This Arbitration arises from a grievance filed on June 15, 2001 by
the Shasta Secondary Education Association CTA/NEA,
hereafter referred to as SSEA, on behalf of itself and James M.
McShane, a certificated employee, hereafter referred to as Grievant,
alleging that the Shasta Union High School District, hereafter referred to
as District, violated Article 12 Evaluation Procedures, Sub Sections
12.8, 12.8.1, and 12.8.2 of the Collective Bargaining Agreement, hereafter
referred to as the CBA. Authority
for this Arbitration is the current CBA, Article 5, Grievances,
in full force and effect between
the District and the SSEA, effective
July 1, 2000 to June 30, 2003.
This Arbitration was heard on April 2, 2003, commencing at 2:09 pm.
at the offices of The Shasta County Office of Education, 1644 Magnolia
Avenue, Redding, California.
parties, from a list submitted by the California State Mediation and
Conciliation Service, Case Number ARB-01-309, 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 and rebuttal briefs were submitted and
accepted. No other briefs or submissions were proffered and the Arbitrator
requested none. Clifford M. Fisher, CSR 2727, 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
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.
record of this Arbitration was closed on June 23, 2003 upon receipt of
rebuttal briefs from both the SSEA and the District. The SSEA
introduced 2 Exhibits, and the District introduced 16 Exhibits and
there were 2 Joint Exhibits introduced, all of which were admitted into
evidence and are incorporated herein by reference.
ON BEHALF OF: Shasta
Secondary Education Association CTA/NEA
California Teachers Association
1734 West Street
Redding, California 96001
California Teachers Association
1705 Murchison Drive
Burlingame, California 94011
ON BEHALF OF: Shasta Union High School District
J. Munoz, Esq.
Kronick, Moskovitz, Tiedemann,& Girard
400 Capitol Mall, 27th
Sacramento, CA 95814
The parties were not able to stipulate to the issues.
District proposed the issue as follows:
the Shasta Union High School District (District) violate Article Xll,
Section 8.1 or Section 8.2 of the Collective Bargaining Agreement when it
issued a Notice of Unprofessional Conduct in accordance with Education Code
section 44938 to the Grievant James
Mc Shane (Grievant), because of his conduct on May 11, 2001?” (District
Post Hearing Brief, Pg. 2: 4:5:6 June 10, 2003).”
Association proposed the issue as follows:
the Shasta Union High School District violate Article 12.8.1 and 12.8.2 of
the Collective Bargaining Agreement when it placed the complaint of Board
member Cassandra Ryan against Grievant Jim McShane in Jim McShane’s
personnel file?” (Association
Post Hearing Brief Pg. 1 and 2,
June 10, 2003).
Arbitrator will apply the requirements of Article 5, Grievance Procedure,
sub-section 188.8.131.52 to arrive
at the issues to be determined. Sub-section 184.108.40.206, in pertinent
part, mandates that “the arbitrator shall determine the issues
by referring to the written grievance and the answers thereto at each step.”
(Emphasis provided). The Arbitrator has reviewed the requirements of
sub section 220.127.116.11 of Article 5 and frames the issue(s) thusly:
the District violate Article 12, Evaluation Procedures, section 12.8
Complaints from Parents or Citizens, sub sections 12.8.1, 12.8.2, and 12.8.4
when it issued a Notice of Unprofessional Conduct
to the Grievant on June 6, 2001?
If yes, what shall the remedy be?
June 6, 2001, the District served the Grievant with a Notice of
Unprofessional Conduct per Education Code Section 44938 (District Ex 1) for
alleged unprofessional conduct at the Staff Appreciation Dinner on
May 11, 2001. The unprofessional conduct is alleged to have taken
place at the Staff Appreciation Dinner.
Attendance at the dinner is limited to employees of the District,
Board members and their invited guests, and is not viewed as a public event. Both the SSEA and the District vigorously dispute the facts
and circumstances used in support of the
Notice of Unprofessional Conduct.
However, neither party argues that the notice was issued for
conduct other than what
is alleged to have occurred at the Staff Appreciation Dinner on May
11, 2001. No other instances of
unprofessional conduct were presented and none are alleged to have occurred.
Grievant first responded to the Notice of Unprofessional Conduct on June 14,
2001, at which time he indicated that an in-depth reply would follow. The
Grievant did file a response to the Notice of Unprofessional Conduct
pursuant to its provisions and it was attached to the
Notice, as required. In
his communication of June 14, 2001 the
Grievant advised the District that he was going to file a grievance under the terms of the CBA, and did
so on June 15, 2001. The
Grievant filed a Level I
grievance under Article 5, Grievance Procedure, alleging a violation
of Article 12, Evaluation Procedures, Sub section 12.8.1 and 12.8.2 (Jt.
Ex 2A) The remedy the Grievant sought was the removal of the Notice of
Unprofessional Conduct and to stop all proceedings. On June 25, 2001, the
District denied the grievance. (Jt. Ex 2B)
asserting that the grievance was not subject to the provisions of Article
12. The Grievant filed a
Level II grievance on July 11, 2001, reiterating the same contractual
violation, and also to include
alleged violations of District policies, regulations and bylaws (JT.Ex 2D). The
District denied the Level ll grievance on July 31, 2001.
On August 24, 2001, SSEA,
on behalf of itself and the Grievant, filed a Level lll grievance.
On November 19, 2001, (District Ex 9), the SSEA requested the
grievance be submitted to arbitration as it had concluded that the efforts
of both the SSEA and the District to resolve the grievance had proven
unsuccessful. Subsequent to
November 19, 2001, both the District and
SSEA did not immediately move
to arbitration, but continued their efforts to resolve the grievance. As a result of those discussions
a proposed settlement agreement was submitted to the Grievant on
March 11, 2002 (District Ex 10).
It was rejected by the Grievant on April 9, 2002, (District Ex 11)
because the settlement agreement did not provide for the permanent
destruction of all documents. It
was on the occasion of the
Grievant’s rejection of the
settlement that the grievance was moved to arbitration.
Grievant has been a professional educator for the past twenty-four years and
is currently teaching at Pioneer School. At the time that
the Notice of Unprofessional
Conduct was served, the
Grievant was assigned to Churn
Creek High School, and at
all times remained in the employ of the Shasta Union High School District.
5 - Grievance Procedure
The parties shall attempt to agree upon a statement of the issues to
be submitted to the arbitrator.
If the parties cannot so agree, the arbitrator shall determine the issues by
referring to the written grievance and the answers thereto at each step,
except for the issue of grievability.
The findings of the arbitrator shall be limited to the specific issue
or issues submitted pursuant to 5.3.2 above, and shall be based solely upon
the evidence and arguments presented by the parties. The arbitrator shall
not have any power to add to, subtract from, or modify the terms of this
Agreement, or the written polices , rules, regulations, and procedures of
the District, nor to so recommend. No finding of the arbitrator shall be
retroactive beyond the beginning of the last payroll prior to the ten-day
period specified in Level l of the grievance procedure. The arbitrator shall
have no power to render a finding on any grievance occurring before or after
the term of this Agreement. The findings of the arbitrator shall be binding
on both parties.
OF SHASTA SECONDARY EDUCATION ASSOCIATION
ON BEHALF OF ITSELF AND THE GRIEVANT, James
argues that the District violated the CBA and the contractual rights of the
Grievant when it failed to comply with
the provisions of Article 12, Evaluation Procedures, sub
Sections 12.8.1 and 12.8.2. when it issued a Notice of Unprofessional
Conduct to the Grievant on June 6, 2001.
SSEA argues that the Notice of Unprofessional Conduct is the direct result
of, and relies upon a complaint filed by a Board member in
violation of Article 12. Article
12, Sub sections 12.8, 12.8.1 and 12.8.2 require that any complaint,
excepting those filed by
management, be subject to its provisions. A member of the Board of Trustees
falls outside the definition of management, and a Board Member
may not independently exercise managerial control or prerogatives.
This restriction compels that any complaint of a Board toward a certificated
employee by a Board Member is no different than that of a parent or ordinary
citizen and is subject to the full provisions of Article 12.
a Board Member may not, of his or her own accord, exercise the role of
management, any complaint against a unit member must be resolved under the
terms of Article 12. A Board Member enjoys no special immunity from the
requirements of Article 12, as a
Board Member is not considered
to be management, nor an
employee of the District.
the Notice of Unprofessional Conduct draws its essence from a complaint
improperly filed by a Board Member, the notice itself is fatally
flawed. The District cannot rely upon a misapplication of the CBA to issue a
Notice of Unprofessional Conduct that effectively deprives the Grievant of
his contractual rights. The
Grievant has been denied his contractual rights and caused to suffer the
issuance of a Notice of Unprofessional Conduct because the District
misapplied and misinterpreted Article
12 of the CBA.
contractual rights in Article 12 provide safeguards
against a parent or citizen from
filing charges against a certificated employee until all of the requirements
of Article 12 are met. A key protection is that a complaint cannot be placed
in a unit member’s personnel file unless all of the procedural
rights of Article 12.8 Complaints from Parents or Citizens (Emphasis
provided) are followed.
The CBA lacks a just cause provision, and Article 12 is the only
contractual protection enjoyed by unit members. A violation of the
protections enumerated in Article 12 is not a procedural violation but is
substantive one. Therefore, if
disciplinary action finds refuge in a substantive rights violation, it
cannot stand on its own. If it were permitted to stand it would
perpetrate a substantive contractual violation
as it precludes the Grievant from answering a complaint as envisioned
and required by the terms of
OF SHASTA UNION HIGH SCHOOL DISTRICT
District argues that it did not violate Article 12, Evaluation Procedures,
Sub Sections 12.8.1 and 12.8.2 as it is not applicable to the Notice of
Unprofessional Conduct. The SSEA has the burden of proving that its
interpretation of Article 12 is correct and to establish that it is
applicable to the Notice of Unprofessional Conduct. The District maintains
that it has a right to issue a Notice of Unprofessional Conduct when it
deems the behavior of a unit member so warrants. No compelling evidence was produced that the parties to the
CBA ever intended to, or agreed to subject a Notice of Unprofessional
Conduct to the rights provisions of Article 12.
The proper standard of review are those found in the Education Code,
upon which rests the authority
of the District to issue a Notice of Unprofessional Conduct. SSEA has not met its burden of proof since it has been
unable to establish by operation, implementation or interpretation of the
CBA, that a Notice of
Unprofessional Conduct has ever been subject to Article 12 and its rights
provisions. In fact, Article 12
is part of the evaluation procedure and
is established to permit a member of the public to submit a complaint
concerning a certificated employee and to give the certificated employee the
right to challenge the complaint. It
is clear that a complaint by a member of the public may not be placed in an
employee’s personnel file until all of the procedural protections of
Article 12 are complied with. The
issuance of a Notice of Unprofessional Conduct by the District is a
protected management prerogative to discipline its employees. The
appropriate appellate procedures are encompassed in Education Code 44938,
Notice of Unprofessional Conduct, that provides the Grievant with the right
to comment upon and attach written comments to the Notice of Unprofessional
Conduct. In this case the Grievant was afforded full opportunity to attach
written comments, and did so.
grievance should be denied because the initial grievance contains a fatal
misstatement of the facts. The Grievant pleads that the complaint of the
Board member be removed from his personnel file.
District has produced compelling evidence that at no time has the Board
member’s complaint ever been in, and is not now in the Grievant's
personnel file. The Notice of Unprofessional Conduct issued by the
Superintendent, and the Grievant’s written attachment, are the only
documents related to this matter in the Grievant’s personnel file.
The Notice of Unprofessional Conduct, dated May 31, 2001, but issued
on June 6, 2001, had no affect
on the Grievant’s evaluation.
The Grievant’s evaluation
was completed by the District on May 28, 2001. (District Ex 1, pg 5).
The District further argues that no discipline was taken, nor is any
contemplated by the District, as a result of this Notice of Unprofessional
Notice of Unprofessional Conduct issued by the District is not subject to
the jurisdiction of Article 12. The
District contends in essence that Article 12 is an evaluation Article, not a
disciplinary article. Conversely, the Notice of Unprofessional Conduct is a
disciplinary matter governed by Education Code 44938. Since Article 12 is an
evaluation article and not a disciplinary article, the grievance must be
SSEA and District apply a restrictive view of the arbitrator’s authority
to remedy this grievance. SSEA points out that the CBA lacks a just cause provision (TR:
14: 24, 25. TR:15: 1) that
prevents it from contesting the substance of the Notice of Unprofessional
Conduct. SSEA argues that the lack of a just cause provision also prevents the Arbitrator from considering the merits and applying a
just cause analysis to the Notice of Unprofessional Conduct.
The District argues that Article 5, Grievance Procedure, Sub
section 18.104.22.168 and Article 4, Districts Rights, precludes the
Arbitrator from applying a just cause analysis
to the Notice of Unprofessional Conduct. The parties to the
arbitration did not grant the Arbitrator authority over Education Code
Section 44938 and have by their actions specifically narrowed this inquiry
to Article 12, Evaluation Procedures, of the CBA. In that vein, no
substantial testimony was offered as to the facts surrounding the events
that caused the District to issue a Notice of Unprofessional Conduct to the
Grievant. This grievance can be reduced to the central question of whether
or not Article 12, Evaluation
Procedures, was complied
with when the District issued a Notice of Unprofessional Conduct.
is a well-established axiom of Arbitration that a CBA that
has binding arbitration as the final step of
its grievance procedure implies
a just cause standard of review.
However, in the instant case, both parties to this arbitration have
argued that if the Arbitrator applied a just cause standard
it would exceed the
Under most circumstances it is for the Arbitrator to arrive at such
determination, and not the parties. The CBA is utilized by both parties
as the basis for their respective positions
and the limits they have imposed on this inquiry.
In this case, the arbitration concerns Article 12, Evaluation
Procedures, and if an alleged violation of
its rights provisions is sufficient cause to overturn a Notice of
Unprofessional Conduct. The
Education Code has its own independent standard of appellate review. The
parties did not give authority to the Arbitrator over matters contained in
the Education Code.
to SSEA contention is that a Board Member who files a complaint against a
certificated employee by virtue of their office is not exempt from the
rights requirements of Article 12. Specifically, the issues of notice and that the complaint shall be in
writing and signed by the complainant. The District professes that because a
Board Member is part of the Management team, that a complaint by a Board
member is covered by the management exclusion of section 12.8.
is necessary to first establish that a complaint is a far different matter
than a Notice of Unprofessional Conduct. A Notice of Unprofessional Conduct
carries with it a plan for improvement and the stated consequences that if
the conduct is not rectified or if other serious misconduct occurs, further
disciplinary action may follow. It
is difficult to read Article 12 as having the same implications for
discipline. The plain language of Article 12 makes no reference to the
potential of discipline as
does the Notice of Unprofessional Conduct. Any complaint that is exclusively
covered by Article 12 has several procedures to be followed prior to the
placement of the complaint in a certificated employee’s personnel file.
The Article refers to the evaluation procedure, not to
the issuance of a Notice of Unprofessional Conduct. It appears that Article
12 protects the integrity of a certificated employee’s evaluation from
unsubstantiated charges. Charges that may arise from a poor evaluation are
primarily issues of performance and not charges of unprofessional conduct.
Notice of Unprofessional Conduct does not have appended to it the original
complaint. SSEA theorizes
that the original complaint (District Ex 6) serves as the basis for
the Notice of Unprofessional Conduct. However,
the evidence does not support this conclusion. The evidence that the
District used in the preparation of, and the decision to arrive at issuance
of the Notice of Unprofessional Conduct, was not subject to the rigors of
cross-examination. In order to support this conclusion it would be necessary
to subject the entire Notice of Unprofessional Conduct to a just cause
examination, the very method the SSEA asserts that the Arbitrator may not
do. Essentially, there is not
enough evidence to show that District made its decision solely based on the
Board member’s complaint or for reasons other than those stated in the
Notice of Unprofessional Conduct.
is not necessary to determine the management status of a Board member with
respect to the resolution of the grievance. Ample creditable testimony has
been offered that the District did not place the Board member’s complaint
in the Grievant’s personnel file. For the purposes of Article 12, the original complaint is
beyond its scope because the District issued a Notice of Unprofessional
Conduct, instead of a complaint.
provisions of Article 12 require that the Grievant be given a copy of the
complaint and the District provided a copy to the Grievant on June 25, 2001.
(District Ex 6). The Grievant’s receipt of a copy of the complaint on June
25, 2001 is well within the ninety day requirement of Article 12,
Sub section 12.8.1.
section 12.8.1 requires that a complaint be signed by the complainant. This
is not applicable because the District issued a Notice of Unprofessional
Conduct, not a complaint. The
Grievant responded to the Notice of Unprofessional Conduct and attached his
response to the Notice, as per Education Code 44938. The District complied
with sub section 12.8.1.
section 12.8.2 of Article 12 provides that the Grievant has a right to
confront the complainant. In March of 2002 (Tr. 29:15:16) a conference between the
interested parties and the Grievant did occur. Testimony was offered that
the Notice of Unprofessional Conduct was discussed and the reasons for its
issuance. This meeting satisfied the requirements of sub section 12.8.2. The
late date of the conference is a result of the efforts by the leadership of
both the SSEA and the District to resolve this grievance at the lowest
possible level. No adverse consequence
is applied to
either party’s position for the lateness of this
the time elapsed was dedicated to solving the grievance. Both
parties are to be commended for these efforts.
section 12.8.4 provides the right of the Grievant to respond to a complaint
both orally and in writing. The Grievant did on July 11, 2001, (District Ex 7)
respond in writing to the original complaint of the Board member. The
Grievant’s written response was addressed to the President of the Board.
The Grievant also exercised his rights to attach his response to the Notice
of Unprofessional Conduct, and did so.
The District did not violate Sub section 12.8.4 of Article 12.
remedy sought by the Grievant: “The Grievant requests that all
documentation related to the complaint at issue be removed from his
personnel file and all other files, and that the documentation be
destroyed.” (Association Post Hearing Brief Pg. 12, June 10, 2003).
remedy sought cannot be awarded because SSEA failed to establish
that the District violated Article 12, Evaluation Procedures,
of the CBA.
all of the stated reasons, the
grievance is denied.
John F. Wormuth
July 25, 2003