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AGO Grievance Procedures
Approved by the National Council of the AGO on: October 22, 2007
Effective November 15, 2007; Updated April 19, 2009
A. These Procedures for Dealing with Complaints about Termination are not legal proceedings. They are a means to determine if an Institution has wrongfully terminated a Member and, if so, whether there are circumstances under which the Guild shall prohibit its Members from accepting regular or permanent employment by that Institution.
II. General Guidelines
A. Neither party may participate in these Procedures through legal counsel. If either party insists upon involving legal counsel in the Procedures, these Procedures shall be terminated.
B. While an employment contract is recommended, its existence is not necessary to invoke these Procedures.
C. Exceptions to these Procedures may be made at the discretion of the Councillor for Professional Development, in consultation with the Committee on Career Development and Support.
D. Only Members who are grievants may implement the Procedures. A chapter may not implement the Procedures, nor may an Institution. (Disputes between and among Members are resolved through the AGO Discipline. Go to www.agohq.org "Official Guild Documents" Discipline.)
E. It is the duty of the Member to become thoroughly familiar with the Procedures before initiating the Procedures. Any settlement agreement or release must be disclosed to the grievance Committee. Use of these Procedures may conflict with settlement agreements and releases and with prior, concurrent or subsequent litigation and Alternative Dispute Resolution.
F. Prompt action by the Member is advisable. There is nothing to prevent an AGO Member from accepting the grievant's position if a grievance has not been filed. The Procedures should be initiated as soon as possible after termination, but must be submitted within 90 calendar days of the termination.
G. The importance of confidentiality which must be maintained throughout the case cannot be overemphasized. Information gathered must be held in strict confidence. Confidentiality, however, cannot be guaranteed.
H. Evidence of the direct participation of legal counsel in these Procedures by either party will immediately terminate the Procedures. Examples of such participation include letters from attorneys, bringing the attorney to meetings scheduled under the Procedures, and refusing to answer questions on the specified advice of the attorney.
I. Simultaneous litigation does not necessarily terminate the Procedures. J. In the early stages, the Chapter engages in fact-finding, only. It should never promote the interests of either side or give the appearance of doing so. This is a time for inquiry, not advocacy, regardless of the appearance of the case.
K. Timeliness is essential in implementing and conducting the Procedures. (A copy of the Procedures should be sent by the Committee Director to the parties as soon as possible. (The most recent version may be downloaded from the AGO Web site: www.agohq.org.) See sample letters at the end of this document for initial contact with the Institution. In the event that there is no activity involving the National Councillor for Professional Development on a grievance for a period of time exceeding 90 calendar days, the grievance may be dismissed at the National Councillor's discretion with subsequent notice to the Grievant and the appropriate Regional Councillor.
L. If the Committee listed in Step One, Two or Three determines that the case is without merit, the Member may appeal the closing of the Procedures. If that happens, the "case in progress" status applies until the appeal is decided.
M. Critical correspondence should be prepared on chapter letterhead and sent certified mail, return receipt requested with copies kept in the file. Always include the certified mail number on the document (and the file copy) being sent.
N. At Step Three, it is advisable to identify the actual dispute and separate it, if possible, from collateral issues. For example, if the termination is really due to conflicting musical tastes between employee and employer, it may be cause for termination if done under the contract and/or in accordance with local law. It should not be confused with other matters which might have aggravated the conflict, such as lack of communication, insubordination and personality clashes, which may or may not, in and of themselves, also be grounds for termination.
O. Examples of wrongful termination may include (but are not limited to):
- Dismissal inconsistent with the existing employment agreement, the
- Institution's personnel policy and/or past practice
- Failure to communicate
- Intimidation and harassment
- A record of good performance reviews followed by sudden termination
- Conduct that offends the Committee's sense of fairness, e.g. "whistleblowing" wherein the employee has alerted the authorities to specific unlawful activity
P. An otherwise proper termination notice or resignation does not automatically preclude the use of the Procedures if the termination or resignation was precipitated by fraud or duress.
Q. A "paper trail" is essential. Copies of all correspondence, e-mails, faxes, summaries of phone calls, and documentary evidence should be archived indefinitely.
R. The Member is entitled to know, in general terms, the status of the grievance and the reasons for the Committee's decision, without the Committee violating the confidentiality clause contained in the Procedures.
S. Hearsay encompasses oral or written statements being used to support the truthfulness of a matter at issue when the person making the statement is not present for questioning. The Committee should be wary of hearsay, written or oral, when interviewing the Member, Observers and representatives of the Institution. Although the Procedures do not follow strict legal rules, hearsay is not generally reliable. Be fair to both sides and be consistent in the treatment of all evidence. The Committee should, at least, discuss the reliability of any hearsay before accepting it and should decide what weight, if any, to accord it.
T. The burden of proof is usually upon the party seeking relief, i.e. the Member. It is therefore necessary for the Member to cooperate fully and present all relevant materials in a timely fashion. Invoking the Procedures creates an investigative proceeding. The employee, by filing a grievance, impliedly consents to allow the employer to share its records with the Committee. Failure of the Member to affirm this in writing, upon request, may constitute a failure to cooperate fully and may result in the closing of the Procedures.
U. In a simple majority vote of the Committee weighing the evidence, the standard of proof is a "preponderance of the evidence," i.e. overall proof which is more likely than less likely.
V. All contact with the parties outside of the meetings should be in writing, with copies retained by the Committee.
W. It is anticipated that during the investigation, the parties' input may not be totally forthcoming or relevant. In that case, specific written questions from the Committee to the parties and/or Observers may be appropriate.
X. Appeals do not normally provide opportunities for a rehearing of the case or the presentation of additional evidence. An appeal should only determine whether the previous decisions under the Procedures were supported by the facts and controlling authorities, such as the parties' written contract, the Institution's past practice, personnel manual, etc.
Y. Conflict Resolution is available to the Institution when the Procedures have "addressed" a termination. Therefore, the matter need not have been completed or carried through fully in order for the Institution to resolve the dispute [See VII Post Grievance Conflict Resolution.]
Z. At some point, the Committee may be called upon to evaluate the reasonableness of the Member's demands for a particular remedy.
AA. A Member should be aware of the remoteness of being reinstated to any position from which the Member has been terminated.
BB. These Procedures may be invoked by Members who are paid or compensated and by Members who are volunteers. The applicability of these Procedures on behalf of Members in various areas of music will be determined on a case by case basis.
III. Step One- The Preliminary Evaluation
A. When a Member wishes to pursue the Procedures for Dealing with Complaints about Termination (Grievance Procedures) the Member shall request assistance, in writing, from the Dean of his/her chapter with a copy to the Regional Councillor. This written request shall outline his/her work history in the Institution and claim of wrongful termination, and should be accompanied by a copy of the Member's employment agreement with the Institution, if there is one, and all other relevant supporting documentation, e.g., letter of agreement, employee manual and all other documents signed in connection with the employment. The Member, by so doing, agrees to cooperate fully. If cooperation is withheld at any point, the Guild may close these Procedures. Independent Members shall be considered as members of the Chapter which is nearest to their primary residence. “Nearest” shall be defined as the residence of the closest Chapter Dean at the time an incident occurred which gave rise to the use of the Grievance Procedures. In certain cases, with the approval of the Regional Councillor, this written request may be made to a Chapter officer other than the Dean.
B. The Dean or other Chapter officer shall provide copies of the Member's letter and accompanying documentation to the following Individuals:
- Chapter Coordinator for Professional Development (or another chapter officer if there is no Chapter Coordinator for Professional Development)
- Regional Councillor
- Regional Coordinator for Professional Development
- National Councillor for Professional Development.
The Regional Councillor shall convene these Individuals who shall promptly decide if the Member's complaint shall be acted upon. To avoid a conflict of interest, none of these Individuals may be a member or employee of the Institution. (This may be done by telephone conference call or by e-mail.) The Member shall be notified of these Individuals' decision within seven days. (See Letter 1.) If the Member disagrees with the decision of these Individuals, the Member may request within 30 calendar days, through the National Councillor for Professional Development, that the National Committee for Career Development and Support review the decision. The Committee's determination shall be final.
IV. Step Two- Appointments of Investigative Committee and Meeting with Grievant
A. If the Member's complaint deserves further consideration, the Regional Councillor shall appoint a Committee Director, who, in consultation with the Regional Councillor, shall appoint a Committee. The Committee Director shall convene and chair the Committee, and sign all Committee correspondence.
B. The Committee, appointed to carry out Step Two of the Grievance Procedures, shall be made up of the following individuals:
- One or two members of the chapter, appointed by the Dean (the Dean may be one);
- Regional Councillor (or his/her representative)
- Regional Coordinator for Professional Development (or his/her representative)
- National Councillor for Professional Development (or his/her representative).
C. To avoid conflict of interest, no member of the Committee may be a member or employee of the Institution. (Note: It can be helpful if one of the chapter's representatives is ordained.)
D. The following notice shall be published in the local chapter media. The local chapter shall refuse to advertise a regular or permanent vacancy at the Institution while these Grievance Procedures are pending.
(Notice A) Notice Informing Membership of Case in Progress
On (date) an AGO Member filed a formal complaint against (Institution's Name) for wrongful termination of employment. The Guild is investigating the matter according to the AGO's Procedures for Dealing with Complaints about Termination. No determination has been made at this time.
Although Guild Members may provide substitute or interim services, no Member may seek or accept regular or permanent employment with (Institution's Name) while these Procedures are pending. See the AGO's Web Site for the current status of this case.
E. At least two members of the Committee shall meet with the Member in person. If, after frank discussion with the Member and a review of his/her employment agreement and/or other pertinent documents, the Committee does not consider the Member's claim to be valid, it may close the Grievance Procedures. If the Member disagrees with the decision of these Individuals, the Member may request within 30 days, through the National Councillor for Professional Development, that the National Committee for Career Development and Support review the decision. The Committee's determination shall be final.
In the event that the Procedures are closed with or without a finding supporting a grievance, the decision shall be announced in the local chapter media using the language in Notice B(1), B(2), B(3), or B(4),as appropriate. (See Notices on pages 9 and 10.)
V. Step Three- The Investigation
A. If the Committee believes the Member's complaint deserves further investigation, it shall immediately take the following actions:
(1.) Request through the National Councillor for Professional Development that no advertisement for the position be included in The American Organist, or on the Guild's Web site.
(2.) Notice A (above) will be published on the Guild's Web site and in local chapter media as appropriate. Any departure from this wording must be approved by the National Councillor for Professional Development before publication.
(3.) Notify the appropriate leadership of the Institution, by telephone and then in writing, that the AGO has been asked by a Member (named) to investigate a charge of wrongful termination. (See Letter 2.)
- Make it clear that the process has merely begun, that no determination has been made, and that the Institution will receive, within one week, a copy of these Grievance Procedures.
- Set a time limit within which the Committee intends to complete its deliberations.
- Set the time for a meeting between the Institution and the Committee. This meeting should take place within 30 days of the receipt of the notification.
- Advise the Institution that its failure to participate in this process may result in a finding in favor of the Member.
(4.) Request from the Member the names, addresses, and telephone numbers of three regular Observers of his/her work within the Institution. In religious institutions, these Observers should be lay leaders, preferably a volunteer choir member, a member of the elected lay leadership, and a member of the congregation at large.
- Send Observers a copy of the Grievance Procedures after they have been contacted by the Committee and have agreed to participate.
- The Committee shall request from the Observers, in writing, a frank evaluation of the Member's work, competence, and influence in the Institution, and solicit the Observers' responses to the Institution's action(s). (See Letter 3.)
- The Committee should solicit the Observers' opinions of both the reasons and the manner in which the Member was terminated. Observers should be assured that all information, written or spoken, is confidential and will be shared only among the Committee members (not with the Member or the Institution).
B. After receiving the Observers' written evaluations, the Committee shall speak with the Observers as needed. At least two members of the Committee shall then meet in person with representatives of the Institution and separately with the member, if necessary for the purpose of clarification.
NOTE: The substance and the tone of all questions should be in the spirit of fact finding and not of confrontation.
- Will you share the employee's complete personnel file with the employee (and/or with this Committee) with the employee's consent?
- What reason(s) exist for the employee's termination?
- Does the manner of termination follow any existing contract, letter of agreement, personnel manual and/or past practice?
- Was the employee given annual reviews? If so, what were the results?
- What progression was followed to identify problems and to notify the employee of their existence and to provide the employee with opportunities to take corrective action? Was this progression in keeping with formal or informal guidelines which you follow as an employer?
- Were salary increases (and/or benefits) given over the course of employment? If so, do they support recent activity regarding the employee?
- What system of communication was in place to identify issues? Was there a breakdown? If so, why? What was done to restore dialogue?
- If there was no contract (a meaningful document with mutuality, covering all essential elements of employment), why?
- Was the employee given a chance to defend him/herself?
- Was assistance from the AGO sought at any point in the progression? If so, what was it? What was the result?
- Do you understand the function of this Committee and that of the Procedures?
- Would you be willing to hold the employee's termination in abeyance while the AGO mentors the employee? If so, for what time period?
- Would you agree to third party mediation or arbitration?
- Will you consider assisting the employee with transition to another job?
C. All Committee members shall receive copies of all correspondence generated and received in connection with the inquiry.
D. The Committee shall promptly evaluate the information received from the Member, Institution, and Observers. After consultation with the Regional Councillor and the National Councillor for Professional Development, the Committee shall complete a written report that includes:
- a summary of the proceedings
- an explanation of its conclusion(s)
- its recommendations for action.
Copies of this report shall be sent to the Dean (to be shared with the Executive Committee), the Regional Councillor, Regional Professional Development Coordinator, and the National Councillor for Professional Development.
E. If, in the opinion of the Committee, the Grievance Procedures revealed questionable behavior on the part of the Member or wrongful termination of the Member by the Institution, the Committee may make such recommendations as it feels are necessary to resolve the situation and to prevent a recurrence. If the Committee finds that the Institution wrongfully terminated the member, the Committee shall apprise the Institution of the need to resolve the situation within 60 days. (See VII. Post Grievance Conflict Resolution.)
F. The Committee shall prepare letters summarizing the Committee's conclusions, which will be submitted to the National Councillor for Professional Development for approval. (See Letters 4 through 9.) Following approval, the letters shall then be sent to the Member, Institution, and Observers. The Member and observers shall be cautioned not to discuss the final outcome until the 60 days allotted for resolution have passed.
G. The response of the Institution is to be directed to the Committee Director, who will then share it with members of the Committee, including:
- Regional Councillor (or his/her representative)
- Regional Coordinator for Professional Development (or his/her representative)
- National Councillor for Professional Development (or his/her representative)
H. If the case is settled to the satisfaction of both parties, the settlement shall be announced on the Guild's Web Site and through local chapter media as appropriate using the following language.
Notice B(1) Notice Informing Membership of Settlement of Case
The employer and the employee at (Institution's name) have resolved their differences and the case has been closed. Guild Members may now accept employment at this Institution.
I. If the case is closed without a finding of wrongful termination, the decision shall be announced on the Guild's Web Site and through local chapter media as appropriate using the following language.
Notice B(2) Notice Informing Membership of Outcome of Case the AGO has determined, upon investigation, that the employer and the employee at (Institution's name) both had arguments and positions of merit regarding the termination of the employee. Therefore, the case has been closed without a finding of wrongful termination.
Or, as appropriate:
Notice B(3) Notice Informing Membership of Outcome of Case
The AGO has determined, upon investigation, that the employer (Institution's name) was
not at fault regarding the termination of the employee. Therefore, the case has been closed without a finding of wrongful termination.
