ARTICLE 19

DISCIPLINARY ACTION PROCEDURE

Scope of Disciplinary Action

19.1

This Article shall apply to all bargaining unit employees excluding temporary employees who have been employed for one semester or quarter or less. Sanctions imposed in a disciplinary action shall be limited to dismissal, demotion, or suspension without pay. Unless the grievant and the President agree to the contrary in writing, all suspensions shall be served on consecutive work days.

19.2

Disciplinary action shall not include denial of appointment, separation during a temporary appointment, rejection during probation, denial of tenure, denial of promotion, reappointment, reassignment, transfer, layoff, reprimand, temporary suspension with pay, docking of pay or any other personnel action or recommendation or decision except those in 19.1 of this Article. Recommendations or decisions in the appointment, reappointment, probation, tenure, promotion, reassignment, transfer, layoff, reprimand, or temporary suspension processes are not disciplinary actions for the purpose of this Article and are not subject to the disciplinary action procedures of this Article.

Informal Resolution of Pending Disciplinary Action

19.3

Nothing contained in this Article shall be interpreted to preclude a voluntary attempt by the parties to informally resolve potential disciplinary actions, either prior to the notice of pending disciplinary action or at any other time. Such attempts at informal resolution shall not preclude the University from relying upon, at any future disciplinary proceeding, evidence gathered during the investigation of the alleged misconduct by the faculty unit employee.

Notice of Pending Dismissal, Demotion or Suspension Without Pay

19.4

The President shall initiate the disciplinary action process by written notice of pending disciplinary action served in person or served by U.S. mail to the affected faculty unit employee. When U.S. Mail is used, a proof of service shall be prepared. The faculty unit employee shall be informed in this notice that the sanction specified in the notice shall be imposed unless, following review of the matter, the President notifies the faculty unit employee otherwise.

19.5

The notice of pending disciplinary action shall include:

  1. the cause(s) for disciplinary action;

  2. the pending sanction;

  3. the proposed effective date of the pending sanction;

  4. the identity of the Reviewing Officer designated by the President to review the matter;

  5. the right of the faculty unit employee to appeal the pending disciplinary action and to have the matter heard; and

  6. a copy of this Article.

Acceptance of Disciplinary Action

19.6

The faculty unit employee may accept the pending disciplinary action at any time by filing a letter of acceptance of the disciplinary action with the President. An acceptance of disciplinary action shall result in the imposition of the pending sanction, but is not an admission by the faculty unit employee of the allegations of misconduct. Failure of a faculty unit employee to appeal a pending disciplinary action pursuant to this Policy shall result in imposition of the pending sanction.

Review of Pending Disciplinary Action

19.7

Within ten (10) days of receipt of the notice of pending disciplinary action and at a time and place mutually acceptable to the affected faculty unit employee and the Reviewing Officer, the faculty unit employee and a CFA representative, if any, may meet with the Reviewing Officer designated by the President and his/her representative (if any) to review the notice, the reason(s), and the evidence. The faculty unit employee may respond orally or in writing. Such a written response (if any) shall be provided to the Reviewing Officer within ten (10) days of the notice of pending disciplinary action whether or not a meeting takes place. A copy of such written response may be provided to the President. The Reviewing Officer designated by the President shall not have been directly involved in the initiation of the pending disciplinary action.

19.8

The Reviewing Officer shall issue a report to the President within fifteen (15) days of the notice of pending disciplinary action. The President shall consider the report of the Reviewing Officer.

19.9

Within five (5) days of receipt of the report, the President shall notify the affected faculty unit employee of his/her decision to rescind, modify, or affirm the pending disciplinary action. The effective date of such disciplinary action shall be included in this notification. Such an effective date shall be at least twelve (12) days from the date of this notification, except as provided in policies 19.12a and 19.12b. This notice shall be the notice issued by the CSU for purposes stated in Education Code Section 89538 and Section 89539. The time requirements of provisions 19.7 through 19.9 may be extended by mutual agreement between the faculty unit employee and the CSU.

Disciplinary Action Appeal Process

19.10

A faculty unit employee may appeal a pending disciplinary action by selecting one (1) of the three (3) following appeal options at the time s/he files his/her notice of appeal:

  1. Within ten (10) days of receipt of the notification pursuant to provision 19.9 above, a faculty unit employee or his/her representative may file a written notice of appeal with the President in accordance with the Disciplinary Action Arbitration Procedure of this Article. Appeal by a representative of the faculty unit employee other than CFA is only permitted if it is accompanied by a written authorization of representation, which shall be signed by the faculty unit employee. Such notice shall be accompanied by a detailed statement of the disputed facts and defenses to the allegation of misconduct.

  2. Within ten (10) days of receipt of the notification pursuant to provision 19.9 above, a faculty unit employee or his/her representative may file a written notice of appeal with the President indicating an intent to request a hearing of the matter by the State Personnel Board as provided in Section 89539 of the Education Code. Appeal by a representative of the faculty unit employee other than the CFA is only permitted if it is accompanied by a written authorization of representation, which shall be signed by the faculty unit employee. Such notice shall be accompanied by a detailed statement of the disputed facts and defenses to the allegation of misconduct. A request for a hearing by the State Personnel Board must be filed with the State Personnel Board within thirty (30) days of receipt of the notification pursuant to provision 19.9 above.


  3. Within ten (10) days of receipt of the notification pursuant to provision 19.9 above, a faculty unit employee or his/her representative may file a written notice of appeal with the President indicating an intent to request a hearing of the matter by a Faculty Hearing Committee selected from the Faculty Review Panel, following the same procedures provided in Article 19.10.d and 19.10.e below. Appeal by a representative of the faculty unit employee other than the CFA is only permitted if it is accompanied by a written authorization of representation, which shall be signed by the faculty unit employee. Such notice shall be accompanied by a detailed statement of the disputed facts and defenses to the allegation of misconduct.


  4. Faculty Hearing Committee

    1. The faculty hearing committee shall be composed of full-time faculty members selected by lot from the panel established pursuant to Articles 10.8, 10.9 and 10.10 of this Agreement. The committee shall make a recommendation to the President as to whether the proposed disciplinary action should be sustained, modified, or voided.


    2. Within seven (7) days after the filing of the disciplinary action appeal as provided in 19.10c. above, the Academic Vice President/Provost or designee and Chairperson of the Faculty Hearing Panel shall jointly schedule the selection of the Faculty Hearing Committee. The Committee shall consist of three (3) members and one (1) alternate. No Faculty Hearing Panel member may serve on a Faculty Hearing Committee if s/he has been directly involved with or a party to matters related to a proposed disciplinary action submitted by the affected faculty unit employee to a faculty hearing. Each Faculty Hearing Committee shall be appointed and serve on an ad hoc basis until the Committee has issued its decision on the proposed disciplinary action in question. Participation on a Faculty Hearing Committee shall be considered “service” to the campus community for all applicable purposes.


    3. Upon selection, the Academic Vice President/Provost or designee shall provide written notice to the affected faculty unit employee, appropriate administrator, and committee members of the selection.


    4. A hearing of the proposed disciplinary action in question shall be scheduled to occur within fourteen (14) days from the date of notification to all parties of the selection of the Faculty Hearing Committee at a mutually acceptable time at the campus where the affected faculty unit employee is employed.


    5. There shall be no post hearing briefs. The hearing will not exceed one (1) day with equal time for each party, except by written agreement of the parties.


    6. Conduct of the hearing shall be at the discretion of the Faculty Hearing Committee but shall be open to the public at the discretion of the affected faculty unit employee.


    7. The affected faculty unit employee and the President shall have the right of representation by a representative of his/her choice and to be provided, free of charge, access to a complete record of the hearing. Said record shall be taken in a manner deemed appropriate by the faculty hearing committee.


  5. Committee Recommendation

    1. The Committee shall make a recommendation to the President, within fourteen (14) days after the conclusion of the hearing, as whether the proposed disciplinary action should be sustained, modified or voided. In making its recommendation to the President regarding whether to sustain, modify, or void the sanction or pending sanction, it shall also be the function of the faculty hearing committee to determine whether cause for disciplinary action existed.


    2. The recommendation of the faculty hearing committee shall set forth the findings, reasons, and conclusions on the issue(s) submitted. Copies of the complete decision shall be provided to the parties.


    3. The recommendations of the faculty hearing committee shall be based solely upon the evidence and arguments appropriately presented by the parties in the hearing.


    4. The recommendations of the faculty hearing committees may include back pay provided, however, that any back pay award shall be less the difference of any unemployment compensation received and/or any earnings resulting from the employee’s compliance with his/her duty to mitigate damages. Only earnings derived from like, or substantially like, employment shall be considered for the purposes of this mitigation.


