ARTICLE VII. GRIEVANCE PROCEDURES__________

*State law references:  Grievance procedures, Code of Virginia, § 15.2-1507. 

Sec. 66-231. Policy.

(a)   The city encourages prompt, fair resolution of employee concerns regarding their relationship with the city. The city shall strive for equitable treatment of all employees and by doing so attempt to alleviate the occurrence of grievances. Most issues may be resolved through discussion, but alternatives are necessary when discussion is not effective. The formal grievance procedure is the process by which employees may bring their concerns to upper levels of management. It is the city's intent that this policy comply fully with state law. In case of conflict, the laws of the commonwealth shall govern.

(b)   Employees who are unable to fully understand this process shall be encouraged to seek assistance.

(Code 1976, § 19-51; Ord. No. 48-91, 9-18-1991; Ord. No. 34-97, § 1(19-46), 4-16-1997)

Sec. 66-232. Issues.

A grievance is a complaint or dispute of an employee relating solely to his employment and including but not necessarily limited to such issues as:

(1)   Disciplinary demotions, transfers, terminations, suspensions and other like actions that result from discipline or unsatisfactory job performance;

(2)   The misapplication of personnel policies, procedures, rules and regulations;

(3)   Reprisals taken as a result of utilization of this procedure, or participation in the grievance of another employee, or for complying with a law or reporting the violation of a law;

(4)   Discrimination in any employment practice based on the employee's race, sex, age, religion, national origin, disability or political affiliation;

(5)   Arbitrary or capricious performance evaluation.

(Code 1976, § 19-52; Ord. No. 34-97, § 1(19-46.1), 4-16-1997)

Sec. 66-233. Nongrievable complaints.

Concerns that relate solely to the following issues are not grievable:

(1)   Establishment and revision of wages, salaries, position classifications or general benefits;

(2)   Contents of statutes, ordinances, personnel policies, procedures, rules and regulations;

(3)   Means, methods and personnel by which work activities are undertaken;

(4)   Hiring, promotion, transfer, assignment, and retention of employees;

(5)   Termination, layoff, demotion or suspension from duties because of lack of work, reduction in workforce, or job abolition;

(6)   Work activity accepted by an employee as a condition of employment or that may be reasonably expected to be a part or content of the job;

(7)   Relief of employee from duties in emergencies; or

(8)   Informal supervisory instructions (counseling memoranda, oral reprimands, manners of providing supervisory directions).

(Code 1976, § 19-54(a), (b); Ord. No. 34-97, § 1(19-46.2), 4-16-1997)

Sec. 66-234. Freedom to initiate grievances.

All regular (nonprobationary) full-time and regular part-time employees are eligible to file grievances in accordance with the procedure except those designated as noneligible. An employee filing a grievance has the right to follow all steps of the procedure without fear of reprisal. This does not however allow the use of the grievance procedure by any city employee as a vehicle for making slanderous or libelous statements against others.

(Code 1976, § 19-55; Ord. No. 34-97, § 1(19-46.3), 4-16-1997)

Sec. 66-235. Noneligible grievants.

The grievance procedure may not be used by the following employees:

(1)   Elected officials, members of boards and commissions, volunteer personnel and personnel appointed to serve without pay, consultants and counsel rendering professional service, seasonal or temporary employees, employees of the school system, health department the VPI&SU extension service, the city manager, the city attorney, assistant city attorneys, the city assessor, nor the city clerk.

(2)   Assistant city managers, nor assistants to the city managers, nor department directors.

(3)   Employees who have resigned after the effective date of the resignation unless the grievance was initiated prior to the effective date of the resignation.

(4)   Probationary employees.

(5)   Regular employees assigned to new jobs, who are on probation as a result of a promotion or transfer except when such transfer is to prevent layoff.

(6)   Law enforcement officers who elect the police officer's bill of rights.

(7)   Firefighters who elect the firefighter's bill of rights.

(Code 1976, § 19-54(c); Ord. No. 34-97, § 1(19-46.4), 4-16-1997; Ord. No. 79-00, § 1, 9-6-2000)

Sec. 66-236. Procedure.

(a)   Step 1.  The first step in the grievance procedure shall consist of an informal processing of the employee's complaint by the step 1 respondent (immediate supervisor) through a nonwritten, discussion format. The informal discussion shall be held within two work days of the event or action giving rise to the grievance. If the complaint is not resolved through the nonwritten, discussion format, a written grievance must be submitted to the step 1 respondent within 30 calendar days of the event or action giving rise tothe grievance. A grievance alleging discrimination or retaliation by the immediate supervisor may be initiated with the next level supervisor. The written grievance should state the nature of the complaint, the facts in support of the claim and the relief requested. Once the grievance is presented in writing additional claims or means of relief may not be added. Within five workdays of presentation of the written grievance, the first step respondent must provide a written response. The response should address the issues and relief requested. Within five workdays of receipt of a written response, the employee must indicate in writing to the step 1 respondent an intention to proceed with the grievance. 

(b)   Step 2.  The second step respondent (the next level of supervision) and the employee must meet within five workdays. Each may be accompanied by an individual of choice, there for moral support, or as someone with whom to confer but who does not have a speaking role in the proceedings. The meeting is not to be conducted as a hearing; the purpose is fact finding. The meeting should not be recorded. Individuals with pertinent information, directly related to the grievance, may appear. Questions may be asked to clarify points or to explore other avenues of inquiry. After providing the information, those individuals should not remain in the meeting. Within five workdays, the employee must indicate, in writing, the intent of proceeding with the grievance. 

(c)   Step 3.  If the grievance is not resolved in step 2, the grievant may appeal the decision by forwarding the grievance statement/remedy form to the department director within five working days. The department director must review the grievance record and respond in writing within five workdays. A meeting may be held to discuss the issues still in dispute, but such a meeting is not required. If the department director is the immediate supervisor, steps 2 and 3 are consolidated into one step. 

(d)   Step 4.  If the grievance is not settled in step 3, the grievant may appeal the decision by forwarding the grievance statement and remedy form to the city manager or the city manager's designee within five working days of the department director's response. Within five workdays of its receipt, the city manager or the city manager's designee shall meet with the grievant and the department director together, to discuss the grievance. The city manager or the city manager's designee shall reply to the grievant on the grievance statement/remedy form within ten working days of the discussion. If the city manager or the city manager's designee is the immediate supervisor, steps 2, 3 and 4 are consolidated into one step. 

(e)   Step 5.  If the city manager's or the city manager's designee's response does not resolve the grievance, the grievant may proceed with the grievance by requesting a hearing. The hearing will be conducted before a three-member panel. The panel chair will be a hearing officer selected from a list provided by the courts. Within five workdays of the step 4 result, the director of human resources shall request that the city manager or the city manager's designee and the grievant supply, in writing, the name of their panelist. The director of human resources' request shall be answered within ten workdays of its receipt. 

The time periods outlined herein constitute substantial procedural requirements. However, such time periods may be extended by mutual agreement between the grievant and the director of human resources.

After the initial filing of a written grievance, failure of either party to comply with all substantial procedural requirements of the grievance procedure, including the panel hearing, without just cause shall result in a decision in favor of the other party on any grievable issue, provided the party not in compliance fails to correct the noncompliance within five work days of receipt of written notification by the other party of the compliance violation. Such written notification by the grievant shall be made to the city manager, or his designee, and the human resources director. The city manager, or his designee, at his option, may require a clear written explanation for just cause extensions or exceptions. The city manager, or his designee, shall determine compliance issues. Compliance determinations made by the city manager, or his designee, shall be subject to judicial review by filing a petition with the circuit court within 30 days of the compliance determination.

(Code 1976, § 19-55.2; Ord. No. 34-97, § 1(19-46.5), 4-16-1997; Ord. No. 79-00, § 1, 9-6-2000; Ord. No. 7-01, § 1, 1-3-2001)

Sec. 66-237. Determination of grievability/qualification for hearing.

(a)   At the request of the city or the grievant, the city manager or the city manager's designee may render a determination of grievability at any time prior to a hearing. Such decision shall be rendered within ten workdays of receipt of the request by the city manager or the city manager's designee. The decision will be sent to the grievant.

(b)   Decisions of the city manager or the city manager's designee may be appealed to the circuit court. In order for such an appeal to be timely, written notice of the appeal must be received by the individual making the decision of nongrievability within ten calendar days of receipt of the ruling. A list of all information furnished to the court by the city will be furnished to the grievant.

(c)   Within 30 days of receipt by the clerk of such records, the court, sitting without a jury, shall hear the appeal on the record, and any additional evidence that can be presented to resolve any controversy. The court may receive other evidence at its discretion. The employee may have legal representation or represent himself at the hearing. Lay advocates are not allowed.

(d)   The court, in determining if issues qualify for hearing, may:

(1)   Affirm the decisions of the city manager or the city manager's designee;

(2)   Reverse the decision of the city manager or the city manager's designee; or

(3)   Modify the decision of the city manager or the city manager's designee.

(e)   The decision of the court shall be rendered no later than the 15th day from the date of the conclusion of the court hearing. The decision of the court is final and not subject to appeal.

(Code 1976, § 19-53; Ord. No. 34-97, § 1(19-46.6), 4-16-1997; Ord. No. 79-00, § 1, 9-6-2000)

Sec. 66-238. Composition of the panel.

(a)   The panel shall be made up of three impartial members, one appointed by the grievant, one appointed by the city manager or the city manager's designee, and a third member selected by the first two. In the event that an agreement cannot be reached as to the final panel member, the chief judge of the circuit court of the city shall select the third panel member. In cases of employee termination or retaliation, the third panel member shall be an administrative hearing officer selected from a list supplied by the courts. The city will pay all costs related to the use of the hearing officer. In all cases, the third panel member shall act as panel chairperson.

(b)   The panel shall not be composed of any persons having direct involvement with the grievance being heard by the panel, or with the complaint giving rise to the grievance; nor managers who are in a direct line of supervision of the grievant; nor employees in the same department as the grievant; nor employees of the department of human resources; nor persons who are residing or have resided in the same household as the grievant; nor the following relatives of either participant in the grievance process: spouse, parent, grandparent, child, grandchild, sibling, step sibling, in-law, niece, nephew or first cousin. No attorney having direct involvement with the subject matter of the grievance, nor a partner, associate, employee or co-employee of the attorney shall serve as a panel member. Panel members chosen in compliance with these requirements shall be deemed to be impartial.

(c)   The city manager or the city manager's designee, the grievant, or the grievant's department director may challenge the eligibility of the other party's panel member by requesting a determination from the director of human resources of whether the selection has met/violated the eligibility requirements. Such requests must be made in writing no fewer than five working days prior to the date of the scheduled panel hearing. If one member is found to be ineligible, the remaining members are unaffected. If at allpossible, an immediate replacement will be impaneled and the hearing conducted as scheduled. Except in cases of agreed postponements, hearings will convene no more than ten workdays after the panel is selected.

(d)   Any person selected as a panel member may decline.

(Code 1976, § 19-55.2; Ord. No. 34-97, § 1(19-46.7), 4-16-1997; Ord. No. 79-00, § 1, 9-6-2000)

Sec. 66-239. Authority of the panel chair.

The chair, acting on behalf of the panel, has the authority to:

(1)   Issue orders for witnesses or documents;

(2)   Administer oaths;

(3)   Receive documentary evidence and hear testimony, and exclude that which is irrelevant, immaterial, repetitive or confidential by law;

(4)   Decide on procedural requests;

(5)   Hold a conference (in person or by telephonic means) to simplify the issues, decide procedural matters, discuss settlement possibilities, and establish the date, time, and place of the hearing;

(6)   Order the parties to exchange a list of witnesses and documents; and

(7)   Determine the grievance based on the evidence (not on procedural matters that have occurred in the processing of the grievance) and provide appropriate relief.

(Code 1976, § 19-55.2; Ord. No. 34-97, § 1(19-46.7), 4-16-1997)

Sec. 66-240. Conduct of the hearing.

(a)   The hearing must be held within 30 days of panel selection in a location convenient to where the employee is or has been employed. The city must arrange a place for the hearing unless the hearing officer/panel chair chooses to make the arrangements. It is the responsibility of the hearing officer/panel chair to notify the parties, either in writing or at a prehearing conference, of the date, time and place of the hearing.

(b)   When a hearing is scheduled, it is the responsibility of the parties to appear or ask for a postponement. A hearing may proceed in the absence of one of the parties; a hearing so conducted will be decided on the grievance record and the evidence presented at the hearing. The parties may be represented by legal counsel or other representative, or may represent themselves. A hearing is to last no more than one day unless the panel should determine that the time is not sufficient for a full and fair presentation of the evidence by both sides. A hearing may be continued into evenings or weekends. The panel may grant a postponement or extend the 30-day period for good cause.

(c)   Opening and closing statements may be made by each party. Each party may be represented by an individual of choice. In disciplinary actions, the city must present its evidence first and must show by a preponderance of evidence that the disciplinary action was warranted and appropriate under the circumstances. With all other actions, the employee must present its evidence first and show by a preponderance of evidence that a proper claim is present. Formal rules of evidence do not apply. Nonparty witnesses are not to be present in the hearing except to give testimony and be cross examined. Exhibits may be offered into evidence and be made part of the record. The hearing must be recorded verbatim. The panel chair is responsible for the recording and is to preserve the recorded tapes as a part of the grievance record. Either party may receive a copy of the recording at cost. A court reporter is not required. If either party requests a court reporter, that party is responsible for the costs. If a transcript is made, the other party may request a copy at cost. The panel chair has the authority to determine the propriety of the attendance of all persons not having a direct involvement in the hearing including witnesses and spectators. The hearing shall be closed to the public.

(Code 1976, § 19-55.3; Ord. No. 34-97, § 1(19-46.7), 4-16-1997)

Sec. 66-241. Decision.

(a)   The panel's decision must be in writing and contain the findings of fact and the basis for those findings. In granting relief, the hearing panel should be guided, but not bound, by the relief requested in the written grievance. Appropriate relief can be reinstatement to the employee's former position or, if occupied, to an objectively similar position in terms of duties and salary, normally in the same work or organizational unit; an award of no, partial or full back pay; and the restoration of full benefits, seniority and other legal entitlements. Against an award of full or partial back pay, interim earnings are to be deducted. Damages and attorney's fees cannot be awarded.

(b)   Appropriate relief may also include an order to create an environment free from discrimination or retaliation or to take corrective actions necessary to cure the violation and/or minimize its recurrence. Other prospective relief cannot be ordered. The city cannot be ordered to promote, hire or transfer any employee. However, the panel can recommend such action; and if the recommendation is acted upon by the city, the action shall be given weight in any subsequent proceeding. If a policy was unfairly appliedor misapplied, the panel can direct the agency to redo the action from the point at which it became tainted. The panel will deliver to the director of human resources its decision, in writing, within ten days of the hearing.

(Ord. No. 34-97, § 1(19-46.7), 4-16-1997; Ord. No. 79-00, § 1, 9-6-2000)

Sec. 66-242. Implementation of the decision.

The decision is final and binding if consistent with policy and law. The decision is effective from the date issued and must be implemented immediately unless circumstances beyond the control of the city delay such implementation. Implementation may be stayed if a challenge is made to the decision. The circuit court has the authority to issue an order requiring implementation of the decision and to award attorney fees for seeking the order.

(Ord. No. 34-97, § 1(19-46.7), 4-16-1997)

Sec. 66-243. Challenges to the decision.

(a)   There are two types of challenge that can be made to the decision of the panel. Challenges must be made in writing within five workdays of receipt of the decision with a copy to the other party. The two types of challenges are:

(1)   Reconsideration or reopening requests are made to the panel chair, stating the basis for such a request; generally, newly discovered evidence or evidence of incorrect legal conclusions are the basis for such requests.

(2)   Consistency with policy challenges are made to the director of human resources; to make such a request, the party must cite a particular mandate in policy. The director's authority is limited to directing the panel to revise the decision to conform to a provision in written policy.

(b)   Once the challenge has been decided, it may not be appealed. A decision once affirmed or conformed is final.

(c)   Procedural issues arising not covered in this section shall fall within the jurisdiction of the city manager or his designee.

(Code 1976, § 19-55.3; Ord. No. 34-97, § 1(19-46.7), 4-16-1997; Ord. No. 79-00, § 1, 9-6-2000)

Sec. 66-244. Director of human resources available to counsel employees.

(a)   The director of human resources shall be available to confer with any city employee concerning any grievance or on any personnel matter. Discussions pertaining to personnel matters will be kept strictly confidential except where discussions are job related and the director of human resources determines there is a need for other management-level staff to know.

(b)   The director of human resources shall assist in the settlement of grievances through reconciling misunderstandings and making parties aware of behavior variant to city policy. Supervisors are not to construe visits to the director of human resources as that of employees circumventing the chain of management.

(Code 1976, § 19-55.5; Ord. No. 34-97, § 1(19-46.8), 4-16-1997; Ord. No. 79-00, § 1, 9-6-2000)

Secs. 66-245--66-275. Reserved.