(A)
Policy
statement
Whenever possible, disputes should be
resolved informally at the lowest level. To that end, all instructional staff
and administrators are encouraged to engage in free and open communication in
the airing of differences.
(B)
Purpose of the
policy
To provide a procedure concerning
faculty grievance and appeals.
(C)
Scope
The policy applies to main campus
university faculty and instructional staff not bound by a collective bargaining
agreement and not covered by rule
3364-72-51
of the Administrative Code (faculty grievance and appeals), which applies to
occupational therapy and physical therapy faculty of the Judith Herb college of
education, health science and human service, and all faculty in the college of
medicine and life sciences, college of pharmacy and pharmaceutical sciences and
college of nursing,
(D)
Definitions
The term "grievance" shall mean a
written complaint concerning the interpretation or application of a specific
term or provision of university, college or department policy, or, concerning a
disciplinary act, or alleging that the application of such procedures or
criteria was clearly erroneous, arbitrary or capricious. Grievances involving
discretionary decisions shall be processed solely with respect to whether or
not the prescribed procedures were followed and whether or not prescribed
criteria, if any, were observed.
(1)
The term
"grievant" means an instructional staff member or group of instructional staff
members not within the bargaining unit involved in a grievance.
(2)
As used in this
grievance procedure, the term "days" means calendar days except saturdays,
sundays and legal holidays as observed by the university.
(3)
Nothing in the
definitions and this chapter shall be construed to prohibit the bringing of a
grievance by more than one instructional staff member, not within the
bargaining unit, in one proceeding.
(E)
Procedure
If the matter is not resolved
informally, a formal grievance may be filed on the official grievance
form.
(1)
Initial filing:
The aggrieved instructional staff
member shall present the grievance in writing on the official grievance form to
the instructional staff member's dean within fifteen days following the act or
omission giving rise to the grievance, or the date the instructional staff
member knew or reasonably should have known of such act or omission. The
definitive act or omission shall be the final decision in any multi-stage
process, e.g. promotion and tenure. The written grievance shall state the
nature of the act or omission giving rise to the grievance, the date when the
act or omission occurred, the university, college or department policy
provision allegedly violated, the remedy sought, and be signed by the grievant.
Grievances shall be filed at the lowest level, as described in this rule, with
authority to resolve the grievance.
(2)
Dean:
Upon receipt of a grievance, the dean
shall arrange for a meeting with the grievant to take place within fifteen days
to discuss and attempt to resolve the grievance. Within fifteen days following
the meeting, the dean shall send a written response to the grievance, including
reasons, on the original grievance form, to the grievant, with a concurrent
copy to the provost and executive vice president for academic affairs. If the
grievant does not accept the answer provided at this step, the grievant may,
within five days, appeal, on the original grievance form, to the provost and
executive vice president for academic affairs.
(3)
Provost and
executive vice president for academic affairs:
Upon receipt of a grievance or
grievance appeal, the provost and executive vice president for academic affairs
(or designee) shall arrange for a meeting with the grievant, to take place
within fifteen days, to discuss and attempt to resolve the grievance. Within
fifteen days following the meeting, the provost and executive vice president
for academic affairs (or designee) shall send a written response to the
grievance, including reasons, on the original grievance form, to the grievant.
If the grievant does not accept the answer provided at this step, the grievant
may, within five days, appeal, on the original grievance form, to the provost
and executive vice president for academic affairs (or designee) for
presentation to the university grievance appeals board.
(4)
University
grievance appeals board:
(a)
Upon receipt of a grievance appeal, the university
grievance appeals board shall conduct a hearing on the matter. The university
grievance appeals board shall consist of three non-bargaining faculty serving
staggered terms, elected for the purpose by the non-bargaining faculty (one
from the law faculty, and two from the chairpersons and assistant/associate
vice presidents with faculty rank) through an election supervised by the office
of the provost and executive vice president for academic affairs, and three
members (full-time university employees not subject to collective bargaining)
appointed by the president.
(b)
Upon receipt of
notice of the members of the university grievance appeals board, the grievant
shall have five working days in which to file a written challenge, for good
cause, to the suitability of any member of that board with the provost and
executive vice president for academic affairs (or designee). If the president
agrees, the challenged member shall be replaced:
(i)
If an
instructional staff member, by the executive committee of the faculty senate,
and
(ii)
If a presidential appointee, by the president.
If the grievant is either a visiting
faculty, or adjunct faculty, the grievant may, within five working days, file a
written request with the provost and executive vice president for academic
affairs (or designee) that the law faculty member be replaced with an
instructional staff member of the same status as the grievant.
(c)
The university grievance appeals board shall conduct
its hearings in accordance with the following:
(i)
The board shall
fix the time and place for each hearing and, at least five days prior thereto,
shall mail notice of the time and place of hearing to the grievant and to the
provost and executive vice president for academic affairs (or
designee).
(ii)
At their own expense, any party may be represented at
the hearing by counsel or by other authorized representative.
