H. B. 4314
(By Mr. Speaker, Mr. Kiss, and Delegates
Martin, Staton, Manuel, Fleischauer and Givens)
[Introduced February 9, 1998; referred to the
Committee on Education then the Judiciary.]
A BILL to amend and reenact section one, article two, chapter
five-f of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact
section five, article twenty-nine, chapter eighteen of said
code; to amend and reenact sections three, four, five, six,
seven and ten, 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 the
education and public employees grievance process; removing
the education and public employees board from the department
of administration; providing for expedited grievance
processes; expanding the jurisdiction of the board; changing
the default provisions; giving board procedural jurisdiction
at levels two and three; requiring mediation at the request
of any party; allowing appeals to be filed in the circuit
court of Kanawha County; and removing the cap on attorney's
fees for prevailing grievants.
Be it enacted by the Legislature of West Virginia:
That section one, article two, chapter five-f of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; that section five, article twenty-nine,
chapter eighteen of said code be amended and reenacted; that
sections three, four, five, six, seven and ten, 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:
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH
OF STATE GOVERNMENT.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-1. Incorporation of agencies and boards in departments; funds.
(a) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board the agencies or boards,
are hereby transferred to and incorporated in and shall be
administered as a part of the department of administration:
(1) Building commission provided for in article six, chapter
five of this code;
(2) Public employees insurance agency and public employees
insurance agency advisory board provided for in article sixteen,
chapter five of this code;
(3) Governor's mansion advisory committee provided for in article five, chapter five-a of this code;
(4) Commission on uniform state laws provided for in article
one-a, chapter twenty-nine of this code;
(5) Education and state employees grievance board provided
for in article twenty-nine, chapter eighteen of this code and
article six-a, chapter twenty-nine of this code;
(6) (5) Board of risk and insurance management provided for
in article twelve, chapter twenty-nine of this code;
(7) (6) Boundary commission provided for in article
twenty-three, chapter twenty-nine of this code;
(8) (7) Public defender services provided for in article
twenty-one, chapter twenty-nine of this code;
(9) (8) Division of personnel provided for in article six,
chapter twenty-nine of this code;
(10) (9) The West Virginia ethics commission provided for in
article two, chapter six-b of this code;
(11) (10) Consolidated public retirement board provided for
in article ten-d, chapter five of this code; and
(12) (11) The child support enforcement division designated
in chapter forty-eight-a of this code.
(b) The department of commerce, labor and environmental
resources and the office of secretary of the department of
commerce, labor and environmental resources are hereby abolished.
For purposes of administrative support and liaison with the
office of the governor, the following agencies and boards, including all allied, advisory and affiliated entities shall be
are grouped under three bureaus as follows:
(1) Bureau of commerce:
(A) Division of labor provided for in article one, chapter
twenty-one of this code, which shall include:
(i) Occupational safety and health review commission
provided for in article three-a, chapter twenty-one of this code;
and
(ii) Board of manufactured housing construction and safety
provided for in article nine, chapter twenty-one of this code;
(B) Office of miners' health, safety and training provided
for in article one, chapter twenty-two-a of this code. The
following boards are transferred to in the office of miners'
health, safety and training for purposes of administrative
support and liaison with the office of the governor:
(i) Board of coal mine health and safety and coal mine
safety and technical review committee provided for in article
six, chapter twenty-two-a of this code;
(ii) Board of miner training, education and certification
provided for in article seven, chapter twenty-two-a of this code;
and
(iii) Mine inspectors' examining board provided for in
article nine, chapter twenty-two-a of this code;
(C) The West Virginia development office provided for in
article two, chapter five-b of this code, which shall include includes:
(i) Enterprise zone authority provided for in article two-b,
chapter five-b of this code;
(ii) Economic development authority provided for in article
fifteen, chapter thirty-one of this code; and
(iii) Tourism commission provided for in article two,
chapter five-b of this code and the office of the tourism
commissioner;
(D) Division of natural resources and natural resources
commission provided for in article one, chapter twenty of this
code. The Blennerhassett historical state park provided for in
article eight, chapter twenty-nine of this code shall be is under
the division of natural resources;
(E) Division of forestry provided for in article one-a,
chapter nineteen of this code;
(F) Geological and economic survey provided for in article
two, chapter twenty-nine of this code;
(G) Water development authority and board provided for in
article one, chapter twenty-two-c of this code;
(2) Bureau of employment programs provided for in article
one, chapter twenty-one-a of this code;
(3) Bureau of environment:
(A) Air quality board provided for in article two, chapter
twenty-two-b of this code;
(B) Solid waste management board provided for in article three, chapter twenty-two-c of this code;
(C) Environmental quality board, or its successor board,
provided for in article three, chapter twenty-two-b of this code;
(D) Division of environmental protection provided for in
article one, chapter twenty-two of this code;
(E) Surface mine board provided for in article four, chapter
twenty-two-b of this code;
(F) Oil and gas inspectors' examining board provided for in
article seven, chapter twenty-two-c of this code;
(G) Shallow gas well review board provided for in article
eight, chapter twenty-two-c of this code; and
(H) Oil and gas conservation commission provided for in
article nine, chapter twenty-two-c of this code.
(c) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board the agencies or boards,
are hereby transferred to and incorporated in and shall be
administered as a part of the department of education and the
arts:
(1) Library commission provided for in article one, chapter
ten of this code;
(2) Educational broadcasting authority provided for in
article five, chapter ten of this code;
(3) University of West Virginia board of trustees provided
for in article two, chapter eighteen-b of this code;
(4) Board of directors of the state college system provided
for in article three, chapter eighteen-b of this code;
(5) Joint commission for vocational-technical-occupational
education provided for in article three-a, chapter eighteen-b of
this code;
(6) Division of culture and history provided for in article
one, chapter twenty-nine of this code; and
(7) Division of rehabilitation services provided for in
section two, article ten-a, chapter eighteen of this code.
(d) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board the agencies or boards,
are hereby transferred to and incorporated in and shall be
administered as a part of the department of health and human
resources:
(1) Human rights commission provided for in article eleven,
chapter five of this code;
(2) Division of human services provided for in article two,
chapter nine of this code;
(3) Bureau of public health provided for in article one,
chapter sixteen of this code;
(4) Office of emergency medical services and advisory
council thereto provided for in article four-c, chapter sixteen
of this code;
(5) Health care cost review authority provided for in article twenty-nine-b, chapter sixteen of this code;
(6) Commission on mental retardation provided for in article
fifteen, chapter twenty-nine of this code;
(7) Women's commission provided for in article twenty,
chapter twenty-nine of this code; and
(8) The child support enforcement division designated in
chapter forty-eight-a of this code.
(e) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board the agencies or boards,
are hereby transferred to and incorporated in and shall be
administered as a part of the department of military affairs and
public safety:
(1) Adjutant general's department provided for in article
one-a, chapter fifteen of this code;
(2) Armory board provided for in article six, chapter
fifteen of this code;
(3) Military awards board provided for in article one-g,
chapter fifteen of this code;
(4) West Virginia state police provided for in article two,
chapter fifteen of this code;
(5) Office of emergency services and disaster recovery board
provided for in article five, chapter fifteen of this code and
emergency response commission provided for in article five-a of
said chapter;
(6) Sheriffs' bureau provided for in article eight, chapter
fifteen of this code;
(7) Division of corrections provided for in chapter
twenty-five of this code;
(8) Fire commission provided for in article three, chapter
twenty-nine of this code;
(9) Regional jail and correctional facility authority
provided for in article twenty, chapter thirty-one of this code;
(10) Board of probation and parole provided for in article
twelve, chapter sixty-two of this code; and
(11) Division of veterans' affairs and veterans' council
provided for in article one, chapter nine-a of this code.
(f) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board the agencies or boards,
are hereby transferred to and incorporated in and shall be
administered as a part of the department of tax and revenue:
(1) Tax division provided for in article one, chapter eleven
of this code;
(2) Racing commission provided for in article twenty-three,
chapter nineteen of this code;
(3) Lottery commission and position of lottery director
provided for in article twenty-two, chapter twenty-nine of this
code;
(4) Agency of insurance commissioner provided for in article two, chapter thirty-three of this code;
(5) Office of alcohol beverage control commissioner provided
for in article sixteen, chapter eleven of this code and article
two, chapter sixty of this code;
(6) Board of banking and financial institutions provided for
in article three, chapter thirty-one-a of this code;
(7) Lending and credit rate board provided for in chapter
forty-seven-a of this code;
(8) Division of banking provided for in article two, chapter
thirty-one-a of this code; and
(9) The child support enforcement division as designated in
chapter forty-eight-a of this code.
