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Title: School District No. 1 and Denver Classroom Teachers Association
Date: December 9, 2004
Arbitrator: David Gaba
Citation: 2004 NAC 142

AMERICAN ARBITRATION ASSOCIATION

 

DENVER CLASSROOM TEACHERS ASSOCIATION,

Union,

and

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

Employer.

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Re: West High School Arbitration
AAA Case No. 77 390 00513 03

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 Collective Bargaining Agreement.

            A hearing was held before Arbitrator Gaba on October 21, 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 November 27, 2004.

APPEARANCES:

On behalf of the Union:

Stanley M. Gosch
Richard Rosenblatt & Associates L.L.C.
8085 E. Prentice Ave.
Greenwood Village, CO 80111

On behalf of the Employer:

Martin Semple 
Semple Miller & Mooney
1120 Lincoln Street
Suite 1308
Denver, CO  80203

II.  ISSUE

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

“A.       Was the grievance submitted in accordance with the timelines specified in Article 7-5-6?

 B.        Is the issue herein subject to the provisions of Article 5-9, and therefore not grievable?

 C.       Did the School District violate Article 5-5-4 of the Collective Bargaining Agreement when the Collaborative Decision Making Committee ("CDM") decided in May 2003 to schedule teachers at West High School for six teaching periods for the 2003-2004 school year?

The Union framed the issue as:

“Whether the School District violated the collective bargaining agreement by requiring teachers at West High School to teach six classes during the first semester of the 2003-2004 school year?  If so, what shall be the remedy??”

The arbitrator accepts the issue as presented by the Union.

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:

 

Article 5  Collaborative Decision Making.

 

5-4      Scope of Decision-Making.  Subject to applicable Board established goals, and the outcomes and achievement standards for all students, the Board delegates the following authority and responsibility to CDM Committees.

            7) Staffing Allocation.  Determining the use of the staffing allocation provided to the school by the Board.

            11) School Calendar and Schedule.  Establishing a school calendar and schedule inclusive of the responsibilities set forth in Articles 5 and 8.

 

5-5-4   Constituency Meetings.  All CDM Committees shall communicate with the constituency groups they represent to inform them about the activities of the CDM Committee.  Monthly constituent meetings will be scheduled on the school calendar at convenient times for the constituents to avoid conflict with other activities.  In addition, CDM Committee meetings should include time for public input at least once a month.

 

5-9      Grievances.  Because of the nature of collaborative decision-making, decisions made by the CDM Committees are not subject to grievance, either on process or substantive grounds, unless otherwise provided in this Agreement.

 

Article 7  Grievance Procedure

 

7-1-3    The term "grievance" shall not apply to any matter as to which (1) the method of review is prescribed by law, (2) the Board is without authority to act or (3) a grievance is specifically prohibited or limited by the terms of this Agreement.  As an example, the term "grievance" shall not apply to the dismissal of a non-probationary teach, the review of which is prescribed by law.

 

7-3-4-6 The arbitrator's report shall be submitted in writing to the Board and the Association only, and shall set forth the arbitrator's findings of fact, reasoning, conclusions and recommendations on the issues submitted.  The arbitrator's recommendations shall be consistent with law and with the terms of this Agreement.  The arbitrator's report shall be advisory only, not binding on the Board or the Association.

 

7-5-6   No grievance shall be recognized by the District or the Association unless it is presented at the appropriate level within fifteen (15) school days after the aggrieved person knew, or should have known, of the act or condition on which the grievance is based.  No grievance shall be recognized at Level Two unless it is filed with the Department of Human Resources within at least twenty (20) school days after the act or condition upon which it is based occurred.  Grievances not timely presented will be considered as waived.

 

Article 8  Professional Standards

 

8-5      Teaching Loads.  The range of teaching loads will be determined by CDM Committees on a school-based level.  The number of preparations and of pupil contacts required should reflect the CDM Committee's efforts to achieve effective instruction and meaningful teacher-student interaction.

 

8-5-1   Secondary Teaching Load.  In schools that maintain a traditional schedule, the normal teaching load for secondary school teachers shall be five (5) teaching periods per day, unless the teacher agrees to reach a sixth period and/or the CDM Committee decides to the contrary.

