Title: Missoula Elementary School and
Missoula Elementary Education Association
THE MATTER OF THE GRIEVANCE
Case No. 93-08331
FOR THE DISTRICT:
Bushek, UniServ Director
Don K. Klepper
Director of Personnel
S. Russell Street
School District No. 1
215 S. 6th West
Missoula, MT 59801
The Missoula Elementary Education Association (hereafter the
Association) and Missoula Elementary School District One (hereafter the
District or the Employer) were parties to a collective bargaining agreement
that provided, among other things, for the voluntary transfer of teachers.
It also set forth the manner in which those transfers would be
accomplished. On August 12, 1992,
the Association filed a grievance alleging the District had violated the
agreement, including article 7-3 thereof.
The remedy sought, as stated on the grievance form, was for the
District to provide a regular education job for school year 1992-93, or as
soon as possible, to special education employees.
Resolution of the dispute was not had at earlier steps in the grievance
procedure and the matter was submitted to arbitration.
A hearing was held on August 20, 1993.
The parties submitted simultaneous briefs and reply briefs, the last of
which was received on November 1, 1993.
The District raised both procedural and substantive arbitrability
issues. It contended first that
the Association failed to allege a violation of a specific provision of the
collective bargaining agreement and that the remedy sought cannot be provided
under the terms of the Agreement. Secondly,
the District maintains that under federal and state law the substantive issue
raised by the Association is not arbitrable.
The substantive issue raised by the grievance is whether the District
violated article 7-3 of the Agreement by failing to transfer special education
teacher Colleen Frank to a regular education position.
The parties agreed that the arbitrator could frame the substantive
The following provisions of the parties' 1991-93 collective bargaining
agreement are relevant to the issues in dispute:
order to provide for diversity of experience and to enhance and broaden
professional skills, the voluntary transfer of teachers shall be encouraged.
However, the District shall normally fill a vacancy that occurs during
the school year with individuals other than those who already have assigned
duties. Positions so filled will be available for bid for the next
school year in accordance with the following:
Announcement of professional vacancies as they occur, or as impending
vacancies become known and verified during the school year, shall be posted on
the staff bulletin boards of each school.
Positions within a building may be filled by in-building transfers
first. This may be done by the
building principal as soon as the positions occur.
Once the in-building movement is completed, a list of vacancies created
by that movement will be forwarded to the Personnel Office immediately.
The list of vacancies will be compiled and distributed to the buildings
as soon as possible. Teachers
within the District requesting a transfer will fill out a transfer request
within ten (10) days after the posting of the available positions.
Each building Principal will conduct interviews at the building level
for the available position(s). The
interviews will not be content oriented for resident teachers unless the
building Principals must utilize this procedure to determine the best
candidate out of a slate of equally qualified teachers.
Within two (2) weeks of the completion of the interview process, the
building Principal will notify all teachers interviewed of their status in
relationship to the available position.
Once placement of resident teachers has been completed within the
prescribed timelines, the District will consider new hires to fill the
Teachers leaving sufficient self-addressed, stamped envelopes with the
Personnel Office shall receive notification of any vacancies specified that
occur during the summer months. Vacancies
that occur during the summer shall be posted at the Administration Building.
It is understood that the District is not responsible for notices after
they are mailed during the summer, and for those positions that become open
during the summer months after July 15, the District may waive the
requirements under this Section in order to fill the position.
MANAGERIAL RIGHTS AND RESPONSIBILITIES
Association recognizes that the Board has the responsibility and authority to
manage and direct, on behalf of the public, all the operations and activities
of the School District to the full extent of the law. These powers are limited by applicable laws or the express
terms of this Agreement and include, but are not limited to, the right:
To execute management and administrative control of the school system
and its properties, facilities, and programs.
To employ and re-employ all personnel, determine the methods, means,
job classifications, and personnel by which operations are to be conducted.
To select textbooks and other teaching materials to be used in all
courses of instruction, to establish and supervise curriculum, manner of
instruction, class schedule, days school shall be in session, physical plant,
and other facilities.
To consolidate or eliminate any teaching position.
A "grievance" shall mean an allegation by a grievant
resulting in a dispute of [sic] disagreement with the School District as to
the interpretation or application of terms and conditions in this Agreement.
The "Grievant" shall be defined as a teacher and/or the
TIME LIMITATION AND WAIVER:
Grievances shall not be valid for consideration unless the grievance is
submitted in writing to the immediate supervisor, setting forth the facts and
the specific provisions of the Agreement allegedly violated and the particular
relief sought, within twenty (20) days after the date of the first event
giving rise to the grievance occurred, or within twenty (20) days of the time
the grievant through the use of diligence should have known of the alleged
grievance. Failure to appeal a
grievance from one level to another within the time periods hereafter provided
shall constitute a waiver of the grievance.
An effort shall first be made to adjust an alleged grievance informally
between the grievant and the immediate supervisor.
STATEMENT OF FACTS
The essential facts in this case are not in dispute. Colleen Frank has been an elementary special education
teacher for the District since 1984. She
has a bachelor of science degree in elementary education, a special education
endorsement, a master of science degree in elementary education, and
considerable experience since 1971 in teaching in public school systems.
She has received satisfactory performance evaluations during the time she
has worked for the District.
Ms. Frank has made application for approximately 12 regular education
classroom openings over the last several years.
She applied for six transfers during the 1992-93 school year.
In each case the District chose another teacher for the position, and on
occasion, positions were filled with newly hired teachers.
She has applied for five transfers within her own school, but in each
case the principal refused to transfer her.
The reasons given by the principal for the refusals were that she did not
have the proper personality or that he did not want to have to replace her.
Ms. Frank has experience in the areas of teaching involved in the
positions for which she applied.
The District's principals, who decide who is the successful candidate for
a job opening, use a rating system to select teachers who apply for positions.
They conduct an interview of the candidates, then rank them according to
their curriculum knowledge and how well the principal believes they will adapt
to the education philosophy under which a particular principal is attempting to
operate a school. Ability to fit in
with other teachers in a school and to be a team player is an important element
used by principals in making their selections.
One of the Association's past presidents and negotiators testified that
article 7-3 is discretionary on the part of the District.
He said the Association has repeatedly tried to negotiate language that
would require the District to give preference to current employees over new
hires, but the District has successfully resisted.
In his interpretation, however, the words in article 7-3 "to
encourage" mean Colleen Frank should have been able to transfer into one of
the positions for which she applied.
When the Association filed the grievance in this matter, it was written
on a standard form that has been used over a long period of time and accepted by
the District. Under the part
requiring a statement of the grievance, the Association official who completed
the form wrote, "The District has violated the Master Agreement..."
Where the form called for a recitation of the specific provision of the
agreement that is alleged to be violated, the words "The Master Agreement
including Article 7-3" were written in.
Where a statement of the remedy sought was indicated, this sentence was
written in, "The District will transfer and provide special eduction
employees a regular education job in the school year 92-92 [sic] or as soon as
possible..." The grievance was
dated August 12, 1992. During the
processing of the grievance, the Association provided the District with the
names of the two teachers who were the actual grievants.
One of the grievants had her grievance resolved.
Upon receiving the grievance form, the District's personnel director
wrote to the Association's grievance officer, asking, among other things, which
subsection of article 7, section 7-3, was alleged to be violated.
When the grievance officer received the letter, she contacted the
personnel director, who agreed that the question of specificity could be
discussed when the grievance reached him. It
was discussed at that time, and the grievance officer requested that the
personnel director pass the grievance on to the next level, which he did without
During the processing of the grievance and the attendant discussions that
took place, the parties focused their attention on article 7-3 of the collective
bargaining agreement. At the
arbitration hearing the Association representative articulated the remedy sought
as being the transfer of Colleen Frank to a regular education position.
The District's representative objected on the basis that the Association
was changing the remedy it originally sought.
The District filed a formal motion to dismiss, which I took under
At a prehearing conference both parties submitted written statements of
the issue to be arbitrated. The
Districts' statements was: Did the
District violate a specific provision or provisions of the Master Agreement by
refusing to provide preferential transfers for special education teachers into
regular education jobs for the 1992-1993 school year?
The Association's statement of the issue was: Did the District violate the collective bargaining agreement
when they [sic] denied voluntary transfer request to Colleen Frank?
