2002 NAC 110 Salem-Keizer School District 24J and Oregon Association of Classified Employees

Title: Salem-Keizer School District 24J and Oregon Association of Classified Employees
Date: December 5, 2002
Arbitrator: Luella E. Nelson
Citation: 2002 NAC 110

In the Matter of a Controversy

between

OREGON ASSOCIATION OF CLASSIFIED EMPLOYEES,

and

SALEM-KEIZER SCHOOL DISTRICT 24J.

RE: Bidding Rights Grievance - Margaret Redinger

ARBITRATOR'S

OPINION AND AWARD

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 the parties.

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 27, 1991.

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?

The 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:

1. Is the grievance arbitrable under the existing Collective Bargaining Agreement?

2. 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?

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:

1.02 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.

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.

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 notice.

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.

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. ...

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.

(3) License Renewal. The Oregon Department of Education shall renew a school bus driver's license for the driver who:

(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;

(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 four-year period.

(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.

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.

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.

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.

The 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 State.

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.

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.[2] Bayliss testified that, in her view, Grievant was ineligible to drive prior to July 2, when she provided her doctor's note.

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 license.

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 hours.

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 determination. Unscheduled 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 position.

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 Agreement.

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 Agreement.

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,[3] 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.

1. The grievance is arbitrable under the existing Collective Bargaining Agreement.

2. The 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.

3. As 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.

[1] 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 presented.

[2] 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.

[3] 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.