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Title: Portland Public Schools and Portland Association of Teachers
Date: June 1998
Arbitrator: Sandra Gangle
Citation: 1998 NAC 113

SANDRA SMITH GANGLE, ARBITRATOR

IN THE MATTER OF THE ARBITRATION              )

              BETWEEN                                                    )

PORTLAND ASSOCIATION OF TEACHERS,        )

                        "THE ASSOCIATION"                       ) RECOGNITION ARBITRATION

            AND                                                                )   OPINION AND AWARD

PORTLAND PUBLIC SCHOOLS,                            )

                        “THE DISTRICT”                                )

______________________________________        )

Hearing Conducted:                   April 2 and May 5, 1998      Portland School District Offices
                                                                                             Portland, Oregon

Representing the District:           Sharon Toncray, Attorney at Law
                                                 Miller Nash, LLP
                                                 3500 U.S. Bancorp Tower

                                                 111 SW Fifth Avenue
                                                 Portland, Oregon 97204-3699

Representing the Association:    Elizabeth A. Joffe, Attorney at Law
   
                                             Bennett, Hartman, Reynolds & Wiser
                                                851 SW Sixth Avenue, Suite 1600
                                                Portland Oregon 97204-1376

Grievant:                                  Portland Association of Teachers

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

Date of Decision:                      June  26, 1998

                                                                BACKGROUND

            This matter comes before the arbitrator pursuant to a collective bargaining agreement between the parties effective between March 28, 1996 and June 30, 1998.  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, through the services of the Oregon State Conciliation Service/Employment Relations Board, to conduct a hearing and render a decision in the matter.

            The parties met for hearings before the arbitrator on April 2, 1998 and May 5, 1998 in a conference room at the Portland Schools Blanchard Education Service Center.  The Portland School District (hereafter referenced as "the Employer" or "the District") was represented by Sharon Toncray, Attorney at Law, of the law firm of Miller Nash, LLP of Portland, Oregon.   Portland Association of Teachers (hereafter "the Association" or "the Union") was represented by Elizabeth A. Joffe, Attorney at Law, of the firm of Bennett, Hartman, Reynolds & Wiser, Portland, Oregon. 

            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.  They were most competently and vigorously represented by their respective advocates.   All witnesses were sworn by the arbitrator and were subject to cross-examination by the opposing side.  Evidence was offered in the form of witness testimony and documentary exhibits.  The Association's witnesses were Virginia Ross, Vickie Barrows and Randall Ventgen.  Witnesses appearing for the District were Gary Tuck, Gerald Morford, David Myton (appearing telephonically) and Valerie Regan.

        At the close of the hearing the parties agreed to submit simultaneous post-hearing briefs to the arbitrator, by postmark date of June 5, 1998.  Upon receipt of the briefs on June 8, 1998, the arbitrator officially closed the hearing and took the matter under advisement.                                                                       THE ISSUE

            The parties stipulated at the hearing that the issues before the arbitrator are the following:

            (1)        Did the District violate the Collective Bargaining Agreement by failing to recognize the Union as the bargaining representative of certain employees performing jobs identified in Appendices B and C of the Agreement, who are not otherwise in the bargaining unit by virtue of holding some other position? 

                        If the answer to question no. 1 is YES, then:   

            (2)        Did the District violate the Agreement by failing to provide the information that was requested about those employees?  If so, what is the appropriate remedy?

                                           APPLICABLE CONTRACT PROVISIONS

                                                                     ARTICLE I

                                           STATUS AND EFFECT OF AGREEMENT

                A.            The Board recognizes the Association as the sole and exclusive collective bargaining representative for all licensed teaching personnel employed or to be employed in the District in a position for which a teaching license is required by state (sic) or regulation, School Psychologists, Social Workers, Child Development Specialists, Student Services Specialists and Audiologists. Such recognition also includes those assignments specified in Appendices B & C of this Agreement.  Such recognition excludes the Superintendent and the Central Office Adnministrative Staffs, Principals, Vice-Principals, Administrative Assistants and persons ordinarily engaged at least 50% of the time in administration, supervision or evaluation of teaching personnel.  The term "unit member", when used herein, refers to members of the bargaining unit.

                D.            The parties acknowledge that during the negotiations which resulted in this Agreement, each had the right and opportunity to make demands and proposals with respect to any subject appropriate for bargaining, and that the understandings and agreements arrived at by the parties after the exercise of that right and opportunity are set forth in this Agreement.  The parties mutually agree that the terms and conditions set forth in this Agreement incorporate the entire understanding and agreements of the parties on all matters which were subject to negotiations.  The Board and the Association agree that, during the term of this Agreement, the other shall not be obligated to negotiate or bargain collectively with respect to any such matter covered by this Agreement.  This Agreement may be altered, changed, added to, deleted from or modified only through the voluntary, mutual written consent of both of the parties in amendment thereto.

