Title: Salem-Keizer School District 24J and Oregon
Association of Classified Employees
This Arbitration arises pursuant to Agreement between OREGON ASSOCIATION OF
CLASSIFIED EMPLOYEES ("Association"), and SALEM-KEIZER SCHOOL DISTRICT
24J, ("District"), under which LUELLA E. NELSON was selected to
serve as Arbitrator and under which her Award shall be final and binding upon
Hearing was held on January 29, 1991, in Salem, Oregon. The parties were
afforded full opportunity for the examination and cross-examination of
witnesses, the introduction of relevant exhibits, and for argument. Both parties filed post-hearing briefs on or about February
On behalf of the Association:
Mr. Donald K. Robertson, P. O. Box 17038, Salem, Oregon 97305-7038.
On behalf of the District:
Mark B. Comstock, Esq., Garrett, Seideman, Hemann & Robertson, P. O.
Box 749, Salem, Oregon 97308-0749.
The parties were unable to agree on a statement of the issue and
stipulated that the Arbitrator would formulate the issue upon review of the
record and the parties' respective statements of the issue.
The Association would state the issue as follows:
Did the District violate Article IX, and Appendix C of the existing
Collective Bargaining Agreement by not offering a summer school bus route to
Margaret Redinger on June 25, 1990, thereby denying her appropriate pay as per
Article IX and Appendix C; if so, what is the remedy?
District would state the issue as follows:
Did the District violate Article IX, and Appendix C of the existing
Collective Bargaining Agreement by not offering a summer school bus route to
Margaret Redinger on June 25, 1990; if so, what is the remedy?
District also interposes two procedural challenges to the grievance.
Initially, the District asserts that Article I, §§1.01 and 1.02, of the
Agreement exclude consideration of this matter because the work in question was
"extra work" and employees performing such work are "casual
employees" excluded from the Agreement.
Additionally, the District asserts that Article XII, §3.01, precludes
arbitration of this grievance because it involves the selection of the person to
fill a "vacancy."
In light of the parties' respective statements of the issue and the
evidence presented, the Arbitrator frames the issues as follows:
the grievance arbitrable under the existing Collective Bargaining Agreement?
the District violate Article IX and Appendix C of the existing Collective
Bargaining Agreement by not offering a summer school bus route to Margaret
Redinger on June 25, 1990; if so, what is the remedy?
RELEVANT SECTIONS OF AGREEMENT
ASSOCIATION REPRESENTATION AND RIGHTS
1.01 The District recognizes the
Association as the sole and exclusive bargaining agent for all classified
employees of the Salem School District 24J, excluding:
1.01.02 Casual employees;
1.02 The parties hereby agree that
casual employees for purposes of Section 1.01.02 shall mean substitutes,
District students, as well as persons employed by the District on an irregular
basis who work 600 hours or less during a fiscal year.
Casual employees shall not be included in the bargaining unit.
1.03 For the purpose of this
Agreement, substitutes are defined as those irregular employees called in to
replace regular employees on excused absences (i.e., sick leave, vacation, etc.)
1.04 Limited-term employees are
employees, exclusive of substitutes and District students, who work more than
600 hours during a fiscal year. An
employee meeting this requirement shall be included in the bargaining unit as of
the beginning of the next succeeding month and the union shall be so notified.
1.05 All rights of limited-term
employees under this agreement cease upon the expiration dates of the positions.
1.06 For the purpose of this
Agreement employee means an employee who has completed his/her initial
probationary period as a new employee.
ARTICLE IX RATES
1.01 The salary schedule for the
fiscal year 1987-88 is contained in Appendix A.
The salary schedule for fiscal year 1988-89 will be the 1987-88 schedule
increased by 2%.
The salary schedule for fiscal year 1989-90 will be the 1988-89 schedule
increased by 2%.
The salary schedule for the fiscal year 1990-91 will be the 1989-90
schedule increased by a minimum of 25 and a maximum of 4%.
