2004 NAC 103 Oakland Education Association and Oakland Unified School District

Title: Oakland Education Association and Oakland Unified School District
Date: May 27, 2003
Arbitrator: Allen Pool
Citation: 2004 NAC 103

This Arbitration arose pursuant to Agreement between the Oakland Education Association, hereinafter referred to as the “Association” and the Oakland Unified School District, hereinafter referred to as the “District”, under which C. ALLEN POOL was selected to serve as Arbitrator through the negotiated procedures in the Agreement. The parties agreed that the matter was properly before the Arbitrator and that his decision shall be final and binding on the parties.
The Hearing was held in the City of Oakland, California on November 28, 2001, December 20, 2001, January 24, 2002, February 27, 2002, June 14, 2002, October 15, 2002, December 13, 2002, and January 17, 2003. At the Hearing, the parties were afforded the opportunity, of which they availed themselves, to examine and cross-examine witnesses and to introduce relevant evidence, exhibits, and arguments. The witnesses were duly sworn and a written transcript was made of the Hearing. Posthearing briefs were timely filed and exchanged between parties through the Arbitrator on May 14, 2002 at which time the record was closed.

Whether the District violated Article 12.7, Employer-Initiated Transfer (Involuntary), of the Agreement when it transferred the unit members listed in Association Exhibit No. 1?

12.7.1 If the principal/site administrator and/or other administrators initiate a transfer, the administrator shall arrange a conference with the unit member and an Association Representative to discuss the reasons a transfer is being considered. If, at the conclusion of the conference, it is determined that a transfer is desirable, the administrator shall submit a written request to the Human Resources Director, appropriate Service Team, and the Association listing the reasons, a copy of which shall also be given to the unit member.

12.7.2 The Human Resources Division shall arrange a conference with the unit member receiving an employer-initiated transfer to discuss the reasons for the transfer.

12.7.2.1 The new assignment will also be discussed at this conference based on all known vacancies and based on the teacher’s credentialed area.

12.7.2.2 Reasons for the transfer, when, requested by the unit member, shall be put in writing to the unit member.

12.7.2.3 The Unit member’s preference shall be honored unless there is a conflict with the assignment factors previously enumerated in the Article.

12.7.3 Except in cases of immediate need or emergency, unit members shall be given notice of employer-initiated transfers by the first Friday in December for a transfer that is to take effect in the second semester; and by the first Friday in April for a transfer that is to take effect at the beginning of the first semester.

12.7.4 A unit member subject to a transfer based on immediate need may request a review of such transfer by the Superintendent, and the transfer shall be subject to the final approval of the Superintendent.

12.7.5 The Human Resources Division shall immediately notify the unit member in writing of the new assignment.

12.7.6 Employer-initiated transfers shall not be initiated for reasons of a punitive or disciplinary nature. Any reason considered in relation to employer-initiated transfer must have a direct bearing on the employee and the employee’s specifically assigned responsibilities.

12.7.7 Unit members transferred under this section shall not be subject to another transfer for two (2) work years, (the first year following the transfer and the subsequent year).