                                                            ARTICLE 2

                                                   ASSOCIATION RIGHTS

Except for Section G below, the Association rights conferred on the Association in this Agreement shall be exclusive except as provided by law.

                B.            The District shall furnish the Association upon request all reasonable available factual information necessary to its function as exclusive bargaining representative.

                                                                ARTICLE 6

                                                 GRIEVANCE PROCEDURE

SECTION A - Definitions, Time Limitations on Filing and Joinder

                1.             "Grievance" is defined as a complaint by one (1) or more unit members that the District has violated provisions of this Agreement, provided the conduct complained of directly affects the unit member(s).

                                                                                                * * * * *

                                "Association grievance" is defined as a complaint by the Association that the District has violated provisions of this Agreement.

SECTION C - Levels and Steps

                Level 1.  Immediate Supervisor

                                Step 1.    An employee grievance or an Association grievance affecting unit member(s) at a single building shall be raised. . . at the office of the unit member's supervisor.. . .

SECTION D - Arbitration

If the grievance is pursued to arbitration * * * * *

                2.             Authority of Arbitrator.

                                The arbitrator shall issue a decision within twenty (20) days of the close of the hearing or submission of briefs, whichever occurs later.  The arbitrator's decision shall be in writing and shall set forth findings of fact, reasons and conclusions.  The arbitrator may not add to, subtract from, or modify the terms of this Agreement, and may not award punitive damages.  The arbitrator's decision shall be final and binding.

                3.             Costs.

                                Fees and expenses for the arbitrator shall be borne equally by the Association and the District.

                                                                ARTICLE 13

                                           DUES AND PAYROLL DEDUCTIONS

A.            Fair Share Agreement

                1.             The District shall deduct an amount established by the Association, not to exceed usual and customary dues, each pay month from the pay of each unit member who is not a member of the Association. . . . .

                2.             Any unit member who has not requested payroll deductions of Association dues . . . or who has not certified to the District that s/he has paid his/her dues directly to the Association shall be subject to the provisions of this Section.

B.            Dues

                4.             A computer printout of employees on Association dues deduction and Fair Share fees shall be sent to the Association, . . . within five (5) working days, following the end of the calendar month in which the payroll check has been issued, including a listing of all additions and deletions to the membership list from the previous month.

                                                              ARTICLE 22

                                       PROFESSIONAL COMPENSATION

E.             Payroll Checks

                6.             Salary payments for extended responsibility assignments of a seasonal nature, such as coaching, shall be paid at the unit member's option: (a) in a lump sum at the end of a season, or (b) prorated over a three-month period during the season, or (c) prorated over the months remaining in the work year following the beginning of the season.  In addition, if a unit member has actually started the seasonal extended responsibility assignment during a school year, except for insufficient student participation, s/he will receive the entire salary due for that assignment unless the unit member is physically unable to perform.

                                                              APPENDIX B

                                           SPECIAL SALARY PROVISIONS

9.             Unit members assigned extended responsibilities as set forth in Appendix C, attached to and incorporated in this Agreement, shall be compensated in accordance with the provisions of this Agreement without deviation.

                                                                  APPENDIX C

                                      EXTENDED RESPONSIBILITY SCHEDULE

The Extended Responsibility Base amount is the figure against which all extended responsibility percentages are factored for the duration of this Agreement.  These are the amounts to be used for figuring extended responsibility pay:

                        1995-96         =          $24,650

                        1996-97         =          $25,020

                        1997-98         =          Same percent as CPI increase

 

            POSITION                                                     PERCENT OF BASE

High School Positions                                          1st Year         2nd Year       3rd Year

            Athletic Director

                        Fall      .................................               9.5                   10                    10

                        Winter  .................................              10.0                 10                    11

                        Spring  ..................................              9.5                   10                    10

Head Coach

            Football          ..................................                16                    17                    18

            Basketball..................................                       16                    17                    18

                                                                        * * * * *

Department Chair (A)    .....................                           11                    12                    13

                                                                        * * * * *

Pep Club (A)  ....................................                           5.5                   6                      6.5

                                                                        * * * * *

Elementary/Middle School Positions

Intramurals

            A - 4 1/2 hours/week for 28 weeks                    6.5                   7                      7.5

            B - 3 hours/week for 28 weeks                          4.5                   5                      5.5

Safety Patrol  .....................................                         3.5                   4                      4.5

                                                                        * * * * *

OTHER POSITIONS (K-12)

            Job Placement Liaison ..................                      6.5                   7                      7.5

                                                                        * * * * *

            TV Producers and Directors ..........                     4.5                   5                      5.5

            * * * * *

3.             Unit members assigned as Student Activity Advisors and for student supervision at times after the workday pursuant to the Memorandum of Understanding dated February 1, 1990, shall be paid Fifteen Dollars ($15.00) an hour.  So as not to supplant unit members, a principal may use non-paid volunteers in these positions only if, due to a lack of funding, such positions would not otherwise be filled.

                                                                                                * * * * *

8.             Extended responsibility pay is for activities and responsibilities performed, primarily, outside the standard workday.  It is understood that, except for those that are extensions of the classrooms, extra responsibility pay positions are voluntary.

 

9.             Extended responsibility pay shall only be paid as provided in this contract at the rates indicated without variation.

 

10.           When a category of positions is added or "Special Project Assignments" which continue more than two (2) years are not addressed in this Appendix, the District will refer such issue to a Contract Administration agenda with the Association for review and inclusion into the Appendix pay schedule.

                                                                                                * * * * *

                                                                                    Joint Exhibit No. 1

                                                     STATEMENT OF THE FACTS

            1.         For many years,the District has hired individuals on a part-time basis, to serve as coaches for various sports and as leaders or trainers of students in a variety of school-related activities, including band and drama direction, department chairmanship, yearbook production, crossing guard service and audio-visual coordination.  The assignments have generally been referred to as "extended responsibility" (ER) jobs.  Most of such assignments are scheduled outside of the regular school day.

            2.         Most of the persons hired by the District to fill ER slots are classroom teachers or other professionals, such as school psychologists and audiologists, who hold other positions with the District.  ER assignments are purely voluntary, however.  As a result, some ER vacancies fail to attract applicants who hold professional positions with the District. 

            3.         Some ER assignees hold classified jobs, such as secretarial or janitorial positions, with the District.  Many of those individuals are covered by collective bargaining agreements that are separate from the PAT agreement that is involved in this matter. 

            4.         A third group of ER assignees are those who hold no position whatsoever with the District beyond the ER job for which they are hired.  Some such persons are employed as teachers or classified staff in school districts other than Portland.  Others have no employment relationship with any school district, besides the ER assignment for which they are hired in the Portland School District. 

            5.         While most ER appointees hold only one ER assignment during a particular school year, a fair number of them hold more than one.   For example, a person might coach one sport during the fall and another in winter.

            6.         Since 1975, the Association and the District have included provisions in their collective bargaining agreement, known as Appendices B and C, governing ER assignments.  A  detailed compensation schedule, with limited exceptions, is included in Appendix C.   The District has historically paid for ER services according to the rate schedule in Appendix C,  whether the employees providing the services hold other positions with the District or not.

            7.         In November of 1989, the Association requested a list of those individuals who were providing services for the District and were receiving some contract benefits, but were not being assessed fair share fees for the Association.  Director of Employee Relations Gerald Morford responded to the request by providing a list of "outside" employees, mostly coaches.  The Association then made a written request that the District begin deducting fair share fees from those persons' pay.  The District did not comply with the Association's request.  No grievance was filed over the non-deduction of fees, however, until 1996, when the instant grievance was filed.

            8.         In 1994, the Association filed a grievance, alleging that the District had violated the labor agreement by assigning certain ER duties, previously performed by bargaining-unit members, to supervisors and by failing to pay some bargaining-unit members according to the scale in Appendix C.  That case, which proceeded to arbitration before Arbitrator Carlton J. Snow, is referenced elsewhere in this opinion as the "ER Arbitration".[1]

            9.         On October 28, 1996 the Association asked the District to provide information about persons who were holding ER positions, but were not paying fair share fees to the Association.  The District declined to provide the information, on the basis that it did not consider those individuals to be within the bargaining unit, since they were not otherwise employed as professionals with the District.   The Association filed a grievance over the District's denial.  It is that grievance that is before the arbitrator in this proceeding.

            10.       Presently there are about 250 persons holding ER assignments in the District who do not otherwise hold positions as teachers, school psychologists, social workers, child development specialists, student services specialists or audiologists with the Portland  School District.   Most, if not all, of those persons pay no fair share dues to the Association.

            11.       On several occasions over the past 20 years, the Association has represented  employees who provided ER services, but performed no other services as teachers or professionals, by investigating, filing and processing grievances in their behalf. 

                                                    POSITIONS OF THE PARTIES

A.        THE ASSOCIATION: The Association contends that all persons who provide ER services for the District are included within the bargaining unit, by virtue of the recognition clause of the parties' agreement, Article IA.  Not only does the plain language of the recognition clause support inclusion, argues the Association, but the parties' bargaining history and past practice support it as well.

            The Association points out that it has served as the bargaining representative for all those who perform ER services, and has never made a distinction between those who also work for the District in a professional capacity and those who do not.  It has even filed grievances for persons in ER assignments who were not otherwise included within the bargaining unit.  One such case, which involved the non-payment of wages to two part-time coaches (North and Stoudamire) in 1979, went all the way to arbitration.  Another, involving the discharge of a coach (Ferres) in 1992, was resolved by reinstatement of the employee after the Association intervened in his behalf.  The District never argued in either of those cases that the Association lacked the authority to represent the aggrieved employees.

            The Association contends that Arbitrator Snow's decision in the ER Arbitration is not relevant to this case.[2]  To the extent it is relevant, it actually supports the Association's position.  While Arbitrator Snow decided that ER duties were not the exclusive work of the bargaining unit, and that some such duties could be assigned to supervisors as a cost-saving measure, he did not decide that any employees other than supervisors were outside the unit when they performed services covered by Appendices B and C.   The Association had not asked  Snow to determine whether those ER positions were in the bargaining unit or not.  It consistently asserted that all such positions were bargaining-unit positions and that they were entitled to compensation at contract rates.

            The Association asks the Arbitrator to sustain the grievance and to find that the positions listed in Appendices B and C are within the bargaining unit regardless of whether the employees who hold them are otherwise in the bargaining unit or not.    As a remedy, the Association asks the arbitrator to order the District to provide information about the persons filling all ER positions, so that fair share fees can henceforth be collected from the compensation of those who do not currently pay such fees.

B.         THE DISTRICT:          The District contends that an individual does not become a member of the PAT bargaining unit simply by performing an ER assignment.  The District argues that it has always offered ER assignments to bargaining unit members first, but to fill vacant slots, it has had to hire qualified outsiders (including secretaries and other classified employees, teachers from other districts and community members) to perform the ER work.  Although the District has usually paid such individuals at the rates set out in Appendices B and C, it has done so voluntarily, for fairness reasons only.  The District has never considered such employees to be within the PAT bargaining unit because of the ER appointment.

            The District points out that, as far back as 1989, it informed the Association that it did not consider such persons to be in the bargaining unit.  The District declined to deduct fair share fees from their pay at that time, although Association Representative Virginia Ross had requested that it do so, pursuant to Article 13 of the labor agreement, ORS 243.650 and Bates v. Portland Federation of Teachers and Classified Employees (PFTCE), an Oregon Employment Relations Board decision. 

            During bargaining in 1992, the District proposed to amend the recognition clause to clarify its prior understanding of the scope of representation of ER assignments.  The District's proposal was to add the following underlined language:  "Such recognition also includes those assignments specified in Appendices B & C of this Agreement when performed by a bargaining unit member."   Although the District's proposal was not adopted, the District has never wavered from its interpretation of the language, as stated in the 1992 proposal, either before or after the bargaining was completed in that year.

            The District asserts that Arbitrator Snow's 1994 ER arbitration decision supports its position in this case.   The District cites the following language specifically:

            "The change proposed by the District in 1992 was seen by the Association as evidence that it is the practice of the parties to permit only bargaining unit members to perform extended responsibility assignments.  This inference, however, is undermined by the fact that the assignments are strictly voluntary, as is the general claim that extended responsibility assignments are the exclusive work of the bargaining unit."

                                                            Jt. Ex. 3 at 40.

Arbitrator Snow concluded that ER assignments were not the exclusive work of the bargaining unit.  The District asserts that the Association is now attempting to circumvent the Snow decision by asserting that individuals outside the bargaining unit come into the unit by virtue of performing ER work.  The District declares that it has simply never agreed that persons holding ER positions, who were not otherwise in the bargaining unit, could become members of the unit by virtue of performing ER duties.

            The District denies that it has ever recognized the Association as grievance representative for persons who hold ER assignments exclusively.  The District points out that the outcome of the 1979 North/Stoudamire arbitration was a finding that the grievants had not been "employees" at all, because they lacked a necessary license.  The reinstatement of coach Ferres in 1992 was voluntarily implemented by the building principal and had no binding effect on District policy regarding the interpretation of the contract's recognition clause.

                                                      ANALYSIS AND DECISION

            This is a contract interpretation case.  The Association bears the burden of persuading the arbitrator that the District has violated the parties' collective bargaining agreement by its interpretation or application of one or more contract provisions.

