KIMBERLY HUSTON,
            Grievant,
                  
v.                                                 Docket No. 99-T&R-469D                   
WEST VIRGINIA DEPARTMENT OF TAX AND
REVENUE and DIVISION OF PERSONNEL,
            Respondents.

ORDER DENYING DEFAULT

      Grievant, Kimberly Huston, filed a Motion for Default Judgment, with her employer, West Virginia Department of Tax and Revenue ("T&R"), in the above-styled grievance on October 29, 1999, in accordance with W. Va. Code § 29-6A-3(a)(2). Respondent requested a Level IV hearing on this matter on November 5, 1999, stating a default did not occur. After a continuance for good cause shown, a hearing on this matter was held in the Grievance Board's Charleston, West Virginia, office on January 4, 2000. This default claim became mature for decision on that date as the parties elected not to submit proposed findings of fact and conclusions of law. Grievant was represented by Attorney Priscilla Gay, and T&R was represented by its Attorney, Tim Waggoner.
      After a detailed review of the record in its entirety the undersigned Administrative Law Judge makes the following Findings of Fact pertinent to this matter.

Findings of Fact

      1.      The Level III hearing was held on September 15, 1999.   (See footnote 1)        2.      At the close of the September 15, 1999 hearing, Grievance Evaluator Mark Morton asked the parties if they wished to submit proposed Findings of Fact and Conclusions of Law.
      3.      Mr. Waggoner indicated he wished to do so, and the possibility of submitting these proposals within thirty days was discussed.
      4.      Grievance Evaluator Morton responded, "If Ms. Gay will waive the five-day decision rule I think we can accommodate you." Ms. Gay's response was, "Yes I will."
      5.      The parties agreed that these proposals would be due on October 18, 1999.
      6.      No written waiver was signed.
      7.      Grievant believed she was only waiving the timelines for the Proposed Findings of Fact and Conclusions of Law, and the Decision would be rendered five days after the Grievance Evaluator received the submissions.
      8.      The Grievance Evaluator believed Grievant had waived all the timelines for the Decision, and the standard that now applied was the reasonable time standard.
      9.      The record at Level III in this grievance was approximately 200 hundred pages, and there were numerous, complex documents submitted for the Grievance Evaluator's review and study.
      10.      On October 29, 1999, Grievant notified Respondent it was in default for failure to render a Level III decision within five working days.
      11.      At the time Grievant sent the Notice of Default to the Respondent, the Grievance Evaluator had completed a portion of the Level III Decision. The GrievanceEvaluator has not yet completed the Decision because he believed the default issue had removed the grievance from his jurisdiction.
Issues and Arguments

      Grievant argues Respondent is in default because it failed to issue a Level III Decision five days after receipt of the Proposed Findings of Fact and Conclusions of Law. Grievant acknowledges she offered to waive the procedural timelines, but argues this waiver was only for the submission of the Proposed Findings of Fact and Conclusions of Law; thus, Respondent has defaulted in this grievance.
      Respondent argues the parties agreed to extend the timelines, and there were no limitations placed on this waiver; that it only applied to the submission of the proposals. In the alternative, Respondent argues, if indeed Grievant did not intend to waive the timelines for all purposes, then the Grievance Evaluator was induced by Grievant's agreement into believing there was such a waiver; and thus, the failure to issue the decision in a timely manner was due to excusable neglect.
Discussion

