43 Employee Grievance

Procedure

1. Title: This procedure is known as the “Employee Grievance Procedure” and governs only employees of MSC as defined herein.
2. Definitions:
   1. Employee: “Employee” means an individual who is employed by MSC in a regular full-time or a regular part-time position, but does not include adjunct, seasonal, or temporary personnel, an applicant for employment, or an employee in the initial probationary period of employment.
   2. Reference to Gender: Any use of grammatical gender references must be interpreted as applying equally to males and females.
   3. Complaint: (See 3.1.)
   4. Grievance: (See 4.1.)
   5. Days: The term “days” when used in this policy will, except where otherwise indicated, mean working days; thus, weekend or vacation days are excluded.
3. Complaint and Resolution:
   1. Definition: A “complaint” is an employee’s timely (normally within 10 working days) written expression of dissatisfaction with aspects of employment that are outside the employee’s control.
   2. Complaint Resolution: A complaint must be brought to the attention of the employee’s immediate supervisor, who must respond within 5 working days; and if it is not resolved at that level, it must be referred to the next higher administrative level according to the organizational chart in effect at that time.  That level will normally respond within 5 working days.
4. Grievances and Resolution:
   1. Purpose: The purpose of this procedure is to secure, at the lowest possible administrative level, equitable solutions to the problems which may from time to time arise, affecting the welfare or working conditions of staff members.  Grievance proceedings will be kept as informal and confidential as may be appropriate at any level of the procedure.
   2. Definition: A ”grievance” is a timely (normally within 30 working days) written complaint that has not been resolved to the satisfaction of the employee after informal discussion of the complaint through regular administrative channels set forth in the organizational chart.  A grievance must be presented in writing and must indicate that there has been a violation of any of the provisions of employment or that the employee has been treated inequitably by reason of any act or condition which is contrary to established College policy or practice governing or affecting staff members.  The grievance must also state whether the employee believes discrimination due to race, color, national origin, religion, sex, qualified handicap, disability, age or status as a veteran is involved.  A grievance may be filed against a particular individual employee or employees, but may not be filed against a committee.
   3. Grievance Resolution: If discussion fails to resolve the complaint, the complainant may request in writing that Human Resources form a grievance committee.  To ensure the rights of the individual, the Human Resources Director has the responsibility to question the complainant as to whether the administrative chain of command was followed in attempts to resolve the issue.  If it has, the Human Resources Director will provide both the complainant and the person against whom the complaint was made with copies of written policies and procedures relating to grievance, and a copy of the written request for grievance adjudication.  If the complaint is against the Human Resources Director, the complainant must request that the chief financial officer carry out all duties of the Human Resources Director under this grievance procedure.
5. Information to be Contained in Written Grievance Request: No written request for grievance adjudication will be considered by the Grievance Committee unless it contains the following information:  (a) a statement of the grievance together with supporting evidence; (b) the specific remedial action or relief sought; (c) a brief summary of the results of previous discussions on the issues involved; (d) a statement of reasons why the remedial action or relief is sought; and (e) a statement that illegal discrimination is, or is not, alleged.  Grievance forms can be obtained from the Human Resources Office or on the MSC Commons/MSC Forms.
6. Formation of a Grievance Committee: Within 5 working days after receipt of a written request for the formation of a grievance committee, Director of Human Resources will select a grievance committee by random choice from a listing of employees.  Both parties to the grievance will be notified of the time and place for selection of the grievance committee, and each will have the right to be present during the selection.
7. Composition of a Grievance Committee: The Grievance Committee is to consist of five  members, chosen at random, consisting of two members from the employee group to which the grievant belongs, two members from the employee group of the person against whom the grievance has been filed, and one member at large selected by the same process as the others.  The employee groups are to be faculty, administrative/professional staff, and classified staff, except that the Affirmative Action Officer, the President, and the Director of Human Resources will not be considered in the random selection.  NOTE:  If the grievance is against an administrator or a supervisor, the peer group for committee selection purposes will be considered those with supervisory responsibilities.  The grievant and the other party involved in the grievance will each be allowed to challenge two selections from the committee without showing cause (preemptory challenges) and any other selection for cause.  Challenges may be made after a full potential committee has been selected.  The Director of Human Resources will rule on the validity of challenges for cause.  The Grievance Committee will select a Chair from its members and the Chair must cast a vote.   One alternate from each employee group will also be selected to fill in the event a member is unable to serve due to a legitimate reason.
8. Responsibilities of the Grievance Committee Chair:
   1. The Chair establishes a date and time for the grievance hearing. The hearing must be held within 5 working days of the organizational meeting of the committee.
   2. The Chair must in writing:
      1. Notify both parties of the dates and time of the scheduled grievance hearing.
      2. Request that the lists of potential witnesses be provided no later than 48 hours prior to the hearing.
