ARBITRTION DECISION PERRIS ELEMENTARY TEACHERS ASSOCIATION AND PERRIS ELEMENTARY SCHOOL DISTRICT OPINION AND AWARD CSMCS Case No. SARB-15-0007 Date: May 17, 2016 OPINION AND AWARD OF THE ARBITRATOR Arbitrator Dennis J Smith Appearances California Teachers Association Ken Johnson, Regional Uniserv Staff Perris Elementary School District John W. Dietrich, Atkinson, Andelson, Loya, Ruud & Romo
PROCEDURAL MATTERS The parties pursuant to the parties Collective Bargaining Agreement from a list provided by the California Mediation and Conciliation Service selected the Arbitrator, Dennis J Smith. Ken Johnson Regional Uniserv Staff, San Bernardino Regional Resource Center, 430 Vanderbilt Way, San Bernardino, and Ca 92408 represented the Union, the California Teachers Association. John W. Dietrich, of the Law Firm Atkinson, Andelson, Loya, Ruud & Romo, 3450 14th Street, Suite 420, Riverside, California 92501, represented the Employer, the Perris Elementary School District. A hearing in this matter was held in Perris, California on January 21, 2016. The parties provided for a court reporter and the Arbitrator was provided with a verbatim transcript for use in reaching a decision in this case. At the hearing the testimony of witnesses was taken under oath and the parties submitted substantial documentary evidence. The Arbitrator received the post-hearing briefs electronically on April 15, 2016, at which the Arbitrator sent time a copy to the opposing party. The record for the hearing was closed on April 15, 2016. ISSUE The parties each submitted issue statements at the beginning of the hearing. Since the parties were unable to agree upon a joint issue they agreed that the Arbitrator would frame the issue. The Union stated the issue as: 1 - Did the District violate Article 2, Article 7, or Article 18 of the Collective Bargaining Agreement (CB) when it refused to pay members of the same unit equal pay for comparable work even after establishing a past practice? 2 - if so, what shall the remedy be?
The Employer stated the issue as: 1 Is the grievance untimely? 2 Does the grievance properly allege a contract violation? 3 if the answer to question 2 is yes, is there a remedy 4 If the answer to question 3 is yes, what is that remedy? RELEVANT CONTRACT ARTICLES ARTICLE 2 Recognition ARTICLE 4 District Rights ARTICLE 5 Association Rights ARTICLE 13 Grievances ARTICLE 18 Compensation and Benefits ARTICLE 25 - Committees ISSUE TO BE DECIDED BY THE ARBITRATOR 1 Is the Grievance properly before the Arbitrator? 2 If so, did the District violate the Collective Bargaining Agreement between the Parties? 3 If so, what is the remedy? JOINT EXHIBITS JOINT EXHIBIT 1 Collective Bargaining Agreement between the Parties JOINT EXHIBIT 2 Union Grievance forms (previously identified by the Union as their Tab #)
DISTRICT EXHIBITS DISTRICT # 1 Email dated 5-3-13 DISTRICT #2 Email dated 9-27-13 DISTRICT #3 Email dated 3-19-14 DISTRICT #4 Meeting minutes dated 3-19-14 UNION EXHIBITS Union #1 Units of Study Union #2 Sign-In sheets Prior to addressing the merits of the grievance is necessary to decide whether this case is properly before the Arbitrator. The District raised an timeliness issue, arguing that the grievance was filed outside of the 30 day timeframe set forth in the CBA. If it is decided that the grievance was not timely, and that the case is not properly before the Arbitrator, no decision will be made on the merits of the grievance. The District has raised two issues concerning whether this grievance is properly before the Arbitrator. The first issue raised is that the grievance was filed untimely, in violation of the Collective Bargaining Agreement, and thus, is non-arbitrable. Article 13 of the Collective Bargaining Agreement between the parties states: Levels of Grievances Timeline all grievances mu be initiated within 30 days from the date the Unit Member knew or should have know of the even giving rise to the grievance. Informal Level Before filing a formal written grievance, the grievant or Association shall attempt to resolve it by an informal conference with the grievant s immediate supervisor. The grievance procedure goes on to outline the steps that follow; however, it is the initial filing that the Employer is contesting. Of course any subsequent steps in the
grievance procedure up to and including Arbitration are only valid if the grievance was filed properly in the first place. The Grievance In May 2015 the union filed the present grievance. Prior to that date the Union had never filed a grievance concerning the Curriculum Council. At the time the Union filed its grievance, the Curriculum Council had been formed and paid the hourly rate for extra duty assignments for approximately two years. (HT 124:14-16; District Exhibits 1 and 2.) The grievance alleged violations of Article 2, 7 and 18 of the CBA. The grievance further alleged violation of all other applicable articles of the Collective Bargaining Agreement. Union Grievance Chair David Yantis stated he filed the grievance at the first level on May 14, 2015. He testified that he believed the alleged violation date occurred on March 25, 2015 when the Union executive team met and discussed concerns about equal pay for work as it relates to the Curriculum Council. Position of the Union as to Timeliness The Union argues that the District presented no meaningful evidence to show that the grievance was untimely. Yantis provided significant detail regarding the filing process the related timelines, commensing with the Informal level. The District s only argument surrounding the issue of timeliness seemed to be that the grievance is untimely because the Union had knowledge that the Curriculum Council existed in 2013, and there is no evidence to show that a grievance was filed at that time. That argument is irrelevant as the Union reserves the sole authority and right to file grievances, as it deems necessary to fulfill its Fair-Representation Duty. The grievance that ultimately led to this arbitration was filed in a timely manner. Breyer indicated that she received calls from teachers who were creating Math and Language Arts Units of study, who in
her words. Felt as though there was a discrepancy between the pay for the same job being done The Union then immediately file the grievance. Position of the District as to Timeliness The most glaring issue with PETA S grievance is that it is untimely. Therefore, it must be denied in its entirety. Where a collective bargaining agreement clearly limits the time within which a grievance over an employer s alleged contract violation must be filed, a grievance submitted out of time must be declared non-arbitrable. Article 13 of the CBA establishes a clear deadline for initiating a grievance. Specifically, if the grievant is PETA it must initiate a grievance within 30 days from the date it knew or should have known of the event giving rise to the grievance. At the hearing, Jean Marie Frey testified that the Curriculum Council was formed in May 2013. As such, the District argues a grievance should have been filed no later than approximately June or July 2013. Since it was not filed until May 2015, it is clearly untimely by the procedure set forth in the Collective Bargaining Agreement. The overwhelming evidence from both the District and PETA establishes that the present grievance was initiated far beyond the 30-day deadline provided in Article 13. On this basis alone, the grievance is untimely and should be denied. Discussion as to the Timeliness Issue At first glance, it appears that the filing of the grievance by the Union was beyond the 30-days set forth in the CBA, and as a result would non-arbitrable. The Collective Bargaining Agreement requires that the grievance be filed within the time frame that was agreed to by the parties in negotiations. As in this case, the Arbitrator must decide the timeliness issue when it is raised a threshold issue.
In this case, while the District argues that the grievance was untimely and should be dismissed, the facts in evidence and the majority of arbitral authority are to the contrary. (See Labor and Employment Arbitration, Bernstein, Gosline and Greenbau, How Arbitration Works, BNA Matthew Bender, and Fairweather s Practice and Procedure in labor Arbitration.) Although a belated filing of a grievance under the terms of a collective bargaining agreement may lessen the retroactive remedy, pay claims invoke a continuing violation theory that holds that each alleged improper payment constitutes a separate violation of the contract that starts anew the grievance filing period. The principle of continuing violation ordinarily applies in cases where a union wish to grieve allegations of on-going contract violations, some of which occurred within the applicable grievance-filing time period, and others of which may have occurred in the past, outside of the filing period, but had not been grieved by the union. Such cases may even include alleged improper payments of wages or benefits to employees that have gone on for a long period of time, even years. Arbitrators tend to agree that such cases constitute continuing violations and that each new paycheck raises a new opportunity for the union to grieve the improper payment of wages. Had the incident giving rise to this grievance been a one-time occurrence, I would, without hesitation, rule that the grievance was untimely and thus, nonarbitrable. However, after careful review of the evidence presented, it is my opinion that not only was it not a one-time occurrence, it was a continuing occurrence. Each and every time that the District made payments to the Art Teachers, which differed as compared to those teachers serving on the Curriculum Council, there was the possibility of a new violation. Many arbitrators have held that continuing violations of the agreement (as opposed to a single isolated and completed transaction) give rise to continuing grievances in the sense that the act complained of may be said to be repeated, with each act being treated as a new occurrence. (See Elkouri and Elkouri, How Arbitration Works, Sixth Edition, Bureau of National Affairs, Inc. (2003).
The District also argued that the grievance lacked the necessary specificity and, that also, makes the grievance non-arbitrable. A grievance is not a pleading at law. If, on its face, it provides sufficient information for the employer to respond, it is sufficiently specific. The grievance that was filed by the Union s grievance chair, Mr. Yantis was sufficient to allow the Agency to evaluate and remedy any alleged violations. As such, I reject the District s argument. FINDING AS TO TIMELINESS ISSUE, AND ARBITRABILITY ISSUE 1 - It is my finding that this grievance is one of a continuing nature. 2 The May 2015 filing of this grievance is timely only concerning any possible contract violations by the District within the 30 days immediately prior to the filing of the grievance. 3- should there be a finding in favor of the Union, and if there is any monetary award from the merits of the grievance, it will be limited to the 30 days immediately prior to the filing of the grievance. 4 The Grievance is properly before the Arbitrator as set forth above. SUMMARY OF THE UNION S POSITION AS TO MERITS OF THE GRIEVANCE The Curriculum Council existed in the Perris Elementary School District since May 2013. Teachers were initially paid a per diem rate of pay to plan Units of Study. At some point, the District changed the practice of per diem compensation for teachers who created Math and English/Language Units of Study and structured the planning in a manner that created an inequitable system of compensation. While the Art teachers who created Units of Study continued to be paid their per diem rate of pay for planning Units of Study, the teachers who created ELA and Math Units of Study were paid at a rate of $30 per hour. The evidence showed that:
1 The work required to plan and prepare Art UOS was no more than the work required to plan unit s o study for Math and ELA UOS. 2 The Curriculum Council created by the District does not meet the criteria for a District Committee as outlined in the Collective Bargaining Agreement. 3 Members of the Curriculum Council were initially paid a per diem rate of pay before the District changed the rate of pay and, 4 The rate of pay for the Curriculum Council Teachers was never negotiated with, or agreed upon by the Union. SUMMARY OF THE DISTRICT S POSITION AS TO THE MERITS OF THE GRIEVANCE The District did not violate the Collective Bargaining Agreement. The evidence and testimony presented indicate that teachers were compensated in accordance with Article 18 of the CBA for time spent undertaking Curriculum Council activities outside of their contractual workday. The Union s argument that the Curriculum Council members did not receive equal pay for work rendered by art teachers is a red herring designed to obfuscate this truth; even then, the premise is false considering that the art teachers were paid in the exact same manner. Overall, the Union did not establish a violation of any portion of the CBA. The Union may also try to argue that the Curriculum Council is not a District committee within the meaning of the CBA, and therefore Article 18 does not apply to service performed in furtherance of Curriculum Council activities. This fails as the Curriculum Council is clearly a District committee within the meaning of Article 25 of the CBA, which reads in relevant part: District committees that address issues of concern or interest of the bargaining unit (such as, but not limited to those that address interview, safety, budget, curriculum
