GLENN E. MCMAHAN,
Grievant,
v. Docket No. 99-15-529
HANCOCK COUNTY BOARD OF EDUCATION,
Respondent.
Grievant, Glenn E. McMahan, employed by the Hancock County Board of Education
(HCBOE) as a custodian, filed a level one grievance on or about October 28, 1999, in
which he alleged a violation of W. Va. Code §18A-4-8a when additional cleaning duties
were made part of his schedule. For relief, Grievant seeks the return of his original
schedule, and the removal of the additional cleaning duties. The grievance was denied
at levels one and two, and HCBOE waived consideration at level three, as is permitted by
W. Va. Code §18-29-4(c). Appeal was made to level four on December 21, 1999, and an
evidentiary hearing was conducted at the Grievance Board's Wheeling office on March 2,
2000. Grievant was represented by John E. Roush, Esq., of WVSSPA, HCBOE was
represented by William T. Fahey, Esq., Assistant Prosecuting Attorney of Hancock County.
The matter became mature for decision upon receipt of the parties proposed findings of
fact and conclusions of law on or before April 4, 2000.
The facts of this matter are undisputed and may be set forth as the following formal
findings of fact.
Findings of Fact
1. Grievant is employed by HCBOE as a full-time custodian assigned to Allison
Elementary School (AES) at all times pertinent to this decision. 2. Prior to the 1998-1999 school year, three full-time custodians were assigned
to AES; however, pursuant to a reduction in force only two and one-half custodial positions
were assigned to AES for the 1999-2000 year.
3. Due to the reduction in force, there was a realignment of the custodial duties
at the beginning of the 1999-2000 school year. As a result, Grievant was asked to sweep
the stage twice a week and to sweep two computer rooms three times per week, effective
on or about October 21, 1999.
4. By Grievant's own estimation, it requires five minutes to sweep the stage,
and approximately twenty minutes to clean the two computer rooms, for a total of seventy
minutes per week.
5. On or about October 28, 1999, Grievant transferred into a daytime
assignment at AES vacated during a leave of absence. This assignment concluded in
January 2000, and Grievant returned to his permanent position.
6. HCBOE instituted a checklist for all janitors within the building as part of an
analysis of the distribution of work, and concluded the assignments to be comparable.
Discussion
As this grievance does not involve a disciplinary matter, Grievant has the burden
of proving each element of his 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 testified that he feels pressured to complete the additional duties assigned,
and perceives the suggestion that he visit another school to observe how they function
with reduced staff, and keeping a checklist, are implications that he needs to do better.
He explained that he amended his duties and began cleaning the bathrooms every other
day to accommodate the additional duties, but later found that to be an unsatisfactory
alternative. He concluded that he now works fifteen to thirty minutes of overtime each day
to complete his duties.
HCBOE Superintendent Charles Chandler denied that either allowing Grievant to
visit another school, or maintaining a checklist, was intended to be a message that
Grievant's work was unsatisfactory, but was only to assist him and the school
administrators. He concluded that the workload was equitable, and that any changes to
Grievant's schedule have been insignificant.
W. Va. Code §18A-4-8a (7) provides that [n]o service employee may have his or
her daily work schedule changed during the school year without the employee's written
consent . . . . In the present matter, Grievant's schedule was not changed at all. His work
hours remain exactly the same as they were at the beginning of the year. He has had
some additional duties assigned to him; however, by his own estimation, those duties
require only five minutes two nights a week, and twenty minutes the remaining three nights
a week, to complete. These duties could reasonably be integrated into an eight hour shift,
and cannot possibly require that he work up to thirty minutes of overtime each day.
There is no evidence that Grievant's work has been criticized, and there has been
no discipline imposed for his failure to complete his duties, or any failure to complete hisduties satisfactorily. Any pressure perceived by Grievant appears to be self-imposed. Any
changes to his schedule are minimal, and do not warrant any relief.
In addition to the foregoing findings of fact and discussion, it is appropriate to make
the following formal conclusions of law.
Conclusions of Law
1. As this grievance does not involve a disciplinary matter, Grievant has the
burden of proving each element of his 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. Grievant failed to prove by a preponderance of the evidence that the
changes made to his daily schedule were in violation of
W. Va. Code §18A-4-8a, or that
he was otherwise entitled to any relief.
Accordingly, the grievance is
DENIED.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of Hancock County and such appeal must be filed within thirty (30) days ofreceipt 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.
Date: May 26, 2000 __________________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE