ACADEMIC AFFAIRS

FACULTY RELATED OPERATING PROCEDURES

 

 

GUIDELINES FOR "CAREFUL CONSIDERATION"

(December 2002)

 

 

"Careful Consideration" is a phrase which appears in Paragraph 12.7 of the Collective Bargaining Agreement (CBA).  Although the concept is not defined in the agreement, its meaning has become increasingly well established though numerous arbitration decisions.  "Careful Consideration", in fact, has been the subject of more grievances and more arbitration rulings than all other aspects of the Collective Bargaining Agreement (CBA) combined.  Despite this attention, considerable ambiguity continues to exist regarding the meaning of the term in the context of appointing temporary faculty, especially part-time temporary faculty to specific classes.  The purpose of this discussion is to provide greater clarity to the term "Careful Consideration" and to introduce guidelines for Department Chairs, Deans and others as to how to implement it. These Guidelines are not exhaustive, but are illustrative of arbitration decisions in Careful Consideration cases.   These Guidelines have also been revised in light of the new requirements introduced in the current (2001-2004) CBA.

 

Background and Essential Definitions

 

Article12.7 of the CBA states: 

"Each department or equivalent unit shall maintain a list of temporary employees who have been evaluated by the department or equivalent unit.  If such an employee applies for a position in that department or equivalent unit or application pool for that department or equivalent unit, the faculty unit employee's previous periodic evaluations and his/her application shall receive Careful Consideration.  If a temporary employee applies for a subsequent appointment and does not receive one, his/her right to file a grievance shall be limited to allegations of a failure to give Careful Consideration.  Such a grievance would constitute an allegation of a contractual violation and would not be a "Faculty Status Matter" as defined in Article 10 of this Agreement." (emphasis added)

 

The four key components of Article12.7 are:

 

a)     A list of temporary faculty who have been evaluated must be maintained by the department or equivalent unit. This seemly simple requirement requires some important clarification.

·    The CBA requires the evaluation of temporary faculty. 

ü      All temporary employees employed for 2 or more semesters or 3 or more quarters, regardless of any break in service, must be evaluated (CBA Article 15.22). 

ü      Those employed for 1 semester or 2 quarters or less shall be evaluated at the discretion of the department chair, the department (by policy or a vote) or the appropriate administrator, but may request an evaluation, which request must be honored (CBA Article 15.23).

However, University policy extends those requirements considerably, and is moving (as this is being written) toward requiring annual evaluations of all part-time faculty who work in two or more quarters in any College Year (Summer through Spring) or who have a 1-year or longer appointment. In fact, some Colleges and/or Departments require all part-time faculty to be evaluated every year, which is a practice this office encourages.

 

·    Not all part-time temporary faculty who have ever been evaluated are to be maintained on this Careful Consideration list (See (b) below.)

·     Arbitration decisions have determined that the language in 12.7, does not require the completion of annual evaluations (that is, those involving a peer committee and the Chair and/or the Dean) in order for Careful Consideration to be due. There is an implicit assumption that a less formal evaluation has or should have occurred each time a part-time faculty member works for a term, and that this “evaluation” is sufficient to trigger the entitlement to Careful Consideration.  Thus, temporary faculty who worked in the prior year and/or in the current year must be given Careful Consideration even if an annual evaluation has not yet occurred.

ü      This suggests that doing annual evaluations of all temporary faculty is well advised in order to provide the basis for Careful Consideration that has to be rendered in any event if the Part-time faculty member applies for another position in a timely manner.

 

·      For each of those temporary faculty on the Careful Consideration list the department or equivalent unit also must maintain a list of all the courses that have been taught by that faculty member in that department or equivalent unit. (Article 12.8)

 

b)     A temporary employee is defined in the present tense; that is, the Careful consideration list shall only include those (a) who have taught in the year preceding the one for which hiring is being considered or (b) who have taught or are teaching in the current year.

·     To make this point clear, if a person worked as a temporary faculty member (full- or part-time) for the department, and been evaluated, at some point in the past prior to the year preceding the current year, and has not worked during the preceding or current year, then that person shall not be on the Careful Consideration list.  For example, consider a part-time faculty member who taught and was evaluated in 2000-01, but then was not employed during any quarter in 2001-2002 (Summer 01 through Spring 02), that person would not be considered a current employee and therefore would not be a Careful Consideration entitled employee for consideration for positions in 2002-2003 and shall not be retained on the Careful Consideration list in 2002-03, unless and until the person was re-hired in 2002-03.