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]  West High School is one of the schools within the School District, and its teachers are represented by the Union.  The facts in issue occurred during the 2002-03 and 2003-04 school years at West High School.

Angela Bodenhamer is the Principal of West High School.  She first became the school’s principal during the 2002-03 school year.[2]  One of her many responsibilities during her initial school year was to sit on the Collaborative Decision Making (“CDM”) Committee.  As outlined in Article Five of the Agreement, the goal of the CDM Committee at each school was to come to collaborative decisions among the school’s administration, its staff, parents and community members.

Community involvement is critical to the success of our schools.  The goals of the District are established by the [School] Board with input from the community.  A collaborative decision-making process offers the best opportunity for the District to achieve its goals.  In this process staff, parents, students, and community members of each school work together to create and implement a school plan focused on the unique needs of the students in the school.  This collaborative decision-making and participation will create a school climate, which promotes high achievement and excellent behavior for all students, professional development and involvement of staff, parent and community participation, and innovation in instructional delivery.[3]

The CDM Committee’s responsibilities included: school budget, personnel decisions and staffing allocations.  Critical to the success of these decisions was ongoing communication between the CDM Committee representatives and their constituents.  Communication requirements were listed in two separate provisions of the CBA.  In Section 5-5-4, the parties mandated constituency meetings.

Constituency Meetings.  All CDM Committees shall communicate with the constituency groups they represent to inform them about the activities of the CDM Committee.  Monthly constituent meetings will be scheduled on the school calendar at convenient times for the constituents to avoid conflict with other activities.  In addition, CDM Committee meetings should include time for public input at least once a month.[4]

Under Section 5.6 of the Agreement, the parties further required “on-going communications” between committee members and their constituents. “Participants are expected to engage in on-going communications with their constituents so that decisions will reflect agreement within the overall school community, not just within a particular committee.”[5] 

            The operations of the CDM Committee were to be open to all interested parties.  Pursuant to Section 5-5-1 of the Agreement, the Committee’s meetings were required to be open to the public; notice of the meetings were to be posted; a copy of the Committee’s agenda was to be made available one working day before the meeting; and minutes from the meeting were to be made available to any interested party.[6]

            Over the 2002-03 school year, West High School was on a “modified block” schedule.  During three days per week, Mondays, Thursdays and Fridays, the school was on a “traditional schedule.”  On those days there were eight periods of fifty minutes each.  Students had seven classes on each of those days and one lunch period.  Teachers had five teaching periods, one lunch period, one “planning” period, and one “duty” period.  During duty period teachers were assigned to such things as hall monitoring, lunchroom monitoring or study hall.  Under the 2002-03 modified block schedule, class periods were 100 minutes long on Tuesdays and Wednesdays.  For teachers, this meant that they taught five classes over the two days – with three, 100-minute classes one day and two, 100-minute classes the other day.  They also had one, 100-minute duty period and one, 100-minute planning period sometime over the two days.  Finally, they had a fifty-minute lunch each day.

            During the Spring of 2003, Principal Bodenhamer and the CDM Committee discussed changing the class schedule for the following school year.  In April 2003, the CDM Committee came up with several different kinds of schedules for the next school year for the staff to vote on.  The final decision on the schedule was not reached until the last day of the school year.

May 2003 Meetings of the CDM Committee.

            On May 5, 2003, Principal Bodenhamer received notification of “budget restraints” from the School District for the 2003-04 school year.  This gave the CDM Committee until May 8 or 9 to make final staffing and scheduling decisions for the upcoming school year.

            Principal Bodenhamer met with the CDM Committee on May 5th and assigned “staffing questions” under the new budget to a CDM subcommittee.  Principal Bodenhamer testified that she was mindful that she had to secure the approval of the teachers before requiring them to teach six classes.  Under Section 8-5-1 of the CBA, “In schools that maintain a traditional schedule, the normal teaching load for secondary school teachers shall be five (5) teaching periods per day, unless the teacher agrees to teach a sixth period and/or the CDM Committee decides to the contrary.”  Principal Bodenhamer scheduled the subcommittee meetings for an off-campus meeting at another school on May 6th and 7th.  There was no posting of the off-campus meetings as required by the CBA, and no one made the agenda of the meetings available as required under the CBA.  No one, other than CDM Committee Members, came to either subcommittee meeting.

