Staff Employee Mediation, Grievance, and UPPS No. 04.04.41
Complaint Policy Issue
No. 12
Effective Date: 01/15/2008
Review:
April 1 E2Y
01. POLICY
STATEMENTS
01.01 This UPPS
provides policies and procedures for staff employee mediation, grievances and
complaints except for the following:
a.
Procedures for
complaints or allegations of sexual harassment are contained in UPPS
No.04.04.42, Prohibition of Sexual Harassment. Procedures for complaints or
allegations of racial harassment and illegal discrimination on the basis of
race, color, national origin, age, religion, sex, disability, or sexual
orientation (and any resulting disciplinary action) are included in UPPS No.
04.04.46, Prohibition of Discrimination or Harassment Based on Race, Color,
National Origin, Age, Sex, Religion, Disability, or Sexual Orientation.
The
mediation procedures of this UPPS do not apply to complaints or allegations of
subject matter covered by UPPS’s 04.04.42
and 04.04.46.
The provisions and remedies in these UPPS’s apply in totality to these types of
complaints or allegations.
b. Grievances of involuntary terminations of employment
by administrative officers are covered by Section 3.2 of Chapter V of the Rules
and Regulations of the Board of Regents, Texas State University System.
02. DEFINITIONS
02.01 Mediation: Mediation is a form of alternative dispute
resolution outside of the University’s formal grievance and complaint processes
in which an impartial person, a mediator, facilitates communication between
disputing parties to promote reconciliation, settlement, and understanding.
02.02 Grievance:
A grievance is an appeal of the following disciplinary actions: suspensions
without pay, reductions in pay, demotions, or discharges.
NOTE:
If disciplinary action is imposed on an employee for illegal discrimination or
harassment on the basis of race, color, national origin, age, sex, religion,
disability, or sexual orientation, the employee may appeal only the severity of
the disciplinary action.
02.03 Complaint:
A complaint is any disagreement affecting an employee's wages, hours of work,
or conditions of work other than a grievance.
Appeals of oral and written reprimands and non-disciplinary terminations
are also considered complaints.
02.04 Staff Employee: A staff employee is any employee other than a student employee or a
faculty employee as defined in the Rules and Regulations of the Board of
Regents, Texas State University System.
02.05 Director of Human Resources: The term "Director of Human Resources"
means either the director or a representative appointed by the director.
02.06 Director or Chair: For the purposes of this policy, this term describes the director or
chair with line authority for the employee involved in the action or condition
against which the grievance or complaint is filed. Director indicates staff
position identified as a “Director” in the University Pay Plan. Chair indicates
a faculty position with line responsibility over faculty and staff and is
identified as “Chair” in the University Pay Plan.
02.07 Dean: For
the purposes of this policy, this term describes the position with line
authority over a college and its academic chairs, faculty, and other staff and
is identified as “Dean” in the University Pay Plan.
02.08 Vice President: For the purposes of this policy, this term describes the vice
president with line authority for the employee involved in the action or
condition against which the grievance or complaint is filed and is identified
as “Vice
02.09 Employment At-Will: Staff employees serve without fixed terms and at the pleasure of the
03.
MEDIATION
PROCEDURES
03.01 The Mediation Process – The mediation process will
follow the procedures contained in the Mediation Guidelines for Staff which can
be found on the Human Resources website. Mediation may be used by both regular
and non-regular staff employees.
03.02 Participation is Voluntary – Participation in
mediation is voluntary and both parties must consent to participation before
the process may be used. The University
encourages, but cannot compel, management and employees to avail themselves of
mediation when appropriate.
03.03 Confidentiality - Information pertaining to mediation
will be retained by Human Resources and may be shared with supervisory
officials who manage the performance of the employees involved as well as any
other university official deemed appropriate by Human Resources.
03.04
The Mediator –
When mediation is requested and agreed to by the mediating parties, Human
Resources will secure certain administrative record data and the services of a
trained mediator to facilitate the mediation of the conflict or dispute at no
expense to the mediating parties.
