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Title: Rock Hill Local Board of Education and Ohio Association of Public School Employees
Date: July 2, 2007
Arbitrator: 
N. Eugene Brundige
Citation: 2007 NAC 113

 

OPINION AND AWARD

 

In the Matter of Arbitration

Between

 

The Ohio Association of Public School Employees AFSCME/OAPSE – AFL-CIO Local 252

And

 Rock Hill Local Board of Education

Regarding

FMCS Case No. 07-51593

Date of Hearing – April 23, 2007
Date of Receipt of Briefs – May 30, 2007
Date of Award – July 2, 2007

APPEARANCES:

FOR THE UNIION:
Karen Bailey, OAPSE Field Representative, Advocate
Linda Bolin, OAPSE, Second Chair
Phil Johnson, Grievant

FOR THE SCHOOL BOARD:
Robert W. Cross, Consultant and Advocate
Lloyd Evans, Superintendent of Schools

WITNESSES:
Bill Jenkins, Bus Driver
Allan Hogsten, Bus Driver
Steve Wiles, Local Union President

            An arbitration hearing was conducted April 23, 2007, at the Administrative Offices of the Rock Hill, Ohio School District.

At the hearing the parties offered the collective bargaining agreement and the grievance trail as joint exhibits.

The Union proposed the following issue, “Did the Board of Education violate the Collective Bargaining Agreement by failing to assign three busses to the fall trip, September 6, 2006?”  The Management Advocate indicated that he did not have a problem with the issue as proposed.

In their respective post hearing briefs the parties restated the issue somewhat differently.  The Union offered, “Did the Employer, the Rock Hill Local School Board of Education, violate the Collective Bargaining Agreement by contracting with Kay Boggs to decrease the number of bus drivers being compensated for an extra trip occurring on September 2, 2006, from three to two, and if so, what is the remedy?”[1]

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 Hicksville trip on September 2, 2006? If so what is the remedy?” [2]

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 FORTH IN THE SALARY SCHEDULES ATTACHED TO THIS CONTRACT.

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
SUPERINTENDENT'S SECRETARY
ASSISTANT TO THE TREASURER (ACCOUNTS CLERK)
GARAGE SUPERVISOR
TRANSPORTATION DIRECTOR (IF NON-CERTIFIED)
ATHLETIC DIRECTOR (IF NON-CERTIFIED)
TREASURER
ASSISTANT TO THE TREASURER (PAYROLL CLERK)
CAFETERIA SUPERVISOR
TECHNOLOGY COORDINATOR
CERTIFICATED TEACHING STAFF
MAINTENANCE SUPERVISOR
ADMINISTRATIVE RECEPTIONIST (PRE-SCHOOL)

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 UNION IF IT INTENDS FOR THE POSITION TO BE A BARGAINING UNIT POSITION OR NOT.

IF THE UNION DISAGREES WITH A NON-BARGAINING UNIT CLASSIFICATION FOR A NEW POSITION, THEN THE UNION SHALL NOTIFY THE BOARD WITHIN FIVE (5) DAYS OF RECEIPT OF THE NOTICE AND SHALL THEN FOLLOW THE STATUTORY AND REGULATORY PROCEEDINGS TO OBTAIN A DETERMINATION BY SERB.

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 REGULAR ROUTE.

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 OPPORTUNITY TO CONSIDER THE NAMES, THE PARTIES SHALL NAME A MUTUALLY ACCEPTABLE ARBITRATOR, BY STRIKING ALTERNATELY, THE NAMES SUBMITTED.  EITHER PARTY MAY REQUEST ONE ADDITIONAL LIST IF THE LIST IS UNACCEPTABLE, THE PROCEDURE SHALL BE REPEATED WITH RESPECT TO ADDITIONAL LISTS UNTIL SUCH A DESIGNATION RESULTS, THE PARTIES REQUESTING AN ADDITIONAL LIST WILL BE RESPONSIBLE FOR COSTS OF THE NEW LIST.  ANY PARTY CANCELLING AN ARBITRATOR SHALL BE RESPONSIBLE FOR ANY COSTS INCURRED IN THE CANCELLATION.

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 FORTH OR ESTABLISHED BY LAW OR BY REGULATION HAVING THE FORCE OF LAW.

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 Lawrence County school district.

            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 Rock Hill football team as a volunteer manager.  This teacher decided that she would like to offer some special gesture of appreciation to the football players and coaches for their kindness and care shown to her son.

            She informed Superintendent Evans that she would like to charter a commercial bus for the team for one of its distant trips (Hicksville).  The Superintendent told her that one bus would not be adequate and she offered to charter a second bus.

            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 UNION:

            The Union notes that the collective bargaining agreement covers bus drivers and that these bus drivers would have driven the trip to Hicksville if the charter busses had not been engaged.

            The Union produced evidence that in recent years it is the common practice to utilize three (3) school busses for those games where cheerleaders are transported.

            The Union notes that when Mr. Johnson discovered that cheerleaders did travel to Hicksville by charter bus, he decided to file a grievance based upon the belief that a third school bus would have been used for this trip.

            The Union, through testimony of several bus drivers, states that it is a long standing past practice to provide three (3) busses if cheerleaders are involved.

            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 Union notes that any agreements between the donating teacher and the Superintendent are not relevant to this proceeding and has no impact on the collective bargaining agreement.

            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 Union believes Phil Johnson should have been compensated for nineteen (19) hours of work, eleven and one half (11 ½ ) should be at the overtime rate.

POSITION OF THE BOARD OF EDUCATION:

            The Board argues that the collective bargaining agreement has not been violated and the Union’s reliance on past practice is not valid.

            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 Union is asking the Arbitrator to add to the contract by requiring the Board to use three (3) busses for football trips.

            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 Union cannot prevail in this case. 

            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 Union’s witnesses were vague regarding whether a third bus was always used when cheerleaders were transported.  Bill Jenkins testified that “normally” there are three (3) busses for the football team and three (3) for the band.  He testified that it happens “just about every time.”

            Carl Duncan, a Rock Hill bus driver for fourteen (14) years, testified that there used to be two (2) busses but recently the School District had started to use three (3) busses “now that we are getting so big.”

            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 Union, through documentation, has been able to establish that in the last few years three (3) busses have been utilized, this fails to meet the three (3) prong test enumerated above.

            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 London, Ohio July 2, 2007

________________________
N. Eugene Brundige, Arbitrator



[1] Union’s Post Hearing Brief, page 1

[2] Board’s Post Hearing Brief, page 2

[3] (Ohio State 3d 476, 2003-Ohio-4278, 2003 SERB 4-37(2003])

[4] Ford Motor Company, 19 LA 237

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