Name that Section - Frequently Used Education Code and Title 5 Sections for Community College Districts

However, if a case proceeds to arbitration without representation by the exclusive representative, the resulting decision shall not be considered a precedent for purposes of interpreting tenure procedures and policies, or the collective bargaining agreement. The decision will affect only the result in that particular case. When arbitrations are not initiated by the exclusive representative, the district shall require the employee submitting the grievance to file adequate security to pay the employee’s share of the cost of arbitration with either the arbitrator or another appropriate party designated in the collective bargaining agreement. 18 a. Non-reelection of a Probationary Employee First- and second-year probationary employees are permitted to grieve their non-reelection solely on the narrow grounds that the community college district allegedly violated, misinterpreted, or misapplied its policies and procedures concerning the evaluation of the employee. The employee may not challenge the decision to non-reelect on its merits. b. Denial of Tenure Where a district provides notice by March 15 that tenure has been denied, the employee may file a grievance on somewhat broader grounds than the non-reelection of a probationary employee. The grievant may allege that the decision “to a reasonable person was unreasonable” as well as allege that the district violated, misinterpreted, or misapplied its policies and procedures concerning the evaluation process. 19 While employees may grieve tenure denial, the remedial authority of the arbitrator to grant tenure is very limited. The Education Code imbues arbitrators with the power to grant tenure if and only if the district failed to give proper notice on or before March 15. 20 It also empowers arbitrators to issue other “make-whole” remedies, such as back pay and benefits, reemployment in a probationary position, and reconsideration. 21 Procedures for reconsideration of decisions not to grant tenure may be negotiated by the governing board and the exclusive representative of faculty under Government Code section 3540 et seq . (“EERA”). 22

Be careful about the use of student complaints when deciding whether to grant tenure. Many collective bargaining agreements include student complaints in the evaluation procedure and have rules about their use. If the district wishes to include student complaints, it must follow the CBA rules. If the district fails to follow the CBA procedure and uses the student complaints to deny tenure, the employee may win a grievance.

LCW Practice Advisor

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts ©2018 (c) Liebert Cassidy Whitmore 10