Applicable to all Section 607(3) grievances filed on or after January 1, 2004
These grievance procedures are established to implement Section 607 of The Code of The University of North Carolina and Board of Governors Policy 101.3.2 “Grievances filed Pursuant to Section 607 of The Code.” To the extent that these procedures are determined to conflict with either of the foregoing policies, the foregoing shall prevail.
I. Informal Resolution
The University recognizes the importance of resolving employment related problems and concerns. Although not required, the University encourages faculty members to seek informal resolution through discussion of any employment-related problems with the relevant administrator, and, if appropriate, with that administrator’s supervisor, prior to initiation of mediation, the first step in the formal grievance process. Where informal resolution is used to resolve the grievance, the resolution of the grievance may be based on any terms that are mutually acceptable to the faculty member and to the appropriate administrator(s). The administrator is responsible for assuring that the resolution is acceptable to the University. In cases where informal resolution is not attempted or does not resolve the problem, the University seeks to ensure that all faculty members shall have access to a formal grievance process that is fair, equitable, and thoughtful.
II. Standard for Determining Contested Grievances
In order to prevail in the formal grievance process, a faculty member must establish that she or he 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.
III. The Purpose of the Grievance Procedure
Section 607 of The Code provides a process for faculty members to seek redress concerning employment related grievances other than those involving decisions about reappointment, promotion, the conferral of tenure, discharge, imposition of serious sanctions, termination, or those within the jurisdiction of another standing committee. The function of the formal grievance procedure is first to attempt to reach a consensual resolution of the grievance. If that fails, the next function of the grievance procedure is to determine whether the faculty member has met the standard for prevailing in the formal grievance process, as set forth in Section II above.
The Grievance Committee established pursuant to Section 607(1) of The Code and the Constitution of the Faculty (see Section VIII.A below) cannot make a recommendation to reverse a contested decision solely on the basis of disagreement with an administrator’s judgment. The grievance process is not intended to second-guess the professional judgment of officers and colleagues responsible for making administrative decisions.
A. Preparing a Petition
Any current 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 procedures explained in this document. The petition is a written document that describes: (1) the nature of the grievance; (2) the party or parties against whom the grievance is directed; (3) the relief sought; (4) the steps, if any, previously taken to reach informal resolution of the grievance; and (5) any relevant additional information necessary to establish the validity of the grievance.
Faculty members may obtain additional guidance on preparing the petition by consulting “Guidelines for Preparing a Grievance Petition,” available on the website of UNC Charlotte’s Office of Legal Affairs. A petition must be filed within twelve months after the faculty member first becomes aware of the facts upon which the petition is based. The Grievance Committee may waive that limit for good cause shown.
B. Filing the Petition
After the petition is prepared, the faculty member must file the petition with the University Mediation Coordinator (hereinafter “UMC”) and with the respondent administrator(s). Hereinafter, the term “respondent” is used to refer to one or more administrators named in the grievance. The Office of the Provost will maintain contact information for the UMC on the Academic Affairs Web Page. The faculty member shall deliver a copy of the petition to the respondent administrator by Formal Notice, as defined in the UNC Charlotte Tenure Policies, Regulations, and Procedures.
V. The University Mediation Coordinator (UMC)
A. Selection of the UMC
The UMC is a senior faculty member with permanent tenure who has appropriate knowledge of the University’s mediation process. The UMC shall be appointed by the Faculty President in accordance with appointment procedures approved by the Faculty. The UMC shall serve a two-year term, which is renewable, for a maximum of six consecutive years. The UMC shall not serve on any departmental or college reappointment, promotion, or tenure committee, or on either the Faculty Hearings or Faculty Grievance Committees concurrent with appointment as the UMC, and shall not be an active participant or advisor on behalf of any party in any grievance during his or her term(s) as UMC.
The initial review of all petitions is conducted by the UMC. If the UMC determines that the petition meets the criteria set forth in Section V.B.1 above, he or she shall notify the involved parties and shall proceed to initiate the required mediation process as described in Section VII of this document.
