Issue: Compliance, Other; Ruling date: March 22, 2001, Ruling #2001-035; Agency: Chesapeake Bay Local Assistance Department; Outcome: Out of Compliance with Just Cause, grievant
COMMONWEALTH of VIRGINIA
Department
of Employment Dispute Resolution
COMPLIANCE RULING OF DIRECTOR
In the matter
of Chesapeake Bay Local Assistance Department
EDR Ruling #2001-035
March 22, 2001
On March 2 and 8, 2001, the grievant requested that this Department "investigate the issue of compliance" by the agency head in the grievances referenced above.1 The grievant claims that the agency head failed to comply with this Department's compliance ruling of February 21, 2001 and violated the grievance procedure because he did not timely return the grievance packages to her on two occasions: (i) after receipt of this Department's ruling and then again (ii) after her request for qualification.2 The agency head maintains that the grievances are closed because the grievant failed to comply with an order from the Director of EDR to either advance or conclude her grievances
DISCUSSION
This Department's February 21, 2001 compliance ruling directed the grievant as follows: "[y]ou have five workdays from receipt of this letter to either conclude one or both of your grievances, or request to advance one or both of them to the agency head for a qualification decision."3 In her February 26, 2001 correspondence to this Department, the grievant stated that she received the ruling in question on Saturday, February 24, 2001. Consequently, she had five workdays, or until Friday, March 2, 2001, to comply with the ruling. The agency head claims that she failed to do so. However, the grievant states that as of March 2 she had not yet received the grievance packages back from the agency head, and thus, she could not advance or conclude her grievances as ordered. The grievant claims that she received the grievance packages on March 5, 2001. As it appears that there was some confusion concerning the return of the grievance packages to the grievant, for purposes of this ruling, we will accept March 5 as the date of the grievant's receipt of her grievance packages. Therefore, it is reasonable to allow her 5 workdays from March 5 to advance or conclude her grievances. To date, she has not done so.
Although the grievant returned the signed grievance forms to the agency head on March 7, she failed to indicate on the forms (by marking the appropriate box on each form) whether she was concluding or advancing her grievances. Therefore, the agency head is correct that the grievant has violated an order from the Director of EDR, and that the Director of this Department has the discretion and authority to conclude a grievance when a grievant fails to comply with an order. However, in this case, it is not apparent whether the grievant's failure to mark the boxes was accidental or intentional. Therefore, this Department will not conclude the grievances for what simply may have been an oversight on the part of grievant.
CONCLUSION
Accordingly, the parties
are notified that the agency head is directed to return the grievance forms
to the grievant upon receipt of this ruling, which has been faxed today (March
22, 2001) to both parties. The grievant then has 2 workdays from her receipt
of her grievance forms to either conclude or request to advance her grievances
by clearly marking the appropriate box on each grievance form. Should
the grievant fail to follow this order, the agency may administratively close
both her grievances and no further action will be necessary. This Department's
rulings on matters of compliance are final and nonappealable.
Neil A.G. McPhie, Esquire
Director
Jeffrey L. Payne
Employment Relations
Consultant