Senate Bill No. 313

(By Senators Withers and Humphreys)

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[Introduced March 8, 1993; referred to the Committee
on Education; and then to the Committee on the Judiciary.]

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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; and to amend and reenact sections two, three, four, five, six, seven, eight and ten of said article, all relating to grievance procedures in educational settings; defining the term arbitrator; providing for hearings on grievances by arbitrators; limiting appealable issues; requiring subpoenas be issued if requested; providing that an arbitrator be selected from a panel of arbitrators provided by the federal mediation and conciliation service; binding effect of arbitrator's decision; granting arbitrator certain powers; specifying procedures for conduct of hearings; providing for enforcement and review of arbitrator's decisions; providing for allocation of costs; and providing for disposition of pending grievances; and eliminating data collection provisions.

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twenty-nine, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; and that sections two, three, four, five, six, seven, eight and ten of said article be amended and reenacted, all to read as follows:
ARTICLE 29. GRIEVANCE PROCEDURE.

§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; or any action, policy or practice constituting a substantial detriment to or interference with effective classroom instruction, job performance or the health and safety of students or employees.
A grievance may be filed by one or more employees on behalfof 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 on matters related to days worked for an institution or when there is a violation, misapplication or misinterpretation of a statute, policy, rule, regulation or written agreement relating to suchsubstitute.
(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, the executive director of a regional educational service agency orthe 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 arbitrators.
(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) (l) "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) (m) "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) (n) "Favoritism" means unfair treatment of an employee as demonstrated by preferential, exceptional or advantageoustreatment of another or other employees.
(p) (o) "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) (p) "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.
(r) (q) "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 orbefore the level two 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 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 thissubsection.
(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 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 fellowemployee 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 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 orcorroborative evidence may be presented at any conference or hearing conducted pursuant to the provisions of this article. Whether evidence substantially alters the original grievance and renders it a different grievance is within the discretion of the grievance evaluator at the level wherein the new evidence is presented. If the grievance evaluator rules that the evidence renders it a different grievance, the party offering the evidence may withdraw same; the parties may consent to such evidence, or the grievance evaluator may decide to hear the evidence or rule that the grievant must file a new grievance. The time limitations for filing the new grievance shall be measured from the date of such ruling.
(k) Any change in the relief sought by the grievant shall be consented to by all parties or may be granted at level four within the discretion of the hearing examiner 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. 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 tothis 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 or approved the grieved action regarding the merits of the grievance unless all parties to the grievance are present.
(o) Grievances may be processed at any reasonable time, but attempts shall be made to process the grievance on work time in a manner which does not interfere with the normal operation of the institution. Grievances processed on work time shall not result in any reduction in salary, wages, rate of pay or other benefits of the employee and shall be counted as time worked.
Should any employer or the employer's agent cause a conference or hearing to be postponed without adequate notice to employees who are scheduled to appear during their normal work day, such employees will not suffer any loss in pay for work time lost.
(p) Any grievance evaluator may be excused from participation in the grievance process for reasonable cause, including, but not limited to, conflict of interest or incapacitation, and in such case the grievance evaluator at the next higher level shall designate an alternate grievanceevaluator 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 or agent 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 (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 (l) was not supported by competent, material and substantial evidence on the whole record, (2) was procured by fraud, collusion or other similar and unlawful means, or (3) the grievance evaluator exceeded his or her statutory authority or jurisdiction. Such appeal shall follow the procedure regardingappeal provided the grievant in section four of this article: and provided both parties in section seven of this article Provided, That decisions rendered at level four may only be appealed for the reasons set forth in section seven of this article. Such appeals shall follow the procedure set forth in that section.
(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 otherremedy 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 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 forlevel 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 a decision 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, theaction 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 he or she 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 in circuit court.
All information and data generated by the board and in its custody relative to level four decisions and copies of suchdecisions shall be provided at reasonable cost to any individual requesting it.
§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 said list to the grievant and his or her representative. Within five days of receipt of said list by the grievant the parties shall hold a meeting for the purpose of selecting an arbitrator. At said 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 provision 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 written order 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, subpoenawitnesses 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 the provisions of this article.
§18-29-6. Hearings generally.

The chief administrator or his or her designee, the governing board or the hearing examiner 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 designated by such president, the executive director of the regional educational service agency, the director of the multi-county vocational center, the chancellor of the higher education governing boards, the president of any state institution ofhigher education, the senior administrator, the chief administrator or his or her 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 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. In any grievance involving disciplinary or discharge actions, no employee may be compelled to testify against himself or herself,the burden of proof is on the employer, and the employer shall present its case first.
All materials submitted in accordance with section three of this article; the mechanical recording of all testimony and evidence or the transcription thereof, if any; the decision; and any other materials considered in reaching the decision shall be made a part and shall constitute the record of a grievance. Such record shall be submitted to any level at which appeal has been made, and such record shall be considered, but the development of such record shall not be limited thereby.
Every decision pursuant to a hearing shall be in writing and shall be accompanied by findings of fact and conclusions of law. Prior to such decision any party may propose findings of fact and conclusions of law.
§18-29-7. Enforcement and reviewability.

The decision of the hearing examiner arbitrator shall be final 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 ofdiscretion or clearly unwarranted exercise of discretion (1) was not supported by competent, material and substantial evidence on the whole record, (2) was procured by fraud, collusion or other similar and unlawful means, or (3) the arbitrator exceeded his or her statutory authority or jurisdiction. 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 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.
§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 shall be divided equally between 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. Effective date; disposition of pending grievances.

The effective date of the amendment to this article shall be on the first day of July, one thousand nine hundred ninety-three. All grievances filed pursuant to the provisions of this article which are ultimately appealed to level four shall be adjudicated by the hearing examiners employed by the education employees grievance board. All grievances filed after said effective date, which are ultimately appealed to level four, shall be adjudicated by an arbitrator pursuant to the provisions of this article.



NOTE: The purpose of this bill is to provide for arbitration of grievances in educational settings. The bill eliminates provisions relating to hearing examiners in favor of implementing a system of arbitration. The bill provides for disposition of pending grievances and it eliminates data collection requirements.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added. §§18-29-5 and 18-29-10 have been completely rewritten, therefore strike-throughs and underlining are omitted in these sections.