CWA 1104/GSEU/ContractIndex/Article 16: Grievance and Arbitration Procedure
From CGEU
16.1 The purpose of this Article is to provide a prompt and efficient procedure for the investigation and resolution of grievances. The procedures of this Article shall constitute the exclusive forum in which employees may seek redress for an employment related grievance. These procedures shall not apply to any actions taken by the employer regarding academic matters. A grievance shall be defined as a dispute concerning the following:
- 1. Determination of eligibility for the general salary increase, referred to in Article 5.
- 2. Failure to provide the minimum stipend for employees on full assistantships at University Center campuses, referred to in Article 5.
- 3. Determination of eligibility for health benefits, referred to in Article 6.
- 4. Imposition of a charge for parking facilities presently provided without charge, or an increase or decrease of an existing charge for parking facilities presently provided, without negotiations, as referred to in Article 7.
- 5. Failure to reimburse an employee for job-related expenses approved in advance in writing by the department chair, as referred to in Article 8.
- 6. Failure to reimburse an employee approved in advance in writing by the department chair to be in travel status, for travel expenses at the rates referred to in Article 9, in accordance with the Rules and Regulations of the Comptroller.
- 7. Failure to exclude the time spent on a leave approved pursuant to Article 12.1 in calculating the total number of semesters for which an employee is eligible to be considered for employment within the bargaining unit.
8.
Failure to permit posting of appropriate notices on bulletin boards in accordance with the provisions of Article 14. 9.
Failure to follow the procedural steps for approval of employee requests for leave for personal illness, as referred to in Article 18.1. 10.
Failure to grant an employee a holiday leave with pay, as referred to in Article 18.2. 11.
Failure to issue letter of notification containing the requisite information, as referred to in Article 20. 12.
Failure to post a list of department/work areas that employed TA/GAs in the previous year, as referred to in Article 21.1. 13.
Failure to post a list of vacancies assigned to nonacademic department work areas, as referred to in Article 21.3. 14.
Failure to follow the procedural steps of a written evaluation policy, referred to in Article 22. 15.
Failure to keep employees' personnel files at a centrally designated location on campus, as referred to in Article 23. 16.
Failure to include a copy of a document in the employee's personnel file required to be so included under the provisions of Article 23. 17.
Failure to allow an employee, on request, to review the employee's personnel file during normal business hours under the provisions of Article 23. 18.
Failure to make copies of materials in the employee's personnel file available to the employee upon request and at the employee's expense under the provisions of Article 23. 19.
Failure to attach a written response received from an employee to a supervisory evaluation in the employee's personnel file under the provisions of Article 23. 20.
Failure to provide GSEU, no later than November 15 of each year, with a list of employees that includes the information specified in Article 26.2.
16.2 Within 30 calendar days following the act or omission giving rise to the grievance, or within 30 calendar days of the date on which the employee first knew or reasonably should have known of such act or omission, whichever date is later, the employee and GSEU shall request in writing a meeting with the department or division chairperson, Dean or other appropriate administrator for the purpose of resolving the grievance informally. The request for a meeting shall contain a short, plain statement of the grievance. The employee may be accompanied to such meeting by a designated GSEU representative. The meeting shall occur within 15 calendar days of receipt by such administrator of the employee's and GSEU's written request to schedule such meeting.
16.3 If the grievance is not resolved pursuant to the informal meeting described above, and further review is sought by the employee and GSEU, it shall be filed with the campus President or designee pursuant to the following procedures within 15 calendar days of the conclusion of the above meeting or within 15 calendar days of the last date the meeting should have occurred pursuant to Article16.2.
1.
Requirements for Filing a Grievance
1.
A grievance must be submitted on forms to be provided by the State.
2.
Each grievance shall identify which of the specific provisions of the Agreement listed under Article 16.1 are claimed to have been violated and shall contain a short, plain statement of the grievance, the facts surrounding it and the remedy sought. The employee and GSEU shall also identify the administrator with whom the matter was informally addressed pursuant to Article 16.2. A copy of the written request for a meeting submitted to that administrator shall be filed with the grievance form.
3.
No grievance shall be scheduled for review until all the information required by the grievance form or otherwise required by the grievance steps of this Article has been provided.
16.4 The campus President or designee shall issue a written response to the employee and GSEU within 15 calendar days after receipt of the grievance unless the grievance contains a request for a meeting with the campus President or designee. If such a meeting has been requested by the employee and GSEU, the campus President or designee shall contact the employee and GSEU within 10 calendar days after receipt of the grievance for purposes of scheduling such meeting. The campus President or designee shall issue a written response to the employee and GSEU within 15 calendar days after completion of the meeting.
16.5 GSEU, upon the employee's request, may file an appeal of the final written determination of the campus President or designee with the Chancellor or designee.
1.
Requirements for Filing an Appeal to the Chancellor or Designee
1.
Within 15 calendar days of the GSEU's receipt of the final written determination of the campus President or designee, a grievance appeal may be filed with the Chancellor or designee.
2.
Such appeal shall be in writing and shall include a copy of the grievance filed with the campus President or designee, a copy of the written request for a meeting with the local administrator, a copy of the final written determination of the campus President or designee, and a short plain statement of the reasons for disagreement with the determination of the campus President or designee.
3.
A copy of the appeal shall beoo sent simultaneously to the campus President or designee.
4.
No grievance appeal shall be scheduled for review unless all the information required by the grievance form or otherwise required by the grievance steps of this Article has been provided. 2.
Optional Filing with Chancellor or Designee for Multi-Campus Grievance:
A grievance involving employees at more than one campus may be filed by the Executive Vice President or designee of GSEU, on behalf of the affected employees, directly with the Chancellor or designee. In such case, GSEU shall be deemed the grievant. Such grievance must be submitted on forms to be provided by the State. The grievance must identify which of the specific provisions of the Agreement listed under Article 16.1 are claimed to have been violated and shall contain a short, plain statement of the grievance, the facts surrounding it, including each affected employee and his/her work location, and the remedy sought. Failure to specify each affected employee in the grievance when filed shall constitute a jurisdictional bar to provide a remedy for those employees not listed. The time limit for filing such grievance, as applicable to employees at each campus alleged to be involved, shall be determined on an individual campus basis. Such filing must occur within 45 calendar days following the act or omission giving rise to the grievance at that Campus, or within 45 calendar days of the date on which an affected employee at that campus first knew or reasonably should have known of such act or omission, whichever is later.
16.6 The Chancellor or designee shall issue a written response to GSEU within 30 calendar days after receipt of the grievance unless the grievance contains a request for a meeting with the Chancellor's designee. If such a meeting has been requested by GSEU, the Chancellor's designee shall contact the GSEU within 10 calendar days after receipt of the grievance for purposes of scheduling such meeting. The Chancellor or designee shall issue a written response to the grievance within 30 calendar days after completion of the meeting. Such meeting shall be held in Albany.
16.7 If the written response by the Chancellor or designee does not resolve the grievance, GSEU through its Executive Vice President or designee, may appeal the response by filing an appeal with the Director of the Governor's Office of Employee Relations or designee within 10 calendar days after receipt of the written response of the Chancellor or designee.
1.
Requirements for filing an appeal to the Governor's Office of Employee Relations.
1.
Such appeal shall be in writing and shall include a copy of the grievance filed with the campus President or designee, a copy of the written appeal and all attachments filed with the Chancellor or designee, a copy of the written response of the Chancellor or designee, and a short plain statement of the reasons for disagreement with such response.
2.
A copy of the appeal shall be sent simultaneously to the campus President or designee and the Chancellor or designee.
3.
No grievance appeal shall be reviewed unless all the information required by the grievance form or otherwise required by the grievance steps of this Article has been provided.
16.8 The Director of the Governor's Office of Employee Relations or designee shall issue a written response to GSEU within 30 calendar days after receipt of the appeal.
16.9 If the response by the Governor's Office of Employee Relations does not resolve the grievance, GSEU may proceed to arbitration by filing written notice of intent to proceed to arbitration with the Director of the Governor's Office of Employee Relations' designee within 20 calendar days after receipt of its response. A copy of such written notice shall be sent simultaneously to the campus President or designee and the Chancellor's designee. Notices of intent to proceed to arbitration must include a proposed statement of the issue to be decided.
1.
Procedures Applicable to Arbitration
1.
Selection of Arbitrators
The Governor's Office of Employee Relations and GSEU shall jointly agree as soon as feasible after the execution of this Agreement on a panel of at least five contract arbitrators. Each member of the panel shall be assigned a number in rotation and shall be appointed in the order established after the assignment of such members. The Governor's Office of Employee Relations agrees to take the necessary steps to administer the panel including, but not limited to, identifying arbitrators' availability, notifying them of their appointment, and assisting in arranging for hearing rooms.
2.
