SALLY ADAMS
v. Docket No. 91-WCF-480 WEST VIRGINIA WORKERS' COMPENSATION FUND

D E C I S I O N

In September 1991 Administrative Law Judge Robert M. Nunley

granted a grievance brought by Sally Adams, ruling that she had been working out of classification, carrying out the duties of a Section Chief II while classified as a Clerk V. Adams v. W.Va. Workers' Comp. Fund, Docket No. 90-WCF-175 (Sept. 5, 1991). In his conclusions of law he stated that Grievant was entitled to backpay and prejudgment interest and ordered the West Virginia Workers' Compensation Fund (the Fund) to provide Ms. Adams
full back pay and benefits, along with prejudgment interest at

the prevailing rate, less any appropriate offset, covering the period May 1, 1985, through February 11, 1988, for her services as a Section Chief II.
On October 23, 1991, Kelli Talbott, Counsel for the Fund, wrote

C. Ronald Wright, Director of this Grievance Board, asking his assistance in "determining how and/or if it can comply with [the decision's] dictates regarding back pay." Ms. Talbott stated, A review of Ms. Adams' personnel transaction sheet, a copy of which is attached, shows that as a result of a job audit, she was promoted on May 1, 1985, to the classified position of Clerk V, pay grade 9, step 8-A and was given a one-step pay increase to a monthly salary of $l,319.00 pursuant to Civil Service /Division of Personnel policies.
Had Ms. Adams been promoted on May 1, 1985 to the Section Chief II position at issue in this case, she would have been classified at pay grade 12, step 5-A. Her monthly salary at this level would have been $l,319.00, the same as she received upon promotion to the position of Clerk V. Attached you will find West Virginia Civil Service System salary grade schedules for July 1, 1984 and July 1, 1985. These show that the salary for these two positions at the above-referenced pay grade and step are exactly the same from year to year. Consequently, the Workers' Compensation Fund is unable, without further guidance, to ascertain what, if any, back pay Ms. Adams is entitled to. Indeed, Ms. Adams's situation is similar to that of the grievant's in Charlotte Cutlip v. West Virginia Department of Health and Human Resources, Division of Health, Docket No. 90-H-379, Dec. 28, 1990.[] On October 25 Ms. Adams also wrote Mr. Wright, enclosing a copy of an October 9, 1991, memorandum from Willard B. Legg, Assistant Director of the Fund's Office of Personnel Services, in which he had advised her that she was "entitled to back wages in the base amount of two thousand, one hundred seventy-four dollars and sixty-five cents ($2,174.65)"; indicating she was entitled to such back wages; and stating that "Fund policy has always been to grant a one-step increase when a promotion is made." Mr. Wright wrote both correspondents on October 28, 1991,

It is the policy of the Grievance Board and its Administrative Law Judges not to comment or interpret our decisions. This practice is consistent with the manner in which judges respond to questions about [their] opinion[s]. It may be trite but I have to say the opinion must speak for itself.

Accordingly, I cannot give either of you any guidance or advice about the back pay matter. Perhaps it goes without saying, however, that I do hope any dispute that may exist can be resolved expeditiously.
On November 22, 1991, Ms. Adams, by Representative Mary Ann Uzelac, filed the instant complaint with the Grievance Board (Level IV of the grievance procedure), stating,
On Nov. 7, 1991, I received a letter from Commissioner Andy Richardson that I would not receive backpay in spite of a favorable Level IV grievance decision (Docket No. 90-WCF-175). I filed as a Clerk V and deserve a one-step raise for that period stated in the grievance. I want the back pay plus interest.
The undersigned wrote Ms. Uzelac and Ms. Talbott on November 27th,

This claim has been assigned to me for consideration. This morning I spoke to Ms. Uzelac, advising her that I doubt that it is properly a grievance and that, rather, it probably requires an enforcement action outside the jurisdiction of this Grievance Board. I suggested that, rather than pursuing this action, she may wish to withdraw the claim and proceed in another for[u]m. Ms. Uzelac requested that she be provided time to consider the options and to file a memorandum if it is her opinion that it should be processed as a grievance.

I am granting Ms. Uzelac's request, although I note that, should I determine this matter is a grievance, I would be dismissing it anyway, since there would be no basis for it to be heard at Level IV, but would provide the opportunity to file at Level I. Any submission Grievant wishes to make must be served no later than December 13, 1991; if such is served, Respondent is provided until December 27 to reply. The parties responded. Attached to Ms. Uzelac's letter of December 12th was the letter from Commissioner Richardson referred to in the complaint, in which the Commissioner had stated,

I agree that the Workers' Compensation Fund- as well as many other state agencies - often provides a one-step salary increase as a result of a promotion.[] In fact, the one-step increase received as a result of your promotion to Clerk V on May 1, 1985, is the exact amount as you would have received with a one-step increase to Section Chief II instead.

Back pay is granted when an employee is to be made whole for what the employee would have received if classified correctly. Here, the employee has received since May 1, 1985, the exact amount she would have received if promoted instead to the higher classification.
The Commissioner also stated that Mr. Legg's memorandum had been incorrect in stating she was entitled to back pay. Ms. Uzelac's letter argued,
[T]he issue is not compliance with the DECISION [in Ms. Adams' grievance] but rather, the interpretation of the meaning of the DECISION. What we need is a clarification of whether or not the grievant is entitled to a one-step raise for having performed Section Chief II work while classified as a Clerk V. She maintains that she is. We feel the DECISION at least suggests that she is.
Ms. Talbott, in her December 20, 1991, brief on behalf of the Fund, is correct in arguing that Ms. Adams, by her representative, is making the same request that was turned down by Director Wright's letter. The making of the request in the form of a grievance does not change its essential character. As Ms. Uzelac's December 12th letter recognizes, Ms. Adams is still asking for an interpretation of Mr. Nunley's decision. It is well-settled that decisions of grievance evaluators are not grievable acts. Epling v. Boone County Bd. of Educ., Docket No. 89-03-562 (Feb. 28, 1990). Just as an employee cannot attack a decision of an evaluator in a grievance, so can he not ask for an interpretation of such a decision in a grievance. Accordingly, this matter must be DISMISSED. In addition to the findings of fact and conclusions of law contained in the foregoing discussion, the following is appropriate:

Conclusion of Law A request for an interpretation of a decision issued by this Grievance Board is not the proper subject of a grievance. Decisions of grievance evaluators are not grievable acts. See Epling v. Boone County Bd. of Educ., Docket No. 89-03-562 (Feb. 28, 1990); see also Gillman v. Logan County Bd. of Educ., Docket No. 92-23-196 (Nov. 7, 1991); Kennedy v. Univ. of W.Va. Bd. of Trustees, Docket No. 90-BOT-302 (Dec. 27, 1990). This matter is accordingly DISMISSED from the docket of this Grievance Board.

SUNYA ANDERSON ADMINISTRATIVE LAW JUDGE March 2, 1992