WANDA BROWNING

v.                                                      DOCKET NO. 94-MBOD-985

BOARD OF DIRECTORS,
SOUTHERN WEST VIRGINIA COMMUNITY COLLEGE

D E C I S I O N

      Grievant Wanda Browning alleges she was misclassified effective January 1, 1994, in the "Mercer reclassification"   (See footnote 1)  . Grievant seeks either to be classified as a Library Associate, Pay Grade 14, or a Pay Grade 13 or 14 for her Job Title of Library Technical Assistant II, effective January 1, 1994, and backpay to January 1, 1994. Grievant challenges the degree levels received in several point factors. A Level IV hearing was held on February 26, 1996. This matter became mature for decision on April 22, 1996, with receipt of Respondent's fact/law proposals.   (See footnote 2) 
      The following Findings of Fact are properly made from the record developed at Level IV.

Findings of Fact

      1.      Grievant is employed in the Library on the Logan Campus at Southern West Virginia Community College ("SWVCC").
      2.      In 1991, all higher education classified employees were asked to complete a Position Information Questionnaire ("PIQ") prior to the reclassification. Employees were to describe their job duties and responsibilities and the job requirements on the PIQ, by answering a series of questions designed to elicit this information. Grievant filled out a PIQ in 1991.
      3.      Grievant was classified in the Mercer reclassification as a Library Technical Assistant II, Pay Grade 12, effective January 1, 1994.
      4.      Grievant's primary job duties prior to January 1, 1994, were cataloging and inter-library loans. She was also "cross- trained" in circulation, processing books, and administration, and filled in for other employees in their absence. She performed some secretarial duties for her supervisor, taught students how to use the library in library orientation classes, including how to do searches, familiarizing them with research tools and explaining the card catalog, performed computer searches for students, participated in taking inventory of library resources, and called vendors for quotes.
      5.      Library Technical Assistant II's provide paraprofessional library assistance to professional librarians. Their responsibilities may be concentrated in one particular area, such as cataloging or inter-library loans. Among other things, theyprovide general assistance to patrons in the use of library facilities, create original cataloging using computerized systems, re-catalog materials from Dewey Decimal to Library of Congress classification systems, perform inter-library loan searches and contact patrons on the status of these searches, provide circulation services, perform bibliographic searches using computerized systems, and perform secretarial duties. Joint Exhibit 1.
      6.      Library Associates supervise a particular area, or areas, of the library, and the persons employed in that area. They implement procedures, oversee operation of the area, provide basic reference service for the area, assist in maintaining up-to-date procedures and information manuals, are responsible for library equipment, recommend and administer the budget for their area, evaluate inventory and request supplies as needed, prepare annual reports, instruct patrons, and may perform other duties. Joint Exhibit 2, and Testimony of Patricia Hank.
      7.      The Library Technical Assistant II Job Title received 1693 total points from the following degree levels in each of the thirteen point factors   (See footnote 3)  : in 5.0 Knowledge; 3.0 in Experience; 2.5 in Complexity and Problem Solving; 2.0 in Freedom of Action; 1.0 in Scope and Effect, Impact of Actions; 2.0 in Scope and Effect, Nature of Actions; 1.0 in Breadth of Responsibility; 1.0 in Intrasystems Contacts, Nature of Contact; 2.0 in IntrasystemsContacts, Level; 1.0 in External Contacts, Nature of Contact; 3.0 in External Contacts, Level; 2.0 in Direct Supervision Exercised, Number; 3.0 in Direct Supervision Exercised, Level; 1.0 in Indirect Supervision Exercised, Number; 1.0 in Indirect Supervision Exercised, Level; 2.0 in Physical Coordination; 1.0 in Working Conditions; and 2.0 in Physical Demands. Respondent's Exhibits 1 and 2.
      8.      The point range for a Pay Grade 12 is from 1655 points to 1755 points. Respondent's Exhibit 1.
Discussion

A.      Burden of Proof

      The burden of proof in misclassification grievances is on the grievant to prove by a preponderance of the evidence that he is not properly classified. 156 C.S.R. 1 § 4.17; W. Va. Code § 18-29-6. Burke, et al., v. Bd. of Directors, Fairmont State College, Docket No. 94-MBOD-349 (Aug. 8, 1995). The grievant asserting misclassification must identify the job he feels he is performing. Otherwise the complaint becomes so vague as to defy an adequate rebuttal or analysis. Elkins v. Southern W. Va. Community College, Docket No. 90-BOD-124 (Mar. 4, 1991).
      A grievant is not likely to meet his burden of proof in a Mercer grievance merely by showing that the grievant's job duties better fit one job description than another, without also identifying which point factors he is challenging, and the degreelevel he believes he should have received.   (See footnote 4)  While some "best fit" analysis of the definitions of the degree levels is involved in determining which degree level of a point factor should be assigned, where the position fits in the higher education classified employee hierarchy must also be evaluated. In addition, this system must by statute be uniform across all higher education institutions; therefore, the point factor degree levels are not assigned to the individual, but to the Job Title. W. Va. Code § 18B-9-4; Burke, supra. A Mercer grievant may prevail by demonstrating his reclassification was made in an arbitrary and capricious manner. See Kyle v. W. Va. State Bd. of Rehabilitation, Div. of Rehabilitation Services and W. Va. Civil Serv. Comm'n., Docket No. VR-88-006 (Mar. 28, 1989).
      Finally, whether a grievant is properly classified is almost entirely a factual determination. As such, the Job Evaluation Committee's ("JEC") interpretation and explanation of the point factors and Generic Job Descriptions at issue will be given great weight unless clearly erroneous. See Tennant v. Marion Health Care Foundation, 459 S.E.2d 374 (W. Va. 1995); Burke, supra. However, no interpretation or construction of a term used in the Job Evaluation Plan (which provides the definitions of point factors and degree levels) is necessary where the language is clear andunambiguous. Watts v. Dept. of Health and Human Resources, 465 S.E.2d 887 (W. Va. 1995). The higher education employee challenging his classification thus will have to overcome a substantial obstacle to establish that he is misclassified.   (See footnote 5) 
B.      Comparison of Grievant's Duties to Library Associate
      The Generic Job Descriptions for Library Technical Assistant II and Library Associate (Joint Exhibits 1 and 2) are attached hereto as Appendix A and Appendix B, respectively, and by this reference are made a part of this Decision.
      Patricia Hank, Director of Human Resources, SWVCC, and member of the JEC, explained how Generic Job Descriptions were developed. She drafted the Generic Job Descriptions for the Library Job Family. She stated the General Function portion of the Generic Job Description gives an idea of the type of responsibilities the job has. She stated that Generic Job Descriptions contain the duties and responsibilities which appeared most often on the PIQ's of the persons in the Job Title; and in the Library Job Family, the first duty listed was the one which occurred most often on the PIQ's. It provides examples of the types of work performed, and states the knowledge, skills and abilities needed and the minimum qualifications of the position. She explained that a duty listed as one which "may" be performed occurred on some PIQ's, but not on a majority of them. She stated that Generic Job Descriptions werethe last step in the classification process. Persons were classified from PIQ's.
      Ms. Hank stated the percentage of time a person spends performing a particular duty is important in determining how vital the duty is to the position, and the reason the position exists. A position in which the incumbent spends 50% of the time typing would likely be a clerical position, while a position in which the incumbent spends 50% of the time analyzing policy would likely be a higher level position. Ms. Hank pointed out that Grievant, for example, performs some duties which are also performed by office support positions which are in a Pay Grade 6, but the largest block of Grievant's time, 45%, is spent cataloging. If the 20% of time spent in inter-library loans is added, that totals 65% of the time Grievant spends in this technical aspect of her job.
      Grievant's primary argument was that the classification system was not uniform because institutions of similar size did not have the same positions in the library. She pointed out that while SWVCC did not have any employees classified as Library Associates, someone was performing the Library Associate duties and should be so classified. Ms. Hank stated the JEC did not decide what positions each library should have, rather it looked at the job duties of the persons employed in the libraries and classified them based upon their existing duties. The reclassification project was designed to identify like jobs and classify them in the same title.
      While Grievant's approach is interesting, the governing boards were required under W. Va. Code § 18B-9-4 to create an equitablesystem of job classifications. This Code Section did not require them to make every department within higher education function in exactly the same manner. The governing boards were not charged with assigning Grievant additional duties to make her a Library Associate so SWVCC would have a person in that position, or rearranging the SWVCC library staff so it would need a Library Associate.
      A simple comparison of Grievant's job duties to those of the Library Associate and Library Technical Assistant II reveals that Grievant's duties fall squarely within those of a Library Technical Assistant II. However, to compare the two Job Titles requires a comparison not just of the Generic Job Descriptions, but also of the degree levels assigned to the two positions in the challenged point factors.
C.      Application of the Point Factor Methodology
      Grievant challenged the degree levels received in the point factors Complexity and Problem Solving, Freedom of Action, Scope and Effect/Nature of Actions and Impact of Actions, Intrasystems Contacts/Nature of Contact, and External Contacts/Nature of Contact. Following are the differences between the degree level assigned the point factors for the Library Technical Assistant II Job Title, the Library Associate Job Title, and the degree level Grievant argued she should have received in each of the challenged point factors:
                                                 SE SE IC EC
                                CPS FA      IA NA NC NC   (See footnote 6)        

