2017 Recompilation, formerly Rule 4.05.50
PART 1: INTRODUCTION AND OVERVIEW
The following rules and procedures (collectively referred to as ARP 10.60) are adopted pursuant to the authority granted in RPM 6.00. The university provides eligible faculty members with a fair and expeditious process by which faculty members may seek redress for grievable issues and may seek resolution of disagreements/disputes arising in the workplace. The following protocols describe the manner in which faculty grievances will be received by a body elected by the Faculty at large known as the Faculty Grievance Review Board (FGRB); accepted or declined; mediated; and/or heard more formally by a faculty peer hearing panel made up of members of the FGRB which issues factual findings and recommendations, and the university’s chief academic officer issuing a final decision. The university encourages the early resolution of disputes in the work place through informal discussion. For matters not resolved in the Pre-Grievance Resolution stage, this Rule provides structured mediation and grievance hearing procedures for resolution by peer and administrative review. Retaliation against any person attempting dispute resolution in accordance with this Rule or against those who may be called upon to participate in the resolution process is prohibited; such allegations will be independently investigated and if substantiated, will be grounds for employee discipline.
Contents of this Rule:
- PART 1: INTRODUCTION AND OVERVIEW
- PART 2: DEFINITIONS
- PART 3: RECOGNITION AND AUTHORITY OF THE FACULTY GRIEVANCE REVIEW BOARD
- PART 4: GENERAL PROCEDURES APPLICABLE EACH STEP OF GRIEVANCE PROCESS
- PART 5: PRE-GRIEVANCE DISCUSSIONS (w/i 30 days from most recent action or inaction giving rise to the grievance)
- PART 6: PROCEDURES TO INITIATE A GRIEVANCE
- PART 7: INITIAL FGRB MEETING (15 day duration; 30 days if appealed)
- PART 8: MEDIATION (30 day duration, absent agreement from both parties to extend)
- PART 9: FORMAL HEARING (45 day duration, absent time extension)
PART 2: DEFINITIONS
- “Day”: Means Monday through Friday, excluding official university holidays and closures.
- “Faculty”: Any full- or part-time tenured, tenure track, or regular non-tenure track faculty member who alleges they have been personally affected by a decision, action, or inaction. Faculty employment status will be determined by Human Resource Services when requested by the FGRB Chair.
- “Faculty Consultant”: A faculty member who provides consultation support in the pre-grievance, informal, mediation, and hearing and appeal grievance steps.
- “Faculty Grievance Review Board Chair” or “FGRB Chair”: A member of the Faculty Grievance Review Board elected by the membership to serve as the contact person for the full FGRB, who will coordinate procedural matters and communicate on behalf of the FGRB. The chair shall administer this Rule, and communicate for the panel collectively, which may necessitate a vote of the full FGRB from time to time, if the matter is in debate.
- “Grievance Record”: The documentation in any format (e.g. e-mail) relating to the grievance, including but not limited to notifications setting the date, time, and location of the mediation session or formal hearing; written procedural guidance provided by the FGRB Chair, mediator or hearing panel to the parties, if any; all evidence submitted by the parties at the formal hearing, labeled as to which party submitted it; the recordings of the formal hearing, the findings of fact and recommendations, and the Executive Vice President and Provost’s final decision. No materials from the mediation shall be part of the grievance record except for notices of meeting dates and the Mediation Agreement, if any.
- “Grievant”: Means any faculty member, or any group of faculty, alleging a grievable claim.
- “Hearing Panel”: Three members of the FGRB, designated by it to conduct the formal hearing, if the matter is not resolved in mediation.
- “Hearing Panel Chair”: A member of the three member hearing panel, designated amongst the three panel members, to serve as the lead in conducting the administrative hearing for the grievance matter. The hearing panel chair conducts the hearing fairly and impartially, consistent with this Rule, and communicates for the panel collectively, which may necessitate a vote of the panel from time to time, if matters are in debate.
- “Mediator”: The person(s) designated by the FGRB to explore pre-hearing dispute resolution.
- “NMSU Entity”: A general term which is used to refer to an NMSU administrative unit, including, but not limited to, departments, colleges, schools, extension service, and experiment stations. The NMSU Las Cruces campus library is considered a single NMSU entity for purposes of this Rule. Private corporations or other entity affiliated with NMSU for fundraising, research, public service, or other purposes are not “NMSU entities”.
- “Party”: The individual(s) who filed the grievance and any person or entity named or joined as a respondent.
- “Respondent”: Any person or entity whose action or inaction gave rise to the grievance.
PART 3: RECOGNITION AND AUTHORITY OF THE FACULTY GRIEVANCE REVIEW BOARD
A. Grievances Within the FGRB’s Jurisdiction
The jurisdiction of the Faculty Grievance Review Board (FGRB) shall include faculty grievances of all types, except for issues subject to an appeal or review process covered in another policy or rule, and except for the following non-grievable issues:
- Job direction, including coaching, counseling, and documented warnings provided for purpose of improving work performance;
- Non-renewal of annual employment contract during probationary period of a tenure-track faculty member, unless a violation of policy, rule or procedure, or the letter of hire is alleged;
- The merits of promotion and tenure final decisions except for alleged violation(s) of policy, rule or procedure. (See Promotion and Tenure Rules);
- Disputed matters that fall within the jurisdiction of another NMSU entity or hearing body, including but not limited to: involuntary termination for cause (See ARP 10.50 Faculty Alleged Misconduct Investigation, Discipline and Appeals Processes), complaints of unlawful discrimination (See ARP 3.25 Discrimination, Harassment and Sexual Misconduct on Campus), and intellectual property disputes (See ARP 11.05 Intellectual Property Management);
- Reassignment or transfer, provided no change in tenure home, loss in pay or faculty rank, or other violation of policy, rule or procedure, or letter of hire is alleged;
- Changes in status of an academic administration position, consistent with policy, rules and procedures (See RPM 6.00, ARP 7.35 Faculty Compensation – Faculty Retreat Rights) and with letters of hire;
- The substance of a policy, rule or procedure, including established practices, unless it has an alleged unfair impact;
- A resignation that has been sent and received;
- Issues that could have been raised in a previous grievance submitted to the FGRB involving the same parties and arising from the same or substantially similar facts, unless new evidence is submitted that is found to be substantive. This exclusion is intended to bar duplicative claims or claims that could have been included in the prior grievance; and
- Grievances filed past the time limits as specified in this Rule without a waiver from the appropriate NMSU official.
The FGRB, assigned mediators, or hearing panel members, as appropriate, are authorized to:
- Elect a chair and vice chair from its membership. The chair will receive and send correspondence relating to procedural matters for pending grievances, and take the lead in setting meetings and coordinating with other officials and offices as necessary for the FGRB to administer this Rule. The vice chair will act in the chair’s absence;
- Decide whether or not matters brought before it are within its jurisdiction (See PART 3 A. above), and including determination of eligibility of faculty member (See PART 2 B.) and whether the grievance was submitted in a timely manner (See Part 6. A.) and in proper form (See Part 6. B.);
- Ascertain the best approach for processing the grievance, including, but not limited to, selection of an appropriate mediator and hearing panel;
- Conduct fact finding hearings and to issue recommendations to the Executive Vice President and Provost;
- Recommend revisions to ARP 10.60; and
- Require the attendance and cooperation of the parties and additional individual during the grievance
C. Administrative Support
The Faculty Senate Chair, or their designee, and the Assistant Vice President of Human Resource Services shall coordinate to provide the FGRB with the necessary clerical, administrative, and technical support it requires, which shall include guidance relating to applicable time deadlines and other procedural issues that may arise.
D. Composition of Faculty Grievance Review Board (FGRB)
The FGRB shall consist of a total of 9 faculty members with 6 at-large members (4 tenured or tenure-track faculty and 2 college regular non-tenure track faculty) and 3 department heads.
- Elections will be held during the Fall semester with the term of service to begin the first day faculty report the following Spring semester. If for some reason service cannot start at that time, regardless of when it does start, the end date of service will not change.
- Nominees for the at-large positions shall result from a general announcement calling for nominees, including self-nominations. The at-large members shall not be a department head, associate dean, or dean on interim or permanent basis. The faculty shall elect the at-large member(s) from the complete list of nominees.
