RONALD KING,
            Grievant,

v.

DOCKET NO. 98-CORR-502D

DIVISION OF CORRECTIONS/
MT. OLIVE CORRECTIONAL COMPLEX,
            Respondent.

ORDER DENYING DEFAULT

      On November 17, 1998, Grievant, Ronald King, filed a grievance over his suspension with his employer, the Division of Corrections ("Corrections"). Subsequently, he filed a Notice of Default Judgment, in the above-styled grievance on December 9, 1998, in accordance with W. Va. Code § 29-6A-3(a)(2). Respondent responded to this Notice on December 14, 1998, stating the Level I Decision had been issued in a timely manner; thus no default had occurred.
      This grievance eventually came to Level IV after Grievant's suspension was extended, and he was subsequently terminated.   (See footnote 1)  After multiple continuances for good cause shown, a Level IV hearing on all issues was held in the Grievance Board's Charleston, West Virginia office on November 8, 1999, and March 23, 2000. The default issue was not addressed by the parties until the second day of hearing, and this default claim became mature for decision on that date, as the parties elected not to submit proposed findings of fact and conclusions of law on that issue.   (See footnote 2)  After the second day ofhearing, the parties decided no further evidence needed to be presented, and the case would be become mature for decision in May, after receipt of the parties' proposed findings of fact and conclusions of law.
      After a detailed review of the record in its entirety the undersigned Administrative Law Judge makes the following Findings of Fact pertinent to this matter.
Findings of Fact

      1.      Grievant dated his grievance November 17, 1998, and mailed it by certified mail on November 19, 1998, to Deputy Warden M. V. Coleman.
      2.      The grievance was received in the Deputy Warden Coleman's office on November 20, 1998.
      3.      On November 30, 1998, Deputy Warden Coleman issued a Level I Decision on the suspension, and denied the grievance. Deputy Warden Coleman noted in this Decision that he had received the grievance on November 24, 1998.
      4.      On December 9, 1998, Grievant sent a Notice of Default to Deputy Warden Coleman and stated that the Level I response had exceeded the five day time limit for issuing the Decision.
      5.      On December 14, 1998, Deputy Warden Coleman wrote to Grievant stating he had received Grievant's Notice of Default and asserted the time frames had been followed.
Discussion

      The issue of default in a grievance filed by a state employee came within the jurisdiction of the Grievance Board in 1998. On March 13, 1998, the West VirginiaLegislature passed House Bill 4314, which, among other things, added a default provision to the state employees grievance procedure, effective July 1, 1998.   (See footnote 3)  That Bill amended W. Va. Code § 29-6A-3(a), adding the following paragraph relevant to this matter:

      In addition, House Bill 4314 added the following language to W. Va. Code § 29-6A- 5(a): "[t]he [grievance] board has jurisdiction regarding procedural matters at levels two and three of the grievance procedure."
      This Grievance Board has previously adjudicated related issues arising under the default provision in the grievance statute covering education employees, W. Va. Code § 18-29-3(a). See, e.g., Ehle v. Bd. of Directors, Docket No. 97-BOD-483 (May 14, 1998); Gruen v. Bd. of Directors, Docket No. 94-BOD-256 (Nov. 30, 1994); Wadbrook v. W. Va. Bd. of Directors, Docket No. 93-BOD-214 (Aug. 31, 1993); Flowers v. W. Va. Bd. ofTrustees, Docket No. 92-BOT-340 (Feb. 26, 1993). Because Grievant is claiming he prevailed by default under the statute, he bears the burden of establishing such default by a preponderance of the evidence. Friend v. W. Va. Dep't of Health & Human Resources, Docket No. 98-HHR-346D (Nov. 25, 1998). A preponderance of the evidence is generally recognized as evidence of greater weight, or which is more convincing than the evidence which is offered in opposition to it. Hunt v. W. Va. Bureau of Employment Programs, Docket No. 97-BEP-412 (Dec. 31, 1997); Petry v. Kanawha County Bd. of Educ., Docket No. 96-20-380 (Mar. 18, 1997).
      W. Va. Code § 29-6A-4(a) provides as follows regarding when Respondent must respond at Level I, "[t]he immediate supervisor shall issue a written decision within six days of the receipt of the written grievance." When deciding whether a default occurred, it is necessary to see how many days passed from the time of receipt of the grievance and the issuance of the Level I Decision. This grievance was received in Deputy Warden Coleman's office on November 20, 1998. It does not matter that he personally did not receive the grievance until November 24, 1998.
      In counting days the undersigned Administrative Law Judge is guided by various statutes and rules. W. Va. Code §29-6A-2(c) defines "days" as "working days exclusive of Saturday, Sunday or official holidays." Additionally, Rule 6 of the West Virginia Rules of Civil Procedure states:

See Perdue v. Hess, 199 W. Va. 299, 484 S.E.2d 182 (1997); Parkulo v. W. Va. Bd. of Probation and Parole, 199 W. Va. 161, 483 S.E.2d 507 (1996); Salem v, Franklin, 179 W. Va. 21, 365 S.E.2d 66 (1987).
      In applying these guidelines to the issue at hand, the date Deputy Warden Coleman's office received the grievance, Friday, November 20, 1998, would not be counted. The following Monday, Tuesday, and Wednesday, November 23, 24, and 25 would be counted. Thursday, November 26, would not be counted as it was Thanksgiving, an official state holiday. There is a question as to whether Friday, November 27, 1998, should be counted.   (See footnote 4)  Monday, November 30, 1998, the date the Decision was issued, would be counted. Counting the dates of 23, 24, 25, and 30 would total up to four days; and adding November 27, 1998 would still bring the number to only five days. This number is within the time frame specified in W. Va. Code § 29-6A-4(a). Accordingly, Respondent cannot be found to be in default.       The above-discussion will be supplemented by the following Conclusions of Law.
      
Conclusions of Law

      1.      "The grievant prevails by default if a grievance evaluator required to respond to a grievance at any level fails to make a required response in the time limits required in this article, unless prevented from doing so directly as a result of sickness, injury, excusable neglect, unavoidable cause or fraud." W. Va. Code §29-6A-3(a).
      2.      Pursuant to W. Va. Code § 29-6A-4(a), Respondent must respond at Level I in the following manner, "[t]he immediate supervisor shall issue a written decision within six days of the receipt of the written grievance."
      3.       W. Va. Code §29-6A-2(c) defines "days" as "working days exclusive of Saturday, Sunday or official holidays."
      4.      Rule 6 of the West Virginia Rules of Civil Procedure states, "[i]n computing any period of time prescribed or allowed by these rules, by the local rules of any court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday or a legal holiday. . . . 'legal holiday' includes . . . Thanksgiving Day . . . ."
      5.      Respondent issued the denial of the grievance within five days.
      6.      Respondent's response to the Level I grievance was within the time frames specified by W. Va. Code § 29-6A-4(a), thus no default occurred.
            Accordingly, Grievant's Motion for Default is DENIED. This matter will remain of the dockets of this Grievance Board for a Level IV Decision of the merits of the cases dealing with Grievant's suspension and termination.
                                                _________________________                                                        JANIS I. REYNOLDS
                                                 Administrative Law Judge

Dated: April 28, 2000.


Footnote: 1
      There was no default issue noted by the parties on Grievant's second suspension or his termination.
Footnote: 2
      Grievant was represented by Elaine Harris from the Communication Workers' of America, and Respondent was represented by General Counsel Leslie Kiser Tyree.
Footnote: 3
       This provision is applicable only to grievances filed on or after July 1, 1998. Jenkins-Martin v. Bureau of Employment Programs, Docket No. 98-BEP-285 (Sept. 24, 1998).
Footnote: 4
      There is a question whether this day should be counted as an "official holiday" as state employees were given this day off by Governor Cecil Underwood. No evidence was presented that Corrections did not receive this day off, and that Deputy Warden Coleman was required to work. However, this issue does not need to be decided, as whether the day is counted or not, would not change the end result.