This Arbitration arises pursuant to Agreement between Portland Association of Teachers ("Association"), and Portland School District ("District"), under which LUELLA E. NELSON was selected to serve as Arbitrator and under which her Award shall be final and binding upon the parties.

Hearing was held on August 25, 1997, in Portland, Oregon.  The parties had the opportunity to examine and cross-examine witnesses, introduce relevant exhibits, and argue the issues in dispute.  Both parties filed pre-hearing briefs and submitted the matter on closing oral argument.  By agreement of the parties, the Arbitrator issued a bench award at the hearing, to be followed by this summary Opinion and Award.

APPEARANCES:

On behalf of the Association: 

Mr. Randy Ventgen, Consultant, Oregon Education Association, 345 NE 8th Avenue, Portland, OR   97232-2708 

On behalf of the District: 

Donna M. Cameron, Esquire, and Sharon Toncray, Esquire, Miller, Nash, Wiener, Hager & Carlsen, 3500 U. S. Bancorp Tower, 111 SW Fifth Avenue, Portland, OR   97204-3699

 

           ISSUES

1. Did the School District violate Article 10.B.1,^[1] 10.E.2, 8.K, or 9.A of the collective bargaining agreement when it “unassigned” teachers at Humboldt Elementary School for the 1997-98 school year?

2. If any of those contract articles were violated, what should the remedy be?

   RELEVANT SECTIONS OF AGREEMENT

           ARTICLE 6

        GRIEVANCE PROCEDURE

...

SECTION D - Arbitration

If the grievance is pursued to arbitration, the issues before the arbitrator shall be limited to those presented at Level II. ...

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           ARTICLE 8

          EVALUATION

 

A. The performance of unit members shall be evaluated in writing.  While varied sources of information are weighed and considered, the written evaluation of a unit member’s performance will be done only by licensed administrators. ....

...

K. Testing

Student performance on District-wide and/or other standardized tests may indicate where modifications of instruction are required and the implementation of such modifications may be part of the evaluation process.  However, evaluations or criticism of a teacher shall not be based specifically on the issue of comparisons of such student performances.

....

           ARTICLE 9

UNIT MEMBER RIGHTS AND JUST CAUSE

 

A. No unit member shall be disciplined, reprimanded or reduced in compensation without just cause.  Reprimands shall be made privately and not in the presence of students, parents, unit members or members of the community. ....

....

 

        ARTICLE 10

    UNIT MEMBER TRANSFERS

 

A. Assignment Notices

Prior to the end of the school year, principals and other supervisors shall give written notice to unit members of their specific assignments for the subsequent school year.  Affected employees shall be notified in writing of any assignment changes that occur during the summer recess period.

B.                Posting Procedures

1. As the District prepares to fill vacancies for the subsequent school year, a posting of such vacancies shall be made at the Personnel Department and at each worksite.  Such vacancies shall be posted for a five-day period.  Posting is not required for vacancies to be occupied by unassigned unit members, or to be occupied by other administrative transfers.

...

E. Administration Initiated Transfers

1. When the administration is of the opinion that a unit member should be transferred, the situation shall be discussed with the unit member.  All reasonably practicable efforts will be made to effect a suitable re-assignment fairly and objectively, including consideration of the unit member’s preference.  A unit member will be notified through consultation as soon as possible but at least seven (7) calendar days prior to the transfer date. ...

2. In the event that a tax base or levy failure, declining enrollment, program change, or change in funding results in reduction of staff in a building or program area, transfer of staff will be based on educational criteria as described below with respect to the program requirements as determined by the District.  Volunteers will first be requested and considered from among the staff members.  Such volunteers will be selected for transfer if they are from within the grade level(s) or subject matter area(s) where the positions are to be eliminated provided the volunteer(s) are not on an Evaluation Plan of Assistance.  In the absence of volunteers, the unit member having the least seniority in the District shall generally be transferred. ...

