Special Bulletin # 3, January 1977

Published by CSEA/SPSE as a Service to Lawrence Livermore Laboratory Employees

THE REAL EARTH EMPLOYEE HANDBOOK

DISMISSALS

1. Introduction
2. Two Types of Dismissal
   1. Indefinite Layoff
   2. Dismissal for Cause
3. Recourse to Bad Evaluations and/or Low Raises
4. Recourse After a Letter of Warning
5. Grievances and Hearing Procedures
   1. Who Can Represent You?
   2. What is a Grievance?
   3. Administrative Review
   4. Informal Review
   5. Filing a Grievance
   6. Formal Hearing Request
   7. Arbitrator or LLL Hearing Officer or Committee
6. Conduct of the Grievance Hearing
7. Post-Hearing Appeal
8. Judicial Review
   1. Hearing Transcript
   2. Justification for Court Action
   3. Exhaustion of Internal Recourses

I. INTRODUCTION

     The Society of Professional Scientists and Engineers (SPSE) was formed in 1973 in partial response to repeated Lab-wide layoffs. These layoffs were conducted in a manner that was arbitrary, insensitive to the rights and dignity of the employees involved, and often in violation of written University policies. Many employees accepted layoff as a legitimate prerogative of LLL management. Other laid-off employees fought back, used the University's grievance procedures, the courts, and the influence of elected representatives to win reinstatement. Their record of success shows that an informed and tenacious employee can sometimes win justice even under rules and procedures that are reminiscent of 19th-century management.

     This handbook was originally conceived as a manual to inform employees of their rights and recourses if and when they were selected for layoff. However, since the formation of SPSE, lab-wide layoffs have, at least temporarily, been abandoned as a means of balancing the budget. Nevertheless, we still find employees who are unjustly fired allegedly for cause but often in violation of University policies and commonly accepted standards of human decency. Therefore the scope of this handbook has been expanded to provide information on employee rights and procedures in cases of dismissal for cause under the existing University Staff Personnel Policy. These actions are taken against individuals who usually had no previous knowledge of possible dismissal because they did not recognize any of the danger signals or were not given adequate information at evaluation time. The common phrase of "keep up the good work" does not mean you are safe from these actions. Further, a good evaluation or good raise alone does not imply safety. After reading and understanding this handbook it is our hope that each of you will know the danger signals and how to counteract them early enough to effect a good outcome.

     The laws, policies and procedures that apply to you are contained in several different documents. Appendix A to Contract 48, the UC Staff Personnel Policy (SPP) and the Supervisors' Manual (SM) are readily available in the libraries and employees are urged to read these documents. The UC Staff Personnel Policy is official policy and provides the guide- lines for the Supervisors' Manual. The Supervisors' Manual is the procedural guide for the Lab. Updated copies of these documents are in the Human Resources and Laboratory Relations Office. If you question the currency of the copies in the library, be sure to check with the above office or a Job Steward.

II. TWO TYPES OF DISMISSAL ACTION:

INDEFINITE LAYOFF AND DISMISSAL FOR CAUSE

     There are two distinct processes by which an employee may be terminated. The indefinite layoff may occur when employees are terminated because of a lack of work or lack of funds. It is implicit in the University policy on indefinite layoffs that the layoff should affect not just single employees. Rather, it should include a sufficiently large number of employees so that planning for reduced staff needs cannot meet the required reduction in work force. Dismissal for cause is directed at an individual employee and requires that management prove that the employee is guilty of misconduct or has failed to maintain appropriate work performance standards.

     It is characteristic of LLL management that they are unable, or even unwilling, to separate the two types of dismissal action. During the "RlFs*" of the early 1970's, LLL management used the layoff procedure to eliminate unwanted employees. Hiring was conducted concurrently with the firings. Employees were enticed into ignoring their own rights by being granted severance pay. The LLL management told these employees that they were being given special consideration (severance pay) when in fact management was using layoff as a means of avoiding their responsibility to establish cause. Even with the past RlFs behind us, the confusion persists; supervisors have been so poorly trained that some have attempted (and even succeeded) at firing employees at their own whim without regard for the employee's rights.