The percentage increase for 1990-91 will be determined by adding the
monthly CPI U.S. Urban percentages from January through December 1989 and
dividing by 12.
SENIORITY, VACANCIES, TRANSFERS, ETC.
2. Job Openings
The District will post job opening notices in District buildings on
designated bulletin boards and will send said notices to the Association.
Such a job opening notice must be posted for seven calendar days.
During the summer said notices will be sent to the home addresses of
employees requesting, in writing, prior to May 1 of each year that such notices
be so sent. A job opening notice
will have a closing date of not less than seven calendar days from the date of
3.01 When a vacancy occurs or a new
position is created within the District in the unit, an employee who is part of
that unit may apply for the open position.
Upon regular application, qualified present employees shall be
interviewed first. If two or more
qualified present employee applicants are otherwise equally qualified in the
District's judgment, first consideration shall be given on the basis of
applicable job classification seniority. The
District retains the sole right to determine the person selected to fill a
vacancy and its decision shall not be subject to arbitration.
Definitions and Provisions:
1.01 GRIEVANCE - A complaint by a
classified employee or group of employees that there has been to him (or them) a
violation of any provision(s) of this agreement.
... EMPLOYEE - A classified
employee in the bargaining unit. ...
Levels of Grievance Procedure:
2.03 STEP 3 - ... b)... The power of
the arbitrator shall be limited to interpreting this Agreement and determining
if the disputed article or portion thereof has been violated.
The arbitrator shall have no authority to alter, modify, vacate, or amend
any terms of this Agreement or to substitute his/her judgment on a matter or
condition for that of the District where the District has not negotiated and limited
its authority on the matter or condition. ... f) In the event the arbitrator
finds that he has no authority or power to rule in the case, the matter shall be
referred back to the parties without decision or recommendation on the merits
of the case.
RELEVANT PROVISIONS OF OREGON ADMINISTRATIVE RULES (OAR)
(3) License Renewal.
The Oregon Department of Education shall renew a school bus driver's
license for the driver who:
(c) Has passed an
approved physical examination within six months prior to application;
(e) Has filed with the
Oregon Department of Education an application provided by the Department, signed
by an official designated by the local employer certifying that the driver:
(A) Has completed the
Core or Core Refresher Course for school bus drivers within the last four years;
(B) Possesses a valid
first aid card ...;
(C) Has completed Oregon
Department of Education approved classroom training averaging at least eight
hours annually while licensed as a school bus driver during the preceding
(f) Has been certified
as able to satisfactorily perform the duties of a school bus driver by the
official designated by the local employer on forms provided by the Oregon
Department of Education;
(a) An applicant for a
... license renewal must have passed an approved physical examination
administered within six months prior to date of application by a physician
licensed under the provisions of ORS Chapter 677.
(d) An applicant will be
refused a school bus driver's license unless such person possesses the minimum
qualifications described below:
(F) If the driver has
severe hypertension (grade 3 retinopathy), the driver is not qualified to
operate a school bus.
(e) In cases of serious
illness, injury, or change in physical or mental condition which may impair
ability to fulfill the duties and responsibilities of a school bus driver ...
re-examination and medical approval are required prior to resumption of driving.
Grievant has worked as a District bus driver for 22 years, and is second
in seniority among regular bus drivers. She
works over 600 hours during the school year, from approximately September 1 to
approximately June 10. She
challenges the assignment of summer bus routes beginning on June 25, 1990.
The District takes the position that she was properly excluded from the
routes because she was ineligible to drive due to high blood pressure.
District's Route Assignment Practice
Drivers bid on regular "bar chart" routes for each school year by seniority. Assistant Manager of Transportation Operations Eva Bayliss testified that the assignment of summer routes among eligible drivers is left to the dispatchers' discretion. Dispatcher Bev Comer testified that in her twelve years as a dispatcher the uniform practice has been to assign summer trips based on seniority. Although Comer has never been directed to use seniority to fill routes, the District provides seniority lists to the dispatchers, marked to show which drivers are eligible to drive, and Comer has justified having dispatched a particular bus driver by explaining to Bayliss that the driver was next in line of seniority.
