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Board Opinion 1984-007

STATE OF OHIO

BEFORE THE STATE EMPLOYMENT RELATIONS BOARD

In the matter of

Ohio Association of Public School Employees, 

Petitioner

and

Northwest Local School District Board of Education, 

Respondent

SERB Opinion 1984-007
Case Number: 84-RC-04-0137

Board Date: 10/24/84
Date Issued: 10/25/84

OPINION AND DIRECTIVE

DAY, Chairman:

This is a representation case in which the only issue is whether the unit sought by the Petitioner, Ohio Association of Public School Employees (OAPSE), is an appropriate unit for collective bargaining under R.C. 4117.06(B). That unit is:

"Transportation Department." Employees included: Bus drivers and mechanics; excluded: Supervisors--managerial confidential--professional employees.

For reasons adduced below, the proposed unit is found to be appropriate and a representation election is ordered for the 26th day of November, 1984, at times and sites determined by the Director of Representation.

I.

For the first time since the effective date of R.C. Chapter 4117, the State Employment Relations Board (SERB) is asked to determine a unit appropriate in a disputed context. In this sense the issue is one of first impression. SERB is writing on a clean slate. Its formulations will be for now and for the future subject to change when, and if, new facts require new considerations.

II.

The General Assembly has set down specific elements it is SERB's duty to consider in unit determinations. But these elements are bedded in general terms:

The Board shall determine the appropriateness of each bargaining unit and shall consider among other relevant factors: the desires of the employees, the community of interest; wages, hours, and other working conditions of the public employees; the effect of over-fragmentation; the efficiency of operations of the public employer; the administrative structure of the public employer; and the history of collective bargaining. R.C. 4117.06(B).

While the statutory mandate includes particular factors which must be ('shall be') taken into account, the Board is not tightly limited. The statutory requirements are general directions to SERB. The internal content of the generalization is for it to decide. Moreover, the statutory requirements are not a total circumscription, for they are to be considered 'among other relevant factors.' Thus, R.C. 4117.06(B) is not a corset but a guide.1

III.

The desires of the employees in this case are evidenced, at least in part, by the fact that the preliminary investigation of OAPSE's allegations of interest2 [see R.C. 4117.07(A)(1)] resulted in a determination of 'reasonable cause to believe that a question of representation' existed and a consequent hearing. Of course, the finding that a representation question exists is not conclusive. If it were, no hearing would be necessary.

Treating the 'desires of employees' factor as the equivalent of 'extent of organization,' that factor is not determinative per se, but an element for consideration.3 A hearing was ordered in the present case after investigation. This suggests that at least thirty percent of the unit sought had evinced an interest in representation. The hearing officer's finding of fact No. 194 indicates that only transportation employees have shown 'any significant interest in unionizing.' And representation is sought for the bus drivers and mechanics only. Thus, the confinement of the representation claim to employees falling within transportation and the related categories linked with a showing of interest in a unit composed only of bus drivers and mechanics is a measure of the appropriateness of the unit petitioner seeks. But it is not a singular and final measure. Other factors must be weighed.

IV.

The facts found by the hearing officer5 (see especially FF 8, 11, 12, 14, and 15) establish a strong set of common characteristics in the bus drivers and the mechanics classifications.

Both job classifications are primarily concerned with transportation and report to the Assistants for Transportation Services and the Transportation Supervisor. The mechanics occasionally share some bus driving duties with those employees who drive exclusively (FF 14; FF 18). Bus drivers and mechanics work out of the same garage (FF 11); members of neither classification mingle with other non-teaching employees (FF 17); both categories are subject to the initial disciplinary jurisdiction of the Assistants for Transportation Service (FF 9); both must have a valid Ohio chauffeur's license and a current annual bus driver license issued by the Board of Education; both must complete an 18-hour training course and a first aid course and receive a certificate of completion; both must be familiar with Ohio Public Transportation Laws and Regulations (FF 15); and both receive hourly wages (FF 5). These shared conditions argue for a 'community of interest.' And, it is some reflection of a perceived community of interest that only transportation employees have shown 'any significant interest in unionizing' (FF 19) and are proceeding through a single union representative.

