Senate Bill No. 780
(By Senators Bowman, Bailey, Barnes, Boley, Kessler, McCabe,
Minard, Plymale, Sypolt, White and Yoder)
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[Originating in the Committee on Government Organization;
reported February 21, 2008.]
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A BILL to amend and reenact §6C-2-1, §6C-2-2, §6C-2-3 and §6C-2-4
of the Code of West Virginia, 1931, as amended, all relating
to the West Virginia Public Employees Grievance Procedure;
clarifying definitions, general provisions and grievance
proceedings; defining "conference" and "level one hearing";
increasing time to hold a level one hearing; deleting
mediation-arbitration; adding private arbitration; clarifying
level three hearing; and making technical corrections.
Be it enacted by the Legislature of West Virginia:
That §6C-2-1, §6C-2-2, §6C-2-3 and §6C-2-4 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 2. WEST VIRGINIA PUBLIC EMPLOYEES GRIEVANCE PROCEDURE.
§6C-2-1. Purpose.
(a) The purpose of this article is to provide a procedure for
the resolution of employment grievances raised by the public
employees of the State of West Virginia, except as otherwise excluded in this article.
(b) Resolving grievances in a fair, efficient, cost-effective
and consistent manner will maintain good employee morale, enhance
employee job performance and better serve the citizens of the State
of West Virginia.
(c) Nothing in this article prohibits the informal disposition
of grievances by stipulation or settlement agreed to in writing by
the parties, nor the exercise of any hearing right provided in
chapter eighteen or eighteen-a of this code.
Parties to grievances
shall at all times act in good faith and make every possible effort
to resolve disputes at the lowest level of the grievance procedure.
(d) Effective the first day of July, two thousand seven, any
reference in this code to the education grievance procedure, the
state grievance procedure, article twenty-nine, chapter eighteen of
this code or article six-a, chapter twenty-nine of this code, or
any subsection thereof, shall be considered to refer to the
appropriate grievance procedure pursuant to this article.
(e) Any grievance proceeding which is in process on the
effective date of the enactment of this article will be completed
as expeditiously as possible, and all outstanding orders for
hearings must be completed by the first day of July, two thousand
seven. Parties to grievances for which a hearing has not been held
may, by agreement, proceed to either level two or level three.
§6C-2-2. Definitions.
For the purpose of this article and article three of this
chapter:
(a) "Board" means the West Virginia Public Employees Grievance
Board created in article three of this chapter.
(b) "Chief administrator" means, in the appropriate context,
the commissioner, chancellor, director, president
, secretary or
head of any state department, board, commission, agency, state
institution of higher education, commission or council, the state
superintendent, the county superintendent, the executive director
of a regional educational service agency or the director of a
multicounty vocational center who is vested with the authority to
resolve a grievance. A "chief administrator" includes a designee,
with the authority delegated by the chief administrator, appointed
to handle any aspect of the grievance procedure as established by
this article.
(c) "Days" means working days exclusive of Saturday, Sunday,
official holidays and any day in which the employee's workplace is
legally closed under the authority of the chief administrator due
to weather or other cause provided for by statute, rule, policy or
practice.
(d) "Discrimination" means any differences in the treatment of
a similarly situated employee unless the differences are related to
the actual job responsibilities of the employee, are agreed to in
writing by the employee or are based upon a legitimate,
nondiscriminatory reason related to the employment relationship.
(d) (e) (1) "Employee" means any person hired for permanent
employment by an employer for a probationary, full- or part-time position.
(2) A substitute education employee is considered an
"employee" only on matters related to days worked or when there is
a violation, misapplication or misinterpretation of a statute,
policy, rule or written agreement relating to the substitute.
(3) "Employee" does not mean a member of the West Virginia
State Police employed pursuant to article two, chapter fifteen of
this code, but does include civilian employees hired by the
Superintendent of the State Police. "Employee" does not mean an
employee of a constitutional officer unless he or she is covered
under the civil service system, an employee of the Legislature or
a patient or inmate employed by a state institution.
(e) (f)
"Employee organization" means an employee advocacy
organization with employee members that has filed with the board
the name, address, chief officer and membership criteria of the
organization.
(f) (g)
"Employer" means a state agency, department, board,
commission, college, university, institution, State Board of
Education, Department of Education, county board of education,
regional educational service agency or multicounty vocational
center, or agent thereof, using the services of an employee as
defined in this section.
(h) "Favoritism" means unfair treatment of an employee as
demonstrated by preferential, exceptional or advantageous treatment
of a similarly situated employee unless the treatment is related to the actual job responsibilities of the employee, is agreed to in
writing by the employee or is based upon a legitimate reason
related to the employment relationship.
(g) (i)
(1) "Grievance" means a claim by an employee alleging
a violation, a misapplication or a misinterpretation of the
statutes, policies, rules or written agreements applicable to the
employee including:
(i)
Any violation, misapplication or misinterpretation
regarding compensation, hours, terms and conditions of employment,
employment status or discrimination, unless the discrimination is
related to the actual job responsibilities of the employee or
agreed to in writing by the employee;
(ii) Any discriminatory or otherwise aggrieved application of
unwritten policies or practices of his or her employer;
(iii) Any specifically identified incident of harassment;,
including repeated or continual disturbance, irritation or
annoyance of an employee that is contrary to the demeanor expected
by law, policy and profession, or favoritism, including unfair
treatment of an employee as demonstrated by preferential,
exceptional or advantageous treatment of another similarly situated
employee; or
(iv) Any specifically identified incident of favoritism; or
(iv) (v) Any action, policy or practice constituting a
substantial detriment to or interference with the effective job
performance of the employee or the health and safety of the employee.
(2) "Grievance" does not mean any pension matter or other
issue relating to public employees insurance in accordance with
article sixteen, chapter five of this code, retirement or any other
matter in which the authority to act is not vested with the
employer.
(j) "Grievance proceeding", "proceeding" or the plural means
a conference, level one hearing, mediation, private mediation,
private arbitration or level three hearing, or any combination,
unless the context clearly indicates otherwise.
(h) (k)
"Grievant" means an employee or group of similarly
situated employees filing a grievance.
(l) "Harassment" means repeated or continual disturbance,
irritation or annoyance of an employee that is contrary to the
behavior expected by law, policy and profession.
(i) (m)
"Party" and "parties" mean, or the plural, means the
grievant, intervenor, employer and the Director of the Division of
Personnel, or his or her designee, for state government employee
grievances. The Division of Personnel shall not be a party to
grievances involving higher education employees.
(j) (n)
"Representative" means any employee organization,
fellow employee, legal counselor attorney or other person
designated by the grievant or intervenor as the grievant's his or
her representative and may not include a supervisor who evaluates
the grievant.
(o) "Reprisal" means the retaliation of an employer toward a
grievant, witness, representative or any other participant in the
grievance procedure either for an alleged injury itself or any
lawful attempt to redress it.
§6C-2-3. Grievance procedure generally.
(a) Time limits. --
(1) An employee shall file a grievance within the time limits
specified in this article.
(2) The specified time limits may be extended to a date
certain by mutual written agreement and shall be extended whenever
a grievant is not working because of accident, sickness, death in
the immediate family or other cause for which the grievant has
approved leave from his or her employment.
(b) Default. --
(1) The grievant prevails by default if a required response is
not made by the employer within the time limits established in this
article, unless the employer is prevented from doing so directly as
a result of injury, illness or a justified delay not caused by
negligence or intent to delay the grievance process.
