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Title: Greenville City School Board and Greenville Education Association
Date: March 11, 2002
Arbitrator: 
N. Eugene Brundige
Citation: 2002 NAC 135

 

OPINION AND AWARD

In the matter of Voluntary Arbitration

Between

 

The Greenville Education Association/OEA/NEA

And

The Greenville City School Board

Regarding

American Arbitration Association Case Number 53-390-00153-06
OEA Case Number 05921P

 

APPEARANCES:
FOR THE ASSOCIATION:   
Helen Trapp,  Uniserv Representative
Wilbert Raby, GEA President  
Deborah Hathaway, Negotiations Chair
Steve Roach, Bargaining Team Member
Diana Bang,
Bargaining Team Member
FOR THE EMPLOYER:
Richard Ross, Attorney,
Greg Taylor, Interim Supt.
Carla, Treasurer

An arbitration hearing was conducted May 31, 2006 in Memorial Hall, Administrative Offices of the Greenville City School District.  The hearing was conducted pursuant to the rules and procedures of the American Arbitration Association.  The instant case involves a grievance filed by a number of elementary school teachers of the Greenville District.

The parties agreed that the issue presented to the Arbitrator could be phrased as, Did the Board of Education violate Article 5, Section 3 of the collective bargaining agreement when it denied mileage reimbursement to teachers attending meetings in the district?  If so, what shall the remedy be?

The Collective Bargaining Agreement was offered as joint exhibit 1 and the grievance trail as joint exhibit 2.

No other procedural objections were raised, and the parties agreed that the issue is properly before the arbitrator for determination.

Each party was given opportunity to present evidence, examine and cross-examine witnesses and offer arguments verbally and in writing.  Each party did so competently and professionally.   All submissions were reviewed and considered by the arbitrator in reaching the decision recorded herein.

Relevant  provisions of the Collective Bargaining Agreement

Article V.

SECTION 3 - MILEAGE REIMBURSEMENT

Employees required to use their own automobiles for transportation in order to perform their duties will be reimbursed as follows when they must travel from one building to another within the same day:

The mileage reimbursement will be established as the IRS rate in effect July 1 of each fiscal year; and a mileage chart will pre-determine the mileage allowance for specific destinations.

BACKGROUND:

            Greenville City Schools are located in rural Darke County, Ohio.  It serves approximately 3,300 students and has approximately 425 staff members.

            The District is made up of one high school, one junior high school, one middle school and four elementary schools.

            The Instructional Staff is represented by The Greenville Education Association, an affiliate of the Ohio Education Association and the National Education Association.

            The District covers a large geographic area.  Some teachers are required to travel regularly as a part of duties.  These include music teachers, nurses and others with assignments in more than one building.

            When these teachers are required to drive their own cars from one building to another during a single day, they can request reimbursement for mileage consistent with Article 5, Section 3 of the collective bargaining agreement.  They are routinely paid upon submission of their request for reimbursement.

            On October 26, 2005 an in-service meeting was conducted for elementary school teachers.  Attendance was required. The venue for this meeting was Woodland Elementary.

            Eight elementary teachers submitted mileage reimbursement request forms. The distance claimed varied from 2 to 10 miles.  The Superintendent denied the requests.

            Members of the Association filed a grievance on behalf of the “elementary teaching staff assigned at East, Gettysburg, and South.”

            The statement of the complaint listed on the grievance was, “Request for payment of mileage as outlined in the Master Agreement was denied to the East, Gettysburg, and South Elementary teachers for traveling to another school to fulfill the duties assigned to them on October 26, 2005.  This is a direct violation of the Master Agreement, specifically but not limited to: Article V, sec. 3.”

            The remedy sought was, “Pay mileage to all staff members who were required to travel to in-service at Woodland Heights Elementary on October 26, 2005.  Also, honor all future request for mileage per Master Agreement language”

POSITION OF THE UNION

            The Union believes the language in Article V is clear and unambiguous.  The same or very similar language has been in collective bargaining agreements since at least 1988

They note that there is no language that limits payment to teachers who regularly and routinely travel.

