ARTICLE 29 - GRIEVANCE AND ARBITRATION PROCEDURE
The parties agree that they shall use the procedure set forth in this Article for the resolution of all disputes involving the application of this Agreement, unless such matters have been specifically excluded from these procedures.
Section 1. Definitions.
A. Grievant – shall mean an employee, group of employees, or the Union on behalf of the employee(s), as the case may be, who pursuant to the terms of this Agreement, seeks resolution of a grievance.
B. Grievance – shall mean an allegation by the grievant(s) or the Union that a specific provision or provisions of this Agreement has/have been breached in its application to him/her/them. A grievance shall mean a written statement reciting the event or occurrence on which the grievance is based, including the date when such breach is alleged to have occurred and the specific contractual provisions alleged to have been breached, and shall set forth the remedy requested. All grievances must be filed on the official Grievance Form attached as Appendix H.
C. Day – Except as otherwise provided in this Article, “day” shall mean a calendar day, exclusive of any Saturday, Sunday, holidays enumerated in Article 14 of this Agreement or duly authorized skeleton days.
D. Department Head – for the purpose of this Article, shall mean the person responsible for the department where said violation occurred.
Section 2. General Provisions.
A. All grievances must be filed with the Chief Human Resources Officer of the College.
B. Failure of a grievant to comply with any of the provisions of this Article shall be deemed to be a waiver of his/her right to seek resolution of the grievance
under the terms of this Agreement. In determining whether there has been any such failure to comply with any of the provisions of this Article, time
shall be deemed to be of the essence, and any failure of the grievant to comply with any of the time limits prescribed herein shall be deemed to be
such failure to comply with the provisions of this Article; provided, however, that the time limits prescribed herein may be extended in any specific instance
by mutual written agreement of the parties.
If the Employer exceeds any time limit prescribed at any step in the grievance procedure, the grievant and/or the
Union on behalf of the grievant(s) may assume that the grievance is denied and invoke the next step of the procedure, except, however, that only the
Union may request impartial arbitration under Step V. In the event the Union or any employee elects to pursue any matter covered by this Agreement in
any other forum the Employer shall have no obligation to process or continue to process any grievance or arbitration proceedings pursuant to this Article or
Article 28 herein, except that a matter involving a claim of anti-union animus may be concurrently processed at the Massachusetts Labor
Relations Commission without negative effect on a grievance involving the same matter.
C. Any member of the unit may initiate and pursue a grievance through the steps of the grievance procedure without intervention by any agent of the exclusive representative; provided, however, that the Union representative and/or Steward, whichever is appropriate, shall be notified of grievances filed by an employee on his/her own behalf and shall be afforded the opportunity to be present at any step of the grievance procedure and that any adjustment made shall not be inconsistent with the terms of this Agreement. Any employee may request that the Union represent him/her at any Step of the grievance procedure. No other representation shall be permitted. The Union shall notify the Department Head, the Chief Human Resources Officer, the CEO and the Chancellor, as the case may require, of the name and the business address of such Union representative at the time he/she is so authorized to represent the grievant. Reasonable substitution of Union representation is not to be considered a breach of this notice requirement.
D. No individual may serve as the designee of the Chief Executive Officer of the Campus at Step III of the grievance procedure if such individual served as the Chief Human Resources Officer at Step II of said grievance procedure.
E. A grievance may be withdrawn at any level.
F. No reprisals of any kind shall be taken by either party to this Agreement against any unit member(s) initiating or participating in grievance.
G. The Board shall establish a fund to be used to pay for costs associated with the administration and implementation of the mediation and dispute resolution process described in the Subsection E of Section 3 of this Article.
The employer shall provide to the Fund thirteen dollars ($13) per full-time equivalent employee on the payroll as of each July 1.
Section 3. Procedures for the Filing of a Grievance.
