ROGER LeMASTERS,

                  Grievant,

                                                      Docket No. 00-DJS-050

DIVISION OF JUVENILE SERVICES/NORTH
CENTRAL REGIONAL JUVENILE DETENTION
CENTER and DIVISION OF PERSONNEL,

                  Respondents.

D E C I S I O N

      This grievance was filed on December 22, 1999, by Grievant, Roger LeMasters against his employer, Respondent, Division of Juvenile Services/North Central Regional Juvenile Detention Center ("DJS"). The statement of grievance reads:

As relief Grievant sought compensation “for past service as Lead Staff and relieved of the responsibility of Lead Staff.” Although Grievant testified at Level III that he had been performing the duties of a Juvenile Detention Officer II for three years, his representative stated that he was only seeking back pay for two years.   (See footnote 1)        The following Findings of Fact are made based upon the record developed at Levels III and IV.
Findings of Fact

      1.      Grievant has been employed by DJS as a Juvenile Detention Officer (“JDO”) I, pay grade 7, for over two years, and is stationed at the North Central Regional Juvenile Detention Center (“JDC”) in Parkersburg, West Virginia. Prior to that, he was employed by the West Virginia Department of Health and Human Resources as a Youth Service Worker I at the same facility for approximately three years, until DJS took over operation of the JDC in November 1997.
      2.      Grievant has been performing “Lead Officer” duties for three years on those occasions when there is no supervisor assigned to his shift. Sometimes he performs these duties when there is a supervisor on his shift. Grievant did not know how often he had performed Lead Officer duties, except for December 1999, when he had acted as Lead Officer on 11 shifts.
      3.      As a Lead Officer, Grievant steps in for the supervisor, a JDO II, pay grade 9, and is in charge of the shift. He shows new employees around and explains the rules to them. If someone calls off work unexpectedly, he must find a replacement for that shift. He assigns duties to other JDO I's on his shift, such as laundry, security, answering the telephone, and food services, and he assigns these duties to himself also. He takestelephone calls from lawyers and probation officers, and makes decisions on rules for other staff.
      4.      Grievant does not complete performance evaluations, although he has given his supervisor his opinion on the performance of other employees. He does not respond at Level I to grievances, and he does not participate in hiring or disciplining employees.
      5.      Grievant's salary is below the minimum starting salary for a JDO II.
Discussion

      Although DJS raised a timeliness defense at Levels II and III, it did not pursue this argument at Level IV, and it is deemed abandoned. Nonetheless, it argued in its post- hearing written argument that “relief is limited to prospective relief from and after ten days preceding the filing of the grievance,” and cited Martin v. Randolph County Board of Education, 195 W. Va. 297, 465 S.E.2d 399 (1995), W. Va. Code § 29-6A-2, and Vaught v. Division of Corrections, Docket No. 99-CORR-070 (Sept. 7, 1999). In Vaught, however, the respondent had raised a timeliness defense. Vaught follows the precedent of this Grievance Board, that in a misclassification grievance filed by a state employee, if a timeliness defense is raised by the respondent, the relief is limited to10 days preceding the filing of the grievance. Delbart v. Dep't of Health and Human Resources, Docket No. 99- HHR-458 (April 21, 2000); Barnett v. W. Va. Dep't of Health and Human Resources, Docket No. 99-HHR-144 (July 20, 1999); Craig v. Dep't of Health and Human Resources, Docket No. 98-HHR-334 (June 24, 1999). If no timeliness defense is raised, however, the relief is not so limited. Kimble v. Dep't of Health and Human Resources, Docket No. 99- HHR-153 (Sept. 16, 1999); Coutz v. Bureau of Employment Programs, Docket No. 98-BEP-260 (Dec. 16, 1998). See Schrader v. W. Va. State Auditor, Docket No. 99-AUD-078 (Aug. 31, 1999).
      Grievant bears the burden of proving his allegations by a preponderance of the evidence. W. Va. Code § 29-6A-6. Mowery v. W. Va. Dep't of Natural Resources, Docket No. 96-DNR-218 (May 30, 1997). The first issue is whether the duties Grievant performs as a Lead Officer are included in the duties of a JDO I. This requires a review of the classification specifications for the JDO I and JDO II.
      The Division of Personnel's classification specifications generally contain five sections as follows: first is the "Nature of Work" section; second, "Distinguishing Characteristics"; third, the "Examples of Work" section; fourth, the "Knowledge, Skills and Abilities" section; and finally, the "Minimum Qualifications" section. These specifications are to be read in "pyramid fashion," i.e., from top to bottom, with the different sections to be considered as going from the more general/more critical to the more specific/less critical. Captain v. W. Va. Div. of Health, Docket No. 90-H-471 (Apr. 4, 1991). For these purposes, the "Nature of the Work" section of a classification specification is its most critical section. See generally, Dollison v. W. Va. Dep't of Employment Security, Docket No. 89-ES-101 (Nov. 3, 1989). Importantly, the Division of Personnel's interpretation and explanation of the classification specifications at issue should be given great weight unless clearly wrong. See, W. Va. Dep't of Health v. Blankenship, 189 W. Va. 342, 431 S.E.2d 681, 687 (1993).
      An employer may certainly assign an employee some duties which are not within the classification specification. Class specifications are descriptive, not exhaustive, andare to give a “flavor” of the difficulties, complexities, and duties of the position. Hager v. Health and Human Resources, Docket No. 95-HHR-241 (Sept. 29, 1995). However,

Reed v. W. Va. Div. of Corrections, Docket No. 97-CORR-127 (May 22, 1998). The Supreme Court of Appeals of West Virginia held in American Federation of State, County & Municipal Employees v. Civil Service Commission, 174 W. Va. 221, 324 S.E.2d 363 (1984) (AFSCME I), that "the doctrine of equal pay for equal work, as embraced by W. Va. Code §29-6-10(2) (1992), requires that state employees employed in a particular employment classification, but performing work in another classification that is compensated at a higher pay grade, be paid consistent with the higher classification." Shremshock v. W. Va. Dep't of Transp., Docket No. 94-DOH-095 (Aug. 31, 1994).
      The classification specifications for the JDO I and JDO II follow.
JUVENILE DETENTION OFFICER I

Nature of Work
Under general supervision, at an entry level position encompasses the redirection of juvenile resident behaviors through the use of behavioral services plans and supervision and monitoring of juvenile resident activities. Instructs juvenile residents on basic living skills and social skills. Performs daily tasks involving completion of daily documentation on juvenile activities, filing necessary documentation and laundry chores. Requires 24-hour shift rotation, and an element of personal risk and physical danger is involved. Performs related work as required.

Distinguishing CharacteristicsAn entry level position requiring the ability to learn and follow through on daily responsibilities. Requires closer supervision until the supervisor determines that the Juvenile Detention Officer I can function in an independent role.

Examples of Work

Observes and monitors residents to detect prohibitive behaviors while implementing behavioral health plan basics.
Interacts with residents to facilitate development of living and social skills; reinforces positive behavior; offers alternatives to inappropriate behavior; listens and responds appropriately to residents requests and problems; gives feedback.
Encourages resident participation, while coordinating and participating in recreational and other activities.
Supervises residents during hygiene activities.
Under the guidance of educational personnel provides tutoring to residents.
Reviews case records, staff notes, administrative regulations and memorandums.
Completes all paperwork including but not limited to: daily sign-in sheet; daily staff log; individual case records sheets; telephone call sheet; visitation log; incident reports; medications sheets; personnel forms; time sheets; meal count log.
Files required resident documentation in case records.
Assists in the planning of recreation and other activities.
Participates in staff meetings, training sessions, case staffing and other related meetings.
Meets with supervisor and other management staff as required.
Provides physical intervention techniques when required and directed by the supervisor.
Performs laundry tasks.
Recognizes and responds to emergencies (or potential emergencies) such as fire, escapes, or power outages.
Must wear the uniform of a Juvenile Detention Officer I while on duty.
May dispense and document the use of prescribed medications.
May administer intake procedures by recording biographical and family information; reads legal rights to each youth; documents and retains personal valuables of each youth.
May maintain security of facility and detainment of youths; may conduct periodic search of facility; may search for contraband.

JUVENILE DETENTION OFFICER II


Nature of Work

Under general supervision, a full-performance level position encompassing the redirection of juvenile resident behaviors through the use of behavioral services plans and supervision and monitoring of juvenile resident activities. Instructs juvenile residents on basic living skills and social skills. Performs daily tasks involving completion of daily documentation on juvenile activities and laundry chores. Leads the work of others. Requires 24-hour shift rotation, and an element of personal risk and physical danger is involved. Performs related work as required.
Distinguishing Characteristics

A Juvenile Detention Officer II typically acts as a lead worker in the training, scheduling, and review of the work of co workers. The worker is directly responsible for overseeing youth that are potentially dangerous and may require physical control. Also, performs the duties of a Juvenile Detention Officer I.

Examples of Work

Trains lower level workers in the security procedures of the facility; advises workers on problems of incarcerated youths and how to deal with them effectively.
Implements behavioral service plans.
Interacts with residents to facilitate development of living and social skills; reinforces positive behavior; offers alternatives to inappropriate behavior; listens and responds appropriately to resident requests and problems, giving feedback.
Encourages resident participation, while coordinating and participating in recreational and other activities.
Documents injuries to residents and staff; complete incident reports.
Plans recreation and other resident activities.
Participates in staff meetings, training sessions, resident case staffing and other related meetings.
Meets with supervisor and other management staff as required.
Provides physical intervention techniques when required and directed by supervisor.
Reviews case recordings, staff notes, administrative regulations and memorandums.
Completes all paperwork including but not limited to: daily sign-in sheet; daily staff log; individual case records; telephone call sheet; incident reports; medications sheets; personnel forms; time sheets; meal count log.
Recognizes and responds to emergencies (or potential emergencies) such as fire, escapes, or power outages.
Must wear the uniform of a Juvenile Detention Officer II while on duty.
May take pre-admission referral information to determine appropriateness of admission to detention.
May complete all intake and admission procedures, provides residents with explanation of legal rights, and conducts resident orientation and review of resident handbook; insures resident rights are maintained.
May dispense and document the use of all prescribed medications.
May assist in the monitoring of residents during hygiene activities.
May have to occasionally perform the duties of a Juvenile Detention Officer I.
May schedule employees time to assure an adequate work force at all times.
May maintain security of facility and detainment of youths; may conduct periodic search of facility; may search for contraband.

      Lowell D. Basford, Assistant Director in charge of the Division of Personnel's Classification and Compensation Section, explained that the JDO series has to be appliedin the context of the size of the facility. He stated in this instance the JDC is small (one witness explained that the facility is only 100 feet wide, and the employees can shout from one end to the other), and the JDC has only two employee classifications, JDO I and JDO II, in addition to the facility Director, with 13 employees classified as JDO I's and 3 classified as JDO II's. He stated when the Director is on site, he is in charge. He testified that the JDO I and JDO II classifications are similar due to the role of the positions, which requires each employee to have a significant amount of responsibility, with the primary responsibility being the security and care of the residents. He stated the JDO II has a formally assigned supervisory responsibility, which is ongoing and a permanent part of their job. The JDO II is responsible for answering grievances and participating in evaluating subordinates. He further explained that a JDO I may be assigned the duties of a Lead Officer occasionally. Nonetheless, he admitted in the Division of Personnel's written argument that Grievant is performing some duties which are outside his classification.
      Comparing the JDO I and JDO II classification specifications, and considering the Division of Personnel's admission, it is clear that Grievant's duties as a shift supervisor, or Lead Officer, are the duties of a JDO II, not a JDO I. The next question is whether Grievant has been assigned Lead Officer duties so frequently that he is entitled to the relief he seeks.
      None of the parties addressed the Division of Personnel's policy allowing temporary classification upgrades, which provides for approval of a pay differential to employees temporarily performing the duties of a position in a higher pay grade in certain situations. Whether that policy is applicable in Grievant's situation is irrelevant, however. Shremshock , supra, involved a situation where the temporary upgrade policy did not apply. Nevertheless, the administrative law judge concluded that, under the facts of that case, the grievant, who had been required to perform work in another classification in a higher pay grade, had to be compensated for the difference between his assigned salary and that of the higher classification. “If current policy does not permit short-term, ad hoc assignments . . . to higher-graded classifications, then the employer must simply refrain from making assignments to such duties[.]” Id. The question in these cases is whether the out of class duties have been assigned to the employee so frequently that he is entitled to compensation in the higher pay grade.


