COMMITTEE SUBSTITUTE

FOR

H. B. 2527

(By Delegates Ashcraft, Compton and Pethtel)


(Originating in the House Committee on Education)


[March 26, 1993]


A BILL to repeal section eleven, article twenty-nine, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact sections one, two, three, four, five, six, seven, eight and ten of said article; to amend and reenact sections one, two and five, article six-a, chapter twenty-nine of said code; and to further amend said article by adding thereto a new section, designated section twelve, all relating to grievance procedures; deleting education employees grievance board and hearing examiners; transferring provisions regarding grievance board and higher education employee grievances to state employees grievance board; providing that other education employees use arbitrators at level four; providing generally therefor; stating binding nature of arbitration; limiting grounds for appeal; basing judicial review on arbitration record; removing authority of chief administrator to appeal; requiring subpoenas be issued if requested; requiring division of arbitration costs; providing for disposition of pending grievances; eliminating
mediation provisions for education employees; adding same for state employees; eliminating grievance board's data collection provisions; requiring secretary of state to perform record-keeping and reporting function; adding two members to state employees grievance board; and providing generally for such board.
 Be it enacted by the Legislature of West Virginia:
That section eleven, article twenty-nine, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that sections one, two, three, four, five, six, seven, eight and ten of said article be amended and reenacted; that sections one, two and five, article six-a, chapter twenty-nine of said code be amended and reenacted; and that said article be further amended by adding thereto a new section, designated section twelve, all to read as follows:
ARTICLE 29. GRIEVANCE PROCEDURE.

§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 to the end that good morale may be maintained, effective job performance may be enhanced and the citizens of the community may be better served. This procedure is intended to provide a simple, expeditious and fair process for resolving problems at the lowest possibleadministrative 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 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 board; any specifically identified incident of harassment or favoritism; orany action, policy or practice constituting a substantial detriment to or interference with effective classroom instruction, job performance or the health and safety of students or employees.
A grievance may be filed by one or more employees on behalf of a class of similarly situated employees: Provided, That any similarly situated employee shall indicate in writing of his or her intent to join the class of similarly situated employees. Only one employee filing a grievance on behalf of similarly situated employees shall be required to participate in the level one hearing required in section four of this article.
Any pension matter or other issue relating to the state teachers retirement system in accordance with article seven-a of this chapter or other retirement system administered outside the jurisdiction of the applicable governing board, any matter relating to public employees insurance in accordance with article sixteen, chapter five of this code, or any other matter in which authority to act is not vested with the employer shall not be the subject of any grievance filed in accordance with the provisions of this article.
(b) "Days" means days of the employee's employment term or prior to or subsequent to such employment term exclusive of Saturday, Sunday, official holidays or school closings in accordance with section two, article five, chapter eighteen-a of this code.
(c) "Employee" means any person hired as a temporary, probationary or permanent employee by an institution either full or part time. A substitute is considered an employee only onmatters related to days worked for an institution or when there is a violation, misapplication or misinterpretation of a statute, policy, rule, regulation or written agreement relating to such substitute.
(d) "Grievant" means any named employee or group of named employees filing a grievance as defined in subsection (a) of this section.
(e) "Institution" means any state institution of higher education, the governing boards of higher education, any institution whose employees are hired by the state board of education including the department of education, and any public school, regional educational service agency or multi-county vocational center.
(f) "Employer" means that institution contracting the services of the employee.
(g) "Immediate supervisor" means that person next in rank above the grievant possessing a degree of administrative authority and designated as such in the employee's contract, if any.
(h) "Chief administrator" means, as may be applicable, the president of a state institution of higher education, the chancellor of a governing board of higher education only as to those employees employed solely by the chancellor and governing board and not assigned to a state institution of higher education, the senior administrator as to those employees hired pursuant to section two, article four, chapter eighteen-b of this code, the state superintendent of schools as to employees hired by the state board of education, the county superintendent, theexecutive director of a regional educational service agency or the director of a multi-county vocational center.
(i) "Governing board" means the administrative board of any state or county educational institution, including institutions whose employees are hired by the state board of education, and refers, as is applicable, to the governing boards of higher education, state board of education, county boards of education, the school board members of any board of directors of a regional educational service agency or the school board members of any administrative council of a multi-county vocational center.
(j) "Grievance evaluator" means that individual or governing board authorized to render a decision on a grievance, including but not limited to an arbitrator selected in accordance with the provisions of section five of this article..
(k) "Board" means the education employees grievance board.
(l) "Hearing examiner" means the individual or individuals employed by the board in accordance with section five of this article.
(m) (k) "Discrimination" means any differences in the treatment of employees unless such differences are related to the actual job responsibilities of the employees or agreed to in writing by the employees.
(n) (l) "Harassment" means repeated or continual disturbance, irritation or annoyance of an employee which would be contrary to the demeanor expected by law, policy and profession.
(o) (m) "Favoritism" means unfair treatment of an employee as demonstrated by preferential, exceptional or advantageoustreatment of another or other employees.
(p) (n) "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) (o) "Employee organization" means any employee advocacy organization whose membership includes employees as defined in this section which has filed with the board secretary of state the name, address, chief officer and membership criteria of the organization.
(r) (p) "Representative" means any employee organization, fellow employee, legal counsel or other person or persons designated by the grievant as the grievant's representative.
§18-29-3. Grievance procedure generally.

(a) A grievance must 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 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. If a grievance evaluator requiredto 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 default, the employer may request a hearing before a level four hearing examiner arbitrator 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 arbitrator 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 arbitrator finds that the remedy is contrary to law, or clearly wrong, the examiner arbitrator 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 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 grievanceevaluator 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 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 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 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 priorto 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 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 evidencemay 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 arbitrator.
(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 federal mediation and conciliation service. 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.
(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 arbitrator, 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 orapproved 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) 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.
(s) The number of grievances filed against an employer oragent or by an employee shall not, per se, be an indication of such employer's or agent's or such employee's job performance.
(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 in accordance with the provisions provided the grievant in section four of this article: Provided, That a level four decision shall only be appealed in accordance with the provisions of section seven of this article. (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 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 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 five 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 chiefadministrator, 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 shall 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 adecision affirming, modifying or reversing the decision of the chief administrator within five days of such hearing.
(d) Level four.
(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, may notify the employer on a form furnished by the employer, that the grievant requests that the grievance be submitted to a hearing examiner an arbitrator 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 receiving notice of arbitration, the employer shall notify the federal mediation and conciliation service and request a panel of five names of qualified individuals from which an arbitrator may be chosen by the parties pursuant to the procedure set out in section five of this article.
(2) Within thirty days following the hearing, held by the arbitrator pursuant to section five of this article, the hearing examiner arbitrator 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 arbitrator shall be final and binding upon the parties and shall be enforceable incircuit court.
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.
Each written decision rendered by an arbitrator pursuant to a level four hearing shall be forwarded by the arbitrator to the secretary of state. The secretary of state shall cause said decision to be recorded and made available at reasonable cost to any individual requesting it and shall submit a summary to the Legislature on the first day of January, one thousand nine hundred ninety-five, of the number of arbitration decisions received as of that date.
§18-29-5. Education employees grievance board; hearing examiners.

(a) There is hereby created and shall be an education employees grievance board which shall consist of three members who shall be citizens of the state appointed by the governor by and with the advice and consent of the Senate for overlapping terms of three years, except that the original appointments shall be for a period of one, two and three years, respectively, commencing on the first day of July, one thousand nine hundred eighty-five. No two members shall be from the same congressional district, and no more than two of the appointed members shall be from the same political party. No person shall 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 governmentof this state. Members shall be 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 such times and places as it may prescribe and may meet at such other times as may be necessary, such meetings to be agreed to in writing by at least two of the members. Members of the board shall each be paid seventy-five dollars for each calendar day devoted to the work of the board, but not more than seven hundred and fifty dollars during any one fiscal year. Each member shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of board duties, but shall submit a request therefor upon sworn itemized statement.
The board is hereby authorized and required to administer the grievance procedure at level four as provided for in section four of this article and shall employ at least two full-time hearing examiners on an annual basis and such clerical help as is necessary to implement the legislative intent expressed in section one of this article.
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 suchareas, at which time two hearing examiners may be from the same such area. If a grievant previously before a hearing examiner again brings a grievance, a different hearing examiner shall be required to hear the grievance upon written request therefor by any party to the grievance. These hearing examiners shall 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 such other information as the board may deem appropriate. The board shall further evaluate on an annual basis the level four grievance process and the performance of all hearing examiners and include such evaluation in the annual report to the governor and Legislature. In making such 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 and/or the hearing of testimony regarding the grievance process. 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 and regulations consistent with the provisions of this article, such rules and regulations to be adopted in accordance with chapter twenty-nine- a of this code.
(b) Hearing examiners are hereby authorized and shall havethe power to 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 such relief as is deemed fair and equitable in accordance with the provisions of this article, and such other powers as will provide for the effective resolution of grievances not inconsistent with any rules or regulations of the board or the provisions of this article.
§18-29-5. Arbitrators; selections and powers.

