IN THE MATTER OF ARBITRATION BETWEEN ) ) ) ) ) ) ) ) ) ) ) ) GRIEVANCE: VIOLATION OF CBA ARTICLE V. DEFINITIONS, SECTION 15. ESTABLISHED PRACTICE.

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1 IN THE MATTER OF ARBITRATION BETWEEN AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES (AFSCME), LOCAL 1184, UNION And MIAMI-DADE COUNTY PUBLIC SCHOOLS, EMPLOYER ) ) ) ) ) ) ) ) ) ) ) ) FMCS CASE NO GRIEVANCE NO A10 Arbitrator David K. Monsour Under Auspices of the Federal Mediation and Conciliation Service GRIEVANCE: VIOLATION OF CBA ARTICLE V. DEFINITIONS, SECTION 15. ESTABLISHED PRACTICE. ISSUE: Did the Employer, Miami-Dade County Public Schools, violate an established practice when bus driver, Yajaira Avilez, was scheduled for a conference-forthe-record prior to the beginning of her assigned work hours? If so, what is the remedy? DECISION: The Employer, Miami-Dade County Public Schools did not violate an established practice when bus driver, Yajaira Avilez, was scheduled for a conference-for the-record prior to the beginning of her assigned work hours. The grievance is denied. GRIEVANCE FILED: GRIEVANCE OCCURRED HEARING DATE: RECORD CLOSED: DECISION ISSUED: June 10, 2010 Various dates March 20, 2012 March 20, 2012 May 4, 2012 FOR THE EMPLOYER: Christopher Kurtz, Esq. Miami-Dade County Public Schools APPEARANCES FOR THE UNION: Madelin Gonzalez, Staff Representative AFSCME Florida Council 79

2 OPINION AND AWARD Introduction AFSCME 1184 v. M-DCPS, This case arises out of a bargaining relationship under the current collective bargaining agreement (CBA or Contract) between Miami-Dade County Public Schools (Employer, M- DCPS, District, or School District) and American Federation Of State, County, and Municipal Employees (AFSCME), Local 1184, (Union). 1 The Union represents the bargaining unit employee hereinafter also identified as Avilez or Grievant. Issue Presented Did the Employer, Miami-Dade County Public Schools, violate an established practice when bus driver, Yajaira Avilez, was scheduled for a conference-for-the-record prior to the beginning of her assigned work hours? If so, what is the remedy? Relief Sought 1. That the Employer cease and desist the practice of scheduling conferences-for-therecord outside of the employees regularly scheduled work hours; 2 and 2. That the Grievant, Yajaira Avilez, be made whole. Background On June 10, 2010, the Union filed Grievance No A10, 3 at Level/Step I, on behalf of Yajaira Avilez, regarding an alleged Contract violation that occurred on Wednesday, May 19, 2010, Friday, May 28, 2010, and Friday, June 4, On June 18, 2010, the Employer 1 Employer Exhibits will be referred to as EX- followed by the respective exhibit number/s. Union Exhibits will be referred to as UX- followed by the appropriate exhibit number/s. Joint Exhibits will be referred to as JX- followed by the appropriate number/s. Citations to the Transcript will be referred to as Tr. ( ) followed by the appropriate page number/s and lines, when appropriate. Factual statements or arguments by advocates may be referenced from the transcript without citation. 2 This issue of remedy, raised at the hearing but not set forth on the grievance form, will be considered as a preliminary matter. 3 JX-2. 2

3 denied the grievance noting there was no violation of the Collective Bargaining Agreement. The Union appealed the denial to Level/Step II on June 25, On July 6, 2010, the Employer again denied the grievance. The Union appealed the denial to Level/Step III on July 20, On July 28, 2010, the Employer again denied the grievance, adding a statement that their action was concurrent with established practice. The Union invoked arbitration and the undersigned was notified by the Federal Mediation and Conciliation Service (FMCS) on October 6, 2010 that the parties had selected me to arbitrate the dispute. The parties confirmed acceptance of my policies and procedures and the hearing was scheduled and postponed by the parties. The hearing was conducted on Tuesday, March 20, The parties were provided with a full and complete opportunity to present testimonial as well as documentary evidence and cross-examine witnesses, all whom testified under oath. The parties offered opening and closing statements and agreed not to submit briefs. The record was closed at the conclusion of the hearing and the transcript was received on April 5, The decision was delivered to the parties on May 4, Cited provisions of the Collective Bargaining Agreement (In relevant part) ARTICLE II RECOGNITION Section 3. The provisions of this Contract are not to be interpreted in any way or manner to change, amend, modify, or in any other way to delimit the exclusive authority of the School Board and the Superintendent for the management of the total school system and any part of the school system. It is expressly understood and agreed that all rights and responsibilities of the School Board and Superintendent, as established now and through subsequent amendment or revision by constitutional provision, state and federal statutes, state regulations, and School Board Rules, shall continue to be exercised by the School Board and the Superintendent without prior notice or negotiations with AFSCME, Local 1184, except as explicitly provided for by the stated terms of this Contract. Such rights thus reserved exclusively to the School Board and the Superintendent by way of limitation, include the following: (1) selection and promotion of employees; (2) separation, suspension, dismissal, and termination of employees 3

