Grievance Evaluator Training

1. Grievance Evaluator Training WV Code § 6C-2-1, et. seq. June 16, 2009

2. What is A Grievance? A claim by an employee alleging a violation, a misapplication or a misinterpretation of the statutes, policies, rules or written agreements applicable to the employee including: (i) Any violation, misapplication or misinterpretation regarding compensation, hours, terms and conditions of employment, employment status or discrimination; (ii) Any discriminatory or otherwise aggrieved application of unwritten policies or practices of his or her employer;

3. What is A Grievance? (iii) Any specifically identified incident of harassment; (iv) Any specifically identified incident of favoritism; or (v) Any action, policy or practice constituting a substantial detriment to or interference with the effective job performance of the employee or the health and safety of the employee. W. Va. Code §6C-2-2(i)(1).

4. What is NOT a Grievance? It does not include any pension matter or other issue relating to public employees insurance in accordance with article sixteen, chapter five of this code, retirement or any other matter in which the authority to act is not vested with the employer. W. Va. Code §6C-2-2(i)(2).

5. Who Can File a Grievance? Must Be a Claim by an “Employee” An “employee” is defined as any person hired for permanent employment by an employer for a probationary, full- or part-time position. W. Va. Code §6C-2-2(e)(1).

6. When must a Grievance Be Filed? 15 Days

7. When must a Grievance Be Filed? Within fifteen days following the occurrence of the event upon which the grievance is based, or within fifteen days of the date upon which the event became known to the employee, or within fifteen days of the most recent occurrence of a continuing practice giving rise to a grievance, an employee may file a written grievance with the chief administrator stating the nature of the grievance and the relief requested and request either a conference or a hearing. The employee shall also file a copy of the grievance with the board. State government employees shall further file a copy of the grievance with the Director of the Division of Personnel. W. Va. Code §6C-2-4(a)(1).

8. Grievance Form See Exhibit C

9. Grievance Form The Grievance Form is created by the West Virginia Public Employees Grievance Board. It is the document that gives the employer notice of the actions the employee is grieving.

10. Conference v. Hearing A Grievant may choose to have either a conference or a hearing.

11. Conference v. Hearing Conference. -- The chief administrator shall hold a conference within ten days of receiving the grievance. A conference is a private, informal meeting between the grievant and the chief administrator to discuss the issues raised by the grievance, exchange information and attempt to resolve the grievance. The chief administrator may permit other employees and witnesses to attend and participate in a conference to reach a resolution. The chief administrator shall issue a written decision within fifteen days of the conference. W. Va. Code §6C-2-4(a)(2).

12. Conference v. Hearing Level one hearing. -- The chief administrator shall hold a level one hearing within fifteen days of receiving the grievance. A level one hearing is a recorded proceeding conducted in private in which the grievant is entitled to be heard and to present evidence; the formal rules of evidence and procedure do not apply, but the parties are bound by the rules of privilege recognized by law . The parties may present and cross-examine witnesses and produce documents, but the number of witnesses, motions and other procedural matters may be limited by the chief administrator. The chief administrator shall issue a written decision within fifteen days of the level one hearing. W. Va. Code §6C-2-4(a)(3).

13. Conference v. Hearing

14. West Virginia Code § 6C-2-3 (b)(1) The grievant prevails by default if a required response is not made by the employer within the time limits established in this article, unless the employer is prevented from doing so directly as a result of injury, illness or a justified delay not caused by negligence or intent to delay the grievance process.

15. West Virginia Code § 6C-2-3 (b)(1) 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. The examiner may modify the remedy to be granted to comply with the law and to make the grievant whole.

16. Harmon v. Fayette County Board of Educ. At a Default Hearing, it is presumed that the grievant prevailed at the lower grievance level – and the employer may assert that the remedy received by the grievant as a result of prevailing by default is “contrary to law” or “clearly wrong.”

17. What does that mean? 1. Creates apresumption of correctness on the merits in favor of the grievant. • It places a substantial burden on the Employer seeking to overturn the default. • Focuses the L-III Hearing on the legal correctness of the remedy. • Does not open proceedings to ancillary issues. Harmon v. Fayette County Bd. Of Educ., supra.

18. Parties to A Grievance “Party", or the plural, means the grievant, intervenor, employer. W. Va. Code § 6C-2-2(m). “Intervenor” Upon a timely request, any employee may intervene and become a party to a grievance at any level when the employee demonstrates 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. W. Va. Code § 6C-2-3(f).

19. Intervention Form See Exhibit D

20. Level 1 Record Conference: Not required to be recorded, but all documents admitted and the decision, agreement or report become part of the record. Hearings: All the testimony at a level one shall be recorded by mechanical means and all documents admitted and the decision, agreement or report become part of the record. W. Va. Code §6C-2-3(m).