    5. Within fifteen (15) days of receipt of the committee’s recommendation, the President shall inform the affected faculty unit employee in writing whether s/he agrees or disagrees with the committee’s recommendation. If the President agrees with the committee’s recommendation, the President’s decision shall be final and implemented. If the President does not agree with the committee’s recommendation, the affected faculty unit employee may elect to appeal the matter to arbitration pursuant to this Article. The arbitrator’s decision shall be final and binding on all parties.


    6. Within fifteen (15) days of receipt of the President’s decision, a faculty unit employee or his/her representative may file a written notice of appeal with the Office of the Chancellor requesting arbitration.


19.11

Filing the notice of one (1) of the three (3) disciplinary action appeal options pursuant to provision 19.10 above shall constitute a final and binding decision by the affected faculty unit employee.

Imposition of Sanction

19.12

    1. If, pursuant to provision 19.10 (a) or 19.10 (c) above , the affected faculty unit employee notifies the President of an appeal involving the sanction of any disciplinary action, the faculty unit employee or his/her representative and the CSU may agree that the sanction shall be held in abeyance pending a final decision and its implementation.

    2. If, pursuant to provision 19.10 (a) or 19.10 (c) above , the affected faculty unit employee notifies the President of an appeal involving the sanction of suspension without pay for more than thirty (30) days, demotion, or dismissal, the CSU shall hold the sanction in abeyance pending a final decision and its implementation.

Disciplinary Action Arbitration Procedure

19.13

No later than ten (10) days after the decision to submit the pending disciplinary action to disciplinary action arbitration, CFA and the Office of the Chancellor shall agree on a mutually acceptable arbitrator or shall jointly request the American Arbitration Association to supply a list of arbitrators pursuant to its rule, and consistent with the further requirements of 19.15.

19.14

Upon receipt of the names of proposed arbitrators pursuant to 19.15, the parties shall alternately strike names from the list until one (1) person is ultimately designated as the arbitrator. The decision as to which party strikes first shall be determined by lot. Any appeal of a disciplinary action shall be considered withdrawn if the parties have not, within twelve (12) months after the CFA has submitted the pending disciplinary action to arbitration, agreed upon a date and scheduled the case for hearing with the arbitrator assigned to the case. This provision shall be extended for an additional thirty (30) days at a time, in cases where the Union has agreed to dates proposed by an arbitrator which are unacceptable to the CSU.

Scheduling Arbitration Hearings

19.15

  1. All disciplinary cases involving suspension, dismissal or demotion appealed to arbitration pursuant to 19 .10 (a) above shall be scheduled for hearing in arbitration no later than ninety (90) days from the effective date of the disciplinary action contained in the notification issued by the President pursuant to 19.9. The process for selecting the arbitrator shall be that contained in 19.13 and 19.14. If the parties have mutually agreed on an acceptable arbitrator then they shall submit jointly a list of suitable hearing dates to the arbitrator within the ninety (90) day period. If the hearing is estimated by the parties to require more than one (1) day, then the hearing dates should be consecutive whenever possible. If the arbitrator cannot offer consecutive dates to the parties, then he/she may offer his/her soonest available dates. If the parties have not been able to mutually agree on an acceptable arbitrator, then they shall submit jointly a list of suitable hearing dates to the American Arbitration Association and request them to supply pursuant to its rule a list of arbitrators each of whom has at least one of those dates available to hear the appeal within the ninety (90) day period. If the hearing is estimated by the parties to require more than one (1) day, then the hearing dates should be consecutive whenever possible. If the arbitrator cannot offer consecutive dates, then he/she may offer his/her soonest available dates. The parties shall then use the strike procedure detailed in 19.14 to designate an arbitrator to hear the appeal.


  2. All disciplinary cases involving suspension, dismissal or demotion appealed to arbitration pursuant to 19 .10e6 shall be scheduled for hearing in arbitration no later than sixty (60) days from the date of the appeal to arbitration. The process for selecting the arbitrator shall be that contained in 19.13 and 19.14. If the parties have mutually agreed on an acceptable arbitrator then they shall submit jointly a list of suitable hearing dates to the arbitrator within the sixty (60) day period. If the hearing is estimated by the parties to require more than one (1) day, then the hearing dates should be consecutive whenever possible. If the arbitrator cannot offer consecutive dates to the parties, then he/she may offer his/her soonest available dates. If the parties have not been able to mutually agree on an acceptable arbitrator, then they shall submit jointly a list of suitable hearing dates to the American Arbitration Association and request them to supply pursuant to its rule a list of arbitrators each of whom has at least one of those dates available to hear the appeal within the sixty (60) day period. If the hearing is estimated by the parties to require more than one (1) day, then the hearing dates should be consecutive whenever possible. If the arbitrator cannot offer consecutive dates, then he/she may offer his/her soonest available dates. The parties shall then use the strike procedure detailed in 19.14 to designate an arbitrator to hear the appeal.