03.05
Time Limits
a.
Requests for mediation are subject to
the same ten working day time limit for complaints and grievances as specified
in Section 04.05
b.
If
a staff member requests mediation through Human Resources within the required
ten working day limit, or if a staff member files a complaint or grievance
within the required ten working day time limit then opts to file a mediation
request before the ten working day time limit expires, such action will suspend
processing of the complaint or grievance.
The staff member
will have five working days after receipt of the mediator notification to all
parties in the mediation and Human Resources as provided in Section 03.05 that
mediation has failed.
03.06 Failed
Mediation – Mediation is considered to have failed when any party in the
mediation declines further participation in the process or the mediator
notifies all parties in the mediation and Human Resources in writing that an
acceptable mediation agreement between the mediating parties cannot be reached.
04. GRIEVANCE
AND COMPLAINT PROCEDURES
04.01 Regular
employees may use the grievance or complaint procedures as appropriate within
time limits as noted below. Non-regular employees are not eligible to use the
grievance procedure and must use mediation or complaint procedures to resolve
problems relating to wages, hours of work, and conditions of work. (See UPPS No.
04.04.03, "Staff Employment", for a definition of
"non-regular" employees.) Non-disciplinary terminations of
non-student, non-regular employees are not grievable through this UPPS.
04.02 Informal
Resolution. Staff employees should discuss work-related problems with their
supervisors. Employees and supervisors
should cooperate to resolve problems efficiently and informally. An employee
may use these grievance and complaint procedures only if he or she has first
discussed the problem with the supervisor and they are unable to resolve the
problem informally. The employee should begin informal resolution as soon as
possible, and supervisors need to respond promptly to the employee's request
for resolution. Attempts at informal resolution DO NOT change the ten working
day time limit for filing grievances and complaints.
04.03 Complaint Procedures Distinguished. Employees should use the same procedures for
resolving complaints as for resolving grievances except that a Grievance Review
Board will hear only grievances and not complaints.
04.04 Due to
the organizational structure in areas where an associate or assistant vice
president functions as the head of the department (examples: Library,
Facilities Department and the Treasurer’s office), the appropriate vice
president may designate these officials as the first level of review of a
personnel action that results in an employee filing a grievance or complaint.
In
addition, when a staff employee brings a complaint or grievance against an
academic chair, the dean over the college will serve as the first level of review
and will complete the Step Two form on behalf of the Chair’s department. All
other staff complaints and grievances within the Office of the Provost/VPAA
will be initially addressed by the appropriate assistant or associate vice president
in the division.
04.05 Step
One: Within ten working days after learning of the action or condition
giving rise to the grievance or complaint, the employee must present the
incident's details on a Step One Grievance/Complaint Form to the Director of
Human Resources. The Director will not attempt to resolve the problem, but will
meet with the employee to review the information presented and classify the
problem as a grievance or complaint. The Director will also assist the employee
in clarifying the issues, answer the employee's policy and procedure questions,
and explain the process. The Director will complete and sign the Step One Form
and return it to the employee.
04.06 Step
Two: Within two working days after receiving the signed form from the
Director of Human Resources, the employee must present the Step One and Step
Two Forms and attachments to the director or chair and send copies to the
Director of Human Resources. The director or chair must meet promptly with the
employee to discuss the issues and attempt to resolve the problem. The director
or chair should also consult with and advise his or her supervisor. (See Section
04.04 above, concerning academic chairs)
a. As part of the process, the director or chair should
investigate the issues thoroughly, conducting meetings and interviews with
other employees as necessary. (See the Human Resources website for checklist
for investigating a grievance or complaint).
b. The
director or chair must inform the employee of his or her decision in writing on
the Step Two Form within five working days of its receipt. The director or
chair must send a copy of his or her decision to the Director of Human
Resources.