            The initial inquiry is to determine whether the contract language is clear and unambiguous.  If it is, the arbitrator's role is simply to apply the plain language to the facts of the case.  If, however, the language is ambiguous, the arbitrator must resolve the ambiguity  by determining the intent of the parties when they negotiated the language.

            In this instance, the language that is in issue, the recognition clause, is central to the parties' relationship.  It defines the nature and scope of the bargaining unit that the Association represents.  The language of the clause is as follows:

                A.            The Board recognizes the Association as the sole and exclusive collective bargaining representative for all licensed teaching personnel employed or to be employed in the District in a position for which a teaching license is required by state (sic) or regulation, School Psychologists, Social Workers, Child Development Specialists, Student Services Specialists and Audiologists. Such recognition also includes those assignments specified in Appendices B & C of this Agreement.  Such recognition excludes the Superintendent and the Central Office Administrative Staffs, Principals, Vice-Principals, Administrative Assistants and persons ordinarily engaged at least 50% of the time in administration, supervision or evaluation of teaching personnel.  The term "unit member", when used herein, refers to members of the bargaining unit.

            The provision can readily be divided into two parts.  The first part identifies certain "personnel" and "assignments" that are included in the bargaining unit; the second part identifies specific individuals who are excluded from the unit.    

            Personnel that are expressly included in the unit are: (1) those who fill positions for which teaching licenses are required, and (2) certain specific professionals, identified as school psychologists, social workers, child development specialists, student services specialists and audiologists.[3]  In addition, the ER "assignments" that are listed in Appendices B and C of the labor agreement, are expressly included in the unit.  

            It is undisputed that many of the ER assignments are directly related to classroom teaching, such as department chairmanship responsibilities.  Others involve the coaching of various sports.[4]  Still others, such as after-school supervision and crossing guard activity, have little connection to teaching and can probably be performed by unskilled personnel.

            Article 1A expressly excludes from the bargaining unit the Superintendent, District administrators, and persons who are ordinarily engaged at least 50 percent of the time in administration, supervision or evaluation of teachers.[5]   There is no other exclusion of part-time employees from the unit, however.[6]

            The Association argues that the language of the recognition clause is clear and umambiguous and the arbitrator need look no further to resolve this dispute.  The issue is not so simple, however.  If the parties had used the word "positions" or "persons" when they made reference to Appendices B and C duties being included in the unit, the issue would indeed be crystal clear.  Unfortunately, however, they chose the word "assignments", and, on analysis, that word can be interpreted and applied in two different ways.  Therefore, there is a latent ambiguity which must be resolved.

            First, the parties could have intended that those who provide ER services would be included in the bargaining unit only when the duties are "assigned" to teachers and other professionals who are expressly identified in the opening sentence of the recognition clause.   That is the way the District interprets the language in this arbitration.  

            On the other hand, the parties could have intended that all non-supervisory employees, when assigned to ER positions, would be included in the bargaining unit, even where they are otherwise employed by the District in some other bargaining unit (i.e., classified staff), or hold no other position whatsoever with the District.   It is that interpretation that the Association is advocating in this arbitration.  

        DETERMINING THE PARTIES INTENT:  CONSIDERING THE ENTIRE CONTRACT

            In order to resolve the ambiguity, the arbitrator must first consider the context -- namely, the four corners of the agreement -- in which the disputed language is found.  A collective bargaining agreement must be read as an integrated whole, rather than in isolated sections, in order to determine the parties' mutual intent.  See, e.g., Elkouri and Elkouri, How Arbitration Works, (4th ed., 1985) at 352-53.   The arbitrator will consider a number of relevant provisions in the parties' agreement, because they may offer some clarity. 
            Paragraph (9) of Appendix B identifies "unit members" as the class of individuals that is entitled to contractual wage benefits when they are assigned ER duties: 

               9.      Unit members assigned extended responsibilities as set forth in Appendix C,  . . shall be compensated in accordance with the provisions of this Agreement without deviation.       

A similar wage protection provision in Appendix C, however, seems to apply across the board, to all those who perform ER assignments.  There is no limitation to "unit members", as there is in Appendix B, paragraph (9).
   
             9.      Extended responsibility pay shall only be paid as provided in this contract at the rates indicated without variation.

            While the first provision could support the District's position, because it identifies "unit members" as a distinct class of persons who are guaranteed contractual rates when they are assigned to ER duties, the second seems to support the Association's position.

            Another wage-protection provision in Appendix C seems to show quite clearly that the parties intended all ER service providers to be included in the bargaining unit.  Paragraph (3), Appendix C, expressly prohibits principals from using unpaid volunteers for student activity advising and after-school student supervision unless, due to a funding deficiency, the positions would not be filled.  The stated purpose of the provision is, "[s]o as not to supplant unit members".    Appendix C, paragraph (3).   This provision clearly supports the Association's interpretation of Article 1A. 

