28 day free trial

 

 

  

LawMemo - First in Employment Law

Home MyLawMemo About Us   Arbitration Articles

Search arbitrators | National Arbitration Center | Search awards 

 

Title: California Polytechnic State University and California Faculty Association
Date: July 4, 2007
Arbitrator: Allen Pool
Citation: 2007 NAC 128

 

American Arbitration Association
Case No. 72 390 1325 06

C. ALLEN POOL, Arbitrator
Arbitrator's Case No. 4-19-07

IN ARBITRATION PROCEEDINGS PURSUANT TO
AGREEMENT BETWEEN THE PARTIES

California Faculty Association Representing 
California State University Faculty 

                            and

California Polytechnic State University,
San Luis Obispo

(Pinard Grievance)

 

ARBITRATOR'S

OPINION AND AWARD

July 4, 2007

 


 

           

           

            This Arbitration arose pursuant to Agreement between the California Faculty Association, hereinafter referred to as the “Association”, and California Polytechnic State University at San Luis Obispo, hereinafter referred to as the “University”, under which C. ALLEN POOL through procedures of the American Arbitration Association was selected by the parties to serve as the Arbitrator.  The Parties stipulated that the matter was properly before the Arbitrator and that his decision will be final and binding.

            The hearing was held in the San Luis Obispo, California on April 19, 2007 at which time the parties were afforded the opportunity, of which they availed themselves, to examine and cross-examine witnesses and to introduce relevant evidence, exhibits, and argument.  The witnesses were duly sworn and no written transcript was made of the hearing.  Post hearing briefs were timely submitted to and received by the Arbitrator on May 24, 2007 at which time briefs where exchanged between the parties by the Arbitrator and the record was closed.

APPEARANCES:

For the Association: For the University:

Gerry Daley
Representation Specialist
California Faculty Association
5933 W. Century Blvd., Suite 220
Los Angeles, CA 90045
310.641.4430 ext. 23



                                                                       
Carlos Córdova
University Legal Counsel
California Polytechnic State University
San Luis Obispo, CA 93407
805.756.5529



STIPULATED ISSUES

Did the University have cause to administer the disciplinary action to Dr. Leo Pinard?  If yes, what shall be the appropriate sanction?

 

RELEVANT PROVISIONS OF THE AGREEMENT

 

Article 15 Evaluation

 

General Provisions

15.8          The Working Personnel Action File shall be defined as that file specifically generate for use in a given evaluation cycle.   That file shall include all required forms and documents, all information specifically provided by the employee being evaluated, and information provided by faculty unit employees, students, and academic administrators.  It shall also include all faculty and administrative level evaluation recommendation from the current cycle, and all rebuttal statements and responses submitted.

 

Periodic Evaluation of Tenure Faculty Unit Employees

15.29   For the purpose of maintaining and improving a tenured faculty unit employee’s effectiveness, tenured faculty unit employees shall be subject to periodic performance evaluations at intervals of no greater than five (5) years.  Such periodic evaluations shall be conducted by a peer review committee of the department or equivalent unit, and the appropriate administrator.  For those with teaching responsibilities, consideration shall include student evaluations of teaching performance.

 

Article 19 – Disciplinary Action Procedure

 

Scope of Disciplinary Action:

19.1          Sanctions imposed in a disciplinary action shall be limited to dismissal, demotion or suspension without pay.

 

Disciplinary Action Arbitration Procedure:

19.15      It shall be the function of the arbitrator to determine whether cause for disciplinary action existed and to affirm, modify, or deny the sanction or pending sanction.

19.22      Each party shall bear the expenses of preparing and presenting its own case. …… The cost for the services of the arbitrator shall be borne by the CSU.

 

Relevant California State Statutes and Regulations

 

California Education Code Governing CSU Faculty

 

Section 89535. Any permanent or Probationary employee may be dismissed, demoted, or suspended for the following causes:

            (b) Unprofessional conduct.

            (d) Incompetency.

            (f) Failure or refusal to perform the normal and reasonable duties of the position.

 

BACKGROUND

            The Grievant, a teaching professor at the University for over thirty-seven years, earned his Ph.D. from Notre Dame University in 1971.  He was tenured at the University in 1974 and became a Full Professor in 1978. His teaching assignments are within the College of Liberal Arts’ Department of Social Sciences where he teaches lower and upper division Sociology courses.

            A focal point in this case is the negotiated faculty evaluation review process expressed in Article 15 of the Collective Bargaining Agreement.[1] The faculty review process is used for period evaluations, for promotions, for attaining tenure, and for evaluating tenured faculty.  When used to evaluate tenured faculty the process is referred to as a Post-Tenure Review.  

            Article 15 requires that tenured faculty receive a Post-Tenure Review at least every 5 years.  The purpose of the review is to look at what has occurred since the professor’s last evaluation to determine if the professor is maintaining the standards expected of a full time tenured professor.  The review process consists of peer evaluations by colleagues who teach the same or similar courses.  Other participants in the review process are the Department Chair and the Dean of the College of Liberal Arts. Student evaluations are an element in the review and are conducted every two years for faculty with teaching assignments. 