04.07 Step
Three - Complaints
a. If the
decision of the director or chair is unacceptable to the employee, the employee
must, within five working days after receipt of the decision on the Step Two
Form:
1) present a
Step Three Complaint Form to the appropriate vice president, attaching copies of
the completed Step One Form and Step Two Form; and
2) present
copies of the Step Three Complaint Form and attachments to the director or
chair and to the Director of Human Resources.
b. The vice president will consider the complaint and
investigate in a manner deemed appropriate (See the Human Resources website for
checklist for investigating a grievance or complaint).
c. The vice president must inform the employee of his or
her decision in writing on the Step Three Form within five working days of its
receipt. The vice president will send copies of his or her decision to the
director or chair and to the Director of Human Resources. The decision of the
vice president is final.
04.08 Step Three – Grievances (Non-Termination)
The
Step Three process, detailed below, is to be used to address an appeal of the
following disciplinary actions: suspensions without pay, reductions in pay, and
demotions. Appeals of involuntary terminations are addressed in Section 04.09
(Grievances-Involuntary Termination, below).
a. If the
decision of the director or chair is unacceptable to the employee, the employee
must, within five working days after receipt of the decision on the Step Two
Form:
1) present a
Step Three Grievance Form to the Director of Human Resources to send to the
appropriate vice president via a Grievance Review Board, attaching copies of
the completed Step One Form and Step Two Form; and
2) present
copies of the Step Three Grievance Form and attachments to the director or
chair.
b. The
Director of Human Resources will inform the vice president of the general
nature of the grievance.
c. The
Director of Human Resources will obtain the names of the Grievance Review Board
members appointed by the
d. The
Director of Human Resources will forward copies of the Step Three Grievance
Form and attachments to each member of the Grievance Review Board within five
days of being notified of the names of the Board members.
e. The
Grievance Review Board will meet with the grievant within ten working days
after receiving the Step Three Grievance Form and attachments. The Board will
consider the grievance, investigate in a manner deemed appropriate, and present
its report to the vice president within five working days after its initial meeting
with the grievant. Refer to the Human Resources website for instructions on proper
format. The Board will present copies of its report to the grievant, the grievant’s
director or chair, and the Director of Human Resources.
f. The vice
president will consider the grievance and the Board’s recommendations, and may
meet with the employee, management representatives, and other appropriate
persons.
g. The vice president must inform the employee of his or
her decision on the Step Three Grievance Form within five working days after
receiving the Grievance Review Board’s recommendations. The vice president must
send copies of the form to the grievant’s director or chair, members of the
Grievance Review Board and the Director of Human Resources. The vice
president's decision is final.
04.09Grievances (Involuntary Termination)
a. Within ten working days after receiving notice of the
involuntary termination, the employee must present a Grievance Form with
attachments to the Director of Human Resources to send to the appropriate vice
president via a Grievance Review Board.
b. The
Director of Human Resources will inform the vice president of the general
nature of the grievance.
c. The
Director of Human Resources will obtain the names of the Grievance Review Board
members appointed by the
d. The Director of Human Resources will forward
copies of the Step Three Grievance Form and attachments to each member of the
Grievance Review Board within five days of being notified of the names of the
Board members.
e. The
Grievance Review Board will meet with the grievant within ten working days
after receiving the Step Three Grievance Form and attachments. The Board will
consider the grievance, investigate in a manner deemed appropriate, and present
its report to the vice president within five working days after its initial
meeting with the grievant. Refer to the Human Resources website for
instructions on the proper format. The Board will present copies of its report
to the grievant, the grievant’s director or chair, and the Director of Human
Resources.
f. The vice president will consider the grievance
and the Board’s recommendations, and may meet with the employee, management
representatives, and other appropriate persons.
g. The vice president must inform the employee of
his or her decision on the Grievance Form within five working days after
receiving the Grievance Review Board’s recommendations. The vice president must
send copies of the form to the grievant’s director or chair, members of the
Grievance Review Board and the Director of Human Resources. The vice
president's decision is final.
