ARBITRATOR:                         Lionel Richman

FOR THE EMPLOYER:            Jackson Parham,
                                   Parham & Rajcic
                                   23195 La Cadena Drive, Suite 103
                                   Laguna Hills, California  92653

FOR THE UNION:                    Tim O’Neil, Executive Director
                                   California Teachers Association
                                   196 Landis Avenue
                                   Chula Vista, California  91910


This matter was heard before the Arbitrator on April 7, May 24, May 25, and June
15, 2005, at Chula Vista, California...

...
The Grievants:  Robin Donlan, Margaret L. Meyers, Nicki Perez,
Stephenie Parker-Petitt, and Victoria Singleton have filed substantively
identical grievances.  Each claimed violation of Article 33.5 of the
Collective Bargaining Agreement which provides:

“Notwithstanding any other provision in the Article, should a determination be made
by the Superintendent that an involuntary administrative transfer is reasonably
necessary,
such transfer may be made by the Superintendent following a
conference with the employee.”

At the commencement of the hearing, the Employer made a motion to dismiss.  The
motion was based upon Article 7.3.7 which provides:
 “The arbitrator shall have
no power to render an award in any grievance arising before the effective
date or after the expiration date of this agreement.”  
The Agreement further
provides that the arbitrator shall not rule on such a motion until after hearing the
matter on the merits.  

Therefore, the arbitrator heard four days of testimony, primarily upon the
merits, at which point, the Employer renewed its motion to dismiss.
 With
the agreement of the parties, the Arbitrator determined that it would be appropriate
to pass upon the motion first.  If the motion were granted, there would be no need
to consider the merits.  The parties briefed the issue and, on August 18, 2005, the
motion to dismiss was denied.  The parties were given 30 days to file briefs upon
the merits.

At the request of the Employer, the 30-day briefing schedule was suspended so
that the Employer could seek judicial relief from the decision of the Arbitrator
denying the motion to dismiss.

In due course, the Employer filed suit in the Superior Court, County of San
Diego, for mandamus and for declaratory relief, in each case, seeking to
vacate the decision of the Arbitrator, that the matter was arbitrable and
denying the motion to dismiss.  On October 31, 2005, the Employer’s
application for judicial relief was denied.

Subsequently, the parties filed written briefs on the merits, the latest brief being
received by the Arbitrator on December 7, 2005.  The matter is now ripe for
decision.

I. STATEMENT OF THE ISSUES

The parties have stated the issues separately.  The Union states the issues as
follows:   Did the Employer violate, misapply, or misinterpret Article 33 of the
agreement generally and Article 33.5 of the agreement specifically when it
administratively transferred Robin Donlan, Margaret Myers, Nicki Perez, Stephanie
Pettit, and Victoria Singleton prior to the start of the 2004-2005 school year, and, if
so, what are the appropriate remedies?

...The Arbitrator selects the Union’s statement of the issues.  This stipulation by the
Employer is without prejudice to its position that the Arbitrator lacks jurisdiction to
decide this matter on the merits and reserves its legal position as stated in its
motion to dismiss.

II. RELEVANT CONTRACT PROVISIONS

ARTICLE 33.  TRANSFER

33.1        Definition.  A transfer is defined as a change of school or administrative
location.

33.5        Notwithstanding any other provision in this article, should a determination
be made by the Superintendent that an involuntary administrative transfer is
reasonably necessary, such transfer may be made by the Superintendent following
a conference with the employee.


III.
STATEMENT OF THE EVIDENCE

The five Grievants were long-term teachers at Castle Park Elementary School.  In
addition to their duties as teachers, each of them served on a number of extra
curricular programs.  Among these programs on which the Grievants served, from
time to time, was the budget committee and the School Site Council.

The School Site Council is the decision-making unit at the school which receives
recommendations from other committees, including the budget committee, and then
makes overall decisions for the school.  It is the decision-making body at the school
that includes teachers, certificated employees, the principal, and parents.  

The decision of a School Site Council, which involves class organization and
expenditure of funds, is presented to the Board of Education.  The Board of
Education has the power to approve, modify, or reject the decision of the School
Site Council.

Castle Park had been plagued by a high turnover in site principals.  In fact,
Superintendent Billings served, for a period of time, as interim principal.  
Billings, in his capacity as Superintendent, was dissatisfied with the
progress which Castle Park was displaying.  He felt the school was in need
of a principal who was experienced in turning administration of school
programs around.

He recruited Ollie Matos, who had a record of improving performance of
schools.  Matos commenced employment at the beginning of the 2003-2004
school year.  He conducted a review prior to the commencement of the
school year and concluded that there were a number of areas that needed
improvement.  In meeting with the School Site Council, he found that their
plan for the school year had already been completed and that they were
opposed to making revisions.

He testified that a number of the Grievants, including Donlan, refused to
cooperate with the changes which he felt were appropriate.  The
remaining Grievants were either members of the Council, the Budget
Committee, or had served in such positions in the past and had an
accepted role of leadership with other teachers.

Finally, in August of 2004, Matos met with Billings and recommended the
transfer of the Grievants from Castle Park.  In addition to the Grievants, he
recommended the transfer of [Richard] Denmon and Teri Coffey.  However,
the latter two were not transferred.  He requested these transfers
because he felt the individuals named showed a lack of respect for him
and unprofessional behavior; and noncohesiveness with the staff.  He felt
they were unwilling to work together as a team with him.

Teachers are evaluated .every two years.   Matos had occasion to evaluate
Singleton.  On the evaluation form she was rated highly.  Under the heading
“Overall Evaluation Summary Statement,” he had written, in part, “She always works
cooperatively with her team members, other staff and myself.”  From the time of
that evaluation until the time he requested her transfer, he never brought to her
attention any concern regarding her alleged unprofessional behavior, lack of
cohesiveness with other staff members, or unwillingness to work as a team member.

He also evaluated Grievant Perez.  Under the heading “Overall Evaluation
Summary Statement,” he stated, in part, “She always works cooperatively with her
team members and other staff and myself.”  Between the time of that evaluation
and the time he recommended her transfer, he never brought to her attention any
lack of respect, or unprofessional behavior or noncohesiveness with staff or
unwillingness to work as a team member.

He evaluated Grievant Myers and, under the heading of the Summary Evaluation,
he wrote that Grievant maintained a professional demeanor at all times and
concluded by saying, “It is a pleasure to have a high quality teacher like Ms. Myers
working with children on a daily basis.”

From the date of that evaluation until the date he recommended her transfer, he
never communicated to her any concerns with regard to her behavior, lack of
respect, unprofessional behavior, or noncohesiveness with staff or unwillingness to
work as a team player.

Nothing happened specifically, between the time of these evaluations and the time
he recommended their transfer, that led him to the conclusion that they needed to
be transferred.  It was based upon his conclusion that the school improvement
program was not going to be moving forward as long as they were there.  The
significant event, from his point of view, was that the priority list had come out and,
when he looked at student data and where school funds were going, it appeared
that the plan would remain the same, even though things had changed.  They were
still going to have the same programs year after year.  Matos took his problems to
Billings on a number of occasions.  At about the time Billings determined to effect
the transfers, he had received the results of the Harris Interactive Survey.  The
Survey is used by more than 200 school districts and serves as a “customer
satisfaction” survey for schools.  Dr. Doyle, who initiated the survey, added certain
questions which targeted Castle Park.  He was asked to do this by Billings.  The
survey reflected staff and community support for Matos which led Billings to
conclude that Matos was not the reason change had failed to occur at Castle Park.  

Once he reached this conclusion, he determined, to effect the transfer under 33.5
of the Collective Bargaining Agreement.

       Article 33 is an extensive article dealing with transfers both voluntary and
involuntary.  Each of the Grievants was invited to his office separately accompanied
by a Union representative and each was advised of Billings’ intent to transfer such
Grievant away from Castle Park.  When asked for the reason, Billings responded,
“It’s in the best interests of the education program.”  When pressed as to what the
Grievant’s failings were that called for a transfer, Billings responded, “It’s in the best
interests of the education program.”  Each Grievant was furnished with a written
letter, which had been prepared prior to their meeting with Billings, which stated, in
relevant part, as follows:  “As we discussed in our conference, this transfer is in the
best interests of the educational program and students.”

Billings, himself, testified that this was his statement at the meeting with each of the
Grievants and that this was his response at each meeting when further information
was sought.  At the meeting with Donlan, the Union representative asked him to
elaborate and his response was “in the best interest of the educational program.”  
This was the only reason he gave.

