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Title: Grant District Education Assn and Grant Joint Union High School
Date: July 1, 2003
Arbitrator: John Wormuth
Citation: 2004 NAC 126

 

In the Matter of Arbitration 

between

Grant District Education Association (GDEA)

and

Grant Joint Union High School  District
 (Department Head Selection -Special Education)

John F. Wormuth
Arbitrator

Arbitrator’s Case No.  A-02-906

July 1, 2003

 

INTRODUCTION

            This Arbitration arises from a grievance filed on June 17, 2002 by Grant District Education Association, hereafter referred to as GDEA on behalf of itself and the aggrieved  Special Education Teachers at Don Julio Junior High School, alleging that Grant Joint Union High School District, hereafter referred to as District, violated Article lX Department Head/Peer Instructional Assistance Sub sections 9.1.1.2 and 9.1.1.5 of the Collective Bargaining Agreement, hereafter referred to as the CBA.   Authority for this Arbitration is the current CBA, Article ll, Grievances, in full force and effect   between the District and GDEA, covering the School Years 2001, 2002, 2003, and 2004.  This Arbitration was heard on March 18, 2003, commencing at 10:43 am at the offices of Grant Joint Union High School District, 1333 Grand Avenue, Sacramento, California. 

The parties unanimously selected John F. Wormuth as the Arbitrator in this matter to render a final and binding award.  The parties agreed that this matter is timely and properly before the Arbitrator and that all procedural requirements have been met. There were no pre-hearing briefs, but closing briefs were submitted and accepted. No other briefs or submissions were proffered and the Arbitrator requested none.   Sharon C. Holloway, RPR, CSR No. 12227 took the official record of this Arbitration. The Arbitrator did take notes and advised the parties that these are for the exclusive use of the Arbitrator and will not be shown to anyone.

The parties were given full opportunity to present evidence, examine and cross-examine witnesses, produce exhibits and present argument, and availed themselves of the opportunity to do so.  Prior to testifying all witnesses were administered an oath or affirmation by the Arbitrator.    

 The record of the Arbitration was closed on June 7, 2003, upon receipt of closing briefs from both GDEA and the District.  GDEA introduced 3 Exhibits; District introduced 1 Exhibit and there were 3 joint Exhibits introduced, all of which were admitted into evidence and are incorporated herein by reference.

APPEARANCES

ON BEHALF OF:  Grant District Education Association, CTA/NEA
David Oshige, Chapter Services Consultant
5959 Greenback Lane, Suite 500
Citrus Heights, California 95604-4757:

ON BEHALF OF: Grant Joint Union High School District

 Jacques S. Whitfield, Esq.
District General Counsel
1333 Grand Avenue
Sacramento, California 95838

ISSUE

             The parties were not able to agree to a stipulation of the issue.  GDEA, in its closing brief, submitted the issue as follows:  ”Did the District violate the Collective Bargaining Agreement when the Principal did not select a Department Head for the ensuing school year from the names that a majority of the Department members submitted on March 19, 2002?”

Although GDEA’s framing of the issue most approximates that of the Arbitrator, the issue is stated thusly: “Did the District violate Article lX Department Head/Peer Instructional Assistance Sub sections 9.1.1.2 and 9.1.1.5   of the CBA when the Principal of Don Julio Junior High School declined to remove the incumbent Department Head when a majority of the Department members made a determination   of non-reelection? If yes, what should the remedy be?”

 

                        Factual Background

The parties entered into a stipulation of the facts as recited in Joint Exhibit #3.  (JT EX. 3)

RELEVANT CONTRACT LANGUAGE

Article lX- Department Head/Peer Instructional Assistance

9.1                   Department Head:

9.1.1         Department Head Selection

9.1.1.1       Principals will provide written notification to members of a Department by March 15th. if the Department Head position will be open the following school year.

9.1.1.2     Members of the  Department shall submit two names to the Principal by
April 1st.  The Principal will select from the names submitted provided the 
person selected meets the criteria listed in 9.1.1.7.  If less than two names are submitted, the Principal may select any member of the Department who agrees to serve for one year.

9.1.1.3      Selection shall occur in the Spring, prior to the close of school.  Department    Head duties shall begin in the Fall of the following school year.

9.1.1.4            A single term shall be for a period of three years.  A person can reapply and serve additional terms.

9.1.1.5            Termination of the Department Head may occur by:

1.1    Recommendation of the Principal at the end of the first year that the person be non-reelected, or
1.2    Resignation, or
1.3    Majority of the Department members recommendation of non-reelection, or
1.4    Transfer/reassignment of Department Head.

9.1.1.6          A vacancy occurring in a Department Head’s position due to termination, resignation, transfer or non-reelection shall be filled in accordance to 9.1.1.2 and shall continue to the end of the original three-year term.

9.1.1.7            The Department Head must:

(1)    Be a full-time employee.
(2)    Teach a minimum of three periods within the Department.
(3)    Have a major, minor, or a vocational credential in at least one of the subject areas in the Department.

