v. Docket No. 00-BOD-048
BOARD OF DIRECTORS/WEST VIRGINIA
NORTHERN COMMUNITY COLLEGE,
Respondent.
If a default occurs, Grievant is presumed to have prevailed, and is entitled to the
relief requested, unless Respondent is able to demonstrate that the remedy requested is
either contrary to law or clearly wrong. W. Va. Code §18-29-3(a). If there was no default,
Grievant may proceed to the next level of the grievance procedure. Respondent contends
no default occurred in this matter, as contemplated under the terms of the statute.
Because Grievant is claiming he prevailed by default under the statute, he bears
the burden of establishing such default by a preponderance of the evidence. Ehle v. Bd.
of Directors, Docket No. 97-BOD-483 (May 14, 1998); Gruen v. Bd. of Directors, Docket
No. 94-BOD-256 (Nov. 30, 1994); Wadbrook v. W. Va. Bd. of Directors, Docket No.
93-BOD-214 (Aug. 31, 1993); Flowers v. W. Va. Bd. of Trustees, Docket No. 92-BOT-340
(Feb. 26, 1993).
W. Va. Code §18-29-4(b) provides the following directions regarding when
Respondent must act at Level II:
Within five days of receiving the decision of the
immediate supervisor, the grievant may appeal the decision to
the chief administrator, and such administrator or his or her
designee shall conduct a hearing in accordance with section
six [§18-29-6] of this article within five days of receiving the
appeal and shall issue a written decision within five days of
such hearing . . . .
The specified time limits in the grievance statute may be extended for a "reasonable
time" by mutual, written agreement of the parties. See W. Va. Code §29-6a-3(g). Waiver
of the strict statutory time lines is a common occurrence within the context of the grievanceprocedure. Huston v. W. Va. Dep't of Tax and Revenue and Div. of Personnel, Docket No.
99-T&R 469D (Feb.29, 2000); Parker v. W. Va. Dep't of Health and Human Resources,
Docket No. 99-HHR-296D (Nov. 30, 1999). This practice benefits both parties by allowing
employers sufficient time to give grievances careful attention and care, rather than
"rushing" to judgment. Jackson v. Hancock County Bd. of Educ., Docket No. 99-15-081D
(May 5, 1999). The West Virginia Supreme Court of Appeals upheld this interpretation in
Martin v. Randolph County Board of Education, 195 W. Va. 297, 465 S.E.2d 399 (1995),
in which a default claim was denied after Grievant had agreed to delay a level two hearing.
Grievant asserts that he agreed to waive the statutory time lines, but only until
January 20, 2000. Respondent argues that the agreement was the decision would be
issued five days after the receipt of the level two transcript. A letter from the
transcriptionist employed by Streski Reporting and Video Service establishes that the
transcript was out on Monday, January 17, 2000. Since January 17, 2000, was a holiday,
Respondent received the transcript on January 18, 2000, would have had until January 25,
2000, to issue the decision, if the agreement had been five days after receipt of the
transcript.
The level two transcript states as follows:
HEARING OFFICER: Okay. That concludes the taking
of evidence and the hearing of arguments in this case. It is
now 2:45 _ 47, on January 3rd, 2000. Now, a written decision
is to be mailed to each of you within 5 workdays. I want to
thank you for your time and your effort, and I also want to ask
if it might be possible to get an extension on that deadline
because I'd like to see the court reporter's transcript, if I may.
. . . Do you have any objection to going beyond five days?
MR. WYCHERLEY: Yes, we have no objection.
MS. WETHERALD: Yes.
HEARING OFFICER: Once again, I thank you for your
time and effort. This hearing is adjourned according to my
watch, it is now 2:50, on January the 4th. Thank you very
much.
Level II Transcript, pp. 63-64.
The transcript does not indicate that any date certain was agreed upon by the
parties. Grievant suggests that the tapes of the hearing would reveal the date to be
January 20, 2000; however, Respondent advised that the tapes remain in the custody of
the court reporters, and there is no evidence that Grievant made any attempt to obtain
them. The undersigned is not inclined to believe the tapes would support Grievant's claim.
