v. DOCKET NO. 94-MBOD-401
BOARD OF DIRECTORS/WEST VIRGINIA STATE COLLEGE,
Grievant Thomas Wise submitted a grievance challenging his
classification as Manager/Operator of the Educational Network, at
Pay Grade 18. He seeks classification in that same title, at Pay
Grade 21. Mr. Wise was classified under the Job Evaluation Plan
("Plan") for the State College and University Systems of West
Virginia, which was developed by the Respondent's Job Evaluation
(See footnote 1)
The Plan employs a "point factor methodology"
which evaluates each job title by analyzing specific
characteristics termed "factors"
(See footnote 2)
, assigning a rating or "degree
level" within each factor, and applying a weighted equation to the
assigned levels to arrive at a numerical total. This total then
determines the job title's Pay Grade.
A Level IV hearing was conducted in this Board's office in
Charleston, West Virginia, on December 4, 1996. This matter became
mature for decision on January 6, 1997, following the receipt oftimely post-hearing submissions from the parties.
Grievant specifically challenges the degree level ratings
received in several point factors used to evaluate his position and
assign it a Pay Grade under the Plan. The point factors challenged
are: Complexity and Problem Solving; Scope and Effect; Breadth of
Responsibility; Intrasystems Contacts; External Contacts; and
Direct Supervision Exercised/Level of Supervision.
The following Findings of Fact are properly made from the
record developed at Level IV:
FINDINGS OF FACT
1 1. All classified employees were asked to complete a Position
Information Questionnaire (PIQ) prior to the reclassification.
PIQs are 17 page documents on which individual employees described
the duties of their position, as well as certain minimum
qualifications required to carry out their duties. The PIQ was
reviewed, commented upon, and signed by the employee's supervisor,
and the supervisor's supervisor. Mr. Wise filled out a PIQ in
2 2. Mr. Wise is employed as the Manager/Operator of the
Educational Network (EdNet). EdNet is located on the campus ofWest Virginia State College (WVSC), which also serves West Virginia
Graduate College (WVGC).
3 3. EdNet serves all higher education institutions in West
Virginia by providing satellite distance education, video
production services, teleconference downlinking services, audio-
conferencing and technical support services. EdNet also generates
a large part of its own funds by providing services to entities
outside the higher education system, such as state and federal
agencies and private businesses. EdNet was created in 1987. It
operates 14 hours per day, and is the only uplink facility in the
State higher education system.
4 4. Grievant's job duties are essentially the same as they were
on January 1, 1994, and include (with approximate percentages of
time): coordinating and scheduling all video and audio programming,
whether it originates at the EdNet offices or at another location
(20%); planning and consulting with various persons and groups
regarding materials and programming (20%); coordinating,
supervising and scheduling activities of technical, production, and
office staff for productions, uplinking and maintenance of
equipment (15%); acting as liaison between EdNet and different
programming sources (15%); ensuring continuity of programming and
operational procedures (10%); determining equipment status and
needs (10%); providing proper orientation for those who utilize
EdNet facilities (5%); and providing staff with training and
education opportunities (5%).
5 5. Mr. Wise serves as a non-voting, ex officio member of theAcademic Users Group (AUG), which selects courses appropriate for
transmission as distance learning classes. The AUG selections are
given to Mr. Wise, who then prepares a draft schedule. In
scheduling the courses for transmission or taping, Mr. Wise
considers and works out logistical difficulties, such as where
classes originate and whether a transmission path from that
location is available. Classes are generally transmitted by
satellite uplink in live, two hour segments between four and ten
o'clock p.m. Planning is long-term, as it may take up to a year
and a half for programs to actually be aired. Mr. Wise's draft
schedule is presented to the AUG. Once approved by the AUG, Mr.
Wise finalizes it by confirming the availability of the instructor.
Mr. Wise then utilizes this schedule in creating a daily
programming schedule for faculty, institutions, and EdNet staff.
Mr. Wise also contacts the satellite provider, and encumbers the
satellite time. Similar activities are involved in scheduling
teleconferences and other such services. However, the AUG is not
involved in programming or scheduling for State agencies or private
6 6. Members of the AUG include representatives from each higher
education institution. The members include persons such as an
Associate Vice President for Academic Affairs, Chairs of Academic
Departments, Coordinators, Deans, Directors, and faculty, as well
as others designated as alternates or ex officio members. G. Ex.
1. The AUG meets monthly. Mr. Wise also serves on other
committees such as the Distance Learning Coordinating Council, andthe Distance Education Oversight Committee.
7 7. Mr. Wise has contact with personnel from entities outside
the higher education system which use EdNet's services. State
agencies involved include the Department of Education, Governor's
Office, and Department of Health and Human Resources. EdNet
services are also utilized by federal agencies and offices,
extension services, Charleston Area Medical Center, the School
Board Authority, and various private entities and businesses.
8 8. Mr. Wise prepares Requests for Proposals (RFPs) for
satellite contracts and for equipment purchases. He estimates the
hours of use of satellite time to be secured. He works with the
purchasing department to develop bid documents. He also evaluates
bids which are received, and recommends the entity to be awarded
the contract. Mr. Wise writes letters of justification for
awarding contracts to one who is not the low bidder.
9 9. Mr. Wise provides technical, scheduling and cost
information to the AUG and to different users of EdNet's facilities
and services. As part of his liaison and scheduling duties, Mr.
Wise has frequent contacts with persons outside the higher
education system. For example, Mr. Wise speaks with plant managers
of chemical facilities regarding how EdNet can assist in meeting
the plant's training needs, and with personnel in various state
agencies regarding conducting teleconferences.
10 10. Mr. Wise supervises the six people who constitute EdNet'sentire engineering and production staff.
(See footnote 3)
regarding EdNet staff are made after team interviews and through
joint decision-making. The Director of EdNet, Mr. Wise's
supervisor, signs documents concerning hiring and firing. Both Mr.
Wise and the Director sign leave slips and purchase orders.
11 11. Mr. Wise has regular contacts with vendors of equipment
and supplies, as well as vendors of satellite services.
12 12. Mr. Wise has no formal budget accountability for EdNet,
although he assists the EdNet Director in projecting needs and
costs of satellite time, equipment and supplies, and in making
presentations in order to obtain increased funding.
13 13. The job title Manager/Operator of EdNet received 2447
total points under the Plan. The point range for Pay Grade 18 is
from 2408 through 2573 points. Jt. Ex. F.
The burden of proof in misclassification grievances is on the
grievant to prove by a preponderance of the evidence that he or she
is not properly classified. 156 C.S.R. 1 §4.19; W. Va. Code
29-6. Burke v. Bd. of Directors
, Docket No. 94-MBOD-349 (Aug. 8,
1995). The grievant must identify the job he or she feels is being
done. Elkins v. Southern W. Va. Community College
, Docket No. 90-
BOD-124 (Mar. 4, 1991). The grievant must also identify which
point factor degree levels are challenged. This is because theMercer reclassification system is not based upon whole job
comparisons, but rather is a quantitative system in which the
components of each job are analyzed separately. The components are
then evaluated using the point factor methodology contained in the
. A grievant may challenge any combination of
point factor degree levels, so long as he or she clearly identifies
the ones being challenged, and this challenge is consistent with
the relief sought. See Zara v. Bd. Of Trustees
, Docket No. 94-
MBOT-817 (Dec. 12, 1995); and Jessen v. Bd. Of Trustees
, Docket No.
94-MBOT-1059 (Oct. 26, 1995).
Some "best fit" analysis is involved in determining which
degree level of a point factor should be assigned. However, this
system must by statute be uniform across all higher education
institutions. Therefore, the point factors are not assigned to the
individual, but to the job title. Burke
. In order to
maintain the integrity of the overall classification scheme, the
individual grievant's case must be analyzed with reference to where
the position fits in the higher education classified employee
hierarchy, and the "best fit" must be determined in relation to
other similar positions.
In this case, whether Mr. Wise is properly classified is
almost entirely a factual determination. As such, the JEC's
interpretation and explanation of the point factors at issue will
be given great weight unless clearly erroneous. See Tennant v.
Marion Health Care Found.
, 194 W.Va. 97, 459 S.E.2d 374 (1995);
. Of course, no interpretation or construction of aterm is necessary where the language is clear and unambiguous. See
Watts v. Dept. Of Health & Human Resources
, 195 W.Va. 430, 465
S.E.2d 887 (1995). A grievant may prevail by demonstrating his or
her reclassification was made in an arbitrary and capricious
manner. See Kyle v. W. Va. State Bd. of Rehab.
, Docket No. VR-88-
006 (Mar. 28, 1989). Generally, action is arbitrary and capricious
if it did not rely on criteria intended to be considered, entirely
ignored important aspects of the problem, explained or reached the
decision in a manner contrary to the evidence before it, or reached
a decision that is so implausible that it cannot be ascribed to a
difference of view. See Bedford County Memorial Hosp. v. Health
and Human Serv.
, 769 F.2d 1017 (4th Cir. 1985); Yokum v. W. Va.
Schools for the Deaf and the Blind
, Docket No. 96-DOE-081 (Oct. 16,
1996). While a searching inquiry into the facts is required to
determine if an action was arbitrary and capricious, the scope of
review is narrow, and an administrative law judge may not
substitute her judgment for that of the JEC. See generally
Harrison v. Ginsberg
, 169 W.Va. 162, 286 S.E. 2d 276 (1982).
Mr. Wise challenged his ratings in several of the factors
analyzed in assigning his Pay Grade. Each point factor which is
subject to dispute in this grievance will be addressed separately.
A. COMPLEXITY AND PROBLEM SOLVING:
The Plan defines this factor as:
This factor measures the degree of problem-solving
required, types of problems encountered, the difficulty
involved in identifying problems and determining an
appropriate course of action. Also considered is theextent to which guidelines, standards and precedents
assist or limit the position's ability to solve problems.
(Jt. Ex. E. All definitions are quoted from this exhibit, unless
Mr. Wise's position was assigned level 4 under this factor.
Level 4 is defined as:
Problems encountered are complex and varied due to
incomplete and/or conflicting data. General policies,
procedures, principles, and theories of specific
professional disciplines are available as guidelines;
however, these guides may have gaps in specificity or
lack complete applicability to work assignments.
