DEPARTMENT OF ADMINISTRATIVE SERVICES
Merit Employee Relations Board
IN THE MATTER OF |
THE REPEAL OF EXISTING |
MERIT RULE CHAPTER 20 | ORDER
AND THE ADOPTION OF A |
REVISED CHAPTER 20 |
Merit Employee Relations Board, Chapter 20, Grievance Procedure
BEFORE ROBERT BURNS, VICE-CHAIRPERSON; DALLAS GREEN, JOHN F. SCHMUTZ, ESQUIRE, AND JOHN W. PITTS, MEMBERS, CONSTITUTING A QUORUM OF THE MERIT EMPLOYEE RELATIONS BOARD PURSUANT TO 29 DEL. C. §5908(A).
BACKGROUND
On March 16, 1999, the Director of the office of State Personnel transmitted to the Merit Employee Relations Board ("MERB" or "Board") a proposed new Chapter 20 for Merit Rules of the State of Delaware. The proposed new Merit Rules were accompanied by a request for the repeal of the existing Merit Rule Chapter 20, and the assertion by the Director that the proposed new Merit Rules and the repeal of the old Chapter 20 had been approved by the Statewide Labor-Management Committee. (Board Hearing Exhibit No. 1)
The Board, in accordance with 29 Del. C. §5915 and 29 Del. C. ch 101, caused notice of the proposed new Merit Rule Chapter 20, repeal of the existing Merit Rule Chapter 20, and the public hearing to be conducted thereon, to be published in the Delaware Register of Regulations, Volume 2 - Issue 11, dated May 1, 1999. (Board Hearing Exhibit No. 2) The Board also gave notice of the time and place for the public hearing on such proposed changes in two newspapers of general circulation. (Board Hearing Exhibit No. 3)
PUBLIC HEARING
Pursuant to due notice, a public hearing was held on June 8, 1999 concerning the Director's proposed repeal of the existing Chapter 20 and its replacement with a new Chapter 20 consisting of Merit Rules No. 20.1 through 20.11. The Board, in its public notices of the hearing, requested written comments concerning the proposed changes to Merit Rule Chapter 20. Only one written comment was filed. (Board Hearing Exhibit No. 4) This written comment was addressed to proposed new Merit Rule 20.11 and noted that under the proposed Rule employees are not allowed to use State time to accomplish any grievance investigation or preparation and are not allowed time off with pay to speak with their grievance representative. The suggestion was made that time be allowed for these activities or, if the grievance is upheld, that the employee be compensated for personal time used for these activities.
No other written comments were received and no member of the public and no state employee appeared to testify at the public hearing except as noted below.
The State Personnel Office was represented at the hearing by the Director Harriet N. Smith Windsor, Ed.D., Thomas LoFaro, Deputy Director for Employee Relations, Katie A. Horvath, Employee Relations Program Manager, and Deputy Attorney General Ilona Kirshon. Dr. Smith Windsor described for the Board the history of the proposed revisions to Chapter 20 of the Merit Rules and the positive reception such changes had received form Statewide Labor-Management Committee which is co-chaired by Dr. Smith Windsor and Michael A. Begatto, the Executive Director of the American Federation of State, County, and Municipal Employees Union ("AFSCME").
Thomas LoFaro, Deputy Director for Employee Relations in the State Personnel Office, described and discussed for the Board each of the new Merit Rules in the proposed Chapter 20.
In responding to the written comment received by the Board, Mr. LoFaro observed that the requirement that employees not work on grievances during the normal work day was not a change and had the full support of the Statewide Labor-Management Committee. According to Mr. LoFaro, the present Merit Rule No. 6.0450 contains the same prohibition in that it does not allow time off during working hours with pay for the preparation of a grievance or consultation with an employee's representative.
Mr. LoFaro stated that the proposed Merit Rules No. 20.1, 20.2 and 20.3 were the same as existing Merit Rules with simplified wording. As to proposed Rule No. 20.1, informal sessions with employees and their immediate supervisors are not a new requirement and can be found in existing Merit Rule No. 20.0100.
Mr. LoFaro noted that the proposed Merit Rule No. 20.4 is a change from the existing Merit Rule in that it reflects a legislative enactment requiring that movement between the steps at the employing agency is automatic when the agency fails to meet the time requirements for processing a grievance. The failure of the grievant to meet the time requirements continues, in the proposed Merit Rule 20.4, to void the grievance. Proposed Merit Rule No. 20.4 also eliminated the concept of "working days" in calculating the time period for filing or processing a grievance in favor of the concept of "calendar days" and the period is extended to 14 calendar days as opposed to 10 working days in the old Chapter 20.
Mr. LoFaro related that proposed Merit Rule No. 20.5 is another attempt at simplification and consolidation in that it brings the existing limitations on filing a grievance regarding promotions from Chapter 13 into Chapter 20 without any substantiative change in language.
Proposed Merit Rule No. 20.6 corresponds to the existing Merit Rule No. 20.310 providing for step 1 in the grievance process. The proposed Rule 20.6 also uses the concept of calendar days rather than working days and provides for the events which management must accomplish within 14 calendar days of the filing of a grievance.
Proposed Merit Rule No. 20.7 corresponds, according to Mr. LoFaro, to the existing Merit Rule No. 20.0220 or step 3 in the grievance process. The proposed Chapter 20 eliminates what was step 2 in the grievance process under the old Rules. This elimination of former step 2 is one of the hallmarks of the proposed new Chapter 20 streamlining and removes a step which, according to Mr. LoFaro, many contended was unnecessary and indeed, redundant. Under the proposed Merit Rule No. 20.7, the appeal is to be filed in writing with the top agency personnel official or representative within 7 calendar days of the step 1 reply (or the lack of a timely reply after 14 days).
Mr. LoFaro noted that proposed Merit Rule No. 20.8 establishes as step 3 in the grievance process the proceeding which was formerly step 4 or the appeal beyond the department or agency to the Director of the Office of State Personnel. The revisions in proposed Merit Rule No. 20.8 incorporate 3 notable changes according to Mr. LoFaro. First, the Director of the office of State personnel or her designee can now resort to informal resolution of the grievance where deemed appropriate and is not required to always conduct a hearing. The second important modification is the inclusion of a requirement which reflects the present Administration's determination that as far as state agencies were concerned, there should be finality at the level of the decision of the State Personnel Office. This is provided in the last sentence of proposed merit Rule No. 20.8 which states: "The Step 3 decision is final and binding upon agency management." According to Mr. LoFaro, this means that there will be no appeals by state agencies from Step 3 decisions to the Merit Employee Relations Board. Only employees who are not satisfied with the Step 3 (State Personnel Office) resolution will be able to appeal to MERB. The third change is the elimination of the present limitation on grievances of performance appraisals. Mr. LoFaro stated that the proposed new Merit Rule 20.8 establishing Step 3, did not contain the limitation on consideration of performance appraisals found in present Merit Rule No. 20.0340 and he stated that it was the intent to thereby also modify Merit Rule No. 21.0120 which establishes a further limitation on review of performance appraisals by MERB. However, Mr. LoFaro acknowledged that the Director had not sought the repeal of any portions of Chapter 21 of the existing Merit Rules and that the Board had not given public notice that it would consider any such repeal.
Mr. LoFaro also stated that it was the intent of the Director and of the Statewide Labor-Management Committee to require that all grievances processed through the Merit Rules should come to the Office of State Personnel for a Step 3 determination before being appealed to MERB. Mr. LoFaro acknowledged that existing Merit Rule No. 21.0110 provides for certain direct appeals to MERB without going through a Step 3 process. He noted that, while it was intended to eliminate direct appeals to assure an opportunity for a review by the Office of State Personnel, the Director had not sought repeal of Merit Rule No. 21.0110 and no public notice was given of consideration of the elimination of direct appeals to MERB for disciplinary dismissals, demotions, or suspensions.1
Mr. LoFaro stated that proposed Merit Rule No. 20.9 is intended to address appeals to the MERB and provides that they are to be "presented" in writing to the Board within 20 calendar days of the "receipt" of the Step 3 decision or within 20 calendar days of the informal meeting at Step 3 whichever is later.2
Proposed Merit Rule No. 20.10, according to Mr. LoFaro, continues the existing limitation on retroactive remedies contained in present Merit Rule No. 20.0371 providing that they apply only to the grievant and, for a continuing claim, are limited to 30 calendar days prior to the grievance filing date. Also, as presently provided in existing Merit Rule No. 20.0371, any financial settlement is to be reduced by the amount of the grievant's earnings during the period covered by the settlement regardless of source, excluding part-time income which was being received prior to separation.
Proposed Merit Rule No. 20.11, as previously noted by Mr. LoFaro, is not a change and continues the existing constraint on employees using state time for grievance preparation.
DISCUSSION, FINDINGS AND CONCLUSION
Under the provisions of 29 Del. C. §5914, Merit Rule changes which are proposed by the Director are to become final upon completion of the public hearing unless rejected by a majority of the members appointed to the Board. The Board finds that the Director's proposed changes which have been approved by the Statewide Labor-Management Committee are intended to simplify the grievance process by reducing the number of steps and making the other clarifications discussed above. The goal of simplification is worthwhile and the addition of agency finality at Step 3 should help to bring consistency to grievance decisions over time. The Board finds that it has been presented with no basis to reject the proposed modifications consisting of the repeal of existing Chapter 20 of the Merit Rules and its replacement with the proposed revised Chapter 20 consisting of Merit Rules 20.1 through 20.11 the exact text of which is attached to this Order. Under the circumstances, by unanimous vote of the members of the Board hearing this matter, the proposed changes are approved. The only written comment received concerned the entitlement of employees to process grievances during working hours and was adequately addressed in the presentation of Mr. LoFaro. It does not represent a significant change from the existing Merit Rule requirements.
According to Mr. LoFaro, it was the intent of the Statewide Labor-Management Committee to liberalize the existing limitations on the review of performance evaluations. The existing Merit Rules limit the consideration of performance evaluations in two locations. First, there is a limitation contained in Merit Rule No. 20.0340 (Step 4 of the grievance process) which provides that the State Personnel Office will not review employee performance appraisals because the decision of the agency head is final unless Merit Rule No. 21.0121 authorizes a further written review by the Personnel Commission. [MERB]3
This limitation in the present Chapter 20 will no longer be present with the repeal of existing Chapter 20. However, the Director did not seek and the Board did not give public notice of consideration of repeal of any portion of the existing Merit Rules other than existing Chapter 20 and thus cannot approve the repeal of Merit Rule No. 21.0121. The effect of this situation appears to be that after the effective date of these Merit Rule changes, an employee will be able to have his or her performance appraisal grievance considered by the Office of State Personnel as a part of Step 3 grievance but will only be able to appeal such grievance to the MERB if it meets the requirements of Merit Rule No. 21.0121.
Similarly, the Board cannot approve the elimination of direct appeals to the MERB which are provided for in Merit Rule 21.0111 because there has been no public notice of any consideration of such repeal. Mr. LoFaro's statement that such a result was intended by the Statewide Labor-Management Committee may make some sense from the standpoint of affording the Office of State Personnel the opportunity at Step 3 of the new grievance process (proposed Merit Rule No. 20.8). However, the Board may not repeal Merit Rule No. 21.0111 in the absence of due public notice. Therefore, as noted above, the Board will continue to accept direct appeal from certain disciplinary matters as provided in Merit Rule No. 21.0111.
The effective date of the repeal of the old Chapter 20 and the effective date of the proposed new Chapter 20 shall, in accordance with the request of the Director of the Office of State Personnel and in conformity with the provisions of 29 Del. C. §10118(e), be 10 days after the publication of this Order and new Merit Rules 20.1 through 20.11 in the Delaware Register of Regulations which should occur on August 1, 1999. All grievances filed after that date will be governed by the grievance procedure set forth in Merit Rule No. 20.1 through 20.11.
ORDER
For the foregoing reasons by the unanimous vote of the members of the Board noted above, Chapter 20 of the Delaware Merit Rules is repealed and replaced with the attached Merit Rules No. 20.1 through 20.11. The new Chapter 20 shall apply to grievances filed after the effective date as noted above.
BY ORDER OF THE BOARD
Robert Burns, Vice-Chairperson
Dallas Green, Member
John F. Schmutz, Esquire, Member
John W. Pitts, Member
*Please note that no changes were made to the regulation as originally proposed and published in the May 1999 issue of the Register at page 1934 (2:11 Del.R. 1934). Therefore, the final regulation is not being republished. Please refer to the May 1999 issue of the Register or contact the Merit Employee Relations Board.
3 DE Reg. 167 (08/01/99) (Final)
1 The Board notes that direct appeals to the MERB are provided for by statute in 29 Del. C. §5949(a) in certain limited instances: specifically, for dismissals, demotions or suspensions for more than 30 days. Existing Merit Rule No. 21.0110 is more liberal and provides for direct appeal to the MERB in cases of dismissal, demotion or suspensions of any period. The Board has previously liberally construed this Merit Rule and has heard grievance appeals of, for example, a one day suspension.
2 The Board notes that the terms "present", "receipt", and "issue" or "reply" are presently defined in Merit Rule No. 20.0300. This Rule is among those Rules in the existing Chapter 20 which the Director and the Statewide Labor-Management Committee have sought to have repealed. These terms are not expressly defined in the proposed new Chapter 20 Rules. It might be helpful to employees and managers alike to have a common understanding of these and similar terms. During the hearing, the Director noted the willingness of the State Personnel Office to design a form for use in filing grievances. It is suggested that any instructions for the use of such form should clearly set forth the expectations and requirements for the timely filing of a grievance.
3 The Board notes that throughout the present version of the Merit Rules the term "Personnel Commission" continues to appear even after legislation in 1995 replaced that Commission with the Merit Employee Relations Board. The Delaware Administrative Procedures Act in Section 10113 of Title 20 of the Delaware Code provides for the informal adoption of, among other things, "Amendments to existing regulations to make them consistent with changes in basic law but which do not otherwise alter the substance of the regulation" 29 Del. C. §10113(a)(5). Therefore, any future publications of the Merit Rules to incorporate changes to Chapter 20 should include appropriate ministerial corrections which may be informally accomplished.