ARTICLE ELEVEN
APPEAL OF DENIAL OF TENURE, FAILURE TO PROMOTE, NONRENEWAL
OF PROBATIONARY APPOINTMENTS, TERMINATION OF TERM APPOINTMENTS
BEFORE THE END OF APPOINTMENT, AND RECOMMENDATIONS TO
TERMINATE A TENURED FACULTY MEMBER.
Section 11.0 Scope
The procedures of this Article will be available as the exclusive institutional
remedy for a Faculty Member who receives an unfavorable decision by the Executive
Vice President and Provost:
Subdivision 11.01 On Tenure
Where the first regularly scheduled decision on tenure has been not to
award tenure, or where the decision will result in termination.
Subdivision 11.02 On Promotion
Where the arbitration procedures of this Article had not been used by
the Faculty Member during the preceding four (4) years with respect to
promotion at the same rank, or where the grounds on which a previous promotion
grievance was denied have been materially altered.
Subdivision 11.03 On Non-renewal
Where the Faculty Member has been on the probationary track.
Subdivision 11.04 On Termination of a Term Appointment
It is agreed by the parties that the hearing for a Faculty Member on a
term appointment is available only when the termination of the Faculty
Member is to occur before the end of the term of the appointment.
Subdivision 11.05 On Termination of a Tenured Faculty Member
A tenured Faculty Member who receives a decision on termination by the
President may elect to seek a review of the President's decision by commencing
the review at the step provided in Section 11.4 within twenty-one (21)
days of the receipt of such decision.
Subdivision 11.06 Immediate Discharge of a Probationary Faculty Member
In the event a probationary faculty member is immediately discharged for
cause during an academic year, as opposed to a non-renewal as provided
elsewhere in this Article, the faculty member may seek a review pursuant
to Section 11.3, 11.4, and 11.6 as provided in this Article by requesting
such review in writing within twenty-one (21) days of receipt of such decision.
Subdivision 11.07 Discipline Other Than Discharge of a Probationary or Tenured Faculty Member
In the event a probationary or tenured faculty member is disciplined by
a suspension or written reprimand, such faculty member may seek a review
pursuant to Section 11.3, 11.4, and 11.6 as provided in this Article by
requesting such review in writing within twenty-one (21) days of receipt
of such action.
Section 11.1 Availability of Review
While decisions to promote, to award tenure, or to reappoint a Faculty Member
on probationary or term appointment are the responsibility of academic officers,
and while no opportunity for hearing is routinely provided in connection
with a failure to promote, to reappoint, or to grant tenure a hearing, as
provided in this Article, shall be available in such cases where there is
an allegation that the action was based on one or more of the grounds for
complaint in Section 11.2.
Section 11.2 Grounds for Complaint
It shall be grounds for complaint if a decision to deny tenure, to fail to reappoint, to fail to promote, to discipline, or to terminate a tenured Faculty Member, is:
Subdivision 11.21 Discrimination
Based on the Faculty Member's age, national origin, race, religion, creed, gender, or sexual orientation;
Subdivision 11.22 Academic Freedom
For reasons which violate the Faculty Member's academic freedom, as the term is defined and limited by the American Association of University Professors 1940 Statement of Principles on Academic Freedom and Tenure with the 1970 Interpretive Comments, Board of Regents Policy and UNI Policy 6.10 entitled, “Ethics and Academic Responsibility.”
Subdivision 11.23 Established Procedures
Made by the administration in a manner, which substantially fails to comport with established University procedures on tenure, promotion, or termination as defined in Section 11.0 except where subject to the provisions of Article Ten (Grievance Procedure);
Subdivision 11.24 Reasons and Facts
Made for reasons which are clearly inappropriate as a basis for decision or clearly without basis in fact; or
Subdivision 11.25 Expectations
Made despite the Faculty Member's reasonable expectations based on representations in writing made to him or her by authorized University administrators that the Faculty Member would be reappointed, granted tenure or promoted.
Section 11.3 Appeal Conference
Subdivision 11.31 Filing of an Appeal
A Faculty Member who desires review of decisions defined under Section
11.0 shall submit a notice of appeal to the Office of the Executive Vice
President and Provost within twenty-one (21) days of receiving notification
of the negative vice presidential decision. Unless mutually agreed
otherwise by the Board and United Faculty, March 1 shall be considered
day one when counting days for submitting the Notice of Appeal. Such
notice of appeal shall include the appropriate grounds for complaint as
defined in Section 11.2, and, in reasonable detail, the alleged facts which
support those grounds for complaint (Appendix C).
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Subdivision 11.32 Conference
Within twenty-one (21) days of the notice of appeal, a conference shall
be held between the affected Faculty Member and the Executive Vice President
and Provost, or her/his designee. At the conference, the affected
Faculty Member shall have the opportunity to present written evidence and
to make oral arguments in behalf of her/his position. Five (5) days
in advance of the conference, the Executive Vice President and Provost,
or her/his designee, shall provide a written statement of the reasons for
the negative personnel decision. Invited to the conference will be
the Dean of the College, head of the department, chair of the Professional
Assessment Committee or designee chosen by it, and a representative of
the United Faculty.
Subdivision 11.33 Disposition of Appeal
Within forty-five (45) calendar days of the conference, the Executive
Vice President and Provost, or her/his designee, will indicate her/his
disposition of the appeal, in writing, and shall furnish a copy thereof
to the affected Faculty Member and all invited parties.