            Paragraph (10) of Appendix C, which gives the District unilateral authority to create new ER positions or conduct "special projects" for a period of two years, requires the District thereafter to negotiate an appropriate pay scale for the position "with the Association, for review and inclusion into the Appendix pay schedule" after the two-year period ends.  It was that provision that Arbitrator Snow relied on when he held that the District did not violate the agreement when it failed to pay a department chair according to the Schedule C compensation scale for that category, because the particular individual's duties had been reduced substantially, as a result of unique building needs and funding difficulties, and a new position had actually been created.  What is significant about Paragraph (10) is that after two years, the District is bound to negotiate an appropriate wage rate with the Association for such newly-created categories of ER assignments.  That shows that, at least at that point, the positions become bargaining-unit positions. 

            Nowhere in the contract is there a provision that establishes two separate groups of ER employees, as the District proposes, only one of which is in the bargaining unit because it consists of people who hold another bargaining-unit position.  The arbitrator would be adding language to the contract if she were to infer that such a provision existed in the document.  Article 6, Section D(2) expressly prohibits making such additions.

                                     BARGAINING HISTORY AND PAST PRACTICE

            The District contends that the parties' bargaining history and past practice support the District's understanding that the 250 people who are not otherwise employed in bargaining-unit positions, but perform ER services at the present time, are outside the unit.  The arbitrator must, therefore, consider the evidence on those issues to resolve any remaining ambiguity. 

            A.        1992 Contract Negotiations:  

            The District proposed adding certain language to Article 1A during 1992 bargaining.  The language is highlighted as follows:   "Such recognition also includes those assignments specified in Appendices B & C of this Agreement when performed by a bargaining unit member."  Jt. Ex. No. 8.   District witness Jerry Morford testified that the proposal was intended to clarify his long-held understanding of the intent of the sentence.  Notes that were taken by the District's bargaining team secretary at the parties' March 5, 1992, bargaining session were offered as evidence to support that understanding.  See, e.g.,  District Ex. No. 4, page 3, where Mr. Morford is quoted as saying, "We are not proposing to change what is being done today."

            The Association made a counter-proposal to the District's proposal, by which it offered to accept the District's added language in Article 1A.   In exchange, the Association proposed modifying the language of Appendix  C, to give a right of first refusal, as follows: 

                                                                                              Appendix C

                Extended responsibility positions will be filled as follows:

                1.     Positions will first be offered to unit members at the work site;

                2.     If a position is not filled after number one above, then the position(s) will be offered to unit members who are off site;

                3.     If a position is not filled after numbers one and two above, then the position(s) will be offered to non bargaining unit members.

                                                                                    See Jt. Ex. No. 8

 

            It appears that the Association's goal was to negotiate a quid pro quo for the District's proposed new language -- namely a requirement that ER vacancies be posted throughout the District and "unit members" have a right of first refusal to choose ER assignments at all locations.   What is significant is that the phrases "unit member" and "non bargaining unit member" are not defined by the Association in its counter-proposal.  Therefore, it is not clear that the Association meant to eliminate any employees from the existing unit.  Also, in another section of its counter-proposal, the Association sought to change the words "[u]nit members" to "[a]ll individuals" in paragraph (9) of Appendix B.  That proposed change indicates that that the Association was clarifying that it would represent all ER employees, consistently with Appendix C(9), not that its representation was being restricted. 

            The District offered its own team bargaining notes from the parties' March 5, 1992, bargaining session, as evidence that the Association acknowledged at the table that some ER employees were in the unit and others were not.  The arbitrator does not find the evidence to be conclusive, however, as it is unsupported hearsay.  Mr. Morford appeared at the hearing and testified that he had no specific recollection of the discussion surrounding the Association's counter- proposal, other than the notes themselves.  

            What is significant is that neither the District's proposed addition to Article 1A nor the Association's counter-proposal was agreed upon by the parties.  Witness Virginia Ross, who took over the PAT bargaining spokesperson role sometime after the March 5, 1992 session, testified that she withdrew the Association's counter-proposal in June of 1992 and

expressly told the District representatives at a meeting that was attended by Mr. Morford, Gary Tuck and Ed Schmidt that the Association "would not agree to bargain the Schedule C people out of the bargaining unit".  She said that no District representative responded by taking the position that some Schedule C people were already excluded from the unit.  Her testimony was credible and was not rebutted.   Also, it is clear that the prior language remained unchanged in the agreement that was signed in 1992, as well as the successor agreement that applies to the instant arbitration. 

