John Everrett Roush
F. Thomas Rubenstein
West Virginia School Service Harry M. Rubenstein
Personnel Association Kay, Casto & Chaney
Charleston, West Virginia Morgantown, West Virginia
Attorney for the Appellant Attorneys for Appellee Mingo
County Board of Education
JUSTICE DAVIS delivered the Opinion of the Court.
1. A final order of the hearing examiner for the West Virginia
Educational Employees Grievance Board, made pursuant to W. Va. Code § 18-29-1, et
seq. (1985), and based upon findings of fact, should not be reversed unless clearly
wrong. Syllabus point 1, Randolph County Board of Education v. Scalia, 182 W. Va.
289, 387 S.E.2d 524 (1989).
2. Grievance rulings involve a combination of both deferential and
plenary review. Since a reviewing court is obligated to give deference to factual findings
rendered by an administrative law judge, a circuit court is not permitted to substitute its
judgment for that of the hearing examiner with regard to factual determinations.
Credibility determinations made by an administrative law judge are similarly entitled to
deference. Plenary review is conducted as to the conclusions of law and application of law
to the facts, which are reviewed de novo. Syllabus point 1, Cahill v. Mercer County
Board of Education, ___ W. Va. ___, ___ S.E.2d ___ (No. 26602 June 12, 2000).
3. Seniority arises either from a statute or from a contract between an
employer and an employee.
4. Statutes which relate to the same subject matter should be read and applied together so that the Legislature's intention can be gathered from the whole of the enactments. Syllabus point 3, Smith v. State Workmen's Compensation Commissioner, 159 W. Va. 108, 219 S.E.2d 361 (1975).
5. Pursuant to W. Va. Code § 18A-4-8g(a) (2000) (Supp. 2000), seniority for a regular school service employee continues until the employee's regular employment with the county board is severed. Seniority of a substitute school service employee shall continue until the employee enters into the duties of a regular employment contract or employment as a substitute with the county board is severed. Finally, under the aforementioned statute, seniority of a regular or substitute employee shall continue to accumulate except during the time when an employee is willfully absent from employment duties because of a concerted work stoppage or strike, or is suspended without pay.
6. School service personnel must be given seniority earned for time
served under a contract for a position later determined to have been incorrectly awarded
to such employee.
William K. Hall, appellant/petitioner below (hereinafter referred to as Mr. Hall), appeals a final order of the Circuit Court of Kanawha County that affirmed a decision by the West Virginia Education & State Employees Grievance Board (hereinafter referred to as Grievance Board). The dispositive issue for resolution is whether the lower tribunals erred by failing to award seniority earned by Mr. Hall during the time period of 1993-1994.See footnote 1 1
The BOE determined that Mr. Crum had more seniority than Mr. Hall.See footnote 3
BOE made this determination after concluding that Mr. Hall had obtained employment as
a substitute bus driver during the period of 1993-1994 as a result of inaccurate information
regarding work he had performed in the 1970's. Thus, the BOE concluded that, after
removing the seniority awarded for his work in the 1970's, Mr. Hall did not have enough
seniority to obtain the substitute bus operator job awarded to him during the time period
of 1993-1994. Consequently, the BOE abolished all seniority that Mr. Hall had obtained
during the 1993-1994 school year.
Mr. Hall filed a grievance challenging the BOE's decision. The decision of
the BOE was affirmed at the administrative level.See footnote 4
Mr. Hall then appealed the decision
to the circuit court, where the BOE's decision was also affirmed. It is from the circuit
court's decision that Mr. Hall now appeals.
Additionally, Mr. Hall argues that the administrative law judge's decision to
overrule Spaulding was an arbitrary decision. Mr. Hall accurately contends that Spaulding
had been applied by the Grievance Board in Hurley v. Mingo County Brd. of
Educ., W.Va. Educ. & State Empl. Griev. Bd., Docket No. 95-29-211R (April 8, 1998),
to award seniority to an employee who had been wrongfully awarded a position.
Although, the circuit court was made aware of the contradicting positions taken by the
Grievance Board, it responded by ruling that the Court must recognize that the West
Virginia Education and State Employees Grievance Board may reasonably interpret statutes
and prior decisions that it is charged with administering.
