H. B. 2491
(By Delegates Stalnaker and Butcher)
[Introduced
February 18, 2005
; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §29-6A-3, §29-6A-4, §29-6A-6 and
§29-6A-7 of the Code of West Virginia, 1931, as amended, all
relating to the grievance procedure for state employees;
providing "statutory employers" are subject to the grievance
procedure; deleting certain provisions that contradict other
provisions related to appeal rights or for otherwise stylistic
reasons; and, referencing conferences in addition to current
references to hearings in pertinent provisions.
Be it enacted by the Legislature of West Virginia:
That §29-6A-3, §29-6A-4, §29-6A-6 and §29-6A-7 of the Code of
West Virginia, 1931, as amended, be amended and reenacted, all to
read as follows:
ARTICLE 6A. GRIEVANCE PROCEDURE FOR STATE EMPLOYEES.
§29-6A-3. Grievance procedure generally.
(a) (1) A grievance shall be filed within the times specified in section four of this article and shall be processed as rapidly
as possible. The number of days indicated at each level specified
in section four of this article is the maximum number of days
allowed and, if a decision is not rendered at any level within the
prescribed time limits, the grievant may appeal to the next level:
Provided, That the specified time limits shall be extended whenever
a grievant is not working because of accident, sickness, death in
the immediate family or other cause necessitating the grievant to
take personal leave from his or her employment.
(2) Any assertion by the employer or statutory employer that
the filing of the grievance at level one was untimely shall must be
asserted by the employer on behalf of the employer at or before the
level two hearing conference. The grievant prevails by default if
a grievance evaluator required to respond to a grievance at any
level fails to make a required response in the time limits required
in this article, unless prevented from doing so directly as a
result of sickness, injury, excusable neglect, unavoidable cause or
fraud. Within five days of the receipt of a written notice of the
default, the employer may request a hearing before a level four
hearing examiner for the purpose of showing that the remedy
received by the prevailing grievant is contrary to law or clearly
wrong. In making a determination regarding the remedy, the hearing
examiner shall presume the employee prevailed on the merits of the
grievance and shall determine whether the remedy is contrary to law or clearly wrong in light of that presumption. If the examiner
finds that the remedy is contrary to law, or clearly wrong, the
examiner may modify the remedy to be granted to comply with the law
and to make the grievant whole.
(b) If the employer, statutory employer or both or its agent
intends intend to assert the application of any statute, policy,
rule or written agreement or submits any written response to the
filed grievance at any level, a copy of the materials shall be
forwarded to the grievant and any representative of the grievant
named in the filed grievance. Anything submitted and the
grievant's response to the submitted materials, if any, becomes
part of the record. Failure to assert the statute, policy, rule or
written agreement at any level does not prevent the subsequent
submission of the materials in accordance with the provisions of
this subsection.
(c) The grievant may file the grievance at the level vested
with authority to grant the requested relief if each lower
administrative level agrees in writing to filing the grievance at
a higher level. In the event a grievance is filed at a higher
level, the employer shall provide copies to each lower
administrative level.
(d) An employee may withdraw a grievance at any time by
notice, in writing, to the level where the grievance is then
current. The grievance may not be reinstated by the grievant unless reinstatement is granted by the grievance evaluator at the
level where the grievance was withdrawn. If more than one employee
is named as grievant in a particular grievance, the withdrawal of
one employee does not prejudice the rights of any other employee
named in the grievance. In the event a grievance is withdrawn or
an employee withdraws from a grievance, the employer shall notify,
in writing, each lower administrative level.
(e) Grievances may be consolidated at any level by agreement
of all parties.
(f) A grievant may be represented by an employee organization
representative, legal counsel or any other person, including a
fellow employee, in the preparation or presentation of the
grievance. At the request of the grievant, that person or persons
may be present at any step of the procedure: Provided, That at
level one of the grievance, as set forth in section four of this
article, a grievant may have only one representative.
(g) If a grievance is filed which cannot be resolved within
the time limits set forth in section four of this article prior to
the end of the employment term, the time limit shall be reduced as
agreed to in writing by both parties so that the grievance
procedure may be concluded within ten days following the end of the
employment term or an otherwise reasonable time.
(h) No reprisals of any kind may be taken by any employer or
agent of the employer or statutory employer against any interested party, or any other participant in the grievance procedure by
reason of the participation. A reprisal constitutes a grievance,
and any person held responsible for reprisal action is subject to
disciplinary action for insubordination.
(i) Decisions rendered at all levels of the grievance
procedure shall be dated, in writing setting forth the decision or
decisions and the reasons for the decision, and transmitted to the
grievant and any representative named in the grievance within the
time prescribed. If the grievant is denied the relief sought, the
decision shall include the name of the individual at the next level
to whom appeal may be made.
(j) Once a grievance has been filed, supportive or
corroborative evidence may be presented at any conference or
hearing conducted pursuant to the provisions of this article.
Whether evidence substantially alters the original grievance and
renders it a different grievance is within the discretion of the
grievance evaluator at the level where the new evidence is
presented. If the grievance evaluator rules that the evidence
renders it a different grievance, the party offering the evidence
may withdraw it, the parties may consent to the evidence, or the
grievance evaluator may decide to hear the evidence or rule that
the grievant must file a new grievance. The time limitation for
filing the new grievance is measured from the date of the ruling.
(k) Any change in the relief sought by the grievant shall be consented to by all parties or may be granted at level four within
the discretion of the hearing examiner.
(l) Forms for filing grievances, giving notice, taking
appeals, making reports and recommendations, and all other
necessary documents shall be made available by the immediate
supervisor to any employee upon request. The forms shall include
information prescribed by the board. The grievant shall have
access to the employer's equipment for purposes of preparing
grievance documents subject to the reasonable rules of the employer
governing the use of the equipment.
(m) Notwithstanding the provisions of section three, article
nine-a, chapter six of this code, or any other provision relating
to open proceedings, all conferences and hearings pursuant to this
article shall be conducted in private except that, upon the
grievant's request, conferences and hearings at levels two and
three shall be open to employees of the grievant's immediate office
or work area or, at the request of the grievant, shall be public.
Within the discretion of the hearing examiner, conferences and
hearings may be public at level four.
(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.
(p) The grievant or the employee selected by a grievant to
represent him or her in the processing of a grievance through this
procedure, or both, shall be granted necessary time off during
working hours for the grievance procedure without loss of pay and
without charge to annual or compensatory leave credits. In
addition to actual time spent in grievance conferences and
hearings, the grievant or the employee representative, or both,
shall be granted time off during working hours, not to exceed four
hours per grievance, for the preparation of the grievance without
loss of pay and without charge to annual or compensatory leave
credits. However, the first responsibility of any state employee
is the work assigned by the appointing authority to the employee.
An employee may not allow grievance preparation and representation
activities to seriously affect the overall productivity of the
employee.
(q) The aggrieved employee, employing agency and
representatives of both have the right to call, examine and
cross-examine witnesses who are employees of the agency against
which the grievance is lodged and who have knowledge of the facts
at issue.
(r) Both parties may produce witnesses other than employees of
the agency against which the grievance is lodged, and the witnesses
are subject to examination and cross-examination.
(s) If an employer or the employer's agent causes a conference
or hearing to be postponed without adequate notice to employees who
are scheduled to appear during their normal work day, the employees
may not suffer any loss in pay for work time lost.
(t) Any grievance evaluator may be excused from participation
in the grievance process for reasonable cause, including, but not
limited to, conflict of interest or incapacitation, and if this
occurs the grievance evaluator at the next higher level shall
designate an alternative grievance evaluator if it is reasonable
and necessary.
(u) No less than one year following resolution of a grievance
at any level, the grievant may by request in writing have removed
any record of the grievant's identity from any file kept by the
employer.
(v) All grievance forms and reports shall be kept in a file
separate from the personnel file of the employee and may not become
a part of the personnel file, but shall remain confidential except
by mutual written agreement of the parties.
(w) The number of grievances filed against an employer or
agent or by an employee is not, per se, an indication of the
employer's or agent's or the employee's job performance.
(x) Any chief administrator with whom a grievance is filed may
appeal a level four decision on the grounds that the decision:
(1) Is contrary to law or a lawfully adopted rule or written policy of the employer;
(2) Exceeds the hearing examiner's statutory authority;
(3) Is the result of fraud or deceit;
(4) Is clearly wrong in view of the reliable, probative and
substantial evidence on the whole record; or
(5) Is arbitrary or capricious or characterized by abuse of
discretion.
The appeal shall follow the procedure regarding appeal
provided the grievant in section four of this article and provided
both parties in section seven of this article.
§29-6A-4. Procedural levels and procedure at each level.
(a) Level one.
Within ten days following the occurrence of the event upon
which the grievance is based, or within ten days of the date on
which the event became known to the grievant, or within ten days of
the most recent occurrence of a continuing practice giving rise to
a grievance, the grievant or the designated representative, or
both, may must 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 and a copy of the
grievance shall be served upon the director of the Division of
Personnel by the grievant, 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 and a copy of the appeal and the level one
decision shall be served upon the Director of the Division of
Personnel by the grievant. The Director of the Division of
Personnel or his or her designee may appear at the conference and
submit oral or written evidence relevant to matters in controversy
at the conference. The administrator or his or her designee shall
hold a conference within five days of the receipt of the appeal and
issue a written decision upon the appeal within five days of the
conference.
