RUSSELL R. MCELROY, et al.,
Grievants,
v. Docket No. 99-30-214
MONONGALIA COUNTY BOARD OF EDUCATION,
Respondent.
Grievants, ten service employees of the Monongalia County Board of Education
(MCBOE), allege violations of
W. Va. Code §§18A-4-8, 18A-4-8b, 18A-4-8g
, 18-29-2(o),
and MCBOE policy
, when employees multiclassified as mechanics/bus operators were
allowed to accept extra duty assignments, and were later restricted from the assignments.
Originally filed as three grievances,
Grievants Russell McElroy, Elaine Prickett, and Gerald
Marshall are employed as bus operators in the Morgantown area. Grievant Ida Osecky is
employed as a bus operator in the Blacksville area. Grievants George Chesney, John
Snyder, Randy Yost, Richard Sanders, Wayne A. White, and Duane Prickett are
multiclassified as mechanics/bus operators.
(See footnote 1)
The record does not reflect a level one decision was issued in the McElroy
grievance. Mr. Prickett denied Ms. Osecky's grievance, and found that the rights of theChesney grievants had been violated, but that he could not resolve the matter at level one.
The grievances were all denied at level two, and all Grievants waived consideration at level
three, as is permitted by
W. Va. Code §18-29-4(c)
. Upon appeal to level four, the matters
were consolidated for hearing which was held in the Grievance Board's Morgantown office
on October 25, 1999. The McElroy Grievants and Ms. Osecky were represented by John
E. Roush, Esq., of the West Virginia School Service Personnel Association. The Chesney
Grievants represented themselves, and MCBOE was represented by Harry M. Rubenstein,
of Kay Casto & Chaney, PLLC. The matter became mature for decision on November 23,
1999, the final date for submission of proposed findings of facts and conclusions of law
.
The facts of this matter are undisputed and may be set forth as the following formal
findings of fact.
Findings of Fact
1. Grievants McElroy, E. Prickett, Marshall, and Osecky, are all regularly
employed school bus operators.
2. Grievants Chesney, D. Prickett, Snyder, Yost, Sanders, and White, are all
multi-classified as mechanic/bus operator. Grievant Chesney holds the job title of Chief
Mechanic, and Grievant D. Prickett holds the position of Assistant Supervisor of
Transportation.
3. Historically, employees of MCBOE have been multi-classified as
mechanics/bus operators because of the dual function in their employment. These
individuals are required to maintain a commercial drivers license, and meet the other
requirements necessary to operate a bus. They have also regularly operated buses aspart of their employment, not simply in cases of accidents or breakdowns, but they
routinely serve as substitute drivers on regular runs, and for short, extra-duty runs, when
necessary.
4. At, or near the beginning, of the 1998-99 school year, Gary Cool transferred
from a multiclassified position of mechanic/bus operator to that of full-time bus operator.
Because MCBOE credited Mr. Cool with seniority as a bus operator for the period of time
he was employed as a mechanic, he was placed above Grievant Osecky on the bus
operator seniority list. Mr. Cool later received an extracurricular assignment which Grievant
Osecky believed would have been hers, but for his alleged greater seniority.
5. Prior to the 1998-99 school year, the multi-classified mechanics/bus
operators were not eligible for long (more than three hours) extra-duty assignments, and
they were not included on the bus operator seniority list.
6. Beginning in the 1998-99 school year, the multi-classified employees were
given the opportunity to accept long extra-duty assignments.
7. When Grievants McElroy, E. Prickett, and Marshall began grievance
proceedings, then-Superintendent Edward Warnick directed that extra-duty assignments
no longer be offered to the multi-classified employees.
8. Subsequent to the superintendent's directive, Grievants Chesney, et al. filed
a grievance on January 15, 1999, seeking reinstatement of the extra-duty assignments.
9. On March 22, 1999, Grievant Osecky began grievance proceedings seeking
adjustment of Mr. Cool's seniority date as a bus operator to the beginning of the 1998-99
school year.
Discussion
As this grievance does not involve a disciplinary matter, Grievants have the burden
of proving each element of their 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.
