Issue: Compliance; Resolution steps; Ruling Date: November 28, 2001; Ruling #181; Agency: Department of Conservation and Recreation; Outcome: no ruling; explanation of premature ruling.

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

COMPLIANCE RULING OF DIRECTOR

In the matter of Department of Conservation and Recreation

Ruling Number 2001-181

November 28, 2001

ISSUE:

Did the agency violate a substantial requirement of the grievance procedure by failing to provide a written response from the proper first-step respondent?

RULING:

A ruling on this issue is premature because the grievant has not notified the agency in writing of the alleged procedural violation, as required by the grievance procedure. Therefore, this Department cannot yet rule on the issue of the agency’s compliance with the grievance procedure. This Department’s rulings on matters of compliance are final and nonappealable.

EXPLANATION:

On August 24, 2001, the grievant initiated a grievance to challenge the issuance of a Notice of Improvement Needed/Substandard Performance. The grievant elected not to present his grievance to his immediate supervisor and checked the appropriate block on the Form A indicating discrimination or retaliation as the reason. The grievant delivered his grievance to the office of the designated second-step respondent whom he believed should provide the first-step response. On August 31, 2001, the grievant received a first-step response from the management official who had issued the Notice of Improvement/Substandard Performance. 2

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 the wrong management official has responded to his grievance (as the grievant believed in this case), a grievant must first notify the agency head of the alleged noncompliance and allow the agency five workdays after receipt of the written notice to correct any noncompliance. 4If after the 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, however, the grievant has not yet notified the agency head in writing of the alleged noncompliance as mandated by the grievance procedure.

Neil A.G. McPhie, Esquire
Director

June M. Foy
Senior Consultant

1See Va. Code § 2.2-1001. (5)
2This manager was supervisor's immediate supervisor, and therefore, under the grievance procedure, was the proper official to provide the first-step response. (See Grievance Procedure Manual, §2.4, page 7).
3See Grievance Procedure Manual, § 6, pages 16-18.
4This 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.