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Key Concepts in Higher Education Labor Law

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0 Unit 18 February 13, 2014 Academic Personnel Certificate Series
Barbara Aguirre Director, Academic Employment and Labor Relations

1 Key Concepts in Higher Education Labor Law
State law (HEERA) permits higher education employees to organize and select an exclusive representative Bargaining units are defined by a “community of interest” among employees University is required by law to recognize and bargain with the exclusive representative of a bargaining unit over “terms and conditions of employment” Bargaining results in a “collective bargaining agreement” (CBA, MOU, Contract) CBA guides the relationship and interaction of the University with the members of the bargaining unit in almost all interactions between hiring and separation If a represented employee or the union believes the University has violated the CBA, issue may be addressed by informal discussions, grievance, or unfair labor charge Union has the right to request information necessary to enforce the CBA Individual University administrators should avoid: interfering with exercise of rights, retaliating for union activity, violating CBA, establishing past practice outside of the CBA May occasionally have to ask you to gather information---sorry! Union very eager to claim that we have a “past practice” of doing something not supported by the MOU---one reason we do training to make sure you are not establishing a “practice”

2 Represented UC Academic Units
Unit 18: Non-Senate Instructional appointees, including: Lecturers/Senior Lecturers (not Lecturers with Security of Employment or Lecturers w/o Salary) Supervisors of Teacher Education Child Development Demonstration Lecturers Unit 17: Librarians Both Unit 17 and Unit 18 are represented by UC-AFT (University Council-American Federation of Teachers) Both CBAs are administered by Academic Affairs (with help from Labor Relations) No MOU definition of “Senior Lecturers” Some departments interested in hiring into Lecturer with Security of Employment title

3 Represented Academic Units (cont’d)
BX: Academic Student Employees---currently Teaching Assistants, Readers, Tutors, Associate-Ins. Stay tuned for efforts to organize Graduate Student Researchers PX: Post-Doctoral Scholars Both units are represented by UAW (United Auto Workers). Both CBAs are administered by Labor Relations, with help from Graduate Studies ASE bargaining currently underway---may get confrontational!

4 Terminology Contract, CBA, MOU
NSF: Non-Senate faculty (also IX, Unit 18, Lecturers) Pre-6: A lecturer in the first six years of employment in a specific department Continuing Appointee: A lecturer who has been reappointed after six years of service in a specific department Annual Assessment: yearly evaluation of a pre-6 lecturer who is being considered for reappointment Continuing Appointment Review: Thorough review before reappointment beyond 6 years; also known as “excellence review” Pre-6 is less than 19 quarters for academic year appointees, and less than 12 semester for fiscal year appointees. Achieving Continuing Appointment is a major step---not tenure, but think of it as a major affirmation that the lecturer is an excellent teacher and will continue to be employed (with some caveats)

5 Where’s the MOU? No more printed contracts
Go to: Scroll to “IX” More questions? Contact Dean’s Office Contact Academic Affairs Current agreement effective until June 2015 Interpretation is continual!

6 Interpreting the MOU We frequently encounter questions that are not clearly addressed or answered in the MOU. In such a situation, contact a colleague or ask the academic personnel specialist in the Dean’s Office. If the MOU is silent, we might consider: Does the APM cover the subject? Do we have an existing practice? What makes sense? What did the bargainers intend? We want to maintain consistency and avoid having one department’s practices being used by the union to argue that it should apply to all lecturers. We sometimes consult systemwide to see what other campuses are doing Can check with OP to see if there was “table talk” Dean’s office has lots of experience, frequently calls me or analyst in Academic Affairs for our opinion.

7 Key Unit 18 Concepts Count quarters/semesters in same dept on same campus Appointment percentage is determined by Instructional Workload Credit (IWC) assigned to individual courses There is an automatic salary increase at the beginning of the fourth year After six years and a thorough performance review, a Lecturer may become Continuing Appointee Continuing Appointee has a right to a particular appointment percentage Continuing Appointees are eligible for merit reviews and increases We will address each of these concepts individually

8 Article 7a–Pre-6 Appointments: Accumulating Quarters
Counting quarters and semesters toward eligibility for Continuing Appointment is: By department, program or unit At a single campus At any appointment percentage time in a Unit 18 title. Accumulated quarters can be lost if there is a break in service Summer Session? Mostly no, but maybe…. For example, quarters taught in English Department do not count towards eligibility for a Continuing Appointment in Comparative Literature Department. It’s important to keep track of quarters in each department. Continuing appointments in more than one department are possible.

9 Planning for Appointments, Reappointments, and Reviews
Planning and assessment of instructional need is crucial Begin with departmental determination of course offerings and teaching needs If the planning process reveals a need for a lecturer, then current lecturers are considered (qualifications and performance) If currently appointed lecturers cannot satisfy the need, conduct a recruitment according to departmental plan If possible, the need for lecturers for the upcoming academic year should be known, and appointment letters issued, by June 1 (or as soon thereafter as possible) Planning the instructional need is so important and is the basis for several other personnel actions: appointment, reappointment, layoff, augmentation, reduction I you can’t make the June 1 deadline, please document why Recruitments are not covered by the MOU Continuing appointees who are under 100% must be “considered” for any new course for which they are qualified

10 More on Planning… Each School/College has guidelines for appointments and assessments. Consult the guidelines for help in: Assessing instructional needs Determining best method for instructional delivery Evaluating performance Consult about changes to guidelines---Notice to union is sometimes required

11 Overall view of Appointment Process
Initial Appointment Annual Review of Performance map Non-Reappointment Continued Appointment unless resignation, layoff, or dismissal Reappointment Fourth Year Salary Bump Needs Assessment Merit Review Every Three Years No Needs Non-reappointment Need Confirmed = Excellence Review Positive Review by CAP and VP = Continuing Appointment

12 Initial Appointments of Pre-6 Lecturers
Eligibility for Appointment: Demonstrated experience in teaching Possesses advanced degree in the relevant field Not currently a registered student at any UC campus May not have been denied tenure at any UC campus within 5 years of Unit 18 appointment Some departments have special programs that encourage the appointment of their own students who have recently received their PhD. Such programs must serve the department’s academic plan and must have gone through appropriate “consultative processes.” “Time Limited” Appointments scrutinzed

13 Appointment Process Lecturer appointments follow the standard process: establish a need, search for the best candidate, review proposed appointment in the department, submit appointment for Dean’s decision Planning is important, but last minute needs arise. It may be useful to conduct a “generic” search to establish a pool of candidates to fill temporary needs The MOU does not cover recruitment. Refer to APM UCD-500 If you have Continuing Lecturers who do not have 100% appointments, consider whether they are qualified to teach the proposed course Not covered by MOU, but union sometimes complains if we don’t follow our established process. Appointments in any one quarter should not exceed 100%, but exceptions possible in some situations!

14 Items of Special Interest to the Union
Appointment letter for pre-six year NSFs with annual appointments should be issued by June 1 each academic year or as soon as practicable Do an annual appointment, if possible If department reappoints an NSF to a term by term appointment and the Lecturer’s previous appointment was for an academic year, UC shall provide a copy of the reappointment letter to UC-AFT and be prepared to explain why change in appointment was made If the lecturer is assigned work in each quarter, must do an AY appointment. Sometimes you don’t know until after the quarter has started that you will be able to offer more work to the lecturer---Consult on that!

15 Pre-6 Reappointments Pre-6 reappointments are year by year, with “no expectation of reappointment” However, the reappointment decision should be based on departmental need and the Lecturer’s qualifications and performance. Do not base reappointment decisions on a desire to keep a lecturer from accumulating quarters or a desire to hire someone new at a lower salary Dean has reappointment authority, based on request and recommendation from department Don’t keep someone whose performance is not excellent or likely to become excellent We say “no expectation of reappointment” but not quite true. Chair should do assessment (not fancy) offer advice to lecturer, and then reassess. By the end of the 4th year, you should be pretty sure that this person is going to pass an excellence review. Avoid keeping everyone for 3 years and then deciding they aren’t good enough---looks like we are avoiding the pay increase.