A. Initial Filing:
A grievant shall institute the grievance procedure of this Article by filing with his/her Chief Human Resources Officer during the term of this Agreement a written notice that a grievance exists. Such notice must be filed on the grievance form attached as Appendix H. No such notice may be filed more than ten (10) days from the date of the occurrence of the event or the date on which the unit member had reasonable knowledge of the event or conditions upon which the grievance is based.
Within three (3) days after receipt of the grievance, the Chief Human Resources Officer shall decide whether to accept said grievance at Step II of the grievance procedure or to remand the grievance to the Step I.
If the Chief Human Resources Officer decides to remand the grievance to Step I of the grievance procedure, then, within two (2) days after the conclusion of the three-day decision period, the Chief Human Resources Officer shall notify the Department Head and the grievant of his/her decision to remand the grievance and shall transmit to the Department Head the grievance form and any other materials related to the grievance.
Notwithstanding the above, any grievance concerning the termination of the employment of a unit member shall be forwarded to Step III. In addition, unless mutually agreed otherwise, the Union may initiate arbitration of all termination cases which have been filed at Step IV and which have not been heard or scheduled within a ninety (90) day time frame from date filed.
B. Step I: Department Head (remand only)
If a grievance is remanded to Step I of the grievance procedure by the Chief Human Resources Officer, then, within five (5) days after receipt by the Department Head, said Department Head shall meet with the grievant and attempt to resolve the grievance. If, after such meeting, the grievant and Department Head fail to agree upon a resolution of the grievance, the Department Head shall render a written decision within ten days of the said meeting.
C. Step II: Chief Human Resources Officer
Within five (5) days after the expiration of the final time period provided for in Step I, a grievant may elect to proceed to Step II of the grievance procedure.
Within five (5)days of either the decision of the Chief Human Resources Officer to retain jurisdiction of a grievance originally filed with said Chief Human Resources Officer, or receipt of a Step II grievance, he/she shall arrange to meet with the grievant.
If the grievance is not resolved as a result of such meeting, then within ten (10) days of said meeting the Chief Human Resources Officer shall respond in writing.
Said response shall include whether the grievance alleges that a specific provision of the Agreement has been breached, whether the grievance has been filed in a timely manner; and, whether the Agreement has been breached in application to the grievant.
D. Step III: Chief Executive Officer of the Campus or Designee.
If the grievant elects to proceed to this Step, then within seven (7) days of receipt of the Step II decision, he/she shall send a notice of his/her appeal to the CEO. The CEO shall meet or arrange to meet within (5) days with the grievant for review of the grievance (such arranged date not to delay the meeting more than fourteen (14) days) and shall render a written decision within ten (10) days of the date of the meeting. Although new violations may be identified at this level, no further issues or contract violations may be added subsequent to the close of the hearing at Step III.
E. Step IV. Chancellor of the Board of Higher Education.
If the grievant elects to proceed to this Step, then within ten (10) days of receipt of the Step III decision he/she shall send notice of his/her election to proceed to Step IV to the Chancellor or his designee, a copy of which shall be sent to the CEO of the College.
The Chancellor shall refer all such Step IV grievances received to the Board of Higher Education Grievance Review Committee (hereinafter The Review Committee). The Review Committee shall be comprised of five (5) members as follows: one member, who shall be the Chairperson of the Committee, shall be from the staff of the Board of Higher Education and shall be appointed by the Chancellor; one member shall be an excluded administrator from the Community Colleges who shall be appointed by the Chancellor; one member shall be an excluded administrator from the State Colleges who shall be appointed by the Chancellor; one member shall be from the staff of A.F.S.C.M.E., appointed by the Union; and, one member shall be a Union official appointed by the Union. Members of the Review Committee shall not have fixed terms and shall serve at the pleasure of the Chancellor or the Union, respectively.
The Review Committee shall be convened by the Chairperson and meet every other month, unless the members of the Review Committee mutually agree to meet more frequently. The Chairperson of the Review Committee shall determine the location and both the starting and ending time of all such meetings.
The Chairperson of the Review Committee shall acknowledge receipt of all Step IV grievances filed with the Chancellor and shall notify the CEO of the College that a Step IV grievance has been filed. Upon such notification, the CEO of the College shall forward a complete copy of the grievance record to the Chancellor. A notice of the date and time upon which a grievance will be reviewed by the Review Committee shall be sent in writing to the grievant or his/her representative and to the College at least twenty-one (21) days prior to the scheduled date of any such review.
If the grievant chooses to appear before the Review Committee, the grievant may be accompanied by one other individual whose presence is necessary to present the grievance or by a Union representative. If the grievant chooses not to appear before the Review Committee, the grievant must so notify the Chairperson of the Review Committee in writing at least ten (10) days prior to the scheduled date of such grievance review. Failure to notify the Chairperson in writing and timely shall be grounds for dismissal/denial of the grievance.
In the event that either the grievant and/or his/her representative(s) or the College and/or its representative(s) fails to appear before or cooperate with the Review Committee in the matter of any grievance before it, said Review Committee shall have the authority to resolve any such grievance. Such authority is limited only to the extent that it has been specifically granted by law to either the College or the Board.
Subsequent to review of the grievance with the grievant and the College, the Review Committee shall meet to discuss the merits of the grievance. Unless otherwise stated the Review Committee shall complete their review of the merits of the grievance and make determinations regarding the grievance on the day upon which the Review Committee reviews the grievance with the grievant and the College.
With the exception of the following, the Review Committee shall not be required to render, and shall not normally render, a written decision upon any grievance reviewed, except however that the Committee may render a written decision if it is necessary to do so.
If the Board if Higher Education Grievance Review Committee is unable to assist the parties in resolving the grievance before it, the Review Committee may, by vote of at least four (4) Review Committee members in favor, and not more than one (1) Review Committee member against, reduce to writing the position of the Review Committee on such grievance and recommendation of the Review Committee regarding the resolution of said grievance. If so, each party to the Agreement, or the parties acting jointly, will be required to submit to the Arbitrator at Step V Arbitration, the position of the Review Committee regarding such grievance.
In the event that the Review Committee is unanimous in its decision (all five (5) members of the Review Committee in full agreement), then, with the exception of terminations and suspension over five (5) days, the Review Committee shall have the same authority to resolve the grievance as an arbitrator at Step V—Arbitration of the grievance procedure. In such instances, the decision of the Review Committee shall be final and binding on all parties to the arbitration proceeding and shall be enforceable in any court of competent jurisdiction. In all such instances, the Review Arbitrator at paragraph 6, of subsection F, of Section 3, of Article 29.
If appropriate, for a period of fifteen (15) days subsequent to the review by the Review Committee, efforts shall be made to resolve the grievance.
F. Step V. Arbitration.
Within twenty (20) days after the fifteen (15) day period for resolving the grievance at Step IV, arbitration of a grievance may be initiated subject to and in accordance with the following provisions:
1. The Union shall have the exclusive right to initiate arbitration of a grievance, the resolution of which heretofore has been sought by a member or members of the bargaining unit. If multiple members have filed non-selection grievances for the same position, the Union agrees to forward only one grievance to arbitration. The decision or award of the arbitrator shall be final and binding upon the Union, the grievant(s) and the Board in accordance with the applicable provisions of state law.
2. The Union may initiate arbitration of a grievance only if the resolution of the grievance has been sought through all applicable steps of the Grievance Procedure and only if submission of the grievance to arbitration has been duly authorized by the Union. The Union shall give written notice to the Chancellor and CEO that it intends to submit a grievance to arbitration.
3. The Union and the Employer and/or College shall select an arbitrator pursuant to normal American Arbitration Association procedures.
4. The arbitrator shall convene a hearing giving due regard to the necessity of the parties for time to prepare and the availability of witnesses, if any. The arbitrator shall give at least ten (10) days notice to the parties prior to the scheduled hearing date.
