COMMONWEALTH OF PENNSYLVANIA Department of Labor and Industry Bureau of Mediation

Transcription

1 Timothy J. Brown, Esquire Arbitrator P.O. Box 332 Narberth, PA COMMONWEALTH OF PENNSYLVANIA Department of Labor and Industry Bureau of Mediation Wyoming Area Education Support : Personnel Association : : : And : Grievance : (Rosalie Schultz) : Wyoming Area School District : Appearances: On behalf of Wyoming Area Education Support Personnel Association; John G. Audi, Esquire PSEA Legal Division 1188 Highway #315 Wilkes-Barre, PA On behalf of Wyoming Area School District; Paul N. Lalley, Esquire Levin Legal Group 1301 Masons Mill Business Park 1800 Byberry Road Huntingdon Valley, PA Decision and Order Summary of decision: For the reasons stated in the following Decision, the subject grievance is GRANTED. Dated: October 29, 2007 Timothy J Brown, Esquire Arbitrator 1

2 I. Introduction This arbitration arises pursuant to a July 1, 2004 to June 30, 2009 collective bargaining agreement between the Wyoming Area School District (the District) and the Wyoming Area Educational Support Association, ESPA-PSEA-NEA (the Association). In November of 2006 the Association filed a grievance (referred to herein as the November 2006 Grievance) under the grievance procedure in the Collective Bargaining Agreement asserting that Rosalie Schwartz (Grievant) was assigned certain Tenex System data entry work that was not within her Level 1 Secretary job description. At the second step of the grievance procedure the Association and District Superintendent resolved the November 2006 Grievance by agreeing that certain work would be transferred from Grievant and reassigned to another bargaining unit employee. In the instant grievance the Association contends that a February 21, 2007 memorandum issued by the District moving the disputed Tenex System work back to Grievant violated the parties settlement of the November 2006 Grievance. The parties were not successful in their efforts to resolve the instant grievance through the formal steps of the Grievance Procedure contained in their Bargaining Agreement and selected the undersigned through the procedures of the Pennsylvania Department of Labor and Industry, Bureau of Mediation to conduct a hearing on the grievance and render a final and binding arbitration award. The matter was heard on September 24, 2007 in Exeter, Pennsylvania. All parties were afforded the opportunity for presentation of opening statements, calling of witnesses, the introduction of relevant exhibits and presentation of written closing argument. Upon the receipt of post-hearing briefs from the parties the dispute was 2

3 deemed submitted on October 11, This Decision and Award is made based upon careful consideration of the entire arbitration record in the matter. II. Issues The parties stipulated that; (1) there are no procedural issues presented in this matter, (2) the matter is properly before the Arbitrator for determination and (3) the issue(s) to be resolved herein may be stated as follows: Did the District s requiring Mrs. Rosalie Shultz (Grievant) to enter Tenex student information concerning certain elementary school students following the District s Agreement resolving her prior grievance violate the terms of the grievance settlement, and if so what shall be the remedy? If a violation is found, the parties further agreed that the remedy would be to have the duties transferred away from Mrs. Schultz and assigned to the appropriate personnel. stipulations: Joint Exhibits and Stipulations The parties submitted the following Joint Exhibits and entered into the following Joint Exhibit 1 The 2004 to 2009 Collective Bargaining Agreement. The Grievance procedure contained in the Bargaining Agreement includes four steps, or Levels. The District is represented at Level One by the employee s supervisor, at Level Two by the District Superintendent and at Level Three by the Board of Education. Level Four of the procedure is arbitration. The language of Level Two provides: If the grievant(s) is not satisfied with the disposition of the grievance at Level One, the grievant shall file a written appeal with the superintendent within five (5) work days of the Level 3

4 One disposition. Such appealed grievance shall be discussed at a mutually convenient time between the Superintendent, the Association s representative and the grievant(s) and said meeting shall be held within five (5) working days of the date of the submission of said grievance in writing to the Superintendent. The Superintendent or his designee shall file a written decision within ten (10) calendar days after the meet and discuss session. Joint Exhibit 2 The Grievance Report Form for Grievance Number (The Grievance at issue herein.) In relevant part the grievance asserts; the District violated the settlement agreement of grievance Joint Exhibit 3 The Grievance Report Form for Grievance Number The November 2006 Grievance asserts that the District failed to assign certain tasks as required to an employee in a Level 1 District Elementary Secretary position, and that as a result, the tasks were assigned to Grievant who was not being compensated to perform the additional tasks. Grievant holds the position of Level 1 Secretary Full-time. The Grievance Form reflects the following January 2, 2007 disposition of the grievance at Level Two of the Grievance procedure by District Superintendent Raymond Bernardo: The duties and responsibilities that will be relieved are: contact WSVT to order homeroom lists and mailing labels, etc. to be distributed to each elementary office in the summer as well as receive all up-dated scans when school is in session. The grievance form reflects the following Union response to the Superintendent s disposition: The Association agrees with the Superintendent s decision that effective immediately the duties and responsibilities listed will be assumed by the district elementary secretary. The grievance is being dropped without prejudice. 4

5 The parties Stipulated that the intention of the Association and the District s Superintendent as well as Elementary School Principle Janet Scrino in entering the Settlement of the November 2006 Grievance was that Grievant would do withdrawals and entrees of elementary students on the Tenex System and that bargaining unit employee Ann Marie Perente, the Elementary School Secretary, would be responsible for handling all other changes on the Tenex System for such students Joint Exhibit 4 A Memorandum dated January 3, 2007 regarding Duties from District Superintendent Raymond J. Bernardi to Ann Marie Parente stating: As part of your duties as District Elementary Secretary, you are to contact the WSVT to order homeroom lists and mailing labels, etc. to be distributes to each elementary office in the summer as well as receive all up-dated scans when school is in session. A note at the bottom of the memorandum in the handwriting of Parente states: This is the directive I rec d from Ray. How can I do this! Never trained. The parties stipulated that Parente was given a raise to assume additional responsibilities, part of which was the Tenex data entry. Joint Exhibit 5 A February 21, 2007 memorandum, from District Superintendent Bernardi to Grievant regarding Duties and stating: Please be advised that you are to continue to input the data in the Tenex System for all elementary student transfers within the District or within the buildings. 5

6 Joint Exhibit 6 An authorization form completed by the District s Elementary School principle for Ms. Parente to use the Tenex System. Joint Exhibit 7 The job description for a Level 1 Secretary; the position held by Grievant. The Duties and Responsibilities portion of the Description provides in its totality: - Types, prepares, distributes and files records/reports, correspondence, mailings etc. related to office function - Takes and transcribes notes for correspondence - Makes and receives telephone calls, takes messages, routes calls. Communicates with principal and/or supervisor, parents, teachers, students and general public regarding information, requests and concerns. Requires discretion. - Opens and distributes mail - Greets visitors - Maintains accurate school records and files - Performs bookkeeping tasks associated with position if required - Performs essential tasks required f the office function, such as: maintaining student records, maintaining student transportation records, issuing work permits, PA system announcements, assisting with PTO projects, contacting media and municipalities regarding school closing/early dismissals,, maintaining employee absentee records, substitute calling and assisting students etc. - Keeping appointment calendar for principal and/or supervisor and arranges conference and interview schedules - Compiles and inputs school data into spreadsheet or other computer programs used by District - Maintains a schedule of building events, including field trips and inservice activities - Orders supplies as needed and keeps a record of items ordered and received - Operates building copier and other office equipment - Serves as back up for other staff members as needed - Performs all duties with awareness of all School District procedures ad policies - Maintains confidentiality - Assumes any other responsibilities as assigned by the principal and/or supervisor or designee 6

7 Joint Exhibit 8 The job description for a Level 1/District Elementary Secretary; the position held by Ms. Parente. The Duties and Responsibilities portion of the Description, among other things, provides: - Contact Voc. Tech. to order all homeroom lists, mailing labels, etc. to be to be distributes to each elementary office in the summer as well as receive all up-dated scans when school is in session or any other materials each elementary secretary might need for their office. V. Positions of the Parties The Association The Association contends that the January 21, 2007 reassignment of the Tenex System work at issue back to Grievant violated the parties settlement of the November 2006 Grievance. The language contained in Level Two of the Grievance procedure states that the Superintendent is authorized by the School District to bind the School District at that Level, the Association asserts. To allow the School Board the discretion to refuse to recognize the binding nature of the agreements entered into by it authorized agent, the Association argues, would make a sham out of the entire grievance procedure. Grievance processing is part of the bargaining obligation and agreements reached through such a bargaining process, the Association maintains, should be given the same weight as the parties collective bargaining agreement. To not recognize the validity of a grievance settlement is effectively withdrawal of recognition of the Union. Finally, the Association concludes, the law is well settled that School Districts in Pennsylvania are bound by the grievance settlements entered into by their authorized representatives. As a result, the 7

8 District should be required to comply with the terms of the November 2006 Grievance Settlement. The District The District asserts that nothing in the Bargaining Agreement language cited by the Association concerns the assignment of job duties between members of the recognized bargaining unit. In the instant matter, the Association maintains, Grievant has always performed the Tenex work at issue and only upon the creation of a new District Elementary Secretary position in the autumn of 2006; the position held by bargaining unit member Parente, did Grievant begin to claim that some of her Tenex work should be transferred to Parente. Even if the Association wins its grievance herein and receives the remedial order it seeks, The District argues, Grievant would nonetheless continue to perform some of the Tenex work. There is nothing in the agreement or the specific terms of the Level Two disposition that prohibits the School Board from assigning specific work duties among the members of the bargaining unit. The School Board ultimately has the authority over the affairs of the School District, including the assignment of duties to District personnel, the District concludes. VI. Discussion Contrary to the District s argument, this matter is not about the District s ability to assign work to its employees. Rather, the issue presented here is whether the District entered a bona fide grievance settlement and if so, whether the District should be bound by such a settlement. Based upon my full consideration of all of the evidence and 8

9 argument offered by the parties and a careful reading of the Bargaining Agreement, I find that in the instant matter the District violated the terms of the Bargaining Agreement by failing to comply with the terms of its grievance settlement with the Association. The District Agreed that the Superintendent has Authority to Resolve Grievances on Behalf of the District It is well recognized that the processing of Grievances by parties to a collective bargaining agreement is an extension of collective bargaining. Collective bargaining must be performed in good faith; a duty enforced by statute. Here, the parties have by agreement determined that such good faith grievance processing will be conducted by their respective representatives. Specifically, the provisions of Article II, Section C of the Agreement reflects the District s agreement that the District s Superintendent has the authority to resolve grievances at Level 2 of the grievance procedure. Considering that the grievance and settlement at issue here neither implies a substantive change to the terms of the Bargaining Agreement itself nor violates any statute, law or public policy, I find that the Superintendent had the authority to enter the settlement of the November 2006 Grievance on behalf of the District. The Settlement of the November 2006 Grievance was a Valid Agreement There is no evidence in the record suggesting that the parties Settlement of the November 2006 Grievance was based upon fraud or mistake. The issues presented in the November 2006 grievance were suitable for processing through the grievance procedure and the terms of the Settlement are sufficiently clear to guide the parties in the future, 9

10 particularly in view of the stipulated testimony that the parties intended the settlement to include the Tenex System inputting at issue in the grievance. Considering the settlement agreement was entered into by authorized representatives of the parties within the context of processing a grievance through the grievance procedure contained in the parties Bargaining Agreement, I find that the settlement of the November 2006 Grievance is a valid, enforceable agreement. Although the District, through its School Board, may have determined after-thefact that it was not satisfied with the resolution of the November 2006 Grievance worked out by its representative, such does not change the fact that the District agreed to, and is bound by, the settlement. Important and well established considerations of law and public policy support the use of grievance procedures to address and resolve grievances that arise under collective-bargaining agreements. Failure of the parties to recognize the legitimacy of their grievance settlements and re-litigation of grievances already resolved by the parties would tend to undermine the parties bargaining relationship, the Collective Bargaining Agreement, and important underlying public policies. The District s February 21, 2007 memorandum to Grievant requiring that she continue to input the data in the Tenex System for all elementary student transfers within the District or within building constituted a failure by the District to give effect to the bona fide settlement of the November 2006 grievance. The District s conduct in this regard is inconsistent with its bargaining obligation and violates Article II of the Bargaining Agreement. 10

11 Conclusion Having found that the District violated the Agreement by failing to comply with its settlement of the November 2006 Grievance, I shall order that within ten work days of the date of this Decision the District (1) rescind its February 21, 2007 memorandum to Grievant, and (2) give effect to the terms of the parties settlement of the November 2006 Grievance. Said terms to include the original understanding of the parties that: (A) the duties and responsibilities that will be transferred from Grievant and assigned to the appropriate personnel are: and contact WSVT to order homeroom lists and mailing labels, etc. to be distributes to each elementary office in the summer as well as receive all up-dated scans when school is in session, (B) that Grievant will do withdrawals and entrees of elementary students on the Tenex system and will not be responsible for handling all other changes on the Tenex System for such students. I shall retain jurisdiction over this matter for purposes of remedy only for a period of 60 calendar days. Dated: October 29, 2007 Timothy J Brown, Esquire Arbitrator 11

12 COMMONWEALTH OF PENNSYLVANIA Department of Labor and Industry Bureau of Mediation Wyoming Area Education Support : Personnel Association : : : And : Grievance : (Rosalie Schultz) : Wyoming Area School District : Order Having found that the District violated the Agreement by failing to comply with its settlement of the November 2006 Grievance, I hereby ORDER that within ten work days of the date of this decision the District shall: Grievant, and (1) Rescind its February 21, 2007 memorandum regarding Duties issued to (2) Give effect to the terms of the parties settlement of the November 2006 Grievance. Said terms to include the original understanding of the parties that: (A) The duties and responsibilities that will be transferred from Grievant and assigned to the appropriate personnel are: and contact WSVT to order homeroom lists and mailing labels, etc. to be distributes to each elementary office in the summer as well as receive all up-dated scans when school is in session, 12

13 (B) That Grievant will do withdrawals and entrees of elementary students on the Tenex System and will not be responsible for handling all other changes on the Tenex System for such students. I shall retain jurisdiction over this matter for purposes of remedy only for a period of 60 calendar days. Dated: October 29, 2007 Timothy J Brown, Esquire Arbitrator 13