Issue: Qualification/Salary Disputes; Ruling Date July 10, 2001; Ruling #2001-092; Agency: Department of Corrections; Outcome: Not qualified

In the Matter of Department of Corrections
Ruling #2001-92
July 10, 2001

The grievant has requested a ruling on whether her March 14, 2001 grievance with the Department of Corrections (DOC) qualifies for a hearing. The grievant challenges DOC’s reduction of her pay following its discovery of an erroneous overpayment. For the reasons set forth below, this grievance does not qualify for a hearing.

The grievant applied for the advertised position of Food Operations Manager A and was ultimately selected for that position on November 20, 2000. She claims that she was informed during the hiring process that there would be no difference in pay if she were selected for this position, as it would be a lateral transfer. The agency subsequently informed the grievant that it had erroneously characterized the move as a "Lateral Transfer" and that the correct term was a "Voluntary Transfer-Competitive."¹ She was further informed that her salary would decrease by 2.2% (one "step" under the system that preceded the current compensation policy) because she was moving from a security position to a non-security position.

The second step respondent explained that the misinformation was a result of human error by a human resource staff member during the transition to the Commonwealth’s new compensation plan. Significantly, an apology was offered and the grievant was given an opportunity to return to her former position with the difference in her reduction of pay returned to her.² Grievant chose to remain in the Food Operations Manager position, which is a non-security position.

During this investigation, HR confirmed that DOC had granted all security personnel a 13.25% increase in 1999 to encourage personnel to remain in security positions. It is agency practice to reduce the salary if personnel move from security to non-security positions. Consistent with agency practice, the agency reduced the grievant's pay when she moved from a security to a non-security position. The 2.2% reduction in pay first appeared in her March 1, 2000 paycheck.

By statute and under the grievance procedure, management reserves the exclusive right to manage the affairs and operations of state government.³ Therefore, claims relating to issues such as the establishment and revision of wages, salaries, or general benefits and the contents of established personnel policies, procedures, rules and regulations generally do not qualify for 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.⁴ In this case, the grievant alleges that DOC violated policy by not allowing her to keep her original salary ($25,881) as promised for the Food Operations Manager position. The grievant claims that even if the promise was a mistake, the agency, not she, should bear the effects.

For a claim of misapplication of policy or unfair application of policy 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 controlling policy in this grievance is DHRM Policy No. 3.05. ⁵According to Policy 3.05, when an employee competes for a different position in the same Pay Band, the action is considered a Voluntary Transfer- Competitive and the employee’s salary is negotiable between the minimum of the Pay Band up to 15% above the current salary.⁶ Here, the grievant competed for a different position (Food Operations Manager) in the same Pay Band (Pay Band 3) as her original position (Correctional Officer, Senior), thus, DOC has now correctly designated the grievant’s move into the Food Operations Management position as a Voluntary Transfer-Competitive. Accordingly, under Policy 3.05, the grievant could have received a salary offer anywhere from $19,811 (the minimum of the pay band)⁷ up to $29,763 (15% above current). The grievant was approved for a salary of $25,311. This salary fell within the parameters set by policy. Therefore, while DOC’s error was admittedly unfortunate, DOC properly applied policy guidelines in offering this salary to the grievant for the position of Food Operations Manager.

While disappointing to the grievant that the promise to allow her to remain at her original salary could not be kept, it was neither unfair, nor a misapplication of policy. Indeed, it would be unfair to allow one employee to benefit over others due to a correctable management error. Furthermore, in order to rectify its error, the agency offered the grievant her former security position back at her former rate of pay. The agency also offered to reimburse the grievant for the pay deducted from her paycheck during the time period when she was contesting the pay reduction. She declined these offers. Accordingly, this Department concludes that DOC’s action in reducing grievant’s pay did not violate a mandatory policy provision nor was it so unfair as to amount to a disregard of the intent of the applicable policy. Therefore, this grievance does not qualify for hearing.

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, please 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 will 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

Deborah M. Amatulli
Employment Relations Consultant