There are some differences between the terms and conditions of employment for bus drivers and mechanics. For example, bus drivers work ten-month schedules, mechanics twelve. This difference results in mechanics receiving vacation leave while bus drivers receive none (FF 5). Bus drivers must pass an annual physical examination to maintain certification but the findings of fact do not specify whether the mechanics must. However, it is clear that they 'could be asked' to take physical exams (FF 16). Bus drivers are required by state law to attend safety meetings. The findings of fact indicate that safety meeting attendance is not compulsory for other employees but it is not clear from the findings whether the mechanics who occasionally drive are exempted from attendance (FF 16).

Bus drivers are not compensated for time at safety meetings, for bus inspection and for vehicle cleaning at the end of the school year (FF 17), and are not compensated for school intermissions. This non-payment characteristic is shared with other employees who neither teach nor drive buses nor perform duties that are ancillary to driving buses (FF 17).

On balance the aggregation of factors indicating similarities telling for community of interest between bus drivers and mechanics far outweighs in both numbers and importance those workplace characteristics which either or both classifications hold in common with other non-teaching personnel. This imbalance of commonalities contrasts starkly with the obvious relationship the mechanics' work bears to the bus driving task.

V.

Wages, hours and other working conditions in the school district display many variations in the non-teaching classifications. The significant determinant of differences appears to be primarily related to whether employees in a classification work only when school is in session or year round. Bus drivers work when school is in session. Mechanics work year round. If employees (e.g., bus drivers and cooks, FF 17) do not work at the various school intermissions, benefits (e.g., vacations, FF 5) are not available to them and thus, are less than those accruing to employees whose employment is for twelve months (see FF 5 and 17). It is not pluperfectly clear from FF 4, but the implication is there, that other fringe benefits apply equally to all full-time non-teaching employees (FF 4) and pro rata to part-time employees. Bus drivers are the only workers who are assigned split shifts (FF 13) and are paid on the basis of the time necessary to complete an assigned task. For them, work time is calculated from an estimate of the time necessary to complete assigned routes (FF 13).6

If employees happen to be paid under the same scheme of remuneration, that may be a significant factor in a unit determination because the sameness suggests that the reasons for identical treatment stem from a nexus in some degree or kind between the respective jobs. This condition may tell for the appropriateness of including comparably compensated employees in the same unit. On the other hand, logic does not compel a single conclusion from the fact of identical pay arrangements. Sameness in compensation may argue for or against unit inclusion depending on the total factual situation, especially job content. On the other hand, it may be that a work function is different enough to justify a difference in pay or benefits even though jobs are closely related in a production objective warranting unit inclusion. Or it may be that the facts will disclose that differences in recompense reflect job functions alien to one another. In this circumstance a difference in pay suggests a disparity in function or interest warranting exclusion. Thus, pay alone, or in conjunction with other elements, may commend, even demand, a particular determination of unit appropriate. In fine, an appropriate unit determination requires a finding based on a totality of relevant facts and these may vary in implications and from case to case.

In the present case the characteristics of bus driving and bus maintenance are so related, and so special, in contrast to other school district job functions, that a case is made justifying a separate unit appropriate for bus drivers and mechanics. Differences in terms and conditions which argue against community of interest are present but not compelling.

VI.

Among the key words in the statutory admonitions are these: '[To] consider the effect of over-fragmentation.' It is clear in this case that a separate unit for bus drivers and mechanics will include a considerable number but far less than all the non-teaching employees of the school district. However, any finding of 'over-fragmentation' at this juncture would be conjectural. For the finding of an appropriate unit on the facts here does not provide an ineluctable basis for an 'over-fragmentation' conclusion. All that is clear presently is that if this unit is found appropriate and other units are approved later, there will be more than one. How many more, if any, and whether more would constitute over-fragmentation, are pure conjecture. Guessing does not, and will not, provide a sufficient foundation for a fragmentation judgment.

