ENROLLED
Senate Bill No. 780
(By Senators Bowman, Bailey, Barnes, Boley, Kessler, McCabe, Minard,
Plymale, Sypolt, White and Yoder)
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[Passed March 8, 2008; in effect ninety days from passage.]
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AN ACT 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.
§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
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
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.
(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.
(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 or is agreed to in
writing by the employee.
(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;
(ii) Any discriminatory or otherwise aggrieved application of
unwritten policies or practices of his or her employer;
(iii) Any specifically identified incident of harassment;
(iv) Any specifically identified incident of favoritism; or
(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.
(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.
(m)
"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)
"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) "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
level two.
(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
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
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. -- The parties are entitled to copies of all
material submitted to the chief administrator or the administrative
law judge by any party.
(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 judge.
(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) 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) 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
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.
(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.
§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.
(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.
(4) An employee may proceed directly to level three upon the
agreement of the 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 private arbitration.
(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. 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.
(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. 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.
(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.
(c) Level three hearing. --
(1) Within ten days of receiving a written report stating that
level two was unsuccessful, the grievant may file a written appeal
with the employer
and the board requesting a level three hearing 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.
(4) The administrative law judge may issue subpoenas for
witnesses, limit witnesses, administer oaths and exercise other
powers granted by rule or law
.
(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.