1997 NAC 119 Cambria Union and Coast Union School Districts and California School Employees Association, Chapt. 492

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Title: Cambria Union and Coast Union School Districts and California School Employees Association, Chapt. 492
Date: June 11, 1997
Arbitrator: Allen Pool
Citation: 1997 NAC 119

IN ADVISORY ARBITRATION PROCEEDINGS

PURSUANT TO AGREEMENT BETWEEN THE PARTIES

In the Matter of Advisory Arbitration )

)

- between - )

) FINDINGS, CONCLUSIONS, AND

CALIFORNIA SCHOOL EMPLOYEES )

ASSOCIATION, NORTH COAST ) RECOMMENDATIONS

SCHOOL EMPLOYEES, CHAPTER 492 )

) OF THE

- and - )

) HEARING OFFICER

CAMBRIA UNION ELEMENTARY )

SCHOOL DISTRICT / COAST UNION )

HIGH SCHOOL DISTRICT ) June 11, 1997

)

Involving: Extension of Hours )

____________________________________)

This 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.

APPEARANCES:

For the Union: For the District:

Charles Lamb Carl B. A. Lange III

Senior Labor Relations Representative Director of Labor Relations

California School Employees Association Schools Legal Service

2045 Lundy Avenue 1300 17th Street

San Jose, Calif. 95106 Bakersfield, Calif. 93301

(408) 263-8000 (805) 636-4830

ISSUE

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

Article 12.5 Consideration: After 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 position outside.

Article 12.5.1: 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.

17.3 Levels 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 officer. ..... 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.

BACKGROUND

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 Medical Center.

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 District.

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, 1996.

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 Hearing.

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.

DISTRICT POSITION

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.

DISCUSSION

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.

The 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 recovery.

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 option.

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 (emphasis added).

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:

"Dear Joe:

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 No. 4)

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.

CONCLUSION

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.

RECOMMENDATION

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 an agreement.

DATE: ______________________ _________________________

C. ALLEN POOL

Advisory Arbitrator