DIANA TOMBLIN,

                  Grievant,

      v.

DOCKET NO. 00-22-106

LINCOLN COUNTY BOARD OF EDUCATION,

                  Respondent.

D E C I S I O N

      Grievant, Diana Tomblin, filed the following grievance on January 12, 2000, against her employer, the Lincoln County Board of Education (“Board”):


A level two hearing was held on March 6, 2000, and a decision denying the grievance was issued by grievance evaluator, Charles McCann, on March 12, 2000. Grievant by-passed level three, and a level four hearing was held on June 2, 2000, in the Grievance Board's Charleston, West Virginia, office. This matter became mature for decision on June 26, 2000, the deadline for the parties' proposed findings of fact and conclusions of law. Grievant was represented by Anita Mitter, West Virginia Education Association, and the Board was represented by James W. Gabehart, Esq.
SUMMARY OF EVIDENCE

Level Three Grievant Exhibits

Ex. 1 -

Ex. 2 - Ex. 3 - Ex. 4 -
Level Four Grievant Exhibits

Ex. 1 -

Ex. 2 - Ex. 3 -
Testimony

      Grievant testified in her own behalf, and presented the testimony of Tina Black and Charles S. McCann. The Board presented the testimony of Charles S. McCann.

FINDINGS OF FACT

      I find, by a preponderance of the evidence, the following facts.
      1.      Grievant is employed by the Board as a substitute cook.
      2.      On December 7, 1999, the Board posted a vacancy bulletin which included a position for Cook II, ½ time at Hamlin Junior High. LIII G. Ex. 2.
      3.      Grievant and Donna Toney, also employed as a substitute cook, applied for this position.
      4.      Grievant's starting date as a substitute cook is September 26, 1990. LIV G. Ex. 2.
      5.      Ms. Toney's starting date as a substitute cook is September 25, 1989. LIV G. Ex. 2.      6.      At the time of the posting for the Cook II position, Grievant had 36 days of regular employment seniority. Ms. Toney had 18 days of regular seniority. LIII G. Ex. 4; LIV G. Exs. 1, 3. Both applicants were on the substitute list at the time of selection.
      7.      The Board selected Ms. Toney for the Cook II ½ time position at Hamlin Junior High, based upon her greater substitute seniority.   (See footnote 1) 
DISCUSSION

      Grievant has the burden of proving each element of her 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 contends it has been the practice of the Board to use regular seniority when awarding service personnel positions, and as she had more regular seniority than Ms. Toney, she should have been awarded the Cook II ½ time position at Hamlin Junior High.
The Board only utilized the substitute seniority list when filling the subject position, and did not consider the applicants' regular seniority.
      W. Va. Code § 18A-4-8b sets forth the procedure to be followed in filling vacancies in service personnel positions, and states in pertinent part as follows:


      The Board contends it properly followed the mandates of this provision, selecting the substitute applicant with the most substitute seniority, Ms. Toney.
      It is well-settled by this Grievance Board that when filling service personnel positions, the amount of regular seniority the applicants possess must be utilized to award the position, if such seniority is present. Griffith v. Boone County Bd. of Educ., Docket No. 99-03-172 (Mar. 16, 2000 ); Brunty v. Lincoln County Bd. of Educ., Docket No. 99-22-069 (July 13, 1999); Hall v. Mingo County Bd. of Educ., Docket No. 94-29-1110 (Sept. 29, 1995); Ferrell v. Mingo County Bd. of Educ., Docket No. 92-45-440 (Aug. 4, 1993). All of the cited cases involved substitute employees who applied for a regular position, just asin this case, it was held and affirmed that regular seniority, if any, was to be used to determine the outcome of the selection process. Here, since Grievant had more regular seniority than Ms. Toney, she should have been awarded the subject position in this grievance.
      It must be noted here that Grievant relied on this Grievance Board's decision in Dempsey v. Mingo County Board of Education, Docket No. 96-29-020 (June 28, 1996), in her proposed findings of fact and conclusions, specifically Conclusion of Law 3, to support her argument that regular seniority must be used, if available, in selecting applicants for service positions from a pool of substitute employees. A review of Dempsey reveals that its use by Grievant, and in other decisions of the Grievance Board, to support this holding, has been misplaced. See Brunty v. Lincoln County Bd. of Educ., Docket No. 99-22-069 (July 13, 1999); Griffith v. Boone County Bd. of Educ., Docket No. 99-03-172 (Mar. 16, 2000).
      Conclusion of Law 3 in Dempsey states:

       While that Conclusion cites Hall and Ferrell, which involved substitutes, the issue in Dempsey was not what type of seniority should be used in selecting applicants, i.e., substitute or regular, but rather, whether a board should look to the total amount of regular seniority an applicant had accumulated, or merely look at the starting dates of their regular employment. In that case, both applicants for the subject position were already regularemployees of the Board, not substitutes. The Dempsey holding clarified that a board is to look at the total amount of regular seniority accrued, rather than the starting date. The holdings in Brunty and Griffith are not affected by this clarification as the holdings are the same as the holding here.
      Finally, the Board's reliance on Stansbury v. Morgan County Bd. of Educ., Docket No. 97-32-577 (July 24, 1998), is also misplaced, and does not support its argument that regular seniority should not be used when applicants for a regular service position are substitutes. Stansbury merely stands for the proposition that, once a long-term substitute position is ended, and the long-term substitute is returned to his position, be it regular or substitute, all the rights and benefits associated with that long-term substitute employment also come to an end. That does not mean that the regular seniority accumulated during that time period ceases to exist and can not be counted when filling another position, only that it is no longer accumulated by the employee.
CONCLUSIONS OF LAW

      1.      Grievant has the burden of proving each element of her 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.      Service personnel positions are to be filled on the basis of seniority, qualifications and evaluations of past service. W. Va. Code § 18A-4-8b.      3.      When filling service personnel positions, the amount of regular seniority the applicants possess must be utilized to award the position, if such seniority is present. Griffith v. Boone County Bd. of Educ., Docket No. 99-03-172 (Mar. 16, 2000); Brunty v. Lincoln County Bd. of Educ., Docket No. 99-22-069 (July 13, 1999); Hall v. Mingo County Bd. of Educ., Docket No. 94-29-1110 (Sept. 29, 1995); Ferrell v. Mingo County Bd. of Educ., Docket No. 92-45-440 (Aug. 4, 1993).
      4.      Grievant has demonstrated that she had accumulated more regular seniority than the successful applicant, therefore she has proven a violation of W. Va. Code § 18A- 4-8b and applicable case law.
      Accordingly, this grievance is GRANTED, and the Board is hereby ORDERED to instate Grievant into the Cook II, ½ time position at Hamlin Junior High, and award her any back pay, with interest, and benefits, to which she is entitled.
            Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of Lincoln 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: July 17, 2000


Footnote: 1
      Although not specified in the record, it is assumed that no regular service personnel or employees on preferred recall applied for the position, so only substitutes were considered. See W. Va. Code § 18A-4-8b.