(g) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board the agencies or boards,
are hereby transferred to and incorporated in and shall be
administered as a part of the department of transportation:
(1) Division of highways provided for in article two-a,
chapter seventeen of this code;
(2) Parkways, economic development and tourism authority
provided for in article sixteen-a, chapter seventeen of this
code;
(3) Division of motor vehicles provided for in article two,
chapter seventeen-a of this code;
(4) Driver's licensing advisory board provided for in article two, chapter seventeen-b of this code;
(5) Aeronautics commission provided for in article two-a,
chapter twenty-nine of this code;
(6) State rail authority provided for in article eighteen,
chapter twenty-nine of this code; and
(7) Port authority provided for in article sixteen-b,
chapter seventeen of this code.
(h) Except for such the powers, authority and duties as have
been that are delegated to the secretaries of the departments by
the provisions of section two of this article, the existence of
the position of administrator and of the agency and the powers,
authority and duties of each administrator and agency shall are
not be affected by the enactment of this chapter.
(i) Except for such the powers, authority and duties as have
been that are delegated to the secretaries of the departments by
the provisions of section two of this article, the existence,
powers, authority and duties of boards and the membership, terms
and qualifications of members of such the boards shall are not be
affected by the enactment of this chapter and all boards which
are appellate bodies or were are otherwise established to be
independent decision makers shall do not have their appellate or
independent decision-making status affected by the enactment of
this chapter.
(j) Any department previously transferred to and
incorporated in a department created in section two, article one of this chapter by prior enactment of this section in chapter
three, acts of the Legislature, first extraordinary session, one
thousand nine hundred eighty-nine, and subsequent amendments
thereto, shall henceforth be read, construed and understood to
mean is properly designated as a division of the appropriate
department. so created Wherever elsewhere in this code, in any
act, in general or other law, in any rule, or regulation or in
any ordinance, resolution or order, reference is made to any
department transferred to and incorporated in a department
created in section two, article one of this chapter, such the
reference shall henceforth be read, construed and understood to
mean means a division of the appropriate department, so created
and any such reference elsewhere to a division of a department so
transferred and incorporated shall henceforth be read, construed
and understood to mean means a section of the appropriate
division of the department so created.
(k) When an agency, board or commission is transferred
Agencies, boards or commissions organized under a bureau or
agency other than a department headed by a secretary pursuant to
this section, that transfer shall be construed to be are so
organized solely for purposes of administrative support and
liaison with the office of the governor, a department secretary
or a bureau. The bureaus created by the Legislature upon the
abolishment of the department of commerce, labor and
environmental resources in the year one thousand nine hundred ninety-four shall be headed by a commissioner or other statutory
officer of an agency within that bureau. Nothing in this section
shall be construed to extend extends the powers of department
secretaries under section two of this article to any person other
than a department secretary and nothing herein shall be construed
to limit or abridge in this section limits or abridges the
statutory powers and duties of statutory commissioners or
officers pursuant to this code. Upon the abolishment of the
office of secretary of the department of commerce, labor and
environmental resources, The governor may appoint a statutory
officer serving functions formerly within that the department of
commerce, labor and environmental resources to a position which
was filled by the secretary, ex officio, of that department.
CHAPTER 18. EDUCATION.
ARTICLE 29. GRIEVANCE PROCEDURE.
§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 consists of three
members who shall be
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 may be from the same congressional district, and no more than two of the
appointed members shall may be from the same political party. No
person shall 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 shall
be 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 such
times and places as it may prescribe and may meet at such other
times as may be necessary, such the other meetings to be agreed
to in writing by at least two of the members. The compensation
for members of the board shall each be paid is 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
levels two, three and four,
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 on an
annual basis and such 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 who reside in
different regional educational service agency areas unless and
until the number of hearing examiners exceeds the number of such
the areas, 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 is 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 determines 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 the
evaluation in the annual report to the governor and Legislature.
