Senate Bill No. 439
(By Senator Hunter)
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[Introduced February 2, 2007; referred to the Committee on
Government Organization; and then to the Committee on Finance.]
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A BILL to amend and reenact §18-29-2, §18-29-3, §18-29-4, §18-29-5,
§18-29-7 and §18-29-8 of the Code of West Virginia, 1931, as
amended; to amend said code by adding thereto a new section,
designated §18-29-10a; to amend and reenact §29-6A-2,
§29-6A-3, §29-6A-4, §29-6A-5, §29-6A-6, §29-6A-7, §29-6A-10
and §29-6A-12 of said code; and to amend said code by adding
thereto a new section, designated §29-6A-13, all relating to
grievance procedures for state employees, public education
employees and higher education employees; changing grievance
procedures; residential requirements for administrative law
judges; changing name of hearing examiner to administrative
law judge; and providing for binding arbitration.
Be it enacted by the Legislature of West Virginia:
That §18-29-2, §18-29-3, §18-29-4, §18-29-5, §18-29-7 and
§18-29-8 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto a new
section, designated §18-29-10a; that §29-6A-2, §29-6A-3, §29-6A-4,
§29-6A-5, §29-6A-6, §29-6A-7, §29-6A-10 and §29-6A-12 of said code
be amended and reenacted; and that said code be amended by adding
thereto a new section, designated §29-6A-13, all to read as
follows:
CHAPTER 18. EDUCATION.
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 multicounty 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 behalf of
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 such
substitute.
(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 multicounty
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 or the director
of a multicounty 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 multicounty vocational center.
(j) "Grievance evaluator" means that individual or governing
board authorized to render a decision on a grievance.
(k) "Board" means the Education Employees Grievance Board.
(l)
"Hearing examiner" "Administrative law judge" means the
individual or individuals employed by the board in accordance with
section five of this article.
(m) "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) "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) "Favoritism" means unfair treatment of an employee as
demonstrated by preferential, exceptional or advantageous treatment
of another or other employees.
(p) "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) "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) "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 may only 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 the 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 may only be asserted by the employer on behalf of the employer
at or before the level
two one hearing. If a grievance evaluator
required to respond to a grievance at any level fails to make a
required response in the time limits required in this article,
unless prevented from doing so directly as a result of sickness or
illness, the grievant shall prevail by default. Within five days
of
such the default, the employer may request a hearing before a
level
four three hearing examiner administrative law judge for the
purpose of showing that the remedy received by the prevailing
grievant is contrary to law.
or clearly wrong In making a
determination regarding the remedy, the
hearing examiner
administrative law judge shall presume the employee prevailed on
the merits of the grievance and shall determine whether the remedy
is contrary to law
or clearly wrong in light of that presumption.
If the
examiner administrative law judge finds that the remedy is
contrary to law,
or clearly wrong, the
examiner administrative law
judge may modify the remedy to be granted so as to comply with the
law and to make the grievant whole.
(b) If the employer or agent intends to assert the
applicability of any statute, policy, rule, regulation or written
agreement or submits any written response to the filed grievance at
any level, a copy thereof shall be forwarded to the grievant and
any representative of the grievant so named in the filed grievance.
Anything so submitted and the grievant's response thereto, if any,
shall become part of the record. Failure to assert
such the
statute, policy, rule, regulation or written agreement at any level
shall not prevent the subsequent submission thereof in accordance
with the provisions of this subsection.
(c) The grievant may file the grievance at the level vested
with the authority to grant the requested relief.
if the grievance
evaluator at that level agrees in writing thereto In the event a
grievance is filed at a higher level, the employer shall provide
copies to each lower administrative level.
(d) An employee may withdraw a grievance at any time by
notice, in writing, to the level wherein the grievance is then
current.
Such The grievance may not be reinstated by the grievant
unless
such the reinstatement is granted by the grievance evaluator
at the level where the grievance was withdrawn. If more than one
employee is named as grievant in a particular grievance, the
withdrawal of one employee shall not prejudice the rights of any
other employee named in the grievance. In the event a grievance is
withdrawn or an employee withdraws from a grievance,
such the employer shall notify in writing each lower administrative level.
(e) Grievances may be consolidated at any level by agreement
of all parties.
(f) An employee may have the assistance of one or more fellow
employees, an employee organization representative or
representatives, legal counsel or any other person in the
preparation and presentation of the grievance. At the request of
the grievant,
such the person or persons may be present at any step
of the procedure, as well as at any investigative meeting or other
meeting which is held with the employee for the purpose of
discussing the possibility of disciplinary action. When a fellow
employee is assisting a grievant, the employee shall do so without
loss of pay and shall have protection from reprisal as that term is
defined in section two of this article.
(g) If a grievance is filed which cannot be resolved within
the time limits set forth in section four of this article prior to
the end of the employment term, the time limit set forth in said
section shall be reduced as agreed to in writing by both parties so
that the grievance procedure may be concluded within ten days
following the end of the employment term or an otherwise reasonable
time.
(h) No reprisals of any kind shall be taken by any employer or
agent of the employer against any interested party, or any other
participant in the grievance procedure by reason of
such that participation. A reprisal constitutes a grievance and any person
held to be responsible for reprisal action shall be subject to
disciplinary action for insubordination.
(i)
Except for the informal attempt to resolve the grievance
as provided for in subsection (a), section four of this article,
Decisions rendered at all levels of the grievance procedure shall
be dated, shall be in writing setting forth the decision or
decisions and the reasons therefor and shall be transmitted within
the time prescribed to the grievant and any representative named in
the grievance. If the grievant is denied the relief sought, the
decision shall include the name of the individual at the next level
to whom appeal may be made.