Arbitration Rules and Procedures

19.16

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.

19.17

Absent a mutual agreement to the contrary, if an arbitrability question exists, there shall be a bifurcated hearing in which the arbitrator shall determine the arbitrability question after the submission of post-hearing briefs and prior to hearing the formal presentations of the parties on the merits of the grievance.

19.18

Within ten (10) days from the date the hearing has concluded, the arbitrator shall issue to the parties a written award stating the decision on the issue(s) submitted. Copies of the award shall be provided to the parties. The award shall be final and binding on the parties.

19.19

Both the arbitrator’s decision and the recommendation of the faculty hearing committee shall set forth the findings, reasons, and the conclusions on the issue(s) submitted no later than thirty (30) days after the award is issued. Copies of the complete decision shall be provided to the parties.

19.20

The Voluntary Labor Arbitration Rules of the American Arbitration Association shall apply except when the specific language of this Article is in conflict, in which case the specific language of this Article shall apply.

19.21

The recommendations of the faculty hearing committee and the arbitrator’s award shall be based solely upon the evidence and arguments appropriately presented by the parties in the hearing and upon any post-hearing briefs by the parties.

19.22

The arbitrator shall have no power to alter, add to, detract from, or amend any CSU Policy or the CSU/CFA agreement. The arbitrator shall be without power to make an award which requires the commission of an act prohibited by law, or an omission of an act required by law, or which is violative of the specific terms and conditions of the CSU/CFA agreement. The recommendations of the faculty hearing committees shall also be limited in this manner, so that the recommendations of a committee shall not result in a remedy that exceeds the authority of an arbitrator.

19.23

The award of the arbitrator may include back pay provided, however, that any back pay award shall be less the difference of any unemployment compensation received and/or any earnings resulting from the employee’s compliance with his/her duty to mitigate damages. Only earnings derived from like, or substantially like, employment shall be considered for the purposes of this mitigation. The recommendations of the faculty hearing committees shall also be limited in this manner, so that the recommendations of a committee shall not result in a remedy that exceeds the authority of an arbitrator.

19.24

Each party shall bear the expenses of preparing and presenting its own case both in arbitration and in hearings before faculty committees. The parties shall attempt to schedule all faculty committee hearings in a manner that does not interfere with CSU operations. The affected faculty unit employee, his/her representative, if any, and witnesses who are CSU employees called before the arbitrator shall be provided with release time for the official hearing. The cost for the services of the arbitrator shall be borne by the CSU.

Pre-Sanction Suspension

19.25

When the President determines it is in the best interests of the campus, s/he may suspend with pay a faculty unit employee who has been served with a Notice of Pending Dismissal, Demotion or Suspension Without Pay pursuant to 19.4 of this Article. Such a suspension may continue until imposition of sanction or a final award pursuant to this Article or pursuant to Education Code Section 89539.

19.26

The affected faculty unit employee shall be notified in writing of the reasons for such a suspension with pay, and shall also be provided with copies of any documents related to the suspension except when the President determines that disclosure would endanger the safety of any person or would compromise the completion of the investigation or a related investigation, or where such disclosure is prohibited by law. If disclosure of documents is not provided, an explanation of the reasons for the decision shall be provided in writing at the time of the suspension. The President may terminate such suspension at any time. The affected faculty unit employee shall be notified in writing of such a termination.

Pre-Sanction Reassignment

19.27

When the President determines it is in the best interests of the campus, s/he may reassign a faculty unit employee who has been served with a Notice of Dismissal, Demotion, Suspension Without Pay pursuant to policy 19.4 of this Article. Such a reassignment shall be without a change in salary. Such a reassignment may continue until imposition of sanction or a final award pursuant to this Article or pursuant to Education Code Section 89539.

19.28

The affected faculty unit employee shall receive written notification of the reasons for reassignment and shall also be provided with copies of any documents related to the reassignment except when the President determines that disclosure would endanger the safety of any person or would compromise the completion of the investigation or a related investigation, or where such disclosure is prohibited by applicable law. If disclosure of documents is not provided, an explanation of the reasons for the decision shall be provided in writing at the time of the reassignment. The affected faculty unit employee shall receive written notification of termination of reassignment, when appropriate. Such a reassignment shall not be considered a punitive reassignment.


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Last updated: August 10, 2007

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