v. Docket No. 99-20-291
KANAWHA COUNTY BOARD OF EDUCATION,
Respondent.
This grievance was filed on January 26, 1998, and it was denied at Level II on June
29, 1999.
(See footnote 3)
Grievant appealed to Level III, and KCBOE waived participation by letter dated
July 16, 1999. Grievant appealed to Level IV, and a Level IV hearing was held on October12, 1999. This case became mature for decision on November 22, 1999, after receipt of
the parties' proposed findings of fact and conclusions of law.
(See footnote 4)
The parties agree the duties of the Supervisors of Maintenance were changed in
1997, and at that time all the Supervisors of Maintenance were placed in charge of
inspecting the buildings in a specific geographic area in addition to the duties they had
previously performed.
Grievant makes several arguments. First, Grievant argues he was given new duties
which are outside his Job Description. Second, Grievant notes the assignment of the
duties increased his work load, and he must now work additional hours, and devote less
time to the Supervisor of Maintenance - Painting responsibilities. Third, he alleges a
violation of W. Va. Code § 18A-4-8 as he did not agree to the addition of these duties.
Fourth, Grievant argues the assignment of the duties increased his number of hours
worked, and thus, has decreased his compensation, since as a salaried, supervisory
employee he does not receive overtime.
(See footnote 5)
In essence, Grievant argues another type of
violation of W. Va. Code § 18A-4-8. Grievant maintains that simple principles of fairnessand equity demonstrate Respondent has a responsibility to compensate Grievant for the
additional duties he is now required to perform or to remove these duties.
Respondent agrees Grievant has been assigned additional duties, but notes the
duties Grievant is now asked to perform are and have always been included in his Job
Description. Respondent notes this change was made in order to provide an organized
and more efficient way to maintain the facilities of the school system, and to improve the
communication between school administrators and the Maintenance Department.
Respondent noted that principals were often without the necessary expertise to decide
whether a problem was cosmetic or a safety hazard.
After a detailed review of the record in its entirety, the undersigned Administrative
Law Judge makes the following Findings of Fact.
1. Grievant has been employed by KCBOE for approximately 21 years. He first
served as a painter before becoming a Supervisor of Maintenance - Painting approximately
11 years ago.
(See footnote 6)
Grievant's pay grade is H-3. "H" is the highest pay grade for service
personnel, and Grievant's salary includes an additional county supplement.
2. KCBOE has several individuals employed as Supervisors of Maintenance.
Each of the Supervisors of Maintenance is assigned to oversee a specific craft; such as
painting, carpentry, and plumbing/HVAC. 3. Prior to October 1997, these Supervisors of Maintenance were only assigned
to supervise the craft workers in their area.
4. In October 1997, KCBOE reorganized its Maintenance Department, and
Grievant was assigned to inspect the 19 school buildings in the St. Albans, Nitro, Cross
Lanes area. These inspections are to be done on a quarterly basis, and the Supervisor
of Maintenance is to discuss the maintenance needs of the school with the school
administrator.
(See footnote 7)
The Supervisor of Maintenance assigned to the area makes a report, and
if he sees a hazard or safety issue, he reports this to his supervisor and the Supervisor of
Maintenance in the specific area of concern.
5. Prior to this change, the Supervisors of Maintenance were informed of the
plan and were allowed to comment on it. The comments were generally negative. After
some changes, the plan was put into place.
6. W. Va. Code § 18A-4-8 states "Supervisor of maintenance" means:
skilled personnel not defined as professional personnel or professional
educators as in section one, article one of this chapter. The responsibilities
would include directing the upkeep of buildings and shops, issuing
instructions to subordinates relating to cleaning, repairs and maintenance
of all structures and mechanical and electrical equipment of a board.
7. In the initial section of Grievant's Job Description, the definition for
"SUPERVISOR - PAINTING" closely tracks this language and reads:
skilled personnel not defined as professional personnel or professional
educators as in section one (§18A1-1) (sic), article one of this chapter. Theresponsibilities would include directing the upkeep of buildings and shops,
issuing instructions to subordinates relating to cleaning, repairs and
maintenance of all structures and mechanical and electrical equipment of a
board of education.
8. In this same Job Description, the second section summarizes Grievant's
duties as "[t]o supervise and control the preventive maintenance and regular painting
functions for all facilities of Kanawha County Schools." The rest of this Job Description
discusses and outlines Grievant's duties as they pertain to painting.
9. Under the "Duties" Section of this Job Description, Grievant is also expected
to "[p]erform other related tasks as assigned by supervisor."