The McElroy Grievants argue that while the mechanics are required to maintain bus
operator certification, they have never been treated as regular bus operators, but function
only as substitute bus operators. As substitutes they are not eligible for extra-duty
assignments, and do not accrue seniority as regular bus operators under the provisions of
W. Va. Code §18A-4-8g. Secondly, even if the mechanics are multiclassified as regular
bus operators, Grievants argue that they are not entitled to extra-duty assignments for bus
operators only, because W. Va. Code §18A-4-8b refers to employees within the
classification. Finally, Grievants argue that it is simply unfair to allow the higher-paid
employees to take bus operators' extracurricular and extra-duty assignments, and to
accumulate bus operator seniority.
MCBOE agrees that the primary focus of the Chesney Grievants' multi-classified
positions is mechanic or assistant mechanic; however, it also acknowledges that as multi-
classified employees, they accrue seniority in each category of employment. It asserts that
the seniority of Mr. Cool was properly calculated upon his acceptance of a bus operator
position, and that Grievant Osecky's grievance should be denied. MCBOE further asserts
that it has the discretion to permit, or to not permit, those employees holding a multi-classification of mechanic/bus operator to be included in the rotations for long extra-duty
assignments.
W. Va. Code §18A-4-8g provides in pertinent part that [s]chool service personnel
who hold multiclassification titles shall accrue seniority in each classification category of
employment which said employee holds and shall be considered an employee of each
classification category contained within his or her multi-classification title.... This provision
has been held to grant multi-classified service employees a full year of service credit for
each classification held. Bowen v. Kanawha County Bd. of Educ. Docket No. 99-20-039B
(Mar. 31, 1999). In the present case, MCBOE correctly calculated Mr. Cool's seniority
when he transferred to a full-time bus operator position. Therefore, Grievant Osecky's
claim is without merit.
The claim by the McElroy Grievants that the mechanic/bus operators are substitute
bus operators, and are therefore not eligible for extra-duty assignments is not supported
by the evidence. The mechanic/bus operators are all regular, full-time employees. While
the multi-classified employees do not hold a daily bus run, and fill in when no regular or
substitute bus operators are available, this limited assignment does not affect their status
as regular employees. Further, neither the compensation or employment term of the multi-
classified employees controls this issue. No violation of W. Va. Code §18A-4-8b has been
established because the determination that employees who hold the classification of bus
operator may accept long, extra-duty assignments does not constitute an alternative
procedure for making such assignments, and does not require approval by the two-thirds
of the employees within that classification category. See Pierson v. Ritchie County Bd. ofEduc., Docket No. 98-43-006 (May 29, 1998); Moody v. Marion County Bd. of Educ.,
Docket No. 93-24-401 (Apr. 29, 1994).
MCBOE may reasonably exercise its discretion to set guidelines to insure that the
primary assignment of the multi-classified employees, i.e., mechanic, is made a priority.
The Chesney Grievants stated at level four that their interest is only in those extra-duty
assignments which do not interfere with their work as mechanics, so an agreeable practice
should be attainable. Although the McElroy Grievants opine that it is unfair for the multi-
classified employees to earn a higher salary and to take extra-duty assignments, it would
be equally unfair to exclude employees within a classification from the assignments.
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, Grievants have the
burden of proving each element of their 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.
W. Va. Code §18A-4-8g provides that [s]chool service personnel who hold
multiclassification titles shall accrue seniority in each classification category of employment
which said employee holds and shall be considered an employee of each classification
category contained within his or her multi-classification title.... This provision has been
held to grant multi-classified service employees a full year of service credit for eachclassification held.
Bowen v. Kanawha County Bd. of Educ. Docket No. 99-20-039B (Mar.
31, 1999).
3. MCBOE correctly calculated Mr. Cools's seniority, placing him before
Grievant Osecky, when he transferred to a full-time bus operator position.
4. The multi-classified mechanics/bus operators are considered regular, full-time
employees in both classifications, and are not substitute bus operators.
5. As regular bus operators, the multi-classified employees are entitled to extra-
duty assignments.
6. MCBOE may reasonably exercise its discretion to insure the multi-classified
employees complete their priority assignment of mechanic, before extra-duty assignments
are awarded.
Accordingly, the Chesney grievance is
GRANTED, the McElroy and Osecky
grievances are
DENIED.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of Monongalia County and 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
Footnote: 1 Mr. Prickett presently holds the position of Assistant Supervisor of Transportation,
although he is classified as a bus operator.