American Federation of State, County and Mun. Employees v. Civil Service Com'n of West Virginia, 17929

• Decision Date: 28 March 1989
• Docket Number: No. 17929,17929
• Citation: 181 W.Va. 8,380 S.E.2d 43
• Court: West Virginia Supreme Court
• Parties: , 29 Wage & Hour Cas. (BNA) 593 AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, et al. v. CIVIL SERVICE COMMISSION OF WEST VIRGINIA, et al.

Page 43

380 S.E.2d 43

181 W.Va. 8, 29 Wage & Hour Cas. (BNA) 593

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, et al. v. CIVIL SERVICE COMMISSION OF WEST VIRGINIA, et al.

No. 17929.

Supreme Court of Appeals of West Virginia.

March 28, 1989.

Syllabus by the Court

1. To the extent that the Civil Service Commission back pay policy promulgated on July 20, 1988, imposes retroactive deadlines, and thereby deprives otherwise qualified employees of full back pay, it is in direct conflict with AFSCME v. Civil Service Comm'n, 176 W.Va. 73, 341 S.E.2d 693 (1985), and AFSCME v. Civil Service Comm'n, No. 17929 (W.Va. 5/20/88) (per curiam order), and is void.

2. Under W.Va.Code, 29-6A-1, et seq., it is clear that the Legislature intended to place in the Education and State Employees Grievance Board jurisdiction over matters arising from a "misapplication or misinterpretation regarding ... hours, terms and conditions of employment." This terminology is sufficiently broad to cover a grievance for work performed out of classification. Furthermore, W.Va.Code, 29-6A-11, provides that "[t]his article supersedes and replaces the civil service grievance and appeal procedure currently authorized under the rules and regulations of the civil service commission." The clarity of these provisions compels the conclusion that the Civil Service Commission has no jurisdiction to handle misclassification grievances.

3. Where a civil service employee is required by his employer to perform duties that are outside of his civil service classification, such employee, if he wishes to file a grievance, must do so pursuant to W.Va.Code, 29-6A-1, et seq.

James M. Haviland, Webster J. Arceneaux, III, McIntyre Haviland & Jordan, Charleston, for AFSCME.

Robert J. Lamont, Deputy Atty. Gen., Charleston, for CSC.

MILLER, Justice:

This is the fourth time that the American Federation of State, County, and Municipal Employees (AFSCME) has appeared before this Court in essentially the same case. AFSCME represents over one hundred state employees who seek back pay for work performed outside of their civil service classifications. ¹ We concluded in AFSCME v. Civil Serv. Comm'n, 174 W.Va. 221, 324 S.E.2d 363 (1984) (AFSCME I ), that work performed "out of classification" was compensable. In AFSCME v. Civil Serv. Comm'n, 176 W.Va. 73, 341 S.E.2d 693 (1985) (AFSCME II ), we settled the back pay question. In a per curiam order (AFSCME III ) dated May 20, 1988, we directed the Civil Service Commission (CSC) to submit a plan for implementing our prior decisions. AFSCME now challenges the sufficiency of that plan by way of a motion for contempt, contending there has been a contumacious failure to comply.

Three basic questions are presented: (1) whether the plan for back pay determinations submitted by the CSC is consistent with our directives of May 20, 1988, (2) whether the CSC is guilty of contumacious conduct, and (3) whether the jurisdiction of the CSC in "out of classification" cases is superseded by the new state employee grievance procedure contained in W.Va.Code, 29-6A-1, et seq. (1988).

I.

These cases are traceable to the early 1980s, when certain state employees claimed they were required to work out of classification. Most of these employees worked in the Department of Human Services (DHS) and were classified as Economic Service Workers. They claimed that they performed duties associated with a higher classification level. ² In grievances filed with DHS, these employees asserted that they were entitled to be reclassified at the higher level and to receive back pay commensurate with that level.

On July 1, 1984, the CSC approved a new classification plan for all DHS employees, and most of the grievants received promotions. Ultimately, the CSC concluded that the grievants had performed work "out of classification" prior to their promotions, but denied their claims for back pay. Applying the principle of "equal pay for equal work," as set forth W.Va.Code, 29-6-10(2), ³ we held on appeal that the employees were entitled to the difference in compensation between the higher and lower classification levels. AFSCME I, 174 W.Va. at 225, 324 S.E.2d at 367. We remanded the case to allow the CSC to make individual determinations of back pay.

In reliance on W.Va.Code, 29-6-15, ⁴ which requires most grievances to be filed within thirty days, the CSC limited back pay to the equivalent of thirty days pay. The employees immediately petitioned this Court for a writ of mandamus to require full back pay. We concluded that the filing requirements of W.Va.Code, 29-6-15, were inapplicable to "out of classification" cases, and that the employees were entitled to back pay "for the entire period during which they worked out of classification." AFSCME II, 176 W.Va. at 79, 341 S.E.2d at 698-99.

The CSC failed to make timely back pay determinations as required, and the employees again petitioned for relief in mandamus. We issued a supplemental writ by per curiam order in AFSCME III. This writ directed the CSC to fully implement, within thirty days, a grievance procedure to resolve "out of classification" disputes. ⁵ In addition, the CSC was to submit, within sixty days, a plan setting forth how and when it would comply with AFSCME I and AFSCME II.

On July 20, 1988, in an attempt to comply with our supplemental writ, the CSC amended its administrative rules ⁶ applicable to misclassification cases. ⁷ Under the procedures now in effect, the CSC must determine at the threshold whether an employee is, in fact, misclassified. If the employee successfully proves misclassification, he is entitled to back pay. Claims for back pay are to be processed in accordance with a "Back Wage Computation Policy," submitted by the CSC on the same day.

Under this back pay policy, employees are required to formally request back pay within fifteen days of the determination that they worked "out of classification." ⁸ The back pay request must include the date of onset of the misclassification. A response by the employer is to be provided within fifteen days. If the onset date is undisputed, the claim is forwarded to the CSC for audit and payment. If the employer contests the onset date, the employee is required to file a grievance pursuant to W.Va.Code, 29-6A-1, et seq., to resolve the back pay dispute. The outcome of the grievance is subject to CSC review.

AFSCME filed this motion for contempt on October 27, 1988, to challenge the sufficiency of the back pay policy. Rules to show cause were issued against the CSC and the various state employers on November 1, 1988, and made returnable on December 6, 1988.

II.

AFSCME contends in its contempt motion that the back pay policy is unfaithful to the directives set out in our order of May 20, 1988. The policy is objected to for two reasons. First, AFSCME states that it improperly seeks to establish retroactive filing requirements for certain back pay claims. AFSCME also claims that the procedure outlined in the policy is unnecessarily protracted and cumbersome. We shall consider these objections in sequence. ⁹

A.

Two classes of employees who are subject to the back pay policy have already received promotions for work performed "out of classification." These classes include: (1) all employees of DHS who were reclassified on July 1, 1984; and (2) all other employees who were reclassified under the CSC administrative grievance procedure. For each of these classes, the July 20, 1988, back pay policy imposes retroactive filing deadlines for back pay claims. For DHS employees who were reclassified on July 1, 1984, claims for back pay were required to be filed on or before July 1, 1985. Other back pay claims subject to the policy were to be filed within six months of the date of promotion.

AFSCME asserts that the deadlines violate our prior AFSCME cases. We rejected in AFSCME II attempts by the CSC to limit artificially the recovery of back pay by employees who worked "out of classification." There, we announced the rule that all such employees were "entitled to the salary differential ... for the entire period during which they worked out of classification." 176 W.Va. at 80, 341 S.E.2d at 699. (Emphasis added).

We repeated this concern in AFSCME III and stressed that full back pay was recoverable not only for future, but also for past misclassifications.

"[T]he CSC has a mandatory duty to enforce promptly and effectively the 'equal pay for equal work' principle by operating the Grievance and Classification Review Procedure so that all employees are properly classified and receive 'full' back pay or retroactive pay for the period in which they were misclassified." (Emphasis added). 176 W.Va. at 80, 341 S.E.2d at 699.

To the extent that the CSC back pay policy promulgated on July 20, 1988, imposes retroactive deadlines, and thereby deprives otherwise qualified employees of full back pay, it is in direct conflict with AFSCME II and AFSCME III and is void. The principle that runs throughout our AFSCME cases is that employees are entitled to back pay for all periods they were required to work outside of their civil service classifications. The CSC may not by its rules or procedures frustrate this principle of full back pay for those who are entitled to such pay. ¹⁰ B.

AFSCME's second objection to the back pay policy is that its procedures are protracted and cumbersome. What the CSC has done, in effect, is to divide "out of classification" cases into two distinct phases. In the first phase, the sole issue is whether the employee performed work out of his classification. This is determined pursuant to the procedures authorized by the CSC administrative rules summarized above. It consists of four procedural levels and requires approximately 165 days to complete, exclusive of judicial review.

The second phase is de novo in nature. It involves the calculation of the amount of back pay due to the employee, made in accordance with the...