This Arbitration arises pursuant to Agreement between OREGON EDUCATION ASSOCIATION PROFESSIONAL STAFF ORGANIZATION (“Organization” or “PSO”), and OREGON EDUCATION ASSOCIATION BOARD OF DIRECTORS (“Association” or “OEA”), under which LUELLA E. NELSON was selected to serve as Arbitrator and under which her Award shall be final and binding upon the parties.
            Hearing was held on March 15, 1999, in Tigard, Oregon.  The parties had the opportunity to examine and cross-examine witnesses, introduce relevant exhibits, and argue the issues in dispute.  Both parties filed post-hearing briefs on or about April 17, 1999.
APPEARANCES:
                    On behalf of the Organization:

Mr. Ken Steiger, Oregon Education Association, 735 SW Ninth, Redmond, OR   97756

On behalf of the Association:

Jeffrey J. Druckman, Esquire, 222 SW Columbia Street, Suite 1200, Portland, OR   97201

ISSUE

Did the Oregon Education Association (the OEA) violate Article 18 Transfer, Promotion Or Reassignment of the Collective Bargaining Agreement between the Oregon Education Association Board of Directors and the Oregon Education Association Professional Staff Organization (the PSO) when on or about June 8, 1998 the OEA failed to send notice of the vacant position of Assistant Executive Secretary for Organizing and Public Affairs to the members of the PSO?  If so, what should the remedy be?

RELEVANT SECTIONS OF AGREEMENT

ARTICLE 1 - RECOGNITION

1.             The Board of Directors of the Oregon Education Association, hereinafter referred to as OEA, hereby recognizes the Oregon Education Association Professional Staff Organization, hereinafter referred to as PSO, as the exclusive bargaining agent for all temporary, probationary, and permanent professional and technical/specialized staff personnel except cadre assistants, clerical, confidential, guards, and management employees as defined in the National Labor Relations Act

 

2.             The term “employee” when used hereinafter in this agreement, shall refer to all employees represented by the PSO in the bargaining unit as determined in Section 1.

...

ARTICLE 4 - MANAGEMENT RIGHTS

Except as otherwise expressly provided in this Agreement, the OEA reserves the right to manage its operations and to direct its employees within applicable law.

ARTICLE 7 - SENIORITY

1.             Seniority shall, for all purposes, be computed from the most recent date of hire with OEA in a bargaining unit position or with an OEA Local.

 

2.             Seniority shall continue to accumulate when employees are on sabbatical, military, study, health (paid or non-paid), and PSO leaves.  Seniority will not be broken by unpaid leaves of absence or employment by the OEA in a position outside the bargaining unit, other than a management position, but such time will not be counted in computing seniority.

...

ARTICLE 13 - CATEGORIES OF EMPLOYMENT

1.             Regular Employment

 

A.            Employment in an authorized continuous full-time or half-time position in which the employee is scheduled to work the regular work month, as defined in Article 21, shall be considered regular employment.  The provisions of this Agreement are intended to cover regular employees, unless specifically noted otherwise.

...

2.             Regular Employment - Technical/Specialized

A.            Technical/Specialized staff are employees hired for technical or specialized activities, in accordance with OEA needs.

 

B.            This category of employment shall be limited to five positions and these positions shall be within the PSO bargaining unit.

 

C.            Employees within this category of employment are subject to all terms of this Agreement, except as specifically noted otherwise.

 

3.             Temporary Employment

 

A.            Half-time or full-time temporary employees are in the bargaining unit and subject to the terms of this Agreement, unless specifically noted otherwise.  Temporary employment shall be for a specific activity with an ending date of completion or for a specific period of time to replace a regular member on leave.

...

 ARTICLE 18 - TRANSFER, PROMOTION OR REASSIGNMENT

1.             Notice of all vacancies shall be sent to all professional staff members, including those on layoff status.  Such notice shall be provided ten (10) calendar days prior to filling the position.  A complete job description, including minimum qualifications, shall be sent to each office location.

 

2.             An employee, including those on layoff status, may apply for a transfer or promotion into any posted vacancy.  Technical/Specialized staff, however, shall have no right of prior consideration under the terms of this Article for vacancies outside of their job description classification.  Applications shall be filed with the Executive Secretary.

 

3.             Upon the request of an employee, the Executive Secretary may declare a temporary vacancy for that employee’s current position, any and all subsequent transfers will be contingent upon completion of the voluntary transfer procedures contained in this Article.  All transfers shall be voluntary.