5. The Union, Employer and/or College shall have the right to be represented by counsel at any hearing convened by the arbitrator pursuant to the provisions of this Article. All proceedings before the arbitrator, including his/her jurisdiction to inquire into any issue presented by the complaint and his/her authority to render an award, shall be governed solely by the provisions of this Article.
6. Within thirty (30) days after the conclusion of the hearing, the arbitrator shall determine:
a. Whether the Union and, where an employee or group of employees sought resolution of the grievance through the applicable Steps of this Article, such employee or group of employees, has complied with the procedures for initiating and pursuing a grievance as set forth in this Article;
b. Whether the complaint alleges an express breach of the Agreement;
c. Whether the arbitrator has jurisdiction to arbitrate; and,
d. Whether an express provision of this Agreement has been violated in its application to the grievant. The arbitrator shall render a decision in writing, shall state the reasons therefore, and shall promptly provide copies of the decision to the parties to the arbitration proceeding.
Anything herein contained to the contrary notwithstanding, in making a decision the arbitrator shall apply the express provisions of this Agreement and shall not alter, amend or extend, or revise any term or condition hereof.
The decision of the arbitrator shall be final and binding on all parties to the arbitration proceeding and shall be enforceable in any court of competent jurisdiction.
7. In all arbitration proceedings, the arbitrator’s fees and expenses shall be paid fifty percent (50%) by the Union and fifty percent (50%) by the appropriate College.
Section 4. System-wide Grievance.
A. Whenever either the CEO of the College or the Union is of the opinion that the resolution of a grievance involves an interpretation of the terms of this Agreement and is of system wide applicability, either party may petition the Chancellor to treat such grievance as a system wide grievance.
B. To initiate such proceedings the Union or the CEO shall within seven (7) days of the expiration of the final time period provided for in Step II, file the grievance with the Chancellor specifying therein the reasons why the grievance should be treated as a system wide grievance.
C. The Chancellor shall, within fifteen (15) days of filing of such grievance, determine whether or not the grievance shall be treated as a system wide grievance.
D. If the Chancellor accepts the complaint as a system wide grievance a hearing shall be held and within thirty (30) days of said hearing, he/she shall render a written decision.
E. Within ten (10) days of receipt of the Chancellor’s decision in a system wide grievance, arbitration may be initiated in accordance with Step V of this Article.
F. If the Chancellor declines to accept the grievance as a system wide grievance, the Union or grievant may, within seven (7) days following receipt of the Chancellor’s decision, file the grievance at Step III of the grievance procedure at the College where such grievance is alleged to have occurred.
Section 5. Application.
The parties hereby agree that the provisions of Section 53 of Chapter 30 of the General Laws are, in their entirety, hereby rendered of no force and effect in their application to members of the bargaining unit.
Section 6. Admission, Grounds of Appeal and Collateral Consequences of a Grievance.
A. Admission – The resolution of a grievance by the Department Head, the Chief Human Resources Officer, the CEO, the Chancellor, or any of their designees, as the case may be, shall not be deemed to be an admission by the Employer that the grievance has, for any other purpose or proceeding, standing as a grievance or constitutes an admission of any violation or breach of the terms of this Agreement, or is recognizable or justifiable according to any applicable provisions of the laws of the Commonwealth.
B. Grounds of Appeal – The Employer and the Union shall have the right to appeal any final decision of the arbitrator pursuant to the provisions of Chapter 150E, Section 8, and Chapter 150C, Section 10, 11 and 12 of the General Laws.
C. Collateral Consequences of a Grievance – The fact that a grievance is alleged by a member of the bargaining unit, regardless of the ultimate disposition thereof, shall not be recorded in the Official Personnel File of such member; nor shall such fact be used in making any recommendation for the job placement of such member; nor shall such member or any other member or members who participate in any way in the grievance procedure be subjected to any action by the CEO whether disciplinary or otherwise, for having processed such grievance; provided, however, that nothing herein contained shall derogate from the right of the CEO to take any action that might be authorized or required to be taken to give effect to the resolution of any grievance.