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Title: Evergreen School District and Public School Employees of Washington
Date: May 27, 2003
Arbitrator: Sandra Smith Gangle
Citation: 2003 NAC 114

AMERICAN ARBITRATION ASSOCIATION

In the Matter of the Arbitration
between

PUBLIC SCHOOL EMPLOYEES OF WASHINGTON,

                                   Association,

     and

EVERGREEN SCHOOL DISTRICT,

                                   Employer

Case No. AAA 75 390 458 02

Roxanna Sarchi Grievance

DECISION AND AWARD

Sandra Smith Gangle, Arbitrator

 

Hearings Conducted:

March 11 and 18, 2003

Representing the District: Nancy J. Hungerford, Attorney at Law
The Hungerford Law Firm
615 High Street
Oregon City, Oregon  97045

 

Representing the Association: David G. Fleming, 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: May 27, 2003

 

  

BACKGROUND

            This matter came before the arbitrator pursuant to a collective bargaining agreement between the parties effective between  September 1, 2002 and August 31, 2005.  Jt. Ex. No. 1.

            Two grievances were filed in this matter on or about August 7, 2002.  See Employer Exhibit 14.   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. 

            A hearing was conducted on March 11 and March 18, 2003 in a conference room of the Public School Employees of Washington offices in Vancouver, Washington.  The parties were thoroughly and competently represented by their respective attorneys throughout the hearing.  The District was represented by Nancy J. Hungerford, Attorney at Law.  The Association was represented by its staff attorney, David G. Fleming, Esq.

            The District did not object to procedural or substantive arbitrability of the issue regarding the District’s failure to rehire the Grievant as a paraprofessional for the 2002-3 school year.  The District did object, however, to the timeliness of any issues arising from facts that occurred at the end of the 2000-2001 school year, specifically, the District’s decision to terminate the Grievant’s employment as a permanent paraprofessional and place her on substitute status, thereby requiring her to pay her own insurance for the month of October, 2001, and the District’s subsequent hiring of the Grievant in mid-September of 2001 in a temporary position as a special education staff assistant at Illahee Elementary for the 2001-2 school year.

            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: Julie Sherman (fka Cushing), Jeri Deloria and Joan Kern and, on rebuttal, Nancy Maxwell, Janet Johnson and Nicollet Koch;    (b)  For the Association: Roxanna Sarchi and Judith Boyle.

            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  briefs on May 7, 2003.

            The arbitrator has considered all the testimony and evidence offered by the parties at the hearing.  She has weighed the evidence and has given careful consideration to the arguments of the parties, as contained in their briefs and supported by arbitral authority.

            The parties have authorized the arbitrator to retain jurisdiction for sixty (60) days following issuance of the award, to assist with implementation of an appropriate remedy.

                                     STATEMENT OF THE ISSUE

            The parties did not agree on a statement of the issue.  They stipulated, however, that the arbitrator would have the authority to frame the issue.  The District framed the issue as follows:

            Did the District violate Article 20.1.1 and 20.1.7, or Article 10.6.1 or Article 10.6.2 of the collective bargaining agreement when it failed to place Roxanna Sarchi (the Grievant) in a position for the 2002-3 school year? 

The Association framed the issue in this way:

            Did the District violate the collective bargaining agreement in failing to award Roxanna Sarchi (the Grievant) a position at Illahee Elementary for the 2002-3 school year?   If so, what is the remedy and what is the employment status of the Grievant? 

Having reviewed the record and briefs of the parties, the arbitrator frames the issue as follows:

            Did the District violate the collective bargaining agreement, specifically Article 20.1.1, 20.1.7, 10.6.1 or 10.6.2,  in failing to award Roxanna Sarchi (the Grievant) a position at Illahee Elementary for the 2002-3 school year?   If so, what is the appropriate remedy?

           

RELEVANT CONTRACTUAL PROVISIONS

ARTICLE I

RECOGNITION AND COVERAGE OF AGREEMENT

* * * * *

Section 1.3.   Definition of Bargaining Unit Positions

            Section 1.3.1.   * * *  Terms and conditions relating to temporary positions of more than thirty (30) consecutive workdays are described in Article XX.

* * * * *

            Section 1.3.3.  A permanent position is one that is neither temporary nor a substitute position and exists for more than thirty (30) consecutive workdays.

* * * * *

            Section 1.3.5.   A substitute who replaces a regular employee who is on leave for a period of one (1) day to as much as three (3) months is not a member of the bargaining unit.

* * * * *

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 terms of this Agreement, is the right to direct the work force, the right to hire, promote, retain, transfer, and assign employees in positions; . . . .

ARTICLE X

PROBATIONARY, SENIORITY, AND LAYOFF PROCEDURES

Section 10.1.    The seniority of an employee in the bargaining unit shall be established as of the date on which the employee began continuous daily employment . . . unless such seniority shall be lost as hereinafter provided. . . .

Section 10.4.   The seniority rights of an employee shall be lost for the following reasons:

            A.  Resignation;

            B.  Discharge for any reason contained in this Agreement; or

            C.  Retirement.

Section 10.6.2.                        The employee with the earliest hire date shall receive preferential rights regarding shift selection, vacation periods, promotions, and/or transfers to new or open positions, and layoffs, when ability or performance are substantially equal with other candidates.  If the District determines that preferential requirements are not governed, because another candidate possesses ability and performance greater than a senior employee or employees, the employee not selected for promotions or transfers may meet with the Manager of Classified Personnel to discuss the reasons for the decision.  Any grievance filed over this section, in a seniority bypass situation, would begin at level three (3), and, if possible, the supervisor/manager in charge of the selection decision would be present.

Section 10.6.2.1.    Costs of arbitration for any seniority bypass grievance filed under Section 10.6.2, with the exception of respective attorney fees and related costs, shall be born by the loser of such arbitration.  All arbitrator’s fees shall be paid by the Union unless the arbitrator determines that the grievant shall be placed in the position at issue or orders the grievant’s placement in a comparable position or in the position sought, when vacated.

ARTICLE XI

DISCIPLINE AND DISCHARGE OF EMPLOYEES

Section 11.1.    The District shall have the right to discipline or discharge an employee for justifiable cause.  The issue of justifiable cause shall be resolved in accordance with the grievance procedure. . . .

Section 11.1.1.  Disciplinary actions by the District may include the following:

            1.  Oral Warning

            2.  Written Warning

            3.  Suspension

            4.  Discharge.

Section 11.1.2.    If the District has reason to discipline or discharge an employee, the employee shall have the right to have a union representative, officer or trustee at the discipline proceedings.  No disciplinary action may result from a meeting between an employee and a supervisor unless an opportunity for representation has been afforded.

Section 11.2.1.   Should the District decide to discharge any non-annual employee for justifiable cause at the expiration of any given school year, such employee shall be so notified in writing prior to the expiration of the school year.

ARTICLE XV

GRIEVANCE PROCEDURE

Section 15.2.1.    The employee shall first discuss the grievance with his/her immediate supervisor. . . All grievances not brought to the immediate supervisor . . . within twenty (20) business 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 Step I, 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.

Step 2 must take place within ten (10) business days after the informal discussion in Step 1, or the grievance will be considered invalid and subject to no further processing. . . .

Section 15.2.3.   If no settlement has been reached within the five (5) days referred to in the preceding subsection, . . . PSE’s formal written statement of grievance shall be submitted within fifteen (15) business days to the District Superintendent, or the Superintendent’s designee. . . .

Section 15.2.4.    If no settlement has been reached within the fifteen (15) business days referred to in the preceding subsection, . . .  the employee may demand arbitration of the grievance. . . .  Such arbitration shall be conducted by an arbitrator under the rules and administration of the American Arbitration Association.  The parties to this Agreement shall then be bound by the rules and procedures of the American Arbitration Association.  During the arbitration under this step, neither the District nor the grievant will be permitted to assert any grounds not previously disclosed to the other party.

ARTICLE XX

TEMPORARY STATUS

Section 20.1.   A temporary position is one created by the District for a minimum period of more than thirty (30) consecutive workdays up to a maximum period of the remainder of the current school/fiscal year.  If the same temporary position continues into the subsequent school year, the position will be posted from temporary to permanent (with the exception of extenuating circumstances created by legal issues or special pilot programs).

Section 20.1.1.   Temporary positions exist when:

                        *****

                        B.  Enrollment stability is uncertain.

                        *****

Section 20.1.2.    Temporary positions will be identified as such on the opening announcement(s).

Section 20.1.3.    Temporary positions are temporary and may end when the need for a particular position no longer exists.

Section 20.1.5.    If the District requires or requests, in writing, a permanent employee to be placed in a temporary position, the permanent employee will be returned to his/her regular position at the end of the temporary assignment.  In all other instances where the permanent employee applies for and is granted a temporary position, he/she will not have the right to the original position once the temporary position has expired.

Section 20.1.7.    If a position is temporary during a school year and then ends and is reestablished at the beginning of the next school year, the position shall be posted from temporary to permanent status.  If the same employee continues with the same position title with no interruption in service (other than the regular summer break), the hire date would remain with the date on which he/she began the temporary employment in that position.  If the same employee returns in a different position title, a new probationary period will be served.

Section 20.1.9.   Temporary positions which are posted for four (4) hours or more pwe day will be eligible to enroll in the District medical insurance program from the hire date if the need for the position is expected to continue beyond sixty (60) working days.

                                                                                    Jt. Exhibit No. 1

                                    STATEMENT OF THE FACTS

            The undisputed facts of this matter are as follows:

            The Grievant earned an AA degree in Arts and Sciences from Clark College in 1978.  She also holds a certificate in Early Childhood Education.  Before working for the District, she held a number of positions working with children, including running an in-home pre-school, doing tutoring and working at Head Start and Girl Scouts.  She did not have any training in Special Education.

            The Grievant began working for the District in 1991.  She was assigned to a variety of paraprofessional positions, some with permanent hours, others identified as temporary, until June of 2002, when the facts arose that gave rise to the instant grievance. She worked at a variety of schools, including Image, Marion and Orchards.  During 2000-1, she worked as a special education assistant at Orchards Elementary.  Her final assignment, from September 2001 to June 2002, was as a temporary special education assistant at Illahee School.

            The Grievant’s performance evaluations between 1991 and 2000 were all generally positive.  See Exhibit U-1.  Her supervisors routinely evaluated her in most rating categories at the level of “Exceeds” or “Strong”.  No deficiencies were identified during those nine years.  Sometime during the 2000-2001 school year, however, the Grievant’s supervisor at Orchards Elementary, Mr. Frazier, identified a number of performance deficiencies and he placed the Grievant on a Plan of Assistance.  He informed her that, if she failed to complete the Plan successfully, she would be terminated.  Then, at the end of the school year, Frazier notified the Grievant that her performance remained unsatisfactory and that she would be discharged. 

            The Association assisted the Grievant in objecting to Mr. Frazier’s final evaluation and in negotiating with the District to save her job.  No formal grievance was filed.  However, a meeting took place between the District’s Manager of Classified Personnel, Nikki Koch, and PSE representatives Kim Peery and Judy Boyles, along with the Grievant, and the parties reached an informal resolution of the dispute following the meeting.  The District agreed that the Grievant’s unsatisfactory performance evaluation for 2000-2001 would not be placed in her personnel record and she would be permitted to apply for new positions at schools other than Orchards for the 2001-2 school year.  Meanwhile her status would be that of a substitute, as she no longer had her job at Orchards.  The District’s intent was to give the Grievant an opportunity to succeed in a different assignment under a different principal than Mr. Frazier. 

            In September of 2001, the Grievant was hired as a staff assistant in special education at Illahee Elementary, a brand new school.  At first she was hired on a substitute basis.  See Exhibit D-2.   She had to pay her own medical insurance premium under COBRA for the month of October.  See Exhibit D-4.  Then, after working a few days as a substitute, she was appointed to fill one of the two six-hour-per-day “temporary” positions that the District had established for the 2001-2 school year.  Her status was officially changed from “permanent to temporary” effective September 17, 2001.  See Exhibit D-3.  The Grievant’s position was identified as “temporary” because the District was uncertain as to how many students at the new school would need special education services.

            A second assistant, Janet Johnson, was hired a few weeks after the Grievant, to fill the other six-hour-per-day position at Illahee.  Johnson’s position was also identified as “temporary”.

            The Grievant’s supervising teacher at Illahee was Julie Cushing, a new teacher with the District.  Neither Ms. Cushing nor the Illahee principal, Ms. Joan Kern, was informed about the problems the Grievant had had at Orchards Elementary at the time they interviewed the Grievant and selected her for one of the temporary special education assistant positions at Illahee.  Principal Kern did learn, sometime after hiring the Grievant, that there had been “problems” with the Grievant’s performance at Orchards.  She was not given any specific details, however.

            In the beginning of the 2001-2 school year, Ms. Cushing was satisfied with the Grievant’s work performance.  Sometime after October of 2001, the relationship between the Grievant and her supervisor began to deteriorate, however.  Ms. Cushing began to have concerns that the Grievant was failing to follow her directions about classroom procedures and how to deal with  students.  Her concerns covered a wide range of issues, including the Grievant’s failure to prepare and present teaching materials that met the individual needs of the students as shown by their IEP’s, her manner of dealing with students’ behavioral problems, which tended to follow a reward-and-punishment model rather than the principles of Responsible Decision Making (RDM) that the District espoused, her sending of notes to parents without the teacher’s permission and her frequent acceptance of personal phone calls while on the job with students.

            Ms. Cushing attempted to give the Grievant directions and modelling, so that she would meet her supervisor’s expectations.  Cushing noted that the Grievant would make changes for a short time, but then would revert to her old ways of doing things, which Ms. Cushing often found to be improper and in conflict with Cushing’s goals and teaching style. 