...

e. If a unit member has been administratively transferred under the provisions of 10.E.2. and a position for which the unit member is qualified at his or her original school or program becomes available, the unit member may be returned to that school under the provisions of 10.E.1.  If such a position occurs while the unit member is unassigned, the unit member shall be returned to that school or program.

...

F. On occasion, the District may consider the transfer of a unit member for reasons other than those set forth in paragraph 10.E.2. above.

1. The following procedures shall apply when the reason for transfer is due to unresolvable differences between the unit member and the supervisor:

...

2. In other types of involuntary administrative transfers under paragraph 10.E.1., a unit member can appeal an unconsented-to administrative transfer to review by the Region Director.  The unit member will also be given opportunity to present his/her position to the Director of Personnel who would have to approve the unconsented-to transfer before it can occur.

3. No unit member will be transferred for reasons that are arbitrary or capricious.  An  illustration of an arbitrary and capricious transfer would be one based on union activity.  An illustration of an involuntary transfer decision which would not be arbitrary and capricious is a transfer due to a long-standing unresolvable conflict between a unit member and supervisor.  The involuntary transfer could not occur for performance deficiencies that would be dealt with in an evaluation or plan of assistance or for any other reason that would violate this contract.

G. If a decision to transfer a unit member is reversed by an arbitrator, the unit member shall be reinstated to the building no later than the beginning of the next semester after the arbitration decision.

....

 

               FACTS

The facts in this case are largely undisputed.  Humboldt Elementary School has been the subject of concern for years because of low scores on standardized achievement tests.  Community groups have threat­ened a boycott of Humboldt and other schools with similar problems.  In some instances, including during spring 1997, community groups have suggested action against teachers whose students’ test scores did not improve.  Recent legislation has placed more emphasis on test scores in grades 3, 5, 8, and 10.

Work on improving student test scores has occurred on several fronts.  Humboldt teachers researched and attended conferences on various remedial programs, and developed proposed changes in the school calendar and curriculum.  The Association suggested the District implement a research-based program developed by the Association’s parent body, the National Education Association.  Superintendent Jack Bierwirth met individually with every school principal over the past few years.  In May 1997, the School Board adopted a resolution dealing with student achievement.  One approved measure was intervention for schools where other forms of assistance had not resulted in improvement.

Bierwirth decided to “do something fairly dramatic” to turn Humboldt around.  Rather than make incremental changes, he decided to make a “clean break,” develop an overall plan, and re-staff the school with staff who were totally committed to that plan in the hope of achieving a swift turn-around.

On June 9, three days before the end of the 1996-97 school year, the Humboldt principal held a staff meeting to announce that the entire school staff (including not only teachers, but also clerical employees, kitchen and custodial staff, and the principal herself) would be removed from the school.  Although early press accounts suggested the entire staff had been “dismissed,” no employees were dismissed.

Teacher Lisa Newlyn testified she and other teachers felt there was an implication that they were poor teachers and that they were being fired, although no administrator explicitly said anyone was a “bad teacher” or was being punished.  She recalled considerable discussion of whether Humboldt teachers would be hampered by the “scarlet H” of having taught at Humboldt.  However, her own written evaluation was favorable, and made no mention of student test scores.

On June 12, District administrators met with Humboldt classified and certified staff to discuss the plans for the coming year.  Newlyn testified many of the proposed changes were similar or identical to proposals developed by Humboldt staff, while others were new, and the plans provided more resources to Humboldt than in the past.  Later in the meeting, administrators described the process of bidding on vacancies (known as “rounds”) and encouraged teachers to re-apply for Humboldt positions.  Teachers were told there was no guarantee they would return to Humboldt.

All 22 teaching positions at Humboldt were posted.  11 teachers who had taught at Humboldt in 1996-97 applied to return to Humboldt.  Of those, nine (including Newlyn) were offered assignment to Humboldt for 1997-98; seven of those accepted that offer, while the other two accepted assignment to other schools.  Humboldt will have more teachers, supplies, and staff in 1997-98 than it had in 1996-97.

