Senate Bill No. 442
(By Senators Bowman, Jenkins, Plymale, Minard, McKenzie, White
and Hunter)
____________
[Introduced February 2, 2007; referred to the Committee on
Government Organization; and then to the Committee on Finance.]
____________
A BILL to repeal §18-29-10 and §18-29-11 of the Code of West
Virginia, 1931, as amended; to repeal §29-6A-5, §29-6A-6,
§29-6A-10, §29-6A-11 and §29-6A-12 of said code; to amend and
reenact §18-29-1, §18-29-2, §18-29-3, §18-29-4, §18-29-5, §18-
29-6, §18-29-7, §18-29-8 and §18-29-9 of said code; to amend
and reenact §29-6A-1, §29-6A-2, §29-6A-3, §29-6A-4, §29-6A-7,
§29-6A-8 and §29-6A-9 of said code; and to amend said code by
adding thereto a new article, designated §29-6B-1, §29-6B-2,
§29-6B-3, §29-6B-4, §29-6B-5 and §29-6B-6, all relating to
repealing the Education and State Employees Grievance Board;
creating the West Virginia Employees Grievance Board with five
members appointed by the Governor; giving the board new
powers, duties, rule-making authority and data collection
duties; eliminating and creating new levels in the grievance process for both education and state employees; increasing
time frames in grievance process; making the grievance process
more fair, efficient and cost effective; clarifying that
higher education employees are part of the state grievance
process; clarifying definitions; disallowing supervisors who
evaluate from being representatives; removing hearing
examiners from the grievance process; clarifying and
reorganizing general provisions; increasing time frames in
grievance process; defining default provisions; adding laches
to state process; and clarifying the procedures for
conferences and hearings.
Be it enacted by the Legislature of West Virginia:
That §18-29-10 and §18-29-11 of the Code of West Virginia,
1931, as amended, be repealed; that §29-6A-5, §29-6A-6, §29-6A-10,
§29-6A-11 and §29-6A-12 of said code be repealed; that §18-29-1,
§18-29-2, §18-29-3, §18-29-4, §18-29-5, §18-29-6, §18-29-7, §18-29-
8 and §18-29-9 of said code be amended and reenacted; that §29-6A-
1, §29-6A-2, §29-6A-3, §29-6A-4, §29-6A-7, §29-6A-8 and §29-6A-9 of
said code be amended and reenacted; and that said code be amended
by adding thereto a new article, designated §29-6B-1, §29-6B-2,
§29-6B-3, §29-6B-4, §29-6B-5 and §29-6B-6, all to read as follows:
CHAPTER 18.
EDUCATION.
ARTICLE 29. GRIEVANCE PROCEDURE FOR EDUCATION EMPLOYEES.
§18-29-1. Legislative purpose and intent.
The purpose of this article is to provide a procedure for
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
and their
employer or agents of the employer to reach solutions to
problems
which arise between them within the scope of their respective
employment relationships grievances with their employers to
the end
that maintain good morale
may be maintained, effective job
performance
may be enhanced and the citizens of the community may
be better served and better serve the community. This procedure is
intended to provide a simple, expeditious
, cost effective and fair
process for resolving problems at the lowest possible
administrative level
and shall be construed to effectuate this
purpose.
Nothing herein shall prohibit the informal disposition of
grievances by stipulation or settlement agreed to in writing by the
parties, nor the exercise of any hearing right provided in article
two, chapter eighteen-a of this code or any other section of
chapter eighteen or eighteen-a of this code:
Provided, That
employees of the governing boards of higher education or of state
institutions of higher education shall have the option of filing
grievances in accordance with the provisions of this article or in
accordance with the provisions of policies and rules of the
governing boards of higher education regarding such employees. Any board decision pursuant to such these sections may be appealed in
accordance with the provisions of this article unless otherwise
provided in such section.
§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
applicable governing 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 may 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 the 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 the
substitute.
(d) "Grievant" means any
named employee or group of
named
employees filing a grievance as defined in subsection (a) of this
section
or his or her representative.
(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,
or an agent of the employer.
(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 multi-county vocational center,
or his or her designee, who is
vested with the authority to resolve the grievance.
(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.
(k) (i) "Board" means the
education employees West Virginia
Employee Grievance Board
established in article six-b, chapter
twenty-nine of this code.
(l) "Hearing examiner" means the individual or individuals
employed by the board in accordance with section five of this
article.
(m) (j) "Discrimination" means any differences in the
treatment of employees unless
such the differences are related to
the actual job responsibilities of the employees or agreed to in
writing by the employees.
(n) (k) "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) (l) "Favoritism" means unfair treatment of an employee as
demonstrated by preferential, exceptional or advantageous treatment
of another or other employees.
(p) (m) "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) (n) "Employee organization" means any employee advocacy
organization whose membership includes employees as defined in this
section
which that has filed with the board the name, address,
chief officer and membership criteria of the organization.
(r) (o) "Representative" means any employee organization,
fellow employee, legal counsel or other person
or persons
designated by the grievant as the grievant's representative
, not
including a supervisor who evaluates the grievant.
§18-29-3. Grievance procedure generally.
(a)
Time frames. --
(1) A grievance must be filed within the
times time limits
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
(2) The specified time limits may be extended
to a date
certain by mutual written agreement and shall be extended whenever
a grievant is not working because of
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 or before the level two hearing accident,
sickness, death in the immediate family or other cause
necessitating the grievant to take personal leave from his or her
employment.
(3) If a grievance is filed that cannot be resolved within the
time limits set forth in this article prior to the end of an
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 a reasonable time following the end of the
employment term.
(b) Default. --
(1) 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, A grievant prevails by
default if a required response is not made by the employer within
the time limits established in this article, unless
the employer is
prevented from doing so directly as a result of
sickness or illness injury, illness or a justified delay not as a result of negligence
or intent to delay the grievance process.
, the grievant shall
prevail by default. Within five days of such default, the employer
(2) Within ten days of the default, the grievant may file
with the chief administrator a written notice of intent to proceed
directly to the next level or to enforce the default. If the chief
administrator objects to the default, then the chief administrator
may request a hearing before
a level four hearing examiner an
administrative law judge for the purpose of
stating a defense to
the default or showing that the remedy
received requested by the
prevailing grievant is contrary to law or clearly wrong
, or both.
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 the fact that the grievant prevailed on the merits
by default.
(3) If the
examiner administrative law judge finds that the
employer has a defense to the default or that the remedy is
contrary to law
, or clearly wrong, the
examiner administrative law
judge may
deny the default, or modify the remedy to be granted so
as to comply with the law and to make the grievant whole.
(b) (c) Defenses. --
(1) Untimeliness. -- Any assertion by the employer that the filing of the grievance at level one was untimely shall be asserted
by the employer at or before the level three hearing.
(2) Laches. -- The doctrine of laches, as a defense, shall not
be applied to prevent a grievant from recovering back pay or other
appropriate relief for a period of up to one year prior to the
filing of a grievance based upon a continuing practice.
(3) 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 as a defense at any level, then 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 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)
Withdrawal and reinstatement of grievance. -- An employee
may withdraw a grievance at any time by
notice, in writing, to the level wherein the grievance is then current filing a written notice
of withdrawal with the chief administrator or the board.
Such The
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 chief administrator or the board.
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)
Consolidation and Groups of Similarly Situated Employees.
--
(1) Grievances may be consolidated at any level by agreement
of all parties.
(2) Class actions are not permitted by the article. However,
a grievance may be filed by one or more employees on behalf of a
group of similarly situated employees, but any similarly situated
employee must indicate in writing of his or her intent to join the
group of similarly situated employees. Only one employee filing a
grievance on behalf of similarly situated employees shall be
required to participate in the level one hearing required in
section four of this article.
(f) Intervention. -- 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.
(f) (g) Representation. --
(1) An employee may have the assistance of one or more fellow
employees, A grievant may designate a representative who
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 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)
Reprisals. -- 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 his or her 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 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.
(l) (i) Forms. -- Forms for filing grievances, giving notice,
taking appeals, making reports and recommendations, and all other
necessary documents shall be
created by the board and made
readily
available
in the work place by the
immediate supervisor chief
administrator 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.
(j) Discovery. -- The parties shall be entitled to copies of
all material submitted to the chief administrator or the
administrative law judge by either party. All documents submitted
become part of the record. The board may prescribe rules and
procedures for discovery by the parties during the grievance
process.
(k) Conferences and Hearings. --
(1) Impartiality. -- The chief administrator and administrative
law judge shall conduct all conferences and hearings in an impartial manner and shall ensure that all parties are accorded procedural and
substantive due process, notwithstanding the informal nature of
conferences.
(m) Notwithstanding the provisions of section three, article
nine-a, chapter six of this code, or any other provision relating
to open proceedings, all
(2) Closed Conferences and Hearings. -- 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 administrative law judge,
conferences and
hearings may be public at level four.
(3) Evidence. -- All parties shall have an opportunity to
present supportive or corroborative evidence and argument with
respect to the matters and issues involved, to subpoena witnesses
and records, and to examine and to rebut evidence. Formal rules of
evidence do not apply, but parties are bound by the rules of
privilege recognized by law and the procedures established by the
board.
(4) Witnesses. -- Witnesses may be permitted by the immediate
supervisor during a conference if a request is made by the employee
to bring one or more witnesses. The grievant and the employer have
the right to call, examine and cross-examine witnesses during a
hearing, including, but not limited to, employees who have knowledge of the facts at issue. Administrative law judges have the power to
subpoena witnesses and administer oaths. No employee may be
compelled to testify against himself or herself in a grievance
hearing.
