1993 NAC 110 Portland School District and Portland Association of Teachers

Title: Portland School District and Portland Association of Teachers
Date: August 15, 1993
Arbitrator: Luella E. Nelson
Citation: 1993 NAC 110

In the Matter of a Controversy

between

PORTLAND ASSOCIATION OF TEACHERS,

and

PORTLAND SCHOOL DISTRICT.

RE: Grievance of Kay Dodge - Involuntary Transfer

This Arbitration arises pursuant to Agreement between PORTLAND ASSOCIATION OF TEACHERS ("Association" or "PAT"), and PORTLAND SCHOOL DISTRICT ("District" or "PSD"), under which LUELLA E. NELSON was selected to serve as Arbitrator and under which her Award shall be final and binding upon the parties.

Hearing was held on June 4, 1993, in Portland, Oregon. The parties had the opportunity to examine and cross-examine witnesses, introduce relevant exhibits, and argue the issues in dispute. Both parties filed post-hearing briefs on or about July 16, 1993.

Mr. Randy Ventgen, UniServ Consultant, Oregon Education Association, 345 NE 8th, Portland, OR 97232-2708

Donna M. Cameron, Esquire, Miller, Nash, Wiener, Hager & Carlsen, 111 SW Fifth Street, 33rd Floor, Portland, OR 97204-3699

1. Is the alleged violation of Article 7A of the PAT/PPS collective bargaining agreement arbitrable?

2. Did the School District violate Article 10C1 or 9A of the PAT/PPS collective bargaining agreement or Section B1 of the February 28, 1991 PAT/PPS agreement regarding teacher transfers when Kay Dodge was transferred for the 1992/93 school year? If the answer is yes, what shall the remedy be?

Subject to the expressed terms of this Agreement, the Board and its designees hereby retain and reserve unto itself all powers, rights, authority, duties and responsibilities conferred upon and vested in it by the laws of the State of Oregon, including ... the selection, direction and assignment of its personnel, ....

The written formal grievance filed at any level shall contain the specific Agreement article, section and paragraph that has allegedly been violated (e.g. Article 18.H.1.), a short statement of the facts giving rise to the violation and the relief sought. The written response shall include the decision and the rationale for such decision.

Step 1. An employee grievance or an Association grievance affecting unit member(s) at a single building shall be raised by the filing of a formal written complaint setting forth the material required by Section B, Paragraph 8, at the office of the unit member's supervisor.

Step 2. Within seven (7) days the grievance shall be discussed by the supervisor and the unit member and, if requested by the unit member, up to two (2) persons approved by the Association, one (1) of which shall be designated as the official representative for the unit member.

Step 3. In the event no settlement occurs at the Step 1 meeting, the supervisor, within seven (7) days of the meeting, shall set forth the reasons for the decision.

Step 4. In the event no settlement occurs at Step 3, the grievance may be appealed to Level II by filing a written appeal within seven (7) days of receipt of the Step 3 response. Such appeal must specify the portions of the Step 3 response which are in disagreement and the manner in which each portion is in error. Alleged violations not raised in the written appeal are waived and shall not thereafter be raised or considered under this procedure.

If the grievance is pursued to arbitration, the issues before the arbitrator shall be limited to those presented at Level II. ...

Upon request of either party, the arbitrator shall first hear and rule in writing on questions of procedural and substantive arbitrability. Grievances, in order to be arbitrable, must have been processed according to this grievance procedure. Grievances must include only those issues described in Section 1 of this grievance [sic] unless otherwise agreed to by the parties. Grievances shall be heard unless the contract clearly is not susceptible to the interpretation cited in the grievance. Ambiguity shall result in the grievance being considered. If neither party requests a separate hearing on grounds of arbitrability, and if the arbitrator still rules that a grievance is not arbitrable, s/he shall not comment on the merits of the grievance in any way.

In matters of wages, hours and employment relations, or any other matter covered by this Agreement, the District agrees to follow a policy of not discriminating against any unit member on the basis of ... age ....

A. No unit member shall be disciplined, reprimanded or reduced in compensation without just cause.....

1. When the administration is of the opinion that a unit member should be transferred, the situation shall be discussed with the unit member. All reasonably practicable efforts will be made to effect a suitable re-assignment fairly and objectively, including consideration of the unit member's preference. A unit member will be notified through consultation as soon as possible but at least seven (7) calendar days prior to the transfer date. ....

