I. F. "FRANK" HUGHES,
            Grievant,

v.                                                       Docket No. 99-18-397D

JACKSON COUNTY BOARD OF EDUCATION,
            Respondent.

ORDER DENYING DEFAULT

      On September 10, 1999, Grievant Frank Hughes submitted this appeal to Level IV of the grievance procedure, alleging Respondent, Jackson County Board of Education, ("JCBOE" or "Board"), had failed to issue the Level II decisions within the time lines set forth in W. Va. Code § 18-29-4(b). He requested JCBOE be found in default pursuant to the provisions of W. Va. Code §18-29-3(a). A hearing on this matter was held in the Grievance Board's Charleston, West Virginia office on November 1, 1999, and this default claim became mature for decision on December 2, 1999, after receipt of Grievant's proposed findings of fact and conclusions of law.   (See footnote 1)  Grievant was represented by Tilden "Skip" Hackworth, and JCBOE was represented by Attorney Greg Bailey.

Issues and Arguments

      The default issue raised by Grievant is unusual. Grievant argues no hearings were ever held, and the "meetings" that took place between Grievant and Superintendent Dale Summitt were conferences not Level II hearings. Thus, the decisions timely issued bySuperintendent Summitt following those "meetings" do not count, Level II hearings were never held, and Respondent is in default.
      Respondent maintains that while there were some procedural irregularities in the hearing, no default occurred as the hearings were held, and decisions issued within the required time frames.
      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 filled two separate grievances on two separate issues. Both grievances were filed on July 29, 1999.   (See footnote 2) 
      2.      Following a conference with his supervisor, Principal Blaine Hess, both grievances were denied in separate decisions.
      3.      After receiving the Level I decisions, Grievant appealed to Level II. Grievant was informed orally by phone by Superintendent Summitt's Secretary, Sandy Rice, when and where the hearing would be.   (See footnote 3)  Grievant does not remember exactly what Ms. Rice said to him when she called to give him notice of the hearing, but he believes Ms. Rice said there would be a meeting on the specified date.
      4.      This notice was six days prior to the hearing scheduled for August 19, 1999.      5.      Grievant knew these hearings had to be conducted within five days of his appeal to Level II. (Grievant's test. at Level IV.)
      6.      Prior to this meeting, Grievant met with Principal Hess and Superintendent Summitt to go over what would happen at the hearing.   (See footnote 4) 
      7.      Superintendent Summitt told Grievant this would be a Level II hearing.   (See footnote 5) 
      8.      Grievant had a copy of JCBOE's grievance procedure, but had not read it prior to the Level II hearing.
      9.      Only Grievant and Superintendent Summitt were present at this hearing.
      10.      Grievant was not sworn in prior to giving his testimony.
      11.      The hearing was not recorded by a tape recorder. Superintendent Summitt wrote the primary points of the discussion down with paper and pencil.   (See footnote 6)  Grievant agreed that, although this summary was not verbatim, it represented the significant information presented at the hearing.       12.      Grievant was allowed to say what he wanted to say, and did not ask to call any witnesses. No other witnesses were called. (Grievant's and Superintendent Summitt's test. at Level IV.)
      13.      Grievant voiced no objections at any time during the hearing about the manner in which it had been conducted. (Grievant's and Superintendent Summitt's test. at Level IV.)
      14.      After Grievant had presented his evidence on both grievances, Superintendent Summitt informed Grievant a timely ruling would be made after he considered the testimony and oral arguments. Level II "transcript."
      15.      Superintendent Summitt issued Level II decisions on both grievances on August 25, 1999.
      16.      Grievant first raised the issue of default for failure to hold a Level II hearing at the JCBOE's board meeting on September 2, 1999.
      17.      After discussion, the Board decided to waive the grievances to Level IV, and did not respond to the issue of default.
      18.      At the time of this September 2, 1999 discussion, Grievant was offered the opportunity to cure the procedural irregularities. He did not wish to avail himself of this opportunity as he believed he had prevailed on the grievances by default.

Discussion
      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).
      Effective July 1, 1998, the West Virginia Legislature gave the Grievance Board authority to administer Levels II and III of the grievance procedure for education employees. W. Va. Code § 18-29-5 (1998) provides that "[t]he Board shall administer the grievance procedure . . . as provided for in section four of this article." Based upon this change in the statute, the Grievance Board, in Jackson v. Hancock County Board of Education, Docket No. 99-15-081D (May 5, 1999), ruled it now had jurisdiction to hear and decide a grievant's lower level default. A default claim is based on the employer's alleged procedural violation of failing to respond to the grievance within the time limits contained in W. Va. Code § 18-29-4. Jackson, supra.
      The default provision applicable to school personnel grievances, enacted in 1992, is contained in W. Va. Code § 18-29-3(a), and states in pertinent part:

      W. Va. Code § 29-6A-4(b) provides the following directions regarding when Respondent must act at Level II:
      
      The question presented by Grievant is two-fold; whether he had Level II hearings, and whether he knew or was informed the "meetings" he had were Level II hearings. The purpose of a Level II grievance hearing is for a grievant to state his case, and to present whatever evidence he thinks is germane to the issues and the data that supports his arguments. Thus, it is clear Grievant had the required Level II hearings, and either knew or should have known these "meetings" were hearings.
      Superintendent Summitt testified he told Grievant these were his Level II hearings, and also told him he would issue decisions ruling on the cases at the end of the hearings. Grievant could not remember what Ms. Rice told him when she called to schedule the hearings, or what Superintendent Summitt said at the start of the Level II hearings. Since Grievant had not read the grievance procedure prior to the hearings, he may not have known exactly what to expect, but it is also obvious he did not ask. Additionally,Superintendent Summitt had a meeting with Grievant prior to the hearings where procedures were discussed.
      Just as incontrovertible is the fact that there were some procedural irregularities at these hearings, such as failure to record the hearings, failure to swear Grievant before taking his testimony, and failure to send written notice of the hearing date. However, this does not mean they were not hearings. Grievant alleges his grievances should be granted by default because of these problems. Many of these errors could and were cured by later proceedings, thus these problems should not and will not be used to grant default.   (See footnote 7)  Hicks v. Hampshire County Bd. of Educ., Docket No. 97-14-382 (Mar. 18, 1999). Further, default relates to the failure of Respondent to respond to the grievance within the time limits contained in W. Va. Code § 18-29-4. Jackson, supra.
      It should be noted that this Grievance Board has been directed in the past that "the grievance process is intended to be a fair, expeditious, and simple procedure, and not a "procedural quagmire." Harmon v. Fayette County Bd. of Educ., Docket No. 98-10-111 (July 9, 1998), citing Spahr v. Preston County Bd. of Educ., 182 W. Va. 726, 393 S.E.2d 739 (1990), and Duruttya v. Bd. of Educ., 181 W. Va. 203, 382 S.E.2d 40 (1989). See Watts v. Lincoln County Bd. of Educ., Docket No. 98-22-375 (Jan. 22, 1999). Additionally, Spahr, supra, indicates the merits of the case are not to be forgotten. Id. at 743. See Edwards v. Mingo County Bd. of Educ., Docket No. 95-29-472 (Mar. 19, 1996). Further,Duruttya, supra, noted that in the absence of bad faith, substantial compliance is deemed acceptable.
      The issue of default relates only to the issue of whether the hearing was held and the decision issued in a timely manner pursuant to statute. Morrison v. Div. of Labor, Docket No. 99-LABOR-146D (June 18, 1999). See Jackson, supra. Grievant had a timely hearings and received a timely decisions. Further, Grievant did not demonstrate bad faith on the part of JCBOE. Accordingly, no default occurred in this case.
      The above-discussion will be supplemented by the following Conclusions of Law.
      
Conclusions of Law

      1.      When a grievant claims 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).
      2.      Although there were procedural irregularities during the course of the Level II hearing, since the hearing was held in a timely manner, and the decision was issued in a timely manner no default occurred. See Morrison v. Div. of Labor, Docket No. 99- LABOR-146D (June 18, 1999).
      3.      Grievant has failed to meet his burden of proof and demonstrate default occurred in this set of circumstances.
      Accordingly, Grievant's Motion for Default is DENIED. These matters will remain on the docket for further adjudication at Level IV.
                                                _________________________                                                        JANIS I. REYNOLDS
                                                 Administrative Law Judge

Dated: January 27, 2000.


Footnote: 1
      Contrary to the usual procedure, the parties elected to present the merits of these grievances in separate hearings immediately following the hearing on default, instead of waiting until a default decision was issued.
Footnote: 2
      The initial contact on the grievances was made earlier in July.
Footnote: 3
      Grievant correctly argued this notice should be in writing; however Grievant did not complain about the notice until Level IV, and he did appear at the appointed time and place for the hearing.
Footnote: 4
      Grievant testified he did not remember a meeting prior to the Level II hearing, but thinks he might have met with these administrators after Level II.
Footnote: 5
      Grievant did not remember what Superintendent Summitt said at the beginning of the hearing.
Footnote: 6
      Superintendent Summitt testified he thought this would be sufficient. It should be noted that Superintendent Summitt had been superintendent for approximately a year at the time of the hearing. Prior to that time he had been employed in Texas. Superintendent Summitt had been involved in other grievances during his tenure, but no evidence was presented as to whether similar problems had occurred in these grievances, or even if Superintendent Summitt had conducted these Level II hearings.
Footnote: 7
      It should be noted Grievant did not demonstrate he was harmed by the procedural irregularities, as he was able to present any testimony he wished at the de novo Level IV hearing. Miller v. Kanawha County Bd. of Educ., Docket No. 96-20-360 (Mar. 7, 1997). See Hicks v. Hampshire County Bd. of Educ., Docket No. 97-14-382 (Mar. 18, 1999); Little v. Kanawha County Bd. of Educ., Docket No. 96-20-352 (Apr. 30, 1997).