ERNEST TERRY, et al.,

                        Grievants,

v.                                                       Docket No. 99-DOH-207

WEST VIRGINIA DEPARTMENT OF TRANSPORTATION,
DIVISION OF HIGHWAYS,

and

WEST VIRGINIA DEPARTMENT OF ADMINISTRATION,
DIVISION OF PERSONNEL,

                        Respondents.

D E C I S I O N

      On or about September 1, 1998, Ernest Terry and approximately 96 additional employees (Grievants) filed grievances pursuant to W. Va. Code §§ 29-6A-1, et seq., alleging that Respondent West Virginia Department of Transportation, Division of Highways (DOH), had improperly excluded engineering technicians and other technical personnel when awarding targeted pay raises to employees in various Engineer classifications. After the grievances were denied at the lower levels, the grievances were consolidated for hearing at Level III, and an evidentiary hearing was conducted on January 6 and February 9, 1999. On May 19, 1999, a Level III decision denying the grievance was issued by DOH Assistant Commissioner Thomas F. Badgett. Grievants appealed to LevelIV on May 21, 1999. On October 1, 1999, the West Virginia Division of Personnel (DOP) was joined as an indispensable party pursuant to Rule 4.13 of this Grievance Board's Procedural Rules, 156 C.S.R. 1 § 4.13 (1996). Following a series of continuances, each of which was granted for good cause shown, a Level IV hearing was conducted in the Teamster's Hall in Charleston, West Virginia, on December 10, 1999.   (See footnote 1)  At the conclusion of that hearing, the parties agreed on a briefing schedule, and this matter became mature for decision on February 7, 2000, following receipt of Grievants' written post-hearing argument. (DOP and DOH waived written arguments, relying upon the Level III decision and oral arguments at Level IV.)
       Based upon a preponderance of the credible evidence contained in the record established at Levels III and IV, the following Findings of Fact pertinent to resolution of this grievance have been determined.
FINDINGS OF FACT
      1.      Grievants are employed by Respondent West Virginia Department of Transportation, Division of Highways (DOH) in a number of classifications, including Senior Engineering Technician (SET), Associate Engineering Technician, Engineering Technician NICET (National Institute for Certification of Engineering Technicians), Bridge Safety Inspector II and III, Geologist II, and Chemist I.       2.      Effective September 15, 1998, DOH obtained approval from the West Virginia Division of Personnel to implement a pay increase ranging from a minimum of 11% to a maximum of 19% for employees in the Engineering series of classifications, including Highway Engineer Trainee, Engineer-in-Training II, and Highway Engineer I through VI (Engineers). More specifically, Engineer classifications received the following pay increases: Highway Engineer in Training, 19%; Engineer-in-Training II, 18%; Highway Engineer I, 17%; Highway Engineer II, 16%; Highway Engineer III, 15%; Highway Engineer IV, 14%; Highway Engineer V, 12%; and Highway Engineer VI, 11%. G Ex E at L IV.
      3.      In addition to increasing the minimum starting salaries for each Engineering classification by the percentages indicated, DOH obtained approval from DOP to apply the same percentage increase to the current salary of all incumbent employees in the affected classifications.
      4.      DOH subsequently obtained approval to implement a 7% pay raise for employees in the classifications held by Grievants (Technicians). Grievants classified as Associate Engineering Technician, Engineering Technician NICET, SET, Geologist II, and Chemist I, received a 7% pay raise effective November 1, 1998. Grievants classified as Bridge Safety Inspector II and III received a 7% pay raise effective January 1, 1999.
      5.      Prior to the pay increases described in Findings of Fact 2 and 4, the base salaries for positions classified as Engineers were generally higher than for positions classified as Technicians. In addition, Engineers were more likely to be paid a salary at a higher level within their assigned pay grade, usually at or above the mid-point levelwithin their pay range, while Technicians were more likely to be paid a salary at a lower level within their pay range, usually below the mid-point level.
      6.      In a number of situations, employees in classifications held by Grievants, particularly SET's, supervise one or more Engineers, usually employees classified as Highway Engineer Trainees, Engineers-in-Training II, and Highway Engineer I (HE I).
      7.      Employees in classifications held by Grievants, primarily SET's, are responsible for training employees in certain Engineering classifications, primarily Highway Engineer Trainees and Engineers-in-Training II.
      8.      The SET and HE I classifications are in the same pay grade (Pay Grade 16 at the time this grievance was filed; currently Pay Grade 17 as a result of a subsequent adjustment).
      9.      Highway Engineer Trainee and Engineering-in-Training II are considered training classifications. As a result, an employee hired as a Highway Engineer Trainee receives a non-competitive promotion to Engineer-in-Training II upon completion of certain experience requirements. Upon successful completion of the professional engineering examination, employees who are classified as Engineers in Training II receive a non- competitive promotion to Highway Engineer I.
      10.      Personnel in the various classifications held by Grievants must compete for promotion on a best-qualified basis as vacancies arise in DOH. They do not receive non- competitive promotions.
      11.      DOH has a number of employees in the Highway Engineer Trainee and Engineer-in-Training classifications who have failed to advance into Highway Engineerclassifications. These long-term employees received the benefit of the pay raise awarded to all employees in their classifications.
      12.      At the time DOH requested the 11 to 19% pay raise for Engineers, DOH had lost the services of 25 Engineers in the previous 6 months. Of those losses, 6 were retirements. However, 4 of the 6 retirees left to accept other employment following their retirement.
      13.      Prior to August 1998, the turnover among DOH Technicians was less than the turnover among DOH Engineers.
      14.      At the time DOH requested the pay raise for Engineers at issue in this grievance, it was anticipated that the sale of road bonds and passage of a new federal highway authorization bill would increase the demand for engineers and the salaries private sector firms would be willing to pay to obtain such employees.
      15.      In recommending a pay raise for Engineers, DOH relied upon a 1997 salary survey conducted under the auspices of the American Association of State Highway and Transportation Officials (AASHTO). That survey indicated that DOH salaries ranked ninth out of eleven states reporting for the benchmark position of Graduate Engineer, eighth out of nine states reporting for the benchmark position of Registered Engineer, and tenth out of eleven states reporting for the benchmark position of Engineer Administrator. G Ex E at L IV.
      16.      According to the AASHTO survey, DOH Engineers were being paid at a level 21% below the average for the states reporting in the southeast region. According to a separate survey conducted by the West Virginia Division of Personnel, the starting salaryDOH pays to entry-level engineers is 34% below the average starting salary paid entry- level engineers in the private sector, while the average salary DOH pays entry-level engineers is 44% below the private sector average.
      17.      Since 1991, AASHTO has been predicting a shortage of civil engineers will arise in the early 21st century which will impact on the ability of state transportation organizations to find enough qualified personnel to meet their mission requirements.
      18.      DOH did not consider pay equity data relating to the various classifications held by Grievants generated by AASHTO or any other source prior to recommending the pay raise for Engineers.
      19.      Not all districts or offices within DOH have experienced a loss of qualified Engineers. The total number of Engineers employed by DOH has remained relatively constant for the past several years.
      20.      In proposing and implementing the pay raises at issue in this grievance, DOH made a conscious attempt to treat all employees in the same classification alike. Likewise, DOH recognized that employees in one classification receiving a 7% pay raise would be offended when co-workers in other classifications received across-the-board pay raises ranging from 11 to 19%.
      21.      In order to be classified in one of the Engineer classifications which received the benefit of the disputed pay raise, an employee must, except for certain limited exceptions, have received a specified college degree in accordance with licensingrequirements for engineers in training and registered professional engineers. No such degree requirement is attached to the Technician classifications held by most Grievants.   (See footnote 2) 
      22.      The nature of work performed by the Division of Highways primarily involves an engineering function. At the highest levels, DOH requires positions to be filled only by registered professional engineers. At lower levels in the hierarchy, DOH has a preference for registered professional engineers, but fills positions interchangeably between Engineers and qualified Technicians, including several Grievants and their peers.
DISCUSSION
      As this grievance does not involve a disciplinary matter, Grievants have the burden of proving their 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.
      W. Va. Code § 29-6-10 generally embraces the concept of "equal pay for equal work." See AFSCME v. Civil Service Comm'n, 181 W. Va. 8, 380 S.E.2d 43 (1989). However, employees performing similar work need not receive identical pay, so long as they are paid in accordance with the pay scale for their proper employment classification. Largent v. W. Va. Div. of Health, 192 W. Va. 239, 452 S.E.2d 42 (1994); W. Va. Univ. v. Decker, 191 W. Va. 567, 447 S.E.2d 259 (1994); Hickman v. W. Va. Dep't of Transp., Docket No. 94-DOH-435 (Feb. 28, 1995); Tennant v. W. Va. Dep't of Health & HumanResources, Docket No. 92-HHR-453 (Apr. 13, 1993); Acord v. W. Va. Dep't of Health & Human Resources, Docket No. 91-H-177 (May 29, 1992).
      In a previous decision involving a similar action by DOH, Aultz v. West Virginia Department of Transportation, Docket No. 90-DOH-522 (Feb. 28, 1991), this Grievance Board refused to find that the “equal pay for equal work” concept embodied in W. Va. Code § 29-6-10 requires comparison across classification lines. The grievance in Aultz, filed by a group of SET's contending they should have received the same upward salary adjustments awarded to employees in the Highway Engineer II, Chemist IV and Geologist IV classifications, was rejected. The Administrative Law Judge in Aultz denied the grievance because the grievants did not establish that they should be paid the same as employees in another classification, or that their employer and DOP abused their discretion in setting rates of compensation for employees in other classifications based upon perceived recruitment and retention problems.
      In this matter, Grievants are being paid in accordance with their current employment classification, and there is no contention in this grievance that any Grievant is currently misclassified.   (See footnote 3)  Grievants also contend DOH's decision to award a substantially greater pay raise to employees who hold various Engineer and related classifications constitutes discrimination prohibited under W. Va. Code § 29-6A-2(d). Discrimination is defined therein as "any differences in the treatment of employees unless such differences are related to the actual job responsibilities of the employees or agreed to in writing by theemployees." W. Va. Code § 29-6A-2(d). This Grievance Board has determined that grievants, seeking to establish a prima facie case   (See footnote 4)  of discrimination under § 29-6A-2(d), must demonstrate the following:




Parsons v. W. Va. Div. of Highways, Docket No. 91-DOH-246 (Apr. 30, 1992). Once the grievants establish a prima facie case of discrimination, the employer can then offer a legitimate reason to substantiate its actions. Thereafter, the grievants may show that the offered reasons are pretextual. Hickman v. W. Va. Dep't of Transp., Docket No. 94-DOH- 435 (Feb. 28, 1995). See Tex. Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981); Frank's Shoe Store v. W. Va. Human Rights Comm'n, 178 W. Va. 53, 365 S.E.2d 251 (1986); Hendricks v. W. Va. Dep't of Tax & Revenue, Docket No. 96-T&R-215 (Sept. 24, 1996); Runyon v. W. Va. Dep't of Transp., Docket Nos. 94-DOH-376 & 377 (Feb. 23, 1995).
      Grievants do not hold the same classifications as any of the DOH employees who received the pay increases at issue in this grievance. In a recent decision involvingapplication of W. Va. Code § 18-29-2(m), the parallel provision in the grievance procedure for school employees prohibiting generic “discrimination,”   (See footnote 5)  Flint v. Board of Education, No. 25898 (W. Va. Sup. Ct. of Appeals Dec. 10, 1999), the West Virginia Supreme Court of Appeals determined that service employees in one classification were not “similarly situated” to service employees in a separate classification for purposes of establishing a prima facie case of discrimination or favoritism.   (See footnote 6)  Notwithstanding that Respondent may select employees in Grievants' classifications to fill positions when no suitable applicant who holds the desired Engineer classification is available, or assign certain tasks interchangeably between Engineers and Technicians, the Flint analysis and this Grievance Board's established precedent in Aultz applies to these facts and circumstances.   (See footnote 7)        This Grievance Board attempts to follow the well-recognized legal doctrine of stare decisis,   (See footnote 8)  in adjudicating grievances that come before it. Wargo v. Dep't of Health & Human Resources, Docket Nos. 92-HHR-441/445/446 (Mar. 23, 1994); Chafin v. W. Va. Dep't of Health & Human Resources, Docket No. 92-HHR-132 (Jul. 24, 1992), citing Dailey v. Bechtel Corp., 157 W. Va. 1023, 207 S.E.2d 169 (1974). This adherence is founded upon a determination that the employees and employers whose relationships are regulated by this agency are best guided in their actions by a system that provides for predictability, while retaining the discretion necessary to effectuate the purposes of the statutes applied. Consistent with this approach, this Grievance Board follows precedents established by the Supreme Court of Appeals of West Virginia as the law of this jurisdiction. Likewise, prior decisions of this Grievance Board are followed, unless a reasoned determination is made that the prior decision was clearly in error. Belcher v. W. Va. Dep't of Transp., Docket No. 94-DOH-341 (Apr. 27, 1995).
      DOH recognized at the time the decision was made to seek a significant pay raise for Engineers that this initiative would likely have a negative impact on the morale of the remaining work force which did not receive the benefit of this initiative.   (See footnote 9)  This grievance typifies the kind of unhealthy rivalry which can arise when two groups of related employees are forced to compete for a limited pool of benefits. A similar undercurrent of animositysometimes impedes working relationships between professionals and para-professionals such as doctors and nurses, lawyers and paralegals, commissioned officers and non- commissioned officers, and pilots and flight attendants. Although Grievants' evidence indicates that the difference between their salaries and DOH employees in the Engineer classifications is greater than any explicable difference between the value of work the two categories perform for their employer, this variance does not violate any current statute, regulation, or policy applicable to Grievants.
      This Grievance Board previously attempted to redress a pay disparity between two separate classifications of employees in Skeen v. West Virginia Bureau of Employment Programs, Docket No. 92-CLER-183 (Mar. 18, 1993). There, Employment Security Tax Examiners were paid substantially more than Workers Compensation Fund Field Auditors, although their duties were similar in several ways. This Grievance Board granted relief to the lower-paid employees on the basis that those employees were not receiving equal pay for equal work. However, this decision was reversed on appeal. W. Va. Bureau of Employment Programs v. Skeen, No. 93-AA-91 (Cir. Ct. of Kanawha County Dec. 1, 1993).
      Since Skeen, the West Virginia Supreme Court of Appeals has noted that this Grievance Board's jurisdiction to resolve grievances, as defined in W. Va. Code § 29-6A- 2(i), does not provide authority for an Administrative Law Judge to substitute his management philosophy for that of the employer. Skaff v. Pridemore, 200 W. Va. 700, 490 S.E.2d 787 (1997). Ultimately, the pay scale assigned to a given classification reflects a value judgement by the employing agency or agencies as to the essentiality of having employees with specific knowledge, skills, and abilities available to perform the agency'swork, and the effects of the law of supply and demand upon its ability to recruit and retain such personnel. While Grievants extensively documented the important contributions they make to the DOH mission on a routine basis, contrasting their value to DOH with employees in various Engineer classifications inevitably requires an “apples to oranges” comparison which this Grievance Board has no legal basis to make. See Flint, supra; Aultz, supra. See also Largent, supra.
      For these same reasons the undersigned Administrative Law Judge is unable to conclude that the failure of DOH to include Grievants in the classifications of employees targeted for greater pay raises was an arbitrary and capricious exercise of the employer's otherwise broad discretion in matters of pay and compensation equity. In applying an "arbitrary and capricious" standard of review to decisions such as this, a reviewing body applies a narrow scope of review, limited to determining whether relevant factors were considered in reaching that decision, and whether there has been a clear error of judgment. Bowman Transp. v. Arkansas-Best Freight System, 419 U.S. 281, 285 (1974); Harrison v. Ginsberg, 169 W. Va. 162, 286 S.E.2d 276 (1982). Moreover, a decision of less than ideal clarity may be upheld if the agency's path in reaching that conclusion may reasonably be discerned. Bowman, supra, at 286.
      DOH, through its Director of Human Resources, Jeff Black, explained that the decision to substantially raise the pay levels for Engineers was based on a determination that this was necessary to insure an adequate supply of qualified personnel could be recruited and retained in the coming years to meet the needs of the agency. Mr. Black looked at regional salary surveys, current attrition, and turnover. He also consideredinformation regarding the number of new civil engineering graduates that will be entering the labor pool in the immediate future. Moreover, several SET's, including some Grievants, are already filling positions where a qualified Engineer was initially solicited for the vacancy. Although the information presented to DOP in support of this proposal may be less than compelling, and some of the data is subject to alternative interpretations, the rationale presented is sufficient to withstand the test for overturning a discretionary decision on the basis of arbitrary and capricious decision making. See Holmes v. W. Va. Dep't of Transp., Docket No. 97-DOH-553 (June 30, 1998); Travis v. W. Va. Dep't of Health & Human Resources, Docket No. 96-HHR-518 (Jan. 12, 1998); Swick v. W. Va. Div. of Highways, Docket No. 95-DOH-049 (June 30, 1995); Aultz, supra.
      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 grievants have the burden of proving their 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.      Discrimination is defined in W. Va. Code § 29-6A-2(d) as “any differences in the treatment of employees unless such differences are related to the actual job responsibilities of the employees or agreed to in writing by the employees.”       3.      In order for grievants to establish a prima facie case of discrimination under § 29-6A-2(d), they must demonstrate the following:




Travis v. W. Va. Dep't of Health & Human Resources, Docket No. 96-HHR-518 (Jan. 12, 1998); Parsons v. W. Va. Div. of Highways, Docket No. 91-DOH-246 (Apr. 30, 1992).
      4.      Grievants failed to establish a prima facie case of discrimination under W. Va. Code § 29-6A-2(d), because they are not similarly situated to DOH employees who hold various Engineering classifications. See Flint v. Bd. of Educ., No. 25898 (W. Va. Sup. Ct. of Appeals Dec. 10, 1999); Aultz v. W. Va. Dep't of Transp., Docket No. 90-DOH- 522 (Feb. 28, 1991).
      5.      “[E]mployees who are doing the same work must be placed within the same classification, but within that classification there may be pay differences if those differences are based on market forces, education, experience, recommendations, qualifications, meritorious service, length of service, availability of funds, or other specifically identifiable criteria that are reasonable and that advance the interests of the employer.” Largent v. W. Va. Div. of Health, 192 W. Va. 239, 452 S.E.2d 42 (1994). Stateagencies and the West Virginia Division of Personnel have similar discretion in compensating employees who hold different classifications. See Aultz, supra.
      6.      Grievants failed to establish that the failure of Respondent DOH to include employees in their technical classifications in a pay raise directed at Engineers violated W. Va. Code §§ 29-6-10, 29-6A-2(d), 29-6A-2(h), or any other statute, rule, or regulation.
      7.      Respondents DOH and DOP did not abuse their discretion, or act in an arbitrary and capricious manner, by proposing and approving a pay raise directed at raising the starting salaries for new employees and the current salaries of incumbent employees in various Engineering classifications, relegating Grievants in various Technical classifications to a subsequent and lesser pay raise.