            Ms. Cushing informed Principal Kern in January or February of 2002 that she did not want the Grievant back the following year as her assistant.  At no time during the year, however, did either Cushing or Kern tell the Grievant that her work was so unsatisfactory that she risked being non-renewed the following year.

            On or about June 3, 2002, the Grievant was notified that her temporary position would terminate at the end of the school year.  See Exhibit D-9.  By separate memorandum, she was invited to apply to work as a substitute during the summer, was informed that she could apply for positions that would be posted throughout the summer months and was told that her District-paid medical premiums, if applicable, would terminate on July 31, 2002.  Exhibit D-8.

            On June 5, 2002, the Grievant was given her annual performance evaluation by Ms. Cushing and Principal Kern.  Exhibit D-10.  Cushing and Kern rated the Grievant as “Exceeds” in one category (“Operates office machines appropriately”), and as “Meets” in fourteen categories.  The remaining sixteen of the rating categories were marked by means of double-pointed arrows placed on the borderline between “Meets” and “Needs to Improve”.[1]   No categories were marked as “Needs to Improve” and none were marked “Unsatisfactory”.

            The “borderline” categories included the following:

            *Performs essential functions of the job. . . .
           
*Follows district’s policies and procedures.
            *Manages student behavior according to district policy and procedures, if applicable.
            *Maintains accurate records and reports as required.
            *Shows accuracy and thoroughness of work.
            *Demonstrates a team approach. . . .
            *Provides tactful and courteous communication. . . .
            *Receptive to supervisor’s suggestions for improvement. . . .
            *Exhibits good judgment and common sense.
                                                                                               
See Exhibit D-10.

            On the back of the document was typed the following narrative:

            Roxanna is very pleasant to work with.  She is creative and is always willing to help others.  Roxanna has maintained acceptable attendance and punctuality.  She also puts in many hours of hard work.

            As a special education staff assistant, performing the essential functions contained in the job description is vital to the program.  Some areas of improvement that Roxanna and I have discussed throughout the year are the following.  She needs to practice planning ahead so that the lessons and the curriculum better meet the students’ needs and differences in their abilities.  Roxanna also has been asked frequently to review with me any written communication with parents prior to sending them home.  It has come to my attention several times that this does not consistently occur.  While Roxanna wants to establish a good rapport with children and has high expectations for their behavior, she need (sic) to accomplish this using responsible decision making strategies.  Roxanna has a tendency to take away privileges rather than reinforce appropriate behavior.  She needs to work on using positive comments with the children.

            Roxanna has been very reliable and the students have thoroughly enjoyed working with her this year.

                                                                        Exhibit D-10.

On or about June 18, 2002, the District posted Notices of Opening for two Special

Education Staff Assistants at Illahee Elementary for the 2002-3 school year.  See Exhibits D-11 and D-12.  One of the positions (number 486) was to be a 5.25 hour-per-day position and the other (number 485) a six-hour-per-day position.  Each of the announcements was marked “Temporary to Permanent” and each one included the following lists of “Essential Functions” and “Minimum Qualifications”:

ESSENTIAL FUNCTIONS:
1. Assist the Special Education classroom instructor in supervising and working with elementary and/or secondary students as follows:
*  Communicate effectively with students, staff and parents.
*  Assist in providing one-to-one and group instruction to students so as to meet his/her individualized education program [IEP].
*  Assist in establishing and maintaining a learning environment as specified by course goals and curriculum outcomes.
*  Assist in evaluating and specifying direction of instruction so as to maximize each student's potential.
*  Maintain accurate data on student progress.
*  Assist in administering and scoring formal and informal tests.
*  Implement behavioral management strategies using the emphasis and techniques that have been outlined by the teacher.
*  Assist in organizing and preparing a variety of instructional materials. * * * * *
MINIMUM QUALIFICATIONS
1. Basic typing/keyboarding.
2. Previous experience working with students in academic areas and/or professional course work in Special Education.
3. Demonstrated ability to communicate effectively with students, staff and parents.
4. Demonstrated ability to work with and supervise students.
5. Must possess personal characteristics of flexibility, initiative and cooperativeness.
6. Demonstrated ability to maintain confidentiality of sensitive information.
7. Demonstrated ability or willingness to learn computer skills and assistive technology.
8. Demonstrated ability or willingness to learn to operate the office equipment as listed above.  [IBM/PC or Macintosh, typewriter, copy machines, telephone and all other tools and equipment necessary to perform the essential functions.]
9. Demonstrated ability to perform under conditions of constant interruption.
10. Must possess physical strength and ability to deal with potentially aggressive behavior of students.
11. Demonstrated ability to establish and maintain positive relationships with others as part of a team.

                                                            Exhibit D-11 and D-12.

            The Grievant applied for both positions on or about June 20, 2002.  See Exhibits D-13, U-2 and U-3.  Attached to each of her applications was a two-page resume and a list of professional and personal references.  Also enclosed was a packet of letters of reference from three teachers who had worked with the Grievant at Orchards Elementary prior to 2000.  See Exhibit U-4.  The Grievant was not interviewed or given the writing prompt test for either of the openings.  Ms. Cushing and Ms. Kern did not review the Grievant’s past evaluations that were in her District personnel file and they did not check her references.  They had already decided, upon reviewing the list of applicants, that the Grievant was ineligible to be hired, because her performance during the prior year had been marginal and “she was not a match for Illahee”.  (Testimony of Ms. Kern).

            A team of interviewers consisting of Cushing, Kern and a third person interviewed four to six  applicants for the positions. A writing prompt test was part of the interview process. See, e.g., Exhibit D-19.  They then selected Janet Johnson for one of the positions, as they found her to be “above and beyond” all the others.  Having narrowed the remaining pool to two applicants, the interview team asked those people to do some research and return for a new round of interview questions. Following the second interview, a new employee to the District, Florence Tresner, was chosen to fill the remaining opening.  The Grievant applied for many other openings with the District during the summer of 2002.  See Exhibit U-5.  She was not interviewed for any of those positions, however.  In October of 2002 the Grievant was hired by the Battleground District as an early childhood special education assistant, at six hours per day.

POSITIONS OF THE PARTIES

            A.        The Association:        The Association contends the District violated the parties' collective bargaining agreement when it failed to rehire the Grievant as a special education staff assistant at Illahee for the 2002-3 school year.  Relying on Section 10.6.2, which is a "relative ability" seniority preference clause, the Association argues that the Employer was obliged to hire the Grievant, who had greater seniority than either Ms. Johnson or Ms. Tresner, unless it can prove that it determined, through objective criteria and an objective, consistent and unbiassed process, that the persons who were selected were substantially better in ability and performance than the Grievant.

            The Association also argues that the Grievant was essentially discharged by the District without just cause.  She was not notified at any time during the 2001-2 school year that her performance was so poor that she risked being discharged.  She was given no progressive discipline or opportunity for remediation.  Even though she was assigned to a “temporary” position at Illahee, she was an employee who had seniority with the District, with contractual rights.  Even if, under Section 20.1.5, she did not have an automatic right to get her old position back when the Illahee position ended, she had the right to be discharged only for just cause and she had the right to bid on and compete fairly for new or open positions.  The District violated the contract when it failed to interview and compare the Grievant with other applicants for the Illahee positions for 2002-3, and failed to apply the relative ability standard of Section 10.6.2 of the collective bargaining agreement to her applications.

            The key event in the case, says the Association, is the transition the Grievant made from Orchards to Illahee in 2001.  The Association's understanding at the time was that the Grievant’s disciplinary discharge had been “erased” when the parties negotiated the resolution of her objection to the poor evaluation she had received from Principal Frazier at Orchards.  She would be given an opportunity to have a new start at a different school and her seniority and contract rights would be preserved.  With that understanding, says the Association, the Grievant did not pursue a grievance to arbitration in 2001.           

            The Association asks the arbitrator to grant the grievance and award the Grievant a make-whole remedy.

            B. The District:          The District argues first of all that any objection the Association might raise to the Grievant’s “temporary” status in her 2001-2 position at Illahee Elementary is not procedurally arbitrable.  The Association was apprised in September of 2001 that the Grievant’s status was being changed from “permanent to temporary” and that she would be responsible for paying her own medical insurance premium for October.  The Association should have filed a grievance no later than early November of 2001 if it wished to contest either of those actions.

            The District points out that there has been a long-standing practice in the District whereby special education staff assistant positions at new schools are announced as “temporary”, because the District is uncertain as to what the on-going enrollment of special education students will be.

The practice has been acknowledged by the parties in Article 20.1.1 of their collective bargaining agreement.  Therefore, when the two special education staff assistant positions were announced at Illahee in September of 2001 as “temporary”, the posting was proper and in keeping with the contract.  Also, since the Grievant was assigned to one of the “temporary” positions through an application process and not at the request of the District, she had no contractual right to return to her original position after the temporary position expired in June of 2002.  See Article 20.1.6 of the collective bargaining agreement. 

            There is no contractual requirement that a temporary employee be re-employed in the same position after it is made permanent.  Section 20.1.7 provides that, if the same employee actually continues in the position after it is made permanent, that employee retains the hire date she had when she began as a temporary in the position.  However, the District often replaces temporary employees with new and different employees when positions are changed from temporary to permanent.  See, for example, Exhibit D-17.  Such action is not prohibited by the labor contract.

            The District denies that it violated Article 10.6.1 or 10.6.2 when it failed to interview the Grievant for either of the permanent positions as special education staff assistant at Illahee for 2002-3.  Her ability and performance had been determined to be not substantially equal with those of the other candidates.  The Grievant’s supervising teacher identified many deficiencies in the Grievant’s work performance during 2001-2.  Specifically, the Grievant had not followed Ms. Cushing’s directives, had not consistently designed lesson plans that matched the students’ IEP’s, had not assessed students consistently based on their work in class, had used work time for personal phone calls, had sent notes to students’ parents without conferring with Ms. Cushing first and had initiated punitive disciplinary methods rather than follow positive reinforcement models of behavior modification, as required by District training policy.

            For those reasons the District asserts that it had no obligation to consider the Grievant’s seniority as providing any preferential right to either position for 2002-3.  The District asks the arbitrator to deny the grievance.

ANALYSIS AND DECISION

A. Timeliness:

            The District asks the arbitrator, as a threshhold issue, to determine that any objections the Association might be raising herein to the following issues are procedurally inarbitrable: (1) the designation of the Grievant’s special education staff assistant position at Illahee as “temporary” in 2001-2, and (2) the change in the Grievant’s employment status with the District from “permanent” to “temporary” in September of 2001.  The Association failed to raise those issues in a timely fashion, pursuant to the contractual time limits for filing and processing grievances.  In order to meet the time limits, the Association would have had to file a grievance no later than early November of 2001.  By the time the Association filed the grievance in this matter, however, in August of 2002, nearly one year had passed since the actions were taken by the District.

            The arbitrator agrees with the District that the Association and the Grievant had notice, in early September of 2001, that the Grievant was no longer a permanent employee with the District.  First, the Association and the Grievant were aware that the Grievant had lost her job at Orchards and was being allowed, through an informal settlement process, to apply for job openings at other schools for 2001-2.  While the Association argued in its brief that it believed the discharge action from Orchards had been “erased” as part of the settlement, no witness testified to that at the hearing and there was no memorandum produced that showed the Grievant was retaining her seniority as a permanent employee as of September of 2001.  Also, the Association and the Grievant knew that the Grievant was working as a substitute, and not as a regular bargaining-unit employee, at Illahee in early September and that she would have to pay her own insurance premium for October pursuant to COBRA as a result.   See Exhibits D-3, D-4. Finally, the Notice of Opening for the Illahee position that the Grievant applied for and won in September of 2001 clearly stated that the position was “temporary”.  Exhibit D-1.  Not only was such a designation customary for special education staff assistant positions at new schools, but it was expressly allowed under Section 20.1.1 of the parties’ collective bargaining agreement whenever “enrollment stability is uncertain”, as it was at Illahee at that time. 

            If the Association had had any objection to the posting of the notices or the personnel actions involving the hiatus in the Grievant’s employment status with the District in September of 2001, it should have filed its grievance no later than October or early November of 2001.  See Sections 15.2.1, 15.2.2, 15.2.3 and 15.2.4 of the collective bargaining agreement.  Since it did not file a grievance until August 6, 2002, however, the arbitrator has determined that those issues are procedurally non-arbitrable in this proceeding.  

B.  The Merits:

            The issue that is properly before the arbitrator in this matter is whether the Grievant was entitled to a “preferential right” to appointment to one of the two “temporary to permanent” positions that were advertised for 2002-3 at Illahee Elementary, by virtue of her seniority as a temporary employee and Section 10.6.2 of the collective bargaining agreement.  The Association argues that the Grievant was entitled to such a preferential right under Section 10.6.2, and was improperly bypassed, while the District argues that she was properly denied appointment to both of the permanent positions because, first of all, her temporary position ended and she had no automatic contractual right to be rehired when the position was made permanent, and secondly, her performance and ability in her temporary assignment had not been equal to those of the applicants who were ultimately selected for the permanent assignments, Ms. Johnson and Ms. Tresner.

            The arbitrator will first consider the arbitral authority on interpreting and applying the relative ability language of Section 10.6.2.  Then she will consider the evidence that the District offered at the hearing on the selection process that was followed, as a result of which the Grievant was bypassed.  Finally she will determine whether the District violated the agreement when it appointed Johnson and Tresner to the permanent positions over the Grievant.

            (1).  Arbitral Authority:

            The parties do not dispute that Section 10.6.2 of their labor contract is a “relative ability” clause.  They agree that, in an arbitration case involving the application of such a clause, arbitrators routinely apply a shifting burden of proof.  Initially, the union must prove that the bypassed bargaining-unit employee, who had greater seniority than the selected applicant, was qualified to fill the position. The burden then shifts to the employer to demonstrate that the individual who was selected was substantially or significantly better in ability and performance than the bypassed employee.  Finally the burden shifts back to the union to refute management’s evidence.  See, e.g., Wapato School District, 91 LA 1156, 1160 (Arb. Gaunt, 1988). 

            Three successive arbitrators have decided relative-ability grievances under the parties’ collective bargaining agreement since 1990.  All three of them followed Arbitrator Gaunt’s shifting-burden approach.  In addition, each of the arbitrators added some reasoning that is applicable to the instant case, because the very contract language that is applicable here was involved in their cases.

            In the first case, Arbitrator Howell Lankford opined that an arbitrator should give substantial deference to the employer’s determinations regarding the relative ability and performance of the grievant and the successful applicant.  See, PSE of Evergreen and Evergreen School District (Sharon Spencer Gvc.), AAA Case No. 75 390 0049 89 (1990).  However, that deference is not absolute.  If the employer has chosen a junior applicant over a senior one, the employer must provide objective support for its determinations regarding the respective ability and performance of the applicants, held Lankford.  Relying on an earlier award by Arbitrator Gary Axon, Lankford wrote, “[A relative ability clause] does not permit an employer to conclude that the junior employee is superior in ability and performance simply because the employer prefers the junior employee. . . . [T]he seniority element would be ‘written out’ of the contract if an employer were allowed to pick the junior employee based on a bare reference to ‘the considered, professional judgment of the supervisor’ or to some ineffable ‘je ne sais quoi’ quality.”   Spencer Award, at 15-16 (emphasis added).

            Looking at the evidence that the employer had offered, Lankford found that the selection committee, in choosing a junior applicant as At-Risk Advocate at a high school, had made no attempt to consider the grievant’s relevant past performance in previous job settings and had determined without objective basis that the junior candidate would be a better team player who would communicate more effectively with kids than Spencer would.  Lankford granted the grievance and, as a remedy, ordered that Spencer be placed in a position to be designated by the District and made whole for lost pay and benefits due to the improper seniority bypass. 

            In the second case between the parties, Arbitrator Jane Wilkinson followed Arbitrator Lankford’s approach, asserting that an arbitrator should defer to management’s judgment as to performance and ability, “so long as its judgment is exercised in good faith and not arbitrarily or capriciously and rests on reasonable grounds having support in the record.”  See, Evergreen School Dist. and PSE of Evergreen (Susan Sawvel Gvc.), AAA Case No. 75 390 00092 95 (Arb. Wilkinson, 1995)(emphasis added).  In the Sawvel case, the successful junior applicant had been temporarily assigned to the position before it was posted, thereby giving her an advantage in the interview process.  For that reason, Arbitrator Wilkinson imposed a “close scrutiny” standard in reviewing the District’s evidence, in order to determine whether the process that the District had followed in comparing all the applicants had been fair and impartial.  She carefully analyzed the various components of the selection process (which included oral interviews, a written test and a numerical scoring system, but did not include a review of the applicants’ past performance evaluations) and determined that there had been serious deficiencies.  Specifically, the scoring of the Grievant relative to the successful applicant had been arbitrary and capricious and was manipulated in such a fashion as to give the junior applicant the job.  

            Upon making her own independent, impartial, assessment of the evidence, Arbitrator Wilkinson ultimately reached the conclusion that the junior applicant was in fact substantially more qualified for the position than the grievant was.  Therefore, she did not sustain the grievance in such a way as to award a make-whole remedy to the grievant.  Finding that the District’s process had violated the spirit and intent of the contract, however, she determined that the union was not the sole “loser” in the case.  As a result, she allocated her arbitration fees and expenses equally between the parties, instead of assessing them exclusively against the union, as the contract would have required if the union were the sole “loser”.  Sawvel Award, at 34-35.

            In the third case between the parties, Arbitrator Carlton Snow applied the “close scrutiny” approach that Arbitrator Wilkinson had utilized in Sawvel, carefully analyzing the process that the District had followed in choosing the junior applicant over the senior grievant.  See,  Evergreen School Dist. and PSE of Evergreen (Thurlow Gvc.), AAA Case No. 75 390 00102 99 (Arb. Snow, 1999).  Arbitrator Snow ultimately determined that the junior candidate was indeed of substantially superior ability, as compared to the grievant, even though the District had pursued a flawed selection process in that it had failed to grant the grievant an interview.  Arbitrator Snow denied the grievance in the entirety, and assessed all arbitration fees and expenses against the Association.  Thurlow Award, at 41.

            (2)  Applying the rationale of Arbitrators Lankford, Wilkinson and Snow:

            It is customary for arbitrators to follow the rationale of previous arbitrators who have interpreted and applied provisions in the collective bargaining agreement of the parties that are before the arbitrator in the present case.  Therefore, this arbitrator will apply the rationale of Arbitrators Lankford, Wilkinson and Snow to the facts of the instant case, to the extent that their rationale applies here. 

            First, the parties did not dispute at the hearing that the Grievant was at least minimally qualified to fill the Special Education Staff Assistant positions for which she applied in June of 2002.  The District agreed at the hearing that it should proceed with its evidence first, in order to prove that the successful applicants had substantially greater ability and performance than the Grievant.  Nevertheless, the District contended that it did not need to include the Grievant in the pool of applicants that were interviewed and compared.  Therefore, the arbitrator will first examine the evidence, using the Wilkinson/Snow “close scrutiny” approach, to determine whether the Grievant was properly excluded from the selection process or whether the process was flawed because of the Grievant’s exclusion.  If it is found that the process was flawed, the arbitrator will then determine whether the selection of Ms. Johnson and Ms. Tresner for the two openings at Illahee was nevertheless proper because it was based on objective, reasonable grounds that were supported by evidence in the record.

            (3)        Was the Grievant properly excluded from the selection process?  

            The selection team weeded out the Grievant at the very start of the process, when the field of applicants was narrowed to eight and four to six people were invited to come to an initial interview.  The evidence established that Ms. Cushing had decided, back in January or February of 2002, that she did not want the Grievant in her classroom the following year.  She felt that the Grievant was not following her directions consistently, was not applying the principles of Responsible Decision Making in the classroom and was not making proper efforts to follow the goals and objectives of the IEP’s of the students whom she was assigned to teach.  Also, Principal Kern had concluded, based on conversations with Cushing and another teacher whose desk was in Cushing’s classroom, Nancy Maxwell, as well as her own casual observations of the Grievant as she happened to drop in Cushing’s classroom from time to time, that the Grievant was not a “match” for Illahee, because she was quiet and her demeanor was lethargic, “flat” and unenthusiastic.  She did not observe the Grievant building positive relationships with her students; instead, the Grievant did not seem to “connect” with the children.