VII.

There is no development in the finding of facts, nor any suggestion of fact in the exceptions to the recommendations, that justifies a conclusion that the efficiency of the employers operations will be affected by collectively bargaining with the employees in the proposed unit. Determination of effects in the absence of evidence cannot be justified.

The same conclusion applies to the consideration of the administrative structure of the employer. There is an evidential hiatus. Nothing in the facts indicates that the administrative structure of the employer will be affected at all. The paucity of facts provides no guidance to decision. Moreover, when a party which could command evidence does not adduce it, the conclusion is warranted that the evidence does not exist or would tell against the party in control.

The final consideration, mandated by statute--the history of collective bargaining--cannot be a factor here because this is the first bargaining effort in the district affecting non-teaching personnel. Of course, it would be absurd, in the light of the statutory objectives, to conclude that the absence of a history of bargaining counts against the establishment of a petitioner's request.

The evidence has developed no other factor or factors that bear upon the propriety of the unit sought.

VIII.

The unit proposed in this case is found to be appropriate. An election in that unit is ordered.

DAY, Chairman; SHEEHAN, Vice Chairman; and FIX, Board Member, concur.

APPENDIX

HEARING OFFICER'S RECOMMENDED DETERMINATION

On May 31, 1984, upon due notice to the parties, a public hearing was held in the above-styled case before State Employment Relations Board Hearing Officer Michael R. Hall in Columbus, Ohio. The parties were represented as follows:

For the Petitioner:

Robert J. Walter, Esquire, LUCAS, PRENDERGAST, ALBRIGHT, GIBSON & NEWMAN, 471 East Broad Street, 20th Floor, Columbus, OH 43215

For the Respondent:

J. Michael Fischer, Esquire, ENNIS, ROBERTS & FISCHER CO., L.P.A., 1000 Mercantile Library Building, Cincinnati, OH 45202

I. Statement of the Case

On April 2, 1984, the Ohio Association of Public School Employees (OAPSE or Petitioner) filed a representation-certification petition seeking to represent a unit of employees of the Northwest Local School District Board of Education (School District or Respondent) consisting of all Transportation Department employees, which includes the classifications of Bus Driver and Mechanic. Excluded were supervisors, managerial, confidential and professional employees as defined by the Act.7

On April 16, 1984, the School District filed a response to the petition. In its response, the School District maintained that the appropriate unit should be as follows:

All regular non-teaching school employees are defined in R.C. 3119.081, et. seq., employed by the Northwest Local School District Board of Education, excluding casual employees, substitute employees, employees whose compensation is funded directly by specific state or federal grant programs, confidential employees, security employees and supervisors as defined in the Act.

On May 4, 1984, OAPSE filed its prehearing statement. The School District filed its prehearing statement on May 25, 1984. After receiving approval to file briefs exceeding the fifteen (15) page limitation (by two pages), both parties timely filed their post-hearing briefs to the Hearing Officer on June 15, 1984.

II. Issue

Whether the unit sought by OAPSE is an appropriate unit.

III. Stipulations

The following matters were stipulated by the parties:

  1. Northwest Local School District Board of Education is a public employer within the meaning of Section 4117.01(B). (T. 7).8
     
  2. Ohio Association of Public School Employees is a public employee organization within the meaning of Section 4117.01(D). (T. 8).
     
  3. All employee classifications involved in these proceedings are public employees within the meaning of Section 4117.01(C), unless excluded as supervisors, confidential employees or casual employees. (T. 8).
     
  4. All classified employees with the possible exception of Dieticians are nonprofessional employees within the meaning of Section 4117.01(I). (T. 8).
     
  5. Out of approximately 450 collective bargaining contracts of OAPSE covering bargaining units around the state involving classified nonteaching employees, approximately 10 percent or less are limited to just Bus Drivers, Bus Aides and transportation employees. (T. 9).
     
  6. The Transportation Supervisor classification is a supervisory classification within the meaning of Section 4117.01(F). (T. 10).
     
