Belmond-Klemme Education Associate and Jodi Turner v. Belmond-Klemme Community School District ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 21-0530
Filed January 27, 2022
BELMOND-KLEMME COMMUNITY SCHOOL DISTRICT,
Applicant-Appellee,
vs.
BELMOND-KLEMME EDUCATION ASSOCIATION and JODI TURNER,
Respondents-Appellants,
________________________________________________________________
Appeal from the Iowa District Court for Wright County, James M. Drew,
Judge.
Belmond-Klemme Education Association and Jodi Turner appeal a district
court order vacating an arbitration award. AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED.
Becky S. Knutson of Dentons Davis Brown P.C., Des Moines, for
appellants.
Ann M. Smisek and Elizabeth A. Heffernan of Ahlers & Cooney, P.C., Des
Moines, for appellee.
Heard by Vaitheswaran, P.J., and Tabor and Mullins, JJ., but decided by
Vaitheswaran, P.J., Tabor, J., and Mullins, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022).
2
MULLINS, Senior Judge.
Belmond-Klemme Education Association (Association) and Jodi Turner
appeal an adverse district court ruling on Belmond-Klemme Community School
District’s (District) application to vacate or modify an arbitration award relating to a
grievance and the Association and Turner’s motion for summary judgment on the
application. The Association and Turner generally argue the court “erred in
substituting its judgment on the arbitrability of the grievance for the judgment of the
arbitrator.”
I. Background
Turner is a teacher at the District and a member of the Association, which
is an “employee organization” within the meaning of Iowa Code section 20.3(4)
(2019). Both the Iowa teaching standards under Iowa Code section 284.3 and the
standards of professional conduct and ethics under Iowa Administrative Code
chapter 282, rule 25.3 apply to Turner. In January 2017, the District and
Association ratified a collective bargaining agreement (CBA), which would be
effective from July 1, 2017 through June 30, 2019.
On June 5, 2019, during the contract period, secondary principal Greg
Fisher presented Turner with a letter regarding his “findings and conclusions
related to [his] interview of [Turner] regarding [her] job performance with the school
district and an incident that occurred in the high school library and hallways . . . on
Monday, May 20, 2019.” The letter noted Fisher and Turner met on “May 31, 2019
to discuss allegations against [Turner] regarding alleged violations of school board
policy, inappropriate interaction with students, and insufficient supervision of
students entrusted in [her] care.” Turner was alleged to have left her homeroom
3
students unsupervised in her classroom to use the copying machine in the library,
where she scolded two students about low grades, at least one in front of others,
contrary to confidentiality surrounding grades and academic progress. After
leaving the library, Turner had separate conversations with two other teachers, one
of which became “loud and heated,” all while her students remained unsupervised
in her classroom.
Based on the foregoing chain of events and others, Fisher found Turner’s
performance to be unsatisfactory in four areas: (1) inappropriate and disrespectful
treatment of students,1 (2) failure to supervise students,2 (3) insubordination,3 and
(4) misuse of a leadership role.4 As to areas one and two, Fisher found Turner’s
performance in violation of teaching standard six involving “competence in
classroom management,” as well as professional conduct and ethics standard six
involving professionalism as to area one and protecting health and safety of
students or creating conditions harmful to learning as to area two. See Iowa Code
§ 284.3(1)(f); Iowa Admin. Code r. 282-25.3(6)(c), (d). As to area three, Fisher
found Turner’s performance in violation of teaching standard eight involving
fulfillment of “professional responsibilities established by the school district,” as
1 This finding related to the foregoing exchange with one or more students in the
library, an incident in March 2018 allegedly involving Turner escalating an
exchange with a student and making inappropriate and unnecessary comments,
and an incident in March 2019 involving Turner allegedly berating a student “in a
loud and angry manner.”
2 This finding related to multiple instances of Turner leaving her students
unattended.
3 This finding related to ignoring repeated warnings and disregarding student
welfare procedures.
4 This finding related to the “loud and heated” exchange between Turner and
another teacher on May 20, 2019.
4
well as professional conduct and ethics standard eight involving incompetence.
See Iowa Code § 284.3(1)(h); Iowa Admin. Code r. 282-25.3(8). As to the fourth
area, Fisher did not identify what teaching or professional conduct and ethic
standard Turner violated.
