BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SENECA COUNCIL OF AUXILIARY
SOUTH WEST EDUCATION ASSOCIATION
SCHOOL DISTRICT OF SENECA
(Bus Driver Grievances)
Mr. Leroy Roberts, Executive Director, South West Education
Association, appeared on behalf of the Association.
Mr. Michael Seiser, District Administrator, School District of Seneca,
appeared on behalf of the District.
The above-captioned parties, hereinafter the Association and District respectively, are
to a collective bargaining agreement which provides for final and binding arbitration of
Pursuant to a request for arbitration, the Wisconsin Employment Relations Commission
the undersigned to decide three bus driver grievances. A hearing, which was not
held on January 12, 2000, in Seneca, Wisconsin. Afterwards, the parties filed briefs and
whereupon the record was closed on March 10, 2000. Based upon the entire record, the
issues the following Award.
The parties were unable to stipulate to the issues to be decided herein. Having
record and the arguments in this case, the undersigned finds the following issues appropriate
purposes of deciding this dispute:
Did the District's failure to post the revised bus routes violate
Article V of the collective
bargaining agreement? If so, what is the appropriate remedy?
Did the District's failure to assign the revised bus routes by
seniority violate Article V of the
collective bargaining agreement? If so, what is the appropriate remedy?
Did the District sexually discriminate against Illene Olson by
assigning her Don Noel's old
southern bus route? If so, what is the appropriate remedy?
The parties' 1999-2002 collective bargaining agreement contains the following
ARTICLE III MANAGEMENT RIGHTS
The Board shall have the sole and exclusive right to determine the
number of employees to be
employed, the duties of each employee, the nature and place of their work, and all other
pertaining to management and operation of the District, including but not limited to, the
1. To direct the employees, including the
right to assign work and overtime;
. . .
3. To hire, examine, classify, promote, train,
transfer, assign, in positions with the school
4. To increase, reduce,
change, modify or alter the composition in the size of the work
force, including the right to relieve employees from their duties because of lack of
work and to suspend, demote, discharge, or take other disciplinary action against
. . .
7. To change or eliminate existing methods,
equipment, or facilities and to introduce
new or improved methods or facilities;
. . .
The exercise of the foregoing shall be limited only by the express
terms of this agreement.
. . .
ARTICLE V SENIORITY
In the event the board determines it is necessary to lay off
employees due to the reduction of
work, seniority shall be used in the selection of the employee(s) to be laid off so long as the
employees are qualified to perform the remaining work. Seniority will be measured from the
initial employment in the district. Bus Drivers shall comprise a separate category for the
of layoff. Seniority for employees having a common date of initial employment will be
by a drawing of lots by the Board of Education with those affected and union representation
. . .
Recall will be by seniority, if said laid off employees are qualified
to fill the vacancies. Such re-employment will not result in the loss of credit for the previous
active employment in the District.
No new or substitute appointments will be made while there are laid off employees available
qualified to fill the vacancies.
. . .
Seniority is a measure of an employee's continuous service to the
District as defined herein, and
will be used to determine an employee's right to assignment and to overtime hours for work
the senior employee is qualified to perform. A second refusal to accept an assignment to
hours in a given work year shall negate the senior employee's right to overtime hours for
Seniority will be used in determining the
right to transfer to a vacant position, and the right to
a job in the event of a reduction in staff. Qualification for a permanent work position shall
determined after orientation and a 60 day trial performance in the permanent work position.
When a bargaining unit position becomes
vacant, employees who qualify for the position may
apply for transfer. All vacancies will be posted internally for ten (10) days and current
making application for transfer shall be given preference for the available position.
. . .
The District operates a K-12 public school system. The Association represents the
support staff employes. Bus drivers are included in the support staff bargaining unit. They
drivers) were accreted to the support staff unit in 1997.
The District employs a half dozen bus drivers to transport students to and from
routes driven by the drivers are determined by the District's transportation director. Some of
factors which are considered in determining a bus route are student locations, driver
efficiency and cost effectiveness. Historically, bus routes have not changed much over the
an example, driver Illene Olson drove the same northern bus route for 17 straight years.
driver assignments to these bus routes have not changed much over the years either. When a
assignment was changed, though, the District made the decision not the employe.
have not historically selected their own assignments/routes.
In August, 1999, the District decided to eliminate a bus driver position due to
student enrollment. The bus driver whose position was eliminated was Don Noel. Prior to
Noel drove one of the District's southern bus routes.
Following this action, the District decided it was necessary to change several bus
driver assignments. The route and assignment changes which the District made are identified
The record indicates that the route and assignment changes involved herein are the first
assignment changes which have occurred in the District since the bus drivers were accreted
support staff unit in 1997.
Prior to the 1999-2000 school year, the District had three northern bus routes which
driven by Jim Boylen, Illene Olson and Charlie Wright. Effective at the start of the
year, the District consolidated the three northern routes into two routes. Boylen's and
routes were essentially consolidated into one, and that (combined) route was assigned to
Wright lives on the route he was assigned to drive. Boylen is the District's most senior
was assigned to drive the route previously driven by Olson. The District also reconfigured
old southern route. Prior to being reconfigured that route was about 26 miles long, one way.
record does not indicate whether this southern route became longer or shorter after being
reconfigured, but the route is still one of the District's shortest routes in terms of miles. In
time, however, this route takes the longest to drive. The District assigned this route to
drive. Olson is the only woman bus driver in the District. She is also the second most
Olson did not want to drive the new southern route she was assigned. She considers
route harder and more difficult to drive than her old northern route. Her assessment of that
shared by many of her fellow drivers. Olson tried to bump less senior drivers for their
routes, but the
District would not allow it.
. . .
The record indicates that the District has never previously posted bus routes for
None of the bus routes/assignments involved herein were posted.
. . .
The Association subsequently filed three separate grievances concerning the route and
assignment changes referenced above. One grievance alleged that the District violated the
bargaining agreement by not posting the changed bus routes. Another grievance alleged that
District violated the collective bargaining agreement when it did not utilize seniority in
to transfer to the changed routes. Another grievance alleged that the District sexually
against "the female driver" (i.e. Olson) when it transferred her "to the least desirable bus
three grievances were processed through the contractual grievance procedure and ultimately
POSITIONS OF THE PARTIES
The Association contends that the District violated the labor agreement in several
by its actions herein. It makes the following arguments to support this assertion.
First, the Association sees this case, in part, as a failure to post case. Accordingly, it
the argument traditionally made in such cases, namely that the Employer was obligated to
position and that it failed to do so. According to the Association, at least two
have been posted. One was the position that was vacated by the layoff of Don Noel (i.e. the
route to which Olson was assigned), and the other was the new northern route which was
when Boylen's and Wright's old routes were combined. This argument is premised on the
a bus route is a "position" within the meaning of Article V, so that the District is
obligated to post it for bidding. To support this premise, it relies on the fact that Article V
that "all vacancies will be posted internally". The Association characterizes this language as
mandatory and non-discretionary. Responding to the District's assertion that it has never
route before, the Association acknowledges that that is the case, but it nevertheless avers that
District is contractually required to post same.
Second, the Association also sees this case, in part, as an improper work assignment
In its view, the route assignments which the District made to Boylen and Olson were
because the District failed to consider seniority in making them. The Association notes in
that employes Boylen and Olson are the most senior employes in the bargaining unit. The
believes that as the senior employes, they were entitled to pick their own routes, rather than
routes selected for them by management. Thus, the Association maintains that drivers have a
contractual right to select their routes based on their seniority. The Association contends that
that did not happen here, the District violated the labor agreement. Responding to the
assertion that it has not based route assignments on seniority before, the Association notes
previous route assignment changes occurred prior to the bus drivers being accreted to the
unit in 1997. In the Association's view, the District's manner of making assignments prior
(when the drivers became covered by the support staff labor agreement), is irrelevant and
be considered by the arbitrator. The Association maintains that the only time period relevant
case is what happened post 1998, and it avers that there have not been any route or
changes since then, so no past practice is applicable herein.
Third, the Association also claims that the District "inequitably applied the contract"
it assigned Olson to Noel's old southern route. The Association asks rhetorically why Olson
"forced to give up a route she had driven for 17 years" and "singled out to drive the most
route". It answers this rhetorical question by avering that it was because she is the only
driver. Thus, the Association alleges that the District sexually discriminated against Olson
assigning her to the southern route. According to the Association, Olson was "singled out
unsavory duties that the men drivers did not wish to accept or would not accept."
In order to remedy the District's contractual breach, the Association asks the
"apply arbitral thought and make the Association and Olson whole." According to the
a make whole award in this particular case should include the following elements. First, the
should be required to post all bus routes. Second, the drivers should "be allowed to select
they prefer." As the Association sees it, "this process would continue among the remaining
and routes until only one route remains and it would be provided to the least senior
the Association asks that Olson be provided with either (unspecified) monetary relief for
worst route" all year, or her old northern route back.
The District contends that its actions herein did not violate the labor agreement as
by the Association. In the District's view, its actions were in accordance with same. It
following arguments to support this contention.
First, the District disputes the Association's contention that it violated the contractual
provision. For the purpose of responding to this contention, the District acknowledges that
V requires it to post "vacancies" and 2) it did not post any of the route changes or
it made. The District reads the word "vacancies" in Article V to apply to vacant positions,
bus driver positions. According to the District, a position is separate and distinct from a bus
or assignment. Building on this premise, the District maintains that the posting language in
V does not apply to bus routes and/or assignments. To buttress this view, the District calls
to the fact that it has never previously posted a route or allowed drivers to select their own
As the District sees it, this establishes that Article V has never previously been interpreted by
parties to require the posting of bus routes and assignments. The District therefore submits it
violate the posting provision by not posting the work involved here.
Second, the District disputes the Association's contention that the assignments which
here were contractually improper. For background purposes, the District notes that it has the
under the Management Rights clause, to assign work to employes. It further notes that it has
previously exercised that right and assigned routes to drivers. According to the District, it
allowed employes to select their own routes, or used seniority to determine who drove what
Instead, the District avers that it has always decided who drove which route. The District
characterizes this as its past practice. It is against this backdrop that the District maintains it
same thing here, namely assign routes to drivers after considering a variety of factors.
to the assignments which are the focus of this case, the District acknowledges that its
decisions were not popular with the bus drivers, particularly Olson and her husband who is
driver. Be that as it may, the District asserts that it was not trying to punish Olson when it
her to the southern route. The District also avers that it did not select her for that particular
assignment because of her gender.
Given the foregoing, the District maintains that no contract violation occurred when it
changed the configuration of several bus routes and reassigned those routes to certain
including Olson. It therefore asks that the grievances be denied. In the event that the
against the District and finds a contract violation, the District asks that the remedies not be
proposed by the Association. In the District's view, the remedies proposed by the
disrupt the entire busing operation, serve little purpose, and cause serious undue confusion to
students who ride the buses.
My discussion begins with a review of the following pertinent facts. Prior to the
1999-2000 school year, the District laid off a bus driver (Noel) after it eliminated his
Following this action, the District made several bus route and driver assignment changes to
northern and southern routes. The changes affecting the northern routes can be summarized
the District consolidated three northern routes into two routes. Boylen's and Wright's old
were essentially consolidated into one, and that (combined) route was assigned to Wright.
was assigned to drive the route previously driven by Olson. The changes affecting the
routes can be summarized thus: Noel's old route was reconfigured and assigned to Olson.
It is noted at the outset that this case does not involve Noel's layoff. Instead, it
route and assignment changes just referenced. Those changes caused great consternation
bus drivers. The Association subsequently filed three separate grievances concerning these
assignment changes: one alleged that the District violated the collective bargaining agreement
posting the changed bus routes; one alleged
that the District violated the collective bargaining agreement when it did not utilize
deciding who to transfer to the changed routes; and one alleged that the District sexually
discriminated against Olson when it transferred her to Noel's old southern route. All three
will be addressed in the analysis which follows. They will be addressed in the order just
I begin my analysis of this contract dispute by first looking at the event that caused
to make the above-noted route and assignment changes. That event, of course, was the
of Noel's bus driver position. Rhetorically speaking, when the District eliminated that
laid off Noel, was a vacancy created which the District was obligated to fill? No. The
of a position followed by a layoff does not automatically create a new vacancy. When an
departs, management has the right to decide whether or not the employe's departure creates a
vacancy. This prerogative is reserved to the District here by the Management Rights clause
III) which explicitly grants the District the right to "alter the composition in the size of the
workforce." This clause gives the District the right to determine the amount of work it
what level of service or activity can be eliminated. In the absence of a contract provision
management's right to fill vacancies (for example, a clear requirement to maintain a certain
of positions in each classification), it is management's right to determine whether a vacancy
when it is filled. Nowhere in this labor agreement is there any contractual provision which
the District to fill every vacancy or maintain a certain number of positions in each
contractual posting provision found in Article V certainly does not guarantee that all
be filled. On its face, that provision neither contradicts the management rights noted above
restricts the District from determining how many positions it chooses to fill. If management
determines that a vacancy exists within the meaning of Article V which is to be filled, then
then does the posting procedure found in that article apply. Thus, unless management
that a vacancy exists, no contractual right which is contingent on the existence of a vacancy
This rationale also applies to the Association's contention that bus routes are
positions. It has
just been noted that the District determines whether a vacancy exists. The same is true of
Thus, the District also determines whether a position exists.
In this case, the District decided that bus routes are not positions so they did not have
posted. The Association disagrees on both points. In its view, bus routes are positions
to be posted.
The undersigned could easily accept the Association's premise that bus routes are
which have to be posted if there was language in the contract specifying same. In this
experience, language specifying that bus routes are positions which have to be
posted is common in school district support staff labor agreements covering bus
this particular labor agreement does not contain such language. In contract interpretation
arbitrators try to determine and give effect to the mutual intent of the parties. If the parties
intended that bus routes are positions which have to be posted, they could have easily so
Article V. They did not. The language therein does not say either explicitly or implicitly
routes are positions which have to be posted. In the absence of such language, Article V
interpreted as saying that bus routes are positions. That being so, I find that bus routes are
positions within the meaning of Article V. It follows from this finding that bus routes
do not have
to be posted.
Having just found that bus routes are not positions within the meaning of Article V,
question remains what to call them. The undersigned has decided to call them an assignment
duties. What the District did here was assign certain bus routes to certain bus drivers. The
language does not apply to or cover the assignment of work. Instead, another provision
provision is the Management Rights clause (Article III). That clause gives management the
assign work to employes. The work which the District assigned to the bus drivers in
traditional bus driver work. That being the case, the assignment was within the bus driver
The Association contends that the work assignments which the District made here
nonetheless contractually improper because they should have been made by seniority and they
not. I find otherwise. The seniority clause (Article V) does not explicitly provide that bus
be assigned on the basis of seniority or that employes can pick and choose their bus routes
their level of seniority. Again, if that had been the parties' mutual intent, they could have
plain language that so specified. They did not. While Article V does say that "seniority. .
used to determine an employe's right to assignment", the record indicates that the word
in this clause has not previously been interpreted by the parties to refer to bus driver
Thus, up to now, bus routes and driver assignments have not been assigned by seniority or
seniority. If the parties want to change this, and interpret the clause just noted to mean that
drivers can pick their bus routes and driver assignments based on their seniority, they can
agree to do so. The question here, though, is whether the Arbitrator should interpret that
mean that bus routes and driver assignments have to be assigned by seniority notwithstanding
that Article V has never been interpreted that way before. I decline to do so. If the
wants the clause just noted in Article V to have that meaning, it has to get it through
the District. Given the foregoing, it is held that the District was within its contractual rights
it did not base the bus routes and driver assignments in question on seniority.
Finally, attention is turned to the Association's contention that the District sexually
discriminated against Olson by assigning her to Noel's old southern route. It is noted at the
that numerous state and federal laws prohibit employers from making employment decisions
on an employe's gender. Broadly speaking, those laws prohibit sex discrimination. Here,
the undersigned is not empowered to enforce those laws and remedy statutory violations of
because my authority is limited to interpreting the labor agreement and resolving questions of
contractual rights. While some collective bargaining agreements contain provisions which
incorporate various discrimination laws into the agreement, a review of the collective
agreement involved here reveals it does not contain such a provision. That being so, there is
contractual provision which expressly gives a reviewing arbitrator a contractual basis (as
a statutory basis) for deciding whether the District's employment decision (i.e. the
question) was gender based. However, assuming for the sake of discussion that a contractual
does exist for a discrimination claim, the Association still has the burden of proving it. In
words, the Association has to establish that the assignment in question was gender based. It
to do so. The Association cites just one fact from the record to support its claim that Olson
victim of sex discrimination, namely the fact that she is the District's only woman bus
undersigned concludes that this one fact, in and of itself, proves nothing. More proof is
and is lacking herein. That being the case, the Association's claim of sex discrimination has
In light of the above, it is my
That the District's failure to post the revised bus routes did not violate Article V of
bargaining agreement. That grievance is therefore denied.
That the District's failure to assign the revised bus routes by seniority did not violate
V of the collective bargaining agreement. That grievance is therefore denied.
That the District did not sexually discriminate against Illene Olson by assigning her
Noel's old southern bus route. That grievance is therefore denied.
Dated at Madison, Wisconsin this 1st day of June, 2000.