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Title:
Date: July 2, 2007
Arbitrator: N.
Eugene Brundige
Citation: 2007 NAC 113
OPINION AND AWARD
In the Matter of Arbitration
Between
The
And
Regarding
FMCS
Case No. 07-51593
Date of
Hearing – April 23, 2007
APPEARANCES:
FOR THE UNIION:
FOR THE SCHOOL BOARD:
WITNESSES
An arbitration hearing
was conducted April 23, 2007, at the Administrative Offices of the
At the hearing the parties offered the collective bargaining agreement and the grievance trail as joint exhibits.
The
In their respective post hearing briefs the parties
restated the issue somewhat differently.
The Union offered,
“Did the Employer, the
Management phrased the issue as,
“Did
the Board violate the Collective Bargaining Agreement when it failed to
assign three (3) busses and three (3) drivers to the
Both parties timely submitted post hearing briefs. All materials were reviewed and considered by the Arbitrator in reaching this decision.
Both parties were given full opportunity to examine and cross examine witnesses, pose arguments, and present their respective cases.
The parties agreed that the matter was properly before the Arbitrator for determination. The Arbitrator requested permission to submit the award for consideration for publication and permission was granted.
RELEVANT CONTRACT PROVISIONS:
ARTICLE 2
- BARGAINING UNIT
2.1
FOR THE PURPOSE OF THIS AGREEMENT, THE
BARGAINING UNIT SHALL
CONSIST
OF ALL REGULAR NON-CERTIFIED EMPLOYEES IN THE FOLLOWING CLASSIFICATIONS WHO
ARE NOT SPECIFICALLY EXCLUDED PURSUANT TO 2.2
BELOW:
| A. | FULL-TIME CUSTODIAL | J. |
ORTHOPEDIC AIDE |
| B. | PART-TIME CUSTODIAL | K. |
CAFETERIA COORDINATOR |
| C. | MAINTENANCE | L. |
ELECTRONIC TECHNICIAN |
| D. | SECRETARIAL | M. |
PRE-SCHOOL CHILD ASSISTANT |
| E. |
FOOD SERVICE |
||
| F. |
TRANSPORTATION |
||
| G. |
EDUCATIONAL AIDES |
||
| H. |
HEALTH TECHNICIAN |
||
| I. |
MECHANICS |
THE
POSITIONS AND RATES OF PAY WITHIN EACH CLASSIFICATION SHALL
BE AS SET
2.2
EXCLUDED FROM THE BARGAINING UNIT ARE ALL
MANAGEMENT,
CONFIDENTIAL AND SUPERVISORY EMPLOYEES, SEASONAL AND CASUAL EMPLOYEES, AND
SUBSTITUTE EMPLOYEES WORKING ON A DAY-TODAY BASIS, INCLUDING BUT NOT LIMITED
TO:
SUPERINTENDENT
2.3
THE ASSOCIATION WILL REPRESENT ALL EMPLOYEES IN
THE RECOGNIZED UNIT WITHOUT REGARD TO RACE, COLOR, CREED, SEX, AGE,
HANDICAP, OR
NATIONAL
ORIGIN.
2.4
UPON CREATION OF ANY NEW CLASSIFICATION, THE
BOARD WILL NOTIFY
THE
IF THE UNION DISAGREES WITH A NON-BARGAINING UNIT
CLASSIFICATION FOR A NEW POSITION, THEN THE
ARTICLE 3 - MANAGEMENT RIGHTS
3.1
THE ASSOCIATION SHALL RECOGNIZE THE RIGHT AND
THE AUTHORITY OF THE BOARD TO ADMINISTER THE BUSINESS OF THE DISTRICT, AND
IN ADDITION
TO OTHER
FUNCTIONS AND RESPONSIBILITIES WHICH ARE NOT SPECIFICALLY MENTIONED HEREIN,
THE ASSOCIATION SHALL RECOGNIZE THAT THE BOARD
HAS, AND
WILL, RETAIN THE FULL RIGHT AND RESPONSIBILITY TO DIRECT THE
OPERATIONS OF THE DISTRICT, TO PROMULGATE RULES AND REGULATIONS, AND TO
OTHERWISE EXERCISE THE PREROGATIVES OF MANAGEMENT, AND MORE PARTICULARLY,
INCLUDING BUT NOT LIMITED TO THE FOLLOWING:
1. TO MANAGE AND DIRECT ITS EMPLOYEES, INCLUDING THE RIGHT TO SELECT, HIRE, PROMOTE, TRANSFER, ASSIGN, EVALUATE, LAY OFF, RECALL, REPRIMAND, SUSPEND, DISCHARGE, REWARD OR DISCIPLINE FOR JUST CAUSE AND TO MAINTAIN DISCIPLINE AMONG EMPLOYEES.
