ROGER P. STRICKLEN,

                  Grievant,

      v.

DOCKET NO. 00-20-339

KANAWHA COUNTY BOARD OF EDUCATION,

                  Respondent.

D E C I S I O N

      Grievant, Roger P. Stricklen, filed this grievance against his employer, the Kanawha County Board of Education (“Board”) on July 3, 2000:


The grievance was denied at the lower levels of the grievance process, and appealed to level four on October 27, 2000. The parties agreed the grievance could be submitted on the record developed at the lower levels, and this case became mature for decision on November 13, 2000, the deadline for the parties' submission of proposed findings of fact and conclusions of law. Grievant was represented by Frank Kemplin, Esq., United School Service Employees Association of West Virginia, and the Board was represented by James W. Withrow, Esq.
SUMMARY OF EVIDENCE

LII Evaluator's Exhibits

Ex. 1 -


LII Board Exhibits

Ex. 1 -

Ex. 2 -
Testimony

      Grievant testified in his own behalf. The Board presented the testimony of Karen Williams.

FINDINGS OF FACT

      I find, by a preponderance of the evidence, the following facts.
      1.      Grievant is employed by the Board as a regular, full-time custodian at Elkview Middle School. He has been employed as a full-time custodian for 11 years.
      2.      During the 1998-99 school year, Grievant applied for a posted position as a painter. The regular painter was absent due to illness and the job was posted pursuant to W. Va. Code § 18A-4-15(2).   (See footnote 1)  Grievant was the most senior regularly employed applicant and, after passing the competency test, was selected to fill the position from February 11 through April 28, 1999, after which time he returned to his custodian position.
      3.      In November of 1999, Grievant was called by Ronald Thomas, the supervisor of the paint crew, and asked to work for a regular painter, Jimmy Mize, who was trainingfor another job. The position was not a “pursuant” position. However, later in the school year, that position was posted as a vacancy.
      4.      Grievant applied for the position when it was posted as a vacancy, but it was awarded to a more senior qualified regular employee, Phyllis Morris. LII Board Ex. 1. Grievant did not contest the filling of that position.
      5.      Another vacancy arose while Grievant was working in the position described above. Another painter, Richard Snodgrass, transferred to a carpenter position, and Grievant applied for the second vacancy.
      6.      The second painter position was awarded to Freddie J. Boyd, a regular qualified employee with 22 years of seniority. Mr. Boyd had passed a competency test approximately 20 years ago and had worked as a painter in the summers.

DISCUSSION

      In non-disciplinary grievances, grievants have the burden of proving each element of their 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 argues he should have received the painter position awarded to Freddie J. Boyd, because he, Grievant, was working in the painter classification at the time of the selection. Grievant further contends that since Mr. Boyd did not take the painter competency test developed pursuant to W. Va. Code § 18A-4-8e, he was not “qualified” as a painter.      The Board argues that, since Grievant was not filling in as a painter pursuant to a long-term substitute position posted and filled according to W. Va. Code §§ 18A-4-15(2) and 18A-4-8b, he was not considered a regularly employed painter for purposes of filling the subject vacancy. Further, the Board argues that Mr. Boyd achieved his qualifications as a painter utilizing a test given long before the enactment of W. Va. Code § 18A-4-8e, and it did not act unlawfully or arbitrarily in determining it would recognize Mr. Boyd as a qualified painter on that basis. I agree with the Board.
      County boards of education are authorized to hire substitute service employees pursuant to W. Va. Code § 18A-4-15. Further, this statutory provision details specifically when these substitutes may be assigned to fill-in for absent, regular, service employees. In order for a substitute to gain entitlement to the rights, privileges and benefits of a regular employment position, consistent with the mandates of W. Va. Code § 18A-4-15(2), the substitute must be hired by competitive bid, according to W. Va. Code § 18A-4-8b, for the remainder of the regular employee's leave of absence lasting over twenty-five days. E.g. Bays v. Putnam County Bd. of Educ., Docket No. 95-40-096 (July 21, 1995).
      Pursuant to the clear and unambiguous language of W. Va. Code § 18A-4-15(2), Grievant did not legally obtain the status of a regular employee in the position in question. Therefore, he was not entitled to the rights, privileges and benefits of that positions. See Bays, supra. As Grievant did not acquire the painter position in accordance with W. Va. Code § 18A-4-15(2), he was not considered a regular employee for purposes of filling the painter position.      With regard to Mr. Boyd's qualifications, the Board determined it would recognize qualifications received pursuant to competency testing which occurred prior to the enactment of W. Va. Code § 18A-4-8e.   (See footnote 2)  Mr. Boyd took a painter competency test approximately twenty years ago, long before Section 18A-4-8e was enacted   (See footnote 3)  , and the Board did not err or act in an arbitrary or capricious manner in determining it would recognize Mr. Boyd's qualifications as a painter, and employ him over Grievant as the most senior regular employee applicant.

      1.      Grievants have the burden of proving each element of their 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.
      2.      In order for a substitute to gain entitlement to the rights, privileges and benefits of a regular employment position, consistent with the mandates of W. Va. Code § 18A-4-15(2), the substitute must be hired by competitive bid, according to W. Va. Code § 18A-4-8b, for the remainder of the regular employee's leave of absence lasting overtwenty-five days.  Bays v. Putnam County Bd. of Educ., Docket No. 95-40-096 (July 21, 1995).
      3.      Grievant did not obtain the November, 1999 substitute position pursuant to W. Va. Code §18A-4-15(2), and therefore, did not acquire regular employment status as a painter while filling that substitute position.
      4.      It is not arbitrary or capricious, or unlawful, for the Board to recognize an employee's qualifications for a position achieved by passing a competency test that predated the enactment of W. Va. Code § 18A-4-8e.
      5.      Grievant has failed to prove by a preponderance of the evidence that the Board violated or misinterpreted any statute, law, rule, or regulation when it did not select him as the most senior qualified applicant for the painter position.

      Accordingly, this grievance is DENIED.

      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.

                                           __________________________________
                                                 MARY JO SWARTZ
                                                 Administrative Law Judge

Dated: December 28, 2000


Footnote: 1
      The Board refers to positions filled pursuant to W. Va. Code 18A-4-15(2) as “pursuant” positions.
Footnote: 2
      W. Va. Code § 18A-4-8e (2000) provides that “[t]he state board of education shall develop and cause to be made available competency tests for all of the classification titles defined in . . . § 18A-4-8. . . and listed in . . . § 18a-4-8a. . . for service personnel.
Footnote: 3
      W. Va. Code § 18A-4-8e was enacted in 1990.