Section 11.4 Arbitration
Subdivision 11.41 Nature of Appeal and Time Limits
If the affected member is not satisfied with the disposition of the appeal,
or if no disposition is issued within forty-five (45) calendar days of
the conference, she/he may file an "intent to appeal to the arbitrator." Such
intent to appeal shall be filed with the Office of the President within
forty-five (45) calendar days of receipt of the Executive Vice President
and Provost’s disposition of appeal. An intent to appeal may
be filed only if it contains an endorsement by the United Faculty (Appendix
D).
Subdivision 11.42 Selection of Arbitrator
When the grievance has been taken to arbitration, the parties shall, within
14 days, meet to select the arbitrator. The parties shall strike
alternately from the permanent panel of arbitrators as provided in Article
Ten, Subdivision 10.42, until one name remains. The person who remains
shall be the arbitrator. The parties shall promptly notify the arbitrator
of her/his selection.
Subdivision 11.43 Hearing Proceedings
The arbitrator so selected shall confer with the affected Faculty Member
and the Office of the President and hold a hearing promptly. The
hearing shall be open except by agreement between the Board and the Faculty
Member. The Faculty Member shall present evidence first and shall
have the burden of proving that the Board's action was improper under the
provisions of Section 11.2, except as provided hereinafter in this Subdivision. The
arbitrator shall issue a report not later than thirty (30) days from the
date of the close of the hearing. Such report shall be in writing
and shall set forth her/his findings of fact, reasoning and conclusions
on the issue submitted.
Subdivision 11.44 Standard of Review
The standard of review to be applied by the arbitrator shall be whether
the affected Faculty Member has proven by a preponderance of the evidence
that the Executive Vice President and Provost’s decision was in violation
of Section 11.2 of this Article.
Section 11.5 Dismissal of Tenured Faculty
Notwithstanding any other provision of this Article, in the case of dismissal
of a tenured Faculty Member the University shall have the burden of proving
just cause for the dismissal by a preponderance of the evidence, and in such
case the decision of the arbitrator shall be final and binding.
Section 11.6 Disposition of the Arbitrator's Report
Subdivision 11.61 President's Review
The report of the arbitrator, the Executive Vice President and Provost’s
disposition of the appeal, and the record made in the case, shall be forwarded
to the President for review. After reviewing the record, the report,
and the Executive Vice President and Provost’s disposition, the President
will determine what administrative response, if any, shall be taken. In
making such decision, the President will give great weight to the report
of the arbitrator. There will be no oral argument before the President,
but either party may submit a brief in support of the party's position. Such
brief shall be submitted within fourteen (14) days of the receipt of the
arbitrator's report by the parties. The decision of the President
shall be issued within sixty (60) calendar days following receipt of such
briefs.
Subdivision 11.62 Acceptance by President
If the President accepts the recommendation of the arbitrator, she/he
shall make appropriate recommendations, when necessary, to the Board to
implement the decision, and the case shall be deemed closed.
Subdivision 11.63 Rejection by President
If the President rejects the recommendation of the arbitrator, the President
shall do so in writing, giving reasons for going against the report. The
Faculty Member may then request and shall receive a review by the Board.
Subdivision 11.64 Appeal to the Board
Appeals for review of a presidential rejection of an arbitrator's recommendation
by the Board shall be filed within twenty-one (21) days of the receipt
of such decision. Upon request by a Faculty Member for a review of
a presidential decision, the Board shall confer with the parties and promptly
set a date for consideration of the appeal. The Board shall consider
the appeal and shall issue a decision in writing, which shall be transmitted
to the affected Faculty Member and the President. Such decision shall
exhaust administrative remedies provided in this Article.
Section 11.7 Other Provisions
Subdivision 11.71 Representation
A Faculty Member utilizing this procedure may be represented at all stages
by a representative of the United Faculty.
Subdivision 11.72 Application of Time Limits
The failure of an employee or United Faculty to act on an appeal under
this Article within the prescribed time limits will act as a bar to any
further appeal under this Article. An administrator's failure to
give a decision within the time limits under this Article shall permit
the appeal to proceed to the next step. The time limits may be extended
by mutual agreement.
Subdivision 11.73 Costs
The costs for the services of the arbitrator will be borne equally by the Board and the United Faculty.
Subdivision 11.74 Election of Forum
If a Faculty Member files any claim or complaint in any forum other than
under this Article, then, while the complaint is pending or if it has been
adjudicated, the Board shall not be required to process the same or a substantially
equivalent claim through the procedures of this Article.
Subdivision 11.75 Days Defined
In all instances in which "days" is specified in this Article,
the term refers to class days. Saturdays, Sundays, holidays, and
days when classes are not in session are not counted. Class days
during the summer session will be counted for faculty on summer appointment
(teaching or research) during the period of appointment. By mutual
agreement between United Faculty and the Board, class days may not be counted
for faculty on summer appointment. Class days for faculty not on
summer appointment will not be counted except by mutual agreement between
United Faculty and the Board. When counting days, the day the grievance
is received at any point in the procedure shall be considered "day
one".
Subdivision 11.76 Arbitration Hearings
All hearings before the arbitrator under this procedure shall be open
except if the parties mutually agree that the proceedings shall be closed,
or the arbitrator orders the proceedings closed for cause.
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