- After a general call throughout the NMSU system for nominations for the department head positions, the Executive Vice President and Provost will forward at least two nominations for each vacant position to the Faculty Senate who will elect the member.
- Nominations will be made such that no Faculty Senate electing group (See Faculty Senate Constitution) shall have more than three members on the FGRB and no department will have more than one.
- Elected members shall serve a three-year term and shall serve no more than two consecutive, 3-year elected terms.
- Elected members shall attend orientation training within a month after beginning their FGRB service.
- Elected members shall either have already received mediator training or agree to attend such training when offered.
2. Continuance of Service
The members shall continue to serve on the FGRB until member’s replacement has been elected, notwithstanding the limitation on service to two consecutive three-year terms.
3. Vacancies Due to Resignation
- A FGRB member may resign by providing written notice to the FGRB Chair copied to the Faculty Senate Chair.
- Any FGRB member who is unavailable for more than 12 weeks, including during the summer, shall be deemed resigned from the FGRB.
- Upon a vacancy created by an at-large FGRB member’s resignation, the Faculty Senate Chair shall announce the vacancy system-wide and ask interested and qualified faculty to submit their names. The Faculty Senate Chair shall select from these names an individual to serve.
- Upon a vacancy created by a Department Head FGRB member’s resignation, the Executive Vice President and Provost shall submit at least two nominees to the Faculty Senate Chair. The Faculty Senate Chair shall select from these names an individual to serve.
- The replacement member shall serve for the remainder of the elected member’s term.
- fReplacement member’s service shall not be counted as part of the two-term limit.
- For all meetings of the FGRB, a minimum of 24 hours e-mail or written notice will be given to all members of the FGRB.
- For actions taken by the FGRB, a minimum of a quorum of five is needed. To facilitate meetings of the FGRB, members may participate telephonically or by other electronic/digital means, provided that confidentiality is maintained.
Each FGRB member shall receive annual training relative to their FGRB duties and responsibilities. Additional training may be required. Any FGRB member who fails to attend mandatory training shall be deemed resigned from the FGRB, at the discretion of the FGRB Chair and with concurrence from the Faculty Senate Chair.
PART 4: GENERAL PROCEDURES APPLICABLE TO EACH STEP OF GRIEVANCE PROCESS
- There shall be no ex parte communication in any form (e.g. verbal, written, email, text, social media) between a party, including the party’s representative or faculty consultant, and a mediator, hearing panel member, or other individual who may be involved in the grievance resolution.
- Communications between any party and any official with responsibility under this Rule should either be in writing or be promptly documented for the benefit of the other officials (e.g. members of the hearing panel or members of the FGRB) and parties.
- Under no circumstances shall any individual communicate in any form with the Chancellor or the Executive Vice President and Provost about the grievance, unless permitted by this Rule.
- Official correspondence shall be sent by the FGRB Chair, mediator, or hearing panel chair, as appropriate, in a manner that maintains confidentiality and that facilitates confirmation of receipt.
B. Right to Faculty Consultant
Either party may enlist the aid of a Faculty Consultant whose role shall be to provide guidance directly to the party and to attend the mediation or formal hearing. The role of Faculty Consultant does not include actively advocating in official communications, mediation sessions, or the formal hearing on behalf of the party. It is the responsibility of the party to keep the Faculty Consultant informed. If the party requests assistance in obtaining a Faculty Consultant, the Faculty Senate Chair or their designee shall appoint a senior faculty member to serve in that capacity.
C. Stay of Proceedings
With the concurrence of the Office of University General Counsel, a grievance may be stayed by the FGRB Chair when the grievant is also seeking relief based upon the same set of facts in another forum, or agrees to explore alternative dispute resolution outside the scope of this Rule. The matter may be reopened, if appropriate, depending upon the outcome of the other proceeding. Any party may submit a written request to the FGRB Chair that a particular grievance be stayed.
All personnel shall maintain and preserve confidentiality regarding faculty grievance matters. Resolution terms of any grievance will be only be divulged to personnel whose assistance is required in implementing the terms of the agreement.
E. Fair and Impartial Mediation and Hearing Process
All parties, including grievant and respondent, are entitled to a fair and impartial review of their claims. This includes the prompt resolution of actual or perceived conflicts of interest:
1. Conflicts Guidelines
- Under no circumstances will a FGRB mediator or hearing panel member participate in a hearing convened to hear a grievance involving a party with whom the member has a familial, personal, or close professional relationship. A FGRB member shall not mediate, nor hear, a matter involving faculty from their own academic department.
- If one or more of the witnesses has a close relationship with one of the hearing panel members, disqualification of the hearing panel member from service shall not be automatic, but shall be decided by a majority of the quorum of panel members based upon the specific facts of each case.
- If the grievant, respondent, or a witness has had prior contact with either the assigned mediator or a hearing panel member, disqualification of the mediator or panel member from service shall not be automatic, but shall be decided by a majority of the quorum of panel members based upon the specific facts of each case.
2. Early Disclosure of Conflict and Voluntary Recusal
- Any FGRB member selected to serve as either the mediator or as a member of the hearing panel in a grievance matter shall disclose actual or potential conflicts of interest immediately, or as soon as it is realized, in order that it may be resolved prior to the informal or formal grievance processes.
- A party shall also raise the issue of an actual or potential conflict of interest relating to a mediator or FGRB hearing panel member as soon as the conflict is known.
- After consideration of the relevant facts and positions of the parties, if it is determined that a conflict exists sufficient to call into question the impartiality of the FGRB member, the resolution will be either voluntary recusal by the individual alleged to have the conflict or by substitution of a different individual by the FGRB Chair.
3. Process to Resolve Alleged Conflict of Interest
- In the event a conflict of interest issue is raised and not resolved amicably by substitution of another individual, the FGRB Chair shall give notice of the potential conflict to the parties and proceed to resolve the issue as expeditiously as possible.
- If a challenged mediator or hearing panel member agrees that the conflict is sufficient to render the member unable to participate in a fair and impartial manner, the individual shall be excused from further participation.
- If the challenged mediator or hearing panel member disagrees that there is a conflict sufficient to affect impartiality, the matter will be decided by the Faculty Senate Chair.
- Each party may provide their position on the issue and comment on the position of the other party. Other evidence may be considered if relevant or needed to decide the issue; however, the parties are entitled to know and comment on any other evidence considered by the Faculty Senate Chair in
making the decision.
- If a mediator is excused based on a finding of conflict of interest, the FGRB Chair shall select a replacement.
- If a hearing panel member is excused based on a finding of conflict of interest, the FGRB Chair shall select a replacement from the FGRB.
- Each party may provide their position on the issue and comment on the position of the other party. Other evidence may be considered if relevant or needed to decide the issue; however, the parties are entitled to know and comment on any other evidence considered by the Faculty Senate Chair in
F. Time Deadlines After a Grievance has been Accepted
Each step of the grievance process is intended to be conducted as expeditiously as possible. Requests for extensions of time may be made by any party or official involved in the process. All requests for time extensions, including basis for the request, shall be in writing and shall be copied to all parties and the FGRB Chair. The FGRB Chair, with the concurrence of the Faculty Senate Chair, will decide whether or not to grant requests for extensions of time.
G. Filing and Storage of Grievance Record
At the conclusion of any stage of the grievance process, the officials with authority under this Rule shall forward documentation belonging in the grievance record to the FGRB Chair. If the matter is submitted to a formal hearing panel, once the panel has rendered its findings and recommendations, the hearing panel chair shall notify the FGRB and transmit the hearing record to the FGRB chair, who will compile the complete grievance record and forward to the office of the final decision maker. The final decision maker shall ensure that the Office of Human Resource Services, Employee and Labor Relations (HRS-ELR) receives the complete Grievance Record for storage and maintenance in accordance with the university’s records retention policies, once the final decision has been issued to the parties.
- The grievance record shall not be filed in the official personnel file. The grievance record will be stored in a grievance file with the Office of Human Resource Services, Employee and Labor Relations. Occasionally, it may be appropriate to file or to cross-reference a grievance decision in the official personnel file (e.g. to justify a mandated change in salary).
- If the grievant prevails on an issue affecting a document contained in the official personnel file, that document will be revised and the original document will be moved to the grievance file, to document compliance with the decision on the grievance.
- Copies of the document reflecting the final administrative action to be taken as a result of a grievance, such as a Mediation Agreement or the Final Decision, shall be stored permanently in the Office of the Executive Vice President and Provost.
H. Prohibition of Retaliation
- Retaliation against any person or against any party involved in the grievance is strictly prohibited.
- Any claims of retaliation shall be reported immediately to the Assistant Vice President of Human Resource Services.
- Claims of retaliation shall be investigated independently of ARP 10.60 and, if substantiated, will be grounds for corrective or disciplinary action, appropriate to the situation.
PART 5: PRE-GRIEVANCE DISCUSSIONS (w/i 30 days from most recent action or inaction giving rise to the grievance)
- Good Faith Effort to Resolve by Pre-Grievance Communication: A potential grievant is strongly encouraged to attempt to seek resolution of the dispute as soon as possible, prior to escalation and polarization of positions, and also at the lowest administrative level possible. For this reason, time is built into the grievance process to allow the parties to make a good faith attempt to resolve the matter(s) in dispute.
PART 6: PROCEDURES TO INITIATE A GRIEVANCE
A. Filing of Formal Grievance
If the pre-grievance discussions are unsuccessful, the faculty member submits a written grievance within thirty (30) days from the date of the action or inaction giving rise to the grievance. The thirty (30) day deadline may be waived by the FGRB in cases alleging a “continuing violation” where the most recent incident alleged occurred within the thirty (30) day period, or where ongoing and genuine efforts during
the pre-grievance stage caused a delay in filing, but should not extend past ninety (90) days from the most recent action or inaction.
B. Grievance Format
- The grievance shall be in memo format, with the subject line indicating that it is a faculty grievance and the respondent(s) named therein (e.g. “SUBJECT: Faculty Grievance versus Respondents ABC and GHI”).
- The grievance memo, limited to 5 pages excluding attachments, shall:
- Identify the grievant(s) by name, job title, phone number, mailing address, NMSU e-mail address and the method by which they may be readily contacted;
- Identify the respondent(s) by name, job title, phone number, and e-mail address;
- Identify the issue(s) in dispute, including the specific allegations against each named respondent;
- Identify any individuals with personal knowledge regarding the issues in dispute, including contact information for the individual;
- Identify efforts made to date to resolve dispute;f. Outline the points in support of the grievant’s position, referencing any supporting documentation;
- State the desired outcome of the grievance;
- Include the statement “By signing this grievance, I hereby verify that the facts I have alleged in this grievance are to the best of my knowledge and belief true and accurate.”;
- Contain the signature of the grievant with the date signed; and
- Attach or reference any supporting documentation;
The grievant shall electronically send a copy of the grievance to:
- The FGRB Chair;
- If the FGRB accepts the grievance, it shall be the responsibility of the grievant to provide a copy of the grievance to the respondent and any other parties as may appropriate (e.g. grievant’s and respondent’s supervisors).
PART 7: INITIAL FGRB MEETING (15 day duration; 30 days if appealed)
A. Participation by FGRB Membership
For jurisdictional or other procedural issues, the FGRB may meet in person or by electronic means, provided that all members are able to hear and to be heard during the meeting.
B. Determination of Jurisdiction
- Within ten (10) days of receipt of the grievance, at least a quorum of the FGRB chair shall convene to review the grievance and determine whether or not the faculty member has standing and has filed a timely claim that is grievable under this Rule. The FGRB will either accept or reject the grievance.
- Typically, the FGRB Chair will issue official correspondence to the parties on behalf of the FGRB; however, as agreed by the members, any member may issue the written determination to the parties on behalf of the FGRB, provided it is reflective of what the majority of the FGRB members decided.
- The determination to accept or decline a grievance shall be issued in writing to all parties within five (5) days from the date the FGRB met to determine whether or not to accept the grievance.
C. Right to Appeal from Determination Relating to the FGRB’s Jurisdiction
- The FGRB determination may be appealed by either party in writing to the Assistant Vice President of Human Resource Services. A copy of the appeal shall be sent to all parties and to the FGRB Chair.
