The UNC
Policy Manual
101.3.2
Adopted
03/21/03
Amended
06/18/03
Amended
03/19/04
Technical
Corrections 08/11/20
Technical
Corrections 02/24/21
Policy on Grievances Filed Pursuant to Section 607 of The Code
I. Purpose of the Grievance Procedure. Section 607 of The Code provides a
process for faculty members to seek redress concerning employment related
grievances. The function of the grievance procedure is to attempt to reach a
consensual resolution of the dispute and, if that fails, to determine whether
the contested decision was materially flawed, in violation of applicable
policies, standards or procedures. The
grievance process is not intended to second-guess the professional judgment of
officers and colleagues responsible for making administrative decisions.
II. Initiation of the Grievance Process
A. Any
faculty member who has a grievance, as defined in Section 607(3) of The
Code, may file a petition for redress in accordance with the procedure
established by the constituent institution.
The petition of the faculty member shall be in writing and shall set
forth in detail the nature of the grievance and against whom the grievance is
directed. The petitioner shall set forth
any information that he or she considers pertinent to the grievance. The faculty member shall deliver a copy of
the petition to the respondent administrator by certified mail or by another
means that provides proof of delivery.
B. When
a decision not to promote is made at the same time as a decision not to
reappoint a faculty member, all challenges to those decisions will proceed
pursuant to Section 101.3.1 of the UNC Policy Manual. When a decision not to promote is not made as
a part of a reappointment decision, campus policy shall determine which faculty
committee has jurisdiction to hear such disputes.
C. Unless
the parties to the grievance have participated in mediation prior to the
faculty member’s filing the petition, before taking any action on the petition,
the faculty grievance committee shall refer the matter for mediation in
accordance with the policies of the constituent institution.
III. Mediation
of Grievances
A. Mediation
is a procedure in which disputing parties enlist the assistance of a neutral
party to help them in achieving a voluntary, bilateral agreement that finally
and definitively resolves all or portions of their dispute, without resorting
to adversarial procedures such as grievance hearings, administrative hearings
or litigation. Any such mediated agreement that the parties are able to
negotiate will be embodied in a written agreement.
B. The
appropriate functions of a mediator are to assist the parties in defining,
clarifying, communicating about, and ascertaining the substantiality and
relevance of the issues that appear to divide the parties and to aid the
parties in generating, considering, and communicating with each other about
possible bases for resolving the dispute.
C. Each constituent institution will have a
policy either that requires the parties to a dispute made under Section 607 to
participate in mediation as a prerequisite to access to the formal faculty
grievance process or that permits the parties voluntarily to do so. While there can be no requirement that forces
a party to reach a mediated agreement, a constituent institution may have a
policy that require the parties to participate in a mediation process about the
dispute. If a constituent institution requires participation in mediation, the
mediator may assess the value of continuing the mediation. If the mediator
determines that the parties are not amenable to a settlement, then the
mediator may end the mediation, and the formal grievance hearing process will
then begin.
D. Each constituent institution will
have a mediation process available which:
1. Has available the number of campus
mediators necessary based on the size of the campus and the estimated
need. Mediators may be trained members
of the faculty or staff, outside mediators from the community, or mediators
from other campuses within the University.
Mediators may not be members of the faculty hearing committee that hears
Section 607 grievances.
2. Requires
every mediator to have successfully completed formal mediation training
substantially equivalent to that required for certification by the North
Carolina Administrative Office of the Courts or to have been formally trained
in mediation specifically designed for use in a university setting.
3. Determines
under what circumstances, if any, attorneys will be allowed to participate in
the mediation process.
4. Assures the parties that
a decision by either party not to pursue mediation beyond the campus required
minimum will not be held against that party in any way and that no blame will
to attach to either party if mediation does not produce a settlement.
5. Provides
that no record of a failed mediation process will be produced by the mediator
other than an unelaborated written statement to the appropriate authority
necessary to invoke the next step in the grievance process, i.e., that
mediation was attempted but settlement was not reached.
6. Prohibits
the mediator from being called as a witness in any subsequent proceeding, and
prohibits anything done or said by either party during a mediation process from
being referred to or used against a party in any subsequent proceeding.
E. The
adopted mediation policy of each constituent institution must provide that any mediation agreement that obligates
the university must be signed by a university official with the authority to
bind the university concerning the particular agreement.
F. Any time limit adopted by a
constituent institution or by Board of Governors policy concerning the formal
resolution of Section 607 grievances will be suspended for the duration of a
mediation process being held pursuant to this policy.
IV. Administrative
Decision
A. If
the grievance is not resolved through the mediation process, then the matter
will be reviewed by the faculty grievance committee established pursuant to
Section 607(1) of The Code.
B. Standard for
determining contested grievances. In
order to prevail in the grievance process, a faculty member must establish that
the faculty member experienced a remediable injury attributable to the alleged
violation of a right or privilege based on federal or state law, university
policies or regulations, or commonly shared understandings within the academic
community about the rights, privileges and responsibilities attending
university employment. Examples would be
if the decision-maker disregarded an established standard for evaluation,
relied on impermissible considerations such as race or sex, or failed or
refused to consult with or receive information from mandated advisory bodies.
C. If
mediation fails to produce a voluntary resolution, the faculty grievance
committee must decide whether a hearing should be held in response to the
petition. The submission of a petition shall not result automatically in an
investigation of or hearing on the petition. The committee shall determine
whether the facts alleged merit a detailed investigation. The committee is to consider
the content of the grievant's petition.
