TABLE OF CONTENTS
- Introduction and purpose
- Informal resolution processes
- Formal resolution processes
- Peer Hearing and Panel Decision
- Final University Decision by the Executive Vice President and Provost (EVPP)
INTRODUCTION AND PURPOSE
The procedures described here implement Board of Regents Policy: Conflict Resolution Process for Employees and the related Administrative Policy: Conflict Resolution for Faculty, P&A, Civil Service, and Student Employees. They apply to all campuses in the University system.
The goal of these policies, taken together, is to provide accessible and fair internal conflict resolution processes for employment-related conflicts affecting those University faculty, staff, and student workers who are not represented by a union. Conflict Resolution processes include both informal services and a formal process.
University employees are eligible for informal services for employment-related problems with few jurisdictional limits. For the formal peer hearing process, additional jurisdictional limits must be satisfied. (See Appendix: Jurisdictional Guidelines.)
INFORMAL RESOLUTION PROCESSES
Employees who are not represented by a union are encouraged to contact the Office for Conflict Resolution with employment-related conflicts as soon as they emerge and local efforts to resolve them are not productive.
There is no fixed time limit for using informal processes. Conflict resolution staff may decline to process issues that are too stale to permit current resolution, that have been processed appropriately within the Office for Conflict Resolution or other offices, or that are unfair to others involved.
Consultations during the informal processes are confidential, except in very unusual circumstances, such as imminent threat of bodily harm to oneself or others. While conflict resolution staff are employees of the University and subject to its policies, the office strives to be both neutral and independent. It reports directly to the Vice President for Equity and Diversity. It is independent of collegiate units, the Office of Human Resources, and the Office of the General Counsel.
- A Faculty, P&A, Civil Service, or Student Employee Schedules a Consultation. The initial meeting is to discuss the circumstances, explore University policies and resources, identify options, and assist the employee's decision making. Several additional consultations may follow.
- The Office Takes Steps to Resolve the Conflict. At the request of the employee, conflict resolution staff may contact others involved to exchange information, to promote understanding, and to identify resolution options. In appropriate circumstances, office staff may facilitate face-to-face discussions among the involved parties or mediate using a more structured format.
- Supervisors and Managers Participate. If a University employee asks a supervisor or manager to participate in an informal conflict resolution process, the supervisor or manager is expected to participate as part of the supervisor's or manager's role. If the employee identifies a dispute with a co-worker who is not a supervisor or manager, the co-worker is encouraged to participate in the informal process, but is not required to do so.
- Informal Information Is Not Submitted in Formal Processes. Statements made and actions taken by either party in informal meetings under this policy are not submitted at any subsequent peer hearing.
If informal efforts to resolve the conflict are unsuccessful, an employee may submit a formal petition. In order to meet the time limits of the formal process, the employee must submit the issue to the Office for Conflict Resolution within six weeks of the occurrence of, or notice of, the challenged action and the petitioner must file a written petition during the two months following initial contact with the office.
FORMAL RESOLUTION PROCESSES
In order to use the formal peer hearing process, a University employee must meet certain jurisdictional guidelines. These are described in Appendix: Jurisdictional Guidelines.
There are three stages in the formal resolution process: A) a peer hearing and panel decision, B) the final University decision of the Executive Vice President and Provost, and C) arbitration or judicial review of the final University decision. In order to provide a fair hearing process for all parties and a well-informed peer panel, the formal resolution process may take several months to complete. (See Appendix: Timeline for the Petition Process.)
Settlements of petitions may occur at any point in the formal process and are contingent on final approvals required by Board of Regents Policy: Legal Claims and Settlements.
In the formal process, each party is responsible for presenting to the panel its own information, arguments, and witnesses. The Office for Conflict Resolution does not investigate facts or prepare or present cases. The role of the office is to help administer a fair hearing process. It maintains a list of advisors who volunteer to assist parties in preparing for hearings.
A. Peer Hearing and Panel Decision
- The Employee Files a Petition. An employee must file a written petition with the Office for Conflict Resolution.
The petition must identify the following:
- the petitioner and his/her employment status;
- the action being questioned;
- a specific University rule, regulation, policy, or practice pertaining to employment, (or provision of petitioner's employment contract), alleged to have been violated;
- the person(s) responsible for the action, if known, and the unit; and
- a proposed remedy that is within the authority of the University to grant.
The petition must be submitted within the following time limits:
- The issue in dispute must be submitted to the Office for Conflict Resolution within six weeks from the occurrence of, or notice of, the action being challenged, whichever is later. Once submitted, the employee may file a written petition to proceed in the formal process during the two months following submission. Only those disputes that are initially submitted within the six-week time limit and are followed by a written petition within the two months following the initial submission are eligible for the formal process.