As indicated above, I have framed the substantive issue that was raised
by the filing and processing of the grievance.
The arbitrability issues were raised by the District.
OF THE PARTIES ON THE ARBITRABILITY ISSUES
The District contends that since the Association's grievance stated that
the entire agreement, as well as section 7-3, were violated, arbitrability
becomes an issue. Furthermore, the
Association seeks a remedy that is not available under the agreement.
The agreement established a process for teachers to be considered for
transfer; it did not guarantee their placement.
The District cites section 27-5-115(1), MCA, for the proposition that
arbitration cannot be compelled solely upon a showing that a contract contains
an arbitration provision, and that it is for a court, not an arbitrator, to
determine whether the parties have agreed to arbitrate a dispute.
Federal and state case law support that proposition, the District argues.
The agreement is not subject to two interpretations, the District argues.
Nothing about the District's right to select teachers from a list of
applicants for voluntary transfer can be characterized as arbitrable.
The board of trustees alone has the power to make such decisions.
The Association is attempting to transform a nonarbitrable issue into an
arbitrable issue by claiming that the agreement guarantees placement of a
teacher who has repeatedly sought transfer, the District maintains. Moreover, the remedy sought by the Association would exceed
the scope of the arbitrator's jurisdiction because his decision is subject to
the limitations of Montana law. To
award any of the remedies suggested by the Association would require the
arbitrator to create a new contract provision, which would be outside his
The District cites a recent Montana Supreme Court decision, Missoula
County High School Education Association v. Board of Trustees, Missoula County
High Schools, _____ P.2d _____, _____ Mont. _____, 12 Ed.Law 91 (1993), and
argues the holding there precludes arbitration of the instant case.
A mere allegation that a collective bargaining agreement has been
violated is insufficient to justify arbitration.
A party must be able to point to a specific provision of the agreement to
support its demand for arbitration, the District urges.
The Association argues that the District's reliance on the recent Montana
Supreme Court decision, Missoula County High School, supra, is misplaced
because it incorrectly assumed that the Association failed to allege a violation
of a specific provision of the agreement that would serve as the basis for the
The agreement contains a grievance procedure that ends in binding
arbitration, the Association contends. A
grievance is defined as a disagreement over the interpretation or application of
the terms of the agreement. The
article in dispute deals with the subject of transfers and states specifically
that the voluntary transfer of teachers shall be encouraged. It is obvious, therefore, that the present dispute is a
grievance and is arbitrable.
The Association holds that the question of arbitrability is contractual,
and that the test properly focuses on the substance, not the form, of the
grievance. Citing the Steelworkers
Trilogy cases, the Association urges that doubts over arbitrability should be
resolved in the affirmative.
In distinguishing Missoula County High Schools, supra, from the
instant case, the Association points out that the Court held there that no
specific provision of the collective bargaining agreement was violated, and the
recognition clause contained no specific provision regarding rights,
obligations, and duties. To the
contrary, in the present case, a specific provision of the agreement is alleged
to be violated. This dispute
directly pertains to the language of article 7 of the agreement and is over the
interpretation and application of that language. It is therefore arbitrable.
ON THE ARBITRABILITY QUESTIONS
The District raised the question of procedural arbitrability in its
prehearing motion to dismiss when it asserted that the Association failed to
allege a violation of a specific provision of the Agreement that would serve as
the basis for a grievance. The
District also argued that the Association sought an improper remedy.
Section 4 of article 15 of the parties' contract requires that the
specific provisions of the agreement alleged to be violated must be set forth in
the grievance, along with the relief sought.
It is elementary in arbitration law that failure to specify portions of
the agreement at issue will rarely result in dismissal of the grievance because
in most cases such failure can be remedied during the processing of the
In the instant case, the Association complied with the specificity
requirements of the agreement by citing on the grievance form the exact article
alleged to have been violated. Moreover,
during the discussion between the parties, as the grievance was processed, they
directed their attention to article 7-3. The
District was fully aware of which provision in the agreement was in dispute.
For that reason, I am compelled to conclude there is no procedural
shortcomings in the filing of the grievance.
Whether the remedy sought was improper is a question that is arguable;
however, it does not render the grievance nonarbitrable.
