Issue: Compliance, Resolution Steps, Other; Ruling Date May 24, 2001, Ruling #2001-069 and 2001-070; Agency: George Mason University; Outcome: Agency In Compliance

In the matter of George Mason University

Ruling Numbers 2001-069 and 070

May 24, 2001

ISSUE:

Is George Mason University (the University) out of compliance with the grievance procedure because the Agency Head failed to give the grievant a response to his requests for qualification within five workdays? If so, should this Department rule in the grievant’s favor on the merits of his grievances?

RULING:

The University is not out of compliance with the grievance procedure and therefore, this Department will not rule on the merits of the grievances. However, the University is instructed to reopen the grievances in question and allow both to proceed through the final grievance steps. Additionally, the grievant is directed to advance his grievances to the designated Third Step Respondent within five workdays of receipt of this ruling. This Department’s rulings on compliance are final and nonappealable. (See Va. Code § 2.1-116.03(5)).

EXPLANATION:

The grievant initiated two grievances on June 30, 2000.¹ After the First Step Respondent failed to grant the relief he was seeking, the grievant advanced his grievances to the Captain.² The grievant met with the Captain on July 9, 2000, and the requested relief was not granted. Thereafter, the grievant advanced the grievances to the Chief.

On August 16, 2000, the Chief met with the grievant and advised him that a human resources representative recently informed him that he could not serve as the Third Step Respondent and, thus, he would be responding as the Second Step Respondent. On August 22, 2000, the Chief issued a written response, which did not grant relief to the grievant. The grievant was then instructed to advance his grievances to the Vice-President who serves as the University’s Third Step Respondent. On August 26, 2000, the grievant sent his grievances to the President (the Agency Head), requesting qualification without the benefit of a response from the designated Third Step Respondent. The University responded by sending the grievant a letter advising him that his qualification request was premature and reminding him to advance his grievance to the Third Step Respondent.³

On September 27, 2000, the grievant sent a letter of noncompliance to the Agency Head because he had not responded to the qualification requests. On October 3, 2000, the University sent the grievant a letter advising him that he was out of compliance with the grievance procedure because he had not advanced his grievance to the Third Step Respondent as instructed and that he had five workdays to return to compliance. The grievant did not receive this letter until October 26, 2000. On or about October 17, 2000, the grievant sent a letter to this Department asking for a ruling in his favor on the merits of both these grievances due to the University’s noncompliance with the grievance procedure.⁴ While awaiting a ruling from this Department, the University sent the grievant a letter on October 23, 2000, advising him that his grievances had been administratively closed due to his noncompliance.

The grievance procedure requires both parties to address procedural noncompliance through a specific process.⁵ That process assures that the parties first communicate with each other about the noncompliance, and resolve any compliance problems voluntarily without this Department’s involvement. Specifically, the party claiming noncompliance must notify the other party in writing and allow five workdays for the opposing party to correct any noncompliance. For example, if an agency has not provided its management step response within five workdays (as was alleged in this case), a grievant must notify the Agency Head of the noncompliance, and, before seeking a compliance ruling from this Department, allow the agency five workdays after receipt of the written notice to provide its step response and thus come back into compliance. If the agency fails to correct the alleged noncompliance, the grievant may request a ruling from this Department. Should this Department find that the agency violated a substantial procedural requirement and that the grievance presents a qualifiable issue, this Department may resolve the grievance in the grievant’s favor unless the agency can establish just cause for its noncompliance.

In this case, the Agency Head did not respond to the grievant’s request for qualification because the grievant skipped a grievance step, the Third Step Respondent. While the grievant is correct that the grievance procedure normally should not have more than three successively higher grievance resolution steps,⁶ the grievance process, however, does not permit an employee to select which managers will serve as the step respondents. This decision lies with the agency and, as such, the University has the authority to designate which positions within the University will serve as step respondents in the grievance process. Thus, the University has the authority to require that the proper step respondents review the grievances. Accordingly, the University did not violate a procedural requirement of the grievance procedure by requesting that the grievant submit his grievances to the designated third step respondent and refusing to proceed to the qualification stage. Therefore, a ruling on the merits of the grievances by this Department would be inappropriate. However, the University should not have administratively closed the grievances due to noncompliance by the grievant because he had requested a compliance ruling from this Department and, therefore, there was a stay in the grievance process.

Neil A.G. McPhie, Esquire
Director

Felicia H. Johnson
Employment Relations Consultant

¹ Please note that recent changes to the grievance statute have resulted in changes to the grievance procedure. Because this grievance was initiated before July 1, 2000, this ruling is issued in accordance with the rules contained in the old procedure manual (Grievance Procedure, effective July 1, 1995, as amended July 1, 1999).
² Both the grievant and the Captain believed the Captain was the proper Second Step Respondent. They later discovered that the Captain was not the University's designated Second Step Respondent.
³ Although the grievant claims in his October 5, 2000 letter to this Department that the agency is out of compliance with the grievance process because the human resources representative incorrectly responded for the Agency Head, this Department finds that her response did not violate a procedural requirement of the grievance process. In this case, she responded to the procedural issues as the agency coordinator of the grievance process. Furthermore, by statute, the Agency Head may designate officers and employees to act on his behalf at his discretion. See Va. Code 2.1-20.01:2.
⁴ This ruling request was originally determined to be a qualification ruling only. However, upon review of all documents submitted, it was later determined that the grievant was also requesting that this Department rule on a compliance issues in two other grievances. The ruling requests suffered time delays as a result of missing grievance forms and other relevant documents. Additionally, the investigations for each ruling request were delayed due to scheduling conflicts, unplanned absences and other unforeseeable circumstances.
⁵ See Grievance Procedure, p. 13.
⁶ Va. Code § 2.1-116.05(B).