            Oakland Unified School District, located in the East Bay of the San Francisco Bay region, is comprised of approximately 107 schools and a student population of about 52,000. The current superintendent, Dennis Chaconas, in office for three years at the time this Arbitration commenced on November 28, 2001, made it his goal to implement educational reforms at targeted schools to improve demonstrably poor student achievement and performance.
            The agenda was one of aggressive reform that was a result of 42 schools in the District being designated as II/USP Schools. This was a result of new state laws that hold school districts seriously accountable for student performance, namely student failure. The Public Schools Accountability Act requires that schools that do not meet standards as measured by a variety of tests shall be placed in the Immediate Interventation/Underperforming Schools Programs (II/USP). An II/USP school is one showing dismal student performance in a variety academic disciplines, attendance, etc. An II/USP school falls within a Reward & Sanction Policy wherein the school must show significant and measurable improvement within a given 2 to 3 year time span or face takeover by the State of California or closure.
            The two II/USP schools that were the principal subjects of this Arbitration were McClymonds High School and Castlemont High School. Both high schools had tested at levels within the bottom 10% of all the schools in the State of California. Their student dropout rates were deplorable, their test scores were unacceptable, there was rampant absenteeism, and the student culture was one of disinterest.
            By the middle of the Spring semester in 2001, the Superintendent, working with and/or through his Executive Directors and the Principals at the two high schools began making decisions for implementing reform measures commencing with the Fall semester of the 2001-2002 school year. A key element, according to the District, in implementing the reforms consisted of matching specific reforms with District employees possessing the requisite skills, experience, and talents most likely to implement and effectuate the required reforms. Another element was the assemblage of a staff at each of the two high schools that was committed to implementing the needed educational reforms. This meant transferring teachers and other staff members to match them up with the planned reforms at targeted schools. To effectuate the reforms at the two schools, the District determined some standards that would be used to select staff members. These included a personal and professional commitment by each staff member to the reforms, high student expectations on the part of staff members, flexibility in programming & scheduling, and professional staff development to maximize the potential of all staff.
            By March and early April of 2001, decisions were made with respect to matching employees and their transfers with the reforms to be undertaken at the targeted schools for the following Fall school term. Arrangements were made and procedures were undertaken for the transfer of a variety of employees. These employees included, among others, principals, assistant principals, classroom teachers, and counselors. However, not all of these employees volunteered to transfer.

In March and early April of 2001, the District initiated the involuntary transfer of thirty (30) bargaining unit members (A-1).[1] For a variety of reasons, the total number of unit members involved in this grievance was subsequently reduced to 13 and then, again, reduced to five unit members (A-3). By the time the record was closed, the number of Grievants was further reduced to four employees. The four were Emma Borens, Pamela Brantley, Jerry Samuels, and Early Lucas. On behalf of its unit members, the Association filed grievances alleging that the District violated Article 12.7 of the Collective Bargaining Agreement. The grievances were processed and proceeded to this Arbitration.

The District violated Article 12.7 of the Collective Bargaining Agreement. The involuntary transfers for each of the four Grievants were for punitive reasons in violation of Article 12.7.6 of the Contract. The transfers were not within what was contemplated by the parties with the language of Article 12.7. The District did not assert either an “immediate need” or an “emergency”. There was no change in the language of Article 12.7.6 that prohibits disciplinary or punitive transfers. The District did not have the authority to do what it did. The District violated Article 12.7 of the Agreement. The grievances should be sustained.

The District did not violate Article 12.7 of the Collective Bargaining Agreement with respect to the transfer of any of the four Grievants. Provisions in the Agreement were followed and the District-Initiated transfers were not punitive or disciplinary in nature. The language of Article 12.7 is plain and unambiguous. The transfers were part of a district-wide plan to improve student performance and achievement. The two high schools in question had been designated as II/USP schools that were not meeting the needs of students and were targeted for reform. Where it was deemed necessary, the District used its authority set forth in Article 12.7 and initiated involuntary transfers to effect the reforms at the two high schools. The grievances should be denied.

The issue in this case was whether the District violated Article 12.7 Employer-Initiated Transfers (Involuntary). The Association further narrowed the issue in its brief where it asserted that each of the four transfers “was punitive in nature in violation of Article 12.7’s prohibition against punitive transfers”. More specifically, the prohibition on transfers that are punitive in nature is expressed in Article 12.7.3 (Union Brief p. 2 & 6). As any standard dictionary will show, punitive is an adjective that is concerned with punishment or penalties. To punish is to afflict with pain, loss or suffering for a fault; to inflict a penalty for an offense upon the offender. Therefore, the burden is on the Association to prove that each of the four transfers was punitive in nature.
The Article 12.7 provision of the Agreement was not something new. The provision was found in previous Agreements at least dating back to the Agreement for the year of July 1, 1995 to July1, 1996 (D-2). A reading of the previous Agreement and the current Agreement (J-1), showed that the wording of the provision in the two Agreements, except for a couple of minor changes, was the same. The minor changes were (1) an change in the title from “Administrative-Initiated” to “Employer-Initiated” Transfer (Involuntary); (2) the insertion of the words “immediate need or” in front the word “emergency” in Article 12.7.3; and (3) the replacement of the term “teachers” with the term “unit members”. These minor changes in no way altered the prohibition on transfers by the District that are punitive in nature. The language of the provision was clear and unambiguous and reflected the mutual intent of the parties; that is, the District, subject to the procedures and prohibitions expressed in the Agreement, clearly has the authority to involuntary transfer unit members.

