grievance evaluator training

Grievance Evaluator Grievance Evaluator TrainingTraining

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

What is A Grievance?What is A Grievance?A claim by an employee alleging a violation, a A claim by an employee alleging a violation, a

misapplication or a misinterpretation of the misapplication or a misinterpretation of the statutes, policies, rules or written agreements statutes, policies, rules or written agreements applicable to the employee including: applicable to the employee including:

(i) Any violation, misapplication or misinterpretation (i) Any violation, misapplication or misinterpretation regarding compensation, hours, terms and regarding compensation, hours, terms and conditions of employment, employment status or conditions of employment, employment status or discrimination; discrimination;

(ii) Any discriminatory or otherwise aggrieved (ii) Any discriminatory or otherwise aggrieved application of unwritten policies or practices of his application of unwritten policies or practices of his or her employer; or her employer;

What is A Grievance?What is A Grievance?

(iii) Any specifically identified incident of (iii) Any specifically identified incident of harassment; harassment;

(iv) Any specifically identified incident of (iv) Any specifically identified incident of favoritism; or favoritism; or

(v) Any action, policy or practice constituting a (v) Any action, policy or practice constituting a substantial detriment to or interference with the substantial detriment to or interference with the effective job performance of the employee or the effective job performance of the employee or the health and safety of the employee. W. Va. Code health and safety of the employee. W. Va. Code §6C-2-2(i)(1).§6C-2-2(i)(1).

What is NOT a Grievance?What is NOT a Grievance?

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

Who Can File a Grievance?Who Can File a Grievance?

Must Be a Claim by an “Employee”Must Be a Claim by an “Employee”An “employee” is defined as any An “employee” is defined as any

person hired for permanent person hired for permanent employment by an employer for a employment by an employer for a probationary, full- or part-time probationary, full- or part-time position. W. Va. Code §6C-2-2(e)(1).position. W. Va. Code §6C-2-2(e)(1).

When must a Grievance Be Filed?When must a Grievance Be Filed?

When must a Grievance Be Filed?When must a Grievance Be Filed?

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

Grievance FormGrievance Form

See Exhibit C

Grievance FormGrievance Form

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

Conference v. HearingConference v. Hearing

A Grievant may choose to have either A Grievant may choose to have either a conference or a hearing.a conference or a hearing.

Conference v. HearingConference v. HearingConference. -- Conference. -- The chief administrator shall hold The chief administrator shall hold

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

Conference v. HearingConference v. HearingLevel one hearing. -- Level one hearing. -- The chief administrator shall hold The chief administrator shall hold

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

Conference v. HearingConference v. Hearing

ConferenceConference HearingHearing• Held within 10 daysHeld within 10 days• Private Informal Private Informal MeetingMeeting• Exchange Exchange Information in an Information in an attempt to resolve attempt to resolve grievancegrievance• Written decision Written decision within 15 dayswithin 15 days

• Held within 15 daysHeld within 15 days• Private Recorded Private Recorded ProceedingProceeding• Evidence presentedEvidence presented• Witness presented Witness presented and subject to and subject to examinationexamination• Written decision Written decision within 15 days.within 15 days.

West Virginia Code § 6C-2-3 (b)(1)West Virginia Code § 6C-2-3 (b)(1)

The The grievant prevailsgrievant prevails by default if by default if a a required response is not made required response is not made by the employer within the time by the employer within the time limits established in this articlelimits established in this article, , unless the employer is prevented unless the employer is prevented from doing so directly as a result of from doing so directly as a result of injury, illness or a justified delay not injury, illness or a justified delay not caused by negligence or intent to caused by negligence or intent to delay the grievance process.delay the grievance process.

West Virginia Code § 6C-2-3 (b)(1)West Virginia Code § 6C-2-3 (b)(1)In making a determination regarding In making a determination regarding

the remedy, the hearing examiner the remedy, the hearing examiner shall presume the employee shall presume the employee prevailed on the merits of the prevailed on the merits of the grievance and shall determine grievance and shall determine whether the remedy is contrary to whether the remedy is contrary to law or clearly wrong. The examiner law or clearly wrong. The examiner may modify the remedy to be may modify the remedy to be granted to comply with the law and granted to comply with the law and to make the grievant whole.to make the grievant whole.

Harmon v. Fayette County Board of Educ.Harmon v. Fayette County Board of Educ.

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

What does that mean?What does that mean?1.1. Creates aCreates a presumptionpresumption of correctness of correctness

on the merits on the merits in favor ofin favor of the grievant. the grievant.2.2. It places a It places a substantial burdensubstantial burden on the on the

Employer seeking to overturn the default.Employer seeking to overturn the default.3.3. Focuses the L-III Hearing on the Focuses the L-III Hearing on the legal legal

correctnesscorrectness of the remedy. of the remedy.4.4. Does not open proceedings to Does not open proceedings to ancillaryancillary

issues.issues.

Harmon v. Fayette County Bd. Of Educ., supra.Harmon v. Fayette County Bd. Of Educ., supra.

Parties to A GrievanceParties to A Grievance

““Party", or the plural, means the grievant, Party", or the plural, means the grievant, intervenor, employer. W. Va. Code § 6C-2-intervenor, employer. W. Va. Code § 6C-2-2(m).2(m).

““Intervenor” Upon a timely request, any Intervenor” Upon a timely request, any employee may intervene and become a party employee may intervene and become a party to a grievance at any level to a grievance at any level when the employee when the employee demonstrates that the disposition of the action demonstrates that the disposition of the action may substantially and adversely affect his or may substantially and adversely affect his or her rights or property and that his or her her rights or property and that his or her interest is not adequately represented by the interest is not adequately represented by the existing parties. existing parties. W. Va. Code § 6C-2-3(f).W. Va. Code § 6C-2-3(f).

Intervention FormIntervention Form

See Exhibit D

Level 1 RecordLevel 1 Record

Conference:Conference: Not required to be recorded, Not required to be recorded, but all documents admitted and the but all documents admitted and the decision, agreement or report become part decision, agreement or report become part of the record.of the record.

Hearings:Hearings: All the testimony at a level one All the testimony at a level one shall be recorded by mechanical means shall be recorded by mechanical means and all documents admitted and the and all documents admitted and the decision, agreement or report become part decision, agreement or report become part of the record. W. Va. Code §6C-2-3(m).of the record. W. Va. Code §6C-2-3(m).

Chief Administrator’s DecisionChief Administrator’s DecisionLevel 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

Who is the Chief AdministratorWho is the Chief Administrator

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

Procedure of Conducting Procedure of Conducting ConferenceConference

Make sure all parties have received a Make sure all parties have received a Notice of the Conference.Notice of the Conference.

Reasonable notice of a proceeding shall Reasonable notice of a proceeding shall be sent be sent at least five days prior to the at least five days prior to the proceedingproceeding to all parties and their to all parties and their representatives and shall include the representatives and shall include the date, time and place of the date, time and place of the proceeding. W. Va. Code §6C-2-3(l).proceeding. W. Va. Code §6C-2-3(l).

Notice of Conference/HearingNotice of Conference/Hearing

See Exhibit E

Conference ProcedureConference Procedure1.1. Have everyone go around the room and Have everyone go around the room and

introduce themselves.introduce themselves.2.2. The Evaluator should read the Grievance and The Evaluator should read the Grievance and

the relief requested.the relief requested.3.3. In non-disciplinary matters, the employee In non-disciplinary matters, the employee

presents their side first.presents their side first.4.4. If the grievance involves a disciplinary issue the If the grievance involves a disciplinary issue the

employer present their side first.employer present their side first.5.5. If there is an intervenor, they typically present If there is an intervenor, they typically present

their side last.their side last.6.6. Once all parties have presented their evidence, Once all parties have presented their evidence,

they may provide the hearing examiner with they may provide the hearing examiner with oral or written closing statements.oral or written closing statements.

Hearing ProcedureHearing Procedure

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


1)1) Check recording device and explain Check recording device and explain how it will be used.how it will be used.

2)2) Go on the recordGo on the record: have each : have each participant identify themselves; participant identify themselves; describe the grievance; note the describe the grievance; note the date, time and location.date, time and location.


1)1) Burden of proofBurden of proof: : 1)1) If it’s not a disciplinary grievanceIf it’s not a disciplinary grievance, the burden , the burden

of proof is on the grievant. of proof is on the grievant. 2)2) If it is a disciplinary grievant, the burden of If it is a disciplinary grievant, the burden of

proof is on the employer.proof is on the employer.3)3) The standard of proof is the preponderance of The standard of proof is the preponderance of

evidence. Explain where burden of proof lies in evidence. Explain where burden of proof lies in this hearing.this hearing.

4)4) The Burden of Proof is NEVER on the The Burden of Proof is NEVER on the Intervenor.Intervenor.


SwearSwear in all persons who will testify. in all persons who will testify.Administering Oath:Administering Oath:1.1. Ask anyone who will be testifying to raise right hand. (Ask anyone who will be testifying to raise right hand. (Typically Typically

attorneys and/or grievant’s or intervenor’s representative should attorneys and/or grievant’s or intervenor’s representative should not be sworn.)not be sworn.)

2.2. Do you swear or affirm that the testimony you are about to give in Do you swear or affirm that the testimony you are about to give in this proceeding is the complete truth? this proceeding is the complete truth?

3.3. Be sure to note on the record the names of all the individuals who Be sure to note on the record the names of all the individuals who have been sworn.have been sworn.

4.4. If witnesses are sequestered, excuse witnesses to a waiting area and If witnesses are sequestered, excuse witnesses to a waiting area and admonish them that admonish them that they should not discuss the casethey should not discuss the case and and specifically their testimony with the other witnesses.specifically their testimony with the other witnesses.

1)1) Hearing Examiner Opens The Proceedings:Hearing Examiner Opens The Proceedings:a)a) Gives the case name and docket number this is Gives the case name and docket number this is

also referred to as the “style of the case”also referred to as the “style of the case”b)b) Reads the grievance and requested relief into the Reads the grievance and requested relief into the

record.record.c)c) Entertains any motions that have been filed.Entertains any motions that have been filed.


2)2) Opening StatementsOpening Statements

a)a) In NON-DISCPLINARY PROCEEDINGS:In NON-DISCPLINARY PROCEEDINGS:

i.i. Grievant may give opening statementGrievant may give opening statementii.ii. Employer may give opening statementEmployer may give opening statementiii.iii. Intervenor (if applicable) may give opening Intervenor (if applicable) may give opening

statementstatement


Hearing ProcedureHearing Procedure3)3) Grievant’s Case In ChiefGrievant’s Case In Chief

i.i. Grievant’s Witnesses Directly Examined by GrievantGrievant’s Witnesses Directly Examined by Grievantii.ii. Employer Questions Grievant’s Witnesses (i.e., cross-Employer Questions Grievant’s Witnesses (i.e., cross-

examination)examination)iii.iii. Intervenor (if applicable) Questions Grievant’s Witnesses.Intervenor (if applicable) Questions Grievant’s Witnesses.iv.iv. Grievant Re-DirectGrievant Re-Directv.v. Employer Re-CrossEmployer Re-Crossvi.vi. Intervenor Re-CrossIntervenor Re-Crossvii.vii. This process continues until the witness has been fully This process continues until the witness has been fully

examinedexaminedviii.viii. At any point, the Hearing Examiner may ask questions, At any point, the Hearing Examiner may ask questions,

however, he will need to give all parties an opportunity to however, he will need to give all parties an opportunity to address any questions, his/her question may have raised.address any questions, his/her question may have raised.

ix.ix. This process begins again with each of Grievant’s witnesses.This process begins again with each of Grievant’s witnesses.x.x. Once Grievant has called all of their witnesses they “REST”.Once Grievant has called all of their witnesses they “REST”.

4)4) Employer’s Case In ChiefEmployer’s Case In Chiefi.i. Employer’s Witnesses Directly Examined by EmployerEmployer’s Witnesses Directly Examined by Employerii.ii. Grievant Questions Employers’ Witnesses (i.e., cross-Grievant Questions Employers’ Witnesses (i.e., cross-

examination)examination)iii.iii. Intervenor (if applicable) Questions Employer’s Witnesses.Intervenor (if applicable) Questions Employer’s Witnesses.iv.iv. Employer Re-DirectEmployer Re-Directv.v. Grievant Re-CrossGrievant Re-Crossvi.vi. Intervenor Re-CrossIntervenor Re-Crossvii.vii. This process continues until the witness has been fully This process continues until the witness has been fully


however, he will need to give all parties an opportunity to however, he will need to give all parties an opportunity to address any questions, his/her question may have raised.address any questions, his/her question may have raised.

ix.ix. This process begins again with each of Employers’ This process begins again with each of Employers’ witnesses.witnesses.

x.x. Once Employer has called all of their witnesses they Once Employer has called all of their witnesses they “REST”.“REST”.


5)5) Intervenor Case In ChiefIntervenor Case In Chiefi.i. Directly Examined by IntervenorDirectly Examined by Intervenorii.ii. Grievant Questions Intervenor’s’ Witnesses (i.e., cross-Grievant Questions Intervenor’s’ Witnesses (i.e., cross-

examination)examination)iii.iii. Employer Questions Intervenorr’s Witnesses.Employer Questions Intervenorr’s Witnesses.iv.iv. Intervenor Re-DirectIntervenor Re-Directv.v. Grievant Re-CrossGrievant Re-Crossvi.vi. Employer Re-CrossEmployer Re-Crossvii.vii. This process continues until the witness has been fully This process continues until the witness has been fully


however, he will need to give all parties an opportunity however, he will need to give all parties an opportunity to address any questions, his/her question may have to address any questions, his/her question may have raised.raised.

ix.ix. This process begins again with each Intervenor’s This process begins again with each Intervenor’s witnesses.witnesses.

x.x. Once Intervenor has called all of their witnesses they Once Intervenor has called all of their witnesses they “REST”.“REST”.


6)6) The above process is reversed, The above process is reversed, meaning Employer goes first and meaning Employer goes first and Grievant second if it is a disciplinary Grievant second if it is a disciplinary proceeding.proceeding.

7)7) Hint: The party with the “Burden of Hint: The party with the “Burden of Proof” ALWAYS goes first.Proof” ALWAYS goes first.


8)8) Closing Statements:Closing Statements:1)1) If Oral, grievant goes first, and is entitled If Oral, grievant goes first, and is entitled

to a brief rebuttal following respondent’s to a brief rebuttal following respondent’s and intervenor’s closing statement. and intervenor’s closing statement. (Again, the Employer and Grievant are (Again, the Employer and Grievant are reversed if it is a disciplinary matter, with reversed if it is a disciplinary matter, with the Employer given the right for rebuttal).the Employer given the right for rebuttal).

2)2) If Written (aka, Proposed Findings of Fact If Written (aka, Proposed Findings of Fact and Conclusions of Law), agree upon date and Conclusions of Law), agree upon date it must be submitted and by what it must be submitted and by what method. The date agreed upon, if regular method. The date agreed upon, if regular mail is used is the POSTMARK date.mail is used is the POSTMARK date.


9)9) Be sure to put the agreed upon date on Be sure to put the agreed upon date on the record, along with the agreement to the record, along with the agreement to extend the timeline when the Chief extend the timeline when the Chief Administrator’s decision is due. Usually I Administrator’s decision is due. Usually I recommend that the following dates be recommend that the following dates be determined and placed on the record at determined and placed on the record at the hearing:the hearing:1)1) Date and method the Proposed Findings of Fact Date and method the Proposed Findings of Fact

and Conclusions of Law will be submitted to the and Conclusions of Law will be submitted to the Hearing ExaminerHearing Examiner

2)2) Date the Hearing Examiner’s recommendation Date the Hearing Examiner’s recommendation will be given to the President (aka Chief will be given to the President (aka Chief Administrator).Administrator).

3)3) Date the Chief Administrator’s decision will be Date the Chief Administrator’s decision will be due.due.


Chief Administrator’s DecisionChief Administrator’s Decision

Unless otherwise agreed by the Unless otherwise agreed by the parties, is due withinparties, is due within

of the Conference or Hearing. W. of the Conference or Hearing. W. Va. Code §6C-2-4(2)&(3).Va. Code §6C-2-4(2)&(3).

EvidenceEvidence

What is Evidence?What is Evidence?In law, various things presented in In law, various things presented in

court for the purpose of proving or court for the purpose of proving or disproving a question under inquiry. disproving a question under inquiry. Includes testimony, documents, Includes testimony, documents, photographs, maps and video tapes.photographs, maps and video tapes.

