v. DOCKET NO. 96-CORR-168
WEST VIRGINIA DIVISION OF CORRECTIONS\
PRUNTYTOWN CORRECTIONAL CENTER,
Grievant, Charles Miller, filed this grievance against his
employer, the West Virginia Division of Corrections, Respondent, on
February 20, 1996. Grievant, a Correctional Officer IV, alleges
that Respondent is obligated to supply or reimburse him for one
meal when he works two eight hour shifts in a row. As relief, he
requests to be reimbursed or made whole for the meal during the
second straight shift.
Grievant was denied relief at the lower levels of the
grievance procedure. At Level IV, an evidentiary hearing was held
at the Grievance Board's office in Elkins, West Virginia, on
October 15, 1996. The case became mature for decision on December
The following findings of fact were derived from the record.
FINDINGS OF FACT
1. Prior to February 20, 1996, Grievant worked two eight hour
shifts in a row. At the time, Grievant was working day shift, from
7 a.m. to 3 p.m. Grievant purchased a meal (lunch) at the facilityduring the day shift. The same day, Grievant also worked the
evening shift, from 3 p.m. to 11 p.m., and purchased a meal
(supper) at the facility during the evening shift.
2. One meal at the Pruntytown Correctional Center costs
Respondent's Policy Directive #367.01, Collection of Monies
for Food, provides in pertinent part:
All food which is the property of the state and which is
eaten by any person other than an inmate or resident at
any institution operated by the Department of Corrections
will be paid for at a rate established by the
Commissioner. Food tickets must be purchased and no
individual other than a resident or inmate will be
permitted to obtain food without a food ticket for
Grievant disagrees with the above policy when he works a
second eight hour shift in a row, and feels that Respondent should
either provide him with a free meal or reimburse him for a meal
purchased off the premises.
(See footnote 1)
He bases this assertion on 42 W.Va. C.S.R. §8-10.2 of the Legislative Rules, West Virginia Department
of Labor, which, under the heading of Meal Allowance, provides in
The credit -- A credit of one dollars [sic] ($1.00) per
day shall be allowed for meals made available and eaten
if an employee completes a workday of at least eight (8)
However, the State Department of Labor rules do not apply to
state employees because the definition of employer found at 42
W.Va. C.S.R. §8-2.9 excludes any employer if eighty percent (80%)
of its employees are subject to any federal act. State of West
Virginia employees fall within this exception. See Adkins v. City
, 191 W.Va. 317, 445 S.E.2d 500 (1994).
Grievant also relied on the following paragraph taken from
page ten of a U.S. Department of Labor publication, WH Publication
1325, Revised April 1985, entitled Overtime Compensation Under the
Fair Labor Standards Act:
Reimbursement for Expenses
: When an employee incurs
expenses on the employer's behalf or where the employee
is required to spend sums solely for the convenience of
, payments to cover such expenses are not
included in the employee's regular rate of pay. Examples
of such expenses are sums spent by the employee to buy
supplies for the employer; travel expenses while
traveling on the employer's business; and supper money
where an employee works past the normal quitting time.
Reimbursement for such expenses is not compensation for
services rendered by the employees.
The above provision does not support Grievant's claim. This
provision merely specifies that if and employer does pay, then such
payments are not included in the employee's regular rate of pay.
It is written in the context of what compensation may be included
by an employer in determining an employee's wage rate to aid in the
computation of an overtime wage rate.
In addition to the foregoing findings of fact and narration,
it is appropriate to make the following formal conclusions of law.
CONCLUSIONS OF LAW
1. In nondisciplinary matters the grievant must prove all of
the allegations constituting the grievance by a preponderance of
the evidence. Unrue v. W. Va. Div. of Highways, Docket No. 95-DOH-
287 (Jan. 22, 1996).
2. Grievant failed to prove, by a preponderance of the
evidence, a violation of the Federal Fair Labor Standards Act, 29
U.S.C §201 et seq., or West Virginia Department of Labor
legislative rule 42 W. Va. C.S.R. §8-10.2.
Accordingly, the grievance is DENIED.
Any party may appeal this decision to the "circuit court of
the county in which the grievance occurred," and such appeal must
be filed within thirty (30) days of receipt of this decision.
W. Va. Code §29-6A-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. Any
appealing party must advise this office of the intent to appeal and
provide the civil action number so that the record can be prepared
and transmitted to the appropriate court.
Dated: 12/23/96 ____________________________________
JEFFREY N. WEATHERHOLT
ADMINISTRATIVE LAW JUDGE
Respondent in its post-hearing submission asserts that if
[Grievant] has a legitimate gripe it should be before the State
Department of labor, or under the Fair Labor Standards Act [FLSA],
not the Grievance Board. [Grievant's] documents refer to the FLSA
or the West Virginia Department of Labor regulations. However,
the Grievance Board is an appropriate forum for grievances
involving the FLSA, or State Department of Labor regulations. See
Belcher v. W. Va. Div. of Highways, Docket No. 94-DOH-341 (Apr. 27,