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Title: Lincoln County School District and Lincoln County Education Association
Date: August 22, 2000
Arbitrator: David Pesonen
Citation: 2000 NAC 137

The Decision is only a sample the full file can be found at the ERB (Employment Relations Board) office in Salem, OR

In re the arbitration between:


















This matter was heard on July 19, 2000, at the Newport Middle School, Newport, Oregon.  Grievant Bob Gerl and the Lincoln County Education Association (“LCEA” or “Association”) were represented by Steve Kenney, UniServ Consultant with the Oregon Education Association—Oregon Association of Classified Employees.  LCEA is a certified labor organization representing “licensed teaching personnel” employed by Lincoln County School District (“District”).  The District was represented at the hearing by Bruce Zagar, Esq., of the firm of Garrett, Hemann, Robertson, Jennings, Comstock and Trethewy, P.C.  Testimonial evidence was received from Grievant Bob Gerl, LCEA President Richard Wiesner, and District Human Resources Director Ron Williams.  The Association introduced eight documentary exhibits   and the District introduced sixteen, six of which duplicated Grievant's exhibits. 

At the close of the evidence the arbitrator posed several questions to the parties in light of the evidence and requested post-hearing briefs.  The parties’ briefs were timely filed and served on August 11, 2000 and the matter stands submitted for decision. 

The Association’s position throughout the grievance process centered around Mr. Gerl’s classification by the District during the 1999-2000 school year as a “temporary” rather than “probationary” teacher.  LCEA first raised the issue of Mr. Gerl’s classification during the 1999-2000 school year by letter to the District’s Human Resources Director on October 18, 1999.  However, the grievance procedure of the collective bargaining agreement between the District and the Association (“Agreement”) was not formally invoked until January 19, 2000.  Under Article 11 of the Agreement this grievance progressed through three pre-arbitration internal levels until March 28, 2000.  At each of these levels, the Association’s objection to Mr. Gerl’s classification was denied.  On March 31, 2000, LCEA initiated this arbitration under Level Four of the grievance procedure.

The Agreement covered the period from July 1, 1995 to June 30, 2000.  Thus the arbitration hearing occurred after expiration of the Agreement and, presumably, during the period when the District and the Association were in the process of negotiating a new agreement. 


Bob Gerl has been employed for various periods of time with the District since 1992, sometimes as a substitute teacher and other times as a temporary teacher “on contract.”  In August, 1999, Judith Peppel, a permanent contract teacher at Taft High School who had been on an extended leave, requested further unpaid leave for the 1999-2000 school year.  The District denied this request on August 21, 11 days before the beginning of the school year.  Ms. Peppel did not advise the District whether she would show up for the first contract day on September 1st  in light of the District’s denial of her leave request.  Anticipating that she probably would not show up, the District engaged Bob Gerl as a substitute for Ms. Peppel; Mr. Gerl attended the first contract day on September 1st as a substitute teacher.  Ms. Peppel did not show up and accordingly on September 2nd the District notified her that it was treating her failure to communicate or appear on September 1st as a resignation of her position effective August 31st.

The District advertised for the now vacant position and interviewed three applicants, including Bob Gerl.  Mr. Gerl was appointed to fill that position for the 1999-2000 school year.  He was classified as a “temporary” contract teacher and taught for the entire school year.  His status during the interim between September 1st and the date of his contract was retroactively changed from “substitute” to “temporary.”

The Association at first contended that by classifying Mr. Gerl as a temporary teacher the District violated Article 1, the “recognition” clause of the collective bargaining agreement.  The Association also, at first somewhat tentatively, asserted that the District’s “failure to acknowledge Bob as a probationary teacher may have resulted in loss of contract benefits (salary, insurance, leaves of absence, etc.)” and “may have” constituted violations of other, unspecified provisions of the contract.

The Association seems to have confused two different meanings of the term “recognition.”  The January 19, 2000, first level grievance notice asserted that “When the District failed to recognize Bob Gerl as a probationary teacher for the 1999-2000 work year the District violated Article 1, Recognition.”  Article 1, however, only addresses the scope of teaching District positions covered by the Agreement’s exclusive bargaining relationship with District employees.  Article 1 provides:

“Exclusive Representation

“The District hereby recognizes the Association as the exclusive representative, as defined in ORS 243.650(8) of licensed teaching personnel, under contract.

“Specifically excluded from the bargaining unit are all administrative, classified supervisory and confidential personnel, temporary teachers employed for 60 calendar days or less, and substitutes.”

As of January 19th, 2000, Mr. Gerl had been employed by the District as a temporary teacher for more than 60 days.  He was thus covered by the contract as a non-excluded temporary teacher (regardless of whether this was a correct classification of his status). The representation clause has no application to his circumstances as of that date.  The Association’s initial grievance notice seems intended to say that the District violated some part of the contract with respect to “recognition”--in a different sense from the Agreement’s use of that term--of Mr. Gerl’s proper classification under the contract.  Confusion about the precise thrust of the Association’s allegations regarding “recognition” permeated this grievance procedure from the beginning.

The Association next argues that the District violated the Agreement by classifying Mr. Gerl as a temporary teacher rather than as a probationary teacher. 

By the time this grievance had reached Level III of the Agreement’s grievance procedure, the Association refined its statement of the issue respecting other provisions of the Agreement as follows:

Article 13—Layoff and recall

“Mr. Gerl as a non-renewed temporary teacher has no involvement in a lay-off.  As a probationary teacher he would have the rights of seniority and the right to be placed on recall (remember Mr. Gerl has almost as much seniority as a 2nd year probationary teacher).”  [Exh. D-11.]

The Association’s argument that Mr. Gerl could not have been properly classified as “temporary” proceeds by exclusion: that Mr. Gerl’s status during the 1999-2000 school year did not meet the definition of “temporary teacher” in ORS 342.815(10) and he was thus necessarily a “probationary” teacher for that year.  ORS 342.815(10), part of the “Accountability For Schools For the 21st Century Law,” defines a temporary teacher as:

[A] teacher employed to fill a position designated as temporary or experimental or to fill a vacancy which occurs after the opening of school because of unanticipated enrollment or because of the death, disability, retirement, resignation, contract non-extension or dismissal of a contract or probationary teacher.  [Italics added.]


The Association contends that since Mr. Gerl began his teaching duties on the first day of the school year, September 1st, the “vacancy” created by Ms. Peppel’s failure to show up on that date did not occur “after the opening of school.”  As a technical matter, since the District deemed Ms. Peppel’s failure to show up on September 1st as a resignation, with a “date of separation to be August 31st,” [Exh. D-5], the vacancy in that position occurred before “the opening of school.” The Association’s point has some validity, not only because Mr. Gerl began work on September 1st but because the District elected to render the position he filled vacant before the beginning of the school year.  But it is not clear how this result should affect the outcome of this arbitration.

          The District takes the position that the parties never agreed that the Agreement incorporates teacher classification definitions in the “Accountability for Schools…” statute and therefore the Association’s reliance on ORS 342.815(10) to establish that Mr. Gerl could not have been properly classified as “temporary” is misplaced. The Accountability Law does contain specific definitions of “probationary,” “temporary,” “substitute” and “contract” teacher.  The Agreement, without defining its terms, refers in various parts to “teachers,”  “permanent teachers,” “probationary teachers,”  “temporary teachers,” “substitutes,” and “licensed teaching personnel, under contract.”

     In light of the Agreement’s lack of definitions of these terms, applying the statutory definitions would be appropriate, particularly because the statute itself does not contain any provision authorizing the District to depart from its substantive requirements.  Furthermore, the Agreement already incorporates part of the statutory scheme in the Layoff and Recall article.[1]  Additionally, in November 1999, the District Superintendent, in a separate grievance involving contested classification of a different teacher as a “substitute” rather than “temporary,” specifically relied upon the definition of “temporary teacher” in the Accountability Law to support the District’s position in a Level Two Superintendent Decision.  [Exh. A-8]

The District’s position in the Gerl grievance that the statute is no help in defining the term “temporary teacher” under the 1995-2000 Agreement is inconsistent with both the terms of the Agreement and the District’s prior position on this issue.  But it is again unclear how this inconsistency should affect the outcome of this arbitration.

     The District is required by statute to notify contract and probationary teachers of its intentions regarding their contract status for the coming school year by March 15th of each school year.  ORS 342.895.  In March 2000 the District notified Mr. Gerl that it was “non-renewing” his contract as a temporary teacher. 

     The significance of the issue over whether the District should have classified Mr. Gerl as probationary rather than temporary during the 1999-2000 school year has to do with certain ancillary rights he would enjoy under the Agreement and statutes.   If he were classified as probationary and the District declined to offer him a teaching contract by March 15, 2000 for the next school year, he would be entitled to a position on the layoff list under the Layoff and Recall provisions in Article 13 of the Agreement.  Instead, however, the District’s “non-renewal” of Mr. Gerl in March 2000 left him with neither any assurance of a teaching position for the 2000-2001 school year nor any preference for re-hire under the Layoff and Recall provisions.  And failure by the District to renew a probationary teacher’s contract gives rise to certain procedural protections for the probationary teacher that are not afforded to a temporary teacher.  ORS 342.835. 

     However, since Mr. Gerl worked more than 135 days in the 1999-2000 school year, regardless of how he was classified (so long as he was not kept in a “substitute” classification) he received credit toward contract status.  Furthermore, on direct examination of Mr. Gerl by Mr. Kenney it was disclosed that the District had offered Mr. Gerl a teaching contract as a probationary teacher for the 2000-2001 school year and he had accepted.  This had happened only a day or so before the arbitration hearing.  Regardless of whether Mr. Gerl should have been classified “temporary” or “probationary” during the 1999-2000 school year, his new contract in July 2000 for the 2000-2001 school year rectified any injury he may have suffered from the alleged mis-classification during the 1999-2000 school year.

     In sum, it appears that the Association’s contention that the District should have classified Mr. Gerl as a probationary teacher during the 1999-2000 school year has some merit.  However, I decline to make such a finding of fact in the particular circumstances of this case for four distinct reasons.

     First: Since the parties are presumably in the midst of negotiations for a new contract, any finding of fact on this issue would constitute de facto "interest arbitration.”  This arbitrator was selected to resolve a grievance under Level Four of Article 11 of the Agreement, not to resolve an interest impasse. It would not be within the scope of the arbitration provision in the Agreement for this arbitrator to issue a decision the sole effect of which would be to influence on-going contract negotiations for a new Agreement.

     Second:  Were I to make a finding of fact that Mr. Gerl was a probationary, not a temporary, teacher during the 1999-2000 school year and that the District improperly “nonrenewed” him in March 2000 rather than placing him in layoff status subject to recall rights, Article 9 of the Agreement would be implicated.[2]

Third: since Mr. Gerl has now been engaged as a probationary teacher for the coming school year and has been credited with probationary status for the 1999-2000 school year, he has suffered no compensible injury.  For all practical purposes this grievance, qua grievance, is moot.

     Fourth:  the Agreement circumscribes the arbitrator’s power and prohibits the arbitrator from adding to or modifying any terms of the Agreement.  A finding in this arbitration that the teacher classification definitions in ORS 342.815 are incorporated in the Agreement could arguable exceed the arbitrator’s powers under Article 11.C.5.f.  Were this grievance to raise issues of a genuine injury correctable only by a binding arbitration award, equitable considerations nevertheless might favor such a ruling; but that is not this case.  


1. In classifying Bob Gerl as a temporary teacher for the 1999-2000 school year the District did not violate the Recognition Clause of the Agreement.

2. Under the particular circumstances of this grievance the Arbitrator is precluded from finding that the District violated any other provision of the Agreement.


Dated this 22nd day of August, 2000





David E. Pesonen, Arbitrator




[1] Article 13 of the Agreement provides in part: “When layoffs are determined necessary, the Board shall select the process (either ‘A’ or ‘B’ below)  to be followed, subject to the requirements of ORS 342.934.”  The Accountability for Schools for the 21st Century Law spans ORS 342.805 to 342.937. ORS 342.805.  (Italics added.)


[2] Article 9 of the Agreement provides in part:

       “Employee Discipline

       “This Article shall not apply to the dismissal or nonrenewal of a probationary teacher… Dismissals and nonrenewals of teachers shall be covered solely by the Fair Dismissal Law and are not subject to arbitration.” [Italics added.]

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