(iii)
Any party
wishing a stenographic or electronic record shall make such arrangements
directly with the stenographer or electronic recorder and shall notify the
other parties of such arrangements in advance of the hearing. The requesting
party or parties shall pay the cost of such record. The official record of the
hearing shall be the notes of the members of the university grievance appeals
board.
(iv)
The grievant and respondent are entitled to attend all
hearings. The university grievance appeals board shall have the power to excuse
from the proceeding any witness or witnesses during the testimony of other
witnesses. It shall be discretionary with the university grievance appeals
board to determine the propriety of the attendance of any other
persons.
(v)
The university grievance appeals board for good cause
shown, may adjourn the hearing upon the request of a party or upon its own
initiative, and must adjourn when all the parties agree
thereto.
(vi)
All decisions of the university grievance appeals board
shall be in writing, signed by a majority of the board. The finding and
recommendation to the president shall also be made by majority vote. Should the
board deadlock, it shall forward to the president a statement of the relevant
facts and position and arguments of each party without
recommendation.
(vii)
A hearing shall be opened by the recording of the
place, time, and date of hearing, the presence of the members of the university
grievance appeals board, the parties and counsel, if any, the receipt by the
university grievance appeals board of the grievance document, administrative
answers, and any stipulation agreed to by the parties.
Exhibits, when offered by either party,
may be received in evidence by the university grievance appeals board and shall
be provided to the opposing party. The names and addresses of all witnesses and
exhibits in order received shall be made a part of the record. All parties
shall have the right to cross examine the witnesses and challenge the exhibits
of the opposing party.
Except in cases of discipline, the
grievant shall present first. In all cases the university grievance appeals
board shall afford full and equal opportunity to all parties for presentation
of relevant evidence.
(viii)
The hearing
may proceed in the absence of any party who, after due notice, fails to be
present or fails to obtain an adjournment. A finding and recommendation shall
not be made solely on the default of a party. The university grievance appeals
board shall require the other party to submit such evidence as may be required
for the making of a finding and recommendation.
(ix)
The parties may
offer such evidence as they desire and shall produce such additional evidence
as the university grievance appeals board may deem necessary to an
understanding and determination of the dispute. The university grievance
appeals board shall have the authority to compel the testimony of any employee
of the university or the production of any document in the possession of the
parties not protected by attorney-client privilege. The university grievance
appeals board shall be the judge of the relevancy and materiality of the
evidence offered and conformity to legal rules of evidence shall not be
necessary. All evidence shall be taken in the presence of all the members of
the university grievance appeals board and all the parties except where any of
the parties is absent in default or has waived its right to be
present.
(x)
The university grievance appeals board may receive and
consider the evidence of witnesses by affidavit, giving it only such weight as
seems proper after consideration of any objections made to its admission.
All documents not filed with the
university grievance appeals board at the hearing, but which are arranged at
the hearing or subsequently by agreement of the parties to be submitted, shall
be filed simultaneously with the university grievance appeals board and all
other parties with certification of service to all the other parties provided
to the university grievance appeals board by the submitting
party.
(xi)
Whenever the university grievance appeals board deems
it necessary, it may make an inspection in connection with the subject matter
of the dispute after written notice to the parties who may, if they so desire,
be present at such inspection.
(xii)
The parties may
provide, by written agreement, for the waiver of oral hearings.
(xiii)
At the close
of the hearing the chairperson of the university grievance appeals board shall
inquire of all parties whether they have any further proofs to offer or
witnesses to be heard. Upon receiving negative replies, the chairperson of the
university grievance appeals board shall declare the hearings closed and a
minute thereof shall be recorded. If briefs or other documents are to be filed,
the hearings shall be declared closed as of the final date set by the
university grievance appeals board for filing. The university grievance appeals
board shall have thirty calendar days from the close of hearings to file its
finding and recommendation with the president. A copy of the university
grievance appeals board's finding and recommendation shall be sent at the same
time as it is filed with the president to each party to the
dispute.
(xiv)
Any party who proceeds with the hearing after knowledge
that any provision or requirement of this chapter has not been complied with,
and who fails to state an objection thereto in writing, shall be deemed to have
waived the right to object.
Upon receipt of the university
grievance appeals board's finding and recommendation the president shall,
within fifteen days, make a final decision on the grievance. The grievant and
all other affected parties shall be informed in writing of the president's
decision.
(E)
Standard of
review
The university grievance appeals board
shall review decisions on the basis of the following questions:
(1)
Were prescribed
procedures followed?
(2)
Were prescribed criteria applied?
(3)
Was the
application of the criteria in the grievant's case clearly erroneous?
Decisions of the board shall be based
on a preponderance of the evidence presented to the board. It shall not
consider any documentation or testimony taken outside the hearing unless by
mutual consent of the grievant, the university and the
board.
(F)
Remedies
All officers (dean, provost, university
grievance appeals board) hearing a grievance shall be bound by the
following:
(1)
Their decisions shall be limited to only the question
or questions submitted for their decision.
(2)
If error is
found, the matter grieved shall be returned to the level of error with
instructions to proceed in accordance with the university grievance appeals
board's decision.
(3)
They shall not render any decision which would result
in the violation of university policy or a public statute or
regulation.