Library Technical Assistant II 2.5 2 1 2 1 1       

Library Associate                         3 3 2 3 2 1

Grievant's Argument                          3 3 2 3 2 2
Joint Exhibit D. Each of the point factors challenged by Grievant will be addressed separately below.   (See footnote 7) 
      1.      Complexity and Problem Solving
      The Job Evaluation Plan ("the Plan") defines Complexity and Problem Solving as follows:

      Grievant received a degree level of 2.5 in this point factor. She believes she should have received a degree level of 3.0, as did the Library Associate Job Title. A degree level of 2.5 is not specifically defined, but Ms. Hank stated this means the job dutiesand responsibilities fell between a 2.0 and a 3.0. A degree level of 2.0 is defined in the Plan as:
      A degree level of 3.0 is defined in the Plan as:
      Grievant stated she must refer to 32 separate manuals when cataloging books, and she must keep these manuals updated. In the Online Computer Library Center ("OCLC") system she must be careful, because there may be as many as four or five card sets in the system for one book. She has to check the date of the book and paging to make sure she is ordering the correct set of cards. Grievant's supervisor, Barbara Aguirre, Manager of Library Services, noted that certain formats must be used on the OCLC, and it takes her a long time to remember how to use the OCLC when she has not done so for awhile. It cannot be learned in a day's time.
      Grievant further stated she must upgrade the hard drive two or three times a year, and she must back it up. She searches for materials requested through inter-library loan. Grievant's PIQ states as other examples of common problems understaffing, trainingwork study and part-time student employees, and working with demanding patrons.
      Ms. Hank emphasized that the definition of Complexity and Problem Solving must be read in conjunction with the degree levels. She stated Grievant has manuals and guidelines which are used in performing her job duties. She stated Grievant encounters no special circumstances or assignments in her day to day duties which require her to make decisions not covered in the manuals and guidelines. She explained the reason Library Associates received a 3.0 in this point factor, and in Freedom of Action, was due to their supervisory and budget management responsibilities.
      While Grievant must use her training, experience and standard library guidelines to choose the reference manual applicable to each cataloging duty, her decisions are better characterized as basic decisions about what needs to be done, rather than requiring some resourcefulness and originality. Established procedures and specific instructions are available for doing most work assignments. Grievant thus has not met her burden of proving the JEC was clearly wrong or acted in an arbitrary and capricious manner in deciding the Library Technical Assistant II job duties were not within either a 2.0 or a 3.0, but rather fell somewhere in between.
      2.      Freedom of Action
      The Plan defines Freedom of Action as:
      Grievant received a degree level of 2.0 in this point factor. She believes she should have received a degree level of 3.0, as did the Library Associate Job Title.
      A degree level of 2.0 is defined in the Plan as:
      The definitions in the Plan show that at a degree level of 3.0:
      Grievant stated she is not told what to do each day, because she has worked in the position long enough to know what needs to be done. She receives supervision when she is learning a new procedure. She tries to handle irate patrons, and when they become very irate, she sends them to her supervisor. She also calls on her supervisor when she cannot determine the proper cataloging.
      Ms. Aguirre testified that Grievant is given general direction, and works from policies and objectives that are set. Grievant was trained in her job and was given detailed instruction. Grievant occasionally does original cataloging of books on her ownusing standard practices. In doing so she would have to decide which category fit the book best. Goals are set by the library as a team, from discussions of what they want to do for the year. Ms. Aguirre directs Grievant to perform secretarial tasks for her.
      A degree level of 2.0 fits Grievant's duties. Her job is structured. She performs cataloging or inter-library loans based upon whether requests were made by patrons and whether new materials have arrived to be cataloged. She performs secretarial duties and fills in for absent employees as directed. She utilizes standard operating procedures to perform her duties. Her supervisor is available to answer questions, and she refers questionable items to her supervisor. Grievant has not proven that a degree level of 3.0 is a better fit for her duties.
      3.      Scope and Effect
      Scope and Effect is defined in the Plan as:
      This factor consists of two parts, Impact of Actions and Nature of Actions. Grievant received a degree level of 1.0 in Impact of Actions and 2.0 in Nature of Actions. She argued she should have received a degree level of 2.0 in Impact and 3.0 in Nature, as did the Library Associate Job Title.
      A degree level of 1.0 in Impact of Actions is defined in the Plan as:
      A degree level of 2.0 in Impact of Actions is defined in the Plan as:
      A degree level of 2.0 in Nature of Actions is defined in the Plan as:
      A degree level of 3.0 in Nature of Actions is defined in the Plan as:
      Ms. Hank simply stated Grievant's work is limited to her department, and her decisions are standardized.
      The degree level definitions under Impact of Actions are not self explanatory, and the definition of Scope and Effect lends little guidance in interpreting degree levels 1.0 and 2.0. Ms. Hank's conclusory statements added nothing to what was already known prior to the hearing. Grievant performs virtually all cataloging and inter-library loan searches, and accordingly, it would seem that her work "affects . . . several major activities" of the library, even though she is not in charge of these areas of the library. Grievant has proven her duties would entitle her to a degree level of 2.0 under Impact, and Respondent failed to offer evidence to rebut this.
      Grievant's duties do not clearly fall within a degree level of 3.0 under Nature of Actions. She is not providing guidance to the cataloging or inter-library loan departments, but is the person performing cataloging and inter-library loan searches. The decisions Grievant makes on cataloging and searches are routine,and are based upon the application of accepted practices. The costs of errors noted by Grievant can be characterized as "some costs and inconveniences", rather than "moderate costs and inconveniences."
      4.      Intrasystems Contacts
      Intrasystems Contacts is defined in the Plan as a factor which:
      This factor also consists of two parts, Nature of Contact and Level of Regular, Recurring and Essential Contact. Grievant is challenging the degree level received in Nature of Contact. Grievant received a degree level of 1.0 in Nature. She argued she should have received a degree level of 2.0 in Nature, as did the Library Associate Job Title.
      A degree level of 1.0 in Nature of Contact is defined in the Plan as:
      A degree level of 2.0 in Nature is defined in the Plan as:
      Grievant and her supervisor seemed to confuse Intrasystems Contacts and External Contacts, and discussed contacts with persons who are not higher education employees under Intrasystems Contacts, as well as under External Contacts. The PIQ lists Grievant's Intrasystems Contacts as staff, faculty and managers at other institutions. Grievant stated she is usually explaining simple policies and procedures, and she must exercise moderate tact and be cooperative and as helpful as possible. Ms. Hank pointed out that the information exchanged is routine. She stated everyone has to be cordial and professional.
      Based upon the scant evidence relevant to this point factor Grievant did not prove the JEC was clearly wrong or acted in an arbitrary and capricious manner in assigning her duties a degree level of 1.0.
      5.      External Contacts
      External Contacts is defined in the Plan as:
This factor also consists of two parts, Nature of Contact and Level of Regular, Recurring and Essential Contact. Grievant is challenging the degree level received in Nature. She argued she should have received a degree level of 2.0, rather than a 1.0. The Library Associate Job Title also received a degree level of 1.0.      A degree level of 1.0 in Nature of Contact is defined in the Plan as:
      A degree level of 2.0 in Nature of Contact is defined in the Plan as:
      Grievant stated that in her communications with persons who are not higher education employees, she is seeking information, trying to reserve materials for a particular date and checking the price, and two times per year seeking bids on equipment. Grievant also makes calls to persons outside higher education in performing secretarial duties for Ms. Aguirre. It was not clear what type of communications were had between Grievant and those persons she called in performing secretarial duties, although Ms. Aguirre opined that Grievant's contacts would be the same as hers.
      Ms. Aguirre noted the importance of effective communication in performing Grievant's duties. She stated it is difficult to get information from patrons necessary to providing the proper reference help. Time spent on-line is expensive, so it is important to determine exactly what the patron needs. She explained that sometimes patrons do not know what they are lookingfor, and Grievant must question them to determine their exact needs.
      Grievant did not prove the JEC was clearly wrong or acted in an arbitrary and capricious manner in assigning her duties a degree level of 1.0. While it is important that Grievant possess good communication skills, her communication can be characterized as "routine information exchange . . . requir[ing] common courtesy (e.g., furnishing or obtaining factual information, ordering supplies, describing simple procedures)".
D.      Summary
      Grievant failed to prove the JEC was clearly wrong or acted in an arbitrary and capricious manner by failing to classify her as a Library Associate. Grievant further failed to prove that the degree levels assigned to her Job Title in the point factors Complexity and Problem Solving, Freedom of Action, Scope and Effect/Nature of Actions, Intrasystems Contacts/Nature of Contact and External Contacts/Nature of Contact were clearly wrong or were assigned in an arbitrary and capricious manner by the JEC.
      Grievant proved that a degree level of 2.0 in Scope and Effect/Impact of Actions better fit her situation than a 1.0. However, changing this degree level does not add enough points to change the Pay Grade, and Grievant did not prove that all persons classified as Library Technical Assistant II's should have received a degree level of 2.0. R Ex 1.   (See footnote 8)        Ms. Hank pointed out thatGrievant received credit under Direct Supervision Exercised for lead supervisory responsibility over an employee doing similar work, even though Grievant does not perform such lead supervisory duties, because there were enough persons in her classification with this responsibility to make it one of the duties of the Job Title. However, removing this duty, and changing the points received in Direct Supervision Exercised, would not change the Pay Grade. Ms. Hank testified that had it affected the Pay Grade, persons with lead supervisory responsibilities would have been placed in a separate classification from Grievant. Applying this practice of the JEC to Grievant's case, the data line for the Library Technical Assistant II will not be changed.
      
Conclusions of Law

      1.      The governing boards are required by W. Va. Code § 18B-9- 4 to establish and maintain an equitable system of job classifi cations for all classified employees in higher education.
      2.      The burden of proof in a misclassification grievance is on the grievant to prove by a preponderance of the evidence that he is not properly classified. 156 C.S.R. 1 § 4.17. The grievant asserting misclassification must identify the job he feels he is performing. Otherwise the complaint becomes so vague as to defy an adequate rebuttal or analysis. Elkins v. Southern W. Va. Community College, Docket No. 90-BOD-124 (Mar. 4, 1991).
      3.      The Job Evaluation Committee's interpretation and explanation of the Generic Job Description and point factors will be given great weight unless clearly wrong, where the properclassification of a grievant is almost entirely a factual determination. See Tennant v. Marion Health Care Foundation, 459 S.E.2d 374 (W. Va. 1995); Burke, et al., v. Bd. of Directors, Fairmont State College, Docket No. 94-MBOD-349 (Aug. 8, 1995).
      4.      The Job Evaluation Committee's decision that Grievant is not a Library Associate is not clearly wrong or arbitrary and capricious.
      5.      The Job Evaluation Committee's assignment of degree levels to the point factors for the Library Technical Assistant II Job Title is neither clearly wrong nor arbitrary and capricious.

      Accordingly, this grievance is DENIED.

      Any party may appeal this Decision to the Circuit Court of Logan County or the Circuit Court of Kanawha County and 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. 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.

                                                       BRENDA L. GOULD
                                                Administrative Law Judge


Dated:      August 15, 1996


Footnote: 1
The reader is referred to Burke, et al., v. Bd. of Directors, Fairmont State College, Docket No. 94-MBOD-349 (Aug. 8, 1995), for a discussion of the background of the Mercer reclassification project, the procedural history of the Mercer grievances, and the definitions of various terms of art specific to the Mercer reclassification.
Footnote: 2
Grievant's representative made oral argument at the conclusion of the hearing, and declined to submit written argument.
Footnote: 3
The thirteen point factors are set forth in 128 C.S.R. 62 § 2.27, and 131 C.S.R. 62 § 2.27. Burke, supra.
Footnote: 4
A grievant may challenge any combination of point factor degree levels, so long as he clearly identifies the point factor degree levels he is challenging, and this challenge is consistent with the relief sought. See Jessen, et al., v. Bd. of Trustees, W. Va. Univ., Docket No. 94-MBOT-1059 (Oct. 26, 1995); and Zara, et al., v. Bd. of Trustees, W. Va. Univ., Docket No. 94-MBOT-817 (Dec. 12, 1995).
Footnote: 5
This discussion is not intended to address challenges to the way the Mercer system as a whole is set up, that is, challenges to the methodology.
Footnote: 6
These headings are shorthand for the following point factors: CPS is Complexity and Problem Solving; FA is Freedom of Action; SE, IA is Scope and Effect, Impact of Actions; SE, NA is Scope and Effect, Nature of Actions; IC, NC is Intrasystems Contacts, Nature of Contact; and EC, NC is External Contacts, Nature of Contact.

Footnote: 7
The Library Associate Job Title also received a higher degree level than the Library Technical Assistant II Job Title in the point factors Knowledge and Direct Supervision Exercised/Number and Level; and a lower degree level in Experience, Physical Coordination and Physical Demands. Grievant is not challenging the degree level received in these point factors, and the undersigned will not address these point factors.
Footnote: 8
The chart used to convert degree levels into total points for purposes of determining the proper pay grade, and the pay grade chart, are a part of Respondent's Exhibit 1.