Introduced Version
Senate Bill 478 History
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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 478
(By Senators Hunter, White, Unger, Kessler, Fanning,
Bailey, Dempsey and Love)
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[Introduced March 7, 2005; referred to the Committee
on Education.]
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A BILL to amend and reenact
§18-29-3,
§18-29-4,
§18-29-5
and
§18-29-8
of the Code of West Virginia, 1931, as amended; and
to amend said code by adding thereto a new section, designated
§18-29-10a, all relating to grievance procedures for state
educational employees; changing grievance procedures;
providing for administrative law judges; and providing for
binding arbitration.
Be it enacted by the Legislature of West Virginia:
That
§18-29-3,
§18-29-4,
§18-29-5
and
§18-29-8
of the Code of
West Virginia, 1931, as amended, be amended and reenacted; and that
said code be amended by adding thereto a new section, designated
§18-29-10a
, all to read as follows:
ARTICLE 29. GRIEVANCE PROCEDURE.
§18-29-3. Grievance procedure generally.
(a) A grievance must be filed within the times specified in section four of this article and shall be processed as rapidly as
possible. The number of days indicated at each level specified in
section four of this article shall be considered as the maximum
number of days allowed and, if a decision is not rendered at any
level within the prescribed time limits, the grievant may appeal to
the next level: Provided,
That the specified time limits may be
extended by mutual written agreement and shall be extended whenever
a grievant is not working because of such
for in section ten, article four, chapter eighteen-a of
this code. Any assertion by the employer that the filing of the
grievance at level one was untimely must be asserted by the
employer on behalf of the employer at or before the level two one
hearing. If a grievance evaluator required to respond to a
grievance at any level fails to make a required response in the
time limits required in this article, unless prevented from doing
so directly as a result of sickness or illness, the grievant shall
prevail by default. Within five days of such the default, the
employer may request a hearing before a level four hearing examiner
three administrative law judge for the purpose of showing that the
remedy received by the prevailing grievant is contrary to law or
clearly wrong. In making a determination regarding the remedy, the
shall presume the employee prevailed on the merits of the grievance
and shall determine whether the remedy is contrary to law or
clearly wrong in light of that presumption. If the examiner administrative law judge
finds that the remedy is contrary to law,
or clearly wrong, the examiner administrative law judge may modify
the remedy to be granted so as to comply with the law and to make
the grievant whole.
(b) If the employer or agent intends to assert the
applicability of any statute, policy, rule, regulation or written
agreement or submits any written response to the filed grievance at
any level, a copy thereof shall be forwarded to the grievant and
any representative of the grievant so named in the filed grievance.
Anything so submitted and the grievant's response thereto, if any,
shall become part of the record. Failure to assert such the
statute, policy, rule, regulation or written agreement at any level
shall not prevent the subsequent submission thereof in accordance
with the provisions of this subsection.
(c) The grievant may file the grievance at the level vested
with the authority to grant the requested relief. if the grievance
evaluator at that level agrees in writing thereto. In the event a
grievance is filed at a higher level, the employer shall provide
copies to each lower administrative level.
(d) An employee may withdraw a grievance at any time by
notice, in writing, to the level wherein the grievance is then
current. Such grievance may not be reinstated by the grievant
unless such the reinstatement is granted by the grievance evaluator
at the level where the grievance was withdrawn. If more than one employee is named as grievant in a particular grievance, the
withdrawal of one employee shall not prejudice the rights of any
other employee named in the grievance. In the event a grievance is
withdrawn or an employee withdraws from a grievance, such the
employer shall notify in writing each lower administrative level.
(e) Grievances may be consolidated at any level by agreement
of all parties.
(f) An employee may have the assistance of one or more fellow
employees, an employee organization representative or
representatives, legal counsel or any other person in the
preparation and presentation of the grievance. At the request of
the grievant, such the person or persons may be present at any step
of the procedure, as well as at any investigative meeting or other
meeting which is held with the employee for the purpose of
discussing the possibility of disciplinary action. When a fellow
employee is assisting a grievant, the employee shall do so without
loss of pay and shall have protection from reprisal as that term is
defined in section two of this article.
