Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS105125, Gregory W. Alarcon, Judge. Affirmed.
Law Offices of Eric Bathen, Eric Bathen and Marcia P. Brady for Plaintiff and Appellant.
Schwartz, Steinsapir, Dohrmann & Sommers, Amanda R. Canning and Michael R. Feinberg for Defendants and Respondents.
WILLHITE, J.
INTRODUCTION
The Bellflower Unified School District (the District) appeals from a judgment confirming an arbitration award in favor of the Bellflower Educational Association and the California Teachers Association (collectively referred to herein as the Association). The District contends that the arbitrator exceeded his authority because: (1) compliance with the award would require the District to violate Education Code sections 44663 and 44664; (2) the award grants a remedy not authorized by the terms of the parties’ agreement and disregards a provision in the agreement that prohibited the arbitrator from altering or adding to the terms of the agreement; and (3) the arbitrator refused to hear evidence material to the controversy, namely, evidence of the District’s past practices in performing evaluations. (Code Civ. Proc., § 1286.2, subd. (a)(4).) We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Parties’ Collective Bargaining Agreement
The District and the Association are parties to a collective bargaining agreement (the Agreement) which governs the terms and conditions of employment of teachers and other certificated employees of the District. Article V of the Agreement sets forth detailed grievance procedures, defining a “grievance” as “an allegation by one or more unit member(s) or the Association that the District has violated, misinterpreted or misapplied a provision of this Agreement.” Grievances which are not settled by means of an informal conference, followed by consideration by an appropriate administrator and then by an appeal to the District Superintendent, are required to be submitted to binding arbitration, if either the grievant and the Association desire to further contest the matter. In our Discussion section, below, we summarize the relevant procedures prescribed by the Agreement.
The Grievances, and their Submission to Arbitration
Four District employees, Joan Angulo, Jacqueline Kimmell, Keith Landhan, and Robert Trout, all of whom were tenured, filed grievances with the District with regard to the evaluations they received for the 2004-2005 school year. The grievants alleged that, in violation of the Agreement, the District did not engage in a “dialogue driven” evaluation process (see Art. IX(E)), or offer the teachers a timely opportunity to correct their perceived shortcomings before giving them negative evaluations. (Art. IX(F).) Each grievant had been observed during the school year, and was given by his or her principal a rating of “unsatisfactory” or “needs improvement” in one or more areas on the “summative evaluation” form. Each grievant had been given an improvement plan after receiving the final written, summative evaluation.
The parties eventually agreed to submit the grievances to arbitration, to decide the common issue whether the District violated the Agreement and, if so, to determine the appropriate remedy. The parties submitted written briefs, and the matter was heard by the arbitrator in early 2006. Each party presented witnesses: the four grievants testified for the Association, as did Linda Little (the Association’s bargaining team spokesperson) and Robin Devitt (the Association spokesperson); the District presented testimony by Assistant Superintendent Edward Shaw and District Superintendent Rick Kemppainen. The District’s witnesses described the procedure followed by the District in evaluating employees as follows: the evaluator conducts a pre-evaluation meeting prior to October 31, followed by a pre-observation conference, a formal observation, a post-observation conference, and a summative conference. A “summative evaluation” is then prepared, and must be transmitted to the evaluatee at least 30 days before the end of the school year. If the evaluator, upon completion of the summative evaluation, determines the evaluatee is less than satisfactory, he or she then drafts an improvement or remediation plan. The evaluator discusses the summative evaluation and improvement plan with the evaluatee at the summative evaluation conference, and the evaluatee is given the opportunity to offer input. Superintendent Kemppainen stated that it had been the District’s practice for over 20 years to initiate a remediation plan after the summative evaluation is completed.
The arbitrator issued a written award in favor of the Association, finding the clear language of Article IX of the Agreement to be controlling. The arbitrator concluded that “the District’s practice of deferring any remedial action that might be indicated until the Summative Evaluation at the end of the school year may be more convenient, but it does not satisfy the contractual requirements.” He continued: “Even the most cursory review of Article IX makes it apparent that the contract language contemplates evaluatees will be given the benefit of the prescribed detailed remedial procedures prior to the Summative Evaluation in an effort to correct whatever deficiencies might exist. That did not occur in the instant case. All four Grievants were confronted with a less than satisfactory Summative Evaluation at the end of the 2004-2005 school year without the benefit of remediation procedures. That constituted a violation of Article IX as to each of the four Grievants.”
The arbitrator ordered the District to expunge the 2004-2005 evaluations of the grievants, and thereafter to implement Article IX in accordance with the arbitrator’s ruling.
The Petition to Vacate the Arbitration Award, and the Cross-Petition to Confirm the Award
The District filed a petition to vacate the arbitration award pursuant to Code of Civil Procedure section 1286.2, subdivision (a)(4), on the basis that the arbitrator exceeded his authority as defined in the Agreement. The Association filed a cross petition to confirm the arbitration award.
The trial court confirmed the award. The court concluded that the arbitrator’s interpretation of the Agreement was clearly grounded in the terms of the Agreement, and was not based on matters outside of the arbitration agreement. The court noted that the District’s reliance on its past practice was properly given little weight by the arbitrator in light of the clear language of the Agreement. The court disagreed with the District’s assertion that giving employees time to cure a negative evaluation would prohibit the District from complying with state law regarding assessment of teachers. Finally, the court found that the expungement remedy was properly ordered by the arbitrator because, though not expressly provided for in the Agreement, it was grounded in the terms of the Agreement.
This timely appeal by the District followed.
DISCUSSION
I. JUDICIAL REVIEW OF THE ARBITRATION AWARD
We begin by defining the scope of our review. Generally, the merits of an arbitration award are not subject to judicial review. (Board of Education v. Round Valley Teachers Assn. (1996) 13 Cal.4th 269, 275 (Round Valley); Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 8-13 (Moncharsh).) However, there are exceptions.
In Round Valley, supra, as in the instant case, a school district and an association representing certificated employees entered into a collective bargaining agreement, and thereafter submitted to an arbitrator a dispute regarding whether the district violated the terms of the agreement. The arbitrator found that it had, and entered an award in favor of the association. The Supreme Court concluded that the arbitrator had exceeded his powers by enforcing provisions of the agreement which were in fact preempted by statute.
The court noted that under former Code of Civil Procedure section 1286.2, subdivision (d), (now subd. (a)(4)) “a court shall vacate the award if the arbitrator exceeded his or her powers in making the award and ‘the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.’” (Round Valley, supra, 13 Cal.4th at p. 275.) Although in light of the strong public policy in favor of private arbitration, generally the merits of an arbitration award are not subject to judicial review, there are limited and exceptional circumstances justifying judicial review “‘when a party claims illegality affects only a portion of the underlying contract. Such cases would include those in which granting finality to an arbitrator’s decision would be inconsistent with the protection of a party’s statutory rights.’” (Ibid., quoting Moncharsh, supra, 3 Cal.4th at p. 32, italics added by Round Valley court.)
The Round Valley court continued: “We further delineated ‘the standard for measuring the scope of the arbitrators’ authority’ in Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362 (Advanced Micro Devices). There we held that ‘the deference due an arbitrator’s decision on the merits of the controversy requires a court to refrain from substituting its judgment for the arbitrator’s in determining the contractual scope of those powers.’ (Id. at p. 372.) We noted, however, that the deference accorded an arbitrator’s decision under the arbitration agreement is not unrestricted, and indeed, is limited by the agreement to arbitrate. (Id. at p. 375.) We also recognized that courts retain the authority to overturn arbitration awards ‘as beyond the arbitrator’s powers, whether for an unauthorized remedy or [a] decision on an unsubmitted issue.’ (Ibid.)” (Round Valley, supra, 13 Cal.4th at p. 275.)
Here, the District argues that the arbitrator erred in interpreting the Agreement and, in any event, enforcement of the arbitrator’s award would require the District to violate the Education Code. In other words, according to the District, even if the arbitrator correctly interpreted the Agreement, the parties were not permitted to agree to procedures that conflict with the requirements of the Education Code. (See id. at p. 276.) The District further contends that the remedy chosen by the arbitrator was not authorized by the terms of the Agreement, and is contrary to statutory law. Under Round Valley, we may review the arbitrator’s award to determine whether it exceeded the arbitrator’s powers in the manner asserted by the District.
II. THE AWARD DOES NOT CONFLICT WITH THE EDUCATION CODE
The District contends that the arbitrator’s award, which implements the evaluation procedures of the Agreement, was beyond the arbitrator’s authority, because the Agreement itself violates Education Code sections 44663 and 44664. The District is mistaken.