1. Until the execution of the next collective bargaining agreement, the standard for review of involuntary transfers under Article 10.C.1 of the Agreement will be the arbitrary and capricious standard. An illustration of an arbitrary and capricious transfer decision would be one based on union activity. An illustration of an involuntary transfer decision which would not be arbitrary or capricious is a transfer due to a long standing irresolvable conflict between a unit member and a supervisor .... An involuntary transfer could not occur for teaching performance deficiencies (or for comparable deficiencies for those who do not teach) that would be dealt with in an Evaluation or a Plan of Assistance, or for any other reason that would violate the contract.

Grievant has taught in the District for 32 years. She taught second and third grade at the Maplewood School for twelve years, through the 1991-92 school year. This case involves the District's decision to transfer her involuntarily to another school for the 1992-93 school year. The stated rationale for the transfer, as set forth in a May 18, 1992, letter to Grievant, is as follows:

The ... transfer is based on numerous complaints from many parents (over the past several years) of students assigned to your classroom. This situation has reached the point that remaining at Maplewood is not in your best interest as a professional person.

As principal, I feel that a creative person and motivated teacher such as you needs to be relocated in another classroom assignment away from the Maplewood attendance area. ....

Grievant took a sabbatical leave for the 1989-90 school year. Upon her return for the 1990-91 school year, she taught a combined second-third grade class. On April 20, 1991, she received a very positive evaluation, with multiple commendations for "consistently exceeding minimum standards." On April 30, 1991, the school principal received a written complaint from two parents ("Family G"). The letter reported complaints from their son ("Child G") and another child ("Child B") in Grievant's class alleging the following behavior by Grievant:

3) Calling Child G dumb after Family G's parents met with District officials; and

4) Using money, candy and special privileges to induce children to be quiet and reward them for not acting up in class.

Grievant was on jury duty for two weeks in May 1991. During that time, the principal received three more written complaints. Director of Instruction Bill Beck testified it was unusual to receive such serious complaints about a single teacher in such a short time. Those complaints were as follows:

(1) A written complaint (from "Family M") noted that their son ("Child M") was bringing home homework that was too far above his grade level. That letter recounted reports from their son of kneeing, slamming heads on desks, and ridiculing children.

(2) A written complaint (from "Mother C") described incidents involving both her child ("Child C") and other children during school visits and field trips. The letter described incidents in which Grievant appeared not to know what she was doing, was unaware of the class' unruly behavior, did not keep track of children's whereabouts, and denigrated a child. She complained that Child C was not bringing homework home or discussing what he did at school. She passed on her son's reports that Grievant had ridiculed him in class; kneed him in the back and hit him over the head with a handful of papers; rewarded him with money; and made a big deal about Child C's new shoes and "even tried them on and wore them part of the day." She complained that Grievant persisted in requesting to take Child C to lunch as a reward for a memorization contest, even after Mother C made it clear she did not want the lunch to occur. She noted that her son's attitude about school had improved greatly under a substitute teacher, and suggested that the District use that substitute teacher to finish out the year. She threatened not to send her son to school if Grievant returned to the class from jury duty. She noted that she had complained to the principal about many of the events in her letter in February, but had not seen improvement in Grievant's behavior.

(3) A written complaint, from Child B's father ("Father B"), echoed the complaints in Family G's letter. He alleged Grievant had forced Child B to write that he was a "liar" and had grabbed him inappropriately. Father B threatened to report these actions as child abuse, unless the District gave assurances that abusive acts would not occur. In a separate letter to Superintendent Matthew Prophet, Mother B recounted in detail conduct her son had reported to her, conduct she had observed herself, and adverse behavioral changes she attributed to his experiences in Grievant's class.

The principal responded to Family B's written complaints by letter. He told them of his findings of inappropriate conduct; he also told them he had found no evidence to substantiate some charges, including slapping children and grabbing or pulling Child B. He noted that he had not reported any child abuse because his investigation did not substantiate any such abuse. Ne noted that, by contract, various forms of discipline could ensue, but that Grievant had the right not to have the level of discipline shared publicly. He promised to monitor Grievant's classroom closely.

Meanwhile, in response to the April 30 written complaint, the District had informed Grievant of evidence that she had kneed children and called them inappropriate names. On May 14, the District issued a written warning not to touch children inappropriately or use inappropriate language in referring to children. The District transferred Child G into another class. On May 21, Family G notified the District of reports from their son that Grievant was telling others that the children had lied. Family G also complained that their son was behind academically compared to the other students in his new class because Grievant had not taught multiplication or spelling.

On May 21, the District issued a "Plan of Assistance" ("POA") for Grievant, to run through the end of the school year. That POA addressed two concerns--the need to make parents aware of the academic offerings in her classroom, and classroom control/behavior management. As to the first, the POA called for her to send home weekly letters describing the activities to take place in the coming week. As to the second, the POA called for her to give private, positive discipline when necessary; avoid negative name calling; give positive feedback for correct behavior and performance; and make discipline "private, gentle, reasonable and appropriate to the infraction." Beck testified the District intended the POA as progressive discipline. That POA terminated on June 11.

Grievant testified she believed part of the problem in 1990-91 was that she was teaching a split class. In her view, parents dislike split classes because of the lack of peer contact and concerns over appropriate curriculum (depending on whether the student is a second or third grader). She believed the parents' concerns would dissipate once she returned to teaching just one grade level.

At the start of the 1991-92 school year, in response to parent requests, the new principal, Ralph Hodges, transferred four children out of Grievant's second grade class. Such transfers are common. The parents of three other children expressed concern over having their children in her class, but agreed to permit them to remain. The District was able to transfer one child into Grievant's class, and added other children who transferred into the school during the year. The transfers left Grievant with only 18 students at one point, while the other two second grade classes had 23 or 24 children. Grievant and Hodges agree that her class' behavior was more difficult than usual. Hodges attributed this, in part, to the parental objections to having their children in her class. These objections prevented him from creating a heterogeneous mix of children in her class.

The parents of one child who transferred out of Grievant's class ("Family A"[1]) went beyond merely requesting a transfer. They told Hodges they would not tolerate Grievant continuing in the building and threatened to generate a petition for her removal. He asked them not to petition, and banned them from soliciting the petition near the school. For the next three evenings, they set up tables and chairs just outside the school grounds and circulated petitions at soccer games. They eventually submitted to the District a petition bearing 31 signatures and reading as follows:

We, the undersigned, are parents who have had children who at one time or another were either assigned to [Grievant's] classroom, or were not assigned to her classroom due to our insistence that they be assigned to another teacher, or would have taken our children out had they been assigned to her. Speaking from our many experiences, it is our opinion that she is totally unfit to teach children. We insist that she be replaced immediately as some kind of action has been assured us many times over the past years.

Grievant did not know 10 of the signatories (of whom one had requested and received a transfer out of Grievant's class for her child[2]). The remaining 21 had students in her class at some point. Of those, she testified 12 had never made complaints to her (including both parents in Families A and M). The remaining 9 had made complaints. Of the latter group, one (Mother C) had told her of complaints about her most recent student, but not about two earlier students, and another had no problems with one child but had expressed reservations with a second.

With the petition, the parents submitted a group of unsigned statements describing various incidents of alleged misconduct. The District took no action on these statements. Grievant did not see these statements or the petition until after her transfer. Beck advised Family A that he would consider the petition and unsigned statements as statements of concern. He further noted the District had already addressed the concerns and allegations in the signed letters of complaint.

Mother B submitted a letter of complaint in early September. In it, she repeated her earlier complaints and requested Grievant's immediate removal. She recommended specific prohibitions on certain conduct--notably, closing the classroom door, bringing in a personal friend to help in the classroom, rewarding children with soda pop and candy, taking punitive action against children, taking excessive recesses, and making unkind remarks about children.

In response to the petitions and statements, Principal Ralph Hodges developed a Plan for Principal Observation and Support ("PPOS") on September 9. It included the following elements:

(2) Grievant would confer with him daily regarding students who were frequently off-task, causing interruptions, or requiring discipline.

(3) Hodges would share parent complaints with Grievant and attend parent conferences.

(4) Grievant would develop a weekly class newsletter; Hodges suggested that students participate in writing it.

(5) Grievant would assign particular tasks to parents who volunteered to work in the classroom.

Beck and Hodges testified the PPOS was not discipline. In their view, it was simply an offer to provide Hodges' expertise to assist her, reassure the community that Hodges was on top of the situation, and allow Hodges to give her good feedback. Grievant had the opportunity to decline the assistance, whereas a POA is mandatory. Grievant testified she believed the PPOS was mandatory.

