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Title: Bethel School District and Public School Employees of Washington
Date: June 1998
Arbitrator: Sandra Gangle
Citation: 1998 NAC 112

BEFORE SANDRA SMITH GANGLE, ARBITRATOR

                                                                                                       

IN THE MATTER OF THE ARBITRATION                  )

              BETWEEN                                                              )

                                                                                                )               OPINION AND AWARD

PUBLIC SCHOOL EMPLOYEES OF WASHINGTON,   )

                                BETHEL CHAPTER                             )

                                "THE UNION"                                       )           EXTRA WORK GRIEVANCE

                AND                                                                        )     (TAMMY PARSONS, GRIEVANT)

BETHEL SCHOOL DISTRICT,                                            )

                                “THE DISTRICT”                                  )

______________________________________        )

 

Hearing Conducted:                                            July 10, 1998    Spanaway, WA

Representing the District:                                   Craig Hanson, Attorney at Law
                                                                                LANE POWELL SPEARS LUBERSKY
                                                                                2120 Caton Way SW, Suite B
                                                                                Olympia, Washington 98502

Representing the Union:                                    David Fleming, Attorney at Law
                                                                                PUBLIC SCHOOL EMPLOYEES OF WASHINGTON
                                                                                P.O. Box 798
                                                                                Auburn, Washington 98071-0798

Grievant:                                                                Tammy Parsons

Arbitrator:                                                             Sandra Smith Gangle
                                                                                Attorney at Law
                                                                                835 Saginaw Street S.
                                                                                Salem, Oregon 97302

Date of Decision:                                                August 31, 1998

                                                                                         BACKGROUND

                This matter comes before the arbitrator pursuant to a collective bargaining agreement between the parties effective between September 1, 1996 and August 31, 1999.  Jt. Ex. No. 1.  The parties, having been unable to resolve the matter through their contractual grievance procedure, mutually selected Sandra Smith Gangle, Attorney at Law, to conduct a hearing and render a decision in the matter.

                The parties met for a hearing before the arbitrator on July 10, 1998 at the offices of the Bethel School District, Spanaway, Washington.  The Bethel School District (hereafter referenced as "the Employer" or "the District") was represented by Craig Hanson, Attorney at Law, of the law firm of Lane Powell Spears Lubersky, Olympia, Washington.   Public School Employees of Washington, Bethel Chapter (hereafter "the Union"), was represented by David Fleming, Attorney at Law.  The Grievant, Tammy Parsons, was present throughout the hearing.

                The arbitrator tape-recorded the hearing as an adjunct to her personal notes.  The tape is the arbitrator’s personal property and is not an official record of the hearing.  It is not available to any party for any purpose.

                There were no objections to procedural or substantive arbitrability of the grievance.  The parties were each afforded a full and fair hearing and were thoroughly and competently represented by their respective advocates.   All witnesses were sworn  and all were subject to cross-examination by the opposing side.  Evidence was offered in the form of witness testimony and documentary exhibits.  The Union's witnesses were Debby Morgan and the Grievant.  The District's sole witness was Kathy Holt.

                At the close of the hearing the parties agreed to submit simultaneous post-hearing briefs to the arbitrator, by postmark date of August 7, 1998.  Upon receipt of the briefs on August 11, 1998, the arbitrator officially closed the hearing and took the matter under advisement. 

                The parties stipulated at the hearing that the arbitrator could retain jurisdiction for a reasonable period after issuing the award, in order to assist the parties with implementing the remedy, in the event the Union should prevail.

                                                                                              THE ISSUE

                The parties did not agree upon a statement of the issue.  The Union framed the issue as follows:

                Did the District violate the collective bargaining agreement when it failed to assign mid-day work to the Grievant on September 2 and 3, 1997?

The District framed the issue as follows:

                Did the District violate Section 7.8.8 or Section 10.4 of the collective bargaining agreement by not assigning extra time to the Grievant on September 2 and 3, 1997?

                The parties agreed that the arbitrator should frame the issue for them following the hearing.  Pursuant to that authorization[1]  the arbitrator has framed the issue for the parties in the following manner:

                Did the District violate the collective bargaining agreement when it failed to assign extra work to the Grievant on September 2 and/or September 3, 1997? 

