Those of you already familiar with the state grievance procedure are well-aware that the union will not win every grievance filed. But it has been said before, and it is worth saying again, that the only grievance we are certain to lose is one that we never file.
Since our last state convention the Local has fought and won some important grievances on matters that effect not only the members who were the actual grievants, but also future state employees whose working conditions will be impacted by those decisions. This is one of the lessons of collective action and mutual aid: what the union does today could have tangible results on what we are able to do. If an injury to one is an injury to all, then it must also be recognized that a victory for one is a victory for all. In that spirit, this report on those victories during the last year is offered.
One recurring issue the union has confronted is the eagerness of state agencies to fire employees over allegations of drug use. This applies not only to those who are, by federal rules of the US Department of Transportation, subject to random testing, but also any state employee, who may be told to submit to a drug test based on supervision’s claim that there exists a basis of “for cause” testing. In order to dismiss a worker who has been tested under a “for cause” pretext, all that is needed is for the testing laboratory to find a sufficient trace level of a substance is “in the system” of the tested worker. That kind of testing, however, by policy must follow certain procedures, and it is not unknown for the agency to take shortcuts.
A recent example is Barnes v West Virginia Department of Health and Human Resources, where a for ‘cause test’ was reported to have resulted in a positive reading for marijuana. Because DHHR failed to properly document the testing procedure, however, the grievance board ruled that the evidence available did not support the agency’s claim, and a fired worker was restored to full employment with back pay and interest., the same agency was found to have committed similar procedural errors in terminating another employee in Skinner v West Virginia Department of Health and Human Resources.
Another kind of grievance arose in the same agency, in a case styled as Morgan v West Virginia Department of Health and Human Resources, wherein it was discovered that the employer had overpaid a worker $2000 and then tried to force the employee to repay the amount. The grievance board found that the heavy-handed efforts of the agency to make the worker pay for its own error were unreasonable, and the state’s demand for repayment was rejected.
In yet another DHHR grievance, a worker wrongfully suspended over an allegation that turned out to be false was denied already scheduled overtime when he was finally returned to work and given back pay. In Large v West Virginia Department of Health and Human Resources, the grievance board ruled that his back pay ought to have included the scheduled over time and shift differential of nearly $900.
While the existing law allows state agencies wide latitude in dismissing employees who are still in their probationary periods as new hires, state employers have also been found to abuse that discretion. In Hall v West Virginia Department of Health and Human Resources, an accusation of falsifying documents was found to be not credible, although it was used to fire a worker. That same employee had to file an additional grievance when the agency refused to later credit her with the time for which she was wrongfully discharged.
There are plenty of examples of wrongful disciplinary action take by other state agencies. In McDaniel v West Virginia Division of Highways, the grievance board found that a worker was issued a suspension for the exact same allegation that he had been already given a reprimand and that the suspension was issued without a predetermination meeting. Not to be outdone, DHHR issued a new disciplinary action policy that denied employees predetermination meetings at all for any punishment less that an unpaid suspension. In Byrd v West Virginia Department of Health and Human Resources, the board described the new policy as a violation of the most basic right of due process. And in Mucklow v West Virginia Division of Juvenile Services., the board again reversed a suspension based on an insufficient due process and lack of credible evidence.
Not all grievances involve unjust discipline. Many involve the failure of state agencies to follow their own policies in employment decisions:
Womack et al v West Virginia Division of Highways and Preast, et al v West Virginia Division of Highways both ruled that DOH did not follow policy in selecting candidates for equipment training, a basis for pay upgrades.
Melton v West Virginia Division of Highways and Tignor v West Virginia Division of Highways found that the state road did not follow policy in awarding pay upgrades for supervising work release inmate crews.
Finally, in Williams v West Virginia Department of Health and Human Resources, DHHR was ruled to have violated its policy for selecting applicants for posted vacant positions.