Disputed Summer School Routes
The District acquired last-minute funding for a summer school program
requiring four bus drivers from June 25 until August 3, an unusually lengthy
summer route assignment. At Bayliss'
direction, Grievant was not marked as eligible on the seniority list provided to
Comer. Comer assigned the routes by
seniority to four drivers, two of whom were replaced by less senior drivers on
July 11. Grievant was not contacted
regarding the routes.
Requirements For Bus Drivers
The District's drivers are required to have a current school bus driver's
license. They must undergo a
comprehensive physical examination every two years (yearly after age 55), and
their licenses expire on July 1 of the year in which a physical examination is
required. The examining health care
provider completes both a summary "Medical Report" section on the
"Application for School Bus Driver's Certificate or Permit" (the
"Application") and a multi-page form calling for specific information
regarding the results of various tests. The
physician's instructions that accompany the medical examination forms
incorporate the standards in OAR 581-53-006(7)(d) and further provide that:
... Conditions may be recorded which do not, because of their character
or degree, indicate that a certificate of physical fitness should be denied.
However, the presence of these conditions should be discussed with the
applicant. Applicants should be
encouraged to take necessary steps to insure correction of conditions which, if
neglected, might affect the ability to drive and perform duties safely.
Careful inquiry regarding past illness and the character and date of such
illness may help explain the cause(s) for the condition.
Lack of knowledge concerning the cause of certain conditions may result
in a rejected application. Such
data also may indicate the need for certain laboratory tests.
instructions for blood pressure note that "If the blood pressure is
consistently above 160/90mm. Hg., medical supervision is indicated."
The District uses BBV Medical Services ("BBV") for driver
physicals. BBV has no doctors on
staff and is not a treating facility, but uses outside doctors to perform the
examination. BBV's practice is to
have the examining physician sign the Application on the day of the examination.
BBV then holds the Application pending completion of all lab tests.
According to BBV Office Manager Sherry Swan, a driver's blood pressure is
of concern only if the second number is higher than the limit of 90 set by the
Bayliss testified that she declares licensed bus drivers ineligible to
drive when she learns that a driver no longer meets the requirements for a
license--e.g., when a driver's first aid card expires, or the driver suffers a
disabling injury. She would not
notify the State of the disqualification unless the driver attempted to
return to work while ineligible or developed a condition such as diabetes. On each Application, she certifies that the driver completed
the necessary training, has the knowledge and ability to perform the duties of a
school bus driver, and has a satisfactory driving and criminal record.
Eligibility to Drive
On June 13, Grievant underwent a physical at BBV.
Swan testified that the examining physician was aware of Grievant's blood
pressure reading on the day of her physical.
Grievant testified that she mentioned to the examining physician that
anti-inflammatory drugs prescribed by her personal physician caused her to have
high blood pressure, and the physician responded that was not unusual and told
her she had no medical problems.
On or about June 20, Bayliss met with BBV representatives to receive reports
on conditions found during several drivers' physicals. In that meeting, she learned that Grievant's blood pressure
reading was 145/100, and that her readings for the past two physicals were
148/90 in 1988 and 152/92 in 1986.
Bayliss called Grievant on June 22, told her of the high blood pressure
reading, and instructed her to secure a note from her personal physician indicating
she was under his care for her blood pressure.
Bayliss did not inform Grievant that she deemed her ineligible to drive
pending receipt of the doctor's note. Grievant
testified that she asked whether this was an emergency for which she should
schedule an immediate appointment, and that Bayliss said it was not.
Grievant consulted her physician on June 29 and secured a note from him,
which she turned in to Bayliss on the following business day, July 2.
Bayliss passed the note on to BBV, which in turn released the Application
to the District. Bayliss signed the
Application on July 16 and passed it on to the Department of Education.
Bayliss testified that, in her view, Grievant was ineligible to drive
prior to July 2, when she provided her doctor's note.
POSITION OF THE ASSOCIATION
Under Article I, Grievant is not a casual employee, but is a permanent employee
subject to all the terms of this Agreement.
The Agreement uses as its standard the number of hours worked during a
fiscal year, not a school year. Grievant
was a 22-year employee with permanent status, and therefore a member of the
bargaining unit. She worked on a
regular basis well in excess of 600 hours per year, entitling her to all the
benefits of a permanent employee, and was not a student or a substitute.
She therefore cannot be a casual employee.
Also, activity trips such as those in question here are not casual labor. Such trips occur on a regular basis during the fiscal year,
are considered part of the job, and are expected to be filled by regular
drivers. In 1983, the ERB adopted
the parties' stipulation to exclude casual employees from the unit because
they lacked a community of interest with classified employees.
Grievant clearly shares a community of interest.
The Vacancy Section, Article VII, §3.01, does not apply to these routes.
It applies to situations in which an employee applies to fill a
newly-created position (which will eventually become a permanent assignment) or
a vacancy in another site or classification.
In the case of bus drivers, the only vacancies that are posted are bar
chart routes of five hours or more per day.
An activity trip or summer school route is not a vacancy; it is merely a
route that does not fall within a typical bar chart assignment.
Such trips are always available and expected during the fiscal year.
They are assigned by dispatchers rather than put out to bid or posted
with qualifications and written minimum job responsibilities, and there are no
interviews. It is impossible to
have two or more "equally qualified" candidates because summer routes
are assigned by seniority. In
any event, the final sentence of Article VII, §3.01, cannot be read in
isolation from the remainder of the Vacancy Section. That sentence merely protects the District's ability to make
a selection decision if two or more equally qualified employees apply for
vacancy. That situation did not
occur in this case.
The economic terms of this Agreement are controlled by policy and past
practice. It is a well
established practice that summer activity routes are assigned by seniority. Bayliss was aware of this practice and left it up to the
dispatchers. Under this practice,
if Grievant had been marked eligible on the seniority list, she would have
received a route.
Grievant was eligible for the summer school routes during the period of
assignment as well as the actual period of driving.
Bayliss abused her authority by declaring her ineligible to drive, then
violated her due process rights by not informing her that she had declared her
ineligible. The BBV physician considered
her qualified to drive. Although
her blood pressure reading of 145/100 was over 160/90, her blood pressure was
not consistently over 160/90. There
was inconsistency in her blood pressure readings for the past four years, yet
she was not re-tested to see if she would have a similar reading.
Because her medication influenced her blood pressure, her doctor
reduced her prescription.
Grievant was fully licensed and qualified because the State of Oregon did
not determine that she could not have her license renewed.
The licensing provisions do not say a driver loses a license or becomes
ineligible to drive because of high blood pressure. The blood pressure phrase is directed toward license renewal,
not revocation of an existing license. The
instructions merely call for encouraging the applicant to take the steps to
correct troublesome conditions. That
procedure should have been followed rather than declaring her ineligible to
drive. Under those instructions, it
was unnecessary to bring in a document from her own physician to renew her
Bayliss did not have authority to declare Grievant ineligible to drive
even if the facts supported such a conclusion.
Only the examining physician could certify anything about a physical
examination or blood test. The
District was only required to certify that she had completed the required
training, possessed a valid first aid card, and could satisfactorily perform her
duties. The decision whether to
issue or revoke a license is made by the State, not Bayliss.
The District should continue the practice of assigning summer school
trips and routes as described by Comer. Grievant
should be compensated for a summer school bus route at $9.66 per hour for 55
POSITION OF DISTRICT
The issue raised in this case is specifically excluded from the
provisions of the Agreement by Article I, §§1.01 and 1.02, which exclude
casual employees from the bargaining unit.
Employees performing extra work before or after their regular work year
are casual employees employed for less than 600 hours, and therefore not covered
by the Agreement.
The position to be filled determines whether it is a casual, limited
term, or permanent position; the number of hours an employee serves in that or
some other function or assignment with the District has no bearing on that
non-recurring summer bus routes, extra trips, and other jobs outside the regular
work year are "non regular assignment" jobs, even if the employee is a
permanent employee and member of the bargaining unit for the regular
assignment. For a 10-month employee such as Grievant, employment after
the regular work year does not have the same status as the regular assignment.
Similarly, a teacher who works on the painting crew during the summer
fills a casual position even though the teacher has permanent status in another
Additionally, the parties have specifically agreed in Article XII,
paragraph 3, that the filling of vacancies is not subject to arbitration. This grievance concerns the filling of a summer casual job
position with another employee, and is thus specifically excluded from
arbitration. Article XIX, §2.03,
clearly limits the Arbitrator's authority to matters within the ambit of the
Grievant was not qualified to be licensed from June 20 through July 1990.
She could not be relicensed or drive after the results of her physical
were disclosed to the District, showing a consistently high blood pressure
reading which required medical supervision.
Further, Bayliss did not have possession of the completed and signed-off
Application until after July 2, when Grievant submitted her physician's note,
and therefore could not submit the Application for Grievant's re-licensing.
Moreover, the summer school job required a driver to be qualified and
available June 25 through July 11. Grievant
did not have a license in her possession until approximately July 19, and
therefore was not qualified to drive.
Under OAR 581-53-006(7), Bayliss was required to disqualify Grievant from driving once the disqualifying medical condition became known to her. Further, until BBV returned the signed Application to the District for submission to the Department of Education, Grievant could not be re-licensed, and BBV would not release the form until it received notification that Grievant was under a doctor's care for her blood pressure.
It is irrelevant that only the State can revoke a school bus driver's
license. OAR 581-53-006(7)(e)
requires that a driver maintain the ability required for licensing all through
the licensing period. Bayliss was
aware of a medical condition which would bar re-licensing, and therefore was
required to disqualify Grievant until the condition was under treatment.
The Agreement is clear and unambiguous.
Article I does not speak in terms of "casual jobs" or
"casual positions," nor does it distinguish between work performed
before, during or after the regular work year.
Instead, it speaks in terms of the status of the individual employee--i.e.,
"casual employees" work fewer than 600 hours in a fiscal year,
including work while a substitute or District student.
An employee who is neither a substitute nor a District student, and who
works more than 600 hours in a fiscal year, by definition, is not a casual
employee. Further, assuming arguendo
that a classified employee could be considered a casual employee and excluded
from the bargaining unit while performing duties outside his/her normal work
(e.g., a teacher working on a paint crew during the summer), this case does not
present that scenario. The summer
bus routes at issue were the same type of work ordinarily performed by bus
drivers, and were assigned to existing bus drivers.
This work is thus more akin to voluntary overtime than to casual work. Given the clear contract language and the nature of the work
involved, it is concluded that Article I, §§1.01 and 1.02, do not preclude
arbitration of this grievance.
The Agreement is also clear and unambiguous regarding the managerial decisions
excluded from the grievance procedure by the final sentence of Article XII, §3.01.
The term "vacancy" has a well-understood meaning in the
employment context, and refers to an open bargaining unit position.
From the context in which the Agreement uses the term
"vacancy," it is clear the parties did not intend a broader meaning
encompassing the day-to-day assignment of extra bus routes among existing
drivers. Thus, job openings covered
by Article XII are posted for bid for at least seven days, with copies to the
Association and, during the summer, to employees' homes.
Such a ponderous procedure, on its face, is inapplicable to short-term
summer bus routes, and in fact has not been so applied in this workplace.
Instead, dispatchers assign such routes to existing bus drivers in the
same manner as any other extra route. For
all of the above reasons, it is concluded that the final sentence of Article
XII, §3.01, is simply inapplicable to this dispute, and thus does not bar
arbitration of the grievance.
