H. B. 2570
(By Delegates Morgan, Stephens, Hartman,
Paxton, Eldridge and Lynch)
[Introduced February 20, 2013; referred to the
Committee on Government Organization then the Judiciary.]
A BILL to amend and reenact §6C-2-2 and §6C-2-3 of the Code of West
Virginia, 1931, as amended, all relating to the West Virginia
Public Employees Grievance Procedure; adding definition for
discovery; requiring agencies to allow reasonable time for
representatives to appear; providing for discovery requests;
and clarifying that participation in proceedings is considered
Be it enacted by the Legislature of West Virginia:
That §6C-2-2 and §6C-2-3 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.
For the purpose of this article and article three of this
(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
(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
(d) "Discrimination" means any differences in the treatment of
similarly situated employees, unless the differences are related to
the actual job responsibilities of the employees or are agreed to
in writing by the employees.
(e) (1) "Employee" means any person hired for permanent
employment by an employer for a probationary, full- or part-time
(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.
(f) "Discovery" or "Discovery request" means a written request
or motion by a grievant or his or her representative for disclosure
of facts, documents or evidence, including written interrogatories
and admissions of fact.
(f) (g) "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
(g) (h) "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) (i) "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 or is agreed to in
writing by the employee.
(i) (j) (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
(i) (A) Any violation, misapplication or misinterpretation
regarding compensation, hours, terms and conditions of employment,
employment status or discrimination;
(ii) (B) Any discriminatory or otherwise aggrieved application
of unwritten policies or practices of his or her employer;
(iii) (C) Any specifically identified incident of harassment;
(iv) (D) Any specifically identified incident of favoritism;
(v) (E) 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
(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
(j) (k) "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.
(k) (l) "Grievant" means an employee or group of similarly
situated employees filing a grievance.
(l) (m) "Harassment" means repeated or continual disturbance,
irritation or annoyance of an employee that is contrary to the
behavior expected by law, policy and profession.
(m) (n) "Party", 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.
(n) (o) "Representative" means any employee organization,
fellow employee, attorney or other person designated by the
grievant or intervenor as his or her representative and may not
include a supervisor who evaluates the grievant.
(o) (p) "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 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 that the filing of the
grievance at level one was untimely shall be made at or before
(2) 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 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 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 administrative law
judge. The grievance may not be reinstated by the grievant unless
reinstatement is granted by the chief administrator or the
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. Any similarly situated employee shall 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.
(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
(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.
(3) An agency shall allow an employee reasonable time for a
representative to be summoned and appear.
_____(h) Reprisal. -- No reprisal or retaliation of any kind may be
taken by an employer against a grievant or any other participant in
a grievance 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.
(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.
(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.
(k) Discovery. --
(1) The parties are entitled to copies of all material
submitted to the chief administrator or the administrative law
judge by any party.
(2) A grievant or an employee representative may request
discovery in writing prior to any hearing, conference or mediation.
_____(3) Discovery may be requested verbally in any proceeding:
Provided, That a grievant may be required to consent in writing to
a delay caused by his or her discovery request.
_____(l) Notice. -- Reasonable notice of a proceeding shall be sent
at least five days prior to the proceeding to all parties and their
representatives and shall include the date, time and place of the
proceeding. If an employer causes a 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.
(m) Record. -- Conferences are not required to be recorded,
but all documents admitted and the decision, agreement or report
become part of the record. All the testimony 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 the court for a mandamus or appellate proceeding.
(n) Grievance decisions and reports. --
(1) Any party may propose findings of fact and conclusions of
law within twenty days of an arbitration or a level three hearing.
(2) A decision, agreement or report shall be dated, in
writing, setting forth the reasons for the decision or outcome and
transmitted to the parties and, in a private arbitration, to the
board, within the time limits prescribed. If the grievance is not
resolved, the written decision or report shall include the address
and procedure to appeal to the next level.
(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
(p) Attendance and preparation. --
(1) The grievant, witnesses and an employee representative
shall be granted reasonable and necessary time off during working
hours to attend grievance proceedings without loss of pay and
without charge to annual or compensatory leave credits.
(2) In addition to actual time spent attending grievance
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.
_____(3) For employees covered by this article who participate as
a grievant, witness or representative in any grievance proceeding
or at any step of the grievance process, participation shall be
compensated as paid work time and the days or any part of the day
that the employee participates shall be compensated as if the
employee was scheduled to work for the duration of such
(3) (4) 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.
(4) (5) Disagreements regarding preparation time shall be
decided by the administrative law judge.
(q) Grievance files. --
(1) All grievance forms 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
(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.
(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.
(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 proceedings relating to
the grievance procedure.
NOTE: The purpose of this bill is to require an agency to
allow a grievant a reasonable time for a representative to be
summoned and appear, and to clarify that participation in grievance
proceedings is considered work time.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would