Assuming the truth of the information contained in the petition, the
committee is to determine whether the contentions advanced by the grievant
justify a hearing. A petition properly
is dismissed if the grievant fails to allege an injury that would entitle the
faculty member to relief in accordance with the standard set out in paragraph
IV.B., above. Dismissal is also required if the petition addresses a problem
that is not within the committee's jurisdiction.
D. If
the petitioner has presented an apparently substantial issue within the purview
of the committee's responsibility, the committee will hold an evidentiary
hearing. At the hearing, which is to be attended by the grievant and the
respondent, the faculty member is to present evidence in support of the faculty
member’s contentions and the person charged with wrongdoing is to be given an
opportunity to respond. The committee is
to maintain a complete transcript of all evidence received. Only the evidence so compiled is to form the
basis for committee conclusions about the case and any resulting advice to the
responsible administrator and the chancellor.
The burden is on the grievant to establish by a preponderance of the
evidence that the faculty member has experienced an injury that would entitle
the faculty member to relief in accordance with the standard set out in paragraph
IV.B., above.
E. If,
after hearing the matter, the faculty hearing committee determines that an
adjustment in favor of the aggrieved faculty member is appropriate, the faculty
grievance committee shall so advise the faculty member and the dean, department
head, or other respondent administrator.
If the relevant administrator does not make the recommended adjustment,
or a different adjustment satisfactory to the faculty member, within a
reasonable period of time, the faculty grievance committee shall advise the
chancellor of its recommendation that an adjustment is appropriate.
F. If,
after reviewing the petition or hearing the matter, the faculty grievance
committee determines that no adjustment in favor of the grievant is
appropriate, it shall so advise the faculty member and the chancellor.
G. The
chancellor shall base his or her decision on the recommendation of the faculty committee
and the record from the faculty grievance committee hearing. The chancellor may, in his or her discretion,
consult with the faculty grievance committee before making a decision. The decision of the chancellor is the final
administrative decision.
H. The
chancellor shall notify the faculty member and the respondent administrator in
writing of the chancellor’s decision.
The notification shall include a notice of appeal rights, if any, and,
if the decision is appealable, it shall contain the information specified in
paragraph V.C.2., below.
I. The
faculty grievance process is a process available to current members of the
faculty of a constituent institution. A faculty member whose employment is
terminated during the pendency of a grievance proceeding is not entitled to
continue to pursue the grievance. If the
employment of a faculty member is terminated after the grievance is filed, the
chancellor may, however, in the chancellor’s discretion, determine that it is
in the best interest of the institution to continue the grievance process.
V. Appeal to the Board of Trustees
A. Decisions which
may be appealed.
1. If
the faculty grievance committee did not advise that an adjustment in favor of
the grievant was appropriate, then the decision of the chancellor is final and
may not be appealed.
2. If
neither the relevant administrative official nor the chancellor makes an
adjustment that is advised by the faculty grievance committee in favor of the
aggrieved faculty member, then the faculty member may appeal to the board of
trustees of the constituent institution.
The decision of the board of trustees is final.
B. The board of trustees may delegate to a
designated committee the authority to make procedural decisions and to make
final decisions on behalf of the board concerning appeals of faculty grievances
submitted pursuant to section 607 of The Code.
C. Timeline for
Appeals
1. A
grievant who seeks to appeal the chancellor's disposition of his grievance must
file written notice of appeal with the board of trustees, by submitting such
notice to the chancellor, with adequate evidence of delivery, within 10 days
after the grievant's receipt of the chancellor’s decision. The notice shall contain a brief statement of
the basis for the appeal. If the board
agrees to consider the appeal, it will do so on a schedule established by the
chancellor, subject to any instructions received from the board or from a
committee of the board which has jurisdiction of the subject matter of the
grievance. The board will issue its
decision as expeditiously as is practical.
If the grievant fails to comply with the schedule established for
perfecting and processing the appeal, the board in its discretion may extend
the time for compliance or it may dismiss the appeal.
2. If
the chancellor’s decision is appealable, the chancellor's notice of the
disposition of a grievant's case must inform the grievant: (a) of the time
limit within which the grievant may file a petition for review by the board of
trustees, (b) that a written notice of appeal containing a brief statement of
the basis for appeal is required within the ten day period and, (c) that, after
notice of appeal is received in a timely manner, a detailed schedule for the
submission of relevant documents will be established. All such notices of decision are to be
conveyed to the grievant by a method which produces adequate evidence of
delivery.
3. To
ensure full understanding by the faculty, the appropriate informational
document regularly published by the institution (e.g., the faculty handbook),
shall include a statement of the time limits established by the Board of
Governors or board of trustees policy.
D. Standard
of Review. Unless a board of trustees provides by policy for a broader scope of
review, in order to prevail before the board of trustees, the faculty member
must demonstrate that the chancellor’s decision was clearly erroneous, that it
violated applicable federal or state law or university policies or regulations,
or that the process used in deciding the grievance was materially flawed.
VI. Other Matters
A. Effective Date. The requirements of this policy shall be
effective upon the date of its adoption by the Board of Governors.
B. Relation to Federal and State Laws.
The foregoing policy as adopted by the Board of Governors is meant to
supplement, and does not purport to supplant or modify, those statutory
enactments which may govern or related to the subject matter of this policy.
C. Regulations and Guidelines. This
policy shall be implemented and applied in accordance with such regulations and
guidelines as may be adopted from time to time by the president.
Appendix
for Policy 101.3.2
Process
for Faculty Grievances