(g) If a grievance is filed which cannot be resolved within
the time limits set forth in section four of this article prior to
the end of the employment term, the time limit set forth in said
section shall be reduced as agreed to in writing by both parties so
that the grievance procedure may be concluded within ten days
following the end of the employment term or an otherwise reasonable time.
(h) No reprisals of any kind shall be taken by any employer or
agent of the employer against any interested party, or any other
participant in the grievance procedure by reason of such that
participation. A reprisal constitutes a grievance, and any person
held to be responsible for reprisal action shall be subject to
disciplinary action for insubordination.
(i) Except for the informal attempt to resolve the grievance
as provided for in subsection (a), section four of this article,
Decisions rendered at all levels of the grievance procedure shall
be dated, shall be in writing setting forth the decision or
decisions and the reasons therefor, and shall be transmitted within
the time prescribed to the grievant and any representative named in
the grievance. If the grievant is denied the relief sought, the
decision shall include the name of the individual at the next level
to whom appeal may be made.
(j) Once a grievance has been filed, supportive or
corroborative evidence may be presented at any conference or
hearing conducted pursuant to the provisions of this article.
Whether evidence substantially alters the original grievance and
renders it a different grievance is within the discretion of the
grievance evaluator at the level wherein the new evidence is
presented. If the grievance evaluator rules that the evidence
renders it a different grievance, the party offering the evidence may withdraw same; the parties may consent to such the evidence, or
the grievance evaluator may decide to hear the evidence or rule
that the grievant must file a new grievance. The time limitations
for filing the new grievance shall be measured from the date of
such the ruling.
(k) Any change in the relief sought by the grievant shall be
consented to by all parties or may be granted at level four three
within the discretion of the hearing examiner administrative law
judge.
(l) Forms for filing grievances, giving notice, taking
appeals, making reports and recommendations, and all other
necessary documents shall be made available by the immediate
supervisor to any employee upon request. Such forms shall include
information as prescribed by the board. The grievant shall have
access to the institution's equipment for purposes of preparing
grievance documents subject to the reasonable rules of the employer
governing the use of such the equipment.
(m) Notwithstanding the provisions of section three, article
nine-a, chapter six of this code, or any other provision relating
to open proceedings, all conferences and hearings pursuant to this
article shall be conducted in private except that, upon the
grievant's request, conferences and hearings at levels two and
three shall be public. Within the discretion of the hearing
examiner
, conferences and hearings may be public at level four.
(n) No person or governing board to which appeal has been made
shall confer or correspond with a grievance evaluator at a previous
level or a management representative who recommended or approved
the grieved action regarding the merits of the grievance unless all
parties to the grievance are present.
(o) Grievances may be processed at any reasonable time, but
attempts shall be made to process the grievance on work time in a
manner which does not interfere with the normal operation of the
institution. Grievances processed on work time shall not result in
any reduction in salary, wages, rate of pay or other benefits of
the employee and shall be counted as time worked.
Should any employer or the employer's agent cause a conference
or hearing to be postponed without adequate notice to employees who
are scheduled to appear during their normal work day, such these
employees will not suffer any loss in pay for work time lost.
(p) Any grievance evaluator may be excused from participation
in the grievance process for reasonable cause, including, but not
limited to, conflict of interest or incapacitation, and in such the
case the grievance evaluator at the next higher level shall
designate an alternate grievance evaluator if such the is deemed
reasonable and necessary.
(q) No less than one year following resolution of a grievance
at any level, the grievant may by request in writing have removed
any record of the grievance from any file kept by the employer.
(r) All grievance forms and reports shall be kept in a file
separate from the personnel file of the employee and shall not
become a part of such the personnel file, but shall remain
confidential except by mutual written agreement of the parties.
(s) The number of grievances filed against an employer or
agent or by an employee shall not, per se, be an indication of such
the employer's or agent's or such the employee's job performance.
(t) Any chief administrator or governing board of an
institution in which a grievance was filed may appeal such the
decision on the grounds that the decision (1) was contrary to law
or lawfully adopted rule, regulation or written policy of the chief
administrator or governing board, (2) exceeded the hearing
examiner's administrative law judge
's statutory authority, (3) was
the result of fraud or deceit, (4) was clearly wrong in view of the
reliable, probative and substantial evidence on the whole record,
or (5) was arbitrary or capricious or characterized by abuse of
discretion. Such appeal shall follow the procedure regarding
appeal provided the grievant in section four of this article and
provided both parties in section seven of this article.
(u) Upon a timely request, any employee shall be allowed to
intervene and become a party to a grievance at any level when that
employee claims that the disposition of the action may
substantially and adversely affect his or her rights or property
and that his or her interest is not adequately represented by the existing parties.
(v) (u) The doctrine of laches shall not be applied to prevent
a grievant or grievants from recovering back pay or other
appropriate relief for a period of one year prior to the filing of
a grievance based upon a continuing practice.
§18-29-4. Procedural levels and procedure at each level.
(a) Level one.
(1) Before a grievance is filed and Within fifteen days
following the occurrence of the event upon which the grievance is
based, or within fifteen days of the date on which the event became
known to the grievant or within fifteen days of the most recent
occurrence of a continuing practice giving rise to a grievance, the
grievant or the designated representative shall schedule a
conference with the immediate supervisor to discuss the nature of
the grievance and the action, redress or other remedy sought.
The conference with the immediate supervisor concerning the
grievance shall be conducted within ten days of the request
therefor, and any discussion shall be by the grievant in the
grievant's own behalf or by both the grievant and the designated
representative.
(2) The immediate supervisor shall respond to the grievance
within ten days of the conference.
(3) Within ten days of receipt of the response from the
immediate supervisor following the informal conference, a written grievance may be filed with said supervisor, or in the case where
the grievance involves an event under the jurisdiction of a state
institution of higher education, the grievance shall be filed with
said supervisor and the office of personnel, by the grievant or the
designated representative on a form furnished by the employer or
agent.
(4) The immediate supervisor shall state the decision to such
filed grievance within ten days after the grievance is filed.
(b) Level two.
Within five days of receiving the decision of the immediate
supervisor, the grievant may appeal the decision to file a written
grievance, which shall include the action, redress or other remedy
sought, with the chief administrator: Provided, That a grievant,
in his or her own discretion, may file the grievance with his or
her immediate supervisor. If the grievant files a grievance with
his or her immediate supervisor, the supervisor shall respond in
writing to the grievance within five days. If the grievance is not
granted, the grievant may appeal, within five days, to the chief
administrator. and such The chief administrator or his or her
designee shall conduct a hearing in accordance with section six of
this article within five ten days of receiving the grievance appeal
and shall issue a written decision within five seven days of such
the hearing. Such decision may affirm, modify or reverse the
decision appealed from. Level four hearing examiners
three administrative law judge
s or the chief administrator shall have the
authority to subpoena witnesses and documents for level one and two
and level three hearings in accordance with the provision of
section one, article five, chapter twenty-nine-a of this code, and
may issue a subpoena upon the written request of any party to the
grievance. When the chief administrator's designee holds the
hearing, the grievance evaluator shall issue the final decision and
the chief administrator shall have no authority to override,
reverse or modify the decision.
(c) Level three two.
Within five days of receiving the decision of the chief
administrator, the grievant may appeal the decision to the
governing board of the institution or may proceed directly to level
four three. An appeal to the governing board shall set forth the
reasons why the grievant is seeking a level three two review of the
decision of the chief administrator. Within five days of receiving
the appeal, such the governing board may conduct a hearing in
accordance with section six of this article, may review the record
submitted by the chief administrator and render a decision based on
such the record or may waive the right granted herein and shall
notify the grievant of such the waiver. Any decision by the
governing board, including a decision to waive participation in the
grievance, shall be in writing and shall set forth the reasons for
such the decision, including the decision to waive participation in the grievance. If a hearing is held under the provisions of this
subsection, the governing board shall issue a decision affirming,
modifying or reversing the decision of the chief administrator
within five days of such the hearing. If the governing board
grants the grievance, the chief administrator may not appeal the
grievance to level three.
(d) Level four three.
(1) If the grievant is not satisfied with the action taken by
the chief administrator or, if appealed to level three two, the
action taken by the governing board, within five days of the
written decision the grievant may request, in writing, on a form
furnished by the employer, that the grievance be submitted to a
hearing examiner as provided for in section five of this article.
such The hearing to shall be conducted in accordance with section
six of this article within ten days following the request therefor:
Provided, That such the hearing may be held within thirty days
following the request or within such the time as is mutually agreed
upon by the parties, if the hearing examiner administrative law
judge gives reasonable cause, in writing, as to the necessity for
such delay.
(2) Within thirty days following the hearing, the hearing
examiner administrative law judge shall render a decision in
writing to all parties setting forth findings and conclusions on
the issues submitted. Subject to the provisions of section seven of this article, the decision of the hearing examiner shall be
final upon the parties and shall be enforceable in circuit court.
All information and data generated by the board and in its
custody relative to level four decisions and copies of such the
decisions shall be provided at reasonable cost to any individual
requesting it.
§18-29-5. Education and State Employees Grievance Board; hearing
examiners.
(a) The education and State Employees Grievance Board shall
consist of three members who are citizens of the state appointed by
the Governor by and with the advice and consent of the Senate for
overlapping terms of three years. No two members may be from the
same congressional district, and no more than two of the appointed
members may be from the same political party. No person may be
appointed to membership on the Board who is a member of any
political party executive committee or holds any other public
office or public employment under the federal government or under
the government of this state. Members are eligible for
reappointment, and any vacancy on the Board shall be filled within
thirty days of the vacancy by the Governor by appointment for the
unexpired term.
A member of the Board may not be removed from office except
for official misconduct, incompetence, neglect of duty, gross
immorality or malfeasance, and then only in the manner prescribed in article six, chapter six of this code for the removal by the
Governor of the state elected officers.
The Board shall hold at least two meetings yearly at times and
places as it may prescribe and may meet at other times as may be
necessary, the other meetings to be agreed to in writing by at
least two of the members. The compensation for members of the
Board is seventy-five dollars for each calendar day devoted to the
work of the Board, but not more than seven hundred fifty dollars
during any one fiscal year. Each member shall be reimbursed for
all reasonable and necessary expenses actually incurred in the
performance of Board duties, but shall submit a request for
reimbursement upon a sworn itemized statement.
The Board shall administer the grievance procedure at levels
two, three and four, one, two and three as provided in section
five, article six-a, chapter twenty-nine of this code, and as
provided for in section four of this article and shall employ at
least two full-time hearing examiners administrative law judges on
an annual basis and clerical help as is necessary to implement the
legislative intent expressed in section one of this article.
In addition to the authorization granted by this section over
education employees, the Board has jurisdiction over the procedures
to be followed in processing grievances filed under article six-a,
chapter twenty-nine of this code.
The Board shall hire hearing examiners administrative law judges who reside in different regional educational service agency
areas of the state. unless and until the number of hearing
examiners exceeds the number of the areas, at which time two
hearing examiners may be from the same area. If a grievant
previously before a hearing examiner again brings a grievance, a
different hearing examiner is required to hear the grievance upon
written request therefor by any party to the grievance. These
hearing examiners serve at the will and pleasure of the Board.
The Board shall submit a yearly budget and shall report
annually to the Governor and Legislature regarding receipts and
expenditures, number of level four three hearings conducted,
synopses of hearing outcomes and other information as the Board
determines appropriate. The Board shall further evaluate on an
annual basis the level four three grievance process and the
performance of all hearing examiners administrative law judges and
include the evaluation in the annual report to the Governor and
Legislature. In making the evaluation, the Board shall notify all
institutions, employee organizations and all grievants
participating in level four three grievances in the year for which
evaluation is being made and shall provide for the submission of
written comment or the hearing of testimony regarding the grievance
process, or both. The Board shall provide suitable office space
for all hearing examiners administrative law judges in space other
than that utilized by any institution as defined in section two of this article and shall ensure that reference materials are
generally available.
