Instructors’ Association

Newsletter


Newsletter by and for the faculty of the Santa Barbara Community College District

Vol. 16 No. 1
October 2005


Many important Issues to Consider

As we work together to achieve the excellence, which has so often been attributed to SBCC, there are many important issues to consider. Success will require careful analysis, thoughtful consideration of diverse needs, and a lot of patience with and trust of each other. We cannot be seduced by the siren songs of the uninformed who would divide us. In this newsletter we report some good news, but we also raise some potentially contentious issues. We should not avoid important issues, because they are difficult. But we should not rush toward solutions before reconciling divergent concerns. First, the good news:

Lynne Stark {Physics} reports on the new adjunct health care program. This is a breakthrough. We will learn a lot from the implementation and we plan to expand and modify the program in our next contract.

Lynne is also our treasurer, and she reports on our financial results for 2004-2005 as well as our budget for this year.

Our other Adjunct Representative, Cornelia Alsheimer {Accounting}, is reporting on adjunct eligibility for retirement programs. There are advantages and disadvantages to the STRS Cash Balance Program and Social Security.

Two important issues for SBCC faculty are “Binding Arbitration” and “Adjunct Rehire Rights”. We initiate discussions of both topics in this newsletter.

One of our attorneys, who often represents CTA faculty in disputes with their district, Bob Bartosh, has drafted a thoughtful letter on binding arbitration. We intend this letter to initiate a faculty dialogue on its advantages and disadvantages. We must assure that it’s a good idea, and we must consider the best possible form of binding arbitration before we charge into a thicket, which has proven more successful in some situations than others.

Jan Ford, long-time adjunct instructor in Sociology & Anthropology and our membership director, has drafted a letter regarding adjunct rehire rights. We need to acknowledge our dependence on adjunct faculty for so many continuing courses and programs, and we need to integrate them into our SBCC team. Careful deliberation is required to identify the best way to achieve this goal, and Jan’s ideas are an important contribution to new thinking on this matter.

As you know, the Faculty Senate has submitted a radically revised Faculty Job Description to the Trustees. It’s a great improvement, and your IA Executive Board supports it.

The Senate is now working on grievance procedures and will soon take up Faculty Evaluation procedures. These are vital issues to Faculty excellence, equity, and morale. In the spirit of mutual support, Gail Tennen is leading an IA team in consideration of the grievance procedures. Your IA Executive Board will forward to the Senate our thinking on this matter, so the Senate can design the best possible grievance procedures. In this newsletter, Gail offers some initial observations.

We’re learning a lot from the implementation of our new contract. And of course, we’re delighted by the strong endorsement of our membership and the many kind words from faculty in praise of the contract’s benefits.

However, there have been some rough spots --- some of the part-time counselors have had trouble understanding why they didn’t get a rise this time, and all the department with laboratory instruction have had difficulty calculating load and adjusting assignments. We will learn from our mistakes and improve the design of future contract terms, as we balance the needs for a general salary increase with rapid progress toward true parity for all faculty, despite varied duties.

To make the right decisions on your behalf, we need more from our Executive Board and more from our membership. We will be asking for a modest increase in Association dues, and we will be asking for your views on priorities for the next contract (2007 --). We will also be asking you approve some minor revisions in our IA Constitution, By-Laws, and IA-Senate Liaison Agreement. Accordingly, we have scheduled a Plenary Session for Friday October 14th at 1 PM. And we have asked the Executive Director of FACCC to come down that same day to speak to us about Sacramento politics and a FACCC-SBCC Faculty alliance to improve funding.

We’ve made a lot of progress in the last year, and we will go even further this year. Our enlarged Executive Board (now nine faculty) is enriching our discussions and are capabilities. The support of faculty is great, although we’re hoping those of you who are Agency Fee payers instead of members will join and fully participate. {If you are paying $13.50 full-time or $3.50 part-time per pay period, you are not a member. Please contact Jan Ford for an application}. With our new faculty and solid working relationships of faculty, staff, administration, and Trustees, and even some progress in Sacramento, this is an exciting time to be at SBCC. Let us all benefit from your participation.

---Peter Naylor, President



IA Attorney on Binding Arbitration
March 3, 2005

Dear Mr. Naylor:

This correspondence will supplement my earlier correspondence to you of February 22, 2005. You requested additional analysis concerning the use of arbitration clauses in collective bargaining agreements.

The following brief analysis addresses the use of arbitration clauses in collective bargaining under two scenarios: 1) Use of arbitration of issues at impasse in the collective bargaining process and 2) Use of arbitration as final resolution of the grievance process defined by a collective bargaining agreement.



I. Arbitration of Issues at Impasse in the Collective Bargaining Process

The right of public employees to be represented in the collective bargaining process is right confirmed by the Education Employment Relations Act (“EERA”) and codified under state law. In particular, Government Code Sections 3540 et seq. governs the rights and responsibilities of employee associations and public agencies regarding employer-employee relations. These code sections set forth a specific set of rules and regulations for the conduct of employer-employee relations, negotiations and procedures for resolving disputes.

The Public Employment Relations Board (“PERB”) is vested with the authority for administering employer-employee relationships pursuant to Government Code Section 3540 et. seq. In fact, PERB is vested with the exclusive jurisdiction to implement and administer the Educational Employment Relations Act (“EERA”). Public Employment Relations Board v. Modesto City School District/Modesto Teachers Association (1982) 136 Cal.App.3d 881.

This raises the questions as to whether the procedures for resolving collective bargaining disputes at impasse as set forth by the EERA can be substituted for an arbitration clause. Government Code Section 3543.2 defines the scope of representation by a recognized association and limits the representation to “terms and conditions of employment.” This includes the following: health and welfare benefits, leave, transfer and reassignment policies, safety conditions of employment, class size, procedures to be used for the evaluation of employees, organizational security, procedures for processing grievances, lay-off for probationary certificated employees, and alternative compensations or benefits for employees adversely affected by pension limitations under Section 22316 of the Education Code. Government Code Section 3543.2.

All other rights and responsibilities are reserved to the employer school district or community college. Government Code Section 3543.2. Thus, although there is no case law directly on point, arguably, the right to use alternative dispute resolution procedures as part of the collective bargaining process at impasse is precluded by the EERA.

Aside from the possible prohibition from using arbitration as an alternative to the procedures to EERA, those statutory procedures for resolving impasse are preferable from an employee association standpoint. First, the EERA requires employers to negotiate in good faith and refrain from any discrimination of any employee who asserts his or her rights under the EERA. The EERA defines not only conduct that constitutes an unfair practice, but also provides for administration of complaints initiated by employee organizations against employers by PERB, acting as an investigative and prosecutorial body, and later judicial action seeking a determination of unlawful conduct by the employer. In many cases, under this scenario, impasse is often resolved prior to seeking a judicial determination, simply because PERB has determined an unfair practice by the employer school district.

Substituting this statutory process with binding arbitration would result in a less affective means for resolving issues at impasse. An arbitrator would not have the discovery or investigative powers currently retained by PERB that is so necessary to determine whether an unfair practice has been engaged in by the employer. Finally, the decision of a mutually chosen arbitrator would also be binding such that if that decision were detrimental to the employee organization, would not be appealable to any tribunal.



II. Arbitration of Unresolved Grievances

More commonly found in collective bargaining agreements are clauses for arbitrating grievances that have not been resolved through the grievance process. Clauses containing provisions for arbitration of disputes are simply regarded as procedures which are substitutes for litigation. United Steel Workers v. Warrior and Gulf Navigation Company (1960) 363 US 574, 582. No magic words such as “arbitration” or “binding arbitration” or “final dispute resolution,” are required. Simply the intent to submit a dispute “to decision by a third party” is sufficient to invoke the strong policy favoring arbitration of commercial disputes. Wolsey Ltd. v. Foodmaker, Inc. (9th Cir. 1998) 144 F.3d 1205, 1208; see also Shearson/American Express, Inc. v. McMahon (1987) 482 US 220, 226. The most important aspect of contractual arbitration is that it be binding. Otherwise, its use as a litigation avoidance tool would be negated.

Binding arbitration clauses are liberally used in collective bargaining agreements to resolve grievances which have exhausted the administrative grievance process. The benefits associated with a clause for binding arbitration as part of the grievance process are, first and foremost, that a neutral third party is appointed mutually by the employer and the employee organization to hear evidence and make a determination based upon findings of fact. Frequently, as in the case with Santa Barbara City College, the district’s administration or board of trustees render a final determination, which, in some cases cannot be appealed to a higher tribunal. This raises grave concerns over the impartiality of the final decision since it can hardly be argued the school district’s administration or the board of trustees are impartial. For example, any determination made by the board of trustees regarding personnel issues, including grievances, is held in closed session. That closed session always involves the advice of the administration, particularly the superintendent, as well as counsel for the school district. Other than open hearing presentation, the employee association is precluded from providing insight to the board of trustees in closed session. The result is a determination that begs impartiality.

Similarly, neither the SBCCIA collective bargaining agreement nor the City College Personnel Policies provide for an evidentiary hearing before the board of trustees nor is there any right to an evidentiary hearing at any stage in the grievance procedure. Typically arbitration by a neutral third party will provide for a factual hearing prior to the arbitrator rendering a determination. This is by all means preferable to the current state of grievance resolution as set forth in the collective bargaining agreement for the Santa Barbara City College Instructors Association as well as the Personnel Policy Manual for Santa Barbara City College.

A potential drawback to invoking binding arbitration as an implement for resolving grievances, is that the decision is binding on the parties. In other words, a bad decision must be lived with since it was agreed to resort to binding arbitration in the event of a dispute. A private arbitrator ruling can typically only be overturned on appeal upon a showing of corruption, fraud, or undue means. Lafarge Conseils Etudes, S.A. v. Kaiser Cement and Gypsum Corporation (9th Cir. 1986) 791 F.2d 1334, 1339. However, given the current process of grievance resolution, which culminates with a final determination by the board of trustees, binding arbitration by a third party neutral is a highly recommended alternative.

The content of an arbitration clause for resolving grievances can be crafted to either limit or expand the arbitrator’s ability to make a determination. Specifics regarding the procedure for arbitration, for example, whether to use the rules of the American Arbitration Association or the rules for contractual arbitration under Code of Civil Procedure Section 1281 et. seq. can also be negotiated. Three examples of grievance procedures culminating with binding arbitration are included with this correspondence for your review. If it is determined that arbitration should be part of the grievance process we can further discuss the particular procedure terms to be negotiated.

Thank you for the opportunity to be of assistance in this matter. Should you have any questions regarding the above, please feel free to contact me.

Very truly yours,

ROBERT A. BARTOSH




The IA Fall Reception was a blast!

Welcome to all new faculty!

and Thank You to all, especially the following, for making it happen:

Kathy O’Connor, for opening her home to us.

Lana Rose, for the Good Eats.

Lou Spaventa and his red hot jazz band.

and all the behind-the-scenes folks who worked very hard to organize, prepare

and execute this thing (you know who you are...)!

 

 

Annual Budget Report

Account Balances Forward: 9/ 1/ 04

 

Checking

Savings

Total

 

 

 

      5,229.00

  118,885.00

  124,114.00

 

Income:

 

 

 

 

 

Dues

46,932.00

 

 

 

 

Interest

1475.00

 

 

 

 

Other Income

441.00

 

 

 

 

 

 

 

 

 

 

Total Income

48,848.00

 

 

 

 

 

 

 

 

 

 

Expenses:

 

 

 

 

 

Payroll

       9,596.00

 

 

 

 

Legal

 

 

 

 

 

     Fassler Presentation

       5,765.00

 

 

 

 

     Consultation and Retainers

       7,464.00

 

 

 

 

Newsletter

       2,882.00

 

 

 

 

Conferences

       4,261.00

 

 

 

 

Dues and Contributions

       2,487.00

 

 

 

 

Flyers and Mailings

     11,838.00

 

 

 

 

Website

       1,340.00

 

 

 

 

Contract Negotiations

     14,000.00

 

 

 

 

Misc. Office

           368.00

 

 

 

 

Receptions

       4,228.00

 

 

 

 

Gifts to Retirees

       1,200.00

 

 

 

 

 

 

 

 

 

 

Total Expenses

     65,429.00

 

 

 

 

 

 

 

 

 

 

Deficit

    (16,581.00)

 

 

 

 

 

 

 

 

 

 

Balances Forward:  8/31/05

 

      7,240.00

100,293.00

  107,533.00



Grievance Basics

Occasionally, a faculty member or members allege that the Board (meaning, any manager/administrator authorized to act for the Board) has committed a violation, misapplication or misinterpretation of the contract or of college policies. In written form, that allegation becomes a grievance. A dispute between faculty members is not considered a grievance.

Grievance procedures are currently in flux. The administration, the Academic Senate, and the IA are all working to improve the grievance policy.

In general, however, a faculty member follows certain steps to resolve his or her grievance. First, the faculty member attempts an informal resolution. This may involve a meeting with the person involved or with an immediate supervisor. If this does not resolve the situation, a formal written grievance is filed.

Some of the issues under discussion right now are:

· Should there be one faculty grievance policy or separate ones to deal with Academic Senate-related grievances and IA-related grievances?

· Should we try to get binding arbitration in our next contract?

· How can mediation be used to help resolve grievances?

· What are reasonable and fair time limits for each step of the grievance process?

· How do the Senate and the IA work to resolve grievances which fall into overlapping areas of responsibility?

We will continue to keep you informed about the progress made on these questions.

Gail Tennen is the IA Grievance Officer. Please contact her with any comments or questions: tennen@sbcc.edu

Rehire Rights for Adjunct Faculty

By Jan Ford

Introduction.

Dear colleagues, it is now time to seriously consider the issue of rehire rights for adjunct faculty.

At the present time, part-time faculty have no such rights, and it is left up to each department to decide how events will proceed. If an adjunct faculty member lives in a department that is sensitive to his or her needs they will be given such rights. On the other hand, it is now possible for any department to completely ignore the adjunct faculty members. This is an unfair situation and the time has now come for us to consider, discuss, and implement a just and compassionate policy that will alleviate this problem.

Part time instructors, in addition to being academic colleagues with the same education and training as full time instructors, are also our fellow human beings. As such they are entitled to basic human rights in the workplace and to be treated with decency.

In this regard, I would view a policy assuring rehire rights to be a fundamental component of any collective bargaining agreement because such a policy is part of a guarantee that a reasonable degree of social justice will be applied to human beings who also happen to be adjunct faculty members.

First of all it should be understood that Two Key rights are essential:

· The right of first refusal. Those currently teaching part-time must be given the chance to take on additional course load before a new instructor is hired.

· The right of accrual. A given instructor, not the position, who has come to work a given percentage, is essentially guaranteed to retain at least that percentage.

Given that, of what should such a policy consist?

Rationale: why these rights are important

As college instructors who want to do the right thing for the student body, the college, and for themselves, faculty need to be protected from the following:

1. The uncertainty of semester to semester assignments and the resulting financial insecurity and emotional stress that accrues from that.

2. The possibility that assignments could be based on favoritism.

3. The risk of experimental curriculum changes.

4. The confidence to freely express ideas in the classroom.

Once these protections are put in place by a substantive rehire rights policy this then could only serve to drastically improve the morale and teaching effectiveness of part-time faculty, which in addition to serving the needs of those colleagues, would certainly improve the quality of instruction on the campus dramatically and would contribute therefore to greater student success and to the success of the mission of the college as a whole.

I believe the above points are the crucial concerns. Given this, I would like to present suggestions as to what specific components of such a policy would look like? I do this so as to open up a healthy and vigorous and in-depth discussion of the issue.

Let us keep in mind that not only would a substantive rehire rights policy be advantageous for adjunct faculty, but would benefit full-time faculty as well by achieving consensus around this issue thus insuring a higher degree of group solidarity among all of our colleagues.

How to Qualify

Qualification for addition to a seniority list would be based on assignment of classes for either an expressed number of semesters or completion of satisfactory evaluations or both. A workable approach could be, for example, four semesters occurring within a period of six consecutive semesters.

Of course, each department might have specialty courses that would require separate seniority lists. For example, in the Sociology/Anthropology Department, not everyone who teaches sociology would necessarily be qualified to teach anthropology and vice versa. Therefore, seniority would need to be assessed separately. It might be broken down even further since Physical Anthropology is very different from Cultural Anthropology. A faculty committee could easily make these determinations, and the department chair could keep track of the changes on a per semester basis.

How to lose your rights

As part time faculty members can gain seniority, they can also lose it. A suggested fair policy would be the lack of assignment of any courses for approximately 3 years. For example: if an adjunct is already on a seniority list and is not assigned a class due to a reduction in department TLU’s, s/he should remain on the seniority list and should retain the right to be continued for six semesters.

If an adjunct is removed from the seniority list and is subsequently rehired, s/he should not be able to recover his/her past seniority date.

