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Ponderings of the President
by Ira Lansing
 February was a significant month in the life of UPM. It was this past month that two major legal issues came to official conclusions.
Each litigation dragged on concurrently for over a year-and-a-half and generated extraordinary expenses. In fact, I would estimate that both parties, the District and UPM, spent collectively on the combined actions in the neighborhood of $300,000. That is starting to be real money, as the senator once said (of course, he was referring to dollar amounts in the hundreds of millions, but the relative scale was different). At the conclusion of any major undertaking it can be beneficial to reflect back on the events and perhaps ponder what caused it to happen and what could be done to avoid the situation in the future. Interestingly, I believe the answer to both of those is the same: communication.
Let us recall the circumstances. One of the cases was over a unilateral change in working conditions. The District, upon receiving an e-mail communication of opinion from the State Chancellor’s Office, changed the time periods in which temporary employees could perform certificated activities (e.g., work on grants). The chancellor’s office and the District believed that a correct interpretation of the Education Code indicated that any certificated work done in the academic year qualified towards tenure. UPM communicated with its attorneys and even with the California Federation of Teachers to see if this perspective was valid. No definitive answer was communicated. UPM then communicated with the District that whether the opinion was correct or not, it was still opinion, and a change in part-timers’ working conditions required negotiations. The District communicated it was non-negotiable. To force the issue UPM found a part-timer who had provided certificated work during intersessions and break periods and filed a tenure claim on his behalf. The District communicated that, while the work was indeed performed during the periods they believed qualified, this work did not count and denied the tenure (does the phrase "have your cake and eat it too" come to mind?).
Overtures of settlement were communicated between the parties, but none was forthcoming. It finally took a communication from a Marin County Superior Court judge to decide in favor of the Union. Perhaps a little less communication from some parties would have prevented the subsequent extensive communications between the Union and the District (or at least between their attorneys).
The second case is the one that arose over the District’s perceived violations of the collective bargaining agreement in the areas of sanctions and complaints (this issue was actually a compilation of 5 grievances and unfair labor practice charges). For four years a probationary faculty member had it communicated to her that she was performing satisfactorily and she was rehired each year of her probationary period. Ultimately it was communicated to her that she would receive tenure.
Throughout this time period the faculty member communicated to management and her peers that she believed certain of her contractual rights were being violated. For example, working conditions involving Saturday assignments and intersessions; the right to have a UPM representative present when meeting with management, and certain issues of academic freedom, or at the very least, personal freedoms (like not having to shine your shoes). Management’s response was to not respond; i.e., no communication for about 3-1/2 months, at which point there was communication in the form of a 90-day notice. This action required inordinate amounts of communication on the part of the individual and the Union. Indeed there were over 20 allegations of improper communications on the part of the faculty member, all of which required some sort of response. Of course, this shopping list of allegations was the result of alleged communications amongst numerous parties. Interestingly, not between District management and the individual. And as it turned out, as management representatives testified under oath during the arbitration, not between them and any outside individuals who could determine the veracity of the allegations. There were however, extensive communications between the District and over 20 outside individuals on the matter of the employment status of the concerned faculty member. So you see, communication, even in abundance, can be misdirected or counterproductive. A little less external and little more internal would have prevented this entire issue from ever becoming a legal matter.
All of this is certainly to communicate to you, the UPM member, what your organization has been doing in part over the last couple of years. There are certainly numerous other issues, such as bargaining the next contract and the election of the next Executive Council, that are also taking place and are equally significant. It is important that our channels of communication remain open and clear throughout all of these events. Let us not create situations for ourselves like those that we have fought so hard to prevent. Stay in touch.
Changes in Nursing Department Planned
Settlement Yields Dispute Resolution Process
Settlements between the UPM and District by their nature bring closure to contention, and the settlement in the "90-Day Notice" case is no exception. Yet in this agreement, the mandate is also to look ahead and to establish new procedures and agreements that will prevent future contention. Specifically, the agreement provides for a new process to handle complaints within the Nursing Department and for special negotiations to deal with working conditions within the department.
