Grievance Procedures for SPA Employees

Human Resources Policy HR 19 95 (revised 10/02)

PURPOSE

To provide a means of improving communication between supervisors and employees; thereby establishing principles of administration to ensure a prompt, orderly and fair response to an employee’s grievance or complaint.

WHO IS COVERED

All UNCP employees subject to the State Personnel Act (SPA Employees) who are career state employees defined as employees who:

a) are in a permanent position; and
b) have been continuously employed by the State of North Carolina in a position subject to the State Personnel Act for the immediate 24 preceding months.

POLICY

Any career state employee having a grievance arising out of or due to employment shall first discuss the problem or grievance with his/her supervisor and follow the grievance procedures established by the University. Any eligible employee under the above stated guidelines, who is not satisfied with the decision of the immediate supervisor, may contact the Human Resources Director. Appeal rights and University grievance produces are available on the Human Resources website at http://www.uncp.edu/hr/. If the grievance involves alleged illegal discrimination, follow “Procedures for Grievances Alleging Discrimination” of this policy. All grievances must be filed within 15 calendar days of the alleged occurrence that is the basis of the grievance. This policy is not available to probationary, temporary, or trainee employees or employees who have not attained career status, except as required by law.

The University Grievance Committee (herein referred to as the “Committee”) is appointed to hear SPA grievances. A pool of 12 SPA employees (representing each division of the University, varied race and sex), are appointed by the Chancellor, with staggered terms to assure that experienced employees are always available to serve. The Human Resources Director determines the makeup of the committee based on where the grievance originates. The grievant is allowed to remove two members of the committee by notifying the Human Resources Director in writing. The Human Resources Director will replace the two members from the pool. The grievant is not allowed to remove replacements. The Committee hears all grievances; therefore, the University does not have a separate dispute resolution procedure.

EXCEPTIONS TO THE CAREER STATUS

The following grievances may be initiated without regard to type of appointment or length of service:

a) alleged illegal discrimination (G.S. 126-16 and G.S. 126-36). This type of grievance may be initiated through the University’s grievance procedure or directly to the State Personnel Commission. An employee who chooses to bypass the University’s internal grievance procedure and appeal directly to the State Personnel Commission must do so within 30 calendar days of notice of the alleged discriminatory action.
b) alleged inaccurate or misleading information in a personnel file (G.S. 126-25). This type of Grievance must be initiated through the University grievance procedure.

TYPES OF ACTION COVERED

Employees have the right to present a grievance free from interference, restraint, coercion, or reprisal. Issues that may be grieved through the University Policy include the following:

• demotion
• suspension
• dismissal
• reduction in force
• illegal discrimination (includes unlawful workplace harassment)
• denial of promotional priority
• denial of priority re-employment
• denial of the removal of false and misleading information from the personnel file
• performance pay disputes and any other issues made grievable by the State Personnel Act (G.S. 126-34.1).
• false and misleading information in the personnel file
• issues relating to the Family and Medical Leave Act (FMLA)
• issues relating to the Americans with Disabilities Act (ADA)
• issues relating to the Fair Labor Standards Act (FLSA)
• issues relating to the Age Discrimination in Employment ACT (ADEA)

With the exception of performance pay disputes, the issues listed above may be appealed to the State Personnel Commission after the internal grievance procedure is completed.

Grievances pertaining to performance pay may be filed only for the following issues:

a) failure to receive an increase, or
b) the amount of performance increase
c) overall summary rating, if rating is “below good” or lower

Performance pay grievances are not appealable to the State Personnel Commission. The Chancellor will make the final decision.

Matters relating to the decision which management must make to discharge their responsibilities generally are not subject to appeal under this policy. These matters include, but are not limited to, such areas as the programs and functions of the department, standards of service, the overall agency budget, the utilization of technology, and the assignment and reassignment of staff to positions, duty stations, shifts, except where such transfers include a demotion to a lower classification. Written warnings, placement on investigation with pay, extensions of disciplinary actions or length of period of placement on investigation with pay are not appealable through the University’s grievance procedure. Matters relating to written warnings or performance pay disputes and any other matters not specifically made appealable by the State Personnel Act may not be appealed to the State Personnel Commission. A copy of these grievance procedures will be attached to any appealable disciplinary action notice given to an SPA employee. On written warnings, an employee may write a letter “To the File” stating his/her point of view in the matter. This document shall be forwarded to the Human Resources Office to be placed in the employee’s personnel file, along with the warning. The UNCP Human Resources Office will provide a copy of this document to the supervisor issuing the written warning.

DISCIPLINARY ACTIONS

Written Warnings

When employees fail to carry out the requirements of the job, or display behavior that is not acceptable in the workplace, disciplinary action must be taken to correct or improve job performance or address cases of unacceptable personal conduct. These types of reasons for disciplinary action are defined as “just cause”. When just cause exists, any career state employee may be given appropriate disciplinary action by the supervisor or other authorized management representative. The types of disciplinary action include:

a) written warning
b) disciplinary suspension without pay
c) demotion
d) dismissal

Written Warnings - must be in writing and specifically state:

• that the document is a “written warning” so as to distinguish the document from some other types of non-disciplinary action, such as counseling, guidance, or directions.
• must include the specific performance or conduct improvements that must be made.
• documents the time frame which the employee must show improved performance or conduct (in matters of unacceptable personal conduct, the supervisor may require that the conduct not be repeated)
• documents the consequences of failing to make the required improvements or corrections (i.e., further disciplinary action, dismissal, etc.).
• action may not be appealed under UNCP grievance policy or to the State Personnel Commission.

A copy of the written warning should be provided to the employee during a meeting between the supervisor and employee. If such a meeting is not feasible, e.g., employee fails to attend, notice of written warning may be sent by certified mail or hand delivered. A copy of the written warning must be sent to the Human Resources Office.

Written warnings are considered to be inactive in the following instances:

• after the expiration of 18 months, unless there has been additional written disciplinary action since the date the written warning was issued;
• after 18 months, unless the employee is notified in writing that the timetable for the written warning is extended;
• at any time if the supervisor or other authorized management representative concludes the problem that gave rise to the warning has been resolved, is unlikely to reoccur, and the employee is notified in writing that the written warning has been resolved.

Written warnings are not grievable under the UNCP Grievance Procedures and are not appealable to the State Personnel Commission.

Suspensions Without Pay

An SPA employee may be suspended without pay for disciplinary reasons for a current incident of unsatisfactory job performance after the receipt of at least one prior disciplinary action.

An employee may be suspended without pay for disciplinary reasons for a current incident of unacceptable personal conduct or grossly inefficient job performance without prior disciplinary action.

Disciplinary suspensions without pay shall be administered in increments from a minimum of one full work day up to a maximum of two full work weeks for SPA employees who are subject to overtime provisions of the Fair Labor Standards Act (FLSA). For SPA employees who are exempt from overtime provisions of the FLSA, disciplinary suspensions without pay will be administered from a minimum of one full workweek to a maximum of two full workweeks, in full week increments only.

Prior to suspending an employee without pay for disciplinary reasons, a supervisor and/or other authorized management representative must hold a pre-disciplinary conference with the employee. The employee must be given written notice of the pre-disciplinary conference, which should include time, location, the type of disciplinary action being considered, and a brief statement of the acts or failures that led to the conference. Only the supervisor, other management representative (if needed), and the employee would normally attend the conference, although at the option of management, security personnel may attend. The employee should receive as much advance notice of the conference as is practical under the circumstances.

During the conference, the employee will be given oral or written notice of the reasons for the recommended disciplinary action. The employee will be given an opportunity to respond with information on the proposed disciplinary action and offer facts that are different from those offered by management. The employee does not have the right to have witnesses or legal counsel present at the pre-disciplinary conference.

After the conference, management shall review and consider the response of the employee and make a decision on the type of discipline, if any, which will be imposed. If a decision is made to follow through with the discipline (dismissal, disciplinary suspension without pay, or demotion), this decision shall be outlined in a letter to the employee. Appeal rights of the employee will be included in the notification letter to the employee. The employee may submit a written memo “to the file,” which outlines his/her views or facts about the issue. This should be submitted to Human Resources, and will be kept in the employee’s file with the disciplinary documentation.

Disciplinary suspensions without pay for unacceptable personal conduct or unsatisfactory job performance may be grieved under the UNCP Grievance Procedures by employees who have achieved career status, as defined on page 1 of these procedures, and further, have appeal rights to the State Personnel Commission.