            This Post-Tenure Review process focuses on three components:  Teaching Performance, Professional Growth Development, and Service to the University.  Elements of the teaching performance component include peer reviews by colleagues who visit the professor’s classes and evaluate his teaching and review recent student evaluations.  The professional growth component consists of activities by the professor since the last review demonstrating continued professional growth. The service component consists of activities by the professor which have contributed something of value to the University.

            A key element in the peer review process is the requirement that a professor assembles and provides the review committee with a Working Personnel Action File (WPAF) containing materials that document and illustrate the professor’s continued professional growth and service since the last review.  Article 15 of the MOU makes it very clear that it is the professor’s responsibility to include sufficient materials in the WPAF that will enable the review committee to make a valid assessment of whether expected standards are being maintained.

            Events that led to the Grievant receiving a notice of proposed suspension were a long in the making.  In both his 1993-1994 and his 1994-1995 post-tenure faculty evaluations, the Grievant received less than sterling peer evaluations and student evaluations regarding his teaching performance and he showed the review committees little evidence professional growth and service to the university.  In both evaluations, specific suggestions were made to the Grievant for improvement in his teaching performance but he did not follow the suggestions.  Suggestions were also made for efforts on his part demonstrating professional growth and service to the university.  These suggestions were also not followed (A-3 through A-13).

            At the time, it was recommended that the Grievant be given periodic reviews until significant improvement was shown.  This was based on the belief that improvements were essential if he was to reach the performance level expected of a full professor.  Dean Sharp wrote that the Grievant’s performance was marginal at best and unsatisfactory at the worst (A-5).  Dean Paul Zingg, in a strong negative commentary, expressed a concern as to the Grievant’s continued membership in the university unless he addressed the improvements.  Dean Zingg also commented that the Grievant’s “colleagues patience must be rewarded with improved, sustained performance.  Otherwise, the point of denouement will arrive.  Such scenarios are not considered lightly, but the halfway covenant that ‘he’ has with his department cannot be allowed to continue indefinitely” (U-13). 

            In the Grievant’s 1996-1997 evaluation, he was again found not have cooperated in the Post-Tenure Review process.  In a memo from Dean Harry Sharp to the Grievant, the Dean admonished him for his failure to cooperate in the review process stating the “on its face it appears to constitute an act of insubordination and a violation of your professional obligation the carry out the normal duties of your appointment as a tenured professor” and the Dean directed him to “cease refusing to cooperate with the peer review process”.  The Dean Sharp also directed the Grievant to prepare for the upcoming review a working file (WPAF) that included a current curriculum vita, a sample syllabi, teaching materials, and other documentation (e.g. publications, evidence of participation in other professional development, and teaching activities) relevant to a peer evaluation of performance.  He instructed the Grievant to deliver the material to the department chair by Oct. 1997 (A-14).  No evidence was placed into the record showing that the Grievant carried out the directive.

            Another Post-Tenure Review was scheduled for the 2003-2004 academic year.  Before completion, however, the Dean at the time left for another university.  Before departing, the outgoing Dean left a memo, note for the new incoming Dean, Linda Halisky, and the new department chair, Dr. Fitzer, informing them of the Grievant’s problem areas.  On October 12, 2004, Dean Halisky and Dr. Fitzer met with the Grievant to discuss the 2003-2004 Post-Tenure Review.  After reviewing the file, Dean Halisky and Dr. Fitzer made a decision that the 2003-2004 Post-Tenure Review was incomplete and a decision was made to toss out the incomplete 2003-2004 review and start anew with a 2004-2005 review.  According to Dean Halisky, the Grievant, at the time, was in agreement with this decision.  However, the Grievant later communicated to the Dean that he was not in agreement.  His contention was that the 2003-2004 peer review had been completed and that a Post-Tenure Review for 2004-2005 was not only not required it was “illegal” (A-18). 

            The Dean disagreed and scheduled a Post-Tenure Review for 2004-2005.  Dean Halisky directed the Grievant to make prepare and provide the peer review committee with a Working Personnel Action File (WPAF) on January 18, 2004 (A-17).  The outcome of this review was the same as pervious reviews.  It was negative and incomplete because the Grievant again failed to provide the review committee with a WPAF that contained sufficient materials to make an appropriate evaluation. (A-18). 

            The Dean recommended and scheduled the Grievant for another Post-Tenure Review for the 2005-2006 academic year.  The results of that review were a repeat of the previous reviews, i.e. negative evaluations by peer reviewers, low student evaluation scores, failure to provide the committee with an adequate WPAF, and no evidence of professional development since 1995.  The Chair and his peers reported that the Grievant was not satisfactorily meeting the requirements of his present assignment and that he has, year after year, not followed suggestions for improvement or has he availed him self of assistance from colleagues, and he has not demonstrated any sustained improvement to date (A-21, A-28).

             The Grievant’s post-tenure review summary cited a record of woefully inadequate performance in all three areas of review, his performance had not risen to the standard expected of a full professor, and there was no evidence he had either the intention or a plan to address his several deficiencies (A-30).  On October 23, 2006, the University issued its final decision to suspend the Grievant, without pay, for one academic quarter from his position as a Professor of Social Sciences from the University (A-30).  A grievance was filed that was processed to this Arbitration.

