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:

      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.