Additional jurisdictional guidelines that apply to formal petitions are detailed in Appendix: Jurisdictional Guidelines. The Director reviews the petition to determine if it meets these requirements.
Some employment claims must proceed through the formal process prior to seeking review by a court. Others may proceed directly to court without exhausting the formal process. (See Appendix: Relationship Between Internal Conflict Resolution Processes and Court Review.)
- A Respondent is Appointed and Provides a Written Response. The Director will forward the petition promptly to the senior administrator of the unit in which the petitioner is employed. The senior administrator will appoint a respondent who must submit a written response to the petition within two weeks of the senior administrator's receipt of the petition.
If a petition identifies the senior administrator of the unit as the responsible party, and that administrator has responsibilities for appointments or decisions under the petition process, the administrator's superior will make the necessary appointments and decisions.
- The Petition Must Be Timely Processed. Time limits in the formal conflict resolution process can be modified by the mutual consent of the parties involved or by the Director of the Office for Conflict Resolution if there are compelling reasons for delay. Compelling reasons for delay include, but are not limited to, absences due to sickness, disability, vacation, family leave, business travel, or University recess during holidays or the summer.
If the petitioner or the respondent fails to participate in the formal process in a timely way, the Director will refer the case to a hearing officer who will decide whether a party has unreasonably delayed in the process and, if so, what the result should be. If the hearing officer's decision results in dismissal of the petition, it will be forwarded to the Executive Vice President and Provost for a final University decision in accord with the procedures in Section B.2. below.
- Advocates and Attorneys. A non-attorney advisor is welcome to accompany a petitioner or respondent. A list of University employees who volunteer to serve as advisors is available from the Office for Conflict Resolution. If a petitioner is an attorney or chooses to be represented in proceedings by an attorney (a person with a J.D. law degree), the respondent may be represented by an attorney from the Office of the General Counsel. If the petitioner is not an attorney and is not represented by an attorney, then the respondent will not be an attorney or be represented by an attorney. This policy does not restrict either party from private consultations with an attorney.
- The Parties Try to Resolve the Matter Informally. After the Office for Conflict Resolution receives the response, the Director or Delegate will conduct a facilitated discussion with the parties unless informal processes have been previously exhausted. The facilitated discussion will be scheduled within thirty days of the filing of the petition. The petitioner and respondent must participate in a facilitated discussion before proceeding to a peer hearing, except in unusual circumstances, and then only with the mutual consent of the parties.
- A Hearing Panel is Appointed. If there is no informal resolution and the petitioner requests a peer hearing, a three-member hearing panel will be appointed to hear the petition. The Office for Conflict Resolution maintains a roster of hearing officers from the faculty, P&A, and Civil Service employee groups. (Refer to Appendix: Administrative Responsibilities, which describes in section 4 how hearing officers are appointed to the roster.) A hearing officer, who must be from the same employee group as the petitioner, will be appointed to lead the hearing panel. If the petitioner is a student employee, the hearing officer will be from the faculty employee group. The hearing officer will direct the course of the hearing and is a voting member of the panel. The petitioner or respondent may reject a hearing officer selection within one week of being notified of the selection by notifying the Office for Conflict Resolution. A party may do this only once. The Director will then select another hearing officer from the roster.
The petitioner and respondent each choose a panelist. The petitioner appoints one panelist from a roster of panelists maintained by the Office for Conflict Resolution. The petitioner's choice is not restricted to the petitioner's same employee group. A student employee petitioner may select as a panelist either a panelist from any category on the panelist roster or a student representative from the University Senate's Student Behavior Committee (CCSB). The senior administrator for the unit in which the petition originates also appoints a panelist. The senior administrator's choice is not restricted to a roster.
Panelists serve as neutrals, not advocates, and none will have a direct interest in the dispute. Panelists will give the petitioner and the respondent's case open-minded, fair consideration. Panelists will not have private conversations about the petition with the parties, their advisors, or attorneys.
- A Pre-hearing Conference Is Scheduled. Prior to a peer hearing, the Office for Conflict Resolution will schedule a pre-hearing conference. The hearing officer conducts the pre-hearing conference. The purpose of the pre-hearing conference is to clarify issues and requested remedies, arrange for information exchange, and prepare for and schedule the hearing. The peer hearing will be held within one month following the pre-hearing conference unless there are compelling reasons for delay.