Less than two weeks into the school year, one mother who had reluctantly agreed to allow her son to remain in Grievant's class wrote a letter to Hodges complaining that Grievant's class had spent one afternoon watching the movie Home Alone. She cited this as an example of low academic standards. Hodges considered movies an appropriate use of time on rainy days. However, he did direct Grievant to avoid violent movies, including Home Alone, in the future.

The District's Teacher Evaluation Process calls for at least one prescheduled observation for permanent teachers each year, and at least three for probationary teachers. Although more observations may be scheduled, the Process notes that "an unusually extensive number of observations should coincide with the use of a plan of assistance." Hodges observed Grievant's class 15 times during the year, mostly in the first half of the year. He saw improvements in behavior among some of Grievant's more difficult students,[3] and parents of students in her class were generally satisfied. However, the class remained more disruptive than other classes, and the chaos sometimes spilled into the hall. He testified that parents who observed this overflow were unhappy because it contrasted with the behavior in other classes. He testified that complaints were still coming in. When parents approached him with complaints, he assured them he was on top of the situation and described the PPOS. In early 1992, Grievant was involved in minor incidents in which she laid hands on the students. Based on her explanations and those of the children, Hodges took no action in response to those incidents.

Hodges raised the idea of a voluntary transfer with Grievant at the time of the petition drive. Grievant rejected the idea, and he dropped it. Hodges also suggested that he give her a systematic evaluation in which she could state her long-range goals and activities. He saw this as a way for him to cite examples of her good teaching and document more clearly the kind of teacher she was. Grievant was not scheduled for evaluation in 1991-92, and rejected the idea of an unscheduled evaluation. She testified she did not want an evaluation from Hodges in 1991-92.

Hodges and Beck met on November 4 with the Assistant Director of Personnel to discuss Grievant's situation. Hodges asked if he could do an unscheduled evaluation despite Grievant's objection. Beck rejected the idea of doing an evaluation because Grievant had a good evaluation the preceding year and he was not concerned about her performance. Instead, he wanted to improve the community confidence in her. To do so, they agreed to increase the intensity of observations and share the parental complaints with Grievant. Beck and Hodges testified it was normal practice to retain all complaints, share them with the affected teacher, and document any response.

In Spring 1992, Beck discussed with Hodges the possibility of transferring Grievant, if necessary to address parental concerns. Although Beck was unaware of any further complaints, Hodges reported a continuing concern over lack of support in the community. Beck therefore approved an involuntary transfer. Beck testified that such non-disciplinary transfers are a common response to community objections to teachers and principals. He himself was transferred in response to a petition for his removal as a school principal.

Hodges testified he had no reason to believe the community concerns had been resolved. He predicted the close-knit and active parental community would force him to put together another equally disruptive class for Grievant in 1992-93. Although his observations had convinced him that she was a good teacher, he did not believe he could convince the community of that.

Hodges informed Grievant on April 27 that the District was transferring her to an as-yet-undetermined school. He testified he had informally discussed the idea of an administrative transfer with Grievant during the week before April 27. Grievant denies hearing of the administrative transfer before April 27. Hodges testified that he told her the situation with parent support had not changed, and that he would probably have to give her a class similar to the one she then had. He testified she had no suggestions for ways to improve community support.

The grievance cited Articles 10.C.1 and 9.A. of the Agreement, and Section B.1 of the Settlement Agreement. It requested that Grievant continue to be assigned to Maplewood for 1992-93. Hodges' Level I, Step 3 response read, in relevant part, as follows:

... I consider the administrative transfer to be a valid action consistent with my letter informing [Grievant] of the transfer .... I do not concur that the transfer is arbitrary. Just cause is substantiated by the substantial testimony of lack of confidence documented in parent letters. [Grievant's] professional career will be better served with her relocation to a different school site.

At the Level II hearing, the Association received a copy of a September 1991 letter in which Beck recounted Grievant's recent history of parental complaints. That letter noted, inter alia, that the two most recent school principals had counseled Grievant to retire, and suggested that Hodges continue to recommend retirement. The letter noted the District could offer to forgive her obligation to teach for three years following her 1989-90 sabbatical, and described such an offer as an "attractive carrot" to retire. The Association asserts that it first became aware of this counselling at the Level II hearing, and that it raised it as a violation of Article 7A orally. It did not file a written grievance or seek to amend the existing grievance to include this allegation at the time.