DISPUTE RESOLUTION
A completely new process will be set in motion "in order to facilitate the handling of disputes and complaints in the Nursing Department by any member of the nursing faculty or director of nursing," reads the settlement. An advisory committee, consisting of a UPM representative and one representing the District, will be called to action whenever a dispute arises in the department. The committee’s charge is to resolve the dispute, and in the event it seems helpful in that endeavor, the committee will call upon the services of a third-party facilitator to assist. These procedures will remain in place until July 1, 2004, at which time they may be extended by the UPM and District.
POSSIBLY A DEPARTMENT CHAIR
The 90-Day Notice settlement has also determined that the District and the UPM will enter into negotiations regarding workload issues in the Nursing Department. While this bargaining is to be separate from new-Contract bargaining, it is to begin within 30 days of the final acceptance of the settlement. Clearly identified in the settlement is the option within these negotiations to establish a department chair position for Nursing.
And yet a separate item from the settlement stipulates that the "District shall continue its efforts already commenced, to utilize the services of an outside mediator to work with the Nursing Department to improve communication."
Thus the settlement closes the door on some unsavory past events and simultaneously looks ahead to the prevention of others.
ALERT TO PART TIMERS:
Possible Trouble with Evaluations?
A recently-filed grievance may be just the first overt indication of an alarming development for part-timers facing evaluations.
An ETCUM instructor, one who’s been around for about 6 years with good reviews, was recently denied a teaching load after being evaluated a second time by a manager who, the UPM has alleged, used particularly flimsy and ambiguous criteria in that evaluation. A grievance has been filed in this case, but this incident, in addition to some others disturbing reports, seems to indicate that a new management attitude is emerging toward ETCUM evaluations.
Be watchful. And above all else, get in contact with the UPM if you suspect an evaluation is being used against you.
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Details of the Settlement
90-Day Notice Case is Closed
The UPM Executive Council and the Board of Trustees have accepted the tentative agreement between the District and UPM, thus officially settling perhaps the most difficult and rancorous conflict between management and faculty ever experienced at our college. Characterized as a "compromise settlement," the agreement states that neither party admits violation of law or other wrongdoing. Nevertheless, that agreement will lead to several important safeguards for the future. With this, a long and difficult test of determination and personal endurance is brought to a close.
Perhaps more than anything, this resolution affirms the essential nature of both the Contract and the union’s advocacy of faculty rights. The official agreement stipulates that while the District retains the right to investigate matters permitted by law, there can be no conflict with the Contract. More specifically, the District agrees now not to file information of a derogatory nature "unless or until the unit member is given notice of such information and an opportunity to review the document(s)." The tenacity displayed by both Jeannie Langinger and the UPM to enforce this and other fundamental rights of all faculty has been truly remarkable.
As for the agreement itself, its language conveys the expected disclaimers, denials of liability, and disavowals of admission to any violation of law or wrongdoing. While attorney’s fees and other costs relative to the pursuit of the issue cannot be claimed by either party, the District has agreed to pay Langinger the cost of insurance she had to secure during the "remediation" phase of the 90-Day Notice process. And the District agrees to having the arbitrator in the case determine whether Langinger is due any money for reimbursable work hours and other expenses. The agreement also specifies that all documents regarding the case be removed from Langinger’s Personnel file and instead retained in a sealed, confidential file that can not be used in any way affecting Langinger’s employment. It may be opened only with the express knowledge of Langinger and the UPM.
The agreement also includes a joint statement by UPM and the District, reading,
The grievances and disputes between UPM/Langinger and the District have been resolved to the satisfaction of the parties. There is no pending action relative to Ms. Langinger’s competence. ¶ Ms. Langinger is an employee in good standing at the District. ¶ Rosalind Hartman has been and continues to be the Director of Nursing in good standing with all the rights and responsibilities of Director.
But attending the expected legal language of the agreement are two key provisions that hearken to the future. The first sets up a dispute resolution procedure for the faculty in the Nursing Department. The second opens the door for negotiating the working conditions for nursing faculty, possibly leading to the creation of a department chair position for the department. (See related article.)
With this settlement, the curtain closes on a disturbing act that, while certainly no comedy, was not allowed to become tragedy. With close adherence to the Contract and the vigilance of the UPM, perhaps such a thing as this will never have to be performed again.
