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Introduced Version Senate Bill 478 History

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sb478 intr
Senate Bill No. 478

(By Senators Hunter, White, Unger, Kessler, Fanning,

Bailey, Dempsey and Love)

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[Introduced March 7, 2005; referred to the Committee

on Education.]

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A BILL to amend and reenact §18-29-3, §18-29-4, §18-29-5 and §18-29-8 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §18-29-10a, all relating to grievance procedures for state educational employees; changing grievance procedures; providing for administrative law judges; and providing for binding arbitration.

Be it enacted by the Legislature of West Virginia:
That §18-29-3, §18-29-4, §18-29-5 and §18-29-8 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §18-29-10a , all to read as follows:
ARTICLE 29. GRIEVANCE PROCEDURE.
§18-29-3. Grievance procedure generally.

(a) A grievance must be filed within the times specified in section four of this article and shall be processed as rapidly as possible. The number of days indicated at each level specified in section four of this article shall be considered as the maximum number of days allowed and, if a decision is not rendered at any level within the prescribed time limits, the grievant may appeal to the next level: Provided, That the specified time limits may be extended by mutual written agreement and shall be extended whenever a grievant is not working because of such the circumstances as provided for in section ten, article four, chapter eighteen-a of this code. Any assertion by the employer that the filing of the grievance at level one was untimely must be asserted by the employer on behalf of the employer at or before the level two one hearing. If a grievance evaluator required to respond to a grievance at any level fails to make a required response in the time limits required in this article, unless prevented from doing so directly as a result of sickness or illness, the grievant shall prevail by default. Within five days of such the default, the employer may request a hearing before a level four hearing examiner three administrative law judge for the purpose of showing that the remedy received by the prevailing grievant is contrary to law or clearly wrong. In making a determination regarding the remedy, the shall presume the employee prevailed on the merits of the grievance and shall determine whether the remedy is contrary to law or clearly wrong in light of that presumption. If the examiner administrative law judge finds that the remedy is contrary to law, or clearly wrong, the examiner administrative law judge may modify the remedy to be granted so as to comply with the law and to make the grievant whole.
(b) If the employer or agent intends to assert the applicability of any statute, policy, rule, regulation or written agreement or submits any written response to the filed grievance at any level, a copy thereof shall be forwarded to the grievant and any representative of the grievant so named in the filed grievance. Anything so submitted and the grievant's response thereto, if any, shall become part of the record. Failure to assert such the statute, policy, rule, regulation or written agreement at any level shall not prevent the subsequent submission thereof in accordance with the provisions of this subsection.
(c) The grievant may file the grievance at the level vested with the authority to grant the requested relief. if the grievance evaluator at that level agrees in writing thereto. In the event a grievance is filed at a higher level, the employer shall provide copies to each lower administrative level.
(d) An employee may withdraw a grievance at any time by notice, in writing, to the level wherein the grievance is then current. Such grievance may not be reinstated by the grievant unless such the reinstatement is granted by the grievance evaluator at the level where the grievance was withdrawn. If more than one employee is named as grievant in a particular grievance, the withdrawal of one employee shall not prejudice the rights of any other employee named in the grievance. In the event a grievance is withdrawn or an employee withdraws from a grievance, such the employer shall notify in writing each lower administrative level.
(e) Grievances may be consolidated at any level by agreement of all parties.
(f) An employee may have the assistance of one or more fellow employees, an employee organization representative or representatives, legal counsel or any other person in the preparation and presentation of the grievance. At the request of the grievant, such the person or persons may be present at any step of the procedure, as well as at any investigative meeting or other meeting which is held with the employee for the purpose of discussing the possibility of disciplinary action. When a fellow employee is assisting a grievant, the employee shall do so without loss of pay and shall have protection from reprisal as that term is defined in section two of this article.
(g) If a grievance is filed which cannot be resolved within the time limits set forth in section four of this article prior to the end of the employment term, the time limit set forth in said section shall be reduced as agreed to in writing by both parties so that the grievance procedure may be concluded within ten days following the end of the employment term or an otherwise reasonable time.
(h) No reprisals of any kind shall be taken by any employer or agent of the employer against any interested party, or any other participant in the grievance procedure by reason of such that participation. A reprisal constitutes a grievance, and any person held to be responsible for reprisal action shall be subject to disciplinary action for insubordination.