Employee must utilize analytical skills in order to
interpret policies and procedures, research relevant
information, and compare alternative solutions.
Mr. Wise seeks assignment of level 5, which is defined as:
Problems encountered involve unusual circumstances,
variations in approach, and incomplete or conflicting
data. Employees exercise considerable analytical,
valuative and reasoning skill in researching information
and developing new methods to perform work assignments or
optimum solutions to problems. The development of new
programs, procedures or methods are typical end results
of the problem-solving process. Determination of the
effectiveness of a policy or practice may be involved at
Mr. Wise noted that EdNet is a unique entity, serving the
entire higher education system with the only satellite uplink
facility. Mr. Wise provides scheduling services for all the
institutions, which involves consideration of complex logistical
difficulties. For example, Mr. Wise noted that planning
presentation of a course is long term, and he must coordinate the
schedule of different courses by considering such things as the
site where the course originates, available pathways for linking
the originating signal to EdNet, other transmissions being made atthe same time, and the type of instruction given. Also, he noted
that his scheduling must allow for different academic schedules at
different institutions. For example, on at least one occasion, the
different institutions participating in a televised class had their
spring breaks scheduled such that some students were on spring
break throughout the month of April. He accounted for the
sequential absences of different students by taping classes for
that month, and sending the appropriate tapes to different
institutions so that students could watch the missed classes.
As another example of problems encountered in this position,
Mr. Wise stated that he deals with budgets from many institutions.
He encumbers satellite time based on the schedule, and directs the
satellite provider to bill the originating institution. In other
words, Mr. Wise stated, he commits the funds of many institutions.
He does the same with funds from State agencies, as well.
As an example of the complexity of his job, Mr. Wise testified
about his preparation of RFPs and other work in the bidding
process. Mr. Wise stated that it was his decision to extend the
current satellite contract, rather than to obtain new bids. Mr.
Wise stated that he was involved in setting up a new procedure for
proposing and processing courses for satellite presentation,
through developing new forms and identifying the information and
signatures required. He also testified that he was involved in
developing new programs, such as the Spanish 6 program transmitted
from Capitol High School.
Respondent's witness was Ms. Patricia Hank, Director of HumanResources at Southern West Virginia Community College, and a JEC
member. Ms. Hank testified that this factor does not measure the
intricacy and complexity of the tasks performed, but measures the
types of problems one encounters in performing one's tasks. It
evaluates how problems are discovered and addressed, and the degree
of decision-making required. She noted that scheduling is governed
by established procedures, processes and criteria, which provide
guidelines for the work of this position. She also stated that
this position deals with logistics, not with policy issues. The
problems encountered by Mr. Wise are not ones which require him to
find new methods for performing his work assignments. She
testified that the position's impact is evaluated, not EdNet's
impact. She opined that the end result of Mr. Wise's work is to
provide a service: course presentation and teleconferencing. The
end result of his work is not new program development. He does not
plan to offer new programs, but is involved in determining how to
put programs on the air.
As Mr. Wise stated, EdNet is a unique entity in the higher
education system. However, that fact does not necessarily mean
that the problems encountered in performing an EdNet employee's
tasks "involve unusual circumstances." Most, if not all, work
units are unique in some fashion, and most, if not all, employees
consider their work to have unique attributes. The essential issue
under the Complexity and Problem Solving factor is not the
characterization of the work unit, but the assessment and
characterization of the types of problems encountered in performingthe employee's normal work duties.
While Mr. Wise's responsibilities are complicated and varied,
the problems appear to fall into several general categories, rather
than involving unusual circumstances. Mr. Wise must certainly
exercise great care and skill in finding optimum logistical
solutions to scheduling problems. However, the same logistical
problems recur, and have a limited number of options for
resolution. The responsibilities he has in the bidding and funding
processes are not "problems" so much as standard tasks entailing
responsible performance on Mr. Wise's part. It does not appear
end results" of his work are new programs, procedures
or methods. Rather, he gave a single example of altering the
course scheduling process. His involvement in the Spanish 6
program was, as Ms. Hank noted, not "development" of the program
but provision of logistic and engineering services to put it on the
air. It thus appears that new procedures are developed only
"The difference between a Level 4 and Level 5 rating on this
factor involves a subjective determination." Miller v. Bd. of
, Docket No. 94-MBOD-495 (Oct. 29, 1996). Where the JEC's
decision is not so implausible that it cannot be ascribed to a
difference of view between reasonable minds, the standard of review
in these cases does not allow for the undersigned to substitute her
judgment for that of the JEC. Id.
Mr. Wise has provided
insufficient information to prove that the JEC's evaluation of this
factor was clearly wrong.
B. SCOPE AND EFFECT/NATURE OF ACTIONS AND IMPACT OF ACTIONS:
This factor measures the scope of responsibility of
the position with regard to the overall mission of the
institution, and/or the West Virginia higher education
systems, as well as the magnitude of any potential error.
Decisions regarding the nature of action should consider
the levels within the systems that could be affected, as
well as impact on the following points of institutional
mission: instruction, instructional support, research,
public relations, administration, support services,
revenue generation, financial and/or asset control, and
student advisement and development. In making these
judgments, consider how far-reaching is the impact and of
what importance to the institution and/or the higher
education systems is the work product, service or
assignment. Decisions regarding the impact of actions
should take into account institutional scope and size as
reflected by operating budget, student enrollment and
institutional classification. Also, consideration should
be given for the possibility that a unit, program or
department within a large institution may be equivalent
in size to multiple units, programs or departments within
a smaller institution. In making these interpretations,
assume that the incumbent would have normal knowledge,
experience and judgment, and that errors are not due to
sabotage, mischief or lack of reasonable attention and
Scope and Effect is divided into two parts, Impact of Actions
(Impact) and Nature of Action (Nature). Mr. Wise challenged his
rating in both parts. The JEC assigned his position a level 3
rating in Impact, which is defined as:
Work affects the operations of more than one school or
division of a specialized school, branch campus,
community college or baccalaureate-level institution with
an operating budget of <$13M; a school or division of a
graduate or baccalaureate-level institution with an
operating budget of $13-$18M; several departments within
a graduate or baccalaureate-level institution with an
operating budget of $19-$25M; a major department within
a graduate-level institution with an operating budget of
more than $50M; or a moderate-size department within a
doctoral-level institution with an operating budget of
more than $200M.
Mr. Wise argues that he should be assigned level 7 in Impact,which is defined as:
Work affects the entire operations of a graduate-level
institution with an operating budget of more than $50M;
or more than one school or division of a doctoral-level
institution with an operating budget of more than $200M.
In support of his assertion, Mr. Wise points out that his work
affects "more than one school" in delivering instruction by
establishing the distance learning calendar and schedule, and
argues that this meets the second part of the level 7 definition.
If he makes an error, it could result in the costs associated with
satellite transmission ($800/class) and also the interruption in
instruction of many students (generally 50-150 per class). Mr.
Wise testified that he generally catches his own mistakes, through
the cross-checks built into the scheduling process. Mr. Wise
argued that his rating in this factor should not be determined by
the size of WVSC, as he and EdNet could have as easily been part of
a graduate level institution. He argued that he should get a
rating at the same level as the EdNet Director.
In response, Ms. Hank stated that the JEC analyzed Mr. Wise's
position, not EdNet. While Mr. Wise's work affects EdNet, it is
EdNet which affects multiple institutions, she opined. She pointed
out that the number of televised classes is much smaller than the
total number of classes taught throughout higher education, and
that higher education instruction would continue even if EdNet
ceased operations entirely. She admitted that the size of WVSC's
budget was a determinative factor in the JEC's analysis. She
further stated that the EdNet Director received a higher level
rating because she is accountable, and has decision-making and longrange planning responsibility for the EdNet department. Testimony
indicated the EdNet Director was assigned level 6 in this part of
(See footnote 4)
although the PIQ Summary lists level 7. See Jt. Ex.
F. Ms. Hank also opined that Mr. Wise provides guidance to a
function or service affecting many students or employees in more
than one school or division.
Mr. Wise's initial proposition, that because his work impacts
"more than one" institution he meets the "second part" of the level
7 definition, is wrong. The other definitions in Impact show that
the phrase "more than one school" is part of a larger phrase.
Specifically, in the level 7 definition, the applicable notion is
that the work affects more than one part of a doctoral-level
institution, which the definition terms "school or division."
The two main purposes of this position's work are to develop
the distance learning schedule, and to oversee general operations
of EdNet in terms of staffing and equipment. Clearly, these
activities have some impact on many institutions throughout the
higher education system, both directly (through scheduling of
instructional programming) and indirectly (through oversight of
EdNet's work production). It is reasonable that the Director would
get a higher level rating in Impact, as the Director has complete
control of EdNet. However, Mr. Wise's position is responsible forensuring that classes are scheduled and aired, which appears to be
the activity which most affects higher education and other
institutions. It is difficult to understand why the EdNet
Director's position was assigned a rating several levels above that
of Mr. Wise's position in Scope and Effect/Impact, in terms of
relative affect on other institutions. Moreover, it does not seem
that the definitions account for the situation involved here, where
EdNet is part of one institution, but clearly impacts more than one
institution statewide. Clearly, EdNet is not part of WVSC in the
same way as an academic department or physical plant.
Neither Grievant nor Respondent provided any evidence
regarding the budget, enrollment, or classification of WVSC. These
facts supply the objective basis for evaluating Impact. Thus, no
determination can be made as to the highest level of Impact
available for employees at WVSC. Without budget information it is
also impossible to analyze the Director's rating at all. The JEC's
decisions regarding Scope and Effect/Impact appear arbitrary and
capricious when comparing ratings of the Director's position and
that of Mr. Wise. However, the evidence provided is insufficient
to prove which position was misclassified on this point, or which
level definition is the best fit for Mr. Wise's position.
