Current through Register Vol. XLI, No. 50, December 13, 2024
Section 156-1-6 - Level Three and Administrative Law Judge Authority Generally6.1. Assignment of Administrative Law Judge -- On proper filing of a level three grievance, the employer will be directed to submit the complete record of the lower level proceedings, including the transcript and all exhibits. If a level three hearing is requested, the parties will be directed to provide proposed hearing dates for the grievance hearing. Thereafter, the Board shall assign the matter to an administrative law judge, and all parties will be notified of the assignment. Once the parties are notified of the assignment, all documents and correspondence are to be delivered to the assigned administrative law judge as provided for in Rule 2.1.7.6.1.1. By agreement, the parties may decide to submit the case on the record developed below. If the administrative law judge assigned to the case agrees, the parties will then be given the option to submit proposed Findings of Fact and Conclusions of Law within a designated time period.6.2. Authority of Administrative Law Judge -- Each administrative law judge has the authority and discretion to control the processing of each grievance assigned such judge and to take any action considered appropriate consistent with the provisions of W. Va. Code § 6C-2-1, et seq.6.3. Prehearing Conferences -- As soon as practical after the grievance is assigned, the administrative law judge may conduct a prehearing conference with the parties or their representatives, in person or by telephone, to explore and resolve matters to expedite the grievance proceedings. Any pertinent matters involving the grievance can be discussed at that time. If the grievance has been filed directly to level three, as an expedited grievance, the administrative law judge may encourage the parties to mediate prior to a level three hearing. In the administrative law judge's discretion, such conferences will be recorded by mechanical means. The administrative law judge may issue oral or written orders reflecting the judge's decisions on the above matters and may conduct additional conferences when the need arises.6.4. Ex Parte Communication -- No person shall confer or correspond with any member of the Board, its administrative law judges, staff, or agents, concerning the merits or substance of a pending grievance, unless all parties to the grievance are present. 6.4.1. Any ex parte communication made to an administrative law judge concerning the merits or substance of a grievance shall be promptly disclosed to the other parties and an opportunity for rebuttal allowed.6.5. Subpoenas and subpoenas duces tecum -- Parties who wish to obtain subpoenas to require the attendance and testimony of witnesses, or subpoenas requiring the production of documents, must file a written motion or request for subpoenas with the administrative law judge assigned to the grievance. The written request should be submitted as soon as possible, so that the subpoena can be served at least five days before the scheduled hearing, as required by W. Va. Code § 29A-5-1(b). Subpoenas and subpoenas duces tecum will be issued in the discretion of the administrative law judge. The written request shall include the full name and address of each person to be subpoenaed (and for subpoenas duces tecum, a complete description of the document or item to be produced), together with a statement accepting responsibility for service, and for witness and mileage fees, if any. Witness and mileage fees shall be the same as are paid witnesses in the courts of this state. Subpoenas and subpoenas duces tecum may be enforced as provided in W. Va. Code § 29A-5-1(b). Administrative law judges shall have the authority to subpoena witnesses and documents for level three hearings in accordance with the provision of W. Va. Code § 29A-5-1(b), on the written request of any party to the grievance. 6.5.1. All parties shall provide the Board and all other parties with a list of the witnesses they intend to call at the level three hearing, whether subpoenaed or not, at least six days prior to the hearing.6.5.2. On motion made promptly, and in any event at or before the time specified in the subpoena for compliance, an administrative law judge may (1) quash or modify a subpoena or subpoena duces tecum if it is unreasonable and oppressive, or requires disclosure of privileged information or (2) condition denial of the motion on the advance payment of the reasonable cost of producing the books, papers, documents, or tangible things by the person on whose behalf the subpoena duces tecum is issued.6.6. Motions -- An application to an administrative law judge for an order must be by motion, in writing, unless made during a hearing, and must be filed and served on all parties promptly, as soon as the facts or grounds on which the motion is based become known to the moving party. A motion must be accompanied by a concise statement of its basis, both legal and factual. A motion must be served by the moving party on all other parties at the same time it is presented to the administrative law judge. On receipt of a written motion, all non-moving parties shall be given a reasonable time within which to file a written response. A certificate of service must accompany all motions. 