ESTHER J. PACK and .
ANGELA K. WELLMAN, .
Grievants, .
.
.
.
v. . Docket No. 93-HHR-377
.
.
.
WEST VIRGINIA DEPARTMENT OF HEALTH .
AND HUMAN RESOURCES at CHILD .
ADVOCATE OFFICE, and WEST VIRGINIA .
DIVISION OF PERSONNEL .
.
Employer. .
D E C I S I O N
Esther Pack and Angela Wellman are both classified as Office
Assistant IIIs within the West Virginia Department of Health and
Human Resource's Child Advocate Office at Huntington, West
Virginia. Grievants contend that they are misclassified because
they perform duties which more closely match those included in the
civil service classification of Secretary I. They contend that
even though they perform all of the work described by the Examples
of Work section of both classification specifications at issue, the
Office Assistant classification specification more closely
describes the nature of their duties and responsibilities. Grievants' supervisor, Administrative Assistant Sharon Winkler-Serena, concurs with their assessment of the classifications.
The West Virginia Division of Personnel (hereinafter
Personnel) was represented by Virginia Fitzwater, senior personnel
classification specialist, at both the level three and four
hearings in this matter. Ms. Fitzwater testified that it was
Personnel's opinion that Grievants are properly classified because
they perform complex clerical duties which involve an abundance of
typing similar to that performed in the old "typing pool" setting.
She also opined that the Child Advocate Office in Huntington is not
considered to be a "division" or "section"; therefore, Grievants
cannot be classified as Secretary Is. The testimony taken at both
levels of hearing in the case has been considered for purposes of
this Decision. The following findings of fact are deduced from the
record.
Findings of Fact
1. Grievants work directly for the Cabell County Child
Advocate Attorney and his Administrative Assistant.
2. Grievants take direction from both superiors. The work
which is delegated by the attorney is generally legal in nature
while the work assigned by the Administrative Assistant is more
administrative or clerical.
3. Grievants perform their respective duties for the
attorney within an assigned caseload. According to a March 24,
1993 memo from Ms. Winkler-Serena to the staff (Gr. Exh. 3), the
following duties are required of the Grievants:
Preparation of petitions, complaints, etc.;
Hearing notices;
Setting hearings;
Contact with other attorneys
Letters to Family Law Master, Judges, etc.;
Notifying and scheduling of blood tests;
Typing of orders, etc.;
Logging and processing entered orders
Completing the legal process log;
Typing of suggestions, writs of execution, and logging of
abstracts of judgements;
Typing of URESA's;
Legal Assistant correspondence;
Forms;
General typing for Legal Assistants;
Backup for wage withholdings;
Confirm the docket with Circuit Judges secretaries;
Type and distribute the docket;
Pull files and distribute to Legal Assistants;
Reschedule hearings and notify parties.
Angela Wellman
Personnel:
PO-1A's;
Support work for interviewing and selection of
candidates;
Checking intern's time sheets;
CATS;
Quik Mail;
Administrative files;
Incoming Mail;
Round Robbins;
Teleconference Preparation;
Office Plan Sheet;
Billing and invoices;
Hospital Paternity Project;
Administrative correspondence.
Esther Pack
Expense Accounts;
Supplies and equipment;
Forms Orders;
Outgoing mail;
Round Robbins;
TR-10 and 10A's for training;
Bob' Plan Sheet;
Monthly report;
Personnel filing;
Court mail:
sort and log
Divide by caseload
Administrative correspondence.
The duties listed on this memo are basically consistent with the
duties Grievants listed on their last completed position
description forms.
4. While it is obvious from the record that each and every
duty listed above was not described in detail, Grievants'
predominant duties involve typing, word processing, correspondence,
maintaining a supervisor's docket and interacting with the public.
