Recipe for a grievance hearing in nine easy steps (December 2003)
A couple of months ago, I griped about the new laws affecting grievances and hearings. Today, we’ll look at what goes into a grievance hearing, so that you may conduct the less contentious ones without the expense of a lawyer. I know it might be impossible to tell just how contentious a hearing might become, at least until it’s too late, but there are some relatively cordial grievance hearings every now and then. So, let’s go through the process. (If there is an issue of whether the employee is bringing a grievance which is not grievable, then look at the end of this column for the procedure.)

When the meeting is called to order, the order the hearing is as follows:

1. State the following: “This is a hearing on a grievance brought by an employee (Name). Is the employee represented by an attorney or other person?” (Ask any representative to identify himself.)

2. Ask the employee whether he wants the hearing to be open or closed to the public. (Note: That choice is solely that of the employee. If he wants it closed, remove all who are not directly involved in the hearing in some way from the room.)

3. State that both the employee and the administration will have a maximum of 90 minutes in which to make their presentations. (Plan on starting the time clock running as soon as the employee— or his representative—begins his presentation.)

4. Ask the employee (or representative) to begin the hearing by stating, first, the nature of the grievance (i.e., what his gripe is) in a very short statement, followed by what he wants the Board to do about it. (This is called the “relief” sought by the employee.) If the employee or his representative can’t do that, he has a problem. The Board must know not only what the problem is, but what the employee wants done about it. Insist that this information be stated to the Board on the front end. This is not information that you should have to pick out from all of the statements, documents, etc., that the employee might want to present. If he can’t tell you what he wants and why, he probably doesn’t have a grievance, but just a bad attitude (or, he might just be angry about something that the Board can’t fix. Or, for that matter, shouldn’t try to fix). When he begins talking, the clock starts.

5. Once you’re past that hurdle, ask the employee to present the information in support of his grievance. We don’t care how that’s done, as long as it doesn’t involve fist fights or gunplay. The employee or representative may make an opening statement; the employee may make his one statement; he may call additional witnesses; he may present documents. Anyone making a statement—employee, witness, or, for that matter, even the representative —may be questioned by the School Board at the end of each statement. (Usually, asking for information from the attorney or other representative will get a bunch of self-serving arguments, not legitimate information, so try to avoid that). Mind you, the law requires that you afford the employee a minimum of 90 minutes for his presentation, but the law doesn’t require that he use it all.

6. When either the presentation by the employee has been completed or he has used his 90 minutes, ask the administration to begin its presentation. Start that by asking the administration to state its recommended disposition of the grievance, and the decisions which have been made at the various administrative levels of the grievance process. This is similar to what you asked the employee to do at the beginning of his presentation. When the superintendent or other administrator starts talking, start the clock.

7. At the conclusion of the administration’s presentation, ask the employer or his representative to make a (short) closing statement, followed by the administration.

8. Vote. You may either affirm the administration’s decision; overturn the administration’s decision and give the employee the requested relief; or you may do something in between, a modification of the administration’s decision. If you want to discuss the grievance before the vote, how that is done depends on whether the hearing is open or closed. If closed, send everyone but Board members out of the room while the discussion occurs. If open, you have to discuss everything in public, unless the subject of the grievance is one which falls into one of the executive session exceptions to the Freedom of Information Act (and those types of grievances are fairly rare).

9. Go to the next item on the agenda.

Now, if the administration presents the grievance to you as one which does not fit into the definition of a grievance under your policies or state law, you must first hear whether the employee brings a “grievable” issue. To do that, have the employee (and/or representative) explain to the Board how this is supposed to fit into the definition. Then, have the administration respond, explaining how this is not a grievable issue. Following those explanations, the Board votes on whether to hear the grievance. If the Board decides that it is not a grievable issue, go to the next agenda item. If the employee’s grievance does fall into the definition of a “grievance,” begin the hearing on the grievance itself.

For the part of the hearing in which the Board determines whether a grievable issue has been brought by the employee, there is no minimum time for the employee or administration to be heard. Establish some reasonable amount of time, perhaps 10 or 15 minutes (max), since this is to determine whether the issue should be heard. You don’t hear the full grievance in that pre-hearing. You have the potential to be in that full hearing a full 3 hours, so don’t let anyone waste your time explaining a procedural issue like that for hours.

Easy enough? You betcha. Now go have some fun with grievances!

Previous Article (November 2003)- More excellent laws to help schools
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ASBA Handbook for Arkansas School Board Members