21. Chief Administrator’s Decision Level one decisions shall be dated, shall be in writing setting forth the decision or decisions and the reasons therefor, and, unless the time frame is waived by all parties, shall be issued within fifteen days of the conference or hearing to the Board, the parties, and any representative(s) named in the grievance. If the grievant is denied the relief sought,the decision shall inform the grievant that an appeal must be filed with the Board within ten days of receipt, and shall include the name and address of the Board. 156CSR4.4

22. Who is the Chief Administrator The President of the College or University. As a hearing examiner, your role is to conduct the conference or hearing and to make a recommendation, in the form of a decision, to the President. It is the President who will ultimately make the decision on whether to grant or deny the grievance.

23. Procedure of Conducting Conference Make sure all parties have received a Notice of the Conference. Reasonable notice of a proceeding shall be sent at least five days prior to the proceeding to all parties and their representatives and shall include the date, time and place of the proceeding. W. Va. Code §6C-2-3(l).

24. Notice of Conference/Hearing See Exhibit E

25. Conference Procedure • Have everyone go around the room and introduce themselves. • The Evaluator should read the Grievance and the relief requested. • In non-disciplinary matters, the employee presents their side first. • If the grievance involves a disciplinary issue the employer present their side first. • If there is an intervenor, they typically present their side last. • Once all parties have presented their evidence, they may provide the hearing examiner with oral or written closing statements.

26. Hearing Procedure The West Virginia Public Employees Grievance Board has developed “Level One Hearing Guidelines” which are attached as Exhibit F. You should review those before conducting a hearing.

27. Hearing Procedure • Check recording device and explain how it will be used. • Go on the record: have each participant identify themselves; describe the grievance; note the date, time and location.

28. Hearing Procedure • Burden of proof: • If it’s not a disciplinary grievance, the burden of proof is on the grievant. • If it is a disciplinary grievant, the burden of proof is on the employer. • The standard of proof is the preponderance of evidence. Explain where burden of proof lies in this hearing. • The Burden of Proof is NEVER on the Intervenor.

29. Hearing Procedure Swear in all persons who will testify. Administering Oath: • Ask anyone who will be testifying to raise right hand. (Typically attorneys and/or grievant’s or intervenor’s representative should not be sworn.) • Do you swear or affirm that the testimony you are about to give in this proceeding is the complete truth? • Be sure to note on the record the names of all the individuals who have been sworn. • If witnesses are sequestered, excuse witnesses to a waiting area and admonish them that they should not discuss the case and specifically their testimony with the other witnesses.

30. Hearing Procedure • Hearing Examiner Opens The Proceedings: • Gives the case name and docket number this is also referred to as the “style of the case” • Reads the grievance and requested relief into the record. • Entertains any motions that have been filed.

31. Hearing Procedure • Opening Statements • In NON-DISCPLINARY PROCEEDINGS: • Grievant may give opening statement • Employer may give opening statement • Intervenor (if applicable) may give opening statement

32. Hearing Procedure • Grievant’s Case In Chief • Grievant’s Witnesses Directly Examined by Grievant • Employer Questions Grievant’s Witnesses (i.e., cross-examination) • Intervenor (if applicable) Questions Grievant’s Witnesses. • Grievant Re-Direct • Employer Re-Cross • Intervenor Re-Cross • This process continues until the witness has been fully examined • At any point, the Hearing Examiner may ask questions, however, he will need to give all parties an opportunity to address any questions, his/her question may have raised. • This process begins again with each of Grievant’s witnesses. • Once Grievant has called all of their witnesses they “REST”.

33. Hearing Procedure • Employer’s Case In Chief • Employer’s Witnesses Directly Examined by Employer • Grievant Questions Employers’ Witnesses (i.e., cross-examination) • Intervenor (if applicable) Questions Employer’s Witnesses. • Employer Re-Direct • Grievant Re-Cross • Intervenor Re-Cross • This process continues until the witness has been fully examined • At any point, the Hearing Examiner may ask questions, however, he will need to give all parties an opportunity to address any questions, his/her question may have raised. • This process begins again with each of Employers’ witnesses. • Once Employer has called all of their witnesses they “REST”.

34. Hearing Procedure • Intervenor Case In Chief • Directly Examined by Intervenor • Grievant Questions Intervenor’s’ Witnesses (i.e., cross-examination) • Employer Questions Intervenorr’s Witnesses. • Intervenor Re-Direct • Grievant Re-Cross • Employer Re-Cross • This process continues until the witness has been fully examined • At any point, the Hearing Examiner may ask questions, however, he will need to give all parties an opportunity to address any questions, his/her question may have raised. • This process begins again with each Intervenor’s witnesses. • Once Intervenor has called all of their witnesses they “REST”.

