DONALD SMITH, et al.,

                  Grievants,

v.                                                DOCKET NO. 00-PEDTA-074

WEST VIRGINIA PARKWAYS ECONOMIC
DEVELOPMENT & TOURISM AUTHORITY,

                  Respondent.

D E C I S I O N

      This grievance was filed by Grievants Donald Smith, Terry Cook, and Benny McKinney, mechanics at the Ghent maintenance building, against Respondent West Virginia Parkways Economic Development and Tourism Authority (“Parkways”), on or about December 15, 1999. The statement of grievance reads as follows:


Although one of the Grievants complained about the amount of time it takes to get someone to come to Ghent to change the light bulbs which the mechanics cannot reach, very little testimony was offered on this, and there was no indication that this created a hazard; rather, it was an annoyance. The main complaint was the lack of a break room. They stated relief sought is to "make whole and complete."   (See footnote 1) 
      Parkways has agreed to provide a break room for Grievants at the Ghent maintenance building in the room where parts are stored on the first floor. The parts would be moved to the mezzanine on the second floor, although it would be possible to continue to store some parts which are needed most often on the first floor. The maintenance building at Standard is nearly identical to the building at Ghent, and this is what is done there.
      Grievants, however, do not like this plan. They believe it would be dangerous to climb the 17 steps to the mezzanine each time they need a part, especially in the winter when the steps will become wet. Parkways responds that the steps, which are inside, will be coated with a non-skid surface, and a basket has been installed at Standard, like a dumb waiter, so the mechanics can lower the parts to the first floor, rather than carrying them. Parkways does not believe the expense involved in turning the mezzanine into a break room is necessary. Walls, heating and air conditioning ducts, wiring, plumbing, and a fire escape would have to be installed, and the installation of the fire escape involves structural changes.
      This grievance is about where the break room should be, and Grievants' belief that because Parkways has made significant improvements to other facilities, it should spend whatever is necessary at Ghent to install a nice break room for Grievants where they want it; and Ghent is always treated as the ugly stepchild. No evidence was presented to support Grievants' belief that it would be dangerous to have the parts on the second floor. For example, no evidence was presented that state or federal safety standards do not allow this, or that there have been any accidents at Standard.
      The following Findings of Fact are made based upon the record developed at Levels III and IV.
Findings of Fact

      1.      Grievants are employed by the West Virginia Parkways Economic Development and Tourism Authority ("Parkways") at the Ghent maintenance building.
      2.      The Ghent maintenance building was constructed in 1996. It does not have a break room or a lunch room for employees, and has never had one. Although the preliminary design called for a break room, the bids for the construction of the building came in over budget and the design had to be changed in order to come in within the budget. One of the design changes was the elimination of the break room.
      3.      The old maintenance building at Ghent still exists, and is located 300 to 400 feet from the new building. The old building is now used by the road crew. It has a lunch room which Grievants may use if the building is open, but they do not have a key to access the building if it is locked. The building is locked if the road crew employees at Ghent are all out on the road.
      4.      Parkways has agreed to move the parts stored in a room on the first floor of the maintenance building at Ghent to the mezzanine area on the second floor of that building, and make some changes to the parts room to convert it into a break room. There are 17 steps to the mezzanine. A non-skid surface would be added to the steps.
      5.      The design of the maintenance building at Standard is nearly identical to maintenance building at Ghent. The break room in that building is in the same area where parts are now stored at Ghent, and the parts are stored on the mezzanine.
      6.      Some of Parkways' buildings have two break rooms, some have kitchen facilities, and some have running water in the break rooms while others do not. Some Parkways facilities are nicer than the facilities at Ghent.
      7.      It would be much more expensive to convert the mezzanine area at Ghent into a break room than to convert it to parts storage and convert the parts storage room into a break room. In order to convert the mezzanine to a break room, structural changeswould have to be made to add a fire escape; partitions, air conditioning and plumbing would have to be installed; and there would have to be changes in wiring, the ceiling and the flooring.      
Discussion

      Grievants bear the burden of proving their allegations by a preponderance of the evidence. W. Va. Code § 29-6A-6. Mowery v. W. Va. Dep't of Natural Resources, Docket No. 96-DNR-218 (May 30, 1997).
      Grievants allege disparate treatment to support their complaint. W. Va. Code § 29- 6A-2(d) defines discrimination, for purposes of the grievance procedure, as:

