PART IV
HUMAN RESOURCES
CHAPTER VIII
Grievance and Dispute Resolution
General Statement P04.08.01
It is the objective of the University of Alaska to treat its employees in a fair and consistent manner. The university recognizes that a grievance and dispute resolution process is an important mechanism in identifying and resolving problems. In the event of an employee grievance, it is the objective of the university to accomplish the prompt, fair, and equitable resolution of the grievance at the earliest possible time.
Definitions P04.08.02
A. Grievance
A "grievance" is an allegation or complaint related to employment by an employee or a group of employees of the university that there has been a specific violation of a policy of the Board of Regents or a University Regulation, or a clear abuse of discretion arising from the administration of such policy or regulation, which directly and adversely affects the employee or group of employees.
For purposes of this policy, the following are not considered grievances and therefore may not be processed under this policy:
1. complaints or disputes other than those described above;
2. complaints or disputes which do not arise out of the employment relationship between the grievant or grievants and the university, or which may be grieved under a collective bargaining agreement or similar memorandum of understanding between the university and a certified bargaining representative of the employee;
3. actions of the Board of Regents;
4. allegations or findings that an employee of the university has engaged in unlawful discrimination or sexual harassment (see University Regulation 04.06.09).
B. Grievant
A "grievant" is the employee or group of employees asserting a grievance.
C. Respondent
The "respondent" in all grievances is the University of Alaska. A grievance may not be directed against another employee in their individual capacity. The respondent's representative will be determined by the applicable chancellor, vice chancellor for administration, provost, or the president and this decision may not be contested in the grievance proceedings.
D. Working Day
"Working day" is a day the university unit from which the grievance arises is open for business, even if classes are not scheduled.
E. Employee
An "employee" includes anyone hired and placed on the university payroll to perform work for pay for the university, including faculty, staff and student employees. To be an "employee" individuals must meet the definition of employee at the time the grieved act or omission occurred.
F. Final Decision
"Final decision" means the matter is not subject to further university review. Further review of a final decision may only be had by filing an appeal with the superior court of the State of Alaska within 30 days of the issuance of the decision in accordance with Alaska Appellate Rule 602(a)(2).
G. Hearing Officer
The "hearing officer" is an individual who has the experience necessary to adjudicate disputes, is appointed by university counsel at the request of the chancellor or president, conducts the grievance hearing and makes a recommendation to the chancellor or president.
H. Chancellor
Wherever the word "chancellor" appears, it is understood to mean the chancellor of the grievant's unit.
I. President
Wherever the word "president" appears, it is understood to mean the president of the University of Alaska.
J. Party or Parties
The "parties" to the grievance are the grievant(s) and the respondent.
Grievance and Dispute Resolution Process P04.08.03
Except as otherwise provided by policy or regulation, or in the case of the termination of an employee for cause, the following process will be used for the resolution of grievances. An employee termination for cause will be reviewed in the manner provided in Policy 04.08.08 — Review of a Proposed Termination for Cause.
A. Filing Deadline
1. An alleged grievance will not be processed unless a timely written statement of the grievance is filed at Step 3. The written statement must be filed within 30 days of the act or omission giving rise to the grievance, or within 30 days of the date on which the grievant learned, or should reasonably have learned, of such act or omission, whichever is later.
2. The written statement must be filed with the supervisor of the person responsible for the act or omission. In the case of a grievance filed against a chancellor or the president, the grievance must be timely filed with the chancellor or president, respectively, who will be considered "supervisors" for the purposes of this section.
B. Mediation
Any party to the grievance may request that an appropriate individual, mutually agreed to by the parties and participants, assist the parties to reach resolution of the grievance. Mediation should normally occur at an early stage of a grievance; however, requests for mediation will be considered at any step of the process. Efforts at mediation will not preclude the processing of the grievance in the manner provided by this procedure. Nor will participation in mediation excuse compliance with grievance timelines absent agreement of both parties. The mediator will have no power to compel any action by any party.
The participants and the mediator are encouraged to reach a written agreement regarding confidentiality of the mediation process. The university will provide a sample confidentiality agreement on request and will abide by an agreement making the mediation confidential for purposes of the grievance process to the extent allowed by law.
C. Step 1: Informal Dispute Resolution
The grievant should notify the person responsible for the occurrence of the dispute and attempt resolution at the lowest administrative level having the authority to resolve the matter. The parties may use the assistance of a mediator.
D. Step 2: Review with Supervisor
If the dispute is not resolved in Step l, and the grievant elects to proceed with the grievance, the grievant should discuss the dispute informally with the immediate supervisor of the person responsible for the action.
E. Step 3: Grievance
1. Filing
If the grievance is not resolved in Steps 1 or 2, and the grievant elects to proceed, the grievant will file a written grievance that complies with the filing requirements in section A.
2. Contents of Grievance
At a minimum, the written grievance will include:
a. The name, title, address and work phone number of the grievant;
b. The name and title of the person responsible for the act or omission being grieved;
c. A description of the act or omission being grieved, including a clear and concise statement of the facts giving rise to the grievance, the date of the occurrence and the date the grievant learned of the occurrence;
d. A citation of the specific policy or regulation believed to have been violated, misinterpreted or improperly applied, and an explanation of how the policy or regulation has been violated, misinterpreted or improperly applied;
e. A description of the relief sought; and
f. The grievant's signature and the date.
3. Process
If the grievant has not complied with Steps 1 and 2, the supervisor may notify the grievant in writing that processing will be delayed for up to 10 working days to provide an opportunity for informal dispute resolution. If the grievance is not resolved informally, the supervisor will investigate the grievance as he/she deems appropriate and respond to the grievant in writing within 10 working days from the date the grievance was presented, or the end of any informal dispute resolution period provided by this paragraph, whichever is later.
F. Step 4: Request for Hearing
1. Grievant Responsibilities
If the grievance is not resolved at Step 3, the grievant may proceed with the grievance only if a hearing is requested within 10 working days of the issuance of the supervisor’s decision at Step 3, or of the date the decision was due, whichever is earlier. The grievant will present a written request for a hearing, including a copy of the written grievance and the supervisor's response to the senior administrator with the authority to take appropriate remedial action. Specifically the written request will be submitted to:
-- the provost if the grievant’s reporting line is academic;
-- the student affairs officer if the grievant’s reporting line is student affairs;
-- to the vice chancellor for administration if the grievant’s reporting line is administrative;
-- to the statewide chief human resources officer if the grievant is a statewide employee.
However, if the grievance concerns an action or failure to act of a chancellor or the president, or of the person with whom the request would otherwise be filed under this section, the request for hearing will be filed with the respective chancellor or, in the case of statewide employees, with the president.
2. Administrator Responsibilities
The person with whom the request is properly filed will:
a. Promptly provide a copy of the request for hearing and all other documentation submitted with the request to the person responsible for the act or omission. Copies will also be provided to the university general counsel, the campus personnel director, and the statewide chief human resources officer.
b. Determine, within 10 working days of receiving the request for a hearing, whether there is a reasonable likelihood that the matter complained of was a violation of a policy or regulation or clear abuse of discretion arising from the administration of such policy or regulation as applied to the grievant, and whether the matter is grievable and has been properly filed and processed under this policy.
The determination will be based on a review of the written request for a hearing, all other documentation submitted, and the written responses of the person responsible for the act or omission and/or that person's supervisor. Questions may also be directed to the parties, if necessary.
c. Promptly provide a written explanation of the determination to the grievant, the person responsible for the act or omission at issue, and the chancellor or president as applicable.
Dismissal will be recommended if the determination is made that:
(1) there is no reasonable likelihood that there has been a violation or clear abuse of discretion arising from the administration of a policy or regulation as applied to the grievant; or
(2) the matter is not grievable or not properly filed and processed under this policy. A copy of the recommendation will be provided to the university general counsel.