In making such the 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 or the hearing of testimony regarding the
grievance process, or both. 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 the rules
and regulations to shall 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 found fair and
equitable in accordance with the provisions of this article, and
such exercise other powers as will provide provides for the effective resolution of grievances not inconsistent with any
rules or regulations of the board or the provisions of this
article.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 6A. GRIEVANCE PROCEDURE FOR STATE EMPLOYEES.
§29-6A-3. Grievance procedure generally.
(a)(1) A grievance must shall be filed within the times
specified in section four of this article and shall be processed
as rapidly as possible. The number of days indicated at each
level specified in section four of this article shall be
considered as is the maximum number of days allowed and, if a
decision is not rendered at any level within the prescribed time
limits, the grievant may appeal to the next level: Provided,
That the specified time limits shall be extended whenever a
grievant is not working because of accident, sickness, death in
the immediate family or other cause necessitating the grievant to
take personal leave from his or her employment.
(2) Any assertion by the employer that the filing of the
grievance at level one was untimely shall be asserted by the
employer on behalf of the employer at or before the level two
hearing. The grievant prevails by default if a grievance
evaluator required to respond to a grievance at any level fails
to make a required response in the time limits required in this
article, unless prevented from doing so directly as a result of
sickness or illness. Within five days of the default, the employer may request a hearing before a level four hearing
examiner for the purpose of showing that the remedy received by
the prevailing grievant is contrary to law or clearly wrong. In
making a determination regarding the remedy, the hearing examiner
shall presume the employee prevailed on the merits of the
grievance and shall determine whether the remedy is contrary to
law or clearly wrong in light of that presumption. If the
examiner finds that the remedy is contrary to law, or clearly
wrong, the examiner may modify the remedy to be granted to comply
with the law and to make the grievant whole.
(b) If the employer or its agent intends to assert the
application 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 named in the filed
grievance. Anything submitted and the grievant's response
thereto, if any, shall become becomes part of the record.
Failure to assert such the statute, policy, rule regulation or
written agreement at any level shall does 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 authority to grant the requested relief if each lower
administrative 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. The grievance may not be reinstated by the grievant
unless reinstatement is granted by the grievance evaluator at the
level where the grievance was withdrawn. If more than one
employee is named as grievant in a particular grievance, the
withdrawal of one employee shall does not prejudice the rights of
any other employee named in the grievance. In the event a
grievance is withdrawn or an employee withdraws from a grievance,
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) A grievant may be represented by an employee
organization representative, legal counsel or any other person,
including a fellow employee, in the preparation or presentation
of the grievance. At the request of the grievant, such person or
persons may be present at any step of the procedure: Provided,
That at level one of such the grievance, as set forth in section
four of this article, a grievant may have only one such
representative.
(g) If a grievance is filed which cannot be resolved within
the time limits set forth in section four of this article prior
to the end of the employment term, the time limit 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 may 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 the participation. A reprisal constitutes a grievance, and
any person held to be responsible for reprisal action shall be is
subject to disciplinary action for insubordination.
(i) 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 to the grievant and any representative named in the
grievance within the time prescribed. If the grievant is denied
the relief sought, the decision shall include the name of the
individual at the next level to whom appeal may be made.
(j) Once a grievance has been filed, supportive or
corroborative evidence may be presented at any conference or
hearing conducted pursuant to the provisions of this article.
Whether evidence substantially alters the original grievance and
renders it a different grievance is within the discretion of the
grievance evaluator at the level 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 it, 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 limitation for filing the new grievance shall be is
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
within the discretion of the hearing examiner.
(l) Forms for filing grievances, giving notice, taking
appeals, making reports and recommendations, and all other
necessary documents shall be made available by the immediate
supervisor to any employee upon request. Such The forms shall
include information as prescribed by the board. The grievant
shall have has access to the employer'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 open to employees of the grievant's
immediate office or work area or, at the request of the grievant,
shall be public. Within the discretion of the hearing examiner,
conferences and hearings may be public at level four.
(n) No person shall may confer or correspond with a hearing
examiner regarding the merits of the grievance unless all parties
to the grievance are present.
(o) Grievances shall be processed during regular working
hours. Attempts shall be made to process the grievance in a
manner which does not interfere with the normal operation of the
employer.
(p) The grievant or the employee selected by a grievant to
represent him or her in the processing of a grievance through
this procedure, or both, shall be granted necessary time off
during working hours for the grievance procedure without loss of
pay and without charge to annual or compensatory leave credits.
In addition to actual time spent in grievance conferences and
hearings, the grievant or the employee representative, or both,
shall be granted time off during working hours, not to exceed
four hours per grievance, for the preparation of such the
grievance without loss of pay and without charge to annual or
compensatory leave credits. However, it shall be understood by
all parties that the first responsibility of any state employee
is the work assigned by the appointing authority to the employee.
An employee may not allow grievance preparation and
representation activities by an employee shall not to seriously
affect the overall productivity of the employee.
(q) The aggrieved employee, employing agency and
representatives of both shall have the right to call, examine and cross-examine witnesses who are employees of the agency against
which the grievance is lodged and who have knowledge of the facts
at issue.
(r) Both parties may produce witnesses other than employees
of the agency against which the grievance is lodged, and such the
witnesses shall be are subject to examination and
cross-examination.
(s) Should any If an
employer or the employer's agent cause
causes a conference or hearing to be postponed without adequate
notice to employees who are scheduled to appear during their
normal work day, such the employees will may not suffer any loss
in pay for work time lost.
(t) Any grievance evaluator may be excused from
participation in the grievance process for reasonable cause,
including, but not limited to, conflict of interest or
incapacitation, and in such case if this occurs the grievance
evaluator at the next higher level shall designate an alternative
grievance evaluator if such is deemed it is reasonable and
necessary.
(u) No less than one year following resolution of a
grievance at any level, the grievant may by request in writing
have removed any record of the grievant's identity from any file
kept by the employer.
(v) All grievance forms and reports shall be kept in a file
separate from the personnel file of the employee and shall may not become a part of such the personnel file, but shall remain
confidential except by mutual written agreement of the parties.
(w) The number of grievances filed against an employer or
agent or by an employee shall is not, per se, be an indication of
such the employer's or agent's or such the employee's job
performance.
(x) Any chief administrator with whom a grievance was is
filed may appeal a level four decision on the grounds that the
decision:
(1) was Is contrary to law or lawfully adopted rule,
regulation or written policy of the employer;
(2) Exceeded Exceeds the hearing examiner's statutory
authority;
(3) was Is the result of fraud or deceit;
(4) was Is clearly wrong in view of the reliable, probative
and substantial evidence on the whole record; or
(5) was Is arbitrary or capricious or characterized by abuse
of discretion.
Such The appeal shall follow the procedure regarding appeal
provided the grievant in section four of this article and
provided both parties in section seven of this article.
§29-6A-4. Procedural levels and procedure at each level.
(a) Level one.
Within ten days following the occurrence of the event upon
which the grievance is based, or within ten days of the date on which the event became known to the grievant, or within ten days
of the most recent occurrence of a continuing practice giving
rise to a grievance, the grievant or the designated
representative, or both, may file a written grievance with the
immediate supervisor of the grievant. At the request of the
grievant or the immediate supervisor, an informal conference
shall be held to discuss the grievance within three days of the
receipt of the written grievance. The immediate supervisor shall
issue a written decision within six days of the receipt of the
written grievance.
If a grievance alleges discrimination or
retaliation by the immediate supervisor of the grievant, the
level one filing may be waived by the grievant and the grievance
may be initiated at level two with the administrator or his or
her designee, within the time limits set forth in this subsection
for filing a grievance at level one. A meeting may be held to
discuss the issues in dispute, but the meeting is not required.
(b) Level two.
Within five days of receiving the decision of the immediate
supervisor, the grievant may file a written appeal to the
administrator of the grievant's work location, facility, area
office, or other appropriate subdivision of the department,
board, commission or agency. The administrator or his or her
designee shall hold a conference within five days of the receipt
of the appeal and issue a written decision upon the appeal within
five days of the conference.
(c) Level three.
Within five days of receiving the decision of the
administrator of the grievant's work location, facility, area
office, or other appropriate subdivision of the department,
board, commission or agency, the grievant may file a written
appeal of the decision with the chief administrator of the
grievant's employing department, board, commission or agency. A
copy of the appeal and the level two decision shall be served
upon the personnel director of the state civil service commission
division of personnel by the grievant.
The chief administrator or his or her designee shall hold a
hearing in accordance with section six of this article within
seven days of receiving the appeal. The
personnel director of
the state civil service commission division of personnel
or his
or her designee may appear at such the hearing and submit oral or
written evidence upon the matters in the hearing.
The chief administrator or his or her designee shall issue
a written decision affirming, modifying or reversing the level
two decision within five days of such the hearing.
(d) Level four.
(1) If the grievant is not satisfied with the action taken
by the chief administrator or his or her designee, within five
days of the written decision the grievant may request, in
writing, on a form furnished by the employer, that the grievance
be submitted to a hearing examiner as provided for in section five of this article, such the hearing to be conducted in
accordance with section six of this article within fifteen days
following the request therefor: Provided,
That such the hearing
may be held within thirty days following the request, or within
such a time as is mutually agreed upon by the parties, if the
hearing examiner gives reasonable cause, in writing, as to the
necessity for such the delay. A copy of the appeal shall be
served by the grievant upon the director of the division of
personnel. of the state civil service commission
of the state civil service
commission or his or her designee, may appear at such the hearing
and submit oral or written evidence upon the matters in the
hearing.
(2) Within thirty days following the hearing, the hearing
examiner shall render a decision in writing to all parties
setting forth findings and conclusions on the issues submitted.
Subject to the provisions of section seven of this article, the
decision of the hearing examiner shall be is final upon the
parties and shall be is enforceable in circuit court.
(e) Expedited grievance process.
(1) A grievance involving suspension without pay, demotion
or dismissal or loss of wages may be initiated at level two with
the administrator of the grievant's work location, facility, area
office, or other appropriate subdivision of the department,
board, commission or agency.
(2) An employee may grieve a final action of the employer
involving a dismissal, demotion or suspension exceeding twenty
days directly to the hearing examiner. The expedited grievance
shall be in writing and must shall be filed within ten days of
the date of the final action with the chief administrator and the
director of the division of personnel. of the state civil
service commission
§29-6A-5. Education and 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 is renamed 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 has jurisdiction
regarding procedural matters at levels two and three of the
grievance procedure.
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 The hearing examiners shall
be are 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, 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 determines 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 the evaluation in the annual report to
the governor and the Legislature. In making such the evaluation
the board shall notify all employers, employee organizations, the
director of the division 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 or the
hearing of testimony regarding the grievance process, or both.
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 determines 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 determined 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 or the provisions of this article:
Provided,
That in all cases the hearing examiner shall have has
the authority to provide appropriate remedies including, but not
limited to, making the employee whole.
§29-6A-6. Hearings generally.
The chief administrator or his or her designee acting as a
grievance evaluator or the hearing examiner 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. Reasonable notice of a hearing shall be sent
prior to the hearing to all parties and their named
representative and shall include the date, time and place of the
hearing. Level one, level two and level three hearings shall be
at a convenient place accessible to the aggrieved employee. All
such hearings shall be held on the employer's premises or on
other premises mutually agreeable to the parties and within
regular working hours: Provided,
That any such hearing might
continue beyond normal working hours. Level four hearings shall
be at a place to be designated by the hearing examiner.
The employer that is party to the grievance shall produce
prior to such the hearing any documents, not privileged, and
which are relevant to the subject matter involved in the pending
grievance, that have been requested by the grievant, in writing.
The chief administrator or his or her designee or the
hearing examiner shall have has the power to (1) administer oaths
and affirmations, (2) subpoena witnesses, (3) regulate the course
of the hearing, (4)
at the request of either party,
hold
conferences for the settlement or simplification of the issues,
by consent of the parties (5) exclude immaterial, irrelevant or
repetitious evidence, (6) sequester witnesses, (7) restrict the
number of advocates, and (8) take any other action not
inconsistent with the rules and regulations of the board or the
provisions of this article.
All the testimony and evidence at any level three or level
four hearing shall be recorded by mechanical means, and all
recorded testimony and evidence at such the hearing shall be
transcribed and certified by affidavit. The chief administrator
shall be is responsible for promptly providing a copy of the
certified transcript of a level three hearing to any party to
that hearing who requests such transcript. The hearing examiner
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. The board shall be is responsible
for promptly providing a copy of the certified transcript of a
level four hearing to any party to that hearing who requests such
the transcript.
