PHYLLIS VICKERS, ET AL, and .
DONNA J. HASTIE, ET AL, .
Grievants, .
.
.
.
v. . Docket Numbers: 94-T&R-092/142
.
.
.
.
WEST VIRGINIA DEPARTMENT OF TAX .
AND REVENUE and WEST VIRGINIA .
DIVISION OF PERSONNEL, .
Respondent(s). .
DECISION
This complaint was originally filed as separate grievances by
two groups of employees (hereinafter Grievants) of the West
Virginia Department of Tax and Revenue (hereinafter T&R) against
that agency and the West Virginia Division of Personnel
(hereinafter Personnel) pursuant to the provisions of West Virginia
Code §§29-6A-1 et seq.
(See footnote 1) After having proceeded through the lower
levels of the grievance procedure, the two claims were appealed tolevel four and consolidated for hearing and decision by the
undersigned as it was determined that the legal issue presented by
both claims was identical.
(See footnote 2) The case became mature on or about
July 20, 1994 after receipt of the parties' post-hearing briefs.
The following recitation of facts is necessary for an understanding
of the parties' respective legal arguments.
Sometime in the fall of 1991, Personnel began what it has
called its Statewide Reclassification Project. Generally, the
purpose of this project was to revamp the then-existing
classification plan and pay plan by eliminating unnecessary
classification titles, creating other needed titles, rewriting
classification specifications and recreating a pay plan for the
classified and classified-exempt service which contained fewer pay
grades and eliminated steps within those pay grades. Personnel
implemented this project by going to each state agency and working
in conjunction with the appointed authorities of those agencies.
The reclassification of employees within T&R took place sometime
during the summer of 1993.
As a result of Personnel's efforts, the previous Tax Audit
Clerk series was eliminated and only one level of Tax Audit Clerk
remained in T&R. This was the base position which was assigned to
pay grade eight. Thereafter, T&R presented a recommendation to
Personnel that it establish the classification of Tax Audit Clerk,Senior at pay grade nine. This recommendation was accepted
effective February 1, 1994. In the meantime, Grievants (classified
as Tax Audit Clerks), had filed complaints in September 1993
challenging their reallocation and the pay grade assigned to their
position. Because of the efforts of T&R, the only part of
Grievants' complaint which has survived concerns Personnel's
assignment of pay grade nine to the Tax Audit Clerk, Senior
classification.
Grievants contend that the duties and responsibilities of the
position of Tax Audit Clerk, Senior are as complex and technical as
those for the position of Taxpayer Service Representative, pay
grade ten. Therefore, they aver that the pay grade assigned to
their position should have been at least pay grade ten. Grievants
maintain that they perform many of the same duties performed by
those individuals classified as Taxpayer Service Representatives
and are also required to have the same knowledge of tax laws,
regulations and procedures. At the hearing in this matter,
Grievants basically attempted to support their case by submitting
into evidence samples of work product and by offering testimony
comparing and contrasting the work described in the two
classification specifications at issue.
Both Respondents deny that it is an abuse of discretion to
have the two classifications assigned different pay grades.
Personnel defends its decision by referring to its statutory
authority to establish pay plans under W. Va. Code §29-6-10(2) and
arguing that it has complied with all statutory mandates. Itasserts that the distinctions between the nature and duties of the
positions warrant a one-pay grade difference. In particular, it
explained that the Taxpayer Service Representative classification
was assigned to pay grade ten because incumbents in that position
are required to travel as a part of their job, because they are
constantly required to hold themselves out as agency
representatives to members of the public and because their work is
not as process driven, systematic or predictable as that of the Tax
Audit Clerk, Seniors.
W. Va. Code §29-6-10, states, in pertinent part,
The Board [Personnel Board] shall have the authority
to promulgate, amend or repeal rules, in accordance with
chapter twenty-nine-a [§29A-1-1 et seq] of this code to
implement the provisions of this article:
(2) For a pay plan for all employees in the
classified service, after consultation with the
appointing authorities and the state fiscal officers, and
after a public hearing held by the board. . . . Each
employee shall be paid at one of the rates set forth in
the pay plan for the class of position in which he is
employed. The principle for equal pay for equal work in
the several agencies of state government shall be
followed in the pay plan as established hereto.
Within state government, various classified positions exist in more
than one agency. Personnel has interpreted Code §29-6-10 to
require that all employees who hold the same class title must be
paid within the pay grade established for that position. This
Grievance Board has accepted this theory as consistent with the
Legislature's equal pay for equal work mandate referred to above.
See, Redden, et al. v. W. Va. State Tax Dept., Docket No. 89-T-339
(Feb. 22, 1991).
Personnel has adopted, pursuant to Code §29-6-10(2),
administrative regulations which govern the implementation of its
classified pay plan, 143 CSR 1. Section 5.04(a) of these rules
states as follows:
Assignment of classes: The Board shall assign each class
of positions to an appropriate pay grade consistent with
the duties outlined in the class specification. No
salary shall be approved by the Director of Personnel
unless it conforms to one of the pay rates in the pay
grade assigned to the employee's class of position.
In reference to class specifications, Section 4.04 of said rules
states, in pertinent part,
(a) Class specifications are descriptive only and are
not restrictive . . ..
(b) In determining the class to which any position shall
be allocated, the specifications for each class shall be
considered as a whole. Consideration shall be given to
the general duties, specific tasks, responsibilities
required, qualifications and relationships to other
classes affording together a picture of the positions
that the class intended to include.
(c) A class specification shall be construed as a
general description of the kinds of work characteristics
of positions properly allocated to that class and not as
proscribing what the duties of any position are nor as to
limiting the implied power of the appointing authority
now or hereafter vested with the right to prescribe or
alter the duties of the position.