A. Background
1. The Agreement
Article IX of the Agreement details the evaluation procedures the District must follow, such as the frequency of required evaluations, the type of information which must be conveyed to the employee (including when an employee’s performance appears to be unsatisfactory), and the deadlines by which portions of the evaluation process must be performed.
Pursuant to Article IX(B) of the Agreement, the District is required to evaluate permanent employees every other year. “However, the evaluator, if he/she believes the unit member is performing unsatisfactorily, may initiate the evaluation process at any time during the year upon written notification to the unit member. Such notice shall include the areas where improvement is needed.” (Italics added.) (Art. IX(B).) Employees are notified of the identity of their evaluator prior to the end of the second week of school. (Art. IX(C).) Article IX(D) sets forth seven criteria upon which the certificated employee’s competency is to be evaluated. The evaluator must review with the evaluatee the standards and assessment techniques by which the employee will be evaluated, prior to October 31. (Art. IX(E)(1).)
Evaluations must include at least one scheduled observation during the evaluation period, followed by a post-observation conference within 15 days; unscheduled observations may occur as needed. (Art. IX(C).) At post-observation conferences, “the evaluator should . . . make recommendations, and provide aid to improve ineffective performance.” Such conferences must be memorialized in writing, and the employee may submit a response. (Art. IX(E)(2).)
Article IX(E)(3) specifies that “The evaluation process described above is intended to be dialogue driven and based on ongoing discussions between the evaluator and evaluatee.” (Italics added.)
“If, at any time, the evaluator determines that improvement is required for the evaluatee to meet the established standards of performance, the evaluator shall,within a reasonable time,meet with the employee to discuss the problem and possible solutions.” (Italics added.) (Art. IX(F)(1).) At that meeting, the evaluator must provide to the evaluatee, in writing, a statement regarding the areas needing improvement, specific suggestions for improvement, appropriate resources (if any) available to assist with improvement, the evaluator’s role in providing assistance, the techniques and standards that will be used in assessing improvement, and the time schedule to be used for monitoring progress. (Art. IX(F)(1)(a-f).) “Remediation conferences should be held as necessary,” as requested by either the evaluatee or the evaluator, and a written record prepared of each conference, to which the evaluatee may respond.
The evaluation and assessment conducted pursuant to these procedures must be in writing, and a copy given to the evaluatee not later than 30 calendar days before the last day of school. (Art. IX(G)(1).) The evaluation is placed in the evaluatee’s personnel file. The evaluatee “shall have the right” to provide a written response, which must be placed in the evaluatee’s personnel file. The evaluatee and the evaluator must meet to discuss the evaluation before the last day of school. (Art. IX(G)(1), (5).)
As made evident by the following language, the Agreement requires that documented remedial efforts must precede preparation of a negative evaluation: “No negative evaluation shall be based upon materials, observations or the evaluator’s perceptions which were not the subject of timely remedial efforts in accordance with Section F, above.” (Italics and boldface added.) (Art. IX(G)(2).) “In the case of an evaluatee whose performance has been less than satisfactory, the written evaluation shall describe the areas of needed improvement, reference the applicable remediation documentation, and state what future remedial actions are to be taken involving the evaluator and evaluatee.” (Italics added.) (Art. IX(G)(4).)
If the evaluation notes unsatisfactory performance in any area, “an improvement plan will be developed and [the evaluatee] shall be required to participate in a formalized improvement program.” (Art. IX(G)(6).)
2. Relevant Statutes
a. Education Code Provisions
Education Code section 44663 provides in relevant part as follows: “(a) Evaluation and assessment made pursuant to this article shall be reduced to writing and a copy thereof shall be transmitted to the certificated employee not later than 30 days before the last schoolday scheduled on the school calendar adopted by the governing board for the school year in which the evaluation takes place. The certificated employee shall have the right to initiate a written reaction or response to the evaluation. This response shall become a permanent attachment to the employee’s personnel file. Before the last schoolday scheduled on the school calendar adopted by the governing board for the school year, a meeting shall be held between the certificated employee and the evaluator to discuss the evaluation.
In addition, Education Code section 44664 provides in relevant part: “(a) Evaluation and assessment of the performance of each certificated employee shall be made on a continuing basis as follows: [¶] . . . [¶] (2) At least every other year for personnel with permanent status. [¶] . . .
“(b) The evaluation shall include recommendations, if necessary, as to areas of improvement in the performance of the employee. If an employee is not performing his or her duties in a satisfactory manner according to the standards prescribed by the governing board, the employing authority shall notify the employee in writing of that fact and describe the unsatisfactory performance. The employing authority shall thereafter confer with the employee making specific recommendations as to areas of improvement in the employee’s performance and endeavor to assist the employee in his or her performance. If any permanent certificated employee has received an unsatisfactory evaluation, the employing authority shall annually evaluate the employee until the employee achieves a positive evaluation or is separated from the district.”
The language of section 44664, as set forth here, reflects minor changes made by legislative amendment in 2003 (Stats. 2003, ch. 566 § 2), after the Agreement (effective July 1, 2003 to June 30, 2006) was reached by the parties. The amendments are immaterial to the issues in this case.
b. Government Code Provisions
“Pursuant to the EERA [the Education Employment Relations Act, Gov. Code, § 3540 et seq.], employers ‘shall meet and negotiate with and only with representatives of employee organizations selected as exclusive representatives of appropriate units upon request with regard to matters within the scope of representation.’ (Gov. Code, § 3543.3.) The scope of this duty is limited to ‘matters relating to wages, hours of employment, and other terms and conditions of employment.’ (Gov. Code, § 3543.2, subd. (a).) The statute defines the phrase ‘terms and conditions of employment’ to ‘mean health and welfare benefits . . ., leave, transfer and reassignment policies, safety conditions of employment, class size, procedures to be used for the evaluation of employees, . . . [and] procedures for processing grievances pursuant’ to specific Government Code sections relating to an agreement to submit to binding arbitration . . . .’ (Gov. Code, § 3543.2, subd. (a).)” (Round Valley, supra, 13 Cal.4th at p. 280, italics added.) “Government Code section 3543.2, subdivision (a) also expressly provides that all matters not specifically enumerated in the EERA are reserved to the public school employer and may not be a subject of meeting and negotiation. In addition, Government Code section 3540 further mandates that the provisions of the Government Code relating to collective bargaining agreements shall not supersede the Education Code.” (Ibid.)
As relevant here, Government Code section 3543.2, subdivision (a) provides: “The scope of representation shall be limited to matters relating to wages, hours of employment, and other terms and conditions of employment. ‘Terms and conditions of employment’ mean . . . [inter alia] procedures to be used for the evaluation of employees. . . . All matters not specifically enumerated are reserved to the public school employer and may not be a subject of meeting and negotiating, provided that nothing herein may be construed to limit the right of the public school employer to consult with any employees or employee organization on any matter outside the scope of representation.” (Italics added.)
B. Analysis
Pursuant to Government Code section 3543.2, subdivision (a), the Association and the District were permitted to enter into a collective bargaining agreement that would “supplement . . . the Education Code in limited ‘matters relating to [specified] terms and conditions of employment.’” (Round Valley, supra, 13 Cal.4th at p. 283.) (See also Bellflower Education Assn. v. Bellflower Unified School Dist. (1991) 228 Cal.App.3d 805, 808-809.) Section 3543.2, subdivision (a) specifically includes within the definition of “terms and conditions of employment,” regarding which labor and management may negotiate, “procedures to be used for the evaluation of employees.”
The District contends on appeal that despite this statutory authority permitting the parties to negotiate certain terms and conditions of employment, the arbitrator interpreted the Agreement in a manner that would require the District to violate the Education Code if it were to comply with the award. The District asserts that implementation of the evaluation procedures defined by the arbitrator and the remedy of expunging the grievants’ evaluations violates applicable statutory law. As we shall explain, we disagree.
1. The Evaluation Procedures
The arbitrator’s award determined that Article IX of the Agreement required the District to engage in an evaluation process that is “dialogue driven,” and to provide evaluatees with detailed remedial procedures prior to completion of a negative summative evaluation. According to the District, the award “directly interferes with the District’s performance of its obligations under the Education Code to provide a written evaluation along with necessary recommendations for improvement to all certificated staff. Pursuant to Education Code sections 44663 and 44664, the District has the statutory obligation to give a negative written evaluation whenever the facts indicate that the employee’s performance needs improvement. This statutory obligation exists regardless of whether a remediation plan is in place prior to the evaluation.”
