v. Docket No. 95-30-111
MONONGALIA COUNTY BOARD OF EDUCATION
Grievant, Rodney D. Moore, employed by the Monongalia County Board of Education
(Board) as a bus operator, initiated grievance proceedings in 1994 complaining that he was
not paid for a mid-day run on holidays, snow days, and sick or personal leave days. The
level one decision was not made part of the record. The grievance was denied at level two,
Grievant elected to bypass level three, and appeal was made to level four on March 14,
1995. An evidentiary hearing was conducted on September 14, 1995, to supplement the
lower-level record. The matter became mature for decision with the conclusion of
responsive briefing on November 8, 1995.
The facts of this matter are as follows. Grievant was first employed by the Board as
a substitute bus operator during the 1984-85 school year. He became a regular, full-time
employee beginning the 1985-86 school year when he was awarded bus run number four.
This run consisted of a morning/evening run and a mid-day
Kindergarten run which required another two and a quarter hours to complete. It is
undisputed that the reason for this combined posting was that it was for a very rural route
and the Board had experienced difficulty in attracting employees to bid for the assignment.
Compensation for the mid-day run was listed as $3.50 per hour. In October 1985, Grievant
was provided a separate contract for the mid-day run indicating compensation would be
$10.50 per hour. He stated at hearing it was his understanding that if he did not sign thecontract he would retain the run at the lower rate of pay.
Grievant was provided a supplemental contract only for the 1985-86 school year, but
continued to perform the run until it was eliminated in 1994. Throughout this period of
time, Grievant claims that he was led to believe that his salary and the mid-day run were
fixed, and that the run was no longer a supplemental assignment. Grievant was not
compensated for the mid-day run while on leave, holidays, or snow days for the entire ten
years.
Grievant argues that he held a unique position in that no other assignment was ever
posted with a mandatory mid-day run. Because the Kindergarten run was never posted as
a separate assignment, but was listed as an original job requirement for bus run number
four, Grievant argues that as a full-time employee with a full-time contract he should be
compensated at his hourly rate of pay for each day he did not perform the Kindergarten
run, including snow days, sick days, personal days, etc. from 1985 through 1994, and that his
salary be continued at the same level it was prior to termination of the run.
(See footnote 1)
It is the Board's position that the contract for the mid-day Kindergarten run was a
separate document which clearly set forth the conditions of that employment, i.e., the terms
of the run for a specific amount of money for each day the run was made. Further, it claims
that any conditions of employment outlined in the job posting are not controlling because
only contracts approved by the Board are binding. Grievant was compensated consistentwith the terms of the supplemental contract, which were the same terms provided to all bus
operators with similar contracts. The Board asserts that the supplemental contract was for
one year only and that it cannot be responsible for any misconception Grievant may have
held that he was required to continue the mid-day run as part of his regular duties. Finally,
the Board argues that the grievance was not timely filed because it involves a contract made
several years ago. Grievant has provided copies of
the Notice of Vacancy advertising the position for which he was hired in 1985. That
document specifically provides that the run was for "Blacksville Bus Garage Bus #4 Run
must except [sic] noon run." The Recommendation Form on which the Transportation
Director recommended Grievant for employment listed the position as "Full Time 10 month
+ noon run." It is also established that Grievant was employed as a ten month, full-time
bus operator for the 1985-86 school year and that he signed a separate contract for the mid-
day Kindergarten run. Although the extra-duty contract was specifically limited to the 1985-
86 school year, it is undisputed that Grievant continued to hold the assignment through the
1993-94 school year.
Grievant's arguments that this complaint was timely filed within fifteen days of receipt
of notice that the run would be terminated, and/or because there is a ten year statute of
limitations regarding breaches of contract in West Virginia, are not persuasive. Grievant
was aware, or should have been aware, in 1985 that he was not being paid for days he did
not complete the mid-day run. The grievance arose in 1985 when Grievant received a
paycheck which did not include compensation for days he did not make the run. The
termination of the assignment cannot be construed as the grievable event in a claim forbackpay. Further, because Grievant performed this assignment without benefit of a contract
beginning in 1986, it is inappropriate to apply the statute of limitations for contractual
issues.
Grievant's alternative argument, that the mid-day run merged into his regular
assignment, is also rejected. Bus operators are compensated based upon a salary schedule
and their years of experience. Grievant was compensated in this manner for his regular
assignment but received additional compensation for the supplemental run. Had the mid-
day run ever been made a part of his regular assignment, Grievant's salary would have been
adjusted at that time.
Grievant does not allege that the mid-day run was improperly eliminated. It is
undisputed that he no longer performs this assignment. Therefore, there is no basis upon
which he is entitled to future compensation generated from the mid-day run. A board of
education cannot compensate an employee for work he does not perform, nor may it
compensate an individual service employee in excess of the salary schedule plus experience
formula. It is unfortunate that Grievant must now realize a reduction in his total income;
however, he has failed to prove an entitlement to compensation for an assignment which he
no longer performs.
In addition to the foregoing narration it is appropriate to make the following formal
findings of fact and conclusions of law.
1. Grievant has been employed on a full-time basis as a bus operator by theMonongalia County Board of Education since 1985.
2. Grievant was initially employed to complete the regular morning/evening duties for
Run #4 and a mid-day Kindergarten run, for which he received additional compensation.
3. Grievant entered into a separate contract for the mid-day run only during the 1985-
86 school year. Grievant continued to hold the assignment until it was eliminated in 1994.
4. Grievant was never compensated for the days on which the mid-day run was not
completed. This practice was consistent with supplemental contracts awarded to all other
bus operators.
5. The mid-day run was terminated at the conclusion of the 1994-95 school year.
Grievant does not allege that the position was improperly eliminated.
6. Grievant initiated grievance proceedings in September 1994.
1. A grievant must prove all of the allegations constituting his grievance by a
preponderance of the evidence. Black v. Cabell County Bd. of Educ., Docket No. 06-88-238
(Jan. 31, 1989).
2. Grievant failed to timely file a claim for the supplemental pay. W.Va. Code §18-29-
4.
3. Grievant has failed to prove any entitlement to future compensation for an
assignment which he no longer performs.
Accordingly, the grievance is DENIED.
DATE: January 31, 1996 _______________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE