DONALD R. MURPHY,
Grievant,
v. Docket No. 00-DOH-082
WEST VIRGINIA DEPARTMENT OF TRANSPORTATION,
DIVISION OF HIGHWAYS,
Respondent.
D E C I S I O N
This grievance has taken a protracted and arduous path to Level IV. On May 5,
1997, Donald R. Murphy (Grievant) and 22 other individuals initiated a class action
grievance pursuant to
W. Va. Code §§ 29-6A-1,
et seq., alleging that Respondent West
Virginia Department of Transportation, Division of Highways (DOH), had failed to follow
through and implement an agreement reached in settlement of an earlier grievance at
Level III pertaining to promotion of DOH employees to Transportation Worker IV (TW IV)
-Mechanic, and establishment of an approved training program for certification of
applicants as eligible to compete for TW IV-Mechanic vacancies. This unwritten
settlement agreement had been made to resolve a grievance filed by Grievant and Ronald
Reed on June 27, 1996, challenging certain TW IV-Mechanic promotion actions. The
grievance proceeded to Level III as the first and second level supervisors did not have
authority to grant the grievance. A Level III pre-hearing conference was held on November14, 1997. Thereafter, a Level III hearing was conducted on February 26, 1998. After
several months went by without a Level III decision, Grievants appealed to Level IV on
October 13, 1998, alleging that DOH was in default. On March 29, 1999, Administrative
Law Judge Denise Spatafore determined that this Grievance Board had no authority to
grant a default in a grievance that was initiated prior to July 1, 1998, consequently
remanding the grievance to Level III for decision on the merits. On February 12, 2000, a
Level III decision was issued by DOH Assistant Commissioner Thomas Badgett denying
the grievance. Of the 23 original employees who signed on to the class action grievance,
Grievant alone appealed to Level IV on February 28, 2000. After a pre-hearing telephone
conference was held on March 24, 2000, a Level IV hearing was conducted in this
Grievance Board's office in Elkins, West Virginia, on April 10, 2000.
(See footnote 1)
That hearing was
limited to Grievant's presentation of a closing argument. This matter became mature for
decision upon conclusion of the hearing.
Based upon a preponderance of the credible evidence contained in the record
established at Level III, the following Findings of Fact pertinent to resolution of this
grievance have been determined.
FINDINGS OF FACT
1. Grievant is employed by Respondent West Virginia Department of
Transportation, Division of Highways (DOH), as a TW III-Mechanic, assigned to the
Equipment Division in Buckhannon, West Virginia. G Ex 21. 2. On December 13, 1993, Keith R. Gilkerson filed a grievance challenging
DOH's failure to properly compensate him for performing field mechanic work normally
performed by a Mechanic IV. The Level III grievance evaluators found that Mr. Gilkerson
was performing the duties of a Mechanic IV, but could not be promoted to that
classification because he had not completed a certified mechanic training program through
DOH, and DOH had not offered such a program for several years. G Ex 12.
3. On April 19, 1995, DOH Commissioner Fred VanKirk issued a Level III
decision in Mr. Gilkerson's grievance which granted the following relief:
It is recommended that the amended relief sought by Grievant be
GRANTED IN PART. Grievant is currently earning compensation within the
pay grade for Transportation Worker IV. The Evaluators find that this
renders the question of pay for working out of classification moot. However,
the Evaluators recommend that the Equipment Division and the Human
Resources Division be directed to implement the necessary training and
testing program for Certified Mechanic as quickly as possible to remove the
artificial and arbitrary barrier to advancement which has been placed in the
path of Grievant and of others who may be similarly situated.
4. On December 19, 1995, a vacancy notice was posted for three TW IV-
Mechanic positions in the Equipment Division. G Ex 13. On that same date, another
vacancy notice was posted for a TW IV-Mechanic position at District Two in Ona, West
Virginia. G Ex 14.
5. Grievant applied for one of the TW IV-Mechanic vacancies in the Equipment
Division but was not selected for promotion.
6. On June 27, 1996, Grievant and Ronald Reed filed a grievance challenging
the manner in which the posted TW IV-Mechanic positions had been filled. 7. On October 21, 1996, four TW IV-Mechanic positions in the Equipment
Division were posted. G Ex 17. Grievant again applied to fill one of these posted
vacancies. None of these positions have been filled because there is no certification
program in place to verify that applicants meet the minimum requirements for the position.
8. Jeff Black is employed by DOH as its Director of Human Resources.
9. On November 7, 1996, immediately prior to a scheduled Level III hearing, Mr.
Black agreed to settle the grievance submitted by Mr. Reed and Grievant which challenged
DOH's failure to select them for promotion to TW IV-Mechanic, verbally agreeing to
implement the training program for TW IV-Mechanic described in the
Gilkerson Level III
decision.
10. Since the
Gilkerson decision was issued, DOH's Human Resources Division
and Equipment Division have not reached an agreement on how a certification program
for TW IV-Mechanic should be structured.
11. Under the previous certification program for TW IV-Mechanic, training and
testing was provided on one occasion during 1988, and resulted in approximately 40 to 50
people receiving certification, thereby making them eligible for promotion to TW IV-
Mechanic. However, because DOH only had approximately 15 TW IV-Mechanic positions
statewide at that time, and there was limited turnover in those positions, many employees
who were certified to fill TW IV-Mechanic positions did not have an opportunity for
promotion.