FILING A GRIEVANCE

a) Employees shall be allowed time off from regular duties as may be necessary and reasonable up to a maximum of eight hours for the preparation of the internal grievance without loss of pay, vacation leave or other time credits. Employees must notify their supervisor in writing at least five days in advance of the absence and receive prior approval of the necessity to be absent from work for preparation of the internal grievance.

b) Upon request, the employee’s supervisor shall grant time off for participation as a party in a contested case hearing and other administrative proceedings outside the University in connection with employment, without loss of pay, vacation leave or other time credits. The employee must request the leave in writing to the appropriate supervisor at least five days in advance of the proceeding. Approval is required and employees must document the time needed for this purpose.

c) The Human Resources Director is designated to provide assistance to the employee, schedule hearings and provide consultation to the employee and to management on personnel issues. Employees may request assistance from the Human Resources Director in preparing a written summary of the facts regarding the grievance. At no time does the Human Resources Director advocate for the employee or for management.

d) Neither the University nor the employee shall be represented by any outside parties (e.g. legal counsel, etc.) During the internal grievance procedure.

e) If any deadline falls on a non-workday or any University approved holiday, the deadline shall be extended until the next business day.

f) An employee may access the personnel file by contacting the Human Resources Office. (Employees may examine any information in their personnel file except pre-employment letters of reference and information about a mental or physical disability a prudent doctor would not share.)

g) Any contested case not satisfactorily resolved by the internal grievance procedure may be appealed to the State Personnel Commission. This procedure is explained in the “Appeal to the State Personnel Commission” section.

h) Any change(s) made to the University Grievance Procedures shall be communicated to all employees 30 days in advance of the effective date of the change(s).

PROCEDURE

STEP 1. Discussion between Employee and Immediate Supervisor or the Appropriate Supervisor

The employee must first discuss the grievance with his/her immediate supervisor. The employee must discuss or present in written form:

a) the act or acts being challenged
b) the basis for the grievance
c) the result or outcome requested

The discussion must occur within fifteen calendar days of the origination of the circumstances leading to the specific grievance. Before answering the grievance, the supervisor may call higher-level supervisors into the discussion only if the employee agrees. If the employee’s immediate supervisor does not have the decision-making authority to resolve the grievance, the grievance will be referred to the next level supervisor with administrative authority within 48 hours, and the employee will be notified that the grievance has been forwarded. The employee shall receive a written response from the supervisor within five working days from the date the employee filed the original grievance.

If the employee and supervisor cannot reach agreement, the employee shall orally request or submit a written request to the Human Resources Director asking to move the grievance to Step 2 (see below). This must occur within five working days following the date of the supervisor response.

STEP 2. Discussion between Employee and Higher Level Supervisor

If the decision rendered in Step 1 is not satisfactory to the employee or if a response is not received within five working days, the employee may request the appropriate department head to consider the matter. The request must be presented within five working days within the receipt of the Step 1 decision. Such request shall be in writing to include the nature of the problem or grievance and the redress sought. The department head shall provide the employee a written decision within five working days after receiving the request or will advise the employee as to the conditions preventing such a response and when a decision may be expected.

STEP 3. Appeal to the Grievance Committee

If the discussions and subsequent decision of the supervisor in Step 2 are not satisfactory to the employee or if the employee fails to receive a response within the designated time frame, the employee may request a hearing before the grievance committee. The request shall be made in writing to the UNCP Human Resources Director and must be presented within three working days following the date the written decision was received or should have been received in Step 2.

The appeal to the Grievance Committee must include:

a) a description of the alleged discrimination, incident or circumstances surrounding the grievance, including the date, time, location of the incident or acts of discrimination or harassment, and the identity of the person against whom the complaint is lodged.

b) outcome sought by the employee

c) the dates discussions were held at Step 1 and Step 2, the names of the supervisors who were involved in Step 1 and Step 2, the results of those discussions, and a statement as to why the grievant was dissatisfied with the outcome.

d) the signature and date of the aggrieved employee.

The Human Resources Director will notify the Committee of the pending grievance and arrange a time and place to hear the grievance. The Human Resources Director will select Committee members and a Chair based on where the grievance originates. Employees who work in the unit where the grievance originates are generally not selected to serve on the committee for that particular grievance. The employee will be notified of the time, place and members who will serve on the Committee within five working days of the date the request is received by the Human Resources Director. The employee will also be notified that he/she may bring any supporting documentation and witnesses for support, and that he/she has the option of removing two of the committee members. The Human Resources Director must be notified, in writing, of which two members the employee desires removed within three workdays after receiving the letter. The Human Resources Director will appoint two replacements. The employee may not remove replacements.

Upon receipt of the grievance, the Committee will initiate an investigation of the alleged act. The Committee’s responsibilities are (1) to conduct an objective, thorough, and timely investigation, which may include requests for information and participation from all parties deemed relevant to the grievance; (2) make a determination as to what happened in the particular incident(s); (3) review relevant policies, procedures and practices for application and consistency; and (4) provide a recommendation of findings and/or proposed correction(s) to the Chancellor.

