If the District denies the remedies contained in the Notice of Grievance, the faculty grievant can either accept the Hearing Officer’s written decision, or the faculty grievant can seek resolution through binding arbitration. If the faculty grievant pursues arbitration, the following events must all transpire within 10 school days of receipt of the Hearing Officer’s written decision:
Every attempt is made to conceal the identity of the faculty grievant during the presentation to the Council. Council members are not told the faculty member’s department, division nor college, and all references to the people involved are by pseudonym. This is done to keep all personality issues out, and only contractual issues in, the Council’s deliberations and decision.
The Council employs the following long-established criteria when deciding to arbitrate, or not:
Each criterion is vitally important to the Association because arbitration decisions “permanently” define how specific contract language is interpreted (until that specific language is renegotiated), either for or against faculty interests. Since arbitration decisions affect not only faculty grievants but all faculty in the bargaining unit, the Council carefully weighs the potential contractual benefits to all faculty against the potential costs.
The arbitration stakes can be very high. In 1999-2000, for example, the Faculty Association requested arbitration in a grievance alleging that the District unilaterally created its own “Indicators of Excellence” criteria to evaluate faculty Professional Achievement Award (PAA) applications. The Arbitration Hearing spanned 10 days and cost the Association roughly $200,000 (the Association estimates it cost the District’s taxpayers far more than that). The arbitrator found in favor of the Association and against the District’s unilaterally created criteria. As a result of the arbitration decision, the District now evaluates PAA applications strictly according to contractual language and all faculty who satisfy the contractual requirements now receive the award.
At the time the faculty grievant requested that the Association submit the grievance to arbitration for resolution, “ownership” of the grievance passes from the faculty member to the Association. From this point on, the Association directs all arbitration efforts in support of the grievance. The first order of business is selecting an arbitrator. The FA and District request a list of seven randomly-chosen arbitrators from the California State Conciliation Service. After a coin flip, the District and FA alternately strike names from the list until one name remains, and that person serves as arbitrator.
After the arbitrator is chosen, the Arbitration Hearing date(s) is set, often months later to accommodate the arbitrator’s schedule. In the time leading up to the Arbitration Hearing, evidence is gathered and evaluated, potential witnesses are interviewed by the Association’s legal counsel and subpoenas are drawn up and served. The faculty grievant and all District employee participants and witnesses are given release time for the time during which they are needed at the Arbitration Hearing.
The Arbitration Hearing itself is formal, following the rules of the American Arbitration Association. In attendance are the arbitrator, the faculty grievant, the FA representatives including the Association’s attorney, the District representatives including the responding administrator, the District’s attorney, the Vice Chancellor of Human Resources, witnesses (only while giving evidence), and a court reporter who produces a verbatim hearing transcript. Documents are numbered and entered into evidence with admissibility challenges allowed by either side. Witnesses give testimony under oath, witnesses are cross-examined, and the arbitrator either allows or overrules objections raised by either side. After both sides have made opening arguments, presented evidence, examined and cross-examined witnesses, and made closing arguments, the parties agree on a schedule of post-Hearing events, and the Hearing is adjourned.
Within weeks of the Hearing, both sides simultaneously submit briefs, or arguments based on witness testimony and documentary evidence, to the arbitrator for consideration. There may follow one or more rounds of responses to briefs from both sides by prior agreement.
After the arbitrator has received and reviewed all the documentary evidence, testimony and arguments from both sides, the arbitrator writes a ruling on the grievance that details his/her findings of fact and conclusions. This may take from several weeks to several months. The arbitrator’s findings and conclusions may interpret specific Agreement language in favor of one side over the other. If the arbitrator finds in the faculty grievant’s favor, the arbitrator’s decision is limited to enforcing the existing terms of the Agreement so as to remedy the contractual harm done by the District to the faculty grievant. While there may be an award to make the faculty grievant whole for lost wages (if that was at issue), there can be no damages awarded for “pain and suffering” since this is not a collective bargaining agreement issue. If the arbitrator finds in the District’s favor, this permanently sets a precedent that the District can do exactly the same thing again in the future to other faculty without fear of repercussions. The arbitrator’s decision is final and binding on both the Faculty Association and the District.