      The issue of default in grievances filed by a state employees came within the jurisdiction of the Grievance Board in 1998. On March 13, 1998, the West Virginia Legislature passed House Bill 4314, which, among other things, added a default provision to the state employees grievance procedure, effective July 1, 1998.   (See footnote 2)  That Bill amended W. Va. Code § 29-6A-3(a), adding the following paragraph relevant to this matter:
      In addition, House Bill 4314 added the following language to W. Va. Code § 29-6A- 5(a): "[t]he [grievance] board has jurisdiction regarding procedural matters at levels two and three of the grievance procedure."
      This Grievance Board had previously adjudicated related issues arising under the default provision in the grievance statute covering education employees, W. Va. Code § 18-29-3(a). See, e.g., Ehle v. Bd. of Directors, Docket No. 97-BOD-483 (May 14, 1998); Gruen v. Bd. of Directors, Docket No. 94-BOD-256 (Nov. 30, 1994); Wadbrook v. W. Va. Bd. of Directors, Docket No. 93-BOD-214 (Aug. 31, 1993); Flowers v. W. Va. Bd. of Trustees, Docket No. 92-BOT-340 (Feb. 26, 1993).
      When the employer asserts the remedy that would be received is contrary to law in accordance with W. Va. Code § 29-6A-3(a)(2) because, in fact, no default occurred, the employer must establish such a defense by a preponderance of the evidence. Williamson v. W. Va. Dep't of Tax & Revenue, Docket No. 98-T&R-275D (Sept. 30, 1998). See Gruenv. Bd. of Directors, Docket No. 94-BOD-256 (Nov. 30, 1994). A preponderance of the evidence is generally recognized as evidence of greater weight, or which is more convincing than the evidence which is offered in opposition to it. Hunt v. W. Va. Bureau of Employment Programs, Docket No. 97-BEP-412 (Dec. 31, 1997); Petry v. Kanawha County Bd. of Educ., Docket No. 96-20-380 (Mar. 18, 1997).
      W. Va. Code § 29-6A-4(c) provides the following directions regarding when Respondent must act at Level III:



(Emphasis added).
      This Grievance Board has been directed in the past that "the grievance process is intended to be a fair, expeditious, and simple procedure, and not a 'procedural quagmire.'" Harmon v. Fayette County Bd. of Educ., Docket No. 98-10-111 (July 9, 1998), citing Spahr v. Preston County Bd. of Educ., 182 W. Va. 726, 393 S.E.2d 739 (1990), and Duruttya v. Bd. of Educ., 181 W. Va. 203, 382 S.E.2d 40 (1989). See Watts v. Lincoln County Bd. ofEduc., Docket No. 98-22-375 (Jan. 22, 1999). As stated in Duruttya, supra, the grievance process is for "resolving problems at the lowest possible administrative level." Additionally, Spahr, supra, indicates the merits of the case are not to be forgotten. Id. at 743. See Edwards v. Mingo County Bd. of Educ., Docket No. 95-29-472 (Mar. 19, 1996). Further, Duruttya, supra, noted that in the absence of bad faith, substantial compliance is deemed acceptable.
      The specified time limits in the grievance statute may be extended for a "reasonable time" by mutual, written agreement of the parties. See W. Va. Code §29-6a-3(g). Waiver of the strict statutory timelines is a common occurrence within the context of the grievance procedure. Parker v. W. Va. Dep't of Health and Human Resources, Docket No. 99-HHR- 296D (Nov. 30, 1999). This practice benefits both parties by allowing employers sufficient time to give grievances careful attention and care, rather than “rushing” to judgment. Jackson v. Hancock County Bd. of Educ., Docket No. 99-15-081D (May 5, 1999). See Parker, supra.
      In retrospect it is clear what happened between the parties. Although they believed they had agreed to a waiver of the timelines, each party had a different interpretation of the contents of that waiver. Neither sought clarification from the other as they each believed the other held the same understanding as they did. Further, this agreement was understandable given the length of the transcript, the number of exhibits and the complexity of the data they contained. See Bowyer v. Bd. of Trustees/ W. Va. Univ., Docket No. 99-BOT-197D (July 13, 1999).       Although the agreement to extend the timelines was not written, it is on the record, and Grievant's attorney clearly agreed to the extension during a formal, recorded hearing. This agreement is sufficient to constitute a valid waiver of the time to issue a decision under the statute, and it is sufficient for substantial compliance. Duruttya, supra; Parker, supra; Bowyer, supra; Jackson, supra.
      Further, it is noted that the time periods in the grievance procedure are not jurisdictional in nature and are subject to equitable principles of tolling, waiver, and estoppel. Jackson, supra; Gaskins v. W. Va. Dep't of Health, Docket No. 90-H-032 (Apr. 12, 1990). This Grievance Board has frequently applied such principles, specifically estoppel, to toll the time for filing a grievance. See, e.g., Lilly v. Raleigh County Bd. of Educ., Docket No. 94-41-195 (Nov. 28, 1994). Such principles have similarly been applied in evaluating default cases. Harmon v. Div. of Corrections, Docket No. 98-CORR-284D (Oct. 6, 1998). In order to prevail in a claim of estoppel, a party must show that there was a representation made, or information given, by the opposing party which was relied upon, causing an alteration of conduct or change of position to the first party's detriment. Ara v. Erie Insurance Co., 182 W. Va. 266, 387 S.E.2d 320 (1989).
      Unquestionably, Grievance Evaluator Morton relied upon Grievant's attorney agreement that the timelines for issuing the Level III Decision were waived. In reliance upon Grievant's agreement in this regard, T&R delayed issuing the decision beyond the statutory time limitation of five days after the submission of the Proposed Findings of Fact and Conclusions of Law. Therefore, the doctrine of estoppel would bar Grievant from now claiming that a default occurred.      Accordingly, the undersigned concludes Respondent has met its burden of proof in this default claim. The parties' agreement to allow an extension of the statutory time line at Level III prohibits any claim that a default occurred at that level.
      The above-discussion will be supplemented by the following Conclusions of Law.
      
Conclusions of Law

      1.      "The grievant prevails by default if a grievance evaluator required to respond to a grievance at any level fails to make a required response in the time limits required in this article, unless prevented from doing so directly as a result of sickness, injury, excusable neglect, unavoidable cause or fraud." W. Va. Code §29-6A-3(a).
      2.      When the employer asserts the remedy that would be received is contrary to law in accordance with W. Va. Code § 29-6A-3(a)(2) because, in fact, no default occurred, the employer must establish such a defense by a preponderance of the evidence. Williamson v. W. Va. Dep't of Tax & Revenue, Docket No. 98-T&R-275D (Sept. 30, 1998). See Gruen v. Bd. of Directors, Docket No. 94-BOD-256 (Nov. 30, 1994).
      3.      The specified time limits in the grievance statute may be extended for a "reasonable time" by mutual agreement of the parties. See W. Va. Code § 29-6A-3(g).
      4.      "The agreement reached on the record by the parties at the Level III hearing, constitutes substantial compliance with [W. Va. Code § 29-6A-3(g)]." Parker v. W. Va. Dep't of Health and Human Resources, Docket No. 99-HHR-296D (Nov. 30, 1999). Duruttya v. Bd. of Educ., 181 W. Va. 203, 382 S.E.2d 40 (1989); Bowyer v. Bd. of Trustees/ W. Va. Univ., Docket No. 99-BOT-197D (July 13, 1999); Jackson v. Hancock County Bd. of Educ., Docket No. 99-15-081D (May 5, 1999); .       5.      A party simply cannot acquiesce to, or be the source of, an error or misunderstanding during proceedings before a tribunal, and then complain of that error at a later date. Lambert v. W. Va. Dep't of Health and Human Resources, Docket No. 99- HHR-326D (Oct. 14, 1999). See, e.g., State v. Crabtree, 198 W. Va. 620, 627, 482 S.E.2d 605, 612 (1996) ("Having induced an error, a party in a normal case may not at a later stage of the trial use the error to set aside its immediate and adverse consequences."); Smith v. Bechtold, 190 W. Va. 315, 319, 438 S.E.2d 347, 351 (1993) ("[I]t is not appropriate for an appellate body to grant relief to a party who invites error in a lower tribunal.") (Citations omitted).
      6.      Because Grievant agreed at the end of the Level III hearing to extend the timelines for issuance of the Decision, she waived entitlement to the default provisions of W. Va. Code § 29-6A-3(a). Parker, supra; Lambert, supra.

      Accordingly, Grievant's Motion for Default is DENIED. This matter is remanded to Level III for the Grievance Evaluator to issue a Level III Decision within the statutory timelines from the date he receives this Order.
                                                _________________________                                                        JANIS I. REYNOLDS
                                                 Administrative Law Judge

Dated: February 29, 2000.


Footnote: 1
      The parties did not inform the undersigned Administrative Law Judge of the procedural history prior to the Level III hearing.
Footnote: 2
       This provision is applicable only to grievances filed on or after July 1, 1998. Jenkins-Martin v. Bureau of Employment Programs, Docket No. 98-BEP-285 (Sept. 24, 1998).