WENDELL TATE, et al.,
Grievant,
v. Docket No. 02-30-318D
MONONGALIA COUNTY
BOARD OF EDUCATION,
Respondent.
DECISION
Grievants,
(See footnote 1)
bus operators employed by Respondent Monongalia County Board of
Education (“MCBOE”), initiated this proceeding on an unspecified date in the summer of
2002, alleging Respondent did not follow the extra-duty policy in awarding a bus trip on
June 24. They seek as relief to each receive compensation for the extra-duty trip.
Subsequently, Grievants alleged a default had occurred, and this matter proceeded to
level four on August 8, 2002, pursuant to MCBOE's request for a hearing regarding the
default issue. Respondently subsequently conceded that a default occurred, and a
hearing was held in the Grievance Board's office in Westover, West Virginia, on November
18, 2002, for the purpose of determining whether the Grievants' requested remedy is
contrary to law or clearly wrong. Grievants were represented by counsel, John E. Roush,
and Respondent was represented by counsel, Kelly J. Kimble. This matter became mature
for consideration upon receipt of the parties' fact/law proposals on December 19, 2002. The following findings of fact are made based upon a preponderance of the credible
evidence of record.
Findings of Fact
1. Grievants are regularly employed as bus operators.
2. On June 24, 2002, a bus was needed to transport a group of students to the
Pittsburgh International Airport, where they would be departing by plane for an
extracurricular activity in another state. The school officials who arranged the trip
requested one bus from the transportation department.
3. Pursuant to MCBOE's extra-duty bus run policy, these assignments are made
on a rotating basis according to seniority. Emergency situations are handled by the
transportation supervisor and are not defined in the policy.
4. The June 24, 2002, trip was assigned pursuant to the extra-duty policy.
5. Just prior to departure, it became evident that, because of the large amount
of luggage brought by the students, all of the students and luggage would not fit on the
bus.
6. The driver called Mr. Schetzner, Director of Transportation, on the radio,
advising him of the situation. In turn, Mr. Schetzner called the bus garage to find out if any
drivers were immediately available to drive another bus to Pittsburgh.
7. The only driver available at the garage, Grievant Statler, was not interested
in taking the trip.
8. No other drivers were at the bus garage when Mr. Schetzner called.
However, Walter Flint, a mechanic employed by MCBOE who has a commercial driver'slicense, was at the garage and agreed to drive a bus to Pittsburgh. Due to the urgency of
the situation and the possibility of the students missing their flight, no contact with any
other drivers was attempted.
9. The bus driven by Mr. Flint to Pittsburgh contained only luggage.
Discussion
Because Grievants are presumed to have prevailed by default, the burden of proof
is upon Respondent to prove by clear and convincing evidence that the relief requested
by Grievants is clearly wrong or contrary to law. This standard requires the party with the
burden of proof to produce evidence substantially more than a preponderance of the
evidence, but less than that required to prove the matter beyond a reasonable doubt.
Lohr
v. Div. of Corrections, Docket No. 99-CORR-157D (Nov. 15, 1999).
Respondent contends that payment of each Grievant for the trip in question is both
illegal and unreasonable. This was clearly an emergency situation, so its handling was
within the discretion of Mr. Schetzner, who “grabbed” the first person he could find to drive
a bus to Pittsburgh on extremely short notice. Conversely, Grievants believe that this was
not an emergency and that the transportation department should have arranged for two
buses in the first place. They contend that, just because the school made a mistake when
it requested only one bus, Grievants should not have been disadvantaged by being
passed over in the extra duty rotation.
A very similar situation was previously addressed by this Grievance Board in
Sizemore/Lemley v. Monongalia County Board of Education, Docket No. 98-30-428 (Jan.
26, 1998). In that case, it was held that, so long as the supervisor's decision isreasonable, handling of emergency bus runs is clearly within his discretion, as set forth in
MCBOE's policy. Respondent has demonstrated in the instant case that Mr. Schetzner
was clearly presented with a dire emergency, because the students were in danger of
missing their flight if departure was delayed any further. Upon calling the bus garage and
discovering that an employee with a commercial driver's license was immediately available
and willing to drive a bus full of luggage, Mr. Schetzner made a quick, logical decision.
His decision not to begin calling other drivers until one was found--which could have taken
some time--was a reasonable one under the circumstances.
Moreover, as was the case in
Sizemore,
supra, the evidence does not indicate that
any of Grievants would necessarily have received the run in question under the regular
rotation, a prerequisite to relief in this type of case. On MCBOE's extra-duty trip roster,
the names of at least nine other drivers appear between the name of the last driver to
receive
a trip and the name of any Grievant. It is unknown, but entirely possible, that one of these
individuals may have taken the Pittsburgh trip if asked, before Grievants would have had
the opportunity to take or refuse it. Nevertheless, as Respondent correctly points out,
Grievants' requested relief of having all of them be paid for a trip only one person could
have taken is both absurd and unreasonable. "When the relief sought by a [g]rievant is
speculative or premature, or otherwise legally insufficient, [the] claim must be denied."
Lyons v. Wood County Bd. of Educ., Docket No. 89-54-601 (Feb. 28, 1990);
See Clark v.
Putnam County Bd. of Educ., Docket No. 97-40-313 (April 30, 1998).
Accordingly, Respondent has met its burden of proving by clear and convincing
evidence that Grievants' requested is clearly wrong and contrary to law, because
MCBOE's extra duty policy was followed in this case and the requested relief would be
inappropriate.
Consistent with the foregoing, the following conclusions of law are made.
Conclusions of Law
1. Once it has been determined that a default has occurred, the burden of proof
is upon Respondent to prove by clear and convincing evidence that the relief requested
by Grievant is clearly wrong or contrary to law.
Lohr v. Div. of Corrections, Docket No.
99-CORR-157D (Nov. 15, 1999).
2. "When the relief sought by a [g]rievant is speculative or premature, or
otherwise legally insufficient, [the] claim must be denied."
Lyons v. Wood County Bd. of
Educ., Docket No. 89-54-601 (Feb. 28, 1990);
See Clark v. Putnam County Bd. of Educ.,
Docket No. 97-40-313 (April 30, 1998).
2. Respondent has proven by clear and convincing evidence that the trip in
question was properly handled as an emergency, and Grievants are not entitled to
payment for this extra-duty bus run, which would be contrary to law and clearly wrong.
Accordingly, this grievance is DENIED.
Any party may appeal this Decision to the Circuit Court of Kanawha County or the
Circuit Court of Monongalia County, and such appeal must be filed within thirty (30) daysof 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: January 8, 2003 _______________________________
DENISE M. SPATAFORE
Administrative Law Judge
Footnote: 1