SANDRA YOBY, et al.,
Grievant,
v. Docket No. 99-15-280
HANCOCK COUNTY BOARD OF EDUCATION,
Respondent.
Grievants, Sandra Yoby, Starry Milosicevic, Sara Swiger, and Linda Simmons,
employed by the Hancock County Board of Education (HCBOE) as Cook III's, filed a level
one grievance on April 19, 1999, in which they alleged a violation of W. Va. Code §18A-4-
8, and requested reclassification as Cook III/Computer Operator, with back pay, benefits,
seniority, and interest on all monetary sums. James R. Piccirillo, Principal of Weirton
Heights Elementary School, lacked authority to grant the grievance at level one. The
grievance was granted in part at level two, to the extent that the Director of Food Services
was instructed to resolve programming problems and provide additional training for
Grievants. HCBOE waived consideration at level three, as is permitted by W. Va. Code
§18-29-4(c), and the matter was advanced to level four on July 8, 1999. An evidentiary
hearing was conducted in the Grievance Board's Wheeling office on September 9, 1999,
at which time Grievants were represented by John E. Roush, Esq., of the West Virginia
School Service Personnel Association, and HCBOE was represented by William T. Fahey,Esq., Assistant Prosecuting Attorney. The matter became mature for decision on October
12, 1999, upon receipt of Grievants' proposed findings of fact and conclusions of law.
HCBOE elected not to file post-hearing proposals.
The facts of this matter are undisputed and may be set forth as the following
findings of fact.
Findings of Fact
1. Grievants are all employed by HCBOE as Cook III's. Grievant Yoby is
assigned full time at the central kitchen, Grievant Milosicevic is assigned half-time each to
the central kitchen and Broadview Elementary School, Grievant Swiger is assigned to
Jefferson Elementary School, and Grievant Simmons is assigned to Allison Elementary
School.
2. HCBOE's position description for Cook III lists multiple duties, including:
5. Complete daily production sheets, daily financial sheet,
counts money and make[s] deposits as required by principal.
Complete S[-]master at the end of each month [and,]
6. P.O.S. schools: complete daily summary sheet, count
money, collect payment and enter amount in computer,
complete billing and S[-]master at end of each month.
3. Grievant Yoby estimates that 90% of her workday is dedicated to the
operation of the computer. While Grievant Milosevic performs traditional cook duties at the
central kitchen, she estimates that 90% of her time at Broadview is heavily weighted toward
operation of the computer. Grievant Swiger estimates that computer work occupies 50%
of her work day, while Grievant Simmons estimates that 90% of her time is spent with the
computer. 4. Grievants' computer work consists of entering data and preparing reports and
other documents concerning a variety of information including, but not limited to, number
and type of meals served, menus, milk purchases, student status, and payments.
Grievants Swiger and Simmons also enter point of service data which involves the
students picking up cards with their ID number when they arrive, and placing them in a box.
Additionally, all Grievants periodically back-up the information to safeguard against a
computer crash.
5. Grievants were provided an inservice training session on the use of the
computer, but no other training, or skills, is required to use the equipment.
6. Initially, some difficulties arose with the software used in the school lunch
program; however, reasonable efforts were made to correct those difficulties.
Discussion
Because a misclassification grievance is non-disciplinary in nature, Grievants have
the burden of proving their case by a preponderance of the evidence.
Tasker v. Mineral
County Bd. of Educ., Docket No. 98-28-215 (Oct. 28, 1998);
Midkiff v. Lincoln County Bd.
of Educ., Docket No. 95-22-262 (Mar. 3, 1996);
Perdue v. Mercer County Bd. of Educ.,
Docket No. 92-27-280 (Mar. 29, 1993). In order to prevail on a claim that her position is
misclassified, an employee must establish that her duties more closely match those of
another classification defined by
W. Va. Code §18A-4-8, other than that under which her
position is categorized.
