3 CIR 644 (1979)



LOCAL NO. 226, |
Plaintiff, |
Defendant. |

Filed May 1, 1979.


For the Plaintiff: Robert E. O'Connor, Jr.

For the Defendant: John R. Holdenreid

Before: Judges Wall, Kratz & McGinley


This industrial dispute brings before us the interpretation of the qualification and seniority provision in the collective bargaining contract between the parties as applied in a reduction in force situation. We find that we have jurisdiction of the parties and of the subject matter.

This dispute arose when it was determined to reduce the hours of one of three kitchen assistants at Ashland Park School below six hours. When an employee is reduced below six hours, he or she loses "full time" status and all fringe benefits. Of the three kitchen assistants at the school, only the most junior had taken the training and had the experience as a kitchen manager. The job description for kitchen assistants requires that they have the training and experience to serve as manager when necessary, but respondent has never, apparently, pursued this requirement of the job description before this instance. The testimony indicated that taking the training and serving as manager when necessary was regarded as an imposition on the workers' time, without concomitant benefit or reward.

Since the junior employee had the training and experience, she was retained at full time and the senior employee reduced to four hours per day, at which time the senior employee quit.

The pertinent contract language puts experience and seniority on an equal basis, denominating both as "qualifications."

Article 10, Section 7 provides in full as follows:

"In the selection of persons by the School District for transfer, promotion, reduction of staff or preference in rehiring, consideration shall be on the basis of qualifications for the position which shall include, but not be limited to, seniority status in the school district and experience in the type of work required by the position in question. Seniority shall be defined as the total length of continuous service in the School District in Omaha and shall be district wide, and shall date from the effective date of FULL-TIME employment. A record of full-time employment or re-employment dates shall be provided as of September 1, 1977, with the union responsible for its maintenance thereafter. Any dispute of employment record shall be resolved by reference to official records of the Board of Education."

Management witnesses testified that they chose the junior over the senior because if they chose the senior over the junior, they would lose the benefit of the junior's training. Management, thus, approached this matter at all stages as a total reduction in force, rather than a mere reduction in hours.

In SEIU v. School District , 3 CIR 315 (1977) we adopted a standard of review of grievance decisions, deferring to the arbiter unless the decision could be regarded as arbitrary or capricious.[1]

It is apparent here that until the hearing in this court, neither party considered the fact that a reduction in hours of the junior employee would not necessarily deprive the respondent of that employee's experience as a fill-in manager, since she could still be called in when necessary for a full day as manager. It is also apparent that the respondent did not balance its own delictions in failure to insist on the proper training for all employees as required by the kitchen assistant job description.

While the evidence recited above might be sufficient to reverse, we feel it to be the better practice to remand for consideration of the situation as a mere reduction in hours, rather than a reduction in force.

ORDERED, that the grievance is remanded to the respondent's Board, with directions to refer the matter again to its Superintendent for further consideration in the light of this Opinion, with further review by the Board of the Superintendent's new decision in accord with the collective bargaining contract, if required.

[1] Subject, of course, to constitutional limitations, see Brady v. Board of Trustees , 196 Neb. 226 (1976).