BARGAINING HISTORY AND PAST PRACTICE

The District has never before un­as­signed an entire teaching staff from a school.  It has unassigned teachers in conjunction with reductions in staff or changes in programs at particular schools.  It has also made administrative transfers of teachers.  Article 10.F was added to the Agreement in response to a 1991 dispute over administrative transfers.  The District had asserted those transfers were due to conflicts between the teachers and the principal; the Association believed they were the result of Association activities.

Article 8.K was added to the Agreement in 1983, largely as a defense to community pressures to remove or sanction teachers whose students had low test scores.^[2]  The Association’s initial proposal would have precluded use of test scores for “evaluation, discipline or criticism of teachers.”  After the District acknowledged discipline based on test scores would not withstand a “just cause” test in any event, the Association agreed to drop the word “discipline” from its proposal.  However, despite District resistance, the Association insisted on retaining the word “criti­cism.”  The Association agreed to add language permitting test scores to be used to set goals and make program changes.

     POSITION OF THE ASSOCIATION

Article 10.E.2 specifically describes that “unassigned” teachers occur as a result of reduction of staff in a building.  Humboldt staff positions have been increased, not reduced.  It was a violation of 10.E.2 to unassign Humboldt staff.

Article 10 covers all transfers.  Other than those staff members who become unassigned under Article 10.E.2, staff are transferred through voluntarily applying for posted positions or by administrative transfers.  If Humboldt staff were not unassigned and were not administratively transferred under Article 10.F, they could not be transferred.  These transfers violated the long-standing practice regarding transfers.

The District argued at Level II that Article 10.F did not apply; it therefore cannot argue here that it applied.  The District tried to eliminate the Agreement as a factor in transfer decisions.  Even if Article 10.F applied, the District acted arbitrarily.  It did not give assistance before taking other action, as called for by the Board resolution.  There was no indication the resolution was intended to apply to assistance that had been given before the resolution was passed.  It gave staff no notice of the intended action.  It intervened on the basis of a program it was going to introduce, but unassigned the staff that had developed the program.  It was arbitrary to base its decision on a technique whose effectiveness was unknown.  The District refused to consider the research-based program the Association proposed, which would work.  The action was also arbitrary because it criticized staff based on student test score results.

The District violated Article 10.B.1 by posting jobs at Humboldt to which incumbents were entitled.

The District transferred Humboldt staff because of student test score results.  The pressures for the decision were based on test scores.  Criticism of the staff’s inability to perform because of test scores was evident in the community group’s call for sanctions and Bierwirth’s call for moving them out.  The transfer was direct criticism in violation of the clear language of Article 8.K.  Article 8.K came out of a nearly identical situation and was intended to cover such criticisms.  These transfers were an attempt to shift the blame for student test scores to staff.  The District created the impression that teachers were not competent because test scores did not go up, and they were moved as a result.  It demor­al­ized and sanctioned teachers.

The transfers were arbitrary and disciplinary, and therefore in violation of Article 9.A.

The District cannot take action against an entire staff which would be prohibited if directed at an individual teacher.  Criticism is criticism, whether directed at an individual or an entire staff; the same is true of discipline.  This action cannot be justified under the management rights clause.  That provision is sub­ordinate to the Agreement.

“Business necessity” does not permit the District to violate the Agreement.  At best, the District might be permitted to implement the change pending negotiations, after written notice to the Association.  Even if the District had met this requirement, the Employment Relations Board (“ERB”) has never found business necessity allowed a unilateral change.  In any event, the reasons given by the District do not amount to a business necessity.  The District had other options, and this action was far from the best option.

