MASON COUNTY — Service personnel with Mason County Schools have recently filed a grievance against the Mason County Board of Education (BOE) regarding an increase of the length of their work day without receiving an increase in compensation.
The group of service personnel, which includes teacher’s aides, cooks and secretaries, were previously working a seven-hour day which was then increased to an eight-hour day, a decision that was enforced beginning with the 2011-12 school year via a new overtime policy, Policy 6700, which the board had approved on July 13, 2010.
According to a decision issued by the West Virginia Public Employees Grievance Board, the grievance was filed on July 6, 2011, by Rita Nott and stated the BOE “extended Grievant’s daily schedule for the 2011-2012 school year and future school years without the consent of the grievant and without due process, i.e., notice and an opportunity for hearing.”
By not following due process, Nott also alleged the board to be in violation of several W.Va. Codes and sought “restoration of Grievant’s daily schedule to the 2010-2012 number of hours worked and compensation for all time worked over and above the 2010-2011 required number of hours worked per day with interest.”
The decision continues, saying another 50 employees also filed similar grievances in early July 2011, all of which were consolidated into this one grievance on Aug. 9, 2011, and assigned one docket number. Following a hearing on Aug. 10, 2011, the chief administrator’s designee Jack Cullen denied the grievance on Sept. 14, 2011, in a written decision, which the grievants appealed on Jan. 12, 2012. Another hearing was held on June 5, 2012, and the grievance became eligible for decision on July 3, 2012.
According to the grievance board’s decision, when the BOE enforced the new overtime policy, it required these employees to work an eight-hour day, resulting in a 40-hour week, as opposed to a seven-hour day and a 35-hour week. When working 35 hours, the employee would receive additional compensation at their regular rate of pay for the first five hours of extra work, totaling 40 hours per week. For time over 40 hours, the employee would receive compensation calculated at time and one-half of the regular rate of pay. As stated in the grievance decision, this practice was never formally approved by the BOE. The employees’ 30-minute duty-free lunch period and two 15-minute breaks were also included as time worked towards the seven-hour day.
The decision continues, saying when the employees’ work day was increased to eight hours, the BOE only paid overtime as mandated by the Fair Labor Standards Act (FLSA). The employees’ lunch period and two breaks were still considered time worked toward the 40-hour week. The BOE provided evidence that it currently had a deficit exceeding $1 million and was mandated to provide aides for certain students for more than seven hours during the school day. The decision also states the increase in the employees’ work day was a violation of the “non-relegation clause” of W.Va. Code 18A-4-8(m), and the BOE failed to show any legal basis for superseding the provision, which led to the granting of the grievance.
In addition, the decision found the BOE “made a good faith effort to notify all persons in the service personnel classification represented by Grievants that Policy 6700 would be implemented during the 2011-12 school year through correspondence addressed to individual employees mailed on or about June 9, 2011.”
The decision also stated the BOE “made no effort to invoke W.Va. Code 18A-2-6, 18A-2-7 or 18A-2-8a, and provide Greivants with timely notice of a proposed changed to their employment status and a due process hearing.”
Superintendent Suzanne Dickens said when enforcing the overtime policy, the BOE had two options on how to proceed, one being to place the employees on the Reduction In Force (RIF) list and then repost their positions or by enforcing the policy. Dickens was then informed the BOE must proceed with the RIF list option and reconfigure the employees’ contracts, which she is currently doing.
On Friday, Feb. 2 and Monday, Feb. 4, service personnel met with Jeremy Radabaugh, organizational development specialist with the West Virginia Education Association, to discuss the grievance and the options they had regarding their contracts. At these meetings, Radabaugh and employees discussed letters they had received from Dickens on the reconfiguration of their contracts beginning with the 2013-14 school year. The letters explained the increase in the work day and gave the employees the option whether to sign the letter which guaranteed the employee would keep their current position and could not be transferred, or to not sign it and request a hearing with the BOE. If the employee did not sign the letter, he/she would be placed on the RIF list and his/her job would be reposted, with such comes along the possibility of losing his/her current position and being transferred to a different one. The letter also explained a reduction in duties for the employees, which, in turn, compensated for the employees not receiving an increase in pay.
On Tuesday evening, service personnel met again to discuss their options and came to a consensus to sign the letters they had received in order to keep their current positions and avoid being transferred. Radabaugh also noted by signing the letter and agreeing to the new contract, the employees are not waiving the grievance, but they cannot request a hearing with the board.
Since the grievance has been granted, the decision orders “that Grievants be returned to a seven-hour per day work schedule, and that each Grievant be compensated at their regular hourly rate of pay, as back pay with statutory interest, less any appropriate deductions but including all benefits derived therefrom, for each hour greater than 35 hours per week, up to and including 40 hours per week, which the Grievant worked during the 2011-12 or 2012-13 school years, and forward from the date of this Decision until the prior work schedule is restored. It is further ordered that any Grievant who worked more than 40 hours per week during the 2011-12 or 2012-13 school years, and who did not received FLSA overtime for such hours, be paid at one and one-half times their regular rate of pay, as back pay with statutory interest, less any appropriate deductions, and such payments shall continue forward from the date of this Decision until the prior work schedule is restored. In calculating any such 35-hour or greater work week, Respondent will include the 30-minute duty-free lunch hour and two 15-minute duty-free breaks each workday, unless a Grievant previously waived such benefits in writing.”
According to Dickens, the BOE has a period of 30 days to appeal the grievance, and a decision has not yet been made but must be done so by Feb. 16. Although an official decision has not been made, Dickens said she expects the BOE will appeal the grievance.
It was also reported not all of the service personnel employees were listed on the grievance. Since it was filed during the summer, some employees who now say they would have signed the grievance did not because they were not notified. Radabaugh also noted if the BOE’s appeal is denied, by law, they are only required to pay the employees who are listed in the grievance. Radabaugh said they would be looking to see if there were any options which would allow all of the employees to get paid and for the BOE to begin paying the employees immediately.
Further information on this story will appear in the Point Pleasant Register as it becomes available.
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