However, the award does not state that a formal remediation plan must be in place before any negative writing is prepared. Rather, the award specifies that if, at any time, the evaluator determines improvement is required, there must first be ongoing dialogue (which is reduced to writing), in the form of the remedial procedures set forth in Article IX(F) (specification of areas where improvement is needed, suggestions for improvement, identification of available resources, description of the evaluator’s role, notification of assessment measures to be used, specification of time schedule for monitoring progress, and use of remediation conferences), to give the employee an opportunity to correct whatever deficiencies might exist before the conclusive, “summative evaluation” is prepared. Indeed, the Agreement is entirely consistent with section 44664, subdivision (b), which provides: “If an employee is not performing his or her duties in a satisfactory manner . . ., the employing authority shall notify the employee in writing of that fact and describe the unsatisfactory performance. The employing authority shall thereafter confer with the employee making specific recommendations as to areas of improvement . . . and endeavor to assist the employee in his or her performance.”
Contrasting the present case to the situation in Round Valley is instructive. There, the district and the association entered into a collective bargaining agreement that contained provisions requiring the district to provide a hearing and a statement of reasons before the district could choose not to reelect a probationary teacher. The Supreme Court concluded that those provisions of the agreement directly conflicted with and were therefore superseded by section 44929.21, subdivision (b) of the Education Code, which “provides procedures that a school district must follow when notifying a probationary employee of its ‘decision to reelect or not reelect the employee for the next succeeding school year to the position,’ but otherwise allows districts to decline to reelect a probationary employee without cause.” (Round Valley, supra, 13 Cal.4th at p. 272.) Causes and procedures for nonreelection of probationary teachers are not subject to negotiation, because those matters are not among those enumerated in Government Code section 3543.2. (Id. at pp. 283-285.) Furthermore, the Supreme Court concluded that amendments to the Education Code clearly established the legislative intent that notice, a hearing, and a statement of reasons were not required with regard to nonreelection of probationary teachers. (Id. at p. 284.) While courts have held that some matters not explicitly enumerated in Government Code section 3543.2 may nonetheless be the subject of bargaining and negotiation (see id. at pp. 283-284), we deal here with “procedures to be used for the evaluation of employees,” which is specifically included within those matters that are subject to negotiation pursuant to section 3543.2. The District has not established that the Legislature intended to vest exclusive discretion in the District to determine the scope of procedural protections provided with regard to evaluation of employees. (See id. at p. 287.) Indeed, a Court of Appeal considering the propriety of an arbitrator’s award arising out of a dispute between the same parties before us (regarding the collective bargaining agreement applicable between 1987 and 1990), stated as follows: “Here, the subject of the grievance, violation of bargained-for evaluation procedures, is within the allowable scope of collective bargaining under the Government Code.” (Bellflower Education Assn. v. Bellflower Unified School Dist., supra, 228 Cal.App.3d at p. 812 (Bellflower).)
2. The Expungement Remedy
Relying on the Bellflower case, the District further contends that compliance with the arbitrator’s award would result in violation of the Education Code in that the award requires expungement of the grievants’ evaluations, a remedy not provided for in the Education Code. It argues that “[p]ursuant to Education Code section 44663 subdivision (a), the remedy for employees who are dissatisfied with their evaluation is that they have the right to initiate a written reaction or response to the evaluation, which response becomes a permanent attachment to the employee’s personnel file. The Education Code does not provide for a remedy of expungement of evaluations.”
In Bellflower, a probationary teacher who had not been reelected to employment filed a grievance, contending the district had deprived her of the chance to achieve tenure by failing to conduct her performance evaluations in accordance with the parties’ collective bargaining agreement. An arbitrator found the district had violated the agreement -- the district in fact conceded it had not followed the evaluation procedures set forth in the agreement – and ordered the district to cease and desist from committing further violations. The arbitrator also ordered the teacher to be reinstated for an additional year on probationary status, during which she was to be evaluated in accordance with the procedures set forth in the parties’ agreement. (Bellflower, supra, 228 Cal.App.3d at pp. 807-808.) The provisions of Education Code section 44929.21, subdivision (b) governing nonreelection of probationary teachers (which the Round Valley court would consider five years later), were therefore at issue.
The district petitioned to vacate the arbitrator’s award, and the trial court granted the petition. The association appealed. Regarding the contention that the district had not followed the evaluation procedures in the parties’ agreement, the appellate court noted that the article governing evaluation procedures in the parties’ agreement was not applicable by its terms to nonreelection. As to the separate issue of the propriety of the remedy chosen by the arbitrator, reinstatement, the court noted that the agreement could not have purported to address nonreelection procedures because any such application would be preempted by the Government and Education Codes (thus presaging the conclusion later reached in Round Valley). (Bellflower, supra, 228 Cal.App.3d at pp. 811-812.) In contrast, the appellate court found that the “violation of bargained-for evaluation procedures [] is within the allowable scope of collective bargaining under the Government Code.” (Id. at p. 812.)
As to the reinstatement ordered by the arbitrator, the Bellflower court concluded that remedy was “beyond the scope of the arbitrator’s powers under the Agreement . . . . Reinstatement would interfere with the District’s exclusive right and statutory duty to dismiss probationary employees under applicable provisions of the Education Code, for any reason, without providing a statement of that reason and without the need for hearing and appeal from such decisions.” (Id. at p. 812.) Conversely, the court found that “the arbitrator’s order that the District cease and desist from conducting certificated employee evaluations in violation of the Agreement’s evaluation procedures was within the scope of his authority and not in conflict with any applicable statutes.” (Ibid., fn. omitted.)
The District’s reliance on Bellflower to argue that expungement of the grievants’ evaluations here would violate the Education Code is unavailing. Bellflower decided only that an arbitrator acted in excess of his authority when he imposed a remedy which affected the nonreelection of a probationary teacher, and which conflicted with section 44929.21, subdivision (b) of the Education Code. Article IX does not apply to nonreelection procedures. As we concluded above, the District has not established, by reliance on applicable authority or citation of any statute, that the Legislature intended to vest exclusive discretion in the District to determine the scope of procedural protections provided with regard to evaluation of employees. (See Round Valley, supra, 13 Cal.4th at p. 287.) Indeed, Government Code section 3543.2 indicates employee evaluation procedures are subject to negotiation, and nothing in the Education Code indicates to the contrary.
The District has not established that compliance with the Agreement as interpreted by the arbitrator, either by following the evaluation procedures as interpreted by the arbitrator or by expunging the grievants’ evaluations, would cause the District to violate the Education Code.
III. THE ARBITRATOR DID NOT EXCEED HIS POWERS IN THE CHOICE OF REMEDY, INTERPRETATION OF THE AGREEMENT, OR CONSIDERATION OF EVIDENCE
A. Choice of Remedy
The District also raises the related but distinct contention that the arbitrator acted in excess of his authority in awarding expungement of the evaluations, because the Agreement does not specifically provide for expungement of evaluations as a remedy for the District’s failure to follow the evaluation procedures set forth in the Agreement. We disagree.
The standard by which we are governed in determining whether the arbitrator exceeded his powers in awarding relief is as follows: “[I]n the absence of more specific restrictions in the arbitration agreement, the submission or the rules of arbitration, the remedy an arbitrator fashions does not exceed his or her powers if it bears a rational relationship to the underlying contract as interpreted, expressly or impliedly, by the arbitrator and to the breach of contract found, expressly or impliedly, by the arbitrator.” (Advanced Micro Devices, supra, 9 Cal.4th at p. 367.)
The District points to Article V(E)(4) of the Agreement, which provides: “The arbitrator shall have no power to alter, amend, change, add to, or subtract from any of the terms of this Agreement, but shall determine only whether or not there has been a violation of a provision of this Agreement in the respect alleged in the grievance. . . . [¶] . . . The arbitrator shall not render any decision or award or fail to render any decision or award merely because in his/her opinion such decision or award is fair or equitable.”
The District argues that this provision strictly limits the arbitrator’s authority to award relief to only those remedies set forth in the Agreement, i.e., permitting the evaluatee to submit a written response to the evaluation, which becomes a permanent part of the evaluatee’s personnel file. However, an evaluatee is entitled to submit a response regardless of whether the evaluation is positive or negative, and regardless of whether the District has followed the procedures set forth in the Agreement. The ability to submit a written response is not a remedy, it is a right in the first instance. The Agreement does not set forth specific remedies for failure to comply with the evaluation procedures.
As recognized by the court in Advanced Micro Devices, “[f]ashioning remedies for a breach of contract or other injury is not always a simple matter of applying contractually specified relief to an easily measured injury. It may involve . . . providing relief for [breaches] as to which the parties have not specified contractual damages. . . . As the United States Supreme Court explained in the leading case on review of arbitral remedies in the collective bargaining context, the arbitrator is required ‘to bring his informed judgment to bear to reach a fair solution of a problem. . . . There the need is for flexibility in meeting a wide variety of situations. The draftsmen may never have thought of what specific remedy should be awarded to meet a particular contingency.’ (Steelworkers v. Enterprise Corp. (1960) 363 U.S. 593, 597.)” (Advanced Micro Devices, supra, 9 Cal.4th at p. 374.)
Article V(C) of the Agreement sets forth that in order to pursue a grievance beyond the informal level, the grievant must prepare a written statement, which “shall be a clear, concise statement of the grievance, including the provisions of this Agreement alleged to have been violated, misinterpreted or misapplied, the circumstances involved, the decision rendered at the informal conference, and the specific remedy sought.” (Italics added.) The matter is then decided by an administrator (“level I”), followed by an appeal to the Superintendent (“level II”), after which the Association may seek arbitration of the matter. Thus, the Agreement indicates that the grievance to be decided by the arbitrator – the scope of the submission – is delineated by the written statement prepared by the grievant, including the remedy sought. Article V(E)(4) of the Agreement (the language emphasized by the District) provides that: “The arbitrator shall have no power to alter, amend, change, add to, or subtract from any of the terms of this Agreement, but shall determine only whether or not there has been a violation of a provision of this Agreement in the respect alleged in the grievance.” (Italics added.)
The grievants and the Association here sought expungement of the evaluations they contended were prepared in violation of the Agreement. Determining the propriety of awarding expungement of the evaluations was therefore within the scope of the submission to the arbitrator.
Adopting the position taken by the District, that only those remedies specified in the Agreement are available to the arbitrator, would result in there being no remedy for the District’s failure to adhere to the evaluation procedures because the Agreement does not address remedies. We decline to reach this absurd result. A contract should receive such interpretation as will make it reasonable and avoid absurdities. (State Farm Mut. Auto. Ins. Co. v. Mrozek (1972) 29 Cal.App.3d 113, 117, citing Civ. Code, § 1638: “The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity”; and Civ. Code, § 1643: “A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties.”) The arbitrator was permitted to consider ordering expungement, the remedy sought by the grievants.
An arbitrator does not exceed his or her powers so long as the chosen remedy bears a rational relationship to the underlying contract as interpreted, and to the breach of contract found by the arbitrator, and is not prohibited by that contract. (Advanced Micro Devices, supra, 9 Cal.4th at p. 367.) “Judicial review of remedies . . . looks not to whether the arbitrator correctly interpreted the agreement, but to whether the award is drawn from the agreement as the arbitrator interpreted it or derives from some extrinsic source.” (Id. at p. 378.) “The award is rationally related to the breach if it is aimed at compensating for, or alleviating the effects of, the breach.” (Id. at p. 381, fn. 12.) Guided by this standard, we readily conclude that the remedy awarded by the arbitrator did not exceed his powers. The arbitrator interpreted the Agreement to require that evaluatees were to be given the benefit of detailed remedial procedures prior to the summative evaluation, giving them the opportunity to correct whatever deficiencies might exist. The grievants were not given the benefit of the remediation procedures compelled by the Agreement before they were given their summative evaluations. Implicit in the arbitrator’s award is the conclusion that the summative evaluations were therefore invalid, or at least unfounded. Expungement of the evaluations was a reasonable means by which to alleviate the effects of the breach. This remedy was drawn from the Agreement as interpreted by the arbitrator, and not from some extrinsic notion of fairness or equity engrafted by the arbitrator.
B. The Evaluation Procedures Compelled by the Agreement
The District contends that the arbitrator exceeded his powers because, contrary to the provision in Article V(E)(4) that the arbitrator “shall have no power to alter, . . . add to, or subtract from any of the terms of this Agreement,” he “rewrote the Agreement to reflect what he determined to be what the ‘contract language contemplates,’” and “redrafted the Agreement by adding provisions for ongoing evaluations and additional remedial plans that are not provided by the present Agreement.” The District argues the Agreement does not require prior remedial efforts, only timely remedial efforts, and that its past practice of having the evaluator observe, evaluate, and then if necessary, initiate a timely remediation plan, constitutes compliance with the Agreement. The only provision for any evaluation is for the one that occurs towards the end of the school year. Only then does the administrator become the evaluator and the employee the evaluatee. It reasons that, therefore, there must be an evaluation prior to the requirement under Article IX(F)(1) of a remedial plan.