10. After the duties were changed and a grievance was filed, a time study was
performed which revealed that since being assigned the additional duties the Supervisors
of Maintenance were working more hours.
11. The Supervisor of Maintenance - Electrical Maintenance, Charles Rucker,
now works at least one hour over an eight hour day, for a minimum of a 45 hour work
week.
12. Mr. Woodrum testified he worked ½ hour over the eight hour period each
day.
(See footnote 8)
( Test., Level II).
13. Grievant stated he was working longer hours, but did not specify how many
hours over a forty hour week he worked.
14. Grievant's supervisees see less of Grievant than they did before, and
although they would rather have Grievant around more, they believe they are usually ableto handle the work as they have been painting a long time.
(See footnote 9)
(Test. of Maggie Conner and
Phillip Baire, Level IV hearing.)
15. Mr. Ben Shue, Grievant's former supervisor, recommended the Supervisors
of Maintenance receive an increase in salary of $2,000.00 a year to compensate them for
the increased number of hours and to correct salary compression problems that allowed
subordinates to be paid more. This recommendation was not accepted by KCBOE.
16. Grievant, along with most of KCBOE's employees, received a two per cent
increase in salary in 1998.
17. The state gave employees a raise of approximately $750.00 in 1999.
Grievant received this increase.
As this grievance does not involve a disciplinary matter, Grievant has the burden
of proving his grievance by a preponderance of the evidence. Procedural Rules of the
W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996); Holly v.
Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997); Hanshaw v. McDowell
County Bd. of Educ., Docket No. 33-88-130 (Aug. 19, 1988). See W. Va. Code § 18-29-6.
Grievant's arguments will be discussed one at a time. Grievant's complaint that the
currently assigned duties are outside his Job Description must fail. Grievant's Job
Description, which tracks W. Va. Code § 18A-4-8, identifies his duties as including"directing the upkeep of buildings and shops, issuing instructions to subordinates relating
to cleaning, repairs and maintenance of all structures and mechanical and electrical
equipment of a board of education." Clearly, the new duties are within the scope of his
statutory Job Description and also Grievant's KCBOE Job Description. See Brown v.
Monongalia County Bd. of Educ., Docket No. 91-30-501 (Oct. 26, 1992). See generally,
Edman v. Marion County Bd. of Educ., Docket No. 24-87-255-2 (Jan. 19, 1988).
Grievant's second argument centers around the decreased time he has for his
supervisees. Given the testimony of two of the supervisees, it would seem this is not a
problem at this time. This appears to be true mainly because many of the painters have
been in their positions for a considerable amount of time.
Grievant's third argument must fail as well; that he did not agree to these additional
duties. His agreement was not necessary as these duties were already included in his
current Job Description. When an employee is hired for a position, he is expected to
perform the duties listed in his Job Description. Consent is not required when the change
in an employees job duties are within his Job Description. Grievant's current, new duties
are included in the opening section of his Job Description.
Grievant's fourth argument is he is now expected to do more work, and this fact
causes him to spend more time on the job. He is frequently required to put in overtime,
and he is not compensated for this additional time. He argues this change has, in
essence, decreased his salary in that he is working more hours for the same amount of
compensation. He maintains this is also a violation of W. Va. Code § 18A-4-8 which
reads:
[n]o service employee, without his or her written consent, may be reclassified
by class title, nor may a service employee, without his or her written consent,
be relegated to any condition of employment which would result in a
reduction of his or her salary, rate of pay, compensation or benefits earned
during the current fiscal year or which would result in a reduction of his or
her salary, rate of pay, compensation or benefits for which he or she would
qualify by continuing in the same job position and classification held during
that fiscal year and subsequent years.
(Emphasis added).
Unfortunately, for Grievant, the frequent expectation for supervisors is that they will
have to work greater than a forty hour week. That is one reason why they receive a salary
and are not able to earn overtime. Grievant does not receive an hourly wage. Supervisors
and professionals are expected to work the amount of time necessary to get the job done.
There, of course, could come a time when the expectations set for Grievant in the amount
of work he is to perform become arbitrary and capricious, or clearly excessive. From the
data on the record, this standard has not yet been met.
(See footnote 10)
Grievant did not specify how
many hours he works. The testimony of two other Supervisors of Maintenance is they work
approximately 2½ to 6 hours greater than a forty hour week. This is not viewed as an
excessive amount for a supervisor.
The above-discussion will be supplemented by the following Conclusions of Law.
Any party may appeal this decision to the Circuit Court of Kanawha 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.
___________________________________
JANIS I. REYNOLDS
Administrative Law Judge
Dated: January 25, 2000