(2) Within ten days of the default, the grievant may file with
the chief administrator a written notice of intent to proceed
directly to the next level or to enforce the default. If the chief
administrator objects to the default, then the chief administrator
may, within five days of the filing of the notice of intent,
request a hearing before an administrative law judge for the purpose of stating a defense to the default, as permitted by
subdivision (1) of this subsection, or showing that the remedy
requested by the prevailing grievant is contrary to law or contrary
to proper and available remedies. In making a determination
regarding the remedy, the administrative law judge shall determine
whether the remedy is proper, available and not contrary to law.
(3) If the administrative law judge finds that the employer
has a defense to the default as permitted by subdivision (1) of
this subsection or that the remedy is contrary to law or not proper
or available at law, the administrative law judge may deny the
default or modify the remedy to be granted to comply with the law
or otherwise make the grievant whole.
(c) Defenses and limitations. --
(1) Untimeliness. -- Any assertion by the employer that the
filing of the grievance at level one was untimely shall be asserted
by the employer made at or before level two.
(2) Back pay. -- A one-year statute of limitations applies to
the recovery of back pay. In the case of a willful violation by
the employer in which it can be shown by a preponderance of the
evidence that the employer acted in bad faith in concealing the
facts giving rise to the claim for back pay, an eighteen-month
statute of limitations applies. Further, a grievant's right to
back pay tolls from the time that the grievant has actual or
constructive knowledge of his or her right to back pay. When it is
a proper remedy, back pay may only be granted for one year prior to the filing of a grievance, unless the grievant shows, by a
preponderance of the evidence, that the employer acted in bad faith
in concealing the facts giving rise to the claim for back pay, in
which case an eighteen-month limitation on back pay applies.
(3) Statutory defense. -- If the employer a party intends to
assert the application of any statute, policy, rule or written
agreement as a defense at any level, then a copy of the materials
shall be forwarded to the grievant and his or her representative
all parties.
(d) Withdrawal and reinstatement of grievance. -- An employee
may withdraw a grievance at any time by filing a written notice of
withdrawal with the chief administrator or the board administrative
law judge. The grievance may not be reinstated by the grievant
unless reinstatement is granted by the chief administrator or the
board administrative law judge
. If more than one employee is named
as a grievant, the withdrawal of one employee does not prejudice
the rights of any other employee named in the grievance.
(e) Consolidation and groups of similarly situated employees.
--
(1) Grievances may be consolidated at any level by agreement
of all parties or at the discretion of the chief administrator or
administrative law judge.
(2) Class actions are not permitted. However, a grievance may
be filed by one or more employees on behalf of a group of similarly
situated employees, but any. Any similarly situated employee shall indicate in writing complete a grievance form stating his or her
intent to join the group of similarly situated employees. Only one
employee filing a grievance on behalf of similarly situated
employees shall be required to participate in the conference or
level one hearing required in section four of this article.
(f) Intervention. -- Upon a timely request, any employee may
intervene and become a party to a grievance at any level when the
employee demonstrates 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.
(g) Representation and disciplinary action. --
(1) An employee may designate a representative who may be
present at any step of the procedure as well as at any meeting that
is held with the employee for the purpose of discussing or
considering disciplinary action.
(2) An employee may not be compelled to testify against
himself or herself in a disciplinary grievance hearing.
(h) Reprisal. -- No reprisal or retaliation of any kind may be
taken by an employer against a grievant or any other participant in
the a grievance procedure proceeding by reason of his or her
participation. Reprisal or retaliation constitutes a grievance and
any person held responsible is subject to disciplinary action for
insubordination. Further, any
(i) Improper classification. -- A supervisor or administrator responsible for a willful act of bad faith toward an employee or
who intentionally works an employee out of classification may be
subject to disciplinary action, including demotion or discharge.
(i) (j) Forms. -- The board shall create the forms for filing
grievances, giving notice, taking appeals, making reports and
recommendations and all other necessary documents and provide them
to chief administrators to make available to any employee upon
request.