J. If the Member disagrees with the decision of the Committee, the Member may request, within 30 days, through the National Councillor for Professional Development, that the National Council shall, as soon as possible, review the decision. The Committee will notify the Institution that the Member has appealed the Committee's decision. Under such circumstances, the notices about the case will continue to appear on the Web site and in the chapter newsletter, and no advertising of the vacancy may be published therein. The National Council's determination shall be final.
A. If the 60-day limit passes with no resolution, the National Councillor for Professional Development shall notify the Institution in writing that the period for resolution has passed. (See Letter 11.) The Councillor also shall request approval by National Council of these actions to be taken by the chapter Dean at the chapter level and by the National Councillor at the national level of the Guild:
(1.) Announcing the decision on the Guild's Web site and through local chapter media as appropriate using the following language:
Notice B(4) Notice Informing Membership of Outcome of Case
The National Council has determined that a position at (Institution's Name) was made vacant by wrongful termination of a Member of the American Guild of Organists on (date).
In keeping with the AGO Code of Ethics, Members shall not seek or accept employment or attempt to place a student or colleague in the position until the National Council has declared that differences between the Guild and (Institution's Name) have been resolved.
(2.) Directing the editor of The American Organist, the Guild's Web site, and appropriate chapter media to refrain from advertising any music positions at the Institution.
(3.) Notifying the leadership of the appropriate denominational music organization of the decision.
B. If no resolution has occurred, the Notice B(4) printed above shall appear in a box for three months on the AGO Web site, and in local chapter media. After three months, a listing, (see Notice C, on page 11) giving the name of the Institution and date of the termination incident will be printed in the following venues:
- in the local chapter media, and
- listed on the AGO Web site.
This notice shall be printed in perpetuity until a resolution has been reached.
(Notice C) Notice in Perpetuity
(Institution) wrongfully terminated a member of the American Guild of Organists on (date) for which no resolution has been reached. Note: When an Institution is found to have wrongfully terminated a Member of the AGO, no Guild Member, individually or collectively, may serve that Institution as an employee or independent contractor, in an interim, temporary, substitute, regular or permanent capacity beyond a 90-day period following the date of this finding.
VII. Post Grievance Conflict Resolution
A. When an Institution wishes to resolve a termination that has been addressed by these procedures (within the 60 days allotted in these Grievance Procedures or at a later date) a committee (hereafter a Committee) appointed by the Regional Councillor shall review the documents from the original complaint.
This Committee shall consist of the following members:
- A chapter representative,
- Regional Councillor (or his/her representative),
- National Councillor for Professional Development (or his/her representative).
If possible, its members shall be the members of the Committee that handled the original complaint.
The Regional Councillor shall appoint a Committee Director, who shall sign all correspondence. Guided by the documents from the original complaint, the Committee may request that the Institution take specific actions, which, among other things, shall include one or more of the following:
- Reinstatement of the wrongfully terminated member.
- A good-faith effort to resolve financial issues with the Member, including, but not limited to, reimbursement of lost income and attending benefits.
- Providing the Committee with a proposed contract or letter of agreement pertaining to the position, using the American Guild of Organists' sample contract as a model.
B. If the Committee is satisfied with the Institution's response, it shall recommend to the National Council, through the National Councillor for Professional Development, that the conflict between the Institution and the American Guild of Organists be declared resolved. The National Council shall take such actions as it deems necessary, including:
- Announcing the resolution on the Guild's Web site, and in local chapter newsletters as appropriate, stating that AGO members may accept employment with the Institution. This notification shall be printed for three months.
- Directing the editor of The American Organist, the Guild's Web site, and chapter placement services to accept advertising for music positions at the Institution.
- Notifying the leadership of the appropriate denominational music organization of the resolution.
The following is the statement to be printed in the venues listed above for a 90-day period.
(Notice D) Notice Informing Guild Membership of Resolution of Case
On (date) the American Guild of Organists declared resolved the case of wrongful termination brought against (Institution's Name). Guild Members may now accept employment at this Institution.
Sample letters accompanying AGO Grievance Procedures can be viewed here.