The Level II, Step 1 hearing officer, Merle Bradford, recommended that the grievance be denied. Bradford found the principal was dealing with a potential volatile situation, and that he recognized Grievant's strengths and gave her the opportunity to teach in another school. He made no reference to alleged age discrimination. The Board adopted this decision on October 22.

The Arbitrator is limited to issues raised at the Level II hearing. The Union raised age discrimination at the Level II hearing. It did not raise it earlier because it did not have the evidence of that violation until the Level II hearing. There is no contractual requirement for extra written notice to the District after the Level II hearing. This claim is simply an additional argument regarding Grievant's transfer. It would make no sense to have two grievances both involving the same act. If there is any ambiguity on this issue, the grievance should be heard. If the Arbitrator rules against Grievant on the case in chief, the age discrimination arguments should be heard.

Grievant's transfer was unreasonable and arbitrary. There were no complaints at the time of transfer. Instead, the decision was based on complaints that "would have" occurred in the future. The complaints from the prior year should have been discounted. Some petition signers did not know Grievant, and only a few had indicated any prior concern. The unsigned statements were solicited by a very small number of parents. The complaints had not disrupted school operations. District administrators did not believe the complaints were valid. The District's stated intent and practice is not to encourage a mob mentality among parents. Grievant had no notice of a possible involuntary transfer. She did not see copies of any complaints until after she was transferred.

The District acted inconsistent and irrational during the year preceding the transfer. Three weeks after a good evaluation, the District gave Grievant a written reprimand and put her on a POA based on the complaints. The next school year, it put her on something that looked like a POA, but said it was something else. Hodges waffled regarding whether things were going well in her class and regarding parent attitudes.

Evidence exists of administrative collusion at the November 4 meeting. By deciding not to do an evaluation, the District sought to avoid the prohibition against transferring for evaluation reasons. Hodges was also instructed to accumulate as much complaint material as possible to support a transfer.

Grievant was transferred for performance reasons. Such transfers are prohibited. The types of parent complaints here are all specifically part of the District's evaluation form. The District put Grievant on a POA based on these same issues. The next fall it did the same thing without calling it a POA. The PPOS contains the elements required for a POA, and the frequency of observations matches the frequency for a POA. This case is founded on grounds other than interpersonal conflict, and thus cannot use performance-related reasons as a basis for the transfer.

The transfer was discipline without just cause. The Agreement prohibits such transfers. Reassignment or removal of staff from a building solely because of parent complaints has been found to be discipline without just cause.

Grievant should be returned to her teaching position at Maplewood for the 1993-94 school year.

The Arbitrator has no jurisdiction over the Article 7A claim because it was not properly processed according to the grievance procedure. The written grievance did not allege a violation of Article 7A. Although the Association may have become aware of Beck's letter for the first time at the Level II hearing, it did not properly present the Article 7A issue at the Level II hearing.

The mere fact that an issue is discussed at a grievance meeting does not preserve it for arbitration. The Agreements requires specification of grievances in a formal written complaint. It does not permit an unwritten allegation to be transformed into a properly raised grievance simply by mentioning it during a grievance hearing. The Association's position would be unworkable and contrary to the express intentions of the parties. It would also chill open and free discussion during grievance meetings.

If the Association first discovered the Article 7A issue at the Level II hearing, it should have filed a new formal written grievance specifically raising that issue, within 30 days of discovering the facts allegedly giving rise to the violation. The new grievance could have been joined with this grievance and processed together. The Association did not file a new grievance, and cannot expand the grievance at arbitration.

The administrative transfer did not violate Article 9A. Such transfers are not disciplinary and are expressly authorized. The transfer was not intended to be discipline and was not conveyed to Grievant as discipline. Unlike an earlier cited case, this does not involve an investigatory suspension.

No link was shown between the May 14, 1991, warning letter and the decision to transfer Grievant. The warning letter was based on findings that Grievant had exhibited some of the inappropriate behavior alleged by parents. The corrective action appropriate to those limited findings ended by the end of the school year. The decision to transfer her was not based on a decision that the parents' complaints were valid or on any determination that she was a bad teacher. To the contrary, Hodges approved her instructional methods. However, the community refused to accept her. The transfer gave her a chance to succeed professionally in a different environment.

The transfer was not arbitrary or capricious. Under the standard adopted by the parties, the Arbitrator does not assess whether she would make the same decision if she were in the principal's shoes. The standard is whether there is a rational basis for the decision or whether the principal acted out of malice or pretext.

This transfer was justified by the widespread lack of parental trust and support for Grievant, as evidenced by the letters, demands for transfers, and the petition. Parents who did not even know Grievant and never had children in her class petitioned for her removal. Grievant could not explain why parents who did not know her would sign a petition calling her incompetent and demanding her removal. There was no apparent way to restore the parents' trust and support. Significant administrative and educational problems resulted from the student transfers demanded by parents. The disparity in class size was unfair to other teachers and the students in larger classrooms. The poor student mix in her class resulted in behavior and discipline problems and a poor learning environment.

Hodges had reason to believe the poor learning environment would reoccur in 1992-93. He did not believe the complaints had been resolved. Although he received satisfactory explanations for incidents in which Grievant put her hands on students, these complaints reinforced the community's perception that she was too harsh on students. The continuing discipline problems with her class also reinforced her reputation. Hodges expected to have the same parent objections to having their children in Grievant's class. This, in turn, would re-create the same bad mix of students and further reinforce the parents' perception that she was a bad teacher.

It is not arbitrary to transfer a teacher because of a negative relationship between the parents and the teacher. Parents play a vital role in the education process. The District encourages parental involvement, and cannot ignore concerns and complaints, even if they are inaccurate. Parents pay the bill for the District's operations. The District cannot afford to alienate its taxpayers.

When a community refuses to accept a teacher, it is best for the students to move the teacher, even if the teacher has done nothing wrong. Parents and teachers cannot cooperate in the educational support of students when they are at odds. Excellent employees are sometimes transferred because they are not accepted by the community in which they work.

Dr. Hodges did not behave arbitrarily or capriciously in responding to parents. He supported Grievant and tried to improve community support for her. He reasonably concluded he had to transfer her. The conflict with parents was irresolvable. He had no way to force them to change their opinion and accept her. Grievant also had no suggestions to resolve the conflict. She is deluding herself in believing the lack of confidence will just disappear.

The transfer was not based on performance deficiency. It was not based on a determination that the parents' complaints were valid or that Grievant was a deficient teacher. It was an attempt to give her a clean start in a community that could accept her. The POA did not preclude a transfer. The existence of performance problems does not preclude transfers. The District does not transfer teachers because of performance deficiencies. A transfer does not solve a performance deficiency. Grievant's performance deficiencies were dealt with in an appropriate way--by the written reprimand and the POA. However, the same characteristic or problem can reflect on a teaching deficiency and also illustrate an irreconcilable conflict, necessitating a transfer.

The PPOS was not a POA. It had a different purpose, did not list performance deficiencies, did not list improvements in performance that Grievant was expected to achieve, and did not provide a date for completion. The frequency of observations does not make the PPOS a POA. Grievant did not oppose those observations, but understood Hodges was trying to help her. The frequency was a way to keep parents calm, persuade them to leave their children in Grievant's class, and permit Hodges to respond to parent concerns. Observations were not used to evaluate Grievant's teaching performance or harass her.

The Arbitrator should reject the claim that the District should have evaluated Grievant. She had just been evaluated in the spring of 1991. She refused Hodges' offer of an evaluation in the 1991-92 school year. She cannot now complain that the evaluation she refused was not done.

Procedural grievance requirements are as enforceable as any other provision of the Agreement. The parties tailor such requirements to their needs, and rely on them to maintain orderly and effective contractual relationships. Such requirements are jurisdictional. Thus, regardless of the merits of a claim, if a grievance has not been brought to arbitration through the agreed-upon procedure, the Arbitrator cannot hear the grievance unless the District agrees to waive the defect.

The Association bears the burden of establishing that the District's transfer decision was "arbitrary and capricious." This standard is well established in labor relations. Under this standard, the Arbitrator cannot overturn a decision simply because she disagrees with it. Rather, the sense of this standard is that management acted with no rational reason, or for a bad reason. It is thus an unusual case in which a managerial decision will be overturned under this standard.

Finally, Article 9A is a straightforward just cause provision for discipline. For it to apply, the Association must establish that the transfer was disciplinary in nature. If the Union can make that foundational showing, the District bears the burden of establishing just cause for discipline.