If the chancellor or president decides to dismiss the matter, notification of the dismissal will be transmitted by the chancellor or the president to the parties within 5 working days of the decision.
If a reviewer other than the chancellor or president determines that the matter warrants a hearing, the reviewer will recommend to the chancellor or president, as applicable, that a hearing officer be appointed. The chancellor or president will refer a recommendation for the appointment of a hearing officer to the university general counsel for consideration and appointment.
G. Step 5: Hearing Process
1. Hearing Officer Responsibilities
The hearing officer will conduct a formal hearing, that may be preceded by a pre-hearing conference.
The procedures for the hearing will:
a. be determined by the hearing officer;
b. be made known to the parties; and
c. afford all parties to the hearing a meaningful opportunity to present their cases.
The hearing procedures concerning disqualification of hearing officers, public access, burden of proof, and continuances will apply as specified in subsection 2. below.
Within 5 working days of the conclusion of the hearing, the hearing officer should submit his/her findings of fact and recommendations for the resolution of the matter in writing, along with all materials considered by the hearing officer in reaching his/her recommendations to the chancellor or president.
The hearing officer will also submit a copy of the recommendations to the grievant, the person responsible for the act or omission complained of, the respondent's representative and the university general counsel.
The hearing officer's recommendations will contain a statement of the grievance, the procedural history of the grievance, a statement of the issues considered by the hearing officer, the reason for the decision, the statement of remedy, and timelines for implementing the remedy.
2. Conduct of Hearings
a. Pre-Hearing Conference
Not less than 5 working days before the hearing, the hearing officer may convene the parties for a pre-hearing conference if, in his/her judgment, such a pre-hearing conference would be beneficial to the parties or to the hearing officer. The objectives of the pre-hearing conference will be to:
(1) clarify and, where possible, simplify the issues;
(2) indicate what must be provided and which party bears the burden of proof;
(3) establish the facts, to the extent possible;
(4) provide for the exchange of documents and other information;
(5) arrange for witnesses and representatives or advisors;
(6) establish a deadline for providing appropriate materials;
(7) consider requests for disqualification of a hearing officer in accordance with c. below;
(8) determine whether the hearing will be open or closed in accordance with f. below;
(9) review the procedures for conducting the hearing; and
(10) conduct other appropriate business to ensure a fair, effective, and expeditious hearing.
b. Hearing
The hearing will be conducted in such a manner as to permit the parties a reasonable opportunity to present their perspectives on the issues in dispute and to provide sufficient information for the hearing officer to make a recommendation.
Parties to the grievance will be afforded a reasonable opportunity to call and examine witnesses, introduce exhibits, and ask questions of the opposing party and witnesses for the opposing party.
The technical rules of evidence will not apply to the hearing. Any relevant evidence is admissible if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. Irrelevant or unduly repetitious evidence may be excluded. The rules of attorney/client privilege apply to the same extent as in civil actions.
c. Disqualification of a Hearing Officer
A hearing officer may disqualify him/herself when he/she determines that he/she cannot be impartial. Knowledge of the circumstances or facts giving rise to the grievance, however, is not sufficient on its own to justify disqualification.
Any party may seek, in a timely manner, the disqualification of any hearing officer assigned to consider a grievance. The hearing officer will consider all requests for disqualification and will rule on the question. The decision of the hearing officer is reversible only in the case of abuse of discretion.
d. Representatives or Advisors
Any party may, but need not, be represented by any person including legal counsel. Parties using representation will be responsible for payment of all associated fees.
e. Record of Proceedings
Hearings will be recorded by the hearing officer; however, the hearing officer will not be responsible for technical problems, and such technical problems will not affect the outcome and will not form the basis for challenge as to the adequacy of the proceedings. Any party may request copies of the tape recordings at cost. Any party may tape record the proceedings at the party's expense, provided that such recording does not unduly disrupt the proceedings.
f. Public Access
Hearings conducted under these procedures will normally be open to the public. However, either party may request, prior to the start of the hearing, that the hearings be closed to the public. The hearing officer may close the hearing upon finding that a closed hearing would result in a fairer and more just hearing. The hearing officer may direct those witnesses, but not the parties and their representatives, be excluded from the hearing except while providing testimony. The deliberations of the hearing officer will be closed to the public and the parties to the grievance.
g. Burden of Proof
The grievant bears the burden of proof in all hearings. However, if the respondent has information about the facts giving rise to the grievance which are not known by the grievant, the respondent may initially bear the burden of producing evidence for the purpose of establishing the facts on the record.
h. Cooperation
All university personnel have the responsibility to cooperate with the grievance process and may not knowingly withhold information, which has an important bearing on a case.
H. Step 6: Decision of the Chancellor or President
The chancellor or president will review the recommendations of the hearing officer and render a written decision within 15 working days of the receipt of the recommendations. The decision of the chancellor or president and a copy of the recommendations of the hearing officer will be furnished to the parties, the hearing officer and the university general counsel. In the case of a grievance filed against the president, these materials will also be provided to the president of the Board of Regents. A decision by the president is final.
The chancellor or president may:
1. accept or reject the findings and recommendations of the hearing officer in whole or in part; or
2. return the matter to the hearing officer for clarification or for the taking of further evidence as to specified issues.
Should the findings or recommendations of the hearing officer not be accepted, the decision will indicate the reasons for rejection or reversal.
I. Step 7: Discretionary Review by the President
A grievant not satisfied with a decision of a chancellor may request discretionary review by the president. Such request must be in writing and must be submitted within 10 working days of the issuance of the decision of the chancellor.
If the president does not elect to accept a request within 15 working days of receipt, the decision of the chancellor becomes the final decision of the university.
If the president timely notifies the grievant that he/she will review the chancellor's decision, the president will consider the record of the grievance as made before the hearing officer and before the chancellor and take such action as the president deems appropriate.
Both the decision of the president with respect to whether to review the chancellor's decision and the president's substantive decision are final and non-grievable.
Failure to Seek Review P04.08.04
The failure of any party to exhaust administrative remedies by seeking review of a decision under the grievance procedure by the next higher level within the time limits established by the grievance procedure will be deemed to constitute acceptance of that decision by the parties and will constitute a resolution of the grievance.
It is the employees' responsibility to be cognizant of the policy, time frames and deadlines included in the policy. Failure to receive a response within the established time frame will not relieve an employee from proceeding within the time allowed to a subsequent step in the grievance process.
Extension of Time Limits P04.08.05
The intent of the grievance process is to resolve grievances as quickly as possible. However, a fair and equitable resolution should not be sacrificed for the sake of promptness.
The deadlines for filing grievances established in policy should be enforced under normal circumstances. However, the respondent's representative is given the discretion to extend the deadlines when he/she deems it necessary to be reasonable and fair. All time limits specified in policy may be extended by mutual agreement of all parties to the grievance.
Reprisal Prohibited P04.08.06
No grievant, respondent, or witness will be subject to harassment, reprisal, or retaliation for utilizing or participating in the grievance and dispute resolution process.
Abuse of Process P04.08.07
The grievance and dispute resolution process is intended to afford employees a meaningful opportunity to resolve disputes within the structures of the university. Its success depends on the good faith efforts of all employees to implement the policy for this purpose.
Persons who utilize the process to harass other employees or file vexatious or repetitive grievances that are determined to be without merit are subject to disciplinary action. The hearing officer may recommend disciplinary action against persons using the process for other than the intended purpose.
Review of a Proposed Termination for Cause P04.08.08
A. Procedure
1. Written Statement
In the event of a decision to terminate an employee for cause, the supervisor will provide the employee with a written statement of:
a. the reason(s) for the planned action;
b. a statement of the evidence supporting the reason(s) for the planned action; and
c. notice of the employee's right to request a hearing in accordance with policy at the time the employee is notified of the university's intention to terminate the employee's employment.
