TERRENCE OLSON,

                  Grievant,

v.                                                DOCKET NO. 99-BOT-513

BOARD OF TRUSTEES/
MARSHALL UNIVERSITY,

                  Respondent.

DECISION

      This grievance was filed by Grievant Terrence Olson against the Board of Trustees/Marshall University, Respondent ("Marshall"), on or about October 29, 1999. As relief he seeks "[t]hat the Marshall University Police Dept. use seniority in the shift assignment."   (See footnote 1) 
      The following findings of fact have been properly made from the record developed at Levels II and IV.

Findings of Fact
      1.      Grievant has been employed by Marshall for 16 years. He is currently a Lieutenant, and is one of three supervisors employed by the Office of Public Safety (“OPS”).
      2.      Marshall's OPS is staffed 24 hours a day, 7 days a week, in order to provide around the clock law enforcement and protection services to the Marshall campus. Employees of the OPS work one of three shifts: day shift (8:00 a.m. to 4:00 p.m.), evening shift (4:00 p.m. to midnight), or night shift (midnight to 8:00 a.m.). When fully staffed, 18 employees staff these shifts, with 6 employees assigned to each shift. It has been the practice of the OPS for at least 15 years to rotate employees among the shifts, and employees are told this when they are hired.
      3.      Each shift is different in scope. OPS employees working day shift at Marshall spend most of their time transporting money, packages and mail, writing parking tickets, and patrolling the campus areas, although some arrests are made on day shift. More warrants are served on day shift than on the other shifts. Day shift assignments are more administrative in nature than the other shift assignments. Employees working evening shift spend most of their time patrolling the campus, issuing parking citations, and making arrests for drunkenness and disorderly conduct and other criminal activities. Evening shift employees interact more with the students than employees on other shifts. Night shift employees make more arrests for criminal activity than employees on the other two shifts, and when there is a problem on night shift, the problem will generally be more difficult to handle than problems on the other shifts.
      4.      In making recommendations to the Director of Public Safety, James Terry, for changes in shift assignments, Captain Mark Rhodes, Assistant Director of Public Safety, reviews the shift assignments, often talks to the shift supervisors about the shift assignments, and reviews vacancies and the current needs of the OPS, in an attempt todistribute temporary vacancies evenly among the shifts. He also looks at the effectiveness of individuals on particular shifts, whether the group of employees on a shift works well together, diversity of experience, and diversity of race and gender. His objective is to maintain the operational needs of the unit in order to maximize the law enforcement protective services offered to the Marshall community. Flexibility is needed for the OPS, which has a limited number of employees available to provide services 24 hours a day, 7 days a week.
      5.      New employees are rotated among the three shifts on a monthly basis for six months, in order to expose them to all aspects of the operations, so they are aware of the different aspects of the three shifts, and are able to work any shift where they are needed.
      6.      Grievant has worked the evening shift since August 1999. Prior to being assigned to evening shift, Grievant had worked day shift for three and a half years.
      7.      Lieutenant J. Wilson has more seniority than Grievant. As of the date of the Level IV hearing he was working day shift.
      8.      Custodians are assigned shifts at Marshall by seniority; however, most custodians work a night shift schedule, with very few employees, out of a total of 79, working day shift. This practice has not been placed in writing. Custodians do not work seven days a week.
      9.      Marshall does not have any written policies regarding shift assignments.
Discussion

      Grievant bears the burden of proving his allegations by a preponderance of the evidence. W. Va. Code § 29-6A-6. Mowery v. W. Va. Dep't of Natural Resources, DocketNo. 96-DNR-218 (May 30, 1997). Grievant argued that seniority is used in a haphazard manner by different departments in different ways at Marshall, and that this is not fair. He believes Marshall should have one standard for using seniority in making shift assignments throughout the university. He stated he has no problem working any of the shifts, but he would like to be on day shift. He stated he had talked to the most senior employee, Lieutenant Wilson, and he would prefer evening shift.
      Respondent argued it is best for the OPS to make assignments on an as needed basis, and that if the department were required to make assignments based on seniority, it would interfere with the efficient operation of the department. Respondent argued that the OPS is not like other departments on campus, as it has employees patrolling the campus 24 hours a day, 7 days a week, and no other department is manned continuously. Respondent also argued that the Grievance Board cannot require an employer to adopt a policy, pointing to Skaff v. Pridemore, 200 W. Va. 700, 490 S.E.2d 787 (1997).
      Grievant argued Skaff was not applicable here, because that case involved two different groups, firefighters and the national guard, whereas he was asking that Marshall apply the same policy to all employees.
      In support of his argument that shifts could be assigned by seniority, Grievant stated that he had talked to a Captain Scheidler of the Huntington Police Department, and a Sergeant Arnold of the West Virginia State Police, and both indicated to him that they go by seniority in making shift assignments. He spoke to a Captain Bowman of the Cabell County Sheriff's Office, and was told he has no control over who is on his shift, but he uses seniority in scheduling days off. Grievant stated he spoke to a Sergeant White of the WestVirginia University (“WVU”) police department and was told WVU posts its jobs as shift specific, so that there is no rotation of shifts, but when a vacancy exists, employees may request a transfer to a different shift, and seniority is used at that time.
      Captain Rhodes testified that he considers many factors when determining shift assignments, as are detailed in the preceding findings of fact. In addition, he testified he believed if seniority determined shift assignments, the most senior employees would want the day shift, resulting in those with the least experience being assigned to the night shift. In addition to compromising safety, he believed this would be inherently unfair to the new employees, and would not be good for morale. He also felt that employees become stale in the same shift assignment, and need to rotate among the shifts. He pointed out that he has a limited staff, while WVU has 47 patrolmen.
      While the other groups referred to by Grievant may find seniority to work for them in assigning shifts, those in charge of the OPS at Marshall offered valid reasons why assigning shifts by seniority would not be in the best interest of the OPS and the Marshall community they are striving to protect. This Grievance Board has previously determined that, with regard to assignments to work units and work shifts, Department of Corrections officials have “very broad discretion,” absent some improper motivation. Shannon v. W. Va. Div. of Corrections, Docket No. 97-CORR-466 (Apr. 29, 1998). See Stoneking v. W. Va. Div. of Corrections, Docket No. 93-CORR-530 (Nov. 30, 1994); Titus v. W. Va. Div. of Corrections, Docket No. 93-CORR-528 (Nov. 22, 1994); Crow v. W. Va. Div. of Corrections, Docket No. 89-CORR-116 (June 30, 1989). See also Forth v. W. Va. Dep't of Transp., Docket No. 98-DOH-433 (July 22, 1999); Jarrett v. Dep't of Admin., Docket No.98-ADMN-165 (Jan. 29, 1999). It seems appropriate here to extend this same standard to the Marshall OPS, given its security role at Marshall, and the testimony regarding the need of the OPS to maintain flexibility.
      Further, "[t]he undersigned has no authority to require an agency to adopt a policy, absent some law, rule or regulation which mandates such a policy be developed. Skaff v. Pridemore, 200 W. Va. 700, 490 S.E.2d 787 (1997)." Gary and Gillespie v. Dep't of Health and Human Resources, Docket No. 97-HHR-461 (June 9, 1999). This rule of law applies regardless of whether the entity involved is a state agency or Marshall University.
      Grievant's claim that OPS employees should receive the same treatment as custodians at Marshall, whose shifts are assigned based upon seniority, will be analyzed as a discrimination claim. W. Va. Code § 18-29-2(m) defines discrimination, for purposes of the grievance procedure, as:

      A grievant alleging discrimination must establish a prima facie case by demonstrating:

and,

Steele, et al. v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
      Once a prima facie case has been established, a presumption exists, which the employer may rebut by demonstrating a "legitimate, nondiscriminatory reason" for its action. Grievant may still prevail by establishing that the rationale given by the employer is "mere pretext". Id.
      Captain Rhodes opined that the responsibilities of the OPS were not comparable to those of the custodians in Marshall's physical plant. He stated the coverage responsibilities were not the same, for example, if a custodian fails to appear to clean a building, the area is not cleaned, but if an OPS employee fails to report to work public safety is much more adversely affected and the liability concerns are greater. Grievant argued that custodians who work evening and night shifts are also exposed to the potential for harm, just as officers are, pointing to an instance of a custodian who had been beaten while working evening or night shift.
      Grievant is not similarly situated to custodians at Marshall. His duties bear no resemblance to those of custodians. Further, custodians outnumber OPS employees by nearly three to one, they are not assigned in even numbers to the three shifts, and they do not work seven days a week. Most of the custodians are assigned to midnight shift. Grievant has not proven his claim of discrimination.
      The following Conclusions of Law support the Decision reached.
Conclusions of Law
      1.      Grievant bears the burden of proving his allegations by a preponderance of the evidence. W. Va. Code § 29-6A-6. Mowery v. W. Va. Dep't of Natural Resources, Docket No. 96-DNR-218 (May 30, 1997).
      2.      "The undersigned has no authority to require an agency to adopt a policy, absent some law, rule or regulation which mandates such a policy be developed. Skaff v. Pridemore, 200 W. Va. 700, 490 S.E.2d 787 (1997)." Gary and Gillespie v. Dep't of Health and Human Resources, Docket No. 97-HHR-461 (June 9, 1999).
      3.      W. Va. Code § 18-29-2(m) defines discrimination, for purposes of the grievance procedure, as:

      A grievant alleging discrimination must establish a prima facie case by demonstrating:

and,


Steele, et al. v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
      4.      Grievant did not demonstrate he was discriminated against, as he is not similarly situated to the custodians at Marshall.      5.      Grievant did not demonstrate a violation of any statute, rule, regulation, policy, or practice.

      Accordingly, this grievance is DENIED.

      Any party may appeal this Decision to the Circuit Court of Kanawha County or to the Circuit Court of 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 Grievance Board with the civil action number so that the record can be prepared and transmitted to the circuit court.

                                                                                           BRENDA L. GOULD
                                           Administrative Law Judge


Dated:      April 5, 2000


Footnote: 1
The grievance was denied at Level I on November 10, 1999, and Grievant appealed to Level II. A Level II hearing was held on November 29,1999, and a decision denying the grievance at Level II was issued on December 6, 1999. Level III was waived by Respondent, and Grievant appealed to Level IV on December 15, 1999. A Level IV hearing was held on February 25, 2000. Grievant represented himself, and Respondent was represented by Beth Ann Rauer, Esquire. This grievance became mature for decision on March 17, 2000, upon receipt of Respondent's post-hearing written argument. Grievant declined to submit written argument.