RONALD THOMAS,
            Grievant,

v.                                                       Docket No. 99-20-291

KANAWHA COUNTY BOARD OF EDUCATION,
            Respondent.

D E C I S I O N

      Grievant, Ronald Thomas   (See footnote 1)  , is employed as a Supervisor of Maintenance - Painting, with the Kanawha County Board of Education ("KCBOE"). Grievant contends KCBOE "expanded his job duties from supervisor of a specific craft to complete responsibility for all maintenance activities in a specific area." As relief, Grievant seeks additional compensation or, in the alternative, the removal of the added duties.   (See footnote 2) 
      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) 

Issues and Arguments

      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.
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:

      7.      In the initial section of Grievant's Job Description, the definition for "SUPERVISOR - PAINTING" closely tracks this language and reads:

      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.
Discussion

      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:
(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.

Conclusions of Law

      1.      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.
      2.      The additional duties assigned Grievant are within both the statutory definition of a Supervisor of Maintenance and Grievant's Job Description. See W. Va. Code § 18A-4-8.
      3.      The assignment of additional duties within a supervisor's Job Description without additional compensation does not violate W. Va. Code § 18A-4-8. See Brown v. Monongalia County Bd. of Educ., Docket No. 91-30-501 (Oct. 26, 1992).
      4.      Supervisors are expected, within reason, to work until the job is completed, and supervisors are frequently required to work greater than a forty hour week.
      5.      The fact that a supervisor works greater than forty hours to complete his or her assigned duties does not entitle him to an increase in his salary.
      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.

                                     ___________________________________
                                                 JANIS I. REYNOLDS
                                                 Administrative Law Judge

Dated: January 25, 2000


Footnote: 1
      Originally, there were two Grievants in this case. Mr. Jerry Woodrum, who has since retired, did not choose to appeal to Level III. He hoped that if the grievance was granted, relief would be applied to all of KCBOE's Supervisors of Maintenance equally, even though they had not filed a grievance, or in his case, had decided not to pursue the grievance further. (Woodrum Test. at Level IV.)
Footnote: 2
      Earlier, Grievant had stated he did not want removal of the added duties, but at the Level IV hearing, his attorney stated the requested relief in the alternative.
Footnote: 3
      The reason for the delay was an attempt by the parties to settle the grievance. Additionally, it appears another grievance on this issue had been filed earlier, but had not been pursued.
Footnote: 4
      Grievant was represented by Attorney John Roush from the West Virginia School Service Personnel Association, and Respondent was represented by KCBOE's Attorney James Withrow.
Footnote: 5
      Grievant also noted some non-supervisory maintenance employees make more money than he because they can receive overtime. Although clearly and understandably a concern, this issue was not raised in the Statement of Grievance or in the parties' arguments, and will not be addressed.
Footnote: 6
      When Grievant was originally placed in charge of the painting area, he was classified as a foreman as were the other employees in charge of various craft areas. In approximately 1989, these foremen were reclassified as Supervisors of Maintenance.
Footnote: 7
      Initially, these inspections were to be done on a monthly basis. This frequency was changed to quarterly, as they took up too much of the Supervisors of Maintenance's time. Grievant's supervisor noted at Level III that the frequency of inspections is now approximately three times a year instead of quarterly.
Footnote: 8
      He stated he used to work a greater amount of overtime, but stopped doing this.
Footnote: 9
      There was some confusion in this area, as one witness believed Grievant was busier now because he is also now the Supervisor of Maintenance - Carpentry. The parties did not wish to discuss this issue further at the Level IV hearing. It is noted that the Supervisor of Maintenance - Carpentry, Mr. Woodrum, retired on June 30, 1999, after the time of the change of duties, and after this grievance had been filed.
Footnote: 10
      W. Va. Code § 18-29-5(b)states, "[h]earing examiners may . . . provide relief found fair and equitable in accordance with the provisions of this article, and exercise other powers as provides for the effective resolution of grievances not inconsistent with any rules of the board or the provisions of this article." In this case there is no need to apply this standard. The undersigned Administrative Law Judge does understand Grievant's frustration with having to increase his work load for the same amount of compensation, but in this set of facts and with the duties squarely within Grievant's Job Description, equitable relief is not warranted.