(a) Within two days of receipt of the list of potential arbitrators from the federal mediation and conciliation service, the employer shall provide a copy of the list to the grievant and the grievant's representative. Within five days of receipt of the list by the grievant, the parties shall hold a meeting for the purpose of selecting an arbitrator. At the meeting the employer and the grievant shall alternatively strike names from the list until there is only one name left. The representative of the employer shall make the first strike. The parties shall notify the federal mediation and conciliation service in writing that the individual whose name was not struck shall be the person to arbitrate the grievance.
Within thirty days of receipt of notice of selection by the arbitrator a hearing shall be held in accordance with the provisions of this article and the rules, regulations, and procedures established by the federal mediation and conciliation service: Provided, That such time period for the hearing may be enlarged by mutual agreement of the parties or upon a writtenorder of the arbitrator based upon reasonable cause for such a delay.
(b) Arbitrators are hereby authorized and shall have the power to 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, conduct hearings in accordance with section six of this article, provide such relief as is deemed fair and equitable in accordance with the provisions of this article, and such other powers as shall provide for the effective resolution of grievances not inconsistent with the provisions of this article.
§18-29-6. Hearings generally.

The chief administrator or his or her a designee, the governing board or the hearing examiner arbitrator 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 designatedby 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 a designee, each member of the governing board or the hearing examiner arbitrator 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 (7) 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 arbitrator 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. Inany 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 although the development of such record shall not be limited thereby: Provided, That any appeal to the circuit court in accordance with the provisions of section seven shall be reviewed only upon the record submitted to the arbitrator or developed during the arbitration proceedings although the court may hear oral arguments and request written briefs.
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 reviewability.

The decision of the hearing examiner arbitrator shall be final and binding upon the parties and shall be enforceable in circuit court: Provided, That either party may appeal to the circuit court of the Kanawha County: in which the grievance occurred on the grounds that the hearing examiner's arbitrator's decision (1) was contrary to law or lawfully adopted rule,regulation or written policy of the chief administrator or governing board, (2) exceeded the hearing examiner's statutory authority, (3) was the result of fraud or deceit, (4) was clearly wrong in view of the reliable, probative and substantial evidence on the whole record, or (5) was arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion Provided, however, That the scope of judicial review shall be narrow and shall be based solely on the record submitted to the arbitrator or developed during the arbitration proceeding, and the decision shall not be reversed unless (1) the arbitrator exceeded the arbitrator's statutory authority, (2) the decision is manifestly contrary to law, (3) the decision is not supported by competent evidence, or (4) the decision was procured by fraud, collusion or other similar unlawful means. Such 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 arbitrator's decision. The decision of the hearing examiner arbitrator shall not be stayed, automatically, upon the filing of an appeal, but a stay may be granted by the circuit court upon separate motion therefor.
The court's ruling shall be upon the entire record made before the hearing examiner arbitrator and shall be based solely on the record: Provided, That and the court may hear oral arguments and require written briefs. The court may reverse, vacate or modify the decision of the hearing examiner arbitrator or may remand the grievance to the chief administrator of the institution for further proceedings only on the grounds set forthin this section.
§18-29-8. Allocation of costs.

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.
All expenses incurred relative to a level four hearing before an arbitrator as a result of the utilization of the federal mediation and conciliation service shall be divided equally between the parties: Provided, That if there are more than two parties to the grievance, the arbitrator shall divide the expenses equitably among all the parties.
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.
§18-29-10. Mediation.

To such extent as may be feasible with existing personnel and resources, the education employees grievance board shall attempt mediation and other alternative dispute resolution techniques to actively assist the parties in identifying, clarifying and resolving issues regarding the grievance at any time prior to the level four hearing.
All of the information that is provided by the parties during mediation shall remain confidential. Mediators shall notbe called as witnesses to provide testimony in unresolved grievances that proceed to a grievance hearing, and any hearing examiner involved in a mediation process shall not hear the grievance nor be consulted regarding the merits of the grievance.
The education employees grievance board shall monitor the results of all mediation attempts and report to the Legislature prior to the first day of January, one thousand nine hundred ninety-three, regarding the feasibility of the process, the cost effectiveness of the process, the success of the process in resolving grievances, the resources which would be required to expand the process, and such other information or recommendations as the grievance board may deem appropriate and helpful.
§18-29-10. Effective date; disposition of pending grievances.

All grievances filed prior to the first day of July, one thousand nine hundred ninety-three, pursuant to previous enactments of this article which are ultimately appealed to level four shall be adjudicated by the hearing examiners employed by the education employees grievance board, which hearing examiners and grievance board shall continue in existence until such time as all grievances filed prior to the first day of July, one thousand nine hundred ninety three, have had a level four hearing or the time for conducting same has expired.
§18-29-11. Compilation and dissemination of data.

In addition to such other data as may be required under the provisions of this article, beginning with the quarter ending the first day of October, one thousand nine hundred ninety-two, the education employees grievance board shall provide each governing board and employee organization, within thirty days of the end ofeach quarter, a statewide quarterly report summarizing matters decided by the hearing examiners during the preceding quarter. Each report shall set forth any information deemed to be helpful in providing an overview of grievance-related issues: Provided, That nothing contained in the report shall breach the confidentiality of a grievant or other person, nor shall any matter be disclosed if the disclosure may violate any provision of law. The grievance board shall make an effort to provide information applicable to particular counties, institutions or governing boards, as may be appropriate.
Each report shall then be distributed to each member of the governing board so that the governing board may monitor the significant personnel-related matters which came before the grievance board and thereby ascertain whether any personnel policies need to be reviewed, revised or enforced.
Each quarterly report shall be incorporated into the annual report required by section five of this article, which shall also be distributed to each governing board and employee organization.
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 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, theLegislature, any employees of any constitutional officer unless they are covered under the civil service system, and members of the department of public safety: 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.
§29-6A-2. Definitions.

For the purpose of this article:
(a) "Board" means the education state employees grievance board created in section five, article twenty-nine, chapter eighteen of this code and hereafter known as the education and state employees grievance board. of this article.
(b) "Chief administrator" means the commissioner, director or head of any state department, board, commission or agency, and, for higher education, means 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.
(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 bythe employees.
(e) "Employee" means any person hired for permanent employment, either full or part-time, by any department, agency, commission or board of the state created by an act of the Legislature, except those persons employed by the board of regents or by any state institution of higher education, members of the department of public safety, any employees of any constitutional officer unless they are covered under the civil service system and any employees of the Legislature. The definition of "employee" shall not include any patient or inmate employed in a state institution.
(f) "Employee organization" means any employee advocacy organization whose membership includes employees as defined in this section which has filed with the board the name, address, chief officer and membership criteria of the organization.
(g) "Employer" means that state department, board, commission or agency utilizing the services of the employee covered under this article.
(h) "Favoritism" means unfair treatment of an employee as demonstrated by preferential, exceptional or advantageous treatment of another or other employees.
(i) "Grievance" means any claim by one or more affected state employees alleging a violation, a misapplication or a misinterpretation of the statutes, policies, rules, regulations or written agreements under which such employees work, including any violation, misapplication or misinterpretation regarding compensation, hours, terms and conditions of employment, employment status or discrimination; any discriminatory orotherwise aggrieved application of unwritten policies or practices of their employer; any specifically identified incident of harassment or favoritism; or any action, policy or practice constituting a substantial detriment to or interference with effective job performance or the health and safety of the employees.
Any pension matter or other issue relating to public employees insurance in accordance with article sixteen, chapter five of this code, retirement, or any other matter in which authority to act is not vested with the employer shall not be the subject of any grievance filed in accordance with the provisions of this article.
(j) "Grievance evaluator" means that individual authorized to render a decision on a grievance under procedural levels one, two and three as set out in section four.
(k) "Grievant" means any named employee or group of named employees filing a grievance as defined in subsection (i) of this section.
(l) "Harassment" means repeated or continual disturbance, irritation or annoyance of an employee which would be contrary to the demeanor expected by law, policy and profession.
(m) "Hearing examiner" means the individual or individuals employed by the board in accordance with section five of this article.
(n) "Immediate supervisor" means that person next in rank above the grievant possessing a degree of administrative authority and designated as such in the employee's contract, if any.
(o) "Representative" means any employee organization, fellow employee, legal counselor or other person or persons designated by the grievant as the grievant's representative.
(p) "Reprisal" means the retaliation of an employer or agent toward a grievant, witness, representative or any other participant in the grievance procedure either for an alleged injury itself or any lawful attempt to redress it.
§29-6A-5. State employees grievance board; hearing examiners.

(a) The education employees grievance board, created by virtue of the provisions of section five, article twenty-nine, chapter eighteen of this code, shall be hereafter known and referred to as the education and state employees grievance board and, in addition to those duties set forth in said chapter eighteen, is hereby authorized and required to administer the grievance procedure at level four as provided for in section four of this article. The board shall employ, in addition to those persons employed as hearing examiners for educational employee grievances, at least two full-time hearing examiners for the purpose of conducting hearings at level four as provided in section four of this article. Such hearing examiners shall be employed on an annual basis along with such clerical help as is necessary to implement the legislative intent expressed in section one of this article.
In addition to the budget required for submission to the Legislature by virtue of the provisions of section five, article twenty-nine, chapter eighteen of this code,
(a) The three members of the state and education employees grievance board appointed pursuant to prior enactments of thissection shall remain in office until their terms have expired. As of the effective date of this section, the board shall be known as the state employees grievance board and shall consist of five members who shall be citizens of the state appointed by the governor by and with the advice and consent of the Senate for overlapping terms of three years, except that the original appointments shall be for a period of one, two and three years, respectively, commencing on the first day of July, one thousand nine hundred eighty-five. There shall be at least one member from each congressional district, and no more than three of the appointed members shall be from the same political party. One member shall be a nonsupervisory public employee and one member shall be a citizen representative who is not an employee of any public agency in West Virginia. A person shall not be appointed to membership on the board who is a member of any political party executive committee. With the exception of the nonsupervisory public employee member, a person shall not be appointed to membership on the board who holds any other public office or public employment under the federal government or under the government of this state. Members shall be 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 such other times as may be necessary, the meetings to be agreed to in writing by at least two of the members. Members of the board shall each be paid seventy-five dollars for each calendar day devoted to the work of the board, but not more than seven hundred and fifty dollars during any one fiscal year. Each member shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of board duties, but shall submit a request therefor upon sworn itemized statement.
The board is hereby authorized and required to administer the grievance procedure at level four as provided for in section four of this article and shall employ at least two full-time hearing examiners on an annual basis and such clerical help as is necessary to implement the legislative purpose expressed in section one of this article. These hearing examiners shall serve at the will and pleasure of the board. If a grievant previously before a hearing examiner again brings a grievance, a different hearing examiner shall be required to hear the grievance upon written request therefor by any party to the grievance.
The board shall submit a yearly budget and shall report annually to the governor and the Legislature regarding proceedings conducted under this article, including receipts and expenditures, number of level four hearings conducted, synopses of hearing outcomes and such other information as the board may deem appropriate. The board shall further evaluate on an annual basis the level four grievance process and the performance of all hearing examiners and include such evaluation in the annualreport to the governor and the Legislature. In making such evaluation the board shall notify all employers, employee organizations, the director of personnel of the state civil service commission 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 and/or the hearing of testimony regarding the grievance process.
The board shall provide suitable office space for all hearing examiners in space other than that utilized by any employer as defined in section two of this article and shall ensure that reference materials are generally available. The board shall provide forms for filing grievances, giving notice, taking appeals, making reports and recommendations and such other documents as the board deems necessary for any stage of a grievance under this article.
The board is authorized to promulgate rules and regulations consistent with the provisions of this article, such rules and regulations to be adopted in accordance with chapter twenty-nine- a of this code.
(b) Hearing examiners are hereby authorized and shall have the power to 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 such relief as is deemed fair and equitable in accordance with the provisions of this article, and such other powers as will provide for the effective resolution of grievances not inconsistent with any rules and regulations of the board orthe provisions of this article: Provided, That in all cases the hearing examiner shall have the authority to provide appropriate remedies including, but not limited to, making the employee whole.
§29-6A-12. Mediation.

To such extent as may be feasible with existing personnel and resources, the state employees grievance board shall attempt mediation and other alternative dispute resolution techniques to actively assist the parties in identifying, clarifying and resolving issues regarding the grievance at any time prior to the level four hearing. Hearing examiners may require the parties to attend and participate in mediation sessions.
All of the information that is provided by the parties during mediation shall remain confidential. Mediators shall 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 shall not hear the grievance nor be consulted regarding the merits of the grievance.
The state employees grievance board shall monitor the results of all mediation attempts and include the results in the annual report required by section five of this article.


Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.