Comment: If you are laid off or dismissed you may be eligible for unemployment benefits.

*RIF - Reduction in (work) force.

IIa. INDEFINITE LAYOFFS

     The term indefinite layoff designates the situation in which employees are terminated from employment because of lack of work or lack of funds (SPP 760.1). It is important to understand the difference between a layoff and a dismissal for cause. Layoffs will affect not just isolated employees but rather a sufficient number of employees that a layoff cannot be avoided by planning, by transfers to other departments or by other reasonable means. Layoffs are not properly a way to rid LLL of poor performers, persons with medical disabilities or other problems which may lead to termination for cause. (SPP 760.11, 760.12).

     The order of layoff for career employees in the same class within a department is in inverse order of seniority except that employees may be laid off on the basis of performance if there are substantial differences in performance determined by departmental records including at least one performance evaluation completed within the 12 months preceding the layoff (SPP 760.13).

Comment: Cases in which the meaning of "substantial" in the above was in dispute have gone to court and employees have won reinstatement with back pay. This does not guarantee that in any individual case the employee will win if be takes his case to court, but it does mean that the University cannot interpret "substantial" in an arbitrary way (see for example Santos vs. Regents, Superior Court, Alameda County, August 4, 1976).

    
Notice of layoff must, if feasible, be given at least 30 days before termination (SPP 760.15). Laid-off employees are to be given preferential rehire status for a period of 12 months following layoff. These preferential rehire rights apply within a department, in other departments and at other campuses (SPP 760.2 - 760.2 3).

     In the event that LLL announces another RIF and you are selected for layoff:

1. Make sure you understand why you were selected.
2. Check out the UC Staff Personnel Policy, Section 760, thoroughly to determine if any of your rights have been violated.
3. If it appears that policy has been violated, you may file a grievance. You must do so within 30 days of notice of layoff in order to protect your right to grieve. Furthermore, if you fail to grieve, you will probably not be allowed to seek redress in the courts. Generally the courts require that all possible avenues for administrative review be exhausted before they will hear a case.

Warning: As this is being written, the University Staff Personnel Board is considering sweeping changes in the policy on indefinite layoffs. The first drafts of the proposed new policy can only be described as regressive. If the policy is adopted, LLL would have a virtual free hand in laying off employees at their whim. CSEA has objected to the proposed policy and there are indications that the UC Staff Personnel Board is listening. However, we cannot guarantee that the policies outlined above will be applicable if and when there is another RIF.

IIb. TERMINATION FOR CAUSE, DISMISSALS

     The legitimate purpose of the termination for cause is to allow termination of employees for misconduct or for substandard work performance or for inability to perform their job (e.g., medical disability). Unfortunately we find many abuses of this procedure. Supervisors sometimes take a dislike to a particular employee and attempt to have the employee fired. The supervisor is often unaware that the employee has rights under the University Staff Personnel Policy which circumscribe arbitrary dismissals. CSEA has successfully defended employees who were threatened with dismissal for sundry reasons such as (a) they sought help from their union, (b) they replied in writing to an employment evaluation, and (c) they objected to working scheduled overtime.

     Usually a dismissal for cause is proceeded by a poor annual performance evaluation. An alert employee will insist that he understands and agrees with his annual evaluation. If you and your supervisor cannot agree on the wording of your evaluation, it is important to respond in writing to the appraisal, to carefully identify your response as such and to insist that the response be attached to the evaluation. In your response you should attempt to refute, point by point, the allegations on which the poor evaluation is based.

     Terminations for cause are covered in SPP 740 (Dismissal of Regular Status Employees ), 750 (Quit Without Notice), 765 (Medical Separation) and 775 (Retirement). Disputes most often arise in connection with Section 740 and therefore we provide that section:

DISMISSAL OF REGULAR STATUS EMPLOYEES (740)

Application: Regular status employees who are separated from employment by management action because of misconduct or failure to maintain appropriate work performance standards are considered to be dismissed. Normally, dismissal is preceded by corrective action (see Section 270) unless unsatisfactory performance or misconduct is so serious as to warrant immediate dismissal. (740.1)

Authority: The President and the Chancellor may extend the time limits in this policy.