(j) (k) Discovery. -- The parties are entitled to copies of
all material submitted to the chief administrator or the
administrative law judge by any party. All documents submitted
become part of the record.
(k) Conferences and Hearings. --
(1) Impartiality. -- The administrative law judge shall
conduct all level three hearings in an impartial manner and shall
ensure that all parties are accorded procedural and substantive due
process.
(2) Closed Conferences and Hearings. -- All conferences and
hearings shall be conducted in private. Hearings may be public at
level three at the discretion of the administrative law judge.
(3) Evidence. -- All parties may present supportive or
corroborative evidence and argument with respect to the grievance
at a conference or hearing. Formal rules of evidence do not apply,
but parties are bound by the rules of privilege recognized by law,
and the rules and procedures established by the board.
(4) Witnesses. -- At level one, the chief administrator may
call witnesses and may allow parties to call witnesses during a
conference or hearing upon request. The parties have the right to
call, examine and cross-examine witnesses during any hearing.
Administrative law judges may issue subpoenas for witnesses, limit
witnesses, administer oaths and may exercise other powers granted
by rule or law. No employee may be compelled to testify against
himself or herself in a grievance hearing.
(5) (l) Notice. -- Reasonable notice of a conference or
hearing proceeding shall be sent at least five days prior to the
hearing proceeding to all parties and their representatives and
shall include the date, time and place of the hearing proceeding.
If an employer causes a conference or hearing proceeding to be
postponed without adequate notice to employees who are scheduled to
appear during their normal work day, the employees may not suffer
any loss in pay for work time lost.
(6) Location. -- All proceedings shall be at a convenient
place accessible to all parties and the location of the level three
hearing shall be set by the administrative law judge.
(7) Date and Time. -- Conferences and hearings shall be
scheduled within the time frames established at a reasonable time
of day in accommodation to the parties' work schedules.
Disagreements shall be decided by the board or the administrative
law judge.
(8) (m) Record. -- Conferences are not required to be recorded, but all evidence submitted
documents admitted and the
decision, agreement or report become part of the record. All the
testimony and evidence at a level one and level three hearing shall
be recorded by mechanical means and a copy of the recording
provided to any party upon request. The board is responsible for
paying for and promptly providing a certified transcript of a level
three hearing to a requesting party or the court for a mandamus or
appellate proceeding.
(l) (n) Grievance decisions and reports. --
(1) Prior to a decision, any Any party may propose findings of
fact and conclusions of law within twenty days of an arbitration or
a level three hearing.
(2) Decisions rendered at all levels of the grievance
procedure A decision, agreement or report shall be dated, in
writing, setting forth the decision or decisions and the reasons
for the decision or outcome and transmitted to the board, the
employer and the grievant parties and, in a private arbitration, to
the board,
within the time limits prescribed. If the grievant is
denied the relief sought, the If the grievance is not resolved, the
written decision or report shall include the address and procedure
to appeal to for the next level of appeal for the grievant.
(m) Preparation time. --
(1) The grievance shall be processed during regular working
hours with minimal interference with the normal operations of the
employer and schedule of the employee.
(o) Scheduling. -- All proceedings shall be scheduled during
regular work hours in a convenient location accessible to all
parties in accommodation to the parties' normal operations and work
schedules. By agreement of the parties, a proceeding may be
scheduled at any time or any place. Disagreements shall be decided
by the administrative law judge.
(2) (p) Attendance and preparation. --
(1) The grievant, witnesses and an employee representative
shall be granted reasonable and necessary time off during working
hours for to attend grievance proceedings without loss of pay and
without charge to annual or compensatory leave credits.
(3) (2) In addition to actual time spent attending in
grievance conferences and hearings proceedings, the grievant and an
employee representative shall be granted time off during working
hours, not to exceed four hours per grievance, for the preparation
of the grievance without loss of pay and without charge to annual
or compensatory leave credits. However, the first responsibility
of any employee is the work assigned to the employee. An employee
may not allow grievance preparation and representation activities
to seriously affect the overall productivity of the employee.
