VIOLET NAPIER,

                  Grievant,

      v.

DOCKET NO. 00-29-086

MINGO COUNTY BOARD OF EDUCATION,

                  Respondent.

D E C I S I O N

      Grievant, Violet Napier, filed this grievance against her employer, the Mingo County Board of Education (“Board”), on or about December 7, 1999:


      The grievance was denied at level one on December 14, 1999, by Grievant's Principal, B. Thomas Slone. A level two hearing was held on February 10, 2000, and a decision denying the grievance was issued by W. C. Totten, the Superintendent's designee, on February 22, 2000. Grievant by-passed level three and appealed to levelfour on March 3, 2000. A level four hearing was held on May 8, 2000, before   (See footnote 1)  Administrative Law Judge Lewis Brewer, and this matter became mature for decision on June 30, 2000, the deadline for the parties' proposed findings of fact and conclusions of law. Grievant was represented by John E. Roush, Esq., West Virginia School Service Personnel Association. The Board was represented at level two by David Temple, and at level four by Hannah B. Curry, Esq., Kay, Casto and Chaney.
SUMMARY OF EVIDENCE

LII and LIV Grievant Exhibits
None.
LII Board Exhibits
Ex. 1 - Ex. 2 -
LIV Board Exhibits

Ex. A -

Ex. B - Ex. C - Ex. D - Ex. E - Ex. F - Testimony

      Grievant testified in her own behalf, and presented the testimony of Rose Anna Martin. The Board presented the testimony of Bill Kirk, Karen Browning, and David Temple.

FINDINGS OF FACT

      I find, by a preponderance of the evidence, the following facts.
      1.      Grievant is employed by the Board as a Special Education Aide at Burch Middle School.
      2.      The Board hires special education aides as “itinerant aides” due to the challenging and constantly changing needs of the special education student population. Schedules are modified only as the needs of students mandate a modification in assignment or schedule.
      3.      Jobs are posted for the school in which a special education aide will perform his/her classroom duties and include notice of the additional responsibility of riding a bus as needed. Such job postings do not identify a particular student or students who will be served while riding a bus. Aides are assigned to a driver and bus at the beginning of the school term and assist through the duration of a school year, when the need arises.
      4.      At the beginning of the 1999-2000 school year, Transportation Director Bill Kirk and Special Education Director Karen Browning conducted an inservice training for special education aides and reminded them of the possibility of modifications in their existing job assignments and responsibilities due to the constantly changing needs and requirements of the special education student population. LIV Board Ex. F.      5.      At the beginning of the 1999-2000 school year, Mr. Kirk assigned Grievant to Bus Route 9607. Bus 9607 transported students to Burch High School and Burch Middle School. At that time, another special education aide, Carolyn Dempsey, was also assigned to Bus 9607. Ms. Dempsey's school assignment was Burch High School.
      6.      In the morning, Bus 9607 dropped students off first at Burch High School, and then proceeded to Burch Middle School. Therefore, Ms. Dempsey would depart the bus at Burch High School.
      7.      Originally, Mr. Kirk envisioned Grievant boarding the bus at Taylorville, the first stop along the Bus 9607 route for a special education student. However, as Ms. Dempsey was also riding the same bus, and would be on the bus at Taylorville, Mr. Kirk decided Grievant could board the bus at Burch High School, when Ms. Dempsey departed the bus.
      8.      Therefore, Grievant's schedule, at the beginning of the 1999-2000 school year, required her to meet bus 9607 at Burch High School at approximately 7:20 a.m., to provide services to a student on the bus from the high school to the middle school. That trip takes approximately five (5) minutes. Once at the middle school, Grievant performed classroom duties until 2:45 p.m. At that point she reboarded the bus for the five (5) minute trip back to the high school. Her daily duties concluded there at 2:50 p.m.
      9.      In October 1999, the Board received notification by the Mingo County Circuit Court that two students in the Williamson area would be transported to Burch Middle School and Burch High School by the Mingo County transportation system, which caused a shift in the schedules of three special education aides. This was cooperatively workedout among those involved, with overtime compensation offered to those working beyond an eight-hour day. A written memorandum dated November 4, 1999, was mailed to all the aides affected by the bus schedule realignment, including Grievant, informing them of the final modifications.
      9.      Ms. Dempsey was removed from Bus 9607 and assigned to another bus as a result of these modifications. Mr. Kirk then instructed Grievant she would be resuming her original bus route and boarding at Taylorville.
      10.      Taylorville is less than ½ mile away from Burch High School. Grievant arrived at Taylorville at 7:10 a.m. to board the bus. In the evening, Grievant was deposited at Taylorville at 2:55 p.m.
      11.      In December 1999, another special education student began riding Bus 9607. Mr. Kirk advised Grievant she would need to make arrangements to meet the new student in Music, in order to assist him in boarding the bus. Grievant made arrangements to drive to Hannah Lumber and boarded the bus at 6:40 a.m. Grievant made the return trip in the afternoon, deboarding the bus at 3:10 p.m.
      12.      Grievant complained about her extended day, and had a meeting in early December with Mr. Kirk, Ms. Browning, David Temple, Administrative Assistant, and Patricia Grubb, President of the Mingo County School Service Personnel Association. Grievant did not want any overtime or changes in her work schedule. As a result of that meeting, Mr. Kirk was instructed by Mr. Temple to work the schedule in a manner that would not necessitate overtime for Grievant.       13.      Mr. Kirk made adjustments within the existing bus schedule to accomplish this request. Subsequently, Grievant was instructed to meet the bus at the special education student's home instead of at Hannah Lumber. This allowed Grievant to board the bus with the student at 7:05 a.m. Grievant returned to the student's home in the afternoon at 3:10.
      
