GREGORY JACKSON,

                        Grievant,

v.                                                       Docket No. 00-50-040

WAYNE COUNTY BOARD OF EDUCATION,

                        Respondent.

D E C I S I O N

      On December 16, 1999, Gregory Jackson (Grievant) initiated this grievance pursuant to W. Va. Code §§ 18-29-1, et seq., alleging that Respondent Wayne County Board of Education (WCBE) had improperly discontinued the practice under which he received four hours of “guaranteed” overtime per pay period. The grievance was denied at Level I on December 20, 1999, and Grievant appealed to Level II that same day. A Level II evidentiary hearing was conducted on January 5, 2000.   (See footnote 1)  A Level II decision denying the grievance was issued by James J. Ross, the Superintendent's designee, on January 19, 2000. Grievant appealed to Level IV on January 31, 2000, by-passing Level III as authorized by W. Va. Code § 18-29-4(c). After this matter was set for hearing, the parties elected to submit the grievance for decision upon the record developed at LevelII. The parties further agreed on a briefing schedule, and this matter became mature for decision on April 10, 2000, following receipt of the parties' written post-hearing arguments   (See footnote 2)  and a transcript of the Level II hearing.
      Based upon a preponderance of the credible evidence contained in the record established at Level II, the following Findings of Fact pertinent to resolution of this grievance have been determined.
FINDINGS OF FACT
      1.      Grievant is employed by Respondent Wayne County Board of Education (WCBE) as a Truck Driver, a school service personnel position.
      2.      Grievant has been employed by WCBE for approximately 20 years.
      3.      Wilt Salmons is WCBE's Superintendent of Schools.
      4.      During the 1998-99 school year, commencing in approximately late September or early October of 1998, Superintendent Salmons approved, in advance, a maximum of four hours overtime per pay period for Grievant and two other employees in WCBE's Maintenance Department. In addition, Grievant and the other two employees were issued pagers so that they could be reached and called in at anytime to perform work related to their respective positions as required.
      5.      The other two employees who received pagers and advance overtime approval at the same time as Grievant were David Frasher and Charles Preston. Mr.Frasher is employed by WCBE as a Locksmith, and Mr. Preston is employed by WCBE as a Carpenter II/Cabinet Maker.
      6.      Grievant is the only WCBE employee who holds the classification of Truck Driver. R Ex C; HT at 21, 28.
      7.      On November 18, 1999, Superintendent Salmons advised Grievant he was rescinding his advance approval of overtime. Thereafter, Grievant was required to request approval for overtime from his immediate supervisor in advance of working the overtime.
      8.      Grievant voluntarily surrendered the pager he had been issued by WCBE. Grievant was no longer required to carry the pager at all times. Grievant could only recall being paged one or two times to perform overtime work while he carried the pager. HT at 22.
      9.      The decision to discontinue Grievant's advance overtime approval was based upon financial considerations, primarily WCBE's projected deficit during the current school year, rather than a lack of need for Grievant's services, or any misconduct or abuse of the overtime arrangement by Grievant. At no time prior to November 18, 1999, did any of Grievant's supervisors question the need for the overtime work Grievant was performing.
      10.      The advance overtime approval arrangement that was similarly extended to Messrs. Frasher and Preston was not rescinded by Superintendent Salmons. Grievant has not received any overtime pay since November 18, 1999.
      11.      From the time in late September or early October 1998 when Superintendent Salmons gave approval in advance for Grievant to work four hours of overtime each payperiod, until November 18, 1999, Grievant worked four additional hours each pay period, and received compensation for those additional hours at an overtime rate.
DISCUSSION
      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving his 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.
      Grievant contends WCBE violated W. Va. Code § 18A-4-8b, by allowing less senior employees to continue receiving overtime, while violating the uniform pay provision in W. Va. Code § 18A-4-5b, by allowing these other employees to continue receiving overtime as they had in prior years. In addition, Grievant alleges WCBE engaged in discrimination and favoritism prohibited by W. Va. Code §§ 18-29-2(m) and (o), by allowing similarly situated employees to continue receiving overtime after Grievant's overtime was curtailed. Grievant also contends WCBE violated the “non-relegation clause” in W. Va. Code § 18A-4-8, by reducing his rate of pay or working hours after the beginning of the school year without his consent. Because this latter argument is found to be controlling in this grievance, it will be addressed first.
      The so-called “non-relegation” clause in W. Va. Code § 18A-4-8 provides as follows:

      According to the undisputed facts in this case, Grievant's compensation was reduced by four hours of overtime per pay period as a result of Superintendent Salmons' directive on November 18, 1999, rescinding the advance approval of overtime for Grievant. Although this compensation arrangement was not previously incorporated into Grievant's employment contract, the agreement between Grievant and Superintendent Salmons in 1998 substantially altered Grievant's “conditions of employment” within the meaning of W. Va. Code § 18A-4-8. See generally Ford Motor Co. v. NLRB, 441 U.S. 488 (1979).       Absent the arrangement that was in place prior to November 18, 1999, Grievant would have been required to request approval from his immediate supervisor to work overtime, the supervisor would then make a recommendation to the Superintendent, and the Superintendent would have to give at least verbal approval, often after normal working hours when the Superintendent would have to be called at home. Following this procedure would ordinarily be a condition precedent for Grievant working overtime. However, commencing no later than October 1998, the Superintendent simply issued advance approval for four hours of overtime per pay period. This arrangement covered Grievant and two other Maintenance Department employees. Thereafter, Grievant had considerable discretion about what duties he performed during the four hours per pay period. The only established requirement was for Grievant to certify on his time sheet thathe worked an additional half-hour on eight days during each pay period, and he received four hours of overtime compensation in addition to his regular salary.
      The record indicates that this arrangement was mutually beneficial to the parties. Grievant received more compensation, and he also had more time available to make trips to and from the central office and the county's schools, picking up and delivering supplies, and distributing mail and inter-office correspondence. The school system enjoyed more frequent deliveries as Grievant had more time to drive to and from his pick-up and delivery destinations. Perhaps, as he testified at Level III, the Superintendent also enjoyed the benefit of not being hassled by after-hours calls to obtain overtime approval, although it is questionable whether any of the work described in the record was absolutely essential to warrant approval on a case-by-case basis. Indeed, Grievant has adjusted his work priorities since the overtime was rescinded, postponing non-essential deliveries to another day, thereby suggesting that the overtime he was receiving was not essential.
      None of these circumstances obviates the fact that Grievant's working arrangement with the Superintendent provided him an additional four hours of overtime pay per pay period without having to justify his actions to his employer. After more than a year of operating under this arrangement, it clearly became a condition of employment which W. Va. Code § 18A-4-8 does not permit the employer to unilaterally reduce. See Dixon v. Greenbrier County Bd. of Educ., Docket No. 13-88-252 (Feb. 23, 1989); Mayle v. Barbour County Bd. of Educ., Docket No. 89-01-039 (Dec. 21, 1989).
      Although WCBE and Superintendent Salmons may have had the best interests of the school system in mind when this change was effected, and the financial position of thecounty board had then become a paramount concern, that does not give them authority to disregard a statutory provision which limits their discretion in such matters. See Lucion v. McDowell County Bd. of Educ., 191 W. Va. 399, 446 S.E.2d 487 (1994). See generally, Morgan v. Pizzino, 163 W. Va. 454, 256 S.E.2d 592 (1979).
      Based upon the determination that WCBE's action, through its Superintendent, violated W. Va. Code § 18A-4-8, it is not necessary to address Grievant's additional claims of discrimination, favoritism and failure to maintain uniformity in pay and benefits.
      Consistent with the foregoing discussion, the following Conclusions of Law are made in this matter.
      
CONCLUSIONS OF LAW

      1.      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving his 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.      No service employee, without his written consent, may be relegated to any condition of employment which would result in a reduction of his salary, rate of pay, compensation or benefits earned during the current fiscal year or by continuing in the same job position and classification held during said fiscal year and subsequent years. W. Va. Code § 18A-4-8; Mayle v. Barbour County Bd. of Educ., Docket No. 89-01-039 (Dec. 21, 1989).      3.      "School personnel laws and regulations are to be construed strictly in favor of the employee." Syl. Pt. 1, Morgan v. Pizzino, 163 W. Va. 454, 256 S.E.2d 592 (1979).
      4.      Superintendent Salmons' unilateral rescission of the arrangement under which Grievant had been approved to receive four hours overtime per pay period relegated Grievant to a condition of employment which reduced his compensation in violation of W. Va. Code § 18A-4-8. See Lucion v. McDowell County Bd. of Educ., 191 W. Va. 399, 446 S.E.2d 487 (1994); Mayle, supra.
      
      Accordingly, this grievance is GRANTED. Respondent Wayne County Board of Education is hereby ORDERED to reinstate the condition of employment which allowed Grievant to work an additional four hours per pay period, and receive overtime compensation without advance approval from the Superintendent or his designee. Further, Grievant shall receive back pay, with interest, for all overtime pay he would have received if this condition of employment had not been improperly rescinded, from November 18, 1999, until the date this Decision is implemented.
      Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of Wayne 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.

                                                                                                  LEWIS G. BREWER
                                                ADMINISTRATIVE LAW JUDGE

Dated: April 21, 2000


Footnote: 1
      At that hearing, Grievant was represented by counsel, John Roush, with the West Virginia School Service Personnel Association. WCBE was represented by Michael E. Ferguson, its Director of Federal Programs.
Footnote: 2
      Grievant's brief was submitted by Mr. Roush. WCBE's brief was submitted by counsel, David Lycan.