Graduate Assistants United -- University of South Florida / Grievance Policy

From CGEU

11.1 Purpose. The University and the UFF-USF-GAU agree that all problems should be resolved, whenever possible, before the filing of a grievance and they encourage open communication between administrators and employees so that resort to the formal grievance procedure will not be necessary. The parties further encourage the informal resolution of grievances. At each step in the grievance process, participants are encouraged to pursue appropriate modes of conflict resolution. The purpose of this Article is to promote a prompt and efficient procedure for the investigation and resolution of grievances. The procedures hereinafter set forth shall be the sole and exclusive method of resolving the grievances of employees covered by this Agreement.

11.2 Resort to Other Procedures. If prior to seeking resolution of a dispute by filing a grievance hereunder, or while the grievance proceeding is in progress, an employee or UFF-USF-GAU seeks resolution of the matter in any other forum, whether administrative or judicial, the employer shall have no obligation to entertain or proceed further with the matter pursuant to this grievance procedure. Further, since the University and the UFF-USF-GAU do not intend that this grievance procedure be a device for appellate review, the University's response to a recommendation of a hearing officer or other individual or group having appropriate jurisdiction in any other procedure shall not be an act or omission giving rise to a grievance under this procedure.

11.3 Definitions. As used herein:
A. The term "grievance" shall mean a dispute concerning the interpretation or application of a specific term or provision of this Agreement, filed pursuant to this Article, and subject to those exclusions appearing in other Articles of this Agreement.
B. The term "grievant" shall mean an employee covered by this Agreement, or group of such employees, who has filed a grievance in a dispute over a provision of this Agreement which confers rights upon them, or UFF-USF-GAU which has filed a grievance in a dispute over a provision of this Agreement that confers rights upon UFF-USF-GAU. A grievance filed by UFF10 USF-GAU which alleges a violation of its rights by two (2) or more colleges, or a grievance filed by employees in two (2) or more colleges, shall be initiated at Step 1.

11.4 Representation. UFF-USF-GAU shall have the exclusive right to represent any employee in grievances filed hereunder, provided employees may represent themselves or be represented by legal counsel. If an employee elects not to be represented by UFF-USF-GAU, the University shall promptly inform UFF-USF-GAU in writing of the grievance. No resolution of any individually processed grievance shall be inconsistent with the terms of this Agreement and for this purpose UFF-USF-GAU shall have the right to have an observer present at all meetings called between grievants and the University for the purpose of discussing such grievances and shall be sent copies of all decisions at the same time they are sent to the other participants.

11.5 Grievance Representatives. UFF-USF-GAU shall furnish annually to the University a list of all persons authorized to act as grievance representatives no later than August 7th each year and shall update the list as needed. The UFF-USF-GAU grievance representative shall have the responsibility to meet all instructional, research, and other duties and responsibilities incidental to the assigned workload. Some of these activities are scheduled to be performed at particular times. Such representative shall have the right, during times outside of the hours scheduled for these activities, to investigate, consult, and prepare grievance presentations and attend grievance meetings. Should any hearings or meetings with the University, the President, the Board, or their representatives necessitate rescheduling of assigned duties, the representative may, with the approval of the appropriate administrator, arrange for the rescheduling of such duties or their coverage by colleagues. Such approval shall not be unreasonably withheld.

11.6 Appearances.
A. When an employee participates during working hours in arbitration proceedings or in a grievance meeting between the grievant or representative and the President or representative, that employee's compensation shall neither be reduced nor increased for time spent in those activities.
B. Prior to participation in any such proceedings, conferences, or meetings, the employee shall make arrangements acceptable to the appropriate supervisor for the performance of the employee's duties. Approval of such arrangements shall not be unreasonably withheld. Time spent in such activities outside regular working hours shall not be counted as time worked.

11.7 Grievance Forms. All written grievances, requests for review, and arbitration notices must be submitted in writing on forms attached to this Agreement as Appendices C, D, and E respectively, and shall be signed by the grievant. Except for the initial filing of the grievance, if there is difficulty in meeting any time limit, the UFF-USF-GAU representative may sign such documents for the grievant. The University may refuse consideration of a grievance not filed in accordance with this Article. Formal Grievance Procedure

11.8 Filing. The filing of a written grievance shall constitute a waiver of any rights the grievant may have under Chapter 120, Florida Statutes, or under any University procedures with regard to the matters contained in the grievance. A grievance may be withdrawn at any time by the grievant or by the UFFUSF- GAU representative.

11.9 Step 1.
A. An employee having a dispute concerning the interpretation or application of a specific term or provision of this Agreement may, within thirty (30) days following the act or omission giving rise thereto, or the date on which the employee knew or reasonably should have known of such act or omission, whichever is later, may file a written grievance, on the form contained in Appendix C. The form shall be filed with the Office of the Provost. All Step 1 grievances shall immediately proceed to an informal resolution process unless both parties agree otherwise. The informal resolution process shall last thirty (30) days and may be extended by mutual consent of both parties. Following the initial period of informal resolution, the grievance will be assumed to be resolved to the grievant's satisfaction if the grievant does not request, in writing, a Step 1 decision within seven (7) days of the end of the informal resolution period. If any extension of the informal resolution period expires without the grievant's request for a Step 1 decision, the grievance will be assumed to have been resolved to the grievant's satisfaction.
B. At any point in the informal resolution period the grievant may request a Step 1 meeting. If such request occurs during the initial period of informal resolution, the University may accept the request or continue the informal resolution period for the initial thirty (30) days, at which point the provisions of Article 11.9 (A) shall prevail. If the request occurs during an extension of the informal resolution period the University shall comply within fifteen (15) days. In advance of the Step 1 meeting, the grievant shall have the right, upon request, to a copy of any identifiable and currently existing documents relevant to the grievance, except documents protected by law. Documents which are available electronically may be provided by electronic mail or by advising the grievant of the web address for obtaining such documents.
C. At the Step 1 meeting, the grievant shall have the right to present any evidence in support of the grievance. The University Step 1 representative shall meet with the grievant and/or the grievant's representative no later than fifteen (15) days following the filing of the grievance at Step 1 and shall issue a written decision to the grievant and the grievant's representative, if any, within thirty (30) days following the meeting.

11.10 Step 2.
A. If the grievance has not been satisfactorily resolved at Step 1, the grievant may, on the form contained in Appendix D, file a request for review with the Provost or representative within fifteen (15) days following the receipt of the Step 1 decision. The request shall include a copy of the grievance form filed at Step 1 and all written responses and documents in support of the grievance filed at Step 1 and a copy of the Step 1 decision. No additional allegations of violations may be introduced at Step 2.
B. The Provost or representative shall schedule a meeting with the UFF-USF-GAU grievance representative within fifteen (15) days after the filing of the grievance and shall issue a written decision to the grievant and the grievant's representative, if any, within thirty (30) days following the meeting.

11.11 Step 3. If the grievance has not been satisfactorily resolved at Step 2, UFF-USF-GAU may, upon the request of the grievant, proceed to arbitration by filing a written notice of intent to do so on a form contained in Appendix E. Notice of intent to proceed to arbitration must be filed with the Office of the General Counsel within thirty (30) days after receipt of the Step 2 decision and shall be signed by the grievant and the UFF-USF-GAU President or representative.

11.12 Selection of Arbitrator. Representatives of the University and UFF-USF-GAU shall meet within ninety (90) days after the execution of this Agreement for the purpose of selecting a five (5) member Arbitration Panel. Within fifteen (15) days after receipt of a Notice of Arbitration, representatives of the University and UFF-USF-GAU shall meet for the purpose of selecting an arbitrator from the Panel. Selection shall be by mutual agreement or by alternately striking names from the Arbitration Panel list until one (1) name remains. The winner of a coin toss shall be the first to strike a name from the list. If the University and the UFF-USF-GAU are unable to agree on a panel of arbitrators, they shall follow the normal American Arbitration Association procedure for the selection of an arbitrator. The University and the UFF-USF-GAU may mutually select as the arbitrator an individual who is not a member of the Arbitration Panel. The arbitration shall be concluded within ninety (90) days following the selection of the arbitrator.

11.13 Authority of the Arbitrator.
A. The arbitrator shall neither add to, subtract from, modify, nor alter the terms or provisions of this Agreement. The arbitration decision shall be confined solely to the application and/or interpretation of this Agreement and the precise issue(s) submitted for arbitration. The arbitrator shall have no authority to determine any other issue. The arbitrator shall refrain from issuing any statements of opinion or conclusions not essential to the determination of the issues submitted. B. If a supervisor has made a judgment involving the exercise of discretion, such as decisions
regarding evaluation, the arbitrator shall not substitute the arbitrator's judgment for that of the supervisor, nor shall the arbitrator review such decision except for the purpose of determining whether the decision has violated this Agreement.
C. If the arbitrator determines that the Agreement has been violated, the arbitrator shall direct the University to take appropriate action. An arbitrator may award back pay if the arbitrator determines that the employee is not receiving the appropriate compensation from the University, but the arbitrator may not award other monetary damages or penalties.
D. If notice that further employment will not be offered is not given on time, the arbitrator may direct the University to renew the appointment only upon a finding that no other remedy is adequate, and that the notice was given so late that (1) the employee was deprived of reasonable opportunity to seek other employment, or (2) the employee actually rejected an offer of comparable employment that the employee otherwise would have accepted.

11.14 Burden of Proof. In all grievances except disciplinary grievances, the burden of proof shall be on the employee. In disciplinary grievances, the burden of proof shall be on the University.

