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Title: School District No. 1 and Denver Classroom Teachers Association
Date: December 29, 2004
Arbitrator: David Gaba
Citation: 2004 NAC 141

AMERICAN ARBITRATION ASSOCIATION

 

DENVER CLASSROOM TEACHERS ASSOCIATION,

Union,

and

SCHOOL DISTRICT No. 1, COUNTY OF DENVER, STATE OF COLORADO,

Employer.

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ALISA ROLFE Arbitration
AAA Case No. 77 390 00513 03

AWARD

I.  INTRODUCTION

            This arbitration arises pursuant to a Collective Bargaining Agreement between the DENVER CLASSROOM TEACHERS ASSOCIATION (hereinafter UNION or ASSOCIATION) and SCHOOL DISTRICT No. 1, COUNTY OF DENVER, STATE OF COLORADO (hereinafter DISTRICT or EMPLOYER), under which DAVID GABA was selected to serve as Arbitrator and under which his Award shall be final and binding among the parties except as limited by Article 7 of the parties Collective Bargaining Agreement.

            A hearing was held before Arbitrator Gaba on December 1, 2004, in Denver Colorado.  The parties had the opportunity to examine and cross-examine witnesses, introduce exhibits, and fully argue all of the issues in dispute.  No transcript of the proceedings was provided.  Briefs were received on December 23, 2004.

APPEARANCES:

On behalf of the Union:

William J. Maikovich, Esq.
4776 S. Helena Way
Aurora, Colorado  80015

On behalf of the Employer:

Walter J. Kramarz
Deputy General Counsel
Denver Public Schools
900 Grant St., Rm. 401
Denver, Colorado 80203

II.  ISSUE

            The parties could not agree on the issue presented. The statement of the issue as framed by the Employer is:

“Whether Grievant Alisa Rolfe was properly compensated under the collective bargaining agreement (“Agreement”) between the Denver Classroom Teachers Association (“DCTA”) and the District.

The Union framed the issue as:

Did DPS violate Article 31 of the Agreement when it refused to pay Ms. Rolfe at the appropriate step of the negotiated salary schedule for the entire 2003-04 school year?

The arbitrator accepts the issue as presented by the Employer.

III.  RELEVANT CONTRACT PROVISIONS

The most recent collective bargaining agreement between Denver Classroom Teachers Association and the Denver School District the relevant contract language reads, in full, as follows:

31-3     Salary Schedule Placement and Advancement.

Teachers shall be placed and advanced on the salary schedule based on their experience in teaching and level of education in accordance with Board policy.  Before the Board makes any change to existing policies regarding placement and advancement, the Association must be notified and given opportunity to discuss any proposed changes with the Board.  Guidelines for placement and advancement will be provided to the Association, posted, and provided to any teacher who requests it.  Changes made during the year must be distributed to the Association, posted, and provided to any teacher who requests it within thirty (30) days following adoption by the Board.

 

31-4     Education Increments.

Teachers shall receive education increments on the next scheduled payday that is at least twenty-five (25) days after the teacher has submitted all required transcripts and necessary paperwork to the Department of Human Resources.

IV.   FACTS

The Denver Classroom Teachers Association is the labor union that represents teachers who work for School District No. 1 in the City and County of Denver, State of Colorado.  The Union and Employer are parties to a Collective Bargaining Agreement (“CBA” or “Agreement”) with effective dates of September 1, 2002 through August 31, 2005.[1]    Alisa Rolfe is a probationary teacher currently assigned to Munroe Elementary School and is represented by the Union.   Ms. Rolfe left her employment with the Denver Public Schools in 2001 in order to move to California with her husband.  In 2003 Ms. Rolfe returned to Denver with her family and was re-hired by District.

Prior to being rehired by Denver Public Schools for the 2003-2004 school year, Ms. Rolfe taught during the 2001-2002 school year at Folsom Cordova (California) Unified School District (“Folsom Cordova”), and during the 2002-2003 school year at Rio Linda (California) Union School District (“Rio Linda”).

Pursuant to District practice, each of these two years of prior teaching experience entitled Ms. Rolfe to a salary “step increase” under Article 31-1 of the Agreement between the Union, and the District. Accordingly, Ms. Rolfe went to the District website and downloaded the appropriate forms.  Ms. Rolfe mailed those forms some time prior to August 18, 2003 to the two respective school districts in California, enclosed stamped envelopes with the Denver Public Schools address, and requested that those forms be returned, fully executed, to the District.  Ms. Rolfe believed that those forms had been returned to Denver Public Schools in a timely fashion.  However, sometime in early 2004, Ms. Rolfe discovered that Denver Public Schools had not given her credit for her year’s service at Rio Linda Union School District. Instead, she discovered, the Employer was taking the position that Rio Linda Union School District had never returned the aforementioned form and, therefore, she was not entitled to credit on the salary schedule for that year of teaching.

It is undisputed that:  (1) the District received employment verification documentation of Ms. Rolfe’s Folsom Cordova teaching experience within 30 days of the start of the 2003-2004 school year, [2] and processed a retroactive salary increase from Step 5 to Step 6 of the pay scale through the use of a “Personnel Action” form effecting Step 6 raise  “retro” to  “09/01/03”[3]; and (2) Ms. Rolfe received non-retroactive salary increase to Step 7 through a “Personnel Action” form effecting the raise  “for verification of outside teaching experience” on March 22, 2004, for her experience with Rio Linda Union School District.[4] Ms. Rolfe’s pay increase to step 7 happened immediately after the District received a copy of employment verification documentation from Rio Linda.

Ms. Rolfe testified that she did not know until February-March of 2004 that she had not been credited the Step 7 increase for her Rio Linda teaching experience.   Ms. Rolfe testified  that in August of 2003 she mailed to Rio Linda a pre-addressed envelope bearing Ms. Lucero’s name and address at Denver Public Schools, which Rio Linda personnel would presumably use to send the “experience documentation form” to Denver Public Schools.  What happened next is unclear and is central to the parties dispute.

At the Arbitration Hearing District Human Resources Generalist Ms. LeAnn Lucero testified that she was responsible for human resources-related transactions at Munroe Elementary School and that her responsibilities included processing salary step increases for teachers.   Ms. Lucero indicated that she did not receive any “experience documentation” from Rio Linda School District until March 2004 and that Ms. Rolfe contacted her about the missing Rio Linda documentation for the first time in February or March of 2004.  Ms. Lucero testified that she checked Ms. Rolfe’s personnel file, where the form would have been deposited, not once, but twice, and on a page-by-page basis.  At that time, Ms. Lucero saw the Folsom Cordova experience documentation, but not the Rio Linda documentation.  Ms. Lucero subsequently received the Rio Linda documentation form on or about March 22, 2004.

The parties agree that the original Rio Linda experience documentation[5] was, inexplicably, in Ms. Rolfe’s personnel file as of the date of the Arbitration Hearing.   As evident during the hearing, that original document had previously been folded into an irregular shape roughly four inches by six inches while the Folsom Cordova document had been tri-folded, in the manner of an ordinary business letter.  The Rio Linda School District form had been fully executed by Christine Valle of the Rio Linda Union School District and dated “8/19/03”.  The document also contained a date stamp indicating that the form was received by Rio Linda Union School District on “August 18, 2003”.  While many other documents in Ms. Rolfe’s personnel file were “date stamped,” neither the “Rio Linda letter” nor the “Folsom Cordova” letter had been “date stamped” by the Denver School District.

 The parties agree that upon receiving the Rio Linda documentation in March 2004, Ms. Lucero did not process Ms. Rolfe’s Step 7 salary increase retroactively to the start of the 2003-2004 school year (consistent with Denver Public Schools current practice), because the experience documentation was received in excess of 30 days after the start of the school year.  When Ms. Rolfe found that the District was denying her the Step 7 raise retroactively, and she elevated her complaint twice, first to the District’s Executive Director of Human Resources, Robin Kane, and then to District’s Assistant Superintendent of Administrative Services, Andre Pettigrew.[6]  After Ms. Rolfe initially complained, Ms. Lucero consulted with, among others, Denver Public Schools Human Resources Department administrator Joyce Fell. 

During the relevant time period Ms. Fell’s areas of oversight included the processing of teacher salary step increases.   Ms. Fell testified that it had been established practice throughout her tenure at Denver Public Schools to process experience-based salary step increases retroactively only when experience documentation was received by the Human Resources Department within 30 days of the start of the semester/school year (the “30 Day Rule”).   Ms. Fell further testified that it had uniformly been the teacher’s, and not the District’s, responsibility to ensure timely documentation of teaching experience. 

Ms. Rolfe testified that she never heard of the 30 Day Rule until March 2004, well after this dispute arose.  She said that had she known of the 30 Day Rule in August-September 2003, she would have ensured that the Rio Linda experience documentation was received by September 2003.  Ms. Lucero testified that she normally advises newly-hired teachers such as Ms. Rolfe to return their experience documentation forms within 30 days.

Union President Bruce Dickinson testified that the Denver Public Schools Board of Education had never, to his knowledge, enacted the 30 Day Rule as a Board policy.  He further stated that never, during his extensive tenure with the Union was the 30-Day Rule a discussion topic between the Union and the District.   Ms. Fell also testified that she was unaware of any Denver Public Schools Board Policy which enacted the 30-day rule. 

V.   POSITION OF THE UNION

            The Union argues that Prior to the morning of the hearing, the Union thought there might be a good faith dispute between the parties.  Article 31-3 of the collective bargaining agreement provides in relevant part that: “Teachers shall be placed and advanced on the salary schedule based on their experience in teaching…in accordance with Board policy.  Before the Board makes any change to existing policies… the Association must be notified and given opportunity to discuss any proposed changes with the Board.  Guidelines for placement and advancement will be provided to the Association…,”[7] but that the discovery of the “Rio Linda letter” in Ms. Rolfe’s personnel file redefined the parameters of the dispute.  The Union now believes that the facts support a finding that the “Rio Linda letter” had always been in Rolfe’s personnel file and that the grievant is entitled to prevail upon a finding that she complied with even the District’s own interpretation of its policies.

The Union believes that Denver Public Schools recognized that Ms. Rolfe was entitled to credit for salary purposes under the applicable Board policies for her service at Rio Linda Union School District and that the only issue was whether the failure of Denver Public Schools to make Ms. Rolfe’s salary increase retroactive to the beginning of the school year was sanctioned by Board policies that had been shared with the Union as required by Article 31-3 of the parties Collective Bargaining Agreement. The Union’s position is that no Board policy existed that would limit the retroactivity of the salary increase and the Union notes that no such policy had been provided to Ms. Rolfe or the Union, even at level 2 of these proceedings.

The Union relies on the testimony of Bruce Dickinson who indicated that in his many years as the Executive Director of the Union, Denver Public Schools had never provided the Union with any Board policy – proposed or otherwise –that would limit the retroactivity of a salary increase for teaching experience in the manner in which the Denver Public Schools administration proceeded in the Rolfe case.

VI.  POSITION OF THE EMPLOYER

The Employer believes that the Union has reaped the benefit of the “30 day rule” for over twelve years and now seeks to discard the parties long term course of dealing in interpreting the agreement and that the Union cannot now plausibly and consistent with Colorado law read this long-term course of dealing out of the Agreement.   The Employer supports its argument by citing Centennial-Aspen II Ltd. Partnership v. City of Aspen,[8] holding that a course of dealing is a “sequence of previous conduct between the parties to an agreement” which may be used to “give meaning to, supplement, or qualify an agreement” The Centennial-Aspen II court explained:

Course of dealing may become part of an agreement either by explicit provision or by tacit recognition …. Like usage of trade, it may … annex an agreed but unstated term.  

            The Employer believes that as applied here, the 30 Day Rule constitutes a course of dealing which has existed between the District and Union for at the very least, twelve years and that before Ms. Rolfe created the instant controversy, the 30 Day Rule was accepted by both parties to the Agreement, and effectively amounted to a “supplement” to whatever other express provisions were in the Agreement, or it “annexed an agreed but unstated term” to the Agreement.

            The Employer also believes that if the 30 Day Rule is not incorporated into the Agreement, all Union members, including Ms. Rolfe, who have reaped the benefits of that rule’s retroactive pay provision were improperly overpaid and that absent the 30 Day Rule, no Board policy, posted guideline, or Agreement provision provides for retroactive pay increases for prior teaching experience.  The Employer notes that retroactivity is implicitly rejected in the Agreement in the context of salary step increases for educational credentials and that if a “teacher were to present documentation today that she had obtained a doctorate degree in 2003, no retroactive salary step increase for the current 2004-2005 school year is provided.”