            In essence, two of the three members of the selection team made a decision up front that the Grievant was not eligible to compete with the other applicants.  Their reasons were arbitrary and capricious, however, because they were not supported by the Grievant’s performance evaluation for the 2001-2 school year, which Ms. Cushing and Ms. Kern had issued to the Grievant only a few days before the selection process began and which was the only objective evidence of the Grievant’s performance in her job during that year.   In their evaluation, Cushing and Kern had found the Grievant to be on the borderline between “Needs Improvement” and “Meets Expectations” in sixteen categories, but they had not rated her as “Unsatisfactory”, or even as expressly “Needing Improvement”, in any category. 

            The interview team also failed to review the Grievant’s personnel file, which contained her performance evaluations for the years she had worked for the District between 1991 and 2000, all of which had been positive.  Finally, they had failed to contact her personal references.

             When Cushing and Kern declined to include the Grievant in the pool of applicants, the District essentially foreclosed the Grievant from further District employment.  The Association  alleges in its brief that, when the District took that action, it deprived the Grievant of her contractual right to contest her discharge, pursuant to Article XI, as not being for justifiable cause.[2]  What is clear, however, is that she lost her contractual right, under Article X, to bid competitively against the pool of applicants for the two permanent Special Education Staff Assistant positions, even though she was at least minimally qualified to fill either of them.

            Now, the District seems to argue that, because this case involves a “temporary” position that had ended in June of 2002, the Grievant did not have any contractual right under Article X to be included in the selection process for a permanent position that was posted subsequently to the termination of her temporary position.  The arbitrator does not agree that the contract can be read that harshly, however.  Article XX, which covers temporary status, distinguishes between the rights of employees whose temporary positions end when the need for the position ends and the rights of employees whose temporary positions are still needed when the temporary position comes to an end and whose positions will be continued as permanent positions in the subsequent school year.

            First, Section 20.1.3 provides that temporary positions “may end when the need for [the same] position no longer exists”.  Section 20.1 provides that, “If the same temporary position continues into the subsequent school year, the position will be posted from temporary to permanent”.  Section 20.1.7 clarifies Section 20.1, in that it provides, “If a position is temporary during a school year and then ends and is reestablished at the beginning of the next school year, the position will be posted from temporary to permanent status”.  Sections 20.1.5 and 20.1.7 both address the rights of temporary employees at such time as their temporary positions end.  According to 20.1.5, an employee who has voluntarily applied for his/her temporary assignment does not have any right to return to a previously-held position with the District.   However, Section 20.1.7 provides that, “If the . . . employee continues with the same position title with no interruption of service (other than the regular summer break), the hire date would remain with the date on which he/she began temporary employment in that position.” 

            Reading these provisions of Article XX together, the arbitrator concludes that the parties intended to give an employee who voluntarily takes a temporary position with the District the opportunity to compete for reappointment to the position, if it is determined by the District that there is a continuing need for the position and the position is posted “from temporary to permanent”.  Then, if the employee is appointed to fill the permanent position, he/she retains his/her seniority date, as per the start of the temporary position. 

            While there is no contractual requirement that the District rehire the previously temporary employee, it must be inferred, from Section 10.6.2, that a contractual right exists for such an employee to bid competitively on the permanent position and be fairly considered for it.  Otherwise, Section 20.1.7 would have no meaning, as the District would be free to let all temporary employees go, regardless of their ability and performance, whenever their temporary positions end.   They would have no opportunity to contest their terminations.  A contract must be read as an integrated document.  Article XX must be read in conjunction with Article X.  An employee who has experience (i.e. “seniority”) in any position, including a temporary position, and has not been discharged for justifiable cause, has preferential rights regarding appointment to a posted permanent position, “when [the employee’s] ability or performance are substantially equal with other candidates”.

            When Ms. Cushing and Ms. Kern decided, on behalf of the District, that the Grievant’s application should be eliminated from the pool of applicants and that she did not need to be interviewed and considered for appointment to the “temporary to permanent” positions at Illahee, they violated the intent and spirit of Articles X and XX.  The Grievant had not been discharged for cause and she had earned a satisfactory performance evaluation for her year of service in the temporary position.  She should have been included in the applicant pool, interviewed and compared objectively against all the other applicants.

            (4)        If the Grievant had been included in the selection process, would applicants Johnson and Tresner properly have been selected anyway for the permanent positions?  Was their selection made on an objective basis and on reasonable grounds that were supported by evidence in the record?

            Having decided that the Grievant should have been included in the applicant pool, the arbitrator now will follow the “close scrutiny” that Arbitrator Wilkinson proposed in the Sawvel arbitration and Arbitrator Snow followed in Thurlow.  The arbitrator will evaluate the evidence that was offered by the District, and the rebuttal evidence offered by the Association, and make an independent assessment of the propriety of the District’s bypass of the Grievant in June 2002.

            At the initial interview, the applicants were each asked seven identical questions about their past experience, their familiarity with special education and IEP’s, their history, if any, of developing lesson plans, their understanding of confidentiality, their practices regarding handling students’ conflicts and disruptions, and their experience assessing student progress and documenting such data.  Testimony of Ms. Cushing.  Their answers were noted and scored on a numerical (1-10) basis on question sheets that each interviewer had before her during the interview.  See, e.g., Exhibit D-19.  The applicants were also given a writing prompt test in which they were asked to develop a lesson plan with a specific teaching point and an assessment component, based upon a children’s book that they were handed during the interview.  Exhibit D-19 at page 3.  According to Principal Kern, the interview team was looking for “strong communicators”, applicants who showed that they could take the initiative in the classroom, persons who were creative at preparing lessons and working individually with students according to their individual needs, as shown by their IEP’s.

            At the hearing the District offered in evidence the questionnaire that had been filled out by one of the interviewers during Janet Johnson’s interview.  Exhibit D-19.  The interviewer had rated Ms. Johnson at 7, 8, or 9 on each of the seven questions, for a total score of 55.  From the answers that are memorialized on the questionnaire, it is clear that Johnson stated she had ten years of experience working as a classroom assistant in schools in Washington and California.  She understood what an IEP meant and she articulated for the interviewers what her obligations would be as far as helping each special education student meet the goals of his/her IEP.  She demonstrated a positive attitude, a love of children and a willingness to follow any directions her supervising classroom teacher might give her.

            The District presented Ms. Johnson as a witness at the hearing.  The arbitrator had an opportunity to compare her communication skills, her demeanor and her knowledge of special education with the Grievant, who also appeared and testified at the hearing.  The arbitrator found Ms. Johnson to be pleasant, articulate, knowledgeable about special education and willing to work cooperatively with the supervising teacher to serve the individual needs of the children.

            The arbitrator is persuaded that the District did not violate the contract when it chose Ms. Johnson for one of the two positions as permanent Special Education Staff Assistant.  Even if the Grievant had been included in the applicant pool, the District could reasonably have determined that Johnson’s ability or performance were substantially superior to the Grievant’s.  Therefore, even though Ms. Johnson had a few weeks less seniority in her temporary position at Illahee than the Grievant had, the District properly appointed her to the six-hour-a-day position for 2002-3.

