Title: Cambria Union and Coast Union School Districts
and California School Employees Association, Chapt. 492
IN ADVISORY ARBITRATION PROCEEDINGS
PURSUANT TO AGREEMENT BETWEEN THE PARTIES
In the Matter of Advisory
- between -
FINDINGS, CONCLUSIONS, AND
CALIFORNIA SCHOOL EMPLOYEES )
ASSOCIATION, NORTH COAST ) RECOMMENDATIONS
SCHOOL EMPLOYEES, CHAPTER 492
- and -
CAMBRIA UNION ELEMENTARY
SCHOOL DISTRICT / COAST UNION
HIGH SCHOOL DISTRICT
June 11, 1997
Involving: Extension of Hours
Advisory Arbitration arises pursuant to Agreement between the California School
Employees Association, North Coast School Employees, Chapter 492, hereinafter
referred to as the "Union" and the Cambria Union Elementary School
District/Coast Union High School District, hereinafter referred to as the
"District". The Parties, through the procedures of the CALIFORNIA
STATE MEDIATION AND CONCILIATION SERVICE selected
C. ALLEN POOL to serve as the Hearing Officer in the matter.
In accordance with the Agreement, the final decision in the matter shall
be made by the Board of Trustees and the decision of the Arbitrator shall be
advisory to the Board.
The Hearing was held in Cambria, California on Wednesday, May 14, 1997.
The parties were afforded the opportunity, of which they availed themselves, to
examine and cross-examine witnesses and to introduce relevant evidence,
exhibits, and arguments. The
witnesses were duly sworn and no written transcript was made of the Hearing.
Oral closing arguments were made by the parties following which the
Hearing was closed.
For the Union: For
Carl B. A. Lange III
Senior Labor Relations Representative
Director of Labor Relations
California School Employees Association
Schools Legal Service
2045 Lundy Avenue 1300
San Jose, Calif. 95106 Bakersfield,
(408) 263-8000 (805)
Did the District violate Article XII, Paragraph 12.5.1 of the Collective
Bargaining Agreement when it failed to increase Joe Martin's assignment to eight
(8) hours in August, 1996? If so,
what is the appropriate remedy?
RELEVANT PROVISIONS OF THE AGREEMENT
announcement of a position vacancy and prior to job vacancy notices being
advertised outside of the District, unit members shall be given consideration in
filling any job vacancy within the bargaining unit which can be considered a
promotion. The District may determine that a current unit member is not
sufficiently qualified for the vacant position and choose to advertise the
Unit members shall be given consideration in filling any job vacancy with
the bargaining unit which would result in an extension of the regular hours of
employment. The District may decide
that a current employee is not sufficiently qualified for the vacant position
and choose to advertise the position.
in the Grievance Procedure:
Article 17.3. 4
Level Three: If a
grievant is not satisfied with the decision in Level Two, the grievant may
request the Association to proceed. ..... the Association may submit a written
notice to the District of its intent to submit the grievance to a hearing
The cost of the hearing officer's services shall be borne equally between
the Association and the District. The
hearing officer shall have no authority to add to, subtract from, or to change
any of the terms and conditions of this Agreement. The
hearing officer's decision must be based upon the hearing officer's
interpretation of meaning of application of the language of the Agreement.
Article 17.3.5 Level Four:
The final decision shall be made by the Board of Trustees to whom the
decision of the hearing officer shall be advisory.
The Grievant, Joe Martin, was first employed in the District in 1989.
He had a short break in service in 1990, but has been continuously
employed in the District since 1991. At
the time of the incident, he was working as a five (5) hour per day custodian.
On July 14, 1996 the Grievant, stricken with a heart attack, was taken to
the hospital. Four days later, he
underwent coronary artery by-pass surgery.
The surgery was performed by Dr. Luke Faber at the French Hospital
The events leading to this advisory arbitration began in the days just
prior to the Grievant's heart attack on July 14, 1996.
The Grievant had been encouraged by his immediate supervisor, the
Director of Maintenance and Operations, Richard Lambert, to apply for additional
hours which would be available due to an upcoming vacancy.
Another custodian was scheduled to leave District employment.
It has been a practice in the District to offer additional hours to
qualified employees working less than an eight-hour work day.
Director Lambert testified
that the additional hours offered to the Grievant were from a 3.5-hour
custodial, classroom cleaning position. When
he made the offer to the Grievant, Lambert told him that the position would be
changed to a 3.0-hour position. The
merger of the Grievant's current 5-hour position and 3-hour vacant
position would then result in the Grievant having a full-time 8-hour
position with the District. Director
Lambert's offer of additional hours
to the Grievant was made with the full knowledge and approval
of the District Superintendent,
Dr. Vera Wallen.
The Superintendent testified that the Grievant was fully qualified for
the vacant position. She also
testified that she and Director Lambert had decided the two work schedules could
be easily merged into one 8-hour schedule.
When Mr. Lambert and the Superintendent last discussed the offer with the
Grievant on July 12, 1996 it was with the understanding of both that the
Grievant wanted the additional hours and would, with their encouragement, submit
a Letter of Interest when the position was posted for applications within the
However, when the Grievant was struck with his heart attack two days
later on July 14th and surgery four days later on July 18th, the expected chain
of events took a decidedly different turn.
The District, as was scheduled, went ahead and posted the vacancy on July
19th for applications from employees within the District. The deadline for submitting Letters of Interest was July 26,
Notwithstanding his heart attack and
by-pass surgery, the Grievant, as he had been encouraged to do, submitted
his Letter of Interest to the District. The
Letter of Interest was handwritten and signed by the Grievant.
It was dated July 22nd, four days following his surgery.
The District stamped his Letter of Interest as having been received on
July 24th. (By this date, the Grievant had been discharged from the hospital.)
Both Director Lambert and the Superintendent testified that the Grievant
was the only District employee who submitted a Letter of Interest, an
application for the 3-hour position.
The record was void of any
evidence that the District responded to the Grievant regarding his Letter of
Interest. So, the obvious
conclusion is that the District made the decision not to respond to his
application prior to making the decision to post and advertise the vacant
position on August 5, 1996 outside the District.
(The District based its decision to advertise outside the District on
information from the surgeon that the Grievant would not return to work until
late October.) The deadline for
submitting applications was Friday, August 16th.
The District received 8 to 10 applications from individuals outside the
District seeking the vacancy. The
District subsequently hired one of the outside applicants.
The starting date for the vacant position was the opening day of school,
September 4, 1996.
There was some controversy concerning the August 5th posting.
The District's payroll director, Kathy Beauchamp, in a letter dated July
31st, queried the surgeon, Dr. Faber, regarding the Grievant's release to return
to work. Dr. Faber, in a letter
dated August 8th, responded to the District's query with the following:
"I anticipate that Mr. Martin will have a full and complete recovery
and will be able to return to his routine duties on October 21, 1996."
Part of the controversy was
that Doctor Faber's letter of August 8th, was stamped by the District as having
been received on August 5th. The
question was raised as to whether the District had made the decision to
advertise outside before receipt of the information requested from Dr. Faber.
The actual date of Dr. Faber's letter, however, was not pivotal to the
issue. The Superintendent testified
that she had contacted Dr. Faber via telephone and discussed the Grievant's
condition prior to posting the vacancy for outside applications on August 5th.
What was really significant was the fact that the District did not
acknowledge the Grievant's application before making the decision to advertise
the vacancy outside the District on August 5th. In fact, the
District never acknowledged his application.
The Grievant testified that on August 7th, the surgeon, Dr. Faber,
released him to the care of his personal physician of the past five years, Dr.
Arthur Silverstein, a cardiogist. It
was evident from the record that by this time the Grievant had already commenced
a recovery program and was making good progress.
The lengths of his daily walks, for example, were increasing steadily.
Claiming a need that it had to staff the vacant classroom cleaning
position by the first day of school on September 4, 1996 and citing the
assumption that the Grievant would not available on that date due to his
illness, the District went forward with the hiring of a person from outside the
District to the fill the position. (It
was significant that both Director Lambert and the Superintendent stated more
than once during their testimony that the Grievant would have been given the
3-hour position if he had not suffered the heart attack.)
The first day of work for the 3-hour vacancy was the first day of school,
September 4th. The District, for
reasons not completely clear, made the person's date of hire retroactive to
August 16, 1996.
The Grievant, on September 16th, reported to the District office with a
medical release dated September 13th from his personal physician, Dr.
Silverstein, clearing him to return to work without any restrictions.
The Superintendent testified that this was the first they had ever heard
of Dr. Silverstein, but after
talking with his office, the District secured the necessary release papers for
the Grievant to resume work that same day.
The Grievant, on his return, resumed his regular 5-hour per day work
schedule as a custodian.
Shortly after his return to work, the Grievant asked the Superintendent
why he had not been given the 3-hour custodial position.
The Superintendent responded in letter dated September 24th.
The Grievant, not satisfied with the Superintendent's response,
turned to the Union and a grievance was filed which proceeded to this
POSITION OF THE UNION
The District violated Article XII, Paragraph 12.5.1 of the Collective
Bargaining Agreement. The Grievant
should be given the 3-hour vacant position.
He was clearly qualified for the position and should have been considered
for the position. The intent of the
language and past practice has been that if the employee was qualified, the
employee would be offered the position. The
District failed to take notice the Grievant might return to work sooner than
expected. There was no
compelling reason not hold the position open until the Grievant's return from
sick leave. The District failed to
give a clear reason for not giving the Grievant the position.
The reasons given by the District were not consistent with contract
language and changed over time since the event first occurred.
Therefore, the grievance should be sustained and the Grievant should be
made whole for all lost wages and benefits.
The District did not violate Article XII, Paragraph 12.5.1 of the
Collective Bargaining Agreement. The
plain language of Paragraph 12.5.1 means that a qualified employee shall be
considered. It does not mean an
automatic granting of additional hours. The
intent of the language is that the District must give a good-faith consideration
to employees who apply for additional hours.
Within the given context, the District acted in good-faith. The Grievant's application
was considered, and Dr. Faber's letter made it clear he would not return
to work until October 21, 1996.
The District based its decision in August on the information it had at
the time. The District's need was
to staff the position by the first day of school, September 4th. Since the
Grievant, because of his illness, would not be available until late October, the
decision was to hire someone else. The
District, at this time, knew only that the Grievant would be out until October
21st. If he had been available when
the job commenced, he would have gotten the job.
In addition, to imply that the District should have held the position
open until the Grievant's return would be beyond the authority of the
Arbitrator. It would be adding to
and/or modifying the language of Article 12.5.1.
Therefore, the grievance should be denied.
The intent of the language
in Article XII, Paragraph 12.5.1 is not in question in this case. The language is clear and unambiguous. What is in question is whether the District, under the
circumstances in this instance, acted in good-faith in its application of
Paragraph 12.5.1. With
respect to the intent, Paragraph 12.5.1 requires that the District give unit
members (employees) who believe they are qualified an opportunity to apply for
additional hours before advertising
the vacancy outside the District. The
Paragraph also requires the District to give employee applications, to quote the
District in its closing argument, a good-faith
consideration (emphasis added). In
addition, the Paragraph prohibits the District from advertising outside the
District when an employee has been determined by the District to be sufficiently
qualified for the vacant position. This
last feature distinguishes this case from the arbitration award referenced by
the District in support of its right to select the best qualified applicant ( Oak
Hills Local Schools and OAPSE, Local 200, 108 LA 171).
In the Oak Hills case, the
Agreement between the school and the union contained
no provision for in-house only applications.
There were also some obvious and practical considerations that can be
implied from the language in Paragraph 12.5.1.
For example, if two or more employees were determined to be sufficiently
qualified, the District would obviously have the right to determine the most
qualified. Another example has to
do with merging hours of work associated with a vacant position and an
employee's regular hours of work. If
a merger of the two would not be practical, the District would obviously have
the right not to offer the additional hours
to the employee. In short, the
Paragraph 12.5.1 does not provide an automatic grant of the extra hours.
With respect to the requirement that the District give
"consideration" to employees in filling any job vacancy,
reference to various standard dictionaries offers some helpful guidance.
The various dictionaries
were in general agreement on the meaning of the word "consideration"
and the act or process of "considering".
It means that the party doing the considering must bring to the act of
considering a mature and thoughtful study and reflection of the circumstances
which are factors in forming a judgment or decision.
In this case, there were several circumstances worthy of consideration by
the District before making the
decision to advertise outside (emphasis added).
The Grievant was a long-term employee with a good work record and good
evaluations. He was well respected
by his immediate supervisor, Richard Lambert, and the Superintendent, Dr. Vera
Wallen. It was Director Lambert who
made him aware of the upcoming
vacancy and who first encouraged him to apply for the extra hours.
Director Lambert also told the Grievant that the work hours of the vacant
position would be reduced to three hours so that the Grievant's work day
would be a regular eight-hour work day.
Both Director Lambert and the Superintendent agreed the Grievant was
qualified for the classroom cleaning position.
They also agreed they could merge the Grievant's regular 5-hour position
with the 3-hour vacant position. Director
Lambert and the Superintendent gave the
Grievant the clear expectation that the vacant position would be his
(emphasis added). All that remained
was for him to submit a Letter of Interest
when the vacancy was posted for in-house applications.
He did that! On July 22nd,
four days following his open heart surgery, the Grievant penned a hand-written
note to the District. It was
received by the District on July 24th. (By
this time, the Grievant had already been discharged from the hospital and had
commenced his recovery program.) The
vacancy had been posted in-house on July 19th with July 26th the closing date,
and the Grievant was the only
employee who applied for the vacancy..
Before making the decision to advertise the vacancy outside the District
on August 5, the District contacted the Grievant's surgeon, Dr. Luke Faber, to
inquire about the Grievant's return to work.
Relying on Dr. Faber's statement that he anticipated
the Grievant would return to work with a full and complete recovery on
October 21st, the District decided to advertise the vacancy outside the District
The rationale given was (1) that the Grievant would not be available
to resume work on September 4th and
(2) that the District needed to staff
the vacant position by September 4th, the first day of classes for the new
school year (emphasis added).
She also testified, as did Lambert, that had
the Grievant been available to
start work on that date the position would have been his (emphasis added).
The District contended that its decision to advertise outside the
District on August 5th, was based solely on the information it had at the time.
On the face of things, the District's conduct would seem to be
reasonable. However, it was my
considered opinion that the District's conduct was not reasonable because the
District failed to consider other factors.
Before advertising outside, simple fairness and common courtesy would
dictate (1) that the District at least acknowledge the Grievant's application,
which it did not do; (2) that the District provide some explanation to him
regarding the basis for the urgent
need to staff the position by September 4th, which it did not do; (3) that the District give him some kind of explanation why
what he was led to expect would be given to him was no longer available, which
it did not do; (4) that the District at least consider the possibility of an
earlier recovery, which it did not do; and (5) that the District take
into consideration the promises made to him prior to his heart attack,
which it did not do.
In fact, the District failed to contact the Grievant at anytime during
his recovery about the position. No
one let the Grievant know he was no longer being considered for the position. The Grievant learned the position had been filled from
reading the local newspaper.
evidence record showed that even though the District failed to acknowledge the
Grievant's application there had been contact with him during his recovery
period. The Superintendent
testified that, although she had had no personal contact with the Grievant
during his recovery period, Director Lambert and the payroll director, Kathy
Beauchamp were, from time to time, talking with the Grievant and that they were
keeping her informed. For
example, both Lambert and Beauchamp were aware the Grievant was going for his
treadmill test on August 23rd. This
was only 36 days following his surgery.
