Portland Ass'n of Teachers v. Portland School Dist. No. 1, Multnomah County, C-199-79

• Decision Date: 23 March 1981
• Docket Number: No. C-199-79,No. C-145-78,C-199-79,C-145-78
• Citation: 625 P.2d 1336,51 Or.App. 321
• Parties: , 113 L.R.R.M. (BNA) 2934 PORTLAND ASSOCIATION OF TEACHERS and Pat Dunlop, Petitioners-Cross-Respondents, v. PORTLAND SCHOOL DISTRICT NO. 1, MULTNOMAH COUNTY, Cross-Petitioner-Respondent, and Employment Relations Board, Respondent. PORTLAND ASSOCIATION OF TEACHERS, Petitioner-Cross-Respondent, v. SCHOOL DISTRICT NO. 1, MULTNOMAH COUNTY, Cross-Petitioner-Respondent, and Employment Relations Board, Respondent. ; CA 18395; CA 18405,; CA 18396; CA 18406.
• Court: Oregon Court of Appeals

Page 1336

625 P.2d 1336

51 Or.App. 321, 113 L.R.R.M. (BNA) 2934

PORTLAND ASSOCIATION OF TEACHERS and Pat Dunlop, Petitioners-Cross-Respondents, v. PORTLAND SCHOOL DISTRICT NO. 1, MULTNOMAH COUNTY,

Cross-Petitioner-Respondent,

and

Employment Relations Board, Respondent.

PORTLAND ASSOCIATION OF TEACHERS, Petitioner-Cross-Respondent, v. SCHOOL DISTRICT NO. 1, MULTNOMAH COUNTY, Cross-Petitioner-Respondent, and Employment Relations Board, Respondent.

No. C-199-79; CA 18395; CA 18405, No. C-145-78; CA 18396; CA 18406.

Court of Appeals of Oregon.

Argued and Submitted Jan. 28, 1981.

Decided March 23, 1981.

Robert D. Durham, Eugene, argued the cause for petitioners-cross-respondents. With him on the briefs were Kulongoski, Heid, Durham & Drummonds, and Jennifer Friesen, Eugene.

Mark C. McClanahan, Portland, argued the cause for cross-petitioner-respondent. With him on the briefs were Miller, Nash, Yerke, Wiener & Hager, and David W. Anderson, Portland.

No appearance for respondent Employment Relations Board.

Before GILLETTE, P. J., and ROBERTS and YOUNG, JJ.

ROBERTS, Judge.

In these consolidated cases petitioner Portland Association of Teachers (PAT) and individual petitioner Dunlop seek judicial review of two orders issued in unfair labor practice complaints before the Employment Relations Board (ERB). ¹ In both cases ERB ordered respondent school district to arbitrate grievances relating to teacher evaluations allegedly affected by "arbitrariness or capriciousness," but refused to order arbitration of grievances relating to teacher evaluations affected by an alleged procedural error. PAT asks us to remand to ERB for entry of an order compelling the school district to arbitrate the procedural claims. The school district filed a cross-petition seeking to have the unfair labor practice complaints dismissed. We affirm ERB's order.

The 1977-1979 collective bargaining agreement between the parties provides for "in-district" grievance of most employe complaints, with arbitration authorized only for limited types of complaints. Article 6 of the agreement defines a grievance as:

" * * * a contention by an aggrieved that there has been a violation, misinterpretation, or erroneous application of School District policies (including this Agreement) and/or administrative rules and regulations."

The procedure in the agreement for in-district processing of grievances entails three successive "levels" for unresolved grievances. Level I is the presentation to the immediate supervisor, Level II is the presentation to the Area Superintendent, and Level III is the presentation to the Superintendent and the School Board. Arbitration is reserved for certain grievances unresolved after a level III determination:

"LEVEL IV ARBITRATION

"Insofar as the Board decision on a grievance at Level III is alleged by the aggrieved with written concurrence of the Association to be a violation, misinterpretation or erroneous application of a specific provision of this Agreement and does not involve either (1) dismissal, demotion, retention, or reemployment of personnel, (2) correctness of evaluation or (3) claims of discrimination by reason of age, race, (etc.) * * *, the aggrieved with written concurrence of the Association or the Board may require that such decision be submitted for arbitration."

Arbitration is final and binding only:

"Insofar as the decision (1) involves only the matters subject to arbitration as described hereinabove in this level, (and) (2) is in accordance with the legal meaning of this Agreement."

Article 8 of the agreement is the section dealing with teacher evaluations. Section 8D states the procedure for filing a grievance procedure for evaluations:

"In the event that the teacher feels that the evaluation was incomplete or unjust, he/she may put his/her objections in writing and have them attached to the evaluation report, * * *. In the event the teacher desires to have further relief from such report he/she shall utilize the grievance procedures described elsewhere in this Agreement within ten (10) days of such report. Grounds for modification or withdrawal shall be that the portion of the evaluation grieved was materially produced or affected by (1) a procedural error of failing to follow the procedures provided in this Agreement, or (2) arbitrariness or capriciousness, * * *. A grievance proceeding will not result in a requirement that the evaluation be modified or withdrawn if all that is shown is a good faith difference in professional opinion as to its correctness."

In the grievances at issue in this proceeding, PAT claims the school district committed "procedural error of failing to follow the procedures provided in (the) Agreement" by violating the following portion of Section 8A, setting standards for teacher evaluation:

"Criteria, rational and procedural steps in the evaluation process may include (1) the Standards of Competent and Ethical Professional Performance for Oregon Certificated Educators as developed by the Teachers Standards and Practices Commission and adopted by the Board of this District December 11, 1972, and (2) those set forth in the brochure District-wide Teacher Evaluation (revised 1974) as developed by the District Educators Council, or as amended by these respective bodies."

PAT contends that the procedures in the brochure entitled "District-Wide Teacher Evaluation," referred to by both parties as "the blue brochure," are, by this section of the agreement, required procedures on the part of the school district. PAT contends that the agreement is at least ambiguous on this point and that the union is therefore entitled to have an arbitrator to determine the arbitrability of its claim. Corvallis Sch. Dist. v. Corvallis Education Assn., 35 Or.App. 531, 581 P.2d 972 (1978).

In Corvallis the court cited with approval the standard enunciated by the U. S. Supreme Court in Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960):

" * * * An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage." 363 U.S. at 582-83, 80 S.Ct. at 1352-1353. 35 Or.App. at 535, 581 P.2d 972.

The school district, of course, contends the agreement is unambiguous, and that it is clear on its face that the district was not required to use the blue brochure standards, but that it may use them in adopting the formal written procedure which was to be distributed to teachers before evaluation.

This question is like many questions of statutory construction and boils down to consideration of the recurrent "may/shall" distinction. PAT maintains "may" can be directive as well as permissive, but cites only Webster's New Collegiate Dictionary and bargaining history between the parties in support of its position. The school district, on the other hand, cites the full text of Section 8A of the agreement to show that the parties used the imperative "shall" five times and the word "may" only twice in that section. The district argues this shows the word "may" did not mean the same thing as the word "shall" in that context. ² ERB found it clear from the...