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Title: Granger School District and Public School Employees of Granger
Date: June 16, 2003
Arbitrator: Sandra Smith Gangle
Citation: 2003 NAC 113

AMERICAN ARBITRATION ASSOCIATION

In the Matter of the Arbitration
between

PUBLIC SCHOOL EMPLOYEES OF GRANGER, an affiliate of Public School Employees of Washington,

                                   Association,

     and

GRANGER SCHOOL DISTRICT,

                                   Employer

Case No. AAA 75 390 42 02

Lena Zapien Grievance

DECISION AND AWARD

Sandra Smith Gangle, Arbitrator

 

Hearings Conducted:

February 12 and April15, 2003

Representing the District: Jeanie R. Tolcacher, Attorney at Law
Lyon, Weigand & Gustafson PS
P.O. Box 1689
Yakima, Washington  98907

 

Representing the Association: Elyse B. Waldman, Staff Attorney
Public School Employees of Washington
P.O. Box 798
Auburn, WA  98071

 

Arbitrator: Sandra Smith Gangle, J.D.
Sandra Smith Gangle, P.C.
P.O. Box 904
Salem, OR  97308-0904

 

Date of Decision: June  16, 2003

 

                                                 BACKGROUND

            This matter came before the arbitrator pursuant to a collective bargaining agreement between the parties effective between September 1, 2000 and August 31, 2003.  Jt. Ex. No. 1.

            A grievance was filed in this matter on or about October 25, 2001.  See Jt. Exhibit 6.   The parties, having been unable to resolve the disputed issues during the grievance procedure, mutually selected Sandra Smith Gangle, J.D., whose office address is SANDRA SMITH GANGLE, P.C., P.O. Box 904, Salem, Oregon 97308, through selection procedures of the American Arbitration Association, as the labor arbitrator who would conduct a hearing and render a decision in the matter. 

            The District raised a threshhold objection to the procedural arbitrability of the grievance.  The parties agreed that the arbitrator should bifurcate the hearing and decide the timeliness issue before taking evidence on the merits of the case.  A hearing was conducted on the procedural issue on February 12, 2003 in a conference room of the Comfort Inn in Zillah, Washington.  The parties were thoroughly and competently represented by their respective attorneys, Jeanie R. Tolcacher, Attorney at Law, for the District and Elyse B. Waldman, Legal Counsel for PSE, for the Association.  Witnesses appeared and testified under oath and were subject to cross-examination. Documentary evidence was submitted to the arbitrator.  At approximately 4:00 p.m., the parties completed their evidence and argument and submitted the procedural issue to the arbitrator for a bench decision. Upon reviewing the record and the parties’ collective bargaining agreement, the arbitrator determined that the grievance was procedurally arbitrable and that a hearing should proceed on the merits.

            The parties reconvened for the hearing on the merits on April 15, 2003.  The parties were each afforded a full and fair opportunity to present testimony and documentary evidence in support of their respective positions.   The following witnesses appeared and testified under oath and were subject to cross-examination:  (a) For the District: America Zaragoza and Graciela Valencia; and (b)  For the Association: Lena Zapien (the Grievant), Louise Van Corbach and Bud Myers.

            Simultaneous written briefs were submitted by both parties in lieu of oral closing argument.   The arbitrator officially closed the hearing and took the matter under advisement upon receipt of the parties’ briefs on June 2, 2003.

            The arbitrator has carefully considered and weighed all the testimony and evidence offered by the parties at the hearing.  She has given careful consideration to the arguments of the parties, as contained in their briefs, and has reached a decision based on the parties’ collective bargaining agreement and the evidence.

           

                                     STATEMENT OF THE ISSUE

            The parties stipulated that the issue before the arbitrator is as follows:

            Did the District violate the collective bargaining agreement, specifically Section 10.7, when it selected America Zaragoza for the ECEAP para-professional position? 

RELEVANT CONTRACTUAL PROVISIONS

ARTICLE II

RIGHTS OF THE EMPLOYER

Section 2.1.     It is agreed that the customary and usual rights, powers, functions, and authority of management are vested in management officials of the District.  Included in these rights, in accordance with and subject to applicable laws, regulations and the provisions of this Agreement, is the right to direct the work force, the right to hire, promote, retain, transfer, and assign employees in positions; . . . .  The District shall retain the right to maintain efficiency of the District operation by determining the methods, the means, and the personnel by which operations undertaken by the employees in the unit are to be conducted

ARTICLE X

PROBATIONARY, SENIORITY, AND LAYOFF PROCEDURES

Section 10.1.    The seniority of an employee within the bargaining unit shall be established as of the date on which the employee began continuous daily employment and was approved by the board (hereinafter “hire date”) unless such seniority shall be lost [for resignation, discharge for justifiable cause, retirement or change in job classification within the bargaining unit].

* * * * *

Section 10.7.               The employee with the earliest hire date shall have absolute preferential rights regarding shift selection, vacation periods and special services (including overtime).  In making determinations regarding promotions and assignments to new and open positions the District will utilize the following equally-weighted criteria to make its determination of relative ability and performance: seniority (if all other factors are relatively equal, the senior applicant will be given the position), experience (direct and related) training, interview committee results, attendance/promptness and discipline history.  If the District determines that seniority rights should not govern because a junior employee possesses ability and performance substantially greater than a senior employee or senior employees, the District shall set forth in writing to the employee or employees and the organization’s grievance committee chairperson its reasons why the senior employee or employees have been bypassed.

ARTICLE XV

            GRIEVANCE PROCEDURE

* * * * *

            Section 15.2.1.               Employees shall first discuss the grievance with their immediate supervisor. . . All grievances not brought to the immediate supervisor . . . within thirty (30) days of the occurrence of the grievance shall be invalid and subject to no further processing.

Section 15.2.2.    If the grievance is not resolved to the employee’s satisfaction in accordance with the preceding subsection, the employee shall reduce to writing an informal statement of the grievance containing the following:

            A.  The facts on which the grievance is based;

            B.  A reference to the provisions of this Agreement which have been allegedly violated; and

            C.   The remedy sought.

* * * * *

Section 15.2.3.   If no settlement has been reached . . .[in accordance with] the preceding subsection,. . . a written statement of grievance shall be submitted within fifteen (15) working days to the District Superintendent, or the Superintendent’s designee. . . .

Section 15.2.4.               If no settlement has been reached . . . [in accordance with] the preceding subsection,

. . .  a written statement of grievance shall be submitted . . . to the District Board of Directors.  The employee reserves the right to appear before the Board of Directors to explain the grievance. . . .

Section 15.2.5.   If the grievant is not satisfied with the disposition of his/her grievance in the preceding subsection, the grievant may request in writing that the Association submit his/her grievance to final and binding arbitration of the grievance. . . .  If any question arises as to arbitrability, such question will first be ruled upon by the arbitrator selected to hear the grievance.

* * * * *

The arbitration shall be conducted in accordance with the Expedited Labor Arbitration Rules of the American Arbitration Association, except that Rules two, five and six shall not be applicable to this contract.

The arbitrator will be without power of authority to make any decision which requires the commission of an act prohibited by law or which is violative of the terms of this contract.  The arbitrator shall have no power to alter, add to, or subtract from the terms of this contract between the District and the Association.  . . . .

During the arbitration under this subsection, neither the District nor the Association will be permitted to assert any grounds not previously disclosed to the other party at Step Three.

The decision of the arbitrator will be submitted to the Board and the Association, and will be final and binding upon the parties.

The costs for the services of the arbitrator, including per diem expenses, if any, and his/her travel and subsistence expenses and the cost of any hearing will be borne equally by the Board and the Association. All other costs will be borne by the party incurring them.

                                                                                    Jt. Exhibit No. 1

                                    STATEMENT OF THE FACTS

            The undisputed facts of this matter are as follows:

            The District offers a State-funded pre-kindergarten program, known as the Early Childhood Education Assistance Program (ECEAP), to children from families whose incomes are at least 110 percent below the federal poverty level.  Similar to Head Start, the program is designed to assist needy children to prepare for kindergarten.  It focuses on the needs of the whole child – including nutrition, physical and dental care and cultural awareness.

            The ECEAP program serves three to four groups of twelve to fifteen students. Each group is taught by a lead teacher, who is a paraprofessional with a two-year degree in early childhood education or the equivalent.  A paraprofessional without any degree requirement is hired to assist each lead teacher.  In the current school year (2002-3), there were three lead teachers, two of whom were bi-lingual in Spanish and English, and three assistant teachers, similarly bi-lingual. There was also a Family Services Coordinator and the Program Director, both bi-lingual.

