INTRODUCTION

            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.

The 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 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 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. 

ISSUE

            The parties were not able to stipulate to the issues.

The District proposed the issue as follows:

“Did 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).”         

The Association proposed the issue as follows:

“Did 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).

The Arbitrator will apply the requirements of Article 5, Grievance Procedure, sub-section 5.3.3.2  to arrive at the issues to be determined. Sub-section 5.3.3.2, 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 5.3.3.2 of Article 5 and frames the issue(s) thusly:

“Did 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?

FACTUAL BACKGROUND

On 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.

The 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.

The 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.

RELEVANT CONTRACT LANGUAGE

Article  4  -  District Rights
It is understood and agreed that the District retains all of its powers, rights, authority  and responsibility to direct, manage and control to the full extent of the law. The  exercise of the District’s powers, rights, authority, duties and responsibilities; the adoption of polices, rules, regulations and practices in furtherance thereof; and the use of judgment and discretion in connection therewith; shall be limited only by the specific and express terms of this Agreement, and then only to the extent such specific and express terms are in conformance with law. 

Article 5 - Grievance Procedure  

Sub S ections: 

5.3.3.2      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. 

5.3.3.5      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.  

Article 12 - Evaluation Procedures 

Section 12.8  -  Complaints from Parents or Citizens 

No complaint of a person other than management will be used in the evaluation of a unit member, nor will any such complaint be placed in a unit member’s personnel file unless the following procedural rights are followed: 

12.8.1      Within ninety (90) days from the date of occurrence, the unit member shall be notified of  the complaint which shall be in writing and signed by the complainant. 

12.8.2      The unit member has the right to confront and examine the complainant(s) about the validity and accuracy of the complaint.

12.8.3      The unit member has the right of representation by the Association and to be informed  prior to any meeting that  the unit member is entitled to such representation. 

12.8.4      The unit member has the right to respond to the complaint both orally and in writing, and to have any written response attached to the complaint.

 

12.8.5      The unit member is allowed to remain in the position until formal charges have been made by the complainant, except in circumstances where the Superintendent may remove the employee from duty with pay pending investigation of any formal complainant, in accordance with Education Code provisions.

POSITION OF SHASTA SECONDARY EDUCATION ASSOCIATION 
ON BEHALF OF ITSELF AND THE GRIEVANT,  James  M. McShane

SSEA 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.

The 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.

Since 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.

Since 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.

The 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 Article 12.

POSITION OF SHASTA UNION HIGH SCHOOL DISTRICT

The 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. 

The 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.

The 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 Conduct.

The 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 denied.

DISCUSSION

Both 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 5.3.3.5 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.

It 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 arbitrator’s  authority.  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.

Central 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.

It 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.

 The 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.

It 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.

The 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.     

Sub 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.

Sub 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  conference,   since the time elapsed was dedicated to  solving  the grievance.  Both parties are to be commended for these  efforts.

Sub 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.

The 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).

The remedy sought cannot be awarded because SSEA failed to establish  that the District violated Article 12, Evaluation Procedures, of the CBA.