(j) Once a grievance has been filed, supportive or
corroborative evidence may be presented at any conference or
hearing conducted pursuant to the provisions of this article.
Whether evidence substantially alters the original grievance and
renders it a different grievance is within the discretion of the
grievance evaluator at the level wherein the new evidence is
presented. If the grievance evaluator rules that the evidence
renders it a different grievance, the party offering the evidence
may withdraw same; the parties may consent to
such the evidence or
the grievance evaluator may decide to hear the evidence or rule
that the grievant must file a new grievance. The time limitations
for filing the new grievance shall be measured from the date of
such the ruling.
(k) Any change in the relief sought by the grievant shall be
consented to by all parties or may be granted at level
four three
within the discretion of the
hearing examiner administrative law
judge.
(l) Forms for filing grievances, giving notice, taking
appeals, making reports and recommendations and all other necessary
documents shall be made available by the immediate supervisor to
any employee upon request.
Such The forms shall include
information as prescribed by the board. The grievant shall have
access to the institution's equipment for purposes of preparing
grievance documents subject to the reasonable rules of the employer
governing the use of
such the equipment.
(m) Notwithstanding the provisions of section three, article
nine-a, chapter six of this code, or any other provision relating
to open proceedings, all conferences and hearings pursuant to this
article shall be conducted in private except that, upon the
grievant's request, conferences and hearings at levels two and
three shall be public.
Within the discretion of the hearing
examiner, conferences and hearings may be public at level four.
(n) No person or governing board to which appeal has been made
shall confer or correspond with a grievance evaluator at a previous
level or a management representative who recommended or approved
the grieved action regarding the merits of the grievance unless all parties to the grievance are present.
(o) Grievances may be processed at any reasonable time, but
attempts shall be made to process the grievance on work time in a
manner which does not interfere with the normal operation of the
institution. Grievances processed on work time shall not result in
any reduction in salary, wages, rate of pay or other benefits of
the employee and shall be counted as time worked.
Should any employer or the employer's agent cause a conference
or hearing to be postponed without adequate notice to employees who
are scheduled to appear during their normal work day,
such these
employees will not suffer any loss in pay for work time lost.
(p) Any grievance evaluator may be excused from participation
in the grievance process for reasonable cause, including, but not
limited to, conflict of interest or incapacitation.
and in such
case If the grievance evaluator is excused from participation, the
grievance evaluator at the next higher level shall designate an
alternate grievance evaluator if
such that is
deemed considered
reasonable and necessary.
(q) No less than one year following resolution of a grievance
at any level, the grievant may, by request in writing, have removed
any record of the grievance from any file kept by the employer.
(r) All grievance forms and reports shall be kept in a file
separate from the personnel file of the employee and shall not
become a part of
such the personnel file, but shall remain confidential except by mutual written agreement of the parties.
(s) The number of grievances filed against an employer or
agent or by an employee shall not, per se, be an indication of
such
the employer's or agent's or
such the employee's job performance.
(t) Any chief administrator or governing board of an
institution in which a grievance was filed may appeal
such the
decision on the grounds that the decision: (1) Was contrary to law
or lawfully adopted rule, regulation or written policy of the chief
administrator or governing board; (2) exceeded the
hearing
examiner's administrative law judge's statutory authority; (3) was
the result of fraud or deceit; (4) was clearly wrong in view of the
reliable, probative and substantial evidence on the whole record;
or (5) was arbitrary or capricious or characterized by abuse of
discretion.
Such The appeal shall follow the procedure regarding
appeal provided the grievant in section four of this article and
provided both parties in section seven of this article.
(u) Upon a timely request, any employee shall be allowed to
intervene and become a party to a grievance at any level when that
employee claims that the disposition of the action may
substantially and adversely affect his or her rights or property
and that his or her interest is not adequately represented by the
existing parties.
(v) (u) The doctrine of laches shall not be applied to prevent
a grievant or grievants from recovering back pay or other appropriate relief for a period of one year prior to the filing of
a grievance based upon a continuing practice.
§18-29-4. Procedural levels and procedure at each level.
(a)
Level one. --
Before a grievance is filed and Within fifteen days following
the occurrence of the event upon which the grievance is based, or
within fifteen days of the date on which the event became known to
the grievant or within fifteen days of the most recent occurrence
of a continuing practice giving rise to a grievance, the grievant
or the designated representative shall
schedule a conference with
the immediate supervisor to discuss the nature of the grievance and
the action, redress or other remedy sought.
The conference with the immediate supervisor concerning the
grievance shall be conducted within ten days of the request
therefor, and any discussion shall be by the grievant in the
grievant's own behalf or by both the grievant and the designated
representative.
(2) The immediate supervisor shall respond to the grievance
within ten days of the conference.
(3) Within ten days of receipt of the response from the
immediate supervisor following the informal conference, a written
grievance may be filed with said supervisor, or in the case where
the grievance involves an event under the jurisdiction of a state
institution of higher education, the grievance shall be filed with said supervisor and the office of personnel, by the grievant or the
designated representative on a form furnished by the employer or
agent.
(4) The immediate supervisor shall state the decision to such
filed grievance within ten days after the grievance is filed.
(b) Level two.