            According to testimony by the current Program Director, Graciela Valencia, more than half of the families served by the program are mono-lingual in Spanish.  Of the remaining families, some are mono-lingual in English and others bi-lingual in English and Spanish or English and Yakama Native language.  Some of the parents who speak English and Spanish are not bi-literate, that is, they are unable to read and write in English. 

            Among the Spanish-speaking children, there is considerable diversity in language development.  Some speak English quite well and in full sentences.  Others have limited vocabulary in English or they may use incorrect grammar or misuse prepositions.  One of the goals of the ECEAP program is to improve the students’ ability to understand and speak English.

            The family of each child in the ECEAP program is required to be involved in the child’s education.  At least two parent-teacher conferences take place every year, one in the classroom and the other in the child’s home. Many of the parents volunteer in the classroom and on the playground.  They assist teachers with mealtime supervision and they attend monthly meetings covering nutrition and dental health.  The English language skill of many of the parents is either weak or non-existent. 

            The ECEAP teachers and paraprofessional assistants must find ways to communicate with the parents who are mono-lingual in Spanish, or, if bi-lingual, cannot understand written English.  For example, when notes or printed documents are sent home with the children, the text must be translated into Spanish for those parents.  Also, when they call the school to talk to a teacher, there must be some process in place whereby language differences are accommodated and the parties can understand each other.  Usually the accommodation takes place through intermediaries who can translate from English to Spanish and from Spanish to English.

            Graciela Valencia, the ECEAP Program Director, is an experienced teacher with an elementary teaching certificate.  She is bi-lingual and bi-literate in Spanish and English and she is experienced as a teacher of English as a Second Language (ESL).  One of the lead teachers in the program is bi-lingual and the other is mono-lingual in English.  

            In September of 2001, the District posted a vacancy for a paraprofessional; in ECEAP.  The position was announced as a 6 ½-hour-per-day job.  The words “Bilingual preferred” were included in the posting, as was the following list of duties and responsibilities:

            1.  Prepare materials for parents/students as directed by the Director.

            2.  Make home visits to help parents achieve success with the literacy program.

            3.  Is under the direct supervision of the ECEAP Director.

            4.  Other duties as assigned.

                                                                                                See Jt. Exhibit No. 2.

            The Grievant, who was already employed as a paraprofessional with the District, applied for the ECEAP position.  Eleven other people, including America Zaragoza, applied as well. The Grievant had been hired as a permanent employee with the District in 1999, after first serving as a substitute and assistant cook.  She was assigned as a paraprofessional in the special education pre-school for four months, then worked in Special Programs with eight and nine-year-olds in third grade for the next two years.  In 2000-1, she worked in a kinder-literacy project for two half-hour segments each day, in addition to working in the third-grade classroom. Ms. Zaragoza had been employed as a substitute only with the District.  Prior to that, she had worked in a day care program for two-to-four-year-olds through the Migrant Council.

            The Grievant was interviewed for the ECEAP position on September 21, 2001.  Three other finalists, including Ms. Zaragoza, were also interviewed.  The Grievant was subsequently notified that she had not been selected for the position.  When she asked for an explanation, she was informed that “selection was made based on the bilingual and biliterate qualifications of  [Ms. Zaragoza].”  See Jt. Exhibit No. 5.  It is that appointment and its rationale that is the subject of the instant arbitration.

POSITIONS OF THE PARTIES

            A.        The Association:        The Association contends the District violated the parties' collective bargaining agreement when it failed to appoint the Grievant to the position of ECEAP paraprofesssional.  The Grievant was the more qualified and senior applicant and should have been awarded the position, pursuant to Section 10.7 of the agreement.  The District chose to appoint Ms. Zaragoza, a less qualified applicant with no District seniority, based on the single factor that she spoke Spanish.  Yet the District ignored the fact that Ms. Zaragoza’s English-speaking ability was weak. 

            Neither the announcement for the vacancy nor the position description provided that bi-lingualism was required, only that it was “preferred”.  See Jt. Exhibits Nos. 2, 18.  Other employees who speak only English have been hired as ECEAP paraprofessionals and they have been able to find ways to communicate successfully with Spanish-speaking students and families. For example, during the current school year, Louise Van Corbach, the employee who took over the ECEAP paraprofessional position after Ms. Zaragoza was laid off, was able to manage her duties, relying on the assistance of other staff and students who speak Spanish, even though she was not bi-lingual. 

