details - Public Grievance Board

First Name	Jeff
Last Name	Sloan
Decision Date	10/31/2019
Docket Number	2018-1474-CONS
ALJ	WBM
Respondent	Division of Highways
Employment Type	STATE
Job Title	Transportation Worker 2, Equipment Operator
Topics	Temporary Upgrade
Primary Issues	Whether Grievant proved by a preponderance of the evidence that Respondent violated its temporary upgrade policy.
Outcome	Granted/Denied
Statutes	W. Va. Code § 6C-2-3(h); W. Va. Code St. R. § 143-1-4.8.d
Related Cases	Matney v. Dep’t of Health & Human Res., Docket No. 2012-1099-DHHR (Nov. 12, 2013); Lamp v. Div. of Juvenile Ser., Docket No 2015-0076-MAPS (Mar. 30, 2017); Powell v. Brown, 160 W. Va. 723, 238 S.E.2d 220 (1977); Bailey v. W. Va. Dep’t. of Transp., Docket No. 94-DOH-389 (Dec. 20, 1994); Adkins v. Div. of Health & Human Res., 2019-0500-DHHR (Oct. 30. 2019)
Keywords	Temporary Upgrade; Welding Jobs; Certification; Minimum Requirement; Retaliation; Reprisal
Intermediate Court of Appeals
Circuit Court
Supreme Court
Synopsis	Grievant that he has been denied temporary upgrades to the TW 4, Welder classification by Respondent assigning worker to welding jobs who are not certified instead of giving those upgrade opportunities to him. Grievant also alleges that Respondent has subjected him to reprisal by failing to assign him welding jobs after he filed a grievance in April 2018. Respondent argues that it is the practice of the agency to occasionally upgrade uncertified workers to perform welding on jobs which do ot present a safety issue with the equipment arising from the weld. Respondent also denies limiting upgrades for Grievant following his grievance filing. Grievant proved that Respondent violated the DOH temporary upgrade policy upgrading uncertified welders to perform welding tasks when a certified welder was available. Grievant did not prove that he was subjected to reprisal following the filing of his grievance.

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