Assignments remain fixed

Once set, assignments should remain fixed. Thus if an assignment is made, the instructor cannot be bumped by a more senior faculty member.

If it’s practical, adjuncts should be assigned to the same assignments as the previous semester. If it’s not practical to assign the employee to the same situation the adjunct should be assigned to a comparable position with the same number of hours.

Conclusion

I have attempted to present the essential outline of a fair and equitable rehire rights policy for adjunct instructors. I have deliberately avoided being too specific as to the contract details.

In my view, the above outline represents a fair but essential component of a reasonable program of adjunct faculty rights. What is important is for an open and frank discussion to occur that focuses on key points of principal so as to achieve consensus in a timely manner. This will arm us as a faculty with a collective focus that will ensure a successful implementation in the next contract.

Adjunct Health Insurance: A Final Update

After years on the wish list and months in the negotiating phase, long-term adjuncts at SBCC finally have access to real health care. Thanks to the effort and goodwill of this administration and its allies, SBCC has moved to the front of the line statewide. At a time when other districts are rolling back benefits, we have negotiated insurance that is both comprehensive and affordable.

The plan that is being offered is a Blue Cross PPO -- it will preserve choice for its enrollees. To keep the premiums within a range affordable to adjuncts, we chose a high deductible: $2500 per year. However, once this deductible is met the plan will pay 90% of the cost of care. The premium for the individual is only $2664 per year. Without participation in a group, an individual in the open market would pay at least $1000 more per year and the available coverage would be closer to 70%. This is literally the best plan your money could buy.

Participation is open to any adjunct who has taught a 50% load for eight out of the last ten semesters. This must include the two semesters preceding enrollment. For those adjuncts who have taught a 50% load for eight out of the last ten years, the administration will provide $100 per month (up to a maximum of $1000 per year) toward the cost of the premiums. This represents a contribution of nearly 40% of the cost of the premium. This is an opportunity unique among districts of our size and our funding. Only the more affluent, urban districts have been able to provide such support to their adjunct population.

Please be aware that this is an experimental effort. We need your help. Compiling the list of eligible adjunct faculty will require the co-operation of faculty and administration. HR has published a list based on currently accessible records. The list was also e-mailed to adjunct faculty and to department heads. Because the search for eligible faculty requires documentation that can go back ten years, errors will be made. If you feel that you are eligible but your name is not on the list, please help us by assembling your own records first. Bring copies of your records to the Human Resources office and, if necessary, they will contact the payroll office.

Because the insurance year begins on October 1, the enrollment period for eligible adjuncts runs from September 12 - 21. There will be another enrollment period in the spring semester. This is a learning experience for all of us and the success of this program will depend on our co-operative efforts. The program will be evaluated jointly by the District, the Instructors’ Association and the members of the Benefits Committee. This first year is crucial. Thank you for your patience and your help.

- Lynne Elisabeth Stark Ph.D. / I A Adjunct Representative



I. A. Executive Board

Fall 2005

 

Peter Naylor (’05-’07)                                         Voice: Ext. 2350

                                                  President/Budget Analyst                               E-mail: naylor@sbcc.edu

 

                                                Ed Inks  (’05-’07)                                                 Voice: Ext. 2411

                                                  Vice President                                                   E-mail: inks@sbcc.edu

 

Lynne Stark (’05-’07)                                         Voice: Ext. 3827

                                                  Treasurer/Adjunct Rep.                   E-mail: stark@sbcc.edu

 

                                                Bob Cummings    (’04-’06)                                 Voice: Ext. 2515

                                                  Secretary/Newsletter Editor                           E-mail: cummings@sbcc.edu

 

Gail Tennen (’05-’07)                                          Voice: Ext. 2414

  Grievance Officer                                              E-mail: tennen@sbcc.edu

 

Jan Ford (’05-’07)                                                Voice: Ext. 2228

                                                  Membership Officer.                        .               E-mail: fordj@sbcc.edu

 

                                                Tom Garey (’05-’07)                                            Voice: Ext. 2218

                                                  CCCI Representative                                       E-mail: garey@sbcc.edu

 

Homer Arrington (’04-’06)                                Voice: Ext. 3061

  CCCI Representative                                       E-mail: arringto@sbcc.edu

 

Cornelia Alsheimer  (’05-’07)                          

                                                  Adjunct Rep.                                                     E-mail: alsheime@sbcc.edu