            The selection process was flawed in that the interview committee evaluated the contractual factors incorrectly when they rated the finalists.  Seniority was improperly considered during the preliminary scoring and Ms. Zaragoza was given points for seniority that she did not have with the District.  Also, Ms. Zaragoza’s training and experience for the ECEAP position were overrated and, since she had no record of attendance and promptness with the District whatsoever, she should not have been given credit in that category.  Overall, her ability and performance were not substantially equal to the Grievant’s, yet her numerical rating by the committee came out one point higher than the Grievant’s.

            If the applicants had been rated properly, as required by the contract, the Grievant’s score would have been higher that Ms. Zaragoza’s, or at the very least, it would have been substantially equal to hers.  Then, when seniority was factored in, the Grievant would have won the appointment. 

            The Association asks the arbitrator to grant the grievance.  As a remedy, the Association asks that the District be required to place the Grievant in the ECEAP position and make her whole for all losses.

            B. The District:          The District argues that Ms. Zaragoza has the ability to speak, read and write Spanish, and to translate material from Spanish to English and vice versa.  When coupled with the evidence of her past experience, training and other qualities, Zaragoza’s ability and performance were substantially greater than the Grievant’s.  Therefore, the District did not violate the parties’ collective bargaining agreement when it appointed her to fill the ECEAP paraprofessional position.  The District asks the arbitrator to uphold the appointment and deny the grievance.

ANALYSIS AND DECISION

            The issue before the arbitrator is whether the Grievant was entitled to appointment to the ECEAP paraprofessional position or whether she was improperly bypassed by a junior applicant whose ability and performance were not substantially greater than her own.  The parties do not dispute that Section 10.7 of their labor contract governed the appointment and that the provision is a “relative ability” clause, the operative language of which is as follows:

. . . . In making determinations regarding promotions and assignments to new and open positions the District will utilize the following equally-weighted criteria to make its determination of relative ability and performance: seniority (if all other factors are relatively equal, the senior applicant will be given the position), experience (direct and related) training, interview committee results, attendance/promptness and discipline history.  If the District determines that seniority rights should not govern because a junior employee possesses ability and performance substantially greater than a senior employee or senior employees, the District shall set forth in writing to the employee or employees and the organization’s grievance committee chairperson its reasons why the senior employee or employees have been bypassed.  (Emphasis added).

            The first sentence of the quoted portion is a bit awkward in structure.  At first blush, “seniority” appears to be one of the criteria that is to be “equally weighted” with the five other decision-making criteria -- experience, training, interview committee results, attendance/ promptness and discipline history -- because the word “seniority” is listed as the first item in the list.  However, there is a parenthetical phrase following the word “seniority” that qualifies how seniority is to be factored into the rating process.  According to the parenthetical, seniority is to be considered onlyif all other factors are relatively equal”.  Therefore, logic dictates that seniority cannot be one of the factors that are “equally weighted” up front.  Seniority is a secondary factor that is only to be considered after the five other factors are weighed.  If two applicants are rated “relatively equal”, the applicant with greater “seniority” must be awarded the position.  See Section 10.1 of the contract for a definition of how “seniority” is to be established.  If, however, the result of the weighing of the factors is that a junior employee possesses “ability and performance substantially greater” than a senior employee, the District may appoint the junior employee to the position.

            The parties agree that, in an arbitration case involving the application of a relative ability clause like Section 10.7, arbitrators routinely apply a shifting burden of proof.  Where a senior applicant has been bypassed, the employer must demonstrate that the junior applicant who was selected was substantially or significantly better in ability and performance than the bypassed senior employee.  The union may rebut the employer’s evidence, by demonstrating that the applicants were substantially equal in ability and performance and, therefore, the senior employee should have been appointed.  Or, in the alternative, the union may offer rebuttal evidence showing that the evaluation process the employer followed was unreasonable or discriminatory and that the employer’s decision regarding the superiority of the junior applicant was based on factually inaccurate or incomplete information.  See, e.g., Wapato School District, 91 LA 1156, 1160 (Arb. Gaunt, 1988); Houston Power and Light, 103 LA 179 (Arbitrator Fox, 1993), cited in Elkouri & Elkouri, How Arbitration Works, (1999 Supp. to 5th edition), at 140.   The parties applied the shifting-burden-of-proof theory at the hearing.  The District went forward with its evidence first, to support its decision that America Zaragoza was substantially better in ability and performance than the Grievant, and therefore merited appointment to the ECEAP position in 2001.  The Association then offered rebuttal evidence. 

