§ 2-186. Grievance procedure.

(a)

Management steps. The first four (4) steps of the grievance procedure provide an intermediate process for the resolution of complaints and disciplinary matters.

(1)

General provisions.

a.

The first two (2) management steps involve the employee's immediate supervisor. In departments with several levels of supervision, the department may specify the management level designated as the immediate supervisor for grievance purposes.

b.

In disciplinary matters, Steps I, II and III may be waived by agreement of both the employee and the appropriate levels of management.

c.

In grievances in which the action grieved (whether disciplinary or otherwise) was action taken by the department head, Steps I and II shall be waived.

d.

In situations where the employee's immediate supervisor is also the department head, Steps II and III of the procedure shall be combined.

e.

Personal face-to-face meetings between the appropriate level of management and the employee are required at all steps.

f.

With the exception of Step IV, the only persons who may normally be present in the management step meetings are the grievant, the appropriate manager at the level at which the grievance is being heard and appropriate witnesses for each side. Witnesses shall be present in the management step meetings only while actually providing testimony.

At Step IV, the grievant and management may each have present a representative of his or her choice. If the grievant is represented by legal counsel, management likewise has the option of being represented by counsel. When an employee is represented, any cost of representation is at the employee's expense.

g.

All grievances processed through management Steps II, III, and IV shall be processed on forms provided by the city. The human resources department will provide procedural assistance to both parties in the completion of grievance forms.

h.

Once a grievance has been reduced to writing, it may not be changed or amended unless agreed to by the grievant and the level of management at that step. Any different or additional grievance issues must be pursued through a separate grievance proceeding.

i.

Date of receipt is determined by the date of hand delivery or by the date indicated by a commercial carrier that delivery was made to the grievant's address on record with the city.

(2)

Step I. Any employee who feels aggrieved may bring the situation to the attention of his immediate supervisor, explaining the nature of the problem and his suggested solution.

It is not necessary for a complaint to be reduced to writing; however, the supervisor should routinely document this action with the assumption that it could be the first step of a formal grievance. Any such complaint or grievance shall be made within twenty (20) calendar days after the event or action which is the basis for the grievance. The supervisor shall give his verbal or written response to the employee within seven (7) calendar days after the situation has been brought to his attention. If no response is given within that seven (7) day period, it shall be deemed denied.

(3)

Step II. If discussion between the employee and the immediate supervisor fails to settle the matter, the grievance shall be reduced to writing on a grievance form provided by the human resources department.

The employee must present the written grievance to his supervisor (or the department head when the event or action was taken by the department head) within seven (7) calendar days from the date the supervisor responded. If the supervisor failed to respond at Step I, the employee has seven (7) calendar days from the date the supervisor's response was due to present his written grievance. Once the employee reduces his grievance to writing, he must specify on the grievance form the specific relief he expects to obtain.

The supervisor or his representative will acknowledge receipt of the grievance form by his dated signature and provide a date and time for the Step II grievance meeting.

The supervisor or his representative shall then contact the human resources department to obtain a grievance number which he shall write on the grievance form, and then provide a copy of the grievance form to the human resources department.

The immediate supervisor or his representative shall, within seven (7) calendar days, meet and discuss the grievance with the employee. Within seven (7) calendar days after such meeting, the supervisor or his representative shall respond to the employee in writing on the grievance form, and shall include the date of the meeting and the date of the decision. The immediate supervisor or his representative shall return the grievance form to the grievant who shall sign and date it. The immediate supervisor shall provide a copy of this signed grievance form to the human resources department.

(4)

Step III. If the response of the immediate supervisor or his representative does not resolve the grievance the employee may appeal to the department head within seven (7) calendar days of receipt of the written response of the immediate supervisor or his representative.

The employee must submit the appeal to the department head in writing on the grievance form. Upon receipt of the grievance form, the department head or his representative should provide a date and time for the Step III grievance meeting, sign and date the form, and provide a copy to the human resources department.

The department head within seven (7) calendar days, shall meet and discuss the grievance with the employee. Within seven (7) calendar days after such meeting, the department head shall respond to the grievance in writing on the grievance form and include the date of the meeting and the date of the decision. The department head or his representative shall return the grievance form to the grievant who shall sign and date the grievance form. The department head or his representative shall provide a copy of the signed grievance form to the human resources department.

(5)

Step IV. If the department head's response does not resolve the grievance, the grievant may appeal to the city manager within seven (7) calendar days of receipt of the department head's response.

The employee must submit the appeal to the city manager in writing on the grievance form. Upon receipt of the grievance form, the city manager, an assistant city manager, or their designated representative, should provide a date and time for the Step IV grievance meeting, sign and date the form, and provide a copy to the human resources department.

The city manager or his designated representative shall, within seven (7) calendar days, meet and discuss the grievance with the employee. Within seven (7) calendar days after such meeting, the city manager or his designated representative shall respond to the grievance in writing on the grievance form and include the date of the meeting and the date of the decision. The city manager or his designated representative shall send a copy of the grievance form to the grievant by hand delivery or by commercial carrier which shall provide delivery confirmation to the grievant's address on record with the city.

If the city manager's response does not resolve the grievance, the employee may request a panel hearing.

(b)

Panel hearing.

(1)

Request for a panel hearing.

a.

A panel hearing may be requested when the city manager's response in Step IV of the grievance procedure does not resolve the grievance.

b.

The employee, within seven (7) calendar day of receipt of the decision of the city manager or designated representative, must make a request for a panel hearing to the director of human resources, in writing, on the grievance form and must also submit a panel hearing request form provided by the human resources department. The panel hearing request form shall include the name of the panel member selected by the grievant and the name of the grievant's legal counsel, if any.

(2)

Panel selection.

a.

Panel members shall be active, regular full-time employees and shall be selected in the following manner: one (1) selected by the grievant, one (1) selected by the city manager, and the remaining member selected by the two (2) appointees. Selection of the city manager's appointee shall be made within seven (7) calendar days after receipt of the request for panel hearing. After the city manager has selected his appointee, the director of human resources or designated representative shall notify the two (2) appointees of their selection. The two (2) panel members shall select a third member within seven (7) calendar days after the notification of their selection as panel members, who shall serve as the chairperson; provided, however, this period may be extended an additional seven (7) calendar days by the two (2) appointees, if necessary. In the event that the agreement cannot be reached as to the final panel member, the Chief Judge of the Circuit Court of Newport News shall select such third panel member.

b.

The panel is an impartial body selected to hear and decide the grievance on its merits. Therefore, in order to provide an impartial panel and to ensure the protection of city employees, the following persons may not serve as panel members:

1.

The following relatives of any participant in the grievance process and the relatives of any participant's spouse: spouse, parent, child, descendants of a child, sibling, niece, nephew and first cousin.

2.

Supervisors and managers who are in a direct line of supervision of a grievant. Employees in the same department as the grievant may not serve on the panel.

3.

Any person having direct involvement with the grievance including any representative of the grievant and witnesses who have been involved at the management steps.

4.

Any attorney having direct involvement with the subject matter or a partner, associate, employee, co-employee or client of such an attorney.

5.

Employees of the human resources department, the city attorney's office, and the city manager's office.

6.

Persons who are or have been residents of the same household as the grievant are also prohibited from serving on the panel.

c.

Any person selected as a panel member may decline appointment in which case the appropriate party must make another selection within seven (7) calendar days of notice to the human resources director or designee that the selected person has declined appointment.

(3)

Panel procedure.

a.

The director of human resources, or designated representative, and full panel will coordinate a date and time for the panel hearing.

b.

All panel hearings shall commence within six (6) months following the date of the Step IV decision unless the grievant and the director of human resources and the city attorney's office, if involved, mutually agree to extend the six (6) month period.

c.

Parties to the grievance shall not discuss the substance of any grievance or the problem giving rise to the grievance with any panel members prior to the hearing.

d.

The director of human resources, or designated representative, will coordinate the panel hearing and may correspond with panel members, grievants, the grievant's legal counsel, witnesses and others directly on behalf of the panel.

e.

The director of human resources, or designated representative, will provide the panel with copies of the grievance record prior to the hearing and provide the grievant with a list of the documents furnished to the panel at least ten (10) days prior to the scheduled panel hearing. Documents, exhibits, and a list of witnesses shall be exchanged between the grievant's legal counsel and management's legal counsel at least seven (7) days prior to the scheduled panel hearing, unless otherwise agreed. If the grievant is not represented by legal counsel, the parties shall provide such material to the human resources department at least seven (7) days prior to the scheduled panel hearing, and human resources will coordinate the exchange of the material. Upon the request of the grievant or his representative, the director of human resources, or designated representative, will also allow the grievant access to and copies of all relevant files intended to be used in the grievance proceeding.

f.

The director of human resources, with the mutual agreement between the City's representative and the grievant, may extend the time periods applicable to the panel procedures.

(4)

Conduct of the panel hearing.

a.

At the request of either the grievant or the city, the hearing shall be private. If private, only the panel members, the grievant, the grievant's legal counsel or other representative, the management representative, management's legal counsel, the witness who is testifying, and the court reporter, if any, shall be present at the hearing. If open, the panel shall nevertheless have full power and authority to close portions of the hearing and to determine what persons not having a direct involvement in the proceedings may remain in the hearing room. Witnesses, other than the grievant and the management representative, shall remain in the hearing room only while giving their testimony. Employees of the human resources department will be present throughout any hearing except when the panel is deliberating. The panel may seek the advice of the director of human resources, or designated representative, on grievance procedure questions.

b.

The grievant may be represented by legal counsel at his own expense. In the event that the grievant is represented by legal counsel, the city may likewise be represented by counsel.

c.

The taking of photographs in the hearing room during the progress of the grievance proceedings and the broadcasting of grievance proceedings by radio or television are prohibited.

d.

The panel shall conduct its hearing with its three (3) members present.

e.

The panel has the authority to determine the admissibility of evidence without regard to the burden of proof, or the order of presentation of the evidence, so long as a full and equal opportunity is afforded to all parties for the presentation of their evidence.

f.

At the option of each party, opening statements may be made at the beginning of the hearing setting forth the issue(s) and the panel may ask for such statements in order to clarify the issue(s) involved in the grievance. If opening statements are made, the grievant or the grievant's legal counsel shall begin, followed by the city's legal counsel or the city's designated representative.

g.

There is no subpoena power to compel the attendance of witnesses in the grievance procedure. The panel may, however, at the request of either party or in its own discretion, request the voluntary appearance of witnesses. Witnesses shall be permitted in the hearing room only when giving their testimony. The sworn statement of an absent or unavailable witness shall be received as evidence by the panel.

h.

The panel hearing is an administrative process and is not meant to be conducted like proceedings in court. Panels are not bound by technical rules of evidence and shall take into account all reliable and substantial evidence produced at the hearing. It is within the province of the panel to determine relevancy and materiality. The panel may require either party to demonstrate relevancy and materiality of any evidence and the need for any requested extensions of the hearing panel.

i.

All evidence shall be presented in the presence of the panel and the parties unless by mutual consent of the parties. The grievant shall present his or her evidence first.

j.

Evidence may be presented by the grievant along with any exhibits which shall be marked and made a part of the record. The panel may question any witness, including the grievant, and the grievant or his counsel may question any witnesses. The city's designated representative or counsel representing the city may also question witnesses and present evidence in the same manner afforded the grievant.

k.

