Title: Lincoln County School District and Lincoln County
The Decision is only a sample the full file can be found at the ERB (Employment Relations Board) office in Salem, OR
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
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.
AND REASONING OF DECISION
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
“The District hereby recognizes the Association as the exclusive
representative, as defined in ORS 243.650(8) of licensed teaching personnel,
“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.”
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
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.
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,” “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.
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.
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
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
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
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
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.
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.
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.
CONCLUSION ON THE ISSUES SUBMITTED
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.
Under the particular circumstances of this grievance the Arbitrator is precluded
from finding that the District violated any other provision of the Agreement.
this 22nd day of August, 2000
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.
Article 9 of the Agreement provides in part:
“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.]