Each Grievant was assigned to a new teaching position at different schools for the
2004-2005 school year.


IV. mDISCUSSION

The Union has offered evidence of pre-contract negotiations leading to the
adoption of 33.5.

Bargaining history and pre-contract negotiations are valuable and proper sources
from which to ascertain the meaning of contract language if the contract language
is subject to more than one meaning.  What is significant is the give and take
across the bargaining table and the manifestation by the parties of their goals in
making contract presentations.  The subjective intent of one of the parties not
manifested during bargaining is not helpful in interpreting an ambiguous contract
provision.  
Thus, the testimony of Insko, regarding the Union’s intent in
bargaining for a change in the preexisting contract language, is unavailing
since evidence of the Union’s intent, without a manifestation of that intent,
adds no substance to the understanding of the parties.  Insko testified
that the Union’s goal on this occasion was to permit the Superintendent to
initiate a transfer, but it would have to be reasonably necessary in order to
do so.

The intent manifested by the parties to each other during negotiations by their
communications and their respective proposals – rather than undisclosed
understandings and impressions – may be considered in determining the meaning
of contract language.  (Kahn’s and Co., 83 LA 1225, 1230, citing Elkouri and
Elkouri, How Arbitration Works, at page 314 (3rd Edition, 1973.)

It must be emphasized, however, that bargaining history is appropriate to interpret
a contract provision which is not clear upon its face.  Where the contract provision
is clear and unambiguous, bargaining history will be rejected to interpret such clear
and unambiguous language.  (Plain Dealer Publishing Company, 104 LA 919.)  
The Union argues that finding Article 33.5 stands alone would, in effect, be
inconsistent with the balance of Article 33 and would constitute a waiver of the
requirements contained in 33.4.1.

Article 33, dealing with transfers, is lengthy and detailed.  A good portion is
administrative in function.  That is, it deals with voluntary transfers, transfers during
the school year, requests for transfers and the administrative determination of
transfers to particular positions.

Specifically, the Union targets 33.4.1 as a provision which would be written out of
the contract if Article 33.5 were interpreted “as an absolute waiver of the
requirements contained in Article 33.4.1.”  The Arbitrator disagrees.  33.4.1 (a)
deals with a request by the immediate supervisor to transfer an employee and the
procedure to be followed.  33.5, on the other hand, deals with the authority of the
superintendent to make an involuntary administrative transfer.  There is no
inconsistency in holding that 33.5 vests an absolute right in the Superintendent to
effect an involuntary administrative transfer so long as the requirements of 33.5 are
adhered to.

The Arbitrator concludes that 33.5 consists of two elements.  The first element is a
determination by the Superintendent that an involuntary administrative transfer is
reasonably necessary.  The word “reasonably” raises the question as to whether
the Arbitrator should independently determine from the record whether the
determination, in the instant cases, was “reasonably necessary.”  Here, we do turn
to 33.4 for assistance.  33.4.1 deals with a transfer request initiated by the
immediate supervisor of the employee.  33.4.1 (a) requires that the supervisor
believe that the “best interest of the students, the district, and then the employee
will be served by the change in assignments for that particular employee.”  
Subsection (b) requires that the employee be advised through a personal interview
of the reason(s) why an administrative transfer is being recommended.  The
distinction between 33.4.1 (a) and (b) and 33.5 would appear to indicate that, while
the decision of a supervisor may be reviewed by an Arbitrator for reasonableness,
he has no such authority under 33.5.  This conclusion is not wholly illogical.  To
make the reasonableness of the Superintendent’s decision reviewable by an
arbitrator, would permit the arbitrator, unacquainted with the school district, the
school, the student body, and the community, to make decisions best made by an
expert in the field.  Assuming, without deciding, that such a decision is reviewable
for reasonableness, the testimony of Dr. Billings and Dr. Doyle, would appear to
satisfy the test of reasonableness.

We then proceed to the second element of 33.5.

The second element is in the form of a condition precedent, that the transfer be
made “following a conference with the employee.”

As the Arbitrator sees it, once the requirement for a conference is met, the
Arbitrator is without jurisdiction to question the basis articulated by the
Superintendent for the transfer.

The issue, then, is did the Superintendent have a conference with the Grievants
prior to effecting the transfer?