We begin by emphasizing that we do not review de novo the arbitrator’s interpretation of the language of the Agreement. Our review is limited to determining whether the arbitrator exceeded his powers. (Code Civ. Proc., § 1286.2, subd. (a)(4); see Moncharsh, supra, 3 Cal.4th at p. 28.) We conclude that the arbitrator did not “stray[] beyond the scope of the parties’ agreement by resolving issues the parties did not agree to arbitrate.” (Ibid.) The arbitrator was called upon to interpret and apply the terms of the Agreement, and determine whether the District “violated, misinterpreted or misapplied a provision of this Agreement,” and that is precisely what he did. It is evident that the arbitrator did not rewrite the Agreement or reach a decision based on principles of equity or fairness rather than the language of the Agreement. The Agreement clearly sets forth that the evaluator is identified at the beginning of the school year. (Art. IX(C).) “If, at any time, the evaluator determines that improvement is required . . ., the evaluator shall, within a reasonable time, meet with the employee to discuss the problem and possible solutions.” (Art. IX(F), italics added.) “No negative evaluation shall be based upon materials, observations or the evaluator’s perceptions which were not the subject of timely remedial efforts in accordance with Section F.” (Art. IX(G)(2).) Based on this language, the arbitrator’s conclusion, that the District’s practice of deferring any remedial action until the summative evaluation does not satisfy the contractual requirements, is plainly reasonable.
IV. THE DISTRICT’S PAST PRACTICE
The District presented testimony by Assistant Superintendent Edward Shaw and District Superintendent Rick Kemppainen, who described the procedure followed by the District in evaluating employees. Superintendent Kemppainen stated that it had been the District’s practice for over 20 years to initiate a remediation plan once the summative evaluation is completed.
The District contends that the trial court was required to vacate the arbitration award because the arbitrator refused to “hear” this material evidence. (Code Civ. Proc., § 1286.2, subd. (a)(5).) We disagree.
In Gonzales v. Interinsurance Exchange (1978) 84 Cal.App.3d 58, the court concluded that alleging a failure to consider evidence is not tantamount to alleging a refusal to hear evidence, and failure to allege a refusal to hear evidence renders fatally defective a petition to vacate brought pursuant to section 1286.2, subdivision (a)(5). “Webster defines the words consider and hear to leave no other conclusion. Hear is ‘To perceive by the auditory sense; to take cognizance of by ear; to give audience or allowance to speak; to listen to . . . .’ Consider is ‘to view attentively . . . to fix the mind on, with a view to careful examination; to think on with care; to ponder; to study; to meditate on; . . .’ It is obvious from these definitions that the two words are not synonymous. One cannot ‘consider’ what one has refused to ‘hear.’ Legally speaking the admission of evidence is to hear it, and the weighing of it is to give it consideration. The failure to allege a refusal to hear evidence renders this petition fatally defective in this respect, since failure to consider evidence is not a ground to vacate the award.” (Id. at p. 63; see also 6 Cal.Jur.3d Arbitration and Award, § 144, database updated May 2006.)
In the instant case, the arbitrator did not “refus[e] . . . to hear evidence material to the controversy.” (§ 1286.2, subd. (a)(5), italics added.) Both witnesses were permitted to testify; the arbitrator simply determined that the clear language of the Agreement was controlling and prevailed over their testimony. Vacation of the award pursuant to Code of Civil Procedure section 1286.2, subdivision (a)(5) was not warranted.
V. SANCTIONS FOR A FRIVOLOUS APPEAL ARE NOT WARRANTED
The Association filed a motion requesting that sanctions be awarded against the District for filing a frivolous appeal. While we have found no merit in the appeal, we are satisfied that it is not “frivolous.” We therefore deny the request for imposition of sanctions. (See In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650 [“An appeal that is simply without merit is not by definition frivolous and should not incur sanctions”].)
DISPOSITION
The judgment is affirmed. Respondents are awarded costs on appeal.
We concur: EPSTEIN, P. J., MANELLA, J.