ROGER P. STRICKLEN,
Grievant,
v.
DOCKET NO. 00-20-339
KANAWHA COUNTY BOARD OF EDUCATION,
Respondent.
D E C I S I O N
Grievant, Roger P. Stricklen, filed this grievance against his employer, the Kanawha
County Board of Education (Board) on July 3, 2000:
WV Code 18A-4-8b(1) Grievant acquired seniority in his category of
classification. WV Code 18A-4-8 Grievant was qualified. WV 18A-4-8e
Grievant meets the classification definition. Grievant is a regular full time
employee (custodian).
Relief sought: Grievant desires the position of painter/general maint. With
benefits and wages retroactive to 7-3-00.
The grievance was denied at the lower levels of the grievance process, and appealed to
level four on October 27, 2000. The parties agreed the grievance could be submitted on
the record developed at the lower levels, and this case became mature for decision on
November 13, 2000, the deadline for the parties' submission of proposed findings of fact
and conclusions of law. Grievant was represented by Frank Kemplin, Esq., United School
Service Employees Association of West Virginia, and the Board was represented by James
W. Withrow, Esq.
SUMMARY OF EVIDENCE
LII Evaluator's Exhibits
Ex. 1 -
LII Board Exhibits
Ex. 1 -
Transfer input sheet of Phyllis J. Morris, effective July 3, 2000.
Ex. 2 -
Transfer input sheet of Freddie J. Boyd, dated July 17, 2000.
Testimony
Grievant testified in his own behalf. The Board presented the testimony of Karen
Williams.
FINDINGS OF FACT
I find, by a preponderance of the evidence, the following facts.
1. Grievant is employed by the Board as a regular, full-time custodian at Elkview
Middle School. He has been employed as a full-time custodian for 11 years.
2. During the 1998-99 school year, Grievant applied for a posted position as a
painter. The regular painter was absent due to illness and the job was posted pursuant to
W. Va. Code § 18A-4-15(2).
(See footnote 1)
Grievant was the most senior regularly employed applicant
and, after passing the competency test, was selected to fill the position from February 11
through April 28, 1999, after which time he returned to his custodian position.
3. In November of 1999, Grievant was called by Ronald Thomas, the supervisor
of the paint crew, and asked to work for a regular painter, Jimmy Mize, who was trainingfor another job. The position was not a pursuant position. However, later in the school
year, that position was posted as a vacancy.
4. Grievant applied for the position when it was posted as a vacancy, but it was
awarded to a more senior qualified regular employee, Phyllis Morris. LII Board Ex. 1.
Grievant did not contest the filling of that position.
5. Another vacancy arose while Grievant was working in the position described
above. Another painter, Richard Snodgrass, transferred to a carpenter position, and
Grievant applied for the second vacancy.
6. The second painter position was awarded to Freddie J. Boyd, a regular
qualified employee with 22 years of seniority. Mr. Boyd had passed a competency test
approximately 20 years ago and had worked as a painter in the summers.
DISCUSSION
In non-disciplinary grievances, 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.
Grievant argues he should have received the painter position awarded to Freddie
J. Boyd, because he, Grievant, was working in the painter classification at the time of the
selection. Grievant further contends that since Mr. Boyd did not take the painter
competency test developed pursuant to
W. Va. Code § 18A-4-8e, he was not qualified
as a painter. The Board argues that, since Grievant was not filling in as a painter pursuant to a
long-term substitute position posted and filled according to
W. Va. Code §§ 18A-4-15(2)
and 18A-4-8b, he was not considered a regularly employed painter for purposes of filling
the subject vacancy. Further, the Board argues that Mr. Boyd achieved his qualifications
as a painter utilizing a test given long before the enactment of
W. Va. Code § 18A-4-8e,
and it did not act unlawfully or arbitrarily in determining it would recognize Mr. Boyd as a
qualified painter on that basis. I agree with the Board.
County boards of education are authorized to hire substitute service employees
pursuant to
W. Va. Code § 18A-4-15. Further, this statutory provision details specifically
when these substitutes may be assigned to fill-in for absent, regular, service employees.
In order for a substitute to gain entitlement to the rights, privileges and benefits of a regular
employment position, consistent with the mandates of
W. Va. Code § 18A-4-15(2), the
substitute must be hired by competitive bid, according to
W. Va. Code § 18A-4-8b, for the
remainder of the regular employee's leave of absence lasting over twenty-five days.
E.g.
Bays v. Putnam County Bd. of Educ., Docket No. 95-40-096 (July 21, 1995).
Pursuant to the clear and unambiguous language of
W. Va. Code § 18A-4-15(2),
Grievant did not legally obtain the status of a regular employee in the position in question.
Therefore, he was not entitled to the rights, privileges and benefits of that positions.
See
Bays,
supra. As Grievant did not acquire the painter position in accordance with
W. Va.
Code § 18A-4-15(2), he was not considered a regular employee for purposes of filling the
painter position. With regard to Mr. Boyd's qualifications, the Board determined it would recognize
qualifications received pursuant to competency testing which occurred prior to the
enactment of
W. Va. Code § 18A-4-8e.
(See footnote 2)
Mr. Boyd took a painter competency test
approximately twenty years ago, long before Section 18A-4-8e was enacted
(See footnote 3)
, and the
Board did not err or act in an arbitrary or capricious manner in determining it would
recognize Mr. Boyd's qualifications as a painter, and employ him over Grievant as the most
senior regular employee applicant.
1. 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. In order for a substitute to gain entitlement to the rights, privileges and
benefits of a regular employment position, consistent with the mandates of
W. Va. Code
§ 18A-4-15(2), the substitute must be hired by competitive bid, according to
W. Va. Code
§ 18A-4-8b, for the remainder of the regular employee's leave of absence lasting overtwenty-five days.
Bays v. Putnam County Bd. of Educ., Docket No. 95-40-096 (July 21,
1995).
3. Grievant did not obtain the November, 1999 substitute position pursuant to
W. Va. Code §18A-4-15(2), and therefore, did not acquire regular employment status as
a painter while filling that substitute position.
4. It is not arbitrary or capricious, or unlawful, for the Board to recognize an
employee's qualifications for a position achieved by passing a competency test that
predated the enactment of
W. Va. Code § 18A-4-8e.
5. Grievant has failed to prove by a preponderance of the evidence that the
Board violated or misinterpreted any statute, law, rule, or regulation when it did not select
him as the most senior qualified applicant for the painter position.
Accordingly, this grievance is DENIED.
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 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: December 28, 2000
Footnote: 1