School District and Public School Employees of Washington
AMERICAN ARBITRATION ASSOCIATION
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,
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:
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?
Association framed the issue in this way:
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?
reviewed the record and briefs of the parties, the arbitrator frames the issue
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?
AND COVERAGE OF AGREEMENT
* * * *
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.
* * * *
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.
* * * *
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 terms of this Agreement, is the right to direct the
work force, the right to hire, promote, retain, transfer, and assign employees
in positions; . . . .
SENIORITY, AND LAYOFF PROCEDURES
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. . . .
seniority rights of an employee shall be lost for the following reasons:
B. Discharge for any reason
contained in this Agreement; or
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.
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,
AND DISCHARGE OF EMPLOYEES
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. . . .
actions by the District may include the following:
1. Oral Warning
2. Written Warning
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.
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.
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.
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.
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. . . .
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. . . .
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
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).
Temporary positions exist when:
B. Enrollment stability is
Temporary positions will be identified as such on the opening
Temporary positions are temporary and may end when the need for a
particular position no longer exists.
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.
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.
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.
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”.
No categories were marked as “Needs to Improve” and none were marked
The “borderline” categories included the following:
essential functions of the job. . . .
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.
or about June 18, 2002, the District posted Notices of Opening for two Special
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
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
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.
OF THE PARTIES
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.
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.
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.
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 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:
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.
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.,
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.”
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.
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
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.
Was the Grievant properly excluded from the selection process?
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
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.
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.
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.
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?
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
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
(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.
(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.
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
(2) She was to establish and follow a specific time
(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
(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.
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:
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.
case was decided, the language of Article 10.6.2 was changed by
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
* * * 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
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
applicable language in the current contract is identical to the language of
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.
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
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
this _______ day of May, 2003.
SMITH GANGLE, J.D., Arbitrator
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.
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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