EMMA BORENS’ GRIEVANCE
Background
            The Grievant was a 23-year employee with the District. Most of those years were spent serving as a counselor either at a middle school, junior high school, or senior high school. For the ten years prior to the events leading to this arbitration, the Grievant was one of a team of five counselors at the District’s Skyline High School. The Head Counselor for the team was Sharon Bowles. The evidence record was very clear in that the counseling team and the concomitant program at Skyline H.S. was considered to one the most effective in the district.
            The evidence record also reflected the fact that the Grievant, herself, held a sterling reputation among her peers, the school administration, the students, the community, and the superintendent and his staff. She was experienced and knowledgeable and recognized for her expertise in the various features of high school counseling i.e. college counseling, career planning, the master schedule, etc. The Skyline High School principal, Ms. Lois Walker, described her as competent and able (Tr-502-503). Executive Director Dr. Spann-Agree also described her as competent and able (Tr-286-287, 324). The Superintendent, Dennis Chaconas, considered her one of the best counselors in the District (Tr-598-600). Her performance evaluations also reflected the high esteem in which she was held and the high quality of her work (A-4). The point here is obvious.
            The events that led to Ms. Borens’ grievance commenced on April 4, 2001. At a meeting attended by the Grievant, Ms. Borens, Principal Lois Walker, Executive Director Dr. Dorothy Spann-Agee, and Oakland Education Association (OEA) Executive Director Ara Prigian, the Grievant was told of the District’s intent to transfer her from Skyline High School. A letter from the Human Resource Department two days later, dated April 6^th, officially informed the Grievant she was to be transferred from Skyline High School (A-5). The reason given by the District for the transfer was for the good of the District.
            The Grievant met with Superintendent Chaconas the next month, May of 2001, to discuss her transfer. She asked the Superintendent why she was being transferred. The Grievant testified, on direct examination, that the Superintendent told her the District needed her expertise, her skills, and her services at McClymond High School. She expressed, to the Superintendent, her desire to remain at Skyline High School. She testified that the Superintendent offered her a one-year transfer to McClymond High School after which she could go back to Skyline High School. After rejecting the offer, the Superintendent then offered her a 3-month stay at McClymond’s and then a return to Skyline High School. She testified, also on direct, that she offered to go to McClymond’s on a released time basis and assist with rebuilding the counseling program at McClymond’s (Tr-184-188, 231-236, 286). The Superintendent rejected her offer and her transfer to McClymond High School stayed in force. Her grievance was filed along with the others listed in A-1 & A-3. The grievance was processed and proceeded to this Arbitration.

