Senate Bill No. 313
(By Senators Withers and Humphreys)
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[Introduced March 8, 1993; referred to the Committee
on Education; and then to the Committee on the Judiciary.]
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A BILL to repeal section eleven, article twenty-nine, chapter
eighteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
sections two, three, four, five, six, seven, eight and ten
of said article, all relating to grievance procedures in
educational settings; defining the term arbitrator;
providing for hearings on grievances by arbitrators;
limiting appealable issues; requiring subpoenas be issued if
requested; providing that an arbitrator be selected from a
panel of arbitrators provided by the federal mediation and
conciliation service; binding effect of arbitrator's
decision; granting arbitrator certain powers; specifying
procedures for conduct of hearings; providing for
enforcement and review of arbitrator's decisions; providing
for allocation of costs; and providing for disposition of
pending grievances; and eliminating data collection
provisions.
Be it enacted by the Legislature of West Virginia:
That section eleven, article twenty-nine, chapter eighteen
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be repealed; and that sections two,
three, four, five, six, seven, eight and ten of said article be
amended and reenacted, all to read as follows:
ARTICLE 29. GRIEVANCE PROCEDURE.
§18-29-2. Definitions.
For the purpose of this article:
(a) "Grievance" means any claim by one or more affected
employees of the governing boards of higher education, state
board of education, county boards of education, regional
educational service agencies and multi-county vocational centers
alleging a violation, a misapplication or a misinterpretation of
the statutes, policies, rules, regulations or written agreements
under which such employees work, including any violation,
misapplication or misinterpretation regarding compensation,
hours, terms and conditions of employment, employment status or
discrimination; any discriminatory or otherwise aggrieved
application of unwritten policies or practices of the board; any
specifically identified incident of harassment or favoritism; or
any action, policy or practice constituting a substantial
detriment to or interference with effective classroom
instruction, job performance or the health and safety of students
or employees.
A grievance may be filed by one or more employees on behalfof a class of similarly situated employees:
Provided,
That any
similarly situated employee shall indicate in writing of his or
her intent to join the class of similarly situated employees.
Only one employee filing a grievance on behalf of similarly
situated employees shall be required to participate in the level
one hearing required in section four of this article.
Any pension matter or other issue relating to the state
teachers retirement system in accordance with article seven-a of
this chapter or other retirement system administered outside the
jurisdiction of the applicable governing board, any matter
relating to public employees insurance in accordance with article
sixteen, chapter five of this code, or any other matter in which
authority to act is not vested with the employer shall not be the
subject of any grievance filed in accordance with the provisions
of this article.
(b) "Days" means days of the employee's employment term or
prior to or subsequent to such employment term exclusive of
Saturday, Sunday, official holidays or school closings in
accordance with section two, article five, chapter eighteen-a of
this code.
(c) "Employee" means any person hired as a temporary,
probationary or permanent employee by an institution either full
or part time. A substitute is considered an employee only on
matters related to days worked for an institution or when there
is a violation, misapplication or misinterpretation of a statute,
policy, rule, regulation or written agreement relating to suchsubstitute.
(d) "Grievant" means any named employee or group of named
employees filing a grievance as defined in subsection (a) of this
section.
(e) "Institution" means any state institution of higher
education, the governing boards of higher education, any
institution whose employees are hired by the state board of
education including the department of education, and any public
school, regional educational service agency or multi-county
vocational center.
(f) "Employer" means that institution contracting the
services of the employee.
(g) "Immediate supervisor" means that person next in rank
above the grievant possessing a degree of administrative
authority and designated as such in the employee's contract, if
any.
(h) "Chief administrator" means, as may be applicable, the
president of a state institution of higher education, the
chancellor of a governing board of higher education only as to
those employees employed solely by the chancellor and governing
board and not assigned to a state institution of higher
education, the senior administrator as to those employees hired
pursuant to section two, article four, chapter eighteen-b of this
code, the state superintendent of schools as to employees hired
by the state board of education, the county superintendent, the
executive director of a regional educational service agency orthe director of a multi-county vocational center.
(i) "Governing board" means the administrative board of any
state or county educational institution, including institutions
whose employees are hired by the state board of education, and
refers, as is applicable, to the governing boards of higher
education, state board of education, county boards of education,
the school board members of any board of directors of a regional
educational service agency or the school board members of any
administrative council of a multi-county vocational center.
(j) "Grievance evaluator" means that individual or governing
board authorized to render a decision on a grievance, including
but not limited to arbitrators.
(k) "Board" means the education employees grievance board.
(l) "Hearing examiner" means the individual or individuals
employed by the board in accordance with section five of this
article.
(m) (l) "Discrimination" means any differences in the
treatment of employees unless such differences are related to the
actual job responsibilities of the employees or agreed to in
writing by the employees.
(n) (m) "Harassment" means repeated or continual
disturbance, irritation or annoyance of an employee which would
be contrary to the demeanor expected by law, policy and
profession.
(o) (n) "Favoritism" means unfair treatment of an employee
as demonstrated by preferential, exceptional or advantageoustreatment of another or other employees.
