1. WHAT IS A GRIEVANCE?

Commonly Labor Agreements include a specialized definition of a grievance which is essentially the enforcement provision of the contract. Article XXIV of the UHPA/UH-BOR Agreement defines a grievance broadly as "a complaint by a Faculty Member or the Union concerning the interpretation and application of the express terms of this Agreement." In general, then, it can be said that a grievance is a formal complaint against the University Administration (not another member of the faculty, or other individual personally) which alleges an adverse effect upon the grievant by an interpretation or application of a term or condition of the collective bargaining agreement (contract). The three question test:

1. Is the action a violation, misinterpretation or misapplication of the contract?
2. Is the action a violation of Board of Regents rules or policies, or past practice?
3. Is the action a violation of a Faculty Member's right or benefit which the union may want to document for future negotiations?

The best rule is: When in doubt, file in a timely manner to preserve your rights to process the grievance to the higher steps. A grievance, once filed, may be withdrawn at any time, but if it is filed too late, there may be no way to redress the aggrieved action or condition.

The Union may now bring forth a class action grievance when there is disagreement over the general meaning of contract language, without identifying specific individuals that have been affected by such interpretations.


2. WHAT IS THE TIME LIMIT FOR FILING A GRIEVANCE?

Article XXIV of the UHPA/BOR Agreement provides that grievances must be filed in writing with the appropriate Chancellor within twenty (20) calendar days [or forty-five (45) calendar days in the case of class action grievances] of the date following the alleged violation.  The time lines may be extended, due to voluntary mediation, semester breaks, and other unforeseen reasons, by the agreement of both parties.


3.  HOW DO WE KNOW IF A GRIEVANCE HAS MERIT?

The Union has a strict, legal obligation to fairly represent all members of the bargaining unit and to pursue meritorious grievances to the best of its ability. Of course "merit" can often mean one thing to the grievant and another in the eyes of an arbitrator, the labor board, and the courts. When initially deciding to file a grievance, consider the three questions above, but once a grievance has been filed, the union's decision to move the grievance to a higher step or to arbitration must be made by the union based on an assessment of its legal merits.  In this regard, a grievance has merit if: 1) it is grounded in a contractual right; 2) there is enough evidence or proof available; and 3) it has been properly filed in a timely manner.


4.  ARE CONTRACT NON-RENEWAL OR TENURE DENIAL DECISIONS 
    GRIEVABLE?

The UHPA Contract with the University covers these situations in two separate articles:

TENURE.Article XII, section G, regarding "Negative Tenure Actions" provides:
If the Faculty Member believes that this Agreement or the supplemental guidelines and procedures established or approved by the Employer have been violated or misapplied and that such violation or misapplication has adversely prejudiced the application, the Faculty Member may make a written statement to the Union, which specifies the nature of the violation or misapplication, and may request that an appeal of the negative tenure decision be initiated.
As in the case of a request for arbitration of a grievance, the UHPA Grievance Committee shall meet and consider the Faculty Member's request for a Hearing Officer at its regular pre-Board meeting and transmit to the UHPA Board any recommendation for approval of such a request.

CONTRACT RENEWAL. The rights of untenured Faculty to contract renewal during their probationary periods are extremely limited. The faculty Member may within twenty (20) day request a meeting with the Chancellor, Dean or appropriate official and, upon written request, receive notice of the reasons for non-reappointment, but Article XII, section D, clearly provides:  "Since the probationer does not have a claim to the position and the Employer may exercise its prerogative on non-reappointment, the requested statement of reasons, the decision of the employer, and the provisions of this Article, with the exception of Paragraph D Procedures, shall not be subject to the grievance procedure. "
The Grievance Committee, therefore, will only consider grievance allegations based on the Article XXIV, C procedures, and will not consider a substantive challenge [with the exception of such discrimination as is prohibited by Article II], no matter how valid, to the reasons the employer is required to provide for non renewal of a probationary contract.


5.  WHAT IS ARBITRATION?

It is a proceeding outside of a court of law in which an impartial third party, called an Arbitrator or Umpire, is paid by the union and the employer to hear both sides of a labor dispute and render a decision.

Grievance arbitration, also known as "rights arbitration," is different from "interest arbitration" in which the neutral arbitrator is resolving an impasse in bargaining. The authority in "rights arbitration" is derived only from the "four walls" of the contract. A rights arbitrator, therefore, cannot hear cases on subjects not permitted by the existing Contract.  Nor may a rights arbitrator's award change or modify the terms of the Agreement; he or she may only determine if the contract has been violated or misinterpreted, and decide whether or not a reasonable remedy should be granted


6.  PERFORMANCE JUDGES.
 
Pursuant to changes in the law, the parties have defined the role of Performance Judges (as opposed to arbitrators) with respect to terminations based on the alleged lack of substantive performance by a faculty member in the carrying out of his/her professional duties.  The parties have limited the use of Performance Judges, and in all other matters of discipline and discharge, such cases will go to Arbitrators.


7.  WHAT IS THE ROLE OF THE GRIEVANCE COMMITTEE?

UHPA By-laws establish the two major responsibilities of the Grievance Committee:

--to make recommendations to the Board regarding final disposition of formal grievances where arbitration is requested and staff have recommended not to arbitrate;
--to make recommendations to the Board regarding appeals of negative tenure actions where hearing officer review is requested (revised 9/1/06); and
--to review contract provisions for changes to be recommended to the Collective Bargaining Committee.
 
The Board adopted standing rules for the Grievance Committee which also charge the Committee with hearing and making recommendations for approval of requests for Hearing Officers in Tenure Denial cases appealed under Article XII.
 
In grievance cases, the jurisdiction of the Committee is limited to "hearing the allegation presented by the grievant that a contract provision has been violated, examining the evidence he or she has submitted along with any evidence obtained by staff, and determining whether there is sufficient cause for recommending that the [UHPA] Board approve arbitration."


8. WHAT IF THE GRIEVANCE COMMITTEE DOES NOT RECOMMEND APPROVAL?

The Grievance Committee meets the week before each [UHPA] Board meeting when there are cases pending. The Committee only reports to the Board its recommendations for approval to arbitration.

Cases which the Grievance Committee do not recommend for Board approval are not taken to the Board by the Committee. A grievant, whose case is not recommended, however, has the right to submit an appeal directly to the Board by addressing a letter of appeal to the President. Such a letter must contain a clear explanation of the alleged contract violation, the evidence supporting the allegation and address whatever concerns the Grievance Committee or the staff may have expressed.

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Editor's note: the original document entitled, "Grievance Committee FAQs" was prepared for the UHPA Grievance Committee by Dr. William J. Puette, Chairman; this edited version was prepared by James D. Kardash with minor changes to specifically focus upon faculty grievances.