Within five days of receiving the decision of the immediate
supervisor, the grievant may appeal the decision to file a written
grievance, which shall include the action, redress or other remedy
sought, with the chief administrator:
Provided, That a grievant,
in his or her own discretion, may file the grievance with his or
her immediate supervisor. If the grievant files a grievance with
his or her immediate supervisor, the supervisor shall respond in
writing to the grievance within five days. If the grievance is not
granted, the grievant may appeal, within five days, to the chief
administrator. and such The chief administrator or his or her
designee shall conduct a hearing in accordance with section six of
this article within
five ten days of receiving the
grievance appeal
and shall issue a written decision within
five seven days of
such
the hearing.
Such decision may affirm, modify or reverse the
decision appealed from. Level
four three hearing examiners
administrative law judges or the chief administrator shall have the
authority to subpoena witnesses and documents for level
one and two
and level three hearings in accordance with the provision of section one, article five, chapter twenty-nine-a of this code and
may issue a subpoena upon the written request of any party to the
grievance.
When the chief administrator's designee holds the
hearing, the grievance evaluator shall issue the final decision and
the chief administrator shall have no authority to override,
reverse or modify the decision.
(c) (b) Level three two. --
Within five days of receiving the decision of the chief
administrator, the grievant may appeal the decision to the
governing board of the institution or may proceed directly to level
four three. An appeal to the governing board shall set forth the
reasons why the grievant is seeking a level
three two review of the
decision of the chief administrator. Within five days of receiving
the appeal,
such the governing board may conduct a hearing in
accordance with section six of this article, may review the record
submitted by the chief administrator and render a decision based on
such the record or may waive the right granted herein and shall
notify the grievant of
such the waiver. Any decision by the
governing board, including a decision to waive participation in the
grievance, shall be in writing and shall set forth the reasons for
such the decision, including the decision to waive participation in
the grievance. If a hearing is held under the provisions of this
subsection, the governing board shall issue a decision affirming,
modifying or reversing the decision of the chief administrator within five days of
such the hearing.
If the governing board
grants the grievance, the chief administrator may not appeal the
grievance to level three.
(d) (c) Level four three. --
(1) If the grievant is not satisfied with the action taken by
the chief administrator or, if appealed to level
three two, the
action taken by the governing board, within five days of the
written decision the grievant may request, in writing, on a form
furnished by the employer, that the grievance be submitted to
a
hearing examiner an administrative law judge as provided
for in
section five of this article.
such The hearing
to shall be
conducted in accordance with section six of this article within ten
days following the request:
therefor: Provided, That
such the
hearing may be held within thirty days following the request or
within
such the time as is mutually agreed upon by the parties, if
the
hearing examiner administrative law judge gives reasonable
cause, in writing, as to the necessity for
such delay.
(2) Within thirty days following the hearing, the
hearing
examiner administrative law judge shall render a decision in
writing to all parties setting forth findings and conclusions on
the issues submitted. Subject to the provisions of section seven
of this article, the decision of the
hearing examiner
administrative law judge shall be final upon the parties and shall
be enforceable in circuit court.
All information and data generated by the board and in its
custody relative to level
four three decisions and copies of
such
the decisions shall be provided at reasonable cost to any
individual requesting it.
§18-29-5. Education and State Employees Grievance Board;
administrative law judges.
(a) The Education and State Employees Grievance Board shall
consist of three members who are citizens of the state appointed by
the Governor by and with the advice and consent of the Senate for
overlapping terms of three years. No two members may be from the
same congressional district, and no more than two of the appointed
members may be from the same political party. No person may be
appointed to membership on the board who is a member of any
political party executive committee or holds any other public
office or public employment under the federal government or under
the government of this state. Members are eligible for
reappointment, and any vacancy on the board shall be filled within
thirty days of the vacancy by the Governor by appointment for the
unexpired term.
A member of the board may not be removed from office except
for official misconduct, incompetence, neglect of duty, gross
immorality or malfeasance, and then only in the manner prescribed
in article six, chapter six of this code for the removal by the
Governor of the state elected officers.
The board shall hold at least two meetings yearly at times and
places as it may prescribe and may meet at other times as may be
necessary, the other meetings to be agreed to in writing by at
least two of the members. The compensation for members of the
board is seventy-five dollars for each calendar day devoted to the
work of the board, but not more than seven hundred
and fifty
dollars during any one fiscal year. Each member shall be
reimbursed for all reasonable and necessary expenses actually
incurred in the performance of board duties, but shall submit a
request for reimbursement upon a sworn itemized statement.
The board shall administer the grievance procedure at levels
two, three and four, one, two and three as provided in section
five, article six-a, chapter twenty-nine of this code, and as
provided
for in section four of this article, and shall employ at
least two full-time
hearing examiners administrative law judges on
an annual basis and clerical help as is necessary to implement the
legislative intent expressed in section one of this article.
In addition to the authorization granted by this section over
education employees, the board has jurisdiction over the procedures
to be followed in processing grievances filed under article six-a,
chapter twenty-nine of this code.
The board shall hire
hearing examiners administrative law
judges who reside in different
regional educational service agency
areas
of the state. unless and until the number of hearing examiners exceeds the number of the areas, at which time two
hearing examiners may be from the same area. If a grievant
previously before
a hearing examiner an administrative law judge
again brings a grievance, a different
hearing examiner
administrative law judge is required to hear the grievance upon
written request therefor by any party to the grievance. These
hearing examiners administrative law judges serve at the will and
pleasure of the board.