            The subcommittee worked off-campus on May 6th and then came back again the following morning on May 7th and discussed whether they could “save jobs” by requiring teachers to teach an additional, sixth class, the following year.  The subcommittee, and apparently the full Committee itself, decided on May 7th that teachers would be required to teach six classes the following school year.  The Committee did this without (1) consulting with the teachers or (2) knowing whether the school would operate under a “modified block” or some other type of class schedule the following year. 

On May 7th, Principal Bodenhamer sent an e-mail message to all teachers requiring them to come to an “Emergency All Faculty Meeting” the next day at 6:40 a.m.   

            There was no evidence that anyone from the CDM Committee sought the input from any teachers regarding the decision as required by Section 5-6 of the CBA.[7]  It is also unclear whether the CDM Committee complied with Section 5-5-4 of the CBA;[8] “All CDM Committees shall communicate with the constituency groups they represent to inform them about the activities of the CDM Committee.”[9]

The Emergency All Faculty Meeting.

            The Emergency All Faculty Meeting took place at 6:40 a.m. on Thursday May 8, 2003 in the school auditorium with most of the teachers attending the meeting.   The meeting ended at 7:25 a.m. and teachers had to hurry to their classrooms for 7:30 a.m. classes.  Principal Bodenhamer led the meeting.   

During the last twenty or twenty-five minutes of the meeting, Principal Bodenhamer presented a Power Point presentation to the teachers outlining what she saw as the budget restraints facing the school for the 2003-04 school year.[10]  Near the end of the presentation, Principal Bodenhamer concluded that the school would have to cut twenty-one teachers if they maintained a five-period schedule, but would cut only ten teachers if they increased the teaching load to six classes.[11]  Principal Bodenhamer may have also stated that due to budget pressures, the School District’s high schools were going to six-class schedules.  Many teachers believed that the six-class schedule was a School District mandate and that all of the District’s high schools would be teaching six classes the following year.  No such mandate was ever made by the School District.

            Many teachers raised their hands to ask questions throughout the presentation, but Principal Bodenhamer and Assistant Principal Anita Clem deferred all questions by stating that they must finish the presentation.  By the time the presentation was finished, the meeting broke up so teachers could get to their first classes.  No subsequent meeting was ever held.

            In late May 2003, just before the school year ended, the teachers held three votes to determine which type of schedule they would work the following school year.  During a Staff Development Day the teachers were presented with five or six different choices.  With three weeks left in the school year, the teachers had two votes to narrow the choices.  Finally, on the very last day of the school year, teachers had the final vote.  The final vote was to have a traditional schedule. 

Principal Bodenhamer met with the CDM Committee in June 2003 and at that time the Committee voted to have a traditional schedule. Bodenhamer acknowledged that, although she now knew that the school would work under a “traditional” schedule, she held no further discussions with the CDM to discuss whether teachers would be required to teach six classes as required under Section 8-5-1 of the Agreement since the CDM had already approved a six-class schedule.

            Teachers reported to West High School for the 2003-04 school year on August 14, 2003.  On August 1st, Principal Bodenhamer notified the teachers by mail that they would have a traditional schedule for at least the first semester of the upcoming school year.

We will have a non-block schedule for at least the first semester of the 2003-04 school year.  This means we will have the same schedule (50) minute classes that we followed on Monday, Thursday and Friday of the 2002-03 school year.  I will discuss the schedule in greater detail at our staff meeting on August 14th.  Teachers voted several times the last week of school that was to be a recommendation given to CDM.[12]

            The first time many of the teachers learned definitively that they were to teach six classes under a traditional schedule were when their class schedules were given to them in August 2003.  School safety was affected by the six-class, traditional schedule; because teachers were required to teach six classes each, almost no one was assigned to hall or lunchroom duty.  Where there had previously been six to eight teachers on hallway duty per period during the previous school year, there were only one or two teachers assigned in August 2003.

