Issue: Compliance; 5-day rule; Ruling Date: November 19, 2001; Ruling #2001-205; Agency: Norfolk State University; Outcome: In compliance grievant.

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

COMPLIANCE RULING OF DIRECTOR

In the matter of Norfolk State University/ No. 2001-205

November 19, 2001

The grievant has requested a compliance ruling in his June 26, 2000 grievance with Norfolk State University (NSU). The grievant claims that the agency’s designated third resolution respondent failed to reply to his grievance, in accordance with § 3.3 of the Grievance Procedure Manual.1

FACTS

The grievant was employed as an Assistant Safety Officer at NSU’s physical plant until June 2001. Prior to being transferred to the physical plant, he worked at the University’s radio station. He filed a grievance on June 26, 2000 alleging that written notices issued to him on June 1 and June 9, 2000 had been issued in retaliation for his having raised questions about the way that the radio station was being operated. Because he was alleging retaliation by his supervisor, there was some confusion on the part of the University as to who should serve as his first step respondent, and as a result, the grievant did not initially have a face-to-face meeting at his second step. In an effort to correct the noncompliance, NSU agreed to re-evaluate his grievance at the second step. The second step respondent determined that the June 1, 2000 written notice should be removed and that the June 9, 2000 written notice should remain.2 Furthermore, the second step respondent determined that the written notices were not a result of retaliation by the grievant’s supervisor. The grievant requested that his grievance advance to the third step.

Next, the grievant claims that he had a meeting with the University Vice President in which a "settlement" was offered: the grievant would transfer to the physical plant and would drop the claims of retaliation, and the June 9 written notice would be rescinded. After the grievant transferred, NSU Human Resources contacted him and requested that he officially conclude his grievance. However, the grievant claims that he responded that he would not conclude his grievance until he received written confirmation that his written notice had been removed. The grievant claims that at no time did the University provide a third step response to his grievance and that he never officially closed his grievance.

DISCUSSION

The grievance procedure requires that parties first communicate with each other about the noncompliance, and resolve any compliance problems voluntarily, without this Department’s involvement. Specifically, a party claiming noncompliance must notify the other party in writing and allow five workdays for the opposing party to correct any noncompliance. If the agency fails to correct the alleged noncompliance, the grievant may request a compliance ruling from this Department.3

On October 19, 2001, the grievant sent a letter of noncompliance to the President of the University, noting that the University had failed to provide him with a third step response to his June 26, 2000 grievance.4 However, NSU did provide a third step response in a letter dated September 28, 2000 from the President of the University to the grievant. In that letter, the third step respondent removed the June 1, 2000 written notice and upheld the June 9, 2000 written notice "due to the fact that a May 31, 2000 memo from your immediate supervisor . . . indicated that annual leave would not be granted on June 1, 2000."5 The third step respondent also noted that she did not find any evidence of harassment or retaliation. This letter further clarified that its author was the third step respondent and noted the grievant’s transfer to the physical plant.6 Because the agency has demonstrated that the third step respondent provided a response to the grievance, this Department cannot find that the University was out of compliance.

At this point in the process, it is up to the grievant to decide whether to request a hearing on this matter.7 The agency claims, however, that the grievant has "abandoned" his grievance and it should not be allowed to go forward. Under this Department’s longstanding practice, the agency may administratively close the grievance by notifying the grievant in writing (1) that the grievance has been administratively closed, and (2) that the grievant may challenge the closing of his grievance by requesting a compliance ruling from this Department within five business days of his receipt of the written notification of closure. In this case, the University provided no such written notice to the grievant, so the grievance remains open, even if it has been on hold for some time.

The parties are again advised to proceed with the grievance on a timely basis. This Department’s rulings on matters of compliance are final and nonappealable.8

Neil A. G. McPhie, Esq.
Director

Leigh A. Brabrand
Employment Relations Consultant

1The relevant section provides that the third-step respondent must provide a written response to the grievant within five workdays of receiving the grievance. Grievance Procedure Manual § 3.3, page 9.
2The June 1, 2000 written notice was issued because the grievant allegedly failed to keep the radio station free of "dead air." However, due to inconsistencies in the grievant's position description and the radio station's Policy and Procedure Guide, the second step respondent determined that it was unclear whether it was the grievant's responsibility to prevent silence on the radio station. The June 9, 2000 written notice stated that the grievant left the work site without authorization. The grievant claims that he was given permission, but a memorandum from the supervisor clearly indicates that no permission had been granted.
3Grievance Procedure Manual § 6.3, page 17.
4Over a year has passed since the filing of this grievance. However, the grievant alleges that he was not aware that the agency had not removed his June 9, 2000 written notice, the subject of the grievance, until the filing of a subsequent grievance in 2001.
5See Third Step Response.
6The letter suggests that the transfer was made as the prerogative of the University, not as a "settlement," as the grievant contends.
7It is important to note that the grievant was terminated in June 2001, based on an accumulation of written notices. The hearing officer did not consider the June notices, given the controversy surrounding them. However, the grievant had two other active written notices, issued in 1999. The accumulation of these two notices and the Group II notice issued in 2001 was sufficient to justify removal. Therefore, it is likely that this issue would not qualify for hearing, since a hearing officer could not provide effectual relief. Even if a hearing officer determines that the June 9, 2000 written notice should be removed, there are still enough group notices to justify termination. Therefore, removal of the written notice would not affect the grievant's employment status.
Va. Code § 2.2-3003 (G).