2.
TO MANAGE AND DETERMINE THE LOCATION, TYPE
AND NUMBER
OF
PHYSICAL FACILITIES, EQUIPMENT, PROGRAMS, AND THE WORK TO BE PERFORMED.
3.
TO DETERMINE THE DISTRICT'S GOALS,
OBJECTIVES, PROGRAMS,
AND SERVICES, AND TO UTILIZE PERSONNEL IN A MANNER
DESIGNED
TO EFFECTIVELY AND EFFICIENTLY MEET THESE PURPOSES.
4.
TO DETERMINE THE SIZE AND COMPOSITION OF THE
WORK FORCE
AND THE
DISTRICT'S ORGANIZATIONAL STRUCTURE, INCLUDING THE RIGHT TO RELIEVE
EMPLOYEES FROM DUTY DUE TO LACK OF
WORK OR
AUSTERITY PROGRAMS.
5.
TO DETERMINE THE HOURS OF WORK, WORK
SCHEDULES, AND TO
ESTABLISH
THE NECESSARY WORK RULES FOR ALL EMPLOYEES, EXCEPTING THOSE PROVISIONS
SPECIFICALLY SET FORTH WITHIN THIS AGREEMENT.
6.
TO DETERMINE WHEN A JOB VACANCY EXISTS, THE
DUTIES TO BE
INCLUDED
IN ALL JOB DESCRIPTIONS, AND THE STANDARDS OF
QUALITY
AND PERFORMANCE TO BE MAINTAINED.
7.
TO DETERMINE THE NECESSITY TO SCHEDULE
OVERTIME AND THE
AMOUNT REQUIRED THEREOF.
8.
TO DETERMINE THE DISTRICT'S BUDGET AND USES
THEREOF.
9.
TO MAINTAIN THE SECURITY OF RECORDS AND
OTHER PERTINENT
INFORMATION.
10.
TO DETERMINE AND IMPLEMENT NECESSARY
ACTIONS IN
EMERGENCY SITUATIONS.
3.2
THE ASSOCIATION RECOGNIZES AND ACCEPTS THAT ALL
RIGHTS AND
RESPONSIBILITIES OF THE BOARD NOT SPECIFICALLY MODIFIED BY THIS AGREEMENT,
OR ENSUING AGREEMENT, SHALL REMAIN THE FUNCTION OF THE
BOARD. THE ABOVE ENUMERATED RIGHTS SHALL NOT ABRIDGE, AND SHALL
BE CONSISTENT WITH, THE PROVISIONS OF THIS AGREEMENT.
3.3
THE BOARD MAY CREATE SUCH BARGAINING UNIT
POSITIONS AS IT
DEEMS NECESSARY FOR THE OPERATION OF THE DISTRICT, INCLUDING THE
QUALIFICATIONS, DUTIES, RESPONSIBILITIES, AND BENEFITS, SUBJECT ONLY TO
THE UNION'S RIGHT TO REQUEST TO NEGOTIATE THE TERMS AND CONDITIONS
OF EMPLOYMENT AS ARE COVERED AND NEGOTIATED BY THIS AGREEMENT. THE NOTICE
SHALL BE PRIOR TO THE END OF THE POSTING PERIOD.
