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Education Association and
Unified School District
Arbitrator: Allen Pool
Citation: 2004 NAC 103
Arbitrator's Case No. 11-28-01
ARBITRATION PROCEEDINGS PURSUANT TO
AGREEMENT BETWEEN THE PARTIES
Unified School District
2001 Employer-Initiated Transfers,
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.
E. Romero, Esq.
Attorney for the California
P. O. Box 921
Burlingame, California 94011
N. Freifeld, Esq.
Price & Radulovich, LLP
1301 Marina Village Parkway, Suite 310
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?
PROVISIONS OF THE AGREEMENT
12.7 Employer-Initiated Transfer (Involuntary)
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.
The Human Resources Division shall arrange a conference with the unit
member receiving an employer-initiated transfer to discuss the reasons for the
The new assignment will also be discussed at this conference based on all
known vacancies and based on the teacher’s credentialed area.
Reasons for the transfer, when, requested by the unit member, shall be
put in writing to the unit member.
The Unit member’s preference shall be honored unless there is a
conflict with the assignment factors previously enumerated in the Article.
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
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.
The Human Resources Division shall immediately notify the unit member in
writing of the new assignment.
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
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).
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
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.
OF THE ASSOCIATION
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.
OF THE DISTRICT
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.
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
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 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 6th,
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.
The Association’s contention was that Ms. Borens’ transfer was
punitive because of her opposition to a change in the 9th -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 25th the Principal
received a call from the Superintendent’s office putting an immediate stop to
the program. The next Monday
afternoon, August 28th, 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.
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
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.
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
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.
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.
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.
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
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
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.
C. ALLEN POOL, Arbitrator
exhibits are numbered (A-#), District exhibits are numbered (D-#), Joint
Exhibits are numbered (J-#), & citations from the transcript are marked (Tr-#).
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