- The appeal must be received by the Office of the Assistant Vice President of Human Resource Services within five (5) days of the appellant’s receipt of the determination from the FGRB.
- The appeal must be written, with a copy of the determination by the FGRB attached, and explain the basis for the appeal.
- All parties shall be given an opportunity to respond in writing and provide their respective position relative to the appeal. Any response shall be submitted to the Assistant Vice President of Human Resources Services within five (5) days of the parties’ receipt of the appeal.
- The Assistant Vice President of Human Resource Services may consult with the Executive Vice President and Provost and shall issue a final written decision within five (5) days from the date that the Assistant Vice President for Human Resource Services received the appeal.
- A copy of the decision shall be sent to all parties and to the FGRB Chair.
- The decision of the Assistant Vice President of Human Resource Services is not appealable.
D. Mediator Selection
- If the grievance is accepted, the FGRB shall select a mediator, or at their discretion co-mediators, at the meeting at which the grievance is accepted.
- If a FGRB member serves as mediator, that person will also coordinate the mediation.
- In cases in which an external mediator is needed, the FGRB Chair will coordinate the selection with the Assistant Vice President of Human Resource Services. When an external mediator is used, the FGRB Chair will act as the mediation coordinator.
E. Option to Bypass Mediation
At the discretion of majority of a quorum of the FGRB, and in rare instances, the mediation step may be bypassed, allowing the parties to proceed directly to a formal hearing.
PART 8: MEDIATION (30 day duration, absent agreement from both parties to extend)
The purpose of the mediation phase of the grievance procedure is to resolve the grievance and obviate the need for the formal hearing and decision-making process. The mediation may involve multiple sessions at the discretion of the mediator(s) and with the cooperation of the parties.
- All documentation, information, positions asserted, admissions or concessions shared for purposes of exploring a mediated resolution shall remain confidential and shall not be divulged by any party or mediator to any person without a need to know, including other members of the FGRB, nor used against any party at any subsequent hearing or proceeding.
- Every individual consulted regarding the potential for settlement shall be advised about the confidential nature of the communications.
- The provisions relating to confidentiality continue to apply even after the conclusion of the mediation session(s).
C. Mediation Coordinator Responsibilities
- Arrange for the initial mediation to take place within ten (10) days of the appointment of the mediator.
- Work with the FGRB Chair, the Office of Human Resource Services, and the Office of University General Counsel, as necessary, regarding the logistics of conducting the mediation sessions, especially with regard to compliance with applicable time deadlines.
D. Mediator(s) Responsibilities
- Provide the parties to the grievance written ground rules for the pre-hearing dispute resolution session(s) prior to or at the commencement of the first mediation session. The parties will be asked to read them and to sign, indicating their willingness to abide by them. If any party refuses, the mediation will be cancelled, and the grievance will be submitted to the FGRB hearing panel chair for a hearing and decision.
- Meet with the parties and take other action as necessary to resolve all or part of the grievance. This may include review of documents, interviews or consultations with persons not on the FGRB, including but not limited to university officials whose authority to implement a proposed solution will be necessary, provided they will not be involved in the mediation and/or formal hearing processes.
- Cancel the session and submit the matter to the formal hearing stage if, at any point during the mediation, a party’s behavior is in violation of the ground rules and the behavior is counterproductive to the mediation.
- If all or part of a grievance is resolved, draft during the mediation session a Mediation Agreement outlining the agreement, including the details relating to follow-up action(s) to be taken, and have it signed by all parties.
- Work, if necessary, with HRS-ELR and Office of University General Counsel to obtain any needed administrative approvals to authorize the draft agreement.
- No later than thirty (30) days from the mediator’s receipt of the grievance, absent an extension of time, send a written request for formal hearing to the FGRB Chair if not all issues being grieved are resolved through mediation.
- Request an extension of time only if progress is being made and there remains a viable possibility of resolving the grievance in the mediation stage.