(5) Notice. -- Reasonable notice of a conference or hearing
shall be sent at least seven days prior to the hearing to all
parties and their representatives and shall include the date, time
and place of the hearing. If an employer 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.
(6) Location. -- Conferences shall be at a convenient place
accessible to the grievant. Level four hearings shall be at a place
designated by the administrative law judge.
(7) Date and Time. -- Conferences and hearings shall be
scheduled within the time frames established at a reasonable time
of day in accommodation to the parties' work schedules.
Disagreements shall be decided by the board.
(8) Record. -- Conferences are not required to be recorded,
but all evidence submitted and the decision become part of the
record. All the testimony and evidence at a hearing shall be
recorded by mechanical means, and transcribed and certified by
affidavit for the record. The board is responsible for promptly
providing a copy of the certified transcript of a hearing to a requesting party.
(l) Grievance decisions. --
(1) Prior to a decision, any party may propose findings of fact
and conclusions of law.
(2) 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 board, the
grievant and his or her representative within the time limits
prescribed. If the grievant is denied the relief sought, the
decision shall include the procedure for the next level of appeal
for the grievant.
(m) Preparation time. --
(1) The grievance shall be processed during regular working
hours as much as possible without interfering with the normal
operations of the employer.
(2) The grievant, witnesses and an employee representative
shall be granted reasonable and necessary time off during working
hours for the grievance procedure without loss of pay and without
charge to annual or compensatory leave credits.
(3) In addition to actual time spent in grievance conferences
and hearings, the grievant and an employee representative, or both,
shall be granted time off during working hours for the preparation
of the grievance without loss of pay and without charge to annual
or compensatory leave credits. However, the first responsibility of any employee is the work assigned 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.
(4) The grievant and an employee representative shall have
access to the employer's equipment for purposes of preparing
grievance documents subject to the reasonable rules of the employer
governing the use of the equipment for nonwork purposes.
(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 grievance evaluator 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) (n) Grievance files. -- 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.
The grievant may file a written request to have the grievant's
identity removed from any files kept by the employer one year
following the conclusion of the grievance.
(s) (o) Number of Grievances. -- 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 the
employee's job performance.
(p) Procedures and Rules. -- The board shall prescribe rules
and procedures in compliance with this article and the
Administrative Procedures Act for all matter relating to the
grievance process.
(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. Such 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) 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 grievance levels.
(a)
Level one. Level One: Immediate Supervisor. --
(1)
Before a grievance is filed and within Within fifteen days following the occurrence of the event upon which the grievance is
based, or within fifteen days of the date
on upon 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 a grievant
may file 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 with the immediate
supervisor stating the nature of the grievance and the relief requested.
(4) (2) The immediate supervisor shall
state the decision to
such filed grievance within ten days after the grievance is filed
hold a conference within ten days of receiving the grievance, and
shall issue a written decision within fifteen days of the
conference.
(3) An employee may proceed directly to Level Three or Four
upon the agreement of the employee and the chief administrator, or
when discharged, suspended without pay, or demoted or reclassified
resulting in a loss of compensation or benefits.
(b) Level Two: Alternative Dispute Resolution.
(1) Within ten days of receiving an adverse written decision
at Level One, the employee shall file a written request for
mediation, private mediation or mediation-arbitration with the board
if the employee desires to continue the grievance process.
(A) Mediation. --. The board shall schedule a mediation
between the parties within twenty days of the request. Mediation is
to be conducted by an administrative law judge pursuant to standard
mediation practices and board procedures at no cost to the parties.
Parties may be represented and shall have the authority to resolve
the dispute. Agreements reached through mediation are to be
documented in writing within fifteen days. Agreements are binding
and enforceable in this state by a writ of mandamus.
(B) Private Mediation. -- The parties may agree in writing to retain their choice of a private mediator and share the cost. The
mediator shall schedule the mediation within twenty days of the
written request and will follow standard mediation practices and any
pertinent board procedures. Parties may be represented and shall
have the authority to resolve the dispute. Agreements reached
through mediation are to be documented in writing within fifteen
days. Agreements are binding and enforceable in this state by a
writ of mandamus.
(C) Mediation-arbitration. -- The parties may agree in writing
to participate in mediation-arbitration. The board shall schedule
a mediation-arbitration between the parties within twenty days of
the request. Mediation-arbitration is to be conducted by an
administrative law judge pursuant to standard mediation and
arbitration practices, and board procedures, at no cost to the
parties. In the event the mediation does not result in a resolution,
the mediator may become an arbitrator and proceed to decide the
matter. The parties may be represented and shall have the authority
to resolve the dispute. Agreements reached through mediation and
decisions made by arbitration are to be documented in writing within
fifteen days, and are binding and enforceable in this state by a
writ of mandamus.
