By Erica Shelley Nelson and Jordan L. Jones
In Spokane Sch. Dist. No. 81 v. Spokane Educ. Ass’n, the Washington Court of Appeals, Division Three held that a provisional elementary counselor was not eligible for arbitration under the collective-bargaining agreement (CBA).
The grievant was a provisional elementary counselor whose contract was not renewed. The grievant subsequently attempted to utilize the CBA-mandated grievance process. The Employer refused to participate in the grievance beyond step three arguing that provisional employees do not have a right to the full grievance process under the CBA. The school district subsequently sought and received an injunction to prevent the grievance.
The issue before the Washington Appeals Court therefore was “whether the grievance filed by the [U]nion on [the grievant’s] . . . behalf was arbitrable . . . under the CBA. The Union contended that (1) “the court erred in concluding that the grievance was not arbitrable, an asserted error of law” and (2) “the court did not properly balance the parties’ interests in entering an injunction, an abuse of discretion.”
The Washington Appeals Court noted that “while [caselaw favors] . . . arbitration, the cases [also] . . . respect any clear agreement by a [U]nion and an [E]mployer that certain types of grievances are not arbitrable.
‘(1) Although it is the court’s duty to determine whether the parties have agreed to arbitrate a particular dispute, the court cannot decide the merits of the controversy, but may determine only whether the grievant has made a claim which on its face is governed by the contract. (2) An order to arbitrate should not be denied unless it may be said with positive assurance the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage. (3) There is a strong presumption in favor of arbitrability; all questions upon which the parties disagree are presumed to be within the arbitration provisions unless negated expressly or by clear implication.’
The Washington Appeals Court found that the CBA specifically excluded provisional employees from certain steps of the grievance procedure, including arbitration.
Non renewal of provisional employees and matters relating to evaluation and placement of employees on probation shall be grievable though Step Three . . . . Following Step Three . . . non renewal . . . matters shall be governed and controlled by . . . statute.
In regards to the second argument that the trial court did not properly balance the parties’ interests in entering the injunction, the Washington Appeals Court noted that:
The showing required for issuance of a preliminary injunction is well settled: ‘[O]ne who seeks relief by temporary or permanent injunction must show (1) that he has a clear legal or equitable right, (2) that he has a well-grounded fear of immediate invasion of that right, and (3) that the acts complained of are either resulting in or will result in actual and substantial injury to him.
The Washington Appeals Court found that the trial court did not abuse its discretion by issuing the injunction.
I am not convinced the Appeals Court made the right decision here. It is fairly commonplace for employers to seek to exclude provisional or probationary employees from the grievance procedure in the CBA. However, if that “opt out” language is negotiated into the contract, then the language must specifically delineate the provisions of the contract that do not cover provisional or probationary employees. It is very possible that a provisional employee may be excluded from grieving violations of certain provisions of the contract while retaining the right to grieve other provisions. For example, in this case, the Union argued that the district violated the section on progressive discipline, which required the district to “make a reasonable attempt to counsel with the employee and to clarify job expectations.” The Appeals Court determined that this issue was part and parcel of the language barring provisional employees from grieving matters relating to “nonrenewal” and “evaluation and placement.” However, here, the Union was grieving the progressive discipline section, not the “nonrenewal” or “evaluation and placement” of the provisional employee. As a result, the Union should have been permitted to bring this issue to an arbitrator, as provisional employees were not specifically excluded from grieving violations of the progressive discipline section of the contract.
