NORMAN LILLY,

                  Grievant,

v.                                                      Docket No. 00-10-044

FAYETTE COUNTY BOARD OF EDUCATION,

                  Respondent.

DECISION

      This grievance was filed by Grievant Norman Lilly against Respondent Fayette County Board of Education ("FBOE"), on or about September 1, 1999. Grievant alleges a violation of W. Va. Code § 18A-4-8b, stating as follows:
As relief, Grievant sought:
      The following Findings of Fact necessary to the decision reached, are made based upon the evidence presented at Level II.
Findings of Fact

      1.      Grievant has been employed by the Fayette County Board of Education ("FBOE") as a regular bus operator since 1982.
      2.      FBOE maintains a list of bus operators by seniority in each bus center for the purpose of making extra-duty assignments. Extra-duty assignments are offered to the bus operators by seniority. When everyone on the list has been offered an assignment, FBOE goes back to the most senior bus operator and goes down through the list. This system is repeated throughout the school year. At the beginning of each school year FBOE begins at the top of the list, offering the first extra-duty assignment of the new school year to the most senior driver at each bus center. This system has been in place since 1985.
      3.      Grievant is the second most senior bus operator at his assigned bus center. Charles Seay is the most senior bus operator at that bus center. The other drivers assigned to that bus center, in order of seniority on the extra-duty list, are Vincent Yarber, Charles Parrish, Charles Canterbury, Pauletta Ann James, and Wm. Brent Brash.
      4.      Mr. Seay took the last extra-duty assignment at the end of the 1998-99 school year. Had FBOE not started at the top of the list at the beginning of the 1999-2000 school year, Grievant would have been offered the first assignment of the year.
      5.      The first assignment of the 1999-2000 school year was a trip to Summers County High School on Saturday, August 14, 1999, transporting the football team to a scrimmage. This assignment was offered to Mr. Seay and he turned it down. It was thenoffered to Grievant and he accepted it and made the trip.
      6.      It is the policy of FBOE that, if the time of an extra-duty assignment is changed after it has been offered to the next bus operator on the rotation list, and refused by him, and the trip has already been assigned to the next available driver, to pull the trip from the driver who has accepted it. FBOE then starts over, offering the trip again to the person who was next in line initially and had refused the trip. The bus operators in Fayette County did not vote on this policy, and the policy is not in writing.
      7.      After Grievant accepted the trip to Summers County High School, it was determined that a second bus would be needed to make the trip, and the departure time was changed by one-half hour, and the return time was changed by one and a half hours. Because the departure and return times were changed, the trip was offered again to Mr. Seay rather than to the next person on the list after Grievant, and Mr. Seay accepted the trip. Thus, Mr. Seay drove the “first” bus, in accordance with FBOE's policy, and Grievant drove the “second” bus.
      8.      The next extra-duty assignment was a trip to Clay County. This trip was offered to the next person on the list after Grievant, Vincent Yarber, and he accepted it and made the trip. This trip took 11.5 hours.
Discussion

      The burden of proof is upon Grievant to prove the elements of his grievance by a preponderance of the evidence. Conner v. Mingo County Bd. of Educ., Docket No. 95-29- 476 (Mar. 28, 1996). Grievant disagrees with the practice of starting at the top of the extra-duty list each school year, arguing that W. Va. Code § 18A-4-8b does not mentionstarting at the beginning of the list each new school year, but rather refers to a continuing cycle with no breaks between school years. Grievant also does not believe FBOE should have offered the Summers County High School trip to Mr. Seay since he had turned it down when it was offered to him initially, which should have been counted as a refusal, so that he missed his turn in the cycle. Grievant believes if the second bus to Summers County High School had been offered to the drivers below him on the list they would have turned the trip down due to their summer employment in the rafting industry. At that point then, Grievant speculates that Mr. Seay would have been offered the trip to Summers County High School as FBOE returned to the top of the rotation, and then Grievant would have been up next to be offered the trip to Clay County.
      Respondent argued that Grievant has not shown he has suffered any harm, as he made the trip to Summers County High School. It further argued that Grievant failed to demonstrate that W. Va. Code § 18A-4-8b, or any other law, regulation, rule, or policy, precludes it from starting at the beginning of the extra-duty list each new school year.
      W. Va. Code § 18A-4-8b provides with regard to extra-duty assignments:
      This statute does not address whether the cycle continues indefinitely. The Supreme Court of Appeals of West Virginia has addressed the applicable standard when a statute is silent.

Keatley v. Mercer County Bd. of Educ., 200 W. Va. 487, 491-92, 490 S.E.2d 306, 310-11 (1997).
      The statute does not preclude a board of education from beginning the cycle anew at the beginning of a new school year, and it does not seem unreasonable to do so. FBOE has used this procedure for a long time, and Grievant was aware of this. It would seem that the bus operators in the county have had no problem with this procedure, and if they wish to have it changed, it would be more appropriate for them to ask to vote on it as a group, rather than the undersigned changing the policy as the result of a grievance by one bus operator who was unhappy about the results one year, in one situation.
      This statute also does not preclude FBOE from voiding an extra-duty assignment and starting over when the time of the trip changes. This policy also does not seemunreasonable. If the most senior driver refuses the trip because of a schedule conflict, and the trip is later changed so that it does not conflict with his schedule, it seems fair to start the process over on that trip, as the information given to the bus operator upon which the refusal was based was inaccurate.
      Finally, as to Grievant's claim that he should have received the Clay County trip, that is pure speculation. Even if FBOE had not gone back and asked Mr. Seay if he wanted to change his mind about taking the Summers County High School trip, every driver on the extra-duty list below Grievant would have had to refuse that trip in order for Grievant to have been up next for the Clay County trip. Only one of those drivers was called to testify. Mr. Canterbury testified that he could not say whether he could have taken that trip or not without looking at his August calendar. Further, while Grievant testified that all the drivers below him on the list were working for rafting companies during mid-August and would not likely have been available, Mr. Canterbury testified that he had driven a summer bus run for FBOE, and did not mention any rafting employment.
      The following Conclusions of Law support the decision reached.
Conclusions of Law

      1.      Grievant bears the burden of proving the elements of his grievance by a preponderance of the evidence. Conner v. Mingo County Bd. of Educ., Docket No. 95-29- 476 (Mar. 28, 1996).
      2.      W. Va. Code § 18A-4-8b does not preclude a board of education from beginning each school year at the top of the extra-duty list with the most senior bus operator.      3.      W. Va. Code § 18A-4-8b does not preclude a board of education from offering an extra-duty assignment to a bus operator who initially refused it when the assignment changes.
      4.      Grievant did not demonstrate a violation of any statute, regulation, rule or policy.

      Accordingly, this grievance is DENIED.

      Any party may appeal this Decision to the Circuit Court of Kanawha County or to the Circuit Court of Fayette 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 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

Dated:      March 21, 2000


Footnote: 1
The grievance was denied at Level I on September 14, 1999, and Grievant appealed to Level II on that same day. A Level II hearing was held on November 16, 1999, and the grievance was denied at Level II. FBOE waived participation at Level III, and Grievant appealed to Level IV on January 24, 2000. On February 14, 2000, the parties advised that they had agreed to submit this grievance for decision based upon the record developed at Level II. Grievant was represented by John Everett Roush, Esquire, and Respondent was represented by Douglas Kincaid, Personnel Director. This matter was reassigned to the undersigned Administrative Law Judge on March 6, 2000, and it became mature for decision upon receipt of the last of the parties' written arguments on March 9, 2000.