16 Assessment of Pre-Six Lecturers
A reappointment should always be preceded by some kind of a performance assessment UC is not required to have a formal review process for all pre-six Lecturers who seek reappointment Technically, UC is required to assess a pre-six Lecturer only when considering the lecturer for reappointment (is there a need?) Before assessment occurs, the Lecturer shall be notified in writing of the review criteria, the form of assessment that the department, program, or unit will follow for reappointment and when the assessment will occur Document your communications about the reappointment process Lots of tension with the union about these issues. Don’t be afraid to communicate with the lecturer’s about their plans. The Chair’s assessment does not have to be formal, but if performance is not adequate, the Chair should communicate with the lecturer about what needs to improve---and document it. Watch post 6 avoidance (churning). We can allow for some improvement, but should be excellent after a few years

17 Pre-6 Reappointments: Assessing Performance when Need Exists
The assessment should determine whether the pre-6 lecturer has shown: Demonstrated competence in the field Demonstrated ability in teaching and other assigned duties* Assigned duties is important and we will talk about later Some kind of written documentation is very good to have!

18 Pre-6 Reappointments There is no need to assess or reappoint a pre-6 Lecturer in situations where teaching needs will be met by: Senate faculty A graduate student in the same or related discipline An unanticipated distinguished Visiting or Adjunct Professor Or when: Department faculty determine that academic need requires appointment of someone new to satisfy a need for intellectual diversity The courses the Lecturer has taught or is qualified to teach will not be offered the following year

19 Pre-6 Reappointments, Continued
Each school/college has established procedural guidelines; Be sure to follow and apply them consistently Input from a qualified Continuing Lecturer is encouraged, but not required Document reasons behind reappointment decisions, especially any negative information There is a salary increase upon reappointment to a fourth year--- don’t let the increase influence the reappointment decision Salary increase is two steps. Automatic increase, not a merit

20 Process for Initial Continuing Appointments
Pre-Six Year NSF who have completed 6 years (18 quarters or 12 semesters) will be eligible for consideration for Continuing Appointment provided that: The University determines that there is instructional need in the department/program/unit for what will be the NSF’s 7th year of service. If there is Instructional Need, the NSF must be found to be excellent as a result of an academic review (the Excellence Review).

21 Initial Continuing Appointments
Now we have someone who has accumulated enough quarters at an excellent level who is becoming eligible for a continuing appointment CONFIDENTIAL DRAFT

22 Process for Initial Continuing Appointments: Instructional Need
Instructional Need exists when the University determines that a course(s) taught by the Lecturer will continue to be taught in what will be the Lecturer’s 7th year of service and/or there are other courses to be taught and the Lecturer is qualified to teach them. Typically, the Lecturer has already taught the course(s) but this is not absolutely necessary for a finding of Instructional Need. If you project no need, please consult! What is necessary for finding of instructional need? Class will be taught, and lecturer is qualified to teach it.

23 Process for Initial Continuing Appointments: Instructional Need (cont’d)
What if there is no instructional need? If there is no instructional need for the Lecturer, no excellence review should be conducted and the Lecturer’s employment in that department will end as of the appointment end date. If this happens---consult with Academic Affairs! We are sure to get a call from the union if this happens

24 Process for Initial Continuing Appointments: Timing of Assessment
The Instructional Needs Assessment must be completed at least 12 months prior to the end of the 12th semester or 18th quarter This timing is linked to deadline for the completion of the excellence review, which is typically completed in the academic year following the year in which the needs assessment was conducted For a Lecturer who teaches year round, the needs assessment will be completed by the end of the 10th semester or 15th quarter of service (during the 5th year of service). New contract language

25 Process for Initial Continuing Appointments: Timing of Assessment (cont’d)
Where the Lecturer teaches intermittently (ie. one course each Spring) the 18th quarter or 12th semester of service may not be the year immediately following the Lecturer’s 5th year of service. In this instance, the University can perform the needs assessment later, so long as it is completed 12 months prior to the completion of the 18th quarter or 12th semester, which allows for a more accurate assessment of need.

26 Process for Initial Continuing Appointments: Example for the Timing of Assessment
Lecturer completes 15 quarters of teaching in the same department in Spring Quarter 2011 but is not scheduled to teach 18th quarter until Spring 2013. Rather than having to complete the needs assessment by the end of the 15th quarter (2011), in this instance the department has until Spring Quarter 2012 to complete the needs assessment.

27 Process for Initial Continuing Appointments: Excellence Review
The Excellence Review is an academic review used to determine whether the Lecturer is qualified to be a Continuing Appointee. There can be no Continuing Appointment without a positive excellence review. The revised contract states that the excellence review must be completed in the academic year in which the NFS completes the 18th quarter or 12th semester of service. Sometimes we are late. If so, we can make a retroactive appointment. If the delay is clearly the fault of the lecturer, please document.

28 Initial Continuing Appointment: Excellence Review
The Department must notify the Lecturer, in advance and in writing, of the timing, the process, and the criteria for the excellence review Each School/College and department have their own guidelines; be sure to follow them consistently and carefully

29 Initial Continuing Appointment: Excellence Review
The criteria for a Continuing Appointment is teaching excellence, which may be demonstrated by: Assessments by current and former students Assessments by departmental faculty Descriptions of classroom observations Evaluation of new instructional techniques developed by the Lecturer Don’t add or subtract criteria

30 Initial Continuing Appointment: Excellence Review
Reviewers should consider: Lecturer’s command of the subject matter and continued growth in mastering new topics Lecturer’s ability to organize and present course materials Lecturer’s ability to awaken in students an awareness of the importance of the subject matter Lecturer’s ability to arouse curiosity in beginning students and to stimulate advanced students to do creative work Achievements of the Lecturer’s former students in their field These are the ways a lecturer can show that they are excellent

31 Process for Initial Continuing Appointment
A committee shall review and make recommendations about a Lecturer’s performance pertaining to the Excellence Review for Continuing Appointments. The Committee shall be at the department level, except where not practicable, in which case it will be as close to the departmental level as is practicable. Such committees will be comprised of academic appointees who have sufficient knowledge of the Lecturer’s expertise. The University shall make reasonable efforts to ensure that a qualified Lecturer will participate on such review committees. Lecturer may provide a self-statement, letters of assessments, written list of peers from whom input may be solicited. Reviews are rarely negative at this stage!

32 Continuing Appointments—What do they mean?
If a Continuing Appointment is awarded, the appointment is continuous unless terminated by layoff, dismissal, or voluntary separation The performance of Continuing Appointees is reviewed every three years in the merit review process. If performance drops off, consult with Academic Affairs. A 2 step merit increase is awarded at the time of Continuing appointment. Deferrals of one year permissible. University can give merit early.

33 Establishing the Continuing Appointment Percentage
The Continuing Appointment base is “the percentage appointment as initially set by the department in which the Lecturer is appointed to a Continuing Appointment” Normally, the base appointment will be equal to the appointment percentage during the previous academic year A base appointment may be temporarily augmented for one year to meet unexpected needs Be sure to provide a written description of the appointment How do we set the percentage? Welcome to the world of IWCs! Avoid repeated augmentations! We can consult with the union on special situations

34 Instructional Workload Credit (IWC)
Important Term: Instructional Workload Credit is a critical term established by the contract. It is often referred to as an “IWC.” An IWC is a measure of effort expected to present a particular course. IWCs are set at the time the course is approved, but can be changed with the approval of the Vice Provost and notice to the union. Important Term: Instructional workload credit (a unit of measure)

35 Instructional Workload, cont.
100% appointments may not exceed 9 IWCs for a quarter campus or 6 IWCs at a semester campus. For certain programs the maximum IWCs may be lower. Maximum number of Writing and Foreign Language instructional courses that can be assigned to a 100% appointee on quarter campus is 8. Most of you will not have to deal with establishing new IWCs. You may be asked to seek changes if the course expectations change. Always consult with your Dean’s Office if this happens.

36 Instructional Workload: Equivalencies
Any additional assigned duties must be separately compensated . For these assigned duties, UC must provide equivalencies based on actual work required, which can be some percentage of an IWC (e.g. .75 IWC). For example, if a Lecturer is assigned committee work, curriculum development, or advising duties, an equivalency should be provided and the appointment percentage will increase. Except in very rare circumstances with approval from the Vice Provost, appointments may not exceed 100% for the year. Must be assigned. Consult about how to value it

37 Instructional Workload: Enforcement
Workload is a matter of great interest to the union. Schools/Colleges have their own mechanisms for establishing an IWC for a course---changes are not common. However, workload might change if there are enrollment changes, additional writing requirements, etc. If workload changes are proposed, notify Academic Affairs. The Vice Provost, Academic Affairs, must approve IWC changes, after notice to the union.

38 Workload Enforcement –Union Rights
Only the UC-AFT can file a grievance based on the following: An allegation that UC materially increased the amount of work associated with an instructional offering or other assigned duty. Examples of what “materially increase” looks like, e.g., increase grading-intensive course enrollment from 20 to 25, requiring weekly quizzes & added two papers etc. Union has the burden of proving that, after being apprised of the increase by the UC-AFT and/or the NSF, the University failed to direct/implement a modification that would alleviate the increase in workload. Until grievance is resolved, NSF must perform the assigned duties.

39 Workload Enforcement –Union Rights (cont’d)
If matter goes to arbitration, arbitrator’s scope is limited to whether there was a material increase in the workload and whether UC modified the assigned duties to mitigate the change. Arbitrator does not have the authority to assign an IWC value to the instructional offering at issue (i.e. she believes course should have 1.25 IWC rather than 1). The most arbitrator can do is order UC to reconsider the assigned IWC

40 Ending a Continuing Appointment
A Continuing Appointment ends when there is: Resignation/Retirement Layoff Dismissal based on: Just cause (misconduct) Poor teaching performance

41 Layoff and Reduction in Time
Layoff is an involuntary separation from employment due to lack of work, budgetary considerations, or programmatic change that results in lack of work. Layoff typically refers to full separation while Involuntary Reduction in Time (‘RIT’) refers to a course reduction resulting in a lower appointment percentage. Important Point: Even for NSF appointed 9/12, notice is based on when the NSF begins assigned duties, not when the NSF goes on University payroll

42 Layoff and Reduction in Time Seniority
Order of layoff and/or RIT in this contract must be first based on special skills, qualifications, or abilities and then by seniority. Seniority is based on academic terms (quarters) on pay status at any % of time in the bargaining unit in same department. If there is a tie between NSF based on this calculation, tie-breaker is based on the number of academic terms at 50% appointment or greater. Negotiated major change in how in seniority is calculated evens playing field between NSF paid 9/9 and those paid 9/12.

43 Layoff and Reduction in Time: Notice Requirement
This MOU requires advance notice for RIT and layoff from 30 calendar days up to full 12 months for full separation of a Continuing Appointee. If RIT is for one IWC or one course (since certain courses > 1 IWC), notice must be at least 30 calendar days prior to the first day of assigned duties, 60 days for a RIT over one course Advance notices are to be issued based on the first day of instruction for the quarter in which the layoff or RIT will be effective. Lecturers paid 9/12 (and who receive pay in advance of service) may be asked to repay any salary paid for instruction that would have taken place after the effective date of the layoff. University must provide a copy of the layoff notice to the union within one business day of issuing the notice to the Lecturer. This contract requires advance notice for RIT and layoff between 30 to 90 calendar days. Full separation layoff for NSF with continuing appointments requires a full 12 months of advance notice.