(p) (o) "Reprisal" means the retaliation of an employer or
agent toward a grievant or any other participant in the grievance
procedure either for an alleged injury itself or any lawful
attempt to redress it.
(q) (p) "Employee organization" means any employee advocacy
organization whose membership includes employees as defined in
this section which has filed with the board the name, address,
chief officer and membership criteria of the organization.
(r) (q) "Representative" means any employee organization,
fellow employee, legal counsel or other person or persons
designated by the grievant as the grievant's representative.
§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
circumstances as provided 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 orbefore the level two 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 default, the employer may request a hearing before a
level four hearing examiner arbitrator 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 hearing examiner arbitrator 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 arbitrator finds
that the remedy is contrary to law, or clearly wrong, the
examiner arbitrator 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 statute, policy, rule, regulation or written
agreement at any level shall not prevent the subsequent
submission thereof in accordance with the provisions of thissubsection.
(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 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
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 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 fellowemployee 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
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 orcorroborative 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 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 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
within the discretion of the hearing examiner arbitrator.
(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 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 tothis 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 arbitrator, 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 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 case the grievance evaluator at the
next higher level shall designate an alternate grievanceevaluator if such 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 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 employer's or agent's or such employee's job performance.
(t) Any chief administrator or governing board of an
institution in which a grievance was filed may appeal such
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 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
(l) was not supported by competent, material and substantial
evidence on the whole record, (2) was procured by fraud,
collusion or other similar and unlawful means, or (3) the
grievance evaluator exceeded his or her statutory authority or
jurisdiction. Such appeal shall follow the procedure regardingappeal provided the grievant in section four of this article:
and provided both parties in section seven of this article
Provided, That decisions rendered at level four may only be
appealed for the reasons set forth in section seven of this
article. Such appeals shall follow the procedure set forth in
that section.
(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) 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 otherremedy 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 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 five 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 the chief
administrator, and such administrator or his or her designee
shall conduct a hearing in accordance with section six of this
article within five days of receiving the appeal and shall issue
a written decision within five days of such hearing. Such
decision may affirm, modify or reverse the decision appealed
from. Level four hearing examiners or The chief administrator
shall have the authority to subpoena witnesses and documents forlevel two and level three hearings in accordance with the
provision of section one, article five, chapter twenty-nine-a of
this code, and may shall issue a subpoena upon the written
request of any party to the grievance.
(c) Level three.
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. An appeal to the governing board shall set forth the
reasons why the grievant is seeking a level three review of the
decision of the chief administrator. Within five days of
receiving the appeal, such 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 record, or may waive the right granted herein and
shall notify the grievant of such 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 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 hearing.
(d) Level four.
(1) If the grievant is not satisfied with the action taken
by the chief administrator, or, if appealed to level three, theaction taken by the governing board, within five days of the
written decision the grievant may request, in writing, may notify
the employer on a form furnished by the employer, that he or she
requests that the grievance be submitted to a hearing examiner an
arbitrator as provided for in section five of this article. such
hearing to be conducted in accordance with section six of this
article within ten days following the request therefor:
Provided, That such hearing may be held within thirty days
following the request, or within such time as is mutually agreed
upon by the parties, if the hearing examiner gives reasonable
cause, in writing, as to the necessity for such delay Within ten
days of receiving notice of arbitration the employer shall notify
the federal mediation and conciliation service and request a
panel of five names of qualified individuals from which an
arbitrator may be chosen by the parties pursuant to the procedure
set out in section five of this article.
(2) Within thirty days following the hearing, held by the
arbitrator pursuant to section five of this article, the hearing
examiner arbitrator 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 arbitrator shall be
final and binding 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 suchdecisions shall be provided at reasonable cost to any individual
requesting it.
§18-29-5. Arbitrators; selections and powers.
(a) Within two days of receipt of the list of potential
arbitrators from the federal mediation and conciliation service
the employer shall provide a copy of said list to the grievant
and his or her representative. Within five days of receipt of
said list by the grievant the parties shall hold a meeting for
the purpose of selecting an arbitrator. At said meeting the
employer and the grievant shall alternatively strike names from
the list until there is only one name left. The representative
of the employer shall make the first strike. The parties shall
notify the federal mediation and conciliation service in writing
that the individual whose name was not struck shall be the person
to arbitrate the grievance.
Within thirty days of receipt of notice of selection by the
arbitrator a hearing shall be held in accordance with the
provision of this article and the rules, regulations, and
procedures established by the federal mediation and conciliation
service: Provided, That such time period for the hearing may be
enlarged by mutual agreement of the parties or upon a written
order of the arbitrator based upon reasonable cause for such a
delay.
(b) Arbitrators are hereby authorized and shall have the
power to consolidate grievances, allocate costs among the parties
in accordance with section eight of this article, subpoenawitnesses and documents in accordance with the provisions of
section one, article five, chapter twenty-nine-a of this code,
provide such relief as is deemed fair and equitable in accordance
with the provisions of this article, and such other powers as
will provide for the effective resolution of grievances not
inconsistent with the provisions of this article.
§18-29-6. Hearings generally.
The chief administrator or his or her designee, the
governing board or the hearing examiner arbitrator shall conduct
all hearings in an impartial manner and shall ensure that all
parties are accorded procedural and substantive due process. All
parties shall have an opportunity to present evidence and
argument with respect to the matters and issues involved, to
cross examine and to rebut evidence. Notice of a hearing shall
be sent to all parties and their named representative and shall
include the date, time and place of the hearing.
The institution that is party to the grievance shall produce
prior to such hearing any documents, not privileged, and which
are relevant to the subject matter involved in the pending
grievance, that has been requested by the grievant, in writing.
The superintendent, the president of the state or county
board of education or the state or county board member designated
by such president, the executive director of the regional
educational service agency, the director of the multi-county
vocational center, the chancellor of the higher education
governing boards, the president of any state institution ofhigher education, the senior administrator, the chief
administrator or his or her designee, each member of the
governing board or the hearing examiner arbitrator shall have the
power to (1) administer oaths and affirmations, (2) regulate the
course of the hearing, (3) hold conferences for the settlement or
simplification of the issues by consent of the parties, (4)
exclude immaterial, irrelevant or repetitious evidence, (5)
sequester witnesses, (6) restrict the number of advocates, and
take any other action not inconsistent with the rules and
regulations of the board or the provisions of this article.
All the testimony and evidence at any hearing shall be
recorded by mechanical means, and all recorded testimony and
evidence at such hearing shall be transcribed and certified at
the request of any party to the institution or board. The
institution shall be responsible for promptly transcribing the
testimony and evidence and for providing a copy of the certified
transcription to the party requesting same. The institution
shall be responsible for all costs relating to preparation and
duplication of the transcript. The hearing examiner arbitrator
may also request and be provided a transcript upon appeal to
level four and allocate the costs therefor as prescribed in
section eight of this article.
Formal rules of evidence shall not be applied, but parties
shall be bound by the rules of privilege recognized by law. In
any grievance involving disciplinary or discharge actions, no
employee may be compelled to testify against himself or herself,the burden of proof is on the employer, and the employer shall
present its case first.
All materials submitted in accordance with section three of
this article; the mechanical recording of all testimony and
evidence or the transcription thereof, if any; the decision; and
any other materials considered in reaching the decision shall be
made a part and shall constitute the record of a grievance. Such
record shall be submitted to any level at which appeal has been
made, and such record shall be considered, but the development of
such record shall not be limited thereby.
Every decision pursuant to a hearing shall be in writing and
shall be accompanied by findings of fact and conclusions of law.
Prior to such decision any party may propose findings of fact and
conclusions of law.
§18-29-7. Enforcement and reviewability.
The decision of the hearing examiner arbitrator shall be
final upon the parties and shall be enforceable in circuit court:
Provided, That either party may appeal to the circuit court of
the Kanawha County in which the grievance occurred on the grounds
that the hearing examiner's arbitrator's 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 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 ofdiscretion or clearly unwarranted exercise of discretion (1) was
not supported by competent, material and substantial evidence on
the whole record, (2) was procured by fraud, collusion or other
similar and unlawful means, or (3) the arbitrator exceeded his or
her statutory authority or jurisdiction. Such appeal shall be
filed in the circuit court of Kanawha County or in the circuit
court of the county in which the grievance occurred within thirty
days of receipt of the hearing examiner's arbitrator's decision.
The decision of the hearing examiner arbitrator shall not be
stayed, automatically, upon the filing of an appeal, but a stay
may be granted by the circuit court upon separate motion
therefor.
The court's ruling shall be upon the entire record made
before the hearing examiner arbitrator, and the court may hear
oral arguments and require written briefs. The court may
reverse, vacate or modify the decision of the hearing examiner
arbitrator or may remand the grievance to the chief administrator
of the institution for further proceedings.
§18-29-8. Allocation of costs.
Any expenses incurred relative to the grievance procedure at
levels one through three 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.
All expenses incurred relative to a level four hearing
before an arbitrator shall be divided equally between the
parties.
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.
§18-29-10. Effective date; disposition of pending grievances.
The effective date of the amendment to this article shall be
on the first day of July, one thousand nine hundred ninety-three.
All grievances filed pursuant to the provisions of this article
which are ultimately appealed to level four shall be adjudicated
by the hearing examiners employed by the education employees
grievance board. All grievances filed after said effective date,
which are ultimately appealed to level four, shall be adjudicated
by an arbitrator pursuant to the provisions of this article.
NOTE: The purpose of this bill is to provide for
arbitration of grievances in educational settings. The bill
eliminates provisions relating to hearing examiners in favor of
implementing a system of arbitration. The bill provides for
disposition of pending grievances and it eliminates data
collection requirements.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added. §§18-29-5 and 18-29-10 have been completely
rewritten, therefore strike-throughs and underlining are omitted
in these sections.