A supervisor below the level of a department head may dismiss a regular status employee after consultation with the Personnel Manager and with the approval of the department head. A supervisor at the level of a department head or above may dismiss an employee after consultation with the Personnel Manager. (740.2)

Written Warning: Dismissal shall be preceded by at least one written warning, except in those situations when the employee is absent from work without approval for five consecutive, assigned working days, or in those situations in which the employee knows or reasonably should have known that the performance or conduct was unsatisfactory. Such performance or conduct may include but is not limited to dishonesty, theft or misappropriation of University property, fighting on the job, insubordination, acts endangering others, or other serious misconduct.

Written warnings shall describe the nature of the offense or deficiency, the method or methods of correction, and the probable action to be taken if the offense is repeated or the deficiency persists. (740.3)

Investigatory Leave: An employee may be placed on investigatory leave without prior written warning or approval, usually for periods not to exceed fifteen calendar days, in order to review or investigate actions including but not limited to dishonesty, theft or misappropriation of University property, fighting on the job, insubordination, acts endangering others, or other serious misconduct of a nature which requires removing the employee from the premises. The leave must be confirmed in writing to the employee normally not later than two working days after the leave is effective. The notice must include the reasons for and the expected duration of the leave.

Upon conclusion of the investigation, if no corrective action or dismissal action is taken, the employee shall be paid for the leave period. If corrective action or dismissal action is deemed necessary, it shall be taken in conformance with the provisions of Sections 270.7 or 740.5 and 740.6, as appropriate. (740.4)

Written notice of Intention to Dismiss: A written notice shall be given to a regular status employee of intention to dismiss. The notice shall (1) state the reason for the intended dismissal; (2) include a copy of the charges and materials upon which the intention to dismiss is based; and (3) state that the employee has the right to respond either orally or in writing within five calendar days. (740.5)

Written notice of Dismissal: After the employee's response or five calendar days from the date of notice of intention to dismiss, whichever is sooner, the employee shall be notified in writing of the decision. If it is determined that dismissal is appropriate, an employee shall be given advance written notice of dismissal. The effective date shall be at least ten days from date of issuance of notice of dismissal or fifteen days from issuance of notice of intention to dismiss, whichever is later.

While written notice is required in all cases, no advance notice need be given in those situations in which an employee is absent from work without approval or knows or reasonably should have known that performance or conduct was deficient or unsatisfactory. Such performance or conduct may include, but is not limited to dishonesty, theft or misappropriation of University property, fighting on the job, insubordination, acts endangering others, or other serious misconduct. The notice shall (1 ) specify the effective date of dismissal; (2) state the reason for dismissal; (3) state the employee's right to appeal; and (4) if the employee was on an investigatory leave, state whether such leave plus the time up to the receipt of the employee's response or the five calendar days provided in Section 740.5 shall be with or without pay. If an employee was absent from work without approval, the five days for response to the notice of intention is without pay.

If dismissal is not appropriate, the supervisor shall inform the employee of this fact and state what other action, if any, shall be taken. (740.6)

Pay in Lieu of Notice: When appropriate, the Chancellor or, for system- wide administration, the President may approve up to fifteen calendar days' pay in lieu of notice. (740.7)

Eligibility for Reemployment: A dismissed employee may be considered for reemployment only after consultation between the prospective department head and the Personnel Manager. (740.8)

     In the subsequent sections of this handbook, we outline the rights and recourses available to employees caught in either of the two types of dismissal actions.

III. RECOURSE TO BAD EVALUATIONS AND/OR LOW RAISES

     If you receive a bad evaluation and/or a low raise, there are several things you can do. It is important that you register your lack of agreement with bad evaluations by doing the following:

1. Request a detailed, written exposition of your shortcomings from your evaluator.

2. Respond in writing to these statements and request that your response be attached to your evaluation, or respond in writing on the written evaluation.

3. Request a clear, written statement of how you can improve your performance (this is required by University regulation and LLL regulations).

4. Request a clear, written statement of where you stand with respect to the other people rated along with you (i.e., where do you rank with respect to your peers). The answer should include a clear determination of where you are ranked by evaluation (performance), where you are ranked by absolute value of your salary, and where you are ranked by percentage increase in salary (i.e., your raise).