The Committee, during its investigation, will notify the employee against whom the grievance has been filed, of the specific nature of the grievance and any particular incident described in the original complaint. The accused employee will be given the opportunity to respond to these charges (in writing or in person) before the Committee. The committee may interview other individuals deemed relevant to the grievance; however, the Committee will maintain confidentiality of witnesses and testimony. If, during the course of the investigation, other incidents are revealed through testimony of witnesses, the employee against whom the grievance has been filed and/or the grieving party shall be given the opportunity to respond to the incidents.
The Committee, after careful consideration, shall reach a determination and shall provide a written recommendation to the Chancellor. Barring unusual circumstances, the Committee will strive to reach a resolution within a 90 day period of the time the grievance is referred to the Committee for issues relating to dismissal or demotion; within 60 days for all alleged illegal workplace harassment issues; and within a 120 day period for all other issues.

STEP 4. Final Decision

The Chancellor, following receipt and a review of the Committee’s recommendation, will make the final decision. The employee shall be provided the Chancellor’s decision within ten working days from the date the Chancellor receives the written summary from the Committee. The final decision will include a statement of any applicable appeal rights and advise the grievant that an appeal to the State Personnel Commission must be filed with the Office of Administrative Hearings within 30 days of receipt of the final agency decision. This time limit may be extended with written consent of the employee.

STEP 5. Appeal to the State Personnel Commission

Any career state employee, who otherwise has standing to appeal to the State Personnel Commission, who is not satisfied with the final agency decision has 30 calendar days from receipt of the final agency decision to file an appeal to the State Personnel Commission. Such appeal is made by filing a petition for contested case hearing with the:

Office of Administrative Hearings
6714 Mail Service Center
Raleigh, North Carolina 27699-6714
(919) 733-2698

Exceptions:

Grievances in which the Chancellor is a first or second step supervisor will bypass either Step 1 and/or 2 (as appropriate). In these circumstances, the Committee will provide its recommendation to the UNCP Board of Trustees’ Executive Committee. This committee will render UNCP’s final agency decision and communicate this decision, in writing, to the respective parties.

Grievances filed as a result of unlawful workplace harassment shall have the right to bypass any step in these procedures involving discussions with or review by the alleged harasser. Allegations of unlawful workplace harassment may be filed, in writing, within 30 days of the alleged incident, and will be resolved within 60 days of the date of the incident, according to the UNCP Policy on unlawful Workplace Harassment.

PROCEDURES FOR GRIEVANCES ALLEGING DISCRIMINATION

State employees who believe they have been treated unfairly or inequitably in situations related to their employment may file a grievance by following any of the three courses of action outlined below. The grievance must be filed in a time frame as specified by the agency to which it is submitted.

Courses of Action:

a) Within 15 calendar days of the act or omission that is the basis for the grievance, an applicant or employee may appeal through the UNCP Grievance Committee.

b) Within 30 calendar days of the act or omission that is the basis for the grievance, an applicant or employee may appeal directly to the State Personnel Commission.

c) An applicant or employee may appeal directly to the Federal Equal Employment Opportunity Commission.
Equal Employment Opportunity Commission (EEOC)
1801 L Street, NW
Washington, DC 20507
1-800-669-EEOC


Employees who file grievances alleging discrimination due to age, gender, race, color, creed, national origin, political affiliation or disability as defined by federal legislation may elect Course of Action A, Course of Action B, or Course of Action C.

Any employee who alleges unlawful workplace harassment and elects to utilize the University grievance procedure shall have the right to bypass any step in the University grievance procedure involving discussions with or review by the alleged harasser. If the employee elects to bypass the alleged harasser, the employee should go to the next higher supervisory level and follow the steps outlined in the University Grievance Procedure.

UNIVERSITY RESPONSIBILITIES


In January of each even-numbered year, the University shall:

a) file its Grievance Procedure with the Office of State Personnel;

b) file for approval by the State Personnel Commission any modification(s) to the University Grievance Procedure prior to the procedure becoming effective;

c) submit a certified statement that no changes have been made to the Grievance Procedure since the last submission, if such is the case;

d) include in the Grievance Procedure the effective date of the procedure and the effective date of any changes in the procedure;

e) continuously evaluate the Grievance Procedure’s effectiveness in achieving the University’s goals through feedback received from grievant, supervisors, grievance Committee and the Office of State Personnel;

f) compile information on employee grievances semi-annually and as otherwise requested by the Office of State Personnel.

COMMUNICATION OF GRIEVANCE POLICY TO CAMPUS

This policy will be on file in the Human Resources Office and will be made available to any person upon request. A copy of the policy will be on file in the Human Resources Policies and Procedures Manual and will be available on the Business Affairs web page under Human Resources Policies. Each new employee will be advised of the existence of the policy in the new employee orientation.