Employee Relations

DISCIPLINARY PROCEDURES

 

DEFINITION
Disciplinary action consists of progressive steps taken when an employee does not meet the required performance standards and/or commits an offense contrary to the policies of the University. This action should be reasonable and timely and must be related to the severity of the offense. Discipline must be reviewed with the Director of Human resources prior to action.

PURPOSE

  • To ensure that discipline is fair and consistent.
  • To place the employee on notice regarding problems with performance and to allow the employee an opportunity to make improvements.

RESPONSIBILITY

  • The immediate supervisor and/or the head of the department is responsible for initiating disciplinary action; this includes meeting with the employee to discuss and establish goals and standards to be achieved.
  • In cases of discipline, the supervisor is to recommend the appropriate action; however, the Department of Human Resources will advise and assist.
  • The final approval to suspend or terminate any employee rests with the president or his/her designee.

 TYPES OF ACTIONS
Depending on the severity and the nature of the offense, any combination of the following actions may be taken.

Oral Counseling
  1. Initiated for minor offenses.
  2. Documentation should be kept in the employee's departmental file.
  3. Oral counseling records that are relevant and timely may be used in recommending suspension and/or termination.
Written Counseling
  1. If oral counseling does not correct the situation within a reasonable length of time, a supervisor may give the employee written counseling.
  2. When written counseling is issued, and the employee cannot or will not sign, a signature of a witness to the incident is to be obtained.
  3. Documentation must be forwarded to the Department of Human Resources to be included in the employee's personnel file.
Suspension
A suspension of one to 15 days may be initiated under the following conditions:
  1. Recurrence of habitual infractions for which the employee has received oral and/or written counseling; or
  2. A gross violation, without the prior benefit of either oral or written warning.
Discharge/Dismissal
An employee may be dismissed under the following conditions:
  1. Non-improvement in work performance after proper training and/or discipline by use of oral or written counseling;
  2. Gross violations for which the employee has recently been suspended; and/or
  3. Infractions involving violations without the benefit of oral or written counseling.
Offenses Requiring Immediate Suspension or Dismissal
Some infractions may warrant immediate suspension or dismissal, such as
  1. Theft of or malicious damage to university property;
  2. Gross insubordination, including willful and flagrant disregard of a legitimate order, threatening or striking a supervisor;
  3. Consumption of alcoholic beverages or improper use of narcotics while on duty, and appearing to work under the influence of alcohol or narcotics;
  4. Unauthorized use of firearms or explosives on university property;
  5. Conviction of a crime which could seriously affect the employee's work performance or the University;
  6. Deliberate falsification of employment application or other University records such as time cards, medical records, or any other dishonest acts committed for personal gain;
  7. Unauthorized occupation or use of University facilities;
  8. Obstruction or disruption of teaching, research, or administration;
  9. Physical abuse of persons on University property or at any University authorized function or event;
  10. Setting unauthorized fires;
  11. Absence for three consecutive work days without notification or reasonable cause for failure to notify;
  12. Stealing from fellow employees, the University, or others on University property;
  13. Immoral or indecent conduct on University property;
  14. Sexual harassment, assault or rape; and/or
  15. Fighting or threatening to fight on University premises or on University time.

PRE-SUSPENSION CONFERENCE
An employee who has been recommended by his/her supervisor to be suspended may request a pre-suspension conference. The purpose of this meeting is to provide an opportunity for the employee to present any additional information relating to the incident or action under review as follows:

  1. A request must be made to the Department of Human Resources for a pre-suspension conference within twenty-four (24) hours from the time the employee has been notified of the recommendation for suspension.
  2. The conference will be conducted by the Director of Human Resources within the next two working days. The employee may bring a representative to assist him/her during the conference.
  3. Information obtained during the conference will be presented to the president (or designee) for final written decision to uphold, modify, or repeal the recommended suspension.

PRE-TERMINATION CONFERENCE
An employee who has been recommended for termination may request a pre-termination conference, the purpose of which is to provide an opportunity for the employee to present any additional information relating to the incident or action under review.

  1. A request must be made to the Department of Human Resources for a pre-termination conference within twenty-four (24) hours from the time the employee has been notified of the recommendation.
  2. The conference will be conducted by the Director of Human Resources within the next two working days. The employee may bring a representative to assist him/her during the conference.
  3. All information obtained during the conference will be presented to the president (or designee) for a final written decision to uphold, modify, or repeal the recommendation.

GRIEVANCES
Grievances at Marshall University are governed by West Virginia State Code 29-6a. A complete copy of this portion of the State Code may be viewed on the Human Resource Services web site at http://www.marshall.edu/human-resources/poly/. A paper copy of the grievance statute may be obtained from Human Resource Services, 207 Old Main, Huntington campus. The material that follows is not policy itself but reflects policy as set forth in the West Virginia State Code. While every effort has been made to characterize the State Code accurately, persons contemplating or filing grievances are encouraged to view and read West Virginia State Code section 29-6a on the web or obtain a paper copy from Human Resource Services.

PURPOSE
The purpose of the statute is to provide a procedure for the equitable and consistent resolution of employment grievances raised by employees. A complaint alleging discrimination on the basis of race, creed, color, national origin, sexual orientation, sex, handicap, or age may optionally be directed to the Director of Equity Programs.

DEFINITION
A grievance is defined as any claim by one or more affected employees alleging a violation, a misapplication or a misinterpretation of the statutes, policies, rules, regulations or written agreements under which such employees work, including any violation, misapplication or misinterpretation regarding compensation, hours, terms and conditions of employment, employment status or discrimination; any discriminatory or otherwise aggrieved application of unwritten policies or practices of their employer; any specifically identified incident of harassment or favoritism; or any action, policy or practice constituting a substantial detriment to or interference with effective job performance or the health and safety of the employees. Excepted from the grievance process are issues related to pension matters, public employees insurance, retirement, or any other matter in which authority to act is not vested with the employer.

INFORMAL RESOLUTION
A grievance may be resolved by any informal means accepted in writing by all parties. Alternative Dispute Resolution (ADR) services are offered by Human Resource Services for grievances being appealed to Level Three (as set forth below). ADR is optional. If the parties agree to participate in ADR, they are asked to sign a waiver of the timeline for a mutually-agreed upon length of time not less than 30 working days. Information on ADR can be obtained from Human Resource Services or may be viewed over the web at http://www.marshall.edu/human-resources/poly/p2100.htm. The notes of the facilitator in the ADR process are confidential. Such facilitator may not testify in hearings at Level Three or Level Four about information specifically part of the ADR process, although individuals serving as ADR facilitators are not prevented from providing other testimony in subsequent hearings.

GRIEVANCE FORMS
A copy of the standard form for filing a statutory grievance, a copy of West Virginia State Code section 29-6a, and a chart showing the timelines for each step of the grievance process are available on request from Human Resource Services, 207 Old Main, 304.696.6455, human-resources@marshall.edu.

ELIGIBILITY
A statutory grievance may be filed by any employee on either full-time or part-time regular-status appointment. Grievances may be filed by individual employees or by groups of employees similarly situated.

STATEMENT OF GRIEVANCE
The standard grievance form should contain a brief but complete description of the issue involved, the date the alleged incident or violation occurred, references to specific policies alleged to have been misapplied, and the specific relief sought in the grievance. Once a written grievance is filed, its substance cannot be changed as it moves through the appeals process.

GRIEVANCE PREPARATION TIME
The grievant or an employee acting as representative, or both, shall be granted necessary time off during working hours for the grievance procedure without loss of pay and without charge to annual leave or compensatory time accruals. In addition to actual time spent in grievance conferences and hearings, the grievant or the employee representative, or both, shall be granted time off during working hours, not to exceed four hours per grievance, for the preparation of the grievance without loss of pay and without charge to annual leave or compensatory time accruals. However, the first responsibility of any state employee is the work assigned by the appointing authority to the employee. An employee may not allow grievance preparation and representation activities to seriously affect the overall productivity of the employee.

REPRESENTATION IN A GRIEVANCE
A grievant may have the assistance of a fellow employee, employee organization, legal counselor, or other person or persons designated as the grievant’s representative. At the request of the grievant, that person or persons may be present at any step of the procedure, provided, however, that at Level One a grievant may have only one representative.

PRIVACY OF GRIEVANCE CONFERENCES AND HEARINGS
All conferences and hearings 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 or, at the request of the grievant shall be public. Within the discretion of the hearing examiner, conferences and hearings may be public at Level Four.

DETERMINING DEADLINES
When calculating the number of days to determine deadlines, Saturdays, Sundays, and University holidays are not counted. Also, the day a grievance or appeal is filed, or the day a hearing ends or a decision is rendered, is not counted as a "day" for computing the days left until the next action must take place.

DEFAULT
The grievant prevails by default if a grievance evaluator required to respond to a grievance at any level fails to make a required response in the time limits required in the statute, unless prevented from doing so directly as a result of sickness, injury, excusable neglect, unavoidable cause, or fraud. Any assertion by the employer that the filing of a grievance at Level One was untimely must be asserted by the employer on behalf of the employer at or before the Level Two conference. All grievance participants are encouraged to act within the specified time limits.

WAIVERS
The statue provides specific circumstances in which the deadline for conference or hearing can be waived. The deadline for conference at Level One or Level Two or hearing at Level Three, however, may be waived by mutual consent of the parties in writing. Any such waivers must be specifically approved in writing by the grievant or his/her representative, the respondent, and Human Resource Services, and must contain a specific date to which the particular conference or hearing is waived. Such dates shall be considered to be the dates on or before which the next required conference or hearing must be provided.

CONSOLIDATION OF GRIEVANCES
Grievances may be consolidated at any level by agreement of all the parties.

WITHDRAWAL OF GRIEVANCE
An employee may withdraw a grievance at any time by writing to the level where the grievance is then current. Assistance with identifying the correct addressee for any such communication may be obtained from Human Resource Services.

REPRISALS
Reprisal means the retaliation of the employer or agent toward a grievant, witness, representative or any other participant in the grievance procedure either for an alleged injury itself or any lawful attempt to redress it. No reprisals of any kind may be taken by any employer or agent of the employer against any interested party, or any other participant in the grievance procedure by reason of participation. A reprisal constitutes a grievance, and any person held responsible for reprisal action is subject to disciplinary action for insubordination.

REMOVAL OF GRIEVANCE RECORD
Human Resource Services is responsible for the creation, maintenance, and storage of a file for each statutory grievance filed. Such files are maintained physically separate from the personnel files of employees. Not less than one year following resolution of a grievance at any level, the grievant may be written request have removed any record of the grievant’s identity from any file kept by the employer.

RESPONDENT
The respondent in a grievance is the employee or agent of the University from whom relief is sought. Typically it will be the supervisor of the employee filing a grievance, but it may be another individual in the University. References to “supervisor” in the procedural steps below are interpreted to mean the supervisor or other person from who relief is sought.

PROCEDURE
A grievance must be filed within the times specified below:

LEVEL ONE
Before a formal grievance is filed, the grievant shall request a CONFERENCE with the supervisor within 10 days of the grievable act occurring OR the date when he/she became aware of the grievable act.

At the grievant’s or supervisor’s request an informal conference shall be held within 3 days of the filing of the written grievance. This does not extend the 6 day response time below. The conference is not a required step.

The supervisor must provide a written decision within 6 days of receipt of the grievance. Supervisors providing written decisions at Level One that do not grant the relief sought by the grievant must identify the specific person to whom the grievant may appeal at Level Two and the deadline within which they must file such appeal.

LEVEL TWO
The grievant may appeal the supervisor's Level One response to Level Two. Level Two in the statute is defined as the “area administrator. At Marshall University, area administrator is interpreted to be the next level supervisor above the supervisor who renders the decision at Level One. The Level Two supervisor must be clearly identified in the written decision of the supervisor from Level One.

An appeal of the Level One decision by the grievant must be made in writing to the designated area administrator within 5 days of the grievant receiving the supervisor's decision at Level One.

A Level Two conference must be held between the grievant and the area administrator within 5 days of the area administrator receiving the appeal. This is an informal conference – not a hearing.

The area administrator must issue a written decision to the grievant at Level Two within 5 days of the conference. (Decisions of area administrators at Level Two must state the grievant if not satisfied with the response at Level Two must file an appeal to Level Three by writing to the President within 5 days of receiving the decision at Level Two.)

LEVEL THREE
The grievant may appeal the decision from Level Two to Level Three by filing such appeal in writing to the President within 5 days of receiving the decision from Level Two.

The President designates a hearing examiner to hear the appeal at Level Three and provide a written recommendation to the President in the matter. The hearing at Level Three must be provided within 7 days of the receipt of the appeal to Level Three.

The decision of the President at Level Three must be issued within 5 days of the end of the hearing.

LEVEL FOUR
The grievant may appeal the decision at Level Three to Level Four. An appeal to Level Four must be made in writing within 5 days of receipt of the decision at Level Three. Such appeal must be in writing and must be sent directly by the grievant to:

Education and State Employees Grievance Board
808 Greenbrier Street
Charleston, WV 25311

The schedule for hearing the grievance at Level Four is communicated by the Education and State Employees Grievance Board.

 RECORDINGS, TRANSCRIPTS, AND EXHIBITS
All testimony provided in the Level Three hearing is tape recorded. Tapes of Level Three hearings are provided to the hearing examiner immediately at the end of the hearing. The hearing examiner submits the tapes to the President’s Office when the recommendation at Level Three is tendered to the President. The tapes are forwarded to Human Resource Services for safekeeping. The University is responsible for the production of transcripts of Level Three hearings when a Level Three decision is appealed to Level Four. Although Level One and Level Two are conferences and not hearings, parties may introduce documents pertinent to the grievance. The area administrator is responsible for sending to Human Resource Services any documents thus introduced. Exhibits may be submitted in the Level Three hearing including the introduction of documents submitted in earlier conferences. Such exhibits are held by the hearing examiner at Level Three and provided to the President’s Office when the recommendation at Level Three is tendered. The President’s Office forwards those to Human Resource Services for safekeeping. Copies of transcripts and exhibits are forwarded as directed by the Education and State Employees Grievance Board or by legal counsel.

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Revised 10/23/01

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