Issue: Qualification: Position/Classification; Working out of Class-Failure to Take Action; Reallocation; Ruling Date July 18, 2001; Ruling #2001-062; Agency: Department of Alcoholic Beverage Control; Outcome: Not qualified

COMMONWEALTH of VIRGINIA

In the matter of Department of Alcoholic Beverage Control/ No. 2001-062
July 18, 2001

The grievant has requested a ruling on whether her grievance with the Department of Alcoholic Beverage Control (ABC) qualifies for a hearing. The grievant asserts that management misapplied agency policy by denying her an in-band adjustment. For the reasons discussed below, this grievance does not qualify for hearing.

The grievant is employed as a Procurement Practitioner I. The grievant’s Division Director submitted to the Division of Human Resources(HRD) a "Pay Practice Action" form to request an in-band adjustment for the grievant.¹ The Director listed on the form certain changes in the grievant’s duties and professional/skill development that he believed warranted the adjustment. HRD reviewed the in-band adjustment request and supporting documentation and on November 16, 2000, recommended that no adjustment be given. On November 21, 2000, the agency’s Compensation Management and Review Committee reviewed and adopted HRD’s recommendation and finding that the position was already properly classified and compensated. On December 7, 2000, pursuant to the provisions of the agency’s Salary Administration Plan, the grievant’s supervisor appealed the Committee’s action to the Chief Operating Officer (COO). On March 16, 2001, the COO upheld the actions of the Compensation Committee and denied the in-band adjustment.

The employment dispute resolution statutes reserve to management the exclusive right to manage the affairs and operations of state government.² Inherent in this right is the discretion to make compensation decisions. Therefore, challenges regarding such decisions do not qualify for a hearing unless the grievant presents evidence raising a sufficient question as to whether discrimination, retaliation, or discipline may have improperly influenced management’s decision, or whether state policy may have been misapplied.³ The grievant asserts that management misapplied the compensation policy in denying her in-band adjustment by relying on inaccurate and outdated information.

For a misapplication of policy claim to qualify for a hearing, there must be facts that raise a sufficient question as to whether management violated a mandatory policy provision, or whether the challenged action, in its totality, was so unfair as to amount to a disregard of the intent of the applicable policy. The applicable statutes and policies in this case are found in the Code of Virginia and in the Department of Human Resource Management (DHRM) Policy and Procedure. The Virginia Personnel Act requires that "[e]ach position in the service of the Commonwealth shall be allocated to the appropriate class title therein" and "for each class of positions there shall be set forth a minimum and maximum rate of compensation."⁴ Department of Human Resources Management (DHRM) Policy 3.05 provides further that state agency compensation responsibilities include the development and utilization of an Agency Salary Administration Plan to outline "implementation of the Compensation Management System" and for "ensuring consistent application of pay decisions."⁵

Similarly, ABC’s Salary Administration Plan states that its purpose is to provide "for equity in determining compensation levels for employees based on established pay factors." Under ABC’s Plan, in-band adjustments for personnel reporting to the Chief Operating Officer (such as the grievant) are determined by the Compensation Management and Review Committee, with input from Human Resources and may be granted for the following reasons: (1) change in duties, (2) professional/skill development, (3) retention, and (4) internal alignment.⁶

Thus, under state and agency policy, ABC is obligated to review in-band adjustment requests, analyze the appropriate factors and determine what, if any, compensation adjustment would be appropriate and consistent with its other pay decisions. Importantly, the grievance procedure accords much deference to management’s exercise of judgement, including management’s assessment of the degree of change, if any, in the job duties of a position.⁷ Accordingly, this Department has long held that a hearing officer may not substitute his or her judgement for that of management regarding the correct classification of a position. These basic principles hold true under the Commonwealth’s compensation reforms as well. Thus, a grievance that challenges the substance of an agency’s assessment of a position’s job duties does not qualify for a hearing unless there is sufficient evidence that the assessment was arbitrary or capricious, or that the resulting pay practice decision was plainly inconsistent with other pay practice decisions within the agency.

In this case, the grievant’s pay action worksheet and her 1995 and 2000 position descriptions were reviewed by Human Resources at the initiation of management’s in-band adjustment request. Upon review of the supporting data and in consideration of the pay determination factors, Human Resources recommended that no pay action be taken. Specifically, Human Resources found that the grievant’s current duties were "typical" for the Procurement Practitioner I position and that there had been "no substantive changes in the duties" since 1995.⁸ That finding and recommendation were forwarded to the Compensation Management and Review Committee, which denied the request. The Committee’s decision was appealed to the Chief Operating Officer who reviewed the materials and supporting documentation and upheld the Committee’s decision. Thus, each successive step of the compensation determination process involved management review of the grievant’s qualifications and current duties and responsibilities. Further, the grievance presents no evidence that the determination was arbitrary, capricious, or inconsistent with other pay practice decisions within the agency.

In light of the above, it appears that management fulfilled its responsibility under policy to review and determine the propriety of granting an in-band adjustment. Although the grievant may disagree with management’s assessment of her position, her grievance does not raise a sufficient question as to whether state or agency policy was misapplied or unfairly applied, through the use of outdated, inaccurate information or otherwise.

For information regarding the actions the grievant may take as a result of this ruling, please refer to the enclosed sheet. If the grievant wishes to appeal this determination to the circuit court, she must notify the human resources office, in writing, within five workdays of receipt of this ruling. If the court should qualify this grievance, within five workdays of receipt of the court’s decision, the agency must request the appointment of a hearing officer unless the grievant notifies the agency that she does not wish to proceed.

Neil A.G. McPhie, Esquire
Director

Tracey D. Watkins
Employment Relations Consultant