(4) (3) The grievant and an employee representative shall have
access to the employer's equipment for purposes of preparing
grievance documents subject to the reasonable rules of the employer
governing the use of the equipment for nonwork purposes.
(5) (4) Disagreements regarding preparation time shall be decided by the board or the presiding administrative law judge.
(n) (q) Grievance files. --
(1) All grievance forms, and reports decisions, agreements and
reports shall be kept in a file separate from the personnel file of
the employee and may not become a part of the personnel file, but
shall remain confidential except by mutual written agreement of the
parties.
(2) The grievant may file a written request to have the
grievant's identity removed from any files kept by the employer one
year following the conclusion of the grievance.
(o) (r) Number of grievances. -- The number of grievances
filed against an employer by an employee is not, per se, an
indication of the employer's or the employee's job performance.
(p) (s) Procedures and rules. -- The board shall prescribe
rules and procedures in compliance with this article, article three
of this chapter and the State Administrative Procedures Act under
chapter twenty-nine-a of this code for all matters proceedings
relating to the grievance procedure.
§6C-2-4. Grievance procedural levels.
(a) Level one: Chief administrator. --
(1) Within fifteen days following the occurrence of the event
upon which the grievance is based, or within fifteen days of the
date upon which the event became known to the employee, or within
fifteen days of the most recent occurrence of a continuing practice
giving rise to a grievance, an employee may file a written grievance with the chief administrator stating the nature of the
grievance and the relief requested and request either a conference
or a hearing. The employee shall also file a copy of the grievance
with the board. State government employees shall further file a
copy of the grievance with the Director of the Division of
Personnel, who may participate at any level in person or by a
designee.
(2) The chief administrator shall hold the conference or
hearing, as requested by the grievant, within ten days of receiving
the grievance and issue a written decision within fifteen days of
the conference or hearing.
(2) Conference.-- The chief administrator shall hold a
conference within ten days of receiving the grievance. A conference
is a private, informal meeting between the grievant and the chief
administrator to discuss the issues raised by the grievance,
exchange information and attempt to resolve the grievance. The
chief administrator may permit other employees and witnesses to
attend and participate in a conference to reach a resolution. The
chief administrator shall issue a written decision within fifteen
days of the conference.
(3) Level one hearing.-- The chief administrator shall hold a
level one hearing within fifteen days of receiving the grievance.
A level one hearing is a recorded proceeding conducted in private
in which the grievant is entitled to be heard and to present
evidence; the formal rules of evidence and procedure do not apply, but the parties are bound by the rules of privilege recognized by
law
. The parties may present and cross-examine witnesses and
produce documents, but the number of witnesses, motions and other
procedural matters may be limited by the chief administrator. The
chief administrator shall issue a written decision within fifteen
days of the level one hearing.
(3) (4) An employee may proceed directly to level three upon
the agreement of the employee and the chief administrator parties
or when the grievant has been discharged, suspended without pay or
demoted or reclassified resulting in a loss of compensation or
benefits. Level one and level two proceedings are waived in these
matters.
(b) Level two: Alternative dispute resolution. --
(1) Within ten days of receiving an adverse written decision
at level one, the grievant shall file a written request for
mediation, private mediation or mediation-arbitration with the
board if the grievant desires to continue the grievance process
private arbitration.
(A) (2) Mediation. -- The board shall schedule the mediation
between the parties within twenty days of the request. Mediation
shall be conducted by an administrative law judge pursuant to
standard mediation practices and board procedures at no cost to the
parties. Parties may be represented and shall have the authority
to resolve the dispute. Agreements reached through The report of
the mediation shall be documented in writing within fifteen days. Agreements are binding and enforceable in this state by a writ of
mandamus.
(B) (3)
Private mediation. -- The parties may agree in writing
to retain their choice of a private mediator and share the cost.