As corrective action, Fisher notified Turner she would be placed “on the
‘Intensive Assistance’ track of the Iowa teacher evaluation system for the 2019–
2020 school year,” which would involve “the provision of organizational support
and technical assistance” aimed at remedying the deficiencies. Turner’s
performance would be under review for the school year, and a decision would be
rendered in January 2020 as to Turner’s compliance with teaching standards and
extension of Turner’s teaching contract. The letter made various
recommendations to attain compliance and advised the letter was a written
disciplinary warning that would be placed in Turner’s personnel file.
On July 12, 2019, the Association’s representative filed a grievance on
Turner’s behalf, alleging a violation of article 13 of the CBA and requesting the
following relief: “The District will remove the June 5th, 2019 letter from Greg Fisher
to Jodi Turner from her personnel file or modify the letter to remove any
inaccurate/non-factual statements and references.” In substance, this challenged
the placement of the letter in Turner’s personnel file and her placement on
intensive assistance without a prior evaluation, but it did not specifically request
that she be evaluated. On July 29, Fisher responded that the District waived the
second step (principal) and third step (superintendent) of the grievance procedure
and consented to the Association proceeding “immediately to the fourth step of
impartial, binding arbitration.”
5
The parties selected an arbitrator, and the matter proceeded to an
arbitration hearing.5 According to the arbitration ruling, the parties stipulated to the
following issues to be decided: whether the grievance was arbitrable and, if so,
whether the District violated the CBA and what would be an appropriate remedy.
Apparently, the Association argued the placement of Turner on intensive
assistance was premature because it must be preceded by a proper and timely
performance review, which Turner had not received. The District agreed Turner
had not received a performance review since 2015 and that shortcoming violated
article 13 of the CBA, specifically section 13.06(C), requiring that Turner be
evaluated every three years. However, the District argued “intensive assistance
does not have to be premised on a timely performance review” but is instead “an
independent form of assessment, separate from the career teacher evaluation
process.” While the District agreed section 13.10 of the CBA allowed Turner to
grieve an evaluation under article 13, it argued said provision and Iowa Code
section 284.8(2) precluded her ability to grieve placement on intensive assistance.
According to the arbitrator, “[t]his is a point the Association does not contest.” So,
because intensive assistance is not grievable, the District argued it could not be
ordered to remove the June 5 letter from Turner’s file.
5 The hearing was not reported. Based on the arbitrator’s ensuing ruling, she was
apparently presented with evidence that was not presented to the district court and
is therefore not included in the record on appeal, as the ruling contains factual
details that are not supported by matters in the district court record, other than the
arbitration decision itself. The only items that were presented to the district court—
the arbitration decision; the CBA; the June 5, 2019 letter to Turner; and grievance
documents—came before the district court as attachments to various filings in the
district court. And while the parties apparently submitted post-hearing briefs to the
arbitrator, they are not included in the record in this appeal.
6
Ultimately, the arbitrator found the CBA and applicable statutes
demonstrate “that the contractually-established assessment system that applies to
Turner requires three-year evaluations, permits intensive assistance, and
assumes that the decision to put a teacher on intensive assistance will be
preceded by a timely, properly performed evaluation.” The arbitrator reasoned
“this outcome turns on the conclusion that the system simply cannot work fairly in
any other way.” The arbitrator ordered the District to remove the June 5 letter from
Turner’s personnel file and “conduct a fair and objective evaluation of Turner’s job
performance.”
In September 2020, the District filed an application to vacate or modify the
arbitration award in the district court, asserting Turner’s placement on intensive
assistance and placement of the letter in her personnel file were not grievable and
the arbitrator therefore exceeded her power.6 See Iowa Code § 679A.12(1)(c).
The court set a hearing to receive oral arguments in February 2021. Prior to
hearing, the Association and Turner filed a motion for summary judgment. That
motion was followed by pre-hearing briefs from the parties.
Following an unreported hearing, the court entered a ruling vacating the
arbitration award in its entirety. The court concluded the arbitrator based her
decision on “her own vision of justice” as opposed to the express terms of the CBA,
the plain language of section 13.10 of the CBA and Iowa Code section 284.8(2)
clearly render intensive assistance and its implementation not grievable, the issue
was not arbitrable, and the arbitrator therefore exceeded her authority.
6The District did not specifically request the order that it conduct an evaluation of
Turner be vacated.
7
The Association and Turner appeal.