                If so, what is the appropriate remedy?

                                                                 APPLICABLE CONTRACT PROVISIONS

                ARTICLE II  --  RIGHTS OF THE EMPLOYER

                Section 2.2.  . . . . In making rules and regulations relating to personnel policies, procedures and practices, and matters of working conditions, the District shall give due regard and consideration to the rights of the Association and the employees and to the obligations imposed by this Agreement.

                ARTICLE VII  -  HOURS OF WORK

                Section 7.7.1  The transportation supervisor or designee shall post all routes for the upcoming school year at least two (2) weeks prior to the beginning of the student school year.  Drivers shall sign for the route they wish to drive and assignments will be made on the basis of seniority as defined in Article X. . . .

                                                                                                * * * * *

                Section 7.7.5   Definitions

                1.             Route Package is defined as a combination of daily assigned runs performed by a driver.  Routes will stay consistent throughout the year.  Routes are awarded by seniority on an annual bidding basis.

                2.             Extra Runs are defined as regularly assigned runs temporarily available and substituted by a regular driver on a seniority basis, or a relief driver if no regular driver is available.  Substitute drivers are only eligible for extra runs in an emergency.

                3.             Shuttles shall be defined as short term, to or from destination trips, usually, but not always, within the school district.  They are not normally a part of a regularly assigned route.  These are awarded on a cost effective basis as determined by the department administrator.

                4.             Field trips are defined as all other trips that are neither route packages, extra runs or shuttles.  Field trips are awarded on a rotating seniority basis.  (These trips are usually, but not always, out of district.)  Relief drivers are only eligible for field trips in an emergency.

                Section 7.8.           Any transportation runs other than regular daily assigned runs shall be defined as extra runs, and employees driving such trips shall be paid the regular rate of pay for the duration of such extra runs, subject to the overtime provision herein.

               Section 7.8.1.  Field trips shall be assigned according to seniority rotation among those drivers requesting consideration, provided the necessary equipment is available.

               Section 7.8.1.1.   At the start of the school year, each bus driver may request in writing that his/her name be added to the field trip list.  It is understood that special education field trips must be driven by a bus driver who is special education qualified.  If the next bus driver on the field trip list is special education qualified and the last field trip available is a special education trip, said bus driver must take the trip or forfeit his/her turn.

                                                                                                * * * * *

                Section 7.8.5.   Any vehicle transporting more than ten (10) students shall be driven by bargaining unit members who sign up for such work.

                                                                                                * * * * *

                Section 7.8.8.   Drivers not working forty (40) hours per week may use available kindergarten and activity runs to supplement their hours up to forty (40) per week on a seniority basis.  Relief drivers may not take these hours until all regular drivers have had opportunity for the time.  Regular morning and afternoon runs may not be split for regular drivers to picki up extra time.

                                                                                                * * * * *

ARTICLE X  --  SENIORITY

                Section 10.4.          The employee with the earliest hire date shall receive preferential treatment regarding route selection, shift selection, vacation periods, promotions, assignments, transfers, layoffs, and special assignments when ability and performance are substantially equal to those of employees junior to him/her.  If the District determines that seniority rights should not govern in the latter cases above, because a junior employee possesses ability and performance substantially greater than a senior employee or employees, the District shall set forth in writing to the senior employee or employees who applied for the job the reasons why the senior employee or employees have been bypassed.

ARTICLE XV  --   GRIEVANCE PROCEDURE

                Section 15.1.        For the purpose of this Agreement, a grievance is defined as an alleged violation, misinterpretation, or misapplication of a specific provision of this Agreement charged against the District by a classified employee.

                GRIEVANCE  -  ARBITRATION

                Step Three.   . . . .  The scope of the arbitrator's authority shall be limited to grievances arising from specific provisions of the Agreement, and the arbitrator shall be without authority to add to, subtract from, or alter any of the terms of this Agreement.  The arbitrator shall be without power or authority to make any decision which requires the commission of an act prohibited by law.

                The arbitrator shall render a decision within thirty (30) days following the conclusion of the arbitration hearing or submission of any post-hearing briefs. . . 

                Each party shall bear its own costs of arbitration, except that the cost of the arbitrator, court cost (reporter, hearing room, etc.) shall be shared equally by the District and the Association.