            Curiously, the District offered none of the interviewers’ scoring sheets from Ms. Tresner’s interview as evidence.  No evidence was offered regarding Tresner’s past work history, except a comment that she “came from a business background”.  Ms. Cushing and Ms. Kern testified that Ms. Tresner had never worked as a paraeducator and that she had no familiarity with IEP’s and was not trained in how to deal with children in grades K-5.  Cushing said Tresner had served for an unspecified time as a volunteer at Illahee School, but she offered no details regarding the amount of time Tresner had spent volunteering or the type of involvement she had had with students and teachers.  Cushing said that Ms. Tresner was the mother of a teacher in the District and that Ms. Kern liked her.  Ms. Tresner did not appear as a witness at the hearing.

            While Ms. Kern testified that the interview team had checked Ms. Tresner’s references, which were from her previous work in business, none of those references was offered in evidence and no information was provided as to what the references had told the interviewers.  Ms. Kern acknowledged in her testimony that Ms. Tresner “had to learn many things”.  When asked why the team had selected Tresner, since she had no relevant experience, Kern responded, “Experience isn’t necessarily helpful and Florence could bring other strengths”.  She did not elaborate as to what those “other strengths” were, however.

            The arbitrator finds, from the evidence, that the District accepted Ms. Tresner for largely subjective reasons.  They liked her as a person and trusted that her past success in the business environment would be an indicator that she would follow the directions of her supervising teacher and succeed as a paraeducator in special education.

             In lieu of justifying their selection of Ms. Tresner by objective evidence, District witnesses focussed their attention on the criticisms they had had of the Grievant’s performance in Ms. Cushing’s classroom during 2001-2.  They offered extensive evidence directed at showing that the Grievant had been either unable or unwilling to follow her supervisor’s directions and perform her job duties adequately and that she was unlikely to improve.  The following specific examples were offered by the District’s witnesses:

            (1)  Students in special education need a warm, welcoming environment in order to succeed.  The Grievant was not warm and friendly with the children.  She was “flat” in dealing with a student named Chase and she showed “little enthusiasm” with Jaime and Rebecca.  Testimony of Nancy Maxwell.

            (2)  Special education students need individualized instruction and they need variety in teaching methods and approaches in order to meet their IEP goals.  The Grievant sometimes used the same teaching materials and activities day after day with Jaime and Rebecca in their math group, however, rather than varying her approach, as she had been directed to do.  Testimony of Nancy Maxwell.

            (3)   Ms. Cushing had told the Grievant that all communication with students’ parents about students’ performance in class was to come from the classroom teacher.  The staff assistants were not to communicate directly with parents without the teacher’s express permission.  In spite of that direction, the Grievant had given a student named Chase a note to bring home, telling his parent about a behavior issue.  The note had not been pre-approved by Ms. Cushing and was therefore not in keeping with the directions that the Grievant had been given.  It also caused the student to become very upset.  Testimony of Ms. Cushing and Ms. Maxwell.

            (4)   It is inappropriate to use food treats as a reward for good behavior in the classroom.  However, when some of the Grievant’s students asked her to give them some of her Mountain Dew, she told them she could give it to them if they were “good” and if they brought a permission slip from home.  Several students later brought in such permission slips.  Ms. Cushing had never authorized such a “reward” process and was angry at the Grievant when she found out about the unauthorized request for permission slips.  Testimony of Ms. Cushing.

            (5)   Interruptions in the classroom can interfere with student progress.  The Grievant had been directed to conduct personal business during her free time only, in order to minimize classroom interruptions.  In spite of that direction, the Grievant answered the schoolroom telephone, even during class instruction times, for personal calls.  Testimony of Ms. Cushing, Ms. Maxwell 

            (6)  The Grievant was directed to avoid using punitive means to deal with students’ behavior issues and to emphasize positive reinforcement and RDM techniques.  Students need to learn how to solve problems responsibly by themselves, rather than being punished for wrongful behavior.  In spite of that direction, the Grievant sometimes took away recess as a punishment for a student’s misbehavior.  This occurred even after Ms. Cushing instructed the Grievant not to take away recess.  Also, the Grievant kept a log book for several weeks in which she wrote down every incident of misbehavior (i.e. talking, disruption, feet on chairs) that occurred among her students.   (Testimony of Ms. Cushing)

            (7)   When asked to take the District’s training in RDM, the Grievant said she didn’t need to do so, as she had taken it in the past.  Testimony of Ms. Cushing.

            (8)   Students need constant supervision when they are working in the Special Education classroom. Occasionally the Grievant was not in the classroom in the morning when a student named Chase arrived for his special education session.  Testimony of Ms. Maxwell. 

            The Association rebutted many of the criticisms that Ms. Cushing, Ms. Kern and Ms. Maxwell had identified, by offering testimony by the Grievant herself and through cross-examination, as follows:

            (1)   The Grievant admitted that she is a quiet person.  People who are quiet and shy can nevertheless provide enthusiasm in children.  Testimony of the Grievant, Cross-examination of Ms. Maxwell.

            (2)   The Grievant acknowledged that she sometimes taught the same class to students who were on different levels in her math or reading/writing groups, but said it was not a frequent occurrence.  She said she understood that IEP’s required individualized instruction and testing, but it is not always possible to teach on different levels to students within a single group.  She said that Ms. Cushing was a new teacher and sometimes her expectations were unreasonable, in the Grievant’s opinion.  Previous teachers that the Grievant had worked with relied on her expertise in the classroom and did not question her work, as Cushing did.

            (3)  Regarding the unauthorized note in Chase’s backpack, the Grievant said the student’s regular fourth grade teacher had asked her to write the note and that she had looked for Ms. Cushing to get her authorization before giving it to Chase, but she was unable to find Cushing at the time.  She also said she had told Chase not to take it home until Ms. Cushing approved it.  (Ms. Maxwell rebutted this, however, testifying that Chase had not told her Ms. Cushing was supposed to see the note.)

            (4)  Regarding the Mountain Dew incident, the Grievant testified that she was not alone in offering food to children as a reward.  Ms. Cushing had given out Tootsie Rolls as rewards for good behavior for a time in the fall.

            (5)  Regarding the personal phone calls, the Grievant testified that others in the classroom, including Ms. Johnson and Ms. Cushing herself, had made personal calls during work time.  She also said her mother had been suffering with Alzheimer’s during the school year and that the mother had a pager, which she used to contact the Grievant at various times at work

            (6)   The Grievant did not deny that she had taken away recess from students on occasion.  She said that she had seen Ms. Cushing do so as well.  She said she knew that it was not a good disciplinary practice, because students need recess.  She denied she had ever disciplined a student harshly, saying she is “not that type of person”.  The Grievant acknowledged that she had kept a log book of student misbehavior for a short period of time, but said Ms. Cushing had recommended such an approach.  (This was subsequently denied by Cushing, however.)  She agreed that it is important to be positive rather than negative with special education students.

