CHARLES R. RIFFLE,
            Grievant,

v.                                                       Docket No. 99-DOH-364

WEST VIRGINIA DEPARTMENT OF TRANSPORTATION/
DIVISION OF HIGHWAYS,
            Respondent.

D E C I S I O N

      Grievant, Charles Riffle, filed this grievance on July 18, 1997, against his employer, the Division of Highways ("DOH"). His Statement of Grievance reads:

      This grievance was denied at all lower levels, with the Level III Decision issued August 2, 1999.   (See footnote 2)  Grievant appealed to Level IV and originally asked for a hearing. Later Grievant agreed the case could be decided on the record developed below.   (See footnote 3)  This casebecame mature for decision on December 17, 1999, after receipt of Grievant's proposed findings of fact and conclusions of law.
Issues and Arguments

      Grievant was suspended pursuant to Section 13.3 of the Division of Personnel Rules and Regulations. His suspension letter dated July 31, 1997,   (See footnote 4)  stated:

      Respondent maintains Grievant was guilty of insubordination for his failure to follow his supervisor's orders, and maintains this is not the first time Grievant has failed to follow this specific order, of which he is well aware. Respondent also notes Grievant has been previously disciplined for failure to follow this same order.
      In his Statement of Grievance, Grievant alleges this suspension was the result of reprisal, harassment and favoritism. Since no evidence was presented on these issues at Level III, these arguments are deemed abandoned. At Level III, the main thrust of Grievant's argument was that since a certain required form, MT-41-41, was not posted as required by DOH regulations, Grievant was not aware of or did not have to follow the directions of his supervisor. Grievant also appears to argue unless he was directlyordered to go home, his failure to do so was not insubordination. Further, Grievant says he was suspended for failing to report to work on Friday, and he did come to work.
      After a detailed review of the record in its entirety, the undersigned Administrative Law Judge makes the following Findings of Fact.
Findings of Fact

      1.      Grievant is employed as a Transportation Crew Chief in Maintenance in District Seven. This is a supervisory position, and Grievant serves as a Crew Leader.
      2.      Grievant has been employed by DOH since 1970, and has served in a supervisory capacity for some time.
      3.      "The normal workweek for the Division of Highways . . . consist[s] of five (5) days of eight (8) hours." Grt. Ex. No. 3 at Level III, Item 2 A 1.
      4.       District Engineers have the authority to change this normal work week if it benefits DOH. Grt. Ex. No. 3 at Level III, Item 2 A 3.
      5.      Management also has "the right to establish work schedules necessary to achieve the goals and objectives of the Division." Grt. Ex. No. 3 at Level III, Item 2 A 12.
      6.      Since the early 1980's, Districts have been allowed to work four ten-hour days during the summer months, as opposed to working the "normal" 5 eight-hour days.
      7.      In District 7, Marvin Murphy, the District Engineer, has authorized his supervisees to work four ten-hour days during the summer for at least ten years.
      8.      During the summer, when the majority of the employees are working four ten- hour days, the districts are required to have a supervisor present on Fridays in case of anemergency. This supervisor can call out other employees as needed. Grievant is one of the employees who is expected to work an occasional Friday, during the summer.
      9.      The summer period runs from approximately the first of April through the first week of September. Thus, Grievant would be expected to work approximately three to four Fridays during this nineteen week period.
      10.      In District 7, William Clayton, the Lewis County Superintendent, is in charge of filling out this schedule for Grievant and the other supervisors who are to work on Fridays.
      11.      District Seven has been somewhat remiss in filling out the MT-41 form. This form is not an attendance or scheduling form as argued by Grievant, but is a form which identifies the work to be performed over a two week period. It has nothing to do with scheduling employees to work, but it does give employees an idea of the work they will be performing on a specific day. An MT-41-41 is subject to change based on the weather, staffing, and any emergencies that might arise. (Test. Mr. Murphy and Mr. Clayton).
      11.      In March or April 1997, Mr. Clayton gave Grievant a copy of the Friday work schedule for the Summer of 1997. Grievant was scheduled to work on Friday, May 15, 1997.
      12.      It has been the long-standing practice of DOH that when a supervisor is scheduled to work a Friday, in the summer, he is to take one day off during the first part of the same week. It is left to each supervisor's discretion whether he takes off Monday, Tuesday, Wednesday, or Thursday.
      13.      Grievant is and was aware of this practice. (Test. Grievant).      14.      For some time Grievant has failed to follow this accepted practice, and has received prior disciplinary action for this failure to follow these orders.
      15.      During the week before Grievant was scheduled to work on the following Friday, Mr. Clayton reminded Grievant he would need to take off a day the next week.
      16.      During the week Grievant was scheduled to work on Friday, Mr. Clayton reminded Grievant he needed to take off one of the other days of the week.
      17.      Mr. Clayton did not order Grievant to take a day off, and he did not tell Grievant which day to take off, as this is left to the employee's discretion.
      18.      Grievant did not take a day off prior to Friday. On Thursday, Mr. Clayton told Grievant not to come to come to work on Friday as DOH would not pay overtime.
      19.      Grievant came into work on Friday and turned in a time sheet requesting two hours of compensation for the time it took to pick up his check. Employees are not compensated for picking up their check on a day off.
      20.      No other supervisor in District Seven has refused to abide by the current practice of taking a day off when they are scheduled to work the following Friday.   (See footnote 5) 
      21.      Grievant has been told over and over to take a day off, and he has only complied with this practice once when Mr. Clayton ordered Grievant to take a Thursday off. Grievant then did not come to work the following Friday, and he did not call to report off. (Test. Mr. Clayton).
      22.      Grievant was aware of the need to take a day off and refused to do so.      23.      Grievant has informed Mr. Clayton that instead of taking a day off, he will just work five ten hour days and receive overtime.
      24.      District Seven, except in emergencies, schedules overtime as needed. In these instances overtime is not needed. When the supervisor, who is scheduled to work the Friday is absent during the week, another employee is upgraded to Crew Leader if there is a need. At times, because of the work to be performed, there is no need for a Crew Leader. (Test. Mr. Clayton).
Discussion

      The burden of proof in disciplinary matters rests with the employer, and the employer must meet that burden by proving the charges against an employee by a preponderance of the evidence. W. Va. Code § 29-6A-6; Ramey v. W. Va. Dep't of Health, Docket No. H-88-005 (Dec. 6, 1988). "The preponderance standard generally requires proof that a reasonable person would accept as sufficient that a contested fact is more likely true than not." Leichliter v. W. Va. Dep't of Health and Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, the employer has not met its burden. Id.
      The issue here is whether Grievant was insubordinate for failing to follow his supervisor's directives. Insubordination involves the "willful failure or refusal to obey reasonable orders of a superior entitled to give such order." Riddle v. Bd. of Directors/So. W. Va. Community College, Docket No. 93-BOD-309 (May 31, 1994); Webb v. Mason County Bd. of Educ., Docket No. 26-89-004 (May 1, 1989). This Grievance Board has previously recognized that insubordination "encompasses more than an explicit order andsubsequent refusal to carry it out. It may also involve a flagrant or willful disregard for implied directions of an employer." Sexton v. Marshall Univ., Docket No. BOR2-88-029-4 (May 25, 1988) (citing Weber v. Buncombe County Bd. of Educ., 266 S.E.2d 42 (N.C. 1980)). In order to establish insubordination, an employer must demonstrate that a policy or directive that applied to the employee was in existence at the time of the violation, and the employee's failure to comply was sufficiently knowing and intentional to constitute the defiance of authority inherent in a charge of insubordination. Conner v. Barbour County Bd. of Educ., Docket No. 94-01-394 (Jan. 31, 1995).
      This view of insubordination is consistent with the treatment accorded insubordination by arbitrators in the private sector. The scope of insubordination as an offense was addressed extensively in In re Burton Manufacturing Co. v. Boilermakers Local 590, 82 Lab. Arb. (BNA) 1228 (1994) (Holley, Arb.). There, Arbitrator Holley noted:

Burton, supra at 1234 (citing Trotta, Arbitration of Labor-Management Disputes 282-283 (1974)).

      An employee's belief that management's decisions are incorrect, absent a threat to the employee's health or safety, does not confer upon him the right to ignore or disregard the order, rule, or directive. Lilly v. Fayette County Bd. of Educ., Docket No. 97-10-084 (Feb. 11, 1998 ). See Parker v. W. Va. Dep't of Health and Human Resources, Docket No. 97-HHR-042B (Sept. 30, 1997). See generally, Meckley v. Kanawha County Bd. of Educ.,181 W. Va. 657, 383 S.E.2d 839 (1989) (per curiam). "Employees are expected to respect authority and do not have the unfettered discretion to disobey or ignore clear instructions." Reynolds v. Kanawha-Charleston Health Dep't, Docket No. 90-H-128 (Aug. 8, 1990) (citing Meads v. Veterans' Admin. 36 M.S.P.R. 574 (1988)). Additionally, an employer has the right to expect subordinate personnel "to not manifest disrespect toward supervisory personnel which undermines their status, prestige, and authority . . . ." McKinney v. Wyoming County Bd. of Educ., Docket No. 92-55-112 (Aug. 3, 1992) (citing Burton, supra).       "Few defenses are available to the employee who disobeys a lawful directive; the prudent employee complies first[,] and expresses his disagreement later." Hundley v. W. Va. Div. of Corrections, Docket No. 96-CORR-399 (Oct. 27, 1997): See Maxey v. W. Va. Dep't of Human Resources, Docket No. 93-HHR-424 (Feb. 28, 1995). "Generally, an employee must obey a supervisor's order and then take appropriate action to challenge the validity of the supervisor's order." Reynolds, supra. "An employee may not disregard a direct order of a superior based upon the belief that the order is unreasonable." McKinney, supra. "Essentially, an employer can meet its burden [of proof] by showing that the person giving the order had the authority to do so, and that the order did not require the employee to act illegally or place himself or co-workers at unnecessary risk." Surber v. Mingo County Bd. of Educ., Docket No. 96-29-15 (Dec. 12, 1996). See Hundley, supra; Stover v. Mason County Bd. of Educ., Docket No. 95-26-078 (Sept. 25, 1995).
      The answer to whether Grievant was insubordinate is clear from the testimony presented. Grievant willfully refused "to obey reasonable orders of a superior entitled to give such order." Riddle, supra; Webb, supra. To allow Grievant to manifest thisbehavior because he was not directly ordered to go home on a specific day would be to raise form over substance. Although this practice is not a written Policy, insubordination also involves the "wilful disregard for the implied directions of an employer." Sexton, supra. Respondent has demonstrated that "a policy or directive that applied to the employee was in existence at the time of the violation, and the employee's failure to comply was sufficiently knowing and intentional to constitute the defiance of authority inherent in a charge of insubordination." Conner, supra. The testimony is clear that Grievant knew of the policy, and he has continuously failed to comply with the directive for some time. Grievant has also been previously disciplined for the same actions. A two day suspension is certainly an acceptable punishment for Grievant's behavior, especially since he is in a supervisory position.

Conclusions of Law

      1.      The burden of proof in disciplinary matters rests with the employer, and the employer must meet that burden by proving the charges against an employee by a preponderance of the evidence. W. Va. Code § 29-6A-6; Ramey v. W. Va. Dep't of Health, Docket No. H-88-005 (Dec. 6, 1988). "The preponderance standard generally requires proof that a reasonable person would accept as sufficient that a contested fact is more likely true than not." Leichliter v. W. Va. Dep't of Health and Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, the employer has not met its burden. Id.       2.      Insubordination includes “willful failure or refusal to obey reasonable orders of a superior entitled to give such order.” Riddle v. Bd. of Directors/So. W. Va. Community College, Docket No. 93-BOD-309 (May 31, 1994); Webb v. Mason County Bd. of Educ., Docket No. 26-89-004 (May 1, 1989).
      3.      “Insubordination encompasses more than an explicit order and refusal to carry it out. It may also involve a flagrant or willful disregard for implied directions of an employer.” Nicholson, supra; Sexton v. Marshall Univ., Docket No. BOR2-88-029-4 (May 20, 1988), aff'd 182 W. Va. 294, 387 S.E.2d 529 (1989).
      4.      In order to establish insubordination, the employer must demonstrate that the employee's failure to comply with a directive was sufficiently knowing and intentional to constitute the defiance of authority inherent in a charge of insubordination. Conner v. Barbour County Bd. of Educ., Docket No. 94-01-394 (Jan. 31, 1995).
      5.      “Employees are expected to respect authority and do not have the unfettered discretion to disobey or ignore clear instructions.” Reynolds v. Kanawha-Charleston Health Dep't, Docket No. 90-H-128 (Aug. 8, 1990), citing Meads v. Veterans Admin., 36 M.S.P.R. 574 (1988); Daniel v. U.S. Postal Serv., 16 M.S.P.R. 486 (1983); Davis v. Smithsonian Inst., 13 M.S.P.R. 77 (1983).
      6.      DOH has met its burden of proof and demonstrated Grievant was guilty of insubordination when he refused to abide by his supervisor's instructions to take a day off prior to his working his assigned Friday.
      Accordingly, this grievance is DENIED.
      Any party, or the West Virginia Division of Personnel, may appeal this decision to the Circuit Court of Kanawha County, or to the "circuit court of the county in which the grievance occurred." Any such appeal must be filed within thirty (30) days of receipt of this decision. W. Va. Code § 29-6A-7 (1998). 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.
                                                                                                  JANIS I. REYNOLDS
                                                ADMINISTRATIVE LAW JUDGE

Dated: January 25, 2000


Footnote: 1
      Although the Statement of Grievance has an arrow indicating additional information, Grievant's attorney stated there were no further details.
Footnote: 2
      Grievant was represented by Attorney Basil Legg, and Respondent was represented by DOH Attorney, Timbera Wilcox.
Footnote: 3
      It should be noted that Grievant testified at the Level III hearing to present evidence for a Motion for Summary Judgement. This testimony was not allowed, at Grievant's request, by the Level III Grievance Evaluator to be utilized as a portion of the hearing on the merits of the case. Accordingly, Grievant did not testify, nor did he present any evidence at Level III to support his contentions, other than the cross-examination of Respondent's witnesses. However, during a Level IV pre-hearing conference, Grievant's attorney indicated he believed Grievant's testimony at Level III was clear, and a Level IV hearing would not be needed. Given this statement, the undersigned Administrative Law Judge reviewed Grievant's testimony in light of the merits of the case.
      

Footnote: 4
      There were two suspension letters placed into the record. Apparently, Grievant was not present at work during the time the first suspension was scheduled, and the letter needed to be reissued. Grievant's attorney argued Grievant may have been present during that time, and it was an error to reissue this letter when Grievant could have served the suspension the first time it was issued. Grievant presented no evidence on this issue.
Footnote: 5
      Although not germane to this grievance, testimony was elicited that Grievant is still refusing to comply with this reasonable order of his supervisor.