Issue: Qualification/Position/Classification/Reallocation; Ruling Date August 2, 2001; Ruling #2001-100; Agency: Department of Transportation; Outcome: Qualified

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

QUALIFICATION RULING OF DIRECTOR

In the matter of Department of Transportation/ No. 2001-100
August 2, 2001

The grievant has requested a ruling on whether his October 27, 2000 grievance with the Department of Transportation (VDOT) qualifies for hearing. The grievant claims that management misapplied or unfairly applied state policy when his position was not reallocated. As relief, the grievant requests a four-step pay increase and back pay retroactive to July 1999. For the reasons discussed below, the grievance qualifies for hearing.

FACTS

The grievant is employed as a Transportation Operations Manager. Prior to the September 25, 2000 implementation of the Commonwealth’s compensation reform, his job title was Transportation Maintenance Supervisor (Grade 8).

In 1999, VDOT conducted an agency-wide study of the Traffic Engineering class to determine, in part, better ways to recruit and retain these employees who were deemed critical to the agency’s mission. As a result of the study, the Department of Personnel and Training (now the Department of Human Resource Management, or DHRM) granted VDOT permission to regrade all the positions in its engineering series and to give the incumbents a four–step pay increase.1 Among those included in the regrade and four-step increase were five Engineering Technicians II positions (regraded to Grade 7) under the grievant’s direct supervision. The grievant and other members of the Transportation Management class were not included in the regrade and did not receive a pay increase. The grievant contends that management improperly failed to classify his position as part of the Transportation Engineering class prior to the agency-wide regrade,2 thereby denying him a rightful four-step pay increase.

DISCUSSION

By statute and under the grievance procedure, management is reserved the exclusive right to manage the affairs and operations of state government.3 Further, complaints relating solely to the establishment and revision of salaries and position classifications "shall not proceed to a hearing."4 Therefore, challenges regarding reallocation decisions do not qualify for a hearing unless there is sufficient evidence of discrimination, retaliation, discipline or a misapplication or unfair application of policy.5

The grievant alleges misapplication or unfair application of policy and procedure. For such a claim to qualify for a hearing, there must be evidence raising a sufficient question as to whether management violated a mandatory policy or procedural provision, or whether the challenged action, in its totality, is so unfair as to amount to a disregard of the intent of the applicable policy or procedure. Significantly in this case, the General Assembly has recognized that the Commonwealth’s system of personnel administration should be "based on merit principles and objective methods" of decision-making.6 In addition, the Commonwealth’s classification plan "shall provide for the grouping of all positions in classes based upon the respective duties, authority, and responsibilities," with each position "allocated to the appropriate class title."7 Moreover, the Commonwealth’s "compensation plan shall be uniform; and for each class of positions there shall be set forth a minimum and maximum rate of compensation and such intermediate rates as shall be considered necessary or equitable."8

Further, state policy in effect during most of the time period addressed by this grievance (July 1999 to September 25, 2000) provided that an employee’s position must be allocated to its appropriate class on the basis of assigned duties and responsibilities;9 that state agencies have the general duty "to conduct continuing reviews of the duties and responsibilities of all included positions in their agencies to ensure that positions are properly classified; 10and that "all positions should be reviewed at least once every two years."11

The above statutes and policies require an agency to allocate positions having substantially the same duties and responsibilities to the same classification.12 In addition, it would follow that the methods and procedures used by the agency to determine whether specific positions (like the Transportation Maintenance Supervisor) merit reallocation to another classification (or "band," the current term) should be applied consistently throughout the agency.

The evidence in this case raises a sufficient question as to whether the policies discussed above were accurately, consistently and fairly applied with respect to the grievant’s position classification. Under state policy, VDOT was obligated to conduct a job classification review of the grievant’s position as reasonably necessary, but at least every two years. During the investigation for this ruling, the agency acknowledged that a job classification review of the grievant’s position had not been performed within the two years prior to the initiation of the agency-wide engineering class regrade in July 1999, the September 25, 2000 implementation of compensation reform, or within two years of the initiation of this grievance.13 Accordingly, the grievance qualifies for a hearing.

APPEAL RIGHTS AND OTHER INFORMATION

For additional information regarding the actions the grievant may take as a result of this ruling, please refer to the enclosed sheet. Please note that this determination cannot be construed as a finding that the agency misapplied or unfairly applied applicable policy or procedure. Only a hearing officer can make such a determination, after a full exploration of the facts. Even if the hearing officer finds that the agency misapplied the state’s classification and reallocation policies, the hearing officer may only direct the agency to apply those policies correctly and to compensate the grievant, if appropriate, in accordance with policy.14 A hearing officer may not substitute his judgement for that of management’s regarding the correct classification or level of an employee’s position.15 Thus, a hearing officer may not order the agency to classify the grievant’s position at a certain level, award monetary damages, or grant any other form of relief.16

Neil A.G. McPhie, Esquire
Director

June M. Foy
Employment Relations Consultant

1 Although the grievant cites that pay increases were granted under the provisions of the Competency Based System (CBS) Pilot Pay Program, the CBS Program was never fully implemented. The program was terminated effective on June 30, 1999 without granting any pay increases.
2 Earlier in 1995, selective positions at the residency level, performing duties similar to those of grievant, were reallocated as Engineer Technician IV, thereby qualifying the incumbents for the 1999 regrade and four-step pay increase.
3 See Va. Code § 2.1-116.06.B.
4 See Va. Code § 2.1-116.06.C.
5 See Grievance Procedure Manual, pages 10-11. The grievant does not allege discrimination, discipline or retaliation.
6 See Va. Code § 2.1-110.
7 Va. Code § 2.1-114.2(A).
8 Va. Code § 2.1-114.2(B).
9 DHRM Policy 3.05 (IV) (C) (effective September 16, 1993).
10 DHRM Policy 3.05 (IV)(D)(1)(effective September 16, 1993).
11 DHRM Policy 3.05(IV)(D)(2)(effective September 16, 1993).
12 There was one stated exception to the Commonwealth's general policy that positions were to be allocated to the appropriate class-an agency "may reassign the work of an employee on a temporary basis for a period not to exceed 180 calendar days without affecting the allocation of the position, and without requiring a job classification review." (See DHRH Policy 3.05(IV)(C )(3))(effective September 16, 1993). This exception does not apply in this case.
13 The agency acknowledged that the grievant's position was last audited in October 1996.
14 If the grievant should prevail at hearing, his pay adjustment (e.g., back pay), if any, would be confined to the 30-calendar day period preceding his October 27, 2000 grievance. Compare Brinkly-Obu v. Hughes Training, Inc., 36 F.3d 336 (4th Cir. 1994)(in context of a Title VII or Equal Pay Act violation, relief is available only for the designated statutory time) with Va. Code § 2.1-116.05 (D)(in context of an employee grievance, designated time to file is 30 calendar days).
15 Va. Code § 2.1-116.06(B) and (C).
16 See Rules for Conducting Grievance Hearings, page 10.