Discussion
In order for Grievants to prevail upon a claim of
misclassification, they must prove by a preponderance of the
evidence that their duties for the relevant period more closely
matched another cited Personnel classification specification than
that under which they are currently assigned. See generally, Hayes
v. W.Va. Dept. of Natural Resources, Docket No. NR-88-038 (Mar. 28,
1989). Personnel 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. Dept. of
Employment Security, Docket No. 89-ES-101 (Nov. 3, 1989). The key
to the analysis is to ascertain whether Grievants' current
classification constitutes the "best fit" for their required
duties. Simmons v. W.Va. Dept. of HHR/Division of Personnel,
Docket No. 90-H-433 (Mar. 28, 1991). The predominant duties of theposition in question are class-controlling. Broaddus v. W.Va. Div.
of Human Services, Docket Nos. 89-DHS-606, 607, 609 (Aug. 31,
1990). Finally, Personnel's interpretation and explanation of the
classification specifications at issue, if said language is
determined to be ambiguous, should be given great weight unless
clearly erroneous. See, W.Va. Dept. of Health v. Blankenship, 431
S.E.2d 681, 687 (1993).
The relevant sections of the Personnel classification
specifications at issue in this case are reproduced herein:
Secretary I
Nature of Work
Under general supervision, at the full-performance
level, relieves supervisor of clerical and minor
administrative duties, exercising discretion and
independent judgment. Necessary for dictation,
familiarity with word processors, and other special
requirements vary depending upon supervisor's preference.
Performs related work as required.
Distinguishing Characteristics
This class is distinguished from the Office
Assistant series by the assignment of support duties to
a specific individual overseeing a section, or a
division. The incumbent composes routine correspondence
for the supervisor, screens calls and visitors and
responds to inquiries requesting knowledge regarding
office procedure, policy and guidelines, and program
information. The position has limited authority to speak
for the supervisor.
At this level, the work requires the knowledge
necessary to complete complex procedural assignments.
Incumbent determines appropriate procedures from among a
variety of resources, methods and processes. Incumbent
is responsible for his/her own work, and may assign and
direct the work of others. Although some tasks are
defined and self-explanatory, the objectives, priorities,
and deadlines are made by the supervisor. Work is
reviewed, usually upon completion, for conformance to
guidelines. Contacts at this level are frequent and
often non-routine and/or of a confidential or sensitivenature, requiring tact and the ability to judge which
inquires can be answered or must be referred.
Examples of Work
Responds to inquires where knowledge of unit policy,
procedure, and guidelines is required.
Answers telephone, screens calls, and places outgoing calls.
Screens mail and responds to routine correspondence.
Signs, as directed, supervisor's name to routing
correspondence, requisitions, and other documents.
Schedules appointments and makes travel arrangements and
reservations for supervisor.
Takes and transcribes dictation, or transcribes from
dictation equipment.
Composes from letters, routine correspondence, and factual
reports.
Types reports, manuscripts, and correspondence using standard
typewriter or word processing equipment; proofreads and
corrects to finished form.
Gathers, requests, and/or provides factual information
requiring reference to variety of sources.
May delegate routine typing, filing, and posting duties to
subordinate clerical personnel.
May maintain basic bookkeeping records for grants, contract or
state appropriated funds.
May prepare payrolls, keep sick and annual leave records, act
as receptionist and perform other clerical duties as
needed.
May attend meetings take notes and relay information;
typically would not interpret information or speak on
behalf of supervisor.
Office Assistant III
Nature of Work
Under general supervision, performs advanced level,
responsible and complex clerical tasks of a complicated
nature involving interpretation and application of
policies and practices. Interprets office procedures,
rules and regulations. May function as a lead worker for
clerical positions. Performs related work as required.
Distinguishing Characteristics
Perform tasks requiring interpretation and
adaptation of office procedures, policies, and practices.
A significant characteristic of this level is a job-inherent latitude of action to communicate agency policy
to a wide variety of people, ranging from board members,
federal auditors, officials, to the general public.
Examples of Work
Analyzes and audits invoices, bills, orders, forms, reports
and documents for accuracy and initiates correction of
errors.
Maintains, processes, sorts and files documents numerically,
alphabetically, or according to other predetermined
classification criteria; researches files for data and
gathers information or statistics such as materials used
or payroll information.
Types a variety of documents from verbal instruction, written
or voice recorded dictation.
Prepares and processes a variety of personnel information and
payroll documentation.
Plans, organizes, assigns and checks work of lower level
clerical employees.
Trains new employees in proper work methods and procedures.