(i) Except for the informal attempt to resolve the grievance as provided for in subsection (a), section four of this article, Decisions rendered at all levels of the grievance procedure shall be dated, shall be in writing setting forth the decision or decisions and the reasons therefor, and shall be transmitted within the time prescribed to the grievant and any representative named in the grievance. If the grievant is denied the relief sought, the decision shall include the name of the individual at the next level to whom appeal may be made.
(j) Once a grievance has been filed, supportive or corroborative evidence may be presented at any conference or hearing conducted pursuant to the provisions of this article. Whether evidence substantially alters the original grievance and renders it a different grievance is within the discretion of the grievance evaluator at the level wherein the new evidence is presented. If the grievance evaluator rules that the evidence renders it a different grievance, the party offering the evidence may withdraw same; the parties may consent to such the evidence, or the grievance evaluator may decide to hear the evidence or rule that the grievant must file a new grievance. The time limitations for filing the new grievance shall be measured from the date of such the ruling.
(k) Any change in the relief sought by the grievant shall be consented to by all parties or may be granted at level four three within the discretion of the hearing examiner administrative law judge.
(l) Forms for filing grievances, giving notice, taking appeals, making reports and recommendations, and all other necessary documents shall be made available by the immediate supervisor to any employee upon request. Such forms shall include information as prescribed by the board. The grievant shall have access to the institution's equipment for purposes of preparing grievance documents subject to the reasonable rules of the employer governing the use of such the equipment.
(m) Notwithstanding the provisions of section three, article nine-a, chapter six of this code, or any other provision relating to open proceedings, all conferences and hearings pursuant to this article shall be conducted in private except that, upon the grievant's request, conferences and hearings at levels two and three shall be public. Within the discretion of the hearing examiner , conferences and hearings may be public at level four.
(n) No person or governing board to which appeal has been made shall confer or correspond with a grievance evaluator at a previous level or a management representative who recommended or approved the grieved action regarding the merits of the grievance unless all parties to the grievance are present.
(o) Grievances may be processed at any reasonable time, but attempts shall be made to process the grievance on work time in a manner which does not interfere with the normal operation of the institution. Grievances processed on work time shall not result in any reduction in salary, wages, rate of pay or other benefits of the employee and shall be counted as time worked.
Should any employer or the employer's agent cause a conference or hearing to be postponed without adequate notice to employees who are scheduled to appear during their normal work day, such these employees will not suffer any loss in pay for work time lost.
(p) Any grievance evaluator may be excused from participation in the grievance process for reasonable cause, including, but not limited to, conflict of interest or incapacitation, and in such the case the grievance evaluator at the next higher level shall designate an alternate grievance evaluator if such the is deemed reasonable and necessary.
(q) No less than one year following resolution of a grievance at any level, the grievant may by request in writing have removed any record of the grievance from any file kept by the employer.
(r) All grievance forms and reports shall be kept in a file separate from the personnel file of the employee and shall not become a part of such the personnel file, but shall remain confidential except by mutual written agreement of the parties.
(s) The number of grievances filed against an employer or agent or by an employee shall not, per se, be an indication of such the employer's or agent's or such the employee's job performance.
(t) Any chief administrator or governing board of an institution in which a grievance was filed may appeal such the decision on the grounds that the decision (1) was contrary to law or lawfully adopted rule, regulation or written policy of the chief administrator or governing board, (2) exceeded the hearing examiner's administrative law judge 's statutory authority, (3) was the result of fraud or deceit, (4) was clearly wrong in view of the reliable, probative and substantial evidence on the whole record, or (5) was arbitrary or capricious or characterized by abuse of discretion. Such appeal shall follow the procedure regarding appeal provided the grievant in section four of this article and provided both parties in section seven of this article.
(u) Upon a timely request, any employee shall be allowed to intervene and become a party to a grievance at any level when that employee claims that the disposition of the action may substantially and adversely affect his or her rights or property and that his or her interest is not adequately represented by the existing parties.
(v) (u) The doctrine of laches shall not be applied to prevent a grievant or grievants from recovering back pay or other appropriate relief for a period of one year prior to the filing of a grievance based upon a continuing practice.
 §18-29-4. Procedural levels and procedure at each level.
(a) Level one.
(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 file a written grievance, which shall include the action, redress or other remedy sought, with the chief administrator: Provided, That a grievant, in his or her own discretion, may file the grievance with his or her immediate supervisor. If the grievant files a grievance with his or her immediate supervisor, the supervisor shall respond in writing to the grievance within five days. If the grievance is not granted, the grievant may appeal, within five days, to the chief administrator. and such The chief administrator or his or her designee shall conduct a hearing in accordance with section six of this article within five ten days of receiving the grievance appeal and shall issue a written decision within five seven days of such the hearing. Such decision may affirm, modify or reverse the decision appealed from. Level four hearing examiners three administrative law judge s or the chief administrator shall have the authority to subpoena witnesses and documents for level one and two and level three hearings in accordance with the provision of section one, article five, chapter twenty-nine-a of this code, and may issue a subpoena upon the written request of any party to the grievance. When the chief administrator's designee holds the hearing, the grievance evaluator shall issue the final decision and the chief administrator shall have no authority to override, reverse or modify the decision.
(c) Level three two.
Within five days of receiving the decision of the chief administrator, the grievant may appeal the decision to the governing board of the institution or may proceed directly to level four three. An appeal to the governing board shall set forth the reasons why the grievant is seeking a level three two review of the decision of the chief administrator. Within five days of receiving the appeal, such the governing board may conduct a hearing in accordance with section six of this article, may review the record submitted by the chief administrator and render a decision based on such the record or may waive the right granted herein and shall notify the grievant of such the waiver. Any decision by the governing board, including a decision to waive participation in the grievance, shall be in writing and shall set forth the reasons for such the decision, including the decision to waive participation in the grievance. If a hearing is held under the provisions of this subsection, the governing board shall issue a decision affirming, modifying or reversing the decision of the chief administrator within five days of such the hearing. If the governing board grants the grievance, the chief administrator may not appeal the grievance to level three.
(d) Level four three.
(1) If the grievant is not satisfied with the action taken by the chief administrator or, if appealed to level three two, the action taken by the governing board, within five days of the written decision the grievant may request, in writing, on a form furnished by the employer, that the grievance be submitted to a hearing examiner as provided for in section five of this article. such The hearing to shall be conducted in accordance with section six of this article within ten days following the request therefor: Provided, That such the hearing may be held within thirty days following the request or within such the time as is mutually agreed upon by the parties, if the hearing examiner administrative law judge gives reasonable cause, in writing, as to the necessity for such delay.
(2) Within thirty days following the hearing, the hearing examiner administrative law judge shall render a decision in writing to all parties setting forth findings and conclusions on the issues submitted. Subject to the provisions of section seven of this article, the decision of the hearing examiner shall be final upon the parties and shall be enforceable in circuit court.
All information and data generated by the board and in its custody relative to level four decisions and copies of such the decisions shall be provided at reasonable cost to any individual requesting it.
§18-29-5. Education and State Employees Grievance Board; 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, one, two and three as provided in section five, article six-a, chapter twenty-nine of this code, and as provided for in section four of this article and shall employ at least two full-time hearing examiners administrative law judges on an annual basis and clerical help as is necessary to implement the legislative intent expressed in section one of this article.
In addition to the authorization granted by this section over education employees, the Board has jurisdiction over the procedures to be followed in processing grievances filed under article six-a, chapter twenty-nine of this code.
The Board shall hire hearing examiners administrative law judges who reside in different regional educational service agency areas of the state. unless and until the number of hearing examiners exceeds the number of the areas, at which time two hearing examiners may be from the same area. If a grievant previously before a hearing examiner 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 three hearings conducted, synopses of hearing outcomes and other information as the Board determines appropriate. The Board shall further evaluate on an annual basis the level four three grievance process and the performance of all hearing examiners administrative law judges and include the evaluation in the annual report to the Governor and Legislature. In making the evaluation, the Board shall notify all institutions, employee organizations and all grievants participating in level four three grievances in the year for which evaluation is being made and shall provide for the submission of written comment or the hearing of testimony regarding the grievance process, or both. The Board shall provide suitable office space for all hearing examiners administrative law judges in space other than that utilized 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 Administrative law judges may consolidate grievances, allocate costs among the parties in accordance with section eight of this article, subpoena witnesses and documents in accordance with the provisions of section one, article five, chapter twenty-nine-a of this code, provide relief 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.
§18-29-8. Allocation of costs.

Any expenses incurred relative to the grievance procedure at levels one through three and two shall be borne by the party incurring such expenses except as to the costs of transcriptions as provided for in section six of this article. Upon the written request to the administrative law judge, the administrative law judge may require the employer to reimburse grievants for expenses incurred for the service of subpoenas, witness fees and mileage fees for witnesses subpoenaed to level three hearings.
In the event an employee or employer appeals an adverse level four decision to the circuit court or an adverse circuit court decision to the supreme court, and the employee substantially prevails upon such appeal, the employee or the organization representing the employee is entitled to recover court costs and reasonable attorney fees, to be set by the court, from the employer.
 §18-29-10a. Arbitration.
(a) At any time prior to the level three hearing, the grievant shall be entitled to submit the grievance to arbitration with the grievant paying one third of the cost of arbitration and the institution paying two-thirds the costs of arbitration. The grievance shall be submitted to an arbitrator mutually agreed to by the parties.
(b) The arbitrator shall set the location, date and time of the hearing, in consultation with the parties. The arbitrator may order such discovery as the arbitrator considers necessary to a full and fair exploration of the issues in dispute, consistent with the expedited nature of arbitration.
(c) An arbitration hearing shall be opened by: (1) Recording the date, time and place of the hearing; and (2) recording the presence of the arbitrator, the parties, their representative, if any. The arbitrator may ask the parties for statements to clarify the issues involved.
(d) The parties shall bear the same burdens of proof and burdens of producing evidence as would apply if their claims and counterclaims had been brought in circuit court. The arbitrator shall be the judge of the relevance and materiality of the evidence offered, and conformity to legal rules of evidence shall not be necessary.
(e) Witnesses for each party shall submit to direct and cross examination as approved by the arbitrator. The arbitrator may exclude witnesses, other than a party, from the hearing during the testimony of another witness. The arbitrator may also decide whether any person who is not a witness or a party may attend the hearing.
With the exception of the rules regarding the allocation of the burdens of proof and going forward with the evidence, the arbitrator may establish the rules for the conduct of the proceedings and exercise that authority to afford a full and equal opportunity to all parties to present any evidence that the arbitrator deems material and relevant to the resolution of the dispute. The arbitrator may receive documentary and other forms of physical evidence when offered by either party.
(g) The names and addresses of all witnesses and description of the exhibits shall be made a part of the record.
(h) There shall be no ex parte communication with the arbitrator, unless the parties and the arbitrator otherwise agree in advance of the communication. The arbitrator shall maintain the confidentiality of the arbitration and may make rulings to safeguard that confidentiality.
(i) The award shall be made promptly by the arbitrator and, unless otherwise agreed by the parties, no later than thirty days from the date of closing.
(j) Except as provided in subsection (k) of this section, the award of an arbitrator is binding on the parties to the grievance.
(k) The award of an arbitrator may be set aside by the circuit court of the county in which the arbitration hearing was held if the award was procured by corruption, fraud or an undisclosed conflict of interest, or if the arbitrator exceeded his or her authority.


NOTE: The purpose of this bill is to simplify the grievance procedure by eliminating the current level one procedure and to authorize arbitration as an option for educational employees.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
§18-29-10a is new; therefore, strike-throughs and underscoring have been omitted.
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