 

4.             An employee’s application for transfer or promotion shall be acknowledged in writing by the Executive Secretary.

 

5.             All staff applicants will consult with the Executive Secretary or designee prior to the Council interview.  During this consultation meeting, the supervisor will inform the applicant of what the supervisor plans to tell the interviewing Council regarding the applicant’s strengths and weaknesses.

 

6.             All staff applicants will be granted an interview with the UniServ Council with the exception of an individual staff applicant who may be denied a Council interview by the supervisor if the applicant has been in the current position for less than one year.

 

7.             Management and Council will, prior to the Council interview, meet to define program emphasis and desired skills and experiences sought by the interviewing Council.  These expectations will be sent to internal applicants prior to the interview along with the basic interview questions.

8.             If more than one internal candidate applies for transfer, the Council shall interview that group.  No outside posting or search shall be started until the internal interview process is completed and no internal applicant was selected.  The Council will give priority consideration to internal applicants based on the applicant’s ability to perform the functions of that position as defined by the job description and program needs identified by the Council.

 

9.             If only one internal candidate applies for transfer, the Council can interview only that applicant or can choose to interview that one candidate with outside candidates and select the candidate of their choice.

 

10.           Applicants for statewide non-UniServ positions will be interviewed by the Executive Secretary or designee.  Prior to posting, management will define program emphasis and desired skills and experiences sought for the position.  Management will give priority consideration to internal applicants based on applicant’s ability to perform the functions of the position as defined by the job description and the program needs identified by management.

 

11.           Employees with greatest seniority shall be given priority consideration in determining promotions, transfers, or reassignment.  For purposes of this Article, half-time employees shall have seniority counted from the most recent date of hire for full or half-time positions.

 

12.           When the vacancy is filled, the Executive Secretary shall notify all employees of the action taken.

 

13.           Upon request, an unsuccessful applicant shall be given in writing the reasons for the selection made.

 

14.           A half-time regular employee has a right to apply for transfer to any vacant position.  If the half-time position held by the employee becomes full-time and the half-time employee is not selected for the full-time position or another position, then the employee will be laid off in accordance with Article 8.  The employee will have layoff rights after the first year.

 

15.           Full-time or half-time temporary employees have a right to apply for any vacancy.  If the employee is not selected for another position, and the employment period ends, then the employee may be terminated.  Such termination shall be deemed to have been for just cause and shall not be subject to the grievance procedure of this Agreement.  The employee will have layoff rights, however, after the first year.  Temporary replacements have no layoff rights.

 

16.           If two or more unit members wish to trade positions, they must first contact the PSO to seek a waiver from all unit members.  If the waivers are granted, and the trade receives the approval of both UniServ councils and management, the trade shall proceed.

FACTS

This case involves the process used to recruit a new Assistant Executive Secretary for Organizing and Public Affairs in June 1998.  This position is a management position and not part of the bargaining unit repre­sented by the PSO.  This position was not posted, nor were bargaining unit members otherwise notified of it.

BARGAINING HISTORY AND PAST PRACTICE

The parties first negotiated a collective bargaining agreement in 1973.  Prior to that time, OEA and the predecessor to the PSO negotiated provisions of a Personnel Policies Handbook, including provisions governing promotions, transfers, and moving which read, in relevant part, as follows:

2.         All vacancies created by resignation, transfer, promotion, leaves of absence, or estab­lishment of new positions shall be posted in a suitable place at all office loca­tions of the Association.  Such posting shall be prior to any attempts to seek applicants from other sources.  Posting shall include job title and salary schedule.  All staff applicants shall be granted an interview upon request.  A job description shall be obtainable at each office location upon request.

At the time this language was drafted, OEA had two levels of non-managerial staff.  Most staff were field staff; a few more highly-paid central office positions existed.  The parties’ first collective bargaining agreement, which was effective from 1974 to 1975, contained the following relevant provisions regarding transfer, promotion, and reassignment:

1.         All vacancies created by resignation, transfer, promotion, leaves of absence, or estab­lishment of new positions shall be posted in a suitable place at all office locations of the Association.  Such posting shall be made ten (10) days prior to any attempts to seek applicants from other sources.  A complete job description, includ­ing minimum qualifications, shall be sent to each office location.

...

8.         When filling vacancies under this Article, OEA shall give priority consideration to current employees.  Transfers, promotions, and reassignments shall be based on qual­ifications and ability to perform the function of the position.  When applicants are otherwise equal, the employee having the greatest seniority shall be given special consideration.

...

All subsequent Agreements have contained similar posting provisions.