             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: March 17, 2000



Footnote: 1
      The majority of Grievants at the Level IV hearing were represented by Marilyn Kendall with the West Virginia State Employees Union. Grievants George M. Keeney, Harry W. Miller, Paul James, Jerry Heaton, and Raymond Maddy appeared pro se. A substantial majority of Grievants in this matter were pro se, but did not appear for the Level IV hearing. DOH was represented at the hearing by counsel, Krista Duncan. DOP was also represented by counsel, Stephanie Schultz.
Footnote: 2
      College degrees are required for entry into the Chemist and Geologist classifications.
Footnote: 3
      Misclassification claims by SET's filling supervisory positions normally held by Engineers have not been successful. See, e.g., Holmes v. W. Va. Dep't of Transp., Docket No. 97-DOH-553 (June 30, 1998).
Footnote: 4
      A prima facie case generally refers to a set of facts which, if not rebutted or contradicted by other evidence, would be sufficient to support a ruling in favor of the party establishing such facts. See Black's Law Dictionary 1209 (7th ed. 1999).
Footnote: 5
      See Vest v. Bd. of Educ., 193 W. Va. 222, 455 S.E.2d 781 (1995).
Footnote: 6
      Likewise, the employees were not performing “like assignments and duties” for purposes of the applicable uniform pay statute, W. Va. Code § 18A-4-5a. Flint, supra. Because Flint explicitly encompassed the issue of favoritism under W. Va. Code § 18-29- 2(o), Grievants' allegation of favoritism in violation of W. Va. Code § 29-6A-2(h) need not be analyzed separately. See also W. Va. Dep't of Health & Human Resources v. Hess, 189 W. Va. 357, 432 S.E.2d 27 (1993).
Footnote: 7
      Grievants properly contend that this matter is not res judicata on the basis of this Grievance Board's prior decision in Aultz. Res judicata is a well-established legal doctrine stating that a final judgment rendered on the merits by a court of competent jurisdiction is conclusive as to the rights of the parties to that proceeding and, as to those same parties, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. Woodall v. W. Va. Dep't of Transp., Docket No. 93-DOH-393 (Feb. 2, 1994). See Black's Law Dictionary 1312 (7th ed. 1999). Grievants here are challenging a separate action from the pay raise protested in Aultz.
Footnote: 8
      Literally, "to stand by things decided." This is the doctrine that when a court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases, where the facts are substantially the same. Black's Law Dictionary 1414 (7th ed. 1999).
Footnote: 9
      DOH is under a gubernatorial mandate to eliminate 500 positions from its work force. This action may encourage the level of attrition DOH needs to meet this goal.