E. Mediation Outcomes
By way of a transmittal memo, the mediator shall inform the Assistant Vice President of the Office of Human Resource Services about the outcome of the mediation, and attach a copy of the mediation agreement, if any. The mediator shall also inform the FGRB Chair of the outcome(s) of the mediation session so the chair can forward the record to HRS if the mediation was successful or arrange for a formal hearing if some of the issues are unresolved. The possible outcomes of a mediation session include:
- Complete Resolution: If mediation resolves all of the issues identified in the grievance, a signed Mediation Agreement (see E. 5. below) will be produced prior to the conclusion of the mediation session.
- Partial Resolution: For issue(s) resolved by the mediation, the resolution will be included in the Mediation Agreement (see E. 5. below). For issue(s) not resolved by mediation, the issue(s) remaining will be identified in the notification of the outcome (See item E. 5.) and submitted for formal hearing. Each party has the authority to decide whether or not to agree to a Mediation Agreement that resolves only part of a grievance.
- No Resolution: If the mediation does not resolve any of the issues raised in the grievance, the issues remaining will be submitted for formal hearing by way of the mediator’s notification of the outcome. See E. 5. below.
- Mediation Agreement: If some or all of the issues identified in the grievance are resolved through mediation, a Mediation Agreement will be written by the mediator and signed by all parties prior to the conclusion of the mediation session. The Mediation Agreement will document the issue(s) resolved through mediation and the agreed to conditions. All parties who have agreed to the resolution shall sign the Mediation Agreement. By signing the Mediation Agreement, the parties indicate that they are willing to be held accountable to the terms of the Mediation Agreement and, if necessary, that their supervisor(s) may be enlisted to enforce the agreement. The Mediation Agreement shall be filed with the grievance record; each party will be provided with a copy to facilitate its implementation. The parties shall agree to maintain it in a secure manner that will not jeopardize confidentiality.
- Notification of Mediator Outcome: The mediator shall inform the Office of Human Resource Services of the outcome of the mediation including a copy of the mediation agreement, if any. The mediator shall also inform the FGRB Chair of the outcome(s) of the mediation session so the chair can forward the record to HRS if the mediation was successful or arrange for a formal hearing if some of the issues are unresolved.
- Mediation Agreement: The only documentation that shall be retained after mediation is a formal signed Mediation Agreement that documents that the parties reached a mutually satisfactory agreement.
- Note Destruction: All written notes taken by any participant during the mediation session will be collected by the mediator at the conclusion of the mediation session. If not mediation agreement is reached or after a mediation agreement has been signed by all parties, these notes will be destroyed by the mediator.
PART 9: FORMAL HEARING (45 day duration, absent time extension)
A. Composition of Hearing Panel
Three members of the FGRB, consisting of two faculty members and one department head, shall constitute the hearing panel. Under no circumstances shall the mediator(s) serve on the hearing panel.
B. Hearing Panel Appointment
The hearing panel will be appointed by a majority of a quorum of the FGRB within ten (10) days of the mediator informing the FGRB Chair that the grievance was not resolved by way of mediation.
C. Hearing Panel Chair
The hearing panel shall select one of its members to chair the panel. The hearing panel chair shall:
- Communicate with the parties and other personnel as appropriate on behalf of the panel.
- Inform the parties that they must submit a position statement outlining the points in support of that party’s position (with attached exhibits and a list of witnesses, if any) and that they must electronically distribute their position statements the other party and all members of the hearing panel. The position statements must be distributed within five (5) days of this notification.
- Allow all participants at least five (5) days to review the position statements.
- Set the hearing date to be five (5) to fifteen (15) days after the last of the position statements has been distributed and give all participants at least five (5) days, and more if possible, notice prior to the meeting.
- Coordinate with HRS-ELR for logistic and administrative support.
D. Timeframe for Hearing
The hearing shall be conducted within twenty (20) days after the FGRB Chair notifies the hearing panel chair that the mediation left some issue(s) unresolved. The timeline below begins when the hearing panel chair has notified the parties that mediation did not completely resolve the grievance and that the grievance resolution process is advancing to the hearing phase.
- Days 1-5: Each party develops and distributes their position statement. The position statement must outline the points in support of that party’s position, with attached exhibits, and a list of witnesses, if any. Each party must electronically distribute their position paper to all other parties and all members of the hearing panel within this 5-day period. The position statements will become a permanent part of the grievance record.