      A grievant alleging discrimination must establish a prima facie case by demonstrating:

and,


Steele, et al. v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
      Once a prima facie case has been established, a presumption exists, which the employer may rebut by demonstrating a "legitimate, nondiscriminatory reason" for its action. Grievant may still prevail by establishing that the rationale given by the employer is "mere pretext". Id.
      Grievants have not demonstrated any discrimination here. They have a break room available to them in another building. Although it may not be convenient for them to have to walk to the other building, they have not demonstrated it is detrimental in any way. While they currently do not have a key to the other building, and it is locked when the road crew is gone, there was no evidence presented as to how often they are locked out of the building, or that they could not be provided a key.
      Further, Parkways has agreed to convert the parts room in the building where Grievants work into a break room, and move the parts upstairs. Grievants want the break room upstairs as they do not wish to carry parts up and down the stairs. Parkways does not want to spend the money to convert the mezzanine into a break room. Parkways' proposal mirrors the layout at the Standard facility, and it has worked there.
      Grievants have demonstrated that Parkways has spent more money on some of its facilities than others, and that some facilities have better accommodations for the employees than others. Parkways does not have to spend the same amount of money on each of its facilities, nor does it have to make each of them the same. It is up to those in charge of the budget at Parkways to determine how to spend the funds available each year for building improvements, not Grievants. No doubt, there is never enough money available to do everything which Parkways wants to accomplish in a single year. Projects are proposed and budgeted. Just because one facility is being improved this year does not mean that Parkways has to improve the facility where Grievants work this year also.
      Parkways agrees that Grievants should have a break room in their building. Where that break room goes is up to Parkways. Under the facts presented here, the undersigned has no authority to tell Parkways where to put a break room. While Grievants are concerned about taking parts up and down the stairs, if Parkways meets federal and state safety requirements, that is all that is necessary.
      The following Conclusions of Law support the Decision reached.
Conclusions of Law

      1.      Grievants bear the burden of proving their allegations by a preponderance of the evidence. W. Va. Code § 29-6A-6. Mowery v. W. Va. Dep't of Natural Resources, Docket No. 96-DNR-218 (May 30, 1997).
      2.      A grievant alleging discrimination must establish a prima facie case by demonstrating:

and,


Steele, et al. v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
      3.      Grievants have not demonstrated they have suffered any detriment by not having a break room in their building, nor have they demonstrated that the parts room has to be on the first floor of the building.
      4.      “This Grievance Board does not have the authority to substitute its judgement for the management philosophy of the employer. Skaff v. Pridemore, 200 W. Va. 700, 490 S.E.2d 787 (1997). See Settle v. W. Va. Parkways Economic Dev. and Tourism Auth., Docket No. 00-PEDTA-031 (May 23, 2000); Bennett v. Dep't of Health and Human Resources, Docket No. 99-HHR-517 (Apr. 26, 2000); Terry v. Dep't of Transp./ Div. of Personnel, Docket No. 99-DOH-207 (Mar. 17, 2000).” Farley v. W. Va. Parkways Dev. and Tourism Auth., Docket No. 00-PEDTA-015 (June 22, 2000).

      Accordingly, this grievance is DENIED.

      Any party or the Division of Personnel may appeal this Decision to the circuit court of the county in which the grievance arose, or the Circuit Court of Kanawha County. Any such appeal must be filed within thirty (30) days of receipt of this Decision. W. Va. Code § 29-6A-7 (1998). 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 Grievance Board with the civil action number so that the record can be prepared and transmitted to the circuit court.

                                           ____________________________
                                                      BRENDA L. GOULD
                                                 Administrative Law Judge

Date:      July 28, 2000


Footnote: 1
Grievants' supervisor responded on or about December 17, 1999, that he was without authority to grant the relief sought. Appeal was made to Level II, and the grievance was denied on or about December 23, 1999. Grievants appealed to Level III, where a hearing was held on January 7, 2000. The grievance was denied at Level III on February 14, 2000. Grievants appealed to Level IV on February 23, 2000. A Level IV hearing was held on May 11, 2000, before Administrative Law Judge Lewis G. Brewer. Grievants were represented by Boyd Lilly and Jerry Lilly, and Respondent was represented by A. David Abrams, Esquire. This grievance was reassigned to the undersigned administrative law judge on June 5, 2000, for administrative reasons, and became mature for decision on June 27, 2000, upon receipt of Respondent's post-hearing written argument. Grievants declined to submit written argument.