Issue: Compliance/Hearing Decision; Ruling Date September 28, 2001; Ruling #2001-154; Agency: Virginia Commonwealth University; Outcome; agency out of compliance

In the matter of Virginia Commonwealth University

Ruling Number 2001-154

September 28, 2001

Virginia Commonwealth University (VCU) has requested this Department to order the hearing officer who presided over hearing case #5226 to amend or correct his Reconsideration Decision. For the reasons set forth below, this Department declines to do so.

On July 13, 2001, the hearing officer issued a decision in hearing case # 5226. On July 20, 2001, the hearing officer received a timely Request for Reconsideration from the grievant. On July 23, 2001, the hearing officer received a timely Request for Reconsideration from VCU. On July 25, 2001, the hearing officer issued his Reconsideration Decision. In that decision, the hearing officer denied both requests.

On August 15, 2001, VCU petitioned this Department to review the July 25^th Reconsideration Decision based on language contained in that decision. Specifically, VCU objected to the hearing officer’s statement that he had "considered whether to order the University to transfer the grievant to another position" but declined to do so because it would have resulted in a salary reduction. VCU objects to this language because VCU asserts that the statement directly contradicts the Grievance Procedure Manual, and "it could be cited as authority for a Hearing Officer to do something not allowed under the Grievance Procedure."

VCU is correct in that a hearing officer has no authority to transfer an employee. The Grievance Procedure Manual states that the "[h]iring, promotion, transfer, assignment, or retention of any employee" are examples of relief not available under the grievance procedure.¹ It should be noted, however, that the hearing officer stated only that he considered ordering the transfer of the grievant; he did not order a transfer. The statement to which VCU objects merely reflects that the hearing officer considered deliberated over an option that would not have been permitted under the grievance procedure. In other words, the statement is factually correct: it simply shows that the hearing officer considered a form of relief, albeit one that he was not authorized to grant under the grievance procedure. Moreover, this error, if it indeed can be characterized as such, in no way determined the outcome of the decision.

This Department understands the agency’s concern that the Reconsideration Decision could be cited as authority. However, any such reliance by a party or another hearing officer would obviously be misplaced. First, under the Virginia Code management reserves the exclusive right to manage the affairs and operations of state government. ² Incumbent in that right is management’s complete discretion to decide who is best suited to occupy a particular position. This discretion may not be abrogated or supplanted by the judgment of a hearing officer. Secondly, the hearing officer only mused over the notion of transferring the grievant. Citations to mere ruminations, in other words dicta, are typically not considered binding or particularly persuasive authority. Finally, this ruling should serve to dispel the notion that a hearing officer can order such relief. Accordingly, this Department will not require the hearing officer to issue yet another opinion.

Neil A.G. McPhie, Esquire
Director

William G. Anderson, Jr.
Employment Relations Consultant