Do you know your rights?

From the PSC Clarion: A Publication of the Professional Staff Congress/City University of New York

This article is the first in a series about your rights and benefits under the 1996-2000 PSC collective bargaining agreement and how to protect those rights if you believe they have been violated by management. The agreement provides our members with protections related to the terms and conditions of employment. Future articles will cover the contract's provisions in such areas as professional evaluation, annual observations, a denial of reappointment with or without tenure or a Certificate of Continuous Administrative Service, leaves and holidays, personnel files and promotional opportunities.

by Debra Bergen,  PSC Director of Contract Administration

Has this happened to you or to a colleague? You are an assistant professor in your third year of service and receive a notice from the department personnel and budget committee stating that they have voted not to recommend your reappointment to the college president for the following academic year. You then receive a notice from the college president informing you that he/she has decided not to overturn the decision of the department personnel and budget committee. Your reappointment has been denied. You appeal the decision in accordance with the academic appeals process at the college, but your appeal is denied. What can you do?

Do you know what to do if you are a member of the instructional staff, holding a Higher Education Officer (HEO) Series title, and are handed an annual evaluation with an overall rating of "unsatisfactory" by your immediate supervisor? No evaluation conference has been held. Whom should you contact? Can you file a grievance?

These are some of the most commonly asked questions we receive at the PSC central office. Article 20, the grievance and arbitration procedures of the PSC collective bargaining agreement, provides our members with a means of disputing actions taken by management. The grievance and arbitration procedures also provide the mechanism for protecting rights and benefits specified in the contract. The most important right our members have is the grievance and arbitration procedure; it is the heart of the collective bargaining agreement.

What is a grievance?

In general, any action that management takes which violates or misinterprets the agreement, the university's own rules and regulations, or past practice, or a wrongful disciplinary action may be the basis for a grievance. There are two kinds of grievances: contractual violations and violations of policy. Specifically, Article 20 of the contract defines a contractual violation as a "breach, misinterpretation or improper application of a term of the agreement." Violations of policy grievances exist when there has been "an arbitrary or discriminatory application of, or failure to act pursuant to the Bylaws and written policies of the Board related to the terms and conditions of employment."

There are three steps to the grievance procedure. A brief discussion of each appears below.

The actions most frequently grieved are denials of reappointment or promotion. These are personnel decisions based wholly or partly upon academic judgments. In pursuing grievances of this nature, under the provisions of Article 20, the merits of the academic judgment are not subject to review. However, it may be argued that the personnel action violated a term of the agreement, that it was not made in accordance with Bylaws or written policies of the board, or that the claimed academic judgment constituted an arbitrary or discriminatory application of the Bylaws or written policies of the board.

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Two actions not grievable under the contract are award decisions on Research, Fellowship, Scholar Incentive and Performance Excellence Awards and Summer School employment, except for rates of pay. However, these issues may be pursued under the informal complaint procedures in Article 20. Under the informal procedure a complaint may be presented and discussed by the employee or the PSC representative on the employee's behalf with the head of the department involved. This presentation is entirely informal and any settlement, withdrawal or disposition of an informal complaint on this process does not constitute a binding precedent in the settlement of similar complaints and grievances.

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Understanding the definition of a grievance is a first step in ensuring that your rights are protected and are exercised effectively. The experts to consult are your chapter and PSC central office grievance counselors and other union officials. All PSC grievance counselors are trained to investigate, prepare and present grievances.

What should I do if I believe that my rights have been violated?

Article 20 sets forth the procedure for processing grievances and arbitrations. It is a good idea to become familiar with it.

If you believe your rights have been violated, or if you have been denied a promotion, reappointment, reappointment with tenure, a Certificate of Continuous Administrative Service, or a Certificate of Continuous Employment you should contact your chapter grievance counselor or chapter chairperson immediately to determine whether you have grounds for a grievance. Contacting a counselor immediately is critical because grievances must be filed within the time limitations contained in the contract. Otherwise, you may forfeit your right to pursue the grievance, regardless of its merits.

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The contract states that "a grievance must be filed by an employee or the PSC within thirty (30) days, excluding Saturdays, Sundays, and legal holidays, after the PSC or the employee on whose behalf the grievance is filed became aware of the action complained of except that grievances relating to reappointment, or to appointment with a Certificate of Continuous Employment shall be filed within thirty (30) days excluding Saturdays, Sundays and legal holidays of the individual's scheduled date of notification as specified by Articles 10 and 13 of the Agreement."

A decision on whether to pursue your problem through the grievance procedure will be made only after the grievance counselor has thoroughly investigated the facts of the case. However, if timeliness is a factor, a grievance may be filed to protect your right to grieve. In that case the issues will not be pursued until the investigation has been completed and a decision is made as to the merits of the grievance.

Who can file a grievance?

Any member of the instructional staff covered by the PSC-CUNY contract may file a grievance. You may file on your own behalf with the college or a PSC grievance counselor can file for you or on behalf of any group of employees in the bargaining unit. Regardless of who initiates the grievance, its ownership must be finalized prior to the holding of the Step Two discussion, since whoever represents the grievant at Step Two controls the decision of whether or not to pursue the grievance to arbitration.

Understanding the contract, and what is and what is not a grievance, cannot only help you know your rights on the job but will assist your PSC representative in resolving any problems as they arise.

Our next article will discuss Article 19-Personnel Files. Article 19 is often overlooked until there is a problem. Knowing your rights under this article may protect you against adverse employment decisions and safeguard your record of professional performance.


The grievance process

Step One: The PSC initiates a grievance by filing with the president of the college or the president's designee. A representative of the PSC and the grievant discuss the issues before the college's labor designee. The president or the designee then issues a written decision within the time frames specified in the contract.

Step Two: If the grievance has not been settled at Step One, then a Step Two may be filed by the PSC after receipt of the written decision or, if none has been issued, after the specified time limits have expired. The grievance and a copy of the Step One decision are submitted to the chancellor or the chancellor's designee by the PSC. A discussion is held before the chancellor's designee, who subsequently issues his/her written decision to the union and the grievant.

Step Three: If the grievance still has not been settled, or if the chancellor's disposition has not been issued within the specified time limits, the person or persons who submitted the grievance at Step Two may appeal the decision to arbitration.

For more information on the grievance and arbitration process, see "A PSC Grievance Primer" by D. Nicholas Russo, PSC director of legal affairs.

Debra Bergen is PSC director of contract administration. Ted Gottesman, PSC central office grievance counselor, contributed to this article. It appeared in the October 1999 issue of the Clarion.

For further information please call the PSC office between 9:00 a..m. and 5:00 p.m. Monday through Friday at 212/354-1252, or email comments and questions to ccage@pscmail.org. Thank you for reading the Clarion!

Posted on October 28, 1999; All rights reserved, Professional Staff Congress/CUNY.