Parsons v. Div. of Corrections, Docket No. 99-CORR-056D2 (July 19, 1999). In Parsons, 49 days within approximately a six-month period was not considered infrequent or short- term, and the employer was ordered to compensate the grievant for each day he was required to perform the duties which were in the higher pay grade classification.
      Grievant has been assigned shift supervisor duties so frequently by DJS, 11 times in December 1999, and continuously, since November 1997, that, under the facts of this case, the assignment of these duties has rendered him performing work out of his classification on these occasions, so that he should have been compensated for this work at the higher pay grade. Although Grievant submitted into evidence his work schedule for 1998 and 1999, he could not state on how many occasions he had been shift supervisor,other than 11 times in December 1999, and he did not provide enough information for the undersigned to make this determination with any degree of accuracy. His relief must be limited to pay at the higher pay grade for those 11 days in December 1999. It is also appropriate under the facts and circumstances here, to require the removal of shift supervisor duties from Grievant.
      DJS pointed to the fact that Grievant had not applied for three posted JDO II positions, apparently in an effort to demonstrate that he could have received the salary of a JDO II had he simply applied for a position and been selected. All this demonstrates is that Grievant's testimony that he does not want to be a shift supervisor is true.
      The following Conclusions of Law support the Decision reached.
Conclusions of Law

      1.      Grievant bears the burden of proving his allegations by a preponderance of the evidence. W. Va. Code § 29-6A-6. Mowery v. W. Va. Dep't of Natural Resources, Docket No. 96-DNR-218 (May 30, 1997).
      2.      "The West Virginia Division of Personnel (Personnel) is authorized by W. Va. Code §29-6-10 to establish and maintain a position classification plan for all positions in the classified service. State agencies utilizing such positions must adhere to that plan in making assignments to their employees." Toney v. W. Va. Dep't of Health & Human Resources, Docket No. 93-HHR-460 (June 17, 1994).
      3.      The doctrine of equal pay for equal work (W. Va. Code §29-6-10(2) (1992)), requires that state employees employed in a particular employment classification, but performing work in another classification compensated at a higher pay grade, be paidconsistent with the higher classification. Am. Fed'n of State, County & Mun. Employees v. Civil Serv. Comm'n, 174 W. Va. 221, 324 S.E.2d 363 (1984).
      4.      “When an employee in the classified service has been required by his employer to perform duties in a higher classification on a regular basis, such employee is entitled to back wages in the form of the difference between his salary and that of the higher classification for each day on which the duties were performed. Reed v. W. Va. Div. of Corrections, Docket No. 97-CORR-127 (May 22, 1998); Beer v. Div. of Highways, Docket No. 95-DOH-161 (Feb. 27, 1996); Shremshock v. W. Va. Dep't of Transp., Docket No. 94-DOH-095 (Aug. 31, 1994).” Parsons v. Div. of Corrections, Docket No. 99-CORR- 056D2 (July 19, 1999).
      5.      Grievant established that Respondent DJS assigned him duties on 11 days in December 1999, which rendered him working out of classification as a Juvenile Detention Officer II, a classification which is in a higher pay grade, and that he should have been compensated for those days at the rate assigned to the higher pay grade.

      Accordingly, this grievance is GRANTED. Respondent Division of Juvenile Services is ORDERED to pay Grievant back pay for the 11 days in December 1999 when it worked him out of classification, in the amount of the difference between the minimum pay for a Juvenile Detention Officer II and his salary, and to CEASE assigning him shift supervisor duties.
      Any party may appeal this Decision to the circuit court of the county in which the grievance arose, or the Circuit Court of Kanawha County. 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 Grievance Board with the civil action number so that the record can be prepared and transmitted to the circuit court.

                                                 _____________________________
                                                      BRENDA L. GOULD
                                                 Administrative Law Judge
Date:      June 30, 2000


Footnote: 1
       Grievant's supervisor responded at Level I on December 22, 1999, that he did not feel he was qualified to render a decision on the grievance. Grievant appealed to Level II on that same day. A Level II conference was held, and the grievance was denied at Level II on December 30, 1999. The decision included a finding that the grievance was not timely. Grievant appealed to Level III on January 2, 2000, and a Level III hearing was held on January 31, 2000. A decision denying the grievance was issued on January 31, 2000. Grievant appealed to Level IV on February 17, 2000, and the Division of Personnel was joined as an indispensable party. A Level IV hearing was held on April 19, 2000. Grievantwas represented by Jack Ferrell, DJS was represented C. Scott McKinney, Esquire, and the Division of Personnel was represented by Lowell D. Basford, Assistant Director, Classification and Compensation Section. This matter became mature for decision on May 18, 2000, upon receipt of the last of the parties' written arguments.