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ARTICLE XVIII


DISPUTE SETTLEMENT


18.1 General

18.1.1 As used in this Article, a day (unless denoted otherwise) is any day the College's administrative offices are open for business.

18.1.2 The number of days indicated at each step herein should be considered a maximum, and effort must be made to expedite the process. If the District fails to respond to the complaint or grievance in a timely manner at any step, the complainant or grievant may proceed to the next step. Complainant's or grievant's failure to appeal in writing the decision rendered at any step in the procedure within the specified time period will constitute acceptance of the decision rendered. Time limits may be extended by mutual written consent.

18.1.3 The grievant or complainant must be provided a reasonable opportunity to be personally present at each level of the dispute resolution procedure. The grievant or complainant may request a representative at any level in the dispute resolution procedure. Such representation normally shall be limited to two (2) persons. The presence of advisors may be requested at any stage of the procedure by either party.

18.1.4 Requests for necessary and relevant information may be made at any time. Necessary and relevant information requested shall be provided within a reasonable time, but new issues which constitute a separate dispute beyond those originally presented shall not be introduced at any succeeding level by either party.

18.1.5 An investigation or other handling or processing of any dispute shall be conducted so as to result in minimal interference with, or interruption of, the instructional program and related work.


18.2 Grievance

18.2.1 Purpose and Scope

18.2.1.1 A grievance is an alleged misinterpretation, misapplication or a violation of a specific provision of this agreement, or Board Policies and Procedures.

18.2.1.2 A grievant is an employee (or CSEA) adversely affected by the alleged misinterpretation, misapplication, or violation of this Agreement or Board Policies and Procedures.

18.2.2 Procedures

18.2.2.1 First Step - An attempt shall be made to resolve any grievance in informal verbal discussion between the grievant and the employee's immediate supervisor.

18.2.2.2 Second Step - If the grievance cannot be resolved informally, the grievant shall file the grievance in writing and, at a mutually agreeable time, discuss the matter with the supervisor and the appropriate manager. The written grievance shall state the nature of the grievance, and shall state the remedy requested. The filing of the formal, written grievance at the second step must be within fifteen (15) days from the date when the grievant knew, or reasonably should have known, of the occurrence of the event giving rise to the grievance. The manager shall make a decision on the grievance and communicate it in writing to the grievant within ten (10) days after receipt of the grievance.

18.2.2.3 Third Step - If the grievance has not been satisfactorily resolved at the second step, a copy of the grievance shall be filed by the grievant with the Executive Assistant to the President within ten (10) days of the manager's written decision at the second step. Within ten (10) days after such written grievance is filed, the grievant and Executive Assistant to the President, shall meet to resolve the grievance. The Executive Assistant to the President shall file an answer within ten (10) days of the third step grievance meeting and communicate it in writing to the grievant and the supervisor.

18.2.2.4 Fourth Step - If the grievance has not been satisfactorily resolved at the third step, the grievant shall file a request with the Executive Assistant to the President to proceed to the fourth step -- a hearing before a Hearing Officer. This request shall be filed within ten (10) days of the written decision of the Executive Assistant to the President.

18.2.2.4.1 With the concurrence of the grievant, the superintendent/President may either serve as the Hearing Officer or designate another person who need not be an employee of the District to serve.

18.2.2.4.2 If the grievant and the Superintendent/President are unable to agree on a Hearing Officer within the five (5) day period from the third step appeal, then the grievant may request a Hearing Officer chosen from a list of seven (7) names requested jointly by the Superintendent/President and the grievant from the California State Mediation and Conciliation Service. The grievant shall strike from the list the name of one candidate; then the Superintendent/President shall strike the name of one candidate; the names will be stricken in this manner until the name of one candidate remains, who shall be the Hearing Officer. The strike out procedure shall be done within five (5) days from the receipt of the list.

18.2.2.4.3 The Hearing Officer shall conduct a hearing as soon as possible. The Hearing Officer shall notify the Superintendent/President of his/her advisory decision within ten (10) days of such hearing. No new evidence or facts may be presented for consideration after the hearing and the Hearing Officer's advisory decision has been rendered. If subsequent to the hearing new facts or evidence comes to light which may significantly affect the outcome of the grievance, either the grievant or the District may petition the Board to order a new hearing.

18.2.2.4.4 Within ten (10) days of the receipt of this written advisory decision, the Superintendent/President will render a written decision including the reasons for the decision.

18.2.2.4.5 In the event the grievance has not been satisfactorily resolved with the Superintendent/President, the grievant may file, within ten (10) days of the written decision of the Superintendent/President, a request for review by the Board of Trustees and a written response to the Superintendent/President's decision.

18.2.2.4.6 Within five (5) days of receipt of the written response of the grievant, the Superintendent/President may submit a written rebuttal for review by the Board. Within five (5) days of receipt of the Superintendent/President's rebuttal, if any, the grievant may submit a rebuttal for review by the Board.

18.2.2.4.7 The Board will review:
(a) the Hearing Officer's advisory decision,
(b) the Superintendent/President's written decision including the reasons for the decision,
(c) the grievant's written response to the Superintendent/President's decision,
(d) the Superintendent/President's written rebuttal to the grievant's response,
(e) the grievant's written rebuttal to the rebuttal of the Superintendent/President.

The Board will not receive any additional information regarding rendering their decision on the grievance, except as the Board may request. After reviewing all material presented in the case, the Board may accept, reject, or modify the Superintendent/President's decision. This decision shall be made by the Board of Trustees in a timely manner. The decision of the Board shall be final.

18.2.2.4.8 Conditions of Hearings

18.2.2.4.8.1 The Hearing Officer's decision shall be in writing and shall set forth findings of fact, reasoning and conclusions on the issues submitted unless agreed by the parties.

18.2.2.4.8.2 The Hearing Officer shall be without power or authority to make any decision which requires the commission of an act prohibited by law or which violated the terms of this agreement or which adds to, subtracts from, or modifies any of its terms.

18.2.2.4.8.3 The cost of any Hearing Officer including the cost of any transcripts will be mutually borne by both parties.

18.3 Affirmative Action Appeal

18.3.1 There shall be a sincere effort on the part of involved parties to settle complaints promptly through the steps listed below. Charges of alleged unlawful discrimination shall be filed under this policy and procedure as soon as possible. Under no circumstances will a charge be accepted that was not filed within 120 calendar days of the alleged unlawful discrimination.

18.3.2 Representation The complainant shall be entitled to representation of his or her choice at all complaint meetings. The complainant shall notify the Director of Affirmative Action in writing of the name and title of the representative at least two (2) hours prior to the meeting.

18.3.3 Procedures

18.3.3.1 First Step - The Director of Human Resources and Affirmative Action and Affirmative Action shall attempt to resolve any complaints of alleged unlawful discrimination.

18.3.3.2 Second Step - If the complaint is not resolved in Step 1, within 120 calendar days from the date of the alleged unlawful discrimination, the complaint will be put in writing (using the attached form in Appendix I) by the complainant, fully stating the facts surrounding the complaint (Section 59328, Title 5). The indicated form must be filled out completely, signed, dated, and submitted to the Director of Human Resources and Affirmative Action and Affirmative Action. It shall be the responsibility of the Director of Human Resources and Affirmative Action and Affirmative Action to submit the form to the Chancellor's Office immediately. The Director of Human Resources and Affirmative Action and Affirmative Action will call all parties together to hear both sides of the issue, clarify questions and attempt to resolve the issue. The Director of Human Resources and Affirmative Action and Affirmative Action shall make a decision on the complaint and communicate it in wiring to the complainant within fifteen (15) days after receipt of the written complaint.

18.3.3.3 Third Step - In the event the complaint has not been satisfactorily resolved, the complainant shall file, within five (5) days of receipt of the written decision of the Director of Human Resources and Affirmative Action and Affirmative Action a request to proceed to the third step -- a hearing before a Hearing Officer. The Superintendent and President may either serve as the Hearing Officer or designate another person who need not be an employee of the District to serve.

The Hearing Officer shall conduct a hearing within ten (10) days of the receipt of the written appeal of the third step decision and forward the employee's advisory decision to the Superintendent/President. Within five (5) days of the hearing, the Superintendent/ President will render a final written decision setting forth the reasons for such decision.

18.3.3.4 Fourth Step - In the event that the appeal has not been satisfactorily resolved at the third step, the employee may file, within five (5) days of the written decision of the Superintendent/President, a request with the Superintendent/President to proceed to the fourth step, a review by the Board of Trustees. The Board of Trustees will not rehear the complaint but will base its decision on a review of the written evidence. The Board may accept, reject, or modify the Superintendent/President's decision as the Board deems appropriate. Final decision will be communicated to the complainant on the prescribed form provided by the Chancellor of the California Community Colleges within ten (10) days.

Upon receipt of the Board's final decision, if the complainant is not satisfied with the resolution, the employee may submit written objections to the resolution to the Chancellor of the California Community Colleges. Such objections must be submitted within thirty (30) calendar days. (Section 59338). If the Chancellor finds "probable cause" to support a finding of unlawful discrimination, an Administrative Hearing will be held.

18.3.4 Final Disposition of AB 803 Charge Upon sending the notice pursuant to Section 59338 and within ninety (90) days of initiating the investigation required by Section 59334, the District will forward the following to the Chancellor:

18.3.4.1 The original complaint;
18.3.4.2 Report of the nature and extent of the investigation conducted by the District;
18.3.4.3 Report of any action taken to resolve the complaint;
18.3.4.4 Evidence that the District has complied with the requirements of Section 59338;
18.3.4.5 Such other information as the Chancellor may require, (per Section 59340)

18.3.5 Effect of Settlement Any settlement of this discrimination complaint policy and procedure shall be applicable to this complaint procedure only, and shall not be binding authority for the disposition of any matter. Resolution of complaints at any step in the procedure must be signed by the complainant, appropriate District official and Superintendent/President to be considered resolved.

18.3.6 Non-Retaliation Policy The San Joaquin Delta Community College Board of Trustees commits the District to ensure that students, applicants, and employees are not adversely affected for having brought forward a charge of discrimination, testified, assisted, or participated in any manner in an investigation proceeding or hearing relative to unlawful discrimination complaints. Violations of this policy by an employee are causes for disciplinary action, up to and including termination.

18.3.7 A log showing all complaints and their resolution will be maintained by the college district for a three (3) year period. Forms for filing a discrimination complaint will also be maintained by the college district, and must be made available to persons who feel they have been discriminated against unlawfully. It is the responsibility of the Director of Human Resources and Affirmative Action and Affirmative Action to maintain the discrimination complaint log as well as all copies of complaints and resolutions.

Revisions to Affirmative Action Appeal Process Prior to any changes being negotiated in Section 18.3 Affirmative Action Appeal Process, the CSEA and the District agree to participate in a meeting, if possible, with representatives of the San Joaquin Delta College Teachers Association, the San Joaquin Delta College Police Officers Association, and the Associated Student Body Government for the purpose of discussing proposed changes to Section 18.3 and attempting to obtain a consensus about what changes, if any, should be made. Nothing in this section shall be interpreted to diminish the rights or obligations of either the CSEA or the District to negotiate any changes to Section 18.3.

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