NEW GRIEVANCE PROCEDURE

May 3, 2007

Over the past few years there has been dissatisfaction by state employees with the grievance procedure. As a result of this dissatisfaction, a study was commissioned by the legislature and conducted by professors from Marshall and WVU. After this study was concluded, the Governor appointed a commission to address problems with the procedure and recommend legislation to improve it.

Represented on the commission were appointees from the Senate, House of Delegates, public employers, Chamber of Commerce, public employee unions and education employee organizations. Specifically, there were representatives of the AFL-CIO, AFSCME, CWA and the WVEA. These representatives worked together to make certain the bill produced a streamlined effective procedure to protect employee rights. While the bill is not perfect, it is an improvement because it will allow grievants to get through the process in an expedited fashion.

Below is an outline of the major provisions of the bill including the new steps for the grievance procedure:

Important Provisions

• Combines the separate procedures for state employees and public school employees into one unified procedure in Chapter Six of the WV Code 6C-2-1 et seq.
• The new title is West Virginia Public Employees Grievance Board and the Board consists of the following:
  • One person representing the largest labor organization in the state.
  • One person representing an education employee organization.
  • One employer representative from the executive branch.
  • One employer representative from secondary or higher education.
  • One citizen member who is not engaged in public or education employment.
• The new board takes effect July 1, 2007. The employment of all existing administrative law judges ends at that time and the ALJ positions will be refilled by the new board. Present employees may reapply for their positions.
• Creates a system of data collection to keep track of the number of grievances filed at each level and how they were resolved. This information will help drive future revisions to the procedure.

Definitions

"Chief Administrator"

• For State employees this will usually be the Agency Secretary or Commissioner.
• For higher education employees this will generally be the president of the institution.
  

"Discrimination, Harassment and Favoritism"

• These terms no longer have separate definitions but they are set forth in the definition of a "Grievance."

Level One

• A grievance must be filed within fifteen days of the occurrence of the event that the grievance is based.
• The grievance must be filed with the chief administrator stating the nature of the grievance and relief requested.
• An additional copy of the grievance must be filed with the Grievance Board for data collection.
• The employee may choose to hold a conference or a hearing before the chief administrator. A conference is less formal and does not involve testimony of witnesses, etc.
• The hearing or conference must be held within ten days of receipt of the grievance.
• A written decision must be issued within fifteen days of the conference or hearing.

Appeal from Level One

• If the grievant is not satisfied with the level one decision, it may be appealed to level two. If both the grievant and
  the chief administrator agree, level two may be skipped and the grievance may go directly to level three.
• Employees who are suspended without pay, dismissed, or demoted may file their complaint originally at level III.

Level Two - Alternative Dispute Resolution (ADR)

• Level two provides an opportunity for the parties to reach an agreement to settle the grievance with the aid of a mediator.
• An appeal must be filed with the grievance board within ten days of receiving an adverse decision.
• Mediation can be conducted by a trained employee of the Grievance Board or by a private mediator if both parties agree and split the cost.
• The Grievance Board must schedule the mediation within twenty days of receiving the request.
• Any agreement reached must be reduced to writing within fifteen days and the parties are bound by it.
• If both parties agree, they can use a new process called Mediation/Arbitration (Med-Arb). If the parties cannot reach an agreement, the Mediator becomes an Arbitrator and issues a final order. Both parties must agree in advance to be bound by the decision and to waive any right to appeal. If this process is successful it could lead to binding arbitration.

Appeal from Level Two

• If the parties cannot reach agreement, the mediator must provide the parties with a written evaluation of the issues involved as well as a scheduling and discovery order for level three.
• Within ten days of receipt of the report of unsuccessful resolution, the grievant may file a written appeal with the employer and the Grievance Board requesting a hearing before an Administrative Law Judge.

Level Three

• Upon receipt of the written appeal, the ALJ must contact the parties regarding the date of the hearing as well as other procedural deadlines.
• Within thirty days following the hearing, the ALJ must issue a written decision to all parties.

Appeal to Circuit Court

• Either party may appeal the decision of the ALJ to the Circuit Court. All appeals are heard in Kanawha County.
• The appeal must be filed within thirty days of receipt of the ALJ's decision.

General Rules

• "Days" means working days and does not include weekends, holidays, or any days the work place is closed by the chief administrator.
• Untimeliness - Any claim by the employer that the grievance was not filed on time must be asserted before level two.

The grievance procedure was significantly shortened.  We also obtained the rights for employees to be represented in meetings that could lead to discipline and we strengthened the default provision for employees to prevail when the employer meets their timeline.
AFSCME Council 77 Executive Director Ed Hartman, who served on the commission, said, "It took a significant effort to make sure this bill turned out to be positive for all public employees. We worked closely with the representatives of WVEA and CWA to share information and stick together on each others issues. This bill is a great example of what can be done when labor organizations work in unity for a common goal."

SB 442 contains the language that changes the grievance process. This bill now makes the process the same for all state and education employees as well as higher education employees. To find a copy of the enrolled bill click here.