This Court has never squarely addressed the issue of whether school service
personnelSee footnote 6
must be given earned seniority for time served under a contract for a position
that was later determined to have been incorrectly awarded to an employee.See footnote 7
We do so
It is generally recognized by courts in other jurisdictions that seniority is not
inherent to employment. Accordingly, we hold that seniority arises either from a statute
or from a contract between an employer and an employee. See N.L.R.B. v. International
Association of Machinists, Aeronautical Indus. Dist. Lodge 727, 279 F.2d 761 (9th Cir.
1960); N.L.R.B. v. Wheland Company, 271 F.2d 122 (6th Cir. 1959); Flowers v.
Brotherhood of Locomotive Firemen and Enginemen, 91 S.E.2d 41 (Ga. 1956); May v.
Santa Fe Trail Transp. Co., 370 P.2d 390 (Kan. 1962); Hessler v. American Television
& Radio Co., 104 N.W.2d 876 (Minn. 1960); Palizzotto v. Local 641, Int'l Bhd. of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, 170 A.2d 57 (N.J. 1961).
In this State, school service personnel seniority is established by statute. Therefore, we
begin our analysis by reviewing the relevant statutes.
This Court has long held that [w]hen a statute is clear and unambiguous and
legislative intent is plain the statute should not be interpreted by the courts, and in such
case it is the duty of the courts not to construe but to apply the statute. Syl. pt. 1,
Cummins v. State Workmen's Comp. Comm'r, 152 W. Va. 781, 166 S.E.2d 562 (1969).
Accord City of Kenova v. Bell Atlantic-West Virginia, Inc., 196 W. Va. 426, 432, 473
S.E.2d 141, 147 (1996). Conversely, [a] statute that is ambiguous must be construed
before it can be applied. Syl. pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d
454 (1992). Accord Syl. pt. 3, State ex rel. McGraw v. Combs Servs., 206 W. Va. 512,
526 S.E.2d 34 (1999). Moreover, [s]tatutes which relate to the same subject matter
should be read and applied together so that the Legislature's intention can be gathered from
the whole of the enactments. Syl. pt. 3, Smith v. State Workmen's Compensation
Comm'r, 159 W. Va. 108, 219 S.E.2d 361 (1975). Accord Syl. pt. 5, State ex rel. Rist
v. Underwood, 206 W. Va. 258, 524 S.E.2d 179 (1999). It is also the duty of this Court
to avoid whenever possible a construction of a statute which leads to absurd, inconsistent,
unjust or unreasonable results. State v. Kerns, 183 W. Va. 130, 135, 394 S.E.2d 532,
537 (1990). Accord Expedited Transp. Sys., Inc. v. Vieweg, ___ W. Va. ___, ___, 529
S.E.2d 110, 118 (2000). With these general canons in mind, we now address the statutes
relevant to this case.
At the outset, we must acknowledge that we have discovered no school
service personnel statute that directly addresses the issue of whether a school service
employee must be awarded seniority for time served under a contract for a position later
determined to have been incorrectly filled by such employee. Therefore, in an effort to
determine the legislative intent and to decided a fair resolution of the question, we must
look to other relevant statutes regarding seniority for school service personnel.See footnote 8
The Legislature has expressly identified when seniority begins to accumulate
for school service personnel. In W. Va. Code § 18A-4-8g(a) (2000) (Supp. 2000)See footnote 9
following language appears:
(a) Seniority accumulation for a regular school service employee begins on the date the employee enters upon regular employment duties pursuant to a contract as provided in section five [§ 18A-2-5], article two of this chapter and continues until the employee's employment as a regular employee is severed with the county board. Seniority shall not cease to accumulate when an employee is absent without pay as authorized by the county board or the absence is due to illness or other reasons over which the employee has no control as authorized by the county board. Seniority accumulation for a substitute employee shall begin upon the date the employee enters upon the duties of a substitute as provided in section fifteen [§ 18A-4-15] of this article, after executing with the board a contract of employment as provided in section five, article two of this chapter. The seniority of a substitute employee, once established, shall continue until the employee enters into the duties of a regular employment contract as provided in section five, article two of this chapter or employment as a substitute with the county board is severed. Seniority of a regular or substitute employee shall continue to accumulate except during the time when an employee is willfully absent from employment duties because of a concerted work stoppage or strike or is suspended without pay.
See also W. Va. Code § 18A-4-8b (1996) (Repl. Vol. 1997) (For purposes of determining seniority under this section an employee's seniority begins on the date that he or she enters into his assigned duties. . . . The seniority of any service personnel shall be determined on the basis of the length of time the employee has been employed by the county board within a particular job classification.).
Based upon the foregoing, we hold that, pursuant to W. Va. Code § 18A-4-
8g(a) (2000) (Supp. 2000), seniority for a regular school service employee continues until
the employee's regular employment with the county board is severed. Seniority of a
substitute school service employee shall continue until the employee enters into the duties
of a regular employment contract or employment as a substitute with the county board is
severed. Finally, under the aforementioned statute, seniority of a regular or substitute
employee shall continue to accumulate except during the time when an employee is
willfully absent from employment duties because of a concerted work stoppage or strike,
or is suspended without pay.
While the Legislature has expressly stated in W. Va. Code § 18A-4-8g(a)
those conditions upon which a school service employee may lose seniority, the statute
provides no guidance for how a school service employee loses seniority earned in a
position for which the employee was erroneously employed. In reviewing other statutes,
we have found a clear preference by the Legislature that earned benefits, such as
seniority, be retained by school service employees. The following relevant language
appears in the employment terms and definition section of W. Va. Code § 18A-4-8(m)
(2000) (Supp. 2000):
No service employee, without his or her written consent, may be . . . relegated to any condition of employment which would result in a reduction of his or her salary, rate of pay, compensation or benefits earned during the current fiscal year. . . .See footnote 10 10
(Footnote added). The above statute is a general pronouncement that sets forth a standard for taking action against a school service employee that would adversely affect specific rights of an employee. That standard requires the written consent of the employee for such adverse action to occur. We believe that under the above statute, accumulated seniority by a school service employee would constitute a benefit earned that could not be adversely affected without the employee's written consent.See footnote 11 11
W. Va. Code § 18A-4-8(m) is consistent with several other statutes. It
clearly expresses a legislative intent that earned benefits, such as seniority, may not be
arbitrarily removed once awarded to school service personnel. Similar retention language
appears in W. Va. Code § 18A-4-8b as follows:
The seniority of any service personnel shall be determined on the basis of the length of time the employee has been employed by the county board within a particular job classification. For the purpose of establishing seniority for a preferred recall list as provided in this section, when an employee has been employed in one or more classifications, the seniority accrued in each previous classification shall be retained by the employee.
If a county board is required to reduce the number of employees within a particular job classification, the employee with the least amount of seniority within that classification or grades of classification shall be properly released and employed in a different grade of that classification if there is a job vacancy: Provided, that if there is no job vacancy for employment within the classification or grades of classification, he or she shall be employed in any other job classification which he or she previously held with the county board if there is a vacancy and shall retain any seniority accrued in the job classification or grade of classification.
(Emphasis added). We have also found seniority retention language in W. Va. Code § 18A-4-8c (1990) (Repl. Vol. 1997). Which states:
[S]ervice personnel whose employment with the multi-county vocational center was immediately preceded by employment with one of the county boards participating in the operation of the center or whose employment contract was with one of the county boards participating in the operation of the center (1) shall retain any seniority accrued during employment by said county board. . . .See footnote 12 12
(Emphasis added) (footnote added). Finally, retention of seniority rights are provided for
in W. Va. Code § 18A-4-8g(e) (2000) (Supp. 2000) as follows:
[U]pon termination of a leave of absence or a suspension, the employee shall return to the status previously held. If the employee returns to substitute status, the employee shall retain any regular employee seniority accrued.See footnote 13 13
These statutes clearly illustrate the importance of seniority as it is viewed by
the Legislature. We are equally aware of the importance of seniority in the careers of
school service employees. The significance of seniority was carefully articulated in a
dissenting opinion by Chief Judge Feinberg of the United States Court of Appeals for the
Second Circuit as follows:
Seniority is the most important, and often the only, equity workers have in their [jobs]. It is one of the chief protections a worker has from management's vagaries, and it preserves the self-esteem and financial security of workers who have devoted their lives to [their jobs].