            The Union argues that all parties admit there has never been a similar request before, therefore no past practice can exist.

            When payment was first requested Principal Susan Riegle agreed with the view of the Union.  After internal discussions she reversed herself.

            GEA notes that the Board of Education has attempted to change the language in question in contract negotiations but no agreement has been reached.   The Union asserts that the Board is trying to gain through arbitration changes they have not been able to acquire through bargaining.

            The GEA introduced evidence that one elementary teacher (Tammy Ripple) submitted a mileage request for mileage reimbursement in 2005 and was paid even though she was not a “traveling teacher.”

POSITION OF THE BOARD OF EDUCATION

            The Board denies that is has violated the Master Agreement because it believes the language in question does not apply to the circumstances presented by the Association.

            The District has always reimbursed music teaches and the school nurse who travel between buildings to perform their duties. 

            For the first time eight elementary teachers requested reimbursement to attend an in-service meeting at another building.  The Board notes more than 50 other elementary teachers did not request reimbursement.  They conclude from this, that those teachers were aware such reimbursement was not authorized.

            The Position of the Board is that since the language has been the same in all collective bargaining agreements since the mid-1980’s and no teacher has ever been similarly reimbursed, that the intent of the language is very clear.

            The Board argues in its post hearing brief that, “the charge of the Arbitrator is to determine what the parties intended when they agreed to place the language in the Master Agreement.” (Board’s Post Hearing Brief, page 4)

            In support of the Board position that the Board’s interpretation constitutes a binding and long standing past practice, it cites an arbitration Award (82 LA 942) in which Arbitrator Lawrence Holman writes, “It is generally accepted that actual practice, if continued without protest over a substantial period of time is compelling evidence evidence of intent…Having expressed no objections to the practice the union has in effect accepted the interpretation(of the employer).”

            The belief of the Board is that the intent is clear that the language is limited to those teachers who travel between buildings on a daily basis as a part of their job.

DISCUSSION

            It is easy to observe why the parties disagree on the interpretation of the language in question.

            The Board of Education has had the same language in their agreement for over twenty years.  No one in their memory has ever requested reimbursement for mileage to attend in-service meetings that require occasional travel between buildings.

            Interim Superintendent Taylor summed up the feelings of the administration when he wrote: “Finally, it would appear that the issuance of checks in amounts ranging from $.81 to $4.05 with the majority of checks being written for $1.17 would be more costly to process than provide significant benefit to bargaining unit members.”

            Bargaining unit members, after examining the language of Article V, section 3, decided to request reimbursement.  There is no evidence in the record to indicate their motivation in doing so after so long a period of time, but their motivation is really not relevant to these proceedings.

            On its surface the language appears to be clear and unambiguous.  There are no qualifiers which limit reimbursement to “traveling teachers” even though that term is not defined in the collective bargaining agreement.  The bargaining unit member must be required to travel as a part of his or her duties and must use their own vehicle.

            The arbitration case cited by the Board [1]for consideration of the Arbitrator refers to a concept in arbitration known as “acquiescence.”  Did the Union acquiesce to the practice of the Board by not filing a similar request for reimbursement for the last twenty years?

            The Drum case cited concerned employees assigned to different job duties who were paid inconsistent with the clear language of the agreement for a period covering twenty years.  The arbitrator in that case concluded that the Union had acquiesced by not filing a grievance for that entire period of time.

            This case is different.  No claim for similar reimbursement was apparently made throughout the twenty year period of time.  Without a denial, there cannot be a need to file a grievance.

            Does the fact that employees failed to claim reimbursement constitute acquiescence?  I don’t think so.  The very point made by the Superintendent in his letter about the small amounts of money due may explain why persons did not choose to claim reimbursement.

AWARD:

            Based upon consideration of all evidence presented, testimony offered, the arguments of the advocates, a review of the governing contract language and the post hearing briefs, the grievance is granted.

Issued at London, Ohio this 11th day of March, 2002

_______________________________
N. Eugene Brundige, Arbitrator



[1] Port Drum Co., 82 LA 942, (944-45)

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