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 claims the Board violated W. Va. Code §§ 18A-4-8a and 18-20-1c when it made changes to her original work schedule without her consent. The Board denies it has violated any Code provisions, or that its actions in adjusting the special education aides' bus schedules was arbitrary or capricious.
      W. Va. Code
§ 18A-4-8a(7) provides:
      This issue has already been determined by the Grievance Board in Sipple v. Mingo County Bd. of Educ., Docket No. 95-29-487 (Mar. 27, 1996). Sipple involved a change to the schedule of a special education aide required to assist special education students onschool-provided transportation. The aide maintained the school board violated W. Va. Code § 18A-4-8a after it relieved her of bus duties for four days and then reassigned her to a different bus route as a result of a change in the special education student population for which she was responsible. The Administrative Law Judge held in Sipple that:

Id. (citations omitted). The Grievance Board concluded the school board's modifications to the aide's transportation duties and schedule were not arbitrary or capricious or schedule “changes” contemplated by the West Virginia Legislature under W. Va. Code § 18A-4-8a, because they were made in response to the changing needs of the student population and within the parameters of the aide's contract.
      This Grievance Board adheres to the doctrine of stare decisis   (See footnote 2)  in adjudicating grievances that come before it. Chafin v. W. Va. Dep't of Health & Human Res., Docket No. 92-HHR-132 (July 24, 1992), citing Dailey v. Bechtel Corp., 157 W. Va. 1023, 207 S.E.2d 169 (1974). See also Belcher v. W. Va. Dep't of Transp./Div. of Highways, Docket No. 94-DOH-341 (Apr. 27, 1995). This adherence is founded upon a determination that the employees and employers whose relationships are decided by this Board are bestguided in their actions by a system that provides for predictability, while retaining the discretion necessary to effectuate the purposes of the statutes applied. Consistent with this approach, this Grievance Board follows precedents established by the Supreme Court of Appeals of West Virginia as the law of this jurisdiction. Likewise, prior decisions of this Grievance Board are followed unless a reasoned determination is made that the prior decision was clearly in error.
      The facts in the instant case are nearly identical to those of Sipple, and the issue of law is the same. Having been presented with no evidence or argument which would persuade me that the Administrative Law Judge's decision in Sipple was clearly wrong or contrary to law, I find that Sipple is good law and applicable to the case at hand. Consequently, Grievant's claim that the Board has violated W. Va. Code § 18A-4-8a(7) by changing her bus schedule is governed by Sipple and must fail.
      Grievant also claims the Board violated W. Va. Code § 18-20-1c, which provides that, “aides in the area of special education cannot be reassigned to more than one school without the employee's consent.” Grievant argues that, since she has responsibility on Bus 9607 for both high school and middle school students, she has, in effect, been assigned to two schools at one time without her consent. Grievant's argument is creative, but fails. This Grievance Board has indicated the language of Code § 18-20-1c, while not clear, seems to mean a special education aide cannot be assigned after the start of the school year to two or more schools at a time. See Conrad v. Nicholas County Bd. of Educ., Docket No. 97-34-388 (Jan. 12, 1998). The language of Code § 18-20-1c speaks toassignment at a school. Grievant's classroom assignment is at one school, Burch Middle School.
