1300.00 Conciliation and Grievance

 
  • Table of Contents
  • 1302.00Definitions
  • 1303.00 Confidentiality
  • 1304.00 Extension of Deadlines
  • 1310.00Applicability
  • 1311.00 Applicability to Academic Faculty
  • 1312.00 Deadlines for Filing
  • 1313.00 Types of Complaints
  • 1314.00 Types of Complaints Excluded
  • 1320.00Conciliation Procedures
  • 1321.00 Initiation of Conciliation Efforts
  • 1322.00 Procedures of the Conciliation Committee
  • 1323.00 Right to Appeal
  • 1330.00Grievance Procedures
  • 1331.00 Initiation of Grievance Procedures
  • 1332.00 Acceptance or Rejection of Request for Grievance earing
  • 1333.00 Submission of Statement of Grievance
  • 1334.00 Respondent's Reply to Statement of Grievance
  • 1335.00 Pre-Hearing Conference
  • 1336.00 Grievance Hearing Board (GHB)
  • 1337.00 The Grievance Hearing
  • 1340.00Responsibilities of the President
  • 1341.00 Grievant's Right to Appeal
  • 1342.00 Disposition of the Record
 

1302.00 Definitions

"Complainant" means the individual who brings a complaint under this section.

"Grievance Hearing Board" (Board) is the administrative body convened for the purpose of affording faculty members the opportunity to present their grievable complaints to a duly constituted board of their colleagues.

"Grievant" means the individual who brings a formal grievance procedure under this section.

"Respondent(s)" means the individual or individuals against whom a complaint or grievance is brought.


1303.00 Confidentiality

Confidentiality will be maintained by all parties to the conciliation or grievance process. No public announcements should be made by any party unless there has been a waiver of the privacy rights of all parties involved.


1304.00 Extension of Deadlines

The deadlines referred to in this section may be extended, for good cause, by the Chair of the appropriate committee or the Chair of Faculty Senate, upon written notice to all parties.


1310.00 Applicability

Individual faculty members with concerns about their employment are encouraged to resolve concerns and disputes with those directly involved. If resolution is not possible, University procedures on conciliation and grievance may apply.

1311.00 Applicability to Academic Faculty

Conciliation and/or grievance procedures apply to academic (tenurable) faculty only.

The grievance rights of employees on nontenurable instructional appointments, research professional appointments, and professional appointments are contained in the Personnel Policy and Procedures Manual.

Conciliation and/or grievance procedures apply to faculty members on tenured and tenurable appointments who also have professional assignments. Conciliation and/or grievance procedures apply to the resolution of complaints concerning such an individual's faculty role. Resolution of complaints regarding his or her administrative responsibilities should be addressed through the process described in the Personnel Policy and Procedures Manual.

1312.00 Deadlines for Filing

Complaints must be filed with the Chair of the Grievance Committee or the Chair of the Conciliation Committee within thirty (30) calendar days of the incident giving rise to the complaint.

Complaints involving retention, tenure, and/or promotion cannot be grieved until the Provost and Vice President for Academic Affairs has communicated his or her recommendation to the faculty member. If the recommendation of the Provost and Vice President for Academic Affairs is positive, a negative action of a prior review cannot be grieved; however, the faculty member may place a letter of rebuttal or a statement of objections to the action in his or her permanent file in the department. If the recommendation of the Provost and Vice President for Academic Affairs is negative, the faculty member may cite a negative action of a prior review in the complaint. The faculty member has thirty (30) days from the date of notification by the Provost and Vice President for Academic Affairs to file the complaint with the Chair of the appropriate committee (Conciliation or Grievance). If notification by the Provost and Vice President for Academic Affairs is made less than thirty (30) days before the end of a faculty member's contract period, the faculty member's right to file a complaint will be extended to October 1 of the following contract period.

After a complaint has been filed, the deadline for the committee to initiate its conciliation or grievance procedures may be extended for one hundred twenty (120) calendar days, for good cause, by the Chair of the committee. The Chair will notify all parties of the extension and the reasons for it.

Revised, July 1999 and July 1, 2003.

1313.00 Types of Complaints

Conciliation and/or grievance procedures apply to the following:

A. Complaints arising from the application of established rules, regulations, policies or procedures of Montana State University-Bozeman and the Montana University System.

Complaints arising from a faculty member's disagreement with such rules, regulations, policies or procedures are not appropriate grounds for conciliation or grievance.

B. Complaints alleging that a misapplication of policy, procedure, standard or criterion resulted in a negative substantive retention, tenure and/or promotion review.

A faculty member may attempt conciliation, or proceed directly to filing a grievance upon receiving an unfavorable decision from the Provost and Vice President for Academic Affairs in regard to retention, tenure and promotion, or termination.

