Issue: Compliance, Hearing Officer Decision Reconsideration; Ruling date: March 28, 2001; Ruling #2001-029; Agency: Radford University; Outcome: Hearing Officer In Compliance.

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution


COMPLIANCE RULING OF DIRECTOR
In the matter of Radford University/ No. 2001-029
March 28, 2001

The agency, has challenged the hearing officer's decision in the above captioned grievance.1 The agency claims that the hearing officer abused his discretion under the grievance procedure.

FACTS

The grievant is employed as a Fiscal Technician. The grievant was issued two Group I Written Notices on June 21, 2000. The first was for alleged uncooperative and disruptive conduct in an incident on June 16, 2000 in which the grievant requested a meeting with her supervisor and then cancelled and left the workplace. The second Written Notice was issued for inadequate or unsatisfactory work performance. A consolidated hearing on these issues was held on December 15, 2000 and January 12, 2001. In his written decision of February 5, 2001, the hearing officer upheld the Group I Written Notice for unsatisfactory job performance and dismissed the Group I Written Notice for uncooperative and disruptive behavior. With regard to the dismissed Written Notice, the hearing officer found that the "Grievant did show up for the meeting on 16 June 2000. … However, because of prior problems with [a coworker who would also be present at the meeting], she believed she needed an impartial witness." When she was unable to locate an acceptable person or to contact her lawyer, "Grievant clearly became ill and left work for the day, seeking medical attention."2 On that basis, the hearing officer rescinded the Written Notice for disruptive behavior.

On February 14, 2001, the agency requested an administrative review of the hearing officer's decision on the rescinded Group I Written Notice from both this Department and the Department of Human Resource Management. Also on that date, the agency requested the hearing officer to reconsider his decision on that matter. The request for review stated that "[t]he Written Notice that was issued to the Grievant for disruptive and uncooperative behavior on June 16 is not about canceling meetings, but about a pattern of conduct of being uncooperative and unavailable to resolve workplace issues."3 The request also asserted that the hearing officer had defined 'disruptive behavior' in the manner that he deemed appropriate, rather than allowing the agency to define the offense, thereby substituting his judgment for that of management. In addition, the request argued that the hearing officer made an error of law because he had implied that the grievant had Weingarten rights, as evidenced by his finding that the grievant was entitled to have a person of her choice or her lawyer present at the meeting.

The hearing officer issued a reconsideration decision on February 23, 2001, upholding his original decision. In his response, the hearing officer pointed out that "[t]he Written Notice makes no mention of any prior disruptive actions by the Grievant: … the agency did not mention any prior incidents until the Hearing Officer questioned [the agency's witness] about the Written Notice and whether mitigation had been considered. The [witness's] responses were highly unsatisfactory."4 Further, while acknowledging that he must not substitute his judgment for that of the agency, the hearing officer asserted that the agency has the responsibility to present evidence that will show by a preponderance of the evidence that the actions taken were appropriate and within the guidelines and, based upon the evidence presented, he made a determination that the agency did not meet the required standard of proof. Significantly, the hearing officer found that agency witnesses did not adequately define "disruptive behavior", nor did they present sufficient evidence that the grievant's behavior could reasonably be perceived as "disruptive".5

DISCUSSION

By statute, this Department has been given the power to establish the grievance procedure, promulgate rules for conducting grievance hearings, and "[r]ender final decisions in all matters related to procedural compliance with the grievance procedure."6 If the hearing officer's exercise of authority is not in compliance with the grievance procedure, this Department does not award a decision in favor of a party; the sole remedy is that the action be correctly taken.7

The grievance hearing is an administrative process that envisions a more liberal admission of evidence than a court proceeding.8 Accordingly, the technical rules of evidence do not apply.9 By statute, hearing officers have the duty to "[r]eceive probative evidence" and to "exclude irrelevant, immaterial, insubstantial, privileged, or repetitive proofs."10 Where the evidence conflicts or is subject to varying interpretations, hearing officers have the sole authority to weigh that evidence, determine the witnesses' credibility, and make findings of fact. As long as the hearing officer's findings are based upon evidence in the record and the material issues of the case, this Department cannot substitute its judgment for that of the hearing officer with respect to those findings.

