GLESTON SEABOLT,

            Grievant,

v.                                                      Docket No. 00-20-307

KANAWHA COUNTY BOARD OF EDUCATION,

            Respondent.

D E C I S I O N

      Grievant, Gleston Seabolt, filed this grievance against his employer, the Kanawha County Board of Education ("KBOE"), when he failed the painter competency test and was not selected for either of two posted painter positions for which he applied. The statement of grievance filed at Level IV reads:


As relief Grievant sought “the payment of wages and benefits retroactive to the date of the filling of the painter's vacancy and interest on all monetary sums.”   (See footnote 1)        The following Findings of Fact are properly made based upon the record developed at Level II, supplemented by a stipulation of fact at Level IV.
FINDINGS OF FACT

      1.      Grievant has been employed by KBOE for 26 years. During the 1999-2000 school year, Grievant was employed in a regular position at Roosevelt Junior High School as a custodian. Roosevelt Junior High was closed at the end of the 1999-2000 school year, and Grievant was placed on transfer.
      2.      KBOE posted two painter vacancies in late May and early June 2000. Grievant applied for the vacancies.
      3.      As Grievant had never served in the painter classification, on July 13, 2000, he attended a training session at the Crede warehouse to prepare for the painter competency test. The training was given by Roy Russell, a vocational teacher. About ten minutes after the training session began, Grievant was taken to another room to take the painting portion of the test. This was the “hands-on” or skills portion of the competency test.
      4.      The training session continued while Grievant was painting. Grievant missed approximately one hour of the competency training while he was painting. Grievant failed the competency test.
      5.      Grievant was the most senior applicant for both painter positions. None of the applicants had seniority in the painter classification.
      6.      Grievant was not placed in either position. Phyllis Morris was placed in one of the painter positions on July 3, 2000, and Freddie Boyd was hired into the other painter position on July 17, 2000.
DISCUSSION

      Grievant bears the burden of proving the elements of his grievance by a preponderance of the evidence. Tibbs v. Mercer County Bd. of Educ., Docket No. 96-27-074 (Oct. 31, 1996). KBOE offered no evidence or argument to dispute that Grievant would have been placed in the position, pursuant to W. Va. Code § 18A-4-8b, as the most senior applicant, had he passed the competency test. KBOE also does not dispute that the competency testing was not properly administered. KBOE offered, prior to the grievance being filed, and continued to offer during this proceeding, to allow Grievant to retake the training and the painter competency test. KBOE did not offer to place Grievant in one of the two painter positions for which he had applied, or to pay him any back pay. KBOE correctly argues that it is not an appropriate remedy to place Grievant in the position without passing the competency test.
      W. Va. Code § 18A-4-8e provides for competency testing of school service personnel as follows:










      “This Grievance Board has previously determined that providing a full day of inservice training prior to administration of a competency test to a regularly employedschool service personnel employee is mandatory. Quintrell v. Lincoln County Bd. of Educ., Docket No. 95-22-051 (Aug. 31, 1995), aff'd, Cir. Ct. of Kanawha County No. 95-AA-241 (Apr. 30, 1996). See Marion County Bd. of Educ. v. Bonfantino, 179 W. Va. 202, 366 S.E.2d 650 (1988).” Bailey v. Logan County Bd. of Educ., Docket No. 97-23-436 (Feb. 27, 1998). “[T]he purpose of the inservice training is to acquaint the applicant with the test content, scoring, and format, and to offer the applicant a chance to practice or 'brush up on' the necessary skills. Quintrell v. Lincoln County Bd. of Educ., Docket No. 95-22-05 (Aug. 31, 1995).” Edmonds v. Lincoln County Bd. of Educ., Docket No. 97-22-120 (May 27, 1998).
      Grievant was not provided with the required eight hours of training prior to taking the competency test. Grievant cannot, however, simply be placed in a painter position, as he has neither held that classification, nor has he passed the competency test. As both parties suggest, the appropriate remedy is to allow Grievant a full eight hours of training, and allow him to take the competency test. If Grievant passes the competency test, he is entitled to be placed in one of the two painter positions for which he applied, retroactive to July 3, 2000, the date the first person was hired into a posted position, and back pay plus interest at the statutory rate. The Level II decision indicates that Grievant has been employed in a Custodian III position during the 2000-2001 school year. If this is correct, any back pay would be in the amount of the difference in pay between his pay as a Custodian III, and his pay as a painter.
      The following Conclusions of Law support the Decision reached.
CONCLUSIONS OF LAW

      1.      The burden of proof is upon Grievant to prove the elements of his grievance by a preponderance of the evidence. Tibbs v. Mercer County Bd. of Educ., Docket No. 96- 27-074 (Oct. 31, 1996).      2.      “This Grievance Board has previously determined that providing a full day of inservice training prior to administration of a competency test to a regularly employed school service personnel employee is mandatory. Quintrell v. Lincoln County Bd. of Educ., Docket No. 95-22-051 (Aug. 31, 1995), aff'd, Cir. Ct. of Kanawha County No. 95-AA-241 (Apr. 30, 1996). See Marion County Bd. of Educ. v. Bonfantino, 179 W. Va. 202, 366 S.E.2d 650 (1988).” Bailey v. Logan County Bd. of Educ., Docket No. 97-23-436 (Feb. 27, 1998). “[T]he purpose of the inservice training is to acquaint the applicant with the test content, scoring, and format, and to offer the applicant a chance to practice or 'brush up on' the necessary skills. Quintrell v. Lincoln County Bd. of Educ., Docket No. 95-22-05 (Aug. 31, 1995).” Edmonds v. Lincoln County Bd. of Educ., Docket No. 97-22-120 (May 27, 1998).
      3.      KBOE failed to provide eight hours of training to Grievant prior to administering the competency test to him, in violation of W. Va. Code § 18A-4-8e.

      Accordingly, this grievance is GRANTED. Respondent, Kanawha County Board of Education is ORDERED to provide Grievant a full eight hours of training, and allow him to take the painter competency test. If Grievant passes the painter competency test, the Kanawha County Board of Education is to place Grievant in one of the painter positions, retroactive to July 3, 2000, the date the first person was hired into a position, and to pay him any back pay to which he is entitled, plus interest at the statutory rate, from July 3, 2000.

      Any party may appeal this Decision to the Circuit Court of Kanawha 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 sonamed. 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:      December 22, 2000


Footnote: 1
This grievance was filed on or about July 21, 2000. Grievant's supervisor responded at Level I on that same day that she was without authority to resolve the grievance. Grievant appealed to Level II, where a hearing was held on August 29, 2000. A Level II decision was issued on September 8, 2000, granting Grievant a new training session and placement in a painter position if he passed the competency test. As the decision did not grant Grievant back pay should he be placed in the position, Grievant waived Level III, appealing to Level IV on September 20, 2000. The parties appeared for a Level IV hearing on November 2, 2000, and submitted the grievance for decision based upon the Level II record, supplemented by a stipulation of fact, and by written argument. Grievant was represented by John Roush, Esquire, and Respondent was represented by James W. Withrow, Esquire. This grievance became mature for decision upon receipt of Grievant's written argument on December 7, 2000.