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Introduced Version House Bill 2932 History

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Key: Green = existing Code. Red = new code to be enacted
H. B. 2932


(By Delegates Barker, Eldridge, Argento, Mahan,

Staton, Beane and Tucker)

[Introduced March 8, 2005; referred to the

Committee on the Judiciary.]




A BILL to amend and reenact §18-29-4 of the Code of West Virginia, 1931, as amended; and to amend and reenact §29-6A-4 of said code, all relating to providing for binding arbitration for state employees, employees of boards of education and employees of county boards of health; and providing for optional mediation.

Be it enacted by the Legislature of West Virginia:

That §18-29-4 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §29-6A-4 of said code be amended and reenacted, all to read as follows:

CHAPTER 18. EDUCATION.

ARTICLE 29. GRIEVANCE PROCEDURE.

§18-29-4. Procedural levels and procedure at each level.

(a) Level one.

(1) Before a grievance is filed and within fifteen days
following the occurrence of the event upon which the grievance is based, or within fifteen days of the date on which the event became known to the grievant or within fifteen days of the most recent occurrence of a continuing practice giving rise to a grievance, the grievant or the designated representative shall schedule a conference with the immediate supervisor to discuss the nature of the grievance and the action, redress or other remedy sought.
The conference with the immediate supervisor concerning the grievance shall be conducted within ten days of the request therefor, and any discussion shall be by the grievant in the grievant's own behalf or by both the grievant and the designated representative.

(2) The immediate supervisor shall respond to the grievance within ten days of the conference.

(3) Within ten days of receipt of the response from the immediate supervisor following the informal conference, a written grievance may be filed with said supervisor, or in the case where the grievance involves an event under the jurisdiction of a state institution of higher education, the grievance shall be filed with said supervisor and the office of personnel, by the grievant or the designated representative on a form furnished by the employer or agent.

(4) The immediate supervisor shall state the decision to such filed grievance within ten days after the grievance is filed.

(b) Level two.

Within five days of receiving the decision of the immediate supervisor, the grievant may appeal the decision to the chief administrator, and such administrator or his or her designee shall conduct a hearing in accordance with section six of this article within five days of receiving the appeal and shall issue a written decision within five days of such hearing. Such decision may affirm, modify or reverse the decision appealed from. Level four hearing examiners or the chief administrator shall have the authority to subpoena witnesses and documents 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. (c) If not resolved after Level II, grievances, including a suspension or dismissal, may be mediated under the provisions of section ten of this article upon the request of the grievant or the employer.

(1) (d) If the grievant is not satisfied with the action taken by the chief administrator or if appealed to level three, if mediation is unsuccessful, 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 five days of the written decision of the chief administrator or, in the event of mediation, within five days of the completion of mediation, the grievant may request binding arbitration.
(e) Where a grievance proceeds to binding arbitration, the grievant and the employer shall be provided a panel of three arbitrators experienced in employment law. The arbitrators shall be selected from either the West Virginia State Bar, the FMCS or AAA. The grievant and the employer shall each strike one arbitrator from the panel and the remaining arbitrator shall hear the grievance in accordance with the provisions of this article. The employer shall bear the costs associated with the arbitration, except that the grievant or the grievant's legal representative shall pay fifty dollars toward the costs of arbitration before the commencement of arbitration. The arbitration shall be held at a location agreed upon by the parties: Provided, That should the grievant object to an arbitration being held at a location where the employer conducts business, another site shall be selected for the arbitration. A decision rendered by the arbitrator is final and binding on the parties and neither party has a right to appeal. Enforcement of the decision may be compelled through procedures provided in section seven of this article.

(2) (f) 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 shall be final upon the parties and shall be enforceable in circuit court.
(4) (g) 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.

CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICES.

ARTICLE 6A. GRIEVANCE PROCEDURE FOR STATE EMPLOYEES.

§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 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 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.
(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.
(c) If not resolved after Level II, grievances, including a suspension or dismissal, may be mediated under the provisions of section twelve of this article upon the request of the grievant or the employer.
(d) If the grievant is not satisfied by the action taken by the administrator of the grievant's work location, facility, area office, or other appropriate subdivision of the department, board, commission or agency, or in the event mediation is unsuccessful, then, within five days of the administrator's written decision or within five days of the date mediation was completed, the grievant may request in writing that the subject-matter of the grievance be submitted for binding arbitration. In the event the grievant requests binding arbitration, the grievant or his or her authorized representative and the employer shall receive the names of three arbitrators, experienced in public employment law. The names of the arbitrators may be obtained from either of the following: (1) The West Virginia State Bar; (2) the FMCS; or, (3) the AAA. The grievant and the employer shall each strike one arbitrator from the panel and the remaining arbitrator will hear the grievance in accordance with the provisions of this article. The employer shall bear the costs associated with the arbitration except that the grievant or his or her authorized representative must first pay fifty dollars to the arbitrator before the commencement of arbitration. The arbitration is held at a location agreed upon by the parties: Provided, That should the grievant object to an arbitration being held at a location where the employer conducts business, another site must be selected for the arbitration. A decision rendered by the arbitrator is final and binding on the parties and neither party has a right to appeal. Enforcement of the decision may be compelled through procedures provided in section seven of this article.
(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 binding arbitration. 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.


NOTE: The purpose of this bill is to eliminate Levels III and IV of the state employees' and state board of education's grievance process and, instead, provide for binding arbitration. The bill also provides for optional mediation at the request of the grievant or employer.

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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