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.      County boards of education have broad discretion in personnel matters, including making job assignments and transfers, but must exercise that discretion in a manner which is not arbitrary or capricious. Dillon v. Wyoming County Bd. of Educ., 351 S.E.2d 58 (W. Va. 1986); Conrad v. Nicholas County Bd. of Educ., Docket No. 97-34-388 (Jan. 12, 1998); Mullins v. Logan County Bd. of Educ., Docket No. 94-23-283 (Sept. 25, 1995); Dodson v. McDowell County Bd. of Educ., Docket No. 93-33-243 (Feb. 15, 1994).
      3.      Grievances contending an employee's schedule has been changed in violation of W. Va. Code § 18A-4-8a, which limits changes in a school service employees' daily work schedule during the school year to those which are consented to in writing by the employee, must be decided on a case-by-case, fact-specific basis. Sipple v. Mingo County Bd. of Educ., Docket No. 95-29-487 (Mar. 27, 1996). See Conner v. Barbour County Bd. of Educ., Docket Nos. 93-01-543/544 (Jan. 31, 1995); Roberts v. Lincoln County Bd. of Educ., Docket No. 92-22-131 (Aug. 31, 1992).      4.       Courts may venture beyond the plain meaning of a statute in those instances where a literal application would produce an absurd result. State ex rel. Frazier v. Meadows, 193 W. Va. 20, 454 S.E.2d 65 (1994). A strict, literal intrepretation of W. Va. Code § 18A-4-8a would preclude a school board from ever changing a service employee's schedule, even slightly, as one school year technically ends on June 30 and a new school year begins each July 1. Sipple, supra; Froats v. Hancock County Bd. of Educ., Docket No. 89-15-414 (Dec. 18, 1989). Such a literal result would produce an absurd result, inconsistent with the apparent legislative intent of protecting school service employees from involuntary changes in their shift assignments. Sipple, supra.
      5.      Like bus operators, aides who assist special education students commuting to and from school on school-provided transportation, are assigned duties of an itinerant nature. Sipple, supra.
      6.      Notwithstanding the language in W. Va. Code § 18A-4-8a, restricting changes in a service employee's daily work schedule, a county board of education must have freedom to make reasonable changes to a service employee's daily work schedule, within the parameters of her contract, some of which cannot reasonably be effected until shortly after school starts. Sipple, supra. See Conner, supra; Froats; supra. Accord, Conner v. Barbour County Bd. of Educ., Docket No. 94-01-1100 (Aug. 2, 1995).
      7.      Grievant failed to prove by a preponderance of the evidence that the Board abused its discretion, acted in an arbitrary and capricious manner, or violated W. Va. Code § 18A-4-8a or Board policy when it made reasonable modifications to her bus schedule asan aide assigned to assist special education students commuting on school-provided transportation mandated by the changing needs of the student population.
      8.      W. Va. Code § 18-20-1c states than an aide cannot be assigned after the start of the school year to two or more schools at a time. See Conrad v. Nicholas County Bd. of Educ., Docket No. 97-34-388 (Jan. 12, 1998). Grievant presented no evidence that she was or will be assigned to more than one school at a time.
      Accordingly, this Grievance is DENIED.
      Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of the Mingo 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 13, 2000
      


Footnote: 1
       This grievance was reassigned to the undersigned Administrative Law Judge on June 5, 2000.
Footnote: 2
       Literally, “to stand by things decided.” This is the doctrine that when a court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases, where the facts are substantially the same. Black's Law Dictionary 1577 (Revised 4th Ed. 1968). See W. Va. Dep't of Admin. v. W. Va. Dept. of Health & Human Resources, 451 S.E.2d 768, 771 (W. Va. 1994).