The board shall submit a yearly budget and shall report
annually to the Governor and Legislature regarding receipts and
expenditures, number of level
four three hearings conducted,
synopses of hearing outcomes and other information as the Board
determines appropriate. The board shall further evaluate on an
annual basis the level
four three grievance process and the
performance of all
hearing examiners administrative law judges and
include the evaluation in the annual report to the Governor and
Legislature. In making the evaluation, the board shall notify all
institutions, employee organizations and all grievants
participating in level
four three grievances in the year for which
evaluation is being made and shall provide for the submission of
written comment or the hearing of testimony regarding the grievance
process, or both. The board shall provide suitable office space
for all
hearing examiners administrative law judges in space other
than that
utilized used by any institution as defined in section two of this article and shall ensure that reference materials are
generally available.
The board is authorized to promulgate rules consistent with
the provisions of this article; the rules shall be adopted in
accordance with chapter twenty-nine-a of this code.
(b) Hearing examiners may consolidate grievances, allocate
costs among the parties in accordance with section eight of this
article, subpoena witnesses and documents in accordance with the
provisions of section one, article five, chapter twenty-nine-a of
this code, provide relief found fair and equitable in accordance
with the provisions of this article and exercise other powers as
provides for the effective resolution of grievances not
inconsistent with any rules of the board or the provisions of this
article.
§18-29-7. Enforcement and reviewability.
The decision of the
hearing examiner administrative law judge
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 county in which the grievance occurred on the grounds that
the
hearing examiner's administrative law judge'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 administrative law judge's statutory
authority; (3) was the result of fraud or deceit; (4) was clearly wrong in view of the reliable, probative and substantial evidence
on the whole record; or (5) was arbitrary or capricious or
characterized by abuse of discretion or clearly unwarranted
exercise of discretion.
Such The 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 administrative law
judge's decision. The decision of the
hearing examiner
administrative law judge 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 administrative law judge and the court may
hear oral arguments and require written briefs. The court may
reverse, vacate or modify the decision of the
hearing examiner
administrative law judge 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 and two shall be borne by the party
incurring such expenses except as to the costs of transcriptions as
provided
for in section six of this article.
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 of Appeals, and the employee
substantially prevails upon
such the appeal, the employee or the
organization representing the employee is entitled to recover court
costs and reasonable attorney fees, to be set by the court, from
the employer.
§18-29-10a. Arbitration.
(a) At any time prior to the level three hearing, the grievant
shall be entitled to submit the grievance to arbitration with the
grievant paying one third of the cost of arbitration and the
institution paying two-thirds of the cost of arbitration. The
grievance shall be submitted to an arbitrator mutually agreed to by
the parties.
(b) The arbitrator shall set the location, date and time of
the hearing, in consultation with the parties. The arbitrator may
order any discovery that the arbitrator considers necessary for a
full and fair exploration of the issues in dispute, consistent with
the expedited nature of arbitration.
(c) An arbitration hearing shall be opened by: (1) Recording
the date, time and place of the hearing; and (2) recording the
presence of the arbitrator, the parties and their representative,
if any. The arbitrator may ask the parties for statements to
clarify the issues involved.
(d) The parties shall bear the same burdens of proof and
burdens of producing evidence as would apply if their claims and counterclaims had been brought in circuit court. The arbitrator
shall be the judge of the relevance and materiality of the evidence
offered and conformity to legal rules of evidence shall not be
necessary.
(e) Witnesses for each party shall submit to direct and cross
examination as approved by the arbitrator. The arbitrator may
exclude witnesses, other than a party, from the hearing during the
testimony of another witness. The arbitrator also may decide
whether any person who is not a witness or a party may attend the
hearing.
With the exception of the rules regarding the allocation of
the burdens of proof and going forward with the evidence, the
arbitrator may establish the rules for the conduct of the
proceedings and exercise that authority to afford a full and equal
opportunity to all parties to present any evidence that the
arbitrator determines is material and relevant to the resolution of
the dispute. The arbitrator may receive documentary and other
forms of physical evidence when offered by either party.
(f) The names and addresses of all witnesses and description
of the exhibits shall be made a part of the record.
(g) There shall be no ex parte communication with the
arbitrator, unless the parties and the arbitrator otherwise agree
in advance of the communication. The arbitrator shall maintain the
confidentiality of the arbitration and may make rulings to safeguard that confidentiality.
(h) The award shall be made promptly by the arbitrator and,
unless otherwise agreed by the parties, no later than thirty days
from the date of closing.
(i) Except as provided in subsection (j) of this section, the
award of an arbitrator is binding on the parties to the grievance.
(j) The award of an arbitrator may be set aside by the circuit
court of the county in which the arbitration hearing was held if
the award was procured by corruption or fraud, an undisclosed
conflict of interest existed or if the arbitrator exceeded his or
her authority.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 6A. GRIEVANCE PROCEDURE FOR STATE EMPLOYEES.
§29-6A-2. Definitions.
For the purpose of this article:
(a) "Board" means the Education Employees Grievance Board
created in section five, article twenty-nine, chapter eighteen of
this code and hereafter known as the Education and State Employees
Grievance Board.
(b) "Chief administrator" means the commissioner, director or
head of any state department, board, commission or agency.
(c) "Days" means working days exclusive of Saturday, Sunday or
official holidays.
(d) "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.
(e) "Employee" means any person hired for permanent
employment, either full or part-time, by any department, agency,
commission or board of the state created by an act of the
Legislature, except those persons employed by the board of regents
or by any state institution of higher education, members of the
Department of Public Safety, any employees of any constitutional
officer unless they are covered under the Civil Service System and
any employees of the Legislature. The definition of "employee"
shall not include any patient or inmate employed in a state
institution.
