OPINION AND AWARD

In the matter of Voluntary Arbitration

Between

Shenandoah Education Association

And

Shenandoah School Corporation

Regarding

AAA Case No. 52 390 00492 05
[Bill Gast, retirement  benefits]

 

APPEARANCES:
FOR THE SCHOOL CORPORATION:    David L. McCord, Attorney for the Board Ronald L. Green, Superintendent	FOR THE ASSOCIATION: Sharon Casey, Uniserv Director Rich Frankhouser, Uniserv Dir. Melody Zapf, SEA Co-president  Bill Gast, SEA Co-president

An arbitration hearing was conducted on January 10, 2006 in the Board Offices of the Shenandoah School Corporation. 

            Prior to the date of the hearing this arbitrator was contacted by The American Arbitration Association representative who conveyed a request from the parties that the Arbitrator arrive early and attempt to assist the parties in mediating a settlement of the grievance.

            The Arbitrator did so.  Upon arrive and after initial discussions, the parties entered into a joint agreement which stated:

                                                            “January 10, 2006

Whereas the parties representing the Shenandoah School Corporation and the Indiana State Teachers Association have selected Arbitrator N. Eugene Brundige to decide AAA Case Number 52-390 00492 05 and,

Whereas these same parties have requested mediation be attempted prior to conducting the arbitration hearing and,

Whereas all parties waive any objection to Mr. Brundige serving in the dual role of mediator and arbitrator;

Therefore the parties agree to enter into mediation of this matter with the understanding that any party may conclude that mediation will not be successful.  When such conclusion is reached the parties will proceed to arbitrate the matter.”

            The document was executed by Superintendent Ronald L. Gray and Uniserv Director Sharon Karl Casey, and agreed to by the Arbitrator.

            After spending a significant time in mediation the parties decided to proceed to hearing on the matter.  The parties further agreed that the materials submitted to the Arbitrator during mediation would be received into evidence and could be relied upon by the Arbitrator.

            The parties also entered in an agreement wherein they asked the Arbitrator to retain jurisdiction in the matter following the issuance of this award, until such time as any party desired that jurisdiction should no longer be maintained.

BACKGROUND:

            On May 10, 2005 Shenandoah Superintendent Ron Green notified SEA by letter that he had determined “guidance counselors at Shenandoah are not included in the bargaining unit according to Article I of the 2002-2005 master contract.” [1]

            The underlying issue surrounds the eligibility of guidance counselors to participate in a retirement buyout.  The Superintendent recounts the question raised to him by the SEA in this way”  “The unfunded liability buy-out (SEA 199) and redistribution of forfeitures within the 401(a) and the VEBA accounts is the most difficult issue to address.  In may come down to a matter of contract interpretation in regards to our guidance counselors.” [2]

            The conclusion that guidance counselors are not a part of the bargaining unit allowed them to receive benefits under this program that they would not be eligible for if they were in the bargaining until.

            Testimony at the hearing clearly indicated that the decision was made by the Superintendent that guidance counselors are not a part of the bargaining unit and the benefits in question were given to them.

            On May 31, 2005 the SEA filed a grievance asking that “the Shenandoah School Corporation and Superintendent Ron Green acknowledge that Shenandoah School Corporation and superintendent Ron Green acknowledge that Shenandoah guidance counselors are part of the bargaining unit according to Article 1, Section 1 of the 2002-2005 master contract and any other relief deem proper.” [3]

            The parties did not submit an agreed to joint issue to the Arbitrator for determination, but asked the Arbitrator to frame the issue as a part of this award.

            In their Post Hearing Brief the SEA phrased the issue as: “Are the counselors included in the bargaining unit or are they excluded?  Has the Shenandoah Board of Trustees violated the recognition clause of the contract, and if so, what is the remedy?”

            I would frame the issue in the instant case as follows:

            “Are guidance counselors included in the master agreement between the SEA and the Shenandoah School Corporation?”  If so, what remedy shall apply regarding  the unfunded liability buy-out (SEA 199) and redistribution of forfeitures within the 401(a) and the VEBA accounts.”