By the time the 1974-75 Agreement went into effect, no distinctions in rank existed between the field staff and the non-managerial central office staff.  Three central office positions which had been higher-paid had been eliminated, with the incumbents sent to field positions; a fourth had been put on the same salary schedule as the field staff.  In negotiations for the 1996-98 Agreement, the parties created new Technical/Specialized staff positions at a lower salary than regular field staff.

No evidence exists that the parties ever explicitly discussed during negotiations whether the posting provisions applied to managerial positions.  Now-retired former Executive Secretary Robert Crumpton testified the issue of applying the promotion language to managerial positions was never raised in bargaining.  In his view, a move from part-time to full-time could be considered a promotion; a move from one of the recently-created Technical/Specialized  positions to a regular position would also be a promotion.  He acknowledged that a move from a staff position to a managerial position could also be considered a promotion by the indi­vidual promoted, although he would not consider it a “promotion” within the meaning of the Agreement.

The parties stipulated that, other than confidential positions and the position in dispute in this case,^[1] OEA has posted all managerial vacancies to members of PSO since 1987.  Crumpton testified he posted man­agerial vacancies as a matter of courtesy and because he thought it was desirable for staff to be aware of the impending changes.

Crumpton testified unit members have never been given priority consideration for managerial positions.  No grievance has been filed over the lack of such priority consideration.  Unit employees who have unsuc­cessfully applied for vacant managerial positions have not been given written reasons for their non-selection; no grievance has been filed over this omission.  Three managerial positions have been filled from within the PSO bargaining unit; in each instance, there were no outside applicants for the positions.

POSITION OF THE ORGANIZATION

The Agreement is clear and unambiguous.  It says all vacancies shall be sent to all professional staff members.  It makes no limitation as to which vacancies.  It means all vacancies, including management va­can­cies.  The dictionary defines “all” as “the whole of;” “the whole number;” “the greatest possible;” or “every.”

The only way for regular unit employees to get a promotion is into a management position.  The dictionary defines “promote” as “to advance in rank, dignity, position, etc. (opposed to demote).”  In labor relations, “promotion” refers to movement to a higher job classification requiring superior skills or greater effort, with a higher wage scale.  It does not refer to outward or lateral movement; to operation of different machines; or to performance of different work for identical wages.

The parties maintained a staff structure with only one level of unit positions and only one salary schedule from 1973 until 1996.  The language regarding posting and promotion has existed since 1974-75.  Since that time, the only possible promotion has been to management.  The creation of the technical/specialist position in 1996 did not remove the requirement to post all management vacancies.

No evidence exists that a transfer from a field position to a central office position would constitute a promotion.  Neither the facts nor the historical practice supports such an assertion.  Unit employees do not con­si­der this a promotion.  Employees have transferred from field positions to the central office without considering those to be promotions; one witness transferred from the central office to a field position without being demoted.  A lateral transfer is not a promotion.

Denying this grievance would reverse a clear and consistent practice of more than 20 years.  The Association has followed the clear and unambiguous language for every vacant management position since 1975.  The Arbitrator should require the Association to post the position and follow the Agreement.

POSITION OF THE ASSOCIATION

The Organization has the burden of proof.  If the Agreement is clear and unambiguous, the Arbitrator should not give it a meaning other than that expressed.  If the Agreement is ambiguous, bargaining history is relevant.  Past practice may also be examined to construe ambiguous language.

The clear and unambiguous language does not require the Association to post managerial vacancies or send notices of such positions to PSO members.  Even if the Agreement was ambiguous, the bargaining history demonstrates that references to “vacancies” and “promotions” were not intended to apply to manage­ment positions.  The past practice shows that the many contractual requirements relating to transfers, promotions, and reassignments have never been observed in filling management positions.

When the relevant provisions are read together, it is clear that the Association is not required to give notice of managerial vacancies to unit employees.  Article 1 defines “employees” to refer only to unit employ­ees.  Article 13 limits application of contract terms to regular employees “unless specifically noted otherwise.”  In this context, Article 18 clearly refers to positions within the unit.  Indeed, paragraph 3 of that Article talks in terms of vacancies for “employee” positions.  The reference to vacancies means vacancies within the unit.  This reading is supported by other provisions.  Article 7 requires a break in seniority if a unit em­ployee takes a management position.  The Agreement distinguishes between management positions and staff positions.