2. Request for Hearing
Within 3 working days following receipt of the notice, the employee may request a hearing to contest the termination by submitting a written request to the regional personnel officer for the unit at which the individual is employed, or to the statewide chief human resources officer in the case of the termination of a statewide employee. The written request for a hearing may either be hand delivered, mailed, transmitted by facsimile or by electronic mail, but must be received within the specified time limit.
3. Hearing
If a timely request is received, a hearing will be scheduled not less than 3 working days from the date of the request before a hearing officer appointed by the university general counsel.
At the hearing, the university will have the burden of proof of demonstrating by a preponderance of the evidence that just cause exists for the termination of the employee. The employee will be afforded an opportunity to present testimony and other evidence as to why the action should not be taken and may be represented by legal counsel or another advisor of the employee's choosing. The hearing will be recorded as provided by Policy 04.08.03.G.e(2).
Additionally, the provisions of Policies 04.08.02, 04.08.03.G.2 (b), (f), (h), and (i); 04.08.05; 04.08.06; 04.08.07 and 04.08.09 will apply as appropriate to the hearing, except that continuances granted at the request of the employee will not necessarily delay the implementation of the proposed termination.
4. Hearing Officer Responsibilities
The hearing officer will consider the evidence presented and the proposed action and submit a recommended decision within 5 working days of the close of the hearing to the chancellor for the unit at which the individual is employed, or to the statewide chief human resources officer in the case of the termination of a statewide employee. The time may be extended by the hearing officer with the agreement of the parties. Absent such agreement, failure of the hearing officer to comply with this time limit will not effect the validity of the process if the employee remains in pay status.
5. Decision
The chancellor or statewide chief human resources officer, as appropriate, will consider the recommendation of the hearing officer and issue a decision in the matter.
Employees will normally remain in pay status until the decision of the chancellor or statewide chief human resources officer, as appropriate, is made unless a prior proceeding affording minimum due process has been made available. Additionally, nothing in this provision will be construed to preclude the university from suspending an employee with pay pending the outcome of this review process.
A party not satisfied with the decision of the chancellor or statewide chief human resources officer, as appropriate, may appeal the decision in writing to the president. Such appeal must be submitted within 10 working days of the issuance of the decision.
The president will consider the record before the hearing officer, the decision on appeal, and the appeal and take such action as the president deems appropriate. The decision of the president is final.
Applicability to Other Policy and/or Regulation P04.08.09
The grievance process is at all times subject to policies and regulations expressly limiting or precluding its applicability:
A. Sexual Harassment/Unlawful Discrimination
Complaints and disputes alleging sexual harassment or unlawful discrimination are subject to Policy 04.06.09.
B. Student Allegations and Complaints Related to Employment
Student allegations and complaints arising from other than employment-related causes are subject to such other procedures as are established in policy and regulation and at each campus.
C. Faculty
Appeals of decisions relating to faculty promotion, retention, and tenure are not subject to this policy. Instead, these decisions are subject to the exclusive review procedures provided for by Policy 04.04.05, and the faculty review procedures established at the faculty member's major academic unit, or by the faculty member's union contract, whichever is applicable.
D. Layoff, Financial Exigency or Program Assessment
Grievances arising from layoff are subject to Policy and Regulation 04.09.05. Grievances arising from financial exigency are subject to Policy and Regulation 04.09.08 and .09. Grievances arising from program assessment are subject to Policy 10.06.01.
Reporting of Grievances to the Board of Regents and Governance P04.08.10
The statewide office of human resources, in coordination with the vice-chancellors for administration, provosts, and university general counsel, will prepare an annual report of the grievance process which will be distributed to the Board of Regents and to the system governance office. The report will include data, by campus, including the number and type of grievances, and recommendations for changes, additions or modifications to the grievance policy. No individually identifiable information will be included as a part of the report.
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