Faculty and EPA Professionals Grievance

Procedure

Conducting an Effective Grievance Hearing

Presented by: The Office of Legal Affairs

2008

Participants in the Grievance Grievant

Must file a grievance that comes within the scope of the grievance procedure after fulfilling jurisdictional pre-requisites

Respondent(s) Must be an administrator who has made a decision that

adversely affects the grievant Not a colleague Not someone who acts in an advisory capacity

Hearing Committee Committee Chair Chancellor – the decision maker

Grievance Committee

Role of Committee Chair – to preside, not decide

Role of Committee Fair and impartial hearing panel makes fact findings makes recommendations

Fair/Impartial Hearing

Due Process – opportunity to be heard by a fair and impartial decision maker

Conflicts of Interest

Communicating with the parties; no “ex parte” communications

Initial Meeting Orientation

Review of grievance procedures Resolving any Conflicts of Interest that

any member of committee may have Committee decision on jurisdiction (based

on grievance petition) does grievance state a grievable matter, i.e. is it

within the scope of what may be grieved was grievance timely filed were filing prerequisites followed

Matters that are not grievable Disagreements with general application

of policies on grounds that policy is unfair or inadvisable

Complaints of harassment Appeals from terminations or discharge

of faculty with academic tenure Complaints, grievances or appeals that

are subject to another university procedure or within the jurisdiction of another university committee

Does Grievance Petition state a grievable matter?

Non reappointment grievances Tenure Track Faculty

Limited to grievance alleging decision based on exercise of First Amendment rights of free speech; discrimination; personal malice; material procedural violations

EPA Professionals Limited to inadequate notice; discrimination;

violation of First Amendment rights of free speech

Other Grievances - Is Grievance Petition SufficientMust identify with specificity an

administrator’s decision that adversely affects the grievant’s academic or professional capacity

Must allege that the decision was reached improperly or unfairly

Improperly

Improperly means in violation of a specific university rule, regulation, policy or practice pertaining to the employment relationship between the grievant and the university

Improperly

Violation must be material A material procedural irregularity

means a departure from prescribed procedures that casts substantial doubt on the validity of the decision.

Unfairly

Unfairly means in an arbitrary or capricious manner or in an unlawfully discriminatory manner.

Unfairly

Arbitrary or capricious means without rational basis

Unlawfully discriminatory manner means in violation of law or a university non-discrimination policy Discrimination based on race, national

origin, gender, religion, age, disability Discrimination based on sexual orientation Discrimination based on protected free

speech

Personal Malice

UNC Code provides that a decision not to reappoint a faculty member may not be based upon “personal malice”

“Personal malice” means “dislike, animosity, ill-will or hatred based on personal characteristics, traits or circumstances of an individual that are not relevant to valid University decision making.”

Personal Malice (cont’d)

Examples of personal malice include negative actions with respect to an employee’s anatomical featuresan employee’s marital statusan employee’s social acquaintancesan employee’s height or weightAn employee’s sexual orientation

Importance of having a proper grievance petition Provides notice and due process to the

administrator who must respond to the grievance and prepare for the grievance hearing

Gives all parties and committee members notice of the precise issues that will come before the committee

Expedites the grievance hearing process

Importance of having a proper grievance petition The grievance statement facilitates

efficient administration of justice at NCSU: In many cases, the relief the grievant is

asking for is not a grievable matter, such as a disagreement with general university policy

It is inefficient to subject respondents (or the University or State of North Carolina) to defend themselves in a grievance that is not properly grievable

Filing Deadlines Grievance petition must be filed within sixty

calendar days of the decision cited in the grievance.

This filing deadline can be waived if in the judgment of the chair of the faculty, there were significant extenuating circumstances preventing the filing.

Time deadlines are important because delays may result in faulty memories, unavailable witnesses and documents.

Also closure is an important value. It enables the grievant and administrative units to

resolve matters expeditiously and move forward.

Extenuating Circumstances

Extenuating Circumstances - Examples Faculty member is unable to file due to unforeseen

circumstances (hospital stay, etc.) Faculty member is unaware of the decision for a

delayed period and through due diligence would not have been aware earlier

Mediation extends the time for filing of the grievance But note there are time deadlines for filing the

mediation and for pursuing the grievance if mediation fails to resolve the matter.

Filing Pre-requisites

Prior Attempt at informal resolution Must meet with Department Head and Dean or

Unit Head to see if informal resolution is possible May obviate need for grievance committee

Review Personnel File May obviate grievance if it resolves

misunderstanding Employees are entitled to access their

employment files

Committee Options Dismiss grievance Proceed to pre-hearing to explore with

grievant whether there is a grievable matter Determine if grievant states a grievable matter

and if so, reach consensus on amended grievance statement; dismiss if grievant cannot state a grievable matter

If it is determined that the grievant has stated a grievable matter then respondent(s) must be provided with the opportunity to respond in writing to the amended grievance

Pre-hearing Conference

Review of the Grievance what are the issues, relevant policies/practices

Committee may not receive evidence Parties may not argue the merits of their case

Identifying the parties to the Grievance Review of Requested Redress Review of Hearing Procedures Third Party Observers

Jurisdictional Appeal

Either party may appeal decision on jurisdiction

Grievance hearing is held in abeyance pending the Chancellor’s decision

Chancellor requests response from party and the committee

Chancellor requests committee decision and the jurisdictional record

Evidence for the Hearing

Exchange of list of witnesses and documents before the hearing

Identification of Documents by Exhibit # Creating the Record

grievance statement and response to grievance correspondence testimony of the pre-hearing and hearing the decision

Responsibility of the Grievance Participants to attend hearings What happens if either party fails or

refuses to participate in the pre-hearing or grievance hearing

What happens if a committee member fails or refuses to participate at any step in the grievance process

Conducting the Hearing Opening Remarks by the Chair

items to be addressed Opening Statements by the Parties

order and contents Presentation of Evidence by the Parties

relevant and material documents and testimony procedure for presentation Dismissal after grievant’s case if grievant has not

presented sufficient credible evidence to sustain the grievance

Closing Statements order and contents

Deliberating and Reaching a Decision

Role of the Chair - facilitator Discussion of facts Discussion of facts as they relate to

each key issue Deciding the ultimate issue

evaluating conflicting evidence

Burden of Proof – on the grievant

The Written Decision

Introduction - describing the process followed by the Committee

Brief Description of the grievance and the parties to the grievance

Findings of Fact and Conclusions (basis for conclusions, how facts support conclusions, resolution of conflicting evidence)

Recommendations

Remedy

A grievance committee has no power to reverse an administrative decision, but can only recommend a reassessment of that decision if it finds that the decision was reached improperly.

Transmittal of Decision and Record Non-reappointment grievances – directly to

the chancellor All other grievances – if committee

recommends adjustment in favor of grievant, report is sent to the parties who may agree to accept the adjustment or otherwise mutually resolve the dispute. If no adjustment/resolution is made within 20 days, report and record is transmitted to the chancellor.

Miscellaneous Issues and Unusual Situations Confidentiality of Grievance Proceedings Burden of Proof/Burden of Production Hearsay evidence Affidavits from absent witnesses Failure of a party to exchange documents or

witness lists Standing Admissible evidence

Miscellaneous Issues and Unusual Situations Personnel file access – not committee’s right Role of Legal Counsel – NCSU, others Differences in grounds for grievance depending upon

the grievant’s status Requests to amend the grievance or separate

grievances Applicable policies and procedures Remedies Withdrawal of grievance – effect Faculty leaves the university – effect Separate report to the Chancellor