JERRY PAYNE, et al.,
Grievants,
v.
DOCKET NO. 94-T-064
WEST VIRGINIA DEPARTMENT OF TAX AND
REVENUE/DIVISION OF PERSONNEL,
Respondents.
D E C I S I O N
Grievants
(See footnote 1)
, employed by the Department of Tax and Revenue ("Tax"), filed this
grievance on or about September 24, 1993, alleging they are misclassified as Tax Unit
Supervisor I's. Following adverse decisions at the lower levels, Grievants appealed to level
four on February 28, 1994. Following several continuances for good cause, this case was
held in abeyance pending settlement negotiations. This matter was reassigned to the
undersigned Administrative Law Judge on May 22, 1996, and a level four hearing was held
on October 7, 1996, at which time this case became mature for decision.
The classification specifications at issue are reproduced herein as follows:
TAX UNIT SUPERVISOR I
Nature of Work
Under limited supervision, at the full-performance level, plans,
assigns, and coordinates the work of para-professionals in a unit of the
agency. Interprets and applies state and federal laws and regulations and
departmental policies and procedures. Exercises independent judgement in
recommending and initiating actions necessary to carry out responsibilities
delegated by immediate supervisor. Performs related work as required.
Distinguishing Characteristics
The Tax Unit Supervisor I is distinguished from the Tax Unit
Supervisor II by typically supervising staff that involves the administration of
taxes. The type of subordinates supervised would be tax audit clerks,
revenue agents, drafters, tax mapping technicians, investigators, taxpayer
service representatives, or support staff with a high level of monetary
accountability. This class is not intended for supervisors for a clerical
support staff or to be used as lead workers.
Examples of Work
Plans, assigns, supervises and reviews the technical, semi-professional
and clerical work of subordinate staffs.
Oversees and coordinates programs and taxes administered within the
area of responsibility.
Evaluates work for quality, accuracy, and compliance with established
tax laws, rules, and regulations.
Instructs, trains, and advises staff in work procedures.
Confers with administrative and professional staff on unit requirements,
projects and workloads.
Interprets and implements state and federal tax laws and regulations
and administrative policies, opinions, and procedures for staff,
corporate officers, state and federal officials, and the general public.
Develops new procedures to accomplish job assignments.
Composes, dictates, or prepares letters and memoranda in connection
with supervised staff and unit operation.
Compiles and prepares federal and state reports of the unit's activities
and taxes administered.
Reviews employee performance, interviews prospective employees and
makes recommendations for hiring, disciplinary actions, and merit
increases.
May modify and integrate personal computer files related to tax
accounts; train subordinates in use of tax computer files; make
recommendations on computer needs.
TAX UNIT SUPERVISOR II
Nature of Work
Under limited supervision, at the full-performance level, plans,
assigns, and coordinates the work of professional, semi-professional,
technical, and clerical staff in a unit of the agency. Exercises independent
judgement in recommending and initiating actions necessary to carry out
responsibilities. May involve travel. Performs related work as required.
Distinguishing Characteristics
The Tax Unit Supervisor II is distinguished from the Tax Unit
Supervisor I by the nature of work supervised. The Tax Unit Supervisor II
supervises a professional staff such as Tax and Revenue Auditors, Tax
Analysts and/or Tax Appraisers. May supervise para-professionals and/or
clerical support staff in addition to the professional staff. The Tax Unit
Supervisor II is distinguished from the Tax and Revenue Manager by the
predominant duties of supervising a staff and coordinating the work in the
area assigned. Also at this level, the incumbent supervises a unit or may
supervise several small units whereas the Tax and Revenue Manager
performs administrative duties and manages large multiple units.
Examples of Work
Plans, assigns, supervises and reviews the work of a professional staff.
Oversees and coordinates programs and taxes administered within the
area of responsibility.
Evaluates work for quality, accuracy, and compliance with established
tax laws, rules, and regulations.
Instructs, trains, and advises staff in work procedures.
Confers with administrative and professional staff on unit requirements,
projects and workloads.
Interprets and implements state and federal tax laws and regulations
and administrative policies, opinions, and procedures for staff,
corporate officers, state and federal officials, and the general public.
Develops new procedures to accomplish job assignments.
Composes, dictates, or prepares letters and memoranda in connection
with supervised staff and unit operation.
Compiles and prepares federal and state reports of the unit's activities
and taxes administered.
Reviews employee performance, interviews prospective employees and
makes recommendations for hiring, disciplinary actions, and merit
increases.
Prepares, conducts and attends meetings representing the agency.
Provides testimony at administrative or judicial hearings.
May modify and integrate personal computer files related to tax
accounts; train subordinates in use of tax computer files; make
recommendations on computer needs.
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
match 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 Work"
section of a classification specification is its most critical section.
Atchison v. W. Va. Dept.
of Health, Docket No. 90-H-444 (Apr. 22, 1991);
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/Div. of Personnel, Docket No. 90-H-433
(Mar. 28, 1991). The predominant duties of the position in question are class-controlling.
Broaddus v. W. Va. Div. of Human Services, Docket Nos. 89-DHS-606, 607, 609 (Aug. 31,
1990).
Additionally, class specifications are descriptive only and are not meant to be
restrictive. Mention of one duty or requirement does not preclude others.
W. Va. Admin.
Rule §4.04(a);
Coates v. W. Va. Dept. of Health and Human Res., Docket No. 94-HHR-041
(Aug. 29, 1994). Even though a job description does not include all the actual tasksperformed by a grievant, that does not make the job classification invalid.
W. Va. Admin.
.Rule at §4.04(d). Finally, Personnel's interpretation and explanation of the classification
specifications at issue, if said language is determined not 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 (W. Va. 1993).
The West Virginia Division of Personnel ("Personnel") interprets
W. Va. Admin. Rule
§4.04 which deals with "class specifications," as follows:
(a)
Class specifications are descriptive only and are not restrictive. The use
of a particular expression of duties, qualifications, requirements, or other
attributes shall not be held to exclude others not mentioned.
(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
as 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 prescribing what the duties of any position are nor as limiting
the expressed or implied power of the appointing authority now orhereafter vested with the right to prescribe or alter the duties of any
position.
(d)
The fact that all the actual tasks performed by the incumbent of a
position do not appear in the specifications of a class to which the
position has been allocated does not mean that the position is
necessarily excluded from the class, nor shall any one example of a
typical task taken without relation to the other parts of the specification
be construed as determining that a position should be allocated to the
class.
Employees can perform duties outside their job description as the class specifications
are to characterize the type of work to be performed, not to identify every task of the
position. Class specifications are descriptive, not exhaustive, and are to give a "flavor" of
the difficulties, complexities, and duties of the position. Class specifications are to follow
the organization of an agency's work, not to precede it. Personnel's goal in writing the
class specification is to give a general description of the duties, not to handcuff the agency
in the way it conducts business.
In this case, both positions are managerial positions. The first task is to draw a
meaningful distinction between the classification specifications at issue by reviewing the
documents from the top down. The Tax Unit Supervisor I's main focus is on managing the
work of para-professionals involved in the administration of taxes, specifically within the
Compliance Division of Tax, which is responsible for the collection of taxes. The Tax UnitSupervisor I position is an entry-level management position, and the types of employees
it supervises reflect that. The Tax Unit Supervisor II's are responsible for the management
of professional employees in the Audit Division of the Department, which include auditors,
analysts and examiners, most of which hold accounting or other advanced education
degrees.
It is undisputed that the nature of the work involved in the two classification
specifications, i.e., managerial, is basically the same. The distinction between the two
classifications is the level of employees being managed, and essentially, where the
positions fall within Tax's organizational hierarchy. Grievants attempted to establish that
Revenue Agents, the employees they manage, are "professionals", and that there is no
distinction between the subject positions. Personnel defines "professional" as someone
who has undergone a "prolonged course of study" for a particular type of work. The
National Labor Relations Board also defines "professional" as such, using as examples
such persons as legal, engineering, scientific, and medical personnel.
Davis v. Dept. of
Health and Human Serv., Docket No. 93-HHR-392 (Apr. 29, 1994);
citing NLRB v. Bell
Aerospace Co. Div. of Textron, 416 U.S. 267, 94 S.Ct 1757, 40 L.Ed.2d 134 (1974).
While there is no doubt that the employees under the supervision of Grievants act in
a professional manner and are competent in the performance of their jobs, the use of the
term "professional" by the Division of Personnel, as it is used by the NLRB, clearly
contemplates individuals who have achieved a particular level of skill in a particular field
through advanced study, such as accountants, lawyers, physicians, nurses, social workers,
architects, engineers, etc. Grievants supervise employees engaged in a more technical
sort of work, i.e., collection and administration of taxes, who usually deal directly with thepublic. The employees supervised by Tax Unit Supervisors II's are engaged in more
complex, endeavors, such as auditing, analysis and examining tax records. These
individuals generally do not deal directly with the public, and often seek legal counsel to
assist them in preparing their reports. Therefore, Grievants do not supervise "professional"
employees as that term is used by Personnel and as is found in the Tax Unit Supervisor
II job description.
Davis,
supra.
With regard to Tax's organizational hierarchy, it has been determined by Tax and
Personnel that the Tax Unit Supervisor I classification represents an entry-level
management position. Employees in that classification who wish to advance within Tax
may apply to join the Auditing Division, and move up to Tax Unit Supervisor II's, or remain
within the Compliance Division and be promoted to Assistant Directors. There is a concern
within Tax regarding the applicable pay grades, because, as it exists now, individuals such
as Revenue Agents, who wish to advance to the position of Tax Unit Supervisor I, are often
required to take a reduction in pay, resulting in a disincentive for employees to advance
through the organization. Nevertheless, that apparent pay inequity does not render
Grievants or other Tax Unit Supervisor I's misclassified.
Based upon the record developed in this case and the foregoing discussion, it is
appropriate to make the following findings of fact.
Findings of Fact
1. Grievants are Tax Unit Supervisor I's within the Department of Tax and Revenue,
Compliance Division.
2. Grievants are responsible for the seven regional offices of the Department of Tax
and Revenue. 3. Grievants manage and supervise individuals responsible for the collection and
administration of taxes, including Revenue Agents.
4. Revenue agents are not considered "professional" employees, as that term is used
by the Division of Personnel and the National Labor Relations Board.
5. The Tax Unit Supervisor I classification is an entry-level management position within
Tax, as reflected by the types of employees being supervised.
6. Tax Unit Supervisor II's manage and supervise accountants, auditors, examiners
and analysts, who are considered "professional" employees.
7. The Tax Unit Supervisor II classification is a higher-echelon management position
as compared to the Tax Unit Supervisor I.
Conclusions of Law
1. Grievants have failed to prove by a preponderance of the evidence that they are
improperly classified as Tax Unit Supervisor I's based upon a review of their normally
assigned duties and responsibilities, as well as the types of employees they supervise.
2. Personnel's interpretation of the two classification specifications at issue is not
clearly wrong as applied to the facts developed by Grievants.
Blankenship,
supra.
Accordingly, this grievance is 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.
___________________________________
MARY JO SWARTZ
Administrative Law Judge
Dated: January 8, 1997
Footnote: 1