The Employer believes that the common law “Mailbox Rule” is inapplicable in the instant case and that the weight of evidence supports a finding that the Denver School District never received the original “Rio Linda letter”.  The Employer also correctly notes that all of Ms. Valle’s statements that she mailed the documentation are inadmissible hearsay. The District believes that the central focus of the hearing in this matter is factual and narrow (the date of Ms. Lucero’s receipt of the Rio Linda documentation), and that   resolution of the issue turns in large part on the credibility, motives, and veracity of Ms. Lucero and Ms. Rolfe.

The employer argues that Ms. Lucero testified with candor while Ms. Rolfe had both a motive for deceit and unpersuasive testimony. Lastly the employer notes the two burdens placed on the Union, firstly, the burden placed on Ms. Rolfe to make sure that the “Rio Linda letter” was delivered to the employer, and secondly, the burden of proof placed on unions in contract interpretation cases.

VII.  DECISION

Contractual Language.

The applicable standards for contract interpretation are well established.  Where the language in a collective bargaining agreement is clear and unambiguous, the arbitrator must give effect to the plain meaning of the language.  This is so even when one party finds the result unexpected or harsh.  Words are to be given their ordinary and popularly accepted meaning, unless other evidence indicates that the parties intended some specialized meaning.[9] 

It is the goal of the arbitrator to interpret the language in the manner the parties intended. “Arbitrators must strive to determine what the parties were attempting to accomplish by the contract language used and to effectuate that intent.”[10] 

Was The Contract Violated?

In most contract interpretation cases the primary question before the arbitrator is: what does the language in the Collective Bargaining Agreement mean?  In the instant case the parties contract language is clear on its face and the central question is one of fact.  Put simply, how did the “Rio Linda letter” get into Ms. Rolfe’s personnel file, and when was it placed there?

 This arbitrator is not arrogant enough to think he knows how the “Rio Linda letter” got into Ms. Rolfe’s personnel file; rather, I am trying to balance the probabilities to determine what is more-likely-than-not. The standard of proof for contractual disputes is preponderance of the evidence.  Preponderance of the evidence can be defined as:

the standard of proof in most civil cases in which the party bearing the burden of proof must present evidence which is more credible and convincing than that presented by the other party or which shows that the fact to be proven is more probable than not.[11]

In contract interpretation cases it is axiomatic that the burden of proof is placed on the union.

            In this case I am presented with three distinct possibilities.  One, the “Rio Linda letter” had been placed in Ms. Rolfe’s personnel file in September of 2003, and had simply been overlooked by Ms. Lucero when she reviewed the file.  Two, Ms. Rolfe or one of her confederates secretly slipped the “Rio Linda letter” into her file after March of 2004.  Or, three, the “Rio Linda letter” had been in some other file at the Denver School District and was routinely placed in Ms. Rolfe’s personnel file some time after March of 2004.

In making this decision I gave no weight to the hearsay statements of Ms. Valle at Rio Linda School District since the parties could have made arrangements for her to testify by telephone.[12]  Likewise, even absent the preceding, I would not assume that the District received the “Rio Linda letter” because it had been sent via the United States Mail.  The Union cannot, as a matter of law, invoke the common law mailbox rule to create a presumption that the Ms. Lucero received the Rio Linda documentation in September 2003.   Under that rule, which has been adopted by Colorado courts, there is a rebuttable presumption that a properly addressed, stamped, and mailed letter was duly delivered to the addressee.[13]  However, as in the instant case, when an addressee denies receiving a letter, “the binding effect of the presumption ends, and the trier of fact is left to decide the issue based upon the weight of the evidence.”[14]  Ms. Rolfe testified that she pre-addressed an envelope sent to Rio Linda for return directly to Ms. Lucero.  Ms. Lucero denies receiving it.  Therefore, even if Ms. Rolfe could effect the mailbox rule presumption, the District has rebutted it.

            Left with the admissible evidence that was introduced at the hearing, what evidence do I find persuasive?  First, I find the fact that the letter from the Folsom Cordova (California) Unified School District[15] arrived at the Denver Public Schools and found its way into Ms. Rolfe’s personnel file to be persuasive.  While the “Folsom Cordova letter” is certainly not conclusive, it does provide evidence that the grievant knew what steps she had to take in order too receive her “extra” pay steps and that she managed in at least one case to correctly send a preaddressed envelope to one of her prior employers.