(f) "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.
(g) "Employer" means that state department, board, commission
or agency utilizing the services of the employee covered under this
article.
(h) "Favoritism" means unfair treatment of an employee as
demonstrated by preferential, exceptional or advantageous treatment
of another or other employees.
(i) "Grievance" means any claim by one or more affected state employees 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 their employer;
any specifically identified incident of harassment or favoritism;
or any action, policy or practice constituting a substantial
detriment to or interference with effective job performance or the
health and safety of the employees.
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 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.
(j) "Grievance evaluator" means that individual authorized to
render a decision on a grievance under procedural levels one, two
and three as set out in section four.
(k) "Grievant" means any named employee or group of named
employees filing a grievance as defined in subdivision (i) of this
section.
(l) "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.
(m)
"Hearing examiner" "Administrative law judge" means the
individual or individuals employed by the board in accordance with
section five of this article.
(n) "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.
(o) "Representative" means any employee organization, fellow
employee, legal counselor or other person or persons designated by
the grievant as the grievant's representative.
(p) "Reprisal" means the retaliation of an employer or agent
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.
§29-6A-3. Grievance procedure generally.
(a) (1) A grievance shall 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 is 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 shall be extended whenever
a grievant is not working because of accident, sickness, death in
the immediate family or other cause necessitating the grievant to take personal leave from his or her employment.
(2) Any assertion by the employer that the filing of the
grievance at level one was untimely shall be asserted by the
employer on behalf of the employer at or before the level two
hearing. The grievant prevails by default 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,
injury, excusable neglect, unavoidable cause or fraud. Within five
days of the receipt of a written notice of the default, the
employer may request a hearing before a level
four hearing examiner
three administrative law judge for the purpose of showing that the
remedy received by the prevailing grievant is contrary to law or
clearly wrong. In making a determination regarding the remedy, the
hearing examiner administrative law judge 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 finds that the remedy
is contrary to law or clearly wrong, the examiner may modify the
remedy to be granted to comply with the law and to make the
grievant whole.
(b) If the employer or its agent intends to assert the
application of any statute, policy, rule or written agreement or
submits any written response to the filed grievance at any level, a copy of the materials shall be forwarded to the grievant and any
representative of the grievant named in the filed grievance.
Anything submitted and the grievant's response to the submitted
materials, if any, becomes part of the record. Failure to assert
the statute, policy, rule or written agreement at any level does
not prevent the subsequent submission of the materials in
accordance with the provisions of this subsection.
(c) The grievant may file the grievance at the level vested
with authority to grant the requested relief if each lower
administrative level agrees in writing to filing the grievance at
a higher level. 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 where the grievance is then
current. The grievance may not be reinstated by the grievant
unless 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 does 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, the employer shall notify,
in writing, each lower administrative level.
(e) Grievances may be consolidated at any level by agreement of all parties.
(f) A grievant may be represented by an employee organization
representative, legal counsel or any other person, including a
fellow employee, in the preparation or presentation of the
grievance. At the request of the grievant, that person or persons
may be present at any step of the procedure:
Provided, That at
level one of the grievance, as set forth in section four of this
article, a grievant may have only one representative.
(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 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 may 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 the
participation. A reprisal constitutes a grievance, and any person
held responsible for reprisal action is subject to disciplinary
action for insubordination.
(i) Decisions rendered at all levels of the grievance
procedure shall be dated, in writing setting forth the decision or
decisions and the reasons for the decision and transmitted to the
grievant and any representative named in the grievance within the time prescribed. If the grievant is denied the relief sought, the
decision shall include the name of the individual at the next level
to whom appeal may be made.
(j) Once a grievance has been filed, supportive or
corroborative evidence may be presented at any conference or
hearing conducted pursuant to the provisions of this article.
Whether evidence substantially alters the original grievance and
renders it a different grievance is within the discretion of the
grievance evaluator at the level where 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 it, the parties may consent to the evidence or the
grievance evaluator may decide to hear the evidence or rule that
the grievant must file a new grievance. The time limitation for
filing the new grievance is measured from the date of the ruling.
(k) Any change in the relief sought by the grievant shall be
consented to by all parties or may be granted at level
four three
within the discretion of the
hearing examiner administrative law
judge.
(l) Forms for filing grievances, giving notice, taking
appeals, making reports and recommendations and all other necessary
documents shall be made available by the immediate supervisor to
any employee upon request. The forms shall include information
prescribed by the board. The grievant 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.
(m) Notwithstanding the provisions of section three, article
nine-a, chapter six of this code, or any other provision relating
to open proceedings, all conferences and hearings pursuant to this
article shall be conducted in private except that, upon the
grievant's request, conferences and hearings at levels two and
three shall be open to employees of the grievant's immediate office
or work area or, at the request of the grievant, shall be public.
Within the discretion of the
hearing examiner administrative law
judge, conferences and hearings may be public at level four.
(n) No person may confer or correspond with
a hearing examiner
an administrative law judge regarding the merits of the grievance
unless all parties to the grievance are present.
(o) Grievances shall be processed during regular working
hours. Attempts shall be made to process the grievance in a manner
which does not interfere with the normal operation of the employer.
(p) The grievant or the employee selected by a grievant to
represent him or her in the processing of a grievance through this
procedure, or both, shall be granted necessary time off during
working hours for the grievance procedure without loss of pay and
without charge to annual or compensatory leave credits. In
addition to actual time spent in grievance conferences and hearings, the grievant or the employee representative, or both,
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 state employee
is the work assigned by the appointing authority to the employee.