(2) Neutral evaluation. -- Within 15 days of the conclusion
of mediation or arbitration for matters that are not resolved, the
administrative law judge serving as the mediator or arbitrator may provide a written summary to the parties as a neutral evaluator
stating the issues presented, and issue an order of discovery that
is binding upon the parties in preparation for level three.
(b) Level two.
(c) Level Three: Chief Administrator. --
Within five days of receiving
the decision of the immediate
supervisor the written report that alternative dispute resolution
at Level Two was unsuccessful, the grievant may
file a written
appeal
the decision to with the chief administrator,
and such or the
grievant may file a written waiver of the Level Three hearing and
proceed directly to Level Four. The chief administrator
or his or
her designee shall conduct a hearing
in accordance with section six
of this article within
five fifteen days of receiving the appeal and
shall issue a written decision within
five ten days of
such the
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 for level 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.
(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. Level Four: Adjudication. --
(1)
If the grievant is not satisfied with the action taken by
the chief administrator or, if appealed to level three, 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 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 a waiver or
an adverse written decision at Level Three, the grievant may file
a written appeal with the board requesting a hearing and
adjudication on the grievance. The administrative law judge shall
schedule the hearing, and any other proceedings or deadlines, within
a reasonable time in consultation with the parties.
(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
of fact and conclusions
of law
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
the circuit court
of Kanawha County.
All information and data generated by the board and in its
custody relative to level four decisions and copies of such
decisions shall be provided at reasonable cost to any individual
requesting it.
§18-29-5. Education and state employees grievance board; hearing
examiners.
(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 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, 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 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 who reside in different
regional educational service agency areas 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 again brings a
grievance, a different hearing examiner is required to hear the
grievance upon written request therefor by any party to the
grievance. These hearing examiners 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 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 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 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 in space other than that utilized 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.
§18-29-6. Hearings generally.
The chief administrator or his or her designee, the governing
board or the hearing examiner 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 of higher education, the senior
administrator, the chief administrator or his or her designee, each
member of the governing board or the hearing examiner 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 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 review.
(a) The decision of the
hearing examiner administrative law
judge shall be final upon the parties and shall be enforceable in
the Circuit Court of Kanawha County. Circuit Court: Provided,
That either
(b) A party may
appeal to the Circuit Court of the county in
which the grievance occurred on the grounds that the hearing
examiner's decision appeal the decision of the administrative law
judge on the grounds that the decision:
(1)
was Is contrary to law or lawfully adopted rule,
regulation or written policy of the chief administrator or
governing board;
(2)
exceeded the hearing examiner's Exceeds the administrative law judge's statutory authority;
(3)
was Is the result of fraud or deceit;
(4)
was Is clearly wrong in view of the reliable, probative
and substantial evidence on the whole record; or
(5)
was Is arbitrary or capricious or characterized by abuse
of discretion or clearly unwarranted exercise of discretion.
Such (c) 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
automatically stayed
, automatically, upon the filing of an
appeal, but a stay may be granted by the Circuit Court upon
separate motion
therefor 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
administrative law judge or the chief administrator of the
institution for further proceedings.
§18-29-8. Allocation of costs.
(a) 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.
(b) 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 his or her representative is entitled to
recover court costs and reasonable attorney fees, to be set by the
court, from the employer.
§18-29-9. Mandamus proceeding.
Any
institution employer failing to comply with the provisions
of this article may be compelled to do so by
a mandamus proceeding
and shall be liable to any
party prevailing
against the institution
party for court costs and attorney fees, as determined and
established by the court.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 6A. GRIEVANCE PROCEDURE FOR STATE EMPLOYEES.
§29-6A-1. Purpose.
The purpose of this article is to provide a procedure for the
equitable,
efficient, cost-effective and consistent resolution of
employment grievances raised by nonelected state employees who are
classified under the state civil service system, or employed in any
department, other governmental agencies, or by independent boards
or commissions created by the Legislature, with the exception of employees of
the board of regents, state institutions of higher
education, the Legislature, any employees of any Constitutional
officer unless they are covered under the civil service system, and
members of the department of public safety.
§29-6A-2. Definitions.
For the purpose of this article:
(a) "Board" means the
education employees West Virginia
Employee Grievance Board
created in section five, article
twenty-nine, chapter eighteen established in article six-b, chapter
twenty-nine of this code
and hereafter known as the education and
state employees grievance board.
(b) "Chief administrator" means the commissioner, director,
president or head of any state department, board, commission,
or
agency,
or state institution of higher education, or his or her
designee, who is vested with the authority to resolve the grievance.
(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,
university, college, institution 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,
university, college, institution or agency,
or agent thereof,
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) (j) "Grievant" means any named employee or group of named
employees filing a grievance as defined in
subsection (i) of this
section
, or his or her representative.