35. Hearing Procedure • The above process is reversed, meaning Employer goes first and Grievant second if it is a disciplinary proceeding. • Hint: The party with the “Burden of Proof” ALWAYS goes first.

36. Hearing Procedure • Closing Statements: • If Oral, grievant goes first, and is entitled to a brief rebuttal following respondent’s and intervenor’s closing statement. (Again, the Employer and Grievant are reversed if it is a disciplinary matter, with the Employer given the right for rebuttal). • If Written (aka, Proposed Findings of Fact and Conclusions of Law), agree upon date it must be submitted and by what method. The date agreed upon, if regular mail is used is the POSTMARK date.

37. Hearing Procedure • Be sure to put the agreed upon date on the record, along with the agreement to extend the timeline when the Chief Administrator’s decision is due. Usually I recommend that the following dates be determined and placed on the record at the hearing: • Date and method the Proposed Findings of Fact and Conclusions of Law will be submitted to the Hearing Examiner • Date the Hearing Examiner’s recommendation will be given to the President (aka Chief Administrator). • Date the Chief Administrator’s decision will be due.

38. Chief Administrator’s Decision Unless otherwise agreed by the parties, is due within 15 Days of the Conference or Hearing. W. Va. Code §6C-2-4(2)&(3).

39. Evidence What is Evidence? In law, various things presented in court for the purpose of proving or disproving a question under inquiry. Includes testimony, documents, photographs, maps and video tapes.

40. Evidence Evidence consists of:1. The sworn testimony of witnesses, on both direct and cross-examination, regardless of who called the witness; 2. The exhibits which have been received into evidence; and Any facts to which all the parties and/or their representatives have agreed or stipulated.

41. Evidence Arguments and statements by lawyers or representatives are not evidence. The lawyers and representatives are not witnesses. What they say in their opening statements, closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence; Questions and objections by lawyers and representatives are not evidence. Attorneys and representatives have a duty to their clients, grievants or interveners to object when they believe a question is improper under the rules of evidence; Testimony that has been excluded or stricken, or is not evidence and must not be considered.

42. Sometimes parties wish to offer as evidence, letters, policies, emails and other documents. There is basically a three part process you must observe when presented with this type of evidence.

43. Receiving and Admitting Documentary Evidence Steps to Receiving and Admitting Evidence 1. Mark the Exhibit: The Representative should ask you to mark the exhibit. This means that you indentify the exhibit beginning with the number 1 or letter A in sequential order. For Example, Grievant’s Exhibit 1 or Employer’s Exhibit A. You should always identify the exhibit with the party who is entering it and the next sequential number or letter.

44. Receiving and Admitting Documentary Evidence • Identify & Authenticate – Once the exhibit is marked the party should then have a witness identify the document. This simply means that they explain what the document is and how they are familiar with it. For example, this is the Written Warning I sent to Grievant. • Move or Offer or Admission – Once these steps are complete, the Party will ask for the Exhibit to be Admitted.

45. Receiving and Admitting Documentary Evidence • Your Role At this point you should ask if any party objects to the Exhibit being admitted. a. If there is no objection, you may admit. b. If there is an objection, you must decide based upon the objection whether is should be admitted (meaning that you will consider it as evidence) or not admitted (meaning it will not be considered as evidence).

46. Receiving and Admitting Documentary Evidence If you admit the document it becomes part of the evidence you may consider in reaching your recommendation. If you do not admit the document you may not consider it as evidence. However, once an item is marked, it is part of the record. You should retain a copy and continue numbering forward. Provided the grievance continues, it will be sent to the Grievance Board as part of the record. It will simply be noted as “not admitted”. See Exhibit G.

47. Motions A request asking a judge to issue a ruling or order on a legal matter. A motion is a written request to the court. When a party asks the court to take some kind of action in the course of grievance, other than resolving the entire case in a conference or hearing, the request is made in the form of a motion. Motions are often made before the hearing or conference to resolve procedural and preliminary issues. Normally, one side submits a motion, the other side submits a written response, and the court holds a hearing at which the parties give brief oral arguments. Then the court approves or denies the motion.

48. Motions 1. Timeliness. Timeliness is usually raised at Level I so as not to waive it. W. Va. Code §6C-2-3(c)(1). 2. Standing. This is a motion stating that the Grievant does not have a right to grieve this issue. 3. Inability to Grant Requested Relief. There are certain damages, for example, pain and suffering that cannot be granted as part of a grievance.

49. PRACTICAL HINTS

50. Prior to the Hearing/Conference • Review the applicable procedures. • Review the statement of grievance and supporting documents; • Be prepared to summarize the Statement of Grievance; • Determine whether the grievant or the respondent has the burden of proof; • Make notes of any questions that you would like to ask during the grievance • Review any policies or laws that are pertinent.