An employee may not allow grievance preparation and representation
activities to seriously affect the overall productivity of the
employee.
(q) The aggrieved employee, employing agency and
representatives of both have the right to call, examine and
cross-examine witnesses who are employees of the agency against
which the grievance is lodged and who have knowledge of the facts
at issue.
(r) Both parties may produce witnesses other than employees of
the agency against which the grievance is lodged and the witnesses
are subject to examination and cross-examination.
(s) If an employer or the employer's agent causes a conference
or hearing 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.
(t) 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 if this occurs, the grievance evaluator at the next higher level shall
designate an alternative grievance evaluator if it is reasonable
and necessary.
(u) 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 grievant's identity from any file kept by the
employer.
(v) All grievance forms 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.
(w) The number of grievances filed against an employer or
agent or by an employee is not, per se, an indication of the
employer's or agent's or the employee's job performance.
(x) Any chief administrator with whom a grievance is filed may
appeal a level four decision on the grounds that the decision:
(1) Is contrary to law or a lawfully adopted rule or written
policy of the employer;
(2) Exceeds the
hearing examiner's administrative law judge's
statutory authority;
(3) Is the result of fraud or deceit;
(4) Is clearly wrong in view of the reliable, probative and
substantial evidence on the whole record; or
(5) Is arbitrary or capricious or characterized by abuse of discretion.
The appeal shall follow the procedure regarding appeal
provided the grievant in section four of this article and provided
both parties in section seven of this article.
§29-6A-4. Procedural levels and procedure at each level.
(a)
Level one. --
Within
ten fifteen days following the occurrence of the event
upon which the grievance is based, or within
ten fifteen days of
the date on which the event became known to the grievant, or within
ten days of the most recent occurrence of a continuing practice
giving rise to a grievance, the grievant or the designated
representative, or both, may file
a written grievance with the
immediate supervisor of the grievant. At the request of the
grievant or the immediate supervisor, an informal conference shall
be held to discuss the grievance within three days of the receipt
of the written grievance. The immediate supervisor shall issue a
written decision within six days of the receipt of the written
grievance. If a grievance alleges discrimination or retaliation by
the immediate supervisor of the grievant, the level one filing may
be waived by the grievant and the grievance may be initiated at
level two with the administrator or his or her designee, within the
time limits set forth in this subsection for filing a grievance at
level one. A meeting may be held to discuss the issues in dispute,
but the meeting is not required.
(b) Level two. --
Within five days of receiving the decision of the immediate
supervisor, the grievant may file a written appeal a written
grievance, which shall include the action, redress or other remedy
sought, with to the
chief administrator of the grievant's work
location, facility, area office or other appropriate subdivision of
the department, board, commission or agency:
Provided, That a
grievant, in his or her discretion, may file a grievance with his
or her immediate supervisor who shall respond in writing to the
grievance within five days. If the grievance is denied, the
grievant may appeal, within five days, to the chief administrator.
The
chief administrator or his or her designee shall hold a
conference within five days of the receipt of the appeal and issue
a written decision upon the appeal within five days of the
conference.
When the chief administrator's designee holds the
hearing, the grievance evaluator shall issue the final decision and
the chief administrator shall have no authority to override,
reverse or modify the decision.
(c) (b) Level three two. --
Within five days of receiving the decision of the
administrator of the grievant's work location, facility, area
office, or other appropriate subdivision of the department, board,
commission or agency, the grievant may file a written appeal of the
decision with the chief administrator of the grievant's employing department, board, commission or agency. A copy of the appeal and
the level
two one decision shall be served upon the director of the
division of personnel by the grievant.
The chief administrator or his or her designee shall hold a
hearing in accordance with section six of this article within seven
days of receiving the appeal. The director of the division of
personnel or his or her designee may appear at the hearing and
submit oral or written evidence upon the matters in the hearing.
The chief administrator or his or her designee shall issue a
written decision affirming, modifying or reversing the level two
decision within five days of the hearing.
If the chief
administrator rules favorably to the grievant, the chief
administrator may not appeal the grievance to level three.
(d) (c) Level four three. --
(1) If the grievant is not satisfied with the action taken by
the chief administrator or his or her designee, within five days of
the written decision the grievant may request, in writing, on a
form furnished by the employer, that the grievance be submitted to
a hearing examiner an administrative law judge as provided for in
section five of this article. The hearing shall be conducted in
accordance with section six of this article within fifteen days
following the request for the hearing:
Provided, That the hearing
may be held within thirty days following the request, or within a
time that is mutually agreed upon by the parties, if the
hearing examiner administrative law judge gives reasonable cause, in
writing, as to the necessity for the delay. A copy of the appeal
shall be served by the grievant upon the director of the division
of personnel. The director of the division of personnel, or his or
her designee, may appear at the hearing and submit oral or written
evidence upon the matters in the hearing.
(2) Within thirty days following the hearing, the
hearing
examiner administrative law judge shall render a decision in
writing to all parties setting forth findings and conclusions on
the issues submitted. Subject to the provisions of section seven
of this article, the decision of the
hearing examiner
administrative law judge is final upon the parties and is
enforceable in circuit court.
(c) (d) Expedited grievance process. --
(1) A grievance involving suspension without pay, demotion or
dismissal or loss of wages may be initiated at level two with the
administrator of the grievant's work location, facility, area
office or other appropriate subdivision of the department, board,
commission or agency.
(2) An employee may grieve a final action of the employer
involving a dismissal, demotion or suspension exceeding twenty days
directly to the
hearing examiner administrative law judge. The
expedited grievance shall be in writing and shall be filed within
ten days of the date of the final action with the chief administrator and the director of the division of personnel.
§29-6A-5. Education and State employees Grievance Board;
administrative law judges.
(a) The Education Employees Grievance Board, created by virtue
of the provisions of section five, article twenty-nine, chapter
eighteen of this code, is renamed the Education and State Employees
Grievance Board and, in addition to those duties set forth in said
chapter, shall administer the grievance procedure at level four as
provided for in section four of this article. The board has
jurisdiction regarding procedural matters at levels
two one, two
and three of the grievance procedure. The board shall employ, in
addition to those persons employed as
hearing examiners
administrative law judges for educational employee grievances, at
least two full-time
hearing examiners administrative law judges for
the purpose of conducting hearings at level
four three, as provided
in section four of this article. The
hearing examiners
administrative law judges are employed on an annual basis along
with the clerical help necessary to implement the legislative
intent expressed in section one of this article.
In addition to the budget required for submission to the
Legislature by virtue of the provisions of section five, article
twenty-nine, chapter eighteen of this code, the board shall submit
a yearly budget and shall report annually to the governor and the
Legislature regarding proceedings conducted under this article, including receipts and expenditures, the number of level
four three
hearings conducted, synopses of hearing outcomes and other
information as the board determines appropriate. The board shall
further evaluate on an annual basis the level four grievance
process and the performance of all
hearing examiners administrative
law judges and include the evaluation in the annual report to the
Governor and the Legislature. In making the evaluation, the board
shall notify all employers, employee organizations, the Director of
the Division of Personnel and all grievants participating in level
four three grievances in the year for which evaluation is being
made and shall provide for the submission of written comment or the
hearing of testimony regarding the grievance process, or both.
The board shall provide suitable office space for all
hearing
examiners administrative law judges in space other than that
utilized by any employer as defined in section two of this article
and shall ensure that reference materials are generally available.
The board shall provide forms for filing grievances, giving notice,
taking appeals, making reports and recommendations and other
documents as the board determines necessary for any stage of a
grievance under this article.
The board is authorized to propose rules for promulgation
consistent with the provisions of this article and in accordance
with article three, chapter twenty-nine-a of this code.
(b)
Hearing examiners Administrative law judges may consolidate grievances, allocate costs among the parties in
accordance with section eight of this article, subpoena witnesses
and documents in accordance with the provisions of section one,
article five, chapter twenty-nine-a of this code, provide relief as
is determined fair and equitable in accordance with the provisions
of this article and take any other action to provide for the
effective resolution of grievances not inconsistent with any rules
of the board or the provisions of this article:
Provided, That in
all cases the
hearing examiner administrative law judge has the
authority to provide appropriate remedies including, but not
limited to, making the employee whole.
§29-6A-6. Hearings generally.
(a) The chief administrator or his or her designee acting as
a grievance evaluator or the
hearing examiner administrative law
judge 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. Reasonable notice of a
hearing shall be sent prior to the hearing to all parties and their
named representative and shall include the date, time and place of
the hearing. Level one
and level two
and level three hearings
shall be at a convenient place accessible to the aggrieved
employee. All hearings shall be held on the employer's premises or on other premises mutually agreeable to the parties and within
regular working hours:
Provided, That any hearing might continue
beyond normal working hours. Level
four three hearings shall be at
a place to be designated by the
hearing examiner administrative law
judge.
(b) The employer that is party to the grievance shall produce
prior to the hearing any documents, not privileged and which are
relevant to the subject matter involved in the pending grievance,
that have been requested by the grievant in writing.
(c) The chief administrator or his or her designee or the
hearing examiner administrative law judge has the power to: (1)
Administer oaths and affirmations; (2) subpoena witnesses; (3)
regulate the course of the hearing; (4) hold conferences for the
settlement or simplification of the issues; (5) exclude immaterial,
irrelevant or repetitious evidence; (6) sequester witnesses; (7)
restrict the number of advocates; and (8) take any other action not
inconsistent with the rules of the board or the provisions of this
article.
(d) All the testimony and evidence at any level three
or level
four hearing shall be recorded by mechanical means and all recorded
testimony and evidence at the hearing shall be transcribed and
certified by affidavit. The chief administrator is responsible for
promptly providing a copy of the certified transcript of a level
three two hearing to any party to that hearing who requests the transcript. The
hearing examiner administrative law judge may also
request and be provided a transcript upon appeal to level
four
three and allocate the costs for the transcript as prescribed in
section eight of this article. The board is responsible for
promptly providing a copy of the certified transcript of a level
four three hearing to any party to that hearing who requests the
transcript.
(e) Formal rules of evidence may not be applied, but parties
are bound by the rules of privilege recognized by law. No employee
may be compelled to testify against himself or herself in a
grievance involving disciplinary action. The burden of proof rests
with the employer in disciplinary matters.
(f) All materials submitted in accordance with section three
of this article; the mechanical recording of all testimony and
evidence or the transcription of the testimony, if any; the
decision; and any other materials considered in reaching the
decision are the record of a grievance. The record shall be
submitted to any level at which appeal has been made and the record
shall be considered, but the development of the record is not
limited thereby.
(g) Every decision pursuant to a hearing shall be in writing
and shall be accompanied by findings of fact and conclusions of
law.
(h) Prior to the decision any party may propose findings of fact and conclusions of law.
§29-6A-7. Enforcement and reviewability; costs; good faith.
