16.1 Definitions 70
16.1.1 A grievance is an alleged violation, misinterpretation or misapplication of the terms of this Agreement that has adversely affected the grievant.
16.1.2 A grievant may be a unit member, a group of unit members, or the Union acting on its own behalf or on behalf of member(s) of the unit.
16.1.3 A “day” for the purposes of this article, is a day during which the District Office is open for business and on which unit members are expected to report for work.
16.2.1 It is the purpose of this procedure to secure, at the lowest possible management level, proper and equitable solutions to grievances and to guarantee an orderly succession of procedures within which a solution may be pursued.
16.3 General Provisions
16.3.1 Any grievance which arose prior to the effective date of this Agreement shall not be processed pursuant to the terms of this grievance procedure.
16.3.2 A grievance must be filed within thirty (30) days after the alleged act or omission giving rise to the grievance occurred, or within thirty (30) days from the time that the grievant knew or should have known that the alleged act or omission giving rise to the grievance took place.
16.3.3 Changes in the basis of the grievance or the requesting of a broader or increased remedy shall constitute a new grievance and shall be initiated at the informal level.
16.3.4 The failure of a grievant to proceed to the first or next steps of the grievance procedure within the time limits and conditions set forth shall be deemed to be an acceptance of the decision previously rendered. After the expiration of the time limit provided, the grievant shall have five (5) additional days to file a written reinstatement of the grievance. Failure to so reinstate the grievance shall constitute a waiver of any future appeal concerning the particular grievance.
16.3.5 The failure of the District’s representative to respond within the time limits and conditions set forth herein shall give the grievant the right to move the grievance to the next level of these procedures. 71
16.3.6 A grievance may be withdrawn at any level but the same grievance may not be filed a second time; provided, however, that if the same grievance was refiled pursuant to Section 16.3.3 above requesting a broadened or increased remedy, it would not be deemed the same grievance.
16.3.7 A grievance may be resolved at any level. However, if a unit member has presented a grievance to the District without using the services of the Union, no adjustment of that grievance shall be reached if the settlement is inconsistent with the terms of the Agreement. Furthermore, the District will not agree to a resolution of the grievance until the Union has received a copy of the grievance and the proposed resolution and has been given an opportunity to submit a response to the District.
16.3.8 The District shall not be required to pay back wages to a grievant prior to the date that the wage loss began.
(a) All claims and awards for back wages shall be limited to the amount of wages that the unit member would have otherwise earned, less any compensation the unit member may have received from any source during the period of the back pay except for interest, dividends and capital gains provided, however, that if a unit member held a job in addition to his/her job with the District prior to the inception of the period of back pay, the income received from that second job (but not to exceed the highest weekly average received prior to the back pay period) shall not be deducted from the amount of wages that a unit member would have earned.
(b) The decision of any individual case shall not require a retroactive wage adjustment in any other case or for any other unit member.
(c) The grievant shall have the right to be represented by a representative of the Union, at any level of the grievance procedure and to file a written brief or statement of position at any level. Only the Union shall have the right to determine whether to submit a grievance to arbitration.
(d) The time limits set forth in this Agreement may be extended by mutual agreement in writing. (e) A grievant shall be allowed reasonable time off to attend any grievance meeting concerning his/her own grievance mutually set by the grievant and District representative.
16.4 Grievance Committee
16.4.1 BCCE may designate up to five (5) unit members to serve on the BCCE Grievance Committee for the purpose of processing grievances. 16.4.2 BCCE shall notify the District in writing of the names of the members of the Grievance Committee on or before October 15 of each school year and of any subsequent changes.
16.4.3 A Grievance Committee member who is involved in processing a grievance shall be allowed reasonable time off to attend any grievance meeting mutually set by the grievant and District representative. Such reasonable release time shall be requested in advance.
16.4.4 Upon entering another work location the Grievance Committee member shall identify him/herself, if possible, to the supervisor in charge of that location and state the purpose and expected duration of the visit.
16.5.1 Level One – Informal Before filing a formal grievance, the grievant and/or the Union should attempt to resolve said grievance by an informal conference with the immediate supervisor. Each party should state his/her position and the background reasons for the problem should be explored. If the grievance is not solved at this level, the grievant and/or the Union may file a written grievance at Level Two.
At Level One, the grievant and/or the Union and the unit member’s immediate supervisor may agree that the source of the grievance is the action of a District administrator above the level of the unit member’s immediate supervisor and that the written grievance at Level Two may be filed with that particular administrator.
16.5.2 Level Two – Formal
(a) Within thirty (30) days after the occurrence of the act or omission giving rise to the grievance took place, the grievant must present the grievance in writing to his/her supervisor or to the appropriate administrator above the level of the immediate supervisor who has authority to resolve the matter. (b) The following information shall be included:
(1) Whether the matter had been discussed informally at Level One or, if the grievance is being initiated at a higher level
(2) A description of the general and specific grounds of the grievance, including the individuals involved, the applicable dates of the purported violation, the specific section of the Agreement that is alleged to have been violated, and the reasons why said provisions purportedly have been violated.
(3) A statement of the remedies sought. (c) The supervisor shall communicate his/her decision to the unit member and/or the Union in writing within ten (10) days after receiving the grievance. At the time that the grievance is filed, a conference may be requested. If requested, said conference shall be held within ten (10) days from the date of filing the grievance. The time within which the administrator has to respond to the grievance shall begin to run from the date of the conference.
16.5.3 Level Three – Superintendent
(a) In the event a grievant and/or the Union is not satisfied with the decision at Level Two, the grievant and/or the Union may appeal the decision to the Superintendent or his/her designee within ten (10) days of the receipt of the Level Two decision.
(1) The Statement of Appeal should include a copy of the original grievance, the decision rendered, and a concise statement of the reasons for the appeal.
(2) The Superintendent or his/her designee shall communicate his/her decision in writing to the Union and the grievant(s) within ten (10) days after receiving the appeal.
(3) Either party may request a conference within the time limits. If a conference is requested, said conference shall be held within ten (10) days. The grievant(s) shall have the right to be represented by the Union at any such conference called by the Superintendent or his/her designee. The time limit for the Superintendent or his/her designee to respond shall begin to run from the date of the conference.
16.5.4 Level Four – Mediation/Adjustment/Arbitration
(a) Following receipt of the Superintendent’s decision, the Union may file for arbitration within fifteen (15) days.
(b) Before submitting a grievance to arbitration, the parties may submit the grievance to a State Mediator or a Board of Adjustment. The submission of the grievance to mediation or to a Board of Adjustment must be by mutual agreement. In the absence of a mutual agreement, the Union may file for arbitration.
(1) State Mediation and Conciliation Service The mediator shall be from the State Mediation and Conciliation Service. If mediation is agreed to by the parties, it shall be convened within fifteen (15) days of the Superintendent’s decision, or as soon as the mediator’s calendar permits, unless the parties mutually agree to extend the time limits. The parties may agree in writing to a timeline for appeal to arbitration.
(2) Board of Adjustment A Board of Adjustment shall consist of two (2) representatives appointed by the District and two (2) representatives appointed by the Union. Any decision by the Board must be made by the majority of the members and shall be final and binding on the parties. If a majority decision is not reached, the Union may submit the grievance to arbitration. If a Board of Adjustment is agreed to by the parties, it shall be convened within fifteen (15) days of the Superintendent’s decision unless the parties mutually agree to extend the time limits
(c) The request for arbitration may be withdrawn at any time prior to the hearing before the arbitrator.
(d) General Rules Regarding Arbitration:
(1) The parties shall select a mutually acceptable arbitrator. Should they be unable to agree on an arbitrator within ten (10) days of the Union’s submission of the grievance to arbitration, a list shall be requested from the State Mediation and Conciliation Service. After this list is received, each party may reject one entire list. Assuming the list is not rejected, the parties shall alternately strike names until a single arbitrator remains who shall serve as the arbitrator.
(2) The arbitrator’s decision will be in writing and will set forth the arbitrator’s findings of fact, reasoning, and conclusions on the issues submitted. The arbitrator will be without power or authority to make any decision which requires the commission of an act prohibited by law or which is in violation of the terms of this Agreement. Additionally, the arbitrator does not have the authority to modify, add to, delete, or ignore any provision or term of this Agreement. The decision and award of the arbitrator will be final and binding upon the parties of this Agreement, except for court review pursuant to Code of the Civil Procedure Sections 1285-1288.8.
(3) All costs for the services of the arbitrator, including but not limited to, per diem charges, the arbitrator’s travel expenses and the cost of any hearing room will be borne equally by the District and the Union. All other costs will be borne by the party incurring them. Concerning transcripts, the cost shall be equally borne by the parties if the transcript is requested by the arbitrator or both parties. If only one party requests a copy of the transcript, that party alone shall incur the expense.
(4) By mutual agreement of the parties, the expedited labor arbitration rules of the American Arbitration Association may be used. In the event this mutual agreement does not exist, then the provisions as set forth above shall apply.
(5) The arbitrator shall issue the decision and award within thirty (30) days after the submission of the matter (including briefs, if any) unless extenuating circumstances are present.
(6) If a unit member is subpoenaed to testify in an arbitration hearing he/she shall receive time off without loss of compensation to so testify but only to the extent of his/her actual time of testifying and his/her coming and going thereto.