- Days 6-10: All participants review the position statements.
- Days 11-20: Initial hearing panel held.
- Time Extension: If the hearing panel is not able to convene to hear the matter within said timeframe, the hearing panel chair shall request an extension of time from the FGRB Chair. See Part 6. F)
- Panel Member Substitution: In order to expedite the hearing, the FGRB Chair may substitute hearing panel members. If necessary as a matter of last resort, the assistance of the Assistant Vice President of Human Resource Services may be sought.
E. Hearing Procedures
- Participation: For hearing panels, each member appointed to serve on the panel shall attend and participate. Also present will be all parties, witnesses, and consultants. A representative designated by HRS-ELR will serve as Notary to swear in witnesses and to record the hearing. Additional
representatives from HRS and General Counsel will be available for telephonic consultation as needed.
- Preservation of Record: An audio recording of the hearing, excluding the panel’s deliberations, shall be made and kept. The parties shall be entitled to a copy of the recording, upon written request, after the final written decision has been rendered. Responsibility for transcription, if desired, is on the party desiring the transcription.
- Disclosure Statement: The hearing panel chair shall ensure that all perceived or actual conflicts of interest have been resolved prior to commencing the hearing by asking for all participants, including the panel members, to indicate that they are not aware of any potential conflicts of interest.
- Role of Legal Counsel: No person attending the hearing may be represented by legal counsel at the hearing.
- Closed Hearing: The hearing shall be closed to the public.
- Time for Presentation at Hearing: The hearing panel chair will assure that all parties have an opportunity to present their cases and may impose reasonable time limits; therefore, the parties should be prepared to make concise statements of their respective positions, refrain from presenting duplicative witness testimony, etc.
- Conduct of Hearing: The hearing panel chair shall maintain control of the proceeding, including evidentiary and procedural issues. As needed to determine the panel members’ collective decision, each panel member may be asked to indicate a position by way of vote. For procedural issues raised by the parties, the chair may ask the parties to step out while the panel deliberates and decides; when the parties return, the chair shall announce the panel’s decision on the issue.
- Witnesses: Each party may call witnesses. Witnesses may only be in the hearing while giving testimony. This does not apply to the parties who may also provide testimony.
- Testimony: Testimony of any party or witness shall be taken under oath. The hearing panel chair may request that all oaths be taken at one time and then the witnesses asked to leave until such time as they are called to testify, or they may be taken individually immediately prior to giving testimony.
- Oath Administration: A representative from Human Resource Services, Employee and Labor Relations must administer the oath to the parties participating in a hearing regarding their testimonies.
- Deliberations: The hearing panel shall deliberate in closed session, apart from the parties. The panel may elect to consult with representatives from the Office of University General Counsel, the Office of Human Resource Services, or other NMSU offices during the hearing or during its deliberations.
F. Findings and Recommendations
Within ten (10) days from the closure of the hearing (last date of deliberations by the hearing panel), the hearing panel chair shall submit findings and recommendations representative of the hearing panel’s collective decision, which may include any dissenting opinion, to the FGRB Chair. The FGRB Chair shall forward these materials along with the complete Grievance Record to the office of the final decision maker, which is typically the Office of the Executive Vice President and Provost.
G. Procedures for Final Decision
The Executive Vice President and Provost is authorized to issue a written final decision on grievances heard by the FGRB. If for any reason the Executive Vice President and Provost is recused or excused from making a decision, the Chancellor, or other designee of the Vice President of the Office of Human Resource Services, shall have the authority to issue a written final decision and the FGRB Chair will be notified. The Executive Vice President and Provost or other designated decision maker shall issue the final decision within fifteen (15) days from receipt of the FGRB hearing panel’s findings and recommendations and the complete Grievance Record. The decision, with a copy of the FRGB hearing panel’s findings and recommendations attached, shall be delivered to the parties. A copy of the decision shall also be sent to the Office of Human Resource Services for inclusion in the Grievance Record. Notification that a final decision has been issued will be sent to the FGRB Chair.
2017 Recompilation, formerly Rule 4.05.50