The District delayed resolving this matter, while the Association sought to move forward.   Staff should be reinstated as of the Fall 1997 semester.  Everything the District did after the unassignment decision is irrelevant to the remedy.  If the District had not taken this action, only voluntary bids on postings would have affected teacher placement.  The Association was not involved in the meetings that led to teachers’ assignments, and their decisions regarding bidding did not waive their rights to reinstatement.

This action was taken to set the ground for similar actions at other schools with low test scores.  The District needs a ruling sending a message this is not the way to try to fix student achievement.  The District must respect contract rights as it goes about improving student achievement.  The Association has not blamed students, and it is equally insulting to shift the blame entirely to teachers.  Research shows that assigning blame does not work, but joining together does.

The District should admit it made a mistake, and write an apology to the staff and the community.  It should join with the Association and the community to implement a successful achievement policy that is research-based and takes into accounts the contributions of all participants.

     POSITION OF DISTRICT

The Humboldt restaffing is controversial, dramatic, and extreme.  The Agreement does not address problems faced by a school like Humboldt.  It says nothing about this type of restaffing.  It does not vest au­thority in the Union to participate in decision making regarding instructional programs or assignment of staff.

The District has the authority to run the schools unless the Agreement specifically prohibits taking some action.  The District is not arguing “business necessity,” because it is not trying to justify a contract violation or unilateral change.  Restaffing was an educational decision within the District’s responsibility.  The Arbitrator sits to decide grievances under the Agreement.  Although the Arbitrator needs to understand the background of the restaffing decision, she has no power to decide whether student performance was bad enough to justify an extreme measure, or whether different educational programs should be tried.

Article 8.K does not require the District to ignore test results or pretend teacher actions have no im­pact on student performance.  It recognizes that student test results “may indicate where modifications of instruction are required.”  That is what occurred here.  The only limitation is on singling out teachers for evaluation or criticism based on student performance.  This was not done.  The District’s actions were directed at correcting the school as a whole.  The District was very careful not to single out any teacher for criticism.  The problem was not with individual teachers; it was that the system was not working.  Sometimes a situation becomes so negative that even the best teachers cannot overcome it without a drastic change.  It is not criticism to acknowledge that test scores are so awful that something needs to be changed; that would ignore reality.  No Humboldt teacher received an evaluation based on student test results.  The District expects Humboldt teachers to be successful in their new assignments.

No teacher was disciplined.  Discipline is not simply in the mind of the teacher.  It is an intentional act with an objective manifestation.  No teacher received a warning, reprimand, suspension, demotion, or discharge.  There is no need to consider whether “just cause” existed, because no discipline occurred.

Article 10.B.1 was not violated.  It does not prohibit posting jobs when transferring someone out.  Once the Humboldt teachers were unassigned, there were positions to be filled.  The District could have filled the vacancies by administrative transfers, without using the posting and application process.  However, that procedure would not have allowed community input and was not suited to find teachers who would bring the necessary enthusiasm, attitude, skills, and personality to Humboldt.  The District complied with the spirit, as well as the literal language, of the Agreement.

The administrative transfer provisions were not violated.  Article 10.E.2 does not apply to this situation; it applies only where there was been a “reduction of staff in a building or program area.”  Nothing in Article 10.E.2 suggests it applies if the staff in the building is not being reduced.  The fact that Article 10.E.2 refers to unassignment does not mean that a reduction in force is the only way one can become unassigned.  The Agreement does not define unassignment and does not limit it in that manner.

Article 10.E.1 is the transfer provision that applies.  That provision recognizes the District’s right to transfer teachers “when the administration is of the opinion that a unit member should be transferred.”  The only limitation on that right is in Article 10.F, which applies when teachers are transferred because they cannot get along with their principals.  Other than that specific exception, Article 10.E.1 recognizes the District’s right to change the worksite or job assignment of the teacher.  Article 10.F refers back to Article 10.E.1 regarding administrative transfers for other reasons.

The initial sentence of Article 10.F acknowledges the District’s right to transfer teachers for reasons other than those specified in Article 10.E.2.  The language of Article 10.F.3 confirms this point.  Because the Association has not grieved this section, it is not before the Arbitrator.  In any event, this decision was neither arbitrary nor capricious.  There may be some debate about how to turn the school around, but this decision was the result of the District’s best effort and opinion.

The ERB has recognized that, within the parameters of the employee’s normal job duties and when job security is not threatened, the site of work and specific job assignment are management prerogatives which are not even mandatory for bargaining.  There is nothing shocking about the District retaining some of this management prerogative.  The general rule is that, unless specifically restricted, management has the right to transfer employees.  The employee’s willingness to move is not required.

       OPINION

PRELIMINARY MATTERS

The Union bears the burden of persuasion as the moving party in this contract interpretation case.

The applicable standards for contract interpretation are well established.  Where the language is clear and unambiguous, the Arbitrator must give effect to the parties' intent.  That is so even where one party finds the result unexpected or harsh.  Extrinsic evidence cannot be used to vary clear contract language.  Where contract language is unclear or ambiguous, the Arbitrator may look to extrinsic evi­dence of the parties' intent.  Such evidence includes bargaining history, contemporaneous statements regarding the agreement reached, the practice in implementing the agreement, and post-contract clar­ifications and modifications.

The Arbitrator must avoid interpreting ambiguous language to nullify or render meaningless any part of the Agreement if another reasonable interpretation gives effect to all provisions.  The Arbitrator must prefer that interpretation which avoids harsh, absurd, or nonsensical results.  Any ambiguity not removed by other rules of interpretation may be removed by construing the ambiguous language against its proponent.

The Arbitrator does not sit as a substitute for the school board or superintendent.  It is beyond her jurisdiction to consider whether good policy reasons exist for what the District did or equally good reasons exist to respond to the expressed concerns in a different manner.  If the action taken did not exceed the District’s powers under the Agreement, then no contractual violation occurred, regardless of how well- or ill-advised the action may have been as a matter of educational policy.  Thus, the question here is not whether the means the District chose were optimal or wise, but whether they violated the Agreement.

The question at hand also is not whether it would have been wise to involve the Association or the Humboldt teachers in developing a plan of action.  If the Agreement prohibited the District from taking the steps it did, the only contractually-permissible means of pursuing the desired course would be to negotiate with the Association for a side letter permitting an exception to the Agreement.  If the District chose not to negotiate such a waiver of a contractual obligation, good intentions would not excuse the violation.  On the other hand, if the action taken did not exceed the District’s powers under the Agreement, then there was no contractual violation.  This would be so even if were shown beyond a shadow of a doubt that the action demoralized teachers or was otherwise detrimental to good labor relations.

THE MERITS

Article 8.K unequivocally permits modifications of instruction made based on standardized test scores.  At a minimum, that happened here; the question is whether there was also evaluation or criticism based on these scores.

In common workplace terminology, “evaluation” refers to periodic individual evaluations--often written--such as those described in Article 8.A.  No evidence exists that any teacher’s written evaluation made reference to student test scores.  Therefore, the only issue is whether the unassignment decision was a “criticism” within the meaning of this provision.

Neither the language of Article 8.K nor the evidence regarding bargaining history suggests the parties intended “criticism” to refer only to the written evaluation process.  Were that so, the language would be superfluous.  In context, the language can only refer to suggestions outside the evaluation process that the teacher’s performance is somehow deficient.  The bargaining history also supports this reading.  The Association’s initial proposal also addressed use of test scores for “discipline” in addition to evaluation and criticism.  In light of the parties’ discussions of “just cause,” the omission of “discipline” from the final language does not shed much light on the meaning of the agreed-upon provision.  However, the fact that the Association adamantly insisted on keeping “criticism” in the language is strong evidence that the term was not intended as a synonym for the written evaluation.  Rather, it was intended to prohibit other actions that could adversely affect a teacher’s reputation without being put into the personnel file.

In this case, there is no allegation of any statements accusing Humboldt teachers (individually or as a group) of teaching deficiencies or misbehavior.  It is understandable that some teachers (and, for that mat­ter, mem­bers of the public and press) may have felt the unassignment implied criticism of their teaching.  However, the actual quotes from administrators in evidence support the District’s assertion that everyone in admin­istration was careful not to lay the problem at the teachers’ doorstep.

The Arbitrator recognizes there is a fine line between saying there is bad staff chemistry and saying there is a bad staff.  The District successfully walked that line.  A real distinction exists between criticism of a group and criticism of the individual members of that group.^[3]  The distinction becomes even greater when the criticism is not of a group, but of a group dynamic.^[4]  In this case, the District did not target teachers as a group.  It removed not only teachers, but also the principal, the support staff, and all other adults working in the facility.  This drastic move did not, explicitly or implicitly, criticize teachers, janitors, or any group of employees.^[5]  If anything, it removed any possibility of assigning blame to one group of employees.

The record includes press accounts of varying degrees of accuracy that are more critical of teachers as the source of Humboldt’s problems.  Those reports do not purport to be quotes of District administrators; instead, they are the reporters’ attempts to explain the situation at Humboldt.  Unfortunately, it is easy to see how reporters rushing to meet deadlines could misinterpret the District’s actions, or phrase a story to suggest criticism of the affected teachers.  Such independent press accounts, however, do not constitute District criticism of teachers.

Based on all of the above, it is concluded there has been no violation of Article 8.K.

Article 9.A is a straightforward just cause provision for discipline.  For it to apply, the Association must establish that the unassignment decision was disciplinary in nature.  No evidence exists that any teacher was reduced in compensation as a result of the unassignment.  The only question is whether the unassignment was a “discipline” or “reprimand” within the meaning of this provision.

Discipline certainly can occur without a corresponding entry in the personnel file.  However, the fact that a teacher found an action undesirable, or even demoralizing, does not mean the action was “discipline” as that term is commonly understood in employment relations.  Discipline commonly refers to adverse actions taken with the purpose of having a corrective effect on behavior or performance.  No such purpose was shown here.   No allegation has been made that Humboldt teachers were misbehaving or deficient in their performance.  No changes in behavior or performance improvements were suggested, nor were other corrective steps taken of the sort likely to induce behavior modification.  No evidence exists that administrative trans­fers are commonly viewed as discipline.  Accordingly, on this record, the District did not violate Article 9.A.

Although the grievance alleges violations of two specific provisions within Article 10, it is essential to look at the Article as a whole in interpreting those provisions.

Article 10.E.1 introduces the concept of administrative transfers.  It makes the determinative ques­tion in such a transfer whether the administration is “of the opinion that a unit member should be transferred.”  This provision confers quite broad discretion on the District, subject to any other contractual provisions limiting the reasons for which transfers could be made.

Turning to Article 10.E.2, the language is clear and unambiguous.  It governs the manner in which a staff reduction will be handled, and describes the various events which might generate such a staff reduc­tion.  In this case, there was no tax base or levy failure, declining enrollment, or change in funding, nor did the planned program change at Humboldt result in “reduction of staff in a building or program area.”  Accordingly, the action taken was not the type of transfer governed by Article 10.E.2.

On this record, Article 10.E.2 does not prohibit the District from unassigning teachers in situations other than staff reduc­tions.  The language is not written in such exclusionary terms, nor can it fairly be read as a definition of the term “unassigned.”  On the contrary, the only use of that term within Article 10.E.2 is in subsection “e,” in discussing situations where a position becomes available after a staff reduction.  ­The parties had it within their power to prohibit a two-step process for administrative transfers such as that involved here, by inserting clear language limiting the way that one became “unassigned.”  They did not.  It is beyond the Arbitrator’s authority to read such a limit into the Agreement.