and health and welfare issues) shall include at least one unit member. The unit member(s) shall be appointed from a list of unit members provided by the Association President, or designee, to the Superintendent. Teachers will be paid at a rate of $30.00 per hour, when such time is spent service on District committees and work study groups outside of the contractual workday. The Union s argument that Art Teachers have been paid a higher rate than Curriculum Council Members for Equal Work is inaccurate and inapposite. The Union argued that the catalyst for the present grievance is that art teachers have been paid a higher rate for the same work performed by Curriculum Council members DISCUSSION In the instant grievance, since the Union was the moving party by filing this grievance, it bears the burden of proof to show that the District violated the Collective Bargaining Agreement. Since I have already ruled on the arbitrability issue earlier in this decision, I will now address the merits of the grievance. The first issue that must be addressed is whether the Curriculum Council is considered a District Committee as set forth in Article 25 of the Collective Bargaining Agreement. ARTICLE 25 COMMITTEES District Committees that address issues of concern or interest of the bargaining unit (such as, but not limited to those that address interview, safety, budget, curriculum (emphasis added) and health and welfare issues) shall include at least one unit member. The unit member(s) shall be appointed from a list of unit members provided by the Association President, or designee, to the Superintendent. Teachers will be paid at a rate of $30 per hour, when such time is spent serving on District committees and work study groups outside of the contractual work day (Article 18).
The Union argues that the Curriculum Council is not a District Committee because it is not listed as such in Article 25 of the CBA. The Union s argument is since it is not a committee, the Teachers on the Curriculum Council have not been paid in the correct manner. The District argues that although it is not specifically listed, it meets the definition of a District Committee as outlined in Article 25. District Committees that address issues of concern or interest of the bargaining unit (such as, but not limited to those that address interview, safety, budget, curriculum. District witness, Ms. Frey, who was a member of the District s bargaining team when Article 25 was negotiated, testified that the Curriculum Council is a District Committee. She testified that the list of District committees identified in Article 25 is not an exhaustive list, since it would be impossible to create such a list. District Counsel argues that even one of the Union witnesses, Ms. Breyer, testified that in her opinion the Curriculum Council is a District Committee. In looking at the language in Article 25, it would appear that since the Curriculum Council address curriculum it would meet the definition of a District Committee. When language in a negotiated agreement is not clear, Arbitrators are often required to depend on testimony and evidence concerning the intent of the parties when the CBA was negotiated. In this case, Ms. Frey testified that committees listed in Article 25 were not an exhaustive list. Her testimony was the only testimony by anybody on either of the negotiating teams, and is at least deserving some weight in this case. The Union offered no evidence of testimony from anybody involved in the negotiations to the contrary. What further complicates the Union s position is that when the Curriculum Council was established, the Union s President served on it. No evidence was presented that the Union objected to, or filed any action at that time.
The Union feels that the manner in which Art Teachers have been paid was significantly different than how teachers on the Curriculum Council have been paid. I reject this argument due to the fact that the work in developing the curriculum by the Art Teachers was done during their normal hours of duty. In making this finding, I have purposely not addressed whether one group of teachers had a more difficult task than the other. That issue was not before me. Based on the testimony and evidence presented by the parties, it is my finding that the Curriculum Council meets the definition of District Committee as set forth in the Collective Bargaining Agreement. I also find that, because of the duration of its existence, with the knowledge of both parties, a Past Practice between the parties has been established which recognizes the Curriculum Council as a District Committee.
AWARD The Award in this case is as follows: 1 This Grievance was properly before the Arbitrator 2 The District did not violate the Collective Bargaining Agreement when it paid teachers on the Curriculum Council at the rate of $30 per hour for work done outside of the instructional day, and Art Teachers their regular pay for work done during normal duty hours. 3 The grievance is denied. Original signed May 17, 2016 DENNIS J SMITH Arbitrator DATED