When Personnel assigns a pay grade to a position, it takes into
consideration the general nature of that position's duties, tasks
and qualifications, along with its relationship to other positions
in the classified plan. After reviewing the language of the class
specifications at issue, it then assigns a pay grade to that series
of positions which is meant to cover all employees within that
class irrespective of the actual duties that one or more of those
employees may perform. The focus of this case must be based uponthe general nature of the two positions in question as derived from
the applicable class specifications and not upon the examples of
work, skills or abilities of any one person.
The nature of work sections of the two classification
specifications at issue herein are as follows:
Taxpayer Service Representative
Under general supervision, performs full-performance
work providing services to taxpayers such as assisting in
the preparation of tax return forms; answering inquiries
concerning taxes; explaining tax laws, administrative
rules, court rulings, and departmental policies to
potential taxpayers. Responds to complex and technical
inquiries and must be knowledgeable about all taxes
administered by the agency. May be assigned to a
regional tax office to provide the same taxpayer
services. In the beginning, guidance and supervision are
received from more experienced personnel and work is
reviewed, then as knowledge of laws and regulations and
taxes administered are acquired independent judgment is
exercised. May train other personnel. Performs related
work as required.
Tax Audit Clerk, Senior
Under limited supervision, at the advanced level,
examines complex tax returns and other documents for
completeness, accuracy and compliance with state tax laws
and/or any related federal tax laws. Work is performed
in accordance with statutory rules, regulations, policies
and procedures governing the lawful and timely completion
of tax returns. Requires strict confidentiality in
regard to taxpayer information. May act as a lead worker
and train new employees. Performs related work as
required.
Grievants' argument is really based upon the theory of comparative
worth and not equal pay for equal work. They contend that by
virtue of the duties they perform their position is worth as much
to T&R as is the position of Taxpayer Service Representativebecause their duties are as complex and because they are required
to be as knowledgable about state tax laws and regulations. Such
an argument is not generally accepted in most jurisdictions and has
not been embraced by this Grievance Board. See, discussion
generally, Moore v. W. Va. Dept. of HHR, Docket No. 94-HHR-126
(Aug. 26, 1994).
It is obvious from even a cursory review of the nature of work
sections of the two class specifications at issue that the two
positions are inherently different. Taxpayer Service
Representatives are required to deal directly with the public in an
informational setting while Tax Audit Clerk, Seniors are
responsible for reviewing individual and business tax returns to
help assure compliance with the state's tax laws and regulations.
Although it is accepted that both positions may encompass
overlapping duties, this is not the basis upon which the assignment
of either positions' pay grade is based pursuant to the applicable
regulations. Further, the skills and abilities actually possessed
by Grievants is not directly relevant to the assignment of pay
grade to their position because Personnel assigns pay grades based
upon the requirements of the position and not the specific
attributes of any particular incumbent.
Personnel established that the assignment of a pay grade to a
classified position is based upon more than just the perceived
complexity of the duties contemplated by the position. Such a
decision is also based upon conditions of employment such as
travel, public contact, relationship to other agencies, the amountof technical support for the position and comparisons of similar
positions in other agencies. Personnel has established a rational
basis for the one-pay grade distinction at issue herein and
Grievants have not established that it abused the discretion
delegated to it by Code §29-6-10. In fact, the evidence
establishes that T&R recommended to Personnel that Grievants'
position be assigned to pay grade nine. This is the only clear
indication of the relative worth of the two positions in question
to T&R.
In conclusion, it is not intended by the Legislature that this
Grievance Board act as an expert in matters of the relative worth
of classified positions to various employers, job market analysis
or compensation schemes. Personnel has established Section 5.04(a)
of its administrative regulations to guide it in establishing pay
grades for the positions in its classified plan and Grievants have
not established that Personnel acted, in any way, in contravention
to this rule. Further, Personnel has articulated a legitimate
difference in the nature of the classified positions at issue
herein. Therefore, based upon the relevant evidence of record,
Grievants complaint must be denied.
The following findings of fact have been properly deduced from
the evidentiary record developed in the case.
Findings of Fact
1. Grievants are classified as Tax Audit Clerk, Seniors at
pay grade nine.
2. The classified position of Taxpayer Service
Representative has been assigned to pay grade ten by Personnel.
3. The Department of Tax and Revenue recommended to
Personnel that the position of Tax Audit Clerk, Senior be assigned
to pay grade nine.
4. The overall nature of the positions of Tax Audit Clerk,
Senior and Taxpayer Service Representative is different.
The foregoing discussion of the case is hereby supplemented by
the following appropriately made conclusions of law.
Conclusions of Law
1. Grievants bear the burden of proving their claims by a
preponderance of the evidence. Howell v. W. Va. Dept. of HHR.,
Docket No. 89-DHS-72 (Nov. 29, 1990).
2. Grievants have failed to prove that the Division of
Personnel violated W. Va. Code §29-6-10(2) by abusing its
discretion in establishing the pay grades for the classified
positions of Tax Audit Clerk, Senior and Taxpayer Service
Representative.
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
November 14, 1994
Footnote: 1The grievants are listed as follows: Rebecca Lowe, Lola
Flint, Elizabeth Kennedy, Ernest Duncan, Vicki Stewart, Karl
Hawley, Vera Talbert, Naomi LaMaster, Sophie Taylor, Esther Ellis,
Phyllis Vickers, Beulah Metheny, Marvin Slavin, Richard Crouser,
Pam Hamilton, Donna Hastie, Nancy McGraw, Kelly Proctor, Meredith
Rush, Diana Webb and Pamela Wilson.
Footnote: 2There was no testimony taken at the level three hearing in
the "Vickers" grievance because the parties became stalemated as a
result of a ruling on an issue regarding the admissibility of a
majority of Grievants' exhibits.