·      Maintaining a broader “pool” or a supplementary list:  The department, for its own convenience, may maintain a supplementary and separate list of those who have taught for that department only prior to the preceding year, or who have applied but not yet been offered employment. This is sometimes referred to as a broader “pool” of possible part-time faculty that might be available. But as stated above, those persons are not entitled to be given Careful Consideration and shall not be maintained on the Careful Consideration list.

 

c)      If a person on the Careful Consideration list applies for a temporary faculty position, his/her application materials and periodic/annual evaluations must be given Careful Consideration. What that means operationally is the focus of these Guidelines

 

d)     If a person on the Careful Consideration list applies for a temporary faculty position and is not appointed, his/her right to file a grievance is limited to an allegation that there was a failure to provide Careful Consideration. In practice, however, a person in this situation may also file a grievance alleging violations of Articles 11 (Personnel Files), Article 15  (Periodic Evaluations), or Article 16 (Non-Discrimination).  In fact, violations of one of these Articles is to be interpreted as a violation of the Careful Consideration process.

 

 

Operational Guidelines for conducting Careful Consideration:

1.      The standard of Careful Consideration means more than simply thinking about someone and deciding not to offer that person a position.  Arbitrators have applied the standard of a "reasonable person" and have held that the University must have a reason for its decision or Careful Consideration would be meaningless.  The file (application materials and the results of periodic evaluations) must be reviewed with a "special standard of care".

 

2.      Everyone who reads the file as part of the Careful Consideration process should log his/her signature so that there is a clear record that at least shows who has presumably read it and when.

 

3.      The University must be able to demonstrate how a decision not to offer a subsequent appointment to someone entitled to Careful Consideration was reached and that the decision had a reasonable basis, and it must be able to do so in writing.

4.      If a temporary faculty member entitled to Careful Consideration is not assigned to a class for which she/he has applied, but it is assigned to another temporary faculty member, the denied faculty member may, within the forty-two (42) day grievance filing period, request of the University, and shall be given in a timely manner, a written statement that compares the qualifications of the faculty member who was assigned to the course to those of the one who was not. The faculty member denied the assignment may then submit within seven (7) days of receipt of this document a rebuttal that shall then be considered, and both documents shall be entered into that faculty member’s personnel file. The denied faculty member may file a grievance either before or after requesting or receiving this documentation.

 

5.      The University must have a plausible reason for bypassing a qualified person. For example, one qualified person assigned to the course might have less experience teaching that course, but may have a degree more closely related to that teaching assignment than another qualified person with more experience. 

 

6.      There are absolutely no “seniority rights” – except those that are explicit in the existence of a 3-year or 1-year appointment.  That is, Careful Consideration for “existing” work (see item #18 below) is first granted among those temporary faculty with 3-year appointments, then among those with 1-year appointments (up to the terms/units of either of those appointments), and only then among those to whom Careful Consideration is due, but who do not hold either a 3-year or 1-year appointment.  There are no further seniority rights among those within any of the three afore mentioned priority groups.

 

7.      Absent documented (in the file) evidence to the contrary, having taught a given course in a given program establishes a presumption of having taught it satisfactorily and being qualified to teach that course again.  In fact, having taught the course or its equivalent anywhere in the CSU establishes such a presumption. Recall that a list of all courses taught by a temporary faculty member in a given department must be maintained by that department.

 

8.      It is the responsibility of the Chair of the department/program and his/her Dean jointly to decide whether a course taught previously is or is not equivalent to a given course to be taught in the future.

 

9.      There are absolutely no seniority or ownership rights of any faculty in any given course.  Within a given priority group Careful Consideration must be given to all who are qualified to teach a given course (or to do other work such as student supervision), and the best qualified faculty member given the assignment. Having more experience teaching a given course is only one element in determining the qualifications of those applying to teach it again.

 

10.  A "target position" must exist.  Most Careful Consideration grievances occur because one person is selected for appointment over another person for a given course or set of courses.  If a position is abolished because of, for example, budgetary considerations or low enrollment, or if positions become unavailable to temporary faculty because, for example, probationary or tenured faculty are teaching the courses, Careful Consideration ceases to be an issue because there is no “target position” available.  However, it may re-emerge, if after a course has been cancelled that had been previously assigned to a Part-timer with a 1-Year or 3-Year appointment, a “bumping” process begins that requires the determination of who shall bump whom for what courses.

 

11.  Bumping Rights: As is described more fully in The Procedures for Assigning Work to Temporary Faculty (also published by the Office of the Associate VPAA), if a course initially assigned to a Part-time Temporary faculty member with a 1- or 3-Year appointment, as part of the workload specified in that appointment, is cancelled for any reason, that faculty member shall have the right to “bump” another Part-time faculty member with a lower level of priority in order to secure a work assignment sufficient to satisfy the appointment obligations. (No “bumping” is allowed among faculty with the same priority level.) The same “right to bump” would come into effect if the Part-time faculty member with the 1- or 3-Year appointment was “bumped” out of an assigned class by, for example, a tenured faculty member who had an initially assigned class cancelled due to low enrollment. However, this “right to bump” is subject to the following constraints:

a.          It shall be the decision of the Dean, in consultation with the Chair, as to who shall bump whom and for what class.

b.          The faculty member must be qualified to teach the substitute class (or perform the other alternative work assignment).

c.           The “bumping” must be determined by the Dean, in consultation with the Chair, to be timely in that there must be sufficient “lead-time” to assure that the faculty member is well prepared to teach the class, so as to provide the students a high quality educational experience. The faculty member involved shall be consulted as part of this determination.

d.          The ‘bumping” must take place before the first class meeting to prevent the students having to experience a change in instructors.

 

12.  The University is not required to fill positions previously announced as available or vacant.

 

13.  For Careful Consideration to be an issue, a person must have applied, using the usual procedures established in that department.    A person cannot expect to be considered for a position merely because they are on the Careful Consideration list.  However, this rule is not in effect during the “bumping” process (#11).

 

14.  Careful Consideration technically applies only to temporary faculty appointments. But a similar professional process shall be used within and among all faculty groups when making work assignments.

 

15.  Effective teaching (or student supervision) must at all times be the primary criterion for the appointment of lecturers (assuming the position is one for which the principal responsibility is teaching and/or student supervision), but it need not be the only criterion.

 

16. Legitimate criteria that may constitute a part of Careful Consideration include having strong student evaluations, the professional quality of course materials, having completed a doctoral degree, or all the course work and comprehensive exams for a doctoral degree, and having greater knowledge of recent developments in the discipline.  Other criteria (see below) may also be valid; but the above have been found in arbitration decisions certainly to be appropriate.

 

17. Section 12.7 does not preclude consideration of other relevant factors in addition to the applicant's application materials, the results of periodic evaluations, and such factors as listed above.  Examples are a change in program or curriculum which changes the learning outcomes expected of students or the content and/or level of a the course materials from that in effect when the instructor last taught the course, or a desire by the Chair or Dean to have one person teach all sections of a course to assure consistency, etc.

 

18. Section 12.7 does not preclude the University from giving Graduate Teaching Associates priority over Part-time Temporary applicants. 

19. Definitions: The terms “Existing” work and  “New or Additional” work shall be defined as follows (until and unless there is an arbitration decision to the contrary --and the matter is currently in arbitration):

 

“Existing” Work:  If a course or a given number of sections of a course were offered in a given term during the preceding year, without regard to the status of the persons who taught them, those courses shall be considered “existing” courses during the current given term and outside the purview of Article 12.29.  Similarly, if a course is regularly taught every other year, then that course shall be considered “existing” work when it is taught, without regard to the status of the person who taught it two years earlier. If a course is regularly taught in one quarter, and then in the current year is moved to another quarter, it still is considered an “existing” course. However, if more sections of a given course are to be taught in a given term than were taught in that term the preceding year, then the extra sections would be “new or additional” work, not “existing” work, for that term, even though fewer sections may be taught in some other term.

 

“New or Additional” Work:  In general, courses in excess of or in addition to those that were taught in the preceding year, and that are not regularly taught every two years, shall be considered “new or additional” work.  If there are more sections of a given course taught in a given term in the current year than in that term in the preceding year, then the extra sections would be “new or additional” work, not “existing” work for that term, even though fewer sections may be taught in some other term.

 

Interpretation and Examples:  If a probationary faculty member is not retained, or a tenured faculty member resigns or retires, or a FERP ends their teaching, or a Full-time Temporary faculty member is not renewed, or a Volunteer instructor no longer volunteers, the set of courses that they had been teaching the preceding year are all considered “existing work” and would be distributed under the rules and procedures for such work, not under the terms of Article 12.29.  On the other hand, if last Fall a department offered 8 sections of a given course and this Fall it offers 10, then 2 of these sections would be considered “new or additional” work.  Operationally, any 8 shall first be assigned as “existing” work, and then the remaining 2 shall be assigned as “new or additional” work. If a series of new courses are developed and scheduled, these would be “new or additional” work.