EvidenceEvidenceEvidence consists of:Evidence consists of:

1. The sworn testimony of witnesses, on 1. The sworn testimony of witnesses, on both direct and cross-examination, both direct and cross-examination, regardless of who called the witness;regardless of who called the witness;

2. The exhibits which have been received 2. The exhibits which have been received into evidence; and Any facts to which all into evidence; and Any facts to which all the parties and/or their representatives the parties and/or their representatives have agreed or stipulated.have agreed or stipulated.

EvidenceEvidenceArguments and statements by lawyers or Arguments and statements by lawyers or

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

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

Receiving and Admitting Receiving and Admitting Documentary EvidenceDocumentary Evidence

Steps to Receiving and Admitting EvidenceSteps to Receiving and Admitting Evidence1.1. Mark the Exhibit: The Representative Mark the Exhibit: The Representative

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


2.2. Identify & Authenticate – Once the Identify & Authenticate – Once the exhibit is marked the party should then exhibit is marked the party should then have a witness identify the document. have a witness identify the document. This simply means that they explain what This simply means that they explain what the document is and how they are the document is and how they are familiar with it. For example, this is the familiar with it. For example, this is the Written Warning I sent to Grievant.Written Warning I sent to Grievant.

3.3. Move or Offer or Admission – Once these Move or Offer or Admission – Once these steps are complete, the Party will ask for steps are complete, the Party will ask for the Exhibit to be Admitted.the Exhibit to be Admitted.


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


If you admit the document it becomes part of the If you admit the document it becomes part of the evidence you may consider in reaching your evidence you may consider in reaching your recommendation.recommendation.

If you If you do not do not admit the document you may not admit the document you may not consider it as evidence.consider it as evidence.

However, once an item is marked, it is part of the However, once an item is marked, it is part of the record. You should retain a copy and continue record. You should retain a copy and continue numbering forward. Provided the grievance numbering forward. Provided the grievance continues, it will be sent to the Grievance Board continues, it will be sent to the Grievance Board as part of the record. It will simply be noted as as part of the record. It will simply be noted as “not admitted”.“not admitted”.

See Exhibit G.See Exhibit G.

MotionsMotionsA request asking a judge to issue a ruling or order on a legal A request asking a judge to issue a ruling or order on a legal

matter. matter. A motion is a written request to the court. When a party 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 asks the court to take some kind of action in the course of grievance, other than resolving the entire case in a grievance, other than resolving the entire case in a conference or hearing, the request is made in the form of a conference or hearing, the request is made in the form of a motion. Motions are often made before the hearing or motion. Motions are often made before the hearing or conference to resolve procedural and preliminary issues. conference to resolve procedural and preliminary issues.

Normally, one side submits a motion, the other side submits a Normally, one side submits a motion, the other side submits a written response, and the court holds a hearing at which written response, and the court holds a hearing at which the parties give brief oral arguments. Then the court the parties give brief oral arguments. Then the court approves or denies the motion. approves or denies the motion.

MotionsMotions

1.1. TimelinessTimeliness. Timeliness is usually . Timeliness is usually raised at Level I so as not to waive it. W. raised at Level I so as not to waive it. W. Va. Code §6C-2-3(c)(1).Va. Code §6C-2-3(c)(1).2.2. StandingStanding. This is a motion stating . This is a motion stating that the Grievant does not have a right to that the Grievant does not have a right to grieve this issue.grieve this issue.3.3. Inability to Grant Requested ReliefInability to Grant Requested Relief. . There are certain damages, for example, There are certain damages, for example, pain and suffering that cannot be granted pain and suffering that cannot be granted as part of a grievance.as part of a grievance.

PRACTICAL HINTSPRACTICAL HINTS

Prior to the Hearing/ConferencePrior to the Hearing/Conference

1.1. Review the applicable procedures.Review the applicable procedures.2.2. Review the statement of grievance and Review the statement of grievance and

supporting documents; supporting documents; 3.3. Be prepared to summarize the Statement of Be prepared to summarize the Statement of

Grievance;Grievance;4.4. Determine whether the grievant or the Determine whether the grievant or the

respondent has the burden of proof;respondent has the burden of proof;5.5. Make notes of any questions that you would Make notes of any questions that you would

like to ask during the grievancelike to ask during the grievance6.6. Review any policies or laws that are pertinent.Review any policies or laws that are pertinent.

During the HearingDuring the Hearing

1.1. Keep the discussion focused on the statement of grievance; Keep the discussion focused on the statement of grievance; remember that you are in control of the hearing and the remember that you are in control of the hearing and the proceduresprocedures

2.2. Make sure that the grievant and Employer (respondent) Make sure that the grievant and Employer (respondent) address their statements and discussion to the evaluator - not address their statements and discussion to the evaluator - not to each other; this will help diffuse the potential for to each other; this will help diffuse the potential for arguments and unnecessary questioning and discussionarguments and unnecessary questioning and discussion

3.3. Accept and mark exhibits Accept and mark exhibits as they are presentedas they are presented; make sure ; make sure that copies are available for both parties during the hearing, that copies are available for both parties during the hearing, even if you have to take breaks and go off the recordeven if you have to take breaks and go off the record

4.4. When breaks are taken, prior to turning off the recorder, note When breaks are taken, prior to turning off the recorder, note that a break will be taken and state the reason for the delaythat a break will be taken and state the reason for the delay

5.5. Create an atmosphere of fairness and confidence; both Create an atmosphere of fairness and confidence; both greivant and respondent need to have the opportunity to tell greivant and respondent need to have the opportunity to tell their story in an atmosphere free of prejudicetheir story in an atmosphere free of prejudice

After the HearingAfter the Hearing

1.1. Recommending a decision on the case and Recommending a decision on the case and writing the report is the sole responsibility of writing the report is the sole responsibility of the evaluatorthe evaluator

2.2. Make determinations based on factMake determinations based on fact3.3. Use resources available to assist in making a Use resources available to assist in making a

determination, i.e., Series 8, Series 2, etc., determination, i.e., Series 8, Series 2, etc., that have been presented at the hearingthat have been presented at the hearing

4.4. Write a clear and concise recommendation to Write a clear and concise recommendation to the Chief Administratorthe Chief Administrator

5.5. Submit the written recommendation to the Submit the written recommendation to the President’s Designee within 10 days of the President’s Designee within 10 days of the hearing; hearing; priorprior to the 15 day deadline to the 15 day deadline

6.6. Return all documents and tapes with the Return all documents and tapes with the recommendation to Michelle Douglas or recommendation to Michelle Douglas or Stephanie Grey in Human Resources.Stephanie Grey in Human Resources.

Don’t ForgetDon’t Forget

1.1. The hearing is private unless the Grievant The hearing is private unless the Grievant requests otherwise;requests otherwise;

2.2. Notice of the Conference or Hearing must be sent Notice of the Conference or Hearing must be sent at least at least 5 days5 days before the conference or hearing. before the conference or hearing.

3.3. A Conference must be held within A Conference must be held within 10 days10 days of of filing of the grievance, unless extended by filing of the grievance, unless extended by written agreement.written agreement.

4.4. A Hearing must be held within A Hearing must be held within 15 days15 days of the of the filing of the grievance, unless extended by filing of the grievance, unless extended by written agreement.written agreement.

Don’t Forget (continued)Don’t Forget (continued)

5.5. The hearing must be recorded;The hearing must be recorded;6.6. Neither party may speak with the grievance Neither party may speak with the grievance

evaluator about the merits of the case unless the evaluator about the merits of the case unless the other party is present;other party is present;

7.7. A Notary must swear all witnesses;A Notary must swear all witnesses;8.8. The Hearing Examiner may only rely on evidence The Hearing Examiner may only rely on evidence

introduced at the hearing and may not speak to introduced at the hearing and may not speak to witnesses outside the hearingwitnesses outside the hearing

9.9. The employer bears the burden of proof in The employer bears the burden of proof in disciplinary cases, the grievant bears the burden of disciplinary cases, the grievant bears the burden of proof in all other cases. Whoever has the burden proof in all other cases. Whoever has the burden presents his case presents his case firstfirst..

Don’t Forget (continued)Don’t Forget (continued)

10.10. All witnesses may be cross-examined by the other All witnesses may be cross-examined by the other side A written decision must be mailed to each side A written decision must be mailed to each party within fifteen (15) days of the hearing, unless party within fifteen (15) days of the hearing, unless all parties agree (in writing or on the record) to all parties agree (in writing or on the record) to waive the fifteen day time limit. waive the fifteen day time limit.

11.11. The hearing examiner submits a written The hearing examiner submits a written recommendation to the President’s Designee recommendation to the President’s Designee ahead of the deadline for the Designee’s ahead of the deadline for the Designee’s consideration and decision.consideration and decision.

12.12. The grievance evaluator is in charge of the The grievance evaluator is in charge of the hearing.hearing.

13.13. The grievant does not have to appear at the The grievant does not have to appear at the hearing nor can he be compelled to testify.hearing nor can he be compelled to testify.

OVERVIEW OF THE OVERVIEW OF THE GRIEVANCE GRIEVANCE

PROCEDURE UNDER PROCEDURE UNDER WEST VIRGINIAWEST VIRGINIA

CODE §6C-2-1, et. seq.CODE §6C-2-1, et. seq.

When may file initial grievance at Level 1When may file initial grievance at Level 1

15 days from occurrence, knowledge of 15 days from occurrence, knowledge of occurrence, or last occurrence of continuing occurrence, or last occurrence of continuing practice practice [§6C-2-4-(a)(1)][§6C-2-4-(a)(1)]

2.2. Grievant’s RepresentativesGrievant’s Representatives

A.A. Right to be present at any Right to be present at any investigative or other meeting held investigative or other meeting held with employee for purpose of with employee for purpose of discussing disciplinary discussing disciplinary actionactionB.B. Right to be present at all levels of Right to be present at all levels of grievance process and speak on behalf grievance process and speak on behalf of employee, call witnesses, cross-of employee, call witnesses, cross-examine examine [§6C-2-3(g)(1)][§6C-2-3(g)(1)]c.c. No reprisals against participants No reprisals against participants [§6C-2-3 (h)][§6C-2-3 (h)]

3.3. Timelines and defaultTimelines and default

A.A. Calculation of “days” means working days.Calculation of “days” means working days.[§6C-[§6C-2-2(c)].2-2(c)].

B.B. Extensions of time - in writing or on the recordExtensions of time - in writing or on the record

C.C. Automatic scheduling of hearing or conference Automatic scheduling of hearing or conference if if grievant does not sign extension or can’t be grievant does not sign extension or can’t be locatedlocated

D.D. Timeliness - must be asserted at or before Timeliness - must be asserted at or before Level 2Level 2 [[§6C-2-3(c)(1)]§6C-2-3(c)(1)]

E.E. Default Default [§6C-2-3(b)][§6C-2-3(b)]

4.4. ConsolidationConsolidation

Consolidation and groups of similarly situated Consolidation and groups of similarly situated employees. --employees. -- (1) Grievances may be consolidated at any level (1) Grievances may be consolidated at any level by agreement of all parties or at the discretion of by agreement of all parties or at the discretion of the chief administrator or administrative law the chief administrator or administrative law judge. judge.

(2) Class actions are not permitted. However, a (2) Class actions are not permitted. However, a grievance may be filed by one or more grievance may be filed by one or more employees on behalf of a group of similarly employees on behalf of a group of similarly situated employees. Any similarly situated situated employees. Any similarly situated employee shall complete a grievance form employee shall complete a grievance form stating his or her intent to join the group of stating his or her intent to join the group of similarly situated employees. Only one employee similarly situated employees. Only one employee filing a grievance on behalf of similarly situated filing a grievance on behalf of similarly situated employees employees shall be requiredshall be required to participate in the to participate in the conference or level one hearing. conference or level one hearing.

What is the RecordWhat is the Record

Consists of the following:Consists of the following:1.1. The Grievance Form and any attachmentsThe Grievance Form and any attachments2.2. All Notices of Conferences or HearingsAll Notices of Conferences or Hearings3.3. All Motions and Responses All Motions and Responses 4.4. All Exhibits marked and presentedAll Exhibits marked and presented5.5. Any recorded testimony Any recorded testimony 6.6. The Chief Administrator’s final decision, The Chief Administrator’s final decision,

along with the Hearing Examiners along with the Hearing Examiners recommendation.recommendation.

QuestionsQuestions

grievance evaluator training

Documents