II. Standard of Review
“[W]e review the appeal of an arbitration award ‘in the manner and to the
same extent as from orders or judgments in a civil action.’” Ales v. Anderson,
Gabelmann, Lower & Whitlow, P.C., 728 N.W.2d 832, 838–39 (Iowa 2007)
(quoting Iowa Code § 679A.17(2)). “Accordingly, our review is for correction of
errors at law because this is an appeal from a court order in a civil law suit.” Id.
at 839. But our review is limited because applying “a broad scope of judicial
review” that would “allow courts to ‘second guess’ an arbitrator . . . would nullify
the very advantage of arbitration.” Id. (quoting $99 Down Payment, Inc. v. Garard,
592 N.W.2d 691, 694 (Iowa 1999)). Unless the award “violate[s] one of the
provisions of section 679A.12(1), we will not correct errors of fact or law.” Id.III. Analysis
On appeal, the Association and Turner argue the district court “erred in
substituting its judgment on the arbitrability of the grievance for the judgment of the
arbitrator.” The Association and Turner essentially argue arbitration is favored
and, given “the very limited review of arbitration decisions,” the district court
exceeded its bounds and “should not have substituted its analysis of the CBA and
law for that of the arbitrator.”7 They also argue the CBA and Iowa Code chapter
284 do not preclude arbitration of the grievance at issue.
7 While the Association and Turner seem to argue the District consented to
arbitration, they also agree that the issue of whether the grievance was arbitrable
was an issue before the arbitrator. So we are somewhat puzzled about the claim
that “[t]he record contains no reservation of the right to contest arbitrability in any
manner by either party.” The District disputed the arbitrability of the grievance both
before the arbitrator and district court. And the parties stipulated to the arbitrator
8
Following an arbitration award, a party may apply to the district court to
confirm, vacate, modify, or correct the award. Iowa Code §§ 679A.11–.13. Iowa
Code section 679A.12(1)(c) provides, “[u]pon application of a party, the district
court shall vacate an award if” the “arbitrators exceeded their powers.” (Emphasis
added.) “The arbitrator’s power and authority is defined by any arbitration
agreement between the parties and Iowa Code [chapter] 679A.” DLR Grp. Inc. v.
Oskaloosa Cmty. Sch. Dist., No. 15-0356, 2016 WL 531824, at *3 (Iowa Ct. App.
Feb. 10, 2016); accord Humphreys v. Joe Johnston Law Firm, P.C., 491 N.W.2d
513, 516 (Iowa 1992).
In a nutshell, the arbitrator concluded implementation of intensive
assistance could not occur unless predicated on a contractual evaluation, and the
letter was based on a contractually deficient evaluation so it must be removed from
Turner’s personnel file, with the supposed effect of vacating Turner’s placement
on intensive assistance.8 Defending the arbitrator’s decision, the Association and
Turner claim the District violated the CBA’s evaluation procedure by failing to
timely evaluate Turner’s performance, which is not disputed, but it nevertheless
proceeded to issue her a letter about her performance, noting deficiencies and
considering the threshold question of arbitrability of the dispute. To the extent the
Association and Turner argue the consideration of arbitrability was limited to the
arbitrator and not determinable by the district court, following the award and
application to vacate, the district court’s role in answering this threshold question
was to determine “whether the parties agreed to settle the disputed issue by
arbitration,” which involved “determining the arbitrability of the dispute and the
scope of the arbitrator’s authority.” Postville Cmty. Sch. Dist. v. Billmeyer, 548
N.W.2d 558, 560 (Iowa 1996).
8 While the arbitrator’s “award” did not expressly vacate the placement of Turner
on intensive assistance, the parties seem to agree that the removal of the letter
from her personnel file leads to that result.
9
“indicating that she would be placed on ‘intensive assistance’ leading to potential
disciplinary action, although not describing what the intensive assistance would
be.”
Put simply, the issue before the district court was, and on appeal is, whether
the parties agreed to binding arbitration on the issues presented, not whether the
judiciary agrees with the arbitrator’s award on the merits. $99 Down Payment, 592
N.W.2d at 694. “[T]he function of the courts is strictly limited to a determination of
the arbitrator’s authority and existence of an arbitrable dispute. Ordinarily courts
may not inquire into the merits of the decision itself.” Cedar Rapids Ass’n of Fire
Fighters, Local 11 v. City of Cedar Rapids, 574 N.W.2d 313, 315–16 (Iowa 1998)
(quoting Teamsters Local 394 v. Associated Grocers of Iowa Coop., Inc., 263
N.W.2d 755, 757 (Iowa 1978)).
We proceed to the relevant issue in this appeal, whether the parties agreed
to arbitrate the issues presented—i.e., whether the issues were arbitrable.9 See
id. at 316. This determination is guided by the relevant provisions of the CBA and
Iowa Code chapter 284, and we answer the questions as a matter of law based on
interpretation and construction. Postville, 548 N.W.2d at 560. We turn to the
relevant provisions of the CBA and chapter 284.
9 If arbitrable, the next consideration would be “whether the arbitrator’s award ‘drew
its essence’ from the [CBA].” Cedar Rapids Ass’n of Fire Fighters, 574 N.W.2d at
316 (quoting Sergeant Bluff-Luton Educ. Ass’n v. Sergeant Bluff-Luton Cmty. Sch.
Dist., 282 N.W.2d 144, 148 (Iowa 1979)). That consideration is not relevant to this
appeal.
10
A. The CBA
The CBA includes provisions concerning “grievance procedure” and
“evaluation procedure,” articles 4 and 13, respectively.
1. Article 4
A grievance only encompasses “a complaint by an employee [or] a group
of employees of the Association that there has been an alleged violation,
misinterpretation, or misapplication of any of the specific provisions of” the CBA.
Under section 4.03, grievances progress through a four-step process until
resolution: (1) attempts at informal resolution; (2) filing of a written grievance,
discussion with the principal, and a decision by the principal; (3) submission of the
grievance to the superintendent and answer; and (4) impartial, binding arbitration.
At the fourth step, “[t]he arbitrator . . . shall not amend, modify, nullify, ignore, or
add to the provisions of” the CBA, and his or her “authority shall be strictly limited
to deciding only the issue or issues presented” and “must be based solely and only
upon his/her interpretation of the meaning or application of the express relevant
language of” the CBA.
2. Article 13
The parties agree that, as a career teacher, Turner was to be evaluated
once every three years under section 13.06(C). Here, it is undisputed that the
District did not follow that rule as to Turner. Normally, section 13.03 requires,
“During each school year involving the performance review, the evaluator and
employee shall mutually agree on dates for pre-observation, if necessary, formal
observation, and post observation conferences.” Sections 13.04 and 13.05
describe the typical scenario for evaluation, the assessment, and timeline for “the
11
teacher and evaluator [to] meet to identify the teacher’s current status in meeting
the eight (8) Iowa Teaching Standards and to discuss any additional information
or artifacts that are necessary to document success in meeting the Iowa Teaching
Standards.” Under section 13.06(D), if an evaluation results in a determination
“that the teacher has not met any particular one of the eight standards or District
Standards, then the evaluator and the teacher shall jointly determine what
information the evaluator needs in order to indicate the teacher meets all eight (8)
standards,” and “[t]he teacher may request another observation or present the
evaluator with data relative to the standard that is in question.” Section 13.07
requires the “principal or appropriate supervisor [to] provide the employee with
assistance designed to improve the quality of instruction and to eliminate
difficulties noted in any evaluation,” and “[a]ny assistance shall be noted in writing,
and an initialed copy shall be retained by the appropriate supervisor and the
employee.” Section 13.08 mandates that “[a]ll observations of an employee shall
be considered with full knowledge of the employee and solely for the purpose of
evaluation toward the improvement of instructions, as a means of assuring the
most competent educational techniques.” Section 13.10, concerning the “right to
grieve,” provides:
A non-probationary employee, who has been evaluated, has
the right to grieve said evaluation as unfair, unjust, and/or inaccurate,
the total evaluation is rated as unsatisfactory or not meeting the
District’s standards. . . . Tier 3 (Intensive Assistance) is not
grievable, nor can a teacher file a grievance when statutorily
precluded.
(Emphasis added.) Notably, the final clause of this provision obviously
incorporates statutory preclusions on grievances imposed by the Iowa Code.
12
B. Iowa Code chapter 284
Iowa Code chapter 284 encompasses promotion of high student
achievement accomplished by “[p]rofessional development designed to directly
support best teaching practices” and “[e]valuation of teachers against Iowa
teaching standards.” Iowa Code § 284.1(2)–(3). Iowa Code section 284.8
concerns “performance review requirements for teachers.” Section 284.8(1)
provides, in relevant part:
A school district shall provide for an annual review of each
teacher’s performance for purposes of assisting teachers in making
continuous improvement, documenting continued competence in the
Iowa teaching standards, identifying teachers in need of
improvement, or to determine whether the teacher’s practice meets
school district expectations for career advancement. The review
shall include, at minimum, classroom observation of the teacher, the
teacher’s progress, and implementation of the teacher’s individual
professional development plan, subject to the level of resources
provided to implement the plan; and shall include supporting
documentation from parents, students, and other teachers.
The term “performance review” is defined as “a summative evaluation of a teacher
other than a beginning teacher that is used to determine whether the teacher’s
practice meets school district expectations and the Iowa teaching standards in
accordance with section 284.8.” Id. § 284.2(8). Section 284.8(2) provides:
If a supervisor or an evaluator determines, at any time, as a
result of a teacher’s performance that the teacher is not meeting
district expectations under the Iowa teaching standards specified in
section 284.3, subsection 1, paragraphs “a” through “h”, and the
criteria for the Iowa teaching standards developed by the department
in accordance with section 256.9, subsection 42, the evaluator shall,
at the direction of the teacher’s supervisor, recommend to the district
that the teacher participate in an intensive assistance program. The
intensive assistance program and its implementation are not subject
to negotiation and grievance procedures established pursuant to
chapter 20. All school districts shall be prepared to offer an intensive
assistance program.
13
(Emphasis added.) Chapter 284 defines “intensive assistance” as “the provision
of organizational support and technical assistance to teachers, other than
beginning teachers, for the remediation of identified teaching and classroom
management concerns for a period not to exceed twelve months.” Id. § 284.2(6).
C. Discussion
Sections 13.01 through 13.08 of the CBA and Iowa Code section 284.8(1)
address the requirements of a formal evaluation or “performance review.” Under
section 4.01 of the CBA, employees may grieve based on “an alleged violation,
misinterpretation, or misapplication of any of the specific provisions of” the CBA.
That said, section 13.10 of the CBA limits the right to grieve an evaluation under
article 13 to “[a] non-probationary employee, who has been evaluated.” It is
undisputed that Turner had not been the subject of a recent formal evaluation
under article 13 of the CBA or Iowa Code section 284.8(1). Because there was no
evaluation within the meaning of article 13, there was nothing to grieve, except for
the District’s failure to conduct an evaluation. So that brings us back to section
4.01, which authorizes an employee to grieve a violation of the CBA, such as failing
to evaluate a career teacher, like Turner, at least once every three years, as
required by section 13.06(C). Turner could grieve the district’s failure to comply
with the provisions of article 13. But for requested relief in her grievance, she only
challenged the placement of the letter in her file and requested its removal or
modification. She also did not grieve the corrective action of the letter, Fisher’s
placement of her “on the ‘Intensive Assistance’ track of the Iowa teacher evaluation
system for the 2019–2020 school year.” While section 13.07 requires a teacher
be provided “with assistance designed to improve the quality of instruction to
14
eliminate difficulties noted in any evaluation” and “[a]ny assistance shall be noted
in writing, and an initialed copy” retained by the supervisor or employee, the CBA
is silent on what may go into a personnel file 10 and the procedural process for
placing a teacher on intensive assistance. The following sentence is the only time
the CBA mentions intensive assistance: “Tier 3 (Intensive Assistance) is not
grievable, nor can a teacher file a grievance when statutorily precluded.”
As noted, the Association and Turner claim a formal evaluation under article
13 is a precursor to placement on intensive assistance. The CBA certainly does
not require that, which makes sense because, if it did, then the would-be
authorization to grieve a violation of that requirement in section 4.01 would be
inconsistent with the prohibition against grieving intensive assistance contained in
section 13.10. And the CBA expressly prohibited the arbitrator from amending,
modifying, nullifying, or adding to the provisions of the CBA. Turning to the Iowa
Code, section 284.8(1) provides for an annual review of a teacher’s performance
and minimum requirements, but section 284.8(2) and (3) mandate 11 a teacher’s
participation in an intensive assistance program upon a determination by “a
supervisor or an evaluator,” “at any time, as a result of a teacher’s performance
that the teacher is not meeting district expectations under the Iowa teaching
standards . . . and the criteria for the Iowa teaching standard developed by the
10 Section 13.09, concerning “personnel file,” only concerns an employee’s access
to and reproduction of the file and the requirement that an employee be notified in
writing of “[a]ny entry directed toward an employee which is placed in his/her
personnel file.”
11 See Iowa Code § 284.8(3) (“A teacher who is not meeting the applicable
standards and criteria based on a determination made pursuant to subsection 2
shall participate in an intensive assistance program.” (emphasis added)).
15
department.” (Emphasis added.) The statute does not require implementation of
intensive assistance occur “at any time” after an appropriate evaluation, and “at
any time,” by itself, is not nebulous—it encompasses before, during, or after an
evaluation. As noted, the CBA itself prohibits the grievability of a matter when
precluded by statute, and “[t]he intensive assistance program and its
implementation are not subject to negotiation and grievance procedures
established pursuant to chapter 20.” Iowa Code § 284.8(2); see id. § 20.18(1)
(“Negotiated procedures may provide for binding arbitration of public employee
and employee organization grievances over the interpretation and application of
existing agreements.”). The overarching theme of the claims by the Association
and Turner is that the district court applied an inappropriate standard of review and
exceeded its bounds by deciding the issue of arbitrability anew. As noted above,
the district court’s role included determining “whether the parties agreed to settle
the disputed issue by arbitration,” which involves “determining the arbitrability of
the dispute and the scope of the arbitrator’s authority.” Postville, 548 N.W.2d at
560. That is what the district court did; it examined the CBA to assess whether the
parties agreed to settle the issues raised by arbitration and, thus, whether deciding
the issues was within the scope of the arbitrator’s authority.
At oral argument the Association and Turner essentially argued the June 9
letter was an evaluation and the letter was therefore grievable as a violation of
article 13 of the CBA.12 The District argued intensive assistance is an independent
12 The Association and Turner agreed in oral argument that Turner’s placement on
intensive assistance was not mentioned in the grievance and the intensive
assistance plan was not grieved.
16
form of assessment separate from the evaluation process and is not grievable as
an evaluation would be. The Iowa Code provides in detail the steps and
requirements of what an evaluation is and how one is to be conducted. See Iowa
Code § 284.8(1). The CBA likewise carefully outlines the evaluation procedure
and schedule. The terms of neither require an evaluation prior to imposition of an
intensive assistance plan. Our review of the letter discloses it did not comply with
or attempt to comply with the CBA or statutory requirements for teacher
evaluations. Consequently, it was not an evaluation, but was instead a preliminary
notification of implementation of intensive assistance that provided the rationale
therefore, which is not a grievable disciplinary instrument.
Our review of the record results in the following conclusions. There was no
evaluation in accordance with article 13 for Turner to grieve under section 13.10
as unfair, unjust, or inaccurate. However, she could grieve the District’s failure to
conduct a timely and proper evaluation according to the terms of article 13. The
District agreed it should be ordered to conduct a contractually proper evaluation
based on its failure to timely evaluate Turner under the terms of the CBA. Nothing
in the CBA prohibited the District from placing Turner on intensive assistance prior
to a formal evaluation or placing the letter implementing intensive assistance in her
personnel file, and there is no claim the CBA was misinterpreted or misapplied by
the District on this point, so section 4.01 did not authorize a grievance.
At the end of the day, the parties contractually agreed to arbitration on the
issue of the district’s failure to timely provide a contractual evaluation, but the CBA
prohibited the grievability and, thus, arbitrability of the implementation of intensive
assistance. The June 9 letter was an instrument of the implementation of intensive
17
assistance, and the CBA provided no basis for grieving its placement in Turner’s
personnel file. In summary, the District’s failure to timely evaluate Turner was
grievable and arbitrable, but her placement on intensive assistance and the
placement of the letter in her personnel file were not. As such, the arbitrator
exceeded her powers in granting relief regarding the placement of the letter in
Turner’s file and implementation of intensive assistance, and the district court did
not err in vacating those portions of the award. But we are left with one hiccup—
the district court vacated the arbitrator’s award in its entirety, including the
arbitrator’s requirement that the District conduct an evaluation of Turner. The
District did not challenge that portion of the award in its application to vacate, and
the parties’ agreement that that issue was both grievable and arbitrable was
present both before the district court and on appeal. On our review, the arbitrator’s
requirement that the District provide a contractual evaluation should therefore
stand, but the remainder of the award was properly vacated by the district court.
As such, the district court order is affirmed in part, reversed in part, and remanded
for entry of an order reinstating the requirement that the District conduct a fair and
impartial performance review of Turner.13
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
13The effectiveness of the CBA ended on June 30, 2019, prior to entry of the
arbitration decision. Any evaluation resulting from this opinion should be
conducted in accordance with currently prevailing contractual and statutory
requirements.