Issue: Compliance; Other issues; Ruling Date May 16, 2001; Ruling #2001-084; 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

Ruling Number 2001-084

May 16, 2001

ISSUE:

Did the hearing officer exceed his authority by ordering the agency to make its witnesses available for pre-hearing interviews by the grievant’s representative?

RULING:

No. The hearing officer’s written pre-hearing order contains no reference to such an order. In addition, by letter to the parties dated May 3, 2001, the hearing officer further clarified that during the pre-hearing conference he had not granted the motion of the grievant’s representative that the agency’s witnesses be made available for interviews by the representative prior to hearing. Accordingly, the hearing officer did not exceed the scope of his authority under the grievance procedure in this manner. This Department’s rulings on matters of compliance are final and nonappealable. (See Va. Code § 2.1-116.03(5)). Nevertheless, several statements in the hearing officer’s May 3, 2001 letter concerning the parties’ rights and responsibilities in this regard bear further comment, as discussed further below.

EXPLANATION:

During the pre-hearing conference, conducted by telephone on April 27, 2001, the grievant’s representative asked the hearing officer if the agency’s witnesses could be made available for him to interview prior to the hearing. The hearing officer denied the motion. However, the agency interpreted the hearing officer’s related comments as limiting its ability to refuse the grievant’s representative’s access to agency witnesses during their working hours, specifically that:

    1. the grievant’s representative could contact agency employees during working hours because grievances are official state business;
    2. the agency could not prohibit its employees from speaking with the grievant’s representative during working hours;
    3. the grievant’s representative (a non-state employee) could visit employees at the facility in accordance with the standards applicable to any other "guest of the agency."1

We believe that the above conclusions somewhat miss the mark, and that a further explanation of these issues would be helpful.

In civil litigation, it is a common practice to depose or interview the opposing side’s witnesses prior to trial. However, the employee grievance procedure is an administrative process intended for use by unrepresented parties and lay advocates, as well as parties represented by attorneys.2 Thus, the hearing environment for employee grievances differs greatly from that of civil litigation in many respects. While the Grievance Procedure Manual and the Rules for Conducting Grievance Hearings provide for pre-hearing orders for the appearance of witnesses at hearing and the production of documents, the grievance procedure (as correctly noted by the hearing officer) does not establish any other type of discovery – including depositions or any other type of pre-hearing witness interviews.3

Likewise, state policy does not expressly require an agency to grant administrative leave to employees who voluntarily participate in pre-hearing interviews, even with management’s consent (although state policy appears to give management the discretion to allow employees to use paid work time to be interviewed). 4 And finally, by statute and under the grievance procedure, management is reserved the exclusive right to manage the affairs and operations of state government. Inherent in this authority is the right to determine those activities in which employees will participate during working hours, those individuals who are to have access to the work site, and for what purpose.

In light of the above, we wish to clarify that the agency may but is not obligated under the grievance procedure to grant the grievant’s representative access to agency employees during working hours or admission to the work site for that purpose. Although grievances are "official state business," "grievance proceedings" do not include pre-hearing interviews of an opposing party’s witnesses, and therefore the agency need not consider such interviews as "official state business."

Nothing in this ruling, however, should be interpreted to prevent either party’s representative from preparing the party’s own witnesses. Thus, should the grievant’s representative wish to interview potential witnesses for the grievant, he may do so if the potential witnesses agree to speak to him; preparation of any such witnesses who are state employees, however, would need to be conducted during non-working hours. As noted above, neither state personnel policy nor the Grievance Procedure Manual mandates granting administrative leave to witnesses to prepare for a grievance hearing.5

Neil A. G. McPhie, Esquire
Director

June M. Foy
Employment Relations Consultant

1 See the hearing officer's letter of May 3, 2001, which provides an expanded explanation of his decision.
5 See Rules for Conducting Grievance Hearings (1/1/98), page 4.
3 See Grievance Procedure Manual § 5.7, page 14; Rules for Conducting Grievance Hearings, (1/1/98), page 3.
4 See Grievance Procedure Manual § 8.6, page 22 ("[e]mployees are to be granted administrative leave to consult with EDR, to serve as a representative for an employee within the agency, and to appear as a witness in a grievance matter. Employees are also granted administrative leave to participate in the steps of the grievance process"). While the Grievance Procedure Manual states that agencies may grant the employee reasonable time to prepare for the presentation of his grievance, it does not state that paid leave may be given to other agency employees for purposes of a pre-hearing witness interview. See also Department of Human Resource Management Policy No. 4.05(V)(A)(1) ("[a]dministrative leave will be granted for … witnesses to attend … [grievance] hearings").
5 Id.