(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.
The chief administrator shall issue a written decision within
five days of the hearing. In the event the designee of the chief
administrator conducts the level three hearing, the designee's
written decision shall be issued within five days of the hearing.
(d) Level four.
(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. A copy of
the appeal shall be served by the grievant upon the Director of the
Division of Personnel. The Director of the Division of Personnel,
or his or her designee, may appear at the hearing and submit oral
or written evidence upon the matters in the hearing.
(2) Within thirty days following the hearing, the hearing
examiner shall render a decision in writing to all parties setting
forth findings and conclusions on the issues submitted. Subject to
the provisions of section seven of this article, the decision of
the hearing examiner is final upon the parties and is enforceable
in circuit court.
(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-6. Hearings generally.
(a) The chief administrator or his or her designee acting as
a grievance evaluator or the hearing examiner shall conduct all
hearings and conferences in an impartial manner and shall ensure
that all parties are accorded procedural and substantive due
process. All parties shall have an opportunity to present evidence
and argument with respect to the matters and issues involved, to
cross-examine and to rebut evidence. Reasonable notice of a
hearing or conference shall be sent prior to the hearing or
conference to all parties and their named representative and shall
include the date, time and place of the hearing or conference.
Level one, level two and level three conferences or hearings shall
be at a convenient place accessible to the aggrieved employee. All
hearings and conferences shall be held on the employer's premises
or on other premises mutually agreeable to the parties and within
regular working hours: Provided, That any hearing or conference
might continue beyond normal working hours. Level four hearings
shall be at a place to be designated by the hearing examiner.
(b) The employer that is party to the grievance shall produce prior to the hearing or conference any documents, not privileged,
and which are relevant to the subject matter involved in the
pending grievance, that have been requested by the grievant, in
writing.
(c) The chief administrator or his or her designee or the
hearing examiner has the power to: (1) Administer oaths and
affirmations; (2) subpoena witnesses; (3) regulate the course of
the hearing; (4) hold conferences for the settlement or
simplification of the issues; (5) exclude immaterial, irrelevant or
repetitious evidence; (6) sequester witnesses; (7) restrict the
number of advocates; and (8) take any other action not inconsistent
with the rules of the board or the provisions of this article.
(d) All the testimony and evidence at any level three or level
four hearing shall be recorded by mechanical means, and all
recorded testimony and evidence at the hearing shall be transcribed
and certified by affidavit. The chief administrator is responsible
for promptly providing a copy of the certified transcript of a
level three hearing to any party to that hearing who requests the
transcript. The hearing examiner may also request and be provided
a transcript upon appeal to level four and allocate the costs for
the transcript as prescribed in section eight of this article. The
board is responsible for promptly providing a copy of the certified
transcript of a level four hearing to any party to that hearing who
requests the transcript.
(e) Formal rules of evidence may not be applied, but parties
are bound by the rules of privilege recognized by law. No employee
may be compelled to testify against himself or herself in a
grievance involving disciplinary action. The burden of proof rests
with the employer in disciplinary matters.
(f) All materials submitted in accordance with section three
of this article; the mechanical recording of all testimony and
evidence or the transcription of the testimony, if any; the
decision; and any other materials considered in reaching the
decision are the record of a grievance. The record shall be
submitted to any level at which appeal has been made, and the
record shall be considered, but the development of the record is
not limited thereby.
(g) Every decision pursuant to a hearing shall be in writing
and shall be accompanied by findings of fact and conclusions of
law.
(h) Prior to the decision any party may propose findings of
fact and conclusions of law.
§29-6A-7. Enforcement and reviewability; costs; good faith.
(a) The decision of the hearing examiner is final upon the
parties and is enforceable in circuit court.
(b) (a) Either party or the Director of the Division of
Personnel may appeal to the circuit court of Kanawha County or to
the circuit court of the county in which the grievance occurred on the grounds that the hearing examiner's 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 or clearly unwarranted exercise of discretion.
(c) (b) The appeal shall be filed within thirty days of
receipt of the hearing examiner's decision. The decision of the
hearing examiner 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) (c) The court's ruling shall be upon the entire record
made before the hearing examiner, and the court may hear oral
arguments and require written briefs. The court may reverse,
vacate or modify the decision of the hearing examiner or may remand
the grievance to the appropriate chief administrator for further
proceedings.
(e) (d) 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
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.
NOTE: The purpose for this bill is to amend
the grievance
procedure for state employees by providing "statutory employers"
are subject to the grievance procedure, deleting certain provisions
that contradict other provisions related to appeal rights or for
otherwise stylistic reasons and to add references to conferences in
addition to current references to hearings in pertinent provisions
.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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