            The District offered the scoring sheets of the five team members[1] who had interviewed the four finalists[2] in September of 2001 to support its decision.  According to testimony offered by Ms. Valencia, the team asked the same questions of all four of the finalists and took notes on the answers that were given.  See, e.g., Exhibits U-5, p.2-6 and D-2, p. 2-6.  The team also reviewed the applications of all the applicants.  The team did not review any District personnel files for any applicant, however, nor did they review the Grievant’s past performance appraisals or training certificates which were available in her personnel record with the District.  Testimony of Ms. Valencia; See Exhibit U-4. 

            After the interviews, the interview team discussed all the applicants together in a group.  They used a scoring sheet that listed six categories for rating purposes: seniority, experience, training, interview committee results, attendance/promptness and discipline history.  See, e.g., Exhibits U-5, p.1 (Grievant’s score sheet) and D-2, p.1 (Zaragoza’s score sheet).  The group verbally rated each applicant on a scale of 0-5 in each of those six categories, through a consensus process.  In rating the “seniority” factor, they considered both in-District and out-of-district years of relevant experience.

            The committee gave the Grievant five points in each category except interview committee results, which they rated at three points.  Ms. Zaragoza, on the other hand, was given five points in every category except seniority, which the team rated at four points.  According to Ms. Valencia, the difference between the Grievant’s rating of three and Ms. Zaragoza’s rating of five under interview committee results was based on Zaragoza’s representation to the committee that she was bi-lingual and bi-literate in Spanish and English.  The overall result, therefore, was that Ms. Zaragoza received 29 points and the Grievant received 28.  

            The Association argues that those scores are so close that they should have been considered substantially equal.  Therefore, if the scores were computed in accordance with the contractual requirement and were reasonable, the Grievant should have been appointed to the position because of her seniority.  However, the scores were not in keeping with the contract, because seniority should not have been included as one of the initial rating categories.  Also, the scores were not reasonable, says the Association, because the Grievant had much stronger credentials under experience and training than Ms. Zaragoza had. 

            Ms. Valencia acknowledged in her testimony that seniority had been incorrectly included in the scoring process.  She said she did not consult the collective bargaining agreement before the interviews took place and someone in the personnel office had drafted the rating form.  She and the rest of the interview committee relied on applicants’ answers about “any type of experience,” both inside and outside of the District, she said, when they rated the categories of both seniority and experience.  They found that the backgrounds of both the Grievant and Ms. Zaragoza were substantially similar.  The important distinguishing factor between the two candidates, according to Ms. Valencia, was that Ms. Zaragoza was bi-lingual and bi-literate in English and Spanish, while the Grievant had no Spanish language skill.  That distinction led to the two-point difference in the scores of the two applicants in the category of interview committee results.

            The Association argues that the interview and rating process was arbitrary, in that it was based on limited information gleaned largely from the oral interview. Also, the process was unfairly subjective, in that the interview panel did not use a model answer sheet, nor did they use objective criteria for scoring the applicants’ answers.  They relied on their personal opinions, with no clear method for distinguishing good answers from weak ones. 

            The Association points out, for example, that Ms. Zaragoza received the same amount of credit for training as the Grievant received.  Yet her training was inconsequential and irrelevant in comparison to the Grievant’s training, in the Association’s view.  Also, although Ms. Zaragoza received extra points for saying that she was bi-lingual and bi-literate, the District offered insufficient proof establishing that she met those qualifications.  To the contrary, Ms. Valencia had noted on her rating sheet that Zaragoza’s English-speaking ability was “limited”, yet she did not deduct any points based on that limited English skill.  Also, the committee did not test Ms. Zaragoza’s reading and writing ability in either English or Spanish to determine whether she really was bi-literate, as she had represented to them.

            The Association argues further that the District put undue emphasis on Ms. Zaragoza’s Spanish-speaking ability, when there is no requirement in the ECEAP paraprofessional position description that the person holding that position speak Spanish.  Also, the Association proved, through testimony by Louise Van Corbach, a non-Spanish speaker who has held the ECEAP paraprofessional position this past school year, that a paraprofessional can effectively communicate with Spanish-speaking students and parents even if he/she speaks only English.  According to Ms. Van Corbach, most of the Spanish-speaking students can understand enough English to follow most of her directions.  When a student has difficulty understanding, there are usually other students nearby who are willing and able to translate the teacher’s directions into Spanish.  Although she acknowledged that it would be a benefit for the ECEAP paraprofessional to understand and speak Spanish, especially when dealing with home visits, Ms. Van Corbach said there are usually other staff members available who can help English-only staff when necessary.  She said she could not remember an incident when she had been unable to communicate with a Spanish-speaking child or parent. 

            In Van Corbach’s opinion, the essential requirements of a successful ECEAP paraprofessional are honesty, past experience working with kindergarten-age children and fluency in English, rather than Spanish, because students need to immerse themselves in English-language learning in order to succeed in kindergarten.  The more they hear English spoken around them, the faster they will pick it up themselves.

            The Association’s evidence was persuasive in rebutting the District’s evidence.  The process that was followed by the rating committee was arbitrary and not in keeping with the parties’ contractual requirements.  First, the seniority factor was improperly weighed up front, along with the other five rating factors. Also, the interview committee results superseded and encompassed the remaining four factors, while the committee should have carefully considered, and separately rated, the available relevant documentation on the candidates’ experience, training, attendance/promptness and discipline history. 

            The arbitrator is persuaded that the committee’s ultimate decision was largely based on an inaccurate assumption that Spanish-speaking skill was a highly desirable, if not absolutely necessary, qualification for the position, superseding all other attributes that applicants like the Grievant might bring to the position.  In order to be fair, therefore, the arbitrator will independently assess the evidence to determine what the committee’s decision likely would have been if they had followed the collective bargaining agreement’s requirements and given proper weight to all the rating factors.

            (1)  Experience (direct and related):    The evidence shows that the Grievant had been a full-time paraprofessional with the District for two years when she applied for the ECEAP position.  She was assigned to Special Programs and worked with third graders.  She also had worked on a kinder-literacy project.  Before 1999, she had worked as a substitute in a special education pre-school for four months and had served as an assistant cook.  Prior to working for the District, she had worked with small children (from birth to age four) in her sister’s day care for two years, part-time the first year and full-time the second year. 

            In her District assignments, she had supervised children on the playground and in the cafeteria, taught them how to brush their teeth, taught them colors, shapes, numbers, etc., and read to them.  She had assisted the classroom teacher with regular lessons, reinforcing what was being taught in small groups and one-on-one, and she had helped students in computer class and in the library.  Approximately sixty percent of the students she had worked with spoke Spanish. All of them understood enough English to follow most of her directions.  When a student had difficulty understanding what she was saying in English, however, she called on other students to help out by translating into Spanish.  She acknowledged that Spanish-speaking ability would have enhanced her ability to communicate, especially with mono-lingual students and parents.

            Ms. Zaragoza’s experience consisted of five months as a pre-school teacher’s aide for the Washington State Migrant Council and approximately one semester as a substitute in various classrooms with the District.  See Exhibit D-1.  In the pre-school position, she worked with children no older than three years, all of whom were mono-lingual Spanish speakers.  She helped them to learn colors and shapes, read books to them and taught them basic hygiene.  All communication was in Spanish.  There was no effort to train the children to understand or use English in the Migrant Council program. 

            Ms. Zaragoza’s substitute assignments with the District had ranged from two weeks to two months in length.  She had assisted classroom teachers in second grade (four to six weeks), first grade (four weeks), kindergarten (eight weeks) and a special education class at the high school (three weeks).  Her duties had included helping students with math and reading and supervising students at recess and in the cafeteria.  In each of those assignments she translated from English to Spanish (and vice versa) as needed, in order to assist Spanish-speaking students and parents to communicate with the lead teacher in the classroom.  She also occasionally translated notes into Spanish for the teacher to send home to parents.

            The arbitrator finds that the Grievant had over two years of direct experience assisting with classroom instruction and one and one-half years of related day care experience.   Ms. Zaragoza had a little over one year of direct experience.  Her skill as a translator in the classroom was clearly an enhancement to the other work she had performed in her substitute assignments.   On balance, the arbitrator finds that the experience level of the Grievant and Ms. Zaragoza was relatively equal.