Under the Organization’s reading, the Association’s obligations would not end with providing notice of vacancies; all the other provisions of Article 18 would apply as well.  Seniority would have to be taken into account; layoff and recall rights would apply; management would have to define the program emphasis and desired skills and experience; and management would have to give priority consideration to internal applicants.  The discretion to fill management positions would be severely eroded, if not eliminated, and the management rights provision would be rendered meaningless.

The original agreement between the Association’s Board of Trustees and the Staff organization, and the subsequent Agreements, did not intend to apply these provisions to management positions.  The original reference to “promotions” recognized there were different levels of positions within the unit.  Those differences were subsequently eliminated, but the reference still has vitality in light of the different promotions that can still occur within the unit.

Past practice shows that no one viewed the reference to promotions and notice of vacancies as applying to management positions.  If the Organization believed management positions were covered, it would have grieved the fact that seniority has not been taken into account, written reasons for not selecting a unit employee have not been provided, and priority consideration has not been given to unit employees.

Management positions are not part of the unit and are not covered by the Agreement.  The Agreement has no application to such positions, and has never been treated as such.  The Agreement should be denied.

OPINION

PRELIMINARY MATTERS

The Organization bears the burden of persuasion in this contract interpretation case.  To meet that burden, it must show, by a preponderance of the evidence, that the Association breached its obligations under the Agreement in the manner alleged in the grievance.

The applicable standards for contract interpretation are well established.  Where the language is clear and unam­biguous, the Arbitrator must give effect to the parties' intent.  That is so even where one party finds the result unexpected or harsh.  Words must be given their ordinary meaning, unless evidence exists that the parties intended a specialized meaning contrary to common usage of the term.  Language may be deemed clear even though the parties dis­agree concerning its meaning. The Arbitrator cannot interpret disputed con­tract provisions in a vacuum, but must read them in con­junction with other contract provisions.  The Arbitrator must avoid an interpretation which tends to nullify or render meaningless any part of the Agreement if another reasonable interpretation gives effect to all provisions. Where two possible interpreta­tions exist, the Arbitrator must prefer the interpretation which avoids harsh, absurd, or nonsensical results.

Extrinsic evidence cannot vary clear contract language.  It can demonstrate a latent ambiguity in the language, or show that the parties later agreed to modify their agreement.  However, the party asserting the latent ambiguity or agreement to modify bears the burden of demonstrating the ambiguity or agreement.  Where the contract language is unclear or ambiguous, the Arbitrator may look to extrinsic evidence of the parties' intent.  Such evidence includes bargaining history, contemporaneous statements regarding the agree­ment reached, practice in implementing the agreement, and post-contract clarifications and modifications.

The quantum of proof necessary to establish a binding past practice varies depending on whether the contract language is clear or ambiguous.  Past prac­tice under the contract is persuasive in interpreting ambig­uous language where the practice is clear, consistent, and known to both parties.  In this setting, past prac­tice serves as an aid in illuminating the parties’ intent.  However, no illumination is required where the contract language is clear.  Instead, where the contract language is clear and unambiguous, a practice can over­ride that clear language only if it demonstrates an equally clear and unambiguous agreement by the parties to modify the written contract--i.e., if it is the functional equivalent of an amendment to the contract.  Put another way, the conduct necessary to demonstrate a binding past practice sufficient to modify clear contract language must be un­e­quivocal, and the terms of the modification must be clear, mutual, intentional, and readily ascertainable through a fixed practice over a reasonable period of time.

A course of conduct which arose out of con­ven­ience or personal preference, or was unilaterally imple­mented without discussion or acquiescence, is insufficient to modify clear contract language.  Where a course of conduct is not controversial, or when it benefits both parties, no agreement to be bound by it rather than by clear contract language can be implied.  This is so even when employees have come to expect it.  The party asserting a later agreement to amend the contract bears the burden of demon­strating that agreement.

THE MERITS

When read as a whole, the Agreement is clear and unambiguous.  Article 13, Section 1(a), articulates and emphasizes ­­common labor relations terminology and practice.  Except as specifically otherwise stated, contract provisions apply only to “regular employees,” which are defined as employees in the bargaining unit.  Management employees are explicitly excluded from the bargaining unit by Article 1.  Specific contract language is thus required to apply any contract provision to managerial (i.e., non-unit) positions.

Article 18 does not incorporate explicit language applying its provisions beyond “regular employees.”  The use of the term “all” therefore must be deemed to refer to all positions governed by the Agreement--i.e., “all temporary, probationary, and permanent professional and technical/spe­cial­ized staff personnel except cadre assistants, clerical, confidential, guards, and management employees as defined in the National Labor Relations Act.” [emphasis added]