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Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts
©2018 (c) Liebert Cassidy Whitmore
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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.
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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.
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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.
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It also empowers arbitrators to issue other “make-whole” remedies, such as back
pay and benefits, reemployment in a probationary position, and reconsideration.
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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”).
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LCW Practice Advisor
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.