11.15 Arbitrability. In any proceeding, the first matter to be decided is the arbitrator's jurisdiction to act, which decision the arbitrator shall announce. Upon concluding that the arbitrator has no such power, the arbitrator shall make no decision or recommendation as to the merits of the grievance. Upon concluding that the issue is arbitrable, the arbitrator shall normally proceed with the hearing at that time, provided that either the University or the UFF-USF-GAU may seek judicial review of the arbitrator's decision as to jurisdiction and have the hearing on the merits of the grievance delayed until such review is completed, pursuant to Section 682.03, Florida Statutes.

11.16 Conduct of Hearing.
A. The arbitrator shall hold the hearing in Tampa, Florida, unless otherwise agreed by the University and the UFF-USF-GAU. The hearing shall commence within sixty (60) days of the arbitrator's acceptance of selection or as soon thereafter as is practicable, and the arbitrator shall issue the decision within forty-five (45) days of the close of the hearing or the submission of briefs, whichever is later, unless additional time is agreed to by the University and the UFF-USFGAU. B. The decision shall be in writing and shall set forth findings of fact, reasoning, and conclusions
on the issues submitted. Except as expressly specified in this Article, the provisions of the Florida Arbitration Code, Chapter 682, Florida Statutes, shall not apply. Except as modified by the provisions of this Agreement or by other agreement of the University and the UFF-USF-GAU, arbitration proceedings shall be conducted in accordance with the rules and procedures of the American Arbitration Association.

11.17 Effect of Decision. The decision or award of the arbitrator shall be final and binding upon the University , UFF-USF-GAU, and the grievant, provided that either the University or the UFF-USF-GAU may appeal to an appropriate court of law a decision that was rendered by the arbitrator acting outside of or beyond the arbitrator's jurisdiction, pursuant to Section 682, Florida Statutes.

11.18 Fees and Expenses. All fees and expenses of the arbitrator shall be divided equally between the University and the UFF-USF-GAU. Each party shall bear the cost of preparing and presenting its own case. The party desiring a transcript of the arbitration proceedings shall provide written notice to the other party of its intention to have a transcript of the arbitration made at least one (1) week prior to the date of the arbitration. The party desiring such transcript shall be responsible for scheduling a stenotype reporter to record the proceedings. The University and the UFF-USF-GAU shall share equally the appearance fee of the stenotype reporter and the cost of obtaining an original transcript and one (1) copy for the party originally requesting a transcript of the proceedings. The requesting party shall, at its expense, photocopy the copy of the transcript received from the reporter and deliver the photocopy to the other party within five (5) days after receiving the copy of the transcript from the reporter.

11.19 Time Limits. All time limits contained in this Article may be extended by written mutual agreement of the University and the UFF-USF-GAU, except the time limits for the initial filing of a grievance. Upon failure of the University to provide a decision within the time limits provided in this Article, the grievant or UFF-USF-GAU, where appropriate, may appeal to the next step, provided that the appeal is filed at the next step within fifteen (15) days from the date the prior step decision was due. Upon the failure of the grievant or UFF-USF-GAU, where appropriate, to file an appeal within the time limits provided in this Article, the grievance shall be deemed to have been resolved by the decision at the prior step.

11.20 Notification. All grievances, requests for review, notices, and decisions shall be transmitted in person or by certified or registered mail, restricted delivery, return receipt requested. In the event of a question as to the timeliness of any grievance, request for review, notice, or decision, the date of receipt executed by the office receiving the grievance, request for review, notice, or decision; or the date of mailing as determined by the postmark shall be determinative. In the event that any action falls due on a day when the University is closed for normal business, the action will be considered timely if it is accomplished by 5:00 p.m. on the following business day.

11.21 Precedent. No complaint informally resolved or grievance resolved prior to arbitration shall constitute a precedent for any purpose unless agreed to in writing by the University and UFF-USF-GAU.

11.22 Retroactivity. An arbitrator's award may or may not be retroactive as the equities of each case may demand, but in no case shall an award be retroactive to a date earlier than thirty-five (35) days prior to the date the grievance was initially filed in accordance with this Article or the date on which the act or omission occurred, whichever is later.

11.23 Processing. The filing or pendency of any grievance, or of arbitration proceedings, under this Article shall not operate to impede, preclude, or delay the University from taking the action complained of. Reasonable efforts, including the shortening of time limits when practical, shall be made to conclude the processing of a grievance prior to the expiration of the grievant's employment, whether by termination or failure to reappoint. In no event shall any employee, as a result of a pending grievance, receive compensation following cessation of employment.

11.24 Reprisal. No reprisal of any kind will be made by the University, UFF-USF-GAU or their representatives against any grievant, any witness, any UFF-USF-GAU representative, or any other participant in the grievance procedure by reason of such participation.

11.25 Records. All written materials pertinent to a grievance shall be filed separately from the evaluation file of the grievant or witnesses, except decisions resulting from arbitration or settlement.