            Principal Bodenhamer received teacher complaints within the first three weeks of the school year, including from math teacher Liz Fant and from Vanessa Montemayor, the Chairperson of the English Department.  Many teachers complained that they were overworked and too exhausted to perform at their best.  Teachers also complained that the school was significantly less safe.

            On October 2, 2003, Math Teachers at West High School became aware for the first time that their colleagues at other high schools in the School District were not required to teach six classes.  The School District held a training class for math teachers at all ten School District high schools and at that time West High School math teachers learned that teachers at other schools were not required to teach six classes. Many teachers had been under the impression, since May 8th, that their change to a six-class schedule was mandated by the School District.  Once they realized that was not the case, they wanted to know why the CDM Committee did not consult them.

            On Friday October 3rd, the day after she learned that there had been no School District mandate requiring six classes, Angie Kullhem became the new DCTA Association Representative for West High School.  That weekend she read the collective bargaining agreement and became convinced that Principal Bodenhamer had violated Section 8-5-1 by requiring a six-class schedule without allowing for a constituency meeting of all teachers.  On Monday, October 6th she met with Principal Bodenhamer and asked to have a meeting with herself and teachers Vanessa Montemayor and Mark Asimus to discuss the potential violation of the CBA.  Principal Bodenhamer agreed to meet after school on Wednesday October 8th.

            Ms. Kullhem sent out an e-mail to all teachers and asked for their input before the meeting and received responses from almost one-third of the school’s teachers.  She replied to those who responded and asked those teachers to join her at Principal Bodenhamer’s office on October 8th.

Approximately twenty-five teachers met Ms. Kullhem outside of Principal Bodenhamer’s office on October 8th.   Principal Bodenhamer expressed concern at the large number of teachers present, and Ms. Kullhem offered to have a meeting with all of them or just a representative sampling.  Principal Bodenhamer agreed to meet with a small group.  Ms. Kullhem, outgoing DCTA representative Dawn Nudell, Liz Fant, Mark Asimus and Vanessa Montemayor met with Principal Bodenhamer.  Ms. Kullhem argued that the mandatory six-class schedule had been forced on the teachers in violation of the CBA, that the teachers were misled to believe that the change was School District-wide, that the teachers were never given an opportunity to give their input about the change, and that no constituent meeting was ever held.  Ms. Kullhem said that the teachers were dying under the six-class schedule and that school safety was in terrible shape.  Finally, Ms. Kullhem stated that the six-class schedule should be rescinded as soon as possible and the teachers should be compensated, under the Extra-Duty Pay provisions of the Agreement, since they had been, in effect, working an extra day each week. Principal Bodenhamer met with Ms. Kullhem and a few other teachers several times after October 8th as part of the informal grievance process.  The parties met on October 13th, whereupon Principal Bodenhamer offered to and subsequently prepared a survey to assess teacher concerns regarding the six-class schedule.  Principal Bodenhamer made the surveys available at an Emergency Faculty Meeting and the parties met on October 21st to discuss the results.  Principal Bodenhamer acknowledged at that meeting that faculty sentiment was overwhelmingly against the six-class, traditional schedule.  Specifically, the survey results showed that fifty-nine of seventy-six teacher stated that they were dissatisfied with the schedule, while only seventeen said they were satisfied.[13]  Principal Bodenhamer promised to attempt to create five-class schedules for all departments.

On November 6th, Ms. Kullhem filed a grievance on behalf of all of the teachers who had been forced to teach six classes.[14]  In pertinent part, the grievance reads:

1)   the aggrieved teachers have been subjected to and continue to be subjected to conduct and practices which are in clear and unambiguous violation of Article 8.  Each of the teachers have been assigned to teach more than the normal teaching load set forth in Article 8-5-1, which provides that “the normal teaching load for secondary school teachers shall be five (5) teaching periods per day.”

2)   No aggrieved teacher has requested to teach a sixth period, in fact, each of the aggrieved specifically requests that the provisions of 8-5-1 be applied, and that they not be coerced to teach six (6) teaching periods per day.