C. Complaints concerning alleged violations of the procedural or contractual rights of faculty.
D. Complaints of discrimination.

The HR/AA officer must participate in cases involving a charge of discrimination. The Chair of the Conciliation Committee or Grievance Committee must inform and consult with the HR/AA officer. Either party in the conciliation process, or the Chair of the Conciliation or Grievance Committee may ask the HR/AA officer to investigate the discrimination charge.
Revised, July 1999.

1314.00 Types of Complaints Excluded

Conciliation and/or grievance procedures do not apply to the following:

A. Complaints regarding Integrity in Research/Creativity.

Cases arising under 430.00. (Integrity in Research/Creative Activity) are governed by the hearing procedure set forth in that section.

B. Complaints regarding sexual harassment.

Sexual harassment complaints are governed by the procedures set forth in the Non-discrimination/Affirmative Action Policy.

Grievance procedures do not apply to complaints about academic assignments, annual evaluations, annual reviews, and performance ratings. Such complaints shall be limited to conciliation. If such concerns cannot be satisfactorily resolved with the faculty member's department head, they may be directed to the dean of the college and/or the Provost and Vice President for Academic Affairs before seeking conciliation.

1320.00 Conciliation Procedures

Conciliation is the process of complaint resolution which involves the faculty member, the respondent(s), and the Conciliation Committee. The goal of the Conciliation Committee is to seek an equitable and agreeable solution for the parties concerned. Conciliation must be attempted prior to filing a grievance except in cases involving a faculty member's retention, tenure and promotion, or termination.

1321.00 Initiation of Conciliation Efforts

A faculty member initiates conciliation by contacting the Chair of the Conciliation Committee and requesting conciliation. The Chair will call a meeting of a Conciliation Committee for a preliminary consideration of the case.

1322.00 Procedures of the Conciliation Committee

1322.01 Acceptance or Rejection of the Case

The Committee will review the case to determine whether the matter is (1) applicable (see 1313.00 and 1314.00) and (2) one that can be resolved through conciliation. The Chair of the Committee must notify the complainant within seven (7) working days of the Committee's decision to accept or reject the case, and the reasons for the decision. The complainant may appeal the Committee's rejection decision to the Chair of Faculty Senate, whose determination is final.

1322.02 Appointment of the Conciliator

Following acceptance of a case, the Committee will appoint one or more of its members to act as conciliator(s).

1322.03 Complaint Clarification

The conciliator(s) shall meet with the complainant to identify the issues. The complainant is not required to present his or her complaint in writing, but there must be a clear identification of the specific problem before conciliation is attempted. The conciliator(s) will consult appropriate resource people, such as the complainant's department head, dean, other members of the complainant's department, and the HR/AA officer, as needed.

1322.04 Attempt to Conciliate

The conciliator(s) must attempt conciliation within fifteen (15) working days from the date of appointment by the Committee. The entire conciliation effort should be carried through to its completion by the same conciliator(s).

1322.05 Conciliator's Report

The conciliator(s) will provide an oral report to the Chair of the Conciliation Committee as to the success or failure of the attempted conciliation. This action concludes the conciliation process.

The Conciliation Committee is not a fact-finding body and no record will be kept, or report prepared, on any conciliation effort. Records of number of filings and statistical summaries of the success or failure of the conciliation attempts may be reported to Faculty Senate and the President.

1323.00 Right to Appeal

If conciliation cannot provide a resolution acceptable to the complainant, the complainant may request a grievance hearing. Such a request must be filed with the Chair of the Grievance Committee within thirty (30) calendar days of the conclusion of the conciliation process.


1330.00 Grievance Procedures

A formal grievance hearing conducted by a specially constituted "Grievance Hearing Board" (Board) is the means by which a faculty member's formal complaint is heard by the University.

The Board can judge whether rules, regulations, policies and/or procedures have been violated or misapplied (during, for example, a promotion and tenure review), but cannot reverse the resulting decision. The Board may recommend to the President that the process be corrected and reinitiated from the point of infraction.

Conciliation must be attempted through the conciliation process in effect at the time the complaint is filed prior to the filing of a grievance except in cases involving a faculty member's retention, tenure and promotion, or termination. (Conciliation may be attempted in these cases as well).

Revised, July 1999; July 1, 1005.

1331.00 Initiation of Grievance Procedures

The grievant initiates the process by contacting the Chair of the Grievance Committee to present a brief written statement describing the grievable incident or decision and identifying the specific rule, regulation, standard, criterion, policy and/or procedure which has been deemed by the grievant to have been misapplied.

Once a grievance procedure has been initiated, no participant in the process may discuss the merits of the case with any party to the process, including the President. All written communications to and from the Chair of the Grievance Committee shall be copied and sent to all parties.

Revised, July 1999.

1332.00 Acceptance or Rejection of Request for Grievance Hearing

The Chair of the Grievance Committee shall determine whether or not the grievable incident is within the purview of the grievance process (see 1313.00 and 1314.00) and accept or reject the request for a grievance hearing. The grievant shall be notified of the Chair's decision in writing.

If the request is rejected, the grievance process is terminated. The faculty member may appeal the decision to the Chair of Faculty Senate, whose determination will be final.

If the request is accepted, the Chair will inform the grievant to submit a "Statement of Grievance."

1333.00 Submission of Statement of Grievance

The grievant shall file a written statement of grievance with the Chair of the Grievance Committee. The Chair shall distribute the statement to all respondents named therein. The statement shall contain, at least, the following information:

A. the date(s) of the grievable incident(s),

 
B. the name(s) of the respondent(s),
C. a complete statement describing the grievable incident including all facts upon which the complaint is based,
D. the specific rule(s), regulation(s), criterion (a), standard(s), policy(ies), and/or procedure(s), including the specific section of this Handbook, which are alleged to have been violated, and
E. the signature of the grievant.

Revised, July 1999.

1334.00 Respondent's Reply to Statement of Grievance

Individuals named as respondents shall have five (5) working days from receipt of the Statement of Grievance to submit a written response to the Chair of the Grievance Committee.

1335.00 Pre-Hearing Conference

The Chair of the Grievance Committee or designee will schedule a pre-hearing conference to be conducted within fifteen (15) working days of receipt of the Statement of Grievance. These proceedings may be discontinued at any point by mutual written consent of both the grievant and the respondent(s).

1335.01 Purpose of Pre-Hearing Conference

The purposes of the pre-hearing conference are to:

A. Narrow and define the issue(s) to be considered at the hearing.

B. Identify and list any/all witnesses for the hearing.

No witnesses may be called at the grievance hearing who have not been identified at the pre-hearing conference. Limitations on the number of witnesses for the hearing may be established for the parties by the Chair during the pre-hearing conference.

C. Identify and list any/all documents to be submitted at the hearing.

No documents may be submitted at the grievance hearing which were not identified at and exchanged as a result of the pre-hearing conference.

D. Provide for a pre-hearing exchange (between all parties) of any documents or other information to be submitted at the hearing.

E. Set a time and place for the formal hearing. The hearing shall be held within twenty (20) working days of the pre-hearing conference.

1335.02 Responsibilities of the Chair, Grievant and Respondents

A. The grievant must submit the Statement of Grievance to initiate the process, and must fully participate in the pre-conference hearing, or face dismissal of their case.

B. Respondents must reply in writing to the Statement of Grievance within five (5) working days and participate fully in the pre-conference hearing.

C. The Chair of the Grievance Committee shall receive the Statement of Grievance, distribute it to all respondents, and schedule and conduct the pre-hearing conference. If the grievant fails to cooperate with the process and/or participate in the pre-hearing conference, the Chair may dismiss the case. If the respondent(s) fail to cooperate with the process and/or participate in the pre-hearing conference, the Chair may order the Grievance Hearing Board to hear the case and reach a decision based on the available evidence.

1335.03 Advisors at the Pre-Hearing Conference

The grievant and respondent(s) may have the assistance of a non-attorney advisor at the pre-hearing conference. However, the parties are responsible for representing themselves and, therefore, advisors are permitted to participate directly (i.e., address the Chair or other parties) in the pre-hearing conference, only at the discretion of the Chair.

1336.00 Grievance Hearing Board

The Grievance Hearing Board (Board) is the administrative body convened for the purpose of affording faculty members the opportunity to present their grievable complaints to a duly constituted board of their colleagues. The Board is responsible for rendering its judgement on the merits of the grievance in a fair, unbiased and impartial manner.

The Board is not a review committee for retention, promotion and tenure decisions, and cannot reverse a decision.  The Board can, after a negative decision in this area, hear the case and make a ruling as to whether or not the decision was based on a reasonable and correct application of the applicable criteria and standards.

The Board shall be composed of three (3) members of the Grievance Committee and shall be separately constituted for each grievance hearing. The Chair of the Grievance Committee shall be responsible for selecting the membership of each Board.

Revised, July 1999.

1336.01 Selection of the Grievance Hearing Board

The Chair of the Grievance Committee will select three (3) members of the Grievance Committee to serve as the Grievance Hearing Board. Each member of the Board shall be impartial and without personal bias in favor of or against the grievant. No Committee member shall serve on the Board if he/she has a conflict of interest.

