DALE OLSON,
            Grievant,

v.                                                      Docket No. 95-BOT-081D

BOARD OF TRUSTEES/WEST
VIRGINIA UNIVERSITY,
            Respondent.

ORDER DENYING DEFAULT and GRANTING MOTION TO DISMISS

      Grievant, Dale Olson, filed this grievance against his employer, West Virginia University ("WVU") in 1994. Since that time, the grievance has had a long and tortured procedural history. At the present time, the first order of business is Grievant's Motion for this Grievance Board to review his default claims, and Respondent's Motion to Dismiss for numerous reasons, including failure to pursue and failure to file a grievance at Level II.
      Initially, a hearing was scheduled on Grievant's Motion for Default on September 15, 1999.   (See footnote 1)  Before that hearing, on August 26, 1999, a pre-hearing conference was conducted with Respondent's attorney, Bruce Walker, and Grievant's attorney, George Surmitis.   (See footnote 2)  Grievant stated the issue of default needed to be addressed. The history of the case and the ruling of Circuit Court Judge Fred Fox on the default issue were discussed. Respondent alleged the issue of default has been resolved at the circuit court level, and Grievant's case should be dismissed as he never apealled to Level II and failed to pursuethis action. Grievant has also raised the question of whether the Grievance Board currently has jurisdiction over the matter.
      The parties requested a continuation of the scheduled hearing and requested to brief the above-stated issues. This request was granted, and these issues became mature for decision on December 2, 1999, after receipt of the parties' briefs on the issues.
      After a detailed review of the record in its entirety, the undersigned Administrative Law Judge makes the following Findings of Fact about the history thus far in the case.
Findings of Fact

      1.      On August 2, 1994, Grievant, a professor in the College of Law, began the grievance procedure by requesting a conference with the Dean of the Law School, Teree Foster. He did not notify Dean Foster in advance that the purpose of the meeting was an informal conference, but she met with him at that time anyway.
      2.      After she had time to reflect on Grievant's complaints relating to merit increases, she attempted to schedule a meeting with Grievant. Grievant was unable to meet with Dean Foster either on August 10 or 11, 1994, so she sent him a written reply dated August 10, 1994, denying the grievance on this informal level.
      3.      On or about Tuesday, August 23, 1994, Grievant filed an undated, written, statutory "grievance" entitled "Statement of Demands". This lengthy statement was not on a grievance form, and it was rather unclear as to the grievable events and dates they occurred. Grievant requested as relief that he be given varying amounts of monetary compensation for the issues he raised.      3.      On Monday, August 30, 1994, Dean Foster issued her Level I Decision denying the grievance.
      4.      Grievant received the certified notice of this Decision on August 31, 1994, and signed for the Decision on September 1, 1994.
      5.      This Decision informed Grievant of the time frames and procedure for appealing the decision to Level II.
      6.      Grievant did not appeal to Level II, and did not discuss the Level I decision with Dean Foster.
      7.      The next action by Grievant was a letter dated February 10, 1995, written by Grievant's then attorney, John Ball, which informed Respondent that although Grievant had prevailed by default "no satisfaction of his entitlement to releif (sic) ha[d] been accorded." "Unconditional demand" was made for the relief demanded, and informed Respondent that a Writ of Mandamus would be filed if it failed "to comply with its legal obligation to satisfy this award." Respondent was also informed it was not to correspond with Grievant about this matter.
      8.      Respondent received this letter on February 14, 1995.
      9.      Because Respondent found the statute governing default, W. Va. Code § 18-29-3, to be unclear as to the proper course of action in this type of situation, Respondent scheduled a Level II hearing for February 16, 1995, so the hearing could be completed in time to meet the five day time limit on Respondent's filing to Level IV, so the default issue could be reviewed pursuant to W. Va. Code § 18-29-3(a).       10.      Per the above-stated directions in Finding of Fact of 7, this notice was sent only to Mr. Ball. On February 15, 1995, his secretary responded that Mr. Ball was not in the office and would not return until March 3, 1995.
      11.      On February 15, 1995, Respondent wrote Mr. Ball and directed information to his secretary that it could not continue the hearing without written permission to extend the time frames to do so, and it was unable to speak to Mr. Olson directly because of the directions of his attorney.
      12.      No written permission to continue the hearing was received, and the Level II hearing was held on February 16, 1995. Respondent noted on the record the inability to contact Grievant. Neither Grievant nor a representative attended this hearing. Testimony about the alleged default was entered into the record at that Level II hearing.
      13.      A Level II decision was issued February 20, 1995, denying the grievance and finding no default had occurred. Grievant received this Decision on February 22, 1995.
      14.      Grievant did not appeal this Decision to Level III or Level IV.
      15.      On February 20, 1995, Respondent sent a copy of this decision to Senior Administrative Law Judge Sue Keller, informing her that although Respondent did not believe a default had occurred, Respondent was filing, pursuant to W. Va. Code § 18-29- 3(a), a formal petition for a declaratory ruling on the matter, to safeguard its position.
      16.      On February 28, 1995, Administrative Law Judge Keller sent a Notice of Hearing for March 8, 1995. A copy of the lower level record was sent to Administrative Law Judge Keller shortly thereafter.      17.      On March 6, 1995, Attorney Ball wrote Administrative Law Judge Keller stating Grievant had prevailed on his claims by default, the Grievance Board had no jurisdiction, and further action "will be most likely take the form of a Writ of Mandamus action." He stated he would not attend the scheduled hearing.   (See footnote 3) 
      18.      On March 9, 1995, Respondent's attorney sent Administrative Law Judge Keller Respondent's Position Statement, Motion to Dismiss, and Alterative Motion to Stay the Proceedings.
      19.      On March 30, 1995, Administrative Law Judge Keller entered an Order granting Respondent's Motion for a Stay, as it appeared likely the case would be remanded to the Grievance Board at a later time.
      20.      On August 26, 1995, Administrative Law Judge Keller sent a letter to the parties requesting the status of the case. She received no response to this inquiry.
      21.      On January 9, 1997, after a full evidentiary hearing and written memoranda of law, Circuit Court Judge Fred Fox issued a Letter Opinion finding a Writ of Mandamus would not lie, and stating Grievant had failed to prove he should prevail by default. Specifically, Judge Fox stated, "the dean did not default with regard to the Level One proceedings."
      22.      Judge Fox also directed the parties to the grievance procedure for further resolution of the issues, and suggested the parties proceed to Level IV as he believed a hearing at Level II would be "quite frankly, fruitless."       23.      This letter opinion was followed by an Order Denying Petitioner's Writ of Mandamus" issued February 13, 1997. This Order incorporated the Letter Opinion issued on January 9, 1997.
      24.      On April 2, 1997, Administrative Law Judge Keller wrote to Grievant's then attorney, Sharon Hayes, noting she had received Judge Fox's Decision and asked the parties how they now wished to proceed. She received no response to this letter.
      25.      On May 1, 1997, Administrative Law Judge Keller again wrote Grievant's attorney about the status of the case, and informed the parties if there was no further word the case would be dismissed.
      26.      On May 6, 1997, Ms. Hayes informed Administrative Law Judge Keller Judge Fox's Decision would be appealed, Grievant wished to preserve his objection to jurisdiction at Level IV, and requested the grievance be held in abeyance until a Decision was received from the West Virginia Supreme Court of Appeals.   (See footnote 4) 
      27.       On May 9, 1997, in response to Administrative Law Judge Keller's letter of May 1, 1997, Respondent filed a Motion to Dismiss or to Withdraw the Grievance from Further Consideration. Respondent noted it had only filed to Level IV protect its default rights pursuant to W. Va. Code § 18-29-3, and now that the default issue had been resolved, it no longer wished to proceed at Level IV.
      28.      On May 31, 1997, Administrative Law Judge Keller issued an Order indicating she would continue to hold the grievance in abeyance as requested by Grievant.      29.       On September 16, 1997, Administrative Law Judge Keller again wrote Ms. Hayes requesting the status of the appeal to the West Virginia Supreme Court of Appeals.
      30.      On September 22, 1997, Respondent's attorney, Andrew Dimlich, responded to this letter and noted Grievant's Motion before the West Virginia Supreme Court of Appeals was scheduled for hearing on December 3, 1997.
      31.      On October 2, 1997, Ms. Hayes responded to Administrative Law Judge Keller's letter and noted the appeal was underway and directed Administrative Law Judge Keller to her May 6, 1997 letter in which she stated the Grievant's desire "to preserve his jurisdictional objection to the Level IV hearing."
      32.      On December 3, 1997, the West Virginia Supreme Court of Appeals denied Grievant's request to review Judge Fox's denial of the Writ of Mandamus.
      33.      On December 17, 1997, Grievant filed with the West Virginia Supreme Court of Appeals a Motion for Leave to File out of Time.
      34.      On January 8, 1998, this Motion was refused.
      35.      On January 29, 1998, Mr. Dimlich sent a copy of this Order to Administrative Law Judge Keller.
      36.      On April 20, 1998, Administrative Law Judge Keller wrote to Grievant's attorney noting the West Virginia Supreme Court of Appeals had denied the Motion, and requested information on how Grievant wished to proceed.
      37.      On May 21, 1998, Ms. Hayes responded and informed Administrative Law Judge Keller that "Grievant was preparing a motion pursuant to W. V. R. Civ. P. 60(b)(8) (sic) to request the Circuit Court to hold that a Writ of Mandamus lies to enforce the defaultwhich occurred in the initial stage of his grievance proceeding."   (See footnote 5)  Grievant continued to argue that he had won by default, and stated the Circuit Court had "held that a Writ of Mandamus did not lie on the basis of its determination that the primary jurisdiction remained in the lower stages of the grievance process."   (See footnote 6)  Ms. Hayes informed Administrative Law Judge Keller that Rule 60(b)(8) (sic) obligated Grievant to confer with the Attorney General's office, and stated Grievant was initiating this communication with a copy of this letter to Administrative Law Judge Keller. Grievant wished to maintain all "jurisdictional defenses."
      38.      On June 22, 1998, Respondent's Attorney, Sam Spatafore, wrote Ms. Hayes and copied Administrative Law Judge Keller on this letter. Mr. Spatafore noted he had attempted to call Ms. Hayes without success, and therefore was writing his response to the May 21, 1998 letter. He noted there was no such Rule of Civil Procedure and indicated he did not believe Grievant's arguments utilizing recently decided cases had merit.
      39.      Again, having no further word from Grievant, Administrative Law Judge Keller wrote to the parties on December 18, 1998, noting the grievance was still in abeyance, and had been since February 20, 1995. She indicated the grievance would be dismissed from the dockets of the Grievance Board in thirty days for failure to pursue pursuant to Section 4.14 of the West Virginia Education and State Employees Grievance Board Procedural Rules if there was no written objection to this action.      40.      On December 28, 1998, Grievant wrote Administrative Law Judge Keller indicating he still intended to file a Rule 60(b)(8) (sic) Motion. It was clear from this letter that Grievant had not yet taken the required action. He again noted he wished to continue to reserve all jurisdictional defenses. This letter was followed by a letter from Ms. Hayes noting Grievant had already responded.
      41.      On February 17, 1999, Administrative Law Judge Keller wrote the parties indicating Grievant's response was the same as she had received before, noted Grievant had failed to take action, and that unless she was provided with evidence of some activity within ninety days a Level IV hearing would be scheduled pursuant to Respondent's request of February 20, 1995.
      42.      On March 2, 1999, Ms. Hayes wrote Administrative Law Judge Keller to inform her she was withdrawing from the case.
      43.      On March 27, 1999, Grievant wrote Administrative Law Judge Keller attaching a copy of a February 23, 1999 letter to Delegate Charlene Marshall indicating she had met with Attorney General Darryl McGraw, as well as other staff members, and had inquired about the grievance. Grievant redacted the rest of the letter, so it is impossible to know what the results of that meeting were. Grievant did not inform Administrative Law Judge Keller what he wished to do now, but he continued to reserve all jurisdictional defenses.
      44.      On June 29, 1999, Administrative Law Judge Keller again wrote the parties noting she had not been informed of the results of Grievant's attempts "to engage in the alternative course of relief." The parties were directed to provide Administrative Law JudgeKeller with three mutually agreed upon dates for a Level IV hearing. If no response was received the hearing would be schedule at her convenience. She received no response.
      45.      On July 26, 1999, a Notice of Hearing for September 15, 1999, was sent to the parties.
Discussion

      The two issues addressed by the parties in their briefs will be addressed separately.
A.      Default       
      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. of Trustees, Docket No. 92-BOT-340 (Feb. 26, 1993). Typically, when a 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 (Decision. 31, 1997); Petry v. Kanawha County Bd. of Educ., Docket No. 96-20-380 (Mar. 18, 1997). In this instance Grievant is requesting the undersigned Administrative Law Judge to review and reverse the default decision made by Judge Fox.       Grievant argues in his memorandum that "[t]he ruling of the circuit court of Monongalia County does not resolve the issue of the employer's default as said Decision is not res judicata or was erroneous and contrary to law." Respondent maintains Grievant is barred from litigating the issue of default before the Grievance Board by the doctrines of res judicata, collateral estoppel, and/or Law of the Case.
      "This Grievance Board is bound by [a] Circuit Court's legal conclusions in this matter as 'the law of the case.'"   (See footnote 7)  Parsons v. W. Va. Dep't of Transp./Div. of Highways, Docket No. 97-DOH-289R (May 6, 1999); Bass v. Kanawha County Bd. of Educ., Docket No. 92-20- 214 (Nov. 4, 1994); Runyon v. Mingo County Bd. of Educ., Docket No. 93-29-481 (Apr. 4, 1994). See Tressler Coal Mining Co. v. Klefeld, 108 W. Va. 301, 24 S.E.2d 98 (1943).
      As stated by the West Virginia Supreme Court of Appeals in the Syllabus Point of Lyons v. Grassilli Chemical Co., 106 W. Va. 518, 146 S.E. 57 (1928), "[t]he Decision of the Court should ordinarily, be adhered to in other actions between the same or different parties growing out of the same cause of action, or a continuance thereof, and involving substantially the same set of facts considered in the decided case, especially where adifferent ruling would work great injustice to some of the litigants."   (See footnote 8)  Further, the West Virginia Supreme Court of Appeals stated in State ex. rel Adkins v. Sims, 130 W. Va. 645, 46 S.E.2d 81 (1947), "in a pending suit or action, a decision of the appellate court on a question of law once made, becomes the law of the case in future proceedings in a trial court in the same case, or even in a subsequent suit or action on the same cause of action . . . . (citations omitted)." In Armstrong v. Armstrong, 201 W. Va. 244, 496 S.E.2d 194, (Oct. 24, 1997), the West Virginia Supreme Court of Appeals discussed the Law of the Case doctrine and stated, "[t]he essence of this doctrine is that a court of general jurisdiction, not sitting as an appellate court, may not overrule the decision of another court of general jurisdiction. See Chesapeake & W.R. Co. v. Washington C. & St. Louis R'y, 99 Va. 715, 40 S.E. 20, 21 (Va. 1901) ('The proceedings of a court of general and competent jurisdiction cannot be properly impeached and re-examined collaterally by a distinct tribunal, one not sitting in exercise of appellate power.')."
      Judge Fox's Order held "the dean did not default with regard to the Level One proceedings." He further held "it follows that grievant's prayer for mandamus relief, basedon a default, is without merit and must be denied."   (See footnote 9)  These statements are very clear; the issue of default has been resolved by a court of higher jurisdiction. This Grievance Board has previously determined it "is bound by [a] Circuit Court's legal conclusions . . . as 'the law of the case.'" Parsons, supra. See Bass, supra; Runyon, supra. As such this Grievance Board does not have the authority or the jurisdiction to overturn a ruling by a circuit court. See Pack v. Kanawha County Bd. of Educ., Docket No. 93-20-483 (June 30, 1994). Accordingly, Grievant's request for the Grievance Board to review and change Judge's Fox's prior ruling of default is DENIED.   (See footnote 10) 
B.      Questions of Failure to Pursue and Timeliness
      Respondent argues the grievance should be dismissed for failure to pursue this grievance and because it was untimely filed. Respondent notes Grievant did not appeal the grievance to Level II or Level III, and has repeatedly questioned the jurisdiction of the Grievance Board. Respondent also points out the numerous, lengthy delays under Grievant's control in pursuing this grievance, including the five month delay in informing Respondent of his allegation he had prevailed by default. .       Grievant argues "the grievance should not be dismissed on the grounds that the Grievant has failed to pursue this matter in a timely manner because the Respondent has invited or acquiesced to the delay, and Grievant has been diligent in pursuing this grievance, which has been approved by this Grievance Board." Grievant did not speak to the issue of his failure to file an appeal at Level II or Level III.
      W. Va. Code § 18-29-4(a & b) provides the following directions regarding when a respondent and a grievant must act at Levels I, II, and III:
      (a) Level one.






. . .



      W. Va. Code § 18-29-4 states that "[w]ithin five days of receiving the [Level I] decision of the immediate supervisor, the grievant may appeal the decision to the chief administrator." Grievant did not file to Level II nor did he ever discuss the issue with his supervisor. In fact, Respondent heard nothing from the Grievant until approximately five months later when Grievant filed his default claim. Grievant has given no reason why he did not file, and it is clear by Grievant's processing of his default claim that he is aware of timeliness issues.
      W. Va. Code § 18-29-4 also proscribes the timelines for filing to Level III or IV, and states: "[w]ithin five days of receiving the decision of the chief administrator, the grievant may appeal the decision to the governing board of the institution [Level III] or may proceed directly to level four." After Grievant received the Level II Decision denying both the grievance and the default, Grievant did not file to Level III or IV.       
      This specific issue can be examined in three ways. It can be said Grievant abandoned his claim in September 1994, when he did not file to Level II, or February 1995 when he did not file to Level Ill or IV, it can be viewed as Grievant failing to file hisgrievance to the next level in a timely manner, if the filing of the default is viewed as an appeal to Level II, or it can be viewed as Grievant not filling at Level II because he believed he had prevailed by default. This exact set of circumstances has not come before the Grievance Board before, but similar issues have.
      Normally, pursuant to statute, if a grievant does not file to the next level his claim is deemed abandoned, and that is the end of the grievance. Here, the grievance is only at Level IV because Respondent filed here on the default issue in an effort to follow all necessary procedures correctly. If it were not for Respondent's action, this grievance would not be before this Grievance Board.
      This Grievance Board has held that when a grievant does not file a grievance to the next level it is deemed abandoned. Floren v. Kanawha County Bd. of Educ., Docket No. 93-20-327 (May 31, 1994). See Holmes v. Bd. of Directors/W. Va. State College, Docket No. 99-BOD-216 (Dec. 28, 1999); Pack, supra. This is essentially what happened here; Grievant did not file to either Level Il or Level III after he received the decisions. Accordingly, Grievant cannot be allowed to pursue his claim in this forum as he has not acted in such a manner as to perfect his grievance.
