Issue: Compliance/5-day rule; Ruling date May 1, 2001; Ruling #2001-082; Agency: Department of Corrections; Outcome: Out of compliance (agency)

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

COMPLIANCE RULING OF DIRECTOR

(Reconsideration)

In the matter of Department of Corrections

Ruling Number 2001-082

May 1, 2001

ISSUE:

Did the agency violate a substantial requirement of the grievance procedure by failing to provide a timely second-step response?

RULING:

Yes. The response was due on March 28, 2001, but was not issued until March 30, 2001, at the earliest. However, the agency corrected the violation within procedural guidelines without any undue harm or prejudice to the grievant. By copy of this ruling, the grievant and the agency are advised that within 5 workdays from receipt of this letter, the grievant must either conclude his grievance or request to advance to the next resolution step. This Department’s rulings on matters of compliance are final and nonappealable. (See Va. Code § 2.1-116.03(5)).

EXPLANATION:

On March 14, 2001, the grievant attended the second-step meeting for his grievance. The second-step response was due within five "workdays" of March 14.1 In this case, the second step respondent’s normal work schedule was Monday through Friday. Thus, normally for him, five workdays from March 14 would be March 21. However, the second-step respondent was absent on annual leave during the period March 19-23, 2001. Because days of annual leave do not count as workdays, the five workday time period for providing the second-step response in this case was automatically extended to March 28, 2001.

When the grievant failed to receive a second-step response by March 21, he assumed that the agency was out of compliance, presumably not knowing about the respondent’s annual leave. Therefore, on March 22, he notified the agency head via facsimile of management’s alleged failure to provide a timely second-step response.2 After failing to receive a response to his notice of noncompliance by March 29 (an additional five workday time period unaltered by leave), the grievant submitted a request to this Department on April 2, seeking the relief contained in his grievance. On April 3, the grievant received the second-step response, dated March 30, 2001.

DISCUSSION:

The grievance procedure requires both parties to address procedural noncompliance through a specific process.3 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 the grievant believes that an agency has not provided its management response within five workdays after the second-step meeting (as the grievant believed in this case), a grievant must notify the agency head of the alleged noncompliance.

Before seeking a compliance ruling from this Department, the grievant must allow the agency five workdays after receipt of the written notice to correct any noncompliance. 4 If after five workdays the grievant believes that the agency has failed 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 clearly violated a substantial requirement of the grievance procedure by failing to provide a second-step response by the March 28, 2001 deadline. However, the agency corrected the noncompliance within the additional five workdays from that March 28 deadline when it issued its second-step response on March 30, 2001 for the grievant’s receipt on April 3, 2001. Therefore, the grievance will proceed for a determination on the merits. This ruling supersedes Ruling Number 2001-056, dated April 12, 2001.

Neil A.G. McPhie, Esquire
Director

June M. Foy
Employment Relations Consultant

1 See Grievance Procedure Manual, Definitions, page 24, defining "workdays" as the "Normal work schedule (excluding authorized leave time) for the individual responsible for taking the required action."
2 The Transmission Verification Report documents that the notification was received in the central office at 12:59 hours on 03/22/01.
3 See Grievance Procedure Manual, § 6, pages 16-18.
4 This five workday period also gives the agency an opportunity to provide the grievant with an explanation or clarification regarding its actions, which in many instances may avoid a request to this Department for a compliance ruling.