The Agreement is silent regarding the basis on which bus routes are to be
assigned. It is clear, however,
that the summer bus routes at issue were assigned by seniority on this occasion.
If Grievant had been marked as eligible on the seniority list provided to
Comer, she unquestionably would have been dispatched to one of the routes and
would have earned pay at the rates specified in Article IX and Appendix C of the
Without question, the District was obligated to use only qualified
licensed bus drivers for its school bus routes.
The ultimate responsibility for maintaining proper licensure lies with
each individual bus driver. However,
the inquiry does not end when one determines whether or not a particular
employee held a valid license at the time bus routes were dispatched.
The District plays a pivotal role in license renewal. It not only certifies that the driver meets certain
requirements, but also receives the results of the mandatory physical, acts as
intermediary in resolving concerns over medical conditions identified in the
physical, and processes and forwards the Application to the Department of
Education. In so doing, the
District must act reasonably. At a
minimum, when advised of physical conditions that may delay relicensing, the
District must notify the employee of the condition and the steps that must be
taken to avoid a delay. Similarly,
assuming that the District can or must deem licensed employees ineligible to
drive upon receipt of notice of a disqualifying condition,
the employee is entitled to notification of the disqualification and the steps
required to regain eligibility.
The District did not act reasonably with regard to Grievant's
eligibility. It was not until June
22, approximately two days after Bayliss' meeting with BBV, that Grievant first
learned of the District's concern over her blood pressure.
Even then, she was not told that the condition was deemed a disqualifying
one, nor that a delay in getting a doctor's note would make her ineligible to
drive and hold up issuance of her renewal license.
On the contrary, her testimony is unrebutted that Bayliss told her there
was no hurry to submit a doctor's note. Having
been lulled into believing that there was no reason to hurry to her doctor, she
missed the opportunity to resolve Bayliss' concern in time to be dispatched for
the summer routes. Had her
Application been submitted shortly after her physical, as it would ordinarily
would have been, no reason exists to doubt that her renewal license would have
been issued promptly and that she therefore would have been qualified at all
times to drive the routes in question.
By failing to afford Grievant timely notice regarding her driving
eligibility, the District created the hiatus in licensure, and thereby deprived
her of the wages she would have received from a dispatch to a summer bus route.
Accordingly, it shall make her whole, measured by the wages she would
have earned. Consistent with the
parties' pre-hearing stipulation, the matter is remanded for determination of
the precise sums due Grievant. The
Arbitrator retains jurisdiction over the remedy and disputes arising therefrom.
grievance is arbitrable under the existing Collective Bargaining Agreement.
District violated Article IX and Appendix C of the existing Collective
Bargaining Agreement by not offering a summer school bus route to Margaret
Redinger on June 25, 1990.
a remedy, the District shall make Grievant whole for the wages lost as a result
of the failure to offer her a summer school bus route.
Consistent with the parties' pre-hearing stipulation, the matter is
remanded to the parties for determination of the sums due to Grievant.
The Arbitrator retains jurisdiction over the remedy portion of this Award
and any disputes arising therefrom.
DATED: December 5, 2002
LUELLA E. NELSON - Arbitrator
The parties have not stipulated to any authority on the Arbitrator's
part to interpret or apply these regulations, and said regulations have been
considered only for background purposes in analyzing the contractual issue
Grievant's license could not be renewed until the completed
Application was submitted to the State.
Bayliss attributed the delay in signing the Application to her own
vacation from July 9 through 13.
The Arbitrator is not a medical professional, and therefore cannot
judge whether Grievant's blood pressure readings constituted "severe
hypertension (grade 3 retinopathy)," the only disqualifying
blood-pressure-related condition in the applicable regulations.
For purposes of this discussion, the Arbitrator will assume that
Grievant's blood pressure was a potentially-disqualifying condition.