At this time, as part of his recovery program, the Grievant's daily walks
had lengthened to a distance of between three to six miles per day.
Given that Lambert and Beauchamp had been talking with him, it could be
assumed they had some knowledge of the Grievant's recovery program and his
progress and the potential for his return to work at an earlier date than
October 21st. Given the unique
circumstances in this case and as a common courtesy to him, the District could
have exercised a bit of patience to see just how he would progress with his
The District further contended that it was not required to hold the
position open for the Grievant. That
was true. However, given the circumstances, the District could have at least considered that as an
option. Nothing was offered into
evidence to reasonably explain the District's claim that the need was so great that it had
to staff the vacant position by September 4th (emphasis added).
Moreover, the evidence record made it clear that if the District had
wanted to hold position open for the Grievant, they could have exercised this
What was pivotal to the conclusion that the District violated Paragraph
12.5.1 comes from my analysis of the District's varied
explanations given to the Grievant following his return to work September
16th (emphasis added). Following
his return to work, the Grievant asked why he not been given the additional
hours of work. The answers given
were varied and inconsistent. The
Grievant testified that when he asked Director Lambert, he was told he did not
get the position because he was a 12-month employee and the vacant position was
a 10-month employee. This was not a concern to Director Lambert or the Superintendent when he
was encouraged to apply for the position just prior to his heart attack
A key factor in this case was the explanation given to the Grievant by
the Superintendent in her letter to him dated September 24, 1996:
You have asked why you were not given the 3-hour custodial position at the
high school that needed to be filled the first of September.
We had several very qualified applicants for the position.
We selected the best person
for the position.
Further, the time of the 3-hour position conflicts with your 5-hour
position, and you had told us you did not want to give
up your 5-hour job. We know
you work at the Post Office also, on a rotating schedule, and often have to
change your hours. That may be okay
in your 5-hour position, but it would not be okay in the 3-hour.
I know it is hard not feel hurt at not getting selected for a position.
Please know we still value you in your current position." (Union Exhibit
The District contented that the September 4th letter did not explain the
August decisions made by the District. The
District was correct. The
letter did not even come close to explaining the District's August decisions.
More importantly, it did not in any shape or form answer the Grievant's
question. The statement "We
selected the best person for the job position" was irrelevant to
the question. The statement "Further,
the time of the 3-hour position conflicts with your 5-hour position, and you
told us you did not want to give up your 5-hour job"
is very misleading if taken literally.
It would directly contradict the testimony that the two positions could
be merged. The Grievant was
entitled to an answer to his question, not something as misleading as this.
Although the letter did not explain the District's August decisions, it
did provide convincing proof that the District
ignored the Grievant's application and did not give his application a good-faith consideration (emphasis added).
Considering all the circumstances in this case, my conclusion is that the
District did not give a good-faith
consideration to the Grievant's application in filling the vacant position.
The District had encouraged the Grievant to apply for the vacant
position. They even tailored the
position for him. The
District then failed to
honor their commitments to him or, at the very least, to make any effort to
consider other options. Instead,
his application was summarily ignored.
The circumstances in this case were unique and the District failed to
give the requisite good-faith
consideration to all the circumstances prior to reaching its decision in
August to ignore the Grievant's application and advertise outside.
Therefore, for the reasons above, the grievance is sustained.
The grievance is sustained. The
District violated Article XII, Paragraph 12.5.1 of the Collective Bargaining
Agreement when it failed to increase Joe Martin's assignment to eight (8) hours
in August, 1996.
My recommendation to the
Board of Trustees is that the Grievant, Joe Martin, be made whole, less other
income earned, for all lost wages and benefits from September 16, 1996 to April
30, 1997. At the request of the
parties, implementation of the remedy is remanded to the parties with the
Arbitrator retaining jurisdiction in the event the parties cannot reach
DATE: ______________________ _________________________
C. ALLEN POOL
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028