The agency's challenges to the hearing officer's decision, when examined, simply contest the weight and credibility that the hearing officer accorded to the testimony of the various witnesses at the hearing, the resulting inferences that he drew, the characterizations that he made, or the facts he chose to include in his decision. This Department cannot conclude that the hearing officer's findings that the grievant's actions were not disruptive, and that she left work because she was sick, were without some basis in the record. While reasonable persons could disagree on this issue, such determinations were entirely within the hearing officer's authority. While the agency may object that the hearing officer did not accord the weight to the agency's proffered evidence that was deserved, this Department cannot find that he exceeded or abused his authority where, as here, the findings have some basis in the record evidence and the material issues in the case.

The agency also argues that the hearing officer erred in stating that "Grievant was entitled to have either her lawyer or an impartial witness present" at the meeting in question.11 Although it is not clear whether the hearing officer was merely restating his finding that the agency had agreed to the grievant's request to have a neutral third party present12 (and she was thus 'entitled' in that sense), or whether he was erroneously holding that state employees have some version of the Weingarten rights,13 the hearing officer's decision was not dependent on this conclusion. To the contrary, the hearing officer's decision is supported by other factual findings as well. Significantly, he found convincing the grievant's testimony that she suffered a "panic attack," for which "she properly took sick leave, contacted her doctor and was placed in treatment for several weeks time" after this incident.14 The hearing officer concluded that it was the grievant's medical state that caused her to leave work, rather than "a pattern of conduct of being uncooperative and unavailable to resolve workplace issues" as argued by the agency; accordingly, he found that she was not disruptive in her actions on that date. This Department finds no procedural error nor any abuse of authority under the grievance procedure in the hearing officer's conclusion that the grievant was not uncooperative or disruptive in the incident in question.

CONCLUSION

For the reasons discussed above, this Department finds that the hearing officer neither abused his discretion in his conduct of the hearing nor exceeded his authority in deciding this case. This Department's rulings on matters of compliance with the grievance procedure are final and nonappealable.15 In addition, the parties should note that after the Department of Human Resource Management issues its written decision and the hearing officer's decision becomes "final", it may be appealed to the Circuit Court on the grounds that it is contradictory to law.16

 

Neil A.G. McPhie, Esquire
Director

Jeffrey L. Payne
Employment Relations Consultant

1 Please note that recent changes to the grievance statute have resulted in changes to the grievance procedure. If a grievance was filed on or after July 1, 2000, the grievance will be governed by the new procedure (Grievance Procedure Manual, effective July 1, 2000). If a grievance was filed before July 1, 2000, the grievance will be governed by the old procedure (Grievance Procedure, effective July 1, 1995, as amended July 1, 1999). Because this grievance was initiated on or after July 1, 2000, this ruling is issued in accordance with the rules contained in the new procedure manual. Please also note that effective July 1, 2000, this Department's name was changed from the Department of Employee Relations Counselors to the Department of Employment Dispute Resolution (EDR), and the Department of Personnel and Training became the Department of Human Resource Management (DHRM).
2 Hearing Decision, p. 11.
3 Agency's appeal letter of February 14, 2001, p.3.
4 Hearing Officer's Reconsideration Response, pp. 2,3.
5 Hearing Officer's Reconsideration Response, pp. 2,3.
6 Va. Code § 2.1-116.03(3) and (5).
7 See Grievance Procedure Manual § 6.4(3), page 18.
8 Rules for Conducting Grievance Hearings, page 4.
9 Id.
10 Va. Code § 2.1-116.07(B)(5).
11 Hearing Decision, p. 12.
12 Hearing Decision, p. 5&6.
13 See National Labor Relations Board v. J. Weingarten, Inc. 420 U.S. 251 (1975)(recently interpreted by the NLRB as requiring employers to allow employees to have a co-worker representative present for investigatory interviews). The National Labor Relations Act, however, excludes from the Act any state or political subdivision thereof.
14 Hearing Decision, p. 11 and Hearing Officer's Reconsideration Response, p. 2.
15 Va. Code § 2.1-116.03(5).
16 Va. Code § 2.1-116.07:1 (B); see also Grievance Procedure Manual § 7,2(d) and § 7.3.