(l) (k) "Harassment" means repeated or continual disturbance,
irritation or annoyance of an employee
which would be that is
contrary to the demeanor expected by law, policy and profession.
(m) "Hearing examiner" 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) (l) "Representative" means any employee organization,
fellow employee, legal counselor or other person
or persons
designated by the grievant as the grievant's representative,
not
including a supervisor who evaluates the grievant.
(p) (m) "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) Time frames. --
(1) A grievance shall be filed within the
times time limits
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
(2) The specified time limits
may be extended to a date certain
by mutual written agreement, and shall be extended whenever a
grievant is not working because of accident, sickness, death in the
immediate family or other cause necessitating the grievant to take
personal leave from his or her employment.
(3) If a grievance is filed that cannot be resolved within the time limits set forth in this article prior to the end of an
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 a reasonable time following the end of the
employment term.
(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.
(b) Default. --
(1) The grievant prevails by default if a
grievance evaluator
required to respond to a grievance at any level fails to make a
required response
is not made by the employer within in the time
limits
established required in this article, unless
the employer is
prevented from doing so directly as a result of
sickness, injury,
excusable neglect, unavoidable cause or fraud injury, illness or a
justified delay not as a result of negligence or intent to delay the
grievance process.
Within five days of the receipt of a written notice of the
default, the employer (2) Within ten days of the default, the
grievant may file with the chief administrator a written notice of
intent to proceed directly to the next level or to enforce the
default. If the chief administrator objects to the default, then
the chief administrator may request a hearing before
a level four hearing examiner an administrative law judge for the purpose of
stating a defense to the default or showing that the remedy
received
requested by the prevailing grievant is contrary to law or clearly
wrong,
or both. 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 the fact that the grievant prevailed on the merits by
default.
(3) If the
examiner administrative law judge finds that the
employer has a defense to the default or that the remedy is contrary
to law or clearly wrong, the
examiner administrative law judge may
deny the default, or modify the remedy to be granted to comply with
the law and to make the grievant whole.
(b) (c) Defenses. --
(1) Untimeliness. -- Any assertion by the employer that the
filing of the grievance at level one was untimely shall be asserted
by the employer at or before the level three hearing.
(2) Laches. -- The doctrine of laches, as a defense, shall not
be applied to prevent a grievant from recovering back pay or other
appropriate relief for a period of up to one year prior to the
filing of a grievance based upon a continuing practice.
(3) 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 as
a defense at any level, then 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)
Withdrawal and reinstatement of grievance. -- An employee
may withdraw a grievance at any time by
notice, in writing, to the
level where the grievance is then current filing a written notice
of withdrawal with the chief administrator or the board. 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 chief administrator or the board. 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)
Consolidation and Groups of Similarly Situated Employees.
--
(1) Grievances may be consolidated at any level by agreement
of all parties.
(2) Class actions are not permitted by the article. However,
a grievance may be filed by one or more employees on behalf of a
group of similarly situated employees, but any similarly situated
employee must indicate in writing of his or her intent to join the
group of similarly situated employees. Only one employee filing a
grievance on behalf of similarly situated employees shall be
required to participate in the level one hearing required in section
four of this article.
(f) Intervention. -- 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.
(f) (g) Representation. --
(1) 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, designate a
representative who 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 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)
Reprisal. -- 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
his or her 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 two within
the discretion of the hearing examiner.
(l) (i) Forms. -- Forms for filing grievances, giving notice,
taking appeals, making reports and recommendations, and all other
necessary documents shall be
created by the board and made
readily
available
in the work place by the
immediate supervisor chief
administrator 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.
(j) Discovery. -- The parties shall be entitled to copies of
all material submitted to the chief administrator or the
administrative law judge by either party. All documents submitted
become part of the record. The board may prescribe rules and
procedures for discovery by the parties during the grievance
process.
(k) Conferences and Hearings.
(1) Impartiality. -- The chief administrator and administrative
law judge shall conduct all conferences and hearings in an impartial
manner and shall ensure that all parties are accorded procedural and
substantive due process, notwithstanding the informal nature of
conferences.
(m) Notwithstanding the provisions of section three, article
nine-a, chapter six of this code, or any other provision relating
to open proceedings, all
(2) Closed Conferences and Hearings. -- 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 three.
(3) Evidence. -- All parties shall have an opportunity to
present supportive or corroborative evidence and argument with
respect to the matters and issues involved, to subpoena witnesses
and records, and to examine and to rebut evidence. Formal rules of
evidence do not apply, but parties are bound by the rules of
privilege recognized by law and the procedures established by the
board.
(4) Witnesses. -- Witnesses may be permitted by the chief
administrator during a conference if a request is made by the
employee to bring one or more witnesses. The grievant and the
employer have the right to call, examine and cross-examine witnesses
during a hearing, including, but not limited to, employees who have
knowledge of the facts at issue. Administrative law judges have the
power to subpoena witnesses and administer oaths. No employee may
be compelled to testify against himself or herself in a grievance
hearing.
(5) Notice. -- Reasonable notice of a conference or hearing
shall be sent at least seven days prior to the hearing to all
parties and their representatives and shall include the date, time
and place of the hearing. If an employer 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.
(6) Location. -- Conferences shall be at a convenient place
accessible to the grievant. Level three hearings shall be at a place
designated by the administrative law judge.
(7) Date and Time. -- Conferences and hearings shall be
scheduled within the time frames established at a reasonable time
of day in accommodation to the parties' work schedules.
Disagreements shall be decided by the board.
(8) Record. -- Conferences are not required to be recorded, but
all evidence submitted and the decision become part of the record.
All the testimony and evidence at a hearing shall be recorded by
mechanical means, and transcribed and certified by affidavit for the
record. The board is responsible for promptly providing a copy of
the certified transcript of a hearing to a requesting party.
(l) Grievance decisions. --
(1) Prior to a decision, any party may propose findings of fact
and conclusions of law.
(2) 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 board, the
grievant and his or her representative within the time limits
prescribed. If the grievant is denied the relief sought, the
decision shall include the procedure for the next level of appeal for the grievant.
(n) No person may confer or correspond with a hearing examiner
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. Moved
(p) (m) Preparation time. --
(1) The grievance shall be processed during regular working
hours as much as possible without interfering with the normal
operations of the employer.
(2) 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,
witnesses and an employee representative shall
be granted
reasonable and necessary time off during working hours
for the grievance procedure without loss of pay and without charge
to annual or compensatory leave credits.
(3) In addition to actual time spent in grievance conferences
and hearings, the grievant
or the and an 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.
(4) The grievant and an employee representative shall have
access to the employer's equipment for purposes of preparing
grievance documents subject to the reasonable rules of the employer
governing the use of the equipment for non-work purposes
(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) (n) Grievance files. --
(1) 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.
(2) The grievant may file a written request to have the
grievant's identity removed from any files kept by the employer one
year following the conclusion of the grievance.
(w) (o) Number of Grievances. -- 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.
(p) Procedures and Rules. -- The board shall prescribe rules
and procedures in compliance with this article and the
Administrative Procedures Act for all matter relating to the
grievance process.
(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 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. Grievance procedural levels.
(a)
Level one. Level One: Chief Administrator. --
(1) 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 upon which the event became known to the grievant,
or within
ten fifteen 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 to the
administrator of the grievant's work location, facility, area
office, or other appropriate subdivision of the department, board,
commission or agency. The administrator or his or her designee.
with the chief administrator stating the nature of the grievance
and the relief requested. The grievant shall also file a copy with
the Director of the Division of Personnel who may appear at any
level in person or by designee.
(2) The chief administrator shall hold a conference within
five
ten days
of the receipt of the appeal of receiving the grievance,
and shall and issue a written decision
upon the appeal within five
days of the conference within fifteen
days of the conference.
(3) An employee may proceed directly to Level Three upon the
agreement of the employee and the chief administrator, or when
discharged, suspended without pay, or demoted or reclassified
resulting in a loss of compensation or benefits.
(b) Level Two: Alternative Dispute Resolution.
(1) Within ten days of receiving an adverse written decision
at Level One, the employee shall file a written request for
mediation, private mediation or mediation-arbitration with the board
if the employee desires to continue the grievance process.
(A) Mediation. -- The board shall schedule a mediation between
the parties within twenty days of the request. Mediation is to be
conducted by an administrative law judge pursuant to standard
mediation practices and board procedures at no cost to the parties.
Parties may be represented and shall have the authority to resolve
the dispute. Agreements reached through mediation are to be
documented in writing within fifteen days. Agreements are binding
and enforceable in this state by a writ of mandamus.
(B) Private Mediation. -- The parties may agree in writing to
retain their choice of a private mediator and share the cost. The
mediator shall schedule the mediation within twenty days of the
written request and will follow standard mediation practices and any
pertinent board procedures. Parties may be represented and shall
have the authority to resolve the dispute. Agreements reached
through mediation are to be documented in writing within fifteen
days. Agreements are binding and enforceable in this state by a
writ of mandamus.
(c) Mediation-arbitration. -- The parties may agree in writing
to participate in mediation-arbitration. The board shall schedule a mediation-arbitration between the parties within twenty days of
the request. Mediation-arbitration is to be conducted by an
administrative law judge pursuant to standard mediation and
arbitration practices, and board procedures, at no cost to the
parties. In the event the mediation does not result in a resolution,
the mediator may become an arbitrator and proceed to decide the
matter. The parties may be represented and shall have the authority
to resolve the dispute. Agreements reached through mediation and
decisions made by arbitration are to be documented in writing within
fifteen days, and are binding and enforceable in this state by a
writ of mandamus.