Secondly I find the fact that a number of the documents in Ms. Rolfe’s personnel file (as well as a number of other documents including the grievance form) are “date stamped” to be persuasive.  While certainly not controlling, I believe that most employees would never try to place an item into their own personnel file since it would be rational to assume that the attempt would be futile due to the use of date stamps.[16]  While it is certainly possible that Ms. Rolfe has altered her personnel file, I don’t believe that it is more-likely-than-not, as most employees would never attempt to due so since they would perceive the task as impossible.

Further, the amount of time between March of 2004, and the “discovery” of the “Rio Linda letter” in December 1, 2004, certainly allows enough time for the letter to find its way into Ms. Rolfe’s personnel file from a variety of other District locations.  At the hearing Ms. Rolfe appeared to be a normal hardworking teacher and her testimony certainly didn’t appear to be either furtive nor did she adopt the smug posture one would have expected from one who had just altered her personnel records.

Additionally, the fact that the “Rio Linda letter” was folded into a small shape is not probative.  At the least, this letter would have been stuffed into at least two envelopes over its cross-country journey.  If it was possible for the grievant to place the “Rio Linda letter” into her personnel file, I don’t see why she would need to fold it.  If I were attempting to alter my file, I would certainly adopt a different tact and try to place it in an unfolded position among the many documents in the file.  In short, I don’t think that the folding of the “Rio Linda letter” is probative of either the guilt or innocence of Ms. Rolfe in attempting to alter her file.

As stated in the employers brief:

 “perhaps Ms. Valle filled out but never mailed the documentation in August, and realizing that omission, later mailed the original to Ms. Rolfe, who in turn folded it up and discreetly placed it in her personnel file. Or perhaps Ms. Rolfe never really provided a pre-addressed envelope to Rio Linda, and Ms. Valle mistakenly mailed the documentation to the only address indicated on the form, which was marked over but nevertheless legible:  Ms. Rolfe’s mother’s home at 17051 E. 10th Ave., Aurora, CO 80011.”

The above is certainly correct, there are a number of scenarios in which it is possible that Ms. Rolfe has manipulated this hearing, and my decision is by no means conclusive as to what actually did happen.  As stated by Cervantes: “Truth may be stretched, but cannot be broken, and always gets above falsehood, as does oil above water.” I hope that he is correct.

VIII.  CONCLUSION

            The burden is on the Union to establish that the Employer violated the parties’ Collective Bargaining Agreement.  While this was truly a close case, the Union has demonstrated by a preponderance of the evidence that the Employer violated the agreement.

IX.  AWARD

The grievance is granted; the District shall make the grievant whole.  The fees and expenses charged by the Arbitrator shall be shared equally by the Union and the Employer, as provided for in Article 7-3-4-9, of the Collective Bargaining Agreement.

                                                                        ___________________________

                                                                        David Gaba, Arbitrator

                                                                        December 29, 2004
                                                                        Seattle, Washington



[1] Joint Exhibit 1.

[2] Union Exhibit 4.

[3] Employer Exhibit 1.

[4] Employer Exhibit 3.

[5] Joint Exhibit 3.

[6] Joint Exhibit 6.

[7] Joint Exhibit 1.

[8] Centennial-Aspen II Ltd. Partnership v. City of Aspen, 852 F.Supp. 1486, 1492  (D. Colo. 1994).

[9] Seattle School District, 119 LA 481 (2004).

[10] City of Davenport, 91 LA 855 (1988), Kitsap County, 119 LA 1753 (2004).

[11] Graphic Packaging International, 120 LA 140 (2004), Rabanco Recycling, 118 LA 1411 (2003) citing Merriam-Webster’s Dictionary of Law, (1996).

[12] Joint exhibit 6.

[13] Campbell v. IBM Corp., 867 P.2d 77, 80 (Colo. App. 1994).  

[14] Utah Motel Associates v. Denver County Bd. Of Commissioners, 844 P.2d 1290, 1293 (Colo. App. 1992).  

[15] Union Exhibit 4.

[16] I should also note that my decision would have been different if the “Folsom Cordova letter” had been date stamped, since this would have been probative that the grievant had in fact altered her file.

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