 

20. There is a well established past practice of using the following priority list in assigning what are now called “existing” courses (highest priority listed first) (see item #19 for a definition of “existing” work.):

a.      Regular Full-time Tenured and Probationary Faculty

b.      Faculty in the Faculty Early Retirement Program (FERP)

c.      Temporary Faculty with Unconditional Full-time (45-unit) Contracts for a year or longer

d.      Graduate Teaching Associates

e.      Part-time Faculty with 3-Year Appointments*

f.        Part-time Faculty with 1-Year, Academic Year (3-Quarter) Appointments

g.      All Other Part-time Faculty Entitled to Careful Consideration

h.      Persons who have served as Part-time faculty in the past (but not currently nor in the year preceding the one for which appointments are being considered) and those who have applied to work as Part-time faculty but have not yet been hired, none of whom are entitled to Careful Consideration, constitute together the last priority group.

             * In the prior contract, these were 2-year appointments

 

Assigning “Existing” work: Under the current CBA, for the assignment of “existing work” (see item # 19 for a definition) Careful Consideration (even though this term technically only applies to the consideration of temporary faculty) must be granted within each priority group listed above for assignments of courses up to the units called for in each person’s appointment, before it is granted to those in a lower group. This is to continue until a department has granted Careful Consideration to everyone in groups ‘a’ through ‘f’, at which point, assuming the obligations to those in ‘a’ through ‘d’ have been met, Careful Consideration shall be granted to everyone in groups ‘e,’ ‘f’ and ‘g,’ as a single consolidated group.  However, either at this point, or following consideration of the ‘e,’ ‘f’ and ‘g’ groups together, consideration may be given to those in group ‘h’ in order to find the best qualified person for the remaining existing work.  That is, a department has the option of (i) considering group ‘h’ separately after ‘e,’ ‘f’ and ‘g;’ or (ii) considering ‘h’ together with ‘e,’ ‘f’ and ‘g’ as a single expanded group, or (iii) not considering ‘h’ at all. But once consideration of those in group ‘h’ begins, all in that group that have applied for the course in question must be considered, not merely some sub-set of them.  This is required not by the rules of Careful Consideration, but by the Fair Labor Practices provisions for hiring.

 

21. “New or Additional” work: Article 12.29, which is new in the current CBA, establishes a different priority list for assigning “New or Additional Work” and the prioritization order for these courses is quite different from that for “existing” courses.  It is:

 

a.      Regular Full-time Tenured and Probationary Faculty

b.      Faculty in the Faculty Early Retirement Program (FERP)

c.      Full-time Temporary Faculty with Unconditional Full-time (45-unit) Contracts* who

                                                              i.      hold a current 3-year (Article 12.12) appointment, then those

                                                            ii.      who do not hold a current 3-year (Article 12.12) appointment

d.      Graduate Teaching Associates

e.      “Incumbent” Part-time Temporary Faculty with less than a 1.0 (full-time) work assignment in the Quarter in question:

                                                              i.      who hold a current 3-year  (Article 12.12) appointment, then those

                                                            ii.      who do not hold a current 3-year  (Article 12.12) appointment **

f.        “Non-incumbent” Part-time Temporary Faculty who apply for the position and are on the list of those entitled to Careful Consideration and

g.      Those who have taught for the Department in the past, but who are not on the Careful Consideration list and those who have newly applied and never been hired, together as a single group.***

 

* Note: In fact, we have Full-Time Temporary faculty who have unconditional annual appointments that are renewable for 2 to 5 years upon satisfactory performance and others that have fixed term contracts of from 2 to 5 years. But in the current CBA, those with the new Article 12.12 3-Year appointments have priority over all of the other Full-time Temp faculty for the assignment of “new or additional” work. But since all Full-time unconditional contracts must be fulfilled before “New or Additional” courses are made available to any group with a lower priority, and since, in fact, these Full-time Temporary faculty are likely to have full assignments from existing courses already, the issue of the prioritization among them is most likely a moot point.

 

** Note: Part-time Temporary Faculty entitled to “Careful Consideration” in the current College Year, but who have not yet been granted any appointments or contracts for work in the current year are not considered “incumbent.”  Hence, with regard to “new and additional” work, “incumbent” Part-time Temporary Faculty have priority over temporary faculty who are entitled to “Careful Consideration,” but are not “incumbent.”

 

*** Note: Consideration may be given to group ‘f’ and then group ‘g’, or these two groups may be consolidated and considered together to try to find the best qualified instructor for any remaining “new or additional” work.  But once consideration of those in group ‘g’ begins, all in that group that have applied for the course in question must be considered, not merely some sub-set of them.  This is required not by the rules of Careful Consideration, but by the Fair Labor Practices provisions for hiring.