Discussion
            The Association’s contention was that Ms. Borens’ transfer was punitive because of her opposition to a change in the 9^th -grade counseling program at Skyline High School. The program was set to be implemented as of the week of August 21-25, 2000 in preparation for the opening of the school year. However, on the afternoon of Friday, August 25^th the Principal received a call from the Superintendent’s office putting an immediate stop to the program. The next Monday afternoon, August 28^th, Executive Director Spann-Agee held a meeting at Skyline High School where she addressed the counseling staff.
            The Association alleged that at this meeting, Ms. Spann-Agee threatened Ms. Borens with transfer because of her opposition to the program. The evidence record did not support the allegation. A number of people present at the meeting described Ms. Spann-Agee as being upset with what she perceived to a lack of team work and a lack of support for the school’s administration, but there was no evidence showing that Ms. Spann-Agee actually threatened the Grievant, Ms. Borens. More convincingly, evidence record showed that the decision to transfer the Grievant eight months later was not made by Ms. Spann-Agee. The decision was made by Superintendent Chaconas (Tr-393-394, 599-601). Moreover, Superintendent Chaconas did not learn of the alleged threat of August 28, 2000 until the Grievant informed him of it during their meeting in May 2001 (Tr-630).
            The District’s transfer of Ms. Borens was not punitive in nature. She did not want to transfer out of Skyline High School, but the transfer was in actuality a promotion. She became the Head Counselor at McClymonds High School where there was more professional responsibility and an increase in salary. Therefore, for the reasons discussed in the foregoing, it is the conclusion of the Arbitrator that the District did not violate Article 12.7. The Grievance is denied.

PAMELA BRANTLEY’S GRIEVANCE
Background
            In early Fall of the 2000-2001 school year, McClymonds High School, where the Grievant had been a teacher for nearly 18 years, was put on notice that it was to undergo “Immediate Intervention for Under School Performance” (II/USP). The designation of McClymond High School as an II/USP school was the result of poor student achievement and performance. The school had also received some unfavorable recommendations concerning student expectations and achievement in the 1999 accreditation study conducted by the Western Association of Schools and Colleges (WASC). Most importantly, though, were the school’s low test scores as reflected in the Academic Performance Index (API).
            With the designation of McClymonds High School as an II/USP school, came a mandate that steps were to be taken immediately to improve the school’s curriculum. The process for improvement was to begin at the start of the Fall semester of 2001. In a series of meetings with the school’s staff the students, the parents, and the community were made aware of the school’s II/USP status and its implications. An important step in this process was to engage the service of an outside evaluator to conduct a study of the school’s curriculum, its programs, and the challenges it would face in making the needed reforms. The evaluator’s report, titled “Initial Report of Findings”, made recommendations that included guidelines for affecting the needed reforms at McClymond High School.
            The principal of McClymond High School, Lynn Haines Dodd, with the approval of the Superintendent, set about the task of reconstructing the school’s overall curriculum with a focus on student academic achievement and performance. Along with program change, it was determined that some staff changes might be necessary. Each staff member would have to make a personal and professional commitment to the reforms and its focus on higher student expectations, on greater involvement with the parents and community, on heightening student motivation, and on mastery of course subject matter.
            Staff members at McClymond High School who expressed a desire to not stay on were allowed to request a transfer to other positions at other schools for the next school year. Staff members wishing to stay on at the school and be a part of the reform, were given an opportunity to demonstrate their commitment. In late March and early April of 2001, each staff member was scheduled for a “commitment session” with the principal, a District administrator, and a representative from the Association. Prior to the “commitment sessions”, the Association President, Sheila Quintana, met with the school’s faculty on two occasions. In attendance at one of the meetings were both unit members and administrators. On cross-examination, the Grievant testified that Ms. Quintana discussed the impact of II/USP and also explained to them that the District could transfer them but not for punitive and disciplinary reasons (Tr-882-884).
            Twenty-two unit members were transferred from McClymonds High School. Seven of those were involuntary transferred. The Grievant, Ms. Brantley, was one of the seven. Her “commitment session” was held on April 3, 2001. Like the other teachers in preparation for the session, she was given a small packet that included questionnaire to which she was to respond. She came to the session with the questionnaire blank. At the conclusion of the session, she was informed she would be transferred from McClymonds High School (Tr-885-890, D-9). Three days later, on April 6th, she received a written notice informing her of her transfer from McClymond High School. She filed a grievance through the Association. The Grievance was then processed to this Arbitration.