6.6.1. If any party desires a hearing on a motion, the party shall make a request for a hearing at the time of the filing of the motion or response. An administrative law judge may, in the judge's discretion, hold a hearing on a motion if it is determined that a hearing is necessary to the development of a full and complete record on which a proper decision can be made. Such hearing may be conducted via telephone conference call, with all parties or their representatives participating.6.6.2. If a situation necessitating a motion arises immediately before or during a hearing, an oral motion may be made at the hearing. The moving party is to be prepared to proceed with the hearing if the motion is denied and the granting of the motion would have operated to delay the hearing.6.7. Continuances -- Any party may request a continuance of a hearing or other proceeding related to a grievance. Any party moving for a continuance must first attempt to contact the other parties to obtain an agreement to a continuance and to obtain five agreed dates for scheduling the hearing. Unless the requesting party demonstrates urgent circumstances, the request for a continuance will not be granted until the parties have agreed to a new hearing date. Requests for a continuance of a hearing will be granted on a showing of good cause. Unless time does not permit, a request for a continuance is to be made in writing to the administrative law judge and served on all parties of record. The administrative law judge may, on the judge's own motion, continue hearings or other proceedings.6.8. Remand and Transfer -- Any party may move to remand or transfer (return to a lower level of the grievance procedure) a grievance. Requests for remand or transfer of a grievance will be granted on a showing of good cause. The administrative law judge may, on the judge's own motion, remand or transfer a grievance for good cause.6.9. Recusal -- Any party may move to recuse (disqualify) the administrative law judge assigned to their grievance. Motions for recusal will be considered only in accordance with Rule 6.6 and will be granted only for good cause shown, in the discretion of the administrative law judge. A motion for recusal will not operate to continue automatically a hearing or other action on the grievance; provided, that any party may make a separate motion for a continuance until such time as a decision is made on the motion for recusal. 6.9.1. The administrative law judge's decision on a motion to recuse may be appealed to the chief administrative law judge, and if the chief administrative law judge is the judge sought to be recused, then the appeal shall be to the Director of the Board. This decision may then be appealed to the Chairperson of the Board by any party to the grievance, in accordance with Rule 6.6. An appeal shall operate to continue automatically any hearing or other action on the grievance. The decision of the Chairperson is final and not subject to further appeal or review prior to the disposition of the grievance.6.10. Errata Notice -- After the administrative law judge issues a final decision in a grievance, the Board retains jurisdiction to amend the decision to correct clerical errors by errata notice during the appeal period.6.11. Failure to State a Claim -- A grievance may be dismissed, in the discretion of the administrative law judge, if no claim on which relief can be granted is stated or a remedy wholly unavailable to the grievant is requested.6.12. Discovery -- The Board strongly encourages parties to participate in informal discovery prior to hearing. All parties must produce, prior to any hearing on the merits, any documents requested in writing by the grievant that are relevant and are not privileged. Further, if a party intends to assert the application of any statute, policy, rule, regulation, or written agreement or submits any written response to the filed grievance at any level, a copy is to be forwarded to the grievant and any representative of the grievant named in the grievance.6.12.1. The administrative law judge shall have authority to order such additional discovery, by way of deposition, interrogatory, document production, or otherwise, as considered necessary for a fair determination of the issues in dispute, consistent with the expedited nature of the grievance procedure. When a party serves another party with a discovery request, that request need not be filed with the Board.6.12.2. Parties shall attempt to resolve any discovery disputes among themselves before making a motion requesting an order compelling discovery. Any such motion must state that the parties have attempted to resolve the dispute, as well as the reason why the discovery is needed.6.13. Joinder -- Any party may move to join (or add as a party to the grievance) a person or entity necessary to grant complete relief in the grievance by filing a motion in accordance with Rule 6.6. The administrative law judge may, on the judge's own motion, join a person or entity necessary to grant complete relief in the grievance. The Division of Personnel must be joined and made a party in any state employee grievance involving classification or compensation matters.6.14. Consolidation -- When separate grievances filed by two or more employees contain identical or similar issues, they may be consolidated for hearing or decision by agreement of all parties; on motion of any party; or on the administrative law judge's or chief administrator's own motion.6.15. Failure to Pursue -- Once no action by a party has been taken on a grievance for two months, the Board will send all parties a letter, by certified mail, advising that the case will be dismissed from the docket of the Board twenty calendar days from the date of the letter, unless any party objects and can demonstrate, in writing, why the case should not be dismissed. If no timely written objection is received by the Board, an order of dismissal will be entered. If timely written objection is received by the Board, the grievance will be promptly scheduled for hearing or other action will be taken consistent with the orderly disposition of the grievance.6.16. Failure to Appear -- If neither the grievant nor the grievant's representative, if applicable, appears for a scheduled grievance hearing, the administrative law judge may issue a show cause order, requiring the grievant to show good cause for the grievant's absence, and advising that the failure to respond with a set time limit will result in the dismissal of the grievance for failure to prosecute. 6.17. Hearings in General -- Administrative law judges have full and complete authority to preside over and control all aspects of a hearing. If, in the determination of the administrative law judge, an individual present at a hearing is engaging in disruptive conduct, the administrative law judge may, in the judge's discretion, admonish the individual to cease such conduct; exclude the individual from the remainder of the hearing; adjourn the hearing; or take other action consistent with the orderly and timely disposition of the grievance. If, at the close of hearing, the parties wish to submit proposed Findings of Fact and Conclusions of Law, the request shall be granted, but unless there are exigent circumstances, the time frame for submission should be no greater than twenty days.6.18. Location -- All level two and three proceedings will be conducted in the Board's offices; provided that, on written motion in accordance with Rule 6.6 and for good cause shown, the administrative law judge may, in the judge's discretion, conduct the hearing in another location agreeable to the parties. In such cases, the party requesting the change in hearing site shall be responsible, at no expense to the Board, for providing the following: a suitable hearing room; a separate area for witnesses; such other facilities, equipment or personnel as necessary; and a certified copy of the transcript of the hearing and delivery of the same to the administrative law judge within a specific number of days after the hearing. However, the administrative law judge has the discretion to use the Board's recording equipment to record the testimony, at no cost to the parties.6.19. Final Disposition -- Grievances may be disposed of in three ways: by decision on the merits, nonappealable dismissal order, or appealable dismissal order. 6.19.1. Decisions on the merits will result in the granting or denying of a grievance, in whole or in part. All decisions are maintained by the Board and are electronically transmitted, monthly, to the Office of the Secretary of State, Capitol Complex, Charleston, West Virginia 25305. Decisions on the merits are appealable to the Kanawha County Circuit Court.6.19.2. Nonappealable dismissal orders may be based on grievances dismissed for the following: settlement; withdrawal; and, in accordance with Rule 6.15, a party's failure to pursue.6.19.3. Appealable dismissal orders may be issued in grievances dismissed for all other reasons, including, but not limited to, failure to state a claim or a party's failure to abide by an appropriate order of an administrative law judge. Appeals of any cases dismissed pursuant to this provision are to be made in the same manner as appeals of decisions on the merits.6.20. Appeals to Circuit Court -- In every matter appealed to circuit court, the appealing party shall serve a copy of the appeal petition on the Board as required by W. Va. Code § 29A-5-4(b), and will provide the Board with the civil action number so that the certified record can be properly filed with the circuit court. The party prevailing on the appeal shall furnish the Board with a copy of the final decision of the circuit court and any accompanying order within twenty days of its receipt.6.21. Advisory Opinions --The Board will, under no circumstances, issue an advisory opinion, i.e., an opinion on an issue not directly raised before the Board in a grievance.6.22. Registration of Employee Organizations -- All labor unions or other organizations representing West Virginia education or state employees before the Board shall register at the Board's main office in Charleston. The Employee Organization Registration Form may be obtained at the Board's offices or on the Board's website.6.23. Interpreter Appointment -- In accordance with the requirements of W. Va. Code § 5-14A-5, if a hearing impaired person makes a request for an interpreter, the Board, at its own expense, shall appoint an interpreter to interpret the proceeding to the hearing impaired person or to interpret the hearing impaired person's testimony, or both.