ARTICLE
16 - BUS ROUTES AND EXTRA TRIPS
16.1
IN THE EVENT A NEW RUN OR A RUN BECOMES
AVAILABLE AT SOME
LATER
DATE BECAUSE OF A DRIVER'S TERMINATION OF EMPLOYMENT (AFTER
INITIAL
BIDS ARE ACCEPTED), IT SHALL BE POSTED FOR A PERIOD OF FIVE (5) DAYS AND BID
IN ACCORDANCE WITH THE ABOVE BID PROCEDURE.
16.2
EXTRA TRIPS SHALL BE POSTED AND SHALL BE
AWARDED AT LEAST TWO (2) DAYS IN ADVANCE, IF POSSIBLE, ON A ROTATING BASIS
FROM A POSTED SENIORITY LIST, EXCEPT IN EMERGENCY SITUATIONS OR IF OTHERWISE
SET
FORTH
HEREIN. THE POSTING SHALL BE IN THE BUS GARAGE OR TRANSPORTATION DIRECTOR'S
OFFICE. A DRIVER WHO ACCEPTS A TRIP MUST
NOTIFY
THE TRANSPORTATION DIRECTOR AT LEAST TWENTY-FOUR (24) HOURS
IN ADVANCE
IF HE/SHE CANNOT TAKE THE TRIP, EXCEPT IN THE CASE OF AN
EXTREME
EMERGENCY.
16.3
IF A DRIVER DOES NOT DESIRE EXTRA TRIPS, HE
SHALL HAVE THE OPTION
OF
WITHDRAWING HIS NAME FROM THE ROTATION LIST. HOWEVER, IF THE DRIVER REMAINS
ON THE LIST THERE SHALL BE NO TRADING OF POSITIONS ON
THE LIST,
AND IF THE EXTRA RUN IS REFUSED FOR ANY REASON, THE DRIVER'S
NAME SHALL
BE PLACED AT THE END OF THE LIST. EXTRA TRIPS SHALL BE
OFFERED TO REGULAR DRIVERS BEFORE THEY ARE OFFERED TO
SUBSTITUTES; HOWEVER, NO DRIVER SHALL BE ELIGIBLE FOR OR TAKE AN EXTRA TRIP
WHICH CONFLICTS WITH HIS
16.4
THE BUS DRIVERS SHALL BE PAID HIS APPLICABLE
HOURLY RATE FOR TIME SPENT ON ANY EXTRA TRIPS. THE BUS DRIVER SHALL BE PAID
TIME AND
ONE HALF
(1 1/2) FOR ALL HOURS ACTUALLY WORKED OVER FORTY (40) HOURS
DURING A
WEEK.
16.5
SUBSTITUTE DRIVERS WILL NOT BE USED TO AVOID
OVERTIME WHEN
REGULAR
DRIVERS ARE AVAILABLE.
ARTICLE 17 –
OVERTIME AND REPORT PAY
17.1
ALL WORK PERFORMED OVER FORTY (40) HOURS ACTUALLY
WORKED IN ANY ONE WEEK SHALL BE CONSIDERED AS
OVERTIME AND PAID AT THE OVERTIME RATE OF ONE AND ONE-HALF ( 1 ½) TIMES THE
REGULARLY HOURLY RATE OF PAY.
NO EMPLOYEE SHALL PERFORM WORK IN EXCESS OF
FORTY (40) HOURS PER WEEK WITHOUT PRIOR APPROVAL OF HIS IMMEDIATE SUPERVISOR
OR THE SUPERINTENDENT.
17.2
ALL OVERTIME SHALL BE DISTRIBUTED AS EQUALLY AS
POSSIBLE AMONG THE EMPLOYEES IN THE CLASSIFICATION NECESSARY TO PERFORM THE
WORK.
A SENIORITY LIST WILL BE ESTABLISHED FOR THE
DISTRIBUTION OF THE OVERTIME.
17.3
ANY EMPLOYEE REQUIRED TO REPORT OUTSIDE OF HIS
REGULARLY SCHEDULED HOURS WHICH REQUIRES HIS RETURN TO THE JOB OR BEING
CALLED TO THE JOB IN NON-WORKING HOURS SHALL RECEIVE AT LEAST TWO (2) HOURS
PAY AT HIS REGULAR RATE.
IF THE EMPLOYEE WORKS FOR MORE THAN TWO (2)
HOURS, HE WILL BE PAID FOR THE TIME ACTUALLY WORKED.
ARTICLE 25-GRIEVANCE PROCEDURE
STEP
FOUR:
IF THE GRIEVANCE IS NOT RESOLVED SATISFACTORILY WITH
THE DECISION RENDERED AFTER THE REVIEW IN STEP THREE, THE GRIEVANCE MAY BE
SUBMITTED FOR ARBITRATION.
THE ASSOCIATION SHALL, WITHIN FIFTEEN (15) WORK
DAYS AFTER THE RECEIPT OF THIS DECISION, OR THE DATE THE REPORT WAS DUE,
NOTIFY THE SUPERINTENDENT OF ITS INTENT TO SUBMIT THE GRIEVANCE TO
ARBITRATION. THE PARTIES SHALL
JOINTLY REQUEST THE FMCS OR AMS (ARBITRATION MEDIATION SERVICES) TO FURNISH
A LIST OF AVAILABLE ARBITRATORS AFTER RECEIPT OF SUCH LIST AND AN
25.13 THE ARBITRATOR SHALL HAVE NO POWER TO ALTER, ADD
TO, SUBTRACT FROM, DISREGARD, OR MODIFY ANY OF THE TMERMS OF THIS AGREEMENT.
HE SHALL HAVE NO POWER TO RULE ON ANY OF THE
FOLLOWING:
A.
ANY CLAIM OR COMPLAINT FOR WHICH THERE IS
ANOTHER REMEDIAL PROCEDURE SET
B.
ANY MATTER INVOLVING EMPLOYEE EVALUATION,
EXCEPT
EVALUATION
PROCEDURAL MATTERS.
25.14
THE ARBITRATOR'S POWER SHALL BE LIMITED TO
DECIDING WHETHER
THE
EXPRESS ARTICLES OF THIS AGREEMENT HAVE BEEN VIOLATED AND HE
SHALL NOT
THEREBY MANDATE CONTINUING OBLIGATIONS OR POLICY
CHANGES
BEYOND THE REMEDY FOR THE INDIVIDUAL GRIEVANT OR AFFECTING CONDITIONS PRIOR
TO OR BEYOND THE LIFE OF THIS AGREEMENT.
25.15
THE ARBITRATOR'S DECISION, IF WITHIN THE SCOPE
OF HIS AUTHORITY
AS SET
FORTH ABOVE, SHALL BE FINAL AND BINDING ON THE ASSOCIATION, ITS MEMBERS, THE
EMPLOYEE OR GROUP OF EMPLOYEES INVOLVED, AND THE BOARD, SUBJECT TO THE TERMS
AND PROVISIONS OF THE OHIO REVISED CODE. NEITHER THE ASSOCIATION NOR ANY
MEMBER OF THE BARGAINING UNIT
SHALL
ATTEMPT ANY OTHER MEANS TO BRING ABOUT THE SETTLEMENT OF
ANY
GRIEVANCE. THIS PROVISION SHALL NOT BAR EITHER PARTY FROM
WITHDRAWING THEIR CASE PRIOR TO THE ARBITRATION HEARING.
25.16
THE FACT THAT THE GRIEVANCE HAS BEEN CONSIDERED
BY THE PARTIES
IN THE
PRECEDING STEPS OF THE GRIEVANCE PROCEDURE SHALL NOT CONSTITUTE A WAIVER OF
JURISDICTIONAL LIMITATIONS UPON THE
ARBITRATOR IN THIS AGREEMENT.
25.17
NO NON-TENURED EMPLOYEE MAY USE THE GRIEVANCE
PROCEDURE TO
APPEAL A
DECISION BY THE BOARD NOT TO RENEW HIS CONTRACT.
25.18 IF
THE GRIEVANCE ARISES FROM AN ACTION OF AUTHORITY HIGHER
THAN THE
PRINCIPAL OF A SCHOOL, THE EMPLOYEE MAY PRESENT SUCH
GRIEVANCE
AT STEP TWO OF THIS PROCEDURE.
25.19 TIME LIMITS PROVIDED IN THIS ARTICLE MAY BE
EXTENDED BY MUTUAL AGREEMENT WHEN SIGNED BY THE PARTIES.
25.20 FAILURE AT ANY STEP OF THIS PROCEDURE TO
COMMUNICATE THE DECISION ON A GRIEVANCE WITHIN THE SPECIFIED TIME LIMITS
SHALL BE DEEMED DENIED.
25.21 ANY GRIEVANCE NOT ADVANCED FROM ONE STEP TO THE
NEXT WITHIN THE TIME LIMITS OF THAT STEP SHALL BE DEEMED RESOLVED BY THE
ADMINISTRATOR OR THE BOARD’S ANSWER AT THE PREVIOUS STEP.
25.22THE FEES AND EXPENSES OF THE ARBITRATOR SHALL BE
SHARED BY BOTH THE BOARD AND THE ASSOCIATION IN ALL CASES.
BACKGROUND:
The Ohio Association of Public School
Employees, (OAPSE) Local 252 represents bus drivers in this rural
An elementary school teacher in the district,
after losing her husband to a tragic illness, approached Superintendent
Lloyd Evans with a unique request.
She has a son with
special needs who has long been involved with the
She informed
Superintendent Evans that she would like to charter a commercial bus for the
team for one of its distant trips (
Superintendent Evans then approached the
President of Local 252, Steve Wiles, and requested a meeting with the bus
drivers to explain the situation.
While testimony about the meeting with the
drivers differed in detail, the offer was explained and a request was made
that the drivers who would normally provide school bus transportation agree
to this arrangement and waive their claim to compensation.
The Superintendent left the meeting while the
matter was discussed.
He was asked to return to respond to a question
about whether this would be a one time arrangement.
Superintendent Evans wrote a statement
clarifying that this would be a one time arrangement.
The employees were then polled in the order of
those who would be eligible for the overtime work and several agreed that
they would waive.
One particularly employee indicated that he
wanted to be paid for the work and a second employee indicated he wanted to
be compensated as well.
The Superintendent indicated that he would
check into paying these two (2) employees which the teacher donating the
money subsequently agreed to do.
The trip was conducted.
The charter bus company provided a driver for
each leg of the lengthly trip.
The two (2) OAPSE members rode along on the
trip but did not drive.
They were eventually compensated for all the
hours of the trip according to the collective bargaining agreement between
the parties.
The grievant, Phil Johnson, was next on the
seniority roster and would have been entitled to drive if school busses had
been used and a third bus employed.
He filed a grievance on September 7, 2006, in
which he claimed:
“The Board
and/or its delegates violated the agreement by employing non bargaining unit
employees to perform non bargaining unit work.
On 9/2/06 2 charter busses were used to
transport high school football team.
If school busses had been utilized it would
require 3 busses.”
POSITION OF THE
The Union notes that the
collective bargaining agreement covers bus drivers and that these bus
drivers would have driven the trip to
The
The Union notes that when
Mr. Johnson discovered that cheerleaders did travel to
The
OAPSE cites Elkouri and Elkouri noting that a
custom or past practice can be binding on the parties and cited a total of
five (5) noted arbitrators who have so ruled in various cases.
The
Finally OAPSE provided evidence that all
football games driven in the 2005-2006 season in which cheerleaders were
transported had three (3) school busses assigned.
The
POSITION OF THE BOARD OF EDUCATION:
The Board argues that the
collective bargaining agreement has not been violated and the
The Board notes that sometimes three (3) busses
are utilized for football trips and at other times two (2) are used.
The Board notes that Union Witness Duncan
admitted that sometimes two (2) busses were used to transport the football
team and sometimes three (3) were used.