Discussion
            The Association contended that the Grievant’s transfer was punitive because of her conflicts with the Principal at McClymonds High School. The evidence record did not support the contention. There were five instances where the Grievance had “conflicts “ with the Principal. In the Fall of 1999, the Grievant filed a grievance over her teaching assignment for the year. The grievance was settled at Level I (A-7).
            The Grievant was the Association’s site representative. In that role in June 2000, she represented a teacher who had not been offered a contract for the next year. Her support included a meeting with the Superintendent, a meeting that allegedly the Principal took exception to.
            In September 2000, she had another conflict with the Principal concerning her class schedule and the number of preparations. She filed a grievance that was subsequently settled (A-10). Another conflict concerned the Principal’s placement of a student in the Grievant’s Spanish II class. The Grievant objection was that the student had not completed the prerequisites for the class. The fifth conflict occurred in November 2000. The Principal called the Grievant to her office where she expressed concerns that too much emphasis was been placed on culture and not enough on mastery of the subject matter.
            The Grievant had some conflicts with the Principal. However, the evidence record did not support the allegation the Principal used the conflicts to retaliate against the Grievant and transfer her from McClymonds High School. The conflicts were professional in nature and focused on how educational or administrative matters should have been conducted or handled. There was no evidence that showed any personal animosity by the Principal towards the Grievant.
            The evidence record supported the conclusion that the reason for the Grievant’s transfer was her failure to demonstrate a personal and professional commitment to the reforms to be implemented at McClymonds High School (Tr-888-890, 939-948). For the reasons discussed in the foregoing, it is the conclusion of the Arbitrator that the District did not violate Article 12.7 of the Agreement. The Grievance is denied.

JERRY SAMUELS’ GRIEVANCE
Background
            Mr. Samuels was a 17-year employee with District and had been assigned as a math teacher at Castlemont High School for the past 14-years. Castlemont High School was one of several schools to be declared an II/USP school because of its “dismal” student performance as reflected in low test scores, low attendance, and low on all other measurements. The school was also placed under the “Reward & Sanction Policy” and given a two to three year time frame in which to improve student performance or face a take over by the State. The school was targeted for reforms.
            A new principal, Dr. Ron Miller, was assigned to Castlemont for the school year of 2000-2001 to make preparations for implementing the reforms. Dr. Miller met with the faculty at the start of the school year to discuss the impact of the II/USP status and needed reforms. The discussion included the expectations for each faculty member and the need for commitment sessions for each faculty member who expressed a desire to stay on at the school for the following year of 2001-2002.
            In the Spring of April 2001, Mr. Samuel was notified that he was to be transferred from Castlemont High School effective at the end of the semester. His recommendation for transfer came at the request of the principal, Dr. Miller and District Executive Director Yolanda Peeks. Superintendent Chaconas the recommendation and concurred with it. Through the Association, Mr. Samuels filed a grievance that was processed to this Arbitration.

Discussion
            The Association contended that his transfer was punitive, that he had frictions with his evaluators concerning his grading practices, his high student failure rates, and his discipline practices. The District’s concerns are well documented and go back several years (A-17-28). However, the evidence record failed to reveal any proof that his transfer was punitive. There was conjecture, innuendo, and supposition but no proof. If the District had wanted to punish him a transfer could have been effected much earlier in time.
            Castlemont High School was facing the same or similar sanctions as the other II/USP schools. They were under a mandate to take immediate steps to attain measurable increases in student performances within a two to three year time frame. This necessitated aggressive reform measures and a staff committed to getting the job done. His transfer to “meet the needs of the District as it relates to II/USP, Ninth-grade reform, and to creating small learning communities” was not punitive (A-30). The District had genuine concerns regarding the Grievant’s commitment to the soon to be implemented reforms. He was transferred because his overall approach at Castlemont was entirely inconsistent with the need for the wholesale reforms necessary if the school was not to finally fail for good.
            Therefore, for the reasons discussed in the foregoing, it is the conclusion of the Arbitrator that the District did not violate Article 12.7 of the Agreement. The reasons for the Grievants’ transfer were not punitive in nature. The Grievance is denied.

EARLY LUCAS’ GRIEVANCE
Background
            Mr. Lucas was first employed with the District in 1977. After teaching for one semester at McClymond High School he transferred to Castlemont High School. He remained at Castlemont High School throughout the years until his transfer the end of the 2000-2001 school year. As a math teacher, Mr. Lucas taught at all grade levels and all math courses up through Trigonometry.
            In his last few years while still at Castlemont High School, the Grievant was suffering from severe medical problems with his hips. He testified that the “last two years at Castlemont were ‘unbearable’, but that he fought through it”(Tr-1450-1454). He testified that his condition caused him to take days off. During his last year at Castlemont High School, he took more than 20 days off from work for an average of approximately two days per month. (Later, Mr. Lucas underwent hip replacement surgery for both of his hips. His first surgery was in November of 2001 and the second surgery was in April of 2002).
            Mr. Lucas was present at a faculty meeting conducted by the Principal, Dr. Ron Miller, at the start of the 2000-2001 school year. That was the faculty meeting referred to earlier where Dr. Miller discussed with the faculty the impact of II/USP on Castlemont High School, to make them aware of the coming reforms, and the expectations of faculty members. Part of the discussion included the attendance problem of both students and faculty members. Mr. Lucas testified that at some point during the faculty meeting he introduced himself to Dr. Miller and made it known to Dr. Miller that “he (Lucas) would not be able to maintain the level of expected participation” (Tr-1472-1474).
            Mr. Lucas testified that in April of 2001 the principal, Dr. Miller, called him in and told him of his transfer from Castlemont. On April 5, 2001 Dr. Miller sent his recommendation to transfer Mr. Lucas to the Human Resources Department (A-36 & A-37). Mr. Lucas filed a grievance through the Association that was processed to this Arbitration.

Discussion
            The Association‘s contention was that the transfer was punitive because of the Grievant’s high student failure rate, his clash with the Superintendent over the policy change to require all ninth-graders to take Algebra I, and the Principal’s threat. His high student failure rate was a matter of record and had been a concern for several years (A-36). However, it was but one element in the District’s judgment that the Grievant’s level of commitment to the reforms to be undertaken was not sufficient. On direct examination, he testified that he made it known to Principal Miller at the Fall 2000 meeting that he would not be able to maintain the level of expected participation (Tr-1473). He also testified on direct that he did not volunteer to take a post in the Ninth-Grade House, a school within a school for the 2001-2002 school year. This was done even though he was told that those who did not volunteer to take a post would be transferred (Tr-14-85-1488).
            The assertion by the Association that the Grievant had a “clash” with the Superintendent relative to requiring all ninth-graders to take Algebra I was without merit. My reading of the evidence record showed that the “clash” was an honest, professional disagreement over policy or the basis for the change in policy (Tr-1457-1463). Nor did the evidence record support the allegation that Principal Miller issued a direct threat to the Grievant. The Grievant testified on direct examination that the Principal stated “that since there were so many faculty members absent, that if we continued the practice, then we would end up being transferred from that school, because Castlemont was an II/USP school”. The meeting took place in the Fall of 2000 (Tr-1473-1474).
            For the reasons discussed in the foregoing, it is the conclusion of the Arbitrator that the District did not violate Article 12.7 of the Agreement. The reasons for the Grievant’s transfer were not punitive in nature. The Grievance is denied.

The Grievances are denied. The District did not violate Article 12.7 Employer-Initiated Transfer (Involuntary) of the Agreement when it transferred unit members Emma Borens, Pamela Brantley, Jerry Samuels, and Early Lucas.

[1]Association exhibits are numbered (A-#), District exhibits are numbered (D-#), Joint Exhibits are numbered (J-#), & citations from the transcript are marked (Tr-#).

For the Association:	For the District
RamÙn E. Romero, Esq. Staff Attorney for the California Teachers Association P. O. Box 921 Burlingame, California 94011 (650) 552-5415	Douglas N. Freifeld, Esq. Wiley Price & Radulovich, LLP 1301 Marina Village Parkway, Suite 310 Alameda, California 94501 (510) 337-2810