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Title: Missoula Elementary School and Missoula Elementary Education Association
Date: December 3, 1993
Arbitrator: Jack H. Calhoun
Citation: 1993 NAC 101




ARBITRATION BETWEEN,                                  )



ASSOCIATION, MEA/NEA,                                    )          

                                                                                   )            OPINION

                                              Grievant,                        )             AND

                                                                                    )           AWARD

            and                                                                   )


MISSOULA ELEMENTARY SCHOOL                     )

DISTRICT NO. 1,                                                        )

                                                Employer.                    )






Jack H. Calhoun



FMCS Case No. 93-08331




Hearing Held

August 20, 1993

Missoula, Montana











FOR THE ASSOCIATION:                         FOR THE DISTRICT:


Sandy Bushek, UniServ Director            Don K. Klepper

MEA/NEA                                                                     Director of Personnel

3700 S. Russell Street                           School District No. 1

Missoula, MT  59801                           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 issue.


            The following provisions of the parties' 1991-93 collective bargaining agreement are relevant to the issues in dispute:


In 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:


A.            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.


B.            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.


C.         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.


D.         Once placement of resident teachers has been completed within the prescribed timelines, the District will consider new hires to fill the remaining vacancies.


E.            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.




The 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:


A.         To execute management and administrative control of the school system and its properties, facilities, and programs.


B.         To employ and re-employ all personnel, determine the methods, means, job classifications, and personnel by which operations are to be conducted.


C.         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.


D.         To consolidate or eliminate any teaching position.


15-1  GRIEVANCE DEFINITION:            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 Association.


15-4  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.



            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 objection.

            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 advisement.

            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.


The District

            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 authority.

            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

            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 grievance.

            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.


            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 grievance.

            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 agreement.

            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 agreement.

            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.


The Association

            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 teachers.

The District

            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 bargaining.

            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 agreement provides.

            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 devised.

            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





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