STARRY MILOSICEVIC,
                  Grievant,

v.                                                Docket No. 99-15-281

HANCOCK COUNTY BOARD OF EDUCATION,
                  Respondent.

D E C I S I O N

      Grievant, Starry Milosicevic, employed by the Hancock County Board of Education (HCBOE) as a Cook III, filed a level one grievance on April 19, 1999, in which she stated that she lacked adequate assistance at Broadview Elementary School (BES). Grievant requested the placement of a half-time cook position at BES for the 1999-2000 school year. Linda Spencer, principal at BES noted that she had attempted to accommodate Grievant by having another cook report to work 15 minutes early to assist more in the kitchen, and requesting that an aide count money, but that solution had been unacceptable to Grievant. Ms. Spencer lacked authority to hire a half-time cook.
      The grievance was denied at level two, based upon determinations that staffing decisions are not grievable, and that Grievant had not demonstrated that her duties required her to work beyond her contract period. HCBOE waived consideration at level three, as is permitted by W. Va. Code §18-29-4(c), and the matter was advanced to level four on July 8, 1999. An evidentiary hearing was conducted in the Grievance Board'sWheeling office on September 9, 1999, at which time Grievant was represented by John E. Roush, Esq., of the West Virginia School Service Personnel Association. HCBOE was represented by William Fahey, Esq., Assistant Prosecuting Attorney. The matter became mature for decision with the receipt of Grievant's proposed findings of fact and conclusions of law on October 13, 1999. HCBOE elected to not file post-hearing proposals.
      The following findings of fact are made from the record in its entirety, including the level two transcript, and the testimony and exhibits entered at level four.
Findings of Fact
      1.      Grievant has been employed by HCBOE as a Cook III at all times pertinent to this grievance. Grievant is assigned half-time at the central kitchen where she prepares food for the satellite schools, and half-time at BES, where she is responsible for serving lunch and completing reports.
      2.      BES is the only school which does not have a full-time cook. Instead, it is a satellite school, which means the food is prepared at the central kitchen, and then transported to BES, where it is heated and served.
      3.      In addition to Grievant, another cook is assigned to BES on a half-time basis, and a teacher's aide serves breakfast and completes the morning reports.
      4.      Effective the 1999-2000 school year, HCBOE employed an additional half- time cook who was assigned to BES for one and one-half hours per day (breakfast server).
      5.      Grievant arrives at the central kitchen at 6:00 a.m., where she works until 9:30 a.m. At 9:40 a.m. Grievant arrives at BES where she completes reports and serves lunch, concluding her work day at 1:10 p.m.
      6.      Half-time cook Moe Rochnich works from 9:45 a.m. until 1:15 p.m.      7.      Grievant's duties at BES consist of serving lunch, which requires from 20 to 30 minutes, entering information into the computer, and completing reports.
      8.      The staff at BES serves approximately 38-45 breakfasts and between 90 and 160 lunches each day. The actual numbers of meals served may be somewhat less.
      9.      At times, Grievant is unable to complete her work by the end of the day and completes the tasks when she can. Grievant has never been disciplined for failure to complete her duties.
      10.      A review of the situation by both the school principal and HCBOE Superintendent Charles Chandler resulted in conclusions that the kitchen at BES is adequately staffed.
      Discussion
      As this grievance does not involve a disciplinary matter, 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 complains that the BES kitchen is understaffed, and appears to assert that the aide is working out of classification.   (See footnote 1)  Grievant argues that while boards of educationhave significant discretion in staffing, they also have the duty to insure that schools are properly and adequately staffed. When asked about the additional assistance placed at BES at the beginning of the 1999-2000 school year, Grievant stated that the individual functions only as a server, and is of no assistance to Grievant. She complains that other schools serving fewer meals have full-time cooks, and that she is the only half-time employee expected to do a full-time job. Grievant cites the suggested staffing for hot lunch programs set forth in W. Va. Code §18A-2-13 in support of her claim. HCBOE argues that staffing is not a grievable issue, and that Grievant has failed to prove that she is working beyond her contract period, or that the work is not getting done.
      W. Va. Code §18A-2-13 provides “optional guidelines that county boards may use when scheduling full-day and half-day cooks.” These guidelines suggest that when 1 to 90 meals are served per day, one cook is needed. Between 91 and 135 meals, 1.5 cooks are suggested, two cooks are recommended for 136 to 180 meals, and 2.25 cooks when 181 to 225 meals are served. A meal prepared for a school lunch shall be counted as a whole meal. Other meals shall be equal to three-fourths of a school lunch meal.
      Even if the high estimates given by Grievant of meals served per day are accepted, the personnel assignments in Code §18A-2-13 are simply “optional guidelines” and it is not mandatory that a board of education comply with the suggested allotment. Further, the statutory provision does not address various methods now used by boards in meal production. It certainly appears reasonable to the undersigned that a school in which food is not prepared, but is only heated and served, may require less staff than a full-service kitchen.      While Grievant is a good employee, concerned with completing her work on a daily basis, the undersigned takes administrative notice that Hancock County Schools recently added computers to the kitchen, requiring these employees to learn an entirely new method of record keeping and report completion. To compound the concerns of the cooks, some problems arose with the software during the initial period of use which increased anxiety. In the present case, BES now has two half-time cooks, one cook for one and one- half hours, and an aide which assists in the kitchen. The principal and the superintendent both found the staff to be adequate. Although Grievant may not always complete her work by the end of the day, she did not allege, and there is no evidence that she has ever been reprimanded, or otherwise disciplined for failure to complete her duties. There is also a lack of any evidence that she has ever been required to work overtime to complete her work.
      Grievant does not allege that a lack of personnel is causing meals to be prepared or served improperly, only that she has insufficient time to complete her reports. In a somewhat similar situation in Miller v. Lincoln County Bd. of Educ., Docket No. 97-22-083 (July 23, 1997), the grievant complained that because of understaffing she did not have time to rest, and became very tired. However, absent any evidence that students were being placed at risk, or any allegation that state or federal labor laws were being violated, it was determined that grievant had failed to prove any wrongdoing on the part of the board. Grievant herein has not alleged any harm to students, or violation of labor laws. Neither does she claim to have suffered in any way personally as a result of the staffing at BES.      “A board of education has the discretion to determine the number of jobs for and the employment terms of a board's service personnel, provided that the requirements of W. Va. Code 18A-4-8 [1993] are met.” Lucion v. McDowell County Bd. of Educ., 191 W. Va. 399, 446 S.E.2d 487 (1994). Byrd v. Cabell County Bd. of Educ., Docket No. 96-06-316 (May 23, 1997). Grievant has not proven HCBOE improperly exercised its discretion. Because the cook staffing guidelines are not mandatory, HCBOE has not violated the statute.
      In addition to the foregoing findings of fact and discussion, it is appropriate to make the following conclusions of law.
Conclusions of Law
      1.      As this grievance does not involve a disciplinary matter, 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.      W. Va. Code §18A-2-13, which provides guidelines for cook staffing levels in public schools, is optional. A county board of education is not required to staff its schools with the number of cooks per meals served suggested in this statute. Miller v. Lincoln County Bd. of Educ., Docket No. 97-22-083 (July 23, 1997).
      3.      Grievant failed to prove that the Hancock County Board of Education should have followed the optional cook staffing guidelines set forth in W. Va. Code §18-2-13, orviolated any other law, statute, rule or regulation in staffing cooks at Broadview Elementary School.
      Accordingly, the grievance is DENIED.
      Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of Hancock 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
      At level two, Grievant stated that her concern was not primarily that the individual was working out of classification, but that it was difficult to coordinate their schedules to confer regarding what had been completed and what needed to be done. Grievant explained that with a second, half-time Cook at BES their schedules would overlap, assisting Grievant with her computer work.