If the UMC determines that the petition is incomplete in any respect she or he shall require the petitioning faculty member (“petitioner”) to correct the deficiency before the petition is further considered. If the UMC determines that the petition was not timely filed, he or she shall immediately notify the petitioner of that decision.
B. Appeal of the UMC’s Decision
The petitioner may appeal the UMC’s determination that the petition does not meet one or more of the requirements set forth in Section V.B.1 above to the Chair of the Grievance Committee. If the Grievance Committee concurs with the judgment of the UMC that the petition is insufficient or incomplete, it will so notify the petitioner, and no further action will be taken on the grievance until the Grievance Committee determines that the faculty member has submitted a revised petition that corrects any deficiency or insufficiency.
If the Grievance Committee disagrees with the UMC’s determination that the petition was not timely filed, or waives the time limit, it will so notify the petitioner and the UMC. If the Grievance Committee has resolved all matters appealed to it by the petitioner pursuant to this section favorably to the petitioner, it shall instruct the UMC to proceed with the mediation steps described in Section VII below.
Section VII. The Mediation Process
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 the adversarial procedures inherent in a formal Grievance Committee hearing, administrative hearings, or litigation. While there can be no requirement that forces a party to reach a mediated agreement, The University of North Carolina at Charlotte requires that parties participate in a mediation process as the first step in formally resolving a grievance. No blame will attach to either party if mediation does not produce a mediated settlement agreement.
A. Approved Mediators
The UMC, in conjunction with the Office of the President of The University of North Carolina, will maintain a list of approved mediators. An approved mediator is one who has completed the required training program in mediation and who has received additional training about grievances arising from Section 607(3) of The Code. The list of approved mediators can include any properly trained mediator including commercial firms, private individuals, and trained mediators on the faculty or administration of The University of North Carolina at Charlotte, or faculty or administration of another UNC institution.
B. Selection of a Mediator
The UMC will present the parties involved in a grievance with a list of five mediators selected by the UMC from the list of approved mediators. The parties will attempt to agree on a mediator from the list acceptable to both parties. If consensus in not reached, the parties will use an alternating strike system to identify a mediator.
C. Initiation of the Mediation
The UMC will send the mediator so selected a copy of the filed petition. The UMC will also provide assistance to the parties and to the mediator by establishing a date, time, and location for the mediation session(s). Neither party will be accompanied by another person or represented by an attorney at the mediation session(s).
Mediation will continue until such time as the mediator determines either that further efforts to resolve the grievance by mediation would be futile, or that the grievance has in whole or part been resolved to the satisfaction of the parties involved.
If the mediator determines that the mediation process has been unsuccessful, she or he shall inform the UMC of that determination through a simple unelaborated statement: “In this matter, mediation was attempted, but the parties did not reach a settlement.” At that point, the UMC will submit the mediator’s simple unelaborated statement, and the petition, to the Chair of the Grievance Committee, and the grievance will be addressed according to procedures in Section VIII of this document. No record concerning the mediation effort or its outcome will be provided by either the mediator or the UMC except as provided in this paragraph.
If the mediation successfully resolves all issues described in the petition, the mediator will produce a written copy of the agreed upon resolution and will confirm that the terms as written are acceptable to the petitioner and the Chancellor (or the University staff member authorized by the Chancellor to act on his/her behalf for this purpose). If the petitioner and the Chancellor agree on those terms, the mediator shall immediately obtain the signatures of the petitioner and the Chancellor (or designee) on that document, and provide copies of the fully-executed document to the petitioner and the Chancellor (or designee). If the grievance is filed against the Chancellor, the UMC shall forward the agreement to the Chairperson of the University Board of Trustees (or the University staff member authorized by the Board of Trustees to act on its behalf for this purpose).The grievance is considered closed when both signatures have been obtained. If the Chancellor or the Board of Trustees does not approve the agreement, the Chancellor or the Board of Trustees will provide the mediator with a written explanation of the reasons that the agreement could not be approved. The mediator will then seek a new resolution that takes into account the concerns of the Chancellor or the Board of Trustees.
If the mediation successfully resolves one or more, but not all, of the issues related to the grievance, the mediator shall follow the procedure described above for those issues resolved, procuring the required signatures as described above. Upon receiving those signatures, the issues so resolved are considered closed. If Chancellor or the Board of Trustees is unwilling to sign, the Chancellor or Board of Trustees will provide the mediator with a written explanation of the reasons that the agreement could not be approved. The mediator will then seek a new resolution that takes into account the concerns of the Chancellor or the Board of Trustees.
Should the petitioner wish to continue to use the formal grievance process to resolve any issues from the original grievance not resolved at the conclusion of the mediation, she or he will prepare a new petition omitting any issues from the original petition that have previously been resolved through mediation. The petitioner will then file that revised petition with the UMC, delivering copies of the petition to the UMC and to the respondent administrator by Formal Notice, as defined in the UNC Charlotte Tenure Policies, Regulations, and Procedures.
Upon determining that the new petition satisfies the requirements set forth in Section V.B.1 above, the UMC will submit the revised petition to the Chair of the Grievance Committee, together with the simple unelaborated statement: “In this matter, mediation was attempted, but the parties did not reach a settlement.” Regardless of the outcome of the mediation, the results of the mediation process are considered sealed. Neither the mediator nor the UMC may be called as a witness in any subsequent University proceeding concerning the grievance, and nothing said or done by either party during a mediation process may be referred to or used against a party in any subsequent proceeding.
D. Mediation Continuity
Once the UMC begins formal review of a petition pursuant to Section VI above, it shall remain his or her responsibility to continue to oversee the required mediation steps until the grievance has been resolved in whole or in part through mediation, or until the grievance has been forwarded to the Grievance Committee. This responsibility does not cease until either the grievance has been successfully resolved or all mediation procedures available within The University of North Carolina for the resolution of such grievances have been exhausted.
A. Scope and Powers
The Grievance Committee shall be established pursuant to Section 607(1) of The Code and the Constitution of the Faculty and shall be authorized to hear and advise with respect to the adjustment of grievances of members of the faculty. The power of the Grievance Committee shall be solely to hear representations by the persons directly involved in a grievance, and to advise adjustment by the administration when appropriate.
Advice for adjustment in favor of an aggrieved faculty member will be given to the Chancellor only in accordance with Section IX.E below. If the grievance is against the Chancellor, the Grievance Committee will give its advice to the Board of Trustees.
The Grievance Committee is authorized to make such rules of procedure as it considers necessary for the conduct of its tasks, provided such rules are consistent with the requirements of these Procedures and other applicable policies. Such rules shall be made available to the petitioner and the respondent(s) to assist their understanding of the procedures to be followed in conducting a hearing.
B. Relationship of the Mediation Process to the Grievance Committee
Participating in the formal mediation process is a prerequisite to consideration of a grievance by the Grievance Committee. If mediation has not resulted in resolution of all issues in the grievance, the UMC will send the petition to the Chair of the Grievance Committee, certifying that the mediation requirement has been satisfied. Receipt of a petition from the UMC does not obligate the Grievance Committee to presume that the petition is complete, or that the petition describes an actionable grievance under Section 607(3) of The Code.
The Grievance Committee shall be elected by the faculty. It shall consist of nine faculty members, including faculty members elected from each professorial rank. No department chair, department head, senior administrative officer or mediator currently eligible to mediate such grievances at UNC Charlotte shall serve on the Grievance Committee. The Grievance Committee shall elect its chair each year.
D. Terms of Office
The Grievance Committee members shall serve staggered four-year terms and may serve no more than two consecutive terms. The term of office shall begin at the conclusion of the final Faculty Council meeting of the academic year. Grievance Committee members may be recalled by a two-thirds vote of the faculty present at a general faculty meeting.
The faculty shall elect the Grievance Committee members by majority vote before the last day of classes of each spring semester, or as appropriate to fill a vacancy.
F. Conflicts of Interest, Incapacity, or Temporary Vacancy
A Grievance Committee member who holds an appointment in the department of a person directly involved in a grievance, who will testify as a witness at the hearing, or who has any other conflict of interest bias, or appearance of bias, or who appears to be unable for any reason to assess the evidence fairly, impartially, and without prejudice, is disqualified and shall not participate as a Grievance Committee member in the proceedings described in this section. If such Committee member does not recuse himself or herself from the proceedings, the faculty member or the person against whom the grievance is directed may request that the chair of the Grievance Committee consider excluding from the proceedings any member of the Grievance Committee who they believe has a conflict of interest or bias. If the disqualified member is the Grievance Committee chair, the remaining Grievance Committee members shall elect one of the members to fill the vacancy while these conditions exist. The Grievance Committee shall also select one of its members with permanent tenure to replace the chair if he or she is incapacitated or absent.
If the Grievance Committee should have fewer than four qualified members because of conflicts of interest, bias, incapacity, or temporary vacancy, elections shall be held promptly in accordance with Sections VIII.C and VIII.E above to staff the Grievance Committee while these conditions exist. If the need arises during the summer terms, the President of the Faculty, in consultation with the Faculty Executive Committee, may make temporary appointments to fill vacancies on the Grievance Committee. If a permanent vacancy occurs, elections shall also be held promptly in accordance with Sections VIII.C and VIII.E to fill the vacancy for the unexpired term.
The Grievance Committee and all individuals involved in the resolution of a grievance shall treat all documents submitted or created in connection with the process of review of a grievance, and the information contained therein, as confidential personnel information. Such confidential records, information, and verbal information derived from any discussions that are part of the formal review process shall not be disclosed to or discussed with any person except those participating in the review of the grievance as provided in these policies, those persons required or permitted to be consulted in accord with decisions of the Grievance Committee, or those persons permitted access to such documents by law. Violation of this section may expose a faculty member, including an administrator, to the imposition of serious sanctions, but only in accordance with the provisions of Section VI of The Code.
Section IX. Administrative Decision
A. Review by the Grievance Committee.
If the grievance is not fully resolved through the mediation process, then the issues not resolved will be reviewed by the Grievance Committee.
B. Standard for Determining Contested Grievances.
The standard of review for determining contested grievances is set forth in Section II above.
C. Decision Whether to Hold a Hearing.
If mediation fails to produce a voluntary resolution, the 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 a hearing on the petition. The Grievance Committee shall determine whether the facts alleged justify a hearing. A petition properly is dismissed if the petitioner fails to allege an injury that would entitle the petitioner to relief in accordance with the standard set out in Section II above. Dismissal is also required if the petition addresses a problem that is not within the Grievance Committee's jurisdiction. If the Grievance Committee determines that a hearing is justified and that the issues presented are within the purview of the Grievance Committee’s responsibility, it shall schedule an evidentiary hearing.
D. Conduct of Hearing.
While the Grievance Committee is authorized to make its own rules for the conduct of hearings, the following standards shall be observed with respect to all such hearings. The hearing shall be conducted informally and in private with only the eligible members of the Grievance Committee, the petitioner and respondent, and such witnesses as may be called in attendance, except that each person directly involved in the grievance may be accompanied by one person of his or her choosing to serve as an advisor. The petitioner may elect to bring an attorney to serve as such an advisor. If the petitioner does elect to have an attorney as the advisor, the respondent administrator may elect to have an attorney provided by the University as his or her advisor. Such advisor shall not present evidence or make argument.
At the hearing, the petitioner is to present evidence in support of the petitioner’s contentions, and the respondent is to be given an opportunity to respond.
A quorum for the hearing is a simple majority of eligible members of the Grievance Committee. The Chair of the hearing has responsibility for keeping a complete transcript of the testimony and preserving all documents that are accepted by the Grievance Committee at the hearing as evidence. Only the evidence so compiled is to form the basis for Grievance Committee conclusions about the case and any resulting advice to the responsible administrator and the Chancellor. All witnesses may be questioned by the Grievance Committee members and by the persons directly involved in the grievance. Except as herein provided, the conduct of the hearing is under the control of the Chair of the hearing.
The burden is on the petitioner to establish by a preponderance of the evidence that the Petitioner has experienced an injury that would entitle the petitioner to relief in accordance with the standard set out in Section II above.
If, after hearing the matter, the Grievance Committee determines by a preponderance of evidence that an injury occurred and recommends that an adjustment in favor of the petitioner is appropriate, the Grievance Committee shall so advise the petitioner and the dean, department head, or other respondent administrator in writing.
The respondent shall notify the Grievance Committee and the petitioner in writing whether he or she will make the recommended adjustment or a different adjustment satisfactory to the petitioner. If the respondent does not provide any such notice to the Grievance Committee within twenty-one (21) days after the Grievance Committee’s written recommendation, or if the respondent administrator does not make the recommended adjustment, or a different adjustment satisfactory to the petitioner, within a reasonable period of time, the Grievance Committee shall advise the Chancellor of its recommendation that an adjustment is appropriate.
F. Procedure if No Injury Found.
If, after reviewing the petition or hearing the matter, the Grievance Committee recommends that no adjustment in favor of the petitioner is appropriate, it shall so advise the petitioner, the respondent, and the Chancellor.
G. Chancellor’s Decision.
If the Grievance Committee advises the Chancellor that an adjustment is appropriate but that the respondent has not made the adjustment or the respondent has indicated that he or she will not make the adjustment; or if the Grievance Committee advises the Chancellor that it does not recommend an adjustment in favor of the petitioner, the Chancellor shall make a final decision in the matter.
The Chancellor shall base his or her decision on the recommendation of the Grievance Committee and the record from the Grievance Committee hearing. The Chancellor may, in his or her discretion, consult with the Grievance Committee before making a decision. The decision of the Chancellor is the final administrative decision on the petition.
H. Notice of the Chancellor’s Decision.
The Chancellor shall notify the petitioner and the respondent 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 Section XI.C.1 below.
I. Effect of Termination of Employment.
The faculty grievance process is a process available to current members of the faculty. A petitioner whose University employment ends for any reason during the pendency of a grievance proceeding is not entitled to continue to pursue the grievance. If the employment of a petitioner ends for any reason after the grievance is filed, the Chancellor may, however, in his or her discretion, determine that it is in the best interest of the institution to continue the grievance process.
X. Grievances Against the Chancellor
If the Chancellor is the party against whom the petitioner’s grievance is directed under Section IV above, then references to the Chancellor in Sections IX. E, F, G, H, and I above shall be construed as references to the Board of Trustees.
A. Decisions That May Be Appealed.
B. Delegation to the Executive and Audit Committee.
The Board of Trustees’ Executive and Audit Committee is authorized to make procedural decisions and to make final decisions on behalf of the Board concerning dispositions or appeals of faculty grievances pursuant to these Procedures.
D. Standard of Review by the Executive and Audit Committee.
To prevail before the Executive and Audit Committee on behalf of the Board of Trustees in an appeal from a decision of the Chancellor, the petitioner 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.
E. Notice of Decision of the Executive and Audit Committee.
The decision of the Executive and Audit Committee on behalf of the Board of Trustees shall be written and shall be sent to the petitioner and to the Chancellor.
F. Finality of the Executive and Audit Committee’s Decision.
The decision of the Executive and Audit Committee is the final decision on the petition by the Board of Trustees. No further appeal is permitted within the University of North Carolina.