EMPLOYEES GRIEVANCE BOARD
WV EDUCATION
& STATE
EMPLOYEES GRIEVANCE BOARD
FREQUENTLY ASKED QUESTIONS BY EMPLOYEES
Q: What laws and rules govern the grievance procedure?
A: For county boards of education employees the law is contained in W. Va. Code §§ 18-29-1 through 11. For state and higher education employees the law is contained in W. Va. Code §§ 29-6A-1 through 12. Prior to the 2001 amendment to W. Va. Code § 18B-2A-4(k), higher education employee grievances were processed under W. Va. Code § 18-29-1 et seq., the grievance procedure law applicable to the other public education employees. The Grievance Board has issued Procedural Rules, 156 C.S.R. 1, which can be obtained from any of our offices or at the following link: www.state.wv.us/admin/grievanc/rules/procrules.htm.
Q: After I file a grievance with the Grievance Board, can I talk to the Administrative Law Judge (ALJ) who has been assigned to decide my case?
A: No. Neither side can talk to the ALJ outside the presence of the other parties, or without all the other parties participating in the discussion. See Procedural Rule 4.5.
Q: What should I do then, if I need the ALJ to do something in my grievance?
A: Make a written request or motion asking the ALJ to take whatever action you need taken. When ALJs receive written requests to take action, prehearing telephone conference calls are frequently scheduled to discuss the request or motion. Procedural Rule 4.4.1 contains a partial list of the many types of matters that can be considered in a prehearing conference.
Also, be sure to remember that when you file written requests or motions with the ALJ, you must send a copy of whatever you file to the employer and any other party. Likewise, the employer must send you a copy of what it sends to the ALJ or any other party.
Q: How do I subpoena witnesses?
A: You must make a written request to the Administrative Law Judge (ALJ) assigned to the case for subpoenas. The ALJ issues subpoenas to you and you are responsible for their service. The written request must include the full name and address of each person to be subpoenaed, together with a statement accepting responsibility for service and costs. To subpoena a document, a complete description of the document or item to be produced must be given, as well as the name and address of the person responsible for the document. The subpoenas may be served by any credible person over eighteen years of age, or you may have the Sheriff of the county in which the witnesses live serve them. You must advise all parties of subpoena requests at the time they are made. See Procedural Rule 4.6. & 4.6.1
Q: When is the deadline for requesting subpoenas?
A: By law subpoenas must be served at least five (5) days before the hearing, W. Va Code § 29A-5-1(b). Accordingly, subpoena requests should be submitted as soon as possible before the date of the hearing.
Q: What should I do to prepare for my hearing?
A
: You need to serve your subpoenas for any witnesses you intend to call well in advance of the hearing. You must provide the ALJ assigned to your case and the employer's representative with a list of your witnesses at least six days before the date of your hearing. You need to bring with you at least three (3) copies of all documents you want to introduce at the hearing. We discourage parties from waiting until the day of the hearing to make copies of documents. This wastes everyone’s time.Q: What will happen at my hearing?
A: The hearings before the Grievance Board's ALJs are intended to be as informal as possible; however, there are certain rules and procedures that must be followed. If your grievance is the result of disciplinary action against you, it is your employer's burden to prove the charges against you at the hearing. The employer will present its witnesses and evidence first. You will have an opportunity to cross-examine each employer witness and to present your evidence. If the grievance is not disciplinary, you will have the burden of proving your case. You will present your witnesses and evidence first, and your employer will have the opportunity to cross-examine each witness and present its evidence.
Q: Does the Grievance Board provide mediation services to try to resolve grievances?
A: Yes. The Grievance Board will provide a mediator free of charge The Board has the authority to require mediation upon the request of any party in certain cases. A Mediation Session can be scheduled even before a hearing is held at the lower levels of the procedure, i.e., level two (education cases) or level three (higher education and state employee cases). Mediation is strongly encouraged by the Grievance Board as a simple, speedy way to solve grievances between employees and employers. For more information, please read the Board's Mediation Notice.
Q: Is a level four hearing required?
A: No. If you have had a hearing at levels two and/or three and have presented all the evidence in support of your grievance, you may request that your grievance be decided "on the record" developed below.
Q: Must I file a written brief after my hearing?
A: No. It is your option whether to file a written brief, or proposed findings of fact and conclusions of law.
Q: When can I expect a decision?
A: The Board's goal is to issue every decision within thirty working days from the time the case is ready to be decided. During fiscal year 2004, 89% of all decisions were issued within thirty working days, and decisions were issued on average within sixteen working days. 97% of all decisions were issued within sixty working days.
Q: The grievance procedure law contains many time periods within which action must be taken, such as the filing of a grievance, the issuance of a decision, or filing an appeal of a decision to the next level in the procedure. How do I count the days to comply with the various deadlines in the law?
A: First, "days" means working days, meaning that Saturdays, Sundays, official holidays or school closing are not counted. W. Va. Code §§ 18-29-3(c) and 29-6A-3(c). Second, the day the act or event occurs is not counted, and you start counting on the next working day. For example, the day the grievable event occurred is not counted. Likewise, the day the employer receives a grievance at level one, or an appeal to a higher step in the procedure, is not counted. Third, only days are counted, not hours or parts of days. W. Va. Code § 2-2-1(a) & (d). Fourth, the time limits in the procedure are 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. See W. Va. Code §§ 18-29-3(a)(1) and 29-6A-3(a)(1).