HISTORY OF THE 90-DAY NOTICE CASE
BY BERNADENE ALLEN
BACKGROUND:
The 90 Day Notice received by Jeannie Langinger did not occur in a vacuum. Unlike other departments, nursing does not have a department chair, and the Director or Nursing attends and chairs department meetings, meetings that are at time contentious and acrimonious. Much of the acrimony is related to extra work beyond their teaching responsibilities, work that rightly belongs to management. Protesting the extra work typically results in pressure and criticism from the Director. In October 1999, the Dean and Director attempted, unsuccessfully, to put the onus of this dissension on one of the respected senior members of the department. Six months later in May 2000, another instructor was the focus of a student complaint that caused tension and apprehension while waiting for nearly six months to hear that the allegations were without merit. A year later this tenured instructor resigned, citing, as reasons for leaving, the dissension within the department and the Director’s frequent negative criticism and lack of support of faculty.
90 DAY NOTICE:
Jeannie Langinger had never received a formal student complaint, never filed a grievance against the District and had no complaints about her nursing skills. Yet on Oct. 6, 2000, she received a 90 Day Notice of Unsatisfactory Performance from the District. It should be noted that when the California legislature added unsatisfactory performance to the Education Code about four years ago, neither definitions nor guidelines for unsatisfactory performance were provided.
Of the 20 allegations against Jeannie in the 90 Day Notice, eight were anonymous, e.g. "It was reported that you yelled in the hall." Name, date and time were missing, and our Collective Bargaining Contract forbids such anonymous complaints. Other allegations were trivial and insignificant, e.g., unpolished shoes, a letter she wrote was alleged to be lacking a proper business format. A detailed 40 page written response to all allegations with supporting evidence, detailed data and witnesses, was prepared by Jeannie, with the assistance of UPM’s attorneys and the grievance officer.
NO INVESTIGATION OF THE ALLEGATIONS:
The District did not investigate any of the allegations. During the arbitration hearings, Pres. Middleton and the Director of nursing testified under oath that they had not investigated any of the allegations, nor had the President asked anyone else to conduct an investigation.
Fourteen of the allegations were made by a charge nurse at a hospital where Jeannie supervised student nurses, and were the foundation of the 90 Day Notice even though the charge nurse had observed none of the allegations.
The District became aware of these allegations on June 29, 2000, but failed to inform Jeannie until October 6th, 2000, an egregious violation of the District/UPM Collective Bargaining Contract.
Over a period of eight months, UPM filed five separate grievances that cited Contract violations, retaliation for union activities, harassment and discrimination against Jeannie during the 90 Day Notice and remediation period.
ONE STUDENT COMPLAINT
For five years Jeannie received positive evaluations from students in her classes. In spring semester 2000, one student complained. The student was enrolled in a short term class that only met three times; he was tardy for two classes and missed one class entirely.
REMEDIATION: TRIAL BY ORDEAL
In anthropology we use a term, trial by ordeal, to describe a practice in some cultures of determining guilt or innocence through an ordeal, e.g., a person accused of a crime is bound hand and foot, weighted down with stones, and thrown into the river. Drowning is a sign of guilt.
The Remediation Plan was a trial by ordeal, nearly impossible to accomplish, and patently designed for failure. Jeannie was expected to teach her classes, work many full shifts in a hospital as part of the clinical remediation, attend weekly feedback meetings, respond in writing to the 90 Day allegations and weekly criticisms of her lectures. A relentless flood of critical memos and email messages flowed nearly daily from the Director of Nursing, all of which were placed in Jeannie’s personnel file. No event, incident or rumor was too insignificant or irrelevant to avoid the memo and email paper storm. Jeannie was forced to prepare time-consuming written responses to each.
Every class Jeannie taught was observed and evaluated by a retired nurse who was paid $100/hour. Ninety-nine percent of her criticisms of Jeannie’s teaching were protected by academic freedom or were irrelevant, e.g. "discuss this topic before that one," use an old reference instead of Jeannie’s more recent one, give two examples instead of three, etc. Not a few of the criticisms by the paid consultant and the Director were inaccurate or incorrect. When Jeannie identified their errors, she was accused of being defensive! Beginning in January 2001, UPM also placed observers in Jeannie’s classrooms, a task that Arthur Lutz and I shared.
CLINICAL REMEDIATION:
Jeannie was assigned to a local hospital to work as an RN caring for patients on a cardiac specialty ward for which she had no expertise. I protested vocally and in writing that the cardiac specialty assignment was in violation of the Nurse Practice Act, that Jeannie and the patients were at risk, and that she should be removed immediately. UPM president Ira Lansing also protested the assignment, as did our UPM attorneys who wrote several letters threatening dire legal consequences to the District and hospital. The District failed to comply. Finally when the hospital discovered that Jeannie should not be working on a cardiac specialty ward, they terminated the remediation immediately.
A second clinical remediation was arranged at another hospital on a medical/surgical ward. A hospital administrator selected two nurses as preceptors with MA degrees who taught at another school of nursing. Neither Jeannie nor the Director of Nursing knew the two nurses. While observing Jeannie’s nursing skills for several days, the two RN preceptors found no fault or weaknesses in her nursing skills and concluded that she was a competent nurse.
STUDENTS SUPPORTED JEANNIE
Nursing students spontaneously rose to Jeannie’s defense by writing letters in support of her to the President and Board of Trustees, and protesting in person to the Director of Nursing. Students initiated an article in the Echo Times to bring the issue to the broader college community. They complained that having observers in the classroom was disruptive, and they threatened to refuse to recommend the nursing program to prospective students if Jeannie was terminated. Their support was heartwarming and invaluable to Jeannie’s morale and the termination of the 90 Day Notice.
Last summer the District approached UPM to settle this case; it took another six months plus three days in arbitration for an agreement to be reached. This expensive, disturbing and divisive ordeal would have been avoided had the District followed our Contract.
For Jeannie it was a year from hell that few could survive. What sustained her was support from nursing students, encouragement from many, many faculty and staff throughout the college community, unwavering support from UPM, and a firm belief in her own teaching and nursing skills.
Letter to the Editor
February 24, 2002
 Dear Editor:
My greeting seems to indicate that I am writing you, but I’m really offering advice to my fellow part-time instructors who have or hope to attain ETCUM status.
When College of Marin instituted this system offering a modicum of job security for part timers a number of years ago, I had hoped that somewhere on campus there was a board listing everyone’s ranking in each department in order to assure complete fairness (at least in keeping with the new system of assigning classes to part-time instructors).
While the rules of ETCUM status seem to require that, I must warn you, part timers, that even though you may be absolutely sure that you are ranked first on a hiring list, you may not be the first to be called to teach a class in your discipline because you may fall through the cracks in the system. Though no one is deliberately bypassing you, cracks in the system may occur: human resources staff change jobs or go on vacation; hiring committees don’t set up hiring lists; miscommunication happens.
Whatever the reason, I strongly recommend, based on personal experience, that you keep meticulous records of all your teaching contracts at College of Marin, your teaching evaluations, and the job announcements and written results of all hiring processes you go through, whether they were for part-time or full-time positions.
Like all workers in the new millennium, if we want to thrive, we must see ourselves as independent contractors working for an ever-changing system and be responsible for our own destinies. Fortunately however, for those times when we feel especially isolated and powerless, our union, United Professors of Marin, is there for us, offering solid information and advocacy to every one of us.
So if you are concerned about your ETCUM status, call your union and talk with Ira Lansing or Bernadene Allen. They know what they’re talking about and they’re ready to go to bat for you.
Good luck,
(s) Karen Koenig
Communications Department
News from Beyond Marin
Union Alarmed, Disappointed by Bush’s Tuition Tax Credit Proposal
The AFT is "alarmed and disappointed" that President Bush’s Feb. 4 budget proposal includes tax credits of up to $2,500 for private school tuition for children whose public schools are considered to be failing under state standards.
The proposed tax credit would cost taxpayers an estimated $3.7 billion in lost revenue over five years. The Washington Post cites information from a senior administration official that the money also could be used for books, computers and other equipment to set up a home school or for transportation to a private school or better public school. "While we will continue to support many of the president’s education policies, and welcome the increases for Title I and for the Individuals with Disabilities Education Act, we part company on the issue of school vouchers," said AFT president Sandra Feldman in a statement.
Whether called tax credits or vouchers, they would undermine President Bush’s goal of improving public schools that was at the heart of the recent reauthorization of the Elementary and Secondary Education Act (ESEA), she added, which already allows parents to transfer their children from consistently low-performing public schools to other public schools.
"This proposal would divert public dollars from these public schools for private school tuition—the same as a voucher."
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Details of the Settlement