H. B. 2932
(By Delegates Barker, Eldridge, Argento, Mahan,
Staton, Beane and Tucker)
[Introduced March 8, 2005; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §18-29-4 of the Code of West Virginia,
1931, as amended; and to amend and reenact §29-6A-4 of said
code, all relating to providing for binding arbitration for
state employees, employees of boards of education and
employees of county boards of health; and providing for
optional mediation.
Be it enacted by the Legislature of West Virginia:
That §18-29-4 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §29-6A-4 of said code be amended
and reenacted, all to read as follows:
CHAPTER 18. EDUCATION.
ARTICLE 29. GRIEVANCE PROCEDURE.
§18-29-4. Procedural levels and procedure at each level.
(a) Level one.
(1) Before a grievance is filed and within fifteen days following the occurrence of the event upon which the grievance is
based, or within fifteen days of the date on which the event became
known to the grievant or within fifteen days of the most recent
occurrence of a continuing practice giving rise to a grievance, the
grievant or the designated representative shall schedule a
conference with the immediate supervisor to discuss the nature of
the grievance and the action, redress or other remedy sought.
The conference with the immediate supervisor concerning the
grievance shall be conducted within ten days of the request
therefor, and any discussion shall be by the grievant in the
grievant's own behalf or by both the grievant and the designated
representative.
(2) The immediate supervisor shall respond to the grievance
within ten days of the conference.
(3) Within ten days of receipt of the response from the
immediate supervisor following the informal conference, a written
grievance may be filed with said supervisor, or in the case where
the grievance involves an event under the jurisdiction of a state
institution of higher education, the grievance shall be filed with
said supervisor and the office of personnel, by the grievant or the
designated representative on a form furnished by the employer or
agent.
(4) The immediate supervisor shall state the decision to such
filed grievance within ten days after the grievance is filed.
(b) Level two.
Within five days of receiving the decision of the immediate
supervisor, the grievant may appeal the decision to 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 for level two and
level three hearings in accordance with the provision of section
one, article five, chapter twenty-nine-a of this code, and may
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. (c) If not resolved after Level II,
grievances, including a suspension or dismissal, may be mediated
under the provisions of section ten of this article upon the
request of the grievant or the employer.
(1) (d) If the grievant is not satisfied with the action taken
by the chief administrator or if appealed to level three, if
mediation is unsuccessful, the action taken by the governing board,
within five days of the written decision the grievant may request,
in writing, on a form furnished by the employer, that the grievance
be submitted to a hearing examiner as provided for in section five
of this article, such 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 five days of the written decision of the chief administrator
or, in the event of mediation, within five days of the completion
of mediation, the grievant may request binding arbitration.
(e) Where a grievance proceeds to binding arbitration, the
grievant and the employer shall be provided a panel of three
arbitrators experienced in employment law. The arbitrators shall
be selected from either the West Virginia State Bar, the FMCS or
AAA. The grievant and the employer shall each strike one
arbitrator from the panel and the remaining arbitrator shall hear
the grievance in accordance with the provisions of this article.
The employer shall bear the costs associated with the arbitration,
except that the grievant or the grievant's legal representative
shall pay fifty dollars toward the costs of arbitration before the
commencement of arbitration. The arbitration shall be held at a
location agreed upon by the parties: Provided, That should the
grievant object to an arbitration being held at a location where
the employer conducts business, another site shall be selected for
the arbitration. A decision rendered by the arbitrator is final
and binding on the parties and neither party has a right to appeal.
Enforcement of the decision may be compelled through procedures
provided in section seven of this article.
(2) (f) 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 final upon the parties and shall be
enforceable in circuit court.
(4) (g) All information and data generated by the board and in
its custody relative to level four decisions and copies of such
decisions shall be provided at reasonable cost to any individual
requesting it.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICES.
ARTICLE 6A. GRIEVANCE PROCEDURE FOR STATE EMPLOYEES.
§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 director of the
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 director of the division of
personnel or his or her designee may appear at 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 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.
The hearing shall be conducted in accordance with section six of
this article within fifteen days following the request for the
hearing: Provided, That the hearing may be held within thirty days
following the request, or within a time that is mutually agreed
upon by the parties, if the hearing examiner gives reasonable
cause, in writing, as to the necessity for the delay. A copy of
the appeal shall be served by the grievant upon the director of the
division of personnel. The director of the division of personnel,
or his or her designee, may appear at 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 is final upon the parties and is enforceable
in circuit court.
(c) If not resolved after Level II, grievances, including a
suspension or dismissal, may be mediated under the provisions of
section twelve of this article upon the request of the grievant or
the employer.
(d) If the grievant is not satisfied by the action taken by
the administrator of the grievant's work location, facility, area
office, or other appropriate subdivision of the department, board,
commission or agency, or in the event mediation is unsuccessful,
then, within five days of the administrator's written decision or
within five days of the date mediation was completed, the grievant
may request in writing that the subject-matter of the grievance be
submitted for binding arbitration. In the event the grievant
requests binding arbitration, the grievant or his or her authorized
representative and the employer shall receive the names of three
arbitrators, experienced in public employment law. The names of
the arbitrators may be obtained from either of the following: (1)
The West Virginia State Bar; (2) the FMCS; or, (3) the AAA. The
grievant and the employer shall each strike one arbitrator from the panel and the remaining arbitrator will hear the grievance in
accordance with the provisions of this article. The employer shall
bear the costs associated with the arbitration except that the
grievant or his or her authorized representative must first pay
fifty dollars to the arbitrator before the commencement of
arbitration. The arbitration is held at a location agreed upon by
the parties: Provided, That should the grievant object to an
arbitration being held at a location where the employer conducts
business, another site must be selected for the arbitration. A
decision rendered by the arbitrator is final and binding on the
parties and neither party has a right to appeal. Enforcement of
the decision may be compelled through procedures provided in
section seven of this article.
(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 binding arbitration. The
expedited grievance shall be in writing and 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.
NOTE: The purpose of this bill is to eliminate Levels III and
IV of the state employees' and state board of education's grievance
process and, instead, provide for binding arbitration. The bill
also provides for optional mediation at the request of the grievant
or employer.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.