The Board is authorized to promulgate rules consistent with
the provisions of this article; the rules shall be adopted in
accordance with chapter twenty-nine-a of this code.
(b) Hearing examiners Administrative law judges may
consolidate grievances, allocate costs among the parties in
accordance with section eight of this article, subpoena witnesses
and documents in accordance with the provisions of section one,
article five, chapter twenty-nine-a of this code, provide relief
found fair and equitable in accordance with the provisions of this
article, and exercise other powers as provides for the effective
resolution of grievances not inconsistent with any rules of the
Board or the provisions of this article.
§18-29-8. Allocation of costs.
Any expenses incurred relative to the grievance procedure at
levels one through three and two shall be borne by the party
incurring such expenses except as to the costs of transcriptions as
provided for in section six of this article. Upon the written
request to the administrative law judge, the administrative law
judge may require the employer to reimburse grievants for expenses
incurred for the service of subpoenas, witness fees and mileage
fees for witnesses subpoenaed to level three hearings.
In the event an employee or employer appeals an adverse level four decision to the circuit court or an adverse circuit court
decision to the supreme court, and the employee substantially
prevails upon such appeal, the employee or the organization
representing the employee is entitled to recover court costs and
reasonable attorney fees, to be set by the court, from the
employer.
§18-29-10a. Arbitration.
(a) At any time prior to the level three hearing, the grievant
shall be entitled to submit the grievance to arbitration with the
grievant paying one third of the cost of arbitration and the
institution paying two-thirds the costs of arbitration. The
grievance shall be submitted to an arbitrator mutually agreed to by
the parties.
(b) The arbitrator shall set the location, date and time of
the hearing, in consultation with the parties. The arbitrator may
order such discovery as the arbitrator considers necessary to a
full and fair exploration of the issues in dispute, consistent with
the expedited nature of arbitration.
(c) An arbitration hearing shall be opened by: (1) Recording
the date, time and place of the hearing; and (2) recording the
presence of the arbitrator, the parties, their representative, if
any. The arbitrator may ask the parties for statements to clarify
the issues involved.
(d) The parties shall bear the same burdens of proof and burdens of producing evidence as would apply if their claims and
counterclaims had been brought in circuit court. The arbitrator
shall be the judge of the relevance and materiality of the evidence
offered, and conformity to legal rules of evidence shall not be
necessary.
(e) Witnesses for each party shall submit to direct and cross
examination as approved by the arbitrator. The arbitrator may
exclude witnesses, other than a party, from the hearing during the
testimony of another witness. The arbitrator may also decide
whether any person who is not a witness or a party may attend the
hearing.
With the exception of the rules regarding the allocation of
the burdens of proof and going forward with the evidence, the
arbitrator may establish the rules for the conduct of the
proceedings and exercise that authority to afford a full and equal
opportunity to all parties to present any evidence that the
arbitrator deems material and relevant to the resolution of the
dispute. The arbitrator may receive documentary and other forms of
physical evidence when offered by either party.
(g) The names and addresses of all witnesses and description
of the exhibits shall be made a part of the record.
(h) There shall be no ex parte communication with the
arbitrator, unless the parties and the arbitrator otherwise agree
in advance of the communication. The arbitrator shall maintain the confidentiality of the arbitration and may make rulings to
safeguard that confidentiality.
(i) The award shall be made promptly by the arbitrator and,
unless otherwise agreed by the parties, no later than thirty days
from the date of closing.
(j) Except as provided in subsection (k) of this section, the
award of an arbitrator is binding on the parties to the grievance.
(k) The award of an arbitrator may be set aside by the circuit
court of the county in which the arbitration hearing was held if
the award was procured by corruption, fraud or an undisclosed
conflict of interest, or if the arbitrator exceeded his or her
authority.
NOTE: The purpose of this bill is to simplify the grievance
procedure by eliminating the current level one procedure and to
authorize arbitration as an option for educational employees.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§18-29-10a is new; therefore, strike-throughs and underscoring
have been omitted.
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