      If the grievance is examined in light of a timeliness issue, the following standard of review is followed. When the employer seeks to have a grievance dismissed on the basis that it was not timely filed, the employer has the burden of demonstrating such untimely filing by a preponderance of the evidence. Hawranick v. W. Va. Dep't of Health and Human Resources, Docket No. 98-HHR-010 (July 7, 1998); Harvey v. Bureau of Employment Programs, Docket No. 96-BEP-484 (Mar. 6, 1998). A preponderance of theevidence is generally recognized as evidence of greater weight, or which is more convincing than the evidence which is offered in opposition to it. Morrison v. W. Va. Bureau of Commerce, Docket No. 97-DOL-490 (Jan. 15, 1998); Miller v. W. Va. Dep't of Health & Human Resources, Docket No. 96-HHR-501 (Sept. 30, 1997); Petry, supra.
      Should the employer demonstrate that a grievance has not been timely filed, the employee may demonstrate a proper basis to excuse his failure to file in a timely manner. Higginbotham v. W. Va. Dep't of Public Safety, Docket No. 97-DPS-018 (Mar. 31, 1997); Sayre v. Mason County Health Dep't, Docket No. 95-MCHD-435 (Dec. 29, 1995), aff'd, Circuit Court of Mason County, No. 96-C-02 (June 17, 1996). See Ball v. Kanawha County Bd. of Educ., Docket No. 94-20-384 (Mar. 13, 1995); Woods v. Fairmont State College, Docket No. 93-BOD-157 (Jan. 31, 1994); Jack v. W. Va. Div. of Human Serv., Docket No. 90-DHS-524 (May 14, 1991).
      Respondent notes the Level I Decision was issued on August 30, 1994, and Respondent heard nothing further from Grievant until five months later when Grievant asserted he had won by default. As stated previously, W. Va. Code §18-29-4(d)(1) states in pertinent part, "[i]f the grievant is not satisfied with the action taken by the chief administrator . . . within five days of the written decision the grievant may request, in writing, on a form furnished by the employer, that the grievance be submitted to a hearing examiner . . . ." This Grievant did not do.
      There is also a third way of examining this issue; Grievant did not file to Level II because he believed he had won by default, and thus, saw no need to proceed further with the grievance process. Unfortunately for Grievant, this path is also fraught with difficulties. "Long standing case law and procedural requirements in this state mandate that a party must alert a tribunal as to perceived defects at the time such defects occur in order to preserve the alleged error for appeal." Hanlon v. Logan County Bd. of Educ., 201 W. Va. 365, 496 S.E.2d 447 (1997). Grievant did not file the demand for satisfaction on the default issue until more than five months after he received the Level I Decision. He did not file the Writ of Mandamus until at least six months after he received the Level I Decision. The West Virginia Supreme Court of Appeals has held "that in order to benefit from the 'relief by default' provisions contained in W. Va. Code § 18-29-3(a) (1992) (Repl Vol. 1994), a grieved employee or his/her representative must raise the 'relief by default' issue during the grievance proceedings as soon as the employee or his/her representative becomes aware of such default." Hanlon, supra. Grievant waited more than five months before he informed Respondent that he believed he had prevailed by default.
      Respondent has met its burden of proof. It is clear this grievance is untimely filed even if the undersigned Administrative Law Judge were to assume Grievant, when he sent his notice of default, intended to continue to pursue his grievance. That filing would be approximately five months too late to meet the statutory deadline. Additionally, Grievant did not raise the issue of default as soon as he was aware as is required by Hanlon, supra.
      Thus, in examining the facts of the case, it is necessary to find that this grievance must be dismissed from the dockets of this Grievance Board either because this grievance was not filed to Level II, the grievance was not timely filed to Level II, or the claim for default was untimely filed. Accordingly, this grievance must be DISMISSED.
      The above-discussion will be supplemented by the following Conclusions of Law.
Conclusions of Law

      1.      "The decision of the Court should ordinally, be adhered to in other actions between the same or different parties growing out of the same cause of action, or a continuance thereof, and involving substantially the same set of facts considered in the decided case, especially there a different ruling would work great injustice to some of the litigants." Syl. Pt., Lyons v. Grassilli Chemical Co., 106 W. Va. 518, 146 S.E. 57 (1928).       2.       "[I]n a pending suit or action, a decision of the appellate court on a question of law once made, becomes the law of the case in future proceedings in a trial court in the same case, or even in a subsequent suit or action on the same cause of action . . . .(citations omitted)." State ex. rel Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947).       3.      "The essence of [the Law of the Case] doctrine is that a court of general jurisdiction, not sitting as an appellate court, may not overrule the decision of another court of general jurisdiction. See Chesapeake & W.R. Co. v. Washington C. & St. Louis R'y, 99 Va. 715, 40 S.E. 20, 21 (Va. 1901) ('The proceedings of a court of general and competent jurisdiction cannot be properly impeached and re-examined collaterally by a distinct tribunal, one not sitting in exercise of appellate power.')." Armstrong v. Armstrong, 201 W. Va. 244, 496 S.E.2d 194, (Oct. 24, 1997).
      4.      "This Grievance Board is bound by [a] Circuit Court's legal conclusions in this matter as 'the law of the case.'" Parsons v. W. Va. Dep't of Transp./Div. of Highways, Docket No. 97-DOH-289R (May 6, 1999); Bass v. Kanawha County Bd. of Educ., Docket No. 92-20-214 (Nov. 4, 1994); Runyon v. Mingo County Bd. of Educ., Docket No. 93-29-481 (Apr. 4, 1994). See Tressler Coal Mining Co. v. Klefeld, 108 W. Va. 301, 24 S.E.2d 98 (1943).
      5.      Because the circuit court has previously determined that a default did not occur, this Grievance Board will not and indeed should not reconsider the issue.
      6.      When a grievant does file a grievance to the next level it is deemed abandoned. Floren v. Kanawha County Bd. of Educ., Docket No. 93-20-327 (May 31, 1994). See Holmes v. Bd. of Director/W. Va. State College, Docket No. 99-BOD-216 (Dec. 28, 1999); Pack v. Kanawha County Bd. of Educ., Docket No. 93-20-483 (June 30, 1994).
      7.      Grievant abandoned this grievance when he did not file to the next level.
      8.      When the employer seeks to have a grievance dismissed on the basis that it was not timely filed, the employer has the burden of demonstrating such untimely filing by a preponderance of the evidence. Hawranick v. W. Va. Dept. of Health and Human Resources, Docket No. 98-HHR-010 (July 7, 1998); Harvey v. Bureau of Employment Programs, Docket No. 96-BEP-484 (Mar. 6, 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. Morrison v. W. Va. Bureau of Commerce, Docket No. 97-DOL-490 (Jan. 15, 1998); Miller v. W. Va. Dep't of Health & Human Resources, Docket No. 96-HHR-501 (Sept. 30, 1997); Petry v. Kanawha County Bd. of Educ., Docket No. 96-20-380 (Mar. 18, 1997).
      9.      Should the employer demonstrate a grievance has not been timely filed, the employee may demonstrate a proper basis to excuse his failure to file in a timely manner. Higginbotham v. W. Va. Dep't of Public Safety, Docket No. 97-DPS-018 (Mar. 31, 1997); Sayre v. Mason County Health Dep't, Docket No. 95-MCHD-435 (Dec. 29, 1995), aff'd, Circuit Court of Mason County, No. 96-C-02 (June 17, 1996). See Ball v. Kanawha County Bd. of Educ., Docket No. 94-20-384 (Mar. 13, 1995); Woods v. Fairmont State College, Docket No. 93-BOD-157 (Jan. 31, 1994); Jack v. W. Va. Div. of Human Serv., Docket No. 90-DHS-524 (May 14, 1991).
      10.      W. Va. Code § 18-29-4 states "[w]ithin five days of receiving the [Level I] decision of the immediate supervisor, the grievant may appeal the decision to the chief administrator. . . . "
      11.      W. Va. Code § 18-29-4 defines the timelines for filing to Level III or IV, and states: "[w]ithin five days of receiving the [Level II] decision of the chief administrator, the grievant may appeal the decision to the governing board of the institution or may proceed directly to level four."
      12.      "Long standing case law and procedural requirements in this state mandate that a party must alert a tribunal as to perceived defects at the time such defects occur in order to preserve the alleged error for appeal." Hanlon v. Logan County Bd. of Educ., 201 W. Va. 365, 496 S.E.2d 447 (1997).
      13.      "[I]n order to benefit from the 'relief by default' provisions contained in W. Va. Code § 18-29-3(a) (1992) (Repl Vol. 1994), a grieved employee or his/her representative must raise the 'relief by default' issue during the grievance proceedings as soon as the employee or his/her representative becomes aware of such default." Hanlon, supra.       14.      Grievant waited more than five months after he received the Decision toinform Respondent that he believed he had prevailed by default. This does not meet the requirement of Hanlon to raise the issue as soon as he "becomes aware of such default."
      15.      Grievant did not file his grievance to either Level II or Level IlI on a timely manner.
      Accordingly, Grievant's Motion to Reconsider the issue of default is DENIED, and Respondent Motion to Dismiss is GRANTED.

      Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of the Monongalia 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.
                                     ___________________________________
                                                 JANIS I. REYNOLDS
                                                 Administrative Law Judge

Dated: March 17, 2000


Footnote: 1
      This grievance was reassigned to the undersigned Administrative Law Judge for administrative reasons.
Footnote: 2
      Grievant is now represented by Attorney Joan Hill.
Footnote: 3
      It is unclear from the record when the Writ of Mandamus was filed, but obviously it was not filed until after March 6, 1995.
Footnote: 4
      Grievant's jurisdictional objections were not specified.
Footnote: 5
      There is no Rule 60 (b)(8) in the West Virginia Rules of Civil Procedure.
Footnote: 6
      It is noted this is an incorrect statement of Judge Fox's ruling.
Footnote: 7
      The term "Law of the Case" "as generally used, designates the principle that if an appellate court has passed on a legal question and remanded the case to the court for further proceedings, the legal question thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain the same. Doctrine provides that when appellate court has rendered a decision and states in its opinion a rule of law necessary to decision, that rule is to be followed in all subsequent proceedings on the same action." Black's Law Dictionary 459 (Abr. 5th ed. 1983).
Footnote: 8
      Additionally, in Kaufman v. Catzen, 108 W. Va. 1, 150 S.E. 371 (1929), the West Virginia Supreme Court of Appeals stated at Syllabus Point 1, "Question Once Definitely Determined by Supreme Court of Appeals is Conclusive on Parties, Privies, and Courts in Subsequent Proceedings. It is the general rule, subject to few exceptions, that a question of law or fact once definitely settled and determined by this Court, on remanding the case for further proceedings, is conclusive on the parties and privies thereto, and upon the court below, and upon this Court upon a second appeal or writ of error. Pennington v. Gillaspie, 66 W. Va. 643, 651. (p. 2.)."
Footnote: 9
      It is noted that this Grievance Board's decisions are in agreement with Judge Fox's ruling. In terms of assessing whether a default occurred, the date the decision was issued, not the date the decision was received, is the date that is counted. This method recognizes the respondent has no input into when a grievant chooses to pick up his or her mail. See Morrison v. Div. of Labor, Docket No. 99-LABOR-146D (June 18, 1999); Gillum v. Dep't of Transp./Div. of Highways, Docket No. 98-DOH-387D (Dec. 2, 1998); Harmon v. Div. of Corrections, Docket No. 98-CORR-284D (Oct. 6, 1998).
Footnote: 10
      Given the ruling on this issue it is not necessary to address the issues of res judicata or collateral estoppel.