Formal rules of evidence shall may not be applied, but
parties shall be are bound by the rules of privilege recognized
by law. No employee shall may be compelled to testify against
himself or herself in a grievance involving disciplinary action.
The burden of proof shall rest rests with the employer in
disciplinary matters.
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 are the record of a grievance.
Such The record shall be submitted to any level at which appeal has been made, and such the record shall be considered, but the
development of such the record shall is 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 the decision any party may propose findings of
fact and conclusions of law.
§29-6A-7. Enforcement and reviewability; costs; good faith.
The decision of the hearing examiner shall be is final upon
the parties and shall be is enforceable in circuit court.
Provided,
That
Either party or the state civil service commission director
of the division of personnel may appeal
to the circuit court of
Kanawha County or
to the circuit court of the county in which the
grievance occurred on the grounds that the hearing examiner's
decision:
(1) was Is contrary to law or a lawfully adopted rule,
regulation or written policy of the employer;
(2) exceeded Exceeds the hearing examiner's statutory
authority;
(3) was Is the result of fraud or deceit;
(4) was Is clearly wrong in view of the reliable, probative
and substantial evidence on the whole record; or
(5) was Is arbitrary or capricious or characterized by abuse
of discretion or clearly unwarranted exercise of discretion.
Such The appeal shall be filed
in the circuit court of the county in which the grievance occurred within thirty days of
receipt of the hearing examiner's decision. The decision of the
hearing examiner shall not be stayed, is not automatically stayed
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, and the court may hear oral
arguments and require written briefs. The court may reverse,
vacate or modify the decision of the hearing examiner or may
remand the grievance to the appropriate chief administrator for
further proceedings.
Both employer and employee shall at all times act in good
faith and make every possible effort to resolve disputes at the
lowest level of the grievance procedure. The hearing examiner
may make a determination of bad faith and in extreme instances
allocate the cost of the hearing to the party found to be acting
in bad faith. Such The allocation of costs shall be based on the
relative ability of the party to pay such the costs.
§29-6A-10. Employee's right to attorney's fees and costs.
If an employee shall appeal appeals to a circuit court an
adverse decision of a hearing examiner rendered in a grievance
proceeding pursuant to provisions of this article or is required
to defend an appeal and such the person shall substantially
prevail prevails, the adverse party or parties shall be is liable
to such the employee, upon final judgment or order, for court costs, and for reasonable attorney's fees, to be set by the
court, for representing such the employee in all administrative
hearings and before the circuit court and the supreme court of
appeals, and shall be is further liable to such the employee for
any court reporter's costs incurred during any such
administrative hearings or court proceedings. Provided,
That in
no event shall such attorney's fees be awarded in excess of a
total of one thousand dollars for the administrative hearings and
circuit court proceedings nor an additional one thousand dollars
for supreme court proceedings: Provided, however,
That the
requirements of this section shall not be construed to limit the
employee's right to recover reasonable attorney's fees in a
mandamus proceeding brought under section nine of this article
§29-6A-12. Mediation required at request of either party.
Upon the request of either party, the board shall attempt
mediation or other alternative dispute resolution technique to
assist the parties in identifying, clarifying and resolving
issues regarding the grievance. Mediation may be requested at
any time prior to the level four hearing. All of the information
that is provided by parties during mediation is and shall remain
confidential. Mediators may 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 may not hear the grievance or be consulted
regarding the merits of the grievance.
NOTE: The purpose of this bill is to change certain
procedures in the Education and State Employees Grievance Board
hearing process.
The bill removes the board from the Department of
Administration, making it a free-standing entity. The bill adds
the default provision to bring it in line with the education
statute. Additionally, a provision is added to the state
employees grievance procedure, already included in the education
procedure statute, requiring that an assertion that a grievance
is untimely filed at level one, must be made before the level two
hearing.
In addition, the bill gives the board jurisdiction over
lower-level grievance proceedings; mandates mediation upon the
request of either party; allows a level 4 decision to be appealed
in Kanawha County, as well as in the county in which it was
brought; removes the $1,000 cap on attorney's fees which can be
awarded to prevailing grievants; and expands board jurisdiction
to cover procedural matters for grievances filed by public
employees.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§29-6A-12 is new; therefore strike-throughs and underscoring
have been omitted.