Authority of the Arbitrator
The arbitrator shall be confined to the precise issue submitted by the parties for arbitration and shall have no authority to determine any other issue. The issues which may be submitted to arbitration are limited to those specifically identified in Article 16.1 of the Agreement. The arbitrator shall neither add to, subtract from, nor modify the terms or provisions of this Agreement. The arbitrator shall confine the decision and award solely to the application and/or interpretation of this Agreement. Where provisions of this Agreement call for the exercise of judgment, the arbitrator shall not substitute the arbitrator's judgment for that of the official making such judgment.
3.
Remedy
The sole remedy for each of the issues that may be submitted to arbitration in accord with Article 16.9(a)(2) of the Agreement is as follows:
1.
Where the arbitrator finds that there has been an incorrect determination as to an employee's eligibility for a general salary increase, referred to in Article 5, the remedy shall be to direct the implementation of the general salary increase for such employee effective the date the employee would have been eligible for such increase. Retroactivity, however, shall be limited to 30 calendar days prior to the date of filing the grievance.
2.
Where the arbitrator finds that there has been a failure to provide the minimum stipend for an employee on full assistantship at a University Center campus as referred to in Article 5, the remedy shall be to direct the implementation of the minimum stipend for such employee effective the date the employee would have been eligible for such stipend. Retroactivity, however, shall be limited to 30 calendar days prior to the date of filing the grievance.
3.
Where the arbitrator finds that there has been an incorrect determination as to an employee's eligibility for health benefits, referred to in Article 6, the remedy shall be to direct the implementation of health benefits for such employee effective the date the employee would have been eligible for such health benefits. Retroactivity, however, shall be limited to 30 calendar days prior to the date of filing the grievance.
4.
Where the arbitrator finds that there has been a charge imposed for parking facilities presently provided without charge, or an increase or decrease of an existing charge for parking facilities presently provided, without negotiations as referred to in Article 7, the remedy shall be to direct negotiations with respect to such parking fee or charge, and return of charges collected, where appropriate.
5.
Where the arbitrator finds that there has been a failure to reimburse an employee for job-related expenses approved in advance in writing by the department chair, as referred to in Article 8, the remedy shall be to direct reimbursement.
6.
Where the arbitrator finds that there has been a failure to reimburse an employee approved in advance in writing by the department chair to be in travel status, for travel expenses at the rates referred to in Article 9, the remedy shall be to direct reimbursement in accordance with the Rules and Regulations of the Comptroller.
7.
Where the arbitrator finds that there has been a failure to exclude the time spent on a leave approved pursuant to Article 12.1 in calculating the total number of semesters for which an employee is eligible to be considered for employment within the bargaining unit, the remedy shall be to direct that such time be excluded in determining such eligibility.
8.
Where the arbitrator finds that there has been a failure to permit posting of appropriate notices on bulletin boards in accordance with the provisions of Article 14, the remedy shall be to direct the posting of such materials.
9.
Where the arbitrator finds that there has been a failure to follow the procedural steps for approval of employee requests for leave for personal illness, as referred to in Article 18.1, the remedy shall be to direct that the procedural steps be followed.
10.
Where the arbitrator finds that there has been a failure to pay an employee for a holiday, as referred to in Article 18.2, the remedy shall be to direct that such employee be paid for the holiday.
11.
Where the arbitrator finds that there has been a failure to issue a letter of notification containing the requisite information, referred to in Article 20, the remedy shall be to direct the issuance of such letter.
12.
Where the arbitrator determines that there has been a failure to post a list of departments/work areas that employ TA/GAs in the previous year, as referred to in Article 21.1, the remedy shall be to direct the posting of such list.
13.
Where the arbitrator determines that there has been a failure to post a list of vacancies assigned to nonacademic department work areas, as referred to in Article 21.3, the remedy shall be to direct the posting of such vacancies immediately if the positions are still available.
14.
Where the arbitrator finds that a department has established a mandatory evaluation procedure but has not conducted an evaluation, referred to in Article 22, the remedy shall be to direct that such evaluation be conducted. No appointment shall be extended by the effect of this provision.
15.
Where the arbitrator finds that there has been a failure to keep employees' personnel files at a centrally designated location on campus, as referred to in Article 23, the remedy shall be to direct such files be kept at a centrally designated location on campus.
16.
Where the arbitrator finds that a document required to be included in the employee's personnel file, referred to in Article 23, has failed to be so included, the remedy shall be to direct that such document be included.
17.
Where the arbitrator finds that there has been a failure to allow an employee, or such employee's representative, on request, to review the employee's personnel file during normal business hours under the provisions of Article 23, the remedy shall be to direct that an opportunity for such review be provided.
18.
Where the arbitrator finds that copies of materials in an employee's personnel file, referred to in Article 23, have not been made available to the employee upon the employee's request, the remedy shall be to direct that such materials be made available at the employee's expense.
19.
Where the arbitrator finds that there has been a failure to attach a written response received from an employee to a supervisory evaluation in the employee's personnel file under the provisions of Article 23, the remedy shall be to direct that any written response be attached to the evaluation.
20.
Where the arbitrator finds that there has been a failure to provide GSEU no later than November 15 and March 15 of each year with a list of employees that includes the information specified in Article 26.2, the remedy shall be to direct that the list be provided.
4.
Arbitrability
In the event a disagreement exists regarding the arbitrability of an issue, the arbitrator shall determine initially whether the issue in dispute is arbitrable under the express terms of this Agreement. At the request of either party, such determination shall be made by a written decision and award. Once the arbitrator has determined that the issue is arbitrable in accordance with provisions of this subdivision, the arbitrator shall proceed to determine the merits of this issue.
5.
Time and Place of Meeting
The arbitrator shall hold the hearing in Albany, unless otherwise agreed to by the parties, within 15 calendar days of the arbitrator's selection or as soon thereafter as is practicable. The arbitrator shall issue a decision and award upon an issue within 30 calendar days of the hearing, unless additional time is agreed to by the parties. Copies of the arbitrator's decision and award shall be sent simultaneously to the Governor's Office of Employee Relations, GSEU, the Chancellor's designee, and the campus President or designee.
6.
Effect of Decision and Award
The decision and award of the arbitrator shall be final and binding upon the State and GSEU to the extent permitted by provisions of this Agreement and applicable Law.
7.
Fees and Expenses All fees and expenses of the arbitrator shall be paid by the losing party. Each party shall be responsible for the cost of preparing and presenting its own case.
16.10 Miscellaneous Provisions
1.
Notwithstanding any other provisions of this Article, neither the employee nor GSEU shall be permitted to allege violations other than those specified in writing on the grievance form filed with the campus President or designee. 2.
All of the time limits contained in this Article may be extended by mutual agreement of the parties. Extensions shall be confirmed in writing by the party requesting the extension. Upon failure of the State or its representatives to provide a response within the time limits provided in this Article, the GSEU may appeal to the next level. Upon failure of the GSEU to file a grievance appeal within the time limits specified in this Article, the grievance shall be deemed to have been withdrawn. 3.
Mailing
1.
All grievances, grievance appeals and responses shall be transmitted by certified or registered mail, return receipt requested, or by personal service on the employee or GSEU, or on the individual responsible for conducting the review. Upon personal service the recipient of such documents, upon request, shall acknowledge, in writing, the receipt thereof. Proof of personal service shall specify the person who was served and the date, place and manner of service.
2.
All time limits set forth in this Article shall be measured from the date of receipt. Where service is by registered or certified mail, the date of receipt shall be that date appearing on the return receipt, provided, however, that the time limits for the submission of a grievance or the filing of an appeal or demand for arbitration or issuance of a response shall be determined from the date of personal service or mailing by certified or registered mail, return receipt requested, as evidenced by the official postmark appearing on the receipt for certified or registered mail.
3.
For the purposes of time limits under this Article, a grievance shall be deemed to have been filed on December 20th if it is in fact received before the close of business on the fifth business day from January 20th. 4.
Precedent
Grievances resolved at any level shall not constitute a precedent in any arbitration proceeding unless agreed to in writing by the Director of the Governor's Office of Employee Relations and GSEU acting through its Executive Vice President.
5.
Retroactivity
A settlement of, or an arbitrator's decision and award upon, a grievance may or may not be retroactive as the equities of each case may demand, but in no case shall such resolution be retroactive to a date earlier than 30 calendar days prior to the date the grievance was first filed with the campus President or designee.
6.
All expenses, other than those referred to in Article 16.9(a)(7) shall be the responsibility of the party incurring such expenses. 7.
Grievants' participation in the grievance process shall not interfere with their scheduled responsibilities. However, where there is a conflict between grievant's campus responsibilities and attendance at the arbitration hearing, grievant's campus responsibilities shall be rescheduled to permit attendance at such arbitration hearing.
16.11 Applicability
This Article shall not apply to any matter which relates to campus by-laws, policies, operating procedures, or any other form of guideline by whatsoever name, whether pertaining to a unit, department, division, school or any other level of organization of a campus and whether appearing in a campus handbook or any other document.
