the written grievance. Any such meeting shall be by mutual agreement and held within ten (10) days of request.
2.3 The Chancellor or designee shall communicate the decision to the grievant in writing within fifteen (15) days of receipt or fifteen (15) days subsequent to a conference held between the parties, whichever is the longer period.
3. Arbitration
3.1 Within fifteen (15) days after receipt of the decision of the Chancellor or designee, the Union may, upon written notice to the Chancellor, submit the grievance to arbitration under, and in accordance with, the prevailing rules of the American Arbitration Association. Upon mutual agreement, the AAA rules governing expedited arbitration may be utilized.
3.2 Power of the Arbitrator – It shall be the function of the arbitrator, and he/she is empowered except as his/her powers are herein limited, after investigation and hearings, to make a decision in cases of alleged violation of the specific articles and sections of this Agreement.
3.3 The arbitrator shall have no power to:
3.3.1 Add to, subtract from, disregard, alter or modify any of the terms of this Agreement;
3.3.2 Establish, alter, modify, or change any salary schedule or salary structure;
3.3.3 Rule on any of the following:
3.3.3.1 Any matter involving evaluation other than compliance with procedures.
3.3.3.2 Termination of services of, or failure to reemploy any temporary or part-time certificated employee, or termination of services of, or failure to reemploy any probationary employee.
3.4 Where any grievance is appealed to an arbitrator on which he/she has no power to rule, it shall be referred back to the parties without decision or recommendation on its merits.
3.5 The decision of the arbitrator shall be final and binding on all parties.
3.6 All fees and expenses of the arbitrator shall be shared equally by the Board and the Union. All other expenses shall be borne by the incurring party, and neither party shall be responsible for the expense of any witness called by the other.
Grievances involving alleged violations of tenure review processes and negative decisions shall be handled in accord with the following:
1. Procedures governing tenure review decisions pursuant to Article 22.F.2 and 22.F.3, below, are governed by Education Code Section 87610.1 and 87611. The procedures herein are intended to clarify and strengthen Education Code tenure review processes and shall in all regards be read in harmony with the provisions of the Education Code.
2. Allegations that the District, in a decision to reappoint a probationary employee, violated, misinterpreted, or misapplied any of its policies and procedures concerning the evaluation of probationary employees shall be classified and procedurally addressed as grievances. (Ed. Code 87610.1)
3. Allegations that the District, in a decision to grant tenure, made a negative decision that to a reasonable person was unreasonable, or violated, misinterpreted, or misapplied any of its policies and procedures concerning the evaluation of probationary employees shall be classified and procedurally addressed as grievances. (Ed. Code 87610.1)
4. Any grievance pursuant to the provisions of 22.F.2 and 22.F.3, above, may be filed by the employee on his or her behalf or by the Union. The Union shall have no duty of fair representation with respect to taking any of these grievances to arbitration, and the employee shall be entitled to pursue a matter to arbitration with or without the representation of the Union according to the provisions of the law. (Ed. Code 87610.1)
5. Time lines for grievances involving alleged violations of tenure review processes shall be waived until such time as the employee files a grievance against a Board of Trustees decision not to grant tenure or not to reappoint him/her as a contract (i.e., probationary) employee for the ensuing college year (hereafter, “negative decision”). However, the evaluatee may choose to initiate an inquiry relative to a perceived violation of the tenure review process by doing so within fifteen (15) days after receiving knowledge of the event giving rise to the inquiry. The inquiry shall be filed with the Director of Employee Relations or Designee and shall state plainly and clearly the specific facts giving rise to the inquiry. The working papers of the committee are not subject to review during the inquiry. Within fifteen (15) days of receipt of the inquiry, the Director of Employee Relations or Designee shall communicate the decision to the evaluatee in writing. The decision of the Director of Employee Relations shall not be subject to further review, except in the event of a timely grievance after negative decision by the Board of Trustees.