The panel shall deal with the grievance before them. Evidence and testimony as to how other employees or situations have been handled in the past are not relevant. No personnel file or record may be examined by the panel or introduced into evidence, except that of the grievant.

l.

The grievant shall not be permitted to introduce any evidence before the panel which has not been previously presented or submitted during the management steps for management consideration.

m.

The panel by majority vote may decide procedural questions and rule upon objections raised during the course of the hearing.

n.

The parties shall produce such additional evidence as required by the panel.

o.

After both parties have had the opportunity to present their evidence, the panel chairperson shall inquire of both parties whether they have further evidence. Upon receiving negative replies, the hearing shall be closed. Both parties shall be given the opportunity to make closing statements, following which the panel shall retire to begin its deliberation. If closing statements are made, the grievant or the grievant's legal counsel shall make his or her closing argument, followed by the city's legal counsel or the city's designated representative.

p.

A court reporter shall record the grievance hearing, and the city shall bear the cost of the reporter's appearance fee. Any party ordering a copy of the transcript of the hearing shall bear the cost thereof. By agreement, the parties may waive having the hearing recorded by a court reporter.

(5)

Panel decision.

a.

The panel shall render its decision in writing within five (5) working days of the conclusion of the hearing unless the panel by majority vote extends the time period.

b.

The panel shall state in writing the reasons for its decision on the panel hearing response form. Copies of the decision shall be transmitted to the city manager, the director of human resources, the department head, the grievant, the grievant's supervisor, and the attorneys for the parties by a representative of the human resources department.

c.

The panel shall decide the case on the merits, not on whether there has been compliance with the procedural requirements of this article.

d.

The panel does not have the authority to formulate policies or procedures nor to alter existing policies and procedures. The panel is not empowered to establish or modify job standards, job requirements, or performance standards nor may the panel determine or change an employee's evaluation rating. The panel shall make its decision within the following standards of review:

1.

The panel shall uphold the city if the evidence shows that the charges brought pursuant to the Standards of Conduct were reasonable. If the panel finds that the charges were not reasonable, the panel has the same authority and limitations as management to determine the appropriate charges and disciplinary action in accordance with applicable city policy.

2.

In grievances involving termination for unsatisfactory work performance, failure to meet job standards, unacceptable attendance and job abandonment, the panel shall uphold the city's action if it determines that the action was reasonable under the circumstances.

3.

In grievances involving complaints regarding application of policy, discrimination and other non-disciplinary issues, the panel will determine if policies and procedures have been appropriately applied. The panel is not empowered to promote, assign or transfer employees, to establish salaries nor to take any other action which is in the purview of management rights.

4.

The panel does not have the authority to consider determinations of grievability, determinations of access to the grievance procedure, or compliance determinations, made in accordance with section 2-185.

5.

The majority decision of the panel, acting within the scope of its authority, shall be final, subject to existing policies, procedures and law. In cases of law enforcement officers who have elected to proceed pursuant to § 9.1-504 of the Code of Virginia, 1950, as amended, the panel decision is advisory only to the city manager, but shall be accorded significant weight.

6.

The panel may not award back pay or benefits, damages, or attorney's fees.

e.

The city manager, after consultation with the director of human resources, has discretion to order all or some back pay and/or benefits to the grievant if the panel finds that the charges or action taken by the city were not reasonable.

f.

The director of human resources may on his own action remand a decision which appears to be inconsistent with law and written policy to the panel for further consideration. All parties will be notified when a decision is remanded. All three (3) panel members must participate in the decision-making process.

g.

If either party refuses to implement a panel decision, the other party may petition the Circuit Court of Newport News to enforce the decision.

(Ord. No. 4250-91; Ord. No. 6036-04; Ord. No. 6679-10; Ord. No. 7189-15, § 1; Ord. No. 7388-17)

(Ord. No. 4250-91; Ord. No. 6036-04; Ord. No. 6679-10; Ord. No. 7189-15, § 1; Ord. No. 7388-17)