Answers telephone, screens calls, takes messages and
complaints and gives information to the caller regarding
the services and procedures of the organizational unit.
Receives, sorts and distributes incoming and outgoing mail.
Operates office equipment such as electrical calculator,
copying machine or other machines.
Posts records of transactions, attendance, etc., and writes
reports.
Files records and reports.
May operate a VDT using a set of standard commands, screens,
menus and help instructions to enter, access and update
or manipulate data in the performance of a variety of
clerical duties; may run reports from database and
analyze data for management.
In analyzing cases of this nature, the first task is to draw
a meaningful distinction between the classification specifications
at issue by reviewing the documents from top down. On some
occasions, it is not only helpful but necessary to review the
specifications as a whole in order to comprehend the subtle
differences between the two jobs described. In this case, the
difference between the Secretary I specification and the Office
Assistant III specification appears to be based upon the
incumbent's relationship to his/her supervisor. The Secretary I
specification anticipates that the employee necessarily relieves a
supervisor of both clerical and minor administrative duties whileexercising discretion and independent judgment. The Office
Assistant specification focuses not on any level of supervisory
relationship but upon the performance of complex clerical tasks
involving the interpretation and application of office policies and
procedures. Both specifications allow the employee to perform
routine and complex clerical duties but the Secretary I position
requires duties normally performed by a superior to be performed by
the incumbent while the person holding the position of Office
Assistant III is responsible for the performance of their own
regularly scheduled work. It is true that any time a subordinate
performs clerical work, that employee's supervisor is relieved of
the work; however, this is not the same simple relationship
contemplated by the Secretary I classification specification.
There is no question that both Grievants perform minor
administrative tasks which could generally be performed by their
Administrative Assistant. The question becomes whether Grievants
spend a predominant portion of their time in performing such tasks
by exercising independent judgment. This question is not an easy
one to be answered. Grievants both are responsible for an
abundance of clerical work involving many different substantive
matters, and it is very difficult to try to generalize about the
nature of someone's duties when they do as many different things as
Grievants do in this case. A very large portion of their time is
spent typing legal documents upon the request of the attorney,
typing memoranda and forms, correspondence and reports. They also
perform a wide variety of other clerical functions such asanswering phones, keeping calendars and schedules, and handling
mail. This work can be described as clerical. Grievants also
perform various tasks which can be described as administrative;
however, it has not been established that they perform these
administrative duties by exercising the level of independent
judgment required by Personnel to be classified as a Secretary I.
The majority of these administrative duties are simply performed in
a routine, clerical nature, not independent from the review of Ms.
Winkler-Serena. This is also consistent with an interpretation of
the duties described in Grievants' position description forms.
Grievants are obviously competent in the performance of their
assigned duties and they, like many other clerical staff, form the
"backbone" of the Child Advocate Office in Huntington. They have
not, however, established by a preponderance of the evidence that
they are improperly classified as Office Assistant IIIs.
Personnel's interpretation of its own classification specifications
in this case, as ambiguous and overlapping as they may be, is
entitled to deference. Grievants have not established that
Personnel's interpretation in this case is clearly wrong.
Therefore, they cannot prevail in their claim.
The foregoing discussion of the facts of the case and of the
law applicable to those facts is hereby supplemented by the
following appropriate conclusion of law.
Conclusions of Law
1. Grievants have failed to prove by a preponderance of the
evidence that they are improperly classified as Office AssistantIIIs based upon a review of their normally assigned duties and
responsibilities.
2. Personnel's interpretation of the two classification
specifications at issue in this case is not clearly wrong as
applied to the facts developed by the Grievants. Blankenship,
supra.
Therefore, this grievance is hereby DENIED.
Any party or the West Virginia Division of Personnel may
appeal this decision to the "circuit court of the county in which
the grievance occurred," and such appeal must be filed within
thirty (30) days of receipt of this decision. W.Va. Code §29-6A-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. Any appealing party must advise
this office of the intent to appeal and provide the civil action
number so that the record can be prepared and transmitted to the
appropriate court.
________________________________
ALBERT C. DUNN, JR.
Administrative Law Judge
February 28, 1994