A. Committee members from the grievant's College may not serve as voting members on the Board, but the Chair may appoint one such member to serve as a non-voting resource to the Board.

 
B. Every effort shall be made to provide female and/or minority membership on the Board.
C. The Chair of the Grievance Committee shall submit the names of the Board members to all parties in writing.

1336.02 Challenge to the Grievance Hearing Board Membership for Cause

Either the grievant or respondent(s) may challenge the members of the Board for cause by submitting a written statement of cause to the Chair of Faculty Senate. The Chair of Faculty Senate may require the Chair of the Grievance Committee to replace a challenged member, or may decide to retain a challenged member. The decision of the Chair of Faculty Senate as to the membership of the Board shall be final. Any replacement members of the Board are again subject to challenge by either grievant or respondent(s).

1336.03 Responsibilities of the Grievance Hearing Board

The Grievance Hearing Board shall determine:

A. whether there has been a violation of the faculty member's rights under the Faculty Handbook and/or the Montana University System Policies and Procedures Manual, and

B. whether the violation substantively affected the faculty member's ability to receive fair consideration of his or her claim.

1337.00 The Grievance Hearing

The Chair of the Grievance Committee or designee shall preside at the grievance hearing and will make all decisions regarding evidentiary and procedural questions.

The grievance hearing is not a judicial process; therefore the proceedings shall not be governed by the formal rules of evidence or the rules of civil procedure used in civil court cases.

1337.01 Conduct of the Grievance Hearing

The hearing shall be conducted according to the following procedures and any other procedures described in any standard operating procedures developed in accordance with 1303.00.

A. The grievant and respondent(s) may have the assistance of a non-attorney advisor at the hearing. The grieving parties are responsible for representing themselves and, therefore, advisors are permitted to participate directly (i.e., address the Chair, Board, or other parties) in the hearing only at the discretion of the Chair.

B. Each party shall have the opportunity to make opening statements.

C. The grievant shall present his or her case first.

D. All parties shall be given a reasonable opportunity to present their cases, including presenting testimony of witnesses and documentary evidence. However, the Chair (or designee) may preclude the presentation of duplicative, irrelevant or unnecessary evidence. (The Chair may have established limitations on the numbers of witnesses for the parties at the pre-hearing conference.)

E. Each party shall have the opportunity to cross-examine the other party's witnesses.

F. Every reasonable effort will be made to elicit and consider the most reliable evidence. Hearsay evidence is not admissible. Sworn statements may be admitted in lieu of testimony only if the witness is not available and the statement is necessary to a resolution of the matter. The decision of the Chair or designee on questions of admissibility of evidence shall be final.

G. The Chair or designee may grant adjournments to enable either party to investigate evidence as to which a valid claim of surprise is made.

H. The parties may make closing arguments.

I. The Chair or designee shall cause an audio recording of the proceedings to be made. That recording and all written or other physical evidence shall be retained for the record by the Chair at a location of his or her choice pending the Report of the Grievance Hearing Board.

J. Any party may request that a stenographic record of the hearing and/or transcript of the audiotape be made, providing the requesting party pays the associated costs.

K. Once a grievance hearing procedure has been initiated, no participant in the process may discuss the merits of the case with any party to the process. All written communications to and from the Chair of the Grievance Committee shall be copied and sent to all parties.

1337.02 Record of the Grievance Hearing

The record of the grievance hearing shall consist of the tape recording of the hearing, all evidence or exhibits presented at the hearing, all communications to or from the Chair in reference to the hearing, and any other graphic, written, or tape recorded information relevant to the Grievance Hearing and its procedures.

1337.03 Report of the Grievance Hearing Board

The Report of the Grievance Hearing Board shall include the findings of fact on each issue presented and make recommendations regarding appropriate action(s) to be taken. The Chair of the Grievance Committee shall forward the Report and the record of the hearing to the President within five (5) working days of the receipt of the report and shall send copies of the Report to all parties.


1340.00 Responsibilities of the President

Upon receipt of the Report of the Grievance Hearing Board, the President shall have twenty (20) working days to issue the decision of the University. The President shall inform the Chair of the Grievance Committee and all parties to the grievance hearing procedure, in writing, of the decision.

1341.00 Grievant's Right to Appeal

[MUS Policies and Procedures Manual, Section 203.5.2]

The President's decision may be appealed to the Commissioner of Higher Education and to the Board of Regents in accordance with its appeals policy.

1342.00 Disposition of the Record

Following the President's decision, the record of the proceedings will be placed in a locked file in the Faculty Senate office, to be held for a period of three years. The Grievance Hearing Board assembled for the case shall be dismissed and this action shall terminate the grievance hearing process.


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