Royal Composing Room, Inc. v. Royal Composing Room, Inc., 848 F.2d 345, 356 (2d Cir. 1988) (Feinberg, C.J., dissenting). See also George Cooper & Richard B. Sobol, Seniority and Testing Under Fair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion, 82 Harv. L. Rev. 1598, 1601-02 (1969) (The use of competitive status seniority to govern promotions, demotions, and layoffs is a fundamental aspect of industrial relations in this country. In nearly all businesses of significant size whose employees are organized, a seniority system plays some role in determining the allocation of the work.). It is the opinion of this Court that, because of its significance, earned seniority cannot be removed from an employee in an arbitrary manner.
We have little hesitation in concluding that the administrative law judge acted
arbitrarily and capriciously by failing to apply the Spaulding decision to Mr. Hall's
grievance and by failing to award to Mr. Hall all seniority credits earned for the time
period of 1993-1994. We agree with Mr. Hall that the administrative law judge's conduct
makes it appear that there is one principle of law on this issue for [him] and another for
every other service employee of [the BOE]. Our laws must be uniformly applied.
Therefore, we hold that school service personnel must be awarded seniority earned for
time served under a contract for a position later determined to have been incorrectly
awarded to such employee.See footnote 14
In the instant case, the record indicates that Mr. Hall was not at fault in the
miscalculation which lead to his obtaining the substitute bus driving contract for the period
of 1993-1994.See footnote 15
Consequently, it was error for the lower tribunals to deny Mr. Hall the
full seniority credits he earned during the period of 1993-1994.See footnote 16
Affirmed as to Case Number 28396; Reversed and Remanded as to Case Number 27870.
Second, Mr. Hall contends that the issue of his seniority should have been litigated
in the action in which he was an intervenor. The lower tribunals refused to litigate the
issue, and we agree with that decision. The lower tribunals had no jurisdiction over Mr.
Hall's seniority issue, as it was litigated in his first grievance and was pending review by
Where it appears to the Court upon mature consideration that an appeal presents no substantial issues of fact or law which can be considered fairly raised and where the trial court arrived at a correct result, the appeal will be dismissed as improvidently awarded and the judgment of the circuit court will be summarily affirmed. Syllabus, Napier v. Plymale, 167 W. Va. 372, 280 S.E.2d 122 (1981). Accord Syl. pt. 1, Lubeck Meat Packing, Inc. v. Motorists Mut. Ins. Co., 179 W. Va. 372, 369 S.E.2d 223 (1988). Therefore, the appeal in Case Number 28396 is dismissed as improvidently granted. See,
e.g., McDaniel v. Kleiss, 198 W. Va. 282, 480 S.E.2d 170 (1996) (dismissing, in part, as improvidently granted); Coleman v. Sopher, 194 W. Va. 90, 459 S.E.2d 367 (1995) (dismissed as improvidently granted); James M.B. v. Carolyn M., 193 W. Va. 289, 456 S.E.2d 16 (1995) (same); State v. Walters, 186 W. Va. 169, 411 S.E.2d 688 (1991) (same).
BOE. The administrative law judge reasoned that, since the inaccurate calculation of Mr. Hall's work in the 1970's was not his fault, he should not be stripped of all the seniority he gained in 1993-1994. Therefore, the administrative law judge awarded to Mr. Hall seniority from the 1993-1994 time period that would give him one day less seniority than Mr. Crum.
(m) No service employee, without his or her written consent, may be reclassified by class title, nor may a service employee, without his or her written consent, be relegated to any condition of employment which would result in a reduction of his or her salary, rate of pay, compensation or benefits earned during the current fiscal year or which would result in a reduction of his or her salary, rate of pay, compensation or benefits for which he or she would qualify by continuing in the same job position and classification held during that fiscal year and subsequent years.
and the center equals the statutory number required for continuing contract status; and (4) shall retain and continue to accrue county and center seniority in the event of reemployment by said participating county as a result of direct transfer from the center or recall from the preferred list.