KEITH JENKINS,
Grievant,
v. Docket No. 99-BOT-502
BOARD OF TRUSTEES/WEST VIRGINIA UNIVERSITY,
Respondent.
Grievant, Keith Jenkins, employed by the Board of Trustees as a Maintenance
Mechanic at West Virginia University (Respondent), filed a level four grievance appeal on
December 1, 1999, after receiving a level two decision denying his request for
reclassification.
(See footnote 1)
Grievant's representative, Mary Linn of WVEA, and Respondent's
counsel, Samuel R. Spatafore, Assistant Attorney General, agreed to submit the matter for
decision based upon the lower-level record, supplemented with proposed findings of fact
and conclusions of law, filed on or before March 1, 2000.
Findings of Fact
1. Grievant has been employed by West Virginia University at the Physical Plant
for approximately seven years. At all times pertinent to this grievance he has been
classified as a Maintenance Mechanic, pay grade 12.
2. As a Maintenance Mechanic, Grievant is permitted to operate, but not to
drive, a crane truck. A commercial driver's license (CDL) is required to drive such a
vehicle, and while Grievant holds this license, it is not required by his job description.
3. Sometime during the Summer of 1999, Grievant's immediate supervisor,
Gary Boyd, inquired whether he would be interested in a position upgrade which wouldallow him to drive the crane truck. Grievant agreed to the proposed change.
4. In August 1999, Mr. Boyd submitted a revised Position Information
Questionnaire (PIQ) adding driving the crane truck as one of Grievant's responsibilities,
and requesting that Grievant's position be upgraded to Skilled Craft Specialist, pay grade
13. The PIQ was approved by Paul Cole, the second level supervisor, Ralph Beatty,
Assistant Director of the Physical Plant, and was sent to Paul Walden, Interim Director of
the Physical Plant, for approval.
5. Mr. Walden denied the request, concluding that an upgrade of the position
was not warranted or necessary, citing an upcoming reorganization of the Physical Plant
and financial considerations.
6. During 1999, Grievant voluntarily drove the crane truck approximately six (6)
times. The total time spent driving was estimated by Grievant to be less than ten (10)
hours.
7. Requests for a temporary upgrade and differential pay submitted for the time
Grievant drove the crane truck were not granted.
8. Respondent's Policy WVU-HR-21 Interim Promotion/Temporary Upgrade
of a Classified Position requires that temporary upgrades be no less than four (4) weeks,
nor more than twelve (12) consecutive months in duration.
9. No interim promotion or temporary upgrade had been requested for Grievant
prior to his driving the crane truck.
Discussion
W. Va. Code §18-29-2(a) defines grievance as follows:
any claim by one or more affected employees of the governingboards of higher education, state board of education, county
boards of education, regional educational service agencies
and multi-county vocational centers alleging a violation, a
misapplication or a misinterpretation of the statutes, policies,
rules, regulations or written agreements under which such
employees work, including any violation, misapplication or
misinterpretation regarding compensation, hours, terms and
conditions of employment, employment status or
discrimination; any discriminatory or otherwise aggrieved
application of unwritten policies or practices of the board; any
specifically identified incident of harassment or favoritism; or
any action, policy or practice constituting a substantial
detriment to or interference with effective classroom
instruction, job performance or the health and safety of
students or employees.
A review of the grievance statement, and of Grievant's testimony given at level two,
establishes that Grievant does not allege he is misclassified. He simply asserts that his
supervisors indicated a desire to have another employee available to drive a crane truck.
They were aware that he already held the appropriate license, and he was willing to submit
to the drug tests, and to accept the additional responsibilities. Grievant confirms that he
was never promised an upgrade, only that one would be requested. Grievant does not
dispute that driving the crane truck is not included in his current job description, and he
confirms that he has not been asked to drive the truck since the requested upgrade was
denied by Mr. Walden. Grievant does not allege that Mr. Walden improperly denied the
requested upgrade. Grievant's desire to assume additional responsibilities, and thereby
attain a position upgrade, is not a grievable matter.
Grievant supports his request for compensation at pay grade 13 for the time spent
driving the crane truck by citing Respondent's Policy WVU-HR-21, [w]hen significant
changes in duties and responsibilities of a position occur on a temporary basis, an interim
promotion or temporary upgrade may be requested by submitting an updated positiondescription. That policy further defines a temporary upgrade as one lasting at least four
(4) weeks, but no longer than twelve (12) consecutive months. Grievant drove the crane
truck less than ten (10) hours during a six (6) month period of time, and the request for a
temporary upgrade was not approved prior to the activity.
Further, Grievant testified that he had voluntarily driven the crane truck following his
discussions with Mr. Cole and Mr. Boyd. The Grievance Board has previously held that an
employee may not voluntarily assume duties beyond those of his or her job description,
and then demand additional compensation for having completed the duties. Reed v.
Kanawha County Bd. of Educ., Docket No. 99-20-111 (May 27, 1999); Catron v. Mingo
County Bd. of Educ., Docket No. 95-29-060 (July 11, 1995); Anderson v. Gilmer County
Bd. of Educ., Docket No. 95-11-197 (Aug. 1, 1995).
In addition to the foregoing findings of fact and discussion, it is appropriate to make
the following conclusions of law.
Conclusions of Law
1.
W. Va. Code §18-29-2(a) defines grievance as:
any claim . . . alleging a violation, misapplication, or a
misinterpretation of the statutes, policies, rules, regulations or
written agreements under which such employees work,
including any violation, misapplication or misinterpretation
regarding compensation, hours, terms and conditions of
employment, employment status or discrimination; any
discriminatory or otherwise aggrieved application of unwritten
policies or practices of the board; any specifically identified
incident of harassment or favoritism; or any action, policy or
practice constituting a substantial detriment to or interference
with effective classroom instruction, job performance or the
health and safety of students or employees.
2. A request by an employee to assume additional responsibilities, which, ifgranted, would result in a position upgrade and attendant pay increase, but is properly
denied by the appropriate supervisor, is not a grievable matter.
Accordingly, the grievance is DENIED.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of Monongalia County. Any such appeal must be filed within thirty (30) days
of receipt of this decision. W.Va. Code §18-29-7. 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.
Date: April 26, 2000 __________________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE
Footnote: 1 The record does not include a level one grievance form or decision. Grievant
elected to bypass consideration at level three, as is permitted by W. Va. Code §18-29-4(c).