Current through Register Vol. XLI, No. 50, December 13, 2024
Section 81-8-4 - Grievance Procedure Generally4.1. A grievance must be filed within the times specified in section four of this rule and shall be processed as rapidly as possible. The number of days indicated at each level specified in section four of this rule shall be considered as the maximum number of days allowed and, if a decision is not rendered at any level within the prescribed time limits, the grievant may appeal to the next level: Provided, That the specified time limits shall be extended whenever a grievant is not working because of accident, sickness, death in the immediate family or other cause necessitating the grievant to take personal leave from his or her employment, or by agreement of all parties.4.2. If the Superintendent or his or her designee or the grievant intends to assert the application of any federal statute, administrative rule, federal regulation or written agreement or submits any written response to the filed grievance at any level, the citation thereof shall be forwarded to the grievant and any representative of the grievant named in the filed grievance or the Superintendent. Any documents submitted and the grievant's response thereto, if any, shall become part of the record. Failure to assert such statute, policy, rule, regulation, or written agreement at any level shall not prevent the subsequent submission thereof in accordance with the provisions of this subsection.4.3. The grievant may file the grievance at the level vested with authority to grant the requested relief if each lower administrative level agrees in writing thereto. In the event a grievance is filed at a higher level, the State Police shall provide copies to each lower administrative level. Provided, in matters of discipline, all grievances shall begin at level three and be filed directly to the office of the Superintendent.4.3.1 In matters of discipline resulting in a letter of reprimand, a member may grieve the action by either of the following:4.3.1.a. The member may submit a written dissent which will be attached to the letter of reprimand and placed in the member's personnel file; or4.3.1.b. The member may request a level three hearing.4.4. A member may withdraw a grievance at any time by notice, in writing, to the level wherein the grievance is then current. If more than one member is named as grievant in a particular grievance, the withdrawal of one member shall not prejudice the rights of any other member named in the grievance. In the event a grievance is withdrawn or a member withdraws from a grievance, the Superintendent or his or her designee, shall notify in writing each lower administrative level.4.5. Grievances may be consolidated at any level by agreement of all parties. 4.6 A grievant may be represented by any person or persons designated by the grievant. At the request of the grievant, such person or persons may be present, starting at levels three and four of the procedure: Provided, that at levels one and two of such grievance, as set forth in section 5.1 of this rule, a grievant may have no such representative. Employer may, likewise, only be represented at levels three and four.4.7. If a grievance is filed which cannot be resolved within the time limits set forth in section four of this rule prior to the end of the grievant's employment term, the time limit set forth in said section shall be reduced as agreed to in writing by both parties so that the grievance procedure may be concluded within ten days following the end of the employment term or an otherwise reasonable time.4.8. No reprisals of any kind shall be taken by the Superintendent or his or her designee against any interested party, or any other participant in the grievance procedure by reason of such participation. A reprisal constitutes a grievance, and any person held to be responsible for reprisal action shall be subject to disciplinary action.4.9. Written decisions rendered at all levels of the grievance procedure shall be dated, shall set forth the decision or decisions and the reasons therefor, and shall be transmitted to the grievant and any representative at levels 3 or 4 named in the grievance within the time prescribed.4.10. Once a grievance has been filed, supportive or corroborative evidence may be presented at any conference or hearing conducted pursuant to the provisions of this rule. Whether evidence substantially alters the original grievance and renders it a different grievance is within the discretion of the grievance evaluator at the level wherein the new evidence is presented. If the grievance evaluator rules that the evidence renders it a different grievance, the party offering the evidence may withdraw same, the parties may consent to such evidence, or the grievance evaluator may decide to hear the evidence or rule that the grievant must file a new grievance. The time limitation for filing the new grievance shall be measured from the date of such ruling.4.11. Any change in the relief sought by the grievant shall be consented to by all parties or may be granted at level four within the discretion of the hearing examiner.4.12. Forms for filing grievances, giving notice, taking appeals, making reports and recommendations, and all other necessary documents shall be made available by the immediate supervisor to any member upon request. Such forms shall include information as prescribed by the Superintendent. The grievant shall have access to State Police equipment for purposes of preparing grievance documents subject to the reasonable rules of the employer governing the use of such equipment.4.13. Notwithstanding the provisions of W. Va. Code § 6-9A-3, or any other provision relating to open proceedings, all conferences and hearings pursuant to this rule shall be conducted in private except that, upon the grievant's request, conferences and hearings at levels two and three shall be open to employees of the grievant's immediate office or work area. Within the discretion of the hearing examiner, conferences and hearings may be public at level four.4.14. No person shall confer or correspond with a hearing examiner regarding the merits of the grievance unless all parties to the grievance are notified and agree thereto.4.15. Grievances shall be processed during regular working hours. Attempts shall be made to process the grievance in a manner which does not interfere with the normal operation of the State Police.4.16. The grievant or the member selected by a grievant to represent him or her in the processing of a grievance through this procedure, or both, shall be granted necessary time off during working hours for the grievance procedure without loss of pay and without charge to annual or compensatory leave credits. In addition to actual time spent in grievance conferences and hearings, the grievant or the grievant's representative, or both, shall be granted time off during working hours, not to exceed four hours per grievance, for the preparation of such grievance without loss of pay and without charge to annual or compensatory leave credits. However, it shall be understood by all parties that the first responsibility of any member is the work assigned by the State Police to the member. Grievance preparation and representation activities by a member shall not seriously affect the overall productivity of the member. Members and other employees submitting complaints or grievances, who are involved in complaint and grievance investigations, and who are participating in complaint and grievance meetings and proceedings may do so during working hours without loss of pay and without charge to accumulated leave, after requesting permission from their immediate supervisor to do so, which permission shall not be unreasonably withheld.4.17. The aggrieved member, the State Police, and representatives of both shall have the right to call, examine and cross-examine witnesses who are employees of the State Police against which the grievance is lodged and who have knowledge of the facts at issue.4.18. Both parties may produce witnesses other than employees of the State Police against which the grievance is lodged, and such witnesses shall be subject to examination and cross-examination.4.19. Should the Superintendent or his or her designee cause a conference or hearing to be postponed without adequate notice to members and/or other employees who are scheduled to appear during their normal workday, they will not suffer any loss in pay for work time lost.4.20. Any grievance evaluator may be excused from participation in the grievance process for reasonable cause, including, but not limited to, conflict of interest or incapacitation, and in such case the grievance evaluator at the next higher level shall designate an alternative grievance evaluator if such is deemed reasonable and necessary.4.21. No less than one year following resolution of a grievance at any level, the grievant may request in writing to have removed any record of the grievant's identity from any file kept by the State Police.4.22. Procedures:4.22.1. The State Police grievance coordinator shall be responsible for the coordination of grievance procedures. Such coordination shall include the training of supervisors in grievance procedures, providing notification to the Superintendent of filed grievances and their progression and other grievance management functions as required to ensure administrative compliance with this rule.4.22.2. The grievance coordinator shall maintain and control finalized grievance records within the security of its files and will take necessary precautions to ensure controlled access to sensitive grievance records and documents.4.22.3. First level supervisors receiving a grievance form shall acknowledge receipt by noting the time, date and name of the person receiving the grievance and shall immediately forward a copy of the grievance to the grievance coordinator.4.22.4. The supervisor responsible for administering the grievance procedure at each level shall furnish the original grievance form and the original copy of the written decision to the member and will forward a copy of the grievance form and decision to the grievance coordinator. The supervisor administering the grievance procedure shall NOT retain a record of the grievance or the decision.4.23. The number of grievances filed against the Superintendent or his or her designee, or by an employee shall not, per se, be an indication of the Superintendent's or his or her designee's or such employee's job performance.4.24. The Superintendent may appeal a level four decision on the grounds that the decision (1) was contrary to law or lawfully adopted rule or written policy of the employer, (2) exceeded the hearing examiner's statutory authority, (3) was the result of fraud or deceit, (4) was clearly wrong in view of the reliable, probative, and substantial evidence on the whole record, or (5) was arbitrary or capricious or characterized by abuse of discretion.