44 Layoff and Reduction in Time: Alternatives to Layoff
UC is obligated to consider alternatives to layoff. Alternatives include: attrition non-reappointment of pre-six NSF prior to resorting to layoff If Union agrees, department may invite all NSF in department to volunteer for layoff—don’t even think about this without contacting Academic Affairs! An NSF who volunteers to be laid off out of seniority order retains full layoff rights (including notice and re-employment)

45 Layoff and Reduction in Time: Rehire Rights
Lecturers who have been laid off or reduced in time have re-employment rights as follows: Rehire rights are triggered when the University decides to fill a vacancy in the same department and title code from which an NSF has been laid off. If there is no substantial difference in qualifications, rehire is in reverse order of layoff (last out, first in). Rehire rights for Continuing Appointees expire two years from the date of layoff. For Pre-6 Lecturers, the reemployment period is equal to the duration of the Lecturer’s appointment from which s/he was laid off. See contract appendix for title code groupings. .

46 Discipline and Dismissal: Poor Performance
If there is a “significant decline in the quality of the Continuing Appointee’s performance,” the unit head (Chair) may determine that a remediation program is necessary The Unit Head must discuss the problem with the Lecturer and then follow up with a remediation plan that identifies the areas where improvement is necessary and a reasonable time within which the improvement must occur Significant changes made in successor bargaining

47 Discipline and Dismissal: Poor Performance, continued
At the end of the “reasonable time” period, the Unit Head determines whether the Lecturer has satisfied the requirements of the remediation plan (“RP”). If the Lecturer has satisfied the requirements of the RP, nothing else need be done. Important Note: Fact that RP was in effect should not disqualify NSF from a merit increase if the unit head determines that elements of RP were satisfied.

48 Discipline and Dismissal: Poor Performance
If improvement is not satisfactory, the University may conduct a review for potential dismissal The University must notify the Lecturer and the union in writing that a review will take place The review process mirrors the “excellence review” in terms of the composition of committee and the process by which performance is evaluated. The Lecturer will be evaluated on Command of subject matter and continued growth in mastering new topics; The ability to organize and present course materials; Whether or not the requirements identified in the remediation plan have been met

49 Discipline and Dismissal: Misconduct
Discipline may be letter of censure, suspension without pay, reduction in pay, or dismissal for misconduct/dereliction of academic duty. With exception of a letter of censure, all disciplinary actions require a notice of intent. All discipline must be based on a finding of “just cause.” Consult with Academic Affairs on any disciplinary issue

50 Summer Session Summer Session has its own article because it is not a regular academic term and certain terms and conditions in the MOU do not apply during summer In the past, summer instruction did not provide credit toward the 18 quarter count for eligibility for Continuing Appointments. Now, quarter credit will be provided if: The course was taught by a Lecturer during the regular session and is now only offered during summer session, and the course is a required course for UC students Even if the criteria are met, a Lecturer cannot get more than two semesters or three quarters of credit in a 12 month period

51 Leaves (Sick Leave) Generally speaking, because most Lecturers are academic year appointees and they do not accrue sick leave. As academic year appointees, however, they are covered by APM 710 which provides paid medical leave for certain academic employees who don’t accrue sick leave. Fiscal year Lecturers on pay status > 50% accrue up to one day of sick leave per month.

52 On-Line Instruction If your department is planning on developing an on-line course, and if the course has been taught by a lecturer in the past, please make sure your dean’s office is aware and that Academic Affairs is consulted. Office of the President is developing guidelines to help us avoid conflict with the union over this issue---stay tuned. CONFIDENTIAL DRAFT

53 Tips If you are going to familiarize yourself with any part of the MOU, read article 7a, 7b, and 7c (Appointments) Consult, consult, consult. We did not talk about grievances, but they are no fun.

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