Therefore, because Mr. Wise bears the burden of proof in this
grievance, the undersigned must conclude that he has failed to
carry his burden of proving the rating to which his position is
entitled. As any assignment of a rating on this record would also
be arbitrary and capricious, no change in rating is permitted. In the part of this factor designated Nature, Mr. Wise's
position was assigned a level 3 rating, which is defined as:
Work provides guidance to an operation, program, function
or service that affects many employees, students or
individuals. Decisions and recommendations made involve
non-routine situations within established protocol,
guidelines, and/or policies. Errors could easily result
in moderate costs and inconveniences within the affected
Mr. Wise seeks assignment of level 4, which is defined as:
Work contributes to or ensures the effectiveness of
operations or services having significant impact within
the institution and involves application of policies and
practices to complex or important matters. Errors could
easily result in substantial costs, inconveniences, and
disruption of services within the affected area.
Mr. Wise states that errors in his scheduling can result in
substantial costs, inconveniences and disruption of services to
students and institutions. As many as 900 students at 300
locations can be affected by satellite distance learning classes
which Mr. Wise schedules and has EdNet produce. Again, Ms. Hank
noted the proportion of classes aired through EdNet compared with
all higher education classes, and stated that an error would affect
only one class for one night.
The costs, inconveniences and disruption of services which
might result from an error in this position's work could be
characterized as either "moderate" or "substantial" depending on
one's point of reference. Similarly, while Ms. Hank characterized
Mr. Wise's position as one which provides guidance to EdNet, his
position may also be characterized as one which ensures the
effectiveness of operations or services, as he clearly manages
other professional positions, such as engineers, who produce theprograms and support other services provided by EdNet. These
services have significant impact, in that they affect many
institutions as well as many students. Mr. Wise's job involves
complex scheduling, at a minimum. He applies standard practices
and policies to his scheduling tasks, as previously noted. His
decision to extend EdNet's contract with a satellite provider,
rather than obtain a new contract with a new provider, may be an
example of applying policies and practices to complex or important
matters. However, his work might also be characterized as
involving decisions and recommendations made in non-routine
situations within established protocol, guidelines, and/or
policies. Clearly, the definition involves subjective value
judgments about the characterization of one's tasks and duties.
Ms. Hank's written direct testimony explains the JEC
interpretation of the definitions. It declares that in the Nature
part of this factor, level 3 is the beginning of professional level
work, level 4 begins the management levels of work, and level 5 is
for directors and high level administrators. R. Ex. 1. Mr. Wise's
position is obviously a management level position, as he oversees
the production operations at EdNet and supervises at least six
subordinates. Ms. Hank's written direct testimony thus shows that
Mr. Wise is entitled to a level 4 rating in this part of Scope and
Where the JEC was clearly wrong, or arbitrary and capricious
in its assignment of point factor ratings, the correct rating can
be assigned in the grievance proceeding. See Jones v. Bd. ofTrustees
, Docket No. 94-MBOT-978 (Feb 29, 1996). The JEC was
clearly wrong according to its own interpretation of the
definitions, and Mr. Wise is entitled to assignment of a level 4
rating in Scope and Effect/Nature. This assignment results in an
increase of 30 points for his position.
C. BREADTH OF RESPONSIBILITY:
The Plan defines this factor as:
This factor describes the variety of specific functional
areas in which the job may have formal and ongoing
accountability. In reviewing this factor, consider the
level of in-depth knowledge required as measured by the
incumbent's ability to answer detailed and complex
questions relative to policies, procedures, laws and
regulations. [Examples of some functional areas within
the following divisions would include: (1) Student
Services--Housing, Admissions, Financial Aid, Counseling;
(2) Business and Finance--Purchasing, Auditing, Grants
and Contracts, Bursar.]
Mr. Wise was assigned level 1, which is defined in the Plan as
"[a]ccountable for only immediate work assignments but not for a
functional area." He seeks assignment of level 5, which is defined
as "[i]n-depth knowledge of and accountability for four or more
functional areas as measured by the incumbent's ability to answer
detailed and complex questions relative to policies, procedures,
laws and regulations."
It is well established that this factor only gives credit to
those who have formal financial accountability for an area. See
, Riggs v. Bd. of Trustees
, Docket No. 94-MBOT-711 (Apr. 29,
1996); and Mitchell v. Bd. of Directors
, Docket No. 94-MBOD-348
(May 21, 1996). Mr. Wise admitted that he had no formal financialaccountability, even though his activities impact funding for EdNet
and for other institutions and agencies. Consequently, Mr. Wise is
correctly rated in this factor.
D. INTRASYSTEMS CONTACTS/NATURE OF CONTACTS AND LEVEL OF CONTACTS:
The Plan defines this factor as one which:
appraises the responsibility for working with or through
other people within the [State College and University
Systems of West Virginia] SCUSWV to get results.
Consider the purpose and level of contact encountered on
a regular, recurring and essential basis during
operations. Consider whether the contacts involve
furnishing or obtaining information, explaining policies
or discussing controversial issues. This factor
considers only those contacts outside the job's immediate
This factor is analyzed in two parts, Nature of Contact
(Nature) and Level of Regular, Recurring and Essential Contact
(Level). Mr. Wise challenged his rating in both parts of
His position was assigned level 2 in Nature, which is defined
as [m]oderate tact and cooperation required; communication is
largely of a non-controversial nature and handled in accordance
with standard practices and procedures (e.g., explaining simple
policies and procedures, coordinating/scheduling complex meeting or
conference arrangements.) He seeks assignment of level 4 in
Nature, which is defined as [d]iplomatic/negotiative interactions
on complex and important issues; tact, diplomacy and persuasion
usually required (e.g., problem-solving discussions about key
issues which have substantial impact on the organization.)