6. Formal Level
6.1 Within 20 days of the date the Board of Trustees gives written notice to an employee, as required by Article 9.D.7.9, of a decision not to grant tenure or not to reappoint him/her as a contract (i.e., probationary) employee for the ensuing college year, the employee shall present the grievance in writing to the Chancellor or designee on the Special Grievance form, attached hereto as Exhibit E-1. The notice from the District shall specify to the employee the procedure and deadline for filing the grievance and the exact manner and location for delivery of the grievance to the District.
6.2 If the employee chooses to file a grievance against a negative decision of the Board of Trustees, all working papers of the tenure review committee shall be made available to the employee and all concerned parties. If the District is unable to provide the working papers to the Union, it will, upon request by the Union, provide a written explanation of the reasons it cannot produce them. If the Union’s review of the working papers results in the discovery of new bases, not previously identifiable, of a grievance, the grievance may be amended accordingly, within 20 days after receipt of the working papers.
6.3 Either the grievant or the Chancellor or designee may request a personal conference within ten (10) days of filing/receipt of the written grievance. Any such meeting shall be by mutual agreement and held within ten (10) days of request.
6.4 The Chancellor or designee shall communicate the decision to the grievant in writing within fifteen (15) days of receipt of the grievance or within fifteen (15) days subsequent to a conference held between the parties, whichever is the longer period.
7. Arbitration
7.1 Within fifteen (15) days after receipt of the formal level grievance decision of the Chancellor or designee, the Union may, or, the probationary employee may, upon written notice to the Chancellor, submit the grievance to arbitration under, and in accordance with, the prevailing rules of the American Arbitration Association. Upon mutual agreement between the party initiating the arbitration and the District, the AAA rules governing expedited arbitration may be utilized.
7.1.1 When a written notice for arbitration of the grievance is not initiated by the Union, the probationary employee providing written notice to submit the grievance to arbitration must deposit with the arbitrator prior to the commencement of the arbitration adequate security to pay the employee’s share of the cost of arbitration. (Ed. Code Section 87610.1(c)) If, in the process of arbitration, the arbitrator believes that the cost of arbitration will exceed the original estimate, the arbitrator shall so inform the parties and shall direct the employee to deposit further security. If the employee fails to make any required deposit, the arbitrator shall notify the employee of his or her obligation and give a ten (10) day grace period to fulfill his or her obligation. If the employee fails to make payment within the grace period, the arbitrator shall be authorized to dismiss the grievance. In no event shall the District be liable for the employee’s one-half share of the cost of arbitration. Any cash amounts remaining at the conclusion or dismissal of the arbitration after payment in full of the employee’s half of the full fees and expenses of the arbitration shall be refunded to the employee.
7.2 Arbitration Standards – In addressing the grievance, the arbitrator shall determine whether the decision of the Board was consistent with the Board’s authority under the Education Code.
7.3 Arbitrator Power
7.3.1 The arbitrator may issue an appropriate remedy, which may include, but need not be limited to, back pay and benefits, reemployment in a contract position, and reconsideration.
7.3.2 The arbitrator shall have no power to rule on any matter involving evaluation except as required in applying the standards reflected in Section F.7.2, above.
7.3.3 The arbitrator shall have no power to grant tenure, except for the District’s failure to give notice to a contract employee employed under his/her third consecutive contract on or before March 15 pursuant to the final sentence of Subdivision (b) of Education Code Section 87610.
7.3.4 A final decision reached following a grievance or hearing conducted pursuant to Subdivision (b) of Section 87160.1 shall be subject to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure. (Ed. Code Section 87611)
7.4 Where any grievance is appealed to an arbitrator on which he/she has no power to rule, it shall be referred back to the parties without decision or recommendation on its merits.
7.5 All fees and expenses of the arbitrator shall be shared equally by the Board and the Union or by the Board and the probationary employee if the Union is not representing the employee. All other expenses shall be borne by the incurring party, and, as to a probationary employee described in Section 7.1.1, above, shall be in addition to the responsibility to provide adequate security described therein, and neither party shall be responsible for the expense of any witness called by the other party or other such expense of the incurring party.
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