5. Request a clear, written statement of where your salary, with the raise, falls with respect to salary guideline curves published by LLL.

6. Request a clear, written statement of the value of your job. Your raise may be determined as much by the value placed on your job by LLL as by your evaluations. As a matter of fact, you may be getting even lower raises than your evaluation warrants just because of the low priority your job may have in the eyes of your evaluator.

7. Request a clear, written statement of the last three items for the previous year's evaluations and raises.

     All of the above actions seek to document what has been done to you, who has done it and why what has been done is a "miscarriage" of good management and supervision. If you have trouble obtaining this information, it is advisable to make the request in writing. Remember! You have a University defined and LLL published right to know how you are evaluated with respect to your fellow employees. It is extremely important to determine where you stand. You may be getting low raises/evaluations and not know it. This may not lead to dismissal as such, but it certainly implies a low opinion of you on the part of your reviewer. A "pat on the back" and saying "good work" does not equal a good evaluation. Your position with respect to your peers, in age and education, is an essential guideline.

     Some other things that one can do are:

• Request a higher priority job. Job content, the importance of your job to your reviewer, and its difficulty or lack thereof are often cited as reasons for your current plight. Failure to be given a higher priority job certainly may indicate your reviewer is dead ending you.
• Seek transfer to another division.

     With regard to remedies for a low raise, there are salary data available to every division leader and, by LLL regulation, to you through the division leader. This information includes:

• Laboratory wide percentage raise
• Department wide percentage raise
• Division wide percentage raise
• Where you rank with respect to your peers in the division
• Where you are with respect to the LLL (salary) maturity curves, both the guideline curves and the actual curves after the raises have taken effect.

     If you have not gained satisfactory redress through implementation of any of the previously suggested courses of action, you should file an administrative appeal, and in some cases a grievance. It is very important, if the administrative appeals are to be successful, that you have the written documentation suggested above. Such documentation often exposes the indefensibility of an evaluation and salary change decision.

IV. RECOURSE AFTER A LETTER OF WARNING

     A bad evaluation or a low raise may be followed by a written warning outlining corrective action to be taken by an employee or, in some instances, by a letter indicating there will be no further employment in your department. This is not the same as a general layoff or the "RlFs" that LLL has had, but is an action taken against an individual by management and the Personnel Manager. The main thing to note in this type of action against an individual is that it is a grievable action in the broad sense. At LLL, a distinction is made between a grievance and an administrative appeal, which is discussed later in this handbook.

     In all cases the written warning shall state:

• the nature of the offense or deficiency,
• the methods of correction, and
• the probable action if the correction is not accomplished.

     This letter of warning is a necessary step (except in those few obvious cases where the employee should have known his conduct or performance was unsatisfactory, such as theft or misappropriation of LLL property, fighting on the job, insubordination, acts dangerous to other employees, etc.).

     After the letter of warning, the next active step taken by LLL is a "written notice of intention" to impose corrective action, or to dismiss. In the case of corrective action, a 15 day investigative leave may be forced on the employee. If no further action is taken, the employee will be paid for the leave and returned to work.

     The "written notice of intention" must contain:

• a statement of the reason for the action,
• a copy of the charges, and
• a statement that the employee has the right to respond to the reason and charges within 5 calendar days (currently being challenged by CSEA to be changed to 30 days).

     This action can then be followed by the formal corrective action or dismissal letter, if the Personnel Manager determines that it is appropriate. The letter must be given 10 days before the action takes effect.

     The dismissal letter must state:

• the effective date,
• the reason for the action or dismissal,
• the employee's right to a grievance, and
• if the employee is on an investigative leave, it shall state that leave time will be with or without pay.

V. GRIEVANCES AND HEARING PROCEDURES

     For purposes of this discussion, it is assumed that an employee has failed to resolve his differences with his supervisor or other employees through friendly discussions and mutual concessions, and that the employee feels that his supervisor or LLL management is acting improperly in some way which is adverse to his interests as an employee. The grievance hearing is the formal procedure by which the employee may appeal this action within the University and occasionally obtain redress. This section outlines some of the main features of these procedures, as well as some of the subsequent measures which are available.