            (7)   Even though she had taken RDM training in the past, the Grievant said she had been willing to take the training again after Ms. Cushing suggested that she do so.  Since she and Ms. Johnson could not be absent at the same time, however, she waited until after Johnson took the training before signing up for a session in February of 2002.  See Exhibit U-6.

            (8)   Sometimes Chase arrived early for his lesson in the morning.  When that happened, testified the Grievant, she might have been out of the room doing typing or copying work.  She was not avoiding her duties, however.  In fact, she routinely arrived early for her shift and put in extra unpaid time nearly every day.  Ms. Cushing had even told her she “appreciated the time you give to the program”.

            The District rebutted the Association’s evidence by asking the Grievant specific questions about the Improvement Plan she had been on at Orchards in 2000-1.  The Grievant acknowledged that the Plan had included the following elements: 

            (1)   She was prohibited from using food as treats to reward children.

            (2)   She was to establish and follow a specific time schedule.

            (3)   She was to provide her supervising teacher with the work she planned to assign to students and to demonstrate how the assignments were appropriate to the students’ IEP’s.

            (4)   She was to follow the directions of her supervising teacher.

            (5)   She was to use a cooperative attitude and establish positive relationships with staff and students.

            The Grievant admitted she had gone through weekly monitoring under the Improvement Plan.  Then, at the end of the school year, she had been informed by the principal that she had failed to meet the expectations of the Plan and that her performance was unsatisfactory.  As a result, she would be terminated.  It was at that point that the Association intervened in her behalf and reached a settlement with the District whereby the Grievant was permitted to apply for other positions in the District in order to make a fresh start.

            The arbitrator is persuaded by the evidence that the Grievant had been notified of her performance deficiencies in 2000-1 when she was given a detailed Improvement Plan at Orchards.  Her principal determined at the end of the school year that she had failed to improve.  Then, even though her final performance evaluation at Orchards was kept out of her permanent personnel record and she was given a second chance to overcome her deficiencies by taking a new job in a different school in 2001-2, she continued to manifest the same deficiencies during her year at Illahee, in which she worked under different supervisors.  In particular, she failed to follow many of Ms. Cushing’s directions, she failed to use a cooperative attitude and establish positive relationships with staff and students and she used the promise of food as a potential reward for good behavior.  Significantly, she did not seem to appreciate the seriousness of her conduct, nor did she accept responsibility for her failure to meet the reasonable expectations of her supervising teacher.  In fact, she blamed others, including her supervising teacher, for most of her own failures. 

            Even though Ms. Cushing and Ms. Kern gave the Grievant a satisfactory performance evaluation in June of 2002, indicating that she was on the borderline of needing improvement in sixteen rating categories, the arbitrator is persuaded that the Grievant was unlikely to change her behavior or improve her performance in the future.  She clearly believed that her failure to follow Ms. Cushing’s directions was justified and that her own ways of doing things were better than Ms. Cushing’s ways.  She was either unable or unwilling to eliminate her unacceptable classroom habits.

            The arbitrator does not find, therefore, that the District violated the contract when it failed to hire the Grievant, and selected Ms. Tresner, for the second Special Education Staff Assistant position at Illahee School in 2002-3.  The District had the right to consider the Grievant’s entire work history, including her recent failure to correct the deficiencies that had been identified in an Improvement Plan in 2000-1, and to conclude that her ability to perform adequately in a special education staff assistant position was no longer consistent with the good evaluations she had received from her supervisors between 1991 and 2000 and was not substantially equal to the ability of Ms. Tresner.  See, e.g., Hillsboro Classified United, Local 4671, AFT and Hillsboro School District (Lori Long Gvc.), Arb. Sorensen-Jolink (2000).  Even though Ms. Tresner was new to the District and had no experience in special education, the District could rely on the strengths that she had demonstrated in her past employment in business and as a volunteer in the school setting and could conclude that Tresner had a greater ability to follow her supervising teacher’s directions and perform satisfactorily as a paraeducator in special education than the Grievant had.  

            (5)        Arbitrator’s Fee and Expenses:

            In the Sawvel case, Arbitrator Wilkinson found that the District’s process deficiencies had been serious.  Therefore, even though she ultimately determined that the grievant had been properly bypassed for the disputed appointment, Wilkinson decided that neither party was the sole “loser” in the case and she assessed the arbitrator’s fee and expenses equally against both parties.  At the time the Sawvel case arose, the agreement had provided as follows:

            10.6.2.  Costs of arbitration for any bypass grievance filed under Section 10.6.2, with the exception of respective attorney fee and related costs, shall be born by the loser of such arbitration.

After the Sawvel case was decided, the language of Article 10.6.2 was changed by

the parties, apparently through bargaining for a subsequent agreement.  The additional sentence that had been placed in the contract by the time Arbitrator Snow decided the Thurlow case in 2000, was as follows:         

10.6.2.1.  * * *  All arbitrator’s fees shall be paid by the Union unless the arbitrator determines that the grievant shall be placed in the position at issue or orders that the grievant’s placement in a comparable position or in the position sought, when vacated.

            Relying on the language in the contract before him, Arbitrator Snow awarded all arbitrator’s fees and expenses against the Association.  Even though Arbitrator Snow, like Arbitrator Wilkinson, found that the District had committed serious process errors, he declined to assess any costs against the District, because he did not order that the grievant be placed in any position with the District in his Award and the contract required that the Union pay all arbitration costs.

The applicable language in the current contract is identical to the language of

Section 10.6.2.1 as found in the contract that Arbitrator Snow interpreted.  Therefore, even though this arbitrator has determined that the District’s selection process was flawed, in that the Grievant was arbitrarily foreclosed from fair consideration for the permanent positions at Illahee for 2002-3 during the bidding and interview process, the arbitrator must assess all arbitration costs against the Association.  The Grievant was not determined to be eligible for placement in either of the positions at issue in this matter, nor was she ordered to be placed in a comparable position or in the position sought, when it is vacated.  Therefore, the clear language of Section 10.6.2.1 requires that the Association be designated as the loser of this arbitration proceeding and be held responsible for all fees.

AWARD

            For the reasons set forth in the preceding analysis and decision, the arbitrator has determined that the District did not violate the contract when it bypassed the Grievant for both of the “temporary to permanent” Special Education Staff Assistant positions that were posted for 2002-3 at Illahee School.   The grievance is denied.

            The arbitrator has further determined, pursuant to Section 10.6.2.1 of the collective bargaining agreement, that the Association is the loser of this arbitration and shall be solely responsible for the arbitrator’s fees and costs.

            DATED this _______ day of May, 2003.

                                                           ___________________________________

                                                             SANDRA SMITH GANGLE, J.D., Arbitrator

                                                           



[1] Ms. Cushing had originally marked all 16 of those categories as “Needs to Improve”.  Not wanting to be hurtful to the Grievant, however, Principal Kern had changed Ms. Cushing’s ratings, using the “borderline” approach.

[2] The arbitrator has not been asked to decide that issue in this proceeding, however, and she declines to express an opinion on the issue, as it was not raised in the grievance process and was not briefed by the District.

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