      3. Request that notification be provided no later than five working days prior to the hearing if either party is to be accompanied by legal counsel or other person.
      4. If such notification (see Item K.8.b.3 – the item directly before this item) is received, notify other party immediately.
   3. Establish a reasonable time limit for opening and closing statements and announce the time limit prior to or at the beginning of the hearing.
   4. Establish specific time parameters for the hearing.  Specify when it will start and end.
   5. Remind all participants of the confidentiality of the grievance and hearing.
   6. Conduct the hearing in an impartial manner and observe procedures consistent with fairness to all parties concerned.
   7. Since only evidence relevant to the grievance may be introduced, make decisions regarding relevance of evidence.
   8. Maintain focus and ensure that discussions are pertinent to the grievance.
   9. After the hearing is concluded, preside over deliberations by the Grievance Committee.
   10. Write a report of the findings and recommendations of the Grievance Committee within five working days of the end of the hearing and present the report to the President. Reports for grievances filed against the President will be presented to the Executive Assistant to the Board for inclusion on the next agenda for a regular meeting.
9. Responsibility for Serving on a Committee: All members selected will be expected to serve on the Grievance Committee except in cases of illness, necessary absence from the campus, service on a Grievance Committee in the current semester, or other extreme hardship.  The chief financial officer will decide whether a chosen member should be excused from service and may replace such member by the same procedure used for the original selection.  Members of the Grievance Committee must commit themselves to observe procedures consistent with fairness to all parties concerned; for example, the committee members must not discuss the case with anyone outside of the hearings and must not be influenced in making a decision or recommendation by any consideration other than the evidence presented to them in meetings in which all affected parties are present.  In the event of serious illness, necessary absence, or extreme hardship during the course of the hearing, Human Resources will contact the alternate already selected; and if that individual cannot serve, a new alternate will be selected by the same procedure used in Item K.7.  In the event a committee member is replaced in the course of the hearing, the successor will review the record of the proceedings to become familiar with the positions of the parties and their evidence.
10. Organizational Meeting: The Grievance Committee must meet within five working days of its selection.  At this time the Committee must elect a Chair and schedule a hearing within 5 working days of the organizational meeting.
11. Notices and Agendas: All notices and agendas for the committee members, if any, are the responsibilities of the Chair.
12. Opportunity to Obtain Evidence: Both parties to the grievance will be afforded an opportunity to obtain necessary witnesses and documentary or other evidence.  The parties will be responsible for contacting their own witnesses, and the administration of the College will attempt to secure the cooperation of such witnesses.  The College will make available necessary documents and other evidence within its control.  No employee of the institution, regardless of position, should be excluded or excused from appearing before the Committee, if called.
13. Grievance Consultant: At any step in the grievance procedures, the Affirmative Action Officer, if discrimination is alleged, may be requested by either or both parties to the grievance or by the Committee to serve as a consultant in an advisory capacity only.
14. The Grievance Hearing:
    1. The hearing is to be conducted by the Grievance Committee. Either party may submit oral or written evidence.  The formal rules of evidence must not apply in the proceeding before the Grievance Committee, with the exception that the Committee gives effect to the rules of privilege recognized by law with respect to:  communications between attorney and client made in that relation; communications made by a patient to a licensed practitioner of the healing arts; and communications between minister and communicant made in that relation.
    2. Grievance hearings are considered personnel-related matters and as such are not for open attendance.The Final Rule adds provisions to the “live hearing with cross-examination” requirement for postsecondary institutions. For postsecondary institutions, the school’s grievance process must provide for a live hearing:
       • At the live hearing, the decision-maker(s) must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.
       •  Such cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally.
       • At the request of either party, the recipient must provide for the entire live hearing (including cross-examination) to occur with the parties located in separate rooms with technology enabling the parties to see and hear each other.
       • Only relevant cross-examination and other questions may be asked of a party or witness. Before a complainant, respondent, or witness answers a cross-examination or other question, the decision-maker must first determine whether the question is relevant and explain to the party’s advisor asking cross-examination questions any decision to exclude a question as not relevant.
       • If a party does not have an advisor present at the live hearing, the school must provide, without fee or charge to that party, an advisor of the school’s choice who may be, but is not required to be, an attorney to conduct cross-examination on behalf of that party.
       • If a party or witness does not submit to cross-examination at a live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the decision-maker(s) cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.
       • Live hearings may be conducted with all parties physically present in the same geographic location or, at the school’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually.
       • An audio or audiovisual recording, or transcript, of any live hearing.