As a matter of contract interpretation, I conclude the grievance
procedure was correctly followed.
The substantive arbitrability question is the more significant of the two
jurisdiction issues raised by the District.
In the usual course, arbitrators decide procedural arbitrability
questions such as the one above and courts decide the substantive arbitrability
questions. John Wiley & Sons
v. Livingston, 376 U.S. 543, 55 LRRM 2769 (1964). Where the objecting party chooses not to go to court but
raises the substantive issue before the arbitrator, the arbitrator decides the
issue, unless a court of competent jurisdiction has already determined the
issue. Central Illinois Public
Service Co., 42 LA 1133 (Willingham, 1964).
The Steelworkers Trilogy cases, which I do not give citations for here
because of their prominence in the area of substantive arbitrability, were later
reaffirmed in AT&T Technologies v. Communications Workers, 475 U.S.
643, 121 LRRM 3329 (1986). There
the court held that there is a presumption in favor of arbitrability, doubts
should be resolved in favor of arbitration.
That general rule has been refined by the Montana Supreme Court in Missoula
County High Schools, supra, a case relied upon by both parties to support
their respective arguments.
The District believes that the holding of the Court to the effect that a
mere allegation that a contract has been violated is insufficient to justify
arbitration, a specific provision must be pointed to. The Association argues that it did in fact allege a violation
of a specific provision of the agreement, article 7-3.
I am persuaded by the Association's argument and by the clear wording of
the court's decision in Missoula County High Schools, supra.
There the Court held that although an agreement contains a grievance
procedure culminating in arbitration, the mere existence of such provision does
not require all controversies to be arbitrated.
Furthermore, the court stated, the Association failed to allege a
violation of a specific provision of the agreement that would serve as a basis
for a grievance. Referring to the
agreement in dispute and its provisions, which were specific statements of
rights, obligations, and duties, the court said a claimed violation of such a
provision would fall within the definition of a grievance as set forth in the
The Association alleged a violation of article 7-3 of the parties'
collective bargaining agreement. That
article deals specifically with the voluntary transfer of teachers and requires
that such transfers be encouraged. Article
15 of the agreement defines a grievance as an allegation resulting in a dispute
or disagreement over the interpretation or application of the terms and
conditions of the agreement. The
Association had a grievance, as defined in the agreement, over the meaning of
article 7-3. The grievance is
arbitrable because it alleges a violation of a specific provision in the
The District in its argument on the arbitrability question interjects
argument on the merits of the case: What
obligation does the language of article 7-3 place on the District?
What the phrase "the voluntary transfer of teachers shall be
encouraged" means is, of course, not a part of the arbitrability issue, but
rather is the substantive merit issue, which must be addressed separately after
a determination on the substantive arbitrability question has been made.
As indicated above, I have decided this matter is arbitrable. Those arguments of the District that addressed the substance
of this case will be addressed further herein.
OF THE PARTIES ON THE MERITS OF THE CASE
The Association asserts that the District's denial of a transfer to
Colleen Frank violated article 7-3 of the agreement and she should be awarded
the first vacant regular classroom position to which she applies and is
certified to teach. She has applied
for 12 transfers and in each case was denied, even though she has an appropriate
extensive educational background and considerable experience. She has received excellent evaluations during her employment
with the District.
Other special education teachers have had a relatively easy time of
getting into regular education classrooms, the Association contends.
Colleen Frank has not only been unsuccessful among her peers, but has
been passed over for new hires, despite the fact she has experience.
The Association urges that the District's case was based on interviews
and the claim that Ms. Frank did not have regular education experience.
The District witnesses believed that being a good team player would be a
positive characteristic; however, they did not contend that Ms. Frank was not of
that caliber. Her evaluations indicate she is a team player.
According to the Association, the parties have discussed voluntary
transfers over the years and have agreed that in-house teachers should be
allowed to transfer with relative ease within buildings and throughout the
District. Placing new hires over
resident teachers does not meet the intent of the contract language. The philosophy of the District is that teachers should be
able to transfer, as is evidenced by language in the agreement requiring
transfer after 16 years in the same building assignment.
The language was proposed by the District.