The mediator shall schedule the mediation within twenty days of the
written request and shall follow standard mediation practices and
any applicable board procedures. Parties may be represented and
shall have the authority to resolve the dispute. Agreements
reached through The report of the mediation shall be documented in
writing within fifteen days. Agreements are binding and
enforceable in this state by a writ of mandamus.
(C) Mediation-arbitration. -- The parties may agree in writing
to participate in mediation-arbitration. The board shall schedule
the mediation-arbitration between the parties within twenty days of
the request. Mediation-arbitration shall be conducted by an
administrative law judge pursuant to standard mediation and
arbitration practices and board procedures, at no cost to the
parties. In the event the mediation does not result in a
resolution, the mediator may become an arbitrator and proceed to
decide the matter. The parties may be represented and may resolve
the dispute. Agreements reached through mediation and decisions
issued through arbitration are to be documented in writing within
fifteen days, and are binding and enforceable in this state by a
writ of mandamus.
(4) Private arbitration. -- The parties may agree, in writing, to retain their choice of a private arbitrator and share the cost.
The arbitrator shall schedule the arbitration within twenty days of
the written request and shall follow standard arbitration practices
and any applicable board procedures. The arbitrator shall render a
decision in writing to all parties, setting forth findings of fact
and conclusions of law on the issues submitted within thirty days
following the arbitration. An arbitration decision is binding and
enforceable in this state by a writ of mandamus. The arbitrator
shall inform the board, in writing, of the decision within ten
days.
(2) Neutral Evaluation. -- Within fifteen days of the
conclusion of an unsuccessful mediation or mediation-arbitration,
the administrative law judge serving as the mediator or
mediator-arbitrator may provide a written summary to the parties as
a neutral evaluator stating the issues presented, and issue a
scheduling and discovery order that is binding upon the parties in
preparation for level three.
(c) Level three: Adjudication hearing. --
(1) Within ten days of receiving a written report stating that
alternative dispute resolution at level two was unsuccessful, the
grievant may file a written appeal with the employer
and the board
requesting a level three hearing and adjudication on the grievance.
State government employees shall further file a copy of the
grievance with the Director of the Division of Personnel
.
(2) The administrative law judge shall conduct all proceedings in an impartial manner and shall ensure that all parties are
accorded procedural and substantive due process.
(3) The administrative law judge shall schedule the level
three hearing and any other proceedings or deadlines within a
reasonable time in consultation with the parties.
The location of
the hearing and whether the hearing is to be made public are at the
discretion of the administrative law judge.
State government
employees shall also serve a copy of the appeal upon the Director
of the Division of Personnel, or his or her designee, who may
appear at the hearing and submit oral or written evidence upon
matters at issue.
(2) Both the employer and the employee shall at all times act
in good faith and make every possible effort to resolve disputes at
the lowest level of the grievance procedure. The administrative
law judge may make a determination of bad faith and in extreme
instances allocate the cost of the hearing to the party found to be
acting in bad faith. The allocation of costs shall be based on the
relative ability of the party to pay the costs.
(4) The administrative law judge may issue subpoenas for
witnesses, limit witnesses, administer oaths and exercise other
powers granted by rule or law.
(3) (5) Within thirty days following the hearing or the
receipt of the proposed findings of fact and conclusions of law,
the administrative law judge shall render a decision in writing to
all parties setting forth findings of fact and conclusions of law on the issues submitted.
(6)
The administrative law judge may make a determination of
bad faith and, in extreme instances, allocate the cost of the
hearing to the party found to be acting in bad faith. The
allocation of costs shall be based on the relative ability of the
party to pay the costs.
________
(NOTE: The purpose of this bill is to clarify the
West
Virginia Public Employees Grievance Procedure
, including the
definitions, general provisions, level one conference and hearing,
level two private arbitration in lieu of mediation-arbitration and
the level three hearing.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)