RELEVANT MASTER CONTRACT SECTIONS:

ARTICLE I

Recognition

Section 1

            Pursuant to its public notice of March 12, 1974, as amended by the Indiana Education Employment Relations Board Hearing Officer’s Recommendation of March 28. 1974, the Board hereby recognizes the Association as the exclusive representative for purposes of collective bargaining and discussion within the meaning of Acts 1973, Public Law 217, for full time certified employees in the following described bargaining unit.

Included:         All full time certified school employees, as defined in Public Law 217, of the Shenandoah School Corporation of Henry County, Indiana.

Excluded:       Superintendent, assistant superintendent, principals, assistant principals, and high school athletic director.  Duties that are administrative in nature and/or involve access and use of confidential records would exclude a school employee from the bargaining unit.  However, simply applying a title to a position is not sufficient basis for exclusion.

Section 2        Definitions

A.     The term “teacher” when used in the Contract, shall refer to all certificated employees as defined in Act 1973, Public Law 217, employed by the Board and included in the above described bargaining unit.

SEA POSITION:

            The SEA believes the matter to be very clear.  Counselors have been included in the bargaining unit since 1982 when the Association and the Board bargained to specifically include them.  The language remained unchanged until 1995.  SEA points out that from 1995 to the present, counselors have been included in the bargaining unit.

            The SEA argues that the recognition clause includes “all full time employees, as defined by PL 217” and then goes on to specifically exclude “Superintendents, Assistant Superintendents, principals, assistant principals, and High School athletic director.”

            In 2003 the SEA and the Corporation negotiated a new retirement buy-out.   Only employees hired prior to 1999 were eligible to be included.  This is in addition to an ongoing contribution plan available to all employees including those hired more recently.

            The SEA argues that Indiana Code 20-29-2-5 defines a “confidential employee” as “a school employee whose (1) unrestricted access to confidential personnel files; or (2) functional responsibilities or knowledge in connection with the issues involved in dealings between the school corporation and its employees; makes the school employee’s membership in a school employee organization incompatible with the school employee’s official duties.” [4]

            The SEA argues that counselors do not have unrestricted access to confidential personnel files.

            Two counselors, Suzie Wallach and Diana Gray would not be eligible for the buy-out under the master contract because they were hired into the district after 1999.

            The Superintendent determined the counselors were not included in the bargaining unit and extended the benefit to the two counselors notwithstanding their service within the school corporation.

            The SEA requests the Arbitrator determine the counselors are within the bargaining unit.  They are less clear on what the remedy should be and thus have entered into an agreement with the corporation that the Arbitrator retain jurisdiction.

SCHOOL CORPORATION’S POSITION:

            Counsel for the Board of Trustees argues that the 1995 amendment to the Master Contract effectively excluded counselors from the bargaining unit. 

            He notes that the law in 1995 defining confidential employees has not changed and is identical to the definition included in statute at the time of this grievance.  The Board concludes that the list of employees excluded from the bargaining  unit expanded in 1995.

            The Board notes that SEA co-president Bill Gast testified that he, as a teacher “does not have access to all confidential student records as a school counselor does.” [5]

            The Board concludes that since the definition of confidential bargained in 1995 differs from the language of the statute, “therefore it must be assumed that the bargaining intended to expand the definition of what is confidential.” [6]

            The Board points to Board Exhibit 5 (Bylaws & Policies of the Shenandoah School Corporation) which outlines the duties of counselors and establishes a more stringent confidentiality requirement on them than on teachers.

            The Superintendent explained that the Corporation has a difficult time with recruitment and retention of guidance counselors and noted that this was a motivating factor in his examination of the language in the Master Contract.

            He notes that the Master Contract does not address guidance counselors specifically. 

            He also noted that Collective Bargaining Law, I.C. 20-7.5 does not cover guidance counselors specifically either. 

            He and the Board then considered the language contained in both the law and the Master Contract that refers to “confidential records” and reached the conclusion that counselors are excluded from the bargaining unit.

            The Board goes on to argue in the alternative that if it is determined that guidance counselors are in the bargaining unit the funds for the 401(a) buyout or the VEBA buyout should be returned to the plan administered by MetLife/ISTA Financial Services. 

DISCUSSION:

            The Superintendent and Board have erred in their reading and reliance on the meaning of “confidential.”  The general reason for exclusion of persons handling confidential information is that they may have a conflict inherent in the collective bargaining process.

            The language of the Master Contract can reasonable be interpreted to lend itself to the same interpretation when it says:  “Duties that are administrative in nature and/or involve access and use of confidential records would exclude a school employee from the bargaining unit.”

            What practical reason could there be for excluding from the bargaining unit persons who had information regarding students?  If the Board had such a theory in mind that would certainly have been discussed during 1995 bargaining and some record would exist to support that view.

            Even the evidence offered by the Board in the By-Laws & Policies document speaks of confidentiality as it pertains to students.

            A review of arbitration cases pertaining to confidential employees demonstrates that all examined relate to the relationship of the employee to the collective bargaining process.

            I will cite just two of those cases to illustrate this point:

            Arbitrator Johnathon Dworkin in an Ashtabula City Schools case, ruled that:  “New position of administrative secretary for supervisor of special education was part of the bargaining unit from its inception despite school board’s designation of it as “confidential” position excluded from the {bargaining} unit…” [7]

            The Board argued that the secretary to the supervisor of special education handled confidential student information, and Arbitrator Dworkin based his decision on the fact the secretary had nothing to do with information pertaining to collective bargaining.

            In a Wilmette, Illinois case Arbitrator Aaron S. Wolff ruled that the secretary to the school administrator for curriculum and instruction was a confidential employee only because the administrator served on a committee that prepared management contract proposals and that met weekly to review negotiation’s progress.  Her confidential status was not due to the student information maintained in the office. [8]

            The Board argues that: “therefore it must be assumed that the bargaining intended to expand the definition of what is confidential.”

            This Arbitrator is not persuaded by this argument.  If it were the intention of the Board to exclude guidance counselors then that fact could have been noted in the exclusion language of Article I.

            Elkouri and Elkouri’s How Arbitration Works, is considered as the most authoritative text on the subject of Arbitration by many within the labor relations field.  It states:

“Frequently arbitrators apply the principle that to expressly include one or more of a class in a written instrument must be taken as an exclusion of all others.  To expressly state certain exceptions indicates that there are no other exceptions.  To expressly include some guarantees in an agreement is to exclude other guarantees.” [9]

            The language clearly excludes Superintendent, assistant Superintendent, principals, assistant principals, and high school athletic director. 

            Having rejected the argument regarding confidential records, it must be assumed that, if guidance counselors were to be excluded they would be named in this list.

            Likewise, there can be no question that guidance counselors have been treated as members of the bargaining unit.  Page 53 of the Master Contract contains specific references to the number of days that Counselors are scheduled to work.

            This indication that counselors have been recognized as members of the bargaining unit and represented by SEA places an even higher burden on management to show why they should now be determined not to be properly in the unit.  The Board has failed to demonstrate such to the satisfaction of this Arbitrator.

            While the burden of proof in contract interpretation cases normally falls to the union, in cases such as this one where management is attempting to overturn the status quo and a long established practice of representation, that burden clearly shifts to the Board.

DECISION:

            For the reasons herein stated, it is my determination that the Superintendent and the Board of Trustees violated the Master Agreement by attempting to exclude guidance counselors from the bargaining unit.

                       

REMEDY:

            In the guidance counselors are included in the bargaining unit, the funds   for their 401(a) buy-out or the VEBA buy-out were improperly given.  Those funds should be recollected.

            This arbitrator lacks adequate information to know to where those funds should be redirected.  Therefore, the parties should meet to discuss the matter and hopefully come to agreement on the redirection of funds.

            If the parties are unable to do so, then the parties may call upon the Arbitrator under their maintenance of jurisdiction agreement, to help resolve this remaining matter.

Issued at London, Ohio this 14^th day of March, 2006

N. Eugene Brundige, Arbitrator