Where the contract provides that the District "shall" do
something, it is mandatory, not discretionary on the part of the District, the
Association urges. The fact that
teachers are allowed to apply for transfers is not enough to satisfy the
District's mandate to encourage transfers.
It is clear that Colleen Frank has not been encouraged to transfer.
Management's discretion must be reasonably exercised, the Association
argues, it cannot be arbitrary, capricious, or unreasonable in nature. The District showed no procedure or practice that it used to
determine qualifications for transfers, nor did it show a standardized procedure
to determine whether a resident teacher or a new hire filled a position.
No standardized ranking system was used for candidates.
There was no objective method used in making evaluations of candidates.
Compared to a new hire, Colleen Frank is a tested, well-educated, and
experienced teacher. The District
has little knowledge of a new hire's performance and experience, in the
Association's view. The voluntary
transfer provision of the agreement does not accord the District the absolute
right to assert that an employee is unqualified; some rationale must be
provided. A standard of
reasonableness is impliedly a term of a collective bargaining agreement.
The Association maintains that it is ludicrous for the District to say a
specialist is less qualified than a practitioner.
Ms. Frank went beyond her certificate in regular education to specialize
in special education and then she went on to obtain a master of science in
elementary education. As a special
education teacher, she covers the same skill areas as do regular education
The District contends that the collective bargaining agreement reserves
to the board of trustees the exclusive right to select teachers from a slate of
applicants. The contract only
guarantees a process for applying for positions, and there is no evidence to
show that Colleen Frank was denied access to that process.
The right of the trustees to place teachers in positions for which they
are qualified is a matter of educational policy, not a subject of mandatory
The District devoted considerable effort toward the subject of mandatory
versus nonmandatory subjects of bargaining, citing First National Maintenance
Corp. v. NLRB, 452 U.S. 666 (1981), in support of its argument.
It argues that the placement of teachers is the exclusive prerogative of
the trustees. The agreement does
not contain any provision that gives the Association a right to participate in
decisions that affect District operations.
The management rights clause and Montana law recognize that such
decisions rest with the District. While the District has agreed to a procedure for voluntary
transfer, it has not agreed to relinquish the decision of who will be
transferred. Ms. Frank was
interviewed for every position for which she applied and that is all the
The grievance attempts to gain special consideration for special
education teachers, at the expense of other bargaining unit teachers, by asking
that special education teachers be guaranteed transfer into regular education
jobs, the District believes. The
agreement provides no such guarantee. Moreover,
if the Association prevails, the seniority of other teachers within specified
grade bands will be adversely affected.
The process and procedure for voluntary transfers was designed to
establish an accommodation for a candidate's training, education, and experience
as it relates to a specific position as judged by building principals, the
District urges. It is a process
that applies to all teachers, not only special education teachers.
Finally, the District argues that the remedy sought by the Association
exceeds the scope of the arbitrator's jurisdiction.
The grievance procedure provides that decisions by the arbitrator are
subject to the limitations of Montana law, and such decisions cannot be in
violation of the terms of the agreement. Furthermore,
the arbitrator must give due consideration to the statutory rights and
obligations of the District to efficiently manage its operations.
To award any of the remedies sought by the Association would require that
the arbitrator create a new contract provision that would be at variance with
those negotiated by the parties.
The parties disagree over the meaning of those words found in article 7-3
of their agreement that require the District to encourage the voluntary transfer
of teachers. The substance of the
dispute is whether the phrase "shall encourage" means the District has
an affirmative obligation to place teachers, who apply to transfer to other
positions, in those positions or simply make available to them a procedure so
that they may be considered for such positions. It is a contract interpretation question that must be
addressed by determining what was the mutual intent of the parties.
Contrary to the District's assertion, the substantive issue here is one
of contact interpretation, not statutory construction.
The issue is not whether the placement of teachers is a mandatory subject
of bargaining. The District has in
fact bargained a provision in the collective bargaining agreement that addresses
the voluntary transfer of teachers. Whether
that provision creates a contractual obligation on the part of the District to
place teachers after they ask to be transferred is the relevant question.
It is apparent that the language of the agreement that is in dispute is
ambiguous. The intent of the
parties is not clear and cannot be determined using no other guide than the
contract itself. A single, obvious,
and reasonable meaning does not appear from a reading of the language in the
context of the whole agreement.
Since the language in question is ambiguous, it is necessary to turn to
evidence other than the agreement itself to determine the parties' intent.
In the absence of clear contract language. and where no past practice
exists to show intent, it is helpful to look to past practice and the bargaining
history of the contract section in controversy.
The former president of the Association, who had been involved in
numerous negotiations over the article in dispute, testified on cross
examination that the language is discretionary on the part of the District, and
that the Association has repeatedly tried to negotiate language that would
require the District to give preference to current employees over new hires.
He went on to state that the District has successfully resisted the
Association's effort to negotiate such preference into the contract.
There is no evidence on the record to show a specific past practice.
The District has interpreted the language of article 7-3 to mean that
only the process is guaranteed, the District reserves the right to make the
actual determination and selection. No
evidence shows the Association to have acquiesced in that interpretation,
although the District has been acting in accordance with its interpretation for
a considerable period. The
Association contends the parties have discussed the problem in the past and have
decided that voluntary transfers should be accomplished with ease.
That statement is obviously contrary to the District's position in Ms.
Frank's case. Moreover, no such
ease-of-accomplishment wording has been negotiated into the Agreement.
It is a well-established arbitral principle that where a conflict exists
between general and specific language in a contract, the specific language will
govern. See Elkouri and Elkouri, How
Arbitration Works, fourth edition, at 356 (BNA, 1975).
The specific provision of article 7-3 must prevail over the general
management rights clause referred to by the District.
Article 7-3 is at a minimum a limitation on the District's right to
unilaterally handle the voluntary transfer process unfettered by contractual
obligation. The key question is
what is the extent of that obligation.
The Association argues the District must have a convincing reason for
denying transfers, and that the basis for the denial must not be arbitrary or
capricious. The District must
provide some rationale, the Association contends, and I agree.
Arbitrators are reluctant to uphold arbitrary or bad-faith actions that
adversely affect employees, even though the agreement expressly permits
discretion in the matter. Green River Steel Corp., 41 LA 132 (Stouffer, 1963).
The record, however, does not support the Association's position.
It was the Association's burden to show by a preponderance of the
evidence that its interpretation of the agreement was the more reasonable.
It failed to do so. There is
insufficient evidence on which a conclusion can be drawn that the District acted
in an arbitrary, capricious, or unreasonable manner.
On the contrary, the record supports the conclusion that Colleen Frank
has been given an opportunity to transfer, but she has failed to come out on top
when interviewed by principals using their own criteria. I cannot say with positive assurance that the criteria were
unreasonable, and the agreement itself places no significant restrictions on the
discretion of the principals when evaluating and ranking applicants.
The two principals who testified said Ms. Frank was at or near the bottom
of their list of qualified applicants. There
is nothing on the record to show they were arbitrary in their evaluations.
That Ms. Frank has been unsuccessful 12 times while other special
education teachers have achieved transfers does not prove she is being treated
unreasonably. One of the criteria
emphasized by both principals was ability to fit into the educational philosophy
of the particular school. The
implication being Ms. Frank, in their view, does not fit.
I find nothing unreasonable about the criteria used in making their
determination, and there is no proof they acted in bad faith or failed to
exercise honest judgment. The
evidence does not show that the subjective judgment they used to evaluate and
rank candidates was exercised in an unreasonable or capricious manner.
No completely objective standardized method of evaluating and ranking the
ability of a teacher to adapt to the education philosophy of a school could be
The Association has been unable to negotiate a change in article 7-3 to
require the District to give preference to current teachers. Absent any showing that the District has acted arbitrarily,
capriciously, or unreasonably, I am unwilling to render an award that would give
what the Association failed to obtain through negotiations.
The District has encouraged voluntary transfers by posting notices in
buildings, by interviewing and evaluating candidates, and by transferring some
of the teachers who have applied. The
collective bargaining agreement requires nothing more.
Accordingly, the grievance is denied.
The question raised by the District concerning whether the remedy sought
by the Association can be provided is moot because I have decided there has been
no violation of the provision of the agreement at issue.
The District did not violate Article 7-3 of the Agreement; therefore, the
grievance is denied.
Dated this 3rd day of December 1993.
Jack H. Calhoun
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028