Ms. Kullhem attached affidavits from twenty-five teachers who signed onto the grievance, but also filed on behalf of “the class of persons who are similarly aggrieved.” As remedy, the grievance requested “extra-duty compensation pursuant to Articles 8 and 32 of the Collective Bargaining Agreement.”  Under Article 32, teachers are entitled to $19.41 per hour for extra duties beyond their normal workweek.

V.   POSITION OF THE UNION

            The Union argues that the evidence shows that none of the West High School teachers volunteered to teach six classes and that on May 8, 2003, Principal Bodenhamer and Assistant Principal Clem led the teachers to believe that the School District was mandating that high school teachers teach six classes rather than the five they had historically been assigned.  The Union notes that although the teachers acquiesced to what they thought was a budget-required, District-wide mandate, none of them knowingly volunteered to teach an extra class. 

            The Union notes that even if the School District could successfully argue that the teachers voluntarily agreed to teach six classes, that agreement ended when the informal grievance process was started on October 8, 2003.  Thereafter, the Union argues, it was clear that the teachers were not voluntarily teaching six classes.

The Union also notes that the CDM Committee Could Not Authorize the Six-Class Schedule on May 7, 2003, because it had not yet been determined whether the school would operate under a “traditional” schedule. Specifically, the Union states that the language of Section 8-5-1 specifies that the CDM Committee can authorize a school to require its teachers to teach six classes if that school maintains a “traditional schedule,” but it is undisputed that the CDM Committee did not authorize a traditional schedule until June, 2003.  Since Principal Bodenhamer and the CDM Committee never again addressed the issue of whether the teachers would agree to a six-class schedule, the Union argues that the CDM Committee’s alleged authorization of the six-class schedule on May 7, 2003 is invalid.

The Union brings to the arbitrator’s attention that it is undisputed that West High School worked under a “modified block” schedule during the 2002-03 school year and that while the traditional schedule was observed three days a week, teachers taught 100-minute classes on the other two days.  Thus, at the time the CDM Committee was meeting on May 6-7, 2003, the status quo schedule was not a “traditional” schedule and the CDM Committee members had no idea at that time that they would subsequently authorize a traditional schedule, thus invoking the language of Section 8-5-1.

The Union argues that the type of schedule, whether traditional or otherwise, is of critical importance to teachers and had the CDM Committee members known on May 7th that the school would revert to a full-week traditional schedule, they would not have authorized the mandatory six-class schedule.  The Union also postulates that once the decision was made, it was incumbent on Principal Bodenhamer to meet with the CDM Committee and reach consensus that the teachers would be required to teach six classes under a traditional schedule.  The Union feels that Principal Bodenhamer’s failure to address the issue with the CDM Committee violated Section 8-5-1 of the CBA and invalidated the Committee’s prior approval of the mandatory six classes. 

The Union also argues that even if the CDM Committee had known that the school would observe a traditional schedule for the 2003-04 school year, it was required to communicate with its various constituent groups to ensure that it was adequately representing those interests and that Principal Bodenhamer’s conduct preventing a constituent meeting, whether intentional or not, ensured that the Committee would make its decision without input from the teachers. 

The Union believes that the evidence shows that the teacher representatives never met with their teacher constituents and that while the School District disingenuously attempts to blame the teachers for this lack of communication, the evidence shows that Principal Bodenhamer and Assistant Principal Clem repeatedly prevented the teachers of giving their input to the process. 

The Union points to Principal Bodenhamer and Assistant Principal Clem’s conduct at the May 8th Emergency All Faculty Meeting as showing their intent to avoid their obligations under Section 8-5-1 of the Agreement.  Despite the fact that teachers repeatedly raised their hands to ask questions about Principal Bodenhamer’s Power Point presentation, Principal Bodenhamer and Assistant Principal Clem continuously deferred such questions in the interests of time.  The meeting ended with no time for questions, and no subsequent meetings were scheduled.

The Union also believes that Principal Bodenhamer and Assistant Principal Clem misled every teacher at West High School to believe that the decision to require them to teach a sixth class was a School District mandate required of every high school and that the inference was patently false.  The Union believes that the administrators misled the teachers and effectively silenced them about the increased teaching load. 

            It is also the Union’s belief that the School District’s argument that “disputes” under Article 5 are not arbitrable is inapposite to this case.  The Union believes that the grievance is and has always been about a violation of Section 8-5-1 and that Section 5-9 forbids grievances under Article 5 only.[15] 

            Finally, the Union argues that the School District’s claim that “the grievance was not timely” filed must fail and that an affirmative defense, the School District carries the burden of proof. 

VI.  POSITION OF THE EMPLOYER

The Employer believes that the Grievance was untimely and that the only substantive issue before the Arbitrator is whether Article 5-5-4 was violated and argues that the grievants certainly knew in May of 2003 as to whether there had, or had not, been a constituency meeting with the teacher representatives of the CDM Committee.  It is the belief of the Employer that the Union did not come close to meeting the timeline specified in Article 7-5-6 whereby "No grievance shall be recognized by the District or the Association unless it is presented at the appropriate level within fifteen (15) school days after the aggrieved person knew, or should have known, of the act or condition on which the grievance is based."  As stated by the Employer in it’s brief: “This is one instance where there are clear time limits for filing a grievance in the agreement and where failure to observe those timelines must result in dismissal of the grievance.  This is neither inequitable nor unfair in any fashion.”

The Employer also believes that the decisions of the Collaborative Decision Making Committee are not subject to grievance and believes that Article 5-9 very clearly states that "decisions made by the CDM Committee are not subject to grievance, either on process or substantive grounds, unless otherwise provided in this Agreement."  Further, Article 7-3-1 states "The term "grievance" shall not apply to any matter as to which . . . (3) a grievance is specifically prohibited or limited by the terms of this Agreement."  The Employer believes the grievants are appealing a decision of the CDM Committee on process grounds and, accordingly, the matter is simply not subject to grievance.

Finally, the Employer believes that the grievants in this case attempt to exalt form over substance, that they failed to testify themselves and let their representative attempt to imply that they were not fully informed of the decisions for the 2003-2004 school year.  The Employer argues that all of the teachers knew on May 8 that they would have six teaching assignments in the next school year, and that there is simply no evidence that there was any violation of Article 5-5-4.        

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.[16] 

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.”[17] 

Was The Contract Violated?

In most contract interpretation cases the primary question before the arbitrator is: was the contract violated?  In the instant case this question can be easily disposed of by simply reciting the litany of contract violations that occurred.  First, there is no question that an agenda was not made available prior to the CDM Committee meetings on May 6 and May 7, as required by Section 5-5-1 of the parties Collective Bargaining Agreement nor was the meeting held in a location open to the public.[18]  The parties Collective Bargaining Agreement does not provide exceptions to these rules due to emergencies, budget constraints, or lack of time.  The clear language of the contract requires that these events occur.

Additionally the parties contract states unequivocally that:

5-5-4   Constituency Meetings.  All CDM Committees shall communicate with the constituency groups they represent to inform them about the activities of the CDM Committee.  Monthly constituent meetings will be scheduled on the school calendar at convenient times for the constituents to avoid conflict with other activities.  In addition, CDM Committee meetings should include time for public input at least once a month.

In the instant case it would appear that the parties contract was again violated by the CDM Committees failure to keep its constituent groups informed of the monumental changes it was making to school policy.  Clearly, the contract was violated.

The Collaborative Decision Making Committee.

This case is unique for several reasons, the chief one being the vast power given to the Collaborative Decision Making Committee by both parties to the Collective Bargaining Agreement.  This power does not belong to either the Employer or Union since parents, students, and classified employees are also members of the committee and serve constituents.

It should also be noted that the current issue before this arbitrator is not unique.  In 2001 Arbitrator Flagler rendered an award in which the Union was grieving staffing decisions made by the Collaborative Decision Making Committee at the Denver School of the Arts when the Committee could not comply with its contractual mandates due to a lack of time caused by the District’s last minute budget changes.[19]  In his decision Arbitrator Flagler held:

Accordingly, the plain and ordinary meaning of Article 5-10 must be read to prohibiting grievances challenging any and all CDM Committee Decisions on "process or substantive grounds" save and except those on separate grounds" . . ."otherwise provided in this Agreement."  No lack of clarity or ambiguity can be reasonably found in these straightforward terms.[20] 

Further, Arbitrator Flagler found specifically that:

The unambiguous terms of section 5-10 leave absolutely no room for doubt that such challenges to committee processes cannot be subject to the contractual grievance procedure.[21]

While there are many reasons one could disagree with the rational of Arbitrator Flagler, it is undisputed that the parties in this case have received a prior arbitration award interpreting the language in question.  Normally this award would be persuasive, but not controlling, in guiding my decision.  However, in this case, the parties have received the decision and had an opportunity to bargain once again over the subject.  Since the parties have failed to amend the language in question, I will treat Arbitrator Flagler’s opinion as controlling.

Applying Arbitrator Flagler’s rational to the case at hand is quite simple given the similarities of the two situations.  In both cases the process required by the CBA were not followed and the decisions of the Collaborative Decision Making Committee questioned. Arbitrator Flagler found that challenges to the Committees decisions could not be subject to the grievance procedure.  Arbitrators and Courts have consistently found that if the matter is not subject grievance or arbitration, then the Arbitrator cannot deal with the substantive issue.

The first principle gleaned from the Trilogy is that 'arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.'  [Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 46 LRRM 2416, 34 LA 561 (1960).  This axiom recognizes the fact that arbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration.  Gateway Coal Co. v. Mine Workers [Dist. 4, Local 6330], 414 U.S. 3681[, 85 LRRM 2049] (1974).[22]

While I certainly do not agree with the totality of Arbitrator Flagler’s opinion, it has long been held that “An award interpreting a collective agreement usually becomes a binding part of the agreement and will be applied by arbitrators thereafter.”[23]   As stated by Arbitrator Whitley McCoy, where a:

prior decision involves the interpretation of the identical contract provision, between the same company and union, every principle of common sense, policy, and labor relations demands that it stand until the parties annul it by a newly worded contract provision.[24]

Given the longstanding history of the contract language in question I feel that I have no choice but to adopt Arbitrator Flagler’s reasoning.

While I disagree with the rational used by Arbitrator Flagler, also problematic in this case is whose decision is being grieved.  The decision of the Collaborative Decision Making Committee in this case does not appear to be the decision of the Employer nor are the contractual violations necessarily violations by the District.  The Collaborative Decision Making Committee is made up of four teachers, four parents, one classified employee, and only one agent of management, the school principal.  While there is no question that a number of procedural provisions set forth in the Collective Bargaining Agreement regarding the Collaborative Decision Making Committee were violated, it is unclear whether these violations were the result of Principal Bodenhamer acting for the Employer, Principal Bodenhamer acting for the CDM, or a lack of action by Committee members as a whole.[25]

The Union is correct that Principal Bodenhamer made mistakes, and that the Collaborative Decision Making Committee did not make a final decision to authorize a traditional schedule until June of 2003, however, it is clear that the Collaborative Decision Making Committee did authorize both a six class schedule and a traditional schedule.  The Union also argues that Principal Bodenhamer prevented the mandatory Constituent Meeting of teachers from taking place, however, I don’t find this contention supported by the facts.  Principal Bodenhamer certainly never helped enable a Constituent Meeting, called a Constituent Meeting, or enquired if one had ever taken place.  Unfortunately, the fact remains that the teachers were not Principal Bodenhamer’s constituents, and one could argue that it is the responsibility of others on the Collaborative Decision Making Committee to ensure that a Constituent Meeting took place.[26] It would appear that Principal Bodenhamer’s acts were primarily ones of omission rather than acts of commission and that the entire membership of the CDM Committee joined her in failing to act.

The Union also argues that Principal Bodenhamer misled the teachers in the meeting on the morning of May 8th by implying that all high schools were being required to move to a six-class schedule by the District.  While it is certainly clear that the teachers were “misled” on this issue, the record does not seem to support a finding that Principal Bodenhamer lied to them or intentionally misled them.  Specifically, Angela Kullhem’s testimony was crucial.  Ms. Kullhem testified that she “believed” that the decision had been mandated by the District, but could not say defiantly that she was “told” that the six-class requirement was District mandated. 

In short, this arbitrator is unsure of what was said at the May 8, 2003, meeting and the Union in this case is exposed to the bane of unions in every contract dispute; the burden of proof. 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.[27]

In relying on the burden of proof to decide this issue of fact, it is axiomatic that the Employer must prevail.

As originally stated by Clare Boothe Luce, “no good deed goes unpunished.”  So it is in this case.  The Union in an attempt to have a collaborative relationship with management granted great power to the Collaborative Decision Making Committee and made its decisions practically unassailable by normal methods.[28]  The result in this case is harsh and I would certainly not characterize my decision as “fair,” however, I do believe that this decision is legally correct and mandated by the clear language of the parties Collective Bargaining Agreement.

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 not demonstrated by a preponderance of the evidence that the Employer violated the agreement.

 IX.  AWARD

The grievance is denied.  All 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 9, 2004
                                                                        Seattle, Washington



[1] Joint Exhibit 1.

[2] Employer Exhibit 7.

[3] Joint Exhibit 1.

[4] Joint Exhibit 1.

[5] Id.

[6] Id.

[7] Joint Exhibit 1: “Participants are expected to engage in on-going communications with their constituents so that decisions will reflect agreement within the overall school community, not just within a particular committee.” 

[8] Principal Bodenhamer testified that two of the subcommittee members said they needed to leave the subcommittee meeting on May 7th to meet with the constituents, but she admitted that they later reported that they arrived too late to hold a constituent meeting. It is unclear if a constituent meeting ever took place.

[9] Joint Exhibit 1.

[10] Union Exhibit 1 is a paper copy of the May 8, 2003 Power Point presentation.  Copies of the presentation were not distributed during the May 8th meeting.

[11] The arbitrator is aware in the flaws of this reasoning, but the issue was not presented by the parties nor was it the subject of this grievance.

[12] Employer Exhibit 7.

[13] Union Exhibit 3.

[14] Joint Exhibit 2. A new addendum to the CBA took effect in September 2003, which changed some of the language relevant to this grievance.  Ms. Kullhem testified that she drafted the grievance so that it would apply to either existing CBA or the new language in the Addendum.  DCTA acknowledged during the grievance process that the Addendum language was not yet in effect at the time of the dispute.  Thus, only those portions of the grievance alleging violation of the CBA – and not the Addendum – are at issue.

[15]Joint Exhibit 1. “Because of the nature of collaborative decision-making, decisions made by the CDM Committees are not subject to grievance, either on process or substantive grounds, unless otherwise provided in this Agreement.”  

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

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

[18] Joint Exhibit 1. “Meetings of the CDM Committee will be open to the public. Notice of these meetings will be posted in appropriate places. A copy of the Agenda will be made available one working day before the meeting…”

[19] Ironically, Arbitrator Flagler wrote: …”it should be noted that Denver Public Schools have already initiated certain administrative reforms to avoid in the future the kind of time crunch which gave rise to the complaints aired at the arbitration hearing.”  Denver Classroom Teachers Association and Denver Public Schools, Part-time Art Position Grievance, Arbitrator John J. Flagler, (2001).

[20] Denver Classroom Teachers Association and Denver Public Schools, Part-time Art Position Grievance, Arbitrator John J. Flagler, (2001).

[21] Denver Classroom Teachers Association and Denver Public Schools, Part-time Art Position Grievance, Arbitrator John J. Flagler, (2001).

[22] AT&T Technologies v. Communication Workers, 475 U.S. 643, 121 LRRM 3329 (1986).

[23] Elkouri & Elkouri, How Arbitration Works (6th Ed., 2003).

[24] Pan Am Ref. Corp., 2 ALAA 69,464 (1948), as quoted in Elkouri & Elkouri, How Arbitration Works (6th Ed., 2003).

[25] i.e., Who is responsible for the lack of an agenda being posted?  If it was it Principal Bodenhamer’s duty to post the agenda would she have been acting for the CDM Committee and not the Employer in assuming this duty, is the CDM Committee membership as a whole responsible for the posting?

[26] Further, regardless of this analysis, Arbitrator Flagler would still hold that Principal Bodenhamer’s actions (or lack thereof) were ungrievable.

[27] Merriam-Webster’s Dictionary of Law, 1996.

[28] According to Arbitrator Flagler.

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