  7. The Maintenance Supervisor classification is a supervisory classification within the meaning of Section 4117.01(F). (T. 11).
     
  8. The Cafeteria/Dietician classification is a supervisory classification within the meaning of Section 4117.01(F). (T. 12-13).
     
  9. There is an employee organization known as the Northwest Association of Educators affiliated with the Ohio Educational Association which has a collective bargaining contract with the School District which is dated prior to April 1, 1984, which organization is recognized as representing all certificated employees with some exceptions, but which organization does not represent any noncertificated or classified employees. (T. 14).
     
  10. The job descriptions marked as Joint Exhibit ]2 are true and accurate descriptions of the job duties of those classifications, except as those job descriptions may be clarified or contradicted by the testimony of the witnesses at the hearing. (T. 56-57).

IV. Findings of Fact

  1. the School District employs slightly over 1,000 public employees, of which 396 are classified or nonteaching employees. The balance are certificated or teaching employees. The School District is one of the larger school districts in Ohio, and teaches slightly over 10,000 students. (T. 21, 26, 30, R. Exh. ] 1).9
     
  2. The School District has never entered into a contract with OAPSE or any other collective bargaining representative for the nonteaching employees; and there is presently no union representing any of the nonteaching or classified employees as an exclusive representative at this time. (T. 22-23). Pay increases in the past have always been handled based on a percentage increase across the board to all nonteaching employees. (T. 24).
     
  3. There are approximately 99 food service or cafeteria personnel, 51 secretaries, 12 maintenance, 14 matrons, 61 aides, 49 custodians, and 109 transportation employees. These groups of employees, together with the Computer Programmer, constitute the classified or nonteaching employees of the School District. (T. 30-33, R. Exh. ]1).
     
  4. All full-time nonteaching personnel receive the same fr inge benefit package including: health insurance, dental insurance, life insurance, the sick leave provided by Ohio law, and personal leave at the rate of 3 days per year. A full-time employee is one who is scheduled to work 6 to 8 hours per day. A part-time employee works 2 or 4 hours per day and receives a prorated fringe benefit package. Substitutes do not receive fringe benefits and have no contract with the School District, but are paid hourly as needed to fill in for absent employees. (T. 33-34, 58-66). They have no expectancy of continued employment. (T. 90-91).
     
  5. Only 12-month schedule employees receive vacation leave. The following employees work 12-month schedules: all clerical staff (with 2 exceptions), custodial staff, maintenance staff, Mechanics, and the Computer Programmer. The following employees work 10-month schedules: aides, cafeteria employees, and Bus Drivers. (T. 46-47, 68). The following employees receive an annual salary: all secretarial employees, the Computer Programmer, the Data Entry Specialist, and all classified supervisors. The remaining classified or nonteaching employees receive hourly wages. (T. 37-39).
     
  6. All nonteaching employees applying for a job go through the same process, which begins with an interview with the Director of Personnel. After initial screening, the prospective employee interviews with the various immediate supervisors. A recommendation is sent to the Board of Education which is ultimately responsible for all hiring decisions. (T. 69-70). Ohio Revised Code Section 3119.081 sets out the contractual requirements for all nonteaching employees, and establishes probationary periods, length of employment contracts, etc. (T. 71). Ohio Revised Code Section 3119.084 provides a uniform schedule of holidays for all school employees. (T. 71, 75). Posting of a vacant classified position is also uniform throughout the school system, and any person, regardless of their present classification, may seek that vacant position. (T. 72).
     
  7. Minor disciplinary problems for all nonteaching personnel are handled by the immediate supervisor, while more serious discipline is handled by the Director of Personnel. A termination recommendation must be reviewed by the Superintendent of the School District, who in turn makes a recommendation to the Board of Education. (T. 75-76). All classified employees are evaluated on the same form, and the evaluation procedure is the same for all classified employees. (T. 79-80).
     
  8. All maintenance employees (who do plumbing, heating and cooling repairs throughout the district) answer to the Maintenance Supervisor and the Assistant Maintenance Supervisor, who in turn answers to the Assistant Superintendent of Maintenance and Transportation. The Bus Drivers and Mechanics report to the Assistants for Transportation Services and the Transportation Supervisor, who in turn also answers to the Assistant Superintendent of Maintenance and Transportation. Custodians and Matrons answer to the principals of each school where they work. (T. 27-29, Jt. Exh. ]1).
     
  9. The two Assistants for Transportation Services handle the initial disciplining of Bus Drivers and Mechanics. They also call in substitutes as needed. They determine the Bus Drivers' routes, evaluate the Bus Drivers, and train them. They also handle overtime authorization. (T. 48-49, 77-78, 113). The Assistants for Transportation Services work 8-hour days, are paid on an annual salary, and have unilateral authority to send a Bus Driver home who, in their judgment, is not fit to drive a bus that day. (T. 80-82). The Assistant Maintenance Supervisor has the same authority as the Assistants for Transportation Services. (T. 82).
     
  10. The Secretary to the Superintendent of the School District types correspondence regarding disciplinary actions, and memoranda regarding collective bargaining negotiations for the Board of Education. (T. 84-85). The two Personnel Secretaries have access to the personnel files and would be involved in typing and communicating a lot of the documents relating to collective bargaining negotiations. (T. 85). The Secretary to the Treasurer has access to all the financial information of the School District, and would be involved in establishing some of the financial reports for preliminary negotiations. (T. 86). The Office Manager of the Treasurer's Office is in charge of overseeing the payroll and accounting procedures of the School District. She has access to financial records and would be producing some of the financial reports and status reports relating to collective bargaining negotiations. (T. 86).
     
  11. The offices of the transportation department are located in the Colerain Junior High School building itself. The bus garage compound is located about 100 yards from the Colerain school building. All Bus Drivers and Mechanics work out of the bus garage except when driving their buses. Bus Drivers are on the road about 90% of their working time. (T. 50-51, 73, 94).
     
  12. Bus Drivers and Mechanics don't intermingle with other nonteaching employees. (T. 51, 131). Likewise, cafeteria, custodial and other nonteaching personnel who are assigned to a particular school do not interact often with employees who work out of one of the School District's other school buildings. (T. 73-75).
     
  13. Bus Drivers can be classified as 2-hour, 4-hour, 6-hour, or 8-hour employees as can cafeteria workers. (T. 101). The Bus Drivers' time is figured on an estimate of the time necessary to complete their bus route. Bus Drivers never put in more than 40 hours a week on their regular runs, although they would theoretically be eligible for overtime pay at time-and-a-half as with other classified employees. Overtime at the School District has rarely been authorized or needed. (T. 51-55, 57, 65, 101). Of all the classified employees, only Bus Drivers work a split shift. Mechanics do not. Bus Drivers' activities are related to before-school hours and after-school hours. (T. 47-49).
     
  14. Field trips are assigned and paid for separately from a list of Bus Drivers who volunteer for such extra work. The 'field trip' rate is a set rate based upon the activity involved. There is also a separate 'activity run' rate and an 'athletic activity' rate, which are also both set rates. These latter rates are not the same as their normal hourly route rates, and these are not considered part of the Bus Drivers' regular duties for computing overtime. (T. 104-107, 112). Mechanics also occasionally drive a bus for 'athletic' runs. (T. 164).
     
  15. The School District has a Bus Drivers' Handbook and a Custodian Handbook. (T. 41-42, P. Exh. ]2). Bus Drivers also have a Training Manual and must have a valid Ohio Chauffeur's license, as must Mechanics. Bus Drivers and Mechanics must also hold a current annual bus driver's license issued by the County Board of Education. (T. 43, P. Exh. ]1 & 4). All Bus Drivers and Mechanics must undergo an 18-hour training course and a First Aid course, and receive a certificate of completion. Bus Drivers and Mechanics are given copies of the Ohio Public Transportation Laws and Regulations, and are required to be familiar with them. Other classified employees are not required to have the above items or qualifications. (T. 41-45, P. Exh. ]3 & 5).
     
  16. Bus Drivers must pass an annual physical examination to maintain their certification. Other classifications could be asked to take physical exams, but have not been asked to do so by the School District. Bus Drivers are required by state law to attend safety meetings not required of other employees. (T. 108-109). Because the driving certificate is part of the job requirements of a Bus Driver, serious traffic charges such as drunken driving can lead to a disciplinary hearing and termination. (T. 99).
     
  17. Bus Drivers are not compensated for attending safety meetings, for the twice daily safety inspections of their bus, and for the cleaning and washing of their bus at the end of the school year. (T. 138-139). Bus Drivers, cafeteria workers, and other classified positions which do not work 12-month schedules or have in-service days, do not get Christmas, New Year's or the Fourth of July holidays because the children are out of school during that time. (T. 142-143). Likewise, on snow or calamity days when school closes down, Bus Drivers, Cooks and Aides would not be required to work. (T. 170- 171).
     
  18. Some Bus Drivers also drive school children to local parochial schools as part of their normal routes on behalf of the School District. Thus, some Bus Drivers may work a day when the public School District children are off, and vice versa. (T. 94). Mechanics occasionally must go out and drive a bus that has become disabled back to the bus garage. (T. 97-98).
     
  19. Only the transportation employees at the School District have shown any significant interest in unionizing. (T. 117-118, 132).

* * *

VI. Conclusions of Law

Based upon the foregoing Findings of Fact and analysis, and upon the entire record in this case, I make the following conclusions of law:

  1. The Northwest Local School District Board of Education is a public employer within the meaning of Section 4117.01(B).
     
  2. The Ohio Association of Public School Employees is an employee organization within the meaning of Section 4117.01(D).
     
  3. The classifications of Transportation Supervisor, Maintenance Supervisor, Assistant for Transportation Services, Assistant Maintenance Supervisor, and Cafeteria/Dietitian are supervisors within the meaning of Section 4117.01(F).
     
  4. All the remaining classified or nonteaching classifications involved herein are nonprofessional employees within the meaning of Section 4117.01(I).
     
  5. A bargaining unit consisting of Bus Drivers and Mechanics of the Northwest Local School District Board of Education is an inappropriate unit for purposes of collective bargaining pursuant to the criteria of Section 4117.06(B).

VII. Recommendation

Based on the foregoing, I recommend:

  1. The Board adopt the findings of fact and conclusions of law set forth above.
     
  2. The Board issue an order pursuant to Section 4117.06(A) dismissing the instant representation-certification petition filed by OAPSE because it seeks to represent an inappropriate bargaining unit.

Footnotes

  1. None of the 'shall nots' for unit determinations set out in R.C. 4117.06(D) are relevant here.
     
  2. The allegation of interest had to claim that at least 30 percent of the employees in an appropriate unit had an interest in collective bargaining [see R.C. 4117.07(A)(1)].
     
  3. See NLRB v Metropolitan Life Insurance Company (1965) 380 U.S. 438, 441-442 where it was held that 29 U.S.C. Sec. 159(C) did not prohibit consideration of the extent of organization in determining the unit appropriate. What the section did preclude was the making of the extent of organization the 'controlling factor.'
     
  4. Findings of fact will be designated by 'FF' followed by the relevant numeral.
     
  5. Findings of fact will be designated by 'FF' followed by the relevant numeral.
     
  6. Driving time unrelated to route driving is paid separately. Non-route drivers are volunteers. Their extra time is not included in calculations of overtime. Mechanics occasionally drive so called 'athletic runs' (FF 14).
     
  7. All references to statutes will be to the Ohio Revised Code Chapter 4117, unless otherwise indicated.
     
  8. All references to the transcript of the hearing are indicated parenthetically by 'T.' followed by the page number.
     
  9. References to the Transcript or to exhibits in the Findings of Fact are intended for convenience only and are not intended to suggest that such references are the sole support in the record for the related Findings of Fact.