Issue: Compliance (Hearing Officer) Hearing Decision; Ruling Date June 5, 2001; Ruling #2001-036; Agency: Department of Corrections; Outcome: In Compliance, Hearing Officer

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

COMPLIANCE RULING OF DIRECTOR

In the matter of Department of Corrections/ No. 2001-036

June 5, 2001

The grievant has requested a review of case number 5123. The crux of her request for review is a claim that the hearing officer failed to consider section 5-10.7 of the Department of Corrections ("DOC") Standards of Conduct.

FACTS

The grievant was implicated in a temporary unaccountability with respect to a set of correctional institute keys. It turned out that another Correctional Officer had the keys at all times; however, the fact that the keys were temporarily unaccounted for was an understandable concern to management. Accordingly, management directed the grievant to appear for a counseling session regarding the missing keys incident. The grievant was insistent that a witness1 be allowed to attend the session in order to verify later, if necessary, what transpired during the meeting. Management refused to allow her to have a witness present during the meeting. When the grievant persisted with her demand that she be allowed to bring a witness, the meeting was canceled and the grievant was subsequently given a Group II Written Notice.

DISCUSSION

The grievant contends that the hearing officer erred by failing to consider section 5-10.7 of the Department of DOC Standards of Conduct. Specifically, the grievant claims the hearing officer ignored the portion of 5-10.7 that states: "[t]he Standards of Conduct in this procedure are designed to protect the well-being and rights of all employees . . ."2 The grievant further claims that the hearing officer disregarded the statement that the Standards serve to "[e]stablish a fair and objective process for correcting or treating unacceptable conduct or work performance."3 According to the grievant, these provisions were breached by DOC’s refusal to allow her to have a witness present during an investigatory/counseling session that stemmed from the potential security breach of the misplaced keys. For the reasons explained below, this Department concludes that the hearing officer did not commit error when rendering his decision.

While the grievant asserts error by the hearing officer in her request for review, her appeal actually challenges DOC’s policy of not allowing an employee to bring a witness to an investigatory/counseling meeting. Thus, the grievant is challenging the contents of the no-witness policy itself, not how the agency implemented the policy in her particular case. Although the management resolution steps of the grievance process may be used to challenge personnel policies, grievances that solely challenge the contents of a policy cannot be qualified for hearing.4 Accordingly, 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.5

Assuming that the grievant has not administratively appealed her decision to the hearing officer or the Department of Human Resources Management, the hearing decision is now a final hearing decision. While this Department found the final hearing decision proper and in conformance with law, the grievant may appeal the final hearing decision to the circuit court in the jurisdiction in which the grievance arose on the basis that it does not comply with law. Any such appeal must be made within 30 calendar days of the date of this ruling. 6

Neil A.G. McPhie, Esquire
Director

William G. Anderson, Jr.
Employment Relations Consultant

1 The term "witness" is used here to describe an individual brought to a disciplinary meeting to observe the conduct of the meeting rather than to provide testimony as to what have transpired during the event under investigation.
2 DOC Policy 5-10.7(A).
3 DOC Policy 5-10.7(B).
4 See Grievance Procedure Manual, § 4.1(c), page 11. Employees are free to use the grievance procedure to challenge the contents of a policy. Such grievances, however, may only proceed through the management resolution steps.
5 Note: It bears mentioning that while at least one authority has held the U.S. Supreme Court's Weingarten rule, which affords unionized employees the right to have a union representative present at an investigatory interview which the employee reasonably believes might result in disciplinary action, also applies to employees in nonunion workplaces. Epilepsy Foundation of Northeast Ohio (8-CA-28169, 28264; 331 NLRB No. 92). However, the right to have a witness present during such interviews is not extended to state employees because they are not covered by National Labor Relations Act, the law that confers the right to a witness to employees in the private sector. Additionally, while not expressly raised in the grievance, any claim that the agency's refusal to allow the grievant a witness constituted a denial of due process would similarly fail. The grievant received both the pre-disciplinary and post-disciplinary due processes to which she was entitled under the 14th Amendment of the U.S. Constitution when she was presented with her Written Notice and when she received her grievance hearing, respectively. See Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985).
6 See Grievance Procedure Manual § 7.3, page 20 for more information regarding the Judicial Review of Final Decisions.