The parties may request information from each other in order to prepare for the hearing. They will comply with all reasonable requests for information relevant to the petition and consistent with law. Hearing officers cannot require disclosure of information that is inconsistent with law, particularly the Minnesota Government Data Practices Act and the Federal Family Educational Rights and Privacy Act. To comply with confidentiality obligations of the University, a party, advisors, and panel members may be required by the University, at its discretion, to sign and abide by a confidentiality agreement before certain information may be released for the limited purpose of a hearing.
Any disputes over access to documents or information will be referred to the hearing officer. The hearing officer will issue a written decision which is reviewable by the Executive Vice President and Provost when the hearing panel's decision is reviewed.
- Burden of Proof. In cases involving the imposition of discipline on the petitioner, the respondent has the burden of demonstrating, by a preponderance of information presented, that the discipline was warranted under the petitioner's governing employment policies, or contract. In other cases, the petitioner has the burden of demonstrating, by a preponderance of the information presented at the hearing, that there was a violation of a University rule, regulation, policy, or practice. In cases challenging discretionary actions as an abuse of discretion, the petitioner has an additional burden of demonstrating that the challenged action constitutes a clear abuse of discretion.
- The Hearing Panel Hears the Petition. The hearing panel will review the petition, the response, the exhibits submitted by the parties, and the information provided at the hearing. The hearing panel will provide a fair opportunity for the petitioner and the respondent to present their views and information from witnesses. Panel hearings are not court cases, and the rules of evidence do not apply. The panel will exercise reasonable judgment in deciding what information to permit, and to rely on, in making a decision.
Members of the University community are strongly encouraged to cooperate if they are requested to provide information at a peer hearing. Witnesses are present only during their own presentation.
The Office for Conflict Resolution will make an audio recording of the peer hearing and will maintain a file of pertinent documents.
- The Hearing Panel Prepares a Written Decision. After the hearing, the panel will prepare a written decision, including a statement of the issues, contentions of the parties, findings of fact, opinion and award, if any. The decision will be sufficiently detailed to assist the Executive Vice President and Provost in reaching a final University decision. A majority of two panelists is required to reach a decision. A dissenting panelist may submit a written dissent. The panel's decision will be issued within one month of the conclusion of the hearing, and will be promptly distributed by the Office for Conflict Resolution to the parties and to the Executive Vice President and Provost.
- Certain Remedies are Available. If the petitioner is successful, non-financial remedies may be appropriate, such as modification or removal of discipline letters or granting benefits previously withheld. Financial remedies are limited to back pay, benefits actually lost, and reinstatement. The panel may not recommend pain and suffering and emotional damages, attorneys' fees, punitive damages or penalties. Panels do not have authority to recommend disciplinary action against an employee.
B. Final University Decision by the Executive Vice President and Provost
- The Office for Conflict Resolution Forwards the Panel Decision to the Executive Vice President and Provost. The Office for Conflict Resolution will send to the Executive Vice President and Provost copies of the petition, response, panel decision, and exhibits submitted to the panel. The Executive Vice President and Provost may review any other parts of the hearing record and may discuss the panel decision with the hearing officer and the panelists.
- The Executive Vice President and Provost Submits a Final University Decision. Within two weeks of the receipt of the panel report, the Executive Vice President and Provost will issue the EVPP's decision to the Office for Conflict Resolution. The Executive Vice President and Provost has full discretion to accept, modify, or reject the panel decision. If the Executive Vice President and Provost modifies or rejects the panel's decision, the Executive Vice President and Provost must state in writing the reasons why. The Office for Conflict Resolution will distribute the decision of the Executive Vice President and Provost to the petitioner and the respondent.
- The Petitioner May Choose Review of the Final University Decision. If the petitioner is dissatisfied with the final University decision of the Executive Vice President and Provost, the petitioner may choose to proceed to arbitration. Alternatively, the petitioner may have a right to appeal the decision to the Minnesota Court of Appeals by a "writ of certiorari." The statute that describes the right of certiorari review is Chapter 606 of Minnesota Statutes. The timelines for seeking certiorari review are set by that statute. To the extent that a petition from a regular faculty member alleges violations of Board of Regents Policy: Faculty Tenure, employees may have a right to review by the Faculty Senate Judicial Committee. Refer to the Faculty Senate Judicial Committee Rules of Procedure.
- The Petitioner Submits Written Notice. A written notice of request for arbitration must be submitted to the Office for Conflict Resolution within two weeks of petitioner's receipt of the decision of the Executive Vice President and Provost.
- The Petitioner Signs a Waiver and Release. To proceed with arbitration, the petitioner must sign a waiver and release of all rights to pursue substantially the same claim in any other forum, including the right to seek certiorari review at the Court of Appeals. The arbitration decision is final and binding.
- The President Appoints a Respondent. The President will appoint an appropriate respondent in arbitration unless the petition identifies the President as having personally engaged in a challenged action, in which case the Chair of the Board of Regents will make the appointments and decisions called for in the formal process.
- The Parties Select an Arbitrator. The arbitrator is selected by the parties from a roster of arbitrators.
At the request of the Office for Conflict Resolution, the Minnesota Bureau of Mediation Services will select randomly the names of five arbitrators from the roster of eligible arbitrators and will forward those names to the Office for Conflict Resolution, which will forward the names to the parties. Current University of Minnesota employees are excluded. Arbitrators on the roster will meet the professional criteria of the Minnesota Bureau of Mediation Services, the American Arbitration Association, or the Federal Mediation and Conciliation Service.
Regular faculty and P&A employees may request, as an alternative to the panel of arbitrators described above, a list of five arbitrators in the National Academy of Arbitrators holding either tenured faculty rank or emeritus status in a university located in the United States, other than the state of Minnesota.
The petitioner and the respondent will alternate in striking names from the list of potential arbitrators until a single arbitrator's name remains. The party to strike first will be determined by the party who wins the toss of a coin.
- The Parties Select Panel Members. In addition to the arbitrator, the arbitration panel will consist of a panel member selected by the petitioner from the panelist roster and a panel member selected by the President or a delegate. The parties may not select the same panelist who served at the peer hearing.
All panelists will serve as neutrals, not advocates, and none will have a direct interest in the dispute. All panelists will give the petitioner and the respondent's case open-minded, fair consideration. Panelists will not have private conversations about the petition with the parties, their advisors, or attorneys.
- Role of the Office for Conflict Resolution. The Office for Conflict Resolution will convene the arbitration panel, notify the panel members of their selection, and, at the request of the arbitrator, coordinate scheduling of the arbitration hearing and conferences.
The Office for Conflict Resolution will forward records to the arbitration panel members. These will include copies of the Waiver and Release, petition, response, exhibits submitted to the peer panel, panel decision, and the final University decision. The parties are responsible for submitting any other materials to the arbitration panel.
- The Arbitration Panel Hears the Matter. The arbitrator will direct the course of the hearing and decide all preliminary issues. The hearing will be conducted by the arbitrator to most expeditiously permit full presentation of the evidence and argument of the parties. The arbitrator is responsible for setting a schedule that allows for a fair, full, and expeditious hearing for the parties. This can normally be achieved in one to two hearing days. Normally, there will be no post-hearing briefs. At the request of either party, the arbitrator may issue subpoenas as provided by law. In performing these roles, the arbitrator will follow professional arbitration practice, as applicable, and these procedures.
- The Arbitration Panel Issues a Final and Binding Decision. The award will be signed by a majority of the panel. The written opinion supporting the award should be brief, but sufficient to explain the basis for the decision. If the arbitration panel accepts the findings of the peer hearing panel, it need not issue a separate written opinion. The arbitration panel will issue a decision within four weeks of the close of the hearing. The award will be sent to the Office for Conflict Resolution, which will distribute it to the parties promptly. The arbitration decision is final and binding, subject to the provisions of Minnesota's Uniform Arbitration Act found at Chapter 572 of Minnesota Statutes.
- Each Party Contributes to Payment of the Arbitrator's Fees. Arbitrator fees are incurred if the petitioner elects to proceed to arbitration. The amount of, and responsibility to pay, arbitrator fees will depend on the source of the arbitrator chosen by the employee:
- If the employee selects an arbitrator from the National Academy of Arbitrators, the employee and the University will share equally in paying the entire arbitrator fees.
- If the employee selects an arbitrator from a roster maintained by the Minnesota Bureau of Mediation Services, with the agreement of the arbitrator the total fees will be capped at $5,000, unless fees in excess of that amount are approved by the Vice President for Equity and Diversity upon a showing of good cause by the arbitrator. The employee and University will share equally the arbitrator fees up to the share limit of $3,500. The University will pay the arbitrator fees over $3,500.
The party canceling a scheduled arbitration will be solely responsible for any cancellation fee, which will not be included in the $3,500 share limit.
The Conflict Resolution Advisory Committee will annually review the operation of the $3,500 share limit and $5,000 cap to determine if adjustment is needed based on arbitrator fees, inflation, or other factors.
The Office for Conflict Resolution and hearing panels will not disclose individually identifiable documents or information concerning an informal or formal process except as necessary to comply with procedures for conducting the hearing, or as required by law. All hearings will be closed to the public.