05. RULES
FOR GRIEVANCES AND COMPLAINTS
05.01 One
Subject and Forms. An employee may present only one subject in each grievance
or complaint. He or she must use the appropriate forms, and must include: (1) a
clear statement of the problem, (2) a description of the event that gave rise
to the problem, including its date and location, (3) the identity of persons
involved, and (4) the relief sought. A director or chair who receives a Step
Two Form that does not have a Step One Form attached and signed by Human
Resources should refer the employee to Human Resources. Once submitted, the
employee cannot amend the forms or the attachments unless the director or chair
agrees to the amendment.
05.02 Time
Limits.
a. Since it is
important that problems be resolved as rapidly as possible, persons involved
should consider time limits in this procedure as maximums. They should strive
to expedite the process.
b. An employee
must present his or her grievance or complaint to the Director of Human
Resources within ten working days after learning of an action or condition
giving rise to the grievance or complaint. Although the parties involved may
still resolve the matter informally, they may not use the formal procedures in
this UPPS after that time.
1) A Grievance
Review Board may not consider grievances not timely filed.
2) The parties
may, by written agreement, extend or shorten time limits at any step in the
process. The Director of Human Resources may extend time limits at any step in
the process for good cause.
3) If an
administrator fails to act within the time limits stated in this UPPS the
employee may proceed to the next step in the process.
05.03 Representatives.
In accordance with Section 617.005 of the Texas Government Code, an employee
may present a grievance or complaint individually or through a representative
who does not claim the right to strike. The employee may name this
representative at any step in the process by entering the representative's name
on the proper forms.
A
Representative Certification Form must be submitted to the Director of Human
Resources at least three working days prior to the first meeting the
representative will attend. The Director of Human Resources will certify that
the form has been properly completed and signed. After certification by the Director, the
employee must include this form with the materials presented at each step in
the process.
If
the form is certified after the grievance or complaint materials have been submitted
to the director, chair, Grievance Review Board and vice president, the employee
must provide a copy of the certified form to the director, chair, Grievance
Review Board and vice president, as appropriate, no later than one working day
prior to any meeting the representative will attend with the director, chair,
Grievance Review Board or vice president.
Administrators
and Grievance Review Board members should not meet with any representative who
has not been certified by the Director of Human Resources.
a. If the representative is
representing the employee on behalf of an organization, the representative must
have an officer of that organization complete and sign a Representative
Certification Statement (Employee Organization Representative) and submit it to
the Director of Human Resources.
b. If the representative is not
representing the employee on behalf of an organization, the representative must
complete and sign a Representative Certification Statement (Non Employee Organization
Representative) and submit it to the Director of Human Resources.
05.04 Time
Off for Grievances and Complaints. Grievants and complainants are permitted
time off from their regular duties with pay to attend meetings under this
process. These meetings include conferences with representatives of Human
Resources and supervisors and meetings of the Grievance Review Board. The
employees should notify their supervisors in writing when meetings are
scheduled. These meetings do not include meetings with attorneys or those
selected to represent the grievant.
a. Employees
are not allowed time off with pay to research or otherwise prepare for
grievances or complaints. They may, however, take annual leave, compensatory
leave, or leave without pay under normal leave procedures for these purposes.
b. Employees
who serve as representatives in grievances and complaints must take annual
leave, compensatory leave, or leave without pay under normal leave procedures
for meeting and preparations.
05.05 Retaliation
Prohibited. No person may penalize, discipline, or otherwise retaliate
against an employee for (1) presenting a grievance or complaint, (2) testifying
on behalf of another employee, or (3) representing or assisting another
employee with a grievance or complaint.
05.06 Confidentiality.
Grievances and complaints are confidential unless the employee chooses
otherwise. Those involved in the process should maintain this confidentiality
to the extent permitted by the Texas Public Information Act.
05.07 Records.
The Director of Human Resources and the administrators involved will maintain
records of grievances and complaints.
05.08 Notifications. All notifications to the grievant or complainant in this UPPS are
complete when the notice is given to him or her directly or deposited in the
06. GRIEVANCE
REVIEW BOARD COMPOSITION
06.01 A
Grievance Review Board consists of three members. A Board is appointed to hear
an individual grievance only. While
employees may serve on more than one Board, they do not serve for a particular
term. Each grievance review hearing
requires appointment of a three-member Board. In order to insure a fair and
representative panel, diversity will be considered when selecting board
members. Upon notification from the Director of Human Resources:
a. the
b. the Staff
Council will appoint two of its members to serve on a Board. The two will not be from the same department as
the grievant and the employee involved in the action or condition against which
the grievance is filed. At least one of
the two appointees must be from the same classification (non-exempt/classified
or unclassified/exempt) as the grievant.
If
Staff Council is unable to provide the required appointees, the
06.02 Board members are responsible for serving when
appointed, and may be excused only for extraordinary reasons when approved by the
07.
BOARD PROCEDURES
07.01 General
The
Grievance Review Board process is an administrative investigation process
deemed to be appropriate by the appointed Board for the particular grievance at
hand. It is not a court proceeding permitting cross examinations by the
grievant and the disciplining official. Likewise, Board decisions are not
required to meet a defined legal standard such as “preponderance of the
evidence.” The process provides an opportunity for the Grievance Review Board
to meet separately and privately with the grievant. It also affords the Board
the opportunity to meet separately and privately with the disciplining official
and any other employees, if deemed necessary, to complete its investigation of
the issues and present its recommendations to the appropriate vice president.
07.02 In considering grievances, the Board will:
a. Make such
recommendations to the vice president as it deems appropriate; and
b. Answer the
following questions:
1) Has the
grievant clearly established that the discipline was an abuse of the
supervisor's discretion and authority?
2) Has the
grievant clearly established that one or more of the following reasons were a
substantial motivating factor for imposing the discipline? (If yes, specify which reason or reasons were
factors.)
a) because of
the grievant's race, color, national origin, age, religion, sex, disability, or
sexual orientation;
b) in
retaliation for the employee’s having filed an EEO complaint in good faith;
c) for union
or non-union membership;
d) for
military service or any University authorized leave;
e) for
exercising rights concerning fair labor standards;
f) for
reporting unsafe working conditions;
g) to avoid
paying employee benefits;
h) for jury
duty or for complying with a subpoena to appear at a hearing;
i) because he
or she failed to purchase goods from a particular store or merchant;
j) because of
a child-support or child custody order;
k) for
reporting a violation of law to an appropriate law enforcement agency;
l) for
refusing to commit an illegal act;
m) because the
employee's earnings are subject to garnishment;
n) for attending
a political convention;
o) in
retaliation for the employee’s having filed a worker’s compensation claim in
good faith;
p) for
refusing to participate in an abortion; or
q) for any
other reason recognized by law as an exception to the doctrine of employment
at-will.
07.03 If the Board
finds that the termination was made on the basis of the items listed a.-q., the
Board chair must contact the Director, Equity and Access and the University
Attorney. The Board report must include specific evidence in support of their
determination.
07.04 Procedural
Defects. A supervisor’s failure to follow the University’s procedures for
imposing disciplinary sanctions is not grounds for recommending changes to the
sanction unless the grievant clearly establishes that the disciplining official
failed to give the grievant notice of the allegations of misconduct and an
opportunity to respond to the allegations.
07.05Grievance Review Board meetings are closed to the
public.
08. FORMS
08.01 All forms
referred to within this document are available on the University’s Human
Resources website located at: http://www.humanresources.txstate.edu.
09. REVIEWERS
OF THIS UPPS
09.01 Reviewers
of this UPPS include the following:
Position Date
Director, Human Resources April 1 E2Y
University Attorney April
1 E2Y
Director, Equity and Access April 1 E2Y
Chair, Staff Council April
1 E2Y
10. CERTIFICATION
STATEMENT
This
UPPS has been approved by the following individuals in their official
capacities and represents
Director of Human Resources; senior reviewer of this
UPPS
Vice President for Finance and Support Services
President