4 for just cause; and (3) the designation of the organizational structure of the M- DCPS and the lines of administrative authority of M-DCPS. It is understood and agreed that management possesses the sole right, duty, and responsibility for the operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with the other provisions of the agreement. These rights include, but are not limited to, the following: A. B. Direct the work force; C. D. E. Determine the methods, means, and number of personnel needed or desirable for carrying out the Board s missions; ARTICLE V DEFINITIONS A practice which has gained general acceptance through use. ARTICLE VII GRIEVANCE PROCEDURES STEP III -- The parties acknowledge that, as a principle of interpretation, employees are obligated to work, as directed, while grievances are pending. It is further understood and agreed that the aggrieved employee(s) shall be granted released time with pay to attend formal proceedings, as described herein which are held during working hours. If the formal proceedings extend beyond the employee s workday, the time spent beyond the employee s workday at the formal proceedings shall not be considered time worked and shall not be with pay. The Arbitration Award shall be in writing and shall set forth the arbitrator s opinion and conclusion on the issue submitted. The arbitrator shall limit his/her decision to the application and interpretation of this Agreement and the arbitrator shall have no right to amend, modify, nullify, ignore, or add to the provisions of this Agreement. ARTICLE IX WORKING CONDITIONS Section 1. Work Scheduling 4

5 F. Employees shall not be required to report to work prior to the established starting time nor be compelled to work beyond their scheduled workday, unless they are compensated for such additional time. ARTICLE XI DISCIPLINARY ACTION Findings of Fact A. A Conference-for-the-Record shall be held when there is a violation of federal statutes, State Statutes, defiance of the administrator s authority, or a substantiated investigation to determine if formal disciplinary action should be taken (i.e., letter of reprimand, suspension, demotion or dismissal). A Conferencefor-the-Record in and of itself shall not be considered disciplinary. D. The employee shall be given two days notice and a statement for the reason for any Conferences-for-the-Record, as defined above, except in cases deemed to be an emergency. A maximum of two Union representatives may be present at a Conference-for-the-Record 1. Yajaira Avilez, the Grievant in this matter, has been employed for seven years in the Transportation Department of the Miami-Dade County Public Schools as a bus driver Avilez has two children, ages three and eight Union Representative Greg Allen 6 filed a grievance on behalf of Avilez because her supervisor, Alex Miller, scheduled a conference-for-the record (conference) at 1:00 p.m. when her sign-in time for reporting to work was 1:30 p.m Avilez works a split shift from 6:15 to 9:00 a.m. and 1:30 to 5:00 p.m. and cares for her youngest child during the intervening time period Allen described the intervening time between the split shift as an employees personal time Avilez was originally directed to appear for the conference-for-the-record at 1:00 p.m. on May 19, At the employee s request, the conference was rescheduled, this time for May 28, 2010 at 1:00 p.m. The second time the conference was rescheduled, Avilez was 4 Tr Id Id Allen is a bus driver and AFSCME 1184 Vice-President for the Transportation Department. He represents bus drivers, cafeteria employees, maintenance, custodians, and video employees. 7 Tr See also UX-1. 8 Tr Id. 46 (25) and 47 (1). 5

6 directed to report for a conference-for-the-record at 1:05 p.m. on June 4, Avilez did not arrive at the assigned time. She and a Union Representative Allen did report at 1:30 p.m. but Director Alex Miller was unavailable. 10 Nonetheless, Avilez signed the memo and wrote on the bottom My sign in time is at 1:30 PM. I could meet with U at anytime after I sign in. Because who come take care of my baby come at 1:15 PM. (sic) Avilez testified on direct examination that this was the first time she ever had a conference-for-the-record. 12 On cross-examination she claimed to not know if a conference-for-the-record is regarding something serious and, for example, could lead to discipline. 13 After confirming on cross-examination that she had never previously attended a conference-for-the-record, Avilez identified a summary of conference-for-therecord addressed to her dated May 14, 2008 and that she signed on May 19, Avilez also identified her signature on a memorandum dated April 16, 2008 directing her to attend a conference-for-the-record on April 17, 2008 at 9:45 a.m Conferences-for-the-record are not disciplinary in nature, but could lead to discipline Avilez s requested remedy is that the District meets with bus drivers after they sign in because during the time off they may have a doctor s appointment or their kids could be sick. She added, It was very stressful Avilez denied that it was a mere inconvenience issue, but rather that her babysitter did not arrive until between 1:10 and 1:15 p.m. However, she acknowledged that she did not ask the babysitter if she could come earlier Avilez reports for work earlier than normal on days the students are dismissed early. The respective schools dismiss students either at 12:00 or 1:30 p.m. On these days, her mother watches the baby. Avilez acknowledged that she did not ask her mother to babysit so she could attend the scheduled conference-for-the-record. 19 Her explanation was that her 10 Id UX Tr. 23 (23-25). 13 Id EX EX Tr. 44. See also JX-1, ARTICLE XI A. 17 Tr. 24 (4-11). 18 Id After testifying she had not asked her mother to babysit and then confirming that response, she changed her testimony to say, Yes, I asked, but she couldn t of. This change of testimony coupled with her admission that she had been previously attended a conference-for-the-record after testifying to the contrary, raises credibility issues with the Grievant s testimony. 6

7 mother could reschedule her workday as a housekeeper for early dismissal days, but not conference-for-the-record days. 20 Klein testified that neither the Union nor the Grievant attempted to reschedule the conference for one of the early dismissal days [when her mother was watching her baby] Asked if she insisted that she had to show up at 1:30 rather than 1:00, Avilez replied, That s my sign-in time Although acknowledging the seriousness of a conference-for-the-record, Allen never discussed with the Grievant whether someone else could watch her baby if she attended the conference when scheduled Other employees, such as custodians, do not require substitutes when attending conferences. They can return from a conference and catch-up with the work Allen acknowledged that employees scheduled to attend grievance meetings or conferences-for-the-record that were not on their regular schedule were compensated for the time, although there is no contractual provision requiring payment. 25 He also testified there was no contractual requirement to hold conferences-for-the-record on School Board paid time Allen agreed there was a hiring freeze in place due to budget constraints in 2010 when the Grievant s conference was scheduled Allen described the availability of substitute and standby drivers who are available to drive when a bus driver would be at a conference-for-the record. He said there are fifteen percent additional drivers that just sit around and wait for something to become available so it doesn t increase the cost for the District. 28 Standby drivers drive routes when regular drivers do not report for work. Substitute drivers drive routes when regular drivers are scheduled off Terry Haynes, an AFSME Representative and executive board member for Local 1184, is the head custodian in work location 9232, under the Transportation Department Tr Id Id. 26 (22-25). 23 Id Id Id Id Id. 28 Id , Id Id

8 19. Haynes testified that Avilez was a regular, not standby, driver at the time of the alleged Contract violation occurred. 31 Administrative Director Jerry Klein disputed this statement and identified a document that listed the Grievant as a standby driver with an afternoon beginning time of 1:30 p.m. She did not have a midday run or any other workplace conflicts Joan Jones, employed by the District as a standby bus driver, is the Union recording secretary and represents employees at conferences-for-the-record Jones testified there are about 12 standby drivers at her work location and you might have at least four or five of them sitting there [with nothing to do]. 34 Klein challenged that statement testifying, No, it s not accurate. [A]t that center which was 9231 which is Central East, you only have 56 routes and about four substitutes So once four people call in sick, you re out of people. It s just not physically possible to have 12 people sitting around doing nothing. That would be a bad business model and it s just not accurate. We re frequently doubling routes at that center because we don t have enough people Jones was scheduled for a conference-for-the-record at 10:00 a.m. on December 8, 2009, but she did not attend. She advised Director Miller that she had to care for her terminally ill mother and requested the conference to be rescheduled during her work hours. Miller rescheduled the conference, but at the same time, during her non-work hours. When Jones did not attend, a conference was held without her and a grievance was filed. Jones testified that she filed the grievance because she had already explained to management that, as the sole caretaker of her mother, attending the conference on non-work time created a hardship for her The Jones conference was rescheduled for December 15, 2009 at 10:00 a.m. As a standby driver, she had no route assignment that morning and was sitting in the compound. A Union representative contacted Miller to request that the conference be held during her a.m. scheduled time since she was available. Miller did not agree to the time change Jones testified Miller told her, as instructed by his supervisor Jerry Klein, conferencesfor-the-record would no longer be conducted on District time, it would be on the employee s time. She added that when Miller refused to put the statement in writing, she 31 Id Id See also EX Tr. 92,94, Id Id Arbitrators note: Based on 56 routes standby drivers would be 21 percent and four standby drivers would be seven percent. Both parties provided testimony the District attempted to staff 15 percent additional drivers, which would be eight. When there was a hiring freeze, the 15 percent target was not attained. 36 Id Id

9 memorialized the statement in writing. 38 Klein contested this testimony saying there had been a request by Union representatives to conduct all conferences on District paid time. 39 He added that Jones testimony was an inaccurate portrayal of the interaction. Klein testified, I can t provide something that isn t factually accurate because she wanted me to say we re no longer going to do that practice [of holding conferences during work hours]. That would have been inaccurate on my part if I had given that to her. 40 Klein explained they were not going to change the practice of holding conferences and grievance meetings on non-work time, but that doesn t mean it s a change in business practice. He said, I did tell them I wasn t going to start doing them [conferences] during county time Jones represented Avilez at a conference-for-the-record at 9:45 a.m. on May 14, Klein described the operation of the District s Transportation Department: (a) with eight strategically placed transportation centers, the District operates approximately 1300 school buses on 1180 routes; (b) there are between 56 and 200 routes operated out of each center; (c) there are 56 contracted routes; (d) the District is responsible for the maintenance and operation of the buses; (e) the District transports 64,500 students twice each day; (f) Bus drivers work split shifts with between a three and four hour morning and afternoon assignment; (g) although the actual hours may vary, the typical morning shift begins between 5:00 and 5:30 a.m. and ends around 8:45 and 9:00 a.m. The afternoon shift begins at approximately 1:45 p.m. and ends between 4:00 and 4:30 p.m.; and (h) drivers are paid for at least six hours per day and the average workday is seven and one-half hours There are three administrators overseeing the operation at each transportation center. They report to the Operations Director who, in turn, reports to Klein. Klein reports to the Assistant Superintendent for School and District Operations In 2008 the District entered a difficult period financially, resulting in a hiring freeze. While the District normally has 15 percent more drivers than is required to drive the routes, during this period they were about 100 drivers short. When drivers did not report for work, there frequently wasn t anyone to drive the routes Id ; See also UX-4 p Tr Id. 158 (7-11). 41 Id. 159 (20-25), 160 (1-4). 42 Tr See also EX-1 and EX Tr Id Id

10 29. When standby drivers are not available to cover when regular drivers do not report for work, routes are doubled up with a driver covering two routes. When this occurs, kids are picked up late both on the way to school and the return trip home. This creates attendance problems and impacts the educational process Allen testified that from day one the practice has been that transportation and every other department within the School District had meetings on school board time, 47 but acknowledged he did not have any documentation to support the claim. 48 He testified that Union Exhibit Three represented documentation that bus drivers were scheduled for conferences-for-the-record during their regular scheduled work hours. 49 Although he testified to having personal knowledge of one of the employee s schedules, because he represented her at the conference, he acknowledged that his testimony regarding the other employees was based on an assumption, as he had not seen their actual schedules. 50 Haynes testified that, until recently, the conferences had always been held during the employees work hours. When conferences were scheduled for an employee s off time, he would call the director and request that they be rescheduled during the workday. Sometimes he was successful in changing the time to the regular work hours and sometimes he was not successful. When not successful in rescheduling the meeting to accommodate the employee s schedule, they did not attend. He later clarified his testimony saying they did attend the conferences during the employee s non-work hours when the employee was willing, but only during the past year. 51 Jones testified that conferences-for-the-record have always been held during work hours and standby or substitute drivers drove their routes. 52 Klein challenged this testimony saying it s not good business and they can t afford to have people covering full routes when a person is pulled off a route for a conference. Furthermore, the drivers are entitled two Union representatives, who may be bus drivers, at a conference. When the representatives are bus drivers there would be additional routes to cover. At least for the past decade, the conferences have always been scheduled between runs. When someone has a conflict, the District tries to adjust the conference time. A majority of the conferences have been held between runs so it doesn t adversely affect the operation and the kids getting to school. 53 Klein identified several 46 Id Id Id Id Id Id Id Id

11 Extra Services Individual Time Reports completed by bus drivers in 2009 and 2010 to request payment for attending meetings, including conferences-for-the-record on their own time. 54 Klein 55 testified that when this grievance was filed he was informed by the Union that henceforth all conferences-for-the-record had to be on District time. 56 As a result he reviewed District records dating back to 2005 when the scheduling was placed in Microsoft Outlook and found that almost all of our conferences-for-the-record and grievance hearings were held between the hours of 9 and 1:30 which are between runs. 57 He prepared a summary report that documents Union, including witnesses in the instant hearing, participation in conferences-for-the-record beginning at 7:00, 7:15, 7:30, 7:45, 7:55, 8:00, 8:30, 8:40, 8:45, 9:00, 9:10, 9:15, 9:30, 9:40, 9:45, 10:00, 10:15, 10:23, 10:30, 10:45, 11:00, 11:30, 11:45, 11:50, 12:00, 12:15, 12:45, 12:50, 1:00, 1:05, 1:10, 1:15, 1:30, 1:40, 1:45, 1:50, 1:55, 2:00, 2:10, 2:25, 2:30, 2:45, 3:00, and 4:40 from 2005 through Specifically, Jones participated in conferences at 1:00 and 1:15 in 2005 as well as 9:00 and 1:00 in The conference that resulted in the instant grievance was scheduled for 1:00. Haynes participated in a conference at 1:00 in Allen participated in a conference at 1:00 in 2006 and Klein testified that while there were a few conferences held during District paid time, the vast majority was conducted during the unpaid intervening time. 59 They always try to schedule the conferences off duty, between runs, as the primary responsibility to the operation. However, if a conference has to be rescheduled several times, the directors have the authority to do so during route time. 60 Klein also acknowledged that while he included all conferences listed in Outlook, it is possible some may have been held and not scheduled in Outlook. He affirmed that the report is true and accurate [but] may not be complete Klein has participated in bargaining with the Union for at least 20 years. During that time, the Union has never submitted a proposal to modify the conference-for-the-record section of the Contract to conduct them during working hours Id Klein, as custodian of the records for the Department of Transportation, personally researched the data from each transportation center and provided his assurance that, to the best of their ability, the data is accurate as reported. 56 Tr. 141, Tr. 142 (6-11). See also EX EX-4 as to Conferences-for-the-Record only. 59 Tr Id Id. 169 (18-19) 62 Id

12 32. Allen stated that conferences-for-the-record held in the Office of Professional Standards (OPS) are no different from those held in a department with respect to scheduled time. Employees are provided release time to travel to the District Office to attend the conferences. 63 The conferences held at the OPS require the coordination of the schedules of several people and are scheduled back-to-back throughout the day. 64 Klein Challenged this testimony saying that there was no coordination of schedules, as Dr. Brown schedules six or eight conferences back-to-back at half hour intervals beginning at 8:30 a.m. and Klein is notified electronically. The 8:30 conference may interfere with a driver s schedule and the route would have to be covered by another driver but the majority of the conferences occur between the route times during non-work hours. Preliminary Matter Whether the arbitrator has authority to address the Union s requested remedy that the District cease and desist from the practice of scheduling conferences-for-the-record during the employees non-work hours. 65 The District objected to the requested remedy for this arbitrator to order the District to hold conferences-for-the-record during employees work hours. It is the District s position that this is not a class action grievance, this has not been certified to encompass all individuals in the bargaining unit, this is one particular individual that was filed on her behalf, and so to use that broad brush approach is improper based on this document (Grievance Form) alone. 66 Grievance Form G A10, the grievance filed in this matter, addresses the facts arising from Ms. Yajaira Avilez request to reschedule a conference-for-the-record originally scheduled for May 19, 2010 at 1:00 p.m. As the requested remedy, the Union specified that Avilez be made whole based on the existence of an established practice. The grievance form makes no reference to other employees and there is no indication this was a class action matter. Furthermore, there was extensive testimony by a Union witness that additional grievances addressing this issue had been filed on behalf of other employees and they were on hold in the 63 Id Id Id. 53 (19-21); 190 (1-5). 66 Id. 190 (20-25). 12

13 District Labor Relations Office. 67 In the absence of agreement by the parties, I lack authority to attach issues not placed before me for decision. While I believe it would have been prudent to combine the grievances as a class action matter, the fact remains that the parties did not. The plain language of the instant grievance does not request, as a stated remedy, that I order the District to hold conferences-for-the-record during employees regularly scheduled work time. However, whether or not there exists an established practice of conducting the conferences during the work day, the decision in this matter would impact other similarly situated employees. If there exists an established practice under the CBA, it would not apply solely to this Grievant. Likewise, if there were no established practice found for this Grievant, there could not be one for other similarly situated employees. The established practice of conducting transportation employee conferences-for-the-record on School District time either exists or it does not. Contentions of the Parties 68 The Union This grievance was filed by the Union on behalf of Yajaira Avilez for violation of the definition of Established Practice, Article 5 Section 15 of the Contract between Miami-Dade County Public Schools and AFSCME Local The Contract-provided definition of Established Practice reads "A practice which has gained general acceptance through use." The Union acknowledges that the requirement to hold conferences-for-the-record on School District time is not specified in the Contract. The Grievant experienced a couple of different incidents in 2010 when her director, Mr. 67 See generally Testimony of Joan Jones; UX Contentions of the Parties are provided as a summary and not a recitation of their respective positions. Whether or not cited herein, I reviewed and considered the merits of each issue and argument raised, as well as the testimonial and documentary evidence entered into the record. Objections on the record were reviewed with relative weight being assigned, as appropriate, to the evidence and testimony. Cases and statutes cited by the parties were given appropriate consideration. 13

14 14 AFSCME 1184 v. M-DCPS, Alex Miller, insisted on scheduling a conference-for-the-record during her non-working hours. Even after Mr. Miller was informed of the hardship this would create for her and her family, he continued to reschedule the conference-for-the-record during her non-working hours. Ms. Avilez is a single parent and a sole caretaker of her children, and this incident created a stressful period of time for her. The conference was subsequently conducted in her absence. A Union representative also did not attend. Unlike Mr. Klein's testimony that management would accommodate employees schedules, Mr. Miller capriciously refused to do so. These capricious actions by the District Transportation Department created a lot of hardship for the transportation workers, mostly bus drivers and bus aides. The Union acknowledged the fact that they were not entitled to relief based on the hardship issue, as there is no such language in the Contract. All other departments within the School District hold conferences-for-the-record during the employee s regular working hours. Until the past couple years, when the District made the change, the Transportation Department also held the conferences during working hours. The Union was never notified of this change and had no knowledge of the reasons why these changes came about. This issue was not brought to management earlier than this grievance or brought to the table for negotiations because there was no prior issue. Employees were accommodated on many occasions. Had there been a complaint raised by an employee earlier, the Union would have acted either through the bargaining process or by filing other complaints. Directors in some transportation centers accommodate employee rescheduling requests while others do not. Employees have asked the Union representatives to try to reschedule the conferences because they have family issues, educational pursuits, and other activities to deal with. Union witness Ms. Joan Jones had a similar situation with the same director, Mr. Alex Miller, who did not want to work with the employees. Although some employees may be

15 agreeable with attending the conferences-for-the-record during their off time, it is the testimony of the Union's witnesses that the established practice has been to hold the conferences within the working hours. Mr. Klein prepared and testified regarding Employer Exhibit Four referencing conferences-for-the-record. He stated that he could not be one hundred percent certain that this document is completely accurate. He testified the data was taken from a computer program and he's assuming all the conferences have been logged into the system. There is a possibility that there are many conferences-for-the-record that have not been included in this document. The Union would like to see a document that included everything to be a hundred percent sure of its accuracy. District witnesses testified that because of the budget crisis and shortage of staff, they felt they needed to hold these conferences during their working hours to be able to get these kids out to their schools. However, Mr. Klein also testified that holding the conferences during non-work hours has been the established practice. These two statements are inconsistent because if the practice existed in the past, it obviously wasn't done because of a budget crisis. The Union requests that the District be directed not to hold the conferences-for-the-record on employees off-duty time. The District The only Contract provision the Union has alleged to be violated is Article V, Section 15, the definition of Established Practice, which is not a term and condition of employment -- it's just a definition. Furthermore, the grievance is very vague. The Union did not file an alleged violation of Article 7, Grievance Procedures, including how to schedule a grievance hearing nor 15

16 Article XI, Disciplinary Action, Section 1, Due Process, regarding conferences-for-the-record, which is silent on how a conference-for-the-record needs to be conducted. Under Contract Article VII, Grievance Procedure, the language very specifically provides that the employee shall be granted released time with pay to attend formal proceedings, which are held during working hours. It does not say the proceedings shall be held during working hours, but if they are, employees will be granted released time with pay. It also provides that if the formal proceeding is extended beyond the employee's workday, the time spent shall not be considered time work[ed] and shall not be paid. 69 Although that speaks to the grievance process, the issue in the instant grievance concerns a conference-for-the-record with Ms. Avilez. Conference-for-the-record is covered under Article XI, Disciplinary Action, however the Contract is silent with regard to whether conferences-for-the-record shall be held during work or non-work hours, as opposed to the grievance process for which it is specified. The only Contract provisions regarding conferences-for-the-record are that the employee is given two days notice, a statement of the reason for the conference, and that a maximum of two union representatives may also attend. The Transportation Department has always endeavored to schedule grievance step hearings or conferences-for-the-record either right after a shift or right before a shift, to better accommodate the employees schedules. The complaint by the Union that non-transportation employees are treated differently is not valid because of the unique work schedules and duties of bus drivers and bus aides and the impact on students. Unlike other employees, for example custodians in a school, who could walk down the hallway and have a conference-for-the-record and go back to work, bus drivers work 69 Tr. 11 (10-12). 16

17 17 AFSCME 1184 v. M-DCPS, split shifts away from the physical plant and have non-work time between their bus route times. This means that if a conference-for-the-record is scheduled during work hours, not only the employee, but two additional representatives of the employee s choice, typically other bus drivers, must also be taken off their routes. This affects the times that children are picked up and impacts the educational program. The claim the Union was not notified regarding a procedural change in scheduling conferences-for-the-record is not valid, as there has been no change in practice. Additionally, even though this District is not required to do so, employees are paid for the time required to attend conference-for-the-record and grievance step hearings. The District objects to the request by the Union advocate that the arbitrator orders the District to hold conferences-for-the-record during employees' work hours. This is an individual, not a class action, grievance that has not been certified to encompass all individuals in the bargaining unit and so to use that broad-brush approach is improper. It is the District s position that the grievance is deficient and should be dismissed outright. The Union failed to meet its burden of proof. Their anecdotal evidence held that sometimes the District holds conferences-for-the-record during work hours and sometimes during non-work hours. Two Union witnesses testified that they had problems with their own individual conferences-for-the-record. However, the testimony of other witnesses, such as Mr. Haynes, was very vague. The Union didn't introduce any evidence to back up these very broad statements and it's their burden to do that. Although it is not the District s burden in an alleged Contract violation case, the evidence presented did prove there was no violation. First, Mr. Klein testified regarding Employer Exhibit Four, a very comprehensive list of the schedules for conferences-for-the-record and grievances.

18 18 AFSCME 1184 v. M-DCPS, This data proved it has been the practice of the District to hold conferences-for-the-record during the non-working hours. Admittedly there are exceptions, but exceptions do not create a past practice. Second, the Union requested the change in procedure for scheduling conferences-forthe-record in the year when the District was experiencing the worst financial period in recent memory. There was a shortage of available bus drivers due to a hiring freeze. Third, this is a pretty active work force with respect to discipline, conferences-for-the-record, and grievances. It requires a lot of time for management and the Union to handle all of these issues and to do so during work hours would adversely affect the education of students. Fourth, there was a lot of testimony about hardship. Ms. Avilez stated she had an issue with child care. Ms. Jones said she had an issue with her mother. Under the Contract, there is no provision that requires management to accommodate hardship. Even so, Ms. Avilez admitted that she never even tried to ask her babysitter to change her schedule. She also testified she worked the last three days of the school year, the Monday, Tuesday and Wednesday early release days, and had her mother watch her child, yet she refused to ask her mother to watch her baby so she could attend a conference. Ms. Avilez and the Union took it upon themselves to unilaterally decide they wanted the conference-for-the-record at 1:30, rather than 1:00 p.m. Fifth, the parties to a collective bargaining agreement cannot get through arbitration that which should be addressed at negotiations. If the Union believes this issue was important enough to try to change, they should bring it to the bargaining table. Sixth, the scheduling of conferences-for-the-record is a Managements Rights issue as set forth in the Contract at Article II, Recognition. It is specifically related to directing the work force and determining the methods, means, and number of personnel needed or desirable for carrying out the Board's missions. So not only is it not an established practice to hold these conferences-for-the-record during working hours, it is also

19 management's right to determine the best practice and means for holding the conferences-for-therecord so as not to interrupt the manner in which the District provides transportation for students. Basic arbitration case law provides that to demonstrate the existence of a past/established practice " it must be shown to be the accepted course of conduct characteristically repeated in response to the given set of underlying circumstances and is unequivocal, clearly enunciated and acted upon, and readily ascertainable over a reasonable period of time Furthermore, it is basic that a course of conduct is far less likely to be deemed accepted if such directly conflicts with the applicable Contract language found to have [plain meaning]. 70 The burden in this arbitration is on the Union to show there was a Contract violation and there was absolutely no evidence to support any of the allegations. The District proved that the practice was to hold conferences-for-the-record during non-working hours. Based on the testimony and the evidence, the District respectfully request that the grievance be denied. Analysis and Opinion The Union filed this grievance on behalf of Grievant Avilez citing the CBA at Article V Definitions,. The District correctly points out that the Contract section cited is a definition and not an expressed term and condition of employment. While the parties to the agreement defined the term as A practice which has gained general acceptance through use, the Contract is void of language specifying how it is to be interpreted or applied as affecting a term or condition of employment. If not intended as a term and condition of employment, then for what purpose was the language included in the Contract? It logically 70 Tr. 196 (10-18). 19

20 follows that, as the arbitrator selected to hear this matter, I am charged with the responsibility to provide the analysis. Accordingly, I will interpret the impact of the Established Practice definition on the terms and conditions of employment based of the following: Proof of custom and past practice may be introduced for any of the following major purposes: (1) to provide the basis of rules governing matters not included in the written contract; (2) to indicate the proper interpretation of contract language; or (3) to support allegations that the clear language of the written contract has been amended by mutual agreement to express the intention of the parties to make their written language consistent with what they regularly do in practice in the administration of their labor agreement. 71 Regarding conferences-for-the-record, the plain language of the CBA provides (a) the circumstances and employee behaviors that may lead to a conference, (b) that a conference-for-the-record in and of itself is not disciplinary in nature, but may lead to discipline, (c) the appropriate notice due to an employee prior to attending a conference, and (d) that the employee is entitled to Union representation at the conference. The issue that led to this grievance is whether the existence of an established practice has amended or supplemented the Contract language. It is possible that the actions of the parties can be interpreted to have supplemented the Contract language set forth in the above definition of established practice at (1) and/or (2). With respect to number one, the finding of an established practice could be interpreted to provide rules not included in the Contract that control the scheduling of conferences-for-the-record during regular work hours. With respect to number two, the existence of an established practice could be interpreted to demonstrate the intent of the parties to conduct conferences on regularly scheduled work hours. The District argues that the Grievance 71 Elkouri & Elkouri (2003) How Arbitration Works 6 th ed. (Washington, DC 2003) 20

21 should be dismissed as being invalid on its face, because the Contract speaks to AFSCME 1184 v. M-DCPS, conferences-for-the-record but the parties did not include a scheduling procedure. The District s position is rejected. Were that standard to be adopted, the Established Practice clause would have no meaning. Based on the same analysis, the District s argument that the Contract language governing the scheduling of grievances is evidence that the grievance should be dismissed is also rejected. Both of these arguments could appropriately be considered as factual arguments to rebut the Union s case, should they initially meet their burden. As cited by Elkouri & Elkouri: When it is asserted that a past practice constitutes an implied term of a contract, strong proof of its existence ordinarily will be required. 72 Many arbitrators have recognized that, In the absence of a written agreement, past practice, to be binding on both Parties, must be (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. Another commonly used formulation requires clarity, consistency, and acceptability. The term clarity embraces the element of uniformity. The term consistency involves the element of repetition, and acceptability speaks to mutuality in the custom or practice. 73 Having established that the grievance was properly filed based on the Established Practice provision of the CBA, the Burden of Proof will be analyzed. In a contract interpretation case, the party bringing the grievance typically has the initial burden of 72 Id Id

22 proof. At the arbitration hearing, the Union presented its case first, thereby agreeing it had the burden to prove its case. I have established the burden of proof to be by the preponderance of the evidence. This standard is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence. Thus, one clearly knowledgeable witness may provide a preponderance of evidence over several witnesses offering vague testimony. 74 Analysis of Union s Case-in-Chief The Union made several arguments in support of its grievance that an established practice existed with respect to conducting conferences-for-the-record during regularly scheduled work hours. Through testimony of the Grievant and Union representatives, the Union devoted a significant portion of its case attempting to establish that the efforts by the District to schedule a conference-for-the-record during non-work hours created stress and resulted in a burden on Avilez, because she was required to care for her infant child at that time. Assuming arguendo that the District would provide an accommodation when a scheduled conference created a burden for an employee, the Grievant testified she had another available babysitter option used on school early dismissal days that she did not attempt to employ, nor did she request to have the conference rescheduled for one of the days when the alternate babysitter was already on duty. She also admitted she did not ask her regular babysitter to arrive early so she could attend the scheduled conference. The Union later acknowledged the District was not obligated to provide 74 Law.Com, Search Legal Terms and Definitions (2012) 22

23 schedule accommodations based on an employee s claimed burden. I have subsequently reviewed the CBA in detail and confirmed there are no provisions for the District to provide schedule accommodations due to alleged claims that the schedule created a burden. Therefore, that issue is rejected without further analysis. The Grievant claimed to not know whether a conference-for-the-record is regarding something serious and, for example, could lead to discipline. She also denied ever having previously attended a conference-for-the-record. This testimony was impeached when evidence was produced to confirm she had previously attended a conference on April 16, The subject of the 2008 conference was very serious and it is not reasonable to believe that Avilez would not have known in 2010 that a conference-for-the-record might address a serious matter that could lead to discipline. She also identified her signature on a document directing her to appear for a conference-for-the-record on April 17, 2008 at 9:45 a.m. Based on the evidence presented at the hearing, it is more likely than not that this conference was held during non-work hours. Union representatives made several acknowledgements. First, a conference-for-therecord is a serious matter that could lead to discipline. Second, other employees, such as custodians are not similarly situated in that they do not require a substitute employee in order to attend a conference. Third, employees attending conferences for the record on their personal time have been compensated for the time, although there is no contractual provision requiring payment. Fourth, there is no contractual requirement to hold conferences-for-the-record during regular work time. Fifth, there was a hiring freeze resulting in a shortage of drivers in 2010 when the Grievant s conference was scheduled. 23

24 24 AFSCME 1184 v. M-DCPS, The District rebutted Union testimony that there are fifteen percent additional drivers that just sit around. In 2010, when the grievance was filed, there was a hiring freeze and the District was operating with a shortage of 100 drivers. The District also rebutted Union testimony that there were about 12 standby drivers at the Grievant s work location, testifying there are only 56 routes at that center and about four substitutes that are needed to cover when regular drivers report off. Even if there were 15 percent more drivers that were identified as the District s goal, there would be a maximum of eight substitute/standby drivers available. Union Representative Allen testified that from day one the practice has been that transportation and every other department attended conferences on School District time, but acknowledged he had no documentation to support the claim. Allen identified three conferencesfor-the-record that he said were held during employees regular work schedules. He then admitted that he had firsthand knowledge about only one of the conference times and was making assumptions about the other two. Other Union witnesses also testified that conferences-for-the-record were always held on School District time. However, with the exception of one instance where the Union testified that a specific conference-for-the-record was held during School Board time, their testimony was anecdotal in nature. The Union didn't introduce documentary evidence to back up these very broad statements and it is their burden to do that. Had the Union met its burden, the District would have had the obligation to attempt to rebut the Union s evidence. Because the Union did not meet its burden, the District s evidence need not be examined in detail. While the District s case is set forth in the Findings of Fact, I shall comment only generally about their evidence. Transportation Director Klein provided credible testimony and produced documentary evidence. Employer Exhibit Four, a