POSITION OF THE UNIVERSITY

            The University has cause to suspend the Grievant.  His efforts are substandard for a full professor.  He failed to perform the usual and normal responsibilities of his position.  On multiple occasions, he failed to participate in the Post-Tenure Review process as required by the MOU and policy.  He failed to cooperate by not preparing, as required, an adequate WPAF.  He had a history of submitting an inadequate WPAF for review purposes.  The review committees had to rely on incomplete files for evaluations.   He received numerous warnings of the need to improve his teaching performance and his professional development record.  The WPAF for 2005-2006 showed no professional growth activity since 1995.  He failed to respond to corrective actions and was put on notice.  The September 2005 Letter of Reprimand directed the Grievant to prepare an adequate WPAF for the 2005-2006 post tenure review, to improve his teaching and professional growth efforts, and was warned that failure to comply would result in formal discipline against him.  He clearly and purposely did not comply with the directive contained in the Letter of Reprimand.  Based on the record and the principles of progressive discipline, the sanction is justified.  The grievance should be denied.

 

POSITION OF THE UNION

            The University did not have cause to suspend the Grievant.  The University relied on stale allegations from 10-year old post tenure reviews. The purpose of peer review is to help a professor to become better or return to a level of teaching he presumably had.  The allegation of insubordination is, technically, factually correct but is in substance picayune. The Grievant was not insubordinate.  Insubordination is failure to follow a direct order.  Suspension does not help a teacher to become a better teacher.  Incompetence is not a basis for discipline.  The Grievant has no prior unsatisfactory evaluations or discipline. Notice of the rules alleged to have been violated was not given. There was a lack of progressive discipline. The University used the post tenure process in a punitive manner rather than in a corrective manner.  The grievance should be sustained.

DISCUSSION

            The negotiated Post-Tenure Review is required by the Memorandum of Understanding and University policy.  The purpose of the review is clear.  It is to assure that the faculty member is maintaining the expected standards of a tenured full professor.  It is also to provide assistance from the faculty member’s colleagues to maintain and improve the level of performance appropriate to the position.  It is an ancient and unique process of evaluation whereby the faculty works together as peers to insure that the standards of their honored profession are maintained at the highest level. 

            The negotiated Post-Tenure Review process is clear that the faculty member is expected to actively participate in the review process.  The tenured employee is a major and critical participant in the review process.  The employee is expected, by example, to demonstrate a level teaching performance expected of a full professor.  The employee is expected to document efforts showing professional development.  And, the employee is expected to document efforts showing service to the University.  Without the employee’s active participation in the review, the process will have a huge void, and a fair and equitable evaluation is not possible.  A key element required of the employee in making the review process work is the employee’s production of a WPAF for delivery to the review committee.  Without the WPAF, the review committee has little to determine the employee’s professional growth and service to the University.

            When an employee intentionally fails to actively participate in a Post-Tenure Review, it is a failure a refusal to perform the normal and reasonable duties of the position.  That is an act of insubordination.  And, it is not “picayune” in substance.  It is a violation of the MOU and policy.

            The Post-Tenure Review is, by it intent and structure, corrective in nature.  The review process reveals an employee’s strengths and weakness.  The process requires that the employee and review committee discuss the findings and if weaknesses are apparent the employee’s peers are obligated to discuss and offer suggestions for improvement in the identified areas.

            The allegations against the Grievant were not stale.  There was a period of ten plus years where he failed to actively participate in the review process.  He ignored suggestions for improving his teaching and he repeatedly failed to provide an adequate WPAF in successive attempts to conduct a Post-Tenure Review.  In September 2005, the University issued the Grievant a formal Letter of Reprimand for failure to participate in the review process.  For the upcoming scheduled 2005-2006 Post-Tenure Review, he was directed to show evidence of improved teaching and student evaluations and to prepare an adequate WPAF for presentation to the review committee.  He was also put on notice that failure to follow the directive would result in formal disciplinary action.  The Grievant failed to comply with the directive.  The next step in the progression was a notice of suspension without pay for an academic quarter for failing to participate in the review process as required by the MOU and Policy.  

            For the reasons discussed in the above, the conclusion of the Arbitrator is that the University had cause to administer the disciplinary action to the Grievant.  The Grievance is denied.

AWARD

 

            The Grievance is denied.  The University had cause to administer the disciplinary action to Dr. Leo Pinard.

 

 

                        

C. ALLEN POOL, Arbitrator                                                  Date: June 4, 2007

Home | MyLawMemo | Custom Alerts | Newest Cases | Key Word Search  
Employment Law Memo | EEOC Info | NLRB Info | Arbitration | Articles | Law Firms | Site Map 

 

Get your 28 day trial now 

 
Google
 
Web www.LawMemo.com 
This form will search the LawMemo web site. 
It does not include Key Word Search.

 

 

LawMemo, Inc.
Post Office Box 8173 Portland, OR 97207
Phone: 877 399-8028