Comment: It should be emphasized that a grievance hearing is a serious matter; at the very least it represents a serious breakdown of communication between an employee and his supervisor or other employees. The prosecution of grievances and hearing procedures is a difficult task involving considerable personal stress in most instances Even if it is successful, it may sometimes have a permanent impact on the employee's relationships with his fellow workers and LLL management. An employee should consider carefully whether continued employment at LLL is worth the personal price of a grievance hearing.

Va. WHO CAN REPRESENT YOU?

     An initial question facing the employee-grievant is whether to act on his own behalf or to be represented by another individual. There are no restrictions on whom an employee may choose to act as his representative; the representative may be another employee, or a lay person not associated with LLL, or the grievant may employ an attorney. In tactical terms, each of these choices may have important consequences. If a grievant is represented by an attorney, or by "legally trained counsel," LLL will necessarily be represented by the University Office of the General Counsel; if he is represented by someone else, the LLL representative need not be a lawyer (SPP 280.12, SM 1-8 (f)). In some instances where the employee represents himself, the LLL representative is the Department Head (SPP 280.7 (e)).

Comment: There are no simple rules for assessing the pros and cons of the decision to have representation. This is partly because of the peculiarities and specialized nature of employment at LLL. A person with experience in employment grievance hearings inside or outside LLL, even within the University system, may have no special advantage as a representative The issues may turn on the facts involved in the employment itself, facts with which the employee himself is the person most familiar. In some respects, the employee is her own best advocate. On the other hand, he is also the person whose future is at stake, and he is therefore under a certain amount of resulting personal stress. The benefit of having a representative arises, to some degree, from the fact that another person is willing to perform an arduous task for the employee. An additional factor to bear in mind is that a representative who is hired by the grievant (such as an attorney) is ethically bound to represent only the grievant's interests, to the exclusion of his own or someone else's interests. In the last analysis, even if the grievant engages legal counsel, he still will have to educate and explain to his advocate the relevant facts of his own case in the light of LLL rules and regulations which he claims to be violated. Thus, it behooves the employee grievant to become thoroughly familiarized with the University and LLL policies and procedures as they apply to the employee's own situation. CSEA counsel, in LLL cases, may be useful because of the extensive litigation CSEA has carried out in this area.

Vb. WHAT IS A GRIEVANCE?

     A grievance is a process for seeking redress in employment disputes. The rules which pertain to LLL employee grievances are contained partly in the UC Staff Personnel Policy and partly in the LLL Supervisors' Manual. There are also policy statements and memoranda which bear on this subject and, as we mentioned earlier, some material in Appendix A of Contract 48. The interpretation of these documents is by no means unambiguous. It is not an easy task to stay abreast of these rules for they are constantly being revised and updated. Indeed, at the time of this writing, some of the pertinent material in the Supervisors' Manual is already obsolete. This discussion refers to those rules in effect as of May, 1976. We have reviewed the recent (11/1/76) revisions to the Supervisors' Manual and our references are made to this latest edition. The reader should always consult the latest addenda before acting on any information in these manuals.

     UC Staff Personnel Policy Section 280 and the Supervisors' Manual Section 1-6 deal with the subject of the grievance procedure, and SPP 280.2 and 280.3 contain certain fundamental restrictions on what matters are subject to this procedure. Basically, a grievance must be directed toward "alleged improper implementation of a University personnel policy or an implementing campus* regulation" in order to fall under this procedure, except for certain types of disputes which are discussed in the next section (SPP 280.21). It is necessary that an employee who wishes to utilize the grievance procedure must point to the violation of a specific rule or policy regarding personnel matters.

* LLL is a campus in the context of UC Policy.

Vc. ADMINISTRATIVE REVIEW

     There are several actions that you may think would be grievable but which the University excludes under their rules (SPP 280.3 (d)). These categories are:

• classification of positions,
• performance evaluations, and
• salary actions which are not "corrective disciplinary salary actions."