            B.         Fair-Share Dues

            The District contends that the Association has tacitly agreed that there are two distinct groups of ER employees, one of which is "in" the unit and another "outside" the unit, because the Association has failed to collect fair share dues from some individuals that it now contends are members of the bargaining unit.  The District argued that, since 1989, the parties have discussed, but the Association has not enforced, the collection of fair share dues from many persons who perform ER assignments, although Article 13 of the parties' contract and outside legal authority would require it to do so. 

            The District says the issue first arose when Virginia Ross became aware of the decision of the Employment Relations Board in Bates v. PFTCE, 11 PECBR 563 (1989), relating to fair-share fees.  Ross acknowledged on cross-examination that she told  Mr. Morford she believed the Association was obliged to collect fair share fees from all bargaining unit members or that the Association would "waive" its right to do so.   She said she asked Morford for a list of all those who were not currently paying fees and he subsequently supplied a list of names of such persons, most of whom were part-time coaches.  The Association followed up with a letter asking Morford to deduct fair share fees for the listed employees.  However, the District did not comply and the Association took no action for over six years.[7] 

            The Association explains its delay by arguing, first of all, that Mr. Morford said it would be administratively difficult to collect fair share dues from many of the ER employees, as the District's computerized payroll system was inadequate to deduct fees for more than one union from an employee's paycheck.[8]   The Association contends Morford never argued that such deductions would be inappopriate because part-time ER appointees were not in the bargaining-unit.  Association witnesses said the first time they heard that argument was in the fall of 1996 and they promptly filed the instant grievance at that time.  Also, the Association contends that the parties often allow issues to remain "on the back burner" without resolution for a long time.  None of those statements was refuted by the District's witnesses. 

            There was no objection to procedural arbitrability of the grievance in this matter.  The contract does not say that persons who fail to pay their fair share fees lose their status to assert that they are bargaining unit members within a particular period of time. Also, the arbitrator does not find, based on the evidence, that the Association has waived its right to assert in this case that persons from whom it is not collecting fees are in the unit and should be paying dues.  Indeed, that appears to be the real issue in the case.  It was the Association's request for names and addresses of ER appointees who were not currently paying fees that prompted the grievance in the first place.

            C.        Custom and Practice of Representation of ER Appointees by the Association

            The Association argued emphatically that it has at all times treated the individuals who perform ER duties equally, with respect to representation for enforcement of the parties' labor agreement.  Witnesses Virginia Ross and Randall Ventgen both testified that they have uniformly considered themselves the representative of all such persons, and have never made any distinction in level or quality of service, depending on whether the employees paid fair share fees to the Association or not or whether they have performed some position other than ER duties or not.  Ross and Ventgen testified that they have answered many, many phone calls from ER employees over the years that they served in the PAT office, regarding contract rights and issues.  They have investigated grievances when asked to do so and have actively represented a number of ER appointees in negotiating with District representatives over alleged contract violations.  They said they have never asked whether those employees were otherwise in the bargaining unit, as a pre-screening mechanism.

            More significantly, however, Ross and Ventgen said that no District representative has ever refused to talk to them, on the basis that they had no authority to represent a grieving ER employee.  The North and Stoudamire grievances went all the way to arbitration in 1979.  The grievance of a coach named Ferres was resolved by reinstatement to his position at Roosevelt High School, after a publicly contentious dispute, in 1992.[9]  In addition, Ms. Ross testified that she once represented a female coach, whose name she could not recall, in a  dispute over the woman's removal as a coach at Grant High School.  Ms. Ross said she negotiated with Principal Myra Rose, who never argued that Ross or the Association had no right to represent the woman.  That evidence was unrebutted.   

            The arbitrator finds this evidence most persuasive.  If, as the District contends, it has always believed that ER appointees were outside the unit, unless they performed some professional duties in addition to ER services, they had ample opportunity to raise that issue during prior grievance processing, yet they never did.  While the contractual grievance procedure allows individuals to represent themselves at Levels I and II, it is clear the initial step of the formal grievance procedure involves a written complaint lodged with the affected employee's supervisor at the employee's building.  If the Association was representing a particular grievant, therefore, in filing such written complaint at the building level, the District was on notice that the Association considered the grievant to be a bargaining-unit member. 

            The District contends it is not really on notice of grievances until they reach the central administration level at Level II.  The District says, essentially, that the Ferres grievance, and possibly the Grant High School female coach's grievance as well, slipped by because they were resolved at the building level only, without central office involvement.  That argument flies in the face of the contractual grievance procedure itself, however.   The contract clearly and unambiguously authorizes the building supervisor to speak for the District in negotiating grievances at Step I.

            The arbitrator is not persuaded that the Association ever waived its right to assert that ER appointees are members of the bargaining unit.  The arbitrator expressly finds that the Association has clearly, repeatedly and unequivocally acknowledged to the District that it accepted responsibility as the bargaining representative of all those persons who provide ER services pursuant to Appendices B and C of the contract, regardless of whether or not they hold other positions in the bargaining unit as well.

                                                                       AWARD

            For the reasons stated in the foregoing OPINION, the arbitrator concludes that the District violated the collective bargaining agreement when it failed to recognize certain employees who provide extended responsibility services as members of the bargaining unit and refused to provide the Association with certain information about those employees.  The grievance is therefore allowed.     

            The District shall, within ten business days of the date of this decision, provide the information that the Association requested, as related to all persons currently and prospectively employed in extended responsibility assignments. 

            Dated this ____ day of June, 1998.

                                                                        _________________________________

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

    [1] There was considerable discussion at the hearing regarding the precise nature and scope of issues that the Association had presented to Arbitrator Snow.  A review of Snow's opinion, which was issued on March 20, 1995, shows that the parties did not stipulate to the issues at the hearing, but authorized Arbitrator Snow to frame them, based on the evidence and argument of the parties.  For purposes of this case, the arbitrator has considered the issues in the earlier case to be limited to those that are stated on page 2 of the Snow decision.

    [2]  The Association accepts, for purposes of this arbitration, the holding of Arbitrator Snow in the ER arbitration.  Snow found that the assignment of certain ER duties to supervisors did not violate the collective bargaining agreement, even where those duties were previously a part of a position listed in Appendix C.  He also found that the District had not violated the contract when it reduced the duties of a department chair and changed the pay rate unilaterally, because the District had the express authority in Appendix C (10) to create new ER positions for a period of two years, after which an appropriate wage rate would be negotiated with the Association.

    [3]           There is no indication in Article 1Aas to whether these non-teaching professionals must hold  particular licenses or degrees.  The arbitrator notes that, elsewhere in the agreement, there is a clear distinction between "positions in the bargaining unit that are not required to be licensed by Teachers Standards and Practices Commission ("TSPC")" and those that "are required" to be so licensed.  See Article 11 (B).  Apparently licensing is not an issue.  See also ORS 243.650(1), which permits licensed and unlicensed or non-academically licensed school employees to serve in the same bargaining unit, if the unit was recognized by the public employer prior to June 6, 1995.

    [4]           Prior to 1981, coaching positions were considered a form of teaching and they required restricted teaching licenses.   Indeed, the outcome of the 1979 arbitration, in which the Association represented two part-time coaches named Stoudamire and North, was that the two men could not be considered "employees" of the District, because they did not have the teaching license that was required at the time.  According to David Myton, Executive Director of TSPC, who testified at the hearing, the licensing requirement for coaches ceased when ORS 336.183 was adopted in 1981.     

 

    [5]The use of the word "persons" is significant.  It clearly applies only to individuals who carry a split assignment, more tnan 50% of which is devoted to administrative/ supervisory duties.  One can infer, from the wording of that provision, that persons who hold supervisory assignments less than 50 percent of the time, but otherwise work in bargaining-unit positions, are included in the unit.

    [6]  There is no minimum number of hours or minimum percentage of full-time equivalent employment required for inclusion in the bargaining unit.  Association witness Virginia Ross testified at the hearing that some teachers work as little as one or two hours per week and there is no dispute that they are in the unit.  That testimony was unrebutted.

    [7] Association witness Vickie Barrows testified that when she was serving as President she prepared a letter to Mr. Morford, demanding that the District begin deducting fair share dues from ER employees.   She believed that she had sent the letter, an unsigned copy of which was offered in evidence, to Morford.  Mr. Morford could not recall ever receiving the letter and said he had had very little communication with Ms. Barrows during her term as president.  Morrow's secretary, Valerie Regan, denied that the letter had ever been received in the human resources office.  Based on the evidence, therefore, the arbitrator is not persuaded that the letter was ever delivered to the District.

    [8] The parties agreed that some employees of the District actually do pay union dues to two separate unions.  It was not clear how the payroll checks for those employees had been processed.

    [9] The District argued strenuously that the Ferres settlement was reached at the building level only.  The District personnel office was not consulted during the grievance-processing and is not bound by the resolution in the case.  The fact remains, however, that the Association acted as the representative of Ferres in the matter.  No District representative ever objected to the Association's right to file or process the grievance and no one ever took the position that Ferres was outside the bargaining unit because he was only a coach and not a teacher.  

 

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