It was noted that the Superintendent did put a
commitment in writing stating that this was a one time arrangement but later
rescinded that commitment in his grievance answer noting that it was
predicated upon the drivers agreeing not to be paid for this special trip.
The main argument of the Board is that the
collective bargaining agreement is silent on the number of drivers, the
number of trips, and the determination as to who goes on those trips.
Article 3 (Management Rights) states that the
Board and the Administration has the right to manage and direct employees
and to schedule work.
From the perspective of
the Board, the
The Board cites the standards listed in an Ohio
Supreme Court case involving Cleveland Firefighters Local 93 which
established three (3) tests to determine a past practice, noting the
practice must be (1) unequivocal, (2) clearly enunciated, and (3) followed
for a reasonable period of time as a fixed and established practice accepted
by both parties.[3]
The Board notes that in this case two (2)
charter busses were engaged and two (2) bargaining unit drivers were
properly compensated for the trip.
In the mind of the Employer there was no
violation. It
asks that the grievance be denied.
DISCUSSION AND AWARD:
The uniqueness of this situation which appears
to have been created with the best of intentions by a grateful parent, has
created the confusion that surrounds this situation.
The parties are correct to identify this case
as one that rests on the question of past practice.
Clearly the collective bargaining agreement
never envisioned such a situation and is silent, not only on the unique
circumstances of this matter, but also on larger questions such as the
number of busses assigned.
In addition to this silence on the number of
busses to be assigned, the Management Rights clause of the collective
bargaining agreement preserves for Management the right to direct the
operation of the district.
Thus, absent the proof
and demonstration of a binding past practice the
The Board Representative cited the tests for
establishing a past practice in the Cleveland Firefighters case.
These same or similar criteria are cited in
numerous arbitration decisions including (Celanese Corp., 24 LA 168 -
Justin), (Lake Eric Screw Corp., 108 LA 15 – Feldman), (Grand Haven Stamped
Products, 107 LA 131 – Daniel) and (Kansas City Power & Light, 105 LA 518 –
Berger).
They are widely accepted by many arbitrators.
Those tests are
(1)
unequivocal; (2) clearly enunciated and acted upon; (3) readily
ascertainable over a reasonable period of time as a fixed and established
practice accepted by both parties.”
Even the
Carl Duncan, a
He testified that the cheerleaders used to ride
in the front with the boys in the back.
Now the cheerleaders ride on the bus carrying
the equipment.
While the
In 1952 Arbitrator Harry Shulman wrote about
past practices in a Ford Motor case.
His treatment of the subject remains a clear
and insightful guide to arbitrators considering this subject.
He wrote:
“A practice, whether or not fully stated in
writing, may be the result of an agreement or mutual understanding….
A practice thus based on mutual agreement may
be subject to change only by mutual agreement.
Its binding quality is due, however, not to the
fact that it is past practice but rather to the agreement in which it is
based.
But there are other practices which are not the
result of joint determination at all.
They may be mere happenstance, that is, method
that developed without design or deliberation.
Or they may be choices by Management in the
exercise of managerial discretion as to the convenient method at the time.
In such cases there is no thought of obligation
or commitment for the future.
Such practices are merely present ways, not
prescribed ways, of doing things.
The relevant item of significance is not the
nature of the particular method but the managerial freedom with respect to
it.
Being the product of managerial determination in its
permitted discretion such practices are, in the absence of contractual
provision to the contrary, subject to change in the same discretion.”[4]
In the mind of this Arbitrator the current case
clearly falls into this category.
While it appears that the Board of Education
has recently been utilizing three (3) busses for football trips when
cheerleaders are being transported, it does not appear that such a practice
rises anywhere near meeting the criteria of a binding past practice.
AWARD:
For the reasons herein stated the grievance is
denied.
Respectfully submitted at
________________________
[1] Union’s Post Hearing Brief, page 1
[2] Board’s Post Hearing Brief, page 2
[3] (
[4] Ford Motor Company, 19 LA 237
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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