        

    3. A confidential tape recording of the grievance hearing must be made and will be accessible to the parties, the Committee, the President, members of the Board, and authorized representatives on a “need to know” basis. Either party to the grievance may request a typed transcript.  The party making the request will pay the cost of the transcription.  The tape is to be preserved for a minimum of two years.
    4. The parties will provide the Chair with a list of potential witnesses at least 48 hours prior to the hearing. These persons will be notified and scheduled for appearance as close to the time of call as possible to avoid undue waiting.  This does not preclude the calling of additional witnesses with the concurrence of the Committee.
    5. Either party or member of the Grievance Committee has the right to call witnesses and the right to question witnesses for a full and true disclosure of the facts. Witnesses may be recalled for additional questioning, if requested by either party or a member of the Committee.  All information discussed in the Grievance Committee is considered personnel information.  Information discussed in the meetings must not be discussed outside the Committee meetings; therefore, the meetings are considered “closed” meetings.
    6. Documentary evidence may be received in copy form or original. Upon request, the parties will be given an opportunity to compare the copy with the original.
    7. The grievant is to be heard first in all phases of the hearing.
    8. A reasonable time limit should be established for opening and closing statements and announced prior to, or at the beginning of, the hearing.
    9. Length of hearing sessions may be established in advance; every effort should be made to conduct the hearings as expeditiously as possible. Either party may be accompanied by legal counsel or other person of his/her choice; however, legal counsel may not testify.  If either party is to be accompanied by legal counsel or other person, the Chair of the Committee must be notified at least five working days prior to the meeting.  The Chair will notify the other party immediately.
    10. Only evidence relevant to the grievance may be introduced. Questions of relevance will be decided by the Chair.
    11. To ensure documentation of the proceedings, a record of the hearing will be made, maintained, and filed with the Executive Assistant to the President/Board. The record will include:
        1. 1. Copies of the evidence and exhibits received or considered at the hearing.
           2. The tape recording of the hearing.
           3. The recommendations of the Grievance Committee.

           4. Transcript, if one is made.

Grievance Committee Finding and Report:  The finding and recommendations of a Grievance Committee must be formalized in a written opinion to be rendered by the Chair of the Grievance Committee within five working days of the end of the hearing and made a part of the record of the hearing.  Findings of fact must be based exclusively on the evidence presented at the hearing, and such findings must be separately stated.  The Grievance Committee will present its report and findings and recommendations to the President.  The President will make the final institutional decision regarding the case and all parties are to be notified in writing of that decision within 5 working days of the rendering of the final decision.  Any person or party adversely affected by the final decision is fully entitled to seek other recourse in a court of law.  If the grievance is against the President, the Chair of the Grievance Committee will forward it to the Chair of the Board who has the responsibility for placing it on the agenda of the next Board meeting.  (The Board reserves the right to schedule a special meeting to address a grievance.) The Board will make the final institutional decision regarding the case by the next regular meeting after the Board receives the Grievance Committee report and findings.  All parties are to be notified in writing of that decision within 5 working days of the rendering of the final decision by the Board.  Any person or party adversely affected by the final decision is fully entitled to seek other recourse in a court of law.

15. Right to Withdraw Grievance: At any point in the proceedings prior to the time at which the Committee reaches its final decision, the grievant may withdraw any portion, or all, of the grievance.   In all cases of withdrawal of a grievance, the grievant will not have the privilege of reopening the same grievance at any time in the future.

16. Time Schedule:

1. 1. Formation of a Grievance Committee: A committee must normally be selected within 5 working days after a person has filed a timely written request for the formation of the committee (see Item K.6.).
   2. Organizational Meeting of Grievance Committee: The Grievance Committee must meet within five working days of its selection.
   3. For Hearing(s) and Reporting Finding(s): A hearing must be scheduled within 5 working days of the Grievance Committee’s organizational meeting.  The hearing(s) and report of the Grievance Committee is normally to be completed as expeditiously as possible, with a report being forwarded within five working days of completion of the hearing(s).
   4. Final Institutional Decision: The President will make the final institutional decision unless grievance is filed against him/her.  Notification to all parties will be made within 5 days of the rendering of the final decision. For grievance against the President, the Board is to be presented with the report and finding(s) of the Grievance Committee at its next regular meeting/special meeting.  The Board will make its final decision by its next regular meeting after it receives the report.
   5. In any case in which the grievance is filed at a time when holidays and vacations will interfere with the time for Committee selection, Human Resources will notify all persons involved in writing of the amended time schedule. In any case in which the Committee deems these time schedules to be inadequate, the Chair will notify all parties involved in writing of the amended time schedule.