LILLIAN MIDKIFF, et al.,

                  Grievants,

      v.

DOCKET NO. 99-50-484

WAYNE COUNTY BOARD OF EDUCATION,

                  Respondent.

D E C I S I O N

      Grievants are fifty-three teachers from Spring Valley High School (“Spring Valley”), and twenty-nine teachers from Tolsia High School (“Tolsia”).   (See footnote 1)  The Spring Valley teachers filed their grievance against their employer, the Wayne County Board of Education (“Board”) on August 31. 1999, and the Tolsia teachers filed their grievance against the Board on September 13, 1999. The grievances are identical and state as follows:


      The Spring Valley grievance was denied at level one by Spring Valley Principal Barry J. Scragg on September 13, 1999. The Tolsia grievance was denied at level one by Tolsia Principal Tab J. Mathis on September 21, 1999. The grievances were consolidated at level two, and a level two hearing was held on September 24, 1999. The grievance was denied at level two by the Superintendent's designee, James J. Ross, on October 14, 1999. Grievants by-passed level three, and appealed to level four November 15, 1999. The parties agree to submit the grievance on the record developed at level two, and also agreed to a supplemental level two hearing held on January 14, 2000. Thereafter, this matter became mature for decision on February 28, 2000, the deadline for the parties' submission of proposed findings of fact and conclusions of law. Grievants were represented by Susan E. Hubbard, West Virginia Education Association, and the Board was represented by David Lycan, Esq. and Michael E. Ferguson, Director of Federal Programs.
SUMMARY OF EVIDENCE

Grievants' Exhibits

Ex. A -

Ex. B -
Board Exhibits

Ex. A -

Ex. C - Ex. D - Ex. E -
Testimony

      Grievants presented the testimony of Wilt Salmons, Betty Hale, Linda Maynard, Karen Alexander, Joy Chittum, Connie McCagg, Hugh Wright, Cheryl Howerton, Alicia Spears, Phil Alexander, Pam Perdue, Robert Kilgore, and Theresa Stanley.

      The Board presented the testimony of Betty Hale, Gary Adkins, James Hale, and Barry Scragg.

FINDINGS OF FACT

      1.      Grievants are employed full-time by the Board as teachers at Spring Valley High School and Tolsia High School.
      2.      During the 1998-99 school year, most class periods at Spring Valley and Tolsia were 90 minutes in length, and teachers were allowed one 90-minute planning period each day.
      3.      In December 1998, the Board voted that its high schools use a schedule consisting of eight, 45-minute class periods, beginning with the 1999-2000 school year. Most classes at Spring Valley and Tolsia now consist of two, 45-minute periods of instruction; however, some classes consist of only one, 45-minute period. For those classes which consist of two consecutive 45-minute periods of instruction, after the first 45 minutes of class a bell rings and the students are allowed a five minute break, after which they return to the same class with the same teacher, and instruction in the same course is resumed. These students receive one grade for the two 45-minute periods of instruction. After 90 minutes of instruction, the students are excused to go to their next class.      4.      The length of the usual class periods at Spring Valley and Tolsia are 90 minutes.
      5.      Each teacher at Spring Valley and Tolsia is provided a 45-minute planning period each day.
      6.      Each teacher at Spring Valley and Tolsia also is provided a 45-minute duty period immediately preceding or following the planning period. During this time teachers may be called upon to cover a class for teachers who are late or absent. Should teachers have to cover a class, they are only required to cover for the 45-minute time period representing their duty period. Teachers who have not been called to cover during their duty period use that period for planning, which gives them a total of 90 minutes of planning time.
      7.      There are 93 teachers employed at Spring Valley, and during each 45-minute period of time, 7 to 10 teachers have a duty period. When a teacher is absent, coverage is rotated among the teachers on duty. Spring Valley Grievants Karen Alexander, Hugh Wright, Alicia Spears, and Phil Alexander, have been assigned cover duty, and as of the date of the level two hearing, had not yet been called on to cover. The policy regarding calling out substitutes was to change shortly after that hearing, but no additional data was provided by Spring Valley to document how many times those individuals have been called to cover, if at all.   (See footnote 2)        8.      Spring Valley Grievants Betty Hale and Connie McCagg are both librarians and cover for each other during their duty periods.
      9.      Spring Valley Grievant Linda Maynard has after-school duty in the teachers' parking lot. She has a 45-minute duty period during the day as well, and has voluntarily covered a few times, but that is not her assigned duty.
      10.      Spring Valley Grievants Joy Chittum, Cheryl Howerton, and Pam Perdue, have lunch duty every day. They do not have cover duty assigned to them.
      11.      While all of the Grievants did not testify, it appears that all of the Spring Valley and Tolsia Grievants have a 30-minute duty free lunch.
      12.      It is not clear how many total teachers there are at Tolsia, but that school is smaller than Spring Valley. Tolsia Grievant Robert Kilgore has cover duty, and had covered for late or absent teachers approximately 31 times as of the date of the level two hearing. Tolsia Grievant Theresa Stanley also has cover duty, and had to cover approximately 28 times as of the date of the level two hearing.
      13.      By letter dated December 23, 1998, Assistant State Superintendent David Steward provided Wilts Salmons, Wayne County Superintendent of Schools, with the Department of Education's recommendations for correcting the near deficit situation Wayne County had experienced for three years. There were many recommendations. One of the recommendations was to curtail all nonessential expenditures for the remainder of the 1998-99 school year, including the use of substitute teachers, in order to try to prevent adeficit situation at the end of the school year. Other recommendations included reducing the number of professional and service employees, reviewing all contracts over 200 days and reducing extended contracts to the minimum amount necessary, reviewing overtime policies, and exploring school consolidation. The Board has implemented a plan to reduce the number of employees by 30 a year for three years.
      14.      During the 1998-99 school year, the Board exceeded the amount of money reimbursed by the State Department of Education for substitutes by over $200,000.00, and this overage was paid out of the Board's funds. The Board ended 1998-99 with a deficit of about this amount. In addition, the Board is experiencing a shortage of substitute teachers. The Board believes it has reduced the cost of employing substitute teachers with the implementation of the 45-minute planning period and 45-minute duty period, and that was one of the reasons this system was implemented. This system has also provided the flexibility to offer some additional courses and allowed for better supervision of students when they are in the hallways, and those were also reasons this system was implemented.


      Grievants bear the burden of proving the elements of their grievance by a preponderance of the evidence. Tibbs v. Mercer County Bd. of Educ., Docket No. 96-27- 074 (Oct. 31, 1996). Grievants contend that each class period at Spring Valley and Tolsia is actually still 90 minutes in length, arguing that the insertion of a 5 minute break does not convert a 90-minute class into two 45-minute class periods for purposes of determining the length of their planning periods. They believe they are, by law, still entitled to a 90-minute planning period each day.      The Board argued the length of the class periods is now 45 minutes, and Grievants are not entitled to have more than a 45-minute planning period.
      The issues in this grievance have recently been decided by this Grievance Board in Collins v. Wayne County Bd. of Educ., Docket No. 99-50-535 (Feb. 23, 2000), the companion case to this grievance. Collins found that, as the Legislature did not contemplate 90 minute class periods at the time W. Va. Code § 18A-4-14 was enacted, “when a class period at a particular school exceeds the 'usual' length of one hour, an accommodation can be reached between the requirements of the statute and the county board's duty to run an efficient school system,” however, “it is the county board's burden to show that the accommodation is needed.” Tate v. Raleigh County Bd. of Educ., Docket No. 96-41-067 (Aug. 30, 1996). The Administrative Law Judge found in Collins that the Board demonstrated an accommodation was needed due to financial constraints, in order to reduce the cost of substitute teachers, and, for those teachers who do not have lunch duty, a reasonable accommodation was reached which provides them with 90 consecutive minutes of uninterrupted time on most days. The Administrative Law Judge further held that, for those Grievants who have lunch duty every day, they were entitled to 60 uninterrupted minutes for a planning period during the instructional day. In this case, that is also true of those teachers who have shown that they have been required to cover during their duty period a significant period of time, specifically Grievants Betty Hale, Connie McCagg, Robert Kilgore and Theresa Stanley.      This Grievance Board adheres to the doctrine of stare decisis   (See footnote 3)  in adjudicating grievances that come before it. Peters v. Raleigh County Bd. of Educ., Docket No. 95-41- 035 (Mar. 15, 1995); Chafin v. W. Va. Dept. of Health & Human Resources, Docket No. 92- HHR-132 (July 24, 1992), citing Dailey v. Bechtel Corp., 157 W. Va. 1023, 207 S.E.2d 169 (1974). See also Belcher v. W. Va. Dept. of Transp./Div. of Highways, Docket No. 94- DOH-341 (Apr. 27, 1995). This adherence is founded upon a determination that the employees and employers whose relationships are regulated by this agency are best guided in their actions by a system that provides for predictability, while retaining the discretion necessary to effectuate the purposes of the statutes applied. Consistent with this approach, this Grievance Board follows precedents established by the Supreme Court of Appeals of West Virginia as the law of this jurisdiction. Likewise, prior decisions of this Grievance Board are followed unless a reasoned determination is made that the prior decision was clearly in error. No fact or law has been presented in the instant grievance which would persuade the undersigned to depart from the findings and conclusions of the Administrative Law Judge in Collins, supra.
            