Mr. Wise stated that he has negotiating interactions anddiplomacy is required in discussing time slots for airing classes.
The faculty get angry when they cannot have the time they request.
He also testified that he must make both written and oral
presentations to the Central Office staff when requesting more
funding, and that the committees on which he serves discuss and
make plans for system-wide distance learning. As examples, the
committees discuss common budgets, information to submit to the
Legislature, and telecommuting policies.
Ms. Hank stated that Mr. Wise deals with complex scheduling
issues, and merely explains procedures and provides factual
information. She explained that Mr. Wise may make choices, but he
does not really negotiate, such as one would do in settling a
Ms. Hank's explanation regarding the Nature of Mr. Wise's
contacts is persuasive. It seems clear that most of Mr. Wise's
contacts are informational rather than persuasive. Most contact is
about scheduling. He explains to faculty that everyone wants to
air his/her class from 6 to 8 o'clock p.m., but that only two
classes per night can have that time slot. He may also explain the
criteria considered in arriving at the schedule approved by the
AUG. Similarly, he may explain funding needs to Central Office
staff. He may also seek to persuade them of the necessity of more
funding. However, his position is required to be persuasive only
on rare occasions, if at all. The majority of his intrasystems
contacts meet the level 2 definition in Nature. Mr. Wise has not
shown that the JEC was clearly wrong, arbitrary or capricious innot assigning level 4 in Intrasystems Contacts/Nature.
Under the Level part of Intrasystems Contacts, Mr. Wise's
position was assigned level 3, which is defined as "[s]upervisors,
managers and/or chairpersons, other than own, within an
institution, or coordinators within the Systems' Central Office."
He seeks assignment of level 6, which is defined as "Vice
Presidents or Systems' Central Office Senior Administrator."
In support of his position, Mr. Wise testified that he has
high level contacts through his participation on committees, such
as the AUG. He also pointed to his attendance at Board of
Directors meetings and contacts with Senior Administrators when
requesting more EdNet funding. Mr. Wise did not state how often he
made such funding requests to these persons, however. His PIQ
listed weekly contact with Vice Presidents, Presidents, Academic
Directors, faculty members and Academic Deans. Jt. Ex. A.
Ms. Hank opined that Mr. Wise's participation on various
committees was not essential to performing the daily tasks of his
position. Mr. Wise's daily work would not change if he stopped
attending committee meetings, she said. Finally, she stated that
this factor does not consider the identity of persons who call or
visit the studio by happenstance, but who Mr. Wise contacts as a
regular, recurring and essential part of his job.
While Ms. Hank is undoubtedly correct that this factor is not
correctly utilized to give credit for happenstantial contacts, it
appears that Mr. Wise has recurring and required contact with at
least department heads, faculty and administrators on a regularbasis as a large part of his duties and responsibilities. At least
20%, and perhaps as much as 40%, of his job duties involve
coordinating, consulting and discussing EdNet services with persons
and entities utilizing them. See Mr. Wise's PIQ, Jt. Ex. A. The
evidence as a whole indicates that his participation on committees
is an important part of his responsibility. The AUG is made up
primarily of Deans, Directors, Coordinators and faculty. These are
also the persons who would be directly involved in providing
distance learning classes, even without participation on the AUG.
It is reasonable to conclude that Mr. Wise does have regular,
recurring and essential contacts with Academic Deans and Directors,
in addition to other faculty in order to discuss course offerings,
procedure and programming issues.
(See footnote 5)
These contacts meet the
definition of level 4 in Level, which is "Deans or Directors in an
institution or Assistant Directors in the Systems' Central Office."
Mr. Wise has carried his burden of proving that the JEC was clearly
wrong in assigning level 3, and that his regular, recurring and
essential contacts meet the definition of level 4. By assigning
him level 4 in Level, he is entitled to an increase of 18 points.
E. EXTERNAL CONTACTS/NATURE OF CONTACTS AND LEVEL OF CONTACTS:
This factor is defined as one which appraises the
responsibility for working with or through other people outside
SCUSWV to get results. Consider the purpose and level of contact
encountered on a regular
operations. Consider whether the contacts involve furnishing or
obtaining information, influencing others or negotiation.
Like Intrasystems Contacts, this factor is analyzed in two
parts, Nature and Level. Mr. Wise challenged his rating in both
parts of External Contacts.
In Nature, Mr. Wise's position was assigned level 2, which is
defined as [m]oderate tact and cooperation required; communication
is largely of a non-controversial nature and handled in accordance
with standard practices and procedures (e.g., explaining simple
policies and procedures, coordinating/scheduling complex meeting or
conference arrangements.) Mr. Wise apparently believed he was
entitled to a level 3 rating, which is defined as [s]ubstantial
sensitivity and cooperation required; discussions are frequently
controversial and require some delicacy (e.g., project
interactions, interpretation of policies, resolution of problems.)
Ms. Hank testified that the level 2 rating assigned to Mr.
Wise's position in the Nature part of this factor was appropriate.
She stated that Mr. Wise's position may have "sticky" discussions
occasionally, but that he still just explains policy and procedure.
His job entails complex scheduling, which is clearly covered by thelevel 2 definition. Otherwise, his position's external contacts
consist of factual information exchange.
While Mr. Wise asserted that his contacts included discussion
of policy matters with the Secretary of Education and the Arts
(Secretary), he was not sufficiently definite as to his personal
role in such contacts. From the context of his testimony, it
appeared that he was part of a group which met with the Secretary
to discuss such matters. He may or may not have been a
spokesperson or advocate, as opposed to a source of technical or
logistic information. Moreover, he did not specify the frequency
with which such contacts were made. The contacts which were
identified specifically as occurring on a regular and recurring
basis appeared to consist of information exchange, or communication
of a non-controversial nature, such as scheduling and coordinating
programs. On this record, it cannot be said that the JEC was
clearly wrong in assigning this position a level 2 rating in Nature
of External Contacts.
Mr. Wise's position was assigned level 3 in Level, which is
defined as "[s]tudents, parents, alumni, faculty of institutions
outside the systems, sales engineers, higher-level product
representatives, recruiters and/or prospective students." He seeks
assignment of level 5 in Level, which is defined as
"[s]ubstantially prominent persons (e.g., community leaders,
business and industry leaders) and officials of government
agencies, financial agencies, and other important constituents."
Mr. Wise testified that he is the key contact for stateagencies regarding teleconferences, or provision of other services.
He testified that the manager or director of a state agency will
call him about scheduling and production matters. While he pointed
to members of some committees on which he serves as contacts
outside the higher education system, these persons were not
specifically identified. He identified contacts with persons he
believed to be substantially prominent, such as the Secretary,
state agency directors, and plant managers. Mr. Wise has contacts
with plant managers every two weeks, on average, about scheduling
and producing training programs and teleconferences. When he
contacts the Secretary, it is about distance learning policy and
equipment needs. Sometimes the EdNet Director is also present at
these meetings. Mr. Wise was not clear as to his role in
discussing policy matters, but he clearly provides the benefit of
his technical expertise and his experience in dealing with
logistical concerns and limitations.
He also noted that he talks to television producers outside
the higher education system on a regular basis. He also has
contact with various vendors, and the staff in the State Purchasing
Division. Further, he asserted that his characterization of which
contacts were required was accurate, as he did not include
happenstantial contacts based on who participated in programs
produced at EdNet. For example, he testified that the Governor has
frequently appeared on programs produced at EdNet, but that he did
not include the Governor as a contact identified for credit under
this factor. Ms. Hank stated that the majority of Mr. Wise's contacts are
at level 3 of External Contacts/Level. She testified that the
higher level contacts identified by Mr. Wise were not essential to
performing his work. For instance, she stated that contacts with
plant managers could as effectively be made with the administrative
assistants to those managers in arranging teleconferences. She
also opined that his contacts did not have a policy or problem
resolution purpose, but were about technical production issues such
as the cost of air time. Such contacts are typically made with
staff, rather than higher level persons, she stated. Mr. Wise
admitted that staff persons call him, in addition to the higher
level persons he identified.
While Mr. Wise clearly has contacts with the higher level
persons he identified, Mr. Wise did not submit evidence sufficient
to prove the frequency of his high level contacts, or that the
majority of his external contacts usually were made with higher
level individuals rather than a staff person. As Ms. Hank
observed, and as discussed above, the general nature of the
communications does not mandate high level contacts. His PIQ is
not helpful, as it identifies entities with which he has contact,
but not the individuals within those entities. Moreover, whether
such contacts are essential is doubtful, given that Mr. Wise's
primary duty pertains to meeting higher education system needs. He
is apparently authorized to accommodate the needs of state and
federal agencies and private entities only when such accommodation
does not interfere with services provided to higher education. Thus, his external contacts appear to be primarily supplemental or
secondary to his primary duties in serving the higher education
system. Mr. Wise did not show that the JEC was clearly wrong in
assigning level 3 in Level of External Contacts.
F. DIRECT SUPERVISION EXERCISED/LEVEL OF SUPERVISION:
This factor measures the job's degree of direct
supervision exercised over others in terms of the level
of subordinate jobs in the organization, the nature of
the work performed, and the number supervised. Only the
formal assignment of such responsibility should be
considered; informal work relationships should not be
considered. Supervision of student workers may be taken
into account if they are essential to the daily operation
of the unit. The number of subordinates should be
reported in full-time equivalency (FTE) and not head
The factor is analyzed in two parts, Number of Direct
Subordinates and Level of Supervision (Level). Mr. Wise challenges
only his rating in Level. Mr. Wise's position was assigned level
4, which is defined as:
Direct supervision over a unit of non-exempt employees or
lead responsibility over a group of exempt employees.
Most of the time is spent assigning, reviewing, and
checking work or eliminating normal difficulties
involving standard policies, procedures, or work
practices. Input would be significant in subordinate
employees' performance appraisal, hire or fire decisions.