                The decision and/or award shall set forth the arbitrator's finding of fact, reasoning, and conclusions on the issues submitted and shall be final and binding on all parties.

 

                                                                                     FINDINGS OF FACT

                Many of the facts of this matter were in dispute.  Having reviewed and weighed  the testimony and documentary evidence of the parties, and having determined the credibility of witnesses in those situations where there was conflicting testimony, the arbitrator makes the following findings of fact:

                1.             The District is geographically large and diverse and the school bus system is complicated.  In the fall of 1997, the District employed more than 100 school bus drivers to transport 9,900 students to and from school.  There were more than 85 regular school bus routes and 14 special education bus routes in place.  The total number of daily "runs" was about 325.  

                2.             The Union represents the bus drivers.   According to their collective bargaining agreement, regular routes and special assignments for drivers are to be assigned according to seniority, with limited exceptions.[2] 

                3.             Union Witness Debby Morgan works as a driver and serves as the Union representative for drivers.  Morgan testified that the parties' parctice has been that drivers bid, according to their seniority, on their regular "route package" for the year, by signing on a sign-up sheet before the start of school.  Each route package shows the driver's "a.m" and "p.m." runs and the total number of hours for the route.   Each driver tries to get a package that totals as close to eight hours a day as possible. 

                4.             In between the "a.m." and "p.m." runs each day, there are a number of regular "mid-day" runs.  Those include kindergarten/Head Start, Challenge, Host and E-CAAP (four-year-olds) transportation runs.  Kindergarten usually begins the second day of school and E-CAAP a couple of days later.  Drivers who do not get a full eight-hour schedule package may sign up for the extra "mid-day" runs on a sign-up sheet, which is also available before school starts.  Then those mid-day runs are assigned on a seniority basis to those who have signed up.  

                5.             Drivers who wish to be considered for field trip assignments sign up at the end of the school year for the following year.  A field trip list is then drawn up, according to the seniority of the applicants.  Field trip assignments are made in rotation.  When a field trip opportunity comes up for a driver in rotation, that driver is allowed to give up his/her regular route for the day.  A substitute is assigned to the driver's route instead.

                6.             "Extra runs" are assigned on an as-needed basis and are not part of a driver's regular package.  Assignments are not made by rotation, but on a case-by-case basis.  Drivers cannot give up their regular route in order to accept an "extra run".  They must be free during the time slot that the run is expected to be completed.

                7.             Some extra runs arise because students are stranded at a school and need a ride immediately, or a bus incurs a breakdown on its route.  In such emergencies, the dispatchers send out whatever driver happens to be closest to the school or breakdown site.   They may send out a driver who happens to be in the lounge at the dispatch office or they may even go out themselves to cover the emergency.

                8.             Other extra runs are not emergencies.  For instance, when a driver calls in sick and a substitute needs to be assigned to cover the driver's route, the dispatcher has time to locate a driver for the assignment.  In such cases, the dispatchers are supposed to assign pursuant to the contractual seniority system.  They look at the list of those drivers who have requested extra runs for that day and they check the driver's regular route for the day, to determine whether the extra run will fit the driver's schedule.

                9.             The regular practice in the District for requesting "extra runs", is that the interested driver is supposed to sign up on a sign-up sheet[3] that is placed on the counter in the dispatch office.  See, e.g. Union Exhibit Nos. 1 and 6.  Drivers are supposed to sign up at the start of each week, since they are only eligible for such runs if they do not have a 40-hour assignment already for the week.  Therefore, the number and names of interested drivers may differ from week to week.

                10.           Dispatchers use a two-way radio system for notifying drivers of assignments to extra runs.  Dispatchers are bargaining-unit members.

                11.           Tuesday, September 2, 1997, was the first day of school last year.  It was a very busy day.  According to Transportation Director Kathy Holt, it was "utter chaos".   The regular dispatchers who were assigning work that day were bargaining-unit members Shannon Mullins and Nina Edwards.  Ms. Morgan testified that she believed Ms. Holt and another supervisor on duty that day, Ms. Sagan, could also dispatch drivers.  Ms. Holt testified that her office is not in the dispatch area.  She did not deny, however, that she supervised the dispatchers.   

                12.           The Grievant's seniority number was 85 in September of 1997.  The Grievant's daily log sheets for September 2 and 3, 1997, show that she was free between 9:45 a.m. and 1:30 p.m. on each of those days.  She was not assigned any extra runs on either of those two days.   See Union Exhibit No. 2

                13.           The Grievant testified that she verbally notified Nina Edwards, Shannon Mullins and Kathy Holt that she was available for extra runs and wished to be assigned to such runs on both September 2 and 3.  Her hand-written notes, which she kept in a small notebook beside the driver's seat in her bus, show that she notified Edwards, Mullins and Holt on September 2.  See Union Exhibit No. 9.  There is no written confirmation that she gave such notice on September 3.   

                14.           Neither Edwards and Mullins appeared at the hearing.  Ms. Holt, who testified at the hearing, did not deny that the Grievant had called her on either September 2 or September 3 to request consideration for extra runs. 

                15.           At approximately 5:15 p.m. on September 3, 1997, the Grievant telephoned Ms. Holt and informed her that she believed some drivers who were junior to her had been  assigned to extra runs, while she had not been so assigned.

                16.           Ms. Holt went to check the sign-up sheet, which was on the counter in the dispatch center, immediately after her conversation with the Grievant on September 3.   She photocopied the sign-up sheet, as it appeared at that time.  The Union does not dispute the accuracy of the sign-up sheet as of 5:15 p.m. on September 3 and even offered a copy in evidence at the hearing.  See Union Exhibit No. 6. 

                17.           The following drivers' initials appear in the column for September 2 on the sign-up sheet that was identified as Union Exhibit No. 6:  Bartell (seniority #57) and Evans (seniority #87).  The following drivers' initials were marked for September 3:  Turner (#35), Anderson (#41), Bartell (#57), Hernandez (#78), and Evans (#87).  Beside Sherman (#94) the word "M-DAY" was written in for Monday, September 1, with a line going through the boxes for both Tuesday and Wednesday.  However, no signature or initials were written on that line, as there were for Bartell, Evans, Turner, Anderson and Hernandez.  On cross-examination, Ms. Holt acknowledged that "M-DAY"  appeated to be in Dispatcher Shannon's writing.

                18.           The Union offered in evidence a page from the Dispatcher's spiral notebook log for September 2, 1997.   See Union Exhibit No. 3.  According to that log, driver Sherman was assigned to a mid-day run at 11:00, identified as "Open Chall".   Sherman, who has seniority number 94, is junior to the Grievant.

                19.           A similar page from the Dispatcher's notebook for September 3, 1997 was offered in evidence.  See Union Exhibit No. 4.  Ms. Morgan testified that, according to that log, drivers Tate, Andrews and Sherman were all assigned to mid-day runs at 11:20 a.m. on that day.  She sid that drivers Tate and Andrews are junior to the Grievant.  Their names do not appear on the sign-up sheet at all, however.

                20.           Each driver keeps a Daily Log sheet of his or her actual time worked, for pay purposes.  The Daily Log Sheet for driver Tate for September 3, 1997, shows that Tate worked a run between 10:45 a.m. and 12:45 p.m.  See Union Exhibit No. 8, p. 2.

               21.           The Employee Daily Log sheet for Jo Bourassa for September 3, 1997, shows that Bourassa was assigned extra work between 10:45 a.m. and 1:00 p.m. on that day.   See Union Exhibit No. 5.  Bourassa's name appears with seniority #84 on the sign-up sheet, one space above the Grievant.  See Union Exhibit No. 6.  Ms. Morgan's testimony, however, was that Jo Bourassa was junior to the Grievant.

                22.           The Employee Daily Log sheets for driver Coral Laird for September 2 and 3, 1997, show the following, according to Ms. Morgan:  on September 2, Laird was sent to pick up students who had been forgotten;  then, on September 3, she was dispatched to do  a shuttle run between 10:00 a.m. and 12.25 p.m.  See Union Exhibit No. 7.  Ms. Laird was junior to the Grievant, according to Ms. Morgan.  According to the sign-up sheet, her seniority listing is #89.  See Union Exhibit No. 6.

                23.           Ms. Morgan also offered the Daily Log Sheet for Shelbie Cornett for September 2, 1997.  See Union Exhibit No. 8, page 1.  That document shows that Ms. Cornett worked between 11:45 a.m. and 1:00 p.m. on that day.  According to the sign-up sheet and testimony by Ms. Morgan, Cornett is junior to the Grievant.

                24.           Supervisor Holt testified that she checked the sign-up sheet on the counter in the dispatch area a second time on Thursday, September 4, 1997.  A copy of the sheet as it appeared that day was offered in evidence.  See Union Exhibit No. 1.  No signatures or initials appear beside the names of drivers Laird or Cornett.  The words "All- mid- days- all" are written beside the Grievant's name on line 85.   Also, the notation "w/Sloniker 4th" is written in the column for September 4 in handwriting which was identified by Ms. Holt as the dispatcher's.

                25.           Debbie Morgan testified that she has overheard drivers call in from their routes and request that the dispatchers sign their names in the sign-up book for extra runs.  Ed Lyda, she said, does it frequently.  Ms. Holt acknowledged during her testimony as well that Ed Lyda calls in to request such sign-up by the dispatchers "routinely".

                26.           The Grievant testified that she signed up for extra runs on the sign-up sheet on the counter in the dispatch office "as soon as it was available".  She could not recall what day she had signed it, however.

                                                                           POSITIONS OF THE PARTIES          

                A.   The Union:     The Union contends that the District violated the collective bargaining agreement of the parties when it failed to assign the Grievant to any of the extra runs that became available on September 2 and 3, 1997, and were assigned to drivers who had less seniority than she had.

                B.  The Employer:    The District denies that it violated the collective bargaining agreement.  Since the Grievant did not sign her name or initials in the sign-up book for extra runs before Thursday, September 4, the dispatchers had no obligation to consider her for the runs which came up on either September 2 or 3.  Also, because of her failure to sign up as required, the Grievant has no standing to contest the assignments that were made.

                Some, if not all of the extra runs which came up on September 2 and 3 were emergencies and the dispatchers simply had to assign the driver who was closest to the need.  Others were kindergarten runs where a substitute driver was needed quickly for an absent driver.  The Grievant has not demonstrated, says the District, that she was the most senior person available to take any particular extra run that the District was able to offer from the roster (as distinguished from emergency assignments) on the two days in question.  The fact that a junior person was assigned to an extra run on either day is not dispositive of whether the Grievant's seniority rights were violated.

                Finally, the District contends in its brief that the "seniority basis" for assigning drivers to extra runs is "more artful than scientific".  A straight seniority staffing process simply could not work in the District, given the conditions under which the dispatchers work.  The process that has been implemented can best be described as "use seniority as best you can, recognizing that there are numerous considerations that may negate your ability to use seniority".  See District's Brief at page 7. 

                The District asks the arbitrator to deny the Grievance.

                                                                              ANALYSIS AND DECISION

                The arbitrator's role is to interpret the collective bargaining agreement of the parties and apply its provisions to the facts of the case.  The decision must draw its essence from the agreement.

                The parties have negotiated a seniority provision in Article 10.4 that expressly grants preferential treatment, based on seniority, in "assignments" and "special assignments" when the ability and performance of senior and junior applicants are substantially equal.  If a senior employee is bypassed by the District for an assignment, the District is required to provide a written explanation of reasons for the bypass and the reason should focus on the comparison of ability and performance of the two employees.  The provision is as follows: 

                                Section 10.4.          The employee with the earliest hire date shall receive preferential treatment regarding route selection, shift selection, vacation periods, promotions, assignments, transfers, layoffs, and special assignments when ability and performance are substantially equal to those of employees junior to him/her.  If the District determines that seniority rights should not govern in the latter cases above, because a junior employee possesses ability and performance substantially greater than a senior employee or employees, the District shall set forth in writing to the senior employee or employees who applied for the job the reasons why the senior employee or employees have been bypassed.

                                                                                                (Emphasis added)

                The word "assignment" is not defined in Article X.  However, in Article VII HOURS OF WORK, specifically Section 7.7.5 Definitions, there is a definition of "Extra Runs" in which the word "assigned" is used.  That provision is as follows:

                                2.  Extra runs are defined as regularly assigned runs temporarily available and substituted by a regular driver on a seniority basis, or a relief driver if no regular driver is available.  Substitute drivers are only eligible for extra runs in an emergency.

                                                                                                (Emphasis added)

                Then, in Section 7.8, there is a further clarification of the meaning of "extra runs".  That provision provides in pertinent part as follows:

                Section 7.8   Any transportation runs other than regular daily assigned runs shall be defined as extra runs . . . .

                                                                                                (Emphasis)

                Reading those provisions together, it becomes quite clear that the parties have negotiated for the assignment of "extra runs" to regular bus drivers according to their seniority alone, unless the District determines a junior driver to have "substantially greater ability" than the senior applicant in a specific case.  Then, if the District bypasses a senior applicant, it is required to provide a written explanation of the reason why the senior was bypassed.

                The contract is silent with respect to a specific process whereby employees may demonstrate their interest in "applying for" assignments to extra runs.  Therefore, pursuant to Article II RIGHTS OF THE EMPLOYER, the District has retained the right to determine such a procedure,subject to other obligations in the Agreement, as follows:

                Section 2.2.  . . . . In making rules and regulations relating to personnel policies, procedures and practices, and matters of working conditions, the District shall give due regard and consideration to the rights of the Association and the employees and to the obligations imposed by this Agreement.

                                                                                                (Emphasis added)

                The arbitrator reads Section 2.2 as allowing the District to establish unilaterally a procedure whereby assignments to extra runs may be made by dispatchers, as long as due regard is paid to the obligations imposed by Sections 10.4 and 7.7.5(2), namely to make assignments based on seniority.

                The District contends that the process it had established was that drivers were required to sign up on the sheet in the dispatch office at the start if each week if they wished to apply for assignments to extra runs.  When a driver failed to sign the sheet,   the dispatcher had no obligation to consider that driver.

                The District argues that the Grievant did not sign up on the sheet for the first week of school until September 4, 1997.  Therefore, she has no standing to object to her failure to be assigned to extra runs on September 2 or 3.  Also, the District challenges the Grievant's credibility with respect to her testimony that she notified the dispatch office verbally of her desire to work extra runs.  The District asserts in its brief that the Grievant appears to have signed up retroactively on September 4, and thereby pretended to have signed in earlier.   Also, the Grievant could have complained when she heard other drivers junior to her being assigned, yet she chose not to complain and filed a grievance instead.

                The District's arguments are not persuasive.  The Grievant testified several times that she could not recall exactly when she signed the list, but she believed she had signed up "as soon as the sheet was available".  Before that time, she said, she did the best she could -- she called in to the dispatchers and informed them that she wanted to be considered for extra runs.  That testimony was unrebutted and was coorborated by the notation in her personal notebook with respect to the verbal notice on September 2.  She even stayed at the station or on her bus, she said, so that she would be readily  available to accept such runs. 

                However, she overheard other drivers being assigned, while she was not so assigned.  The reason she did not complain over the radio was to avoid possibly "slandering" the other drivers. 

                The arbitrator finds the Grievant's testimony to be credible for the following reasons:  First, the evidence shows that only five out of 103 drivers had signed the sheet before 5:15 p.m. on September 3 and only two of those five drivers had signed up for extra runs on Tuesday, September 2.   It simply defies reason to assume that 95-98% of the drivers would have neglected to sign up to preserve their seniority preference, if, as the District asserts, the sheet was available to all on September 2 and 3.  Secondly, the Grievant was not the only driver who appears to have signed up "retroactively" on September 4.   Drivers Holm, Bourassa, Nufer and Burlew all appear to have "signed in" for September 2 and 3 on Union Exhibit 1, while their initials do not appear on Union Exhibit 6, which was copied at 5:15 p.m. on Wednesday, September 3.  The fact that those drivers' names appear to have been signed in retroactively, the same as the Grievant's, tends to indicate that they too wanted to be sure their name was added because they had been unable to find the list earlier or had not been adequately informed of the District's expectation.  Thirdly, it makes sense that the Grievant was reluctant to call in over the radio to object to specific assignments being made to her fellow drivers.  There is no evidence that she had a seniority list available to her; therefore, she would have been guessing and would have risked being wrong if she had objected to any specific appointment, on the days in question.  The appropriate process for objecting to perceived seniority violations is to consult with one's union.  Then, if the union concurs, a grievance can be filed and processed through the contractual procedure.

                The arbitrator does not doubt that the District acted in good faith.  There is no dispute that September 2 and 3, 1997, were chaotic days at the start of a new school year.  The dispatchers were very busy trying to cover all the routes, including extra runs and emergency replacements.  However, the arbitrator is not persuaded that the assignment system they were following was in compliance with the contractual requirements on those days.  

                The arbitrator is not convinced that the sign-up sheet was out on the counter in the dispatch office and available for sign--ups by drivers until late Wednesday afternoon, September 3.  Since the Grievant was not able to sign the sheet, she did the best she could to provide verbal notice to the dispatch office of her desire to accept extra runs.  That notice was sufficient under the circumstances.  Other drivers, including Mr. Lyda, had routinely been permitted to "sign-up" by calling the office. 

                The Grievant was available and willing to accept runs between 9:45 a.m. and 1:30 p.m. on both September 2 and 3, 1997.  Yet she was passed over and assignments were made to junior employees for extra runs during those time periods.

                The arbitrator does not agree that the seniority requirement in the parties' agreement is more "artful" than scientific.  Also, the burden is not, as the District suggests, on the Union to prove that any of the extra runs on September 2 and 3, 1997, was a non-emergency. 

                The District can and must have in place appropriate procedures for making extra-run assignments that comply with the contractual requirements.  The parties have stipulated in their agreement that the District must give a written explanation to support its reason when it assigns a junior employee over a senior.  If, as the Employer contends, there was good reason (i.e. emergency conditions) to justify deviating from the seniority requirement on September 2 and 3, 1997, the burden would be on the District to articulate that reason, in rebuttal to the Union's case.  Indeed, with the exception of one assignment (that of Coral Laird on September 2, who was apparently assigned to pick up kids who had been left behind at a school), the Employer offered no evidence that any of the drivers with less seniority than the Grievant had been assigned to cover an emergency situation on either of the two days.

                Even though the District's error may have been inadvertant and caused in part by the press of business at the start of a new school year, the arbitrator finds that the District violated the collective bargaining agreement and the grievance is therefore granted.  Grievances are appropriately filed in order preserve the integrity of the collective bargaining agreement.   By filing her grievance, the Grievant not only preserved her own right to be compensated for extra duty assignments that she should have been awarded, but she also protected the right of all drivers to preserve the negotiated benefits of their seniority.

                                                                                                AWARD

                For the foregoing reasons, the arbitrator grants the grievance.  As a remedy, the Grievant shall be made whole for the loss of extra assignments that were available to her, based on her seniority, on September 2 and 3, 1997.  Also, the District shall cease and desist from assigning extra runs to drivers without considering the relative seniority of those who are ready and willing to accept such assignments.  The District shall establish appropriate procedures whereby drivers may notify the District of their availability for assignment to extra runs and shall enforce such procedures equitably.
   
          The arbitrator retains jurisdiction for sixty (60) days, to assist the parties with implementation of this award.

                DATED: _________________

                                                                                                ________________________________

                                                                                                SANDRA SMITH GANGLE, Attorney at Law
                                                                                                Arbitrator
                                                                                                835 Saginaw St. S
                                                                                                Salem, OR  97302

    [1]  See also Bethel Chapter, PSE v. Bethel School District, FMCS Case No. 97-20578, dated May 7, 1998, in which the District sought to limit the issue to whether one specific subsection of the parties' agreement had been violated.  Arbitrator Lindauer ruled that his obligation was to consider "other related provisions of the Agreement" as well.  Id.at 11. 

    [2]  See Sections 7.8.8.1 and 10.4, which allow consideration of superior ability and performance of a junior employee, upon written explanation to the senior employee who is passed over.  Also, the parties did not dispute that, in certain emergencies, the District may assign whatever driver is located closest to the emergency condition, without considering the seniority of the driver assigned.

    [3]  The form for the sign-up sheet in 1997 was actually four pages long and listed the last names of 103 drivers in the order of their seniority.  Each page was divided in five columns, one for each workday, Monday through Friday.

 

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