CONCLUSIONS OF LAW

      1.      The burden of proof is upon Grievants to prove the elements of their grievance by a preponderance of the evidence. Tibbs v. Mercer County Bd. of Educ., Docket No. 96-27-074 (Oct. 31, 1996).
      2.      W. Va. Code § 18A-4-14 requires that a teacher be provided an uninterrupted planning period within each school instructional day which is the length of the usual class period in the school.
      3.      Grievants have met their burden of proving they are entitled to an uninterrupted 90 minute planning period. Collins v. Wayne County Bd. of Educ., Docket No. 99-50-535 (Feb. 23, 2000). As the Legislature did not contemplate 90 minute class periods at the time W. Va. Code § 18A-4-14 was enacted, “when a class period at a particular school exceeds the 'usual' length of one hour, an accommodation can be reached between the requirements of the statute and the county board's duty to run an efficient school system,” however, “it is the county board's burden to show that the accommodation is needed.” Tate v. Raleigh County Bd. of Educ., Docket No. 96-41-067 (Aug. 30, 1996).
      5.      Grievants may offer evidence to rebut that an accommodation is needed, to demonstrate a need for a planning period of more than 60 minutes.
      6.      The Board has demonstrated an accommodation was needed due to financial constraints, in order to reduce the cost of substitute teachers, and, for those teachers who do not have lunch duty, a reasonable accommodation was reached which provides them with 90 consecutive minutes of uninterrupted time on most days. Collins, supra.      7.       A reasonable accommodation was not reached for those Grievants who have lunch duty every day, and those who have shown they are required to cover during the duty period a significant portion of the time, as they are entitled to 60 uninterrupted minutes for a planning period during the instructional day. Collins, supra.
      8.      “The appropriate remedy for a violation of Code § 18A-4-14 is money damages. See Smith v. Lincoln County Bd. of Educ., Docket No. 89-22-544 (Nov. 14, 1989).” Hardman v. Kanawha County Bd. of Educ., Docket No. 95-20-249 (Oct. 19, 1995). Compare, Taylor v. Kanawha County Bd. of Educ., Docket No. 96-20-406 (Feb. 28, 1997).

      Accordingly, this grievance is DENIED IN PART, AND GRANTED IN PART. The Wayne County Board of Education is ORDERED to make any and all necessary schedule adjustments so that those Grievants who have lunch duty every day during their duty period, and those who cover during their duty period a significant period of time, receive 60 uninterrupted minutes during the instructional day as a planning period. The Wayne County Board of Education is further ORDERED to compensate those Grievants who have lunch duty during their duty period, and those who cover a significant amount of their duty periods, for all days during the 1999-2000 school year on which they were afforded less than a 60 minute period which they could use for planning, based upon their daily rate of pay.
      Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of the Wayne 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: March 16, 2000


Footnote: 1
       This case is a companion case to another grievance filed by Wayne County teachers, Collins v. Wayne County Bd. of Educ., Docket No. 99-50-537 (Feb. 23, 2000). In Collins, the Grievants were represented by Judy Davis. A phone conference was held between Ms. Davis, Ms. Hubbard, Mr. Lycan, and the undersigned to confirm that two separate grievances had been filed, and that Ms. Davis and Ms. Hubbard represented different sets of grievants. A review of the list of grievants' names attached to the grievance forms in the instant grievance reveals the names of grievants who were parties to the Collins grievance. To the extent those individuals' grievances have been decided through Collins, they are not part of, nor affected by, the decision in the instant grievance. As it is impossible for the undersigned to determine which Grievants were represented by which representative, I will leave it to the parties' representatives to make sure their respective clients receive the appropriate decision.
Footnote: 2
       The Board's counsel submitted additional data in his proposed findings of fact and conclusions of law regarding how many and how much teachers had to cover classes from the date of the level two hearing up until February 4, 2000. However, it is not the Grievance Board's practice to allow the admission of additional evidence after the closeof the hearing, and while Grievants offered no objection to the new evidence, it was not considered by the undersigned in deciding this grievance.
Footnote: 3
       Literally, “to stand by things decided.” This is the doctrine that when a court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases, where the facts are substantially the same. Black's Law Dictionary 1577 (Revised 4th Ed. 1968). See W. Va. Dept. of Admin. V. W. Va. Dept. of Health & Human Resources, 451 S.E.2d 768, 771 (W. Va. 1994).