     All appeals which fall in one of these categories, and any other appeals which are excluded from the UC grievance hearing procedure, are subject to a procedure entitled "Administrative Review" under SPP 290 except in cases where certain types of discrimination are the reasons alleged for any of the listed actions (SPP 280.4). The "Administrative Review" procedure is called "Administrative Appeal" in SM 1-13 seq. In addition certain individuals may not utilize the grievance procedure, namely: career employees who are on probation, certain "casual employees," and employees in the University Management Program.

     The procedure for the Administrative Review is rather sketchy, however there are a few requirements which must be met. The administrative officer to whom the request for a review is made is to determine the steps to be taken to best resolve the problem. This officer must follow the provisions below:

• The request for a review must be made in writing.
• The procedure must be as informal as possible.
• The employee may have a representative; only the administrative officer may question the principals.
• The administrative officer must reply in writing in 10 working days; an appeal to the Director, if made, must be in writing and within 5 working days.

Comment: This alternative procedure of Administrative Review is much more restricted in scope in that it does not provide for a "hearing" as such, nor does it allow presentation of evidence and questioning of witnesses. The administrative officer is the only person who may question witnesses or parties to the dispute. This procedure is relatively new, and its efficacy with regard to settling questions and disputes is still not known.

Vd. INFORMAL REVIEW

     The initial step for pursuing a grievance under the provision of SPP 280 is Informal Review (SPP 280.5); that is, the employee should discuss his situation informally with his supervisor, department head, or even the Personnel Manager. It is often helpful for an employee to submit a carefully written memorandum in advance of this discussion outlining what his specific grievance is, and specifying precisely what rules have been violated. Following the discussion it is sometimes advisable also to submit a memorandum stating the employee's recollection of what his position is, what views the administrative officer expressed, how they differ, and what was accomplished at the meeting. These memoranda are not simply an exercise in futility; they serve a very important purpose in clarifying the issues and facilitating communication with the management. These are key objectives in preparing for a grievance hearing. Further, these memoranda force the employee to articulate specifically his gripe and rethink his position, and this in itself may lead to settlement of the dispute before the formal proceedings are commenced.

Comment: If you intend to embark on the course of a grievance, it is often advisable to decide who will represent you as early as possible. If you choose to have a representative other than yourself, that representative can participate as soon as you suspect there is a problem.

Ve. FILING A GRIEVANCE

     Assuming that Informal Review is unsuccessful in resolving the dispute, the employee's next step is to request a formal hearing in writing or, as it is called, "File a Grievance". Under the University rules, the LLL management is responsible for establishing the appropriate procedures (SPP 280.7), although certain general rules are applicable. According to present LLL rules, the employee must submit his grievance in writing on a form supplied by the Personnel Office. The information required will be similar to that contained in the memoranda during the Informal Review phase. The employee will also be asked to specify what remedy he seeks, e.g., reinstatement, reassignment, etc. This step should be taken promptly, since a grievance must be filed within 30 days after the grievant knows, or reasonably should have known, of the event or action which gave rise to the grievance (SPP 280.7(a)). A terminated employee has 30 days following termination in which to file a grievance (memo of March 8, 1974 from C. O. McCorkle). After the filing, the department head is given a chance to respond, favorably or unfavorably, within "established time limits", which are 10 days in the case of LLL (SM 1-9 B.3). If the grievant concurs with the response, the matter ends here; otherwise the grievant proceeds to the next step, which is designated "Step 11" in the Supervisors' Manual (Appeal to the Laboratory Director).

Comment: Be sure that your written grievance is brief, concise and focused on the issues. Avoid addressing any subject except the policies that have been misapplied. Many grievances are not accepted by LLL because the Employee Relations Manager does not interpret the alleged action to be a violation of policy.

Vf. FORMAL HEARING REQUEST

     Step II is initiated by a written appeal of the department head's decision, requesting that a "formal hearing" be convened. There is no set format for this appeal, but it is in the nature of a petition to the Director of LLL, filed in the Personnel Office within 10 days after the department head's decision is received by the grievant (SM 1-10). Again, this petition must summarize the specific facts surrounding the dispute, the rules or policies allegedly violated, and the relief sough t by the employee. This summary is very important, because it will determine in large part what issues may be considered at the hearing. If the grievance was filed properly, it will usually contain this information.

     The Step II petition for a formal hearing should identify the person whom the grievant has chosen as his representative, if any. In addition, it is helpful, although not mandatory, for the grievant to identify those persons, if any, whom he wishes to assist him at the hearing; i.e., take notes, organize documents, etc. The grievant's stenographer, if known, should be identified.

     The Step II petition should identify those documents, records and reports which the grievant wishes to be made available at the hearing, and the names of those persons whom the grievant wishes to call as witnesses to give testimony at the hearing. It may be noted that the grievant is entitled to obtain this same information in return from LLL at least 5 days before the hearing (SPP 280.7(e), SM 1-10), and this information should also be requested in the petition.

     In regard to time limits, strictly speaking, the deadlines specified in the regulations are rigorous, and failure of an employee to perform a certain act within the prescribed "statute of limitations" will bar any further pursuit of the grievance. Nevertheless the Employee Relations Manager may grant an extension of any time limits if the employee shows cause (SM 1-11). Requests for such extensions should be made in writing, with accompanying explanations of the justifications.

Comment: An important goal in the successful preparation for a grievance hearing is the elimination of surprise. In principle, a grievant has a right to know what contentions are to be made by LLL's representative at the hearing in order to prepare counter-arguments. Nowhere do the rules spell this out, although it now appears to be LLL practice. It may be possible to address specific questions by way of memoranda to definite persons, in order to clarify issues and positions of the parties in the dispute. No harm can result from making such requests. One might contend, in fact, that such a request, if denied, followed by surprise allegations at the hearing constitutes grounds for continuing the hearing to a later date to afford the grievant time for additional preparation.

Vg. ARBITRATOR OR LABORATORY HEARING OFFICER OR COMMITTEE

     The grievant has the option to request in his petition that the appeal be heard and decided by a non-University hearing officer, that is, an arbitrator (SPP 280.7(c), SM 1-10). If he does so, then the arbitrator is selected by a mutual process of elimination from a list of names submitted by the American Arbitration Association; that is, the LLL representative and the grievant alternately strike names from the list until an arbitrator is selected. If the grievant does not request an arbitrator, the LLL Director may choose either a Hearing Officer or a Hearing Committee, selected from the ranks of LLL and/or University employees (SM 1-10).

Comment: The question whether to request an arbitrator is another imponderable decision which faces the employee grievant. If an arbitrator is requested, often they will be a lawyer or a person with legal background and training. This may or may not be beneficial to the grievant. One must assume that the arbitrator will be a fair-minded judge. On the other hand the arbitrator may not be familiar with LLL policies or working conditions, or the specialized nature of technical employment at LLL. There is no way to forecast what biases or prejudices may be involved, arising from the arbitrator's previous experiences. On the other hand, if the Director chooses a hearing officer or committee, presumably they will be persons who have no connection with or prior knowledge of the employee grievant and the facts of the dispute. It must also be presumed that they will attempt to adopt an unbiased approach to the situation and will try to render a fair decision. It may well be argued, however, that such employees are faced with a conflict of interest which makes them unable to render a truly unbiased decision. No man can serve two masters, and human nature being what it is, there may always be serious doubt whether any hearing officer's or committee member's judgment can be totally unaffected by the fact that one of the contending parties (LLL) is responsible for his livelihood. However, this argument may cut both ways; sometimes an employee may be more sympathetic to another employee's problem than an outside arbitrator might be. Note also SPP 280.14 and SM 1-8 forbidding the use of any authority or influence by an employee, directly or indirectly, in any manner with the intent of discouraging the grievance process. One further factor which should be considered is the cost of arbitration. If the LLL Director approves the arbitrator's decision, then the cost is shared equally by the employee and the University; if he does not, then the University pays the entire cost (SPP 280.64, SM 1-12).

VI. CONDUCT OF THE GRIEVANCE HEARING

     Under LLL rules, the Grievance Hearing must be held within 20 days after receipt of the employee-grievant's petition (SM 1-11). The hearing procedures are to be established by the LLL Director. The conduct of the hearing itself is, to a large extent, at the discretion of the hearing officer/committee/arbitrator (SM 1-11). However, there are some general principles required under the University rules and policies which characterize these hearings.