9.1.1.8            Criteria for selection of Department Head shall include but not be limited to the following:

(1)    At least a satisfactory performance as a classroom teacher based on past and present evaluations.
(2)    Leadership qualities.
(3)    Knowledge of curriculum (textbooks/materials/equipment).
(4)    Organizational skills (budget, conduct meetings, maintain inventory); records and reports.

POSITION OF GRANT DISTRICT EDUCATION ASSOCIATION CTA/NEA

GDEA argues that District violated  Article lX Department Head/Peer Instructional Assistance,  Sub sections 9.1.1.2 and 9.1.1.5 of the CBA when the District failed to honor the majority decision of the Department members to non-reelect the incumbent Department Head. The non-reelection process was conducted in accordance with the provisions of CBA   established for that purpose.

The authority for the majority of Department members to non-reelect the Department Head draws its essence from the clear terms and expressions of the CBA.  

The District did adopt a site-based management framework that fosters and supports the concept of shared management.

GDEA contends that the election or non-reelection of the Department Head is the prerogative of the majority members of the Department and the incumbent is not protected from non-reelection by virtue of a three-year term of office.  

GDEA argues that an integral component of site-based management is the District’s acceptance that it is the majority of   teachers who can best determine the most appropiate individual to lead the Department.   The contractual selection process   requires   the Principal to select from two individuals nominated by a majority of the Department members. This assures that those nominated have the confidence of the majority and preserves the imperative that the individual selected   is most familiar with Department and student needs. Conversely, the Article permits, when the majority determines that the incumbent is not serving those needs, a mandatory mid-term non-reelection.  Once a majority determines that a non-reelection is appropriate,   the site Administrator must follow the recommendation of non-reelection.    

POSITION OF GRANT JOINT UNION HIGH SCHOOL DISTRICT

The District argues that it did not violate Article lX Department Head/Peer Instructional Assistance Sub-sections 9.1.1.2 and 9.1.1.5 when the site Administrator declined to follow the recommendation of the majority of the Department members to non-reelect the incumbent Department Head.

  The CBA does not support the contention that Department members have the prerogative of mid-term non-reelection. As per the CBA, the Department majority may recommend mid-term non-reelection but it is the Principal who maintains the final authority to non-reelect.  Review of the incumbent’s   first year performance is not a function of the majority of Department members; this function rests solely with the Principal. Certainly, the Principal may entertain the advice of the majority of Department members concerning mid-term non-reelection, and do so, without abandoning or compromising his authority to make a final decision. The majority of the Department’s recommendation of non-reelection of the incumbent, in this circumstance, is advice to the site Administrator, and it is just that, advice. There is no contractual obligation or requirement to follow the Department’s majority non-reelection of the incumbent Department Head  at mid-term.

The language of the Article is permissive as it pertains to the mid-term termination of an incumbent Department Head.  There is no defect in construction nor is the intent of the language in doubt. The use of may rather than shall is purposeful and deliberate.  Preservation of the site Principal’s authority to determine mid-term non-reelection was negotiated into the CBA by use of the permissive may in favor of shall. 

DISCUSSION

The facts of this arbitration   are not in dispute and were stipulated to by the parties. (JTExhibit #3).  Both the District and GDEA concede that the central issue to be determined is the application and interpretation of Article lX and the disputed Sub sections. The underlying  issue is if,  by virtue of their own motion, can the majority of the Department members non-reelect the incumbent Department Head at mid-term? And, is the non-reelection of the Department Head mid-term permitted by the terms and conditions of Article lX?  In order to answer these questions   primary consideration must be given to whether or not the Article contains ambiguities. In applying this standard it is necessary to determine if the Article can be understood by its plain language thereby conveying to the reader its purpose and intent. Simply stated, is the Article as written absent of ordinary meaning?  And if the ordinary meaning is obscured, what did the parties intend?

Article lX has its origins in the 1993-1994,1994-1995 CBA. (District EX. 1)  and has remained in successor agreements with some modifications. This is a well established contract provision that has been the subject of ongoing discussion and negotiation between the parties. A review of Article lX of the 1993 thru 1995 CBA (District EX 1) Sub section 9.1.1.2 has the permissive “may” with respect to the requirement that majority of Department members “may” submit two names to the Principal for consideration to be the Department Head. By contrast, the current CBA 2001-2002, 2003-2004 (JT EX 1) Article lX, Sub section 9.1.1.2 has been amended from the permissive “may”  to the mandatory  “shall”.  This amendment has the practical effect of removing the permissive “may” and inserts the contractual mandate that the majority of Department members “shall” nominate two candidates for Department Head. Significantly, the amendment of this Sub section from the permissive to compelling limits the selection by the Principal to the two individuals nominated by the majority of the Department members. Outright disqualification of a nominee by the Principal is restricted to the criteria established in Sub section 9.1.1.7 of Article lX. Disqualification of a nominee is per Sub section 9.1.1.7 is mandatory and not permissive. The must contained in Sub section 9.1.1.7 is specific in construction and intent and enumerates the basic qualifications needed  to serve as Department Head.

One is required to journey to Sub section 9.1.1.8 to find the criteria that is desirable for a Department Head to posses. The desired qualities of a Department Head found in Sub section 9.1.1.8 address the skills that should be imbued in the candidate for election. These qualifications require that  the nominee shall have satisfactory evaluations, leadership qualities, knowledge of the curriculum and organizational skills.  The language provides that the selection is not limited to the above factors but allows for the introduction of other qualities that the Principal may use to select from between the two   nominees that meet the minimum criterion.    Although the criterion is not limited to an inflexible list, it serves both parties as a guide to the qualities that should be found in a Department Head.

When Article lX is read in its entirety, the true working of the Article becomes apparent. Sub section 9.1.1.8 is an integral part of the deliberations that both the Department members and the Principal must follow. Each party must consider the factors in Sub sections 9.1.1.7 and 9.1.1.8 when the majority nominates and the Principal elects.    The majority of the Department members nominates two individuals that they conclude meet or exceed the minimum requirements for Department Head. However, once the majority has made their nomination, it is the duty of Principal to elect from the two candidates nominated. This self-regulating mechanism is the true balance of power between the site administration and the majority Department members. The restrictions placed on the site Administrator for election of a Department Head is that it must be made from the list of qualified candidates submitted by the majority of Department members.  Barring a contractual disqualification or the candidate’s refusal to serve, the candidate elected by the Principal shall serve. Such service is by term of office not to exceed a three-year duration.   The term of office of the Department Head is governed by the circumstance of election, but a shorter period of service can occur. This would ostensibly occur in the event that the majority nominates less than two qualified candidates.  Under these conditions the term of office is limited to one year and the Principal can fill the vacancy with any Department member who is willing to serve. At the conclusion of the year, the majority members shall nominate two candidates for Department Head. In the event the incumbent should resign or transfer to a different school site, then  renomination by the  the majority would proceed.  If the Department Head is elected to a three-year term, then the incumbent term of office is subject to review at the end of the first year. Sub section 9.1.1.5 - Termination of Department provides the circumstance under which termination may occur. However, the operable language is “may” ,  not “shall” , and it is therefore permissive and not mandatory. In this instance, the majority recommendation of non-reelection is advisory to the site Administrator.  It is the site Administrator who appoints the Department Head from a list of two candidates submitted by the majority. It is the role of the majority to nominate, but it is the Principal who appoints.   The language of Sub section 9.1.1.2 and 9.1.1.5 is clear and unambiguous in that the majority of Department members nominate, but is the site Administrator who elects.

GDEA argues that site based management as embraced by the District in the early 1990’s converted the permissive “may” to be read as shall””.   In support of   this argument  they assert  that the essence of this provision draws its strength from   site-based management. However,  this is not supported by the evidence nor by  the contract,  since Article IX is the result of the collective barganing process.  It is evident that the Article in the current CBA was constructed with the concept that the majority would recommend, but the Principal would elect.  It is difficult to conclude that the driving force behind the Article is site-based management, when in fact the parties themselves dispute the effective date of site-based management.  What is conclusive is that Article lX is an integral part of the CBA and confers specific contractual rights to the majority of Department members in the election of a Department Head. The integrity and efficiency of this provision is not dependent upon site-based management or any other form of administration.  Testimony was offered that one of the chief reasons for the development and inclusion of the provision into the CBA is to assure that those nominated for   a Department Head position would be more responsive to the needs of the majority members and of  the students. No compelling evidence was offered to support the proposition that the majority has the right to require the removal of a Department Head mid-term. Essentially, the incumbent Department Head is not up for election mid-term but serves a defined term of office. Interpreting the contract   to accommodate non-reelection of  an incumbent  Department Head mid-term would result in  chaos and instability on the Department and the election provisions.  Then,  the election of a Department Head instead, of being a thoughtful and contemplative procedure,  would be subject to influences that neither GDEA nor the District anticipated. Both GDEA and the District addressed the need for stability by contractually establishing a three-year term of office for Department Heads.

The contractual avenue for the majority to non-reelect the Department Head is the nominating procedure at the expiration of the incumbent’s term, or in the event of a vacancy. Any non-reelection of an incumbent Department Head that is made mid-term is advisory only to the site Administrator and is not enforceable by the contract’s provisions.

Article lX is not ambiguous and therefore must be accorded its plain meaning. The sincere testimony by  one of the original GDEA negotiators as to their    intent to require    mandatory non-reelection of a Department Head    is not sufficient  in weight to overcome the actual language of the CBA.  It may well have been the objective of the original negotiators that the majority non-reelection be binding mid-term, but   this did not become part of the CBA. This concept cannot not be found in the current Article lX nor in the 1993 thru 1995 agreement (District EX. 1).

The District did not violate Article lX, Sub sections 9.1.1.2 and 9.1.1.5  (1.3)  when the site Administrator declined to remove the incumbent Department Head upon determination  by the majority of the Department members in favor of  mid-term non-reelection.

REMEDY

The grievance of the Grant District Education Association on behalf of itself and the aggrieved unit members is denied.

           ___________________________
                      John F. Wormuth 
                            Arbitrator                                                                   July 1, 2003

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