Presentation on theme: "Key Concepts in Higher Education Labor Law"— Presentation transcript:
0Unit 18 February 13, 2014 Academic Personnel Certificate Series Barbara AguirreDirector, Academic Employment and Labor Relations
1Key Concepts in Higher Education Labor Law State law (HEERA) permits higher education employees to organize and select an exclusive representativeBargaining units are defined by a “community of interest” among employeesUniversity 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 separationIf a represented employee or the union believes the University has violated the CBA, issue may be addressed by informal discussions, grievance, or unfair labor chargeUnion has the right to request information necessary to enforce the CBAIndividual University administrators should avoid: interfering with exercise of rights, retaliating for union activity, violating CBA, establishing past practice outside of the CBAMay 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”
2Represented 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 EducationChild Development Demonstration LecturersUnit 17: LibrariansBoth 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
3Represented Academic Units (cont’d) BX: Academic Student Employees---currently Teaching Assistants, Readers, Tutors, Associate-Ins. Stay tuned for efforts to organize Graduate Student ResearchersPX: Post-Doctoral ScholarsBoth units are represented by UAW (United Auto Workers).Both CBAs are administered by Labor Relations, with help from Graduate StudiesASE bargaining currently underway---may get confrontational!
4Terminology 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 departmentContinuing Appointee: A lecturer who has been reappointed after six years of service in a specific departmentAnnual Assessment: yearly evaluation of a pre-6 lecturer who is being considered for reappointmentContinuing 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)
5Where’s the MOU? No more printed contracts Go to:Scroll to “IX”More questions?Contact Dean’s OfficeContact Academic AffairsCurrent agreement effective until June 2015Interpretation is continual!
6Interpreting the MOUWe 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 doingCan 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.
7Key Unit 18 ConceptsCount quarters/semesters in same dept on same campusAppointment percentage is determined by Instructional Workload Credit (IWC) assigned to individual coursesThere is an automatic salary increase at the beginning of the fourth yearAfter six years and a thorough performance review, a Lecturer may become Continuing AppointeeContinuing Appointee has a right to a particular appointment percentageContinuing Appointees are eligible for merit reviews and increasesWe will address each of these concepts individually
8Article 7a–Pre-6 Appointments: Accumulating Quarters Counting quarters and semesters toward eligibility for Continuing Appointment is:By department, program or unitAt a single campusAt any appointment percentage time in a Unit 18 title.Accumulated quarters can be lost if there is a break in serviceSummer 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.
9Planning for Appointments, Reappointments, and Reviews Planning and assessment of instructional need is crucialBegin with departmental determination of course offerings and teaching needsIf 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 planIf 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, reductionI you can’t make the June 1 deadline, please document whyRecruitments are not covered by the MOUContinuing appointees who are under 100% must be “considered” for any new course for which they are qualified
10More on Planning…Each School/College has guidelines for appointments and assessments. Consult the guidelines for help in:Assessing instructional needsDetermining best method for instructional deliveryEvaluating performanceConsult about changes to guidelines---Notice to union is sometimes required
11Overall view of Appointment Process Initial AppointmentAnnual Review of PerformancemapNon-ReappointmentContinued Appointment unless resignation, layoff, or dismissalReappointmentFourth Year Salary BumpNeeds AssessmentMerit Review Every Three YearsNo Needs Non-reappointmentNeed Confirmed = Excellence ReviewPositive Review by CAP and VP = Continuing Appointment
12Initial Appointments of Pre-6 Lecturers Eligibility for Appointment:Demonstrated experience in teachingPossesses advanced degree in the relevant fieldNot currently a registered student at any UC campusMay not have been denied tenure at any UC campus within 5 years of Unit 18 appointmentSome 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
13Appointment ProcessLecturer appointments follow the standard process: establish a need, search for the best candidate, review proposed appointment in the department, submit appointment for Dean’s decisionPlanning 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 needsThe MOU does not cover recruitment. Refer to APM UCD-500If you have Continuing Lecturers who do not have 100% appointments, consider whether they are qualified to teach the proposed courseNot 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!
14Items 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 practicableDo an annual appointment, if possibleIf 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 madeIf 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!
15Pre-6 ReappointmentsPre-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 salaryDean has reappointment authority, based on request and recommendation from departmentDon’t keep someone whose performance is not excellent or likely to become excellentWe 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.
16Assessment of Pre-Six Lecturers A reappointment should always be preceded by some kind of a performance assessmentUC is not required to have a formal review process for all pre-six Lecturers who seek reappointmentTechnically, 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 occurDocument your communications about the reappointment processLots 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
17Pre-6 Reappointments: Assessing Performance when Need Exists The assessment should determine whether the pre-6 lecturer has shown:Demonstrated competence in the fieldDemonstrated ability in teaching and other assigned duties*Assigned duties is important and we will talk about laterSome kind of written documentation is very good to have!
18Pre-6 ReappointmentsThere is no need to assess or reappoint a pre-6 Lecturer in situations where teaching needs will be met by:Senate facultyA graduate student in the same or related disciplineAn unanticipated distinguished Visiting or Adjunct ProfessorOr when:Department faculty determine that academic need requires appointment of someone new to satisfy a need for intellectual diversityThe courses the Lecturer has taught or is qualified to teach will not be offered the following year
19Pre-6 Reappointments, Continued Each school/college has established procedural guidelines; Be sure to follow and apply them consistentlyInput from a qualified Continuing Lecturer is encouraged, but not requiredDocument reasons behind reappointment decisions, especially any negative informationThere is a salary increase upon reappointment to a fourth year--- don’t let the increase influence the reappointment decisionSalary increase is two steps. Automatic increase, not a merit
20Process 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).
21Initial Continuing Appointments Now we have someone who has accumulated enough quarters at an excellent level who is becoming eligible for a continuing appointmentCONFIDENTIAL DRAFT
22Process 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.
23Process 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
24Process 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 quarterThis 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 conductedFor 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
25Process 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.
26Process 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.
27Process 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.
28Initial 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 reviewEach School/College and department have their own guidelines; be sure to follow them consistently and carefully
29Initial Continuing Appointment: Excellence Review The criteria for a Continuing Appointment is teaching excellence, which may be demonstrated by:Assessments by current and former studentsAssessments by departmental facultyDescriptions of classroom observationsEvaluation of new instructional techniques developed by the LecturerDon’t add or subtract criteria
30Initial Continuing Appointment: Excellence Review Reviewers should consider:Lecturer’s command of the subject matter and continued growth in mastering new topicsLecturer’s ability to organize and present course materialsLecturer’s ability to awaken in students an awareness of the importance of the subject matterLecturer’s ability to arouse curiosity in beginning students and to stimulate advanced students to do creative workAchievements of the Lecturer’s former students in their fieldThese are the ways a lecturer can show that they are excellent
31Process 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!
32Continuing Appointments—What do they mean? If a Continuing Appointment is awarded, the appointment is continuous unless terminated by layoff, dismissal, or voluntary separationThe 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.
33Establishing 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 yearA base appointment may be temporarily augmented for one year to meet unexpected needsBe sure to provide a written description of the appointmentHow do we set the percentage? Welcome to the world of IWCs!Avoid repeated augmentations!We can consult with the union on special situations
34Instructional 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)
35Instructional 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.
36Instructional 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
37Instructional 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.
38Workload 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.
39Workload 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
40Ending a Continuing Appointment A Continuing Appointment ends when there is:Resignation/RetirementLayoffDismissal based on:Just cause (misconduct)Poor teaching performance
41Layoff 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
42Layoff 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 calculatedevens playing field between NSF paid 9/9 and those paid 9/12.
43Layoff 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 courseAdvance 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.
44Layoff and Reduction in Time: Alternatives to Layoff UC is obligated to consider alternatives to layoff.Alternatives include:attritionnon-reappointment of pre-six NSF prior to resorting to layoffIf 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)
45Layoff 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..
46Discipline 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 necessaryThe 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 occurSignificant changes made in successor bargaining
47Discipline 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.
48Discipline and Dismissal: Poor Performance If improvement is not satisfactory, the University may conduct a review for potential dismissalThe University must notify the Lecturer and the union in writing that a review will take placeThe 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 onCommand 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
49Discipline 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
50Summer SessionSummer 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 summerIn 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 studentsEven if the criteria are met, a Lecturer cannot get more than two semesters or three quarters of credit in a 12 month period
51Leaves (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.
52On-Line InstructionIf 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
53TipsIf 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.