He seeks assignment of level 7, which is defined as:
Directs and coordinates the work of at least two or more
units performing different functions within the same
department. The work of these units is coordinated
through subordinate managers who exercise full
supervision over each unit. This position reports to the
head of the department.
Mr. Wise testified that EdNet has two distinct functions,
engineering and production. He stated that these constitute twodifferent units within EdNet. However, he stated that he
supervises and makes assignments for all regular employees in both
(See footnote 6)
Moreover, his PIQ shows that he directly supervises all
six regular employees of EdNet. He testified that both he and the
EdNet Director interview and jointly decide to hire personnel, and
that they both sign leave slips. Hiring and firing are done under
the Director's signature.
Ms. Hank explained that tasks do not equate to functions, as
that term is used in the definition. She stated that EdNet does
not have distinct units, but rather individuals with distinct
functions. She also stated that the level 7 definition requires at
least one level of indirect reporting and supervision. In other
words, the only persons who can be assigned to level 7 of Direct
Supervision Exercised/Level are persons who supervise positions
which in turn have formal supervisory responsibility. Ms. Hank
pointed out that there are no subordinate managers who exercise
full supervision over either of the two "units" identified by Mr.
Wise. She further testified that Mr. Wise has input and
recommendation powers, but that the EdNet Director actually makes
hiring and firing decisions.
Ms. Hank's interpretation of the level 7 definition as
requiring intermediate supervisors is not unreasonable, and accords
with the plain meaning of the terms used. As Mr. Wise has no firstline supervisors reporting to him, who formally supervise
subordinate employees, he is ineligible for the level 7 rating.
Mr. Wise has not proven that the JEC was clearly wrong in assigning
his position a level 3 rating in this factor.
Mr. Wise has shown that the JEC was clearly wrong in assigning
rating levels under the factors Scope and Effect, and Intrasystems
Contacts. By assigning him the number of points afforded under
proper assignment of ratings in these factors, he is entitled to an
increase of 48 points, for a total of 2495 points for his position.
This equates to a Pay Grade 18. Although no change in Pay Grade
results, Mr. Wise is the only employee in the position of
Manager/Operator of EdNet, and therefore a change in the data line
for this position is warranted.
CONCLUSIONS OF LAW
1. The governing boards are required by W. Va. Code
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 § 4.19.
3. Determinations of the Job Evaluation Committee("JEC")
regarding application of the Mercer Plan's point factor methodology
are essentially questions of fact. In that regard, the JEC'sinterpretation and explanation of the point factors and PIQs at
issue will be given great weight unless clearly erroneous. Burke
v. Bd. of Directors
, Docket No. 94-MBOD-349 (Aug. 8, 1995). See
, Tennant v. Marion Health Care Found.
, 194 W.Va. 97, 459
S.E.2d 374 (1995).
4. Subjective determinations of the JEC regarding application
of the Plan's point factor methodology to an employee or group of
employees are entitled to deference when being reviewed by this
Grievance Board. Such determinations may nonetheless be found to
be arbitrary and capricious if not supported by a rational basis,
or to be clearly wrong if there is no substantial evidence in the
record supporting the finding or if review of the evidence makes it
clear that a mistake has been made. Burke
. See Frymier-
Halloran v. Paige
, 193 W.Va. 687, 458 S.E.2d 780 (1995); Bd. of
Educ. v. Wirt
, 192 W. Va. 568, 453 S.E.2d 402 (1994); Kyle v. W.
Va. State Bd. of Rehab.
, Docket No. VR-88-006 (Mar. 28, 1989).
5. "Where the JEC's decisions are not supported by
substantial evidence of record or are based upon an apparent
mistake of fact, Grievants may be assigned the correct rating level
in accordance with the Mercer plan. Jessen v. Bd. Of Trustees
Docket No. 94-MBOT-1059 (Oct. 26, 1995). See Bd. Of Educ. V. Wirt
192 W. Va. 568, 453 S.E.2d 402 (1994). Jones v. Bd. of Trustees
Docket No. 94-MBOT-978 (Feb 29, 1996).
6. The JEC's assignment of degree levels to the point
factors Complexity and Problem Solving, Scope and Effect/Impact,
Breadth of Responsibility, Intrasystems Contacts/Nature, ExternalContacts and Direct Supervision Exercised for Grievant's position
is not clearly wrong.
7. The JEC was clearly wrong, arbitrary or capricious in
assigning Grievant's rating under the factor Scope and
Effect/Nature, and Intrasystems Contacts/Level. Assigning the
correct number of points under these factors results in an increase
of 48 points, or a total of 2495 points for this job title.
Accordingly, this Grievance is GRANTED IN PART AND DENIED
IN PART. The Respondent Board of Directors is hereby ORDERED to
change the data line for Grievant's job title, as he is the only
Manager/Operator of EdNet. As Grievant is properly allocated to
Pay Grade 18, his request to be allocated to Pay Grade 21 is
Any party may appeal this decision to the Circuit Court of
Kanawha County. 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 appropri
JENNIFER J. MEEKS
Administrative Law Judge
Dated: January 30, 1997