RUSSELL R. McELROY, et al.,
Grievants,
v. Docket No. 99-30-213
MONONGALIA COUNTY BOARD OF EDUCATION,
Respondent.
Grievants, thirty service personnel employed by the Monongalia County Board of
Education (MCBOE) as bus operators, filed a level one grievance on October 10, 1997, in
which they alleged violations of
W. Va. Code §§18A-4-8b and 18A-4-16,
when changes
were made regarding the distribution of extra-duty assignments.
(See footnote 1)
Grievants alleged they
did not receive extra-duty assignments to which they were entitled, and requested
reimbursement for those assignments, plus interest. Transportation Supervisor Duane
Prickett denied the grievance at level one by decision dated October 14, 1997. A level two
hearing was conducted on September 16, 1998; however, no decision was issued at that
level. Grievants elected to bypass consideration at level three, as is permitted by
W. Va.Code §18-29-4(c), and advanced their appeal to level four on May 27, 1999. A level four
hearing was conducted in the Grievance Board's Morgantown office on August 10, 1999,
at which time Grievants were represented by John E. Roush, Esq., of the West Virginia
School Service Personnel Association, and MCBOE was represented by Kelly Kimble,
Esq., of Kay Casto & Chaney. The matter became mature for decision on September 27,
1999, the final date for post-hearing submissions.
(See footnote 2)
The facts of this matter are undisputed and may be set forth as the following formal
findings of fact.
Findings of Fact
1. Grievants are regularly employed by MCBOE as service personnel classified
as bus operators.
2. MCBOE defines extra-duty assignments as short, requiring less than three
hours to complete, or long, more than three hours in duration.
3. In 1995, school bus operators employed by MCBOE voted to accept an
alternative procedure for making extra-duty assignments. The policy provides in pertinent
part:
. . . extra duty assignments of less than, approximately, three
(3) hours or trips involving mass movements of students such
as, but not limited to, book awards, creative arts and fire
prevention, shall be assigned from the school bus operator's
list by the supervisor according to driver's work schedule.
Notification of a trip shall be made the day preceding the trip.
The supervisor will make an effort to see that all drivers have
an opportunity to accept such assignment(s).
4. Prior to the 1997-98 school year Mr. Prickett offered the short, extra-duty
assignments with prior-day notice, when possible. When an employee refused an
assignment for which less than prior-day notice was given, the refusal was not recorded.
5. As the result of another grievance during the 1997-98 school year, then-
Superintendent Edward Warnick directed that refusals, with or without prior-day notice, be
recorded. At approximately the same time, Mr. Prickett also generally stopped giving prior-
day notice of assignments. These changes in practice were not voted upon by the bus
operators.
6. During the 1998-99 school year, in response to concerns raised by the bus
operators, the practice of recording refusals of assignments offered with less than prior-day
notice was abandoned.
Discussion
As this grievance does not involve a disciplinary matter, Grievants have the burden
of proving each element of their 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.
Grievants argue that MCBOE failed to comply with its own policy when it elected
to not give prior-day notice of the short extra-duty assignments. Grievants further allege
that the practice of not counting a refusal in the absence of appropriate notice became part
of the policy. A violation of
W. Va. Code §18A-4-8b occurred, Grievants argue, when these
changes were made to the policy without the consent of MCBOE and two-thirds of the busoperators. MCBOE argues that none of the Grievants offered any evidence that recording
refusals resulted in a decrease in the total number of assignments they otherwise would
have received, or affected the ultimate number of assignments offered or performed by
them.
A number of Grievants testified at level four that due to personal reasons they had
been unable to accept short extra-duty runs when they were offered with less than prior-
day notice. Certainly, the language of MCBOE's policy on extra duty assignments is clear
and unambiguous, [n]otification of a trip shall be made the day preceding the trip.
(See footnote 3)
Mr.
Prickett testified that he posted the short trip list on Fridays, giving Grievants general
notice that they would likely be called. However, he began giving the bus operators less
than prior-day notice because they would sometimes forget the trips, and because of a
high rate of absenteeism, 8 to 10 operators daily, on average. Consistent with the policy,
Mr. Prickett stated that he attempted to balance the number of short extra-duty
assignments by the end of the year. He also explained that recording refusals had been
in response to a certain employee who had earlier refused a number of trips, and then
wanted to get caught up by the end of the year.
Mr. Prickett confirmed a comment made in his level one decision that the bus
operators have not always been cooperative with the short runs. He stated that he has
been told by individuals that they do not want runs involving the football teams, because
they stink, that they do not want a run if it is scheduled for only an hour, that they arebusy on certain days, and, they will take them all at once. Mr. Prickett opined that to allow
a few drivers to pick and choose which trips they want is not fair, and to offer some drivers
more opportunities than others would be a violation of the policy.
W. Va. Code §18A-4-8b provides that an alternative procedure for making extra-
duty assignments within a particular classification category of employment may be utilized
if the alternative procedure is approved both by the county board of education and an
affirmative vote of two-thirds of the employees within that classification category. It is
undisputed that the policy was not amended after 1995. Recording refused offers of
assignments does not contravene MCBOE's extra-duty policy. In fact, such documentation
is a useful device to insure compliance with the policy's directive that all employees be
given an opportunity to accept such assignments. The fact that an employee refused an
assignment carried no penalty because the offers were not made in any particular order.
Therefore, a refusal did not mean that the employee was placed on the bottom of the list,
or missed an assignment in that cycle.
MCBOE did violate the policy when prior-day notice was not given for extra-duty
assignments. However, it is impossible to determine that Grievants are entitled to lost
wages as a result of the action. By the terms of the policy, the assignments are not made
in rotational, or any other order, and Grievants are not entitled to any run on any specified
day. The only guideline placed upon MCBOE is to make an effort to offer the drivers such
assignments, and this was done. Grievant's do not allege that they were deprived of an
opportunity to accept an assignment, only that they could not at times, due to personal
plans. Some Grievants assert that with prior-day notice they would have changed their
doctor appointments, etc., nevertheless, given the facts of this matter, any determinationof a monetary award would be speculative. The Grievance Board does not render opinions
which are speculative in nature.
Pierson v. Ritchie County Bd. of Educ., Docket No. 98-43-
006 (May 29, 1998);
Bryant v. Fayette County Bd. of Educ., Docket No. 91-10-297 (Mar.
13, 1992).
In addition to the foregoing findings of fact and discussion, it is appropriate to make
the following formal conclusions of law.
Conclusions of Law
1. As this grievance does not involve a disciplinary matter, Grievants have the
burden of proving each element of their 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. Grievants have failed to prove that the recording of refused extra-duty
assignments was an amendment of MCBOE policy in violation of
W. Va. Code §18A-4-8b.
3. Grievants have proven that MCBOE failed to follow its own policy for a period
of time when prior-day notice was not given for short extra-duty assignments.
4. The award of compensation for assignments which Grievants may have
accepted given prior-day notice is speculative, and the Grievance Board does not render
opinions which are speculative in nature.
Pierson v. Ritchie County Bd. of Educ., Docket
No. 98-43-006 (May 29, 1998);
Bryant v. Fayette County Bd. of Educ., Docket No. 91-10-
297 (Mar. 13, 1992).
Accordingly, the grievance is
DENIED.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of Monongalia County and 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.
Date: February 14, 2000 __________________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE
Footnote: 1 Grievants listed on the level four grievance appeal form are Bill Barnett, Joseph
Boyles, John Carpenter, Mary Conley, Debbie Corwin, James Dalton, Karen Dalton, Barry
Fowler, Dennis Garner, Sheila Hixenbaugh, Charles Howell, Russell McElroy, Charlene
McMillen, Orval Miller, John Poole, Illa Powroznik-Hess, Edward Reese, Edman Rice, Mary
Rogers, Bernard Sharpnack, Darrell Shay, Joseph Shultz, Michael Smith, William Sollars,
Billy Stevens, Rudolph Ward, Cheryl Williams, Regenia Williamson, Margaret Wilson, and
Karen Summers.
Footnote: 2 The alleged violation of
W. Va. Code §18A-4-16 was abandoned by Grievants at
level four.
Footnote: 3 The policy does provide one exception to the prior-day notice requirement, i.e., that
[e]mergency situations involving last minute bookings or a driver's cancellation shall be
handled by the supervisor.