            Training:     Between 1999 and 2001, the Grievant took the Core Competency training for paraprofessionals in the classroom setting.  She completed the first six of the fourteen core competencies in December of 2000 and five of the remaining seven competencies in February of 2001.  See Exhibit U-4.  It appears that the trainings took at least three full days to complete.  Several years earlier, she had taken a training program for paraprofessionals as well.  She also had earned a first aid card.

            Ms. Zaragoza had earned a Certificate of Completion for Child Care Center Training.  See Exhibit D-1.  According to her testimony, the twenty-hour training related to activities with infants and small children up to age two, but many of the concepts were applicable to pre-kindergarteners.  Ms. Zaragoza also testified that she had undergone training in first aid and CPR.  On balance, the arbitrator finds that the training the two applicants had undergone was relatively equal.

            Interview committee results:     The evidence shows that the interview committee considered the Grievant’s and Ms. Zaragoza’s presentations during their oral interviews to be relatively equal, except on the issue of bi-lingualism and bi-literacy.  They gave Ms. Zaragoza a two-point advantage because she answered “yes” to the question, “Do you speak and write Spanish?”  The arbitrator is not persuaded, however, that such a differential was warranted under the circumstances.  First of all, Ms. Zaragoza’s English-speaking ability was noted as “limited” on one of the reviewer’s answer sheets.  That should have been a concern to the committee, since one of the goals of ECEAP is to have students improve their ability to understand and speak English, in order to succeed in kindergarten.  Also, the committee did not test Ms. Zaragoza’s ability to translate the written language, either from English to Spanish or from Spanish to English; it relied on her verbal representation that she was “bi-literate”.  Finally, the committee did not ask the Grievant to explain whether she had experience dealing with language differences in the classroom and how she would deal with the language problem that she would face in the ECEAP classroom and when dealing with students’ Spanish-speaking parents.  If it had asked those questions, the committee would have learned that the Grievant had been successful in working with Spanish-speaking students and parents in the past and had been creative in getting help from bi-lingual students and staff when translation was necessary.  Also, if the committee had reviewed the Grievant’s past performance appraisals, it would have been impressed with the consistently high marks that she had received in all rating categories, especially item number 4, “Human relations: Sensitivity to individual differences, e.g. cultural, ethnic, socioeconomic, gender, handicap.”  See Exhibit U-4, p. 2-5.

            On balance, the arbitrator finds that the scores of the two applicants under the category of interview committee results should have been relatively equal.

            Attendance/Promptness:    According to the available evidence, neither the Grievant nor Ms. Zaragoza had had any problems with attendance in their previous positions.  Therefore, they merited equal ratings on that issue.

            Discipline history: According to the available evidence, neither the Grievant nor Ms. Zaragoza had had any discipline problems in their previous positions.  Therefore, they merited equal ratings on that issue.

            Conclusion:    The arbitrator is persuaded that the two top applicants for the ECEAP paraeducator position were relatively equal in the issues of experience, training, interview committee results, attendance/promptness and discipline history.   Therefore, the Grievant should have been awarded the position, based on her greater seniority with the District.  When the District awarded the position to Ms. Zaragoza, it violated Section 10.7 of the collective bargaining agreement.  The grievance is granted.

AWARD

            For the reasons set forth in the preceding analysis and decision, the arbitrator has determined that the District violated the contract when it bypassed the Grievant for appointment to the ECEAP paraprofessional position that was posted for the 2001-2 school year.   The grievance is granted. 

            The Grievant shall be offered a position as ECEAP paraprofessional for the next school year and she shall be made whole for all lost wages and benefits she has suffered as a consequence of the bypass in 2001.  The parties shall share equally in payment of the arbitrator’s fees and expenses, as required by Section 15.2.5 of the collective bargaining agreement. 

            The arbitrator will retain jurisdiction for sixty (60) days following the date of this Award, to assist the parties with implementing the remedy.

            DATED this _______ day of June, 2003.

                                                           ___________________________________
                                                           
 SANDRA SMITH GANGLE, J.D., Arbitrator



[1] The interview team consisted of the ECEAP Director, Graciela (Cardenas) Valencia, Julene Miller, two lead teachers in the ECEAP program, one school board member and one parent.

[2] Two of the four finalists received lower scores than the Grievant and Ms. Zaragoza received.  Therefore, those applications are irrelevant here.  

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