(a) The decision of the
hearing examiner administrative law
judge is final upon the parties and is enforceable in circuit
court.
(b) Either party or the Director of the Division of Personnel
may appeal to the Circuit Court of Kanawha County or to the circuit
court of the county in which the grievance occurred on the grounds
that the
hearing examiner's administrative law judge's decision:
(1) Is contrary to law or a lawfully adopted rule or written
policy of the employer;
(2) Exceeds the
hearing examiner's administrative law judge's
statutory authority;
(3) Is the result of fraud or deceit;
(4) Is clearly wrong in view of the reliable, probative and
substantial evidence on the whole record; or
(5) Is arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.
(c) The appeal shall be filed within thirty days of receipt of
the
hearing examiner's administrative law judge's decision. The
decision of the
hearing examiner administrative law judge is not
automatically stayed upon the filing of an appeal, but a stay may
be granted by the circuit court upon separate motion for a stay.
(d) The court's ruling shall be upon the entire record made before the
hearing examiner administrative law judge and the court
may hear oral arguments and require written briefs. The court may
reverse, vacate or modify the decision of the
hearing examiner
administrative law judge or may remand the grievance to the
appropriate chief administrator for further proceedings.
(e) Both employer and 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
hearing examiner
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.
§29-6A-10. Employee's right to attorney's fees and costs.
If an employee appeals to a circuit court an adverse decision
of
a hearing examiner an administrative law judge rendered in a
grievance proceeding pursuant to provisions of this article or is
required to defend an appeal and the person substantially prevails,
the adverse party or parties is liable to the employee, upon final
judgment or order, for court costs and for reasonable attorney's
fees, to be set by the court, for representing the employee in all
administrative hearings and before the circuit court and the
supreme court of appeals and is further liable to the employee for
any court reporter's costs incurred during any administrative
hearings or court proceedings:
Provided, That in no event shall such attorney's fees be awarded in excess of a total of one
thousand five hundred dollars for the administrative hearings and
circuit court proceedings nor an additional one thousand dollars
for supreme court proceedings:
Provided, however, That the
requirements of this section shall not be construed to limit the
employee's right to recover reasonable attorney's fees in a
mandamus proceeding brought under section nine of this article.
§29-6A-12. Mediation required at request of either party.
Upon the request of either party, the board
may shall require
mediation or other alternative dispute resolution technique to
assist the parties in identifying, clarifying and resolving issues
regarding the grievance. Mediation may be requested at any time
prior to the level four hearing. All
of the information that is
provided by parties during mediation is and shall remain
confidential. Mediators may not be called as witnesses to provide
testimony in unresolved grievances that proceed to a grievance
hearing and any
hearing examiner administrative law judge involved
in a mediation process may not hear the grievance or be consulted
regarding the merits of the grievance.
§29-6A-13. Arbitration.
(a) At any time prior to the level three hearing, the
grievant shall be entitled to submit the grievance to arbitration
with the grievant paying one third of the cost of arbitration and
the institution paying two-thirds of the cost of arbitration. The grievance shall be submitted to an arbitrator mutually agreed to by
the parties.
(b) The arbitrator shall set the location, date and time of
the hearing, in consultation with the parties. The arbitrator may
order any discovery that the arbitrator considers necessary for a
full and fair exploration of the issues in dispute, consistent with
the expedited nature of arbitration.
(c) An arbitration hearing shall be opened by: (1) Recording
the date, time and place of the hearing; and (2) recording the
presence of the arbitrator, the parties and their representative,
if any. The arbitrator may ask the parties for statements to
clarify the issues involved.
(d) The parties shall bear the same burdens of proof and
burdens of producing evidence as would apply if their claims and
counterclaims had been brought in circuit court. The arbitrator
shall be the judge of the relevance and materiality of the evidence
offered and conformity to legal rules of evidence shall not be
necessary.
(e) Witnesses for each party shall submit to direct and cross
examination as approved by the arbitrator. The arbitrator may
exclude witnesses, other than a party, from the hearing during the
testimony of another witness. The arbitrator also may decide
whether any person who is not a witness or a party may attend the
hearing.
With the exception of the rules regarding the allocation of
the burdens of proof and going forward with the evidence, the
arbitrator may establish the rules for the conduct of the
proceedings and exercise that authority to afford a full and equal
opportunity to all parties to present any evidence that the
arbitrator determines is material and relevant to the resolution of
the dispute. The arbitrator may receive documentary and other
forms of physical evidence when offered by either party.
(f) The names and addresses of all witnesses and description
of the exhibits shall be made a part of the record.
(g) There shall be no ex parte communication with the
arbitrator, unless the parties and the arbitrator otherwise agree
in advance of the communication. The arbitrator shall maintain the
confidentiality of the arbitration and may make rulings to
safeguard that confidentiality.
(h) The award shall be made promptly by the arbitrator and,
unless otherwise agreed by the parties, no later than thirty days
from the date of closing.
(i) Except as provided in subsection (j) of this section, the
award of an arbitrator is binding on the parties to the grievance.
(j) The award of an arbitrator may be set aside by the
circuit court of the county in which the arbitration hearing was
held if the award was procured by corruption or fraud, an
undisclosed conflict of interest existed or if the arbitrator exceeded his or her authority.
NOTE: The purpose of this bill is to simplify the grievance
procedure by eliminating the current level one procedure and to
authorize arbitration as an option for state and educational
employees.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§18-29-10a and §29-6A-13 are new; therefore, strike-throughs
and underscoring have been omitted.
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