 

22. Defining the Term “Incumbent”

Article 12.29, for the first time in a contract between the CSU and CFA, introduces the term “Incumbent Temporary Faculty.”  While not defined in the contract, its operational usage shall refer to:

·        those faculty to whom “existing” courses already have been assigned during the current College Year, including the current Quarter, and/or

·        those to whom “new or additional” courses already have been assigned in the current College Year (CY) and/or

·        all those temporary faculty with 1-year or longer appointments. 

 

That is, all Temporary Faculty to whom work has been given in the current or earlier Quarters of the current College Year and all those with appointments in the current College Year are considered “incumbent.”

      

Please see The Procedures for Assigning Work to Temporary Faculty, also published by the Office of the Associate VPAA for a more detailed discussion of this topic and of items #20 and 21.

23. Criteria or standards for evaluating temporary faculty should not be changed without notifying the affected employees. In fact, if new evaluative criteria have been established, but the lecturer in question was not informed, then Careful  Consideration has been ruled to have not been granted.

24. The temporary faculty member must be given a written statement of the evaluation, at each stage of the evaluation, and may, within seven (7) days of the receipt of each document, submit a rebuttal. Both documents shall then be placed in the personnel file for later consideration. (See also # 27.)

 

25. The ranking of Part-time faculty applicants by a committee for a particular assignment falls within the reasonable bounds of the committee's judgment.  However, ranking of applicants is discretionary, it is not required.

 

26. The periodic evaluation of Part-time Temporary faculty may include the specification of lists of “existing” (see item #19) courses that the temporary faculty are considered qualified to teach.

27. Within seven (7) days of the receipt of an evaluation that includes such a list of courses. a faculty member may request, and shall be given in a timely manner, a further written explanation of why she/he was considered not qualified to teach a given course or set of courses; that is, why that/those course(s) was/were omitted from the list. The faculty member may, within seven (7) days of the recent of this explanation, submit a rebuttal statement to this explanation, as well as to the overall evaluation itself. The evaluation, including the list of courses, and both rebuttals shall be entered into the faculty member’s personnel file for future consideration. Of course, the committee and/or the Chair may alter the list of courses following receipt of the rebuttal(s). If the Committee and the Chair cannot agree on the list, then the matter shall be decided by the Dean.

Note – The right to request the explanation regarding the list of courses, and to respond to/rebut it within seven (7) days, is separate from and in addition to the right of a temporary faculty member to receive a written copy of his/her overall evaluation and, within a separate and prior seven (7) day period, to rebut it.  However, the faculty member may choose to combine these two responses and submit them together within the second seven (7) day period.

 

28. If the Part-time faculty member subsequently applies to teach an “existing” course, the fact that she/he has been declared not qualified to teach that course, because it is not on the list of courses for which they have been declared qualified, would obviate the need to grant Careful Consideration for that course assignment. 

 

However, if the Part-time faculty member applies to teach a “new” course, then the person’s qualifications to teach that course must be determined; that is, the person would have to be given Careful Consideration for that “new” course.  In making this determination, consideration must be given to whether she/he has taught an equivalent course on this campus or elsewhere in the CSU.  (See #7 and #8 above regarding the determination of such equivalency.)

 

29. The University must comply with Article 11 (Personnel Files), Article 15 (Periodic Evaluations), and Article 16 (Non-Discrimination) in order to provide Careful Consideration.  That is, a violation of any of these other articles will be considered sufficient to show that Careful Consideration was not granted.

 

30. De minimis or minor procedural errors do not necessarily result in a failure to provide Careful Consideration.

 

31. It is often difficult and risky for either side to predict how an arbitrator will rule in a given Careful Consideration grievance. This uncertainty frequently helps to motivate the parties to settle a grievance informally rather than risk a disagreeable Arbitrator's decision.

 

32. Arbitrators' remedies for failure to provide Careful Consideration have ranged from, on one extreme, excluding (refusing) back pay when the arbitrator was not persuaded that the grievant would have been appointed absent a procedural violation, to, on the other extreme, making a substantial monetary award to the grievant as a deterrent against future actions by the University that would disregard minimum standards required by the Collective Bargaining Agreement. 

 

33. Generally, it is preferable to err on the side of caution in assuring (a) that Careful Consideration is granted and (b) that a record of the basis for that decision is maintained, rather than risk the considerable time, resources, and uncertainty associated with resolving a Careful Consideration grievance.

 

34. If you have any questions or concerns about the implementation of these provisions of the CBA, you are urged to contact your Dean or the Office of the Associate VPAA before taking action, given the complicated and evolving nature of Careful Consideration. Please see also the companion document published by the office of the Associate VPAA entitled: “The Procedures for Assigning Work to Temporary Faculty.”