School District and Public School Employees of Granger
AMERICAN ARBITRATION ASSOCIATION
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
the District violate the collective bargaining agreement, specifically Section
10.7, when it selected America Zaragoza for the ECEAP para-professional
OF THE EMPLOYER
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
SENIORITY, AND LAYOFF PROCEDURES
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].
* * * *
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
* * * *
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.
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.
* * * *
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. . . .
If no settlement has been reached . . . [in accordance with] the
. . 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. . . .
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.
* * * *
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.
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.
. . . .
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.
decision of the arbitrator will be submitted to the Board and the Association,
and will be final and binding upon the parties.
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
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
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.
OF THE PARTIES
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
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.
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
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.
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
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 only
“if 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
who had interviewed the four finalists
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
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.
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.
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.
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.
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.
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.
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.
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.
this _______ day of June, 2003.
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.
of the four finalists received lower scores than the Grievant and Ms.
Zaragoza received. Therefore,
those applications are irrelevant here.