The transcript was produced and certified to be accurate by a public court reporting entity,
and appears to be complete. There are no lapses, or indications that the speakers were
inaudible, during the relevant portion of the proceedings. Absent any evidence in support
of his claim, the undersigned must rely upon the level two transcript which establishes an
open-ended agreement to an extention of the time line. See Bowyer v. Bd. of Trustees/
W. Va. Univ., Docket No. 99-BOT-197D (July 13, 1999). Grievant's agreement to allow an
extension of the statutory time line at Level II prohibits any finding that a default occurred
at that level.
Position Elimination
Grievant asserts that Respondent misinterpreted the qualifications for the position
of Press Operator I, and closed the position when he questioned the decision that he wasnot minimally qualified, when he was entitled to the appointment as an internal candidate.
Respondent argues that the position was eliminated for budgetary reasons.
It does not appear that Respondent misinterpreted the position qualifications.
Respondent's posting for the position vacancy for Press Operator I stated the
qualifications to be, [b]usiness, technical, or vocational education of up to 18 months
beyond high school, and one year of experience operating an offset press and related
equipment required. By comparison the State College and University Systems of West
Virginia job description for Press Operator I states:
The knowledge skills, and abilities listed above are typically
acquired through the following levels of education and
experience. However, any equivalent combination of
education and/or experience is acceptable which provides an
applicant the listed knowledge, skills, and abilities and the
capability to perform the essential functions of the job.
Education: Business, technical or vocational education of up
to 18 months beyond high school.
Experience: One year experience operating an offset press
and related equipment.
Grievant indicates that Respondent was requiring at least 18 months of post-high
school education or training, and did not consider his many years of experience. However,
Ms. Wetherald testified that she interpreted the job description to mean that the applicant
must have some post secondary training or education. She further stated that Respondent
was looking for an individual who could set up a billing system, conduct consultations with
faculty members, schedule the work for the College, and assume other duties. In heropinion, some post-high school education would be necessary for the successful applicant
to assume these duties, and that Grievant did not indicate any.
Level II College Exhibits 4 and 6 show that Grievant did not include the eight week
camera and contacting course on his October application, and did not advise Human
Resources of this education until early December, after the posting had closed.
(See footnote 2)
While
Respondent may have elected to allow the amended resume, it chose to consider the
applications as they were submitted during the application period, and that decision cannot
be found improper. Indeed, to allow Grievant yet a third opportunity to amend his
application could reasonably have been viewed as favoritism by the other applicants.
Grievant had been advised in October that he had failed to include his educational
background on his resume. He submitted a revised resume listing only high school. It is
unfortunate if he forgot about the additional training; however, it was relevant, and
important that it be included. Had Ms. Wetherald been made aware of the course during
the application period, she may have determined that he was minimally qualified for the
position.
Grievant is accurate that the position was closed without being filled after he began
questioning Respondent's interpretation of the qualifications; however, the timing of events
does not necessarily prove wrongdoing by Respondent. Ms. Wetherald testified that she
recommended the position be closed after she had received several contacts, directly and
indirectly, inquiring why the position was being posted when a qualified employee
[Grievant] was already in place. By letter dated December 3, 1999, Ms. Wetheraldadvised the search committee members that a fair and impartial search process could not
be completed for the Press Operator I position, based upon reports and communications
from one of the applicants. While this action is somewhat confusing given her previous
determination that Grievant was not minimally qualified and his application would not be
sent to the search committee for consideration, apparently Ms. Wetherald was concerned
that one or more committee members had pre-determined the successful applicant.
In any event, an employer is not required to fill a vacancy, and may eliminate the
position. In this case, the Press Operator I position was never filled, and in April 2000,
Respondent officially eliminated the position. The reason given on the Personnel Action
Form for the elimination of the position was, [d]ollars reallocated for salary adjustments
mandated by SB547. While this is clearly not the outcome desired by Grievant, the
elimination of the position has not been shown to have been improper.
In addition to the foregoing findings of fact and discussion, it is appropriate to make
the following conclusions of law.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of Ohio County. Any 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. However, the appealing party is required by
W. Va. Code §29A-5-4(b) to serve a copy of the appeal petition upon the Grievance Board.
The appealing party must also provide the Board with the civil action number so that the
record can be prepared and properly transmitted to the appropriate circuit court.
Date: July 17, 2000 __________________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE