H. B. 2227


(By Delegates Amores, Fleischauer,
Hrutkay and Spencer)
[Introduced January 15, 2003; referred to the
Committee on Education then the Judiciary.]
A BILL to amend and reenact section ten, article twenty-nine, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to further amend said article by adding thereto a new section, designated section ten-a; to amend and reenact section twelve, article six-a, chapter twenty-nine of said code; and to further amend said article by adding thereto a new section, designated section thirteen, all relating to grievance procedures for education and state employees; providing for mediation procedures; and authorizing arbitration and establishing procedural rules therefor.

Be it enacted by the Legislature of West Virginia:
That section ten, article twenty-nine, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that said article be further amended by adding thereto a new section, designated section ten-a; that section twelve, 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 thirteen, all to read as follows:
CHAPTER 18. EDUCATION.

ARTICLE 29. GRIEVANCE PROCEDURE.

§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.
(a) All disciplinary matters appealed to level four pursuant to the provisions of section eight, article two, chapter eighteen-a of this code, involving a suspension or dismissal, shall be mediated before the hearing.
(b) Upon the request of the grievant or the employer, the board may require mediation of any grievance prior to a level two hearing. Additionally, upon the request of the grievant or the employer, or upon its own motion, the board may require mediation of any grievance appealed to level four. Any grievance mediated as the result of a party's request shall be mediated within ten days following receipt of the request.
(c) Mediation shall be conducted by a hearing examiner of the board who has received mediation training. All of the information that is provided by the parties during mediation shall remain confidential. Mediators shall A mediator may not be called as witnesses to provide testimony in unresolved grievances that proceed to a grievance hearing. and any A hearing examiner involved in a mediation process shall who serves as a mediator may not hear the grievance nor be consulted or otherwise participate in any manner 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.
§18-29-10a. Arbitration.
(a) Prior to the level four hearing, the grievant shall be entitled to submit the grievance to arbitration with the costs to be shared equally by the parties. The grievance shall be submitted to an arbitrator mutually agreed to by the parties.
(b) The arbitrator shall set the location, date and time of the hearing, in consultation with the parties. The arbitrator may order such discovery as the arbitrator considers necessary to a full and fair exploration of the issues in dispute, consistent with the expedited nature of arbitration.
(c) An arbitration hearing shall be opened by: (1) Recording the date, time and place of the hearing; (2) recording the presence of the arbitrator, the parties, their representative, if any; and (3) receiving into the record the grievance and the response of the employer, if any. The arbitrator may ask the parties for statements to clarify the issues involved.
(d) The parties shall bear the same burdens of proof and burdens of producing evidence as would apply if their claims and counterclaims had been brought in circuit court. The arbitrator shall be the judge of the relevance and materiality of the evidence offered, and conformity to legal rules of evidence shall not be necessary.
(e) Witnesses for each party shall submit to direct and cross examination as approved by the arbitrator. The arbitrator may exclude witnesses, other than a party, from the hearing during the testimony of another witness. The arbitrator may also decide whether any person who is not a witness or a party may attend the hearing.
(f) With the exception of the rules regarding the allocation of the burdens of proof and going forward with the evidence, the arbitrator may establish the rules for the conduct of the proceedings and exercise that authority to afford a full and equal opportunity to all parties to present any evidence that the arbitrator deems material and relevant to the resolution of the dispute. The arbitrator may receive documentary and other forms of physical evidence when offered by either party.
(g) The names and addresses of all witnesses and a description of the exhibits shall be made a part of the record.
(h) There shall be no ex parte communication with the arbitrator, unless the parties and the arbitrator otherwise agree in advance of the communication. The arbitrator shall maintain the confidentiality of the arbitration and may make rulings to safeguard that confidentiality.
(i) The award shall be made promptly by the arbitrator and, unless otherwise agreed by the parties, no later than thirty days from the date of closing.
(j) Except as provided in subsection (k) of this section, the award of an arbitrator is binding on the parties to the grievance.
(k) The award of an arbitrator may be set aside by the circuit court of the county in which the arbitration hearing was held if the award was procured by corruption, fraud or an undisclosed conflict of interest, or if the arbitrator exceeded his or her authority.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.

ARTICLE 6A. GRIEVANCE PROCEDURE FOR STATE EMPLOYEES.

§29-6A-12. Mediation.
Upon the request of either party, the board may require 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.
(a) All disciplinary matters appealed to level four pursuant to the provisions of subsection (e), section four of this article, involving a dismissal, demotion or suspension exceeding twenty days shall be mediated prior to the hearing.
(b) Upon the request of the grievant or the employer, the board may require mediation of any grievance prior to a level three hearing. Additionally, upon the request of the grievant or the employer, or upon its own motion, the board may require mediation of any grievance appealed to level four. Any grievance mediated as the result of a party's request shall be mediated within ten days following receipt of the request.
(c) Mediation shall be conducted by a hearing examiner of the board who has received mediation training. All of the information that is provided by parties during mediation is and shall remain confidential. Mediators A mediator may not be called as witnesses a witness to provide testimony in unresolved grievances that proceed to a grievance hearing. and any A hearing examiner involved in a mediation process who serves as a mediator may not hear the grievance or be consulted otherwise participate in any manner regarding the merits of the grievance.
§29-6A-13. Arbitration.
(a) Prior to the level four hearing, the grievant shall be entitled to submit the grievance to arbitration with the costs to be shared equally by the parties. The grievance shall be submitted to an arbitrator mutually agreed to by the parties.
(b) The arbitrator shall set the location, date and time of the hearing, in consultation with the parties. The arbitrator may order such discovery as the arbitrator considers necessary to a full and fair exploration of the issues in dispute, consistent with the expedited nature of arbitration.
(c) An arbitration hearing shall be opened by: (1) Recording the date, time and place of the hearing; (2) recording the presence of the arbitrator, the parties, their representative, if any; and (3) receiving into the record the grievance and the response of the employer, if any. The arbitrator may ask the parties for statements to clarify the issues involved.
(d) The parties shall bear the same burdens of proof and burdens of producing evidence as would apply if their claims and counterclaims had been brought in circuit court. The arbitrator shall be the judge of the relevance and materiality of the evidence offered, and conformity to legal rules of evidence shall not be necessary.
(e) Witnesses for each party shall submit to direct and cross examination as approved by the arbitrator. The arbitrator may exclude witnesses, other than a party, from the hearing during the testimony of another witness. The arbitrator may also decide whether any person who is not a witness or a party may attend the hearing.
(f) With the exception of the rules regarding the allocation of the burdens of proof and going forward with the evidence, the arbitrator may establish the rules for the conduct of the proceedings and exercise that authority to afford a full and equal opportunity to all parties to present any evidence that the arbitrator deems material and relevant to the resolution of the dispute. The arbitrator may receive documentary and other forms of physical evidence when offered by either party.
(g) The names and addresses of all witnesses and a description of the exhibits shall be made a part of the record.
(h) There shall be no ex parte communication with the arbitrator, unless the parties and the arbitrator otherwise agree in advance of the communication. The arbitrator shall maintain the confidentiality of the arbitration and may make rulings to safeguard that confidentiality.
(i) The award shall be made promptly by the arbitrator and, unless otherwise agreed by the parties, no later than thirty days from the date of closing.
(j) Except as provided in subsection (k) of this section, the award of an arbitrator is binding on the parties to the grievance.
(k) The award of an arbitrator may be set aside by the circuit court of the county in which the arbitration hearing was held if the award was procured by corruption, fraud or an undisclosed conflict of interest, or if the arbitrator exceeded his or her authority.

NOTE: The purpose of this bill is to revise mediation procedures and to authorize arbitration as an option for education and state employee grievance procedures.

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

§§18-29-10a and 29-6A-13 are new; therefore, strike-throughs and underscoring have been omitted.