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 Sufficient Must 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 features an employee’s marital status an employee’s social acquaintances an employee’s height or weight An 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