(2) Neutral Evaluation. -- Within fifteen days of the
conclusion of mediation or arbitration for matters that are not
resolved, the administrative law judge serving as the mediator or
arbitrator may provide a written summary to the parties as a neutral
evaluator stating the issues presented, and issue an order of
discovery that is binding upon the parties in preparation for Level
Three.
(c) Level three.
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
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.
(d) Level four.
(c) Level Three: Adjudication.
(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 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 gives reasonable cause, in
writing, as to the necessity for the delay. Within ten days of receiving a written report that alternative dispute resolution at
Level Two was unsuccessful, the grievant may file a written appeal
with the board requesting a hearing and adjudication on the
grievance. The administrative law judge shall schedule the hearing,
and any other proceedings or deadlines, within a reasonable time in
consultation with the parties. 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,
who
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
of fact and conclusions
of law
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
the
Circuit Court
of Kanawha County.
(e) 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. 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-7. Enforcement and review; costs; good faith.
(a) The decision of the
hearing examiner administrative law
judge is final upon the parties and is enforceable in
the Circuit
Court
of Kanawha County.
(b)
Either A party or the Director of the Division of Personnel
may appeal to the
decision of the administrative law judge on the
grounds that the decision: 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 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
in the Circuit Court of Kanawha County 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
administrative law judge or 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-8. Allocation of costs and attorney's fees.
(a) 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 transcriptions.
(b) If a grievant appeals to a Circuit Court an adverse decision of a 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 is liable to the grievant, upon final judgment or order, for
court costs, and for reasonable attorney's fees, to be set by the
court, for representing the grievant in all administrative hearings
and before the circuit court and the Supreme Court of Appeals, and
is further liable to the grievant 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 per
grievant: 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
this article.
§29-6A-9. Mandamus proceeding.
Any employer failing to comply with the provisions of this
article may be compelled to do so by
a mandamus proceeding and shall
be liable to any
party prevailing
against the employer party for
court costs and attorney fees, as determined and established by the
court.
§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 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-11. Application of article.
This article applies to all grievances arising on or after the
effective date of this article. This article supersedes and
replaces the civil service grievance and appeals procedure currently
authorized under the rules and regulations of the civil service
commission upon the resolution of all grievances and appeals pending in the civil service grievance system on the effective date of this
article.
§29-6A-12. Mediation required at request of either party.
Upon the request of either party, the board may 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 involved in a mediation process
may not hear the grievance or be consulted regarding the merits of
the grievance.
§29-6B-1. West Virginia Employee Grievance Board.
(a) Effective the thirtieth day of June, two thousand seven,
the Education and State Employees Grievance Board, and the
employment of the hearing examiners and administrative law judges
thereunder, terminates.
(b) Effective the first day of July, two thousand seven, the
West Virginia Employee Grievance Board is hereby created as an
independent entity under the Department of Administration.
(c) On or before the first day of July, two thousand seven, the Governor, by and with the advice and consent of the Senate, shall
appoint the following five members to the board for the following
terms:
(1) One person representing the largest labor organization in
the state for a term of three years;
(2) One person representing an education employee organization
in the state for a term of two years;
(3) One employer representative from the executive branch for
a term of two years;
(4) One employer representative from secondary or higher
education for a term of three years; and
(5) One citizen member, who is not a current employee,
employer, or a representative of employees in a workplace in the
public, educational or higher educational sector of this state, for
a term of one year.
(d) After the initial appointment, the board term shall be
three years.
(e) No member may serve more than two consecutive full terms
and any member having served two consecutive full terms may not be
appointed for one year after completion of his or her second full
term. A member shall continue to serve until his or her successor
has been appointed and qualified.
(f) A vacancy on the board shall be filled by the Governor by appointment of a like member for the unexpired term of the member
whose office is vacant.
(g) The membership of the board must represent each
congressional district and no more than three members may be from
the same political party.
(h) Each member of the board, at the time of his or her
appointment, must have been a resident of this state for a period
of not less than one year immediately preceding the appointment and
each member of the board must remain a resident of this state during
the appointment term.
(i) The Governor may remove any member from the board for
neglect of duty, incompetency, criminal convictions or official
misconduct.
(j) Any member of the board immediately and automatically
forfeits his or her membership if he or she is convicted of a felony
under the laws of any state or the United States, or becomes a
nonresident of this state.
(k) The board shall hold at least four meetings per year.
Other meetings shall be held at the call of the chairperson or upon
the written request of two members, at such time and place as
designated in the call or request.
(l) The board shall designate one of its members as chairperson
and one member as secretary-treasurer who shall serve at the will of the board.
(m) A majority of the members of the board shall constitute a
quorum.
(n) Each member of the board is entitled to receive
compensation and expense reimbursement as is accorded legislators
in the performance of their duties.
§29-6B-2. Powers and duties of the board.
The board shall:
(1) Maintain jurisdiction over procedural matters in the
grievance process;
(2) Employ competent administrative law judges, and pay them
commensurately with other administrative law judges in the state,
who shall be:
(A) Residents of the state of West Virginia;
(B) Members in good standing of the West Virginia State Bar;
and
(C) Persons who have knowledge and legal experience regarding
public and education employment law and alternative dispute
resolution;
(3) Provide suitable office space for the board and the
administrative law judges separate from any workplace in the public,
educational and higher educational sectors, that the administrative law judges are accessible state wide;
(4) Hire, discharge, set the job requirements and fix the
compensation of the Director, employees, and administrative law
judges, who serve at the will and pleasure of the board, necessary
to enforce the provisions of article twenty-nine, chapter eighteen,
and article six-a, chapter twenty-nine of this code;
(5) Prepare and submit an annual budget;
(6) Establish and provide all forms necessary for the grievance
process and make them easily accessible;
(7) Establish procedures to obtain and maintain records,
outcomes and costs at each level of the grievance process;
(8) Keep accurate and complete records of its proceedings and
hearings, and certify the same as may be appropriate;
(9) Evaluate, on an annual basis, the grievance process,
including written comment from employers, employees and employee
organizations that participate in the process;
(10) Submit an annual report to the Joint Committee on
Government and Finance, the Legislature and the Governor that
includes a compilation of all data received regarding outcomes and
costs at each level of the grievance process;
(11) File a mandamus proceeding against any employer failing
to comply with the reporting requirements of this article; and
(12) Take all other actions necessary and proper to effectuate
the purposes of this article.
§29-6B-3. Data collection and reporting requirements.
(a) Each employer involved in a grievance matter shall maintain
the forms and all records created in the grievance process, and
shall provide this information to the board in form and manner as
prescribed by the board.
(b) The board shall obtain and maintain all records of
grievance matters.
(c) The board shall annually report to the Joint Committee on
Government and Finance, the Legislature and the Governor. The
report shall contain the following:
(1) An overview of grievance-related issues;
(2) The number of grievances against each employer;
(3) Identification of each grievance by type of grievance,
level of resolution and cost of the grievance, including the
estimated cost of employee time to handle the grievance and actual
cost of any legal time or damages paid in the resolution of the
grievance;
(4) The number and type of grievances granted, denied or
resolved by other means, including informal resolutions and
alternative dispute resolution, and the actual or estimated cost of
handling the grievance at each level of the grievance process;
(5) Any legislative recommendations for changes to the
grievance process as a result of the data collected; and
(6) The caseload of each administrative law judge, type of
grievance, number of grievances resolved, and number of decisions
issued.
(d) Nothing contained in the annual report may breach the
confidentiality of a party to the dispute, nor may any matter be
disclosed if the disclosure may violate any provision of law.
§29-6B-4. Rule-making authority.
(a) The rules established by the Education and State Employees
Grievance Board in effect on the effective date of this article that
are consistent with the provisions of this article remain in effect
until they are amended, modified or repealed.
(b) The board shall propose rules for legislative approval,
including any necessary emergency rules in necessary, in accordance
with the provisions of this article, and article twenty-nine,
chapter eighteen, and article six-a, chapter twenty-nine of this
code, including provisions to:
(1) Repeal any rules in effect on the effective date of this
article that are not consistent with the provisions of this article;
(2) Amend or modify, if needed, any rules in effect on the
effective date of this article that are consistent with the
provisions of this article;
(3) Create and distribute all forms necessary for the grievance
process;
(4) Establish procedures to obtain and maintain a records for
the grievance process;
(5) Establish procedures for all data collection and reporting
requirements for the grievance process; and
(6) To promulgate any other rules necessary to effectuate the
grievance process.
§29-6B-5. Continuation of the West Virginia Employee Grievance
Board.
Pursuant to the provisions of article ten, chapter four of this
code, the West Virginia Employee Grievance Board shall continue to
exist until the first day of July, two thousand ten, unless sooner
terminated, continued or reestablished.
§29-6B-6. Review of the grievance process.
On or before the first day of January, two thousand ten, the
Joint Committee on Government and Finance shall review the grievance
process, evaluate its usefulness and make recommendations concerning
its continuation or termination.
NOTE: The purpose of this bill is to revise the law
governing the grievance process for state employees and education
employees.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would be added.
§29-6A-1, §29-6A-2, §29-6A-3, §29-6A-4, §29-6A-5, and §29-6A-6,
are new; therefore, strike-throughs and underscoring have been
omitted.
This bill is recommended by the Joint Standing Committee on
Government Organization for passage during the 2007 Regular Session.
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