The Agreement is clear and unambiguous. The Association must initiate a grievance by filing a "formal written complaint" setting forth the material allegations--i.e., the specific contractual provision allegedly violated, the underlying facts, and the relief sought. The obvious intent of such specific language is to encourage the full exploration of all options to resolve grievances. The remainder of Article 6 provides a process of investigation, negotiation, and honing of positions. At each level, the Association must specify in writing the unresolved issues. Given this very specific language, a verbal discussion at the Level II hearing could not meet the procedural requirements for presentation of a grievance. Accordingly, the alleged violation of Article 7A is not arbitrable.

Like most contracts, the Agreement reserves to the District the discretion to assign personnel. The Agreement itself contains no specific limitations on transfers. Article 10C1 simply discusses the mechanics of an administrative transfer when the District "is of the opinion" that a teacher should be transferred. The substantive restrictions on such transfers lie in the Settlement Agreement. Even there, the District retains very broad discretion.

The Association has not established that the transfer was based on teaching performance deficiencies that could have been addressed through an evaluation or through a POA or other disciplinary measures. Although the District identified deficiencies in 1990-91, it dealt with them at the time through a written warning and POA. No evidence exists that those deficiencies reappeared in the 1991-92 school year. On the contrary, Hodges considered Grievant a very good teacher and approved of the work he saw in his many visits to her class.

The District did face a serious problem with Grievant, however. Local parents were sufficiently dissatisfied to prompt a heated campaign for her removal. Some parents knew Grievant because of older children who had been in her classes; others learned of her through word of mouth. The willingness of the latter group to join in the campaign against her, without any personal knowledge of her abilities, demonstrates the high level of animosity toward her in the community. Regardless of the merits of their concerns, the vehemence of their objections led to very real operational problems in the 1991-92 school year. Consistent with its educational and community obligations, the District had to find an effective response to those concerns.

The District took moderate steps to address the parental concerns through the PPOS. This satisfied Grievant's own students' parents. It did not fully remedy the effects of the class assignment problem created by the campaign against her. The chaos in her class foreseeably reinforced her negative image among those parents already disposed to think ill of her.

The performance deficiencies identified in 1990-91 may well have contributed to at least some of the parental hostility toward Grievant. However, parental opposition was an issue with a life of its own, independent from performance concerns. Family A's prominence in the campaign against her demonstrated the longevity of the parental community's memory.[4] On this record, Hodges reasonably concluded that the animosity against her had not dissipated in a single year. It was not arbitrary or capricious to remove her from this negative atmosphere and give her a chance to live up to her full potential at another school.

Hodges notified Grievant of the proposed transfer on April 27, three weeks before the formal written transfer notice, and months before the start of the new assignment. It is unnecessary to resolve the credibility dispute regarding earlier notice. The April 27 notice met the requirements of Article 10C1.

Finally, the Association has not established that the decision to transfer Grievant was a disciplinary measure. No evidence exists that administrative transfers are commonly viewed as discipline.[5] Unlike an earlier case cited by the Union, this case did not involve outright removal from classroom teaching, nor did the transfer occur in the context of an ongoing investigation. The PPOS differed in tone and substance from the earlier POA. No evidence exists that new grounds for discipline arose in 1991-92. The "just cause" standard simply does not apply here.

For all of the above reasons, it is concluded that Grievant's transfer did not violate the Agreement in the particulars alleged by the grievance.

1. The alleged violation of Article 7A of the PAT/PPS collective bargaining agreement is not arbitrable.

2. The School District did not violate Article 10C1 or 9A of the PAT/PPS collective bargaining agreement or Section B1 of the February 28, 1991 PAT/PPS agreement regarding teacher transfers when Kay Dodge was transferred for the 1992/93 school year.

[1] Grievant had an older son of Family A in her class years ago. She testified he is now a freshman or sophomore in college.

[2] That transfer request rested on a desire to have her son remain in the same class as his friend, who had transferred out. It requested a transfer even if Grievant was replaced.

[3] The minutes of an April 27, 1992, Maplewood Staff Meeting included a report of a compliment from Hodges to Grievant on the "improved behavior of her kids since she has worked with the parents. The gang and group things have disbursed [sic]."

[4] This involvement also suggests that parental concerns predated Grievant's 1990-91 split class.

[5] On the contrary, the Settlement Agreement specifically precludes administrative transfers for performance reasons.