2004 NAC 148 Seattle School District No. 1 and Seattle Education Association Certificated Non-supervisory Employees

Title: Seattle School District No. 1 and Seattle Education Association Certificated Non-supervisory Employees
Date: February 11, 2004
Arbitrator: David Gaba
Citation: 2004 NAC 148

This arbitration arises pursuant to a collective bargaining agreement (hereinafter the AGREEMENT) between the SEATTLE EDUCATION ASSOCIATION (hereinafter the UNION or ASSOCIATION) on behalf of Andrea Matthews, and SEATTLE SCHOOL DISTRICT NO. 1 (hereinafter the EMPLOYER or DISTRICT), under which DAVID GABA was selected to serve as Arbitrator and under which his Award shall be final and binding among the parties.

A hearing was held before Arbitrator Gaba in Seattle, Washington on January 29 and 30, 2004. 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. No briefs were filed.

Joanne Christopher
Contract Administrator/Advocacy Specialist
Washington Education Association
32032 Weyerhaeuser Way S.
Federal Way WA 98001-9687

Faye Chess-Prentice
General Counsel’s Office
Seattle School District
John Stanford Center
M.S. 32-151
P.O. Box 34165
Seattle WA 98124-1165

The Seattle Education Association and Seattle School District No. 1 are parties to a collective bargaining agreement dated 2001 - 2004.

Did the District violate certain provisions of the Agreement when it administratively transferred Andrea Matthews on October 6, 2003? If so, what is the appropriate remedy?

The “Collective Bargaining Agreement between Seattle School District No. 1 and Seattle Education Association Certificated Non-Supervisory Employees, 2001-2004”[1] contains the following relevant sections:

Article III: General Rights and Responsibilities, Section D: Representation Rights and Due Process

Article VII: Employee Benefits, Section C: Protection of Employees, Students and Property

Article IX: Assignment and Scheduling of Employees, Section E: Administrative Transfer Procedures

The following procedures for transfers shall apply to all employees within the bargaining unit.

It shall be the function of the arbitrator, after due investigation and hearing, to make a written decision subject to the following limitations:

On August 27, 2003, Andrea Matthews, a counselor to eighth graders at Aki Kurose Middle School, attended a Seattle School District meeting at the John Stanford Center. Ms. Matthews expressed an interest in sitting with friends for the meeting when she went to obtain her name-tag and seating assignment. She was told by Rebecca Moxley, an eighth grade teacher at Aki Kurose Middle School, that seating assignments for the meeting had been predetermined by the meeting coordinators. Ms. Moxley had helped to organize the meeting, along with Maureen Manfred, and was in charge of seating and name-tag distribution. Ms. Matthews found a seat and then returned to the check-in desk, picked up a pen, and then went to her assigned table where she began writing on her nametag.

At this point, Ms. Moxley approached Ms. Matthews from behind, reached over her shoulder, and attempted to take the pen from the latter’s hand, in a fashion that was characterized by a number of observers as a “grab.” She did not manage to do so and left, only to return a few minutes later to attempt to apologize to Ms. Matthews. Ms. Moxley subsequently indicated she had taken this action because she had believed Ms. Matthews intended to use the pen to change her seating assignment. Ms. Matthews had meanwhile called the police. Police officers arrived on the scene, but declined to take a report, indicating to the parties that the incident did not reach a threshold warranting an incident report but rather should be adjudicated by the School District or through some form of civil filing. Ms. Matthews then left, obtaining a ride from a fellow employee to Group Health Medical Center, where her injured finger was treated. Ms. Matthews’ doctor wrote a report and prescribed anti-inflammatory medication .

On the afternoon the altercation took place (August 27, 2003) Ms. Matthews appeared in King County Superior Court to file a petition for a temporary anti-harassment order against Ms. Moxley, which was granted (King County Superior Court No. 03-2-28664-8 SEA).[2] Also on August 27, both Ms. Matthews and Ms. Moxley received identical letters from William Bleakney, Director of Human Resources for Seattle Public Schools, informing them they were being placed on administrative leave with pay effective August 28, 2003, and further instructing them to stay away from Aki Kurose Middle School and to refrain from discussing the matter with staff and students. They were each asked in their respective copies of the letter to contact Mr. Bleakney’s office by August 29 to schedule a meeting and informed that they could face discipline as a result of the incident.

Although there had never been any previous physical altercations between Ms. Matthews and Ms. Moxley, there had been some tension between the two. For instance, on November 3, 2000, Ms. Matthews had written to Aki Kurose Principal BiHoa Caldwell requesting Ms. Caldwell meet with both of them to discuss what Ms. Matthews characterized as unprofessional comments made about her by Ms. Moxley in front of students and staff.[3] Ms. Matthews had previously spoken to Ms. Caldwell regarding this matter and had considered it closed. Ms. Matthews re-raised the issue when she found out that Ms. Moxley was asking questions of students in order to find out who had informed Ms. Matthews of her comments.

On August 28, 2003, an employee meeting was held at Aki Kurose Middle School to address other issues. At this meeting numerous employee concerns regarding the August 27 incident were raised. At the August 28 meeting, a number of school employees were quite emotional in discussing the incident and a number of employees cried. Furthermore, at this meeting the issue of race was raised, and the issue of Ms. Matthews’ confrontation with Ms. Moxley was discussed in a racial context.[4]

On September 9, 2003, Ms. Matthews and Ms. Moxley appeared in King County Superior Court; Ms. Matthews was granted a one-year Order for Protection – Anti-harassment against Ms. Moxley, which would expire September 9, 2004. The order specified that Ms. Moxley was required to stay at least ten (10) feet away from Ms. Matthews while at Aki Kurose Middle School, and five hundred (500) feet away from her at all other locales.[5] The Order also specified that Ms. Moxley was not to speak to Ms. Matthews directly, although she would be allowed to speak at school meetings where both women were present.

Ms. Moxley filed a Motion to Modify or Terminate the Order for Protection, and on September 30, 2003, she appeared pro se in Superior Court to address her petition. Also present was attorney Faye Chess-Prentice, who represented the Seattle School District. Ms. Matthews was represented by counsel, William Spurr, who also sought attorney’s fees for opposing Ms. Moxley’s Motion. Since the original Judge was unavailable, the matter was moved to Judge Donald Haley’s courtroom. According to the October 14, 2003 Declaration of Faye Chess-Prentice, Judge Haley declined to hear the matter and chose to dismiss it without prejudice so that Ms. Moxley could refile her Motion at a future time if she so chose.[6] Judge Haley signed a Denial Order declining to modify or terminate the Anti-harassment Order and indicating that Petitioner’s request for attorney’s fees was to be responded to by October 14, 2003.[7] On October 3, 2003, Judge Haley signed an Order Awarding Petitioner’s Reasonable Attorney’s Fees requiring Ms. Moxley to pay Ms. Matthews $500 within thirty (30) days, and prohibiting the former from filing any additional pleadings until she had done so.[8]

On October 6, 2003, Mr. Bleakney sent letters to Ms. Moxley and Ms. Matthews informing them that they were both being administratively transferred to other schools. They were told that, effective October 13, they would be removed from administrative leave and placed on the list for assignment as daily substitutes until permanent positions could be found.[9] Ms. Moxley’s letter indicated, “an investigation into this matter did substantiate that you attempted to forcibly remove a pencil from Andrea Matthew’s hand.” Ms. Matthews’ letter indicated, “an investigation into this matter did substantiate that Rebecca Moxley did attempt to forcibly remove a pencil from your hand.” Both letters made mention of the Order for Protection – Anti-harassment obtained by Ms. Matthews, and stated that it was in “the best interest of Aki Kurose” that both women be administratively transferred to other schools.

On October 8, 2003, attorney William Spurr wrote to Mr. Bleakney to indicate he had been retained as counsel for Ms. Matthews.[10] Mr. Spurr objected to the District’s proposed course of action, namely the administrative transfer of Ms. Matthews, and put the District on notice that Ms. Matthews would be contesting that decision. Mr. Spurr attached a number of exhibits to his letter, including employee statements, medical records, a transcript of the September 9 Superior Court anti-harassment hearing, and copies of the King County Superior Court Order for Protection, Denial Order (as to modification of the anti-harassment order), and Order Awarding Petitioner’s Reasonable Attorney’s Fees.

On October 9, 2003, John Dunn, President of the Seattle Education Association, sent e-mails to Mr. Bleakney, Mark Green, and Faye Chess-Prentice objecting to Ms. Matthews’ interim assignment as a daily substitute, citing Article IX, Section E-2-d of the Agreement with reference to his contention that she should remain at her original assignment until such time as a permanent transfer position were to become available.[11] Gloria Morris, Manager of Employee Relations, responded to this e-mail, contending that “unusual circumstances” had “created an environment in the school that can be disruptive for both students and adults.”[12] Mr. Dunn in his response contended that the transfer was in contradiction to the terms of the Agreement, inasmuch as Ms. Matthews had not been the subject of progressive discipline, whereupon Ms. Morris reiterated the instruction that Ms. Matthews was to contact the Sub Office.[13] That same day, Mr. Dunn filed a Grievance Review Request for the Seattle Education Association Union on behalf of Ms. Matthews.

David Gaba was chosen as Arbitrator. The arbitration hearing was held in Seattle, Washington on January 29 and 30, 2004.

The position of the Union is best summarized in the Grievance Review Request filed by Mr. Dunn on Ms. Matthews’ behalf on October 9, 2003.[14] The Union contends that the Employer’s decision to administratively transfer Ms. Matthews was contrary to Article IX, Section E-1 of the Collective Bargaining Agreement, which defines the conditions necessary for an administrative transfer, and to Article III, Section D-5, which contains the Just Cause provisions of the Agreement. Further, the Union argues that the District’s removal of Ms. Matthews from Aki Kurose Middle School prior to the availability of a permanent transfer position was contrary to Article IX, Section E-2-d of the Agreement, which specifies that an employee selected for administrative transfer is to remain in his/her original position until a permanent transfer position is available, in the absence of “unusual circumstances.” Referencing Article VII, Section C-2, the Union notes that the District has never provided Ms. Matthews with the forms she requested in order to report the assault. The Union further notes that Ms. Matthews has not been assisted in obtaining counsel as specified in Article VII, C-1-b-2. It is the Union’s contention that the administrative transfer constitutes disciplinary action contrary to provisions of the Agreement in Article III. The Union is seeking remedy as follows: that Ms. Matthews be returned to her position at Aki Kurose Middle School and her administrative transfer be rescinded, that all documentation of said transfer and the subsequent leave be destroyed, and that Ms. Matthews be compensated for all personal costs incurred as a result of the administrative leave and administrative transfer.

It is the Employer’s contention that it was necessary to transfer Ms. Matthews in order to comply with the terms of the Anti-harassment Order obtained by her, and to lessen disruptions to staff and students at the school. The Employer maintains that the Agreement’s language in Article IX, Section E, Administrative Transfer Procedures, allows for some latitude in the implementation of such transfers, pursuant to efforts to do what is best for the well being of the students, and contends that the transfer of Ms. Matthews was necessary to preserve that well being. The Employer insists that the tension at Aki Kurose Middle School falls under the category of “unusual circumstances” referenced in item 1-d of that Section, and that it justified the removal of Ms. Matthews from Aki Kurose before a permanent position became available.[15] The Employer at the hearing presented testimony by Aki Kurose Middle School staff to support its position that the interests of the staff and students were and are best served by the transfer of both Ms. Matthews and Ms. Moxley to other schools. With reference to whether Ms. Matthews was denied the opportunity to comment on her administrative transfer, the Employer considers that the letter and materials from attorney William Spurr subsequent to Mr. Bleakney’s October 6 letter, along with the e-mails exchanged by John Dunn and Gloria Morris, constitute her comment.[16] The Employer emphasizes that its primary concern was not the issue of who was the aggressor in the episode, but rather the effects the episode was having and would continue to have on staff and students at Aki Kurose, and that the administrative transfer of Ms. Matthews was never considered by them to be in any way disciplinary. The Employer references a previous case involving two school employees in which one teacher was found to have physically attacked and injured another employee, and therefore received a written reprimand and an administrative transfer.[17] With reference to this case, the Employer notes that the recommendation of Ms. Morris, Manager of Employee Relations, had been that both employees be administratively transferred to separate schools because both had contributed to their acrimonious relationship.[18] The Employer maintains that neither administrative leave nor administrative transfer necessarily constitutes disciplinary action, and that the School District has frequently used them in non-punitive contexts.

During the arbitration hearing, the Union used the analogy of a shell game to categorize the District’s behaviors in its handling of this matter. I would consider that a more apt way to categorize the Employer’s decisions would be to quote the adage “no good deed goes unpunished.” I say this because I strongly and emphatically believe that the Employer’s decisions were made with the best of intentions in an honest, if misguided, attempt to best serve the interests of the faculty and students at Aki Kurose Middle School. It was made abundantly clear in testimony that there are ongoing racial tensions at the school and that if there were no contractual provisions to the contrary, it would be reasonable, rational, and in the best interest of all involved (except Ms. Matthews) if the Districts decision were to be upheld. While the District may have acted with the best of intentions in addressing the racial tensions that exist at Aki Kurose, the District cannot disregard the clearly stated terms of the Collective Bargaining Agreement in an attempt to ameliorate those tensions.

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. As stated by Elkouri and Elkouri:

Arbitrators have often ruled that in the absence of a showing of mutual understanding of the parties to the contrary, the usual and ordinary definition of terms as defined by a reliable dictionary should govern. The use of dictionary definitions in arbital opinions provides a neutral interpretation of a word or phrase that carries the air of authority.[19]

The right to transfer employees is one that would be at the unfettered discretion of the employer in the absence of contractual provisions to the contrary:

Some agreements explicitly recognize management’s right to transfer. While such agreements sometimes make the transfer right subject to other terms of the agreement, it appears that arbitrators generally require any restriction upon the right to be clearly stated. However, management’s right to transfer will be restricted to the extent that a limitation is necessary to preserve contractual rights of employees.[20]

The issues to be determined are whether the Employer was justified in assigning Ms. Matthews an administrative transfer and, if so, whether the terms by which that transfer was imposed were in accord with the provisions of the Collective Bargaining Agreement.

Article IX, Section E, (2)-a of the Agreement requires that the affected employee receive written notification at least one week prior to transfer, and states that “written notification shall include the reasons for the transfer.”[21] Item 2-b specifies that “the building principal/program manager will confer with the individual tentatively selected for administrative transfer, shall provide tentative notice of transfer in writing, and shall provide the employee with an opportunity to comment.”[22] Item 2-d specifies that when an employee is selected for administrative transfer subsequent to the beginning of the year, “unless there are some unusual circumstances, he/she will remain in the original assignment until a position is available.”[23]

The common dictionary definitions of “shall” and “will” apply in evaluating whether Ms. Matthews was treated in accord with these contract provisions. The Merriam-Webster Online Dictionary defines “shall” as:

a -- used to express a command or exhortation, b -- used in laws, regulations, or directives to express what is mandatory.”[24]

1 -- used to express desire, choice, willingness, consent, or in negative constructions refusal, 2 -- used to express frequent, customary, or habitual action or natural tendency or disposition, 3 -- used to express futurity, 4 -- used to express capability or sufficiency, 5 -- used to express probability and often equivalent to the simple verb, 6 a -- used to express determination, insistence, persistence, or b -- used to express inevitability, 7 -- used to express a command, exhortation, or injunction.[25]

On October 6, 2003, Human Resources Executive Director William Bleakney sent Ms. Matthews a certified letter informing her she was being administratively transferred “to comply with the Antiharassment Order and to lessen the disruptions to Aki Kurose caused by disputes between you and Ms. Moxley” as Mr. Bleakney had determined this to be “in the best interest of Aki Kurose.”[26] The letter indicated the transfer would be effective October 13, 2003, and required Ms. Matthews to work as a daily substitute until such time as a permanent position could be found. During the hearing it was clear that Mr. Bleakney rather than Principal Caldwell had made the decision to transfer Ms. Matthews; statements by Mr. Bleakney at the hearing included the phrases: “after I made that decision….” and, “I made that decision because…”

Not only was the letter to Ms. Matthews from Mr. Bleakney rather than from Principal Caldwell; Ms. Caldwell had not conferred with Ms. Matthews prior to the letter being sent as required by Article IX-E (1)b. At no time was Ms. Matthews provided with an opportunity to comment or to provide input to anyone (as required by the Collective Bargaining Agreement Article IX-E (1)b) prior to her transfer. Furthermore, the letter did not characterize the administrative transfer as tentative, nor did it offer Ms. Matthews any window of opportunity in which to comment on the transfer. In fact, the reasons cited for the transfer could not even be substantiated. For example, inasmuch as the terms of the Anti-harassment Order clearly could have been met by transferring only Ms. Moxley, the first reason given for the transfer does not seem to be required. Further, Ms. Matthews had never been put on notice that there were issues regarding disputes between her and Ms. Moxley that might endanger her position at Aki Kurose Middle School; indeed, the precipitating incident was acknowledged in the letter as having been a case of aggression by Ms. Moxley upon the person of Ms. Matthews.[27] The letter’s statement that the transfer was “to lessen disputes[28] between [her] and Ms. Moxley,” also seems to be false since the only “dispute” apprears to have been when Ms. Moxley tried to pull a pen out of Ms. Matthews’ hand.

At the hearing the district argued that it’s failure to comply with Article IX, Section E, (2)-a of the contract was De minimis. As often stated: “the law does not care for or take notice of very small or trifling matters.”[29] While good arguments can be made to ignore trifling matters, the section of the contract in question appears to be designed to protect people such as Ms. Matthews. It is important to remember that all of the procedures disregarded by the District could have resulted in a different decision being made. The contract states:

The building principal/program manager will confer with the individual tentatively selected for administrative transfer, shall provide tentative notice of transfer in writing, and shall provide the employee with an opportunity to comment.[30]

In the instant case neither Mr. Bleakney nor Ms. Caldwell conferred with Ms. Matthews prior to the transfer. Neither Ms. Caldwell nor anyone else provided Ms. Matthews with a tentative notice of transfer. The employee was not provided with an opportunity to comment, and the reasons provided to Ms. Matthews for her transfer appear pretextual in that they differed substantially from the reasons provided by the District at the hearing. The District argues that the union had an opportunity to comment on the proposed transfer. While the facts regarding the union’s comments are in dispute, it is clear that the Collective Bargaining Agreement gave the right to confer with the decision-maker to the “individual” and not the union. The events that unfolded in this case seem to be those contemplated by the parties when they negotiated the language in question and any attempt by the arbitrator to disregard the parties clear contractual language would also disregard the contractual provision stating:

The arbitrator shall have no power to alter, add to, subtract from, or modify the terms of this Agreement between the District and the Association or the rules, regulations, policies or resolutions of the District.[31]

The District makes the argument that the needs of the children are paramount. They are. However, none of the teachers who testified indicated that they would have a problem maintaining a professional relationship with Ms. Matthews. If all of the teachers maintained a professional relationship, it would be difficult to imagine Ms. Matthews return to Aki Kurose negatively impacting the children. One of the District’s witnesses, Ms. Akunyun, even went so far as to reverse her position during the hearing to state: “to have Ms. Matthews gone, she didn’t do anything, it doesn’t seem fair to Ms. Matthews she should be allowed to come back, it is just fair.”[32] With Ms. Moxley transferred from the school, there is no chance of there being any tension between her and Ms. Matthews. Further, Ms. Caldwell testified that one of her primary reasons for wanting Ms. Matthews transferred was a letter sent by Marie Anderson. I can find no logical connection between Ms. Anderson’s letter (and her degree of anger towards Ms. Caldwell) and the decision to transfer Ms. Matthews. Ms. Caldwell also testified that to allow Ms. Matthews back “would give the impression that we are taking sides.” Yes, she would be taking sides; she would be taking the side of an employee who did nothing wrong over another employee who engaged in a foolish and immature act.

At the hearing Ms. Caldwell posited that the angst of the August 28^th meeting played a part in her “not wanting either teacher back in school.” The issue however is not what Ms. Caldwell “wants,” or what will cause other teachers discomfort. The issue is that the contract sets forth specific criteria that must be met in order to transfer a teacher mid-year. The contract states that the adjustment must be “necessary.”[33]

Further, how the decision to transfer Ms. Matthews’ was driven by the opinion of her former co-workers remains unclear; the arbitrator can only speculate that some of the staff at Aki Kurose Middle School are upset at what they view as Ms. Matthews immaturity in elevating an interpersonal dispute to the criminal justice system. While I agree with these teachers, Ms. Matthews’ insistence in pursuing this matter is protected by statute and contract. These same teachers speculate that Ms. Matthews’ return to the school will result in the existing racial tension returning to the surface.[34] Perhaps; but it is not Ms. Matthews fault that there is racial tension at Aki Kurose Middle School, it is not her fault that Ms. Moxley chose to act in an immature and irresponsible manner, and it is inappropriate to transfer Ms. Matthews merely for taking a pedantic view of her legal rights.

The Collective Bargaining Agreement also dictates that Ms. Matthews should have been retained in her current position until another permanent assignment became available:

An employee who is selected to transfer as a result of administrative decision after the beginning of the school year shall be assigned to a position as expeditiously as possible. Unless there are some unusual circumstances, he/she will remain in the original assignment until a position is available.[35]

There is no question that Ms. Matthews was removed from her position immediately and reassigned as a substitute. With respect to this issue the District argues that “unusual circumstances” existed. To determine the fundamental question of what are the “unusual circumstances” necessary for the School District to immediately transfer Ms. Matthews, two quotes from Arbitrator Philip Kienast in a previous arbitration involving this issue with the same parties are relevant. First, Mr. Kienast comments “unusual circumstances cannot exist until more usual courses of action can be clearly discarded as reasonable alternatives” and secondly, that “while transfer may be the ‘easiest’ solution it is not thereby the contractually correct one.”[36] The District would have me disregard Arbitrator Kienast’s award. As stated by Elkouri:

Where a new incident gives rise to the same issue that is covered by a prior award, the new incident may be taken to arbitration but it may be controlled by the prior award. The destiny of a party’s claim thus may be governed by a prior award that either precludes the claim under res judicata concepts or controls the decision on the claim by stare decisis concepts. In some instances arbitrators likewise have made the prior award the governing factor by application of a third judicial concept, collateral estoppel, which stands somewhere between the concepts of res judicata and stare decisis (collateral estoppel also overlaps somewhat with res judicata and, in a sense, with the authoritative precedent area of stare decisis). However, regardless of whether the arbitrator speaks in terms of res judicata, collateral estoppel, or stare decisis, ordinarily the prior award by some procedure will have been the governing factor in the disposition of the present claim.[37]

This was emphasized by Arbitrator Whitley P. McCoy, who declared that 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.”[38]

Also, of great practical significance is the attitude of arbitrators themselves. An extensive survey of labor arbitration disclosed that 77 percent of the 238 responding arbitrators believed that precedents, even under other contracts, should be given “some weight.”[39]

While I don’t necessarily agree with Arbitrator Kienast’s award, the parties have been aware of its existence for the past twenty-five years and have had numerous opportunities to amend their contract. As a general rule, arbitrators will not set aside the decision of a prior arbitrator where the parties have had the opportunity to amend the contract language in question and have chosen not to do so.[40]

In this case were “more usual courses of action … clearly discarded as reasonable alternatives?” It doesn’t appear so; Ms. Matthews had no opportunity to propose other reasonable solutions,[41] there is no evidence that the District considered the possibility of transferring just Ms. Moxley, and there is no record of any other options being considered. Based on the reasons given to Ms. Matthews for her transfer, both in the transfer letter and at the hearing, it does not appear that “more usual courses of action” were considered or that other “reasonable alternatives” were attempted. Therefore, a close reading of the Agreement inevitably leads to the conclusion that Ms. Matthews’ administrative transfer was not implemented according to the provisions of the Collective Bargaining Agreement.

While it is not necessary to address the issue of whether the transfer was disciplinary in nature, I would do a disservice to the parties if I ignored the issue.

It is undisputed that if the School District had ongoing concerns about the relationship between Ms. Matthews and Ms. Moxley and its effects upon the School, the District could have addressed those concerns via the mechanism of progressive discipline outlined in Article III, Section D-5 of the Agreement.[42] While the Employer is attempting to categorize Ms. Matthews’ administrative transfer as something other than disciplinary in nature; the very fact that the letter provided to Ms. Matthews cited lessening disruptions to Aki Kurose “caused by disputes between you and Ms. Moxley” as a factor in her administrative transfer, makes it possible for an impartial reader to construe the transfer as disciplinary.[43]

I am not unsympathetic to the Employer’s desire to improve relations at Aki Kurose Middle School, but even if their decision to administratively transfer Ms. Matthews could be shown to have the desired effect, that effect would not be sufficient justification for them to override the clearly stated terms of the Collective Bargaining Agreement.

The District essentially argues that any transfer to address a problem “caused by disputes” should be viewed as non-disciplinary unless the declared purpose is disciplinary. One could, of course, base a determination on whether the transfer is disciplinary on how the employer labels the transfer but it seems unlikely that this would have been the parties’ agreed intent. Such an interpretation would make it far too easy for the District to circumvent the just cause requirement of the contract by simply asserting that a transfer was non-disciplinary no matter what the precipitating circumstances. Such an interpretation would also be inconsistent with a rule long established in a wide variety of cases that arbitrators look to the substance, not the form, of a contested action.[44]

In a large number of cases, transfers which were not demotions (in the sense that there is no reduction in pay), have been held to be disciplinary transfers. “It seems a rather short-sighted view to suggest that a lateral transfer cannot be a disciplinary action.”[45] A transfer does not have to include the loss of pay and/or rank to be disciplinary.[46] An employer will not be allowed to use its rights of transfer as a subterfuge for discipline.[47] In examining whether or not a transfer constitutes discipline, one factor looked at by arbitrators is whether the employer’s action was based primarily on the employee’s aptitude or his/her attitude.[48]

If an employer were allowed to transfer an employee for misconduct and get around the just cause provisions of the pertinent collective bargaining agreement by simply calling it a non-disciplinary transfer, bargained for “just cause” provisions would be meaningless.[49] Arbitrators have expressed concerns over the use of transfers as disciplinary actions because of the permanent nature of such discipline.[50] The District’s position is that the “transfer” was non-disciplinary in nature. Generally speaking, arbitrators have up-held non-disciplinary transfers that occur for business reasons such as economic restrictions, not transfers intended to limit disruptions in the workplace.[51]

The vast majority of arbitrators have found a broad interpretation of discipline is necessary to make the just cause provisions of the collective bargaining agreement meaningful.[52] Should the employer be allowed to transfer an employee every time s/he is unhappy with something the employee has done and call it a performance related transfer rather than a disciplinary transfer, the rules that protect employees from arbitrary, malicious or discriminatory discipline are meaningless.

While I don’t find that the “transfer” in this case was a demotion and a subterfuge for discipline, it is a conclusion that a reasonable arbitrator could reach.

The burden is on the Union to establish that the District violated the parties’ Collective Bargaining Agreement. The Union has demonstrated by a preponderance of the evidence that the District violated the agreement by administratively transferring the Grievant, Andrea Matthews. The grievance is upheld.

The grievance is sustained. The Employer will offer the Grievant Andrea Matthews immediate reinstatement to the position she held at Aki Kurose Middle School prior to her administrative transfer.

The Employer will reimburse Grievant Andrea Matthews for all costs she incurred as a result of her administrative transfer, and any wages and benefits she forfeited as a consequence.

The grievant has requested that all records pertaining to this matter be destroyed. Given the magnitude of the issues, the records may be retained by the School District legal department as it deems appropriate; however, all records pertaining to the transfer and subsequent proceedings are to be removed from Grievant Matthews’ personnel file, and none of these records may be referenced with respect to any decisions pertaining to Ms. Matthews’ future career, including but not limited to advancement or discipline.

All fees and expenses charged by the Arbitrator shall be borne equally by the parties, as provided for in Article X, Section G of the Collective Bargaining Agreement.

[1] Exhibit J-1.

[2] Exhibit J-5.

[3] Exhibit U-1.

[4] Ms. Matthews is African-American and Ms. Moxley is white.

[5] Exhibit J-6.

[6] Exhibit U-6.

[7] Exhibit U-4.

[8] Exhibit U-5.

[9] Exhibit J-4.

[10] Exhibit E-2.

[11] Exhibit J-13.

[12] Exhibit J-13.

[13] Exhibit J-13.

[14] Exhibit J-2.

[15] Exhibit J-1, p. 64-65.

[16] Exhibits E-2, J-13.

[17] Exhibits J-10, J-11.

[18] Exhibit J-12.

[19] Elkouri and Elkouri, How Arbitration Works 490-91 (5^th ed. 1997).

[20] Id.

[21] Exhibit J-1, p. 64.

[22] Exhibit J-1, p. 64.

[23] Exhibit J-1, p. 64.

[24] http://www.britannica.com/dictionary (emphasis added)

[25] http://www.britannica.com/dictionary (emphasis added)

[26] Exhibit J-4. I also note that I do not believe Mr. Bleakney’s “remedy” had the desired result, in that staff and teachers already know that tensions exist. These tensions clearly continue to exist despite the absence of Ms. Matthews and Ms. Moxley.

[27] At the hearing there was no evidence presented that would indicate that Ms. Matthews had anything but a professional relationship with Ms Moxley nor was there any testimony to indicate that Ms. Matthews had a less than professional relationship with any staff, students, or parents.

[28] Note the plural.

[29] Definition of De minimis. Black’s Law Dictionary (1979).

[30] Exhibit J-1 (emphasis added).

[31] Exhibit J-1.

[32] One could argue that the usual course of action in such a circumstance, wherein one party has been concluded to have been the aggressor, would be to have removed that party only, rather than effectively punishing the victim, which is what the Employer’s decision to transfer Ms. Matthews from Aki Kurose Middle School did.

[33] Article IX-E (1).

[34] No one at the hearing testified as to what specific “bad” things would happen if Ms. Matthews returned to Aki Kurose. Rather, the testimony was couched in generalities: “it would be disruptive to have either of them back” (how would it be disruptive?), “for the good of the building both should be removed” (how would it be bad for the “building” if Matthews came back?), “it would bring up other issues” (what issues, and why are these “issues” bad?), “it would cause all the feelings to come back to the surface” (how would surfacing these feelings negatively impact the children? Wouldn’t an ADULT conversation regarding these “issues” be a good first step in resolving them?).

[35] Exhibit J-1 (emphasis added).

[36] Opinion and Award, Grace Orchard Grievance (AAA 73-39-0179-77), p. 16.

[37] Elkouri and Elkouri, How Arbitration Works 490-91 (5^th ed. 1997).

[38] Elkouri and Elkouri, How Arbitration Works 490-91 (5^th ed. 1997).

[39] Warren & Bernstein, “A Profile of Labor Arbitration,” 16 LA 970, 982 (1951).

[40] SeePan Am. Ref. Corp., 2 ALAA ¶67,937, p. 69,464 (1948); Southeastern Pa. Transp. Auth., 100 LA 767, 773 (Goulet, chair, 1992); Regional Transit Auth., 94 LA 489, 491-92 (Fullmer, 1990); Macomb County Rd. Comm’n, 94 LA 139, 141.

[41] A right provided her by contract.

[42] Exhibit J-1, p. 11.

[43] Exhibit J-4.

[44] See, e.g., Foodland Supermarket, Ltd., 87 LA 97 (Ling, 1986).

[45] Connecticut Chemical Research Corp., 30 LA 505 (1958)

[46] Safeway Stores, Inc., 81-1 ARB ¶ 8089 (1980). See also, Monmarch Machine Co., 96-1 ARB ¶ 8138 (1968).

[47] See, Mosaic Tile Co., 16 LA 922 (1951).

[48] See, Thomas Brothers Mfg., Co., Inc., 55 LA 69 (1970), Archer, Daniels, Midland Processing Co., 91 LA 13 (1988) (Cerone, Arb.), Firestone Tire & Rubber & Int’l Molders & Allied Workers, 74 LA 565 (1980).

[49] See, Consolidated Ford Corp., 47 LA 1162 (1967). Also see, Mt. Vernon Police Srvc. Guild v. City of Mt. Vernon, AAA Case No. 75 L 390 0077 (1992) (Bryholt Arb.)

[50] See, Thompson Bros., 70-2 ARB 8714, Firestone Tire and Rubber Int’l Molders and Allied Workers, 74 LA 565 (1980).

[51] See, Quick Mfg. Inc. & United Automobile, Aerospace and Agricultural Implement Workers, 43 LA 55 (1964).

[52] See, Consolidated Ford Corp., 47 LA 1162-4 (1967).

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