Education Association Board of Directors and Oregon Education Association
Professional Staff Organization
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.
Mr. Ken Steiger, Oregon Education Association, 735 SW Ninth, Redmond, OR
On behalf of the Association:
Jeffrey J. Druckman, Esquire, 222 SW Columbia Street, Suite 1200,
Portland, OR 97201
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
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
ARTICLE 7 - SENIORITY
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.
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
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.
This category of employment shall be limited to five positions and
these positions shall be within the PSO bargaining unit.
Employees within this category of employment are subject to all terms
of this Agreement, except as specifically noted otherwise.
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.
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.
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.
An employee’s application for transfer or promotion shall be
acknowledged in writing by the Executive Secretary.
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.
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.
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
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.
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.
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.
When the vacancy is filled, the Executive Secretary shall notify all
employees of the action taken.
Upon request, an unsuccessful applicant shall be given in writing the
reasons for the selection made.
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.
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.
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
HISTORY AND PAST PRACTICE
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:
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
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:
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.
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.
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
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
parties stipulated that, other than confidential positions and the position in
dispute in this case,
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
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
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.”
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.
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.
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.
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
POSITION OF THE ASSOCIATION
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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]
bargaining history does not establish a latent ambiguity in the language.
The language pre-dates the first Agreement, and dates from a time when at
least two ranks of unit employees existed.
Thus, at the time the language was drafted, promotions within the unit
were a possibility. The fact that
the parties carried this language over unchanged after flattening the staff
structure does not suggest they intended to expand its original meaning.
Reasonable minds may differ regarding whether the term “promotion”
could include a move from a field position to a central office position, or a
move from a half-time or temporary position into a full-time or permanent
position. In any event, paragraph 1
does not refer simply to giving notice of vacancies which constitute a
promotion; it refers to “all vacancies.”
Even after the change in staff structure, lateral transfers remained
available. The posting provision of
paragraph 1 thus retained meaning in this context.
past practice is equivocal, at best. The
provisions of paragraphs 4 through 13 were not observed in filling managerial
vacancies in the past. This
practice is consistent with the conclusion that Article 18 did not apply to
those vacancies. On the other hand,
employees did receive notice of those vacancies.
It may well be that they welcomed that notice, if for no other reasons
than those articulated by Crumpton. However,
the fact that notice was appreciated--or even expected--does not, in and of
itself, mean that a requirement or agreement existed to provide it.
Providing notice benefitted both parties.
This unilateral practice thus does not establish a binding modification
of the clear contract language.
all the above reasons, it is concluded that Article 18 did not require the
Association to give unit employees notice of managerial vacancies.
Accordingly, the grievance is denied.
The Oregon Education Association (the OEA) did not 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.
LUELLA E. NELSON - Arbitrator
Another recent managerial vacancy also was not posted; the question
of whether that vacancy should have been posted is not before the