PATTI PAUGH,

                  Grievant,

      v.

DOCKET NO. 00-06-254

CABELL COUNTY BOARD OF EDUCATION,

                  Respondent.

D E C I S I O N

      Grievant, Patti Paugh, filed this grievance against her employer, the Cabell County Board of Education (“Board”) on or about May 4, 2000, alleging:


The grievance was waived at level one, and a level two hearing was held on June 26, 2000. The grievance was denied Linda Curtis, Superintendent's Designee, by decision dated July 24, 2000, and Grievant timely appealed to level four. A level four hearing was held on September 21, 2000, at which time this case became mature for decision. Grievant was represented by Susan E. Hubbard, West Virginia Education Association, and the Board was represented by Howard E. Seufer, Jr., Esq., Bowles, Rice, McDavid, Gaff & Love.
SUMMARY OF EVIDENCE

L.I. Joint Exhibits
Ex. 1 - Ex. 2 - Ex. 3 -
Testimony

      Grievant testified in her own behalf, and presented the testimony of Sandra Rupert and Regina Atkins.

FINDINGS OF FACT

      I find, by a preponderance of the evidence, the following facts, which have been derived from the entire record of this proceeding.
      1.      Grievant is a transportation bus aide employed by the Board to serve the needs of its special education students.
      2.      Prior to the 1999-2000 school year, the transportation aides would meet shortly before school started in the Fall, and decide upon assignments. They did this because of the continuous changes in the Individual Education Plan (IEP's) of the students they served. Assignments were made based upon seniority.
      3.      In the Spring of 2000, the Board eliminated a number of professional and service employee positions as part of a reduction in force.
      4.      As part of the reductions, school officials decided to reduce the number of special education bus runs from 15 to 14. Because each special education bus is staffed by a bus operator and an aide, the elimination of one special education bus run would eliminate two service personnel positions. The remaining special education runs wouldthen be adjusted, as necessary, to meet the needs of the Board's special education students in the 2000-2001 school year. Based upon past experience, the Board expected the route adjustment to be minimal.
      5.      It was not difficult for the Board to decide which bus operator position would be reduced. Shortly before it came time to send transfer and RIF termination letters to employees in early 2000, one of the special education bus operators, Dale Barnett, successfully bid upon a posted job as bus operator for a regular bus run. Rather than post Mr. Barnett's vacated special education bus run as a permanent position, the Board posted it as a temporary position, to expire at the end of the 1999-2000 school year. It was understood that when that assignment expired at the end of the school year, it would not be posted or re-filled. Instead, it would be eliminated, thereby reducing the number of special education bus operators from 15 to 14.
      6.      In then deciding which of the transportation aide positions to eliminate, school officials decided that, because Dale Barnett's position as bus operator would not exist in the 2000-2001 school year, it made sense to eliminate the position of the transportation aide assigned to the bus run which Mr. Barnett drove in 1999-2000. This would completely accomplish the goal of eliminating one special education bus run and the associated bus operator and transportation aide for 2000-2001.
      7.      During the 1999-2000 school year, Grievant held the assignment of transportation aide on Dale Barnett's run. To eliminate her position, the Board placed Grievant's name on the list of employees to be considered for transfer and subsequent assignment for the 2000-2001 school year. As required by W. Va. Code § 18A-4-8b toprotect Grievant's seniority rights, the Board also terminated the employment of the least senior transportation aide, Wendy Inch, who was assigned to the bus operated by Paul Atkins. The Board placed Ms. Inch's name on the preferred recall list with the understanding that her former position on Mr. Atkins' bus would be posted. Grievant would be free to bid on that vacancy.
      8.      Grievant received her notice of transfer due to decline in student enrollment and/or realignment of staff in a letter from the Superintendent dated March 15, 2000.
ARGUMENTS

      Grievant contends she should not have been put on transfer for the 2000-2001 school year. She also contends the Board should not have posted the transportation aide position vacated by Wendy Inch on Paul Atkins' bus. Instead, Grievant maintains that, as in the past three or four years, all of the Board's transportation aides (except the RIF'd Wendy Inch) should meet before school starts and, in order of their seniority, choose from among the 14 remaining runs those to which they wish to be assigned for the 2000-2001 school year. Grievant contends this would be the fairest way to divide up the aide assignments and claims that the practice is supported by this Grievance Board's decision in Raines v. Lincoln County Bd. of Educ., Docket No. 96-22-013 (June 28, 1996). Grievant acknowledges that an aide's compensation can depend upon the route she is assigned to, since all of the special education transportation aides, after their morning runs and before their afternoon runs, also serve as classroom aides. Depending upon the bus run and classroom to which they are assigned, aides must work either a half day or a full day in theclassroom. As a result, the aides with the most time-consuming assignments earn overtime pay.
      The Board replies that, by posting the transportation aide position on Paul Atkins' run previously held by Wendy Inch, it is following the requirements of W. Va. Code § 18A- 4-8b. Further, it argues that the Grievance Board decision upon which Grievant relies, Raines v. Lincoln County Bd. of Educ., Docket No. 96-22-013 (June 28, 1996), is distinguishable from the instant case and does not require the Board to forego posting Ms. Inch's transportation aide position. I agree that Grievant's reliance on Raines is misplaced. In Raines, the county board reconfigured its bus routes for the coming year. To staff the reconfigured runs, it placed all bus operators and bus aides on transfer. The county board then allowed the bus operators and aides, on the basis of seniority, to choose their assignments. In excusing the county board's failure to post the reconfigured positions, the Grievance Board made it clear that “the number of bus aide positions was the same before and after the transfers and reconfigurations.” (Italics supplied). In contrast, the Board in the instant case would not have the same number of transportation aide positions in 2000- 2001 as it had in 1999-2000. The very purpose of terminating Wendy Inch, placing the Grievant on transfer, and posting the position of transportation aide for Paul Atkins' bus was to reduce the number of transportation aides (and special education bus operators) from 15 to 14.
      In addition, the Board contends that posting vacant positions is fairer to those employees who are not now working as special education transportation aides who may wish to obtain such a position. The Board asserts that, earlier in the 1999-2000 schoolyear, before any of the personnel actions described above had occurred, a new special education bus was placed into service. The new bus took the place of an existing special education bus. At a meeting of all the Board's transportation aides, the aides insisted that the Board post the opportunity to work on the new bus. They were of the opinion that the Board should not merely permit the transportation aide who worked on the replaced bus to serve as the transportation aide on the new bus. Consistent with the aides' demands, the Board posted the opportunity to work as an aide on the new bus. Having reformed its ways and, consistent with the aides' demands, posted the opportunity to work on the new bus, the Board decided to hereafter operate “by the book,” posting all aide vacancies under W. Va. Code § 18A-4-8b.
      Finally, the Board maintains that the last time a new special education bus run was added (when the Board went from 14 to 15 runs), the position of transportation aide for that run was posted.
CONCLUSIONS OF LAW

      1.      As Grievant's transfer does not involve a disciplinary matter, Grievant has the burden of proving the allegations of her complaint by a preponderance of the evidence. West Virginia Education and State Employees Grievance Board Procedural Rule 4.19, 156 C.S.R. 1.
      2.      The West Virginia Supreme Court of Appeals recognized in Lucion v. McDowell County Bd. of Educ., 191 W. Va. 399, 466 S.E.2d 487 (1994), if a board of education decides to reduce the number of jobs for service personnel, it must follow the reduction in force procedures of W. Va. Code § 18A-4-8b which requires, first, that theboard release the least senior employee in the classification to be reduced   (See footnote 1)  and, second, that the resulting vacancy be posted and filled under the requirements of that statute.   (See footnote 2)  That is precisely what the Board did in this case, releasing the least senior aide, Wendy Inch, and posting her transportation aide position on Paul Atkins' bus.
      3.      Once Wendy Inch was terminated as part of the reduction in force, the posting of her former position was also required by the Grievance Board's decision in Lucion v. McDowell County Bd. of Educ., Docket No. 33-88-172 (Mar. 28, 1989)(not the same Lucion case which ultimately reached the Supreme Court of Appeals). In this Lucion, the school board, having terminated a number of service employees as part of a reduction in force, argued that it should not have to post the resulting vacancies because “it is more efficient administratively to simply offer the positions to employees” and “a posting can result in a reshuffling of a greater number of personnel.” In vigorously rejecting the countyboard's position, the Grievance Board recognized that “[t]he opportunity to apply for vacant positions has been held to be a fundamental right of school [service] employees.” In Lucion Conclusion of Law 1, the Grievance Board held that the service personnel posting requirement of W. Va. Code § 18A-4-8b applies to vacancies created in a reduction in force. In Conclusion of Law 2, the Grievance Board found that the board's failure to post all vacancies created by the reduction in force “was a violation of the explicit requirements of W. Va. Code § 18A-4-8b.”
      4.      Accordingly, the Board followed the law, and did not violate the law, in releasing Ms. Inch and posting the resulting vacancy.
      5.      The transfer statute, W. Va. Code §18A-2-7 provides, in pertinent part, that

Notably, Code § 18A-2-7 does not require the Superintendent or the Board to base transfer decisions upon any particular factor. In recognition of this, the courts have held that

Dillon v. Bd. of Educ., 177 W. Va. 145, 351 S.E.2d 58 (1986). School statutes do not require that transfers of school service employees be determined on the basis of seniority. See Eckenrode v. Kanawha County Bd. of Educ., Docket No. 96-20-302 (Jan. 22, 1997).
      6.      It was reasonable, and neither arbitrary nor capricious, of the Board in the instant case to take advantage of Dale Barnett's departure from his special education busoperator's job by eliminating his position for the ensuing school year. Similarly, it was reasonable for the Board to then identify Grievant - the only transportation aide without a bus operator or a bus run for the coming year - as the aide whose position would be eliminated, resulting in the placement of her name on the transfer list.
      7.      The rule of Raines v. Lincoln County Bd. of Educ., Docket No. 96-22-013 (June 28, 1996)(which may have justified the Board in allowing aides to choose their assignments on the basis of seniority in prior years), does not apply here, and it does not invalidate the Board's decision to post Wendy Inch's job.   (See footnote 3) 
      8.      Grievant has failed to meet her burden of establishing the Board violated, misapplied, or misinterpreted any statute, policy, rule, regulation, or written agreement by releasing Wendy Inch and placing Grievant on transfer for the 2000-2001 school year.

      Accordingly, this grievance is DENIED.
      Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of the Cabell 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: October 31, 2000


Footnote: 1
      “If a county board is required to reduce the number of employees within a particular job classification, the employee with the least amount of seniority within that classification or grades of classification shall be properly released and employed in a different grade of that classification if there is a job vacancy: Provided, That if there is no job vacancy for employment within the classification or grades of classification, he or she shall be employed in any other job classification which he or she previously held with the county board if there is a vacancy and shall retain any seniority accrued in the job classification or grade of classification.”
Footnote: 2
      “Boards shall be required to post and date notices of all job vacancies of established existing or newly created positions in conspicuous working places for all school service employees to observe for at least five working days. The notice of the job vacancies shall include the job description, the period of employment, the amount of pay and any benefits and other information that is helpful to the employees to understand the particulars of the job. After the five day minimum posting period all vacancies shall be filled within twenty working days from the posting date notice of any job vacancies of established existing or newly created positions.
Footnote: 3
      Grievant also relied at the level two hearing upon the decision in Mullins v. Logan County Bd. of Educ., Docket No. 94-23-283 (Sept. 25, 1995). Like Raines, Mullins allowed a county board to reconfigure bus routes before the school year began to assign the routes to drivers without posting the revised routes for competitive bid. However, like Raines, the Grievance Board emphasized in Mullins, that
    no positions of employment or jobs, either newly created or vacant, became available to post as a direct result of the Board's reconfiguration of bus routes. . . .The Board had the same number of employment positions after the reconfiguration as it had before, with the only difference being that some employees have been transferred from one job site to another.
That is not the case here, where the aide assignment on Paul Adkins' bus was vacant because the Board, which had 15 transportation aide positions in 1999-2000, took the steps it did in order to reduce the number of positions to 14 for 2000-2001.