12. The 1988 training program was never repeated. Subsequent efforts to
implement a training program for TW IV-Mechanics have been stalled by an inability of theHuman Resources Division and Equipment Division to reach a consensus on how to match
training opportunities more closely to existing vacancies, so that employees who
successfully complete the training have a realistic opportunity for advancement.
13. On November 24, 1997, DOH formally rescinded the certification program
for TW IV-Mechanics. A Ex 1. DOH is in the process of phasing out or eliminating the TW
IV position.
DISCUSSION
As this grievance does not involve a disciplinary matter, Grievant has the burden
of proving his grievance by a preponderance of the evidence. Procedural Rules of the
W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996);
Payne v.
W. Va. Dep't of Energy, Docket No. ENGY-88-015 (Nov. 2, 1988).
See W. Va. Code § 29-
6A-6.
This grievance arose from a failure to implement a settlement agreement that was
intended to resolve an earlier grievance. This Grievance Board has previously noted that
the law favors and encourages resolution of controversies by contracts of compromise and
settlement rather than by litigation. Consequently, the Grievance Board has authority to
uphold and enforce such contracts, provided they are fairly made, and not in contravention
of some law or public policy.
Lowe v. W. Va. Div. of Corrections, Docket No. 99-CORR-
095 (June 10, 1999).
See McDowell County Bd. of Educ. v. Stephens, 191 W. Va. 711,
447 S.E.2d 912 (1994). Thus, the Grievance Board may review and interpret a settlement
agreement in accordance with the definition of grievance set forth in
W. Va. Code § 29-6A-2(i).
See Kyle v. W. Va. Div. of Corrections, Docket No. 99-CORR-077D (Aug. 3,
1999);
Patrick v. W. Va. Dep't of Transp., Docket No. 94-DOH-571 (Apr. 21, 1995).
Due to events that have occurred during the years since Grievant first began
pursuing a meaningful promotion opportunity to TW IV, including a DOH decision to phase
out all TW IV-Mechanic positions, enforcing the specific terms of the 1997 settlement
agreement, or the earlier Level III decision in
Gilkerson, would now be problematic.
Grievant appears to have recognized this dilemma. At the Level IV hearing, he clarified
the relief he is seeking by stating that he wants to be moved to a TW IV-Mechanic position,
and advanced two steps within his current pay grade, plus back pay with interest,
retroactive to the date in 1996 when he filed his original grievance. Grievant did not ask
to void the settlement agreement and reinstate his previous grievance.
Unfortunately for Grievant, he has not established a proper basis for being awarded
the relief he seeks. Grievant has not shown that he met the requirements for promotion
to TW IV-Mechanic at the time he applied for one of the posted vacancies. More
importantly, Grievant has not demonstrated how DOH's failure to honor the terms of the
settlement agreement reached in 1997, or to comply with the Level III decision issued in
1996, warrants the retroactive pay raise Grievant is now pursuing at Level IV. Although
timely compliance with either the Level III decision in
Gilkerson, or the settlement
agreement reached in the grievance filed by Grievant and Mr. Reed, would have created
additional opportunities for DOH TW III-Mechanics to advance to TW IV, whether Grievant
would have been included among the employees who were best qualified for promotion
is entirely speculative. This Grievance Board does not award relief which is purelyspeculative.
See,
e.g.,
Johnson v. Dep't of Health & Human Resources, Docket No. 98-
HHR-302 (Mar. 18, 1999);
Snodgrass v. Kanawha County Bd. of Educ., Docket No. 97-20-
007 (June 30, 1997);
Glasscock v. W. Va. Div. of Corrections, Docket No. 93-CORR-529
(Nov. 30, 1994).
Consistent with the foregoing discussion, the following Conclusions of Law are
made in this matter.
CONCLUSIONS OF LAW
1. In a grievance which does not involve a disciplinary matter, the grievant has
the burden of proving his grievance by a preponderance of the evidence. Procedural
Rules of the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996);
Payne v. W. Va. Dep't of Energy, Docket No. ENGY-88-015 (Nov. 2, 1988).
See W. Va.
Code § 29-6A-6.
2. Grievant failed to establish any entitlement to the relief he is seeking in the
form of a retroactive promotion or pay raise based upon his employer's failure to comply
with a Level III decision in a grievance filed by another employee, or his employer's failure
to implement a settlement agreement reached in a grievance which Grievant had filed.
Accordingly, this grievance is DENIED.
Any party, or the West Virginia Division of Personnel, may appeal this decision to
the Circuit Court of Kanawha County, or to the "circuit court of the county in which the
grievance occurred." Any such appeal must be filed within thirty (30) days of receipt of this
decision. W. Va. Code § 29-6A-7 (1998). Neither the West Virginia Education and State
Employees Grievance Board nor any of its Administrative Law Judges is a party to such
appeal and should not be so named. However, the appealing party is required by W. Va.
Code § 29A-5-4(b) to serve a copy of the appeal petition upon the Grievance Board. The
appealing party must also provide the Board with the civil action number so that the record
can be prepared and properly transmitted to the appropriate circuit court.
LEWIS G. BREWER
ADMINISTRATIVE LAW JUDGE
Dated: April 26, 2000
Footnote: 1 Grievant appeared pro se. Because Grievant did not want to place any new
evidence in the record, counsel for DOH, Nedra Koval, waived participation in the Level
IV hearing.