Conducting Grievance Hearings-MEK-Chairs Training

8/8/2019 Conducting Grievance Hearings-MEK-Chairs Training

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Faculty and EPA

Professionals GrievanceProcedure

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 scopeof 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 CommitteeRole 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 ³exparte´ communications



Initial Meeting Orientation

Review of grievance procedures

Resolving any Conflicts of Interest thatany member of committee may have

Committee decision on jurisdiction (based

on grievance petition)

does grievance state a grievable matter, i.e. is itwithin the scope of what may be grieved

was grievance timely filed

were filing prerequisites followed



Matters that are not grievableDisagreements with general application

of policies on grounds that policy is

unfair or inadvisableComplaints of harassment

Appeals from terminations or dischargeof faculty with academic tenure

Complaints, grievances or appeals thatare subject to another universityprocedure 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 Sufficient

Must identify with specificity an

administrator¶s decision thatadversely affects the grievant¶s

academic or professional capacity

Must allege that the decision wasreached improperly or unfairly



Improperly

Improperly means in violation

of a specific university rule,regulation, policy or practice

pertaining to the employment

relationship between thegrievant and the university



Improperly

Violation must be material

A material procedural irregularitymeans a departure from prescribed

procedures that casts substantial

doubt on the validity of thedecision.



Unfairly

Unfairly means in an arbitrary

or capricious manner or in anunlawfully discriminatory

manner.



Unfairly

Arbitrary or capricious means withoutrational basis

Unlawfully discriminatory manner means in violation of law or a universitynon-discrimination policy

Discrimination based on race, nationalorigin, 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 ³personal malice´

³Personal malice´ means ³dislike, 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 toan employee¶s anatomical features

an employee¶s marital status

an employee¶s social acquaintancesan employee¶s height or weight

An employee¶s sexual orientation



Importance of having a proper

grievance petitionProvides notice and due process to the

administrator who must respond to the

grievance and prepare for the grievancehearing

Gives all parties and committee

members notice of the precise issuesthat 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, suchas a disagreement with general university

policy It is inefficient to subject respondents (or

the University or State of North Carolina) todefend 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 thegrievance.

This filing deadline can be waived if in the judgment of the chair of the faculty, therewere significant extenuating circumstancespreventing the filing.

Time deadlines are important becausedelays 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 wouldnot 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 withgrievant whether there is a grievable

matter Determine if grievant states a grievable matter

and if so, reach consensus on amendedgrievance statement; dismiss if grievantcannot state a grievable matter

If it is determined that the grievant hasstated a grievable matter thenrespondent(s) must be provided with theopportunity 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 abeyancepending the Chancellor¶s decision

Chancellor requests response from

party and the committeeChancellor 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 toattend 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 notpresented sufficient credible evidence to sustainthe 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 theparties 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 anadministrative decision, but canonly recommend areassessment of that decision if it finds that the decision wasreached improperly.



Transmittal of Decision and

Record Non-reappointment grievances ± directly to

the chancellor

All other grievances ± if committeerecommends adjustment in favor of grievant,report is sent to the parties who may agree toaccept the adjustment or otherwise mutuallyresolve the dispute. If noadjustment/resolution is made within 20 days,report and record is transmitted to thechancellor.





Miscellaneous Issues and

Unusual Situations Personnel file access ± not committee¶s right

Role of Legal Counsel ± NCSU, others

Differences in grounds for grievancedepending upon the grievant¶s status

Requests to amend the grievance or separategrievances

Applicable policies and procedures Remedies

Withdrawal of grievance ± effect

Faculty leaves the university ± effect

Se arate re ort to the Chancellor

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