Merriam-Webster’s Collegiate Dictionary defines “conference” as “a meeting of two
or more persons for discussing matters of common concern:  a formal interchange
of views.”

American Heritage of the English Language defines “conference” as “A meeting or
consultation or discussion:  An exchange of views.”

Webster’s Seventh New Collegiate Dictionary defines conference as “a usu[sic]
formal interchange of views.”

In the instant case, the testimony of the Grievants and of Dr. Billings is uniform.  As
to each Grievant, when the meeting with Dr. Billings took place, he stated that the
transfer was in the best interest of the educational program.  When pressed for
specific reasons or facts or information, he responded by repeating, “It is in the
best interest of the educational program.”
As Dr. Billings testified, he was only required to meet with the employee.  He was
not required to have a dialogue or a discussion nor was he required to provide any
reasons for which the employee was to be transferred.
The contract does not support the concept that the Superintendent could repeat,
as a mantra, “It is in the best interests of the educational program,” and thus
discharge his obligation under 33.5.  This was not a “conference” as that word is
defined, but a unilateral ukase..  The Arbitrator concludes that the second element
of 33.5 was not adhered to and that the involuntary administrative transfer violated
33.5 of the Collective Bargaining Agreement.


V.
THE PROPOSED REMEDY

The Union seeks certain monetary damages for each of the Grievants.  The
Arbitrator considers it appropriate not to pass on these individual issues at this
time, as he indicated at page 115:6-15 of the transcript.  At that time,
the
Arbitrator sustained an objection to a question to Donlan relative to the
special ed stipend, indicating that, if the parties reached that point, the
Union would have an opportunity to show specific injury to specific
Grievants.

As to the basic issue, the Arbitrator feels that a tailored, make-whole remedy is
appropriate.  This would include returning the Grievants to Castle Park Elementary
School.  However, merely making such an order, would be almost an exercise in
futility since the Superintendent could then call the Grievants into his office
immediately upon the receipt of this award and, one by one, tell them why he had
made the decision to administratively transfer them, leaving the Grievants back at
square one.

The Arbitrator feels that a breathing spell, which would have the effect of
dissipating the violation of the Collective Bargaining Agreement, would be
appropriate.

V.
AWARD

The Grievances are sustained.  Each Grievant is entitled to reinstatement to the
positions which they held at Castle Park School prior to their transfer commencing
with the next semester.  Further, the provisions of 33.5 may not be invoked by the
Superintendent until the end of the next school year following each Grievant’s
reinstatement at Castle Park.

The Arbitrator leaves to the parties the question of monetary loss, if any, sustained
by the Grievants by reason of the violation of 33.5.  If the parties are unable to
reach agreement, the Arbitrator retains jurisdiction to conduct further hearings, to
hear evidence of such claimed monetary losses and to make an award thereon.

Dated this twenty-first day of December, 2005


________________________________________
Lionel Richman, Arbitrator
)    Case No. C.S.M.C.S.
)    ARB-04-2661
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CALIFORNIA STATE MEDIATION AND CONCILIATION SERVICE


In the Matter of the Arbitration                                
Between:   
                
CHULA VISTA ELEMENTARY SCHOOL       
DISTRICT,       
Employer,                

and          
CHULA VISTA EDUCATORS,   
Union.              
          

_________________________________
The double-dealing of California Teachers Association (CTA) and Tim
O'Neill regarding teacher at Castle Park Elementary School is
mind-boggling.

In a
far more egregious violation of the contract AT THE VERY SAME
SCHOOL three years earlier, Tim O'Neill claimed that the superintendent
shouldn't have to meet with a teacher until AFTER THE TRANSFER HAD
BEEN COMPLETED.
The "Castle Park Five"
Decision
mauralarkins.com
SAN DIEGO EDUCATION
REPORT
Lawsuit Against Chula
Vista Educators
and former President
Gina Boyd 2007
CTA Lawyers
Ann Smith
Fern Steiner
Bernhard
Rohrbacher
Emily Shieh
Beverly Tucker
Michael D. Hersh
Michael D. Four
Glenn Rothner
PTA Embezzlement
Embezzlement cover-up
Castle Park Elem. PTA
Principal Ollie Matos
Principal Carlos Ulloa
Castle Park Elementary
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