Grievant,
v v.
WEST VIRGINIA PARKWAYS ECONOMIC
DEVELOPMENT AND TOURISM AUTHORITY,
Respondent.
Stephen M. Smith (Grievant) filed this grievance pursuant to W. Va. Code §§ 29-6A-
1, et seq., on January 7, 2000, alleging that Respondent West Virginia Parkways Economic
Development and Tourism Authority (Parkways) failed to post a position.
This grievance was denied at Level I, on January 10, 2000, by Immediate
Supervisor Wesley Roles; and at Level II, on February 2, 2000, by Director of Tolls James
V. Kelley. A Level III hearing was held on March 6, 2000. Grievant was represented at
this hearing by Boyd Lilly of the West Virginia State Employees Union, and Parkways was
represented by A. David Abrams, Jr., Esq. This grievance was denied at Level III by
Grievance Evaluator D. L. Lake on March 28, 2000.
The parties agreed that this grievance could be decided at Level IV based upon the
record developed at the lower levels. The parties were given until June 26, 2000, to submit
proposed findings of fact and conclusions of law, both did so, and this grievance became
nature for decision on that date.
The following Findings of Fact pertinent to the resolution of this matter have beendetermined based upon a preponderance of the credible evidence of record.
2. By memo dated December 20, 1999, Parkways General Manager Larry
Cousins announced that the position of Supervisor at North Beckley would be eliminated
when the Supervisor of North Beckley retired, and its duties assumed by the Supervisor
of the nearby Toll Barrier B, Wesley Roles.
3. On or about January 1, 2000, the Supervisor of North Beckley retired, and
Mr. Roles began supervising both facilities.
4. Parkways Personnel Policy I - 1, entitled Employment Procedures, states
[s]election [b]oards will be established to select for employment opportunities that occur
as a result of vacancies in existing positions.
Grievant argues that Parkways violated its policy when it failed to post the position
of Supervisor at North Beckley. As relief, he seeks to be made whole and complete.
However, the preponderance of evidence in this grievance shows that there was no
position to post.
Parkways established that there are six Toll Foremen supervising seven Toll
Collectors at North Beckley, and that the Foremen there are capable of administering the
daily operations of North Beckley, rendering a full-time Supervisor there unnecessary; that
North Beckley is located close to Toll Barrier B, making supervision of North Beckley by
Roles feasible, even in emergencies;
(See footnote 1)
that the position of Supervisor at North Beckley was
eliminated for those reasons; and that Parkways has no policy forbidding a vacant position
from being eliminated.
Parkways Personnel Policy I - 1, entitled Employment Procedures, states
[s]election [b]oards will be established to select for employment opportunities that occur
as a result of vacancies in existing positions. (emphasis added). It is understandable that
when Grievant saw his old boss replaced by a new boss, he asked why the position had
not been posted. However, the position his old boss held had been eliminated, and so nolonger existed, as contemplated by Parkways's policy.
Even assuming, for the sake of argument, that Policy I -1 is subject to different
interpretations, this Grievance Board must give reasonable deference to Parkways'
interpretation of its own policy. Edwards v. W. Va. Parkways Economic Development and
Tourism Auth., Docket No. 97-PEDTA-426 (May 7, 1998). The undersigned does not have
authority to second guess a state employer's employment policy, to order a state agency
to make a discretionary change in its policy, or to substitute his management philosophy
for Parkways'. Skaff v. Pridemore, 200 W. Va. 700, 490 S.E.2d 787 (1997), Settle v. W.
Va. Parkways Economic Development and Tourism Auth., Docket No. 00-PEDTA-031
(May 23, 2000).
Accordingly, this grievance must be denied. Consistent with the foregoing
discussion, the following Conclusions of Law are made in this matter.
2. Parkways Personnel Policy I - 1, entitled Employment Procedures, states
[s]election [b]oards will be established to select for employment opportunities that occur
as a result of vacancies in existing positions.
3. Parkways was not required to post the position Supervisor at North Beckley,
as that position had been eliminated.
4. Grievant failed to prove, by a preponderance of the evidence, that Parkways
violated its policy when it failed to post the position of Supervisor at North Beckley.
Accordingly, the 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 §
29A5-4(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.
ANDREW MAIER
ADMINISTRATIVE LAW JUDGE
Dated: July 7, 2000
Footnote: 1