BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 1397, AFSCME, AFL-CIO
THE SCHOOL DISTRICT OF SUPERIOR
(Grievance of Janet White)
Mr. James Mattson, Staff Representative, Wisconsin Council 40,
1701 East Seventh Street, Superior, Wisconsin 54880, appeared on behalf of the Union.
Mr. Kenneth Knudson, Hendricks, Knudson, Gee and Hayden,
Attorneys at Law, 1507
Tower Avenue, Suite 312, Superior, Wisconsin 54880, appeared on behalf of the District.
On May 27, 1997, the Wisconsin Employment Relations Commission received a
request from Local 1397, AFSCME, AFL-CIO to provide an arbitrator to hear and decide
a matter pending between the Union and the School District of Superior. Following
jurisdictional concurrence, the Commission appointed William C. Houlihan, a member of its
staff, to hear and decide the grievance. Hearing on the matter was scheduled and postponed
on four different occasions. Ultimately, a grievance arbitration hearing was held on
September 10, 1998, in Superior, Wisconsin. At the conclusion of the evidentiary hearing,
the parties made oral argument and rested.
This arbitration addresses the right of Janet White, the grievant and a bus driver, to
exercise her seniority rights to claim a co-curricular bus route.
BACKGROUND AND FACTS
The facts underlying this dispute occurred on December 15, 1996. On that day,
driving her regular morning bus route, Janet White, the grievant, heard a radio call for a
driver to make a co-curricular run the next day. This run, the Northland run, was an
assignment to shuttle certain students from the senior high school to Northland. The
assignment constituted a 10 to 15-minute drive, and was available due to the anticipated
absence of the regular driver. Ms. White radioed the dispatcher that she was available and
willing to take the run. In response, she was told that she would not be assigned the run
because she was not a city driver. Ms. White's normal regular route ended at the school
where the co-curricular route began. Had she been assigned the run, it would have resulted
in a 30-minute layover. The route was offered to senior city drivers. The driver who took
the route had less seniority than did Ms. White, and a shorter layover.
The District maintains a seniority list which is divided into three subgroups. The
constitutes rural route drivers, and is a list of 26 individuals. The second constitutes
drivers, and is a list consisting of 6 individuals. The third is a two-person list of
bus operators. Bargaining unit members are listed in order of their seniority date under each
of the respective lists. The Superior School District consists of a large geographic area,
including the city of Superior and the area surrounding the city. Regular bus routes are
assigned by seniority. City and rural routes are filled separately. The pool of drivers
as a result of the "10-mile rule". Article 7, Section 5, set forth below defines the various
routes, the 10-mile rule, and the bidding procedure for the seniority filling of those routes.
In addition to the contractually-described morning run, there is a second morning run.
That bus run is not addressed specifically by the collective bargaining agreement. The
morning run occurs following the first runs, and is used to pick up elementary school
whose day begins later than the high school and/or junior high school day. The second run
is filled by seniority, irrespective of city/rural status. All drivers are in the city upon
completion of their initial run.
It was the testimony of Mark LaCore, Director of Transportation, that co-curricular
runs (essentially shuttles) are assigned to senior drivers. If the run falls within the city, it is
assigned to a senior city driver. If no senior driver is available, the run is thereafter offered,
by seniority, to rural drivers. If the run is a rural run, it is offered by seniority to rural
In the event there is no rural driver available, it would be offered, by seniority, to city
According to LaCore, this has been the system in effect since February of 1994. LaCore
on to testify that when these short-term runs arose, they were handled on a case-by-case
basis. The analysis included the application of the seniority formula, the availability and
proximity of individuals to the work site, and the minimization of layover time. Assignments
which generate overtime are not made.
The overwhelming majority of co-curricular runs occur within the city. All but one
school falls within the city limits. This results in an imbalance in the assignment of
There was a change in the terms of the collective bargaining agreement, the effect of
which was to eliminate overtime arising from the assignment of multiple routes. This change
eliminated overtime, in contrast to layover time. A number of union witnesses testified to
being assigned co-curricular and/or substitute driving within the city, notwithstanding their
status as rural route drivers. The most notable was Marlene Case, a long-time bargaining
member, who testified to taking these short-term assignments in 1993, 1994, 1995, and
District records which show similar assignments to other bargaining unit employes in 1992
and 1994, were made a part of the record.
The parties stipulated the following as the issue:
Did the Employer violate the terms of the collective bargaining
agreement and the long-standing past practice, when a senior driver was denied the
opportunity to drive a co-curricular route in the City, and if so; the appropriate remedy is to
make the grievant whole
for any and all lost wages and benefits. Furthermore, the Employer shall assign extra
work/routes to drivers according to seniority and proximity provided no overtime is
RELEVANT PROVISIONS OF THE COLLECTIVE
Article 6 Salary Schedule Paydays
Guaranteed Hours of Work
Shift Differential Pay Overtime
. . .
D. All food service workers, custodians,
engineers, and bus drivers will request
in writing, to their immediate supervisor, an interest to move to a temporarily
vacated position. If approved, the employee will begin to receive pay for the
position the day they begin, or no later than two (2) working days following
the date the request was received.
1. The school district must know or
be reasonably assured that a job will
be vacated for seven (7) working days or more beyond the receipt of
2. The district
agrees that any decision regarding a regular employee
moving to a position made available as a result of the absence of
another regular employee, would not be made in an arbitrary or
. . .
Article 7 Seniority Promotions
Section 1. For purposes of this Article, seniority is
measured by an employee's date of
hire in a classification as defined in Addendum A with the district. No distinction will be
made between year around and school year employees in calculating seniority.
Section 2. For the purpose of
transfer and filling job vacancies or new positions, seniority
shall be maintained by job classification.
A. The District will
annually produce a seniority list and forward that list to the
President and Secretary or designee of the Union on or before October 1.
The Union will raise any objections to the proposed seniority list on or before
November 1 or it will be considered accurate as prepared.
. . .
Section 5. Definition of routes and Bidding
Procedures for Bus Drivers
1. Regular route: Transporting students to
and from school on a daily and
regular basis. Such assignments will be subject to the bid process as defined
2. Extra-Curricular Route: Transporting
students from school to the site of an
extra-curricular activity (and vice versa). Such assignments occur on an
irregular basis and will be assigned according to "seniority" and "proximity".
3. Co-Curricular Route:
Transporting students to and from school and/or
between two or more school sites as needed and on a regular basis. Such
routes may be assigned only to drivers who are assigned regular routes (as
defined above). Such assignments will be made according to "seniority" and
4. City Route: Any
route which begins and ends within the boundaries of the
City of Superior and/or the Village of Superior. In order to qualify for
assignment to a city route an employee must reside within the boundaries
defined above. In addition, senior rural drivers whose residence is ten (10) or
fewer miles from the start of an available city route, are eligible for assignment
to that route. Bus routes currently being driven by drivers known as "intracity
drivers" are covered by the Addendum B to the collective bargaining
agreement dated June 22, 1983, and thus may be contracted to private
vendors at the discretion of the Board.
5. Rural Route: Any
route which either begins or ends (or both) within the
boundaries of the School District of Superior but not inside the boundaries of
the City of Superior and/or Village of Superior. In order to qualify for
assignment to a rural route the employee must reside within the boundaries
defined above. In addition, senior city drivers whose residence is ten or fewer
miles from the start of an available rural route are eligible for assignment to
6. Deadhead Driver
Time: Minutes required to drive to and from the start of a
route and to and from the end of a route.
B. Bidding Procedure for Bus Drivers
1. All current bids will be maintained under
2. The current bidding
procedure by area will be eliminated. All future bids for
"regular routes" will be governed by seniority and classification. Drivers
assigned routes classified as "city routes" may bid for such routes when vacant
but will not be eligible to bid routes classified as "rural routes". Conversely,
drivers assigned routes classified as "rural routes" will not be eligible to bid
routes classified as "city routes". Exception to this rule is defined under A4
3. Drivers who bid on
available rural routes will receive up to one hour and 30
minutes (90 minutes) per day to cover "deadhead driver time."
4. No other changes in
current practice, including payment for "layovers", which
is time spent in town or at a school between runs, will be made.
5. This agreement is
subject to approval by attorneys for both the School District
and the Union. Any language agreed which is found contrary to the Fair
Labor Standards Act shall be null and void.
. . .
POSITIONS OF THE PARTIES
It is the position of the Union that the midday runs such as the one denied the
is a co-curricular run. The Union contends that senior employes who are available have
seniority rights to such routes. The cost, argues the Union, is marginal. Typically, there is
very little down time between such runs. Rural drivers are commonly available, because
have dropped off their students. The Union points to the testimony of a number of its
witnesses and contends that these assignments have been made in the past. The Union
contends that any cost and/or inconvenience to the employer is minor.
The Employer contends that it enjoys the discretion to make the short-term
assignments where there is less than seven days involved. The Employer points out that this
was a one-day situation. In making such assignments, the Employer considers whether a city
or rural driver should be assigned, the amount of layover time, and the quality of service to
be delivered. The Employer notes that the contract has treated rural
and city drivers differently since its inception. The Employer contends that given the
of its budget caps, any savings is appropriate. The Employer contends that the system
proposed by the Union would be difficult if not impossible to administer. The Employer
contends that the system of assignment has been in place for years. The contract does not
address a one-day substitution.
The midday run involved in this dispute is a co-curricular route as defined by Article
7, Section 5, of the collective bargaining agreement. I credit Mr. LaCore's testimony as to
how runs are assigned. His testimony with respect to case-by-case consideration and the
criteria included within his consideration suggest that there are deviations from assignment
by overall seniority as a practical matter. As pointed out in the hearing, some of these
replacement driving assignments arise with very short notice. Given the foregoing, I believe
that LaCore's testimony is consistent with that of Union witnesses, including Ms. Case. Ms.
Case, and others, testified that rural drivers fill in on certain runs at times. The Union
produced evidence to support that contention.
There is nothing in this record to support a finding that there exists a practice of the
strict application of seniority regardless of which seniority list the driver is on. The
assignment of an ongoing co-curricular route is done by seniority. If the co-curricular route
is within the city, it is assigned to a city seniority list driver. The Union essentially contends
that since a rural driver is in the city, and potentially proximate to the assignment, that rural
drivers should be eligible to exercise seniority rights for these short-term/substitute
co-curricular routes. However, Section 5(A)3. includes ". . .on a regular basis" as part of
definition of co-curricular route. On its face, the Article does not address the type of
short-term assignment which prompted this case.
Article 6, Section 1(D) addresses employes' rights to move to "a temporarily- vacated
position". That provision requires a reasonable assurance that a vacancy exists for seven
working days or more. I believe that Article 6 regulates employes' right to short-term vacant
assignments. The Article requires a seven-working day threshold for its provisions to kick
in. The dispute underlying this grievance involved a one-day assignment. I believe that the
Employer enjoys some assignment latitude under Article 6. I do not believe that latitude to
be unfettered. Paragraph D(2) applies an arbitrary or capricious standard to certain
employer assignment decisions.
In this dispute, the Employer followed a long-established assignment procedure. The
decision was made in significant part in order to avoid layover costs. While the Union may
quibble with that decision, the decision is rational and is not arbitrary or capricious.
The grievance is denied.
Dated at Madison, Wisconsin this 29th day of September, 1998.
William C. Houlihan, Arbitrator