Pierantozzi v. Brooke County Bd. of Educ., Docket No. 96-05-061
(May 31, 1996);
Porter v. Hancock County Bd. of Educ., Docket No. 95-15-493 (May 24,
1994).
'Multiclassification' means personnel employed to perform tasks that involve thecombination of two or more class titles in this section. In such instances the minimum
salary scale shall be the higher pay grade of the class title involved.
W. Va. Code §18A-4-
8. When seeking a 'multi-classification', a grievant must establish, by the same standard,
that her duties encompass those of all
Code §18A-4-8 positions identified.
Kinstler v.
Raleigh County Bd. of Educ., Docket No. 92-41-468 (June 23, 1993). However, the
statutes are silent about what portion of time a worker must spend on an out-of-class task
in order to deserve reclassification and/or multi-classification.
[S]imply being required to undertake some responsibilities normally associated with
a higher classification, even regularly, does not render a grievant misclassified,
per se.
Midkiff v. Lincoln County Bd. of Educ., Docket No. 95-22-262 (Mar. 19, 1996), citing
Hamilton v. Mingo County Bd. of Educ., Docket No. 91-29-077 (Apr. 15, 1991).
W. Va. Code §18A-4-8 requires county boards of education to review each service
personnel employee's job classification annually and . . . reclassify all service employees
as required by job classifications. A board of education is obligated to classify school
service personnel according to the duties performed by said employees.
Taflan v.
Hancock County Bd. of Educ., Docket No. 15-86-099-2 (Jan. 12, 1987). Service workers
cannot be assigned to perform duties not contemplated by the statutory description of their
currently-held classifications or not stated in their official job descriptions.
See Britton v.
Preston County Bd. of Educ., Docket No. 90-39-015 (Aug. 31, 1990).
While an employee may be required to perform occasional overlap duties of
another distinct class, if the assignments are specified in the employee's job description
and are reasonably related to the duties contemplated by the statutory description of the
presently-held classification, reclassification or multi-classification is not required.
SeeBoyer v. Wood County Bd. of Educ., Docket No. 90-54-196 (Jan. 29, 1991). Conversely,
when an employee regularly performs work in her own and another classification, multi-
classification is required.
Bailey v. Mercer County Bd. of Educ., Docket No. 91-274-158
(Jan. 31, 1992).
W. Va. Code §18A-4-8 establishes an employment term and class titles, with
definitions, for service personnel. The class titles at issue are as follows:
Cook III means personnel employed to prepare and
serve meals, make reports, prepare requisitions for supplies,
order equipment and repairs for a food service program of a
school system.
Computer Operator means qualified personnel
employed to operate computers.
County boards of education may expand upon the W. Va. Code §18A-4-8
classification definitions in a manner which is consistent with those definitions. Brewer v.
Mercer County Bd. of Educ., Docket No. 91-27-002 (Mar. 30, 1992); Pope and Stanley v.
Mingo County Bd. of Educ., Docket No. 91-29-068 (July 31, 1992).
Grievants argue that their duties entitle them to be classified as Cook III/Computer
Operator. While they acknowledge that the Cook III classification definition includes the
preparation of reports, Grievants assert that the nature and number of reports have
increased with the introduction of the computer into their work area. Further, Grievants
opine that even if it should be determined they are simply using a different tool to complete
the same job, their claim for reclassification remains valid. To substantiate this point,
Grievants note that an individual using a shovel to dig a ditch may be classified as general
maintenance or handyman, but that an individual using a backhoe to dig a ditch isclassified as a heavy equipment operator. Grievants conclude that their situation is
similar to the heavy equipment operator in that they both use advanced tools to more easily
accomplish a task which could be completed with simpler tools, resulting in the task being
entitled to a higher classification.
HCBOE denies that Grievants are entitled to multiclassification because the
classification description for Cook III provides for the preparation of reports, and does not
limit that duty to manual preparation. Secondly, HCBOE notes that none of Grievants have
applied for competency testing as a Computer Operator. Thirdly, no specialized skill or
computer training is required for Grievants' use of the tool. Finally, HCBOE asserts that
it does not employ any individual in the classification of Computer Operator, although
computers are widely used by service personnel and others throughout the county.
Although Grievants now use computers to complete their report and record-keeping
duties, they are not computer operators. As noted in Ellison v. Fayette County Bd. of
Educ., Docket No. 97-10-258 (Sept. 18, 1997), [i]f everyone in the school system who
utilized a personal computer to perform her duties were a Computer Operator, it is likely
that nearly every secretary and every accountant, and many others, would be
multiclassified. Grievants were not hired to operate computers, they were hired to function
as Cooks. The position description for Cook III clearly provides that an employee in that
classification will be responsible for record-keeping and filing reports regarding the
amounts of food consumed and types and methods of payment for meals. These duties
are critical to the overall operation of the food service program of a school system and are
reflective of the duties of a Cook III. Porter, supra. As in Ellison, Grievants' use of a
personal computer is merely incidental to their primary performance as Cooks III, and doesnot impact upon their classification. See Robinson v. Nicholas County Bd. of Educ.,
Docket No. 93-34-197 (Mar. 25, 1994).
In addition to the foregoing findings of fact and discussion, the following conclusions
of law support the decision reached.
Conclusions of Law
1. Because a misclassification grievance is non-disciplinary in nature, Grievants
have the burden of proving their case by a preponderance of the evidence.
Tasker v.
Mineral County Bd. of Educ., Docket No. 98-28-215 (Oct. 28, 1998);
Midkiff v. Lincoln
County Bd. of Educ., Docket No. 95-22-262 (Mar. 3, 1996);
Perdue v. Mercer County Bd.
of Educ., Docket No. 92-27-280 (Mar. 29, 1993).
2. In order to prevail on a claim that her position is misclassified, an employee
must establish that her duties more closely match those of another classification defined
by
W. Va. Code §18A-4-8, other than that under which her position is categorized.
Pierantozzi v. Brooke County Bd. of Educ., Docket No. 96-05-061 (May 31, 1996);
Porter
v. Hancock County Bd. of Educ., Docket No. 95-15-493 (May 24, 1994).
3. When seeking a 'multi-classification', a grievant must establish, by the same
standard, that her duties encompass those of all
Code §18A-4-8 positions identified.
Kinstler v. Raleigh County Bd. of Educ., Docket No. 92-41-468 (June 23, 1993).
4. [S]imply being required to undertake some responsibilities normally
associated with a higher classification, even regularly, does not render a grievant
misclassified,
per se.
Midkiff,
supra.
5. While an employee may be required to perform occasional overlap duties
of another distinct class, if the assignments are specified in the employee's job descriptionand are reasonably related to the duties contemplated by the statutory description of the
presently-held classification, reclassification or multi-classification is not required.
See
Boyer v. Wood County Bd. of Educ., Docket No. 90-54-196 (Jan. 29, 1991).
6.
W. Va. Code §18A-4-8 defines Cook III as personnel employed to prepare
and serve meals, make reports, prepare requisitions for supplies, order equipment and
repairs for a food service program of a school system.
7.
W. Va. Code § 18A-4-8 defines Computer Operator as qualified personnel
employed to operate computers.
8. County boards of education may expand upon the
W. Va. Code §18A-4-8
classification definitions in a manner which is consistent with those definitions.
Brewer v.
Mercer County Bd. of Educ., Docket No. 91-27-002 (Mar. 30, 1992);
Pope and Stanley v.
Mingo County Bd. of Educ., Docket No. 91-29-068 (July 31, 1992).
9. Grievants have failed to prove that they are entitled to reclassification as
Cook III/Computer Operator.
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. 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.
Date: February 14, 2000 __________________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE